Guilty or Not Guilty?

The public might assume that justice equals the truth, with regards to any Court Case brought before the New Zealand court, however in our adversarial system they may not be the same thing at all.

New Zealand’s justice system is part of our system of government. New Zealand’s government is modelled on the British system (the Westminster model) and is based on a concept called separation of powers. This means the institutions of government are divided into 3 branches, Parliament, Executive and Judiciary.

The judiciary is made up of New Zealand judges and judicial officers. All judges and judicial officers are appointed by the GovernorGeneral on the recommendation of the Attorney-General.

Judges interpret and apply the law through the court system by hearing and deciding cases. If they are hearing a case where the statute is unclear, they look at earlier court decisions on similar cases. This is called case law.¹

In an Adversarial system, the prosecution presents its case and evidence, while the defence challenges that material where it can. Sounds fair enough but in practise this does not automatically occur.

In fact, any defendant with sufficient means can hire legal counsel at the highest level. The more experienced or practised the barrister, the more likely a satisfactory outcome. That is, their client may be found not guilty, even if that flies in the face of the real truth.

In some cases, there may be genuine errors in the prosecution which could lead to an unjust conviction. If uncovered and presented to the Court (Judge alone or judge and Jury) in a proper manner, most would applaud the result and the case would close with justice done.

At least, that is the popular theory. Sadly, the system has drifted into a “win at all costs” duel, often with scant regard for the truth, by one party or the other. Either party may try to adduce evidence with no more than a convenient theory to back it. If the Court does not rigorously apply its obligatory supervision of the evidence via the Judges Rules, it is left to the jury to decide on issues of “facts” put before them.

How is a lay, inexperienced jury to decide which witness is offering the truth and which one is just proffering a clever opinion disguised as the truth? Obviously two expert witnesses giving conflicting evidence on the same issue creates a dilemma here.

How is a jury selected? It seems it is rather easy to be excused from jury duty and that diminishes the pool immediately. What standard of education and general life experience does the panel possess? Is the jury capable of understanding sometimes very complex and technical evidence? Can they assess which “expert” is telling them the “truth” as opposed to an unbalanced version designed to confuse or mislead them? Do they have the endurance, discernment and determination needed to absorb complex evidence presented over many days, weeks or months?

Jury selection

Some counsel are very clever in reading potential jurors, as they appear during the jury selection. Those who don’t meet the criteria they seek, are excused, as counsel have the right to unlimited challenge with cause² so the jury is then potentially already biased to a degree.

The right to challenge potential jurors could be reduced to one each for the defence and the prosecution. These applications should help speed up the total process and balance out the anomalies of a potentially biased jury via the present challenge system.

In my opinion, the best solution to quickly and accurately process our cases through our courts, is to remove the cumbersome jury system all together. Instead the judge would preside over two lay magistrates, drawn from a public pool of suitably qualified citizens. Justices of the Peace at present handle very minor cases without any problems and people of a similar ilk would provide voluntary, willing sources to make up the panel.

The writer has seen legal aid defence lawyers convince the defendants to plead not guilty, when the evidence is totally at odds with this. At present, of course, all lawyers are paid regardless of the result, but if a case can be drawn out or adjourned, more legal aid payment can attach. If the truth was discerned via a careful analysis of the case, and it seemed a guilty plea would be appropriate, the counsel could concentrate on a mitigation plea. But only if the truth was sought as the overweening principle.

If any evidence is of a particularly technical type, requiring expert interpretation, relevant independent experts should be available to the Court. They would give their unbiased interpretation of any disputed evidence, thus guiding the members as to which party was the more credible or incredible.

The Bain trial is a good example of this. There, the opposing experts gave differing opinions regarding distance the rifle was held from Robin Bain’s head. There was a range of between 0 mm up to 420 mm. Obviously the defence experts said it was held close enough for Robin to have shot himself, and they demonstrated how this could have been achieved.

Some prosecution experts stated it was well beyond suicide distance. Who was right? Accepted experts in any area of special knowledge can take many years of study and practise to qualify. How, then, could ordinary members of the public on a jury know who was correct?

My experience has shown that juries tend to go with the witness they personally prefer, not necessarily based on the evidence, but on the personality (or lack of personality) of the witness. Some outrageous results attended. I can recall many examples. In a serious case that I took part in, jury members were not able to understand the technical responses by either of the two conflicting expert witnesses. They chose the one who was clean-shaven because the other had a scruffy beard which they did not like! (Sourced from a jury member.)

Justice, truth or a simple toss of the coin? An independent expert could have eased their dilemma and confusion. Of course, some defence lawyers may not accept this change, as confusion and obfuscation is often their stock in trade. They shop around internationally to locate an “expert” who, for a fee, would be able to give evidence which conflicts with the prosecution case.³

This is a disgrace because obviously they cannot both be right, so one must be wrong. An assessment by an independent and qualified amicus curia would be justified, at least on a balance of probabilities. It might even apply to some prosecutions as well. The final choice would still be in the hands of the judge and jury, but they would have far more knowledge with which to reach their conclusion.

The gullibility and naivety of any jury panel is not immediately detectable. They can be very susceptible to theatrical performances by any witnesses, as these are in fact designed to distract from the opposing evidence and so linger in the memory. The content does not have to be particularly accurate or even truthful, because in these cases it is the performance that convinces an otherwise ignorant jury.

New Zealand has had numerous trials that have polarised the nation, one such is the 2009 Bain homicide trial, where the defendant was found Not Guilty. (This was a retrial, after a privy council decision. The first in 1995 returning a guilty verdict.)

I heard one of the jury members, a woman, speak after the trial. She tearfully stated they did not find David Bain innocent, but they did not believe the case was sufficiently well proven.⁴

Perhaps the Scottish system might be apposite, wherein there is a third option open to the jury i.e. “not proven.” While this might not have any more real effect than a not guilty verdict, it may well explain the juror’s decision.

But who would call for the amicus curiae⁵ and when?

Surely either party or even the jury itself should be able to ask for this crucial assistance. With full decipherment of the issues presented to the court, it would allow a far more accurate consideration of any issue.

It is necessary.

As described above, studies have shown that juries assess the body- language, attitudes and methods of delivery in such cases, IN LIEU of making sound decisions on the facts asserted. Clever and practised witnesses and counsel can often persuade the court through their performances. This well-established ruse is often used just to confuse juries. ⁶

Justice suffers in the battle to win at all costs

An independent expert’s opinions would lead to decisions soundly based on more clearly understood issues. Once called, all parties would be affected by the non-partisan amicus curiae, even if it conflicted with the presentation given by the party calling them.

When such a system was established and accepted, neither the defence nor the prosecution would risk dissembling before the court. The defence would still rigorously test the prosecution evidence but could not invent spurious and false stories unacceptable to the amicus curiae examination.

Let me use continue to use the BAIN homicides 2009 trial as an example

If, in 2019 it was now possible to demonstrate real unequivocal evidence as to who committed the murders, misleading or mistaken testimony given by the losing side’s witnesses would be apparent. Conjecture and blatantly dishonest efforts by either counsel would be exposed for what they were.

I believe I can provide such evidence, culled solely from the material in the public domain.

There were a multitude of issues in this case. The second trial lasted 3 months and 183 witnesses were called. Millions of dollars were spent on legal aid for the defence and for the Crown all at the tax-payers continuing expense.

The defence called witnesses to refute or reinterpret evidence on virtually every issue. These ranged from motives, physical evidence and professional opinions on controversial matters, some of which were genuinely open to conflicting readings.

Cross-examinations were quite forcefully inflicted on some witnesses. Aggressive questioning of witnesses is a common ploy, designed to attack the actual witness, when the evidence itself is sound.

Vital mistakes had been made by the Police which led to loss of evidence and raised questions about the legitimacy of evidence collected from the initial investigation.

A series of issues that demonstrate how the pursuit of the truth can be completely devoid of any justice. In the next edition we will look at just how this was done.