Legal Beagle by Graeme Edgeler

33

A grand jury?

Most followers of American legal dramas (or American political news) will have heard of grand juries – although they may have little idea what they do. This ancient and once widespread legal institution (contrasted with the petit jury we retain to conduct criminal trials) is now really only retained in the United States.

We abandoned the grand jury in 1961, during the last complete overhaul of our crimes legislation (now the Crimes Act 1961, previously the Crimes Act 1908). They continue to exist in the United States today because they were important in 1789 – when the Fifth Amendment was drafted; thus the US federal jurisdiction is stuck with them for the foreseeable future.

When changes to our rule against double jeopardy (also protected in the US by the Fifth Amendment) were moving through Parliament last year, I opined that:

The laying of charges against someone, and bringing them to trial – with all that entails – is one of the greatest impositions of state power there is, and there are very good reasons for not letting them do it repeatedly.

That right has a similar genesis to the grand jury system – both are designed (like many aspects of criminal procedure) to protect individuals from the overzealous exercise of state power. By requiring the state to get permission from a grand jury of ordinary citizens (a majority of at least 12 historically needed – leading to modern grand juries of 23) before bringing the criminal justice machine to bear on an individual is a powerful tool against state corruption. Not only can a grand jury prevent state abuse by refusing permission to try someone, its existence can act as a deterrent to giving it a go in the first place.

Many concerns arise with grand juries, particularly as they’ve evolved in the United States. Rather than protecting individuals from state abuse, their investigative powers can be used as an instrument of state power – by allowing, for example, witnesses to be compelled to give evidence under oath, without a lawyer present, where they could not be before by police. They are also secret, and the proposed defendant isn’t represented, and cannot make submissions (and doesn’t even need to be told it is happening).

As a protection against state power, a grand jury is undoubtedly better than nothing, but the alternative pre-trial check – the preliminary hearing – seems the superior beast. For serious cases in New Zealand these are the depositions we heard so much about when the Criminal Procedure Bill was going through. They are conducted in open court, they allow the defence to see and challenge the evidence before trial (at least they used to), and both prosecution and defence get to argue over whether there is sufficient evidence for the matter to proceed to a trial; moreover, their conduct can greatly simplify the trial proper.

I’m not of the opinion that we should go abandon depositions – indeed I was opposed to the changes that weakened them last year – but I wonder whether there may also be a small place for grand juries in New Zealand. Grand juries have historically had a broader role than merely acting as a check on prosecutorial power (... by either accepting or rejecting a proposed indictment); their powers to compel witnesses allow them to be used as an investigative tool.

Those familiar with the Plame Affair will recall that special prosecutor Patrick Fitzgerald used a grand jury to get to the bottom of that mess, and with so politically charged a set of circumstances, there is additional comfort in knowing that no charges were laid over the leaking not because a Government-appointed prosecutor decided not to bring them, but because a bunch of ordinary citizens didn't think a law was broken.

A similar benefit can be seen to arise from the English coronial system, which (unlike ours) allows for inquests to be conducted by juries. The rejection of Mohammed Al-Fayed's conspiracy theories by a randomly-selected jury at the inquest into the death of Diana, Princess of Wales, makes the claims just that much harder to sustain.

It is in circumstances such as these, where the need for public confidence in any decision is heightened, that I can see a role for grand juries in New Zealand. I think specifically about the recent death of Halatau Naitoko.

In the ordinary course of events following a shooting death, a ranking police officer will look at all the photos and video from the scene, read all the statements, watch or listen to all the interviews, take legal advice (internal and crown solicitor), and then decide the appropriate charge, taking account of the Solicitor-General's Prosecution Guidelines.

I can see substantial advantage to removing that final call from the police in cases like this. Place all that evidence before a grand jury, and allow them to accept, reject, or amend the prosecution's proposed course of action. It is how we used to do it; it is how much of the United States still does.

“Just charge him, and leave it up to the jury” is not an option in a civilised society. Everyone, from lowliest career criminal, terrorist suspect, alleged first-time tagger, and even police officer has rights. Some are contentious. I can think of arguments about how other rights granted in criminal procedure protect criminals and create injustice. I usually disagree with those arguments, but at least I can think of them – there is a debate to be had. The right not to have your prior criminal history known to your jury has come in for some strong criticism of late – some saying it has led to unjust acquittals of serious criminals. I generally hold that the risk of injustice it creates outweighs the problem of erroneous acquittals; but again, there is room for debate.

But I can think of no situation in which a malicious prosecution – a prosecution in which a prosecutor, placing the worst possible interpretation that could reasonably be placed on all the evidence, doesn't think that a jury, accepting everything the prosecution could throw at it and completely ignoring the defence view on all of it, could properly convict – should be commenced. I don't care if the decision to not prosecute is unpopular. The idea that prosecutors should ignore their obligations, break the law, and commence malicious prosecutions to assuage public opinion is abhorrent. I don't want the police force breaking the law, but I sure as hell don't want my prosecutors breaking the law.

Not least because the right not to face a malicious prosecution isn't actually a right a criminal has – it's only a right an innocent person (well, a not guilty one) has. There can be no justification for charging someone that you know could not properly be convicted. If there is sufficient evidence for a charge to be laid, then it should. But if no charge can reasonably and properly be laid, because (after an exhaustive investigation) there is just not enough evidence of a crime, then no charges should follow. It isn't complicated. Public dissatisfaction can bite me.

But I can see the position is invidious. It is why in such charged cases, it may be better for the police or prosecutors to avoid making the call themselves. A grand jury seems ideally placed to remove police and prosecutors from making decisions they would inevitably be attacked over, and which sectors of the public will inevitably have little confidence. Having a grand jury make the final decision on potential prosecutions against police officers, or members of Parliament, or in other highly charged cases is an alternative worth considering.

Feelings that police are protecting their own, or are bowing to political pressure, are best avoided, but they should not be avoided by the “prosecute first, ask questions later” solution some seem to be proposing. Having the final call on criminal proceedings made within the police can lead to intense feelings of distrust in the result. I think particularly of the private prosecution of Keith Abbott – there were internal reviews, and a review by the then Police Complaints Authority (which may still be ongoing?), that have yet to reach any conclusion other than that Senior Constable Abbott behaved appropriately, but these were sufficient to quell the intense anger over the incident, or the emotion over what legal action should result. We cannot know what might have happened, but I wonder whether the private prosecution would have taken place if the initial decision against taking the matter to trial had been made by a grand jury.

The private prosecution faces periodic calls for its abolition or further restriction. They surfaced when Trevor Mallard faced private assault charges (he was convicted of the lesser charge of fighting in a public place), and I believe Greg O’Connor has suggested in the past that police officers should have greater protections from them. The current power of the Solicitor-General to stay prosecutions is perhaps not enough of a safeguard against abuse; I wonder too, if requiring those seeking to commence private prosecutions to attain grand jury agreement (which was the role of grand juries a few hundred years ago) might be the additional safeguard people seek, while still retaining its small but important place in our legal system.

It is too late to help with our latest tragedy, and hopefully there will not be another to trial it with, but the next time the police are investigating one of their own, or are considering some historical allegations against a member of Parliament, allowing them, and us, the protection of public blessing of prosecutorial in/action is something worth considering.

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