Legal Beagle by Graeme Edgeler

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Legal Beagle: Hidden in plain sight

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  • Graeme Edgeler,

    Does it still count as breaking news if it became public a week ago?

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Paul Rowe,

    Graham, a few typos/questions:

    In your section The abolition of the distinction between the summary and indictable jurisdiction your first para ends somewhere it doesn't intend to I think.

    And on the law society submission you say it certainly was all mine (or even mostly mine) I presume that's 'wasn't all mine'?

    Minor stuff, but an enlightening post, a lot to take in for us non-lawyers.

    Lake Roxburgh, Central Ot… • Since Nov 2006 • 574 posts Report Reply

  • BenWilson,

    Thanks Graeme. I don't know quite what to make of most of it, other than it does in general seem to be heavily in favor of prosecution. The requirement to actually tell the prosecution what your defense is seems quite a massive change, I can see why it's held up as "removing the burden of proof". That's overstating it - it's weakening the burden of proof by giving the prosecution more time to work directly against your exact defense case.

    So if you say, for instance, that you will defend your assault charge with "self-defence", they can spend all their time and energy addressing that defense, finding character witnesses for the assaulted, boning up on the ins and outs of self-defence, prepping the witnesses not to say they were angry, etc. Before, they would have had to consider it quite possible that you'd deny even being there, and would have to spend considerable effort proving that you were the one who bashed whoever the assaulted was.

    It is still a bit hard for me to see directly why this is particularly bad, though. Prosecutors wasting their time shoring up aspects of the case that will never be touched does seem to me to not really get to the important issue, of allowing the judge/jury to more clearly see what actually happened and make an informed decision. I'll need to think on it, but my only objection would be that it generally weakens the strong position defendants had before. And it's a MAJOR weakening - their ability to reveal their defence on the day in court was a huge factor in being considerably more prepared than the prosecution.

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • 3410,

    It is still a bit hard for me to see directly why this is particularly bad, though.

    Because the current regime maintains the integrity of the prosecution.

    If the prosecution is honest and true, then it won't need advance warning on where its case might have slipped up. Not being required to "show their working" encourages mistakes, which is a bad thing.

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • BenWilson, in reply to 3410,

    Not being required to "show their working" encourages mistakes, which is a bad thing.

    The prosecution has always had to present its case in advance, though, no? You know what charges you will face, and what evidence will be presented.

    I'm not saying these changes are good, just that the reason why they're bad isn't leaping out at me at the moment. Other than that it's a very general strengthening of prosecution power, which I haven't heard any particular case for, other than cost-cutting. Do our prosecutors really need more advantages, considering that they already wield the power and financing of the State? Making it ten times easier to prosecute could lead to ten times more prosecutions - is that something we actually need?

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • Graeme Edgeler,

    Graham, a few typos/questions:…

    Thanks. I’d forced a deadline onto to myself (must publish before Derek at the Herald, so I ended up finishing it at around 3am. I just knew there’d be something like that… if anyone else can find more please let me know.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • James Butler, in reply to Graeme Edgeler,

    Does it still count as breaking news if it became public a week ago?

    The wheels of justice blog exceedingly slowly...

    Auckland • Since Jan 2009 • 856 posts Report Reply

  • Steve Barnes,

    “It wasn’t me, but if it was it was self-defence” might be inconsistent, but is “I didn’t assault the complainant, and the person who did did so in self-defence), and aren’t they the same?

    Not at all the same. The similarity ends with the redundancy of the latter part of the sentence. In the first instance the redundancy is also contradictory but in the second it is, merely, redundant.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • Hayden Wilson,

    Having been on both sides of the fence (prosecuting and defence), although admittedly not as often as some, I am pretty relaxed about pre-trial notification of issues. I perhaps wouldn't go as far as the Bill does but certainly a requirement to identify issues that are not disputed, well in advance, would be a good thing.

    It seems to me that a good portion of our criminal bar rarely (probably because of the pressures of resources and time) turn their mind with any degree of focus to cases before the last minute. What that often results in is massive additional cost to the prosecution in proving matters that are not ultimately in dispute (with no countervailing advantage or protection to the defendant) and late guilty pleas.

    Not sure how far I would go with disclosure of defences (but note some are required to be disclosed in advance already).

    What would be interesting (but anathema to the criminal bar) would be a requirement for the defence to exchange briefs of evidence in advance, together with a restriction preventing them being used by the prosecution unless and until the evidence had been called... but I may well be alone in thinking that that might work

    Since Nov 2006 • 27 posts Report Reply

  • BenWilson, in reply to Hayden Wilson,

    It seems to me that a good portion of our criminal bar rarely (probably because of the pressures of resources and time) turn their mind with any degree of focus to cases before the last minute.

    Because they didn't have to?

    What that often results in is massive additional cost to the prosecution in proving matters that are not ultimately in dispute (with no countervailing advantage or protection to the defendant) and late guilty pleas.

    Surely the advantage to the defence is the very existence of that massive additional cost, which will stop some prosecutions and delay others. Yes, there's no advantage if they do successfully prosecute, but that wouldn't even happen in some cases where the prosecution felt there were some weaknesses in their cases that in practice didn't end up being disputed.

    eg, if a prosecutor has 2000 person hours every year to spend preparing cases, and each one used to take 100 hours preparation, they could only prosecute 20 cases per year. Cut the preparation to 10 hours by requiring the defence to show what the defense will be, eliminating 90% wasted time shoring up undisputed points, and they can prosecute 200 cases every year. Which means that 180 defendants end up in court who might not have before. Or they could spend the same 100 hours, but entirely on the case that will be disputed, so they'll get a lot more prosecutions per year, being effectively 10 times better prepared for the case they have to argue.

    I'm pulling numbers out of my arse, of course, but the point remains. It would be very interesting to hear from actual prosecutors just what proportion of wasted time is eliminated by this. How many possible defenses are there on average? If it's 2, then it should double their efficiency. If it's 5 it's making them 5 times more.

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • Ian MacKay,

    If I was a defendant and had to provide my defence to the prosecution wouldn't that mean that big money could be spent by the prosecution to undermine my defence before it was even my turn to defend in the courtroom? (Be like the political party having to explain their strategy to the others before the election.)

    Bleheim • Since Nov 2006 • 498 posts Report Reply

  • Sacha, in reply to BenWilson,

    Other than that it's a very general strengthening of prosecution power, which I haven't heard any particular case for, other than cost-cutting. Do our prosecutors really need more advantages, considering that they already wield the power and financing of the State?

    I'd say your answer lies in ideology

    Ak • Since May 2008 • 19688 posts Report Reply

  • Sacha, in reply to Ian MacKay,

    If I was a defendant and had to provide my defence to the prosecution wouldn't that mean that big money could be spent by the prosecution to undermine my defence before it was even my turn to defend in the courtroom?

    Yes. Expect to see cuts in prosecution budgets..

    Ak • Since May 2008 • 19688 posts Report Reply

  • 3410,

    .

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Rob Stowell,

    3410- I don't get your point :)

    Whakaraupo • Since Nov 2006 • 2091 posts Report Reply

  • Bart Janssen,

    Is there any evidence that a jury is more "just" than a judge. I guess I'm not convinced enough that juries are "better", to be concerned that there will be less option for a jury.

    Auckland • Since Nov 2006 • 4451 posts Report Reply

  • Tom Semmens,

    "I appreciate that some defendants and counsel are guilty of abusing the system but, on balance, the judiciary is not persuaded that this provides good reason for the departure from basic principle, which is involved in any requirement for advance disclosure of an intended defence," she said in her submission.

    Sanctions would also be ineffective and impractical because of "uncertainty about whether the abuse of the system is the fault of the defendant or of counsel", she said.

    Closest a judge can actually get to saying they'll effectively ignore the will of parliament - fighting talk indeed.

    Sevilla, Espana • Since Nov 2006 • 2213 posts Report Reply

  • Hayden Wilson,

    Ben -
    You are absolutely right - the reason they don't turn their minds to it is because they don't have to and that they have other things to do.

    Also, the costs involved are not just the cost on the prosecutor, there is also the (not insignificant) waste of Court time, and the flow on effect for other hearings in an overcrowded system. I don't think there is any evidence of prosecutions not being taken because of pressure caused by cases in the system already. Your analysis assumes that there is a common purpose across the defendants - there might be an aggregate advantage, but not one that is predictable for any identifiable one.

    Since Nov 2006 • 27 posts Report Reply

  • BenWilson, in reply to Hayden Wilson,

    Your analysis assumes that there is a common purpose across the defendants - there might be an aggregate advantage, but not one that is predictable for any identifiable one.

    Well, they do all want to be found innocent, or even better, have the charges dropped. So there is a common purpose. An aggregate advantage is still an advantage.

    But I don't have any real feel for how significant this factor is.

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • andrew r,

    “that would be interesting (but anathema to the criminal bar) would be a requirement for the defence to exchange briefs of evidence in advance, together with a restriction preventing them being used by the prosecution unless and until the evidence had been called… but I may well be alone in thinking that that might work.

    Really ??? It seems Hayden you’ve spent more time prosecuting at the Bar than defending . What you propose here flys directly in the face of that premise …innocent until *proven* guilty .. . love the part particulalry about the Crown being able to cross examine on the Brief of evidence if the defence witness strays when testifying -awesome!! Golly gosh . Although Simon Power no doubt would be in complete agreement with you . I presume you were joking .

    I practise regularly at the defence bar …. and i can tell you its becoming more and more of a chore for various reasons . Too many to go into here .

    Not overly concerned with obligations to declare defences pretrial — I imagine myself and my colleagues particulalry in serious trial matters, will deny each element point by point if that’s what’s required – sigh. Generally the likely defence to be run is apparent anyway . Just another knock to the defence bar implying that it is we who ‘clog the system’
    If the Prosecution/Crown did not so often over charge ….. that would speed things up considerably and invite more guilty pleas. If we were allowed to test veracity of key prosecution witness’s in pretrial hearings – that too would decrease jury trials and infact did decrease jury trials, when we had depositions hearings . Sometimes your client actually needs to hear the complainant testify – and in many cases a guilty plea follows and Trial is averted . Or the Prosecution realise their case is extremely flimsy – hey hey their witness’s aren’t quite the angels they thought they were – and charges are amended down adccordingly.
    I think one of the more interesting things about the Bill in current form is that if a charge carrys more than 3 years prison but does not fall into the very serious mandatory Jury Trial cat 4 -= then it will be trialed summarily unless J Trial is elected . A judge alone Trial on say a rape charge would be very very strange indeed . From the defence perspective though I would anticipate Jury Trial would generally be elected .
    Jurys are an amazing part of our system — amazing working infront/with them . Gawd thank Shamus Simon Power’s disappearing before he can erode them further.

    auckland • Since May 2007 • 99 posts Report Reply

  • Matthew Reid,

    There is one offence with a maximum of only two years, that will still need to be heard by a jury (and a High Court jury at that) – infanticide.

    That seems logical, as a form of homicide, that infanticide should be treated seriously, have a jury trial in the High Court. Graeme, although it isn't entirely on topic, could you expand on why the maximum penalty for infanticide is two years?

    South Africa • Since Nov 2006 • 80 posts Report Reply

  • Graeme Edgeler,

    Is there any evidence that a jury is more “just” than a judge.

    Some people would suggest that the Waihopai case is a good example. Others not so much. Others might include some of the battered women cases where there was an acquittal on a defence like provocation where it perhaps shouldn't have applied. Juries can get away with that. I think smacking is a good example here as well. There are cases eminently suited for a judge sitting alone. Most of these are heard by a judge sitting alone. There are some cases where 12 lay people are just better.

    It's also not just a about justice, but about the perception of justice as well. That there was a jury in the manslaughter(?) charge against the police officer against whom a private prosecution was brought for the death of Stephen Wallace probably allayed the anger of the family more than a judge-directed acquittal ever could.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Raymond A Francis, in reply to andrew r,

    How often did depositions result in a "no case to answer"?
    Not very often in my experience, are there any figures on this point?

    It has always seemed to me that defence lawyers like juries because they can be swayed or more truthfully bamboozled; let's not forget that one definition of the defence lawyers is "people paid to lie for you" They don't often get into the dock and swear to tell the truth

    Prosecutors claim they have to work with one hand tied, so does this lead to better justice or just more people getting off?
    And which do we as a society prefer?

    45' South • Since Nov 2006 • 576 posts Report Reply

  • andin, in reply to andrew r,

    Just another knock to the defence bar implying that it is we who ‘clog the system’
    If the Prosecution/Crown did not so often over charge ….. that would speed things up considerably and invite more guilty pleas. If we were allowed to test veracity of key prosecution witness’s in pretrial hearings – that too would decrease jury trials and infact did decrease jury trials, when we had depositions hearings . Sometimes your client actually needs to hear the complainant testify – and in many cases a guilty plea follows and Trial is averted . Or the Prosecution realise their case is extremely flimsy – hey hey their witness’s aren’t quite the angels they thought they were – and charges are amended down accordingly.

    The permutations they run deep. They are people after all.
    And is clogage a reason somewhere?
    Are we all a study in time and motion?

    swayed or more truthfully bamboozled; let’s not forget that one definition of the defence lawyers is “people paid to lie for you” They don’t often get into the dock and swear to tell the truth

    There may be those like that, but lets not generalise too much.

    raglan • Since Mar 2007 • 1882 posts Report Reply

  • Phil Lyth, in reply to Graeme Edgeler,

    That there was a jury in the manslaughter(?) charge against the police officer against whom a private prosecution was brought for the death of Stephen Wallace probably allayed the anger of the family more than a judge-directed acquittal ever could.

    Exactly. The whanau may not have liked the verdict, but I suggest they could more readily accept it from a jury of twelve good men (and women) picked at random.

    Wellington • Since Apr 2009 • 458 posts Report Reply

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