Judges could discourage dopey court lies

February 25th, 2010

Minister Simon Power is determined to reduce the waste in criminal trials. Criminal lawyers will wail about the Criminal procedure reforms . There will be quiet judicial venom toward "political ignorance".

Judges and lawyers should instead apologise to us all for the stupidity they've encouraged daily in their courts. They could use their existing powers to start cleaning up their scandalous performance if they want to head off further intervention by Parliament.

There is no excuse for the average time to defended trial blowing out to a year. There is no excuse for the weeks of laborious exploration of insultingly stupid defences, before juries get to apply their common sense. The current trial for the murder of Navtev Singh will do it. The recent trial for Libby Templeman's murder did it. Sophie Elliott's trial was an extreme example. But it is commonplace.

They rub our faces in abusive defences to charges where there is no doubt about who did it, and what they did. The only question is why they did it.

This is not to say that the accused should be deprived of their right to put whatever they wish before the jury in defence. I opposed the law change that removed the defence of provocation because that right is sacred. But there is no reason why, after conviction, they should not pay a very high price for dopey lies not believed by the jury. If the accused knew in advance that there would be a high price for not showing remorse, and for idiotic excuses, their lawyers would tell them in advance. We could expect to see far fewer exploitations of our proper concern to ensure that the innocent are not wrongly convicted.

Politicians are actually very reluctant to undertake justice sector procedural reforms. They usually play with sentences because it is a consitutionally safe way to respond to legitimate public frustration. The sentences for Kiel, Libby's murderer, and when he is convicted, Anitilea Chan Kee, should include thumping bonus years of imprisonment, expressly tied to the insultingly stupid defences they forced the court to endure.

Filed under Politics

Comments

This article is exactly my view of the slime ball who murdered my daughter and how his lawyer span a yarn – a game to the defence.
Bullshit lies in court, try to blame others, no remorse, no apology, nothing to lose, possible aquittal to gain. Made the trial extend literally 4/5 weeks longer.
What did the murderer lose? Nothing. The result was that the minimum sentence was imposed. Judge Fogarty is a grade one arrogant clown and the Crown are in league with the Judges, to further their own interests.
It's a disgrace, at public expense.

There really is a problem when the courts fail to apply a simple but remorseless logic to offenders "having a go" at an absurd defence in the certain knowlege that their lies, procrastination and gaming the system can at absolute worst add a trifling amount to their sentence and at best win them a complete aquittal.
Every lie told by a defendant should be punished. Any failure to admit guilt at the earliest opportunity should be seen for the opportunism that it is, a deliberate attempt to get away with the crime.
It seems that for the guilty, any amout of time or expense can be made available to try to get them off the hook, but for the victim, the right to have their case heard in full, or even heard at all is severely constrained by however much money is left over when the thugs and murderers have finished playing an expensive and naive system to the bitter end.
We all know this game will eventually come to an end, and sense, as outlined in Stephen's commentary will prevail, but may the good Lord comfort all those victims who are revictimised by the process. It is obvious that the Justice system will not!

[…] Judges could discourage dopey court lies – Stephen Franks has a sensible suggestion. […]

Stephen, I wonder if you are not putting yourself at cross-purposes here? Firstly you blame the defence bar for "the weeks of laborious exploration of insultingly stupid defences", but then you go on and say that "is not to say that the accused should be deprived of their right to put whatever they wish before the jury in defence."
With regards the 'crazy' defences (which, as you know, I disagree with you over for the most part), you seem to be implying that the defence lawyers come up with them and that to put them before the court is wrong and wasting the court's time, but then you defend the right of the accused to do so? That doesn't quite work, because in most cases it is the accused (or the police disclosure) who provides the defence. No-one I know who practices at the defence bar ever bothers to 'dream up' a defence. They are usually obvious (as Clayton Weatherston's was) or, if not so obvious, have some grounding in the facts of the case. While we can, and do, tell out clients that the defence won't work, or will be professionally embarrasing to us, or is just crazy, don't we have an obligation to put it nevertheless?
Or have I missed something there? You can't blame us for putting forward a case that our client has instructed us to put forward, then defend the client's right to give us those instructions, surely?
While I do disagree with much of Power's proposals, especially those that have the judges sitting as prosecutor and judge on questions of whether a lawyer is wasting of court time, I don't think that your point here is quite fair.
And Harry Young, could you please give your comments a rest. While I and everybody else are saddened at the untimely loss of your daughter, I know for a fact that the defence put forward in that trial was fair and reasonable. Moreover, your comments about one of NZ's best criminal defence lawyers are completely unfair, untrue and, with regards the defence lawyer lying in Court, defamatory. The accused man in your case was entitled to a trial and he took the opportunity. The case was huge (I understand the police interviewed over 600 witnesses) and I have no doubt that it was conducted with the highest ethics by the defence lawyers. Even worse, I don't see how the Crown can be in league with the judges, as they prosecuted the case!!

How sad that Harry Young cannot simply accept the murder of his sixteen year old daughter and her friend and the grevious bodily harm to the others when Lipine Sila deliberately drove his car into them. How could anyone reasonably expect Sila to know that driving a car into a crowd might kill or injure someone? Who would think such a thing could happen? It was perfectly proper for his defence lawyer to see if a juror or two might be gulled into believing it was all a tragic accident where poor Mr Sila was as much a victim as those he killed and injured, after all it is perfectly legal (indeed even required) for a defence lawyer to advance any story that would get his or her client off the hook, and we know that it only used to take one to get off scot free.
Meanwhile back on planet earth, most citizens are sick to the back teeth of those who would kill and injure the innocent then add insult to injury with all sorts of weasel words to the distress of those who loved the victims and at huge expense to the public purse.
I can accept that defence lawyers are in the unenviable position where in the vast majority of their cases, either they either lose their case (never a satisfying situation) or find that they have helped a guilty offender to evade responsibility for their actions.
I yearn for the day when the truth of the matter is valued by the courts as highly as the skillful verbal manoeuvering of the well paid silks who bristle when the raw humanity of a father mourning his daughter wells up to become language that is "unfair, untrue and …. defamatory".
Harry as a father myself, you have my heartfelt sympathy. Mr Smith, I am afraid I regard your expression of sympathy at best rather patronising. Jane Young was not "lost" she was murdered and no one should reasonably expect her father just to "get over it".

Jim Mclean, you sarcastic comment does you no credit at all.
The term I used to in my comment re the death of Harry Young's daughter is a generic one that is commonly used in all situations. I have heard it used in murder trials, even. Don't pretend otherwise simply for the sake of your sarcasm.
The defence case in R v Sila was based upon clear evidence provided in the more than 600 interviews conducted by the Police. The Crown case against Sila was not one of intentional murder, but of recklessness. They did not allege that he set out to take the two girl's lives, but that he acted recklessley in driving as he did in order to get away from the undisputed evidence that Sila had been attacked prior to the incident.
Mr Hall did not attempt to 'gull' the jury into accepting anything, nor is it perfectly legal in any way to advance made up defences in a jury trial. However, there was no need for Mr Hall to make up any evidence- it was provided in total by the police.
We are not "in the unenviable position where in the vast majority of their cases, either they either lose their case (never a satisfying situation) or find that they have helped a guilty offender to evade responsibility for their actions", as we also act for people who are innocent. You might not accept that, but you would be wrong.
Mr Young can say what he likes in private, but those comments of his are untrue, heartfelt as they might be. Mr Hall did not kill those young girls, nor injure the others. He did his job, uprightly, fairly and ethically. To accuse him of misleading the court, as Mr Young did, is the greatest offence you could ever accuse him, or any defence lawyer, of, and you should make it very carefully. That the accusation is demonstrably false and instead comes out of bitterness towards his client makes it worse.
My empathy was not patronising. Instead, your comment is churlish.

Mr Smith,
I regret my more considered reply has been lost due to an apparently incorrect anti spam code. My words have obviously struck a chord as evidenced by your typos in your opening sentence. I apologise for my sarcasm, but stand by the essence of my argument.
I accept unreservedly that defence lawyers represent innocent people from time to time and believe that this must be their most satisfying work but unless some dreadful change has occurred in New Zealand without my noticing, I believe that the vast majority of people charged are in fact guilty, leading to my conclusion that in most cases, either a defence lawyer loses, or helps a guilty person to escape the consequences of their actions.
The Sila case is obviously one you are very familiar with. It was reported he was found guilty of murder, and later reported that the Supreme court dismissed his appeal. Your comments imply that the crown didn't charge him with murder but recklessness. I simply cannot reconcile the difference between that implication and the facts as found by the court and the Supreme court that he was guilty of two murders (among other things).
I believe at the heart of Harry Young's comments is this apparent "spin" which the guilty party leaps on as vindication of their own actions and which helps them to avoid facing the reality that they did wrong.
I believe that perhaps an inquisitorial system may be better at putting truth and facts as paramount rather than giving benefit to skill and tactics and treating truth as something that will hopefully, but not necessarily fall out of the mix, but I acknowlege that any system is as good as the people that make it work, and for the most part the NZ Justice system has good people working within it and has shown more flexibility and humanity than for example the American justice system.
My own occupation involves vehicle accident rescue which is why the idea of a young man deliberately driving at and striking 28 people and leaving two of them dead also strikes a chord.
I suspect we would agree on more than we would disagree on, but I believe at the heart of it, the sentiments expressed by Harry Young, however imperfectly, contain an essence that our Justice system can and must take on board if they are to be a truly fair and effective system.
Thank you again for taking the time to reply, and thanks to Stephen for supplying the medium for us to comment.
Jim Maclean

Jim,
You can commit murder recklessly. It means that the person did not intend the death of the deceased, but that they took a course of action that they knew could result in death (i.e. driving a car quickly in a crowded area) and did it anyway. I don't believe that Sila was alleged to have driven directly at the party goers standing in the middle of the road with the intention of killing them. Instead, the manner of his attempt to flee the area was highly reckless.
Hence he was able to be convicted of murder without the Crown needing to prove that he intended the deaths of the girls.
I am not overly familiar with the case, other than press reports and some inside information, but I do know the lawyer who lead the defence. He is, in my opinion, one of NZ's best defence lawyers and is a man with the highest ethical standards. That is why I have no doubt that the things Harry Young said about him are untrue.

Oh, and typos are just typos, not evidence of any strong feeling! They just show a lack of proofreading…