Justice Matters

New Zealand Centre for Political Research

The New Zealand Centre for Political Research is a web-based think tank that takes a research-based approach to public policy matters and encourages the free and open debate of political issues.

Like other areas of public policy the Justice System is constantly under review. Amongst the many areas that need attention are, firstly, concerns over the large number of convicted offenders, who in spite of being punished by the system continue to commit crime; and secondly, the growing anxiety over innocent people being convicted and sentenced for crimes they did not commit – and guilty people walking free.

Last week, Professor Warren Brookbanks of the Auckland University Law School addressed the first issue in the inaugural Greg King Memorial Lecture. Greg King, one of the country’s best-known criminal lawyers, tragically died at the age of 43 in November 2012, and the event was held in his honour.

According to the organiser David Garrett, the topic “Three strikes – five years on” was chosen because Greg King, like Professor Brookbanks, was opposed to the three strikes legislation when it was enacted, and would have been interested in hearing how it was working.

The Three Strikes Law was introduced by the Sentencing and Parole Reform Act 2010, which amended the Sentencing Act 2002 and the Parole Act 2002. It was designed to reduce recidivism by offenders convicted of major crimes, by warning them of progressively harsher penalties if they continued to offend.

The 40 qualifying offences include all major violent and sexual offences attracting a maximum penalty of 7 years or more, including murder, manslaughter, rape, robbery, aggravated robbery, sexual violation, indecent assault, wounding with intent, abduction, and kidnapping.

Strike one, which involves a warning, occurs when an offender aged 18 or over is convicted of a ‘qualifying offence’. Strike two occurs when a warned offender is again convicted of a qualifying offence, and it requires the offender to serve the whole of the sentence imposed by the judge without parole. Strike three occurs if a twice-warned offender is again convicted of a qualifying offence. At that stage they would be required to serve the maximum term of imprisonment prescribed for the offence without parole.

A third strike sentence varies according to the offence: 7 years imprisonment for indecent assault, 10 years for robbery, 14 years for kidnapping, 20 years for rape, life imprisonment for manslaughter.

Professor Brookbanks explained that there were concerns at the time the legislation was passed that it was not only unjust, in that it departed from the core principle of ‘proportionality’ and was likely to punish many relatively minor offenders more harshly than they deserved, but it would lead to a significant increase in the prison population.

In terms of the success or otherwise of the new law, he concluded that the jury was still out, as none of the empirical data he reviewed indicated that it was having a powerful deterrent effect on criminal offending.

However, Wellington barrister Graeme Edgeler has used the Official Information Act to also examine the success of the new law, and he has found that in the first five years of its operation, there were 5,422 first strike convictions, and 81 second strike convictions, compared to 6,809 convictions for first strike offences in the five years before the law was introduced, and 256 convictions for what would have been second strike offences.

In other words, he found evidence that “strike recidivism appears to be falling much faster than strike offending”. These results indicate that the new law is indeed having a deterrent effect on criminal offending.

In his speech, Professor Brookbanks explained that he last met Greg King at a conference in Auckland early in 2012, dealing with Drug and Alcohol Courts. “Greg’s forensic curiosity had drawn him to Auckland to learn more about this new wave of court-based problem-solving, which has now become firmly established in New Zealand’s criminal justice system”.

Shortly after that meeting, Greg spent two months in the United States on an Eisenhower Fellowship, observing the American prison system and their strategies for reducing the prison population. While there, he produced a paper, A new kind of Court, in which he outlined a proposal for a new type of problem-solving court to help reduce the number of New Zealanders being sent to prison.

In light of developments within the justice system over the last few years, which have seen increasing numbers of specialist courts being established (such as Alcohol and Other Drug Treatment Courts, Family Violence Courts, Homeless Courts, Marae-based Courts, and Community Justice Courts),  Greg’s idea of a single problem solving court has merit.

He explained, “Problem-solving courts in the USA are becoming big business. There are now almost 2700 drug courts nationwide, as well as domestic violence courts, youth delinquency courts, mental health courts, re-entry courts and community justice centers. There are even some specialist veterans’ courts – dealing with the special needs of veterans of the Iraq and Afganistan wars.

“In my view NZ should not ‘overly specialise’ in this way. I believe a single Management Court could adequately and more effectively and efficiently address the totality of an offender’s problems, whatever they may be. Recognising that many offenders suffer from more than one type of criminality problem (many drug addicts also have mental health difficulties and so on) I believe a wider more holistic focus is required in NZ. After all, the court does not provide the specialist professional treatment – it simply directs what treatment is required and monitors compliance. I believe that a Management Court could effectively manage offenders with a wide range of criminality problems…”

He believed the Management Court would compliment our existing criminal justice system, as a “real and viable alternative to imprisonment in a large number of cases”.

He proposed a multi-agency collaborative approach, whereby the Management Court would not only focus on punishment, but also on addressing the offender’s criminality factors and wider social problems that had led to crime such as drug and alcohol addictions, mental health problems, unemployment, educational underachievement, poor housing, as well as family and cultural issues.

He recognised the inability of our court system to oversee compliance with the conditions of a sentence, and was impressed with the difference being made by Management Courts in the US, where offenders were proactively managed towards rehabilitation.

He did not see Management Courts as being suitable for all offenders – only those who needed it, were not facing a prison sentence, and were not a threat to public safety.

The way he saw the system working was that after being found guilty in a criminal court, suitable offenders would be referred to a Management Court. There, a programme would be developed to target their specific criminality needs, including treatment for mental health issues, drug and alcohol abuse, anger management, domestic violence, and any other criminality factors. In addition there would be collaboration with state agencies such as the Ministries of Health, Social Welfare, Education, Housing, Labour, and ACC, as well as private organisations like the Salvation Army, Iwi groups, sporting clubs, community trusts and other support groups.

The Management Court would have wide powers to impose conditions on the offender, to enhance public safety and reduce re-offending, such as curfews, GPS tracking, random drug and alcohol testing, prohibition from going to certain places or contacting certain people, attending counselling and treatment, taking medication, reporting for community work, paying reparation, prohibition from driving, and so on.

In other words, the Management Court would address the ‘issues’ that had lead offenders into committing crime and would help them to find a constructive way forward. Over time this single Management Court model could replace the plethora of separate specialist courts that are now appearing, as a more holistic way of dealing with the complex needs of many offenders.

Without a doubt, Greg King had a passion for justice and he fought vigorously for those who had been the victims of unfair dealings. Many of the murder trials he appeared in were of huge public interest. Among the high profile cases were the 2000 appeal of Peter Ellis, who had spent seven years in prison after being convicted of abusing children at a Christchurch crèche, and an unsuccessful attempt in 2003 to seek leave from the Privy Council to appeal the convictions of Scott Watson for the killing Ben Smart and Olivia Hope. Just months before his death, he successfully defended Ewen Macdonald on charges of murdering his brother-in-law Scott Guy.

Such cases raise the second issue of major public concern with the justice system – how to better ensure that innocent people charged with serious crimes are not found guilty, nor guilty people found innocent.

I asked this week’s NZCPR Guest Commentator Judge Anthony Willy, a retired District Court Judge and former Canterbury University Law Lecturer this question, and his response, “Trial by Jury in New Zealand”, makes fascinating reading:

“In recent times there have been a number of high profile criminal cases in which the jury findings of guilt beyond reasonable doubt, or acquittal have given rise to public disquiet. The list is disturbingly long and includes: The Crew murders, the killing of Ben Smart and Olivia Hope, the Scott Guy killing, the Ellis trial for paedophilia where the jury was allowed to hear evidence which was bizarre by any standards… to name but a few.

“The number and variety of these cases gives rise to a legitimate question of whether or not the jury system is any longer capable of arriving at just and rational outcomes in cases involving difficult questions of fact, married as it often is to complex directions from the judge on the applicable law.

“The paradox is that randomly chosen juries are no doubt capable of deciding cases involving questions which are within their everyday experience and competence, but as the statistics indicate the overwhelming number of those cases are dealt with by judges sitting alone. It is the cases involving difficult questions of scientific evidence, DNA, medical evidence, ballistics and the like, and the complex questions of law to which such cases give rise that occupy juries in the more serious cases. These difficulties are exacerbated by the increasing length of time taken to hear such cases. Randomly chosen Jurors who often have no particular expertise in deciding anything complex are expected to sit and listen to evidence for days, sometimes weeks and then retire to consider their verdict with only their recollection of what a witness may have said days or weeks before.”

In his paper, Judge Willy explains that given the increasing complexity of cases, and the fact that trial by jury is often used as a last resort by the guilty, phasing juries out may be the most sensible way forward. However, he does suggest other reforms such as enabling a Judge to decide if the evidence to be called in a given case is likely to be too complex for a randomly chosen jury, whether specialist juries could be drawn from a roll of suitably qualified persons, or whether assessors could be called to sit alongside Judges to help the Court better understand expert evidence.

Judge Willy concludes, “But probably the most efficient outcome is to simply do away with juries and leave it to Judges to decide all questions of fact and law which arise in court litigation. At least the Judge is likely to be experienced in the business of deciding and will be subject to a transparent appeal if he or she gets it wrong. Less hopeless cases would be run once counsel understands they will likely be met by a raised judicial eyebrow early on in the proceedings. Neither is the Judge likely to be swayed by emotive pleas which fly in the face of the evidence. The net result would be a freeing up of a massive amount of court time and the cost saving that entails, a saving of inconvenience and financial loss to the jurors selected, and the public purse by way of legal aid. Most important the public disquiet which surrounds the sample of cases referred to earlier in this article would be laid to rest.”

THIS WEEK’S POLL ASKS:

Do you agree with Greg King that a single Management Court should replace separate specialist courts, to proactively manage suitable offenders towards rehabilitation?

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