Criminal practice

with Robert Lithgow


This is my last column in the NZLJ after seven years and it starts as it began, that is with bewildered fury at the appellate Courts’ failure to protect accused people and those sentenced to ever-increasing jail terms.

My first Court of Appeal case was in 1987: R Waaka [1987] 1 NZLR 754. Waaka stuck up for his younger brother when he was being hassled by police in Cuba Street, Wellington. He believed police were not allowed to do what they were doing, and he was probably right. The case, traversing a range of Commonwealth jurisprudence to that date, held that the question of whether an officer was or was not acting in the execution of duty was an ingredient of the offence of assault on police in execution of their duty. Absurdly and without the glimmer of rational analysis, the Court substituted common assault. Nearly 20 years later, and from time to time in between, they pull the same stunt. Uphold the legal challenge but provide no help to the client at all.

I have come to see, with unfamiliar clarity, a proposition that has haunted me over that entire time. It is this: the New Zealand appellate Courts do not perform the function that the public think they perform, and which Parliament and the Courts themselves pretend they perform. That is,.they do not, and will not, perform a quality control examination of the trial process and therefore do not, and bluntly refuse to, provide a “fail-safe” mechanism for the criminal process. A “fail-safe” process is one that accepts human and systemic and institutional frailty as a fact of life, and provides processes by which such failures fall into remedial hands.

This is the standard that the Courts impose on all other sectors of society but fail to even attempt themselves. If the decisions of the Court of Appeal were the decisions of say, the Health and Disability Commissioner or The Ombudsman, they would be ridiculed on radio and television- That is

because the people on the receiving end are real people who react on their own behalf when issues are avoided and facts distorted. With the Courts, the clients are in jail, and the lawyers are not permitted to comment in that direct way and must go back and face the Courts the following day. And so we lawyers are cowards by our own vain ambitions, and charmingly called “hopes of preferment”. We kid ourselves if we think the robust criticism and self-examination that is exhorted from other professions is part of the legal world.

In order to accept my thesis you first have to consider whether you believe the criminal trial process, with trial by a jury of amateur Judges who are told the rules of the game mainly at the end of play, is a fundamentally rough and ready one. Second, you need to believe that putting a man (overwhelmingly a man) in a cage, for years, is a serious matter. From there, you can probably accept that an independent-minded quality control system might be a good idea. You may also see grave risks in having a significant number of appellate Judges who have never appeared for a person at risk of imprisonment — or worse, who even boast at never having had a personal client.

I was sent, out of the blue, an article being a 1972 speech by Lord Goodman to the Law Society of Scotland. His basic theme was that in his life at the Bar the substantive changes in the practice of the law were nil. Zero, And so it is with appeals.

In 1998 1 complained to the President of the Court of Appeal, by letter, for the first and only time, that the processes employed in the run up to the appeal itself were unfair. The President refused to see me and I was required to attend on the managing Judge of the particular case, in his Chambers. It was an unhappy event reminiscent of school and being told off. I asked Henry J what he expected counsel to do if, when they sought to

discuss these issues, they were treated in this way. He said “you take such action as you see fit”. I was still seething about that when Bernard Robertson rang. Would I like to write a column for the Law Journal on criminal law developments? I thought that I would,

       Over that period the festering grievances of ex parte dismissal of appeals wound its way to the Privy Council. The decision of R v Taito [2005] 2 NZLR 815 found the whole process illegal and discriminatory against the poor. Most people would see that as a humiliation or at least a call for close examination of the internal culture of the Court of Appeal and its processes. More or less the opposite happened. The Court itself got to re-jig its own base and rules according to its own lights. When the Supreme Court was created, it was a clone of the previous arrangement and had the same gene pool. ­I now give a case example with a

profoundly disturbing underlying ethos. A Mr Palmer appeared before the Auckland High Court in 1987. His lawyer had appeared for him in the District Court and guilty pleas had been entered to a number of fraud-related charges. They were transmitted to the High Court for sentence, and, other charges, with varying degrees of conformity to the Summary Proceedings Act, were also sent along. On the morning of sentencing Palmer got beaten up in prison and was concussed. Then his lawyer departed and he had to act for himself. He sought to withdraw the pleas. The High Court Judge, at the Crown’s suggestion, considered all of this a desperate device to play for time, although contemporary documents cast some doubt on that. The pleas were not reversed. He was convicted and sentenced to a record sentence for the then emergent offence of GST fraud. His case was dismissed ex parte by the Court of Appeal. He got another go because of Taito.

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