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CRIMINAL PRACTICE Criminal practice with Robert Lithgow THE LAST HURRAH 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 v 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. |