Opinion with a recommendation

JUSTICE?

What a relief it was to see the bold print editorial in The Herald (Sunday June 7,2009)  "Bain verdict the right one" and within it....
     The Privy Council's verdict that
     'There may have been a substantial miscarriage of justice
      because exculpatory evidence was withheld from the first jury',

... as pointing a finger of accusation at the heart of our justice system.

Do your readers realise how easy it is for a judge to influence, nay almost to determine, the outcome of a trial by not allowing particular evidence to be entered?

As a lay person, one does not get to hear about what evidence has been excluded, nor how often such exclusions happen. My impression from very limited data suggests that exclusions are frequent and always favour the police case, as they did in the earlier Bain trials.

Many people wondered about David Bain's motive; by excluding the evidence about his father, the judge fed millions of dollars into the pockets of  those who work for the justice industry.

The adversarial system of justice which we inherited from Britain has many flaws:

1) The prosecution's deep pockets heavily disadvantage the defendant.
   (Few accused can afford to engage overseas experts and fly them, all  expenses paid to New Zealand, or even find locally witnesses who might present a different view from the prosecution's witnesses.)

2) The right to be 'assumed innocent until proven guilty' is flouted openly and without complaint, under the very noses of the police. It is condoned by the TV news medium, who do not balance the pictures of people harassing suspects after arrest by pointing out that it is an infringement of that person's rights.

3) It is in the justice industry's interest to drag out proceedings rather than cutting to the crucial definitive evidence

4) It is in the detectives' interest to get a guilty verdict, to get it quickly and to be seen never to err. Thanks to DNA testing is known that around 2.3% of those convicted of rape are innocent -- for crimes other than rape it is probably higher.

5) Detectives may "know" and be able to prove scientifically that a person committed a crime, but be unable to bring that person to court for legalistic reasons. This is bad for the detectives because it encourages them to over generalise their ability to "know", and it is bad for society because it leaves active criminals in our midst.

The above five points occurred readily to my untrained mind, but surely the worst aspect of the adversarial system is its lack of any interest in "truth", its failure to admit the unreliability of types of evidence which have been shown to be unreliable -- eye witness statements,  recalled memories, latent finger prints treated as if they were inked prints, etc.

Barristers freely admit that if the "other side" puts up an expert witness, "our side" will find one who will provide an opposing opinion. At the very least 'experts' should explain and if possible demonstrate the scientific basis of their opinion.

That being so the Government should ask our universities to draw up rules for a truth oriented system of justice to replace the obviously seriously flawed oppositional system.

--- John Henderson
 

 NB:  These matters may be on the thoughts of others .  Do share your thoughts with us – with or without your name being published (but your identity must known to Editor).

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Glowing press reports  at odds with letters to  Editor