A disturbing story from this morning's Herald: a man in Lower Hutt was kidnapped, blackmailed, and assaulted by members of the Mongrel Mob - but refused to testify against his attackers at trial because he feared retribution. So the judge jailed him. So now we have courts which punish victims and which attempt to suborn testimony by threats of jail. And the difference between the judge and his less fashionably dressed defendants is...?
A symptom of a system that has, historically, viewed the primary victim of crime as being the Crown/State maybe, and the fact that we have a justice system that is unable to think outside the square when it comes to dealing with the root causes of injustice, whatever diverse form it takes. "Just lock em up, that'll fix it."
ReplyDeleteThere's more on this here. What's even more surprising is that the judge has ordered a retrial. I'd expect that any competant defence laywer will have a field day asking whether the witness has been threatened over their testimony, and whether what they're saying on the stand is influenced by the fear of further jail time if they don't say what the police or judge wants them to...
ReplyDeleteThe law is fundimentally the biggest bully on the block. To think otherwise is to kid yourself.
ReplyDeleteForce is only hidden by implied threats (eg "pay tax or we will jail you").
I cannot imagine a competent defence lawyer would go there. It runs the very obvious risk of of the victim/witness saying "yes your client and his friends did threaten me"
ReplyDeleteGraeme: OTOH, if that's already come out, then there's no harm done by getting in a few shots at the judge and implying that its all forced testimony as well.
ReplyDeleteSticking witnesses in a cell until they talk fundamentally undermines the value of their testimony; there's at least some chance they'll say whatever you want to hear to escape. We don't let the police do this, and we certainly shouldn't let judges do it.
It has already come out, but by the time the retrial occurs I suspect no-one will remember. Certainly the judge will try to ensure that the prosecution don't bring this up.
ReplyDeleteI'm interested that you seem to oppose a new trial being held - should the friends of accuseds be able to frighten victims to get acquittals?
Basically all testimony is forced (given as a result of a summons); also I really do think that a victim giving evidence along the lines of "I really don't want to be here, I'm being forced to give evidence even though I'm scared for my wellbeing, but those two guys there beat me up etc." greatly increases the cogency of the evidence, rather than diminishes it. A defence lawyer seeking to make advantage of that shouldn't be practising.
OK the legal shennanigans are interesting...but what SHOULD have the judge done? I am genuinely curious.
ReplyDeleteNice post. Worth blogging again, so that's what I've done.
ReplyDeleteThe terrorists have already won.
Graeme: I'd ordinarily be all for a new trial being held. That's what you do when someone threatens a witness: abort the trial if and order a new one if you have to, protect the person in question, and prosecute those responsible. And that's exactly what should have been done in this case. What shouldn't have been done is sticking the poor guy in jail. Quite apart from all the other issues it raises (freedom of speech, future cooperation with police, the gross injustice of the state punishing someone who has already been victimised), it just fundamentally undermines the value of their testimony. If the police did this - jailed someone for five days until they agreed to talk - it would instantly raise the prospect that they were saying whatever they thought their jailers wanted to hear to avoid further punishment. But exactly the same argument applies to the courts. The judge may be able to stop people questioning his Holy Writ, and the defence lawyers may not want to go near it for fear that it will blow up in their faces, but that doesn't change the underlying situation one bit. Any testimony given at retrial will be effectively forced, and forced testimony is poison which has no place in our justice system.
ReplyDelete"If the police did this - jailed someone for five days until they agreed to talk - it would instantly raise the prospect that they were saying whatever they thought their jailers wanted to hear to avoid further punishment. But exactly the same argument applies to the courts."
ReplyDeleteNo. It depends on what the person is saying. If the police held someone for days, and tortured them to get them to confess to a crime, and after all that the person still maintained his or her innocence then you would be more inclined to believe them.
Similarly in this situation, the victim is obviously more scared of the mongrel mob than the police. If he still speaks out in court contrary to the interests of the mob after such threats his evidence becomes stronger.
Graeme No. It depends on what the person is saying. If the police held someone for days, and tortured them to get them to confess to a crime, and after all that the person still maintained his or her innocence then you would be more inclined to believe them.
ReplyDeleteYou seem to be saying that if someone is tortured and doesn't confess it strengthens their case for innocence? This is the same thing as saying that if someone was tortured and confessed it weakens their case for innocence.
Clearly, this is contrary to a fair and sensible justice system.
Apart from moral issues, the reason that evidence gathered via torture is useless is that whether or not someone confesses is related to how proficient at causing pain the torturer is, not to whether or not the person is truly guilty.
A confession obtained as the result of torture should never be allowed as evidence against someone.
ReplyDeleteHowever, I think if someone were tortured by (say) police overseas, and maintained their innocence throughout that torture, and was then charged the could point out that torture and the fact that they maintained their innocence through it to a judge or jury and that fact-finder could reasonably say "this defendant was tortured and even then maintained their innocence - this suggests they are innocent."
I agree that the converse is not true. That the fact that a defendant cracked under torture and admitted guilt in no way suggests guilt.
This is all foolishness
ReplyDeleteThere is no need for us to put any weighting on any person admitting guilt or innocence.
Of course Juries will care about that sort of thing but what really matters is as with any witness
"DID HE KNOW SOMETHING HE COULD NOT OTHERWISE HAVE KNOWN"
OR the more complex
"is his story both complex and consistant (ie consistant in a situation where consistancy would be hard unless it was true)"
If you get a confession from someone the objective should be to verify that he knows by getting him to reconfirm something that you know but he would only know if he was almost certainly guilty.
Even if there is no torture or anything like that there are many reasons why someone might admit guilt so their confession is not particularly certain proof - but a confession that includes verifiable information about the event or DNA evidence etc is good proof.