The right to a fair trial in New Zealand is being undermined in a variety of ways, with the public's right to a fair and properly funded criminal justice system also being compromised, former High Court and Chief District Court Judge Sir Ron Young has said.
Delivering the 25th annual Harkness Henry Lecture at Waikato University on 7 September, Sir Ron said this vulnerability arises through a variety of sources.
These were reduced legal aid for defence lawyers, reduced availability of money for expert witnesses, reduced Crown Solicitor and Crown Law funding, the effect of Sensible Sentencing Trust lobbying and some legislative changes, the contribution of the media to public understanding or misunderstanding of judicial decisions, and the Police diversion/warning system and community justice system in Christchurch.
Sir Ron said he believed that the cost cutting inherent in the 2011 legal aid reforms may have put a fair trial in jeopardy. While difficult to objectively assess this jeopardy, he relied on his own knowledge and experience and anecdotal information.
A massive reduction in legal aid payments over five years to 2014/15 was achieved mostly by reducing legal aid payments to lawyers through a fixed fee regime and by the widening of the public defender service to cover up to 50% of cases in some areas.
Even for a simple Judge alone hearing the fixed fee will often be "hopelessly inadequate", Sir Ron said.
"At $96 per hour no lawyer is going to get rich. Assuming 1500 chargeable hours per annum and a 50% overhead the legal aid lawyer might be lucky to earn $70,000 per annum."
The question became which lawyers would act at these rates? Would the lawyers be prepared to do all that is necessary to properly conduct a trial particularly if that meant, over a year, hundreds of hours of unpaid work?
"The answer of course is the least experienced and, let's be brutally honest, the least competent lawyers all to often will take on this lower end work."
Sir Ron said the problem continued on through the more complex and serious criminal cases. The result was sometimes inexperienced and sometimes inadequate lawyers undertaking criminal cases well above their level of competence.
"Typically Judges will do what they can to level the trial playing field but it's not their job. Too much judicial intervention carries all sorts of hidden dangers for the Judges and for a fair trial."
While acknowledging the many competent talented criminal lawyers who took on the work at a fraction of the rates paid for commercial work, Sir Ron said recent analysis had confirmed that significant numbers of lawyers were pulling out of legal aid work. These were often the experienced lawyers that the system badly needs.
Defence access to forensic evidence
Two problems had arisen here which were primarily driven by reduced funding, Sir Ron said. The first was regular problems for defence lawyers in getting approval from legal aid for forensic testing. The second was reduced availability of experts.
"New Zealand has a very small pool of expert witnesses in many fields. Often overseas experts are the only available defence witnesses able to comment on the prosecution expert. Finding and funding such experts can become a major problem and an impediment to a fair trial," he said.
Sir Ron said there was no doubt that since the introduction of bulk funding and the new Solicitor-General guidelines, the Crown has been far more willing to discuss and agree to lesser charges with a guilty plea.
This was not necessarily a bad thing, but plea discussion should not be driven by cost, the charge pleaded to should reflect the true criminality of the act, and the reasons for the acceptance of a plea to a lesser charge should always be made public.
Failing to give reasons undermined confidence in the prosecution of crime and in the judiciary: "For some it looks like all those on the inside have got together to avoid the inconvenience of a trial."
Police diversion/warning scheme
"Today, diversion is really out of favour ... primarily I believe because of the cost of the diversion scheme. It costs real money to run what is really a form of alternative justice - with a structure of diversion officers and the supervision of community work and other punishment," Sir Ron said.
He said the diversion system had mostly been replaced by the police warning system, which had resulted in significantly reduced police costs compared with diversion cases. However the police warning system could be highly idiosyncratic ("one constable's warning is another's arrest and prosecuction").
In this situation the seeds of corruption were present, Sir Ron said.
"I do not intend to suggest there has been corruption. But this is not an open public system like the Courts. And in that it invites speculation."
A fair trial
Sir Ron said each of the issues he had identified were, at their essence, about a fair trial - "whether from the perspective of the lawyers involved, prosecution or defence, the trial process itself, and the public policy issues arising from poorly thought through legislation".
"A fair trial is a fragile thing. It ultimately relies upon the faith ordinary citizens have in the trial process. Are the laws a citizen is tried under fair? Is there approximate equality of arms between the prosecution and the defence? Is the Judge fair? Are the jury open minded? Are there any financial incentives that might skew the obligations of the prosecution or defence? Do narrow interest groups dominate the discourse on what is justice? Is the information the public receive about the courts accurate and balanced?"
In each of these areas he had identified worrying trends, Sir Ron said. Many seemed to be driven by the political law and order debate too often marked by political party policies which tried and out did other political parties on the "get tough on crime" mantra.
"What many of these policies fail to recognise is that they chip away at the whole criminal justice system. Laws which protect ordinary citizen's rights are condemned as being soft on crime."