Criticism of judge-only trial in Urewera case

The Court of Appeal decision to uphold a judge-only trial in the “Urewera 18” case was slammed by Fran O’Sullivan in today’s Weekend Herald column.

She rightly can’t see why the defendants should not “have their case heard by a jury of their peers.”

The Crimes Act was amended in 2008 to allow a trial to be “judge-only” in certain cases that were “likely to be long and complex”. This was envisaged to apply mainly to complex fraud cases, not long criminal cases like murder, which the public rightly expects to have a jury. It doesn’t appear that Urewera cases, mainly concerned with arms charges, would test a jury’s common sense more than, say, the Bain case.

We can easily see the downside of this case being “judge-only”. Already there is criticism of racial insensitivity in the way Police conducted the October 2007 raids in Tuhoe country, leading to the arrest of those now on trial. Do we really want to risk the judiciary being subject to a similar insensitivity charges, when the trial could be heard by 12 people from all walks of life and probably different cultures?

Fran O’Sullivan notes in her column that “Even Greens MP Keith Locke – who has been the subject of Security Intelligence Service surveillance – has had little (if anything) to say on the court’s decision.” She is right to hurry me up, but I have been slow off the mark for two reasons. It is good for MPs to protect the independence of the courts, and be cautious when commenting on a judgement. And this case has been particularly fraught, because the High Court Judge, Helen Winkelmann, first off suppressed the fact she had even made a judgement, and then suppressed all details of it – other than she wouldn’t allow a jury trial. I have yet to see the Court of Appeal’s reasons for upholding Justice Winkelmann’s decision.

15 thoughts on “Criticism of judge-only trial in Urewera case

  1. If one is to look at Vince Seamer’s website kiwifirst, one can readily assume the amount of corruption of New Zealand Judiciary along with its breach of rules governing the code of conduct for jusges.

  2. @Drakula:

    the case so far seems to be constructed from two assumptions
    – 1) that the Anti-terror unit needs to get some convictions in order to justify it’s existance after the botch up they made of the Ahmed Zaoui case
    and 2) that the exercise of indigenous rights in the USA is considered an act against the state, thus treasonable, thus terrorism, so if they want a soft target, go looking for anyone who seems serious about indigenous rights in Aotearoa.

    Problem with 2) is that US law does not equal NZ law, and they have tried to enact a set of charges that don’t have any relevance to reality here. Hence TSA charges dropped in November 2007, smartly, by the Solicitor-General.

    The long hunch about the delays so far (mostly instigated by the prosecution) are that current evidence does not support the charges as laid, and they are stalling to try to get evidence, (or law changes) that will allow their very expensive justification exercise to pay off.

    I reckon Assistant Police Commissioner Jon White (head of Anti-Terrorism Unit)should be sent back where he came from, pronto, obviously has far too much bias to be in charge of this kind of unit.

  3. Problem turnip is that it is really too late for us to adopt a Constitution. The best and longest lasting Constitutions have been adopted either upon independence, or after a significant revolution – it is usually at those two times where everyone is in agreement. If we tried to get a Constitution, it would just end up getting bogged down in political argument and it would have virtually no teeth.

  4. The 2008 Crimes Act is messing with english common law that goes back 100’s of years. There are many Judges who would love to remove the jury entirely from the court room.

    Judges can’t stand Jury Nullification its their courtroom after all the Jury is supposed to rubber stamp their decision. The peoples court of China is probably the model most NZ judges would support right??

    Btw if you want to avoid Jury duty mention the word Nullification works like a charm here in the US probably the same in NZ as well.

    Where is Keith’s members bill repealling the 2008 Crimes act???

  5. Sorry Byran NZ citizens have no Bill of Rights, NZ has no constitution and as such the NZ goverment via parlimentary supremecy can do anything it likes.

    I’d love to see a Youth parliment one year demonstrate the power of parlimentary supremecy by legally creating a defacto one party state. It would make headlines and demonstrate to the NZ sheeple how un-free they really are.

  6. Bryan; what was the governments original gripe? Did they really think that the Uruwera tribe (Tuhoe?) were going to claim independence?

  7. As one of those raided in the police-terror raids my sense at the time was that the clock had been rolled back to the days of the court of the Star Chamber many hundreds of years ago. Then one could be accused of crimes without knowing what the accusations were, who the accusers were and without being able to hear the evidence presented or have a right of cross examination. We were subject to search on the basis of an affidevit we had no right to view, with a warrant supplied signed illegibly by an unknown court official. We were invaded by about 15 police accompanied by dogs, confined to one room whilst they did whatever they liked elsewhere in the building, held without warrant for about 5 hours, had our computers confiscated and backup removed for nine months.
    These developments (trial by judge) clearly indicate that government feels it cannot afford to have a jury of sensible citizens decide this case because they have good reason to believe that the probability is that the case will be justifiably thrown out because the behaviour of the state is probably far more culpable than that of the defendants. It certainly has been far more damaging of the rights of citizens than any threat by a bunch of rural, legitimately aggrieved poor who probably have nothing to answer for.

  8. Undermines NZ’s credibility as a legally profound, properly constituted entity – no – it gives the lie to same…

  9. I’m astounded that the same judge can rule on the process, rule on admissability of evidence, suppress their decisions, deny the right to a jury, and, in all likelihood, still end up as the judge for the ensuing trial.

    It would seem to me that a judge called upon to make significant decisions about process and evidence will be unable to administer that process, and look upon that evidence, with an open mind.

  10. This case could set a very frightening precedent concerning the erosion of peoples right to a fair trial. We can assume that justice will not be served because of the injustice that has occurred already.

    The security of surveillance techniques can be retained with an open process. The intelligence of a jury is adequate for firearms charges. The trial should be undertaken in the same area that the crimes occurred. The law will cause more resentment in this regard than they think such actions and charges can deter.

  11. Crimes Act 1961 No 43 (as at 01 June 2010), Public Act
    Part 12 Procedure

    361D Judge may order trial without jury in certain cases that are likely to be long and complex

    (1) This section applies only to a person (the accused person) who is committed for trial for an offence that is not—
    (a) an offence for which the maximum penalty is imprisonment for life or imprisonment for 14 years or more; or
    (b) an offence of attempting or conspiring to commit, or of being a party to the commission of, or of being an accessory after the fact to, an offence referred to in paragraph (a).

    (2) The Judge may, on a written application for the purpose made by the prosecutor to the Judge and served on the accused person before the accused person is given in charge to the jury, order that the accused person be tried for the offence before the Judge without a jury.

    (3) However, the Judge may make an order under subsection (2) only if the prosecution and the accused person have been given an opportunity to be heard in relation to the application, and following such hearing, the Judge is satisfied—
    (a) that all reasonable procedural orders (if any), and all other reasonable arrangements (if any), to facilitate the shortening of the trial, have been made, but the duration of the trial still seems likely to exceed 20 days; and
    (b) that, in the circumstances of the case, the accused person’s right to trial by jury is outweighed by the likelihood that potential jurors will not be able to perform their duties effectively.

    (4) In considering, for the purposes of subsection (3)(b), the circumstances of the case, the Judge must take into account the following matters:
    (a) the number and nature of the offences with which the accused person is charged:
    (b) the nature of the issues likely to be involved:
    (c) the volume of evidence likely to be presented:
    (d) the imposition on potential jurors of sitting for the likely duration of the trial:
    (e) any other matters the Judge considers relevant.

    (5) If the accused person is one of 2 or more persons to be tried together, all of them must be tried before a Judge with a jury unless an order under subsection (2) for all of them to be tried by a Judge without a jury is applied for and made.

    (6) This section does not limit section 361B or 361C or 361E.
    Section 361D: inserted, on 25 December 2008, by section 4(1) of the Crimes Amendment Act (No 2) 2008 (2008 No 37).

    http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM1782100.html#DLM1782100

    So the “legal” reason there is no jury trial is not apparently defence and security related.

    But one can guess many legal issues (such as the admissability of evidence) will be a factor in the trial – and so will the need to keep sources protected (keep secret the means and methods of evidence gathering secret from the public) – thus suppressing some of the evidence during the trial and afterwards.

    So one wonders how much of the case will be reported in the media?

    And is this to be a prototype for all people investigated under anti-terrorism rules and then prosecuted for offences that are of a lesser nature? Fishing expeditions for reasons of national security and then charges on whatever grounds are then discovered and trials not involving juries – with much of the case suppressed from media coverage?

    As to charges, however unrelated to the methods used to acquire the evidence – this makes the case very much a test run for the legal process in these cases and establishes a precedent where his sort of prosecutory approach is validated. Those on charge are the unwilling subjects of this power play. No wonder control of public information about the case is going to be so carefully managed.

    as to the wider issue, this is a public law court that operates within the consent of the people – therefore should not be an arbitrary act of government/authority unaccountable to the people. This is why there are jury trials – so that the defendant’s peers determine the outcome not the appointee/s of government.

    The Crown servants (the professionals of the law as well as the prosecution) play their part, but again constrained by acting within the consent of the people.

    People who slight the role of juries may as well slight elections and democracy itself.

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