No jury of their peers

Written By: - Date published: 9:23 am, March 30th, 2011 - 54 comments
Categories: crime, human rights, law and "order" - Tags: ,

The police have been heavily criticised for their handling of the 2007 Urewera “terror” raids. Now the legal system is making matters worse:

Urewera raids cases to be heard without jury

The 18 people arrested during the Urewera “terror” raids have been denied a trial by jury. Instead, their cases will be heard by a lone judge.

In December the High Court ruled the case should be heard only by a judge. Despite objections by the defence for the 18 accused, the Court of Appeal yesterday announced it would uphold the High Court ruling.

Why no trial by jury?

Prosecutor Ross Burns said last night the decision was “appropriate”. “I can’t really comment, but the decision is the decision,” he said. “We applied for a judge-alone trial in order to make the whole thing work as smoothly as possible.

Smoother for whom?

Reaction to the original December decision was strong:

Most of the 18 people charged after the Urewera “terror” raids have been denied a jury trial. Fifteen of the group, who are facing firearms charges stemming from police raids in 2007, will be tried before a judge alone when their case goes ahead in August. …

Human rights activists have decried the ruling, saying the high-profile, controversial case should be decided by a jury of peers. …

John Minto, spokesman for the Global Peace and Justice lobby group, said the trial before a judge alone could undermine public confidence in the court’s findings. “I think it is such a high-profile case that the people involved should be judged by their peers. It is quite wrong for it to be heard by a judge alone.

“There is a lot at stake for the Crown in this. A huge amount is invested in this case, not just financially. These are some of the highest-profile charges laid in the last 10 years. The judge will be under enormous pressure to convict people.”

I/S at No Right Turn sums up:

… a jury is the primary signifier of a fair trial in this country. Without one, we can have no confidence in the verdict. And that ought to be deeply concerning, no matter whether you think the accused are innocent or guilty. This is an important issue, and I hope it is appealed to the Supreme Court. The public deserves to know whether the government can get away with this atrocity against justice.

Given the controversy surrounding the original raids, the legal system should be bending over backwards to conduct a process that is above reproach. Instead, they are doing the exact opposite.

All of my posts for March will finish with this note. While life goes on as usual outside Christchurch, let our thoughts be with those who are coping with the aftermath, with the sorrow of so many who were lost, and with the challenges ahead.

54 comments on “No jury of their peers”

  1. Quite simply I have absolutely NO confidence in either the police or the prosecution after watching this case since 2007.

    In 2007 I thought that the police case for laying charges appeared to be bullshit generated by a over-eager police unit desperately searching for something to justify their existence. Everything I have seen since from this case has supported that initial thought.

    The grounds for the judge-only trial decision (that I cannot talk about due to suppression orders) appear to have been made entirely for the convenience of the prosecution. Because the police made such a hash of their investigation that a lot of their evidence is problematic at best (which I cannot talk about due to suppression orders), the prosecution can probably be certain that a jury wouldn’t look kindly on what the prosecution has managed to make admissible.

    Prosecutor Ross Burns said last night the decision was “appropriate”. “I can’t really comment, but the decision is the decision,” he said. “We applied for a judge-alone trial in order to make the whole thing work as smoothly as possible.

    A judge-only trial appears to be beneficial for the prosecution because they pushed a whole pile of extremely vague conspiracy charges in, mostly to cause a large trial rather than a series of smaller ones for actual actions. Not having a jury on that may help the prosecution to be able to get a conviction.

    However it is extremely hard to see how this makes it smoother for the prosecuted. It looks more like an attempt for the police to secure convictions despite their shoddy work.

    Definitely appeal this decision to the supreme court.

    • Oleolebiscuitbarrell 1.1

      It looks more like an attempt for the police to secure convictions despite their shoddy work.

      How? Are you saying that the judiciary is going to be biased against the accused? That’s a pretty serious allegation, on the face of it backed up by absolutely nothing.

      • lprent 1.1.1

        Wrong question, if you’re heading down that route. A judge is trained to ignore anything apart from the actual admissible evidence.

        So why do we have jury trials at all? It is pretty simple. Juries tend to take a more holistic view of if the prosecution case makes sense and they don’t convict when the police and prosecution foul up. They will make new law that isn’t based on a narrow interpretation of a law that has been expolated out of the realm of common sense.

        Judges themselves are aware of this. This is why you’ll find that it is routine for law changes wanting to remove juries are commonly opposed by the judges. I was just reading about yet another example of that trend on one of Simon Powers departing gifts. Yep… here.

        Perhaps you’d like to ask those judges if they think this a serious allegation – since they have made it themselves?

        • Herodotus 1.1.1.1

          As I recall part of the S59 issue was a case in Timaru where a jury found a parent not guilt of a crime , and that was part reason touted for the change in law. Sue and co could not trust our peers!! So how have things changed that now we can trust our peers. Consistency please

        • Oleolebiscuitbarrell 1.1.1.2

          A judge is trained to ignore anything apart from the actual admissible evidence.

          No trier of fact (judge or jury) is able to consider anything other than the admissible evidence.

          [Juries] will make new law that isn’t based on a narrow interpretation of a law that has been expolated out of the realm of common sense.

          The trier of fact does not make law. It establishes what the facts are.

          Judges themselves are aware of this.

          What now? Judges are aware that juries will make new law based on common sense? For the reason explained above, juries do not make law (based on common sense or anything else).

          This is why you’ll find that it is routine for law changes wanting to remove juries are commonly opposed by the judges… Yep… here.

          Umm, only problems are that your link claims that judges commenting in this way is almost “unprecedented” (as opposed to “routine”) and the submissions made by the judges were not in relation to the changes to trial by jury.

  2. Ron 2

    who is the defence on this case?
    Do they have someone strong/good enough?

    • lprent 2.1

      There are about a dozen or so lawyers on defense. Effectively one for each client. There is a well known lead defense lawyer whose name escapes me for the moment.

      The current court date is May 2011. umm.. If they appeal immediately to the supreme court then there may still be time to hit that court date.

      • todd 2.1.1

        How much is this costing the country? All for a sham to try and protect the Police and the initial injustice of the raids. I’m feeling particularly militant about this… Not just because similar cases where people don’t have a license and use guns get a smack on the wrist, but because it is exactly the type of repressive regime that New Zealand has stood against. Such things make us hypocrites!

        • lprent 2.1.1.1

          As you can see, I am not that charitable on this either. I’m prepared to see what the police put up. But so far what I seen of their evidence and case can best be described as pathetic on the conspiracy charges. Ihink that they will ge a few minor weapons charges. But frankly those should have been handled by the district court three years ago.

          • grumpy 2.1.1.1.1

            If they were only “minor weapons charges” they should have been, the question of why they have not is very interesting and, no doubt, will be explained.

            My concern is that I suspect most of the case will be suppressed, lets see how good the media are now.

            • lprent 2.1.1.1.1.1

              It was bumped to the high court by adding some pretty vague conspiracy charges based on surveillance, taps, and CI’s. Of course there are some problems with how that surveillance was obtained and a large part of the courts delay has been over that. I can’t discuss the results of that argument because of suppression orders, but the police were very very naughty in my opinion. Similarly the taps and CI’s are not exactly reliable. A couple of the headlines when the trial actually starts are going to be hilarious.

  3. Deadly_NZ 3

    Unless the fix is in and they want a quick guilty/not guilty no jury deliberations for days with the media crawling all over it. And we all know how impartial the MSM is.

    • grumpy 3.1

      It’s only by the skin of their teeth that they are not facing terrorism charges. Pretty strange sight this, the left supporting a bunch of loonies who run around with guns. And after laying into Palin and the Tea Party too.

      • ZeeBop 3.1.1

        How about the silence from the right, defending the right to bear arms and practice without government interference well away from the public in the back woods?

        Palin would be applauding? NO, I think not, guns owners would be livid.

        • grumpy 3.1.1.1

          No, I think the thought of so called “peaceful protesters” carrying out pseudo military exercises would have the local special forces units out damn quick.

          What were they actually doing anyway – any inventive excuses?

          • lprent 3.1.1.1.1

            Umm I can’t really go into much details because large chunks of the evidence are covered by suppression orders.

            Now I don’t know about you, but it sounded like they were doing much of what I was doing in scouts 35 years ago – war games. Or what I used to do when I was playing paintball – war games. Or using weapons when I used to spend a lot of time on a firing range. Or when I was stalking during hunting. Hell I used to use military techniques when I was tramping. For that matter I have been on management retreats where we did all of those things just without real ammunition.

            None of that stuff is rocket science or confined to the military.

            Much of what I did when I was in the military was very similar to things I did when I wasn’t in the military. You want to lock me up for that? You’d have to lock up damn near every farmer in the country and all of their kids. Care to offer any inventive excuses for what they do?

            • grumpy 3.1.1.1.1.1

              “For that matter I have been on management retreats where we did all of those things just without real ammunition. ”

              So that’s what it was then?? No live ammunition?? Just a bunch of radicals playing boy scouts?

              • lprent

                I think that they probably used a firing range for the live ammunition side of it. But hey, I used to spend weekends pumping lead down a range when I was trying to increase my accuracy.

                There was some self-evident blowhard blustering captured on surveillance where I have heard worse at the Puhio pub. Most of the rest of the actual action you could buy from quite a few ‘adventure’ management companies for a weekend camp in my opinion.

                I gather that the kicker evidence is meant to be from confidential informants. However after having looked at the variation between what Rob Gilchrist used to say to police compared to the actual reality, I suspect that type of evidence is going to be torn apart from the defense.

                • Jenny

                  It wasn’t that long ago that a bunch of plump businessmen had on weekends been secretly running around in the backwoods behind Papakura with the latest automatic weapons, doing military training exercises.

                  When this information came to light, it was immediately glossed over by the MSM the police the judiciary and the authorites as all good clean fun.

                  What made it all acceptable was that money had changed hands. These businessmen had paid for the experience.

                  • Jenny

                    .
                    In the above example of rich (white) businessmen engaged in illicit and secretive military firearms training exercises in the bushes behind Papakura.

                    Why were these businessmen’s links with the military not considered to be improper?

                    Why were no search warrants for phone interceptions or surveillance ever sought by the secret services or the police to keep an eye on them?

                    Why were no efforts made to infiltrate their ranks with agent provocateurs to secretly tape conversations in which they deliberately feed feelings of bravado to get exaggerated descriptions of daring do, recorded on tape, ‘As Evidence’?

                    Why no media firestorm, with wild talk of the war on international terror?

                    No dawn raids by black hooded gunmen dragging them and their children out of their comfy beds in suburbia to hold them kneeling on their lawn or in the street in full view of neighbours with their hands behind their heads and loaded guns trained on them?

                    No efforts by the police to deny them bail and hold them in custody on indefinite detention?

                    No talk of jury free trials?

                    Surely this is a country for rich white folk.

                    • grumpy

                      Wow!! Is this what it all is then – the opposite force to “rich white guys” and the army. Part of the “class struggle”? Sounds more and more like something dodgy to me.

                      I’m amazed that normally relatively sensible contributors to these pages are rushing to minimalise these charges and roundly proclaim the accused innocent.

                      I prefer to wait for the judicial system to have it’s day but you guys are now trying to pre-empt even that.

                      The inference I take from your excuse above is “the establishment have guns and military – so we should too” – sorry if I’ve got you wrong……..

  4. ChrisH 4

    The most obvious precedent for lone-judge trials in this context is the Northern Ireland (Emergency Provisions) Act 1973. The rationale for lone-judge trials on terrorism and firearms charges under the Act, aka the so-called “Diplock Courts,” was that juries would be intimidated and/or biased on ethnic lines. Just thought you’d be interested to know what route NZ seems to be travelling down, as a settler state with a nationalist minority, among whom unemployment is increasingly concentrated. Think about that the next time you go past one of those Loyal Orange Lodges that are dotted all over New Zealand. As a further note, the Diplock Courts were formally abolished in 2007; however, the UK Criminal Justice Act 2003, which also applies in NI, provides for lone-judge trials in serious cases on the grounds of “complex fraud” (S.43) or “jury tampering” (s.44), effectively the same rationale as the Diplock Court. So in effect we must conclude, though the NZ legal system is not exactly the same as in the UK, that the rationale for this would be possible jury intimidation and/or politicisation. At least, that is, in the absence of any other reason given. In short, the Northern Ireland rationale.

    • grumpy 4.1

      The most likely reason for “judge alone” trials is to stop jury intimidation.

      • Colonial Viper 4.1.1

        So? Now they get a lone judge to target, what an improvement.

        Fact of the matter is that the ‘special treatment’ of this case undermines the neutrality and impartiality of our justice system.

        Why not go to a military tribunal like in the US and be done with it.

        • Jim Nald 4.1.1.1

          Erm, don’t even tempt them. Given the record so far from Power, McCully and Brownlee, they might interpret what you say as a recommendation.

          • grumpy 4.1.1.1.1

            Reckon they’re lucky to have a trial at all. In a lot of countries, radical dissidents, military exercises, armed, the local special forces would just have wiped them out – just as well we live in a democracy where the rule of law is supreme – eh??

            • Colonial Viper 4.1.1.1.1.1

              Oh yeah now lets make the case for Guantanmo shall we?

              That they should be grovelling and grateful that we didn’t bomb them back to the stone age?

            • todd 4.1.1.1.1.2

              Grumpy, you’re a fuckwit!

              [lprent: More reasoning is required. As it stands that is pointless abuse. You don’t get warned on those very often before we try educational experiences. ]

              • McFlock

                Dear Grumpy,

                Your assertion that those charged as a result of the “terror raids” are “lucky” to have a trial at all (albeit without the right to a jury trial) simply because worse things happen overseas is nonsensical. The fact is that we live in New Zealand, so decisions on rights and process should be judged relative to New Zealand customs, law and assumptions of what is a “right”. The fact that you put this forward in a discussion concerning what could well be a significant backward step in our history of rights and level of freedom appears to be a shallow attempt to derail the discussion with a simplistic, poorly considered and dare I say it knee-jerk slogan that even Garth McVictim would shy away from (although Lhaws would probably agree with you, which is NOT a mark in your favour).

                Therefore I agree completely with Todd’s assessment of your character.

                • grumpy

                  Thanks for your well reasoned assessment of my character.

                  My point is, that only a few countries would be tolerant of “opposition forces” – and that is what a group of “radicals” could be described as (one mans freedom fighter etc.), running around, armed, in covert military training.

                  Col. Gaddaffi, for example would not be amused and I recollect this going on in a large scale in Afghanistan leading to the annihilation of the camps. Most countries would regard such as an act of aggression towards the governing powers and react accordingly.

                  These guys, as I say, are fortunate that they were doing this stuff in lil ol’ NZ. Also, the naievity is amazing.

                  • mcflock

                    Again, other countries’ legal systems are irrelevant – you bring up Libya, so I will merely point out that the revolutionaries there are actually committing armed insurrection, not just playing in the backcountry. So really the govt should give them a jury trial, in recognition that it’s lucky it wasn’t facing real armed insurrectionists like Libya. And the reason it wasn’t facing those guys is because we’re a democracy and we don’t string people up. Isn’t Key lucky he’s not Gaddafi?

                    If indeed our lot were being “opposition forces” at all. Maybe they were hoping to earn $$$ as military contractors in Iraq? The timing would be about right.

                    But then determining that is what we have trials for – and what we used to have jury-trials for as a matter of right.

      • Jenny 4.1.2

        The inference I take from your excuse above is “the establishment have guns and military – so we should too” – sorry if I’ve got you wrong……..

        grumpy

        I doubt you are sorry, but yes, you have got me wrong.

      • Jenny 4.1.3

        The inference I take from your excuse above is “the establishment have guns and military – so we should too” – sorry if I’ve got you wrong……..

        grumpy

        I doubt you are sorry, but yes, you have got me wrong.

        And I think deliberately so….

        Sorry, if I have got you wrong.

    • Jenny 4.2

      So you are saying our State is applying the rules of war to an internal enemy?

  5. ChrisH 5

    PS there has only been one case in the UK where s.44 of the Criminal Justice Act 2003 (which came into effect in 2007) has been made use of. Apparently it is regarded as an extreme last resort and by invoking it, it is also made plain what the reasons for the lone judge trial will be. Yet in NZ the Crown Prosecutor has been reported as saying that: “We applied for a judge-alone trial in order to make the whole thing work as smoothly as possible. The Court of Appeal has agreed that that is appropriate.” This insults the intelligence of the NZ public, and establishes a very bad precedent.

  6. Judges are not the ‘peers’ of ordinary citizens.

    I agree, that particularly in this case, there will be extraordinary pressure on the ‘lone’ Judge to convict.

    Our basic human right in NZ to trial by jury is enshrined in the Bill of Rights Act 1990.
    In my view – THIS IS THE LAW – which establishes this fundamental human right to justice, and this lawful right must be upheld.

    http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225526.html#DLM225526

    “24. Rights of persons charged

    Everyone who is charged with an offence—

    (e) Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months; and …”

    http://www.kiwisfirst.co.nz, edited by my good friend and fellow ‘Public Watchdog’ (on judicial matters), Vince Siemer, is in my considered opinion, NZ’s leading website exposing judicial corruption and the very real lack of transparency and accountability in the NZ ‘justice’ system.

    For more information on the right to trial by jury, and freedom of expression concerning the so-called Tuhoe terror raids – I strongly recommend you have a good look at articles on this website, and suggest that others do likewise.

    Penny Bright
    http://waterpressure.wordpress.com

  7. nadis 7

    I’m very much a rightie on these sorts of issues but at first glance this looks disgraceful. I see no reason to tamper with our standard legal process.

    Are there any published reasons apart from “make things smoother” line? Is that code for “have a better chance of getting convictions on some OTT charges?”

    Any time the government appears to arbitrarily cut across property or personal rights with little explanation or transparency I get more than a little perturbed. (As an aside, that was the last time I saw ACT do something in line with their fundamental principles – protest against the original Foreshore and Seabed Act).

    From the get go this Tuhoe case has disturbed me – if there was a market on iPredict for “What are the final charges likely to be” I would be betting on some technical, not overly serious firearms charges around licences. But with a one judge only trial, I’m not so sure any more……. When the raids happened the posturing by the government of the day seemed a little odd, and then the downgrading of the seriousness of what they were claimed to be doing, and now this…… Dunno – it smells to me like a some senior beaurocrats in the Police, Intelligence, Justice or somewhere similar have an obsession about this case and “know” the real facts even if there is little proof to be had.

    • Oleolebiscuitbarrell 7.1

      Accused do not presently have the right to a jury trial in all proceedings. Like pretty much every other common law jurisdiction, we have a threshold. The present threshold was changed before to what it is today. It is being changed again. Big deal.

    • Are there any published reasons apart from “make things smoother” line? Is that code for “have a better chance of getting convictions on some OTT charges?”

      The reasons can’t be published; the contents of the judgement are suppessed.

      (BTW, if anyone has a copy, I’d love to see it. No, this does not violate the suppression order)

  8. nadis 8

    not as simple as that biscuit barrel. there are certain presumptions around jury trials for serious crimes, and the original intention of the right to remove the right to a jury trial was with respect to complex fraud cases. I’ve just read the judgement – I’m no lawyer but it looks closer to bullshit than it does to common sense.

    [deleted]

    And then to suppress the judgement as well? That is bizarre – what possible reason is there to try and restrict a controversial judgement like this from the public domain? So potential jurors aren’t influenced? Hang on, there aren’t any!

    [lprent: Removed what would violate the suppression order. The suppression that the suppression order was done was lifted – so that can be referred to. ]

  9. JonL 9

    But…if the Govt have nothing to hide….they have nothing to fear!

    and a Judge is so……..non-get-atable…..

    Are they scared a jury will throw the whole shebang out, lock stock and non smoking barrels, after all they’ve spent on the case and make them all look the dicks, they so obviously are?

    • if the Govt have nothing to hide….they have nothing to fear!

      Heh… I’d love to hear someone who’s relied on that line to erode our civil rights defend the government on this. Of course Ministers are all “too busy” to engage, but I note David Garrett now has time to comment on blogs…

      On the broader issue, if I were one of the accused I might be quite glad of a judge alone trial, given what I know of juries. Wasn’t it just a week or so ago that a woman, curiously decribed as the “lead juror” or somesuch, being quoted as having made up her mind before the end of the opening addresses?

      Given the propensity of the media to refer to the accused as “terrorists” and other value-laden terms, I personally doubt you could empanel a truly unbiased jury.

      Having said that, yes I am concerned at the pressure under which the judge will be put to convict (though whether that’s a factor will very much depend on the judge) and of course believe that if the defendants want to risk a jury, then that should be their absolute right.

  10. ChrisH 10

    See Section 45 of the Arms Act current version from legislation.govt.nz. Looks like they’ve got every single one bang to rights for a four year stretch under 45(2), where the defendant is required to prove that their purpose is “lawful, proper and sufficient,” a threefold test of innocence. Or come to think of it virtually anyone else the police decide to pick up and charge under this section, bar a deerstalker actively stalking deer at the time with a recently shot carcass to prove it. A jury would probably be reluctant to convict anyone bar an obvious criminal under 45(2) but on the other hand a judge might be more picky. It all depends on what you mean by “prove.” As the Crown Prosecutor says, it’ll all go a lot more smoothly now.

    ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

    (1) Every person commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 4 years or to a fine not exceeding $5,000 or to both who, except for some lawful, proper, and sufficient purpose,—

    (a) carries; or

    (b) is in possession of—

    any firearm, airgun, pistol, restricted weapon, or explosive.

    (2) In any prosecution for an offence against subsection (1) in which it is proved that the defendant was carrying or in possession of any firearm, airgun, pistol, restricted weapon, or explosive, as the case may require, the burden of proving the existence of some lawful, proper, and sufficient purpose shall lie on the defendant

    ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

    • grumpy 10.1

      An that does not include other issues such as were the weapons themselves legal? Were the owners, users, supervisors licensed? Were they being safely handled…….?? etc. etc.

  11. Bored 11

    Can anybody tell us what is actually behind the terrorism charges? I have heard lots of speculation but nothing solid. Why did an armed police convoy roll up to a remote location? What threat were these people to the state? More importantly what were they doing that the normal Crimes acts did not cover?

    When we know the answer to the above I suspect we will see that the Legislation as it stands is unnecessary, draconian and deeply anti human rights. Was it passed by a Labour government?

    • grumpy 11.1

      Yes, and you are correct. When/if the facts emerge it will show the answers to you questions. For these raids to be carried out by Labour’s puppet Police Commissioner Broad, with the obvious knowlege of Labour and the original pursuit of terrorist charges – until Labour got cold feet – leaves a lot of unanswered questions.

      Antispam; assembly (I’m right, this guy is a genius)

      • lprent 11.1.1

        The police are legally and in practice not part of the government. They can and are influenced by the government, but they don’t take orders from them. To be precise, in this case, the police and other security apparatus informed the government, bu carried out everything under their mandate.

        Essentially neither government has bugger all to do with this whole fiasco.

  12. HoneMeke 12

    Can someone please give me some further information regarding the ‘rich white men in the bushes behind Papakura’ case which was referred to several times earlier in the thread?

  13. Jenny 13

    The stench of this decision has even risen into the nostrils of usually conservative members of the intelligencia.

    From the pen of Fran O’Sullivan:

    Not only did (judge) Winkelmann suppress her reasoning for her December 9 decision last year but she also suppressed (for some weeks) the fact that she had made it.

    “…..untenable for a senior court to rule in the prosecution’s favour and deny these people a right to have their case heard by a jury of their peers.”

    And further:

    Nor is it tenable for the Court of Appeal to refuse to say publicly why it has ensured the upcoming trial will be one decided by legal insiders.

    Excoriating the Left for their silence and for not standing with her and not objecting as strongly as they should, indicates that O’Sullivan is aware of the moral danger of not speaking out against this injustice.

    “….even Greens MP Keith Locke – who has been the subject of Security Service surveillance – has had little (if anything) to say on the court’s decision. But unless this carry-on is challenged this country runs the risk of being set on the path to Star Chamber hearings, where any activist facing serious charges will essentially be subject to a secret trial.

    Fran O’Sullivan

    Fran O’Sullivan: Protect our basic right to trial by jury

    By calling for the left to stand by her in condemning this decision, O’Sullivan may be mindful of the words of warning from Pastor Niemoller of the dangers that can befall even the intelligencia for saying, (or doing), nothing.

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