Unsuppressed: Urewera 18 to be denied jury trial

Written By: - Date published: 10:50 pm, December 26th, 2010 - 71 comments
Categories: law, suppression orders - Tags: , ,

lprent: Post from No Right Turn. In this case I haven’t asked for permission because I was irate about the suppression decision in the first place, but I’m sure I/S will understand. I haven’t seen the variance to the suppression decision – but I consider that I/S will be correct as invariably is on statements of fact.

Two weeks ago, I vented my spleen about a suppression order in a major upcoming criminal case of significant public interest. The suppression order has now been varied, so I am allowed to report on the outcome of the judgement: that the accused in the Urewera “terrorism” case will be denied a jury trial, and tried before a judge alone.

Yes, I’m serious. The defendants in a hugely controversial and political case will be tried by a judge, rather than a jury. No matter what you think of the case, this should be deeply troubling. Juries aren’t just a fundamental protection for the accused, the ultimate check on abuses of state power – they are also the primary signifier of a fair trial in this country. Yes, judges say that a judge alone trial is as fair as a jury trial (but they would, wouldn’t they). The problem is that the public just doesn’t believe that. Which means that if the trial continues in its current mode, the verdict simply will not be accepted. Any conviction can be blamed on the unfair process rather than the evidence. And even if you think the accused are guilty, that’s not a Good Thing.

The blunt fact is that without a jury, there can be no public confidence in the outcome of a trial such as this. Only with the bullshit detector of 12 random people scrutinising the case can the rest of us believe that justice was done. But I guess a fair process we can have confidence in is just too risky for the police.

71 comments on “Unsuppressed: Urewera 18 to be denied jury trial ”

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  1. lprent 1
    26 December 2010 at 11:51 pm

    The post is on removing the ability to have a jury trial in this case and the suppression order that prevented that fact from being reported here and elsewhere. Do not deviate too far from that.

    Saying anything that violates the many suppression orders in this case and the judges reasoning for the judgement will incur my severe displeasure. Of course the irony is that I have to know the contents of some of those suppression orders in order to moderate this discussion, and I’m not fully aware of all of those orders – so those who do, please help me out by pointing out infractions.

    What that leaves available for the discussion is limited – but work within those bounds please.

    I’d also advise anyone else trying diversion comments like A did (now booted to Open mike) that trying to divert the topic of this post will get similar treatment.

  2. Zorr 2
    27 December 2010 at 4:41 am

    I am soooooo going to get flame-roasted for this but if I don’t say what is on my mind I guess I will never live to be corrected… –deep breath–

    I have never been one to trust either aspect of our legal system. On one hand the jury system or, as I/S describes it, the “bullshit detector of 12 random people scrutinising the case” which I personally prefer to refer to as “12 unqualified people being asked to sit down, listen to the presentation and that at the end of it all they will be quizzed on it”. Not only is their only qualification for the role of juror that they have a pulse but it is a requirement that they ONLY meet that qualification and have little to no prior knowledge that may bias them (in the case of the Urewera 18 I guess that means we have to go to people who have immigrated since then?). On the other, the judge trial whereby the enshrined power of the state is maintained through keeping doors closed in what should be, as much as possible, a transparent process.

    Maybe this isn’t the time to be starting this discussion as this is in regards to a case that is currently in process but as much as the history of modern democracy is based on representation of the people at all levels I can’t help but feel that the cry of “they are being denied a jury?!?!?” should be changed to “how can we reform the system so that there is representation of both a professional and representative manner?” The system we have may be the best we’ve got so far, but it is rotten and we only have ourselves to thank as it is a system that invests the few with the power of the many and encourages passive participation.

    From Chomsky, “The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum – even encourage the more critical and dissident views. That gives people the sense that there’s free thinking going on, while all the time the presuppositions of the system are being reinforced by the limits put on the range of the debate.” It may be said that there is no such thing as original thought but I can’t help feeling that in an era of unprecedented growth and technology (mostly about to end though) that we are about due for a change.

    • lprent 2.1
      27 December 2010 at 8:36 am

      I’d agree about the limits of juries, but I’d also say that exactly the same problems have been there since the inception of the jury system. Can you imagine what juries were like when they were literally selected from your peers – out of the few thousand people in rural parish where the gossip mill has been running? What is weird s this very recent requirement that jurors not have heard the details of the case from the gossip mill, these days known as the media.

      Judges have always been appointed by the hierarchy and legal profession. To one degree or another they are relatively isolated from the mob. Because of the nature of how they are selected and the training that is required, they are deeply conservative (in societal terms rather than political). This is hardly surprising when you look at legal training. It emphasizes the screw ups of the justice system and the convolutions that were required to get around miscarriages of justice.

      As far as I’m aware the use of JP’s for the bench on summary offences seems to have largely ceased. They were an interesting innovation from the 16th.

      But the point is that our legal system is a multilayered system both in terms of an ability to appeal, and being able to use a jury to limit the innate conservatism of legally trained judges. I can’t see a system that I think is more likely to limit miscarriages of justice, while ensuring that the guilty are identified.

      The real issue with our legal system lies in several areas. Constraining the ability of the police to charge or at least extracting some penalty when they charge frivolously for cases they cannot win (and this appears to be one of them). Ensuring that trials are speedy. In this one charges were laid at the end of 2007. It is now the end of 2010 and trial is still some way off. Most of that delay can in my view be laid directly the feet of the polices rather fanciful case where elements of their charges and evidence have been rightly challenged. At this point you get the impression that the trial is going to be more about putting the police on trial than the accused.

      Removing the jury probably helps the police because one thing that the judges are charged with observing is maintaining order as well as law, and holding the police up to the incredulity of a jury looking at their case is not likely to enhance that. A judge alone is more likely to be sympathetic to an order argument is more likely to give the police a result that they can live with.

      • Treetop 2.1.1
        27 December 2010 at 3:42 pm

        Not having a jury trial is doing a disservice to the next commissioner of police, Marshall. Also bear in mind that the role of a police commissioner is administration and control of the police.

        Was Marshall consulted on where he stands on a judge only trial?

        Marshall is being put into an untenable position by the government over the Urewera trial.

    • jbanks 2.2
      27 December 2010 at 8:41 am

      Society takes it chances with this obsession for so called trial by one’s peers. The reality is that juries return plenty of stupid verdicts and, really, if people’s concern is with getting to the truth fairly and soundly, they would choose to have judges sitting on panels making decisions, like they do in continental Europe.

      The common law world would, however, appear to prefer the useless symbol of trial by jury.

      • lprent 2.2.1
        27 December 2010 at 8:52 am

        I have also seen judge only trials bring back some really daft judgements which have then been overturned on appeal by judges of a higher court.

        As far as I can tell it frequently depends on the judge and their personal foibles. You’ll find that a lot of the discussion by lawyers about a case focuses on the known foibles and attitudes of a judge in both types of court procedure.

        The difference with a jury trial is that the judges foibles are moderated by the juries foibles and vice versa. It tends to be more balanced

        • jbanks 2.2.1.1
          28 December 2010 at 11:12 am

          I don’t think that your hearsay observations count for much.

          It’s a either a random group of unqualified people with no experienced in assessing evidence, and no legal training – vs qualified judges that are trained and experienced in assessing evidence and the law.

          It’s really a no brainer.

          • felix 2.2.1.1.1
            28 December 2010 at 11:42 am

            I think you’ve confused a couple of key principles there banksie, juries don’t decide matters of law and never have as far as I’m aware. That has always been – and must be – the sole preserve of a judge in a jury trial.

            The task of the jury is to decide matters of fact. Legal training is neither here nor there.

            As for the hearsay, well it’s just your hearsay vs lprent’s at this point so I wouldn’t read too much objective truth into it just yet.

            • jbanks 2.2.1.1.1.1
              28 December 2010 at 12:27 pm

              People are entitled to a fair trial and if as a country we continue to insist on allowing 12 (likely) very stupid people to decide on something as important as whether someone might potentially spend the rest of their live in jail, they could at least have basic training in understanding and balancing evidence so they don’t let some emotive whim have an unfairly prejudicial effect.

              • felix …
                28 December 2010 at 2:40 pm

                Yeah actually I agree with that. Some basic logic and reasoning skills could be tested for, surely?

  3. jcuknz 3
    27 December 2010 at 8:36 am

    My confidence in the jury system is slightly knocked since I viewed ‘Twelve Angry Men” the other night because not every jury has a Jack Lemon on it. Though I have done jury service and we reached a similar decision without him. I think that either way is equally fraught with the problem of bias. Though with a jury you may have twelve different bias’s canceling each out. My first reaction was that obviously the Waihopi Case has influenced the making it a judge only trial.

    • jcuknz 3.1
      27 December 2010 at 8:57 am

      There is the point relevant to this case that “Justice delayed is justice denied” and making it a judge only trial is the best chance of making it fair because I’m sure there is hardly a person in the country who hasn’t heard of the case and have some view on it. A judge is trained and experienced to be impartial. If one used the ‘peers’ strictly I would imagine a strong element of bias.

  4. higherstandard 4
    27 December 2010 at 8:42 am

    A recently retired QC, when still practising, once told me that if you are guilty the best chance of acquittal is a jury trial, while if you are innocent it is quicker and simpler to be tried by a competent judge who can spot a barrister’s bullshit a mile off.

    And let’s face it most jury trials in this country are populated with a demographic of people who are likely to vote for Winston and unless directed by a judge will fuck it up a reasonable proportion of the time.

    • lprent 4.1
      27 December 2010 at 8:57 am

      Which is why the judge is able to direct the jury on what the the judge sees as being the relevant matters of the law.

      What it doesn’t do is allow a single falliable person to make the decision. Which is exactly why when you get to the appeals and supreme courts, the decisions are made by a panel of judges.

  5. RedLogix 5
    27 December 2010 at 9:33 am

    The crucial point here is not so much the relative merits of judges versus juries… but that the long established right of defendants facing serious charges, to choose trial by jury has been arbitrarily removed from them.

    This is a very old and fundamental principle in law. I struggle to imagine how any other considerations can or should be allowed to trump it.

    To my mind it represents the wedging open of a door that leads to secret trials, political star-chambers and worse.

    • travellerev 5.1
      27 December 2010 at 4:30 pm

      Thank you Red Logic for your analysis. I am from a country where there are no jury trials, period. All trials are open to the public press and public attend in high profile cases and that is sort of what keeps judges who do not want to be perceived as biased fair I suppose.

      I don’t have any experience with the jury system therefore but you comment makes sense.

      Why would a group of accused in a high profile, and extremely political case be denied their rights to have a jury trial? Especially if the government we have currently has no compunction about bullying and cajoling the other and supposedly independent legs of government.

    • jbanks 5.2
      28 December 2010 at 11:05 am

      “I struggle to imagine how any other considerations can or should be allowed to trump it. “

      The consideration of what system produces the fairest outcomes should be your yardstick rater than an arbitrary right based on an outdated principle.

      • RedLogix 5.2.1
        28 December 2010 at 12:09 pm

        You are trying to compare two different things.

        “Fairest outcome” is a post-priori (or after the event) value judgement; and one that is highly subjective. While the questions around rights, procedures and jurisprudence are a-priori ( or before the event). Trying to compare the two is not very useful.

        The legal system is a very powerful entity, backed by the full power of the state, police, crown prosecutors and the prisons. At every point the state can throw enormous resources, virtually unlimited money, and irresistable coercion at the defendant. By contrast an individual charged with a crime has only the lawyer he/she can afford and perhaps the very limited resources of a PI.

        The power imbalance is profound and enormous. From very early times this imabalance was recognised and for this reason the state was compelled to leap over a very high set of hurdles in order to convict.

        There is for a start the presumption of innocence. There is the right to choose a jury trial, and the defendant is not required to reveal their defense before the trial. The Crown by contrast must make their case ‘discoverable’ and must not introduce new evidence during the course of the trial without the permission of the judge. The defedant cannot be forced to testify against themselves, and there are whole rafts of rules around ‘admissable evidence’. Indeed what is ruled in or out as admissable is often 90% of determining the outcome of a trial.

        All these principles serve the purpose of tilting the apriori balance of power in a trial somewhat back in favour of the defendant. They say nothing about whether or not the trial will get to a ‘fair outcome’… what they set in place is a ‘fairer process’.

        Then there is the requirement for a jury to determine ‘beyond reasonable doubt’. Which presumes a jury trial in the first place. With a judge it largely comes down to their personal interpretation of this. They may well get it just right, but neither can this be assured. Plenty of lawyers know of judges who have sat on the bench long past their ‘use by date’.

        • jbanks 5.2.1.1
          28 December 2010 at 12:38 pm

          They say nothing about whether or not the trial will get to a ‘fair outcome’… what they set in place is a ‘fairer process’.

          Do you not think that the fairer the process the fairer the outcome? Logic 101.

          A panel of judges who are trained and experienced to be impartial as well as being specialised in understanding and balancing evidence is a much fairer process than 12 untrained monkeys.

          • RedLogix 5.2.1.1.1
            28 December 2010 at 12:48 pm

            Yes… but that is the point. The balance of power is inherently tilted against the defendant, which is why the legal system has all these arcance rules… to make the system fairer.

            Everytime you remove or curtail these rights you make the system less fair. Logic 101 no?

            A panel of judges might well be just fine… but again that is tangential to the right of the defendant to choose a jury trial.

            12 untrained monkeys.

            You do a great disrespect to the huge majority of jurors who undertake the role sincerely and decently. No system is perfect, but by and large juries are every bit as reliable as judges.

            PS And when I consider some of the wholly unjust court decisions around Blue Chip, and other failed finance companies for example… I’m tempted to wonder if some of them are not on the take. Probably not, but a single corrupt judge is a lot easier to imagine than a corrupted jury of 12.

            • jbanks 5.2.1.1.1.1
              28 December 2010 at 1:27 pm

              [i]Yes… but that is the point. The balance of power is inherently tilted against the defendant, which is why the legal system has all these arcance rules… to make the system fairer.

              Everytime you remove or curtail these rights you make the system less fair. Logic 101 no?[/i]

              What are you basing this imbalance of power on? The type of trial it is doesn’t change either the defendants or plaintiffs case. Have you got a legitimate reason to have juries other than the fact there always have been juries?

              [i]A panel of judges might well be just fine… but again that is tangential to the right of the defendant to choose a jury trial.[/i]
              Only for serious criminal charges is a good compromise for all.

              • RedLogix …
                28 December 2010 at 2:11 pm

                Nah… I’ve made my points…. you are just ignoring them in the dimwitted delusion that the last man standing wins.

                • jbanks …
                  28 December 2010 at 2:55 pm

                  None of your points explained what a jury trial can offer to make it more fair than a non-jury trial.

                  Again, the type of trial it is doesn’t change either the defendants or plaintiffs case.

                  /win /jbanks_got_close_to_a_ban_on_the_pwned_rule

                  [lprent: Need I say more? ]

                  • Colonial Viper …
                    28 December 2010 at 3:02 pm

                    We could adopt the Russian or Chinese judicial system. Then you only need to bribe (or threaten) one or two judges instead of a whole jury.

                    Again, the type of trial it is doesn’t change either the defendants or plaintiffs case.

                    It may

                    – Affect the evidence allowable
                    – Change the grounds of objections permitted and how those objections are handled.
                    – Alter the balance of time, resources and counsel expertise each side has access to.
                    – Limit appeal processes.
                    – etc.

                    -> your “/win ” = premature

                    • Treetop …
                      28 December 2010 at 3:55 pm

                      I have enjoyed looking at the contributions made today on the arguements for trial by jury.

                      I found the following link to have clarified why it is crucial to have trial by jury for the Urewera 18.
                      http://www.nzhistory.net.nz/timeline/15/10

                      I found the external links to put me in the moment, 2007 NZ anti – terror raids (Wikipedia) Helen Clarks comment about why the police could not use the Arms Act was telling. Also Matt Mc Carten: Law enforcement digs big hole with Urewera terrorist swoop (NZ Herald) tells me that nothing constructive has been learned by senior politicians and senior police.

                    • jbanks …
                      28 December 2010 at 9:43 pm

                      ****”It may
                      – Affect the evidence allowable
                      – Change the grounds of objections permitted and how those objections are handled.
                      – Alter the balance of time, resources and counsel expertise each side has access to.
                      – Limit appeal processes.
                      – etc.”****

                      The judges(s) are in charge of determining these factors both in jury and non-jury trials. So what exactly would be different about a non-jury trial for these factors to be considered differently? You know, actual evidence that leaving our justice system to random untrained amateurs is a good thing.

                    • SPC …
                      29 December 2010 at 12:24 am

                      Some people are missing the point that this is a public law court that operates within the consent of the people – it is therefore not 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 juries may as well slight elections and democracy itself.

                      Gotta summons for jury service next year last November, no wonder they kicked this one to a judge. I could feel the fear.

        • Swampy 5.2.1.2
          29 December 2010 at 2:34 pm

          And now, legal aid recipients will be denied the right to choose their lawyer.

  6. Bill 6
    27 December 2010 at 9:49 am

    Am I right in assuming that the rationale lying behind the decision is subject to suppression?

    If so, it makes intelligent comment, on what can only be viewed as an extraordinary turn of events, well nigh impossible.

    It’s not just aspects of trial procedures that have been shut down. The right of the citizenry to scrutinise or debate that decision and thus apply some measure of accountability to those responsible for the decision has been shut down too.

    Surely that’s unconscionable in a democracy?

    I’m getting a nagging sense of ‘show trialism’ in the offing and of a mask of civility having finally slipped to reveal a cold contempt for civil society from those in power towards those of us who constitute it.

    catchpa – hanging (maybe ‘twisting’ and ‘wind’ should have been added)

    • lprent 6.1
      27 December 2010 at 10:49 am

      Only paras 78 and 79 of the original judgement have been unsuppressed – the results of the judgement, not the reasoning.

      The Counsel for the Crown say that some (maybe all) of the suppression orders can be lifted if the defense do not appeal against the judge only decision. That makes sense if the intent is to stop the details getting into a juries head. It doesn’t make sense if the detail of the judgement is about the legal argument on why a jury should not be used – which is far from anything that a jury should be able to make a decision on. That statement from the crown sounds a bit like coercion.

      But I hope that the defense does appeal. Judges tend not to stand much crap from lawyers (after all they were lawyers). But I’ve noticed that they seem to swallow a lot of blatant bullshit from the police without bothering to swallow. Members of juries tend to have a relationship with police that is less respectful by the police than either judges or lawyers. In my opinion, they are less likely to credulously swallow the line of bullshit that the police have been spinning up in this case (which I can’t talk about).

      We’ll just have to live with the suppression orders to get a jury based trial that is less likely to believe the self-serving crap that the police seem to be using in this case.

  7. SPC 7
    27 December 2010 at 10:06 am

    The issuing of supression orders is covered by the Criminal Justice Act 1985, Section 138 (part 2) –

    “Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require…”

    Given this was about denying a jury trial – is it a matter of “justice” or the “security or defence of New Zealand”

    Are “we” adopting a war against terrorism standard of justice, for the 18 – including 5 for planning anti-road building protests (on the grounds of some gun offences unrelated to the activism – so any political activist with a gun licence offence is a security threat to the realm?

    This speaks to the issue of the Americans (WikiLeaks) offering New Zealand the opportunity to regard Maori activists as persons of interest in the war against terrorism (that is provide us with help – Echelon etc). Our SIS said our police dealt with that and no thanks. I suppose this is evidence that those were not idle words … . That should please the foreign power the unelected estates seem so beholden to – no wonder the people who keep the no nuke policy in place are not allowed access to the court process as members of the jury (are juries untrustworthy after Waihopai?) .

    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.

  8. Jenny 8
    27 December 2010 at 10:07 am

    An authoritarian government like this one instinctively loathes jury trials. Witness their reaction to the Whaihopai judgement.

    Since flax roots citizens often have sympathy and express empathy, for other flax roots members of society. (Not to mention New Zealander’s international reputation for supporting the “underdog”.)

    If you want a conservative judgement, far better to have an individual from the establishment in an autocratic position.

    Someone removed from, and above general civil society by his position, lifestyle, background, education and income.

    Such a person living a comfortable and privileged lifestyle untouched from the cares and travails that beset the average citizen, moving in a social circle of similar privileged members of the establishment, who by inclination is more likely to view the “underdog” as a threat to authority and established order.

    Most people, even judges would agree that this description acurately describe their position in society.

    To balance this bias is the reason why we have juries.

    To deny the accused a jury trial in this case, will be a travesty and an outrage.

    Not only will the innate conservatism of a judge count against the defendants in this case. In New Zealand, through various manipulations, the state, acting as prosecutor, are also able to influence the selection of the judge. This will allow the appointment of a judge, who based on reputation, is most likely make a decision that will favour the state.

    It will be interesting to see who the chosen judge is. If, they are by reputation, a conservative and unimaginative authoritarian, with a history of conservative judgements and harsh penalties, this will be further travesty of justice.

    capcha – “subjects”

    • Swampy 8.1
      29 December 2010 at 2:40 pm

      At risk of going off topic – the response to the Waihopai from government was reasonable as I do not for one minute believe the case put by the defendants which was they have right to vandlaise State property.

  9. pollywog 9
    27 December 2010 at 11:04 am

    there’ll be riots and torchings if they’re found guilty is my pick

    cos c’mon, anything the “terrorists” may have said couldn’t be any worse than what some of those nutjobs at crusader rabbit or kiwiblog say every other day

  10. QoT 10
    27 December 2010 at 12:03 pm

    I’m torn on this one. On the one hand, I’m a bit scathing about a jury system in which jurors will not be representative of the population as a whole due to a combination of reimbursement / time / lawyers playing silly buggers factors. On the other, can a case as inherently politicised as this one actually come to a conclusion which will be accepted by the vast majority of people?

    If there’s an acquittal and the judge has even the slightest hint of liberal tendencies, the RWNJs are going to be screaming about judicial activism. A conviction no matter what tendencies the judge has will be easily criticised as authoritarian judiciary siding with police/government.

    Frankly, no matter what happens this trial is going to be a clusterfuck.

    • jcuknz 10.1
      27 December 2010 at 1:50 pm

      I fear that you are right QoT …I won’t say more for fear of breaching the order which I feel lprent is getting dangerously close to in their disgust at the situation..

  11. Treetop 11
    27 December 2010 at 2:23 pm

    What do those having to defend their actions say about not being tried by a jury?
    Are those on trial entitled to legal representation?
    Is being tried by a judge a tactic for the solicitor general to hear what the accused defence is?

    I feel that when ever the solicitor general is involved in charging a person/s that a jury needs to be appointed.

    Correct me if I am wrong about the solicitor general being involved in charging those involved.

    • Treetop 11.1
      27 December 2010 at 2:55 pm

      I have just looked up the above link “denied a jury trial, and tried before a judge alone.” I really needed to look up the above link before posting as the Solicitor General made it clear in November 2007 that there is no case under the Terrioriam Supression Act.

      What a corrupt practise I am seeing from the National Government.

      Were I one of the 18 on trial I would stand there before the judge and refuse to anawer any questions until a jury was appointed.

      • Graeme Edgeler 11.1.1
        27 December 2010 at 6:57 pm

        What a corrupt practise I am seeing from the National Government.

        Operation 8 was conducted while Labour was in Government.

        The law change which allowed the Crown to apply for a judge alone trial over the objections of the defendants was passed in June 2008, during a Labour government (and supported by Labour, National, New Zealand First, United Future, The Progressives and Gordon Copeland, it was opposed by the Greens and the Maori Party, and Taito Phillip Field.)

        • Treetop 11.1.1.1
          28 December 2010 at 11:42 am

          I was aware of the change of a judge only trial under the Labour Government. The judge only trial is occurring under the National Government for the Urewera 18. I would be saying that the practise is corrupt if the call was made under a Labour Government as well.

          It is clear that the Urewera raids in October 2007 was a big police operation. The police commissioner’s role is administration and control of the police. Do you think that a judge only trial puts the next police commissioner into an untenable position in regard to the Urewera judge only trial and that there is interference by the National Government in justice and the truth being served? (Fringes of a police state when the police commissioner is not independent).

          Has someone overlooked adding a clause into when a judge only trial is appropriate?

          I do not want to see NZ become like Fiji, with suppression of the judicary and media either.

          • Graeme Edgeler 11.1.1.1.1
            29 December 2010 at 10:47 am

            I have not seen any evidence (or even allegation for that matter) that the National Government has had any input into the decision by the Crown prosecutor to seek to have the trial heard by a judge sitting alone. If you have such evidence you should forward it to one of the lawyers defending them as it would provide a good basis for getting the charges thrown out as an abuse of process.

            Do you think that a judge only trial puts the next police commissioner into an untenable position in regard to the Urewera judge only trial and that there is interference by the National Government in justice and the truth being served?

            I don’t see how it would be untenable. And I don’t have any reason to think the National Government is involved in any way at all. Again, if you’ve reasons to suspect this, forward your information to the lawyers involved.

            • Treetop 11.1.1.1.1.1
              29 December 2010 at 12:45 pm

              Yes I do smell a rat! The thing that would convince me that there is independence is that a jury only trial occurs. I want to have confidence in the judicial process over the Urewera 18.

              From day one it was indefensible that the police even considered using the Terror Suppression Act when it was a fire arms issue.

              I am no fan of Howard Broad. I do think that Marshall is a confident cop and he has got a background in intelligence/terrorism as he was posted to Washington DC post 911.
              http://tvnz.co.nz/national-news/new-police-commissioner-named-3930763

              Embrassing for the previous and current government who passed the Suppression Terror Act and the Office of the Commissioner of Police who did not comprehend the limits of the legislation. The cost of the operation cannot be justified either.

              • Graeme Edgeler …
                29 December 2010 at 9:28 pm

                The thing that would convince me that there is independence is that a jury only trial occurs.

                How would the the Prosecutor changing his mind and asking for a jury trial convince you that the prosecutor wasn’t being leaned on? It would suggest to me the exact opposite – that complaints like yours and others’ were affecting the higher ups who placed pressure on the prosecutor to change his mind.

                Also, I’m pretty sure you’re not going to get a jury only trial 🙂

                • felix …
                  29 December 2010 at 9:36 pm

                  Good point. WTF would the jury in a “jury only trial” actually do?

                  How would they even know to turn up?

                • SPC …
                  30 December 2010 at 2:13 am

                  Does the Crown prosecutor not have an interest in the prosecution being successful?

                  • Graeme Edgeler …
                    30 December 2010 at 7:35 pm

                    What do you mean by successful?

                    If you mean “results in a conviction”, then no.

                    If you mean “gets to the end of the trial without the trial having to be abandoned”, then yes.

                    This is basically the prosecutor’s reason for seeking a judge-alone trial: the trial is scheduled to last something like three months. The likelihood that a juror (or more than one) will have to stop being a juror is therefore much higher. You could get two months into the trial and have to abandon it.

                    So yes, the Crown Prosecutor’s interest in this not happening is what has led to the application for a judge alone trial.

                • Treetop …
                  30 December 2010 at 12:47 pm

                  Am I correct in saying that a lawyer and a cop are not permitted to do jury duty?
                  Am I correct in saying that the a jury member is not permitted to have connections with the case or person on trial?

                  The above occurs so there is not an imbalance of power and that all parties of a hearing are independently represented e.g. the jury is there to decide whether or not a person is guilty as charged or not guilty as charged.

                  A proscecutor is showing BIAS when they exclude the voice of the people which is voiced through the jury.

                  I consider the jury section in a court room and the seats in the gallery to be there to keep the judicial system in CHECK.

                  • Graeme Edgeler …
                    30 December 2010 at 7:23 pm

                    You are correct. In New Zealand*, a lawyer with a current practicing certificate is not permitted to serve on a jury (and nor is a cop).

                    The list of others is here.

                    *The jury service prohibitions in other places have changed, e.g. in the UK, even judges may now serve on juries.

                    • Treetop …
                      31 December 2010 at 4:30 pm

                      Another point on having a jury trial is that 11 out of 12 people of good character state whether or not a person is guilty as charged or not guilty as charged. Not being familiar with a court room, there is only one crown prosecutor in the room.

                      I note in your reply to SPC about a trial having to be abandoned. The fee to sit on a jury is pathetic and this no doubt is a cause of a jury member opting out. For long trials assurance from potential jury members is required that family commitments are sorted and health is not of concern.

                      Who is the Crown Prosecuter for the Urewera 18 and why is it their call on not having a jury? I am so very disappointed in their biased decision and I am quite happy to tell them so. The crown prosecuter has been seduced by the legislation, the trial issue is significant and the public interest is at the top end of the scale.

                      I think a case can still go ahead with 11 jurors eh?

                    • Treetop …
                      31 December 2010 at 6:02 pm

                      I take back saying the jury fee is pathetic after looking this up. However, some may think so.

                      http://www.justice.govt.nz/publications/global-publications/i/information-for-jurors/publication#Fees

                    • Graeme Edgeler …
                      1 January 2011 at 12:26 am

                      Who is the Crown Prosecuter for the Urewera 18 and why is it their call on not having a jury?

                      The Crown Prosecutor is Ross Burns, who is being assisted by Emma Finlayson-Davis (both from the law firm Meredith Connell, which conducts Crown prosecutions in Auckland).

        • Swampy 11.1.1.2
          29 December 2010 at 2:42 pm

          Passed by Labour
          Also supported by National

          • Treetop 11.1.1.2.1
            29 December 2010 at 3:17 pm

            Terrorism Suppression Act 2002. 106 – 9 (Greens voted against it). Not sure on numbers in the amendments to the act since October 2002.

            • Colonial Viper 11.1.1.2.1.1
              29 December 2010 at 3:28 pm

              Citizens must always stay on guard against state grabs for power, especially ones which change the nature of the relationship between the state and its citizens. In the UK it has even come down to school boards and town councils being given extensive surveillance powers to spy on families.

  12. Tanz 12
    28 December 2010 at 9:13 pm

    It was an outrage that this group got off scott-free because of some legal loophole, the govt probably was seething, but I see their point. They, the alleged lawbreakers and scoffers of the law, should have been convicted, but then, our jury system is shonky, and often, the guilty walk free. Good. No jury trial. Well deserved, say I. Or do you think they did no wrong? I bet.

    • SPC 12.1
      29 December 2010 at 12:35 am

      The jury was able to decide the balance of justice in the case – after all the defendants admitted the act – that the jury was able to do so was resented by some who would have wanted the act to be judged separate from its context.

      It is the same balance of justice that allows public protest, yet while sometimes provison is made for it, on other occasions people have been prosecuted.

      It’s rather in this area, than some legal loophole that this case fell. Sure it’s an extreme example if the kind, given the value of the damage, but here the protest was over the use of the “asset”.

      • Swampy 12.1.1
        29 December 2010 at 2:44 pm

        I’m with the legal opinions that the novel legal interpretation they used was very creative and the loophole is being closed by the government.

  13. Swampy 13
    29 December 2010 at 2:30 pm

    In the Herald today there’s an article citing changes to legal aid including
    – Legal recipients will no longer have the right to choose their lawyer?

    I wonder how Power will justify that.

    • Tanz 13.1
      29 December 2010 at 2:53 pm

      Now I know why I voted National. Good on Power, and high time. National may yet retain my vote. Finally, some real change, and definately for the better. The judical gravy train is braking…!

      • orange whip? 13.1.1
        29 December 2010 at 3:29 pm

        for *that* you voted national? good to see you (and national) are focused on the big issues…

        • Tanz 13.1.1.1
          29 December 2010 at 3:39 pm

          No, for a myriad range of reasons. I’ve been disappointed for the most part, not much has changed, but this is a good start. Justice has been out of whack for years, some real courage from the Nats, to make change, as they pomised. At last. Key promised us a ‘brighter future’ Better late than never, some real and much needed changes, and justice is a good place to start. Hope it continues.

          • orange whip? 13.1.1.1.1
            29 December 2010 at 3:48 pm

            continues to swing the balance of power even further in favour of the almighty state and against the individual. nice one.

            • Colonial Viper 13.1.1.1.1.1
              29 December 2010 at 3:59 pm

              Righties love increases in state power when they think that it will be used against the masses.

              But hate increases in state power when they think that it will be used to regulate their financial and business dealings.

              Interesting eh?

          • Adele 13.1.1.1.2
            30 December 2010 at 11:24 am

            Teenaa koe, Tanz

            I totally agree with you, justice has ‘been out of whack for years.’ Since the signing of Te Tiriti o Waitangi the law has been unfairly used against Te Ao Maaori. So I too look forward to some real courage from the Nats, and the brighter future.

      • Swampy 13.1.2
        29 December 2010 at 8:23 pm

        So you think that the right to choose your lawyer should depend on whether you can pay for your defence or not?

        great idea, one rule for the rich and one for the poor

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