Friday, 19 November 2010

No Second Term For "Efficient Totalitarians"

George Orwell's Chilling Image: "If you want a picture of the future, imagine a boot stamping on a human face— forever." With his latest legislative assault on our civil liberties, the Minister of Justice, Simon Power, has not only pulled the boot onto his foot, he's lacing it up.

A SECOND TERM for National? Not if we’re serious about protecting our civil liberties.

On Monday, 15 November 2010, the Justice Minister, Simon Power, secured Cabinet approval for the introduction of the Criminal Procedure (Reform and Modernisation) Bill – his 526-page "reform" of the way the State treats New Zealanders accused of a criminal offence.

If that last sentence jars a little in your ears, it’s because the State generally prefers to describe the citizen’s experience of criminal prosecution as "The Justice System".

But "Justice" is the outcome we all hope the process will deliver. The process itself is an altogether different phenomenon. And, as anyone who has ever been arrested and brought to trial will tell you, it is far from pleasant.

The first thing that strikes you upon being arrested is the extraordinary disparity, in both power and resources, between you, the citizen, and the State agencies into whose hands you have fallen.

And those "hands" are anything but metaphorical. Police officers really do lay hands on you. You’re tossed into a malodorous concrete cell, a steel door slams in your face, and you’re "held in custody" until such time as they, or a judge, decide to let you go.

No one who’s ever suffered this deprivation of personal liberty ever forgets it. To say it inspires something close to pure panic seriously understates the experience of being locked up. Some people simply cannot endure it – as the grim tally of holding-cell suicides attests.

And have you ever wondered why they call what happens next a "trial"?

When you, "the accused", enter a courtroom the first thing that strikes you is how many people there are NOT on your side.

There are the Police officers, of course, the ones responsible for your arrest and detention. There’s the Crown Prosecutor – surrounded by a team of thin-lipped lawyers and clerks. Assisting these formidable-looking personages is another team of austere court officials. And presiding over them all is the Judge – another lawyer who, prior to being "elevated to the bench" by a bunch of politicians, was probably also a Crown Prosecutor.

And what have you, "the accused", got? Who’s on your side?

Strange as it may seem, the most important thing you’ve got on your side is history: the long history of ordinary people’s struggle against the overwhelming power of the State. Hundreds of years of subjects and citizens imposing upon the agencies of Crown and State a set of rules designed to protect all those unfortunate enough to fall into their hands.

Rules that make it possible, at least some of the time, for the outcome of these grotesquely unequal struggles between ordinary people and the State to be worthy of the name "justice".

Like the rule that the accused must be considered innocent until the State is able to prove him guilty. Or the rule that no accused person can be forced to incriminate, or testify against, himself. Or the rule that the State must disclose to the accused all the evidence which it claims to have against him. Or the rule which says that the accused must be permitted to confront his accusers. Or the rule that says he is entitled to professional legal counsel.

Or the most ancient and important rule of all: the rule which says the accused is entitled to be judged by a jury of his peers.

Because if anyone is on the accused’s side in a court of law it’s the twelve ordinary people sitting in the jury box. The twelve ordinary people the State is required to convince "beyond reasonable doubt" that the accused is guilty.

The twelve ordinary people which Simon Power, in the name of efficiency, is proposing to remove from the courtroom for all but the most serious crimes.

Mr Power is also proposing to dilute many of the hard-won protections against arbitrary state power described above.

Small wonder that Dunedin lawyer and Vice-President of the New Zealand Law Society, Anne Stevens, told the Otago Daily Times that the Criminal Procedure (Reform and Modernisation) Bill, introduced to Parliament on Monday, sets up the "efficient regime totalitarians dream about".

Re-elect a regime of efficient totalitarians?

Not if the Criminal Procedure (Reform and Modernisation) Bill goes through unamended.

Not in the thousand years it took us to win our rights and freedoms.

Biographical Note: During the 1981 Springbok Tour, Chris Trotter was arrested, charged, photographed, fingerprinted, held in a cell for six hours, released on bail, eventually brought to trial and triumphantly acquitted of the heinous crime of "Obstructing a Footpath".

This essay was originally published in The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star of Friday, 19 November 2010.


Anonymous said...

This is a travesty. Get stuck in. Crown Prosecutors have no interest in justice, only winning. Unless you can afford an equally driven ego-maniac as a defense barrister, you may as well be up against a Hitler Youth Assizes.

Simon Power needs a whack on the proverbial snout here. Juries do sometimes get it wrong but the prosecution have no motivation to get it right. To 'convict' is their job description, the jury is the buffer to all unjust conviction.


Anonymous said...

National have liberated the country from Left-wing madness, political correctness, and the Fuhrer knows best...NZ is lighter and brighter because of the Nats, even with the smile and wave, Key, the only fly in the otherwise lovely ointment.


Justin H said...

A very astute post Chris. When these 'amendments' are considered alongside the drastic cuts to the legal aid budget it becomes alarmingly clear that there is all but nothing standing between the state and the rapidly growing class of citizens who cannot afford private lawyers but still earn more than the pittance that cuts off eligibility for legal aid.

This government has, with two or three swift slashes of the razor, made access to justice the sole preserve of the wealthy.

A word of warning to the Government: assault the Bill of Rights at your own peril.

roben said...

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Shona said...

I am disturbed and frightened by this latest assault on our fundamental rights and freedoms.Here in the north of NZ the police routinely abuse their power where the young are concerned. Particularly young men. They are used to dealing with an uneducated population and get away with many travesties of justice which blight and often destroy young people's lives. I brought a sucessful complaint against the police over their illegal treatment of my eldest child. I am so thankful I was educated in Otago and au fait with my basic legal rights before I left high school.The upshot of my son's experiences resulted in him educating himself and his friends about their rights and how the justice system functions. Power thinks he can get away with this because of widespread ignorance and genuine fear.

Adze said...

Godwin's Law at comment #1. Impressive.

peterquixote said...

Chris says:

" a second term for National? Not if we’re serious about protecting our civil liberties"

latest results from by election in Mana suggest three terms for NZ NAT Govt.

Many more arses to be kicked yet dude. The world is changing away from socialism faster than anyone could have predicted.


Mark Wilson said...

The contra argument is of course that too many guilty go free or are wet bus ticketed so can continue with their mayhem and carnage.
It's called the law of unintended consequences and the left has made it so hard to convict and penalties so light of course you will get a backlash.
The really cool thing is the 3 stikes bit - hard to harm the public when the keys are in the duck pond.
After Mana I don't think the Nats will be quite as worried as the left are.
How sad - never mind.

Anonymous said...

Great summary Chris. What scares me is the number of people I have come across (small sample, and, unscientific as it is) who simply have no opinion on this and other legislation passed.
"I like John Key" is about as deep as it gets. This could be a sad reflection on my social circle, or, (as equally sad) a sign of the PR ability of the Nats to hold it's 2008 support, free from scrutiny from its own base.
I like your sentiment, but fear that people aren't thinking similarly (rationally or critically) at the ballot box.
Please keep it up.
Also, LOL at Adze's godwin's law observation!!!

Anonymous said...

Adze, so there the prosecution rests it's case.


Victor said...

I share the overall concerns of this post and am a permanent member of the defence of hard-won freedoms brigade.

But I do question whether Trial by Jury is the bastion of rational liberty that the post assumes.

There has been a long run of murder cases in which juries have voted to bang people up on pretty slender evidence (e.g. Watson, Lundy, Bain).Would professionals have done a worse job?

Shona said...

Lundy - a piece of his wife's brain tissue was found on his clothing, his car was tracked via his cellphone travelling to Palmerston North on the night of the murder.Bain- the police blew it they contaminated the crime scene disallowed vital evidence and illegally destroyed other evidence: Watson should not have been convicted on the evidence presented and then there is the appalling miscarriage of justice where Peter Ellis is concerned. He is an innocent man the case a total lie that destroyed families and David Dougherty another good man blighted by our incompetent system.3 strikes, wet bus tickets what a load of RWNJ gibberish. These are people's lives we are talking about. My son is now earning $170, 000 p.a in Aussie in a secure job. Our system would have incarcerated him given enough time. Our police are corrupt as is our government and our judiciary is overworked and incompetent.And there are idiots on here who think it's ok to take away a vital age old part of the judicial defence. Fuckwits! I may yet be forced to retire in Aussie.

Victor said...

Well Shona

It looks as if you agree with me over two of the three cases I cited.

In the remaining case, you discount the possibility of tampered evidence that you accept in one of these other two cases.

And then you add two more cases which, you say, were also miscarriages of justice.

The only conclusion I can reach is that, if our judges are incompetent, then so are our juries.

I'm not sure what the solution is and it may be a case of "better the devil you know". But, either way, it seems as if justice has a hard job prevailing.

jh said...

we the public , in order to uphold justice must bear the brunt: it is better that Two innocent people are murdered, lest the civil liberties of the citizen are usurpt by the facist National Party!

Shona said...

Victor my beef is with our police force can't you see that?Under resourced for years and lowering the standards for admission to the police has resulted in the mess we have now.It is the police who gather evidence. They are believed by the judicary. The legal aid system is withering and dying due to the continual attacks on it by state. a.k.a the class warfare that is occurring while we avert our gaze. And we are continuing to lose our best and brightest young people overseas.Who wants to grow old in a fascist state??? NZ has become a shadow of it's former self.

Victor said...


I do see the point you're making now that you've made it.

My question is simply whether the gullible public from whom we draw jury members (i.e. the same people who voted for Mr Smiley)are better equipped to deliver justice than our not particularly competent judges.

It goes deeply against the grain for me personally to cast doubt on the efficacy of trial by jury. But, of late, I've not been impressed by the results.

And I heartily concur with most of your other sentiments.

Victor said...


My apologies.

I've re-read your first post which puts your second post in context and makes your meaning perfectly clear.

Good luck to your son.