Monday, 27 February 2012

Keeping Justice's Blindfold In Place

Blind Justice: The blindfold Lady Justice traditionally wears is to deny her the opportunity to be moved by either partiality or pity. Under our system of Justice only evidence brought before the courts can convict the accused. But the Sensible Sentencing Trust-sponsored "Christie's Law" would allow the suffering of victims to unbalance Justice's scales - fundamentally prejudicing the right of accused persons to a fair trial.

GARTH McVICAR is using the tragic death of Christie Marceau to secure a further erosion of New Zealanders’ legal rights.

In November of 2011 Miss Marceau was stabbed to death in her North Shore home and died in her mother’s arms. The man accused of attacking her had earlier been charged with her kidnapping. Over the strenuous objections of the Police, he had been remanded on bail to a house less than a kilometre from the Marceau home.

Mr McVicar’s Sensible Sentencing Trust (SST), with the full support of Miss Marceau’s parents, is now promoting what it is calling “Christie’s Law”: a series of measures which will make it much more difficult for judges to grant bail to people accused of serious crimes.

That Miss Marceau’s parents should want to prevent other families from enduring the horror and heartbreak which they have been forced to endure is entirely understandable. That Mr McVicar’s trust has fastened upon their grief in order to advance its private political agenda is despicable.

For there can be no disputing the SST’s radical right-wing politics. A brief perusal of “Christie’s Law” reveals that Mr McVicar and his supporters, by making the decisions of judges subject to a police veto, are attempting to undermine the independence of the New Zealand judiciary. They are also attempting to overturn what is arguably the most important of our legal rights – the presumption of innocence.

The presumption of innocence requires the state to prove the guilt of an accused person “beyond reasonable doubt”. And until such time as his or her guilt is proven, that person remains (and must be considered) innocent of the crime/s of which s/he is charged.

It is the presumption of innocence that makes the right to be granted bail so important. Without it, merely being charged with an offence could see the accused deprived of their liberty for days, weeks, months – even years. Time which, in the event of their eventual acquittal, can never be returned. The unreasonable denial of bail is, quite simply, an open invitation to serious injustice.

Of course, an absolute adherence to the logic of presumed innocence would be as dangerous as its persistent and unreasonable denial. To release accused persons whose actions, mental stability, and/or past history of offending render them a credible and serious threat to the safety of the public would be very wrong. Accordingly, we have given our judges the authority to refuse bail when, by granting it, people’s lives and property would be recklessly endangered.

In the overwhelming majority of cases that come before them our judges exercise this discretion wisely. But judges, like the rest of us, are fallible human-beings. In a tiny handful of cases they make a decision which, with hindsight, turns out to have been reckless and foolhardy. The decision to grant bail to the person accused of Miss Marceau’s murder clearly falls into this category.

The truly evil aspect of the SST’s promotion of “Christie’s Law” is that it pretends that the fallibility of our justice system is fixable. That if you threaten judges with sufficiently dire sanctions, and give police the power of veto over bail decisions, then the number of tragic mistakes will be lessened. What they leave unsaid, of course, is that in attempting to eliminate one kind of mistake “Christie’s Law” would almost certainly give rise to a host of others. Intimidated judges and over-zealous policemen would very soon begin to deny bail to anyone and everyone charged with serious crimes. The presumption of innocence would be turned on its head. Gross injustices, far from being reduced, would multiply.

New Zealanders should reject not only the measures contained in “Christie’s Law” but the very idea of attaching the victim of a fatal stabbing to such overt politicking. There is a reason why the prosecution of serious crime became the exclusive preserve of the state, and the SST’s posturing throws it into stark relief.

The administration of justice cannot be conducted impartially, or according to the dictates of reason, if it is in any way drawn into the emotionally charged environment of grief and anger to which the victims of crime, through no fault of their own, are remanded. It’s why Justice is always pictured wearing a blindfold. It is to prevent her from seeing the grief and anger of crime’s victims – lest, out of pity for their plight, she negates the rights of the accused.

No sentence which is driven by the raw emotions of crime’s victims can ever be “sensible”. Justice is not vengeance, and must never be allowed to become so. In using Miss Marceau’s name to achieve their political objectives, Mr McVicar and the SST are attempting to circumvent the duty we all share to keep Justice’s blindfold in place, and her scales in balance.

This essay was originally published in The Press of Tuesday, 21 February 2012.


Mark Wilson said...

A well reasoned argument.
However the SST and many others are entitled to ask why so many mistakes are made by Judges when the stakes are so high.
And with a Chief Justice as arrogant as Sean Elias there is never any recognition that mistakes have been made.
Who guards the guardians indeed?
If the Judicary refuse to listen to the people they lose their legitimacy and they are well on their way to doing so in NZ.

Anonymous said...

"It is the presumption of innocence that makes the right to be granted bail so important. Without it, merely being charged with an offence could see the accused deprived of their liberty for days, weeks, months – even years."

Well the Operation 8 people were banged up for weeks after merely being charged, what about that?

Anonymous said...

Contrary to the perception held by many, it tends to be only the Supreme Court judges who have a developed progressive approach to the law. Lower tier judges are, almost to the number, hard conservatives accompanied by all the attendant prejudices, and I would suggest many of their debatable bail rulings are often made for reasons of economy.

Anonymous said...

We only hear about the bad cases which make the news. We never hear about the cases where the bailee does not misbehave whilst on bail.

Judges are human and sometimes make human mistakes. The sensation hits us when there is a tragedy sadly.
I agree Chris that McVicar and his bunch of nutheads piggybacking on the Christie case is despicable.

Anonymous said...

The Dotcom case is an interesting contrast: the person is not charged with any crime in NZ and yet the state is pulling out all stops and fronting up with all sorts of arguments and speculation to deny bail, when the first substantive hearing on his extradition case may not be for 6 months. They have not claimed that he is a threat to NZers- if the state had put similar effort into the Christie case, no doubt the judge would have been persuaded to deny or restrict bail.

Monique Angel said...

Good on Garth McVicar. He is obviously more aware of the sociopaths and perverts that walk the streets. Judges are idiots these days; cases where plebs would make a better call than the judge are becoming common. At the very least there should be greater transparency so the public can ream it home if the judge is a dickhead. I hear the argument for bail, but given the likelihood of reoffending in stalker cases, there was no way he should have been bailed near her home. Our judges are ensuring a women's place is in the grave.

Anonymous said...

"Judges are human and make mistakes?"
Sorry, they're paid a lot more than the average Joe and in Christie's case - it's well documented that police provided overwhelming evidence for a case that Christie's killer should be denied bail.
I don't believe the proposals unreasonable based on this scenario or any similar.
We're not talking measly traffic offences or er, internet wheeling and dealing (the same Judge denied Kim Dotcom bail)
Perhaps Judges or at least the Judge in this case would be motivated by the OSH act where employers or service providers can be penalised for "failing to ensure that all practicable steps have been taken to remove a hazard." where death or in jury occurs from a mistake..
Why not some accountability from Judges in obvious violent re-offending cases?
There's been too many of these botch-ups now to be ignored.

Lisa said...

Anyone seen this:

Someone should get an outfit like MoonTV on to this. They'd have a field day.

Anonymous said...

I do hear what you are saying and agree in principle.
However I think it is not "the few" judges/magistrates that are getting it wrong.
The three strikes law would NEVER have been needed if the judiciary were doing their job properly and the rule of law wasn't being brought into disrepute.
This call is a result of a continuing dissatisfaction with our judiciary and their political or liberal leanings.
I think that until they get with the general populace or retire and are replaced it will keep on coming.
Lastly, the SST is not right wing, sadly you pop that one out for all the people you don't agree with.
It is an emotional painting word you lefties use to shut people up, which is really sad as sometimes you make a lot of sense.
When you lower yourself into diatribe normal people switch off and don't listen to you.
Stop it you are doing us all a disservice.
Mike Mckee Seatoun.

S McCormick said...

I agree with Mike regarding you labelling Sensible Sentencing Trust supporters as right wing radicals. This only highlights your ignorance on the Trust and your intolerance to views other than your own. You are concerned that tightening bail laws is a further erosion of New Zealanders legal rights. How about New Zealanders "Right to life, liberty and security of person?"
Judges have been delegated the task of sentencing by the community and community expectations must be taken into account. If this does not happen confidence in the administration of Justice dimishes, which appears is now happening. Courts must recognise and respond to the level of public concern. Chris your views are swimming against the tide.

thor42 said...

So "Christie's Law" would make it more difficult for people accused of serious crimes to be granted bail.

And the problem here is......?

Ever think about the rights of victims, Chris? You know, the ones on the receiving end of all of those Labour-voting crims?

By opposing the position of the SST, Chris, you simply give weight to the widely-held view that the left is soft on crime. Not surprising, given that so many of their constituents come from the underclasses.

The SST is doing nothing more than taking a position that lessons should be learnt as a result of this tragedy. A tragedy in which the offender concerned should never have been allowed out on bail.

The "three strikes" law is the best thing to happen in justice in NZ for the last 50 years, and yet Labour would repeal that too, if they got into power. This would strip them of any credibility to claim to be tough on crime.

S McCormick is right.
You're very much swimming against the tide with this.

Rebecca Templeman said...

If the so called piggy back people of the SST hadn't suffered loss of a loved one, I seriously wonder who would be fighting for a safer NZ. I am a member because our daughter was murdered and we have been through the judicial system. For the most part it served our daughter well, until the sentencing that is... A measly, disgusting 11.5yrs was handed down. Is that really the value put upon our children's lives, anyone's life?
I too am fighting for change with Christies Law, as I see the benefits that it can bring. We are not being unreasonable with our demands. Only serious and repeat offenders not be be granted bail. There too many offenders released who go on to offend whilst out on bail. 5082 defendants failed to answer to bail in 2007. In the same year 1313 people failing to answer to bail then went on to commit a further serious crime.
Christie's murder should never have happened and it did because Judge David McNaughton's bail decision and the current bail laws are inadequate. If judges were made to be accountable as with any other proffesional for their mistakes, then I feel a more dispassionate view would be taken. With the blessing of the Marceau family, we are doing all we can to help protect others and bring about a safer, more law abiding country.
Why is it, those who are quick to criticize the SST generally have not lost someone through murder. For the judges, Chris and other members of the general public who think that Garth and other SST members are a bunch of right wing shit stirrers who have nothing better to do... Walk the walk before you critises the grief stricken family members who see only to plainly what needs to be done.
The SST is a place where I receive comfort and strength with others who understand.
Great work Garth and all the little piggies that support you and your group!!!

Anonymous said...

What can be wrong with wanting the bail law revised to ensure that offenders of SERIOUS CRIMES are not bailed and that Judges performance is reviewed to ensure the saftey of the NZ public is not at risk? All seems like common sense to me.

If the bail laws don't need a review can someone please explain to me why in 81% of the cases where the charge is for a violent offence bail is granted, compared with bail being granted for only 31% of traffic offenders - It's a pity Christies attacker wasn't driving a car - that beautiful girl may still be with her family.

These laws need a review - c'mon Chris anyone can see that!