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A rod for their own backs
By Steven | April 7, 2011
In the past week or so, both Fran O’Sullivan and Brian Rudman have assailed the courts for removing the Urewera 18’s right to a jury trial. Both are troubled that the reasoning behind the decisions (from the High Court, and then the Court of Appeal) is suppressed. Both say it’s difficult to see how the issues can be so complex as to warrant removing such a fundamental protection.
I’m inclined to wait to see the judgments before slagging them off. I note that the trials are slated for 3 months, and that this is much more than the 6-week threshold at which the Law Commission said it’s quite an imposition to expect jurors to sit. I wonder whether there may indeed be some complexity in directing a jury to about which parts of the 3 months’ worth of evidence applies to which defendant(s). And the decisions may contain reference to evidence or arguments that jury would not be able to see, which may justify suppressing them, on the grounds that if there’s a further appeal, the Supreme Court may yet order a jury trial.
Still, I think these columns, both by thoughtful journalists, serve the judges right. I find it difficult to believe that the whole of the judgments needed to be suppressed. Surely much of the reasoning could create no prejudice in the minds of a future juror. And these are publicly significant decisions. Where’s the justification for suppressing the whole lot? How can this be compliant with the Bill of Rights?
Well, in the High Court anyway, no one asked. The judge simply suppressed the whole judgment, including the outcome. When the Crown suggested this went too far, the judge called a conference. Then she simply deferred to a defence request that the result of the decision was all that could be un-suppressed.
Two things here. Note that it’s the defendants who are asking for this suppression. And note that we shouldn’t be quick to criticise a judge in a high-profile and complicated case who errs on the side of caution to protect what the defendants regard as their interests.
Still. There’s also the public interest to consider. The media is being suppressed from conveying this information to the public. The public loses – right when it matters most – the ability to understand and debate the reasons for this landmark ruling. The judges are supposed to protect those interests too. Especially where the defendants did not seem to be required to come up with any particular justification for the suppression – at least, none that was recorded in the judge’s minute, and there wasn’t so much as a mention of the Bill of Rights and its requirement of a demonstrable justification for such suppressions.
I don’t know whether there was much argument on the point in the Court of Appeal. But judges lose the right to complain about unfair treatment when they deny us the right to properly evaluate their decisions for no good reason.
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