Practical considerations - 2

The big news locally over the past three weeks has been a rape trial. Now, normally rape trials do not figure much in the MSM other than a mention after the fact of the sentence handed down. It is not a case of "blase'" or minimising the importance to those affected. They are usually just under the radar. Perhaps the day of the dedicated "Court Reporter" - the old hack who could be found sharing a claret with Rumpole in Pomeroys - has gone?

No, this was something more than that.

First is the age of the charges. They date back 20 years, the complainant was 17 or 18 at the time of the alleged offences.

Second is the accused - three men, two ex-policemen and one currently third ranked (Assistant Commissioner) in the entire force. Well he was until he was suspended when the charges were laid.

Third is the aftermath. There are accusations of political interference in the Justice system, there is the cost (reportedly over $2 million), there are the "Not Guilty" verdicts, there is the dissatisfied plaintiff and there are three angry men.

There are questions that need to be asked, that are quite justified in my mind.

The first question, and the greatest of these comes not just from this case, but from a number of others as well - the Christchurch Civic Creche case (where now grown child witnesses have recanted their evidence citing "coaching", and there is evidence of selective evidence being presented and which ranks as this country's Salem Witch Trial); the Crewe murders (where Police blatantly framed up an ex-boyfriend, who has subsequently been given a full pardon by the Government); and the Bain murders (which is an insecure trial to say the least - yet to run its full course). On the other side of this coin is the trivial and the absurd - like a case reported at length on a news magazine programme last night involving a tiki (a traditional Maori pendant often having great importance) that had been buried with its owner; her grandson dug up the grave and "retrieved" the tiki from the casket. The local police have investigated and have decided that there would be no benefit in laying charges.

At what point does the government and its agencies (Police, Justice Dept, and the Dept of Courts) decide that a case is to be answered?

To bring that a little better into focus; there is the nature of the provable charge; there is the importance of the charge (obviously murder would have to rank considerably higher than shoplifting the local corner dairy); there is the strength of the evidence to support the charge.

It became apparent early on in the rape trial that it was going to be a case based predominantly upon the word of the plaintiff against the word of the defendants. To cloud that issue, the fact that intercourse had taken place - not once but on several occasions - was not disputed. The turning point of the whole case was whether there had been consent to the intercourse or not. Primary to that distinction was the relative "social positions" of the plaintiff and the three policemen - a young girl from a comparatively poor family and three well-known and respected policemen. That decision has been made through the verdicts.

So, how did that trial fit the question? I have little doubt that the Police prosecuted the charges with reluctance. In good part because of the age of the complaint, the evidence was comparatively tenuous as a result and open to interpretation, the fact that previous complaints to the police on the same matters had not been well handled, to a lesser extent the fact that one of their top men was involved...

But, please, notice that the potential cost of the investigation and proceedings does still not figure. But I submit that it must. Against that I must accept as "practical application of reality" the fact that cost is a factor that Police should take heed of when considering a case. While on the matter of "cost of justice", this is by no means the most expensive "Justice" meted out in NZ Courts. That "honour" goes in fact to a case taken by the IRD against an oil company for tax avoidance. The charges involved some $135 million, and last time I heard of it, the "Justice" had cost some $30 million (in the 1980s so probably equivalent to $100 million now). IRD won, including several appeals going all the way to the British House of Lords. But the debt has never been paid.

The second (and almost as important) is whether the accusations of "political interference" can be proven. That will come out in due course I have no doubt. In the morass that will be stirred are factors such as race (the high ranking policeman is a Maori), political alliances, political debts...

The third question is almost forgotten in the heat of the outcome - how do you compensate the accused for the impact the charges have had upon them, their families, their employment, their wealth... It is OK to point out that if they were found guilty no one would have batted an eyelid. It is OK to point out (or as one of the defendants admitted) that they were guilty of very immoral acts - not the least of which because they were all in "relationships" at the time - but not rape.

If you want all the sordid detail, search "Rickard" on www.nzherald.co.nz or www.stuff.co.nz. Pick your way through it all. There are some interesting little byways - including the Judge at the closing of the trial reminding the media of the permanent suppression of some of the evidence and the identification of some witnesses, and then musing briefly upon the internet and "uncontrollable publication".

And on that note, I will plead that full coverage has not been possible simply because of "practical considerations" and because the media have pumped as much out of the proceedings as they are able...

UPDATE - 4 Apr 06

The suppression of evidence and witness identification became an issue yesterday morning.

"Supporters" of Louise Nicholson (the plaintiff) were distributing pamphlets Wellington Central Rail Station, including matters that impinged upon the suppression orders of the Court. In an interview with one of the defence lawyers, the action was described as "a very blatant and intentional breach" of the Court Orders.

I have no idea what the suppressed evidence covers. I have no intention of even trying to find out.

There are two aspects to the question of suppression.

The first that the evidence and the names are released in open Court. Therefore anyone who was in the public gallery at the time would have heard the evidence or the names. There have been rare instances where "secret" witnesses have been used. The only ones that I can recall involved undercover police and SIS personel. That the Court Orders did not mention "secret witnesses" specifically rules out that as the rationale.

The second aspect that comes to the fore is the relationship between the suppressed evidence and names and the not guilty outcome of the trial. Given that those who are breaching the Court Orders are supporters of the plaintiff does not in any way determine the nature of the suppressed evidence. I go no further than that. It is an either/or - the suppression of the evidence influenced the outcome or it did not.