Editorial: justice served?

by The Listener / 14 October, 2013
The Privy Council’s decision in the Lundy case is a clear reminder that New Zealand needs the widest possible legal pool.
The Privy Council’s decision to overturn Mark Lundy’s conviction for the murder of his wife and daughter has spurred unsettling new debate over how well our justice system serves us.

There was national anguish about the brutal killing of Christine Lundy and seven-year-old Amber, so it is alarming to learn, and at so late a stage, that the New Zealand courts failed in such an intensely scrutinised case.

Mark Lundy (centre) leaving the funeral service for his wife and daughter in 2000. Photo/ Mark Mitchell

Although the Privy Council’s findings, in a number of cases, of serious errors in our courts’ processes have not always been politically convenient or popular, we have been better off for access to its depth of jurisprudential expertise. Yet that access is fast running out. Only cases that pre-date our abolition of links to the council may be appealed before it. It’s likely the Teina Pora case – a murder conviction against which immense public sentiment has built up – will be the last criminal appeal the council will hear from New Zealand.

The Government has ruled out any attempt to restore the council as an appellate court for New Zealand, even though it opposed the Labour Government’s abolition of our links with it in 2003. The iniquity of Labour’s decision to make such a profound constitutional change with so little consultation still rankles. Since even the legal profession was sharply divided over the move, the decision should at the least have been subject to a neutral public information campaign and referendum.

One argument against the continued links was the vast time-lags and expense entailed in making appeals. How is it, the public asks, that so many years on, a person who has been jailed and widely reviled for a terrible crime is found to have been the victim of an unsafe conviction? People’s faith in the justice system is always shaken by such reversals, and they create confusion. The success of the Lundy appeal, for instance, does not mean Lundy is innocent, as has been claimed in some media, but simply that he was treated unfairly. Now all concerned face the harrowing process of a retrial, although the crime was committed 13 years ago. If Lundy is not re-convicted, we will face the same emotive and politically charged quandary as with David Bain over the question of compensation.

It’s hardly surprising that calls for a special independent review commission to deal expeditiously with contentious cases have resurfaced. However, Labour considered this while in office and concluded it would replicate and/or add to existing appellate processes with no guarantee of a time or finality-of-resolution benefit. The current Government has little enthusiasm for the idea, either.

It may help in some cases that Justice Minister Judith Collins is legislating to force judges to stick to new time constraints on themselves, with the unspoken corollary that if they don’t improve, the Government will impose arbitrary time limits. By saying pointedly that she does not accept judges’ protestations that the system’s delays are workload-related, she has also tacitly accused the judiciary of being either slack or too detached. As a Justice Minister, she is rightly sensitive to justice delayed, including, in one case, an Employment Court judge taking two years to issue a reserved decision.

But time restraints aren’t the only issue. Why, given our system’s divorce from the Privy Council in favour of New Zealand’s senior judges, did the Bain compensation issue end up with a Canadian judge? That suggests we still sometimes need the impartial input of independent foreign judges. In which case, why not use the Privy Council, provided the process can be expedited? After all, we have reversed Labour’s decision on our honours system. Or perhaps we could subscribe to Australia’s proposed Criminal Cases Review Commission. Many other bodies have become not just Australian but Australasian entities.

There is public disquiet about other aspects of our justice system – among them the failure, following the mass-refusal of the Kahui family to testify, to consider joint negligence prosecution of the entire family for the abuse of the twin boys.

But the issue that needs most urgent debate is whether, in a nation with such a small population and tiny legal and judicial gene pool, those who run our legal system have become a little too self-satisfied with their prowess, despite growing evidence that defendants, claimants and victims are too often ill-served.
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