Burden of proof

by Pamela Stirling / 15 April, 2006

The Wellington women who distributed leaflets containing suppressed information on the Louise Nicholas case did so because they believed suppression orders in such cases were the "worst kind of injustice". In that, they are wrong. In every court in the democratic world it is the conviction of the innocent that is rightly deemed the worst kind of injustice.

And it is for that reason we must jealously guard the right of defendants to a fair trial. It is precisely in the heat of powerful public emotion - talkback radio ran hot on the issue last week - that those protections and safeguards count most. We do not improve the position of complainants by attacking defendants' rights. Nor by following majority opinion. After all, until recently the majority accepted the legality of rape within marriage.

But although it is right that an onerous burden of proof should be shouldered by the state, and the rules of evidence uphold that, one of the most important tenets of our justice system remains an open trial process. And although the Wellington women's conduct can't be condoned, their actions may well signal that it is time to hold a debate on whether free speech is too easily yielded to fair-trial values in New Zealand. Indeed, what may force this issue is the availability now of such information on the internet.

Why is it that we do not trust juries to have the judgment to distinguish the evidence in court from what they may hear elsewhere about a case? Juries are already warned about prejudicial information and beliefs. The Court of Appeal has itself pointed out in cases involving gang members that "undoubtedly there is widespread prejudice against them, yet juries still acquit or fail to agree on occasions, indicating that, when confronted with an actual case, they can be expected to carry out their task responsibly in the light of the evidence".

But there remains enormous inconsistency in the granting of suppression orders. Professor Philip Stenning, recent director of the Institute of Criminology at Victoria University, believes that New Zealand has the most stringent name-suppression law in the common law world. Indeed, there is not just name suppression but fact suppression, issue suppression and sometimes even case suppression. If we believe all this suppression is necessary in the interests of justice, we are in danger of putting ourselves in the ludicrous position of saying that in the United States - where first-amendment freedoms forbid such bans - there can be no fair trials.

Scott Optican, associate professor of law at Auckland University, advocates the use of voir dire when selecting juries - a preliminary questioning of jurors - to screen out those with preconceptions and prejudices. Instead, he says, we have a system "that treats the public like idiots". To ring-fence the minds of 12 jurors, we suppress the rights to information of four million New Zealanders. Others, however, maintain that we are simply confusing what is in the public interest with what is of public interest.

These are not simple issues. Witness the case of Peter Howse. When a 16-year-old rape complainant accidentally let slip on the stand in Wellington that Howse had just been released from prison, a mistrial was declared. At the new trial, this vulnerable young woman was humiliated on the stand; called a liar; had her sanity questioned to a devastating degree. Howse was acquitted and her mother disowned her for lying. DNA tests later proved that it was indeed Howse's semen. But Howse - a paroled murderer who had killed a young woman - had by then walked free and gone on to sexually attack three other young women.

Would it - should it - have made a difference had the jury known his past? Would knowing more information in such cases increase the pressure for options such as a "not proven" verdict? Or would that simply jeopardise an innocent defendant's right to clear his name?

We cannot just avoid such issues. If rape complainants do not have enough confidence in the system to come forward, their access to justice is denied. Perpetrators will come to believe that they can act with impunity. And that ultimately threatens the criminal justice system itself. These questions must be debated. And openly.

Latest

China could be using Taiwan as a testing ground for disinformation campaigns
102550 2019-02-20 00:00:00Z World

China could be using Taiwan as a testing ground fo…

by Gavin Ellis

A Taiwanese diplomat’s death in Japan has become a symbol of the consequences and dangers of disinformation.

Read more
The best way to beat food cravings? Fill up on the objects of your desire
102087 2019-02-20 00:00:00Z Nutrition

The best way to beat food cravings? Fill up on the…

by Jennifer Bowden

Research has shown that dieters’ attempts to resist eating certain foods appear to lead to cravings for those foods.

Read more
Deepfake: How disinformation fools our brains and damages democracy
102545 2019-02-20 00:00:00Z Tech

Deepfake: How disinformation fools our brains and…

by Gavin Ellis

Message manipulation using bots, algorithms and, now, AI software is making it harder to know what’s real – and threatening democracy itself.

Read more
Move to introduce digital tax for foreign companies profiting online
102519 2019-02-19 09:23:12Z Economy

Move to introduce digital tax for foreign companie…

by RNZ

New Zealand is lining up to introduce a new tax on multinational companies that make money out of online goods and services in this country.

Read more
National's high-risk gamble on marijuana and euthanasia
102484 2019-02-19 00:00:00Z Politics

National's high-risk gamble on marijuana and eutha…

by Graham Adams

Having polarising MPs like Paula Bennett and Maggie Barry leading the opposition to popular reforms could be kryptonite to the National Party.

Read more
Reflections on my encounter with the charming Dan Mallory
102482 2019-02-19 00:00:00Z Profiles

Reflections on my encounter with the charming Dan…

by Michele Hewitson

He penned a bestselling thriller, but as Michele Hewitson discovered, author Dan Mallory also proved himself to be a charmingly adept bullshit artist.

Read more
Sounds of summer: Notable Kiwis name their favourite summer songs
102500 2019-02-19 00:00:00Z Music

Sounds of summer: Notable Kiwis name their favouri…

by Phil Gifford

How music can transport you back to your most memorable summer.

Read more
Inside the close-knit community that lives along the Cromwell-Tarras Rd
102505 2019-02-19 00:00:00Z Travel

Inside the close-knit community that lives along t…

by Mike White

Mike White heads up the Cromwell-Tarras road to merino and wine country.

Read more