#4 - Matt Bannan 2008-02-05 21:16 - (Reply)

Altering the Bail Act as a means to reducing the prison population is absolutely typical of the short-sighted, knee-jerk, government of Helen Clark. However, this matter gives rise to critical issues that need urgent attention. *The New Zealand justice system must strike a balance between protecting the community from alleged offenders and honouring the presumption of innocence*. As a Barrister working in the field of Criminal Law, I am frequently appalled at the ever-increasing delays of jury trials. Many alleged offenders are spending one, two, and even three years behind bars before they are brought to trial. More often than not, such persons are eventually convicted and their time spent remanded in custody is subtracted from their sentence. That is fair enough. However, a significant number of such persons are eventually found ‘not guilty’ or otherwise acquitted of the alleged offence. Others may be found guilty, but are subsequently sentenced to imprisonment for a period that is less than the time they spent in prison on remand. For these people, there is no recompense or recourse for the extra time (often years) spent in prison. Most New Zealanders, sitting comfortably in their own homes, with respectable jobs and families are generally dismissive of the plight of the above persons; invariably stating that the person brought the situation upon him or herself by choosing the lifestyle they did, or by committing crimes in the past. As a practitioner, I believe this sentiment ignores two important realities. Firstly, it is inherently wrong (morally and legally) to subject people to ‘unfair legal outcomes’ based on either their chosen lifestyle or previous indiscretions. Previous convictions can be justifiably relevant when determining whether to grant bail and, following lawful conviction, when a person is sentenced. However, they should not be used to justify palpably unfair outcomes. Secondly, the “persons” noted above all too often include ‘first-time-offenders’ and/or persons of otherwise respectable backgrounds and families. While the media pounces upon high profile cases, the public will never hear a single word about the average ‘Joe Bloggs’ with a wife and three kids in Glenfield, who was in the wrong place at the wrong time. Unfortunately for Joe, the Police believe he is guilty of a very serious crime and that he may interfere with witnesses and/or evidence if granted bail. Joe then spends one and a half years of his life behind bars, before he is brought to trial where it is found that he may not be guilty after all. Indeed, the public seldom hears anything about such injustices. It is all too easy for those who rarely, if ever, stand accused of a crime, to sit back and demand the balance be weighed strongly in favour of public safety. Unfortunately, it is always those exact people and/or their families who wail and cry inconsolably when they unexpectedly find themselves accused. If anyone thinks only the guilty are convicted or only the guilty are denied bail, they need a healthy dose of reality. I am the first to accept that *the presumption of innocence* cannot reign supreme. However, neither can we imprison without trial all those accused of serious crime – especially when they are being imprisoned for several years before their guilt is determined. However, we can improve dramatically upon the current abhorrent state of affairs. The answer, in my opinion, lies in the Bail Act. As noted, Labour’s latest amendment to the Act is typically short-sighted. Labour has effectively created a different, and lower, threshold for granting bail. In the interests of justice, Labour’s amendment should be repealed and the previous threshold should be reintroduced. However, an accused person should be able to reapply for bail *under a lower threshold* if a specified state of affairs arises. For example, if an accused is denied bail, but has not been afforded the opportunity of a trial for a specified period, then the person should be able to reapply for bail under the lower threshold. Such an amendment would uphold the value of protecting the public, but would also honour the presumption of innocence. It would also provide an incentive for more timely trials. The suggested amendment would be a step in the right direction. Of course, it would also be little more than a legislative compromise between two competing interests. The ultimate solution to the problem, not surprisingly, requires money. The heart of the problem is the unacceptable delay in bringing a person to trial. The statistics relating to trial delay are simply mind-boggling. “Justice delayed, is justice denied”, yet the New Zealand justice system today countenances trial delays that would have been considered “third world” twenty-five years ago. The thin end of the wedge has become thick and unpalatable. As well a building more prisons, we need to build more courts. We need more judges, more prosecutors, and yes, more police. ‘The presumption of innocence’ lies at the very heart of a modern, civilised system of justice. The fact that few laypersons understand its importance does not diminish its value – it just makes it harder for a righteous government to sell it to the electorate. The crux of the problem is that our justice system is perceived as just another government department competing for expenditure. This is wrong. A country’s justice system (including Police Force) must be a priority. If a country can provide safety, stability and fairness to its citizens, it has a foundation on which all else can rest. Justice must take priority – beginning with the Bail Act.