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Submission on Law Commission’s Discussion Paper

"Disclosure to Court of Defendants’ previous convictions, similar offending, and bad character"

(Date : February 2008)

Introduction

Submission on behalf of the Sensible Sentencing Trust:

    1.1. The Sensible Sentencing Trust requests to be heard in support of this submission.

    1.2 The address for correspondence in relation to this submission is as follows:

Garth McVicar
The Sensible Sentencing Trust
P O Box 701
Napier

Phone: : Office (06) 835 5521, Private (06) 834 9723
Mobile: 025 2487 919

Prepared by : Alan Monk on behalf of Sensible Sentencing Trust.

DISCLOSURE OF CRIMINAL HISTORIES

The Sensible Sentencing Trust is grateful for the invitation to have input into the debate on the topic of disclosure of defendant’s previous convictions, similar offending, and bad behavior.

The subject of defendant’s previous history/bad character etc are very important issues to many Trust members and the topic generates considerable dialogue whenever high profile offenders are eventually processed by the courts, whether convicted or acquitted, and knowledge of previous history become public knowledge.

It is no secret that many members of the public express similar concerns that the law prevents disclosure of previous offending etc prior to or as part of the evidence. The law is on the one hand simple in intent, but complex in interpretation. Numerous examples of case law exist around the aspect of interpretation.

We suggest that it is this difficulty in interpretation that leads the general public to take a simplistic view of how this law should be applied.

Regrettably, this inquiry seems to be motivated by the political necessity of appearing to respond to a high profile court decision, where two former police officers were acquitted on charges of sexual offending.

That aside the Trust is happy that the issue is being revisited with a possible outcome of simplifying this aspect of the law.

The Trust understands and accepts the basic precept that suspects must be judged on the evidence alone, and evidence legally tendered.

In the ordinary course of events laymen have no trouble with the law as written. However when the same set of rules permit habitual offenders to evade accountability and thereby return to the streets to find new victims then the general public believe that the law as written and applied has failed them.

This belief is further underscored when they learn that certain offenders have multiple convictions (and victims) previously.

In virtually every instance, the conviction and circumstances giving rise to those convictions is public information freely reported in the media. In this modern age of computers, websites, and databases it is only a matter of time before some group or individuals capture such data and make it available to the public at large. Indeed our own organization, Sensible Sentencing Trust, has such a database although it was never created with intent to defeat this aspect of the law.

As more and more people become aware of such databases there will be tendency to access these from the moment the alleged offender is named, to see if he has done it before.

If a member of the public has, through general interest, accessed such information, and is later called to jury duty, does this not create a dilemma for the courts? Put it another way; is the cat not already out of the bag?

It is evident that the courts already see this as a fate accompli and are meeting it with directions to juries “to disregard", or even ordering a new trial.

Interpretation of the law, is the area drawing the most comment vis-a-vis most case law. It is the view of the Trust that the approach taken in England is a more clearly defined process, i.e. a series of gateways, once entered opens up previous criminal offending or reprehensible behavior as possible evidence.

Each gateway thus opened has a very clear pathway leading from it which is easy to follow by all parties. What we see as important in these provisions is the fact that a gateway once entered then opens up all relevant material for use.

It is understandable that defence counsel in England do not find favour in the direction that the “gateway” legislation takes and we fully expect a similar response from defence counsel in this country if similar “gateway” provisions are to be introduced in New Zealand.

The Law Commission appears reticent to give the English gateways legislation too much favour particularly as it is relatively new law (only three years old). For our part we see the English reaction to this law as an endorsement of how it is working and the principles it embraces. In the three years that it has been operating it will have been applied in a far greater number of cases than it would have in that same time period in New Zealand. To add to that there are no known plans to change the law in any significant way, i.e. they are apparently confident in the way this “gateway” law is being applied and the outcomes.

“Gateway” legislation still has the presence of the “gatekeeper”, the judge, who will rule whether a "gateway" has been opened.

It is the Trust view that the judge in the form of a “gatekeeper” will continue to ensure an accused receives a fair trial.

The Trust would be prepared to consider some time frame provisions similar to that applied under American legislation (evidence not admissible if more then ten years have elapsed since date of conviction or release, unless court determines it is in the interest of justice that probative value supported by specific facts and circumstances substantially outweighs prejudical effect).

The very essence of a “fair trial” is beyond question, however it should not/must not be achieved regardless of “cost” to the rest of society. That, we believe, is where the present public disquiet has its origins. The application of the current law is being overly "fair" to the accused to the extent the societies’ standards are being compromised. i.e. we lock ourselves in so criminals can roam free.

“Scales of justice” should be more than symbolic sign of fairness to the accused, and should also embrace what is fair to society.

We note with some concern the law comission’s comments on page 13

“The value to be placed on a “fair trial” is a societal value judgement. Traditionally, and in current legislation, it carries a very high value indeed. The commission respects that high value, as of course it does the need for conviction of serious offenders, but does not see the need for the former as over ridden by the latter.”

The Trust would not begin to seek a reversal of these values, but does believe there is an urgent need to bring a better balance to the two opposing interests. This is the issue at the heart of most comments from our members.

This then leaves open the issue of how to “prove” evidence of previous history. If we are to avoid creating the situation of a trial within a trial then we need a simple system. A certified copy of relevant convictions might suffice as relating to criminal history, but would not meet the need for mere commission of offence, reprehensible behavior, or modus operandi.

Other organisations may have a better idea how such evidence might be entered in a simplied form.

The risk here is that this issue will be put in the “too hard basket”. The Trust does not seek any changes in this area of the law that might lead to an innocent person being wrongly convicted.

That said, it causes great distress amongst the public at large when they become aware of offenders beating the system only to return to prey on numerous other victims.

The Trust asks the question; is the law as written appropriate law, if it permits offenders to return to society to create 10, 20, 50, 100, or 200 additional known victims?

We say known victims, because this is the only verifiable data available, but everyone knows there are many other victims of unreported crime.

It is accepted that some of these “new” victims are created through other deficencies in the justice system, i.e. parole, bail etc and accordingly it is not possible to lay all the blame on the issue of “offender previous history”.

The discussion papers provided by the law commission are an excellent platform to begin this debate. We say begin the debate, because this whole area of law is indistinct as evident in the variety of views adopted by different countries.

One area the Sensible Sentencing Trust would like to explore further is the aspect of the defence "attacking" the reputation of prosecution witnesses, then the defendant not giving evidence themselves. We accept that prosecution witnesses can properly be challenged as to the correctness of their evidence. We also have no trouble with the character of the witness being challenged, if relevant.

The issue for the Trust is, when does challenge become attack? Defence counsel can challenge the witnesses’ memory, interpretation, eyesight, motives etc and leave the jury with the impression that the witness is a blithering idiot, zealot, fanatic etc.

This “challenge” on the witness is only just if the defendant submits himself to that same type of challenge.

The general trend of various decisions cited is to protect the defendant’s character from challenge unless the defendant advances his own “good character” or attacked the credibility of a prosecution witness.

Defence counsel go to great length with the accused to “advance” his good character by ensuring the alleged person is well groomed, dressed in a suit with tattoos covered where possible. It is human nature to make judgements of character on appearances, we all do it to a greater or lesser extent, and generally it is not far from the mark. If counsel choose to engineer "good character" by the manner he presents the accused to the court, when all parties know his character to be otherwise, should that information not also be available to the jury?

Moving to some of the specific questions posed in the law commission papers:

Page 14

We find little favour with the overall approach taken here. In the main it is business as unsual, existing provisions with some minor tweaking, or, "put it on hold for another five years."

Page 15

Chapter 2. We contend that society has changed in the context that there is a greater awareness of crime, the proximity of it, the incidences of crime, the impact on our lives and that of our children. We believe that society is more aware that a small section of offenders are being permitted to reoffend on countless ocassions with little or no accountability.

Chapter 3. (veracity) This is an area where we believe there is some room to bring a little more balance to the conduct of trials. The present situation is heavily weighted in the accused favour before the door trips open and his/her veracity can be opened up.

Chapter 3. (propensity) The application of similar facts rules are in the main applied to sexual offences and fraud matters. We consider that there is room for a slightly wider view on matters that go to propensity (i.e. extensive list of dishonesty offences, numerous offences for unlawful taking, numerous offences for burglary) the key word here is numerous. We do not at this time advance a number that would create the trigger point, but do believe that accused persons with 50, 70, or 100 previous convictions should not be permitted to attack the honesty, motives, integity, eyesight, hearing etc of witnesses, without the expectation that they in turn can be challenged.

Chapter 4. (other jurisdictions;)
England As already stated the Trust believe that the 2003 English “gateway”legislation has more to offer by way of a clearer pathway as to when certain rules take effect. It also provides a more balanced approach to any disclosure of previous histories etc.

Australia. There does not appear to be anything significant that we can glean from our Australian neighbours.

Canada. Of interest in this section was “witness to include defendant” and in event of a denial of previous convictions they may be proved by “certificate containing the substance and effect only, omitting the formal part of the indictment and conviction.”

USA. Nothing to be gleaned.

Chapter 6. (a) Can be met by adopting “gateway” model

Chapter 6. (b) Trial by judge alone is only an option where there has been a very public disclosure of previous history and completely ignores any situation where a juror(s) have on their own volition accessed this information via the internet etc before or whilst a member of the jury.

Chapter 6 (c) At this time we are open to some sort of time line but have not settled on a number.

Chapter 6 (d) This is always a matter of conjecture as we rarely know what is discussed in the jury room. We all know the games that counsel play outside of evidence and the jury are directed to disregard this or that, but do they? If we were certain, counsel would not bother to even try it on, but they still do, so we must believe that some of it sticks in the minds of jurors.