The denial of trial by jury to the eighteen Operation 8 defendants by judicial decree is now before the New Zealand Supreme Court. Though the New Zealand Bill of Rights Act, Judicature Act and Crimes Act all exhort the right to elect trial by jury, do not hold your breath that the Supreme Court will uphold the law and reverse the lower court decisions.
At the fore is the ease to which the still infant Supreme Court has repeatedly cast aside statutory guarantees to trial by jury in the most spurious fashion. The lower court reasoning that a jury would use improper reasoning in its decision-making against these 18 defendants sounds too Orwellian to stand in law. But the Supreme Court has been masterful in creating fictitious reasons why such laws have not mattered in the past.
Variously the Supreme Court has stated issues are too complex for juries, trials too long or, simply, made a broad reference that trial by juries are not fair to juries or judges, or have been denied in some case in some other country.
The seminal right to jury, which has been a linchpin in the English legal system for 800 years, is being destroyed by judicial fiat in New Zealand. If you think the effects will be benign, or even positive, consider the following Supreme Court decisions.
In 2009, the Supreme Court, when prohibiting trial by jury in Wenzel v Queen, surreptitiously tagged on an irrelevant opinion to obscure contravention of clear statute when it ruled “The proposed grounds of appeal are quite hopeless. First of all, it is an impossible argument that a fair trial requires a trial by jury.” The appeal did not state “fairness” as a ground: it relied upon Bill of Rights Act and Crimes Act guarantees. If this was not troubling enough, the Supreme Court relied upon a Canadian case, R v Lee, where the defendant did not show up for his jury trial, and then was denied one, as grounds why its decision to prohibit jury was consistent with the Canadian Charter of Rights and Freedoms.
Wenzel was facing 7 years in prison. In the subsequent judge-alone trial, he was sentenced to 5 years by District Court Judge Epati. In later overturning the verdict and ordering a new trial, the Court of Appeal pulled no punches in stating the Judge had failed fundamental principles of fairness and logic in finding Wenzel guilty. Equally troubling, the Judge dismissed charges against the lawyer who was Mr Wenzel’s co-defendant and gave that lawyer name suppression without justification and without providing reasons. Fairness by judge-alone?
In Solicitor General v Siemer last year, the Supreme Court covered up the fact that the High Court ignored Mr Siemer’s election to trial by jury by quashing the judgment and ordering a new conviction and penalty of three months prison, thereby meeting the Bill of Rights Act threshold for judge-alone trial. Proving the judges on the highest court are eminently more efficient at least than juries, the bench declared a new trial was not necessary because the Solicitor General’s unsworn submissions from the bar were sufficient to confirm guilt.
Then there is the case of Gregory v Gollan, where the Supreme Court, in 2009, reaffirmed the lower courts were correct to use discretion to deny Mr Gregory’s “application” for trial by jury. Gregory’s counsel responded to the Supreme Court that an “application” was not required and was not made. He asserted Judicature Act, section 19 A(2) gave Gregory the direct right to “require” a trial by jury. Because the Supreme Court’s actions were such a blatant contravention of the rule of law, Counsel requested Attorney General Chris Finlayson intervene in the public interest. Finlayson’s office responded simply that judicial independence effectively means judges can pick and choose which laws they want to apply in New Zealand. For its own part, the Supreme Court refused to be pulled into defending its seemingly lawless decision and simply ignored the evident inconsistency brought to its attention.
We may not consider this issue important now, but there are profound reasons why trial by jury is central to egalitarian legal systems. History will judge New Zealand jurisprudence on this issue of trial by jury. And history has shown us that public complacency is an elementary factor in degradation of the rule of law by those in power.