No jury trial for Pistorius

February 25th, 2013 at 1:00 pm by David Farrar

Colin Espiner writes:

 South Africa doesn’t do trial by jury. The republic abolished the system in 1969, over concerns black people would never get a fair trial. South Africa, along with most of continental Europe, Africa, South America and Asia, uses the Inquisitorial judge-only trial system. 

I’m very relieved. Because Oscar Pistorius can play to the courtroom and the media about how he desperately tried to resuscitate his dying girlfriend after “shooting her by accident”, and weep uncontrollably about his “terrible mistake” until the cows come home. There’s no jury of his peers to sympathise with him. 

I’m not saying Pistorius doesn’t deserve a fair trial. Quite the reverse. Rather unfortunately for him, that’s precisely what he’s going to get. 

He’s going to have to explain to a sceptical judge just how he managed to get out of his bed after hearing a noise in the bathroom in the middle of the night, without checking to see if his girlfriend was lying beside him, shoot four rounds into the toilet door without once inquiring who was in there, before bashing the door down with a cricket bat. 

He’ll have to explain why Reeva didn’t scream, the inconsistencies between his account and witness accounts of heated arguments and screams coming from the property leading up to the shooting, and the alleged 17-minute delay between the first shot and the final three. 

And there will be no gullible jury to listen enthralled by their proximity to such a famous man, to be bamboozled by science and DNA evidence, or to take their own prejudices and stereotypes into the deliberation room. 

Colin makes a strong case I have to say.

We’ve had our own fair share of controversial trials of late, and I’m not sure the jury system has been getting it right either. New Zealand, along with Britain and America, is in the minority in persisting with jury trials, and I reckon it’s time for a rethink.

It strikes me as odd that complex fraud and civil cases can be heard by a judge alone but that virtually any criminal trial for an offence punishable by more than three months’ jail has the option of trial by jury.

Off memory that is changing so that only offences punishable by two years or more will have the option.

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Nice to see Labour not automatically opposed

November 16th, 2010 at 10:00 am by David Farrar

The Herald reports on the sweeping changes to trials in the Criminal Procedure (Reform and Modernisation) Bill.

The one that will probably attract the most debate is moving the threshold for jury trials from a maximum three months to a maximum three years.

While the list of offences that would be affected is long, officials have advised Mr Power that the most common cases would be theft of between $5oppos00 and $1000; receiving between $500 and $1000; possession of a class A drug; common assault; and assault on a female or child.

I’d be interested in what the stats are for these offences, in terms of how many people convicted of them even receive a jail sentence at all. A maximum is just that – and generally never given out.

The opposition Labour Party’s associate justice spokesman, Charles Chauvel, said that while some change in the threshold for jury trials made sense, Labour would reserve its position until it had heard select committee submissions.

That is a very sensible position to take, and good on Labour for not being opposed just for the sake of it. I’m not 100% convinced myself moving the threshold to three years is the right point – maybe it should be two years – again would be good to see hard data on this.

Some of the charges no longer tried before a jury (with current maximum term):

SIX MONTHS
* Ill treatment or wilful neglect of child
* Possession or use of class A drug

ONE YEAR
* Possession of unauthorised seed or fruit

TWO YEARS
* Driving with excess breath alcohol (3rd offence onwards)
* Driving while disqualified (3rd offence onwards)
* Bigamy
* Infanticide

THREE YEARS
* Assault with intent
* Making intimate visual recording
* Aggravated careless use of vehicle causing injury or death
* Indecency with animal

Oh that is unfortunate. If these changes come through, I’ll never get to be a juror on a donkey sex case. I always thought if one has to be a juror, that would be more interesting that an assault or burglary case etc.

On the other hand these donkey sex cases tend to always be in Nelson or Christchurch, so I guess I would not have got one anyway. And add to that, that in 25 years of availability I have never once been summoned for jury service.

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Jury trials

December 22nd, 2009 at 3:00 pm by David Farrar

The Government has done something novel as part of a consultation. It has actually released a draft bill for purposes of consultation. This allows people to give feedback on precise details. The bill is based on the criminal procedure simplification project, so will be controversial within the legal profession.

The bill divides offences up into five categories of seriousness. They are:

  1. punishable by fine only
  2. punishable by a maximum term of imprisonment not exceeding 3 years
  3. an offence punishable by a maximum term of imprisonment of more than 3 years that is not a category 4 or 5 offence
  4. an offence listed in Schedule 1 of the bill (rape, wounding, kidnapping, arson etc)
  5. an offence listed in Schedule 2 of the bill (murder, treason, MP corruption, slave dealing etc)

It is proposed that the first two categories be dealt with by way of judge only trial. No Right Turn is hotly against this, and says it is a breach of the Magna Carta.  He concedes that minor offences do not currently have a right for jury trial, but says a punishment of three years is not minor.

The current law does not allow jury trials for charges where the maximum term is less than three months, so in effect the proposed change is to move the threshold from less than three months maximum, to a three year maximum.

I blogged back in May on this, and listed the offences I could find that would then be tried by a Judge only. They include indecent acts in public (two year max), aggravated assault (three years max), assault with intent to injure (three years max), assault on a child or female (two years max), and theft of less than $1,000 (1 year max).

I am comfortable with the threshold lifting from less than three months, but am not sure if three years is about right or too far. So I did some research.

First of all I thought, what do people actually charged with these offences end up serving. It is almost impossible to ever get the maximum sentence.

The percentage of convictions for an offence listed above, that even got a custodial sentence was very low – ranging from 3% for minor assaults to 15% for male assaults female. This is from Stats NZ 2008 stats.

Then we go to the Ministry of Justice conviction and sentencing report for 2006. Of the 15% who get a custodial sentence for male assaults female, the average prison term is six months. With parole it means out in three months. So 85% get no prison term, and 15% serve an average three months in jail (and these are probably people who have dozens of offences chalked up by then). Is that serious enough to need a jury trial, considering the delays that mean for the victim?

A minor assault has an average prison term of just 1.9 months, so on average out in 30 days.

For theft, only 6% of convictions get a custodial sentence, and the average sentence is 5.6 months so out in 90 days.

Only 2% of cannabis use convictions are custodial, and the average sentence is 0.9 of a month.

Now I have not checked every single offence with a maximum penalty of three years or less, so I am open to persuasion that a threshold of two years or even one year could be more appropriate, but for the most common offences, the resulting penalties are overwhelmingly non-custodial.

The Minister estimates this change would reduce the number of jury trials by around 1,000 a year. It would be useful to have that broken down by type of offence, so one could see what different it would make to have the threshold at say two years instead of three.

Finally, I was interested in what other OECD type countries do – where do they draw the line?

  • France – jury trials reserved for most severe crimes only
  • US – Supreme Court has interpreted the constitutional right to trial bu jury as only applying to offences with a maximum sentence of six months or more
  • Australia and UK – no threshold as far as I can tell
  • Austria – serious criminal cases only
  • Belgium – grave crimes only
  • Canada – only for crimes with a maximum sentence of five years or more
  • Germany – no juries, but lay judges alongside professional judges
  • Greece – a panel of three judges and four lay jurors
  • Italy – only for serious crimes like murder, and a panel of 2 judges and 6 laymen
  • Japan – From May 2009 jury trials resume but only for severe crimes
  • Singapore – death penalty cases only
  • Israel – no juries (as British did not trust the locals)

I find it interesting the countries with a jury made up of judges and lay people. Do teh Judges dominate the lay members of the jury?

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