 | NORML News: Law Commission courts report is good news, if implemented |
 you and the law civil rights info @ www.youthlaw.co.nz
BY WILL DE CLEENE, Norml News Autumn 2004
The Law Commission has recently released a review into New Zealand's court system which calls for an overhaul of the current convoluted and alienating system. There are many spots of hope for cannabis users in the report. Read at its optimistic potential, it could see some cannabis offences removed from the statute books altogether!
In Delivering Justice For All; A Vision for New Zealand Courts and Tribunals, recommendations are made to replace the District Court with a Community Court, Primary Criminal Court and Primary Civil Court. The Community Court will hear most, if not all, cannabis offences. Offences with sentences up to a maximum ten years imprisonment will be heard in the Community Court by a judge. There will be no option for jury trials in this court.
At first glance, this is bad news indeed. For over a century, Kiwis have been entitled to trial by jury for any offence punishable by at least three months' imprisonment. This was affirmed in the Bill of Rights Act 1990. Jury trials are essential for 'Trojan horse' jurors to express their repugnance of stupid prohibition laws by finding cannabis offenders not guilty regardless of evidence. Check out the related news blurb to see another attempt at jury-tampering. Thankfully, the Law Commission report is painted on a broader canvas.
Wide consultation, from High Court judges through to end-users of the court system, shows that the current system is "complex, confusing and alienating to the majority of New Zealanders."
Delivering Justice For All recommends every citizen facing their day in court should be entitled to at least one expert consultation before the trial date. The present system sees overworked duty solicitors handing out only the most superficial advice on the day. In addition, police are advised to alert offenders to the Police Detention Legal Assistance Scheme. This free legal service already exists, but the police are under no compulsion to actually tell people in custody about it.
The biggest bud of hope is in Recommendation 32 of the report, which states: "The minor offence regime should be examined to be determine whether some minor offences should be reclassified as infringement notices, or removed from the statutes and regulations altogether."
Minor offences are classified as punishable by a fine of up to $500, which is the maximum fine for possession of cannabis under the Misuse of Drugs Act.
The Law Commission strongly pushes for the Police Diversion scheme to be replaced with a formal caution system. Concern is raised that the current process oversteps the police's constitutional power, empowering them to instigate both arrest and punishment proceedings. In short, that means the Legislative arm of government is buggering with the Judiciary. Workplaces are covered by a verbal and written warning process that provides intermediate stages before the big guns are brought out, but an equivalent system for minor offenders does not exist.
Either police let you off or you are charged and risk a criminal record. There is no middle ground.
A formal caution scheme would use the police's existing powers of discretion to determine whether less serious offending is really worth all the paperwork and wasted time.
Instead of cranking up the legal machinery every time someone lights a doobie, the Law Commission recommends police hand out formal cautions to act as slaps on the wrist. Although a trip to the cop shop could still on the cards, at least a formal caution beats going to court and getting a criminal record.
While well-intentioned and noble in purpose, the Law Commission's report still risks getting sunk. The report did not include a budget, and Delivering Justice doesn't look cheap. When pushed for detail on some implications of the report, Justice Minister Phil Goff told the Herald "We'd like to get a lot of public feedback." You heard the minister. Check out the report at www.lawcom.govt.nz and get writing!
The government has six months to reply to the Law Commission's report, so feel free to send Mr Goff some public feedback on the issue.
In related developments, Minister of Justice Phil Goff intends introducing legislation to enable 11-1 majority jury verdicts.
Majority verdicts rest on the idea that juries may be 'nobbled' by organised crime getting to a juror and intimidating them into causing a mistrial, like in the Sopranos. Unfortunately, majority verdicts also nobble "jury nullification" - a principled juror's right to find a defendant Not Guilty on the basis of the law itself being unjust. Majority verdicts would mean this would no longer cause a mistrial, although they may also mean more jurors are prepared to stand up to be counted, as they would not face the same pressure to conform to the majority view.
Tell your MP what you think of Reality TV-style majority voting on juries. See NORML News Autumn 2003 for further details on jury nullification.
Pull Quote: The Law Commission's report recommends a police caution scheme for minor crimes such as cannabis possession, which should see fewer people hauled before the courts, and in prison.
SUGGESTED LAWYERS Whangarei: David Sayes 09 4382154; Nick Ledass 09 4384039; Wellsford: Gary Sellars 09 4238022; Auckland: Peter Winter 09 3797658; Graeme Minchin 025 2122704; Johnnie Kovacevich 09 3093364; Marie Dyhrberg 09 3604550; James Faleauto 027 2273537; Maria Pecotic 09 5227399; Owen Harold 09 6304969; Phil Reccordan 021 634364; Gary Gotlieb 09 3766806; Barry Hart 09 3789732; Rodney Harrison 09 3034157; Grey Lynn Community Law: 09 3786085; Waikato/Bay of Plenty: Chris Tennant 07 5710966; Matt Goodwin 07 5790400 Hamilton: Roger Layborne 07 8396288; Emily Coupland 07 8381069; Rotorua: Simon Lance 07 3460796; Gisborne: Phil Dreyfrus 06 8671379; Hastings: Community Law Centre 06 8797625; Palmerston North: Peter Coles 06 3581075; Wellington: Michael Appleby 025 403363; Community Law Centre 04 4992928; Christchurch: David Ruth 03 3745486 Community Law Centre 03 3666870; Timaru: Tony Shaw 03 6886056; Dunedin: Community Law Centre 03 4779562; Invercargill: John Pringle 03 2144069; Community Law Centre 03 2143180; Youth Law: a free confidential legal advice service for young people under 25 yrs. Ph (09) 309-6967 www.youthlaw.co.nz
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