The court's backing of a judge-alone hearing threatens the sanctity of the jury system, writes Brian Rudman.
Last week the Court of Appeal upheld Justice Helen Winkelmann's decision to deny the 18 people arrested during the 2007 Urewera "terror" raids a trial by jury. Their trials, scheduled for late May in Auckland, will be heard before a judge alone.
We don't know why, because publication of the reasons behind both decisions is banned.
All we can go on is the change of law in 2008, which allows a judge to rule that a case be heard by judge alone in cases which are likely to be long and complex and cases in which there is a significant risk of jury intimidation.
Whatever the reasoning behind Justice Winkelmann and the Court of Appeal's decision, the result is to add fuel to a political bushfire that has been flaring since more than 300 police officers, waving firearms and copies of the Terrorism Suppression Act, raided "terrorist cells" across the Bay of Plenty in October 2007.
The Solicitor-General subsequently ruled out charges under the Terrorism Suppression Act, but firearms charges still remain.
The justice system, by compounding the atmosphere of secrecy and intrigue that has dogged this case for nearly four years, has now made a rod for its own back. Whatever the reality, the courts now risk being seen as part of this whole sorry saga.
There's no reason to doubt the accused will get a fair trial before a judge sitting alone. But as the Law Commission emphasises in its 2001 report on juries in criminal trials, "the ancient institution of trial by jury" brings a democratic element to court proceedings that makes it "the best forum for the trial of almost all serious criminal cases in New Zealand".
In his covering note to ministers, Law Commission president Justice David Baragwanath noted, "The virtual absence of criticism of the conduct of juries, in even the most controversial cases, is striking.
"The essentially anonymous verdict of ordinary citizens chosen at random give to the process the legitimacy of total independence; they are indeed the 'little parliament' to which community decision making is delegated."
In the report, the commission underlines that "the core value underlying the functions of the jury is its democratic nature".
Addressing the argument that complex trials are best left to expert judges, the commission states that "if the jury fails to understand the evidence then injustice can result. But this does not indicate a need to abolish or, in general, to restrict trial by jury.
"Instead it indicates a need for better procedures and better tools to ensure that complex evidence is presented clearly and in an understandable form."
It conceded that "a very small proportion of trials, usually involving fraud or complex evidence, are too long and arguably too complex to be tried by jury". But the upcoming Urewera trials don't appear to fit either of those bills.
The problem for the justice system in this case is that in an attempt, presumably, to ignore the political storm swirling around this case it has become a part of the political debate, whether it wanted to or not.
To help maintain the integrity of the justice system and avoid being caught up in the political backlash, the judges should have used the discretion at their disposal to opt for the jury trial.
If there is a positive note, it is that in the growing furore around this ruling some light might shine on the Criminal Procedure (Reform and Modernisation) Bill introduced into Parliament late last year, containing what Justice Minister Simon Power described at the time as "the biggest change to the criminal justice system in 50 years".
Among his proposals to help unclog the system was "reserving jury trials for the most serious and complex cases". This, we're told, would result in "a reduction of 25-45 per cent in the jury trial workload", or 300 to 600 fewer jury trials a year. Accompanying notes to the bill also point out that a jury trial runs up district court processing costs of $20,000 compared with about $2000 for hearing before a judge alone. This and the other proposed reforms were estimated to save about $24.3 million over a five-year period.
Civil jury trials seem to have died out without any public hue and cry. Now it seems to be the turn of the criminal jury, with politicians sniffing around for ways to cut costs and streamline the system.
It's not necessarily sinister. Many criminal defendants already appear before a judge alone - many by choice. But to a layman, brought up on the sanctity of the jury system as one of the bedrocks of our liberty and our democratic system, it seems a change by stealth that needs to be brought out into the light.
We grew up believing in the "little parliament" concept that Justice Baragwanath referred to. Is it any wonder there's growing disquiet about the Urewera defendants not being allowed a trial before their peers?