David Fisher

David Fisher is a senior reporter for the NZ Herald.

Chief judge: Views of victims count

Justice Helen Winkelmann says there will always be tension between what victims think a sentence should be and what judges decide, because the system rules on behalf of the whole of society.

Justice Helen Winkelmann. Photo / Sarah Ivey
Justice Helen Winkelmann. Photo / Sarah Ivey

Breakfast television coverage followed Chief High Court Judge Helen Winkelmann as she prepared for the day - until an item which ruffled her judicial calm.

The Chief Judge is telling the story as part of an interview on judicial accountability. She recalls the television interview subject expressing disappointment over a sentencing decision.

With empathy, the host questioned the court's reasoning: "What could the judge's reasons possibly be!"

She said: "I felt like shouting at the screen 'well, read the reasons'."

Each judgment issued by the courts carries reasons, usually near the end. They are structured on earlier case law and based on laws passed in Parliament. The wording might not be as clear as the average reader might like but the judiciary is working on this.

Reasons, said the chief judge, are becoming clearer.

"The expectation is we give detailed reasons for everything. One of the major ways we are accountable is through justifying our actions and we justify our actions through reasons and we are accountable for them.

"Anyone can see exactly how we reached that view, why we reached that view and they are free to criticise us and, in fact, criticism of those reasons is good."

In Judge Winkelmann's ideal world, the public would approach those reasons with the benefit of civics education in schools and an understanding of how the justice system is structured to work.

"When media coverage goes on - it does go on - it should be able to be received by a public which has some understanding of that."

The Herald DigiPoll survey which found only 53 per cent of the public had faith in the judiciary raises questions about that, Justice Winkelmann said.

"If there is a public perception issue, then the media has played a role."

She said reporting of the courts had become skewed through a black-and-white approach to coverage. She summarised it as: "Terrible crime. This is the sentence. What do the victims say? The sentence is not enough."

She said the approach didn't reflect the way the justice system was designed to work. "I think the way the media reports it is inevitably setting the judiciary up for a fall.

"If the test of the sentence is whether the victims are happy with it, well, usually they are not going to be happy with it because the criminal justice system is not foremost a system for therapy for victims. It is a system in which they have a legitimate and necessary interest.

"But its primary function is to deal with that offender on behalf of the whole of society and impose a sentence on that offender which is - if they are convicted, if they are the offender - consistent with the principles and purposes of the Sentencing Act."

Justice Winkelmann had previously spoken of "some voices" which spoke louder than others in the coverage of issues before the court.

Asked about the Sensible Sentencing Trust, she said: "Their views achieve a great deal of profile in New Zealand. It is to state no more than a fact that there is often an absence of any differing view or correcting view.

"One thing I would say is long ago we as a society, as did every Western society, settled on a system of justice that said it was not going to be the victim who said what the sentence was.

"It was going to be people who could look across a range of offences and a range of sentences and apply the law and come to a sentence which is imposed on behalf of the whole of the society. That is the appropriate criminal justice system.

"Different victims will have different views and as a society we said it was not acceptable that people be sentenced simply on the views of the victim. So there is inevitably a tension that exists between the views of the victim as to what the sentence should be and what it is."

Justice Winkelmann said Parliament had created a process which allowed victims of crime to express their views. "Judges do have that information available to them and they do take that into account."

She said much of the "heat" focused on the criminal justice system came out of bail and sentencing decisions. "The judiciary has to accept a responsibility to inform the public about how those systems operate.

"If your Herald DigiPoll is correct then we have to be concerned the public is not properly understanding the operation of the courts and we have an excellent court system in New Zealand."

As one of three branches of government, the judiciary's power is a balance to Parliament and the Executive, controlled through Cabinet. The structure does leave the judiciary subject to funding set by the Executive and administered through the Ministry of Justice.

"The judiciary, if it had the resources, could perform a public education service. Our website could be a useful place for that."

She said public education information and speeches by the heads of bench would be useful ways of improving community knowledge. "Which I am trying to do but we are constrained by a lack of resources. We don't have any funding to create written material to explain the courts.

"We have a pretty good idea of what we could do externally. It is looking at what we have and what we need to operate effectively. I don't think we have enough to operate effectively to fulfil the roles I'm just talking about."

She said efforts were under way to work out the level of support the judiciary had. "We have no money. We can say for all we like 'we need this, that and the other thing' but we can't get it unless the executive is prepared to provide it (through the Ministry of Justice)."

The call for accountability was being met through increased reporting of statistics showing workflow, the number of cases and how quickly they were being dealt with. It would not include statistics showing the level of successful appeals.

"Just what does that exactly measure? You could, in fact, encourage people to be safe in their judging. We don't want judges to have one eye on the appellate structure when they are judging. We want to them to be completely focused on applying the law to the particular case."

The chances of being overturned on appeal was about one case in every three, she said. Even then, it was part of the growth and development of the law.

"Often, the dissenting judgment in one decade is the law in the next decade. That's the whole development of the better recognition of women's rights in matrimonial property through a series of dissenting judgments.

"That is the essence of the judicial oath. You call the law as you see it. We haven't as a society subscribed to a system of justice which is based on a computer where you put in a ticket and it prints it out. It is a human system and different judges will see it differently.

"That's why you want diversity because different judges see things differently and to reflect society. If you want everyone to decide it the same way you should get your judges from one school, one socio-economic group."

The High Court anticipated making more information available. It was also looking at the way judgments - available through www.justice.govt.nz - were written and presented.

"We have to welcome accountability because it is the flip side of the judicial independence coin," the judge said.

"If accountability mechanisms operate properly then they improve the quality of judicial decisions and they improve public confidence. If they are not operating properly they can have perversely the opposite effect."

Justice Helen Winkelmann

Education: Graduated 1984 from University of Auckland BA, LLB.
Legal career: Admitted to the bar in 1985. Partner at Phillips Fox from 1988. Set out as barrister in 2001 specialising in insolvency and commercial litigation.
Judicial career: Appointed High Court judge in 2004 and Chief High Court Judge in September 2009. She is 50 and has four children.

The series

Monday: Law changes herald new age of transparency
Tuesday: The truth about bail and the impact of the changes
Wednesday: Sentencing with a purpose
Yesterday: A day in the life of a judge
Today: The push for tougher sentences
Tomorrow: What next for the justice system

- NZ Herald

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