Editorial - Tuesday April 30, 2013

Leaping to conclusions

LEAPING to conclusions is a human trait that shows no sign of decline as we continue our evolutionary journey from hunters and gatherers to whatever we will turn into in millennia to come, if global warming doesn't drive us to extinction. It is a trait that seems to have no genuine value, but which has probably started more wars than anything else, ensures that religious and cultural prejudices thrive, and causes discord in communities ranging from the nuclear family to the brotherhood of nations.

It is not drawing an especially long bow to defend the justice system's provisions for protecting those accused of crimes from public (and particularly a jury's) knowledge of their criminal history on the basis that they discourage the making of decisions based on what is legally referred to as propensity, in other words leaping to conclusions.

'Propensity' refers to the perceived likelihood that someone who has offended in a particular way in the past is likely to have done so again. It is reasonable to assume that a majority will look at an accused burglar with less than an open mind if they know he already has 50 burglary convictions. And while the laws of propensity might suggest that someone who has burgled 50 times before will more than likely have done it again, that possibility can have no part in a fair and just justice system.

The desirability or otherwise of informing jurors of the criminal history of those they sit in judgement over has raised its head again following the conviction of Jeremy McLaughlin of the murder of 13-year-old Jade Bayliss. McLaughlin, we learned after his conviction, had been jailed in Australia for the manslaughter of a 14-year-old boy, who he had thrashed with a cricket bat (although the fatal injuries were reportedly inflicted by another person, who drove a car over the unfortunate child).

Would knowledge of those facts have increased the chances of a murder conviction last week? Undoubtedly. And would that have been fair? No.

Criminals are acquitted on a daily basis in this country and elsewhere, as they inevitably will be within a justice system that relies on evidence that is sufficiently compelling, and in these days of expert evidence understandable, for a jury to find beyond reasonable doubt that the person charged is guilty.

It has long been argued that it is better to acquit 10 guilty people than to wrongly convict one who is innocent. Not that New Zealand hasn't produced its share of the latter.

Arthur Allan Thomas is our poster boy for justice gone wrong, but there may be are others, notably David Tamihere, back in the community but still officially guilty of murdering Swedish backpackers Heidi Paakkonen and Urban Hoglin, despite some very dodgy evidence, and Scott Watson, still serving time for the New Year's Day 1998 murders of Ben Smart and Olivia Hope, again despite evidence that, to the layman, appeared to contain holes big enough to sail a sloop through.

There can be absolutely no doubt that jurors who know the accused has 'form' for offending in the same or similar fashion to that which has led to the current charge would be much more likely to convict, via the process of leaping to conclusions. In fact, quite rightly, every prosecution must stand or fall on the evidence presented.

If the prosecuting authority cannot prove beyond reasonable doubt that the accused is guilty then he must be acquitted, whatever his criminal history. To use an alleged offender's past as a prosecuting tool, tempting as that might be, would be abhorrent in a society that prides itself on giving everyone, whoever or whatever they might be, a fair trial.

This newspaper has cautioned many times against forming views of guilt or innocence without hearing the totality of the evidence, as only those who sit in the courtroom do. These days, however, our penchant for leaping to conclusions is likely to be exercised long before the court even becomes involved.

The latest victim of that is All Black Julian Savea, who has become a household name for those who hadn't heard of him before, courtesy of a domestic incident that led to him being charged with common assault. As it tends to do these days the super-sensitive NZRU responded as though he was the Boston Strangler reincarnated. It 'front-footed' the storm of indignation that it correctly saw coming its way by sticking Savea in front of as many television cameras as it could muster so he could tearfully express remorse. Once, of course the rugby union would have stuck him in the town stocks so people could throw stones at him and tell him to his face what an appalling excuse for manhood he had become.

In between the stocks and public humiliation on the evening news there was a brief period in our evolutionary history when we might have waited to hear exactly what he had done before we passed judgement. Apparently we don't need to do that any more.

Savea has on more than one occasion been referred to as a wife beater. How do we know this? Because he stood up at a press conference and cried, saying he had done things he wished he had not done. What more do we need to hear?

Well some facts would be nice. We will hear those eventually, when Savea gets to court, but the police decision to charge him with common assault should give all but the most morally incensed cause for thought. Common assault is at the very bottom of the list of charges available to the police when someone 'attacks' another person, and given that the victim in this case appears to have been Savea's partner, it is likely to be highly relevant that he was not charged with assaulting a female. That might ring a tiny little warning bell in the deepest recesses of the minds of some who have sprinted out of the blocks to express their disgust at what they would have us believe is yet another example of a sporting body not taking criminal behaviour seriously.

There would seem to be two possibilities - that the police, hoping to score tickets for an All Black test against France in June, laid the least serious charge they could think of (appealing no doubt in some quarters), or that the offence was not a serious one, and did not warrant a more serious charge. In any event, common decency surely dictates that we should wait to hear what Savea did before we start looking for a tree to hang him from. And before we start accusing the NZRU of not meeting its obligations to society.

Savea may one day have cause to thank those who have lost all perspective over his arrest, however. When he finally appears for his comeuppance, any lawyer worth their salt will have little difficulty persuading any but a died-in-the-wool hanging judge that their client has been punished enough. And so he might well have been.

In the meantime we should curb our instinct to add 2 and 2 and get 17, a failing that has been refined to an art form by social media, where anyone can say anything in total anonymity with no need for any sort of qualification, such as a brain. If you are one of those, now might be the time for a small prayer that the boot never finds its way to your foot.