Fran O'Sullivan: Justice should prevail in Urewera 18 jury decision

The dawn raids in the Ruatoki Valley wrenched Tuhoe activists from their beds on October 15, 2007. Photo / Alan Gibson

Chief Justice Dame Sian Elias is confronted with an interesting conundrum: whether to put the Gods of Efficiency above a request from a bunch of activists for a jury trial.

Elias and her fellow Supreme Court judges - Peter Blanchard, William (Willie) Young, Andrew Tipping and John McGrath - have yet to even rule whether they will grant leave to the "Urewera 18" to appeal against a lower court decision to deny them a jury trial.

The forthcoming trials of the "Urewera 18" defendants will indeed be messy. Their supporters will be out in droves once the first action gets under way in the High Court at Auckland.

The issues are controversial and are again in the public eye through the screening of Operation 8 - Deep in the Forest in Auckland this week.

This pejorative account of the police operation, which resulted in Tuhoe activists being wrenched from their beds early on October 15, 2007, portrays the raids as an extension of the War on Terror to a global witch-hunt of political dissenters which reached down to the South Pacific.

It is inevitably a one-sided view. But the documentary-makers should not be criticised for putting the spotlight on one of the highest-profile police actions since the Samoan overstayer raids of the Muldoon era.

Too much time has elapsed between the Urewera dawn raids and the resultant court cases. Much of this is due to ham-fisted police procedural work, defective legislation and pre-trial skirmishing. The upshot is, even before the main case is heard, the Supreme Court has to decide how much of the police evidence is admissible.

Fifteen of the "Urewera 18" are poised to face trial on Arms Act charges on May 30. Five of them - including Tuhoe activist Tame Iti - will also defend charges of participating in an organised criminal group.

The three other defendants who complete the "Urewera 18" also face firearms charges. But their trial has been "severed" and will be conducted separately.

Strict suppression orders prevent me from saying exactly why Chief High Court Judge Helen Winkelmann and the Court of Appeal have decided this case would be better heard by a judge alone instead of judge and jury. But Crown prosecutor Ross Burns has reaffirmed publicly that the law allows judge-alone trials where the issues are unduly complex and a lengthy time period is involved.

This suggests the lower courts do not place much collective faith in the reasoning powers of New Zealanders.

But unless the Supreme Court puts its collective foot down and sends this political and controversial case to trial by jury, it runs the risk that a dangerous precedent will be set which will further erode public confidence in the judicial system.

It is important to remember that until 2007, only the accused could apply for judge-alone trials in cases which attracted a penalty of three months or more imprisonment.

That basic right is about to be eroded yet again through the Criminal Procedure (Reform and Modernisation) Bill - which Elias herself, speaking on behalf of all of the New Zealand judiciary, has indicated is being pushed through under tight time constraints which do not allow sufficient time for adequate consultation given the extent of the proposed reforms.

Elias' own submission to Parliament's justice and law reform committee does not comment directly on the proposal to remove the right to a jury trial.

When he introduced the bill, Justice Minister Simon Power pointed to greater efficiency and cost savings if the threshold for jury trials was raised from offences carrying a penalty of more than three months' imprisonment to those carrying more than three years.

But the bastions of the wider legal fraternity are almost universally opposed. The Auckland District Law Society says the "jury is a bastion of liberty against the power of the State ... It is of fundamental constitutional significance and deeply rooted in the public's sense of access to justice. It should not be restricted without an appropriate form of due process."

Don Mathias, who doesn't idealise the jury system, emphasises the public may attach great significance to the right to elect trial by jury. The public perceives a jury will restrain what is perceived to be over-zealous law enforcement. He points to the Waihopai spy base camp trial as an illustration of that restraint.

Even the Attorney-General has observed that the US Supreme Court has said juries are an "inestimable safeguard against the corrupt or over-zealous prosecutor and against the compliant or biased or eccentric judge".

The Supreme Court is confronted with a difficult decision. The judges will be well aware that if Winkelmann proceeds with a judge-alone trial, she will be measuring the evidence against a narrow legal framework. A jury might take a broader brush.

But if they put themselves in the defendants' position, there is only one answer to take. As Elias herself has observed in another case, the jury is "seen as standing between the accused and the state in a way that judges, who are sworn to apply the law, were not always able to do".