KEY POINTS:
Those who deal closely with the courts, and in particular the High Court, know that the system is at the point of collapse.
Retired judges are being called in to help unclog the system. The High Court is choked with drugs cases alone. No one wants to be
a High Court judge. Our adversarial system of justice is bogged down in process.
Adversary justice has roots in medieval custom where a champion would be hired to fight a cause or protect a reputation. It is the basis of common law in New Zealand, Australia, the US and Britain, in particular.
Adversary justice obliges investigators to target a culprit as soon as possible; it makes the courts a referee between opposing sides in legal argument and it expects inexperienced jurors to decipher complex forensic evidence. It leaves judges with a narrow range of sentencing options and it fills jails.
The defendant can hold fast to the right to remain silent. The truth invariably plays second fiddle to legal combat between prosecution and defence. Victims' rights are barely recognised.
Many European countries use an inquisitorial system where the court is convened in the first instance to determine the truth. The investigation remains open; the court hears from all relevant parties at its discretion before anyone is charged; the objective is to reveal all relevant material and arrive at the facts. When prosecution proceeds and is successful, sentencing is cut to fit the crime and its specific circumstances.
New Zealand has never properly reviewed its system of justice. Ombudsman Mel Smith, in his recent Investigation into the Criminal Justice Sector in New Zealand, says in his foreword that "there has been no comprehensive review of the whole of the criminal justice system and how the component parts should operate and interact to achieve the objectives of a co-ordinated and effective process directed to meet society's goals".
One might wonder what has been occupying our lawmakers. Our combative justice system has been constructed ad hoc on the basis of public pressure and in a process of governance that is trapped in a three-yearly election cycle.
The changes sought to the pre-trial depositions process is more of the same - belated fiddling with one part of the system in isolation from the whole.
Mel Smith's report identifies factors in the current system that detract from the concept of adversarial justice. Status hearings and the Family Violence Court both invoke an inquisitorial approach.
The Police Prosecution Service and the Public Defence Service also actively use an inquisitorial approach in the interests of speedy and fair delivery. All four processes recognise that justice means more than finding winners and losers. They also clearly show that changes are being made to the adversarial model; that the changes are supported by the judiciary, the legal sector and agencies involved in court processes; and that "these changes to the adversarial model are much more than merely peripheral", to quote Mel Smith.
The community is demanding to see justice done with transparency, consistency and reliability. The Law Commission believes the present system may be brutalising victims of crime. This should be enough for lawmakers to properly debate the changes that are now a necessity.
Geoff Vause is a Wellington novelist and advocacy writer for Victim Support.
