KEY POINTS:
The nearest lunch bar to the Herald building is across the road from the Auckland District Court. I was queueing for a sandwich one day and heard two people in front of me discussing the Louise Nicholas rape case, then being heard in the High Court.
One, a
man, had obviously been giving the defendants, a policeman and two former policemen, the benefit of the doubt.
The other, a woman who I guessed worked at the courts, asked whether he was aware two of them were already in prison for rape.
The man clearly had not been aware. The woman looked at him knowingly. "Now what do you think?"
Her companion was silent for a long moment. She searched his face for a response and nodded in triumph.
"Makes a difference doesn't it," she said.
He agreed.
I knew of course. Everyone in the media knew, everyone in the police, every lawyer, every clerk in the Justice Department knew. And everyone who knew anyone in the media, police, the legal fraternity, justice, the prison service, social services and heaven knows how many others, knew.
But the jury did not know. The jury who had to weigh up the credibility of Nicholas against that of three present or former policemen were not allowed to know that the two former cops had been convicted the previous year for rape of a young woman whose account of their barbarity was strikingly similar to the evidence they were hearing from Nicholas.
And you can guarantee the jury did not know. If the defendants' lawyers had got the slightest suspicion that any word of their clients' convictions had reached a juror they would have had the trial aborted.
This is justice. It is quite normal in our criminal courts for juries to be kept in total ignorance of the previous behaviour of a person whose guilt or innocence they are asked to judge.
Many times in the year or two that I covered the High Court in Auckland I felt for juries who had given a difficult verdict and were released from the jury room to hear for the first time facts that might have made a difference to their decision.
Is this justice?
Those schooled in criminal law insist it is. When the suppression orders in the convictions of Shipton and Schollum were lifted upon their acquittal in yet another similar-fact trial this week, lawyers were explaining that it is vital an accused person is judged purely on the evidence of the specified act, not previous offences no matter how similar they seem.
I have not studied law but doing my time on the press bench I was often struck by the fine common sense of most legal principles and how well the law generally accords with ideas of natural justice.
This, I think, is an exception.
We all use natural justice instinctively. Suppose you were put in a position of having to judge a complaint of sexual harassment or assault, maybe involving your staff. Many personnel managers do find themselves in this position these days.
Suppose the accused person insisted it didn't happen, or that the complainant was a willing participant, and there were no other witnesses. You have to take one staff member's word against another.
Now suppose that two other staff members come forward with very similar complaints against the same person. Has your task just become easier? You bet it has.
Any employer or person with responsibility for others would, I'd wager, send a person down the road on the strength of three separate uncorroborated but similar complaints of gross misconduct.
And I doubt that an Employment Tribunal would hold the employers to have acted unfairly unless it found the complainants had colluded in some way.
Granted, that is not criminal law and higher evidential tests probably should apply when a person is facing the loss of his liberty rather than the loss of a job. But is it so very unreasonable to acquaint juries with all the facts that help them assess the character of someone accused of a crime?
Lawyers say that an accused's previous record can be put before a jury if the defence calls the complainant's character into question. But in rape cases, with usually no independent witnesses, a denial of the charge always puts the complainant's character into question.
Reporting criminal trials has left me wary of making judgments outside a court. There is so much a jury sees that is not conveyed in a newspaper. The law frowns on descriptions of witnesses' demeanour, at least until the jury has done its job, and minutiae too tedious to read may be decisive.
Trials are very good, in my observation, at closing the door on all discussion outside the court and concentrating a jury's mind on the forensic issues before them. I think juries, listening to defence lawyers, could deal fairly with the decisions of previous courts when they have to weigh up one person's word against another. I think something is seriously wrong when juries are not told everything they need to know to do justice.
