Laying down the law, Steven Price

The Modern Prosecution Process in New Zealand
Philip C Stenning
Victoria University Press, $50.00,
ISBN 9780864735782

This might surprise you: this book is mostly not about trials. And rightly so. As Philip Stenning points out, our criminal justice system is very largely about avoiding trials. Victims don’t complain. Prosecutors decide not to lay charges. They plea-bargain. Defendants plead guilty or get diversion. There is a chapter about how trials work, but Stenning’s real mission is to cast light on the roles of those making the crucial choices that determine the outcomes of the vast bulk of cases that don’t end up at trial.

Stenning intends the book to be “an introduction and guide to the lay person with a desire to learn more about this critical governmental institution that impinges on the lives of many New Zealanders every year.” Each year, about 100,000 of us are prosecuted for something. Add in defendants’ families and friends, the victims and their families and friends, and those involved in the administration of justice such as jurors, and it becomes clear that the prosecution process has a huge impact on our society.

Yet it is not well understood. Flocks of defendants are shepherded through the criminal courts every day, looking bemused. Many journalists struggle with the differences between innocent and not guilty, the standard of proof and the burden of proof, and appeal and judicial review. I often wonder whether people understand something as basic as the purpose of a depositions hearing. Even law students tend to learn more about the content of the criminal law than the way the system is administered.

Until now, I hadn’t seen any New Zealand book that filled this gap. This one does. It provides a lucid and authoritative introduction to the basic processes of prosecution. Along the way, it explains the concepts lawyers tend to throw around, such as indictment, hearsay, and status hearing. It sketches the big picture with statistics on the numbers of prosecutions, diversions, family group conferences, and the like. It sets out the roles of the key players: the attorney-general, the solicitor-general, crown and police prosecutors, defence lawyers, judges and justices of the peace. It describes the structure of the courts. It methodically traverses the steps of a prosecution from charges to trial and appeal, and contains separate consideration of topics such as youth offenders and victims’ rights.

Stenning draws on the law to describe the skeleton of the criminal justice system, but he reaches much beyond that. He fleshes out the skeleton by exploring the informal processes that really make the system work: the prosecution guidelines that determine when charges will be laid; the little-discussed status hearings where many cases are disposed of; the dirty secret of plea-bargaining. Then he clothes his creation in discussions of the important issues that arise. Are police prosecutors without legal training really competent to manage prosecutions? Should defendants be forced to disclose information about their defences? Should we keep the right to silence? Is the search for administrative efficiency compromising defendants’ rights? Should bail laws be tightened?

Generally, Stenning isn’t looking to provide answers, merely to introduce the debate and give some context. For myself, I would have liked more on these issues, perhaps in place of the two lengthy chapters on the colonial and historical roots of New Zealand’s prosecution system. True, there are some gems in these chapters (who knew that criminal appeals used to go to Cabinet?) and Stenning does make a fair case for the importance of an historical perspective (there were some early experiments with separate criminal justice rules for Maori, including majority verdicts, for example). But the level of detail about long-expired statutes and English common law rules seems excessive in an introductory text that pitches itself as covering the “modern” prosecution process in New Zealand. Readers may prefer to skip straight to chapter four; the later chapters provide historical context where it’s relevant, anyway.

This historical material does illustrate one of Stenning’s main themes: the extraordinary rate of change of the criminal justice process. Looking at the past decade alone, we’ve had significant reform of bail, sentencing, victims’ rights, evidence, parole, and legal aid. In fact, there’s more. It would have been helpful if Stenning (publishing in 2008) had indicated a cut-off date for his analysis. Although he discusses the “Criminal Procedure Bill”, this was split into a raft of related bills, many of which were passed midway through 2008. He overlooks the Independent Police Conduct Authority’s name-change and Bob Moodie’s conviction for contempt of court in 2007. He misses the recent developments in the televising of court coverage and the Prisoners’ and Victims’ Claims Act of 2005. He cites the out-of-date Grayson and Taylor case from 1997 when discussing the courts’ discretion to exclude evidence. It is perhaps a measure of the range of topics covered in this book that developments constantly overtake anything anyone writes about the area.

Still, these are largely matters of detail and rather serve to prove Stenning’s point about the remarkable pace and complexity of reform. Nor do they undermine another of his key themes: the remarkable degree to which our prosecution system hinges on the exercise of choices by prosecutors. In a terrific chapter, Stenning analyses the (rather limited) controls on the powers of the key actors. In one particularly interesting passage, he notes that there is considerable doubt about the legal notion of police independence. The stock ministerial response citing the operational independence of the police may be too glib.

Could we do things differently? The penultimate chapter contrasts our adversarial system with inquisitorial ones, prominent in Europe. Stenning assesses the two systems’ strengths and weaknesses, and then suggests that they are becoming less distinct, as each system looks to draw the best elements from the other. This, then, might be the future of the prosecution process: elements of the inquisitorial approach, increasing use of restorative justice, a search for ways to ensure greater accountability
in pivotal prosecution decisions. This text is a very useful introduction to those vital issues.

 

Steven Price is a Wellington lecturer and barrister specialising in media law.

 

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