In This Edition: Sludge Is A Banana
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Sludge Report #125
Sludge Is A Banana
When Susan Hughes, the lawyer for trigger-happy Waitara police constable Keith Abbott, declared in her closing address to a New Plymouth depositions hearing that she wanted the case to go to trial, this, admittedly rather cynical, reporter smelt a rat.
Ms Hughes explained that she wanted the case to on to the High Court because only after an acquittal would her client be free of the risk of another prosecution being brought.
News out this afternoon that the two JPs hearing the Abbott murder depositions have dismissed the prosecution brought by Stephen Wallace’s family has not only brought this smelly rat out into the open, but has pinned a tail to it and decked him out in party attire.
In the face of this remarkable decision Sludge wonders whether Susan Hughes may have somehow known in advance that her client was about to walk free? Certainly her unusual closing declaration seems to have very neatly covered the possibility of anyone accusing her of organising a jack-up.
Meanwhile, what is also certain is that this decision will be greeted throughout the NZ Maori community, and in Waitara in particular, as proof positive that the Justice system in small town NZ remains racist and corrupt.
And on its face, anyone forming such an opinion would have considerable grounds for doing so.
Not only is it possible for small town prejudice to nobble a police homicide investigation - it was admitted during the depositions hearing that normal police procedure was not followed in the investigation into the Wallace shooting - but, it appears, it is also possible for a sub-standard small town legal system to nobble normal due legal process.
For those unfamiliar with criminal legal procedure in NZ, which will doubtless include many of my media colleagues, Sludge makes the following observations about the unusual circumstances of the dismissal of this case.
- Firstly it is important to remember that the standard of proof required to send a case to trial is not that guilt is beyond reasonable doubt, but merely that a case has been shown to exist. That is, that the prosecution have established the elements of the offence in question, namely in this case, that Stephen Wallace was shot and killed by Keith Abbott (which has never been in dispute), and that it is possible that he did so recklessly, in which case he could be found guilty of murder, or that he did so negligently, in which case he could be found guilty of manslaughter. Sludge would be interested if anyone who has read or listened to reports of this depositions hearing could conclude that these elements were not shown.
- While it is not a requirement to do so, depositions hearings for murder cases in NZ are sometimes presided over by a District Court Judge. After all in the most serious of criminal cases, murder, it is important that the chain of evidence is not fouled up at the very beginning of the criminal process. In this particular case it is perhaps surprising that the Chief District Court Judge did not ensure that a judge was made available to hear the case given that it is the first private prosecution of a policeman for murder in NZ legal history. It is noted that there are only two resident District Court judges in New Plymouth, one assigned to the family court and one to general duties, consequently a judge would have had to be brought in to hear the case.
- While depositions hearings rarely take more than a week or two, this one took more than four, and in the process cost the Wallace family and their supporters a fortune.
- Usually depositions hearings are confined to establishing the basic elements of the case, i.e. that there is a case to answer, hence their brevity compared to that of the trial proper. In this case it appears – on the basis of the news reports of the trial – that enormous latitude was granted to the defence counsel not only to cross-examine prosecution witnesses, but also to loudly declaim a range of theories (suicide by police) for what might have happened in the streets of Waitara two years ago. Remember it is not for the JPs to decide which witnesses are credible and which are not, that is a decision for a jury. Their job is merely to note that the witnesses do say what the prosecution claims they will say.
- According to a senior legal source of Sludge it is extremely unusual for Justices of the Peace – who usually have no formal legal qualifications - to dismiss criminal proceedings on the basis that a case has not been established to a prima facie standard. Sludge’s source could remember only two occasions upon which this has happened, one of which, ironically, also involved the prosecution of police officers, in Gisborne on charges of perversion of the course of justice.
- There is no provision for the appeal of a dismissal of a case at depositions stage in the NZ criminal code. On the other hand, had the JPs allowed the case to proceed, the defence would have had the right to ask a High Court judge to review the evidence and dismiss the cae. However, it is possible in theory to take a Judicial Review case against the JPs decision on the basis that they erred in law, or that their decision was absurdly wrong, (which in the writer’s opinion it most certainly is).
- Meanwhile, as Susan Hughes said in her closing statement, in theory the Wallace family could now apply to prosecute the case again starting at the beginning, assuming they have the resources available to do so. However, what Ms Hughes did not mention is that an application could be made to the Solicitor-General that this would amount to abuse of process. So if they do the Solicitor-General may intervene and grant a stay against the prosecution on the basis that to allow the process for a second time would be unfair to constable Abbott.
In the meantime on its face the case against constable Keith Abbott is now at an end.
And so, to reuse the immortal words of the newspaper editor faced with a huge defamation payout to the wife of the Yorkshire ripper, “if this is justice then I’m a banana”.