Blind Justice: The blindfold Lady Justice traditionally wears is to deny her the opportunity to be moved by either partiality or pity. Under our system of Justice only evidence brought before the courts can convict the accused. But the Sensible Sentencing Trust-sponsored "Christie's Law" would allow the suffering of victims to unbalance Justice's scales - fundamentally prejudicing the right of accused persons to a fair trial.
GARTH McVICAR is using the tragic death of Christie Marceau to secure a further erosion of New Zealanders’ legal rights.
In November of 2011 Miss Marceau was stabbed to death in her North Shore home and died in her mother’s arms. The man accused of attacking her had earlier been charged with her kidnapping. Over the strenuous objections of the Police, he had been remanded on bail to a house less than a kilometre from the Marceau home.
Mr McVicar’s Sensible Sentencing Trust (SST), with the full support of Miss Marceau’s parents, is now promoting what it is calling “Christie’s Law”: a series of measures which will make it much more difficult for judges to grant bail to people accused of serious crimes.
That Miss Marceau’s parents should want to prevent other families from enduring the horror and heartbreak which they have been forced to endure is entirely understandable. That Mr McVicar’s trust has fastened upon their grief in order to advance its private political agenda is despicable.
For there can be no disputing the SST’s radical right-wing politics. A brief perusal of “Christie’s Law” reveals that Mr McVicar and his supporters, by making the decisions of judges subject to a police veto, are attempting to undermine the independence of the New Zealand judiciary. They are also attempting to overturn what is arguably the most important of our legal rights – the presumption of innocence.
The presumption of innocence requires the state to prove the guilt of an accused person “beyond reasonable doubt”. And until such time as his or her guilt is proven, that person remains (and must be considered) innocent of the crime/s of which s/he is charged.
It is the presumption of innocence that makes the right to be granted bail so important. Without it, merely being charged with an offence could see the accused deprived of their liberty for days, weeks, months – even years. Time which, in the event of their eventual acquittal, can never be returned. The unreasonable denial of bail is, quite simply, an open invitation to serious injustice.
Of course, an absolute adherence to the logic of presumed innocence would be as dangerous as its persistent and unreasonable denial. To release accused persons whose actions, mental stability, and/or past history of offending render them a credible and serious threat to the safety of the public would be very wrong. Accordingly, we have given our judges the authority to refuse bail when, by granting it, people’s lives and property would be recklessly endangered.
In the overwhelming majority of cases that come before them our judges exercise this discretion wisely. But judges, like the rest of us, are fallible human-beings. In a tiny handful of cases they make a decision which, with hindsight, turns out to have been reckless and foolhardy. The decision to grant bail to the person accused of Miss Marceau’s murder clearly falls into this category.
The truly evil aspect of the SST’s promotion of “Christie’s Law” is that it pretends that the fallibility of our justice system is fixable. That if you threaten judges with sufficiently dire sanctions, and give police the power of veto over bail decisions, then the number of tragic mistakes will be lessened. What they leave unsaid, of course, is that in attempting to eliminate one kind of mistake “Christie’s Law” would almost certainly give rise to a host of others. Intimidated judges and over-zealous policemen would very soon begin to deny bail to anyone and everyone charged with serious crimes. The presumption of innocence would be turned on its head. Gross injustices, far from being reduced, would multiply.
New Zealanders should reject not only the measures contained in “Christie’s Law” but the very idea of attaching the victim of a fatal stabbing to such overt politicking. There is a reason why the prosecution of serious crime became the exclusive preserve of the state, and the SST’s posturing throws it into stark relief.
The administration of justice cannot be conducted impartially, or according to the dictates of reason, if it is in any way drawn into the emotionally charged environment of grief and anger to which the victims of crime, through no fault of their own, are remanded. It’s why Justice is always pictured wearing a blindfold. It is to prevent her from seeing the grief and anger of crime’s victims – lest, out of pity for their plight, she negates the rights of the accused.
No sentence which is driven by the raw emotions of crime’s victims can ever be “sensible”. Justice is not vengeance, and must never be allowed to become so. In using Miss Marceau’s name to achieve their political objectives, Mr McVicar and the SST are attempting to circumvent the duty we all share to keep Justice’s blindfold in place, and her scales in balance.
This essay was originally published in The Press of Tuesday, 21 February 2012.