Wednesday, April 20, 2016

THE COST OF 'JUSTICE'

Over the weekend I got talking to a friend of mine about the Courts system.    He has a story worth sharing.   A number of years ago he stood in the dock defending himself against some quite serious charges.   He did not qualify for legal aid as he is asset rich but cash poor.

At the end of the jury trial he was found not guilty on all changes.   The Judge, in thanking the jury, made the comment that he wondered why the Police had even bothered to bring the case to Court as it was so weak.   He commended my colleague on the job he had done defending himself and suggested to him that should consider a second career in law.

The case cost my colleague many thousands of dollars in lost earnings and almost bankrupted him.   There is no provision in cases of this sort for the award of costs.   To say that he is bitter is probably an understatement.

I discussed this with my good friend 'The Realist' who is a top lawyer and a Master of Laws (LLM).   He pointed out it was well established as a matter of public policy that costs are not awarded in the criminal jurisdiction as to do so would lead the Police having to embark on a cost/benefit analysis before deciding to lay charges and that could result in guilty persons going free.

I can understand the argument but the corollary to that is sometimes the innocent end up paying a heavy price to prove their innocence and one has to wonder if that is 'justice' delivered.



10 comments:

Anonymous said...

The laying of charges in NZ's excuse for a 'justice' system is in most cases THE punishment. If you are a regular hard working Kiwi, you get a legal system set up to serve and benefit the legal 'profession'. If you are rich, or can get someone else to pay, you can buy some 'justice'. Who in their right mind thinks most workers can pay (just for the lawyer) $300 (minimum), let alone for competent Barrister charges for court representation? Lawyers know this, and game the system for their clients on Legal Aid all the time.

MarcW

Noel said...

MarcW
Sad reality of justice in New Zealand. If you don't "lawyer up" the potential outcome could be different than anticipated.
First thing criminals do when confronted with a charge.
It's worse in the Family Court where the victim is barred and can only attend by going cap in hand to the Judge.

"Jungle Justice" is the most successful option.

Noel said...

Sorry should have said YOUTH Court not Family.

The Veteran said...

Noel ... I can understand where you are coming from but the 'jungle justice' option you propose may well result in the 'victim' becoming the accuser and the aggrieved party ending up in the slammer. Having said that I'm not sure too many would disagree with your proposition that the Youth Court can be a farce. Don't think the old style Borstal is necessarily the answer either.

Anonymous said...

The police are not your friend. For whatever reason a person ends up in the dock the prosecution and police have only one objective. To secure a conviction against that person. They are not interested in the truth, justice, or whether fairies exist. If you don't have a bull terrier for a barrister they will do you like a dinner.

Your friend is fortunate.

Mick

Nick K said...

Costs are payable in criminal cases - see Costs in Criminal Cases Act 1967. This case might not have applied because there weren't any costs, but they're available.

The Realist said...

Yes they are in some circumstances. I was talking generally. It is extremely difficult to get a Court to award them however.

The Veteran said...

Nick ... ty for that. You live and learn. Have to say though that the matters set out in c5(2)(a-g) of the Act with the possible exception of (e) seem collectively to be a very high bar for the defendant to meet. I would be interested if either of you two learned gentlemen could point to a successful application made under the provisions of c5.

The Realist said...

I can. See McLeod v The Queen [2016] NZHC 221. (See clause 122). This involves the South Canterbury Finance debacle. As I said it can happen, but not as a matter of course. It would be interesting to find out how much it cost McLeod to run his application for costs. QCs do not come cheap.

Nick K said...

Vet, when a law student I helped a man get costs off the police and made the Sunday Star Times as a result.

He was arrested and charged with trespass for refusing to move off council land when a digger was about to ruin his plans for a golf course/resort on Waiheke Island. He was acquitted of trespass, and I helped him win costs.