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Justice disgraced in Sila trial

  • May 26th, 2008

The verdict on Sila for the Edgeware road murders was right, but the system is disgraced by the cost, the delay, and the uncertainty in reaching it, more than a year after the killings.

Harry Young, the father of murdered Jane Young, has exploded. His lambasting of the judge in Sila’s trial is well merited, though the judge is merely applying the rules of the system.

Harry was boiling when I met him at Sensible Sentencing’s homicide victims’ conference in Wellington a few weeks ago. There was absolutely no doubt about who killed his daughter, in front of scores of witnesses. If there is one strong finding of the research on what works in reducing offending, it is that justice must be swift, and certain.

Yet a year later the system has preened its way through an elaborate dance with no certain outcome. He’d been told by the judge, the Police and plenty of well meaning other performers in that ritual dance that he would put everything at risk if he even expressed publicly his bafflement and rage.

Who wouldn’t feel for those families, waiting 4 days for the jury to decide an open and shut case, with every passing minute adding to the possibility that the killer would go free.

I support the right of the accused to a fair trial, where guilt must be proved beyond reasonable doubt. I support the jury system. But they are conditions, not purposes. The primary purpose is to deliver justice to wrongdoers, for victims, and for those of us who are merely potential victims. The wrong must be balanced by punishment.

And wrongs must not be compounded by punishing people who are not guilty.

But the processes have taken over. They’re no longer subordinate to those ends.

Sophie Elliott’s father was at the conference too, because Sensible Sentencing is often the only comfort for these desperate people. SST are not funded by the system, so they can say what no one else will. They explain the realities the victims will undergo, while everyone else professionally excuses the inexcusable.

Cathy and I spent several hours with the Elliotts at their home in Dunedin after the graduation ceremony where Sophie’s brother accepted her certificate. My son had travelled with Sophie and another girl in Australia shortly before Christmas. The Elliotts were baffled too. Four court attendances already when there is absolutely no doubt about the circumstances of her murder, yet the process had not even reached depositions. As a lawyer and a former law-maker I think they expected me to come up with some sophistry to justify what was happening to them.

I could not. The system is the work of well meaning, highly educated people who’ve become fools. Being part of the elite, they’re not obliged to focus on the purpose of their processes, so they don’t. They’ll tell each other that the critics simply don’t understand, and no doubt go home each night feeling the smugness of the misunderstood in a righteous cause.

I suspect that the highly intelligent killer is manufacturing a defence of insanity. The mad/bad distinction he’ll rely on is another idiocy sacred to the anointed. They will not weigh against it the insult to victims.

I tried gently to prepare the Elliotts for a lottery, and possible disappointment. But I could not pretend the processes were redeemed by any justifying outcome.

They could be hugely simplified with no added risk of convicting the innocent. But those who serve the processes now have a trained indifference to the real outcomes. People who’ve spent their careers picking holes in arguments are so adept at finding problems they can never be expected to reform anything. They’ll persuade themselves with their professional eloquence that there is grave risk in anything but the status quo.


  • jcuknz
  • May 26th, 2008
  • 10:12 am

I thought the basis of the case, which I did not closely follow, was if the accused was scared out of his wits or did the act deliberately. I’m glad I wasn’t one of the jurors to have to make such a decision. Not suprised they took the time they did.


It was very interesting to hear Harry Young’s views, he proposes major changes.
He has a good point. A person who behaves this way in the past is likely to behave this way in the future.
I wondered if Sila was so out of it on amphetamine that he could conceive he was at risk and that may reduce the intent responsibility.
It has been a weird week of murder trials.
I heard that legislation could be enacted allowing retrial of not guilty suspect.
If not what chance would you say the Kahui twins mother has for a fair trial.?

[…] sorry for the Elliott family having to go through both the depositions and then inevitably a trial. Stephen Franks blogs on how the court process is failing: Four court attendances already when there is absolutely no […]

  • F E Smith
  • May 27th, 2008
  • 8:28 pm

you are absolutely right that for justice to be effective the process must be swift. However, if that is to be balanced with your comments supporting the right to defend a charge and be proved guilty by the State, then you run into a problem. Don’t forget that in this case there were over 600 witness statements, vast amounts of evidence and the investigation went on for months and months. Then it was apparent that there was going to be a lengthy trial and a High Court with only 4 local judges had to set aside a courtroom and judge for 5 weeks for the trial. All that contributes to the delays.

If you want to reduce the delays (and all lawyers do, especially criminal legal aid lawyers because delays actually cost us money) you will need to do the following things:
1. Increase the number of High Court and jury warranted District Court judges by 50%. We have insufficient of both, especially in Auckland.
2. Increase the number of jury courtrooms available for use. One reason that we have such a backlog is that we don’t have the room to do the trials, especially the large multi-defendant trials that the Crown likes to have these days.
3. Drastically increase the number of criminal defence lawyers willing to do criminal legal aid cases. This means at least matching the Crown rates for legal aid cases. The numbers are dwindling so low now that the Courts struggle with defence lawyers diaries being too full to fit in trials at short notice. Plus, trying to have both a summary jurisdiction practice and a trial jurisdiction practice means an almost impossible juggling act. When an average jury trial payment for a 2 day trial is around $2500 incl. GST, spread over the course of 12 months and with only a ridiculously small amount of paid preparation time then you understand why defence lawyers are disappearing.
4. Speed up police investigations. Police are taking longer and longer to do their investigations (and the Kahui case is not what I am thinking of) and the defence often gets piecemeal disclosure throughout the case. It is almost unheard of these days, especially in major trials, for the police not to still be investigating even up to trial, with the resulting case changing as they uncover more information. Don’t forget that the defence is rarely allowed to use a private investigator by the LSA so are reliant on the honesty of the police in providing relevant information to them. Often important matters are left to the last minute to disclose, or even until the middle of trial. This also delays the process.

While it is of course fashionable to abuse the defence lawyers in all this, it is the system itself that has the problems. Underfunding is chronic. The police get another $180 million or similar to recruit new cops, but there is no provision to accommodate the inevitable rise in prosecutions that will accompany so many more police officers being in the community. That is just shortsightedness.

Stephen, when 8%, and shrinking, of your own profession do any criminal legal aid, and 3% of your profession do most of it, you have to ask yourself how long it will be until the defence bar basically ceases to exist in the form we know it as now. When that happens, the delays will get longer as everyone will have to represent themselves. Mind you, that will result in more convictions, so perhaps that isn’t a bad thing?

  • JohnMacC
  • May 27th, 2008
  • 9:40 pm

FE Smith has some fair comments about limited appeal of criminal defence as a practice. But we don’t need more judges, just less time wasted in procedeural rubbish, no-show counsel and rescheduled hearings, etc. if we streamlined pre-hearings etc it wouldn’t cost as much time and effort for counsel to prepare for the trial.
Delays in getting Weatherston to trial are ridiculous – hard to see even that there’s the need for a depositions hearing on this, let alone all the preliminary nonsense.

  • GPT
  • June 5th, 2008
  • 1:15 am

Sila had some difficult questions to answer and I do not envy that jury. Many of the facts may not have been in dispute but the Crown still had to prove murderous intent beyond reasonable doubt. Murder is an attractive result from an emotional point of view – two young people cut down and many more injured. This is why it is so important for justice that decisions on guilt are made by independent juries who have heard all the facts and not arm chair critics and/or on emotion.

I would just endorse F E Smith’s comments.

There is a lot more to getting matters into court than simply finding a judge, a prosecutor and (usually as an afterthought) a defence counsel. You need registrars, court ushers, jury attendants, typists (they have a flasher name that I forget at the moment), security.

Even if you can find a Judge, the support staff and a Court you then have to pin down the police and witnesses and find defence counsel.

The reality is that there are less and less available defence counsel and the quality is going down. (The High Court Judges apparently were most excised about reducing quality of criminal counsel and the DC Court is also increasingly concerned). I understand that Auckland is in a particularly difficult situation. Judge’s are having to babysit jury trials through every step to try and ensure a fair trial – creating delays and frankly blurring the role of the Judge.

The reality is that after years of underpayment the numbers of junior counsel, of any quality, coming through are dwindling. After all who is training them? Firms cannot afford to do criminal work. As a managing partner of a reasonably large firm recently said to me – they don’t mind doing their bit but they’re not going to be rogered. Some young barristers are lucky enough to be adopted by a senior barrister but the reality is that stocks are dropping and less and less are doing more – and that’s only those who still do legal aid (many senior barristers will only do “interesting” legal aid cases).

My view is that defence counsel have to ensure a fair trial. To do that they need experience and skill. Defence counsel should not be an afterthought so that another box on the perception of justice can be ticked.

I realise that paying defence lawyers more is the political equivalent of a bucket of sick but the disposition of speedy and effective justice requires every facet to be funded – and that includes defence lawyers.

One final thought – can anyone justify why the Crown rates (who are supported by the Police) are significantly more than the defence rates?

  • ross
  • June 5th, 2008
  • 11:31 am

“And wrongs must not be compounded by punishing people who are not guilty”.

Yet, Stephen, you do not support a wide-ranging inquiry into the Peter Ellis case. How odd.


I think that there are less and less available defence counsel and the quality is going down. (The High Court Judges apparently were most excised about reducing quality of criminal counsel and the DC Court is also increasingly concerned). I understand that Auckland is in a particularly difficult situation. Judge’s are having to babysit jury trials through every step to try and ensure a fair trial – creating delays and frankly blurring the role of the Judge.

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