Monday, June 23, 2008


The furore and finger-pointing at the police by persons, including some who should know better, in the wake of acquittals following three recent high profile murder trials ignores the reality that the majority of these cases (two out of the three) involved allegations of domestic violence. In the Kahui case, the accused father was found not guilty of killing his twin baby sons. In the Gwaze case, the accused was acquitted of the sexual violation and murder of his 10 year-old niece.

Such crimes of physical and sexual domestic violence are notoriously difficult to prosecute. By its nature, domestic violence is a private crime. Thus in the majority of cases there are no independent witnesses. If the family of the accused are uncooperative, the chances of a succesful prosecution are further diminished. Furthermore, if the accused elects not to give evidence, the Crown cannot cross-examine him. Defence lawyers can therefore attack the credibility of prosecution witnesses; while the jury are deprived of the opportunity to observe the demeanour of the accused and have the reliability of his evidence tested under cross-examination.

The private character of domestic violence also lends itself to the defence strategy of 'blame someone else (usually the child's mother) for the offending'. This approach was successfully employed in the Kahui case. The same strategy was successful in at least one other New Zealand case in which the accused was acquitted of murdering his 10 month-old stepson. Police in this case also stated that they were not contemplating any further investigation.

In another New Zealand case, the accused, who was charged with the murder of his partner's 16 month-old son, maintained that someone else, probably the child's mother was responsible for the child's death. At trial, the Crown accepted that evidence the accused had previously assaulted the child's mother when she attempted to remonstrate with him about his violence toward the child was inadmissible. However, the conduct of defence counsel when cross-examining the mother led to a successful application by the Crown to adduce this evidence. Had the defence lawyer in this case elected not to cross-examine the mother in this way, evidence that the accused had perpetrated acts of violence against the child's mother in response to her attempts to protect the child would not have been heard by the jury.

The private nature of domestic violence and non-cooperation of the accused and family members may also result in the case coming down to a contest between prosecution and defence expert witnesses. James Q Wilson notes that: "There is no lawyer worth his hire who cannot find an expert to testify in a way that will help his client, even though the opposing lawyer has his own expert testifying with equal assurance on the other side." In one case in which the forensic evidence consisted of testimony from fire experts, the tests used by the defence in an effort to exonerate the accused were also used by the prosecution. Thus a case may turn on which interpretation of the evidence jurors believe.

If the evidence leaves the jury with any reasonable doubt as to the accused's guilt they must acquit even if they believe him or her to be guilty. Thus an acquittal does not certify that the defendant is innocent. (Nor does a plea of not-guilty imply a contention by the accused that he or she is not criminally liable.)

Media claims by some defence lawyers that the recent acquittals are reflections of the quality of police investigations operate as a smokescreen which obscures the domestic violence elephant in the room.

It is also disingenuous to point the finger at the Prime Minister for articulating the concern of many New Zealanders about these cases. The reported description by one defence lawyer of the PM's comments as: "politics stepping into the arena of the justice system, the legal system" implies that the legal system is itself, apolitical. However, from the creation of a special offence of petty treason for adulterous wives, and judicial depictions of the Treaty of Waitangi as a 'nullity'; through to modern notions that women say 'no' to sexual intercourse when they really mean 'yes'; that marriage is a state of bliss reserved for heterosexuals; and that 'ordinary' persons would understandably react with lethal violence to a non-violent sexual advance by a gay male, law has revealed itself to be a thoroughly political institution.

Furthermore, the perception of criminal law as an autonomous body of rules which is immune from prevailing cultural norms and values has been thoroughly debunked by legal academics and discerning judges. "Every decisionmaker who walks into a courtroom to hear a case is armed not only with the relevant legal texts, but with a set of values, experiences and assumptions that are thoroughly embedded." (Madame Justice Bertha Wilson, 'Will Women Judges Really Make a Difference?')

It is past time to re-examine the ways these values and norms are reflected in criminal law policy and practice in relation to domestic violence. However, although many overseas jurisdictions have undertaken reform of criminal laws and evidentiary rules in domestic violence cases, civil liberties and defence lawyers in New Zealand, as well as some left-wing male activists, may find it less personally challenging, and therefore much more palatable, to simply blame the police.

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