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Finn, Jeremy --- "Criminal justice in New Zealand edited by Julia Tolmie and Warren Brookbanks" [2009] OtaLawRw 11; (2009) 12 Otago Law Review 207

Last Updated: 26 February 2012

207

^{Criminal Justice in New Zealand}

(Edited by Julia Tolmie and Warren Brookbanks, LexisNexis, Wellington, 2007)

Despite the importance of the criminal justice process to both society and the law, there has been remarkably little sustained academic analysis and discussion of its principal features. Criminal Justice in New Zealand is a most welcome addition to the literature.

The book starts with three very strong chapters. David Brown of the University of New South Wales contributes an extremely lively, well-written and useful chapter “recurring themes in criminal justice policy development and debate”, which makes frequent reference to Australian and New Zealand experience and sets it firmly in the context of the continuing dialogues about criminal justice policy. This should be required reading for all lawyers and social scientists – and politicians

– involved in criminal law issues. The same is true of Julia Tolmie’s briefer chapter on the statistics of crime in New Zealand, which demonstrates the validity of the vital proposition, quite rightly referred to by many of the authors, that the vast bulk of criminal conduct in New Zealand goes unprosecuted – either simply because it is never reported at all, or not resulting in the bringing of charges by the police or other authorities. One caveat about this chapter is that Tolmie documents the differing rates of offending by Maori and non-Maori, but without ever exploring the position of other ethnic minorities in New Zealand. Given that Pacific Islands people appear to be represented in the criminal justice process at a rate three times higher than for Europeans (if half that of Maori) this seems very surprising. Given also the presence and the tone of a specific – and generally very good – chapter on Maori in the Criminal Justice system by Khylee Quince, the decision to omit references to the experience of immigrants from the Pacific, or from other areas, seems more a matter of ideological commitment to biculturalism than sustainable academic judgment.

Russell Hogg, the other Australian academic contributor, contributes an extremely useful and well-presented conspectus of criminological theory which will provide an invaluable starting point for anyone wishing to explore this field.

There is a thoughtful chapter on the role of the police by Young and Trendle, although the chapter may be of far less use to students than to policy analysts as it is heavily weighted toward questions of the constitutional position of the police and the extent to which the force is free from political control. It is difficult to see why this subject, interesting though it may be, should occupy significantly more space than the discussion of the nature and exercise of prosecutorial discretion and the administration of the police diversion scheme. The authors do offer some suggestions as to causes of a perceived lack of public confidence in the police but perhaps should have included in that discussion the possible cumulative affects of police enforcement of the widely breached laws

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^{against consumption of cannabis and the even more widely breached}

^{traffic laws, as well as raising the possibility of ethnicity factors.}

The book then turns in successive chapters to sometimes overlapping (and slightly dissonant) chapters on aspects of the trial process. There is a brief overview of the criminal proceedings by Warren Brookbanks. This is generally both very good and useful, but at times the brevity means the chapter does little more than indicate the content of relevant statutory provisions without reference to the case law encrusting them. Scott Optican contributes a chapter on the influence of the New Zealand Bill of Rights Act 1990 on criminal procedure. It must be said that this is not vintage Optican, nor is it the most helpful discussion of these issues for the uninitiated. In a number of places Optican sets out what he believes the law should be and only then proceeds to consider whether the treatment of the courts accords with his views. It is unfortunate that Optican’s discussion of the decision in R v Alo that the police need not inform an arrested suspect of the right to free legal advice was overtaken by the Practice Note issued under the Evidence Act by the Chief Justice, a matter referred to only in a postscript to the chapter and without amendment of the original text. Surely if there was time to prepare and insert a postscript, there was time to amend the original text!

Last among these procedure-oriented chapters is one by Peter Sankoff titled “Constituents in the trial process: the evolution of the common law criminal trial in New Zealand”. The title is misleading, in that no attempt is made to explain the “evolution” of such trials in New Zealand. Unfortunately the problems with this chapter – which is by far the weakest in the entire book – do not stop there. In several places the author makes statements of legal principles or legal rights in terms suggesting them to be absolute, only to qualify them significantly in the footnotes. This is not good scholarship. Nor is it really acceptable that in a chapter published in 2007, the only reference to the leading case

– decided in 2005 – on counsel competence should misspell the case name and fail to give the report references.

These chapters are followed by an extremely informative and helpful chapter on alternatives to the traditional trial process by Warren Brookbanks and Kitaj Woodward, which is notable for its thoroughness and objectivity in what is often a politicised area of debate. This is followed by a very useful conspectus of sentencing law and practice by Geoffrey Hall, who has managed to produce an account rich in detail without sacrificing readability.

The book then rounds off with a number of chapters looking at particular issues across the breadth of the criminal justice process. Julia Tolmie contributes a chapter on women and the criminal justice system which is a matter of helpful analysis and description. Both it and Kylee Quince’s chapter on Maori and the criminal justice system, mentioned earlier, should be required reading for anyone considering criminal justice issues in New Zealand. There are two chapters by less experienced writers. Nessa Lynch contributes a chapter on youth

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justice, which focuses almost entirely on proceedings under the Children, Young Persons and Their Families Act. Her account is both concise and clear, but a fuller account of the treatment of those cases where young offenders are processed through the normal trial process might have enhanced the chapter.

There is a short chapter by John Ip on crime, criminal justice and the media, which does provide some useful information on aspects of the New Zealand experience of crime reporting by the media. However the discussion of existing rules and policies is limited, and Ip does not go on to refer to, or comment on, the case law considering whether a fair trial had been precluded by media behaviour. Moreover in analysing the effect of media practices, Ip is almost entirely reliant on US analyses and experience, to the extent that his discussion of reality television omits reference to New Zealand programmes of the same genre.

The book concludes with another chapter by Warren Brookbanks dealing with mentally disordered offenders. This is an area where the author ’s immense knowledge and clarity of analysis is of great value in steering the reader through the complex web of statutory provisions.

The book as a whole shows some weaknesses for which the publishers must take responsibility. The index is weak and unhelpful – to find any mention of the role of lawyers, one must find “legal representation”

– not lawyer or barrister or counsel – and even then the references are limited. The look of the book is also marred by the decision that footnote references would be set out in full on every occasion, so that where (as all too frequently happens in several chapters) the authors refer in four or five successive or adjacent footnotes to the same article or website, the entire reference is repeated. In such cases the bulk of the footnotes threatens to take over the page of text. A firmer editorial hand or a different style would have avoided this.

Despite the faults in some chapters indicated above, the book is an extremely valuable addition to New Zealand’s legal literature. Most of it will be of great value to students and to those whose work or interests engage the criminal justice process. It is to be hoped that in any future editions of this work (and it deserves many future editions!) the opportunity will be taken to bring the whole work to the standard of excellence it displays over the substantial majority of its chapters.

In evaluating this review, readers must take into account the fact that several of the contributors to the book are co-authors of Adams on Criminal Law, of which I am also a co-author, while others are academics I have known for many years. I have tried to avoid being swayed by either fact.

Jeremy Finn, School of Law,

University of Canterbury.