Judicial prior Notice
Topic: Justice for ALL
I happened across this on the Internet while looking for information in Judges with pre-knowlwdge.  I thought of Heron J
Kane v. University of British Columbia
Supreme Court of Canada
Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and McIntyre JJ.
Ritchie J. (dissenting):
3. The judgment rendered at trial by Macdonald J. is now conveniently reported in 82 D.L.R. (3d) 494, and the reasons for judgment of the Court of Appeal of British Columbia are also now reported in 11 B.C.L.R. 318, 98 D.L.R. (3d) 726; both of these reports contain a full review of the circumstances giving rise to this appeal.
11     The words which I have italicized are treated by the appellant as being potentially prejudicial to him in that they might be taken to mean that the president stated some necessary facts relating to the Kane suspension which could be construed adversely to him, and he had no opportunity to answer. This submission is supported by reference to the case of Kanda v. Govt. of Malaya, [1962] A.C. 322 (P.C.), in which the report of an inquiry containing a most damaging indictment against Inspector Kanda as an unscrupulous scoundrel was made available to the adjudicating officer before he sat to inquire into the charge while it was withheld from Kanda. It was in these circumstances that Lord Denning said at p. 337: "It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough". The full quote of Denning LJ in 'Kanda v. Govt. of Malaya, [1962] A.C. 322 (P.C.),'  is "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them..... It follows, of course that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of others.The court will not require whether the evidence or representations did work to his prejudice. Sufficent that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough."    When it is considered  Heron J had previous to the trial heard prejudicial information to issue an Interception Warrant.  It would appear to me that this information should have been mad known to the defence by the judge at least or it should have been enough to disqualify him.

Topic: Secret Witnesses

 Marlborough Express Monday, May 31, 2004

 Man claimed knife was for protection A Blenheim man carried a knife to protect himself from a gang he had recently left, the Blenheim District Court has heard. Bevan John Kelly appeared before Judge David McKegg on Friday and pleaded guilty to charges of possessing a knife in a public place, theft and receiving. Representing himself, Kelly told the court the knife was to protect him and his children after disassociating himself from a gang, from which he had since received threats. "I took it upon myself to protect me and my family," he said. Judge McKegg noted Kelly's extensive record - "the less said about that the best". He sentenced him to 200 hours community work.  (See Note Below)

Topic: Secret Witnesses
The Marlborough Express.Page 8-The Marlborough Express. Monday, October 29 2001 Burglary earns suspended sentence A man who broke into sheds at Montana Wines and stole $15,000 of tools which he buried in his backyard was given a suspended prison sentence On Friday. Bevan John Kelly,31, was given a chance to continue with his ongoing rehabilitation said Judge Tuohy who noted the millhand had support from his family and good work references Police prosecutor Sergeant Peter Halligan told the court Kelly and an associate had broken into an engineering workshop and storage sheds on Montana's Renwick estate. Lawyer Neroli Vallance said that while. Kelly had previous convictions and had served prison time he had made genuine inroads into his rehabilitation.  (Note)  Secret Witness "B" was 39 in 1999 so in 2001 would be 41, ten years older than this man but whether that is an accidental or deliberate error I don't know. Then again it could be a different man altogether.   

Prosecutors responsibilities
Topic: Truth or Credibility

 

Prosecutors responsibilities, what are they?  John Pike Senior Crown Counsel Crown Law Office, New Zealand, speaking on the 'Role of the Prosecutor in Protecting Humans Right' to the 5th Annual Conference and General Meeting , International Association Of Prosecutors, September 2000. said. "Resting on two pillars of independence and accountability and as part of the principle that the prosecutor is in some senses a Minister of Justice is the duty firmly and fairly to present the prosecution case but to refrain from striving for a conviction". The relevant part of the quote is "the prosecutor's duty is to firmly and fairly to present the prosecution case but to refrain from striving for a conviction" This being the case why did the prosecution in R v Watson feel the need to abridge and alter statements to change the appearance of the unidentified man to match Scott Watson if it was not to strive for a conviction

 

At the same Conference The Right Honourable Lord William of Mostyn QC Attorney-General United Kingdom said "As agents of the State, prosecutors have clear responsibilities to ensure that Human Rights are guaranteed. This not only means refraining from doing things which might interfere with rights, but also taking positive steps to ensure that rights are guaranteed." I would have thought that presenting the jury with a whole new scenario that had not been raised in evidence ,in fact in direct opposition to the evidence, at the end of summing up was not taking positive steps to ensure that rights are guaranteed. Rather the opposite in fact I would have thought.

Cate Brett, Christchurch Press August 9 2000, paraphrasing the Ministry of Justice Research Paper 1997/10/38 Jury Decision Making wrote, “of course, in our adversarial justice system a jury gets told two different official stories, the prosecution story and the defence story, and is then sent away into a room to decide whom to believe. Interestingly what the researchers in the jury project discovered is that too often the jury thinks it has been asked to find out the truth, rather than simply judge between the credibility of the two teams. Often as a result of this misguided interest in the truth, juries feel frustrated by the knowledge they are being denied vital pieces of the jigsaw puzzle.” I have tried to find the original paper on the site but have not been successful. To my mind a trial should be about truth not credibility.

Research into miscarriages of justice have revealed that jurors believe the summing up of the prosecutor is factual and has been covered in the evidence present to them during the trial and look to the defence summing up for disputed evidence that is more believable. As Cate Brett says jurors believe they are to find the truth and convict on that. This appears to be contrary to her belief which is the jury should convict on "credibility". An experienced witness can lie and appear credible, an honest but nervous witness tell the truth and not appear credible. Some judges do warn juries of this paradox.

Scott Watson
Topic: Confessions

Ideally a confession should always be recorded on  video so the demeanour of the alleged can be observed by a Jury or judge

Many law jurisdictions do not allow verbal accounts of confessions even from police officers even if signed by the suspect as being freely given and Juries are warned by Judges to place very little credibility on them. For cellmate informer confessions then the standard is that the confession must contain a verifiable fact previously unknown to police. The Watson type of informer confessions would now never make it outside the jail door, specially the one where payment was received. Even in 1998/9 The Sophnow and other inquiries results should have been a warning to the Judge and Crown of the unreliability of cellmate informers, the information even then was not new althought it has become much more widely known now. The fact that Juries believe cellmate informer confessions as readily as they believe confessions to police officers is not recent knowledge either but was not so well research as it is now. Peer reviewed scientific studies over the last 10-12 years have shown negligible difference in the juries belief of convicts and police officers in relation to confessions. I guess juries feel nobody confesses for nothing as they also believe false confessions from the confessor. Police here and overseas have a surprising large number of "serial" confessors who surface for every major crime and confess.

I spend time studying identification methods, eyewitness identification and the flaws in methods I have read a lot of Gary Wells work at Iowa State University. Police misuse of methods etc. The montage method used in the Watson investigation is the worst possible method and the easiest to manipulate to get the required identification. On that alone the trial alone would never succeed in the US, UK or Canada. It has an 80% failure rate under ideal conditions. The police in the montages used in the investigation broke every rule of best practise possible.

Photo Montages as used by local police in 1998 were under intense tests in many jurisdictions because of the huge number of false positive results they produced even if well carried out. Those done by Police to identify Scott Watson would be absolute classic examples of how not to do the montage system. If it was possible to get it more wrong it has not been found yet. Best practice for montages then was avoid then if at all possible but if they were to be use then ALL the photos used must as far as is possible match the descriptions of the alleged suspect. No one photo should stand out either by different clothing which should as far as is possible be the same. Back grounds of photos should be identical with nothing to draw attention to any one particular photo. The most important thing is the supervising officer should not know which photo is the alleged suspect. This is to prevent the officer giving subtle clues as to the suspect.

Further to the blind provided by the supervisor not knowing the alleged suspect the witness should be told that the alleged suspect may not be in the montage at all. This in some part provides a double blind. A major disadvantage of montages is that witnesses compare the photos before them  and select the one that they believe is closest to the alleged suspect. In tests where witnesses were not told the suspect might not be in the montage all most every witness picked a person even if the suspect was not in the montage. When asked about how sure they were they often expressed doubt but felt they had to pick some one. Best practise is to imediately ask the witness how sure they are and record this and then remove the photos before they can look again. Time should limited for the witness to decide.

With montages if a second is required and it is preferable to have two then none of the photos in the first should be in the second montage as witnesses will focus on that even if it is the wrong person. Even in the best run montage identification trials and real use situations the false id rate was still around 70-80% in other words the wrong person was identified more times than the right one. The success rate improves if the supervisor is aware of the real suspect and even while trying not too does give subtle hints and in some case blatant hints as to the real suspect. In most police organisations photo montages are a historical embarrassment and extremely rarely used now because of the number of miscarriages of justice they have been a major factor in. Photo identification is still used but sequentially and only one photo is visible at a time and are used with the same warnings and supervisor blind and have a false Id rate of about 10-15%.

Even well organised lineups now use the same methods of double blind where the suspect may not be in the line up and the line up supervisor does not know if the suspect is there or not to prevent visual hints. The degree of certainy is recorded straight away and the witness is not given time to rethink their certainy or lack of it.  Ideally all identification methods used should be video recorded as well as the witness certainty being videoed. Audio recording is acceptable as a fall back but verbal reports are not acceptable as evidence specially if the supervisor knew the suspect.

It was a surprise today to discover the New Zealand Police are still using montages as their main indentification tool in spite of their proven unreliability They have modernised their methods since 1998 but still don't follow what is considered best practise for montages  double blind and  video recording of the process and results and the photos used now  are named although this is covered instead of lettered and an effort is made to match fillers to the alleged offenders general appearance.

Scott Watson Guilty or not ?
Mood:  lazy
Topic: Justice for ALL
I have decided to start this to show a few of my thoughts on New Zealand's Justice system and it's shortcomings and hopefully eventually it's strengths (I have to find them first)