On Wednesday an email arrives in your inbox from the court. It tells you that you have been charged with a range of offences. The charges arise from complaints to the court made by a number of named individuals and one unnamed person who wishes to remain anonymous. The offences, some of which may go back several years, are outlined. To assist the court you are asked to respond in writing to a list of questions relevant to these offences. You are told that your case is to be heard in court next week and your evidence will be taken on Tuesday or Wednesday. It is indicated to you that the trial will proceed whether you choose to appear in court or not. You are given the option of delivering a written statement of defence, though this is discouraged.
You panic. The charges against you are serious and could destroy your reputation. You are also extremely busy and the deadline for the trial allows you very little time to research the cases or prepare a defence. You seek the advice of a lawyer. The lawyer can offer you very little comfort. He tells you that in this particular court the accused may not be represented by legal counsel but must mount their own defence. What’s more, there is no judge, none of the prosecuting team are lawyers, the normal rules of evidence do not apply, and objections are pointless.
But he has still worse news. While considerable time has been spent by the Prosecution assisting your accusers to present their case, including coaching them in what to say, you will be allowed only three or four minutes at most to reply in your own defence. You point out to your lawyer that the matters of which you are accused are extremely complex and cannot possibly be addressed in three or four minutes. What’s more, you have never been in court before and will almost certainly be paralysed by nerves and incapable of presenting a coherent defence.
- “Well there is an alternative,” your lawyer says. “You can depose your evidence without actually going to court at all. In fact, that’s pretty well the norm these days. And much less frightening. You wouldn’t even have to leave your office.”
- “And I’d have more time to make my case?”
- “Oh yes, maybe half an hour or more. But there is a catch. The court will still only hear three or four minutes.”
- “So who decides which three or four minutes the court will hear?”
- “Why, the Prosecution of course!”
- “But that’s outrageous!”
- “It is, isn’t it? Good luck.”
Your phone rings. It’s X, one of the Prosecution team – again! She seemed quite friendly at first, telling you she quite understood your position and would really like to help you put your side of the story and how it was always better to come to court and ‘fess up. But she’s much more menacing now, wants you to answer a whole lot more questions on the phone and says they’ve got new evidence against you and they can’t wait forever for you to decide what you’re going to do. You decide you can’t face the idea of cross-examination either in court or in your office. You ring back and say you’ve decided to provide the court with a written statement of evidence. X says you’ll have to keep it short. Juries get bored with long statements. And she can’t guarantee they’ll read the whole statement to the court anyway. Just the bits they think relevant.
- “The bits who thinks relevant?”
- “The Prosecution of course. Who else?”
She hangs up.
You spend a day trying to reduce the complex issues involved in your defence to three or four paragraphs. You include a couple of sentences complaining that you can’t be expected to respond to an anonymous complaint and that it goes against natural justice for your accuser not to be named. On the day of the trial, you slip quietly and unnoticed into the back of the court. The Chief Prosecutor begins by summarising the case against you. He makes particular note of your failure to take the stand in your own defence. The jury, he says, is entitled to form the obvious conclusion about your unwillingness to be cross-examined. An innocent person would have nothing to fear.
The Assistant Prosecutor then leads your accusers through their evidence, shamelessly prompting them when they are lost for words, getting them to repeat their most damning claims, occasionally inviting them to address the jury directly. It is a masterly demonstration of the art of the leading question. Much of the evidence you believe to be inaccurate or exaggerated, some of it untrue. But in the absence of Counsel for the Defence no objection is possible. Very little of your written evidence is read to the jury. Your complaint about anonymous testimony is not mentioned at all. To your astonishment the Assistant Prosecutor closes by playing to the jury out-of-context excerpts from your phone conversations with X. You sound defensive and ill-at-ease. Unsurprisingly the jury returns a unanimous verdict: guilty on all counts.
The Chief Prosecutor then tells the crowded courtroom he suspects there are many others who can attest to your crimes who were not aware of today’s hearing. He invites any such persons to contact him. You return disconsolate to your office. You check your voicemail and email. Several clients have written or phoned withdrawing their business from your company and cancelling contracts. On Thursday morning you get an email from X. It says that, following your guilty verdict, several new complaints have been received about you, some going back a decade or more. You are to be charged with these offences. To assist the court you are asked to respond in writing to a list of questions relevant to these offences. You are told that your case is to be heard in court next week. Your evidence will be taken on Tuesday or Wednesday … It’s hard to believe that a monstrous court like the one in this Kafkaesque story could exist in New Zealand. But it does. It’s called Fair Go. I set it up 35 years ago.
All the elements in the story are true. I know because we’ve been involved behind the scenes with quite a few of the real people who’ve experienced some or all of those elements. We gave paid advice to those we thought were essentially honest people who had made a mistake or fallen short of their own or society’s standards. Our core advice was always the same, that they should be straightforward, tell the truth, admit but not exaggerate their mistakes. Despite following this advice, some still came out looking bad. Other than in utterly minor matters – a faulty product that the manufacturer of retailer can simply undertake to withdraw, repair or replace – the imbalance inherent in the programme’s structure between the facilities and help available to the complainants and the total lack of such facilities or help for the accused, makes fairness damn near impossible So too does the expectation that an accused layperson can respond to a complex complaint on television in a few minutes.
Earlier this week I was acting as support person to someone who is taking a case to the Disputes Tribunal. It’s complex. After an hour and a half of questioning by the Referee we still hadn’t sorted out the facts of the case, let alone come remotely near to any clarity on who had right or the law on their side and who hadn’t. Fair Go can get through three such issues in 22 minutes. Recently we have had to say to several people who sought our advice on how to deal with a Fair Go complaint that there was really no approach that could guarantee them a successful outcome. The vigilante mentality of reporters who saw themselves as society’s avenging angels meant that they had already been presumed guilty and nothing they could say or do was going to change that presumption. This is a programme out of control. Maybe it was always out of control. Maybe it’s time to recognise that and call a halt. Yes, some ratbags will get away with murder, but some fundamentally decent people will not be vilified and their reputations destroyed. Maybe that’s a fair trade.