PUBLIC OPINION AND THE JUDICIARY – DOES IT MATTER?
Hon Phil Goff
District Court Judges Triennial Law Conference
Millenium Hotel, Christchurch
1.30pm, 25 February 2000
Thank you for your invitation to be here today.
The question raised in the topic is provocative - no doubt deliberately so. The answer to it is obvious, or should be.
The judiciary, like the legislature, ignores public opinion at its peril. And regrettably, the public feel that their
opinion has been ignored.
Notwithstanding the fact that the question posed in last November's referendum involved multiple issues, the message
contained in it was absolutely clear.
92% of the voting population supported the referendum question initiated by Norm Withers. It was an overwhelming
expression of frustration with the delivery of justice in this country. The prevailing sentiment has it that victims of
crime are treated poorly while the perpetrators are treated rather too well.
No politician, civil servant or judge can afford to ignore this message or the sentiment that lies behind it. In
general, law-makers must be responsive and accountable to the public they represent; and, in turn, the judiciary must be
responsive to the intentions expressed by those laws.
I'm not advocating that either government or judiciary abandons their judgement and make decisions blindly according to
the popular sentiment at any particular moment. Leadership is about exercising judgement.
But equally, leadership in a democracy is about addressing the concerns of the public from whom our mandate to make
judgements is drawn.
Public opinion in a democracy does not take kindly to being ignored - particularly when there is a suspicion that it is
being dismissed arrogantly.
Politicians who drift too far from the public will face the judgement of the ballot box. When it comes to the judiciary,
there is, quite rightly, no such summary discipline. But, if left unchecked, the consequences can be far more insidious.
Let me say at the outset that I believe the judiciary generally serves the New Zealand public very well. It is not an
easy job, requiring as it does sometimes wisdom approaching that of Solomon.
We are fortunate to have a high quality and independent judiciary, which I believe compares favourably with any other
country of the world.
It is an inevitable reality of professions such as yours and mine that your job can be done impeccably 95% of the time
and this good work is taken for granted because the public expect justice to be done. The focus inevitably falls on the
handful of cases that provoke public outrage. It is these cases that shape public opinion and risk tarring the whole
Judiciary and undermining faith in the justice system.
I am conscious that given the public standing of politicians, I do not occupy the moral high ground in drawing attention
to how the public perceive the judiciary.
However, I know that you will be aware, and concerned that a worryingly large group of New Zealanders no longer have
full confidence in the justice system. In the last five years in New Zealand the public has:
expressed frequent bewilderment over sentencing practices and bail decisions;
expressed increased scepticism that there is truly equality before the law;
heard a few rather arrogant and socially insensitive comments from the bench;
expressed real grief about the apparent failure of Judges to respond to Parliament's concerns for victims by seeming to
ignore the law relating to reparation;
in albeit a rare example, witnessed Judges charged with criminal offences.
A 1997 opinion poll indicated that 60% of the population thought judges did only a "fair" or "worse" job of protecting
the public.
As you know, for the past six years I have been the opposition spokesperson for justice – I am now Minister of Justice.
I want to see certain changes.
Most emphatically I want to see changes to the current public perception of the criminal justice system. It must be seen
as effective, fair to the victims and defendants, and transparent. It has to be delivered – and be seen to be delivered
– by competent, fair, and impartial judges – empathetic to the social realities of most New Zealanders.
Let me assure you that the Government will be responding to the clear message sent by the referendum, and so must the
judiciary. The Government's response will consist of legislative and policy action on victims' rights, reparation and
compensation, prison work and sentencing and parole.
While the short-term emphasis is on reaction to crime, the long-term focus must be on prevention - tackling the causes
of crime. Unless we do this, there will never be sufficient police, courts or prison cells to make our community safe.
The issues highlighted by the referendum for the judiciary are revealed in the wording of the referendum question
itself.
Sentencing
The first of those issues relates to sentencing.
While the Criminal Justice Act 1985 provides some sentence guidelines, our current legislation leaves the courts a large
measure of discretion in determining sentences in individual cases.
There is a public perception that the worst offences are not receiving adequate penalties. There are perhaps half a
dozen cases, each year, that are so violent or involve shocking aggravating factors, that they demand that the
perpetrators be punished to the full extent of the law. These are crimes like multiple murders and so-called home
invasions involving violence and sexual assault or murder – or both.
Yet, to public dismay, judges do not seem to use the full range of their sentencing powers, in terms of length of
sentence and use of minimum periods of imprisonment when the criminals are brought before the court. These powers were
extended through last year's Criminal Justice Amendment Act. In some cases where lengthy sentences have been imposed,
judges have fuelled public anger by indicating that they have imposed those sentences reluctantly.
The public perception is that these are the worst offences. If they do not attract the most severe penalties then the
public are left struggling to comprehend the gap. It is perceived that the justice system has not adequately denounced
the viciousness of the crime and that justice has not therefore been done.
Parliamentarians are left wondering how to ensure that the public desire that these worst offences be punished more
severely is realised. In recent years the response of Parliament has been to raise maximum penalties across the board
for certain offences.
For example, maximum rape penalties have been raised from 14 to 20 years. This has resulted in an increase in the
average length of rape sentences but the mechanism used to achieve that increase in the average seems extremely blunt.
And the maximum penalties for rape now seem out of sync with the actual sentences served for murder, a much worse
offence.
There are examples of many overseas jurisdictions (states of Australia, Canada, US, UK) that have responded to public
dissatisfaction by decreasing the extent of judicial discretion that exists in sentencing. Some jurisdictions place
reliance on mandatory penalties.
I do not want to see New Zealand adopt that sort of approach. I believe strongly that sentences should be tailored to
the individual circumstances of the case. The punishment must fit the crime and judges need sufficient discretion to
ensure that this occurs.
Mandatory penalties in other jurisdictions have led to sentencing that is unjust and absurd. An offender in California
for example was sentenced to a mandatory 25 years jail for stealing a slice of pizza because it was his third felony.
Closer to home, an offender in the Northern Territory was sentenced to a year in jail for stealing a packet of biscuits.
Also in Australia a few weeks ago, a 15-year old boy hanged himself in prison after attracting a mandatory jail sentence
for stealing pencils.
Mandatory penalties undermine the ability of the judiciary to ensure that penalties do fit the crime, and that
aggravating or mitigating factors in each case can be taken into account. However, if the judiciary takes too little
account of what the public through the legislature is saying about adequate penalties, the pressure for mandatory
penalties becomes irresistible.
In particular, I believe the public would like to see greater differentiation in sentencing for murder. Where there are
grossly aggravating factors in a murder such as torture and sexual abuse, or where a murder results from careful
premeditation to prevent a witness giving testimony in court, the public, and I, wonder why the full range of sentencing
powers is not used.
The Degrees of Murder Bill is a response to this. I believe that this Bill creates less, not more flexibility. A far
more flexible approach was contained in the amendment to the Criminal Justice Act last year allowing judges greater
discretion to set minimum periods before parole. If this is not adequately used, however, there will be greater pressure
for a Degrees of Murder Bill.
Equality before the law
The second issue that I wish to raise in connection with public opinion and the judiciary is also related to sentencing.
That is, the need for all citizens to be treated, and be seen to be treated, equally by the law.
The public perception that a billionaire may receive different treatment from the court than would a backpacker or a
beneficiary, fuels real public anger and does the judiciary enormous damage in public eyes.
We must have consistency in court processes, including in sentencing, name suppression, and comments made in judgement,
for like cases regardless of the personal wealth or status of the parties involved.
Reparation
The third issue, also reflected in the referendum question, is the perception that the justice system abandons victims
to their misery. I believe this is partly because of the failure of the judiciary to adequately utilise sentences
imposing reparation.
Current figures indicate that reparations are ordered in only 7.1% of cases despite the law (the Criminal Justice Act)
stating that:
"The court shall consider imposing a sentence of reparation in every case, and … shall impose such a sentence unless it
is satisfied that it would be clearly inappropriate to do so."
I appreciate that in many cases you cannot get blood out of a stone. However, I have difficulty in accepting that the
extremely low current use of reparations is inevitable. This Government will be legislating generally for better rights
and compensation for victims, and specifically will be seeking more frequent use of reparation orders.
Judicial Commission
The final issue I want to raise today in the context of public opinion and the judiciary is that of general judicial
behaviour and transparency of the judicial institutions. Transparency builds confidence – transparency of appointment
processes, transparency through open court hearings, and transparency through a fair use of name suppression orders.
The public currently expresses a real uncertainty about whether or not Judges are being held properly accountable and
having their performance monitored. Occasional inappropriate comments from the bench or more serious misconduct have
damaged the public standing of the Judiciary.
I am aware – as are most politicians – that comments can be taken out of context. Misconduct incidents are isolated. The
vast majority of Judges are persons of high integrity. I agree.
The public is not always so generous. Negative perceptions can easily take hold.
The previous Attorney General made some preliminary steps towards enhancing the legislative framework within which
Judges operate and encouraged a better complaints' mechanism. These steps have not yet been completed. Labour Party
policy envisages a more comprehensive approach, involving an Independent Judicial Commission. The new Attorney General
is reviewing the current approach in light of our manifesto commitments.
Conclusion
Public opinion about our Judges and our justice system matters – a lot. The Judiciary must care about public opinion
because you must earn and sustain public confidence. You are the guardians of our justice system, and as such you must
sustain public confidence in that system.
You have the legislative protections and conventions that provide you with the independence to do the task – the rest is
up to you and your peers.
I believe that the most significant threat to judicial independence, and ultimately to the way our democracy works, is
if the Judiciary ignores public opinion.