Mark Henaghan agrees the victim impact statements are important but says their function is specific:
The key rule is the impact the crime has had on you. It’s not a forum to vent your feelings about the system or to add in things that might not have come out during the trial. They might be your views and held sincerely, but a victim impact statement is not the place where these things can be aired.
However, if you want to say things about the impact and how it has affected your life, you can go for it. For example, Gil could say, ‘Our lives are hell,’ but not ‘I want your life to be hell.’ You tell the defendant what you think of him by telling him how his actions have impacted on you but you cannot tell him what you think of him.
It’s extremely frustrating for Gil to feel he’s being muzzled. Of course he was angry with Weatherston and rightly so. But the rules regarding victim impact statements are quite clear and perhaps he wasn’t advised as well as he might have been.
Gil still believes that the judiciary’s view is too narrow. A victim impact statement is the only way a family member can tell the offender how they feel. Gil’s delivery of his statement was compounded by the censoring.
About one third of my victim impact statement was inked out with black felt-tipped pen when I received it back from the police the night before sentencing. I had spent a lot of time preparing it, only to have to read through and around the inked-out bits. This made an emotional experience even more daunting. I didn’t want to be in contempt of court, but on reflection I should have been strong and read my uncensored version — the one I had practised and had wanted to express in front of the murderer. Everything I had stated in my victim impact statement, apart from being true, had impacted on me.
Since the trial of Weatherston I have taken particular note of people reading their victim impact statements. Often what they say is directed at the accused and isn’t strictly speaking an impact. It seems some judges are more lenient than others and there is a lack of consistency. If that’s the case why can’t a more liberal interpretation be the norm? The term ‘impact’ has been too narrowly interpreted by the judiciary. Impact is a subjective term so what impacts on a victim will be quite different to what the impact might be on police or lawyers involved in the case.
To my mind victim impact statements are ‘make believe’. This may sound rather cynical but it’s my opinion that allowing statements to be read is more about making the victims believe they are involved in the process. And I am not alone in this contention. I have met many family members of murder victims and a good deal of them experienced the same frustrations. If someone murders your child and you get an opportunity to address the killer face to face, why shouldn’t you be able to tell them what you truly think? Why is the criminal justice system so paranoid about this? Is it because we are so politically correct we don’t want to hurt people’s feelings? In our case Weatherston never thought about how we, or indeed his own family, would feel when he decided to kill Sophie. Yet I am expected to tiptoe around the issue in case I offend him. Here we have a murderer convicted of a heinous crime and a system bending over backwards to protect his feelings.
My wish is that, in the future, victim impact statements will be given a broader interpretation by the judiciary. It is a little-known fact that prior to the victim reading the statement the defendant has already been supplied a copy. That is abhorrent and I disagree with it. While I am grateful there is a facility for victims to have a say, I am firmly of the opinion we need to expand the parameters and give victims a chance to vent their feelings. There is room for improvement.
5. Bill of Rights
If anything in the criminal justice system gets Gil Elliott fired up, it is mention of the New Zealand Bill of Rights. This seems to give all the rights to the offender at the exclusion of the rights and needs of victims. Gil proffers the questions: ‘Should the Bill of Rights carry more weight for the defendant than the victim? Where is the balance?’ From the victim’s viewpoint it is easy to agree with him. If the rights of an offender are enshrined in law, why isn’t the same consideration given to victims? If an accused has the right to a fair trial (and we can’t argue with that), why shouldn’t a dead person have their rights to privacy preserved? Sophie had no rights at all. Is that fair?
In a case like Weatherston’s, everything, whether it was the change of venue, suppression of evidence on prejudicial grounds, right through to victims being denied court transcripts because an appeal is pending, was very much in favour of the defendant. Mark Henaghan explains the Bill of Rights isn’t new and has simply evolved over time to ensure the premise of innocent until proven guilty remains the cornerstone of our judicial system.
In earlier times when a member of the lower class came before the court they had no rights at all. They didn’t have a lawyer and often confessions were beaten out of them. Some were even tortured. If the King didn’t like you, he got rid of you. Over time rights have been crafted out of sympathy, which in those days was pretty brave of judges, bearing in mind the power of the King. Today we have the Bill of Rights to check against the arbitrary power of the state. What they are is really a manifestation going back many years.
I can really sympathise with Gil believing that Clayton Weatherston had all the rights. And I also think it is right and proper that people like Gil have their say. We need to hear from people in his position.
Almost everything the Elliotts raise as legitimate concerns can be addressed and remedied quite easily, providing the lawmakers and those who uphold the law are prepared to change their thinking.
During an address at a law conference in South Africa during March 2005, the president of the New Zealand Law Commission, Sir Bruce Robertson, said in a paper ‘Law Reform: What Is Our Knitting? How Do We Stick To It?’, presented on law reform:
The longer I am involved in the law the more I am persuaded that the law in my country has become too much of an end in itself. It is too often inward looking and with norms, standards and approaches maintained for the benefit of those who are already within the group or club and insufficiently directed to the needs and rights of the general populace. There are barriers of cost. There are barriers of time. There are barriers of ethos and language. Worldwide there is a need for renewal and improvement on a continuous basis.
The law is heartily caught in a time-warp and appears over-influenced by how things happened a century ago. You do not achieve justice by cocooning the law in a past which is divorced from a current social, economic and operational reality.
Those of us involved need to remember that the more ambitious recommendations are, the more opportunity is presented for those who are uncomfortable with the thrust, or unhappy with the prospect of change, to go on the defensive and lobby against reform.
The challenge for law reformers is to find a resolution of the tension between what is pragmatically achievable and what principle and integrity suggest.
Basically I suggest we should be proactive rather than reactive. Too often, in a desire to be consistent, we fail to recognise that the same response will have enormously different consequences for some individuals. Doing the same thing in the same way might be termed justice, but it is frequently unfair and inequitable. Law reform is about tackling these problems.
From the Clayton Weatherston trial there are lessons to be learnt, and Mark Henaghan agrees.
Justice delayed is justice denied. The University of Otago is currently doing a study on the time it takes from charging an offender through to sentencing and also the length of criminal trials. Both seem to be getting longer. You don’t want to rush into trials because you not only need to prepare, you also need to let some of the emotional heat out of the argument. But the time lapse shouldn’t be as long as it is now. Certainly not 18 months.
Adequate compensation is essential. Even if the family of a murder victim are not giving evidence, it is still right and proper they attend the trial. If it is lengthy (as the Weatherston one was) a considera
ble amount of expense accrues. While Victim Support is funded to provide some relief, it comes nowhere near actual costs.
Relocating a trial is even more inconvenient and expensive. Being away from home must be utterly frustrating. In my view the best way is for the state to pay all the costs for a family to be away. They have a fundamental right to sit through the trial. And that includes recompense for taking leave. In this case it seems almost inconceivable that Lesley should have had to take well-earned long-service leave to sit through the trial of a man who murdered her daughter. As a humane society we need to do what we can to help minimise their suffering. And there have to be compelling reasons for not getting to trial on the due date. Having one postponement is bad enough but two is unacceptable.
In my view the catalyst for change comes down to communication. The state has to realise that in murder cases people are suffering very much. We need to be a compassionate society to lessen the ordeal. A family doesn’t drive a case but they should feel included — that they matter.
I fully support victims getting compensation so the expenses they incur, even down to their house being devalued if the murder took place there, are recoverable. I am aware that for the Elliotts there are serious and long-term financial repercussions brought about by the actions of Weatherston, but this is perhaps not the forum to discuss such personal matters. But it goes without saying that families involved in these sorts of tragedies do have to bear those financial repercussions and I question whether that is fair. Just take for example the place in the workforce for Lesley — an experienced and valued neonatal intensive care staff nurse no longer able to work full time. That obviously means income is restricted.
Since the Weatherston case went to court there have been excellent increases in financial assistance to the families of homicide victims through Victim Support. Grants to reduce the financial impact have been increased along with daily allowances when attending High Court trials. While that is to be applauded, I believe as a caring society we need to do more.
This tragic event happened to the Elliotts; they had no say in the matter. We live in a society where this kind of thing can happen to any one of us. I want to live in a society where people like Gil and Lesley are looked after. Their need to know about timeframes, what’s going to happen each day of a trial, protocols etc. Victims are not casual spectators like the general public. Here we have two people and their sons who had been through a horrendous experience left to feel sidelined. It needn’t be like that. When a victim is left in the dark, they assume the worst-case scenario and when that happens, you add more stress, which we should actually be trying to lessen. Police over recent years have embraced the victim philosophy well and the judicial process can learn from that.
Perhaps we should be looking more at the model Crown prosecutor Simon Moore and his team practise in Auckland. That will go a long way to addressing the issues Gil and Lesley raise.
The Crown solicitor for Auckland is Simon Moore, a man with tremendous experience when it comes to homicide trials. One of his prime objectives is to run a trial where there are no surprises for the victims. The way Lesley first heard about the extent of Sophie’s injuries should never have happened. She should have been told about this at a much earlier stage. The primary responsibility for this kind of advice must rest on the police and those responsible for liaising with victims. What Simon and his team do is not set down in any manual of best practice. Each Crown solicitor’s firm carries out tasks in a way that best suits their resources and personal preferences. But it is abundantly clear that here is a model that would have suited the Elliotts, so much so that many of their issues with the judicial system would never have arisen.
In agreeing to be interviewed, Simon made it clear that what he does suits his personal style. He does not in any way (even inferentially) wish to criticise Robin Bates and his team. Simon regards Robin as an extremely experienced and effective prosecutor who he respects and admires greatly. He points out that no case is the same and no process is perfect. Homicide cases and trials can be very difficult and the prosecutors have to be up to the mark to ensure an appropriate verdict is reached. Simon explains the system he advocates:
The fact is that we can do better with victims. My own view is that if you bring the family aboard from an early stage, where possible meet them in their own home, talk about the victim to find out who they were, what they were like and what they meant to those they left behind, you go a very long way to forging a cooperative link when it comes to trial. I often get the family to show me photo albums so we can get an idea of who it is we are representing. What I aim to do is capture the family’s confidence to show they are a legitimate component in the criminal justice system. I always explain to them the focus of the trial will be on the accused and the need to preserve fair trial rights even if it gives the impression that the victim’s rights, interests and reputation are secondary. The primary purpose of these meetings is to attempt to forge a line of communication designed to encourage dialogue between the prosecution and the family. However, I am always careful to note that I am not the family’s lawyer and that as a prosecutor my overwhelming responsibility is to present the evidence for conviction fairly and objectively. In doing so I am representing the interest of the community as a whole rather than the victim in particular.
The other key in my view is ‘no surprises’. In other words keep the family fully aware before, during and after the trial as to developments, tactics, procedural issues and objections (especially when the family have to leave the court). Forewarned means that nothing comes as a surprise and expectations can be managed. The vast majority of victims are very decent people who just want to know what the process involves and have an input. It’s all about gaining each others’ trust and knowing the limits and boundaries of our respective roles. It’s a very simple formula.
And where I work it’s not only the prosecutors that get to know the victim. Recently retired Detective Inspector Steve Rutherford has overseen some of this country’s worst murders. He would go and visit a family, sit down with them and talk. We are talking here about a tough old gnarly cop — hard as nails — but one who is compassionate for the victim. He realises victims deserve and need to be brought into the process. In my experience families are generally very understanding of the need for closed court sessions so long as it is explained to them that this is a very frequent occurrence in criminal trials.
There is no reason why a victim cannot sit in on ‘in chambers’ discussions either. There is no arbitrary or fixed rule which prevents family representatives sitting in court in chambers when members of the general public are excluded. The normal rule is that when the court sits in chambers the only parties permitted to be present are the lawyers, court staff, accused, prison officers, police officer in charge and media. However, the trial judge may permit any other person to attend and, on occasions, I have made application for members of the family to sit in. This will usually depend upon the nature of what is being discussed in the absence of the jury, the attitude of the defence and any other matter which the judge may consider relevant. Generally, the victim’s family is excluded along with the balance of the public.
There is now a protocol for prosecutors working with homicide victims of what the prosecution should try to do for victims. This only came out in January 2010. The judicial system has a statutory obligation under the Victims’ Rights Act to keep victims fully aware of what’s going on.
It’s legitimate, indeed necessary, for the Crown to make submissions on behalf of the victim. But you still have to balance this with the right to a fair trial and the overwhelming issue to be considered will be the fairness of the trial process. This concept doesn’t just involve considerations of what’s fair for an accused — it involves the wider right of what is best in the interests of justice. The prospect of a change of trial venue can be a daunting one for the family and friends of homicide victims. They have two options. On the one hand they can stay at home, r
esigned to the fact that they will be absentee and dislocated observers of an arcane process. On the other hand, if they decide to follow the trial at the new location, they have all the logistical problems associated with that. While the views of the victim’s family will seldom be determinative they are, most certainly, influential and important factors which a judge is obliged to take into account in deciding whether to order a change of venue. For that reason it is important for the prosecutor to have a clear insight into the views of the family and the reasons why they hold those views.
It is fundamentally unfair for those poor individuals who are drawn into the maelstrom of tragedy, through no fault of their own, to not only have to live through the horror and bewilderment of the trial process, but also suffer in other ways: the added ignominy, the loss and inconvenience for having to take time off work and having to make arrangements within their own families to cover for them so they can sit in court.
From time to time, depending on the nature of the trial, we will invite family members to join us during adjournments while we discuss the progress of the case and bounce around ideas on tactics and that sort of thing. Our experience is that victims’ families welcome this inclusion and respect the basis and conditions upon which they are invited. Obviously there are times when this approach can be undesirable or inappropriate, but in our experience it goes a long way to demystifying the trial process. It can also provide a useful platform for friends and family to reflect upon which witnesses they wish to hear and those they don’t. For example the evidence from a forensic scientist who examined a particularly grisly homicide scene may be something which certain members of the family would prefer not to hear. The same thing goes for the post-mortem evidence. The failure to forewarn families about upcoming evidence of this kind can be catastrophic, resulting in a highly agitated and extremely upset member of the family running out of court distressed and sobbing. You only have to witness that spectacle once to vow never to allow it to be repeated.
Sophie’s Legacy Page 19