THE PRESS TUESDAY, DECEMBER 6, 1983. Reluctant witnesses

Press, 6 December 1983, Page 12

THE PRESS TUESDAY, DECEMBER 6, 1983. Reluctant witnesses

Justice is portrayed as being blind to reinforce the concept of impartiality. Impartial Justice cannot work however, when ordinary men and women choose to turn a blind eye of their own to criminal events. The processes of the law, and the high standards of proof that the courts require, depend on the co-operation of complainants, eye-witnesses, and others who can offer material evidence. This co-operation is not always forthcoming. The police are concerned that criminals are escaping because some witnesses are reluctant to give evidence against them. Such circumstances should worry all law-abiding people. A police prosecutor said in Gisborne last week that he had noticed, in the last two years, a gradual increase in the number of people who were reluctant to appear in court as witnesses. He was supported by the head of the preventive services section at Police Headquarters in Wellington, Detective Superintendent B. F. Scott. Mr Scott said that the police did not keep statistics on this. Nevertheless, he could confirm that the number of witnesses who refused to give evidence, who failed to appear, or who gave evidence in court that was greatly at variance with what they had told the police, was by no means small.

. Although their comments were prompted by a different case, a sitting of the Auckland High Court last week highlighted the trend to which they referred. A man who had pleaded guilty to two charges of conspiring to defeat the course of justice was sentenced to a term of imprisonment of three years. The substance of the offences, as told to the court, was attempted bribery with large sums of money and alternative threats of bodily harm, “short of taking life,” to persuade witnesses not to give evidence. Fear and favour are two elements that bring about reluctant witnesses; the third is a disinclination to become involved in a court action or inquiry, the same sort of thinking that prompts some passers-by to hurry on rather than intervene when they come across a misdeed in progress.

Whichever cause is at the bottom of a witness’s reluctance, the result can be the acquittal of a guilty person. In some circumstances, an innocent person might be found guilty. Such occasions are a victory for the offender and an encouragement to transgress again; they also serve to lower the standing of the law and to reduce further the community’s support for the police and the courts. In the Auckland case, Mr Justice Sinclair described conspiracy to defeat the course of justice as “striking at the very heart of the judicial system.” The sentences that he imposed, and the maximum sentence of seven years imprisonment that the law allows, testify to the gravity of the offence. If witnesses may be suborned through fear or bribes, the law becomes a farce and anarchy replaces order. A Canadian judge was in no doubt of this last week. He sentenced to seven days imprisonment a complainant who refused to testify against two men charged with assaulting her. She had told the court that her silence was kept because she feared reprisals on herself or her family. The judge said that the complainant’s refusal to testify was an encouragement to anarchy. Although events in

New Zealand rarely reach the stage that was reached in that Ottawa court, the law in New Zealand that requires witnesses to testify parallels closely the law in Canada. Section 352 of the Crimes Act, 1961, and Section 39 of the Summary Proceedings Act, 1957, are similarly worded. Under these sections, a witness who refuses to give evidence may be sentenced to prison for up to seven days; if the witness is recalled after a period of detention and again refuses to give evidence, a further seven days imprisonment may be ordered; and so again and again until the witness consents to give evidence. In New Zealand, this provision has been,a legal last resort, usually invoked only when a witness is seen to be conniving with an accused to enable the accused to escape the law simply through lack of evidence.

A particular category of reluctant witnesses, and a category with its own particular problems, are the complainants in domestic assaults. In a great many charges of this nature to come before the courts, the information is withdrawn because the complainant does not wish to proceed. Domestic disputes may escalate further than either party intended or wishes; calm reflection after tempers have cooled may lead to genuine reconciliation. Nevetheless, in more than a few instances where a battered wife has sought leave to withdraw her complaint of assault, the likelihood of further physical injury if she presses charges has been a deciding factor in her reluctancee to pursue the matter. Such circumstances are complicated; a great deal of sympathy has to be extended to an unwilling witness in such conflicts of loyalty and regard for self-preservation. Evidence against a spouse cannot be compelled. Nevertheless, the problem illustrates the degree to which offenders can count on evading a charge.

According to the police, attempts to intimidate witnesses by threats and stand-over tactics appear to be increasing outside the domestic arena. A reluctance on the part of witnesses to become embroiled in timeconsuming court proceedings has long been a handicap to the administration of justice. Now, apathy is being compounded by fear. If the community bows to the criminal element on these occasions, it invites further intimidation. Each time a witness is persuaded not to give evidence, or to change his evidence, in accordance with the dictates of bullies, the bullies take encouragement from the effectiveness of their tactics and the corresponding powerlessness of the law. Crime and the criminals flourish.

The strength of the law — of any law in a democracy — lies in the people it serves. If the rule of law is to be upheld, and if people are to get the protection that they profess to want from the law, each must be prepared to play a full part in the judicial process. This might be inconvenient; on rare occasions it might require special Courage in the face of blackmail or bluster. The police and the courts have the powers to protect citizens from coercion, and further charges may be laid, but only if citizens make the first stand. Abdication of this responsibility is an admission of criminal ascendancy.