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Tuesday, April 10, 2007

Let Juries Decide Relevance

I listened to recently retired Detective Sergeant Dave Henwood on Morning Report with Kathryn Ryan this morning.

Mr Henwood was responsible for establishing criminal profiling in this country and helped capture serial rapists Joseph Thompson and Malcolm Rewa.

Mr Henwood strongly argued for greater admssibility of "similar-fact" evidence in court.

"Similar-fact" or "patterns-based" evidence is evidence that shows a defendant has a pattern of past similar behavior.

Many would argue that the three former policemen accused of raping Louise Nicholas, would not have been aquitted, had the jury been made aware that two of the defendants were currently in jail after being convicted of similar offences.

Currently, "similar-fact" evidence can only be admitted under certain circumstances and then only at the judge's discretion.

Mr Henwood made the point that serial sexual offenders in particular are acting out fantasies when they commit their crimes and tend to follow very specific patterns of behaviour.

Therefore "similar-fact" evidence should rightly be used to back up the complainant's testimony.

Personally I would go further. Admit any evidence that the prosecution deems important and let the jury decide its relevance.

Its ridiculous to say that only facts directly related to the particular offence be admissible.

A person who has been convicted for five armed roberries committed while wearing a "Zorro" mask and carrying a meat cleaver, is more likely to commit a similar offence than anyone else.

If he is on trial for a robbery carried out under similar circumstances, it is grossly unjust that a jury should be denied information on his past behaviour.

Juries should have the power to decide relevance, not judges.


Anonymous Anonymous said...

I'm with you trevor.
As long as its facts which are placed before a jury, then everything is relevant. No matter which side of the courtroom one is sitting on.


4:57 PM  
Anonymous Broadstairs said...

But what if it is a copycat crime committed by a cunning criminal who decided to wear a Zorro mask and carry a meat cleaver. Possibility of the one on trial actually being innocent this time ?

4:42 PM  
Anonymous gavinm said...

That seems reasonable, but it's not a long leap to then suggest that when this person leaves his house wearing a Zorro mask and carrying a meat cleaver, he's intending to commit another crime. Sooner or later the State would allow this person to be arrested just for stepping outside his door, based solely on his (awful) dress sense - and that doesn't seem much like the pro-freedom society I want to live in...

Blocking evidence of previous behaviour is actually a way of making the police investigate each crime properly, instead of letting them just search a database for the modus operandi. The real failure of the Rickards / Shipton / Schollum trials wasn't with "the system" but with the police, who were unable to get their shite together enough to organise a proper prosecution against one of their own for one of our most serious crimes, despite having the resources to drag thousands of Kiwis through court for minor misdemeanours.

9:32 AM  

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