The S-Files

S-Award given to Chris Comeskey, Barrister

Contra Celsum is pleased to nominate Chris Comeskey, Barrister for an S-Award for his important call to revamp New Zealand's prosecution system.

Citation:

1. The past twenty-five years have generally been poor for the New Zealand Police. There have been allegations, and subsequent proof, of criminal activity within the force; there have been prima facie (but unproven) instances of corruption; the Force has suffered under the deliberate policy of the Clark regime to politicise the Police to make them an organ of government policy; there has been significant staff turnover, and deep demoralisation within the ranks; there is a growing public unease that the Police force has increasingly become an organ for the espousal of political correctness; and there has been a public perception that the Police are little more than the roadside collection division of the Inland Revenue.

2. Over this period there has been a litany of failed or suspect convictions. The Arthur Allen Thomas Affair started what appears to have become a trend, where Police have prosecuted cases, and more often than not, have achieved convictions which subsequently have resulted in a deep public unease about the actual guilt of the accused. The cases of David Bain, Peter Ellis, and Scott Watson are front of mind.

3. In the past week we have seen three high profile murder cases all thrown out of court, with juries returning verdicts of Not Guilty—in surprisingly short time frames. While the causes are always complex, one residual gnawing common thread of doubt centres around the apparent tendency of police investigators to form a view (often early in the piece) of the most likely perpetrator, then to conduct the investigation in such a way as to marshal evidence to support the conjecture. This is a deeply flawed modus operandi, an opens investigations up to errors of bias and prejudice. It is classic gilding the lily.

There are no doubt correlative factors, such as media and public pressure to “get a result;” political masters “breathing down the neck” of the top police brass (and so down the chain of command) to resolve the matter so that the government's poll ratings are not affected; the reluctance to have too many scarce resources tied up in one case when they are urgently needed to be deployed elsewhere; and that most human proclivity for ambitious lead detectives to further their careers by concluding investigations successfully, as evidenced through arrests being made.

4. Our Police Force (and the complementary institutions of prosecution) stand in need of a significant overhaul. It needs to be a “root and branch” overhaul, not just the useless and entirely wasteful bestowal of more (and more and more, ad nauseam) money upon the Police. One of the most significant and deeply rooted of all problems is that the Police represent a state bureaucratic monopoly, coupled with a quasi-military operating culture. You could not imagine a recipe more likely to produce irrational inefficiency and incompetence.

5. One critical solution is to introduce more contestability, more adversarial checks and balances into the prosecution system. To that end, Contra Celsum believes that lawyer Chris Comeskey's call recently to create a public prosecution office, separate completely from the Police Force, and independently funded, is one of the most constructive suggestions made in a long time.

Comeskey points out that we are one of the last countries with a British legal system not to have a separate public prosecution office. The operate in the UK, US, and Australia. The whole idea of such an office is to introduce scrutiny and contestability whilst Police are conducting investigations and preparing cases. They first have to satisfy Public Prosectors that the case will withstand contrary scrutiny, and that it does indeed represent a standard of proof “beyond reasonable doubt.”

Under our current system, trial lawyers are drawn from private law firms; they are effectively clients of the Police. There is very little effective contestability. Which partner from a law firm is likely to turn down a case, simply because it is weak? They know the Police will simply move to the next solicitor in the next firm with a Crown Solicitor's warrant. How would that help the law firm meet budget?

According to the NZ Herald (29th May, 2008) Comeskey was quoted as saying:

There is something wrong with the way things are investigated. The police are rushing off with too little, too soon and ending up with nothing as a result. The second difficulty which flows on from that is you have (legal) firms scattered through the country which hold Crown Solicitor warrants and that's not done anywhere else in the world, and probably for good reasons. Under the set-up we have, the police are the client of these law firms and whatever the police ask for, they are granted.

A separate prosecution office will definitely cost more money. But it would be money very well spent. If it improves the process of investigation of crime and the credibility of resulting prosecutions it is a no-brainer.

New Zealand definitely needs more contestability within the criminal justice system. While a separate prosecution office will not solve all problems it should be part of a root and branch change.

Chris Comeskey, Barrister: S-Award, Class I for actions in the course of duty that were Smart, Sound, and Salutary.