Criminal justice under a spotlight

Some of New Zealand’s most challenging criminal justice issues are examined in a new documentary series. Kelly Dennett reports.

Why don’t victims have their own lawyers? Should we consider degrees of murder charges, like in the United States? How come our crime stats are skewed towards Ma¯ ori, and what’s going on with hate crime legislation?

Some of the country’s most pressing criminal justice issues – and their perplexing tensions and questions – come to the fore in a new four partdocumentary series, A Question of Justice, lead by experienced broadcast journalist Bryan Bruce, who investigates alongside Moana Maniapoto, Hikurangi Jackson, and Ximena Smith.

Bruce, who also fronted The Investigator series looking at cold cases, felt there was ‘‘unfinished business... some very large issues of justice that I had never managed to have an opportunity to address’’.

A cold justice case, if you will. ‘‘You have to be careful before you walk over other people’s misery, and you need a bloody good reason for looking at a cold case or an old case.’’

Bruce is mindful he is raising old wounds. The slaying of Otago student Sophie Elliott by university tutor Clayton Weatherston in 2008, and the 2018 murder of British backpacker Grace Millane by Jesse Kempson feature in the first episode, which examines how much of victims’ personal lives are put before the court, and then broadcast to the public.

In Elliott’s case her diary was read to the court, and her relationships with other men exposed, while Millane’s sexual history and preferences made news around the world.

Critics called it an element of victim blaming; an exploitation of privacy law that says your right to privacy dies when you do, an exception to legislation that says you can’t identify a sexual assault victim.

How Millane was treated in court was seen in direct contrast to the defendant: Kempson had his identity suppressed for years to protect his fair trial rights, in relation to another trial in which he was the defendant.

There is a Catch-22, Bruce admits, in the tension that exists between New Zealand’s open justice system, and the privacy considerations of the victims and their families.

‘‘I think I got to the position that open justice does not necessarily require every detail of the victim’s life to be published in the media, so I’m probably in that camp now,’’ says Bruce, who is keen to point out he doesn’t go into stories with an agenda, but simply a question about why things work. ‘‘Whereas initially I would have gone, ‘open justice requires we do hear and see what goes on in our courts’, because we don’t want to have secret trials.

‘‘However, if Grace or Sophie had survived their ordeal we wouldn’t know anything about their private life. That, I think, is an interesting area. Should victims and their families deserve rights in death, that we give to the living? And that becomes complicated, because if we can’t say anything about a dead person, where is history? You can’t be reduced to silence. Silence isn’t golden.

‘‘Other people will make their own minds up. Others will say, ‘open justice, for it to be seen to be done, has to be reported. If the judge says this is alright, then that’s it.’... One of the things that comes through this is how complicated this stuff is. Often I come back to the position that, well maybe we do things the best way.’’

Bruce has been an award-winning documentary maker and journalist for more than 30 years. He hosted three seasons of the aforementioned The Investigator, and has had his hand in more than 30 documentaries encompassing crime, poverty, history and economics.

‘‘I’m often driven by what I don’t know,’’ says Bruce. ‘‘So when I go into projects I go, well, OK there’s this issue, I think I understand that, but I really don’t know.’’ Sometimes it’s good not to be an expert in some things, he says, so you can ask the dumb questions.

‘‘One of my first documentaries was following sailor Sir Peter Blake around the world, and I’d never been on a yacht before. I remember saying to

Bryan Bruce

him on day one, ‘Um, Peter, why has your yacht got two masts and not one?’ And his jaw sort of dropped, and he stared me, and said, ‘Because we think it will go faster, Bryan’.’’

High-profile cases, like Millane and Elliott’s murders and the Christchurch mosque shootings, often expose crevasses of knowledge and understanding of how justice is served, particularly around sentencing, suppression and fair trial rights. That includes Bruce, who says the series challenged his own assumptions.

‘‘It’s an admission of ignorance really – I had assumed that the state really spoke for the victim in a case. I guess what I learned is that victims have no rights, no-one represents them, the state is there to prosecute the alleged offender.’’

Episode two probes why Ma¯ ori are overrepresented in prison statistics, canvassing the murder of tourist Karen Aim by teenager Jache Broughton in 2008, and the murder of Donald Stewart by a teenage gang.

Episode three examines why we don’t have degrees of murder charges, again using the example of Clayton Weatherston, who stabbed Elliott more than 200 times.

Episode four digs into hate crime, and whether motivation is best left to sentencing or prosecution and conviction. The documentary team consulted lawyers, academics, expert commentators and families of victims – the Millane family were not involved, but were aware the series is being broadcast.

Bruce hopes the series will spark conversation. ‘‘I do think our democracy depends on us talking to each other, that’s one of the functions of public journalism. That is how I see this – I hope people will talk about it afterwards.’’

‘‘You have to be careful before you walk over other people’s misery, and you need a bloody good reason for looking at a cold case or an old case.’’