INTRODUCTION
LITERATURE REVIEW
In recent decades there have been increasing calls for the abolition of the dock in the United Kingdom. 5 Justice "In the Dock: Reassessing the use of the dock in criminal proceedings" (2015)
SECTION 3 ANALYSIS
Reviewing the dock's history in England, Justice and Tait conclude that its original purpose was to identify the defendant and that, although it has been used for hundreds of years, its use is only recorded in practice, although it is not permitted by law. in recent decades.8F9 The conclusion is that the quay is an unnecessary relic of history. Tait argues that the layout of a courtroom, including the presence of a defendant, “reflects a complex history of legal reform, professional evolution and political values.” a particular legal tradition, he argues, a comparison with the tradition of the United States, which does not regularly use a dock, shows that the dock is neither necessary nor unavoidable.
HISTORICAL BACKGROUND OF THE DOCK
New Zealand
The prevailing view within the New Zealand judiciary seems to be that the dock is nothing more than a neutral, convenient tool. The dock is now an accepted and expected part of the New Zealand criminal courtroom.
The dock in the United States of America
WELLINGTON DISTRICT COURT
In contrast, dockets in jury courtrooms are independent at the end of the courtroom, behind the lawyers and in front of the judge. The distinguishing feature of docks are their glass barriers, especially in judge-only courtrooms where they are a dominant feature of the courtroom.
RIGHT TO CONSULT AND INSTRUCT A LAWYER
In the other courtroom, suspects in custody enter the wharf directly through a door in the wall, escorted by a security guard. In all courtrooms, the wharf has a similar wooden design to the other items in the room, such as the witness stand, jury stand (if any), court room, and judge's bench.
An effective defence
A glass panel is installed on the partition between the defendants and the public behind them. The security concern is apparently to protect the public from the defendant and vice versa.
The accused as an informational resource
Second, the accused plays an important role as an information source before and during the trial. In Baladjam and Benbrik, the Supreme Court of New South Wales and the Supreme Court of Victoria respectively held that closed docks designed for multiple defendants in terrorism trials would prevent a fair trial.35F36 One of the factors considered by the courts was the difficulty which the defendants had in gaining the attention of their lawyers from the closed dock. These decisions were made prior to the conclusion of the trials, so the courts did not make these decisions on the basis of a finding that certain communications that would affect the asserted defense had been prevented.
In 1914, the Supreme Court of Pennsylvania found that the defendant's "common law right to counsel" included a right to sit next to counsel in a trial.40F41 In 1944, the California Court of Appeals ruled that the right to counsel included. It is "in order that he may have absolute freedom to assist by suggestion and information in his own defence".43F44 The defendant is considered to have an important role, and right to the role, in his or her own trial.
Defendant Centred Courtroom pilot
Many of the defendants who participated in the pilot spoke with their attorney during proceedings, either giving instructions or requesting information.46F47 This communication took place much more easily with the defendant next to the attorney. Several defendants, who previously appeared in the dock, noted that if their counsel did not know the correct information, they were more able to inform them from the defense table than from the dock.47F48 Fourteen defendants during the trial appeared in the dock, but lawyers approached the dock to speak to their clients on only two occasions.48F49 Communication between the defendant and their lawyer has been found to help improve the defendant's understanding and present the best case to the judge. set. Furthermore, being close to the judge and being spoken to more often by the judge and their attorney resulted in defendants feeling more involved in the process and therefore more responsible.
Most of the participating judges supported the pilot and reported that rather than defendants being disconnected from the court process as when they were in the dock, defendants were brought right in and therefore more engaged.50F51. The court's interpretation is substantially the same as the Wellington District Court, where the same or similar results can be expected.
Wellington District Court
RIGHT TO BE PRESUMED INNOCENT
Background
Commenting on the case of Lawson v R, the Court of Appeal rejected the argument that the appearance of the accused in the dock prevented a fair trial, contrary to section 25(a), (c) and (e) of the NZBORA.61F62 The court offered no justification, apart from the jurisprudence distinction raised by counsel for the appellant. This obiter statement is inconsistent with case law in several jurisdictions, including New Zealand, which affirms that the right to be presumed innocent includes the right to appear innocent. This is inconsistent with this jurisprudence because empirical evidence shows that incarcerating a defendant in the dock negatively affects how he is perceived by jurors.
Right to appear innocent
Accordingly, the judge stated that "it is the prejudice to the defendant in the eyes of the decision-maker that ordinarily involves fair trial rights." innocent if they negatively affect the decision-maker's (in this case, the jury's) perception of the defendant. The view that the presumption of innocence includes the right to be present is consistent with case law in England and Wales, the ECtHR, the United States and Australia. The United States Court of Appeals for the First Circuit, a federal court, has ruled that the dock is a form of “imprisonment” that is “inconsistent with the presumption .
The Supreme Court of New South Wales found that the use of Plexiglas screens around the dock created "another layer of prejudice (perhaps the one more important than any other)". the dock intended for use in terrorism-related jury trials was burdensome and oppressive72F73 and would "substantially diminish" defendants' right to be presumed innocent.73F74. The approach in Smith, although only by the High Court, is consistent with very compelling case law from other jurisdictions that affirms both the defendant's right to be presumed innocent and the bench's violation of that right.
Empirical evidence of the prejudicial effect of the dock
Jurors who saw the defendant in the dock were 1.8 times more likely to find him guilty than jurors who saw him next to his attorney.77F78 The glass and open dock had a similar overall impact on perceived guilt levels, but the glass dock had a significant impact on the statements made by women, the elderly and professionals.78F79 The defendant, and especially the glass defendant piece, appeared to activate or provoke prior prejudice.79F80 The authors suggest that the position of the defendant in court influences the could be a deciding factor for jurors who find that the evidence is inconclusive.81 Placing more weight on the evidence, rather than on a signal indicating guilt, is consistent with the presumption of innocence, according to the authors.81F82. The finding of an empirical relationship between the position of the accused in court and the likelihood of a conviction is a major cause for concern. The Defendant Centered Courtroom pilot mentioned earlier confirms that there is a stigma attached to the wharf.
This research has proven that the use of the dock has an impact on the jury's perception of the guilt of the defendant. This shows that the dock falls within the principle accepted by the Supreme Court in Smith that restrictions should not be used where they would adversely affect the decision maker.
Literature on the Impact of the Dock
Defendants in the study found that being placed next to their lawyer distinguished them from what they called 'bad criminals'. The imprisonment of the accused before conviction in a separate enclosure at the edge of the courtroom, isolated from lawyers and supporters, can be understood as a form of punishment through process or, in Foucauldian terms, as a trace of torture in the modern. criminal justice system. People who have been acquitted have stated that their time in the dock has been the most difficult part of their ordeal to bear.
As discussed above, defendants and judges commented that defendants were more engaged in the process when they were outside the bench. Defendants who had previously appeared in the dock reported that it made them feel more accountable when they were with their lawyer.
Judge or jury?
Its detrimental effect is such that it undermines the presumption of innocence previously expressed by New Zealand judges in the context of handcuffs.
Wellington District Court
JUSTIFIED LIMITATIONS: SECTION 5 ANALYSIS
Prescribed by law
Demonstrably justified: Security
In 2011, a man appearing in Christchurch District Court for a hearing under the Mental Health Act punched and kicked the judge.106F107 She was not injured.107F108. In 2009, a defendant stabbed himself while in the dock at Wellington District Court.108F109 In 2019, a man punched his lawyer sitting next to him in court shortly after he was sentenced for assaulting a prison officer.109F110 His lawyer, Tony Greig, sat on the ground and asked for butterfly stitches. Greig did not think his client should have been in the dock at the time to prevent the incident.
In contrast, safety was one of the biggest concerns of key informants from all professions in the defendant-centered courtroom pilot, who "found the potential for something to go wrong quite stressful." the defendant previously felt unable to make a risk assessment and was uncomfortable sitting next to their client.112F113. As has been said before, "it is not for us to be too bold about dangers that do not threaten us personally."113F114 However, before we head to the dock, other safety measures should be considered that do not compromise our the defendant's rights.
Alternative security measures
Justified limits - security
On the other hand, the threshold for limiting the presumption of innocence of the accused by placing him in the dock should be much higher. This is because the evidence presented earlier in this article shows that once the defendant is placed in the dock, the juror's perception is negatively affected. To highlight the risk, it is prudent to ensure that the defendant's right is respected by keeping him out of the dock.
When it is considered justified to place the defendant in the dock, defendants should be informed of their right to speak to their counsel during the proceedings, and given a clear and easy way to do so, such as raising their hand in the eyes of the judge. . It is noted that this would be much more cumbersome for the Court than if the suspect stood next to his lawyer, as was shown in the Defendant Centered Courtroom pilot.
A two-tiered system?
CONCLUSION
When the defendant poses a risk, it can be said that he has lost his right. Placing the defendant in a locked dock for their safety would never be justified. The practice of locking the defendant in the dock is contrary to the defendant's right to plead not guilty, as already recognized in New Zealand case law.
To support the accused's rights under the NZBORA, Wellington District Court judges should use their discretion to allow accused persons to leave the dock and sit near their lawyers. L Mulcahy “Putting the accused in his place: Why we still use the dock in criminal proceedings Brit J Criminol 1139.
