THE EDITOR, Sir:
YOUR EDITORIAL of Tuesday last, entitled "The Chief Justice doth protest too much" has caused me considerable concern and disquiet.
Let me make it very clear at the outset that I am not, repeat I am not, complaining about the personal criticism levelled against the Chief Justice in that editorial. Your constitutional right to freedom of expression enables you to engage in such an exercise if you so wish.
What it does not permit, however, are observations and statements publicized during the course of a criminal trial which are calculated to influence the verdict of a jury. It is, to say the least, unfortunate that, on the very day on which the recent case of the three police officers charged with murder was slated to be put before the jury for their decision, your editorial appeared in which observations were made not only highly critical of the justice system in general, but clearly implying that justice was not being done by virtue of a particular incident in the case.
The incident to which you referred is the fact that someone whom you described as "a key prosecution witness" did not appear to give testimony. Your subsequent observations suggest that this was due to some malfunctioning of the justice system. The further implication would be that the absence of this witness would prevent a correct verdict from being reached by the jury.
You are either unaware of, or prefer to ignore, the fact that the decision whether or not to call a particular witness for the prosecution is entirely a matter for the attorney in charge of the prosecution to determine and is not one that is within the control of the presiding judge.
SUICIDAL
It is an elementary consideration in the mind of every competent advocate that to call a witness who has shown either reluctance or an uncooperative attitude could endanger the case which he is conducting. In fact, it could be suicidal. To go on to say that this justifies the rhetorical question "what on earth is going on with our courts?" is grossly unfair and clearly suggests that the trial process has been subverted contrary to the interests of the prosecution.
I would strongly suggest that, while no one wishes to stifle legitimate criticism of either the judicial system or individual judges, care must be taken not to do so in a manner which could prejudice the result of any ongoing criminal trial or undermine the proper functioning of the administration of justice. This is required by both the spirit and letter of our constitution.
I am, etc.,
A.J. NICHOLSON
Attorney-General
