To heck with constitutional niceties, I say

(First published in the Curmudgeon column, Dominion Post, August 4.)

IT WAS unfortunate that media coverage of Chief Justice Dame Sian Elias’s recent speech about crime and punishment focused on the constitutional propriety of the country’s top judge straying into territory usually reserved for politicians.

To heck with constitutional niceties, I say. The issues raised in Dame Sian’s thoughtful speech to women lawyers were far more important than the fact that she trod on Justice Minister Simon Power’s toes. But that was the angle most of the media went with.

Regardless of whether you share Dame Sian’s contentious view that imprisonment doesn’t work, and more controversially that criminals are the victims of circumstance, there is an important debate to be had about crime and punishment. The views of the Chief Justice are surely worth hearing.

Having said that, it was a politically provocative speech and it’s hard to believe Dame Sian didn’t know she was stepping into a minefield.

It wasn’t just the fact that she was trespassing on his turf that rattled the usually affable Mr Power. Dame Sian wasn’t only out of step with public and political sentiment about the need to put offenders behind bars, but directly challenged the belief that criminals have power over their own lives.

Commenting on a 2001 government report about the need for targeted intervention to prevent socially and economically disadvantaged people turning into criminals, she noted that the report had languished – “partly, one suspects, because in a punitive climate which stresses individual responsibility and is intolerant of excuses, the idea that many offenders do not have much of chance is not a welcome thought.”

It was hard to see this as anything but a condemnation of government policy, which has responded to public anxiety about crime by putting more people behind bars.

What made Dame Sian’s speech even more pointed, politically, was that it was delivered in honour of the late Shirley Smith, a feisty left-wing barrister – the wife of Dr Bill Sutch – who championed the underprivileged, and for whom Dame Sian expressed unalloyed admiration.

Whoever said 1970s-style Wadestown (or in this case Remuera) liberalism was dead?

* * *

IN THEIR efforts to counter the unremitting barrage of anti-smacking propaganda from state-backed organisations such as Barnardos, the backers of the smacking referendum are mincing their words almost to the point of dishonesty.

Answering questions from a hostile Paul Holmes on TVNZ’s Q + A (we keenly await the Holmes Guide to Parenting), Sheryl Savill from Focus on the Family, who initiated the referendum, talked about giving children a “light smack” and was at pains to insist this was not something good parents do when they are angry.

Why pussyfoot around on this issue? Let’s be honest – a “light smack” is hardly more than a pat. It won’t deter a child who’s running amok.

And where’s the harm in admitting that parents smack kids when they’re angry? A child is less likely to be traumatised by a smack administered in exasperation than one given in a cold, ritualised punishment session of the type favoured by religious oddballs.

A sharp smack from a parent whose patience has run out is nature’s way of showing a child that there’s a price to pay for bad behaviour. As a perceptive correspondent recently wrote in this paper, evolution has come up with a very effective means by which animal species provide their offspring with a potent warning about consequences. “It’s called pain.”

This doesn’t mean parents are free to fly into a homicidal rage and start bashing their children around the head with a piece of four by two. The irony, of course, is that the type of parent who does this isn’t going to be deterred for a moment by what the law says. The 13 children who have been killed since the Bradford Bill passed are proof of that.

* * *

IT’S A MEASURE of how public emotion overcame reason in the Clayton Weatherston case that many people seemed to transfer their revulsion from the defendant to his lawyers.

Lead defence counsel Judith Ablett-Kerr QC has been reviled for the way she conducted the case. People seemed to assume that because she defended Weatherston, Mrs Ablett-Kerr condoned his behaviour. But isn’t a barrister professionally obliged to do his or her utmost, within ethical limits, to get an acquittal (or in this case, a manslaughter verdict)?

It’s a fundamental principle of our justice system that even the most contemptible criminal is entitled to a defence. Dirty work, but someone has to do it.

The same applies to the defence’s use of Sophie Elliott’s intimate diary entries, which provoked public outrage. People should get real: courtrooms can be brutal places. Defence lawyers wouldn’t get very far if they fretted about offending people’s sensibilities.

I’m not sure that Mrs Ablett-Kerr is the sort of person I would want to go on holiday with. But if I were accused of murder, I’d probably feel reassured to have her as my barrister.