When principle sinks in a swamp of legalism

In a past life, many years ago, I informally sought advice from a highly respected Wellington lawyer, the late Sandra Moran, over a legal issue that had been weighing on my mind.

It involved what I thought was an important point of principle, and I vividly remember Sandra warning me off by saying, very emphatically: “It costs a lot of money to establish a point of principle.” I didn’t have a lot of money, so I didn’t proceed.

At the time, I was astonished by what Sandra said. Surely principles are at the heart of the law and should be promptly and decisively confirmed by the courts? Of course I was naïve. Judges are generally restricted to applying the law as it’s written. Points of principle may be established in the courts, but often only after years of legal argument.

I was reminded of that this morning while reading NZME court reporter Ric Stevens’ account in the New Zealand Herald of a case that has been dragging on for years and is still far short of resolution.

It’s a case that cries out for justice, but the law keeps getting in the way.

Ida Hawkins’ 16-year-old daughter, Colleen Burrows, was raped and murdered by a gang associate on a Hawke’s Bay riverbank in 1987. One of her killers, Sam Te Hei, served 31 years in prison. A younger co-offender was released in 1998.

After he was paroled, Te Hei succeeded in a claim against the Crown for breaches of his rights while in jail. He was awarded $17,664.

In such circumstances, the Prisoners’ and Victims’ Claims (PVC) Act entitles victims of a crime to claim some or all of the money awarded to the criminal. Ida Hawkins did so and initially succeeded. She went to the Victims’ Special Claims Tribunal and was awarded $15,000 for emotional harm – paltry compensation for the anguish of losing a teenage daughter in appalling circumstances and then being harassed and intimidated by the Mongrel Mob, but at least she would have had the satisfaction of knowing Te Hei had been prevented from profiting out of his murderous act.

You can probably predict what happened next. Te Hei (or more precisely his lawyers) successfully appealed to the High Court on the basis that another piece of legislation – the Deaths by Accidents Compensation Act 1952 – didn’t create a right to damages for emotional harm, and this remedy was not available under the general law either.

Mrs Hawkins then went to the Court of Appeal, where her case was heard in the middle of last year. The court’s decision was released this week – too late for Mrs Hawkins, who died last July. In the meantime another daughter, Tracey Peka, obtained a court order allowing her to continue the legal fight.

Stevens’ story in the Herald describes the 34-page judgment from the Court of Appeal as “largely technical”. The veteran court reporter wrote: “It represented a win for the family in the sense that it upheld their appeal and kept their case alive, even as it found against some of their arguments.

“The court said that Hawkins did not have a claim under the Deaths by Accident Compensation Act for her emotional injury. Nor could she make a wrongful death claim under common law [law developed by the courts rather than decreed by Acts of Parliament], and the PVC Act did not provide a standalone basis for her claim either.

“However, the justices said: ‘We have … concluded that Mrs Hawkins may have a common law claim for her mental injury arising from the circumstances of the rape and death of her daughter Colleen. If she does, it appears that such a claim would be confined to exemplary damages.’ ”

Did the court then determine that Mrs Hawkins (or her family, given that she’s no longer alive) was entitled to Te Hei’s ill-gotten gains, or at least a share of them? Oh no, that’s not how the system works. The court referred the matter back to the Victims’ Special Claims Tribunal which had heard the case in the first place.

The appeal judges said they were sending the case back for reconsideration and suggested the tribunal might seek further evidence and call for written submissions. They noted that the case involved complex legal issues.

So here we are, five years after the decision that gave rise to Mrs Hawkins’ claim, and the case will again get swallowed up by the system. For how long? That’s anyone guess. Common law evolves at a glacial pace and we’re expected to just be patient while Their Honours deliberate.

To use the vernacular, the Court of Appeal judges kicked the can down the street - in fact possibly beyond that into the long grass.

There will be more dry legal argument and more lawyers’ fees. In the meantime Mrs Hawkins has died and I imagine costs will have more than eaten up any compensation she might have been able to look forward to had she lived. Indeed I would imagine that arguments over costs have the potential to keep the case grinding on even longer.

This seems a case of an important principle being lost in a swamp of nitpicking legalism. While judges and lawyers debate arcane points of law, a terrible injustice goes uncorrected.

Most reasonable people would have no difficulty deciding that Mrs Hawkins’ entitlement to compensation for harm and wrongdoing far outweighs that of her daughter’s murderer, but that’s not how the system works.

It should be simple, but it isn’t. Sandra Moran was right.

Marching blindly into the post-journalism era

Herewith, two unrelated (or perhaps not) examples of the insidious bias that pervades the mainstream Western media. Neither is necessarily of any great consequence on its own, but each is telling in its own way.

■ In a 470-word story on the jailing of former US senator Bob Menendez following his conviction on bribery and corruption charges, the BBC could find no room to mention that he was a senior Democrat.

You can be sure that if he was a Republican, i.e. a Trumpist, we would have been told in the first few lines.

The BBC’s story did mention that Menendez’s son was a Democratic congressman, but that was all.

Inadvertent oversight? Hmmm.

We were told that Menendez, who accepted bribes from foreign governments, notably Egypt, was a former chair of the Senate Foreign Relations Committee – but still no mention of his party.

And if you clicked on a link to the BBC’s earlier story about his conviction last July, you learned that Democratic Senate Majority Leader Chuck Schumer called for Menendez to resign. But even then there was nothing to indicate that Schumer was talking about a member of his own party, and readers could have been excused for assuming Menendez was a Republican. 

The headline read Senator Bob Menendez found guilty in bribery scheme. It’s dollars to donuts that if he was from the other side of the aisle, it would have said: Republican senator found guilty in bribery scheme.

Only towards the bottom of that 687-word story was there any indication that Menendez was a Democrat, and even then it wasn’t explicit.  

There are two possible explanations here. One is that the BBC’s stories were written and edited by journalists so incompetent or amateurish that they didn’t think Menendez’s party affiliation was significant.

The other is that the BBC (which is taxpayer-funded and therefore has a special obligation to be politically neutral) decided the Democratic Party should be spared the embarrassment of being associated with a corrupt senator. Either explanation is unacceptable, but the second is the far more plausible one.

■ An Associated Press report refers to Mark Zuckerberg’s Meta and other technology companies “trying to ingratiate themselves” with the Trump administration.

I’m sure that’s exactly what the loathsome Zuckerberg and other tech titans were doing, but it’s not the function of an AP reporter to tell us. There should be no place in a straight, factual news account for a loaded word such as “ingratiate” unless the reporter is quoting someone. 

A competent reporter, by simply conveying the facts of the story, can leave it to readers to decide for themselves whether Zuckerberg is cravenly sucking up to the White House. Readers are capable of drawing their own conclusions and should be left to do so without being led by the nose. But news stories are now often fatally contaminated by casual, pervasive bias and the intrusion of reporters’ personal judgments.

To allege that someone is trying to ingratiate himself involves such a judgment. Such things used to be the domain of editorial writers and columnists expressing what was clearly identified as opinion. But in 2025, all reporters consider themselves editorialists and the dividing line between "news" and comment has been all but erased.

When I read any “news” story about American politics, my eye goes straight to the bottom to identify the source. If it’s from AP, the Washington Post or the New York Times I know not to assume that it’s balanced and accurate (and by “accurate”, I mean not distorted by the omission of any relevant facts or background information that might not align with the reporter’s perception).

The Washington Post and the New York Times are entitled to spin the news as they think fit and accept the consequences, even if they compromise their credibility in the process. Their subscribers can always opt out if they don’t like what they’re reading. But wire services such as AP operate in a different context.

Because they are usually co-operative enterprises that supply news to media outlets from all points of the political compass, wire services have traditionally been careful to avoid any hint of bias. New Zealand’s own much-lamented NZPA was always rigorous in observing editorial neutrality. But that rule has been jettisoned at AP, whose reporters clearly feel no compunction about feeding the news through an ideological filter. AP political stories come heavily larded with journalists’ own perceptions which are invariably hostile to the political Right.

Stories about Trump, for example, routinely refer to his “lies” and “falsehoods”. These are terms that previous generations of news reporters would never have used unless they were quoting someone. They would have presented the facts and left it to readers to decide for themselves whether the president had a flagrant disregard for the truth (which is clearly the case, but I’m permitted to say that because this is an opinion piece).

The frequent use of the disparaging terms "far right" and "extreme right", to denote all but the mildest and least threatening politicians on the conservative side of the spectrum, is another means by which leftist journalists reveal their ingrained priggishness.

The now-habitual intrusion of personal opinion into “news” coverage isn’t just a breach of traditional journalism rules. On a purely pragmatic level it’s crazy because it accelerates public distrust of an already failing media industry.

It appears not to have registered with American journalists that Trump won the presidency despite overwhelming media opposition. The message was clear: the US mainstream media have rendered themselves largely irrelevant.

When journalists have fallen so clearly out of step with the public mood, they need to re-evaluate themselves. But there’s no sign of that happening, and so journalism blindly continues its determined and suicidal march into the post-journalism era.