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.

More on the gang-up against Judge Peter Callinicos

What began as a controversy over a judge’s decision to leave a young Maori girl in the care of her Pakeha foster-parents has touched off an extraordinary judicial scandal that threatens to shake public confidence in the integrity of the courts.

Allegations made by lawyer Tony Ellis implicate New Zealand’s two most senior judges in an affair that reflects badly on the judiciary and its handling of concerns about Hawke’s Bay Family Court judge Peter Callinicos. What Ellis has disclosed will almost certainly serve to reinforce perceptions that Callinicos has been the target of a furtive - in fact you might say conspiratorial - gang-up.

According to Ellis, the case threatens judicial independence and has a caused a major rift among judges. Senior lawyers are scratching their heads trying to recall whether any judicial squabble has ever before been aired so publicly. Figuratively speaking, the fire is in the fern and threatening to singe some illustrious names.

In an incendiary letter to the Judicial Conduct Commissioner, Alan Ritchie, Ellis has alleged that:

■ Callinicos was “unlawfully lobbied” by Chief District Court Judge Heemi Taumaunu and Principal Family Court Judge Jackie Moran, together known as the Heads of Bench, over his handling of a case that was then still in progress.

■ Ritchie, whose role is to assess complaints about the conduct of judges, “irrevocably compromised” his independence through the way he dealt with concerns about Callinicos.

■ Callinicos was investigated without his knowledge and with no opportunity to defend himself.  

■ Callinicos himself claims he received “misleading and bullying” correspondence from the two senior judges, known as the Heads of Bench, and was the subject of “scathing” letters sent to Ritchie by the Heads of Bench and by the second-ranked judge of the Supreme Court, Justice William ("Willie") Young.

■ Ritchie predetermined Callinicos’s guilt without his knowledge and without giving him a chance to respond to criticism.

■ Ellis quotes Callinicos as saying: “ … the dumping of this unilateral crap into [the] public domain compounds the injustice as I have no recourse in the investigation, or in the public eye.”

■ Chief Justice Dame Helen Winkelmann and Young are implicated in the affair by allegedly failing to disclose that Young was involved in behind-the-scenes discussions about the case.

■ Young reached conclusions about the case without giving Callinicos an opportunity to put his side.  

■ According to Callinicos, 60 of New Zealand’s 180-odd judges have contacted have contacted him expressing their support. Callinicos is quoted as saying the actions of his judicial superiors have sent “shivers of fear” through the District Court, of which the Family Court is part.

Ellis accused Ritchie of kowtowing to senior judges and added: "A well-informed independent observer would ask the question: "Who are the bullies here, Judge Callinicos, or Justice William Young and the Chief Justice?"

Readers of this blog will be familiar with the background. In the Family Court, Callinicos thwarted Oranga Tamariki’s underhand attempts to remove a girl – whom Stuff named Moana – from a loving, stable home and place her with unfamiliar Maori caregivers on the pretext that her Pakeha foster parents weren’t meeting her “cultural needs”.

In a 145-page judgment, Callinicos tore into Oranga Tamariki social workers over their conduct in the case.

His ruling rapidly escalated into a dispute over judicial independence when it emerged that Taumaunu and Moran had intervened in the case, apparently at the urging of the then acting Oranga Tamariki CEO Wira Gardiner.

Callinicos protested that this action compromised his judicial independence – a point subsequently taken up by Ellis and other unnamed lawyers in complaints to Ritchie.

In a preliminary report issued last week, Ritchie inflamed the issue further when he found that the two senior judges had not acted inappropriately. Extraordinarily, he appears to have reached this conclusion without bothering to speak to Callinicos.

That provoked Ellis into lodging the further complaint implicating Winkelmann and Young.

In this latest complaint, a copy of which has been sent to Attorney-General David Parker, Ellis alleges that when Winkelmann and Young met lawyers acting for Callinicos, they failed to disclose that Young “had been involved in making a finding  that Judge Callinicos bullied witnesses [in the Moana case], and that the Chief Justice concurred”.

Ellis continued: “Justice William Young, in reaching a conclusion that Judge Callinicos had made comments that were disproportionate and inappropriate, [had] made gratuitous criticisms, and engaged in what appears to be bullying, following an investigation which did not seek input from Judge Callinicos, and taking no action to seek such input himself, this undermined judicial independence.  The Chief Justice’s concurrence compounded this error.”

Ellis challenged Ritchie to recuse himself from further consideration of the case, writing: “Your approach has created not just actual bias, or its appearance, but worse created a scandal not seen since Edwards [a landmark case from 1892], and has now implicated not only … the Chief District Court Judge and the Principal Family Court Judge, but now also the Chief Justice, and Justice William Young, NZ’s second highest ranked Supreme Court Judge as well.”

What is now clear is that judicial concerns about Callinicos date back to his handling of a controversial unrelated case in April involving a woman named as Mrs P, whose cause was taken up by feminist academics and sympathetic journalists who claimed she was mistreated in Callinicos’s court.

According to leaked documents published by Stuff last week, Young had been providing "advice" to the Heads of Bench about Callinicos, apparently without his knowledge, since then.  

Young was reported as saying in a letter to Ritchie that there seemed to be a pattern of conduct by Callinicos and those on the receiving end “considered, understandably, that they had been bullied”. He had read transcripts from the Mrs P and Moana cases and saw the intervention of Callinicos as “excessive, partisan and demeaning".

Even from a non-legal standpoint, this seems an extraordinary way of going about things. Callinicos appears to have been investigated behind his back by the country’s second most senior judge and been given no chance to respond to accusations against him. According to Ellis, that's a denial of natural justice.

Meanwhile, questions arise about apparent bias in the media coverage of the Mrs P case, which unquestioningly took her side and almost certainly contributed to the anti-Callinicos mood. People familiar with the case say the coverage didn’t fairly reflect a long and complicated history dating back to 2012 and involving multiple judges.

In fact media coverage of the Callinicos affair by Stuff – the only media organisation to report the Moana case and its repercussions – forms an intriguing sub-plot to the main narrative. While coverage of the Moana case by Stuff's veteran Hawke's Bay reporter Marty Sharpe has seemed fair, neutral and balanced, the same can’t be said for the loaded reporting of the Mrs P case.

Kirsty Johnston, the Stuff journalist who reported the protest in support of Mrs P by women academics and “domestic violence experts” in April, wrote a story published last Friday which highlighted Young’s claim that Callinicos had bullied Mrs P and subjected her to demeaning treatment.

To bolster the story, Johnston went back to the same “anti-violence advocacy group” she had quoted in April. Not surprisingly they obliged by calling for Callinicos to be “made accountable” for the Mrs P case and others he had presided over. No one reading the story would have been left in any doubt that Callinicos had behaved reprehensibly. After all, even the country's second most senior judge apparently thought so.

Coincidentally or otherwise, Stuff gave that story far greater prominence than one published a day earlier by Sharpe, which took a notably more neutral (and therefore less condemnatory) tone in reporting Ritchie’s preliminary finding in the Callinicos case.

Johnston followed her Friday hit-job on Callinicos with another the following day targeting retired Hawke’s Bay judge Tony Adeane, who was in the frame for several cases in which his decisions were overturned on appeal because of faults in the way he had directed juries.

Two stories on successive days, both reflecting badly on ageing male judges? It looked suspiciously like a pattern – an impression reinforced by Johnston’s description of herself on the Stuff website as “an investigative journalist with an interest in inequality, gender and social justice”. An activist, in other words, who by her self-description inevitably creates doubts about the neutrality of her work.

But at least Stuff published the stories, which is more than can be said for its treatment of the latest disturbing claims by Ellis, which apparently warranted not a word of coverage, although a copy of his letter had been sent to Sharpe.

Put all this together and you get a very worrying picture. Courts are supposed to prevent abuses of power and the media are supposed to expose them. The worrying conclusion to be drawn from the Callinicos affair is that we may no longer be able to depend on these two vital institutions to guard our rights and freedoms.

 

New Zealand's accountability deficit

(First published in The Dominion Post, June 16.)

When did you last hear of a judge resigning because honour demanded it, or to atone for a catastrophic error?

The most recent example I can think of is former District Court judge Robert Hesketh, who did the honourable thing by quitting in 1997 after pleading guilty to charges arising from fraudulent expense claims.

His fellow judge Martin Beattie faced similar charges but chose to fight them and was acquitted.

Beattie claimed $10,000 worth of expenses for hotel accommodation when in fact he had stayed in his own home. A jury appeared to accept Beattie’s defence that he thought he was entitled to claim the expenses and had never been told otherwise.

I believe the court of public opinion reached its own verdict, and it wasn’t the one the jury arrived at.

Beattie subsequently paid the money back, which seemed an acknowledgement that he wasn’t entitled to it in the first place, but he refused to resign despite being asked to do so by then Justice Minister Doug Graham. 

He was subsequently moved from frontline court duties, taking up an appointment as the Accident Compensation Appeal Authority. But he retained his status, and presumably his judge’s salary too.

Move on now to 2011 and the tragic murder of Christie Marceau. All murders are tragic but this one especially so, because it was committed by a man who was out on bail when clearly he represented a threat to the 18-year-old North Shore woman.

The police knew Christie was at risk from Akshay Chand and so, apparently, did Judge Barbara Morris, who had twice ruled that he should be kept behind bars for an earlier attack on the same victim.

But then Chand came before Judge David McNaughton. He wrote a letter to the judge saying he was remorseful and wanted to apologise. He later told police that his sole purpose in writing the letter was to get bail so he could murder Christie.

The ruse worked. The judge bailed Chand to live in a house just 300 metres from his intended victim – this, despite Christie’s own plea that he be kept behind bars.

Thirty-two days later Christie was dead – stabbed repeatedly in a frenzied attack by Chand, who was subsequently found not guilty on the grounds of insanity.  

Clearly, judges are human and prone to error. We can't expect them to have  the wisdom of Solomon. But some mistakes have such profoundly catastrophic consequences that the public is entitled to expect an act of atonement.

In the Christie Marceau case, a contributory factor was the apparent failure to include on Chand’s court file a record of Judge Morris’s earlier decisions to refuse bail and her cautionary comments about Chand’s mental state. Even so, there was ample evidence to justify him being kept in custody.

Once the enormity of Judge McNaughton’s mistake became obvious, it would have been fitting for him to step down. Some of us might wonder how he managed to sleep at night, let alone continue to sit on the Bench. But he did.

If it’s true that Judge Morris’s notes were never included on Chand’s court file, I also wonder whether the clerk responsible for the oversight ever faced any consequences – which brings me to the point of this column.

From top to bottom, New Zealand seems to suffer from an accountability deficit – a stubborn unwillingness by people in positions of public responsibility to fall on their swords when they are found to have behaved either badly or incompetently.

We’ve been reminded of McNaughton’s terrible mistake this week because an inquest is finally being conducted into Christie Marceau’s death. But there have been plenty of other examples.

In this column several weeks ago I referred to the e-coli outbreak caused by contaminated tap water in Havelock North. No heads rolled, despite 5000 people getting sick.

Pike River? The same. The collapse of the CTV building in Christchurch? Ditto.

The builders of leaky homes have largely escaped punishment and no one seems to carry the can when supposedly state-of-the-art, earthquake-resistant buildings are rendered uninhabitable while much older buildings are undamaged.

Only this week it was revealed that the Ministry of Social Development spent nearly $300,000 of our money in legal costs on what was clearly a butt-covering exercise after a woman killed herself following an accusation of benefit fraud which was found to be unsubstantiated.

One thing we do very well in this country, besides rugby, is evasion of responsibility. We get reports and inquiries, hollow apologies and hand-wringing ... and then it's back to business as usual.

Was the wrong person on trial?

(First published in the Manawatu Standard and Nelson Mail, May 17.)

I can’t help wondering whether the wrong person was on trial in the Whanganui District Court last week.

The name on the charge sheet was that of Kerry James “Chester” Borrows, who was tried on a charge of careless driving causing injury. But it seems to me there were other charges that could equally have been brought as a result of an incident that occurred during an anti-TPP protest in March last year – only not against Borrows.

For example, there’s a charge of disorderly behaviour and another of obstructing a public way.

I’m not a lawyer, but it’s surely not too much of a stretch to argue that a person deliberately stopping someone else going about their lawful business is acting contrary to public order, which is how my dictionary defines disorderly behaviour.

As for an alternative charge of obstructing a public way, anyone watching the TV news last week, and seeing exactly what happened in Whanganui on March 22 2016, could form their own conclusions.

Borrows, the National MP for Whanganui, was driving out the entrance of a motor inn with cabinet minister Paula Bennett in the front passenger seat. Several protesters were standing by the gate holding placards.

The TV camera showed two women stepping out into the path of the approaching car with the apparent intention of forcing it to stop. At least two police officers were standing by, but did nothing to intervene.

The car was moving very slowly. There was some dispute in court as to whether it actually stopped at one point, but it was certainly moving when it came into contact with the two women.

A police witness estimated the car’s speed as 1kmh – far slower than walking speed. Borrows testified that he feathered his brakes, as he was trained to do in similar situations during his 24 years as a police officer.

In any event, the protesters had ample time to get out of the way. They chose not to.

Let me repeat: they chose not to. They seemed to think their opposition to the Trans-Pacific Partnership gave them the moral right to prevent two elected public officials going about their lawful business.

Predictably enough, the vehicle nosed into them. One of the women rather theatrically testified that she thought: “Oh my god, you’re going under, girl.” At this point the police on the scene were roused from their torpor and belatedly moved the women out of the way

It looked to me as if the protesters were playing a game of chicken. Even if they weren’t exactly willing the car to hit them, they seemed to be at least daring it to happen.

That impression was reinforced when one of them, having been pulled clear, shrieked in the direction of the TV crew: “Did anyone get that on camera?”

You could be excused for wondering whether she had set the situation up for exactly that purpose. The idea of public protests, after all, is to get noticed – and what better way to attract public attention than by being hit by a car driven by a government MP and carrying a high-profile minister?

You can imagine the posts on social media that would have followed: “Frail elderly woman mowed down in callous act of Tory brutality.”

Borrows testified that the reason he didn’t come to a complete halt was that a male protester at the scene had earlier made threats against Bennett on Facebook. To be precise, the protester had written: “See you shortly, bitch”, which surely tells you something about the calibre of some anti-TPP protesters.

He had also a posted a picture of a dildo with Bennett’s name on it. Borrows testified that he thought it was a wooden dildo which, if thrown at Bennett – as had happened to her fellow minister Steven Joyce at Waitangi only weeks before – could have done damage.

In acquitting Borrows, the judge cited the dildo threat as an extenuating factor. She accepted that he had valid reason to be concerned about Bennett’s comfort, if not safety.

So Borrows got off.  But why was he prosecuted in the first place? I’ve seen it suggested that the police proceeded with the charge against him for fear that they might otherwise be seen as going soft on a former cop – hardly a compelling reason.

And why did the police take no action against the protesters, whose injuries (they were both treated for soft tissue damage) were the direct result of their own provocative and arguably unlawful behaviour? If a case could be made against Borrows for careless driving, they should surely have also been charged for their own contributory role.

Come to that, why did the officers on the scene not step in earlier to prevent the pantomime? Have they been disciplined or reprimanded?

In the end, the outcome was the right one. But it should never have come to that point, and Borrows can hardly be blamed for sounding bitter about his former colleagues in uniform.   

When a whanau places itself above the law

(First published in the Nelson Mail and Manawatu Standard, November 5.)

If you had to name the vital principles underpinning our civilised, democratic society, what would they be?

One would surely be the rule of law, which provides a framework by which injustices are dealt with, disputes resolved and the weak protected against the powerful.

Respect for the rule of law is one of the factors that distinguishes liberal democracies from countries where despots rule, and where justice, if it exists at all, is administered very selectively.

It follows that without the rule of law, society would unravel. Yet a determined challenge to the rule of law in New Zealand has been allowed to continue unchecked for seven years.

The country has watched with mounting dismay and incredulity as the Bay of Plenty whanau of the late James Takamore has repeatedly defied court orders to allow the exhumation of his body and its return to Christchurch, from where it was taken in 2007.

First the High Court, then the Court of Appeal and finally the Supreme Court all decreed that the wishes of Takamore’s Paheka partner and children should prevail over those of his whanau.

It’s clear that Takamore himself wished to be buried in Christchurch. But when an attempt was made in August to disinter his body from the whanau urupa near Opotiki, police and funeral directors were blocked by an intimidating group of Maori protesters. Rather than risk violence, they retreated.

At that moment, the goddess of justice must have let out a quiet sigh of despair.

In this case, the whanau have placed themselves above the law. They have used a cultural pretext, the sanctity of Maori custom, as an excuse to defy the courts and bully a grieving family. And a timid Crown appears to have no answer to their arrogance.

A High Court judge who has tried to mediate, apparently in the vain hope that sweet reason would succeed where court orders failed, has given up and passed the parcel – an embarrassing, much-handled parcel that no one wants – to the Solicitor-General.

No one will be holding their breath in the expectation of a sudden breakthrough. After all, why would the whanau capitulate now, when they have succeeded in repeatedly making a mockery of the legal system and proving its impotence?

Effectively, we seem to be back to square one. The scandalous procrastination continues.

The whanau claims good reason for doing what it did. After Takamore’s death members of the whanau travelled to Christchurch where they reportedly found his body lying unattended in the funeral home. The Tuhoe people regard this as an egregious breach of tikanga (custom) and a slight to the dead person.

I’ve also seen it argued (by a Pakeha) that Takamore deserves to lie among his own people, where his remains will be honoured and cared for.

I understand that argument up to a point, but it assumes he would have been neglected and forgotten had he remained in Christchurch. That’s an insult to his widow and children.

In any case, all that is irrelevant. We have a judicial system that has evolved over hundreds of years to determine a just and fair outcome in complex situations such as this. It’s not perfect, but it gets things right most of the time.

Maori as well as Pakeha are protected under this system. Maori accepted British law when they signed the Treaty (in fact asked for it, because of the problems caused by unruly colonists) and have become adept at using it to their advantage.

But the law is not a game of pick-and-choose. The system depends on people accepting the decisions of the courts whichever way they fall. Maori cannot embrace the judicial system when it works in their favour and disregard it if they think their tikanga takes precedence.  

It hardly needs saying that the rule of law is imperilled when people see a renegade group brazenly defying the highest court in the land and getting away with it. What’s to stop other disaffected litigants deciding to have a go?

There’s surely a simple, if unpleasant, solution. It’s ultimately the job of the police to enforce the law. Instead of timidly tip-toeing around the issue in the interests of cultural sensitivity, the police should guarantee sufficient force to protect those wanting to exhume the body. Anyone who interferes should be arrested for breach of the peace and contempt of court.

I’m sure that if a motorcycle gang defied the law from behind the walls of its fortified headquarters, the police would call in a bulldozer. It’s happened before. But it seems a different set of rules apply on the Kutarere Marae.

For every day that Takamore’s whanau are allowed to go on defying the courts, the rule of law is weakened. And James Takamore’s immediate family is left to ponder its apparent powerlessness.

I wonder when someone in authority – a judge, a politician, the police commissioner, anyone – will eventually muster the moral courage to call the Takamore whanau’s bluff. 

The public couldn't see the smoke, let alone the gun

(First published in The Dominion Post, May 16.)

FOR WEEKS, political news was dominated by allegations swirling around Justice Minister Judith Collins. Night after night, it was the lead item on television news bulletins.

Press Gallery journalists closed in, sensing a kill. As the breathless disclosures accumulated, it was easy to get the impression the government was on the ropes.

Then came the reality check. Two opinion polls indicate the government hasn’t taken the big hit that might have been expected. In fact the results suggest the public was pretty relaxed about the whole affair.

A Colmar Brunton poll for TVNZ asked respondents whether Collins should remain a minister or resign. They were split 42 per cent each way – hardly a resounding condemnation.

A question about whether her behaviour would damage the government drew a slightly stronger response, but hardly a fatal one. Fifty per cent said it was damaging and 42 per cent thought it would make no difference.

On the crucial question of whether the Collins affair would be a factor in deciding who to vote for, the overwhelming response – from 75 per cent – was a ho-hum “not much”.

Those findings were reinforced by a Stuff.co.nz/Ipsos poll which showed that National’s support has remained steady while Labour, which might have been expected to benefit handsomely from the furore, has slipped.

Should we be surprised? Probably not. The poll results simply confirm that issues which excite journalists and political junkies often barely register with the wider populace.

Press Gallery journalists live and breathe politics. They immerse themselves in detail – who said what, to whom and when, or who was at dinner and why – and go to great lengths to join the dots. But the public hasn’t the time or patience for all the minutiae and often fails to see what the fuss is about.

Maurice Williamson was different. The public got that. A ministerial phone call to a senior police officer about a wealthy Chinese donor to the National Party could look nothing but dodgy.

But the issues in the Collins affair were harder to explain. The public struggled to see the smoke, let alone the gun.

Call it the bubble effect. Britain has the Westminster bubble, America the Washington bubble and New Zealand the Wellington bubble. The things that fascinate people inside the bubble – and that means journalists as well as politicians – often fail to resonate with those on the outside.

* * *

TWITTER is the perfect protest platform for the social media era. It requires zero effort, no sacrifice and no risk, yet still imparts a warm glow of self-righteousness.

Millions worldwide have tweeted their outrage at the terrorist group Boko Haram’s abduction of 300 Nigerian schoolgirls. The fact that weeks had passed before they thought to do this, and the abductors had long melted into the bush, didn’t seem to matter. Until it’s happened on Twitter, it hasn’t happened.

Neither did it matter that the sad-looking African girl whose photo was tweeted in support of the protest campaign wasn’t from Nigeria and had nothing to do with the abduction.

Who cares whether the photo was relevant or authentic, when the only purpose is to stir shallow sentiment? One African girl is as good as the next.

And what will the vacuous outpourings on Twitter actually achieve? As an article in this paper pointed out, a video aimed at bringing the murderous Ugandan warlord Joseph Kony to justice went viral on YouTube two years ago.

Countless millions saw it. For a few days, Kony was world public enemy No 1. Then social media found something else to get excited about, and moved on. As it does.

Needless to say, nothing happened. Kony is still at liberty. People using Twitter and Facebook have the concentration span of a goldfish. They need to be constantly fed with new distractions.

There was a time when the act of protesting required people to put themselves on the line. It meant marching in the streets or manning picket lines, and risking arrest or abuse. But in the Twitter age, when it can be done instantly and in comfort, it’s all about narcissistic self-gratification.

* * *

A MAN BASHES his partner’s 2-year-old son so savagely that half his brain dies, turning into what an expert medical witness calls a watery mush. The basher is sentenced to 3½ years in jail.

On the same day, a former teacher is sentenced on charges of sexual grooming, unlawful sexual connection with girls under 16, offering to supply methamphetamine and trying to flee the country on a false passport. He gets 9½ years.

The two men were sentenced last week. Who was the more monstrous offender? The New Zealand public would have no trouble deciding, even if judges can’t.

DSK: a fine standard-bearer for socialism

(First published in the Curmudgeon column, The Dominion Post, May 24.)

THE GREAT paradox of Dominique Strauss-Kahn’s downfall is that this man, whom some accounts portray as a serial and even violent harasser of women, professes to be a socialist. He was the French Left’s great hope for the presidency.

Socialism is supposedly about championing the cause of the poor and downtrodden, which makes it highly ironic that Strauss-Kahn should be accused of forcing himself on a hotel chambermaid; an African widow and solo mother struggling, no doubt, to improve her station in life – in other words, the very sort of person socialists profess to be concerned about.

A true friend of the proletariat would regard such a person as someone deserving to be empowered and treated with dignity. But if the allegations against Strauss-Kahn are correct, it seems he simply saw her as easy meat - someone he possibly assumed would be unlikely to resist his advances, still less complain about the actions of one so great and powerful.

This would confirm that for all its supposed concern about social justice, socialism is rife with hypocrisy and double standards. There are probably as many alpha-male bullies and sexual predators within its ranks as in any other “ism”.

It’s notable too that DSK, as he is known, enjoyed the high life. He and his wife lived in a US$4 million Washington home with five bedrooms, six bathrooms and a swimming pool.

Nothing unusual here. The scandal enveloping Strauss-Kahn simply shows how far contemporary “socialism” has strayed from its cloth-cap origins.

The representatives of the working class are very good at rewarding themselves by gorging on the trappings of wealth and power. A wise old friend of mine, who made a career out of observing the foibles of our own politicians, once said to me that no one took more delight from settling into the soft leather seat of a VIP limo than a minister in a newly elected Labour government.

Once they join the political elite, people’s egalitarianism has a remarkable way of evaporating.

* * *

THE TV NEWS recently showed us a defendant in the dock in Waitakere District Court on charges of escaping from police custody in Auckland Hospital.

Throughout his appearance, he was gesticulating and waving. At one point he made a defiant gesture to the TV camera. The reporter told us the man appeared to be conducting a conversation, using signs and gestures, with someone in the body of the court.

There was a time when such behaviour wouldn’t have been tolerated. At the first raise of his hand the defendant would have been firmly told by any policeman in the vicinity to behave himself. If that didn’t work, he would have been fixed with an icy glower from the Bench and ordered to be taken back down to the cells until he learned to show some respect.

If the defendant had the misfortune to strike a crusty old magistrate like the irascible Ben Scully, a legend in his day, he might well have been convicted of contempt without further ado.

Yet the policemen accompanying the defendant in the Waitakere court didn’t raise an eyebrow and evidently the judge said nothing about his behaviour. We can assume from this that such antics are commonplace.

When criminals are routinely allowed to get away with minor infractions, it’s hardly surprising that they feel emboldened to proceed to more serious offences. This is the theory behind the “broken windows” model of policing that has been effective overseas. Arrest the vandals who smash windows, the theory goes, and they might be discouraged from committing worse crimes.

Applying the same rationale, our lamentable crime rate might start to improve if the courts showed less tolerance toward arrogant young punks like the Waitakere show-off.

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ONE UNSATISFYING aspect of Osama bin Laden’s death is that we don’t know whether he experienced the same terror that he and his followers inflicted on thousands of innocent people.

It’s possible, of course, that he felt no fear. He may have faced death with the disciplined composure of the true fanatic, convinced he would be glorified as an Islamic martyr.

On the other hand, he may have had a few minutes in which to experience something of the same terrible premonition of doom that the victims of 9/11 and other Al Qaeda atrocities must have felt in the last moments of their lives.

Was he gripped by panic at the sound of shooting and the clatter of boots coming up the stairs to his hideout? Did he have time to grasp the finality of his imminent fate? We can only hope so.

If he did, it would have been mercifully brief, unlike the agony and torment suffered by passengers in the doomed airliners over New York and Pennsylvania, or those trapped on the upper levels of the Twin Towers.

Whichever way you look at it, bin Laden got off lightly. A more appropriate fate would have been a long period of imprisonment in which he could have pondered the prospect of an ignoble death by execution.

A few thoughts on victim impact statements

Yesterday’s Dominion Post carried a story about a 23-year-old man who prowled the Internet looking for young girls. Douglas Charles Segetin pleaded guilty to three charges of unlawful sexual connection involving two 14-year-olds whom he'd met online.

It was, sadly, an unexceptional story. The Net provides opportunities that previous generations of sexual predators couldn’t even dream of.

But what caught my interest were the published excerpts from the victim impact statement made by one of the girls. I think I know enough about teenage girls to know how they talk, and this was not the language of a 14-year-old girl. It was the language of counsellors and therapists. Here are a few examples:

“I feel angry, disgusted and dirty whenever he comes to my mind, which is almost always more than once in a day.”

“You robbed me of … my personality, my faith and my trust in people and my courage.”

“I often turned to self harm because that was the only way I felt in control … even to this day I struggle with not trying to do it.”

“When it’s really bad all I can do is cry and think of the most horrible ways I could end my life because I just want everything to be over with. I want the old me back. I hate myself.”

“Did you ever think of how much pain, sadness, anger, guilt and grief you would cause? I want to cut you open just like you did to me – it wasn’t physically, it was mentally and emotionally.”

“I just want you to hurt like I hurt. Feel what I feel. When I look in the mirror I see this ugly, sad, damaged girl looking back. I just hope with all of my heart that some day I will get over this without too much permanent damage.”

Now I don’t want to play down the emotional impact of this girl’s experience, but this sort of thing worries me. The girl’s victim impact statement is couched in the familiar victim-speak used by sexual abuse counsellors and it wouldn’t surprise me if she had been coached to use phrases such as “robbed me of … my faith and my trust” and “I often turned to self harm because that was the only way I felt in control”. I don’t believe these are words or concepts that would come naturally and spontaneously to a typical 14-year-old girl.

Rather than trying to move past whatever trauma she experienced as a result of her encounter with Segetin, she seems to be reliving it; almost fixating on it, in fact. Is this cathartic, as we’re supposed to believe, or does it have the reverse effect of encouraging the victim to go through the rest of her life feeling “damaged”?

In a previous generation the girl would have been given some kind advice that might have gone something like this: you made a mistake, you got tricked, you had a bad experience. It wasn’t your fault. Learn from it, try to put it behind you and get on with your life. But the fashion for self-absorption and the cult of victimism demand that victims of sexual abuse immerse themselves in their misery and dig deep to uncover pain that might be better left buried.

You have to wonder if these victims have been abused twice over – once by their attacker and a second time by counsellors and therapists.

You have to wonder, too, about the wisdom of articulating these emotions directly to the perpetrator of the offence in the courtroom. Does this process empower the victim? Please tell me how. And does it induce shame and penitence on the part of the offender, as we’re led to believe, or does it give him the satisfaction of enjoying the victim’s pain and degradation all over again? Given that most of these male offenders are indifferent to the suffering of their victims, and are probably motivated in some measure by sadistic impulses, are we really expected to believe that victim impact statements will strike some chord of empathy and contrition?

In the above case, the mother of the girl delivered a victim impact statement of her own that was almost more emotive than the daughter’s. What’s the point? Does it make the victim feel better? Does it make the offender feel worse?

And since I’m on the subject, there’s another aspect of victim impact statements that makes me uneasy. Justice Minister Simon Power, who shows a marked inclination to announce policy changes on the hoof in response to the media firestorm of the moment, has initiated a review of the law that restricts what victim impact statements may say. This followed a public outcry over the censoring of the statement that the father of murder victim Sophie Elliott wanted to read at the sentencing of Sophie’s killer, Clayton Weatherston, and a subsequent controversy over statements by female relatives of Lower Hutt murder victim Mihi Tuhoro. In the latter case, the judge cut out bits of the statements but one of the two women defiantly read hers in its unedited form, apparently without protest from the bench.

Under current law, as I understand it, victims are restricted to talking about how the crime has affected them personally. It supposedly doesn’t permit them to say what they think about the perpetrator or how they would like him/her to suffer (although you have to wonder how strictly the law is applied, given some of the statements made in the Segetin case).

Comment on the heinousness of the crime has traditionally been the judge’s preserve, as it should be if the courts are to retain some semblance of restraint and dignity. But the mood of the times demands that people must be free to parade their emotional pain publicly in the interests of obtaining what is loosely called “closure”. Power appears to be pandering to this fashionable compulsion.

It’s probably futile, given the mood of the times, to point out that courts exist to dispense justice, not to provide emotional therapy. They are supposed to be places where the law is administered soberly and dispassionately.

If victims of crime are to be given the right to express their outrage, free of judicial restraint, courts risk becoming forums for unrestrained outpourings that more properly belong on Oprah-style TV shows and in women’s mags and tabloid newspapers.

What will come next? Whooping and whistling from teams of supporters in the public galleries? It may pander to the public taste for displays of sentiment, but it has very little to do with the justice that the courts are supposed to dispense.

Fancy that - more suppression orders

There can barely be a person alive in New Zealand who has not at some time heard at least a paraphrased version of English Lord Chief Justice Gordon Hewart’s famous statement: “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” So why is his famous injunction regularly disregarded by New Zealand judges – usually junior judges – who seem to think they know better?

The latest offender is Judge Semi Epati, who in the Manukau District Court yesterday suppressed all details of a depositions hearing against seven men charged in connection with the fatal shooting of South Auckland liquor store owner Navtej Singh.

Not only were names and details of the charges kept secret, but Judge Epati also suppressed the reasons for the suppression. Suppression orders don’t come much more blanket than that (unless, of course, the judge even prohibits anyone from disclosing the fact that judicial proceedings are taking place, as happened in a celebrated contempt of court case against Horowhenua author Anne Hunt several years ago, at which point things get scarily Kafka-esque).

Because Judge Epati suppressed his reasons for making the orders, we have no idea whether they were fair and reasonable. There is some suggestion he may have "inherited" orders imposed by other judges at earlier appearances and felt obliged to keep them in place. But there would need to be extraordinarily compelling circumstances to justify such sweeping suppression, particularly in a case that commanded huge public attention.

The orders were described in media reports as “temporary”. How “temporary” isn’t immediately apparent; but given the importance of open and transparent courts, even short-term suppression orders in proceedings relating to a fatal shooting shouldn’t be imposed lightly.

Problem is, suppression now seems the norm at first appearances and preliminary hearings. Lawyers apply for them automatically and many judges seem to grant such applications almost as a reflex action. This has not always been the case, as experienced court reporters will attest.

One expects wily defence counsel to seduce doddery old JPs, summoned into court from the garden or the bowls club, with impressive-sounding rhetoric about how their clients would be severely disadvantaged if their names were to be published. Judges, however, should be made of sterner stuff and set the bar high. At present the default setting is so low that defence lawyers barely need to hitch up their trousers (or skirts, as the case may be) to step over it.

Former High Court judge Sir John Jeffries, in his capacity as president of the Press Council in 2005, was scathing about the indiscriminate use of suppression orders, describing them as “mostly reprehensible”. His successor, Barry Paterson QC, also a retired High Court judge, told a press freedom seminar in Wellington last year that District Court judges with heavy workloads were sometimes tempted to take “the easy way out” by granting suppression applications. The Court of Appeal, however, had said the assumption should always be one of openness.

The one encouraging thing is that the news media no longer take suppression orders lying down. In the Navtej Singh case, several news organisations were to challenge Judge Epati’s ruling today. If the matter ends up in front of a High Court judge there’s a good chance that at least some of the orders will be reversed, since higher courts generally subject suppression applications to a much tougher test than lawyers are accustomed to at District Court level.

Tony the Terminator strikes again

Earlier this week, Radio New Zealand’s Midday Report broadcast an item about a Napier judge who packed a man off to the cells for making a hand signal to a gang member in the dock.

Remarking that he wasn’t going to have his courtroom turned into a circus by clowns, the judge remanded the man for 24 hours for contempt.

You didn’t have to be clairvoyant to work out, even before his name was mentioned, that this must be Judge Tony “The Terminator” Adeane, already famous for jailing taggers.

Judge Adeane strikes me as a throwback to the authoritarian judges of the past, but perhaps a bit of shock treatment is what’s needed to discourage the loutish behaviour now commonplace in the courts.

There have been other encouraging signs of a collective stiffening of the judicial spine. Only last week, Southland judge Dominic Flatley sent a teenage defendant home to get changed when she appeared on a drink-driving charge wearing a T-shirt bearing the words “Miss Wasted”.

One of the defining features of the sixties generation was its rejection of authority. I was as enthusiastic about this as anyone, but there are some institutions that can’t function properly without respect for authority. The armed forces are one and the courts are another.

As a cadet reporter I covered the Magistrate’s Court in Wellington, where there was zero tolerance of bad behaviour. Ben Scully was a famously tough magistrate alongside whom Captain Bligh would have looked a sickly liberal. A choleric glare from Scully was enough to silence the most unruly public gallery, since he gave the impression that nothing made him happier than to send a busload of miscreants off to Mount Crawford before morning tea.

He would have loved nothing more than for some rebarbative felon to appear in the dock wearing a hoodie, chewing gum and slouching. It would have made his day.

Even relatively gentle beaks of the time, like J A Wicks and Sir Desmond Sullivan, would come down hard on anyone who dared trifle with the court’s dignity. Courtroom antics that are now almost routine – such as offensive and menacing gestures, shouts and abuse, clapping, cheering and macho posturing – were unheard of.

The courts dispense justice on behalf of the people and are entitled to insist on decorum. It’s not just a matter of a pompous, bewigged poo-bah on the bench demanding that lesser beings bow and scrape before him; it’s a question of proper respect for the institutions of justice. Not for the first time, I find myself applauding Judge Adeane for his uncompromising, “clap ’em in irons” approach.