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.

"Sir" James Wallace and the Streisand Effect

It’s hard to imagine much being said in defence of James Wallace, the 85-year-old rich-lister and philanthropist who sexually assaulted three younger men in his Epsom mansion and then tried to use his money and connections to keep the scandal quiet.

A charitable view is that he was a pathetic old man, desperate to protect his exalted social position. A more sinister reading is that he considered himself above the law and had the hubris to think he could beat it. 

Trying to pervert the course of justice is unquestionably the more serious of Wallace's crimes and by far the more contemptible. In the end he was rightly exposed, as were the low-life accomplices (two of whom were given immunity in return for their co-operation with the police) who accepted his tainted money in return for their help in a series of bizarre plans to protect him.

That Wallace (he's still "Sir" James, but not for much longer) was able for five years to keep his name secret was itself scandalous. Confidence in the judicial system is undermined when the rich can use avenues not open to ordinary New Zealanders in order to avert justice, or in this case to forestall it. It’s also damaging to social cohesion, because it creates the perception that there’s a privileged class that can use its wealth and power to escape consequences that would be unavoidable for those without money and influence.

It’s said that the mills of God grind slowly – but in the meantime, public trust in the integrity of the system is eroded, rumour, uncertainty and speculation flourish, and suspicion falls on innocent people. 

Justice was finally done this week when the Supreme Court confirmed a decision by the Court of Appeal against allowing name suppression to continue. Whether New Zealand's highest court will remove five art works lent to it by Wallace in his role as a patron of the arts isn’t clear. The Supreme Court is only one of many institutions that find themselves embarrassed and compromised by their association with a man who now stands exposed as egregiously corrupt.

It’s interesting to speculate on what might have happened had Wallace pleaded guilty at the outset to the sexual assault charges against him and endured the shame of having his name published. There would have been a period of public disgrace following which the episode, along with his name, would very likely have been forgotten.

Prominent figures have come back after worse scandals; the entertainment world is full of them, to say nothing of Bill Clinton. Bear in mind that most New Zealanders had probably never heard of Wallace until this week; his name was well-known only in the top strata of society and in arty circles. But by going to extraordinary lengths to avoid fair and proper penalties for his actions, Wallace brought on himself intense media scrutiny (both Stuff and NZME, to their great credit, fought the suppression orders) and as a result must now endure far greater notoriety than would otherwise have come his way. Paradoxically, his attempt to keep his identity secret has had precisely the reverse result. This is a variant of the Streisand Effect.

The Supreme Court decision shows just how far Wallace was prepared to go – and who he was prepared to take down with him – in his determination to protect himself.

What has not been widely reported is that there was a second applicant for suppression in the case before the court. It was the McLean’s Mansion Charitable Trust Board (MMCTB), which is restoring an historic, earthquake-damaged Christchurch home – reputedly New Zealand’s biggest wooden house – with the intention of using it as an arts centre.

The court’s judgment reveals that in 2022, Wallace became chairman of the trust and undertook funding responsibility for the project. According to The Press, he paid off a $2.6 million loan and underwrote the entire project, which is expected to cost $10 million.

The MMCTB had submitted in the Court of Appeal that if suppression on Wallace’s name was lifted, the trust would suffer undue hardship as a result of being damaged by association – an argument repeated in the Supreme Court. According to the trust, the publication of Wallace’s name and the exposure of its relationship with him would hamper fundraising at a critical stage of the project and potentially deprive Christchurch of a public asset. The implication was that the entire project was at risk.

But the Court of Appeal pointed out that Wallace’s association with the trust began well after his convictions, and at a time when he knew that publication of his name was a very real prospect. To suppress his name in order to protect the trust, the court reasoned, would fundamentally distort the principle of open justice.

In a telling phrase, the court said the trust’s case had been advanced to give Wallace “an alternative pathway” to suppression. It pointed out that any hardship faced by the trust arose as a result of Wallace’s enhanced involvement in its affairs since his convictions, which the trust was aware of.

That seems a polite way of saying that having run out of other options, Wallace drew the trust into the sordid affair in the hope it would provide a smokescreen for him. And the trust, possibly desperate for funds, allowed him to do it. As a result the reputation of a worthy civic project may now also have been besmirched, much as it feared. (I note that The Press quoted a former trust chairman as saying he didn’t know of Wallace’s convictions at the time the trust decided to accept his money and hand control to him, but the Court of Appeal decision said otherwise.)

Of course, Wallace could argue that he involved himself in the trust for perfectly honourable reasons. Cynical observers, however, bearing in mind his previous conduct, could hardly be blamed for thinking his motive was devious.

In the final event, the three Supreme Court judges who heard the application for further appeals weren’t buying any of it. The only issue, they said, was whether a miscarriage of justice would occur if the appeals for continued suppression were not heard, and they were satisfied that criterion was not met.

It took a long time to get here, but better late than never. The irony is that having spent at least five years and probably millions in legal fees trying to save his reputation, Wallace has succeeded only in blackening it beyond redemption. Whether he ends up taking the McLean’s Mansion Charitable Trust down with him remains to be seen.

Sterile video is no substitute for flesh-and-blood court proceedings

Today the Supreme Court in Wellington continues hearing the Free Speech Union’s appeal arising from the controversial banning of Canadian speakers Lauren Southern and Stefan Molyneux in 2018.

It’s a significant case – the fact that the Supreme Court agreed to hear the appeal confirms that – and I was looking forward to watching proceedings. In fact I was on the verge of heading into Wellington yesterday morning when I received an urgent email from the FSU saying that because of Covid restrictions, the case would be heard entirely by video link.

Even the lawyers are not physically present. The FSU urged that the hearing be live-streamed so that its supporters could watch remotely, but the Supreme Court judges wouldn’t have that. Instead it's a virtual hearing, conducted via the sterile medium of VMR (Virtual Meeting Rooms) software. Interested parties were told that a maximum of 100 participants could register in advance so that the court could send them a link.

I declined. I find it utterly absurd and slightly alarming that when New Zealanders are able to attend sports events, go to movies, eat in restaurants, drink in bars and travel on public transport, the nation’s highest court locks its doors in apparent terror of the pandemic. Whatever happened to transparent, accessible, open justice?

In its email yesterday, the FSU cited the disruption caused by the protest at Parliament as an additional factor in the court’s decision. But the fact that the judges issued their ruling on Friday, when the protest was well contained within the immediate parliamentary precinct (in fact still is), suggests Covid was uppermost in their thinking. 

I suppose it's possible the judges' hand was forced by an over-cautious bureaucracy panicking at the Omicron outbreak, but there’s an important matter of principle here. As the FSU points out, any member of the public can normally walk into court and watch what’s going on. Only extreme circumstances would seem to justify suspension of that right, and you have to ask whether the almost negligible risk of infection from Covid meets that test. I mean, a Supreme Court hearing is hardly likely to be a super-spreader event.

There are other considerations too. I’m no lawyer, but I’ve sat through enough judicial proceedings to know that courtroom dynamics can be important. The way lawyers interact with the judges and with each other can have a bearing on the way the hearing plays out. Body language can tell you something.

It might seem an odd analogy, but I recall it being suggested at the inquiry into the Wahine sinking that if the ship had had open wings on its bridge, the captain would have been able to step outside and physically feel the brute force of the storm. But he was cocooned in a fully enclosed bridge and might not have fully appreciated what his ship was sailing into.

In the same way, it seems reasonable to suggest that it makes a difference when the participants in court proceedings are physically together in the same room – appropriately masked and distanced, of course – rather than forced to engage via the arid means of digital technology, even when the case is likely (as in this instance) to involve a lot of dry legal argument.

To put it another way, the quality of the judicial decision-making may be influenced by the circumstances in which the case is heard. Justice is ultimately a flesh and blood business, after all, and judges shouldn’t allow it to be dehumanised. 

For those interested in the background of the hearing, the FSU issued the following media advisory note:

Supreme Court to hear appeal of Moncrieff-Spittle v Regional Facilities Auckland Ltd

21 February 2022

FOR IMMEDIATE RELEASE

Time: 2.15 pm Monday, 21 February and continuing Tuesday, 22 February

Location: Supreme Court of New Zealand

Background

This is the first case to come before our appellate courts of attempts to de-platform by resorting to the heckler’s veto. Backing our case, Professor Philip Joseph, the author of New Zealand’s leading textbook on Constitutional and Administrative Law, will appear with the Free Speech Union’s lead barrister, Jack Hodder QC.

The Free Speech Coalition (now Union) was born out of an effort to crowdfund for this legal fight after Mayor Phil Goff ostensibly ‘banned’ two controversial Canadian speakers, Lauren Southern and Stephen Molyneux, from speaking at a Council-owned venue.

What happened in the Courts previously?

Once we filed proceedings in the High Court, we found out that Goff had lied. The decision to cancel the event was actually made by Regional Facilities Auckland Ltd (RAFL) personnel only hours after receiving an email threat from Auckland Peace Action to blockade the event venue four weeks before the event was to take place. No investigation into the credibility of the threat or what measures might have been taken to manage it took place at any stage. The Court ruled that our plaintiffs were on a “personal crusade” and didn’t have standing to bring the case. The Court also held that the decision to cancel the event was not judicially reviewable because RFAL’s decision did not, in the Judge's opinion, involve an exercise of public power and the venues were technically held in trust.

To our relief, the Court of Appeal reversed the most disturbing parts of the High Court Judgement, holding that RFAL must uphold free speech rights as if it were the Council. It also held that our plaintiffs did have standing to bring the case and we were relieved by the appeal decision to cut the costs awarded against us by 70% because of the importance of the issues and public interest in our bringing the case.

That being so, the Court of Appeal ultimately found the decision to cancel the event to be a ‘justified limit’ on freedom of expression under section 5 of the New Zealand Bill of Rights Act. In holding that the decision to cancel the event was a justified limit on free expression, the Court of Appeal considered the purported failings of the event organisers (in particular the Court of Appeal was critical of the event organisers for not warning RFAL venue management of the possibility of law-breaking protest at the time of booking), the experience of RFAL personnel, the venue hire agreement and the protest noise over the preceding week. The Court of Appeal held that the “heckler’s veto” concept we put forward had a general application as part of the section 5 analysis but did not go on to analyse it or consider its implications under section 5 in any detail.

Why this further appeal?

The Court of Appeal judges stopped after describing the thug's veto problem as if solving it was not their job, instead treating it like some sort of abstract long-term project when they had a perfect opportunity to​ address it head-on. We asked them to say how much should be done about thuggish threats before they can override free speech rights but after summarising the different approaches in other countries, they passed that ball into space.

While the Court of Appeal Judgement improved upon the High Court Judgement, it leaves the right to freedom of expression vulnerable to vague threats of violence. We wish to argue that the Court's failure to address the heckler's veto concept was wrong. The judgement allows for a threatened unlawful action (a blockade, with an implicit threat of intimidation) to effectively curtail the lawful exercise of fundamental rights. Free speech rights in public spaces and venues across New Zealand need protection from such a dangerous precedent.

Further, cancelling the contract for the event didn’t serve any objective aimed at substantive and urgent concerns (RFAL had other options to deal with the security concerns rather than outright cancelling the event). For example, RFAL took no genuine steps to obtain professionally based, reliable information about the security concerns, either by engaging with the police, its own security personnel or the event organizer. Rather, RAFL cancelled the event having succumbed to unsolicited threats of unlawful action. This is a disproportionate response to a breach of fundamental rights.

The Court of Appeal judgment also emphasised the event organisers’ non-disclosure of security arrangements for comparable events in Australia, and labelled this “contributory fault” but they were under no such obligation to disclose these (they were required to submit a health and safety plan 10 workings days before the event but RFAL cancelled the contract 28 days in advance.). In any event, it is standard for human rights cases to involve conduct that is near the margins.

Footnote: I originally posted this column yesterday, but took it down when confusion arose as to how the hearing was being conducted. I'm now satisfied that what I've written is a fair account of the situation.

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.

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. 

New admissions to the judicial hall of fame

(First published in the Nelson Mail and Manawatu Standard, August 14.)

When I was a novice reporter in Wellington, my duties including covering what was then called the Magistrate’s Court (now known as the District Court).

Naturally, I got to know some of the magistrates – not personally, you understand; they were far too magisterial for that. But by observing them from the press bench I did become familiar with their habits and idiosyncrasies.

The regular magistrates included J A Wicks (they were always referred to by their initials in those days), D J Sullivan and M B Scully.

Mr Wicks – later to become Sir James – had glasses and wispy hair. He was quietly spoken and gave the impression of being a kindly man, but he brooked no nonsense.

Mr Sullivan (later to become Sir Desmond, and chief judge of the District Court), was younger and less aloof. He seemed a sympathetic type and I wasn’t surprised to read in his obituary in 1996 that he believed in giving people a second chance.

Mr Scully, known by everyone as Ben (but not to his face), was a different proposition. He was short and pugnacious and had a reputation as being irascible and unforgiving.

Everything about Ben Scully, from his choleric complexion to the impatient way he strode into court, as if he couldn’t wait to pack the first miscreant of the day off to prison, gave warning that he was not a man to be messed with. 

Lawyers were intimidated by Ben Scully, and any defendant who made the mistake of antagonising him soon regretted it. Barristers old enough to remember him still mention his name with something approaching awe, although away from court he was apparently regarded with affection as well as respect.

Magistrates in those days were lords of their domain and you forgot that at your peril. Even reporters on the press bench took care to behave with decorum.

I was reminded of that era last week when I read an excerpt from a new book called Grumpy Old Men, in which Auckland District Court judge Russell Callander sounds off about some of the things that irritate him. No, make that many of the things that irritate him.

Judge Callander is in his 70s and sounds like a throwback to those magistrates I recall from the late 1960s. His is a magnificent rant that will warm the hearts of curmudgeons everywhere. Allow me to quote some of the juicier bits:

■ “People who dress badly when they appear in court can make me tetchy. Courts are solemn places: not the beach or the public bar of the local boozer.”

■ “Epidermal self-mutilation with grotesque ill-drawn graphics so frequently flaunted by defendants, their associates, and witnesses are most irritating. When a man can’t even successfully spell four-letter Anglo-Saxon words, it makes me worry either about the standards of teaching in our schools, or the intelligence quotient of some of our more delinquent citizens.”

■ “Certain guilty paedophiles selfishly elect trial by jury on serious charges of sexual violation of children. They force innocent children to testify about traumatic and sensitive sexual issues in the usually futile hope a jury will acquit. They deny their offending. They lie through their fangs. And then, after being sentenced to imprisonment, they confess all to a prison psychologist and ask for a rehabilitation programme and the earliest possible release date.”

■ “Benefit bludgers and tax cheats make me growl with indignation. When people improperly take benefits, they steal from the state – from the rest of us who obediently pay our taxes. I have seen people live cheerfully in well-paid jobs while for years they supplement that with unemployment benefits totalling thousands of dollars – in one case nearly $100,000. Often they have the cheek to look very disgruntled when they are caught, convicted and ordered to pay it all back. Then, adding insult to injury, they smile sweetly and offer to pay it back at $15 per week over the next 128 years. Naturally, without interest.”

■ “A huge amount of court time is wasted by Maori activists who profess that Maori sovereignty renders them somehow immune to the laws of New Zealand.”

■ “Over the years I have dealt with scores of men who have fathered children and then totally abdicated any responsibility for them. They don’t provide any financial help. They don’t play any parental role. They are selfish, uninterested, inhuman and irresponsible. They deserve the condemnation of us all.”

■ “And then there are the liars, the perjurers, the fabricators and prevaricators. Gone are the days when people admitted their crimes and told the truth. The oath is mainly meaningless. The mantra is ‘Get off the hook by any means’. It is shameful and destructive. It makes me not just grumpy but angry.”

I find it hugely refreshing and encouraging that a judge should throw political correctness to the wind and so vigorously express sentiments felt by many of his fellow New Zealanders.

I wonder if there’s a trend building here – an overdue backlash against misguided tolerance of bad behaviour and disrespectful antics in the courts.

In the same week that I read Judge Callander’s expostulations, another District Court judge, Judge Russell Collins, delivered a scalding judgment in the case of lawyer Davina Murray, who was found guilty of smuggling contraband to Mt Eden prison inmate Liam Reid, a convicted murderer and rapist with whom she was having a relationship.

Murray obviously got right up Judge Collins’ nose during the trial, and he didn’t hold back. He castigated her for turning up late in court, repeatedly talking over himself and witnesses, playing up to the media benches while she was being addressed from the Bench and making gratuitous comments after rulings had been given against her. At one point, Judge Collins was moved to remind Murray that she wasn’t in an American television show.

Courts are institutions of the people and deserve to be treated with respect. We should applaud Judges Callander and Collins for making a stand against those who abuse their dignity.

They will stand alongside Hawke’s Bay judge Tony Adeane – who in 2008 declared that he wasn’t going to have his court turned into a circus and packed a man off to the cells for 24 hours after he made a gesture to a mate in the dock – in my own judicial hall of fame.

 

 

 

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.