Saturday, October 10, 2015

Arthur Taylor wins as Paremoremo Maxi gets closer to being shut down.

Earlier in the week we saw the Minister of Corrections Sam Lotui'iga set about striking into the foundation works of a new maximum security prison to be built at Paremoremo in close distance, just over a small prison road in fact, from where the 'old' Maxi Security Block stands with all it's secrets, its violence, the spaces where men's bleak futures were sometimes uplifted into a better life, or where others died by their own hands or that of others. Some days later we got the chance to read a  judgement delivered by the Appeal Court into an appeal by Arthur William Taylor who won case of the analysis of the New Zealand Constitution, Bill of Rights. He's had more than a few victories in his various differences with the NZ Justice system where he has been imprisoned for much of life.

I recall recently reading a disclosure in the Courts or media where he had spoken or written about issues of rehabilitation - it seemed to be particular to be in respect of youth who got fed into the Justice system and were criminalised by it, or had their fledging or experimental criminality, hardened. In this week where the grounds for a new maximum security block is to be built the long term prisoner Taylor is successful in our 2nd highest Court in winning an appeal as to his, in fact our, rights under the New Zealand Constitution. His opponent once again the Justice System that failed to conscript the young Taylor into a law abiding citizen. Most people agree that the early years of any person's life are the most important, in that respect the Justice System failed Arthur Taylor and around 80% of those that come into their 'care' as children, teenagers or young adults.

Maybe the old Maxi Unit will be opened up for the public to view in future times. Those who will have read the latest judgement favouring Arthur Taylor who remember the detail that according to the Justice Department refusing to let Arthur be interviewed on TV one reason was that Arthur ought not be interviewed was because he jammed a lock in his cell,  also set a fire there - in the end of the road  formerly called D Block, now whitewashed with a new name 'East Block' will get a surprise to find there are no locks on D Block cells. Surely not, one might think. How could the gaolers not know there were no locks on the cells. It would certainly be a mishap, dangerous maximum security prisoners in cells which someone had forgotten to include a lock? Basic English please.

Out where Sam had been filmed digging new foundations there had a sound over in which he said would be included in the new institution better rehabilitation than old prison which he described as run down. He spoke about safety of staff, inmates - the design for better  rehabilitative outcomes for those that will be housed there. It really was a fresh start dug into the clay according to Sam. Clay of course is a barren underlay where fresh roots can't crop. The Minister would not have known that later in the same week that he overturned those first sods of soil from where a new prison would emerge another man who had spent a great part of his life in the old maximum security unit would win another case against Sam's department, the same one for which the Minister furnished hope for better outcomes as he dug at the foundations. A further analysis of those foundations and the case Taylor just won would show that what Arthur dug into was the self protecting construction of the Justice Department. Arguing that Taylor was too dangerous to be interviewed because he allegedly 'jammed' a lock exemplifies how old antiquated the Justice System in NZ has become.

From the beginning of having prisoners mine rock to in fact build prisons where they were fed meagre food, lashed and treated largely according to the whim of the prison master whether he be a good man or one described as tough. Prisons where the opportunity to go to Court over a grievance was limited to periodic visits by a Magistrate called a visiting Justice whose main task was to deal with serious 'insubordination' resulting in punishments of isolation and restricted diets designed to break the spirit of incalcitrant prisoners, escapers, the violent and often those of disturbed mind who could be ordered into the care of psychiatric institution - to a time now where only a small percentage of prisoners have the knowledge of opportunity to seek Justice in the Courts was marked this week.

What was also marked for the keen observer was the nonsense that the Justice Department can bring to situations. Taylor had sought a Judicial Review of the JD (Justice Department's) decision to not allow Television NZ to interview Taylor about another case Taylor won regarding the rights of prisoners to smoke tobacco. The High Court rejected the Judicial Review which Taylor in turn took to the Court of Appeal. There the Court first of all referred to the description of Heath in the High Court as to the essence of Taylor's case as;

As Heath J succinctly put it, the issues arising involve the balance to be struck between the need to maintain order in a prison and the human rights of its inmates.

This is the old acorn of prison administration 'maintaining order' which is invariably wheeled out as a buttress against anything other that routines which suit the prison, and the administrational mind set as order at all costs. Basically most people would agree that an interview is hardly likely to strike at good order in a prison, especially in a maxi unit where all inmates are locked down anyway. Additionally, there was the opportunity for the JD to take action to prevent TVNZ from presenting to the public any segment of the interview by Court Order. A compromise could quickly have been reached leaving those of the public who watched the interview able to make up their own minds as to it's value and consider the counter views of both the JD and Taylor himself.

The concept that 'order' would be disrupted by an interview held in a maximum security unit is fragile and should have failed in the first instance. Of course more thoughtful people might consider that the concern about 'order' was simply a red herring and the uncomfortableness of the JD was that they had lost the case Taylor had taken to Court over smoking. When considerations such as that can be seen to linger in the background the JD ought to be more circumspect about 'order' as an old favourite and consider the depth and breadth of 'human rights' under the NZ Constitution of  Human Rights. In doing so it could be submitted that they are benefitting society by ensuring all citizens are equal before the Law. The message in that is also to the inmates who feel aggrieved or lost in a system where they might have spent most of their lives without a voice or direction. This in itself is in the public interest, the move forward of an archaic Justice System with it's high failure rate.

More fool me perhaps, but I genuinely believe in the efforts by Minister Sam, that hatched within the current Government and it's predecessors. Most importantly by the current Minister of Finance looking at the financial generational costs of not capturing those youngsters (as Taylor once was) tangled in the Justice System. Time to remember all the recent reports into the abuse against children in the care of the Government, the mixing of those in care from abuse or neglect with those in care for crime - each treated no differently, one group victims, the second beginning to victimise others - be tough and bad or die.

Obviously I don't believe in obstinacy against good reason, or against demonstrations of logic and fairness to those in particular who may not have ever experienced the same. In Taylor's recent victory we all share in the thought of what is right should prevail and that which is wrong cannot be disguised as 'order' or as broken locks where there are no locks.

Even the locks feature in the COA Judgement where it is described that a SMS message was received to prison, thought to having come from within the prison, where, how exciting and fortunate for the JD - it was revealed that during the consultation process with TVNZ over the interview news broke that Taylor had flooded his D Block cell, set a fire and jammed the locks. Even if that were true the person in danger was Taylor himself which seems quite contrary to the view of considering the safety of others, rather than Taylor, in deciding whether he could be interviewed. By the time the review of the decision had been heard and the appeal held it was acknowledged that the SMS message was incorrect, only a hopefully bewildered person would consider that it was not a member of the JD who had sent the message from within the prison, and who of course had been unable to consider Taylor allegedly harming himself in a protest was not threat to any other person.

The report that accompanied the 2nd decision not to allow the interview basically were wisps of smoke, maybes that included character analysis and the purported motivation of Taylor himself - all of which was quickly set aside by the COA as irrelevant, or in my terms irrational speculation without logical reasoning. Para 44 of the Judgement on extra material sought to be submitted post the original decision and declined was of particular interest in that it referred to prison 'hard liner' Garth McVicar being refused permission to visit Taylor - in itself a surprise, that the 2 men from very different sides of the fence were not allowed to meet.

In finding the appeal in Taylor's favour the Court gave significant weight to the false allegations made about Taylor and the lock. Minister Sam is a Lawyer and well as Minister of the Crown and many days ago released the care of the digger (excavator) back to its operator. It might now be time for the Minister to seek information from someone duly qualified to 'dig into' where the false allegation arose from, you know the one - the one that miraculously supported the JD decision to turn down the interview.

In the meantime Garth McVicar who recently lost a Judicial Review for want of status regarding a Parole Board decision might be even more interested to meet Arthur Taylor, if not for that fact alone.  However, if solely for the symbolism, a Minister digging the foundations for a new prison in the shadow of the old prison where one man somehow, without training, and by self education became a person able to win cases of merit concerning the Bill of Rights. Achieving this milestone from behind razor wire nearby where the Minister worked in a photo opportunity for the press and claims of improve rehabilitation, is worth noting. It is mysteries such as these (the false report) that favour the Crown or Police in some prosecutions which are seldom dug into after the fact of their falsity is revealed which leave those adversely effected by them to learn the inequality of the administration of the Law strikes at freedom and all rights which follow - that is a lesson that students of the Law (as the Minister once was) might learn from this case.

The full judgement is here:

CA816/2013 [2015] NZCA 477


Sunday, September 20, 2015

Cameron Slater: taking water on board much?

I received the following link and comments from a correspondent last Friday night so decided to read the Judgement included in the link.


The ruling against whaleoil for defamation. It holds him responsible for comments posted on his blog, and also says that removal of those comments rectifies the problem. AND it hold him responsible for things his wife said – he told his wife about a confidential judicial hearing, and she posted the details on whaleoil. The judge says that even though not an employee, she was an ‘agent’ of his.
It was worth the read but I should first say that Cameron is an amusing guy. Somewhere along the line I read that he had been a 'debt collector', collecting debts of gangs. Well, that's funny enough. But I thought it was a little on the nose when a friend said 'What gang? The boy scouts.' I guess old Pam/Cam is a little short off the mark, and everywhere else for that matter apart from his rather gigantic girth. Although everyone is their own size whether they wear high heels or not, Pam didn't assist by being a cry baby on TV some years ago when he wanted people to feel sorry for him because really he was  a good Cam. Anyway some such things passed through my mind when taking the opportunity to read where dear Cam was these days, having finally climbed off the canvas after his recent 30 second boxing bout in which he demonstrated how to fly backwards, forwards, hover, then crash. Way to go Cam/Pam.
Off course I knew that Cam had told the World that he was financially backed in his stoush with Colin Craig the Conservative Party Leader who is a full 6 inches taller than Cam/Pam so I was surprised to read Justice Raynor, when handing down a sentence to bad Cam, that he possibly  considered that bad Cam was not only of modest height, but also modest means so he'd lay off the fine. Fair enough, just because Cam doesn't know if he's rich one minute or poor the next isn't a crime. Either apparently is bad Cam breaking a Court Order and confidential conference by telling his wife the details after which she just happened to publish them on bad Cam's blog near enough to straight away. Because Raynor appears to have considered that Cam/Pam told his wife of the confidential details but 'never thought' not to tell her to publish them on his blog when he flew off to Germany.
These things happen, people are rich one minute and poor the next - the cost of holidays to Germany set aside. I'm sure also that people have confidential conversations then publish them on public blogs as information that just happens to be in breach of a Court Order when one party flies off to Germany. Interesting in the Judgement which relates to a slow winding defamation suit against Cam there is mention in the Judge's findings as to defamatory statements. Considering that it appears that even before the Trial it is recorded in the Court file that statements published by Cam about the applicant are indeed defamatory from the point of view of at least one Judge. That doesn't look good, nor do 7 convictions just entered against Cam for Contempt of Court over the same matter.

For all the apparent support Cam claims at times it was surprise that he was self represented which might be the result of his modest means as Justice Raynor described. A lot of Court time is being wasted along with the probability of any costs or order for payments not being able to be met. I'm sure if Cam took some structured legal advice he would make the effort to settle this dispute without further delay and get on with life. The same goes for other proceedings issued against him that look to have him entangled up to chin level to the point he may soon be unable to breath.

As the undisputed most read blogger in NZ, and taking into account changes in internet Law and other common law developments under the Harassment Act it would be great if Cam used his popularity and came out the other side of the tunnel he's found himself buried in, publically apologise, construction settlements solutions and no longer be a sad Cam.

Saturday, September 19, 2015

Bain compensation: what the calculator says.

With the  Bain application for compensation due for a result before xmas along with a sudden quietness in place since an agreement that settled David Bain's Judicial Review of the former Minister of Justice's decision to not honour an independent review of David's guilt or innocence it could be time to consider how much compensation, if any, he could be awarded. The following, using an inflation calculator, takes as it base line the compensation paid to Arthur Thomas in 1979 after he was pardoned for a double homicide which has never been solved.

Arthur Allen Thomas got $950,000

Set the cost to $950,000, the date of cost to Q4 1979, leave the date for comparison as it is…

Then try putting in $300,000 – which was his inheritance – and seeing what that works out to. 

 I got the following under the general index on the comparison of the amount awarded to Thomas at $4.7 million and $1.6 million for the inheritance he lost under the housing index.

As expected none of the 'hangbainers' were able to respond to my earlier blog 'If the sock print fits,' wherein a picture shows the difference between the shape of David's foot to that of his late father as lifted from the murder scene - it wasn't just size but also shape. Similarly the forensic evidence included in David's application cannot be overcome either individually or collectively - science leads where Justice has stumbled.

Rightly or wrongly, I've been confident about David Bain gaining compensation since he was acquitted at his retrial all those years ago. Perhaps above I don't have my calculations quite right, nevertheless - I'm sure I have one thing correct, that is the credibility of the NZ Justice system is at stake and it will put this actual Miscarriage of Justice right. I sometimes think of the white gloves the killer of the Bain family was said to have worn to see the symbolism of a broken man believing he was putting things right before surrendering his beliefs to his god with a dark shadow and blood over himself that the gloves didn't hide.

Friday, September 18, 2015

Overcoming wrongful imprisonment using the Law as it is.

One of the debates that surround cases such as that of David Bain, Teina Pora, Scott Watson is that we need an independent review procedure similar to that which reviews convictions in Britain. I agree with that, however it is like moving a mountain. I think the way to more easily move the mountain is Judicial Review and more significant funding by way of Legal Aid for cases, at least at the outset, of high public concern that a conviction might be unsound.

Scott Watson fits into that category, his recent application for an Exercise of the Prerogative of Mercy is a diabolical black mark against Executive power forming a remedy for the wrongfully convicted. In the first instance the Watson application took an extended period of time, so much so that in the normal course of events if he were a defendant in a Trial the charges could have been dismissed for want of timely prosecution. Then reading the report into the Watson application, including the manner in which it was looked into, arguably shows that it was not viewed in any merciful way whatsoever. Moreover, common practices of Law, such as individual evidence looked at singularly but also collectively was ignored as has been pointed out in other posts and comments regarding Scott Watson on this blog.

So what does Watson, or others in his situation do? I think there is a clear answer. Take rogue decisions or long delays in recommendations to the Court by way of Judicial Review. I think the old saying of Justice delayed is Justice denied needs to be read with the Bill of Rights. It is a fundamental right that a person know the case against them, that charges or any trial be brought in a timely fashion. When a trial is apparently splintered as in the case of Watson time is of the essence to have it adjudicated by the Courts. The Courts are the home of Justice, not a Government Executive administering 'Mercy' by way of long delays, along with what looks like deliberate lacking of careful Judicial oversight.

I've use this quote by Lord Diplock of the Privy Council before: In de Freitas v Benny [1976] (Court of Appeal in Trinidad), Lord Diplock observed that “mercy is not the subject of legal rights [but] begins where legal rights end.”

Equally interesting are the comments by M Travis below:
1.      Some material from M. Travis, May 1998 on the RPOM in NZ.

The whole thing is worth reading, however in the excerpt below is what seems to the answer in Pora – no limits apparent on ‘the discretion’ to exercise. And in the final sentence, what now appears to be a ‘prophetic’ observation regarding a current Judicial Review as, hopefully the Courts and The Executive will ensure that ‘Executive Powers’ are consistent with Statute, due process and Natural Justice – all things which must have been included in the original concepts of the Royal Prerogative. Great observation by Lord Diplock included.

‘The prerogative of mercy seems limited only by the discretion of those who have the power to exercise it – the Sovereign, and the Governor-General by way of delegation in the Letters Patent 1983. Fortunately a precedence has been set by the practice of successive Home Secretaries that, in the words of Ivan Hare , “a free pardon should only be granted in cases where it was established that the convicted individual was both technically and morally innocent.” Although only a precedent and in no way binding, this is most compelling and surely to be followed by successive Governor-Generals.

The only major mechanism that has been suggested for controlling the use of this prerogative is the possible threat of judicial review. So far there has not been a successful appeal for review, but there are many arguments on either side of the issue.

In de Freitas v Benny [1976] (Court of Appeal in Trinidad), Lord Diplock observed that “mercy is not the subject of legal rights [but] begins where legal rights end.” Christopher Gelber considered this a ruling that “the exercise of the prerogative of mercy was inherently extra-legal in nature and therefore not justiciable,” as did Lord Roskill in the G.C.H.Q. case [1985] A.C. 374. Furthermore it cannot be denied that the Crown’s ability to pardon displays the necessary characteristics of a true prerogative; yet there are those like Watkins L.J. who reject the test of justiciability “in favour of an examination of the court’s capacity to weigh the competing issues of principle in each case.” Watkins considered the courts to be competent enough to review the prerogative of mercy.

Nonetheless, a judicial review of the prerogative has never been undertaken in a New Zealand court. The closest thing so far was the ‘review via invitation’ in R v Secretary of State for the Home Department, ex parte Benley [1993] 2 W.L.R. 101; where the Divisional Court did not order a formal review but “[invited] the Home Secretary to look at the matter again.” Ivan Hare saw this invitation as attempting to “impose narrower parameters on the discretion of the Home Secretary” via the informal mechanism of invitation, but he seems dubious as to its ability in having any real effect. This is because it is beyond the role of the courts to suggest a particular result, and because any purported limitation on the role of the Home Secretary is illegitimate.

The issue is also a live one in Burt v Governor-General [1989] 3 NZLR 64, (1987-89) 7 NZAR and [1992] 3 NZLR 672, and some very important contributions to the argument are made. In these cases, Mr Burt sought a judicial review of the Governor-General’s refusal to exercise the prerogative of mercy in granting him a free pardon. Although unsuccessful, Cooke P said that:

“It would be inconsistent with the contemporary approach to say that, merely because [the prerogative of mercy] is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge.”

He states that the Courts’ wish to review the refusal to exercise the prerogative is not “absurd, extreme or contrary to principle” as it is at the very least attempting to ensure that fair procedure has been followed. Moreso he adds that the prerogative of mercy is not “an arbitary monarchical right” but “an integral element in the criminal justice system…a constitutional safeguard against mistakes.”

In conclusion, the prerogative is not to be touched by the Courts or judicial review, yet the concept is one that is winning favour amongst the Judges. It is possible that in a few years there will be mechanisms like judicial review to control the use of the prerogative, but it is very unlikely that it should ever become part of a statute.’

Of course David Bain was the first from memory to succeed with a Judicial Review, at least to the point, of the Minister of Justice agreeing with Bain's counsel to accept a new application from Bain for compensation for wrongful imprisonment. This was after a former Minister of Justice, Judith Collins, displayed a less than merciful grasp of even due process as she set out to apparently take a position opposing an independent finding favouring David Bain's innocence, and his 'right' to compensation. M Travis was quite prophetic in 1998 in his suggestion that in a few years from that time that there will likely be judicial review to control the use of the prerogative. Well, it happened in Bain, possibly years later in my opinion than it should have, but happened nevertheless. There seems to be no known reason that Watson should not take this course, Peter Ellis or Alan Hall, apart from lack of funding. But even that may be contestable on review. For example if a case is made out that is strong enough to support review for Watson or others but funding is denied that decision to deny funding should/is be reviewable.

These approaches can be taken now, with public participation by way of open Court rather than closed Executive Council meetings.

Wednesday, September 16, 2015

Jay Kuten: In the Whaganui Chronicle on compensatiof for wrongful conviction

Wanganui Chronicle - Jay Kuten: Consider compensation for wrongful convictions

By Jay Kuten

9:58 AM Wednesday Sep 9, 2015 

LAST week, a North Carolina State Commission awarded $750,000 each as compensation to two half-brothers, Henry Lee McCollum, 51, and Leon Brown, 47, who spent three decades in prison - much of it on death row.

Both men are developmentally disabled, their IQs in the low 50s. The pair - aged 19 and 15 at the time - were convicted solely on the basis of coerced confessions they later recanted, according to the judge who freed them after DNA testing, long-resisted by authorities, proved them not guilty. After hiring a lawyer who argued that "government and law enforcement officials of Robeson County, NC, had obtained their convictions through 'fraud, perjury, coercion, the wilful failure or refusal to investigate exculpatory evidence'", the two men were awarded $750,000 each.

You may think that a generous amount, but it is less than $15,000 per year in prison. After contingent attorney's fees, each will have $500,000. Considering their lack of job skills - never mind the added burden of prison on mental deficiency - they will be lucky to retain the full amount and have roughly $25,000 a year for the expected lifespan of African-Americans like them.

Does any of that sound remotely familiar? A pattern of over-aggressive and ethically challengeable prosecutorial and/or police misconduct led to a wrongful conviction in which a person lost decades of his life and experienced the severe trauma of imprisonment for an act he did not commit.

Here in New Zealand you can fill in the names of Teina Pora, or David Bain or Peter Ellis - and, I submit, Scott Watson.

These cases raise many questions. How is it that prosecutorial misconduct is rarely if ever called to account in any legally significant manner? And, for the wrongfully convicted, how can we fairly compensate someone whose life has been so severely damaged?

How much is time in prison worth, considering not only the issue of endurance (the day-to-day limitation and degradation of prison life) but the fact of injustice?

In the David Bain case, we have seen the effort by former Minister Judith Collins to safeguard our common treasury by enacting a standard for compensation that is beyond possibility. Collins demanded that Bain prove he is innocent. While that sounds plausible, it is actually impossible. When you enter a courtroom as a defendant you are granted a presumption of innocence. It is a presumption often honoured in the breach. If the evidence against you does not warrant conviction, you are declared not guilty. That is it.

You are never declared innocent and that is in concert with the legal reality and the social one in which your neighbours are unlikely to hold you in the same esteem as before your trial.

Collins, however, insisted that Bain establish for her benefit a new reality - something that was once a presumption but which can never be demonstrated as fact.

Prison time is not subject to quantification. The rare human being - Nelson Mandela - retains his dignity and even grows in stature. Most people are reduced, if only because of the cognitive assault on their functioning.

For our human brains to function optimally, they need, in adult life, the continuing practice of making informed decisions and the challenge of coping with expectable social relationships. That disappears in the authoritarian hierarchy that is prison.

Then there's the Rip van Winkle effect - disorganisation coming out of prison to a new and frightening world. It is in our name that people have been wrongfully convicted and deprived of their fundamental freedom, their presumption of innocence.

One fair standard for compensation would consider that the worth of a year's incarceration be equivalent to the compensation of our own highest representatives in government. In other words, the amount the not guilty might have earned had they been Members of Parliament during the same time period. While our parliamentarians cannot claim innocence except as presumption, the stress of their work is hardly comparable to that of being an inmate, especially one wrongfully convicted.

Jay Kuten is an American-trained forensic psychiatrist who emigrated to New Zealand for the fly fishing. He spent 40 years comforting the afflicted and intends to spend the rest afflicting the comfortable.

Sunday, September 6, 2015

Garth McVicar attempts another takeover.

In what may be a NZ first Garth McVicar of the Sensible Sentencing Trust this week took the National Parole Board to Court. This was an attempt to overturn a decision by the Parole Board to release a convicted fraudster Rob Petricevic on Parole on Monday the 7th of September. I read about the Court action Friday afternoon and learnt that the application was for a Judicial Review of the Parole Boards (PB's) decision. That late in the day I wondered how Garth McVicar could convince the Court that he could be a party of standing in the Board's decision, or if the Act, allowed situations where a party could essentially invite themselves into an action that for all intents and purposes wasn't their direct business or something which directly affected them. I certainly couldn't recall any such legislation but it seemed unlikely that McV would take such steps if he didn't have status. A quick read showed that the Act in fact did not allow such applications but that in practice the Courts would likely 'hear' the arguments before ruling on them.

What I hadn't realised was that by the time I'd read about the application was that it had already taken place. In fact shortly after the online decision was released a little after 5 in the evening - indicating that the presiding Judge most likely saw the application as pressing. The Judgement is available on line and is most notable by what was said regarding  McV's application. The application appears to have been made on the basis that 2 or 3 (apparently unnamed) victims of the frauds of Petrievic may have been members of the Trust. Nothing definite on that, a surprise because a victim coming forward would have status at the very least above a political lobby group.

As it happens a wag on line said that the action was doomed to failure and was actually an effort by McV to take on the Parole Board. That might have been unkind but McVicar in recent years has attempted to take control of Judges by threatening to start a register against those of whose decisions he did not approve. There was even talk of 'outing' Judges and protesting at their homes in what was a fairly frightening turn in a modern society and which must have been near to resulting in charges being brought against McV and the SST. McV had actually threatened the Judiciary, telling them to give decisions of which he approved or watch out. All in all the fact that he was taking the case for Judicial Review in a legal way could have been either that he was chastised to the view that the Law was paramount or that he had convinced himself, or been convinced that he must take on the Courts head on - and that a Judicial Review of a Parole Board decision was a way to do that.

In other words McV was worried less about Petricevic than the opportunity to  take on the Courts and flex his muscles and political power? If it was that later then choosing an attempt at a remedy that was bound to fail made little sense, nevertheless it did look like round 2 of McV versus the Law. Increasingly what his argument would be was fascinating. From sound bites it soon became clear that McVicar's 'lead' counsel against the convicted fraudster was another convicted fraudster and practicing Lawyer David Garrett who at the very least was straight to the point. He argued that the Parole Board's duty and directives were to let those eligible for parole go at the first opportunity a view overlooking many Legislative requirements. This despite that the NZ Parole system is tighter than it has even been historically, and that Petricevic had been denied parole at least once earlier and only gained parole when he had been frank and honest about his offending (having earlier downplayed it, or suggested that it was the fault of others.)

So how did this go? Well apart from not having one victim in sight to support their case, Garratt argued that fraudsters were as bad or worse than those that robbed dairies. I've no idea the relevance of that, or how a Judge could decide a case on the basis of who were the worst criminals in a clearly defined application to have Petricevic kept in prison on the basis that he 'might' have been worse that a dairy robber. The submissions included the harm fraudsters did to the elderly in particular, while these were comments with merit they were beyond the scope of a Judicial Review. Petricevic had already been sentenced for his crime, served several years and the argument was as to whether or not he should be released, and whether or not McVicar had any legitimate role in that. It appears that Garratt on McVicar's behalf paid no consideration to the telling fact that the PB had earlier rejected Parole for Petricevic on the basis that he had no insight into his offending, was self important and so on - in short did their job.

The fact that Petricevic had been able to pay for an independent psychological report from which experience Petricevic claimed to have a better understanding of himself and the harm to the victims was seen as his having 'brought' a favourable view. There is no proof of that, it is unfortunate that a professional person having formed an opinion, after which the subject of the opinion, made frank disclosures which help him gain parole - was subject to such assertions.

But back to the real reason for the Judicial Review, McVicar's chance to take on the Justice system, Judges in particular along with the Parole Board. Did he not consider that first of all he would have needed status, and that secondly a general discussion as to who the worse criminals might be wasn't relevant in an application about 1 individual's parole? Nothing to show that he did. If he missed the bus on that he also missed the bus on another argument, possibly less irrelevant. At the outset in public statements McV said the well educated (as Petricevic is apparently) were also worse because they came from privileged backgrounds but still chose to offend, whereas, it was implied, those worse off may have had less choice or power or reason in any decision to offend. Good point, and another good point (but also typically irrelevant as well to the Judge had it been made) was that those inmates who couldn't afford a private report as Petricevic was able, who had no home to go to and so on were disadvantaged compared to Petricevic. Though I guess the application was not about the fairness of Parole Board applications or distinction between the rich or poor but about Garth laying down the Law as he saw it from Garthsville, Arizona.

My last tongue in cheek comment aside, McVicar, most probably inadvertently - by his failed action did advance case Law on an important aspect of Judicial Review and the Bill of Rights. Most likely, he may not realise it, but the importance of opportunity and fairness before the Law were canvassed in the Judicial Review, at least for those that can see that.

Wednesday, August 26, 2015

Justice Wylie finds reason in the modern age of information.

Information and knowledge is King, information rules - but is that the case always?

It seems at the moment information and the administration of Justice are on a collision course. Who hasn't heard calls for longer sentences across the board because of a particularly bad crime, one invariably follows the other. I started out by saying information and knowledge is King, but what if information is abused. For instance every so often there is crime committed by teenagers that attracts a lot of attention, some people see that as a random event that will happen occasionally while others will see as proof that Governments, Judges, Courts, even Juries are corrupt. As a fictional character of interest to me has said, 'it's like a disease they get.' Each event of a noteworthy crime appears to the disaffected to 'prove' once again that Judges, Courts etc are weak and corrupt and that a current Government is soft on crime, clich├ęs are rolled out and satisfaction is abroad that only particularly alert and knowing individuals understand what others don't - the crime is rife and harsher and harsher punishment is required. In reality the critics are, at least to their own minds, the only ones in New Zealand, perhaps even the world, that can see overt corruption taking place right under their noses and man do they have to tell us, again and again -  somehow forgetting that they've said it a million times before.

No doubt freer access to news and information is part of this phenomenon but more so are interactive blogs. The blogs in fact become the rally points for the same stories to be repeated over and over again at least partly, one would imagine, to drive fear. That is, unless the public listen to the chorus about weak Judges, soft Governments and so on then everyone is doomed. It's the middle ages all over again except for observers such as myself don't want to revisit the middle ages, dine on doom and gloom or desire to feel unsafe because of some perverse reasoning that all people are bad to the core, and should be locked away for ever.

In the last week there were 2 relatively unrelated events revealed about a murder case that was concluded in Auckland around 10 days ago with the conviction of a 33 year old Michael Thrift Murray. Murray was convicted of the murder of a gang member during a street brawl. His defence was that his brother was being beaten by the deceased Connor Morris who Murray hit with a scythe having claimed to have asked Morris to stop the beating. The case was well publicised and one member of the media and ex Member of Parliament Rodney Hide wrote about the loss of the defence of provocation following outrage in a much earlier case where a Lecturer argued that he was provoked into killing one of his students with whom he had been in some kind of relationship before she decided to leave for another city and better opportunities.

Rodney Hide offered how difficult it would be to not help a brother being beaten, lamented the law change that had taken away the defence of provocation observing that in the trial of Murray there would previously have been the right for Murray to lawfully say he was provoked into striking the man he claimed had been beating his much younger brother. What Hide said was wrong in not having the defence available is the result of members of the public baying for the defence of provocation to be removed because of one particular case. It's use caused outrage to the people who like to be outraged in their quest to prove Judges are weak, Juries corrupt, Laws need changing and that Governments are involved in the conspiracy. Calls for change after one trial that overlooked beaten wife syndrome, spousal abuse and so on in far many more cases than the particular trial of the University Lecturer. If any of those people that thought it was wrong for the Lecturer to claim provocation, which notably, was rejected by the trial Jury, are now confused that Murray was not able to argue defending his brother was a situation brought about by the provocation of seeing him beaten, then they're obviously unable to connect that they were part and parcel of Murray's lack of opportunity to plead his case in the way Hide suggested was possibly reasonable for a man allegedly seeing his brother being beaten by a gang.

I'm fairly sure I won't receive any correspondence from any member of the public or lobby groups who 'demanded' that the defence of provocation be removed in order to put right a prosecution in which such a defence was rejected by a jury, and where the defendant was found guilty anyway, that will explain  the apparent dilemma that follows a law working well being taken off the books. In fact, the real outrage was that Lecturer was able to project his fantasy defence which was hurtful to the family. For some, and at least Rodney Hide, it's an outrage that Murray couldn't say he was provoked by seeing by brother being beaten on the ground. So the question remains did the Law change assist anyone that might be in a situation like that of Murray in the future, or did it say that a person can only ask for his brother to stop being beaten and little more short of receiving the same treatment himself.

The second event, strikingly, relates to the same case wherein the media sought from the Court after Murray's conviction  the release of information about Murray and whether or not he had a criminal record. This is in part what Justice Wyle said in rejecting the application..

'I did however consider, under r 6.10(2)(b), that there were implications for the orderly and fair administration of justice. It has become relatively common journalistic practice to publicise, after a verdict, a record of a defendant’s criminal convictions, frequently under the heading of "what the jury didn’t know", or the like. Although I raised the issue with them, neither Ms Bremner nor Ms Gillies were able to offer any sound rationale for this type of reporting. I do not consider that publication of such information promotes the orderly and fair administration of justice. Rather it seems to me that it could potentially undermine the fair administration of justice, by inviting the public to "second guess" any verdict – particularly if the verdict were that the defendant is not guilty.'

Although it may seem of little moment that if Murray was in fact also a gang member, or perhaps, helpfully for any reporter, a man with convictions for violence, that he was nevertheless convicted - it remains that in cases where the media report with headlines such as 'what the jury didn't know' it is invariably with the purpose of inviting the public to 'second guess' a Jury's verdict. Put simply it invites the argument of saying 'if I'd known that I would have found him (or her) guilty.'

It is clearly plain to Justice Wylie that if indeed the media were hoping to make mischief with previously unrevealed facts that such mischief deliberately undermined the credibility of the Justice system by inviting a public auction on the character of an accused person, rather than scrutiny of the evidence for or against him by the a Jury who had heard the evidence in detail. But this is the age of information, un-curtailed, unmeasured, unverified passing into the hands of not only the careful minded but also those whose agenda is not to scrutinise data apart from its potential use in advancing a cause against the Justice system and its perceived weaknesses. No doubt Justice Wylie did consider the public interest as presented by the media involved in the Murray application. Had a valid argument of how the public interest was not being served been satisfied their application would not have failed. Conversely, Rodney Hide did write in the public interest for those interested in the Law, that is, whether it is fair for an accused person to have the opportunity to argue before a Jury that he or she was provoked into an act of defending another person with deadly force - something which before contemporary times and an 'modern' age of information was their lawful entitlement and a Jury's right to either accept or reject such a defence.