A Velvet Revolution

A Judicial Revolt Against the Law

Over at Kiwiblog, David Garrett has written a piece on the consistent dereliction of judges who have refused to subject themselves and their judgements to the law.  Their actions represent a velvet revolution, whereby the judiciary is claiming higher authority than Parliament and the law of the land.

The opening paragraph sets the scene:

Since  the Sentencing and Parole Reform Act came into force  in June 2010, the sentence of life in prison without possibility of parole (LWOP) for murder has been a sentence available to New Zealand judges. On 15 occasions since June 2010, LWOP was either applied for by the Crown, or was the mandated sentence under  the three strikes regime. In none of those 15 cases was LWOP actually  imposed. In short, the judges have simply refused to impose a sentence which  was intended by parliament in the majority of those cases to be virtually mandatory. . . 

 We encourage everyone to read the whole piece.  Then, we encourage you to get angry at the effrontery of judges illicitly evading the law.

Will NZ's Three Strikes Law Remain A Mere A Suggestion?

Will The Courts Follow The Law?

New Zealand has a Three Strikes law.  If an offender continues to commit serious crimes he or she will ultimately be sentenced to Life Without Parole.  Our version of the Three Strikes Law is manifestly better than many of similar construction and intent.  Yet it is opposed by the soft-on-crime present government, which believes that a few hugs and kisses, together with job opportunities, will bring a halt to serious criminal offending in New Zealand.  

Things have gradually progressed along the Three Strikes process.  Here is the case of a an offender who is on his "third strike".

Dylyn Davis is a violent thug with a long history of violence, including two “strike” offences. He has now pleaded guilty to his third strike – the brutal murder of a young woman whose only crime was to tell a friend she was frightened of him. He now faces the sentence of Life Without Parole (LWOP) under the three strikes regime. Whether he gets what he richly deserves depends on the intestinal fortitude of the Judge who will sentence him.  [Sensible Sentencing Trust, Scoop]

The Sensible Sentencing Trust [SST] puts its finger on one of the weaknesses of the present NZ Three Strikes Law.

How Smart We Are

Beware People in Black Robes

The aged care industry in New Zealand had laboured under government price controls for many years.  Our "socialism without doctrines" has led us down the track of the government funding rest home care for the elderly.  Once upon a time it was incumbent upon each family to ensure reasonable care could be afforded for aging parents and grandparents.  But gradually the state has subsidised and paid more and more of the care of the elderly.  Smug New Zealanders patted themselves on the back and said to one another, "What a wonderful system we have here in 'godz own'."  

Baby boomers are now entering the demographic cohort of the "aged".  Large numbers are needing care.  There is a burgeoning aged care industry, with large corporates building swanky retirement and rest-care facilities.  But the industry has been effectively price controlled.  The presence of a state subsidy for rest home care functions as a price control in the market.  Therefore, the market is inefficient.  Price signals are grossly distorted.

Recently the government was (indirectly) hit with a court case.  A rest-home carer took her employer (and implicitly, the state) to court on the grounds of pay equity.

A Law Unto Herself

New Maths Calculus and Justice Cunningham

The New Zealand Mongrel Mob and Hells Angels and all the other members of the Criminal Gangs Association (CGA) have, through their national association, petitioned the Solicitor General to ensure that all gang cases be heard before Judge Philippa Cunningham.  

Cunningham is the most motherly District Court Judge.  She carefully weighs, on a set of scales unique to her, the true costs of any sentence she may hand down.  For example, if a prominent well-known member of society commits fraud, theft, or sexual assault, Justice Cunningham is likely to discharge without conviction on the grounds that the mere publication of the famous name would be a price too high to pay, for, say sexually assaulting a four year old daughter.  In this infamous case, the accused was a minor-celeb, and he made people laugh.  It was too much, according to Justice Cunningham, to have society deprived of his wholesome wit.

The CGA reasons that its petition will advance the cause of all gang members.  When trying gang members, Justice Cunningham is more than likely to consider the deprivation and humiliation and suffering already endured by your average member.  At worst, Cunningham is likely to dish out a token punishment only, like home detention, unless engaged in gang business.

An example of her enlightened judicial calculus is contained in the following article:

What Are the Authorities Refusing to Tell Us?

Is Cowardice The Problem?

In this country, as in all countries we suppose, horrible murders have been committed.  One of the most horrible in recent times has been the wilful murder of a three year old boy, Moko.  It was a murder perpetrated by his two "care-givers".  

Inexplicably it seems, the Crown allowed the accused to plea bargain down to a conviction of manslaughter.  

David Garrett, former politician and lawyer, has written a guest post in Kiwiblog, which we reproduce here.  Whilst it is slightly longer than a normal post, we believe the matters and arguments are of serious weight.

Abel's blood cried out to God from the ground.  We hear the cry of Moko's blood.  There are many people around the world who think that New Zealand is a paradise.  This euphoric view is largely based upon the natural beauty of the landscape--which is the work of God, not of man.  Man's work can be of another kind entirely--and in the case of Moko, it most certainly is.

Failing the "Smell" Test

Both Inexplicable and Noisome

A copy of a guest post published at Kiwiblog.

Why were Moko’s killers’ charges reduced to manslaughter?

A guest post by David Garrett:

 Why were Moko’s killers’ charges reduced to manslaughter?

It is now almost a month since it became publicly known that the people who stomped and bashed and strangled little Moko Rangitoheriri to death over a two week period had had their murder charges reduced to manslaughter, to which they no doubt very gratefully pleaded guilty. Despite commendable media scrutiny, the public are still none the wiser as to  how this seemingly inexplicable decision came to be made.

And inexplicable it is, to a number of senior  criminal defence barristers I have consulted. The statement of facts has now been leaked. I am told it is a dreadful tale of lengthy abuse and multiple life threatening injuries, any one of which could have caused Moko’s death.  There is absolutely no doubt that all  of those injuries were inflicted by Tania Shailer and/or her boyfriend David Haerewa. Unlike the Kahui twins’ debacle, no-one else is in the frame.

One early story quoted “a family member” having been told by the Crown Solicitor in charge of the prosecution that because Moko did not die immediately, but later in hospital, a murder charge could not be pursued.

A Worthy Private Initiative

Bad Smells

A private foundation is being set up to investigate and review criminal convictions which are "unsafe"--that is, potentially unsound.  Usually, such convictions have been upheld in successive courts of appeal or higher courts.  But the smell remains.  Something is not right.

Unfortunately these things happen.  We believe, however, that in the NZ justice system there could well be an institutional bias towards upholding convictions.  The NZ legal fraternity is small.  The possibilities of "group think" in New Zealand where most of the participants all went to the same few schools are high. Magistrates and justices often know each other; they have often served  as colleagues in one capacity or another.  To overturn the decisions of one court may mean that tomorrow the same judge or judges will be sitting in judgement upon moi.  To overtune a case with consequent embarrassment to a judge or magistrate may have consequences for one's career advancement.  After all, promotion depends upon the approbation of colleagues.  Easier to go along with the status quo.

The system's status-quo has resolutely refused a review system which is reasonably independent and beyond the courts or the Ministry of Justice--despite high profile precedents in the UK, the US and other countries.  Now, the New Zealand Public Interest Project has been set up.  We believe this is a sound move.  Jarrod Gilbert explains the background.

Rankings and Credibility

Buffoons To the Right and to the Left of Us

In New Zealand we have been entertained for several years by a particular gaggle of buffoons.  It has been an outstanding comedy.  At the centre has been Kim Dotcom, a merry crim with lots of money, who has made an art form out of teasing, flirting, enticing, and seducing politicians of the ideological left, right, and centre. 

Caught up amidst the brouhaha has been one John Banks, ACT parliamentarian who was convicted of a conspiracy to conceal a donation from Dotcom which should have been declared.  The Court of Appeal has overturned that conviction and Banks is awaiting a new trial.  New evidence has come to light which appears to corroborate Mr Banks's testimony.

The original conviction was courtesy of High Court Justice, Edwin Wylie who declared in the original trial that he found "Dotcom was a good witness".  (The trial was by judge, and not by jury).

It seems as though the Justice Edwin Wylie deserves to share the butt of ribaldry, being well joined in with the gaggle of buffoons which have intersected with Dotcom.

The following is from a site which rates NZ judges and according to its ranking of justices in the  2014 Judge Survey Score (1-10), Justice Wylie scored a 6.7 out of 10, which ranked him at 59th out of 62. The narrative reads:

Justice Wylie is less than an imposing presence on the bench.  He generally comes across as feeble and indecisive, commonly asking appearing counsel whether they agree with his conclusions and then changing his conclusions radically if one side – particularly the Crown – suggest (sic) he missed the point.  As with most judges in New Zealand, Wylie J can be fair if there is no personal reason not to be.  He is an average lawyer who has successfully fought above his weight but, because he commonly is riddled with self-doubt and is cursed with an overwhelming compulsion to please his audience, he is the butt of many jokes by the lawyers who appear before him.

Ouch.