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Access Denied

June 28, 2008

Judge Patrick Treston has refused to allow the media access to video evidence in the assault case against police officers at Whakatane. He reportedly said the media coverage would probably be unfair and would “prejudice” the officers, who had been acquitted. Perhaps he was referring to ongoing employment issues and an Independent Police Conduct Authority investigation.

I haven’t seen his full decision yet, but it sounds wrong to me, and I hope he’ll be overturned on appeal. I think we can rely on Justice Lowell Goddard, the judge heading the IPCA, and the police brass, not to be prejudiced by any media coverage. As to whether that coverage will unfair, I’m not sure the judge properly bore in mind the comments of Supreme Court Justice Andrew Tipping in Rogers v TVNZ from last year. The Supreme Court was called on to decide whether a video (ruled inadmissible in that case) should be released to the media, and were presented with the argument that the use of the video would probably be unbalanced. Justice Tipping said:

Concerns were also expressed that TVNZ might wish to present the video or selected aspects of it in a “sensationalist” rather than a dispassionate and balanced way. That argument invites the Court both to speculate and to enter into the murky waters of presentational censorship and editorial control. I would decline the invitation. The videotape should either be made available to TVNZ or it should not. Matters of presentational and editorial judgment should be left where they belong. If it transpires that there are concerns about how the videotape has been used, they can be addressed by recognised causes of action or by reference to the Broadcasting Standards Authority.

Still, there is some authority that once a video has been shown in court, that’s enough “open justice” and the courts don’t need to give a copy to the media. I think this case demonstrates why that approach is short-sighted.

Topics: Court records, Suppression orders | Comments Off on Access Denied

Book Review: Thomas’s muscular take on the project of judging

June 27, 2008

“The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles”

By Justice E.W. Thomas

Cambridge University Press

Don’t be put off by the scholarly title. For anyone with an interest in judging, this is a readable and provocative critique of the way many judges go about their job. Justice Ted Thomas’s views about his craft are forthright, colourful, and often scathing. Here’s a typically acerbic example: “It is remarkable that, even today, judicial opinions that are in substance contrary to plain common sense, and even absurd, will be honoured as being ‘legally sound’”.

These views – and their muscular style – will come as no surprise to those familiar with Thomas’s tenure as a judge of New Zealand’s High Court and then Court of Appeal (he retired in 2001 and has occasionally sat on our newly minted Supreme Court). He was by far the most frequent dissenter on a Court of Appeal he describes as “notably conservative”, and his dissents were marked by differences of approach as well as outcome. Thomas scoffed at narrow, technical arguments, focusing instead on the ends of justice and the needs of modern society. For Thomas, the law is a tool to be wielded to serve society, and not simply a factory that churns out neat legal answers according to its own internal mechanics.

Thomas set out his judicial methodology in a series of articles while he was still a judge. This book assembles and refines his arguments, presenting a manifesto for judges around the common law world. At its heart is an attack on a judicial methodology known as “formalism”, which Thomas describes as a tendency to “regard the law as a system of self-contained, internally rational and predictable rules” which provide correct and predictable answers to legal issues.

Most of us probably picture the law like this, seeing it as a reservoir of rules sourced from statutes and cases of yore, dipped into by judges seeking solutions to legal issues. We figure that the law is vast and seamless and coherent and neutral, and yields objectively correct answers to those with legal training. Thomas says judges know this is a “fairy tale.” In reality, the law is “all too often hopelessly vague, needlessly complex, duly burdened with layers of distinctions, and self-evidently in irretrievable disarray.”

Judges, then, are faced with a myriad of choices: Is this fact proved? Is that fact significant? Which earlier cases are relevant? What’s the meaning of this phrase? How should the issue be cast? What’s the underlying principle? How should it apply in this case?

The answers to those questions are seldom dictated by the existing law, says Thomas. The upshot: judges themselves make law, and they do it all the time. And yet, part of the ethos of judging is to deny this, and pretend that the outcomes reside in the law itself. Saying they are driven to particular outcomes by “the law” gives judges “comfortable immunity from responsibility,” says Thomas. It means they are dishonest about the real reasons for the choices they make. Or it means they make bad choices, hog-tied by cases from an older age that have lost their relevance to modern society. “It is better, it seems, to belong to the priesthood and conform to its rituals than to carry the cross for justice and modernity in the law,” he writes.

This sort of religious imagery pervades his critique: Thomas rails against the “piety of precedent” and the “idolatry of certainty”. He thinks judges who are obsessed with rules and precedents and right answers are worshipping a false God, preaching the “rigid Gospel” of formalism. Thomas paints an unflattering picture of formalist judges “venerating certainty”, shrinking from the big picture, happily fitting facts to rules and hoping for justice but washing their hands of responsibility if the outcomes prove harsh. He calls this reasoning, in various contexts, “hide-bound”, “insensitive”, “dishonest”, “self-satisfied”, “blind”, “ill-considered and ill-informed”, “simplistic and false”, “mean-spirited”, “inexcusable” and “silly”. He has written this book to stamp it out.

Thomas is certainly not alone in his criticism of formalism, and he draws on the views of other judges and theorists to make his case. Although he modestly disclaims any pretence of “undue scholarship”, Thomas examines and critiques the main schools of jurisprudential thought, attacking positivism and natural law theory, which tend to present the law as a set of rules, and drawing support from the realist movement, which depicts law as a product of what judges do.

Still, many of Thomas’s pronouncements are guaranteed to send shudders down the spine of those who fret about judicial activism and its effects on the certainty of the law:

Thomas’s critics believe that his approach will (as Thomas puts it) turn the law into a “formless, amorphous, inchoate, hideous, idiosyncratic pottage of half-baked ideas of no value to anyone seeking to order their affairs in accordance with the law or looking for the law to provide stability in an ever-changing world.” Thomas spends much of the book arguing that the fears about untrammelled judicial law-making are misconceived. Judges may not be elected, but this provides the guarantee of independence that is their great strength, he argues. They are accountable through their reasoned decisions and the appeal process. They need to reform the law occasionally – because Parliament frequently ducks that responsibility. They are constrained by a range of factors including the boundaries of “legitimate judicial reasoning”, the incremental, collegial nature of the law-generating process, and the community’s sense of values. Judges can still be guided by past cases – just not wedded to them.

In perhaps the most controversial part of his methodology, Thomas insists that the “just” result is usually readily discernable when a case comes to court, and that judges have an ability to understand the needs and expectations of the community, even though they tend to come from privileged, conventional, educated, white backgrounds. “Values generally, such as a conception of justice in a particular case, tend to be indifferent to different backgrounds, education, and social and economic standing,” he asserts. For Thomas, a judge’s job is to ensure that the law is developed and updated to reflect the community’s expectations of justice and modernity, and other values that the judge perceives as “enlightened”, and in particular, to protect the vulnerable from exploitation by those “unfairly taking or obtaining an advantage at another’s expense.”

Despite the constraints on judges Thomas details, I can’t help but wonder whether concepts like “justice”, “community expectations”, “fairness”, “exploitation”, and “enlightened values” ultimately sit rather more in the eye of the beholder than Thomas would have it. For my part, I found Thomas’s critique of formalism – and his call for more transparency and less game-playing with precedents – compelling, but his solution is problematic. What if some of the constraints on judges Thomas applauds are rooted in the formalistic attitude he loathes? But this debate is an important one, and much the richer for Thomas’s thoughtful book.

Topics: General | Comments Off on Book Review: Thomas’s muscular take on the project of judging

Dopey complaints

June 24, 2008

Pity the Advertising Standards Complaints Board. Get a load of these complaints, all from its latest summary of decisions:

Topics: Advertising Standards | Comments Off on Dopey complaints

Electoral Finance Act lawsuit tanks

June 24, 2008

Was the Crown Law Office vet that found that the Electoral Finance Bill wasn’t inconsistent with the Bill of Rights Act wrong? Should the Attorney-General have reported to Parliament that the bill was inconsistent with our rights to freedom of expression? Is the Electoral Finance Act itself inconsistent with the Bill of Rights Act?

John Boscawen et al say yes. They’ve taken these issues to the High Court. But they faced a big hurdle. Would the courts even be prepared to rule on them?

The answer is no. On the first two questions – getting the courts to second guess the Attorney-General’s advice to Parliament – this should come as no surprise. The courts don’t like to trespass on Parliamentary Privilege territory.

But on the third – the issue of the consistency of the EFA itself with the Bill of Rights – I was surprised to see the High Court summarily strike out the claim. Clifford J said the Declaratory Judgments Act can’t be used to address moot points because there’s no live underlying dispute between the parties. The situation might be different, he said, if the applicants “sought declarations of inconsistency through NZBORA itself”.

The question of whether the courts might be prepared to issue a declaration or “judicial indication” that a particular statute is inconsistent with the Bill of Rights Act has been much discussed by academics (and occasionally by judges). To strike it out here, with little reasoning, on what looks like a rather technical ground, seems wrong to me.

Perhaps there will be an appeal.

Topics: Electoral speech, NZ Bill of Rights Act | Comments Off on Electoral Finance Act lawsuit tanks

Suppression unsuppressed

June 21, 2008

Just how much suppressing are the courts doing? In the past it’s been hard to tell, because statistics have been pretty patchy. But in an admirably prompt response to my request for some statistical information, the Ministry of Justice compiled some data for me from their records.

Name suppression is the perennial hot issue. Is permanent name suppression given out like lollies? In short: no. Out of about 150,000 criminal cases each year, there are about 730 final name suppressions in the District Court and about 35 in the High Court. There are about three times as many interim name suppression orders (five times as many in the High Court), but these are less significant since the media can eventually report them.

The numbers have been fairly constant over the past five years during which these statistics have been recorded.

In general, this doesn’t include the suppression that arises by operation of the law (for child witnesses and victims of sex offences, for example) though it’s possible that sometimes a judge will make a formal order to underscore the importance of the suppression. In addition, final orders may be made after interim ones expire, so there’s some effective double-counting there. Consequently, there probably aren’t as many different discretionary name suppressions as the above figures suggest.

Another caveat: it’s not clear that these records pick up all the suppression orders made. It seems likely that most of them are captured, though.

It’s not always (or not only) names that get suppressed. Sometimes facts (such as past convictions or contested evidence) can be suppressed, too. The courts have a discretion to suppress evidence or submissions. How often is that exercised?  Not too often. About 440 times a year, overwhelmingly in the District Court. Only about a 100 of these each year are permanent.

The Ministry even managed to dig up some stats about civil cases. Name suppression has been ordered in 23 DC cases and 87 HC cases in the past 5 years. There’s no break-down of interim and permanent orders, and no explanation of the circumstances of such orders, so they’re a bit difficult to analyse. The stats also list all of two cases in which facts have been suppressed in the last five years.

I’m a bit sceptical about the civil figures, since they don’t include the one case that I know about – the suppression orders relating to various factual matters (as well as the plaintiff’s name) in the High Court litigation over Anne Hunt’s book. Still, it does suggest that such orders are probably pretty rare, which is some comfort.

Topics: Name suppression, Suppression orders | Comments Off on Suppression unsuppressed

Desperately seeking relief

June 19, 2008

Readers will know I’m a generally fan of free speech. But I would support a ban on the use, by all politicians in every election year, of the word “desperate”.

Topics: General, Media ethics | Comments Off on Desperately seeking relief

Feeling sorry for Vince?

June 17, 2008

Poor Vincent Siemer. Facing a limitless stretch in the slammer for … what? A couple of websites? Oath.

I’m afraid I find it difficult to get too worked up about Vince’s plight. He’d like to pitch his troubles as a freedom of expression battle against a corrupt businessman (his nemesis, Michael Stiassny), and corrupt lawyers (including his own), and corrupt judges (pretty much anyone who’s ruled against him, in a couple of dozen court hearings). But what it’s really about is his ongoing and flagrant refusal to comply with court orders.

He’s already been held in contempt in two cases (the second upheld by the Court of Appeal). He had been injuncted from publishing particular material about Stiassny, and had continued to do so. His websites are here and here, and it seems here, and he’s got a book out that you can buy here. I’ve ordered my copy, before it gets banned. Will it breach the court order not to:

Publish in any form any information containing allegations of criminal or unethical conduct or as to improper personal enrichment on the part of the plaintiffs in relation to their conduct of the receivership of Paragon Oil Systems Ltd; any claim that the plaintiffs deliberately overcharged Paragon Oil Systems Ltd in the sum of $10,000; together with information as to the fact of  complaints made by Mr Siemer and/or Paragon Oil Systems Ltd to ICANZ or to the Serious Fraud Office; and including any information obtained by Mr Siemer or Paragon Oil Systems Ltd in the course of discovery in any proceedings pending further order of the Court…

This injunction is fairly narrowly tailored. The original injunction – by Winkelmann J – prevented Siemer from publishing anything at all on his website relating to Stiassny. That’s really too broad to ever be justified. It was narrowed by Ellen France J about a month later. Note that the injunction is an interim one. It’s in place pending the final determination of the defamation case. If Siemer can prove that his allegations are true, he will be able to reinstate the banned content. The courts generally do not grant this sort of injunction in defamation cases. They only did so here because two High Court judges were convinced that there was no basis for Siemer’s allegations:

Justice France: Having assessed the evidence, I conclude this is one of those exceptional cases where the Court can say that there is no reasonable possibility of a defence of truth succeeding in relation to any allegations of criminal or unethical conduct or as to improper personal enrichment.

[UPDATE: I’d missed this point, but the Court of Appeal preferred to base the injunction on an agreement struck between Siemer and Stiassny not to publicly diss each other, rather than on defamation.]

Siemer continued to publish such allegations. He was fined after the first contempt and sentenced to 6 weeks in jail after the second one.

He objects that he was tried “in absentia” – he was overseas at the time of the second trial.  Which might be outrageous, except for the fact that he’d known about the hearing date, hadn’t filed any documents, hadn’t engaged legal counsel, and had simply emailed the court to say he wouldn’t be making it. They said he needed to formally apply for a different date. He didn’t.

It should probably also be noted that the evidence against him at this hearing included an email confession:

Gentlemen, Now that the Court of Appeal has ignored the evidence that your injunction was improperly obtained, I hope you don’t mind that I ignore the injunction.

His websites still contain some of the same content identified by the court as being in contempt. Six weeks in jail didn’t work. What’s a Solicitor-General to do? Putting him in jail until he agrees to comply with the court order is an end-of-tether penalty. But it doesn’t seem unreasonable to me.

Topics: Contempt of Court, Defamation, Injunctions, Internet issues | Comments Off on Feeling sorry for Vince?

Hello?

June 10, 2008

Is that the courts’ decisions of public interest department? [Note: I originally unfairly said that the Ministry of Justice ran this. But it’s the judges who run this website and decide what gets posted].

Don’t you think Justice Miller’s decision on abortion law might qualify?

A media release explaining its essence might be helpful, too. Really, you’ve only got yourselves to blame if your decisions get badly explained by a rushed media and lobby groups whose job is to highlight what suits them rather than provide balance and context.

And while you’re at it, how about sticking up the High Court’s rulings on the Electoral Finance Act cases? And Justice Miller’s decision on Valerie Morse and Mark Rawnsley’s offensive behaviour protest case? The judgment of Justice Keane disagreeing with Justice Fogarty on cameras in court?

The public ought to be able to see the decisions themselves rather than have to rely on the media coverage of them.

[Update: you can find some of them, including the abortion decision, here. Thanks to the Ministry of Justice, actually.]

Topics: General | Comments Off on Hello?

No Sentence or Sensibility

June 5, 2008

I’m not sure the implications of this extraordinary Dominion Post story have been explored quite enough:

The practice of offering rewards in murder cases is under review after the defence in the Foreman trial used the proposed payout to undermine the Crown’s star witness.

The Sensible Sentencing Trust was set to pay $50,000 to Donna Kingi if Murray Foreman was convicted of the murder of Hawke’s Bay farmer Jack Nicholas, but Mr Foreman’s lawyer, Bruce Squire, QC, said Ms Kingi was motivated only by money and discredited her evidence.

Mr Foreman was acquitted on Wednesday, and trust spokesman Garth McVicar said it was unlikely rewards for information leading to conviction would be offered in future.

Memo to Garth: good plan. Quite apart from handing the defence the witness’s head on a platter, the reward is probably a contempt of court. It creates a real risk of influencing the evidence of a witness. Fair to say, many witnesses might manage a surprising clarity of recall of incriminating evidence if fifty grand is riding on the outcome.

The Sensible Sentencing Trust: committing crimes so the criminals can get away with them.

(I know, I know… that last sentence is cute, but I need to note that I didn’t follow the Foreman trial closely enough to have any idea of whether it’s fair to say that he got away with murder). 

Topics: Contempt of Court | Comments Off on No Sentence or Sensibility

Judicial Smackdown II: The Empire Strikes Back

May 31, 2008

Well, one judge does anyway.

You’ll remember that Justice Fogarty controversially ruled that some of the the guidelines for cameras in court were illegal (I discussed the ruling here). Another High Court judge, Keane J, has disagreed. In R v Crutchley, he said that the guidelines are “entirely compatible with a trial judge’s duty to secure that justice is done.” He notes that they are merely guidelines. He doesn’t think that the filming of an accused person in the dock is akin to pillory. He says that a degree of humiliation is part and parcel of the trial process, and is not enough to exclude the public from the courtroom, including the amplification that cameras provide.

I think he’s right.

Topics: Cameras in Court, General | Comments Off on Judicial Smackdown II: The Empire Strikes Back


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