The need to respect due process in New Zealand courts


In the nearly one week that has passed since the murder of Grace Millane, there has been an understandably big out pouring of grief. Her murder shocked people.

Understandably there are a lot of people angry about the murder of Grace Millane. People want Grace’s alleged murderer brought to justice and everyone has their own opinion – which they are perfectly entitled to – about what fate Ms Millane’s murderer, whoever it might be, should suffer.

BUT many of these people also want his name suppression wiped. Many of them think that the judge made a bad mistake. I have reservations myself, but they are countered by the fact that the accused has as much a right to a fair trial as the victim has to justice. So people are now resorting to Google searches to find out his name. 50,000 New Zealanders have done it.

These potentially violate New Zealand criminal law. They potentially threaten to derail the trial before it even starts. But I wonder how many of these people doing this will accept that and desist.

Except that it is not just New Zealanders doing it. Google is accused of having aided the violations by allowing the prominent placing of articles in its search engine hits telling us who *allegedly* did it. So too are British newspapers including The Daily Mail.

There are people calling for the death penalty – separate subject – as if the accused has already been convicted, when in actual fact a plea has yet to be entered and will not be until 23 January 2019 at the earliest. On this day the accused will reappear before the court. They seem to forget that a trial has yet to be set down, much less held. We do not know if the alleged murder is even the alleged murder. Right now he is – for all we know – innocent.

Being Judge, Jury and Executioner before a plea has even been entered is premature, prejudicial and along with the violations of the suppression orders, potentially threatens the whole trial. One cannot have justice for the victim if the trial is aborted due to interference or the absence of the conditions necessary for it to be fair and impartial.

I want to see justice for Ms Millane and her family and best friends whose lives at the moment I imagine have been turned up side down and there is no way to undo it. However this does not come at the expense of needing to follow “due process”, a term whose use when I write it in a comment has caused much anger and negativity. Due process is the act of carrying out the necessary procedures to ensure a fair and impartial trial that is not hijacked by individuals or interests in the name of vigilante justice.

So, my message is simple as it is blunt. Hold your horses and put away the knives. You do not know yet who did it and I bet you would not want to be found to have judged an innocent man otherwise.

People jumping to conclusions on Grace Millane – Give due process a chance


On 01 December 2018 a 22 year old English tourist named Grace Millane disappeared in Auckland. For a few days hope was held that Miss Millane might be found alive and that she had simply got lost or gone walkabout. These hopes were dashed on 07 December when the New Zealand Police announced that they were looking for a person of interest. Several hours later, they announced that this person was under arrest. Then yesterday, the worst fears were confirmed: the case had been upgraded to a homicide inquiry and the suspect was charged with her murder.

Right from the start on social media, especially on Facebook people hoped and prayed for her safe return which is completely understandable. When it was announced that the suspect had been charged with murder, the hopes and prayers not surprisingly turned to anger. People have every right to be horrified and angry that it happened in New Zealand, a country thought to be safe for people to visit. They have every right to want want justice for Grace Millane.

But the number of people who are trying to be the judge, the jury and the executioner before the accused is even brought to court is quite serious. The number of people who think the accused is guilty before any plea has been entered tells me that many don’t care about due process and I wonder if they even know what it is?

I have been criticized by many on Facebook for insisting on due process, but I make no apologies. I want justice done, but it is not going to be done by social media. It needs to happen under a court of law before a judge and – if this goes to trial – a jury.

So, let us look at what sections of the relevant legislation deal with due process in a legal setting.

A person detained or arrested by the Police or other arresting authority has rights under Sections 23-25 of the New Zealand Bill of Rights Act, 1990. Section 23 rights deal with the period immediately after being arrested. Section 24 deals with those who have been charged with an offence – this is where I think the Police are probably at with the suspect in the case of Miss Millane. Section 25 deals with the rights of someone being sent to trial.

As for the victim of a crime, their rights are set down in the Victims Code. The victims code is covered under the Victims Rights Act 2002. I assume that New Zealand Police are applying this to Miss Millane’s family who must be going through the most harrowing moments of their lives at the moment, sick to death at the thought that their daughter is gone.

But due process exists for good reasons and are a mark of a functional justice system in any first world country. That includes New Zealand.

So, let us put this suspect to trial. Let us find out what happened, whether he had accomplices who assisted and whether any evidence has been destroyed in an attempt to pervert justice. Let us find out about Miss Millane’s final hours, and why – just assuming for a moment it was him – he was driven to murder a tourist on holiday in New Zealand.

But above all, let us give due process a chance to run its course, because if it turns out there were other people involved, then the blame is not totally on the accused. If there were other significant circumstances involved we need to know about them. Let us do this properly so that two things happen:

  1. The perpetrator or perpetrators are tried, sentenced appropriately
  2. Miss Millane’s family get the justice that they totally deserve

Neither can happen if due process is not followed.

Time for an overhaul of New Zealand’s judiciary


I am – and I am sure many New Zealand readers are too – becoming aware of a growing frustration with the New Zealand court system and the sentences it hands down. It is something that has been growing in the last few years despite having a centre right Government that one thought might have hardened up on criminals. It is something growing despite an overwhelming referendum result in 1999 demanding tighter penalties.

Barely a month seems to go by without some new wrong happening. It might be a discharge without conviction for someone who admitted a crime. It might be another car chase gone wrong because the penalty for fleeing the cops is not high enough to make people think twice.

Over a period of years I have noticed something consistent with each complaint: the sentence handed down is too weak to do its job. The victim is left feeling like their rights and well being are less important to the judicial system than those of the perpetrator.

In the last two years several notable cases have come to light which highlight these concerns:

  1. A man with 47 child pornography charges is discharged without conviction
  2. A man with 12 drunk driving charges and 4 deaths to his name is not jailed
  3. Police chase ends in death – threat of instant jail for a short period would deter many
  4. A judge discharges without conviction a man despite him assaulting his partner, daughter and a man he believed his partner was romantically involved with

In trying to address how to fix these problems one has to keep an open mind about the potential causes. It is possible that the Sentencing Act has been so badly undermined that the Act no longer works. If that is the case then the Act needs to be overhauled or completely replaced. Certainly many sentences prescribed under the Act do not seem to be fit for purpose in a 21st Century society.

I personally think the range of sentences available needs to be overhauled. But I am aware that if that happens, so must the ability and willingness of the judges to hand them down. And here is where the strongest evidence of a major problem lies. More on that later.

Another possibility is that the training of judges has become too limp. I have no idea what is involved in the training of a judge in terms dispensing sentences, but there must surely be guidelines as to how to treat various types of sentencing scenarios, e.g for someone who committed aggravated robbery causing injury.

Whatever the case, I get the distinct feeling that much of the crime being committed is simply happening because the sentencing done by judges, irrespective of the actual regime they work under, amounts to wet bus tickets. The guilty person or people simply laugh it off, do their sentence and go on with the criminal activity as if no charges were ever brought against their name. This was backed by evidence in 2016 that many burglars caught do not get jail time and not one has been sentenced to the maximum 10 years or 14 years for aggravated burglary.

Minister of Justice Andrew Little has a difficult task ahead of him. His promise to overhaul how justice is dealt in New Zealand is laudable, especially if it reduces our incarceration rates. However this would need to address the widely held views that New Zealand judges are simply too lenient and limp wristed. Mr Little will need to work with both those who deal with prisoners and those who deal with victims in equal measure.

 

Prohibitive road toll demands decisive action


This afternoon on their Facebook Page, New Zealand Police made an unusually blunt and direct statement.

Listen up New Zealand. 

We’re losing far too many people on our roads. 12 in the past week, 336 this year.

Road safety is everybody’s responsibility and your behaviour behind the wheel could change a family forever. Could you live with that?

I am sure the Police were probably quietly itching to put up a much stronger worded statement than that. Maybe a pic or two to jolt people. I would not have blamed them.

The causes of death for these twelve people over the last week will range. Some died from careless driving. Others died from alcohol related incidents. Others died in accidents where too much speed was involved. The results were the same. Several families torn apart. Friends and family wondering how it all came to this.

Cleaning up the remains of human beings from accident sites must be a horrendous job. No ambulance crew, police officer or firefighter looks forward to such events. And each day where they have had such an experience they must surely go home wondering who the people whose lives they literally picked off the road were.

Gavin Hawthorn is a man you do not want to meet on New Zealand roads. But when a man who is on his eleventh (11th) driving charge and has ended the lives of four people across his prior convictions appears in court for his twelfth (12th), clearly not able or willing to learn from his mistakes, there is a responsibility to remove the ability of such people to drive. But not only is there a responsibility to remove their ability to drive, there is also a responsibility to remove their ability to be a threat to the public, which this man clearly is.

It is also time to address our problem with Police chases. Far too many are ending badly. And I think that the problem has a very simple answer. People think that if they can get away from the cops, they will be fine, and so they try to take off inducing a chase. But when the chase comes to an abrupt end in someones fence, crashed or simply caught the Police are going to have much less sympathy for one than if they had simply pulled over when the blue and red lights were flashed. So too will the public, especially if it endangers people or causes a crash or other adverse outcomes that would have been completely avoided had the driver stopped when signalled.

Unfortunately the courts seem to be entirely out of sync with the public, with the Police who bring cases to the courts and prosecute, with society in general. Too much political correctness is coming into decisions. Too often the judge is siding with defendants because they don’t want their careers jeopardized or the “darling little Jimmy (or Jane)” does not normally behave like this.

I don’t honestly care what darling little Jimmy’s behaviour is like. He committed an offence, he can pay the price just like you or I would have had we been in that position. I do not care if someone’s career is going to be jeopardized when they got behind the wheel pissed because when they started drinking, fully sober, they would have known full well then that if they are driving they should not be drunk.

Cut the crap. If judges are not prepared to use the full range of sentences they can hand down appropriately, maybe it is time to consider a career change.

Three strikes law on its third strike


Minister of Justice Andrew Little has announced his intention to scrap the notorious “Three Strikes” legislation in New Zealand that was introduced by the previous National-led Government. The law change, which is intended to address the soaring rate of incarceration in New Zealand, has been met with a guarded response with some wondering what would replace it; others bemoaning its impending demise; still more quietly welcoming it.

And almost immediately, the National Party announced that it would immediately reinstate any such laws, immediately showing a classic case of reactionary politics, whilst failing to supply an adequate explanation.

I personally support the repeal. When I first heard about it just before the 2008 election, I thought such sentencing power would make prisoners think twice for committing their offences. A decade later and I have swung 180º and concluded that it needs to go.

For example let us suppose a person was involved in a car jacking and then an armed robbery, within a short space of time. Several years later during which time no other criminal activity happens Person A is caught breaking into a car. Because of his prior offences Person A is immediately sentenced to 25 years jail. Such a case happened one time a couple of decades ago in Washington State, where

Whilst on the count of two violent crimes and a lesser crime Person A should have already gone to jail, sending Person A to jail for 25 years using the third crime as a trigger is disproportionately severe. Why? Because thousands of cars are stolen every year and many of the perpetrators are not caught. But also a relatively minor crime does not justify occupying a prison cell for 25 years – save that for a murderer, or some other serious offender. Reparation to the victim, plus paying for any damage repairs and a month in home detention should be adequate.

At the other end of the scale, one might argue that due to a well noted inability and/or unwillingness of the judges of New Zealand to send criminals to jail and having a Parole Board that often makes incorrect decisions, does not assist the course of justice. New Zealand judges are notorious for making weak judgements in cases where either a top of the range fine and/or a lengthy spell in prison was the expectation of the New Zealand public when they examine the case.

There are good reasons to replace the Three Strikes law in New Zealand.

  1. The evidence from overseas is that it does not work – assaults in some places have increased because prisoners doing mandatory life prison time for serious offences know they are going to be in jail for the rest of their lives, so what do they have to lose from attacking a police officer or prison warden?
  2. The judge is supposed to be the one exercising discretion in the court house – how is making them hand down a mandatory life sentence for a third serious offence when reasonable law might justify only 10 years jail?
  3. Why are we copying the United States? Since when did American criminal law work effectively in New Zealand – Three Strikes is a quintessential American law. What is so hard about New Zealand law written by and for New Zealanders?
  4. The cost! We cannot afford a multi-billion dollar mega prison when the way the law is currently structured the rate of jailing is at an all time high.

So, I welcome Mr Little’s announcement. However I think I fit in best with the group of New Zealanders wondering what would replace it. Simply repealing it because it is an A.C.T. Party piece of legislation  is not enough and smacks of ideology. But will Mr Little enact the necessary wider ranging reform that is needed? It remains to be seen.