Hard News by Russell Brown

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Hard News: Behaving badly at the bottom of town

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  • Matthew Poole, in reply to giovanni tiso,

    How do you get off living in a country where such presumptions aren’t the norm, backed up by reams upon reams of historical precedent?

    Because we don't have a history of a corrupt judiciary. Or of a corrupt anything much, for that matter. We just don't. Have you missed the year-after-year results of the "Least-Corrupt Countries Index" or whatever it's called, where NZ consistently rates in the top 3?

    Our judiciary is not perfect, and I don't think they're saints, but if they're really government stooges in disguise they do a masterful job of projecting an image of staunch independence. Perhaps you missed the Chief Justice being told to keep her opinions on crime and punishment to herself? And the repeated statements by the senior District Court judge on the same topic?
    You may come from a country where public officials are available to the highest bidder, and thus ought best be treated with appropriate degrees of scepticism, but NZ is not Italy. We make a big deal out of a judge not recusing himself because he had business relations with a lawyer appearing before him. That, and fiddling expenses, are as close as we get to true judicial scandal.

    The pit from whence crawl… • Since Mar 2007 • 3731 posts Report Reply

  • Graeme Edgeler,

    Isn’t that exactly what you asserted about fifteen centimetres above? (Although yes, that does change the complexion of things)

    No. I said earlier that the suppression of the reasons for the decision *about the jury trial* was at the request of the defence.

    I said later that I believed that probably all of the suppression of everything else in the case - e.g. suppression around the bail hearings, suppression around evidence rulings, etc. was at defence request/with defence agreement.

    Wellington, New Zealand • Since Nov 2006 • 2968 posts Report Reply

  • Joe Wylie, in reply to Matthew Poole,

    Peter Ellis was convicted by a jury who got bamboozled by what’s looking more and more like a metric butt-load of bullshit. Were they part of a conspiracy too?

    Matthew, you're the one who introduced the word conspiracy as a pejorative for anyone who'd dare to express doubts about the potential fairness of a judge-only trial. It's worth remembering that the judge who presided over the last inquiry into the Peter Ellis case found no significant problems with the "metric butt-load of bullshit" that lead to his conviction.

    flat earth • Since Jan 2007 • 3291 posts Report Reply

  • Matthew Poole, in reply to Joe Wylie,

    Joe, conspiracy is the only way to describe the implications of McCarten's column: that a judge sitting alone will convict people who a jury would acquit. It presupposes that the judge will come to a different conclusion simply because they're part of the establishment.

    As for the last Peter Ellis enquiry, that was released a decade ago. A lot of what's been raised in the last couple of years relates to new research that didn't exist in 2000/2001. People then said it smelled kinda off, what with some of the weird claims about ritual satanic abuse and that the testimony wasn't corroborated, but now people are saying it stinks to high heaven because the interviews with the "victims" were conducted in such a way as to lead to predetermined outcomes.

    ETA: Concern now focuses on the fact that the interviews on which the entire Ellis case was built would now be ruled completely inadmissible and probably lead to conduct complaints against those who conducted them. That concern didn't have cogent research behind it 10 years ago. Or do you also disagree with overturning past convictions on the basis of DNA testing that wasn't available at the time of the crime?

    The pit from whence crawl… • Since Mar 2007 • 3731 posts Report Reply

  • giovanni tiso,

    Matthew, you're the one who introduced the word conspiracy as a pejorative for anyone who'd dare to express doubts about the potential fairness of a judge-only trial.

    Yes, one thing is being in on a full-blown conspiracy - another being more easily persuaded than twelve people off the street of how a convinction in this particular case might be opportune for the maintenance of an orderly society. A judge could conceivable exhibit an authoritarian bias of the kind that is more easily diluted in a jury - which surely is one of the points of having jury trials, and why there is at least a perception that not getting one in such a case may be limiting of one's rights to due process. The circumstances having been suppressed, and in light of what Graeme has said, one would hate to jump to any sort of conclusion either way, but it's certainly how the news was received, no?

    Wellington • Since Jun 2007 • 7315 posts Report Reply

  • Matthew Poole, in reply to giovanni tiso,

    how a convinction in this particular case might be opportune for the maintenance of an orderly society

    And there you go supposing that judges care little for the rule of law and the maintenance of human rights, wanting only to deliver judgements that are expedient for the purposes of the authorities of the day.

    Do you see why I found McCarten's piece so odious? It's imputing a lot of motivations into the judiciary that historically have not been on display. Some judges may be more authoritarian than others, certainly, but overall there is a strong current of "right" rather than "suits the authorities' purposes" in the judgements delivered. There are many curtailments of the powers of the Police that directly result from judges ruling that "right" prevails over "convenient."

    The pit from whence crawl… • Since Mar 2007 • 3731 posts Report Reply

  • giovanni tiso, in reply to Matthew Poole,

    Some judges may be more authoritarian than others, certainly.

    And perhaps the best chance for success of a botched police case is to find or chance upon one of those.

    Wellington • Since Jun 2007 • 7315 posts Report Reply

  • Rich of Observationz,

    supposing that judges care little for the rule of law and the maintenance of human rights, wanting only to deliver judgements that are expedient for the purposes of the authorities of the day.

    Well, an NZ judge might think, as Lord Denning did, over the Guildford Four, that:

    "If they [The Guildford Four, who were suing the police for assault] won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. ... That was such an appalling vista that every sensible person would say, "It cannot be right that these actions should go any further."

    That was the leading British judge of the day, suggesting that evidence, however strong, that undermined the policing system should be ignored in order to maintain that system.

    Back in Wellington • Since Nov 2006 • 4209 posts Report Reply

  • Matthew Poole, in reply to Rich of Observationz,

    Denning was nothing if not controversial. This is also not a lawsuit alleging that the police acted improperly.

    NZ justices have given us time limits of roadside stops, the right to challenge "obstructing police", limitations on the "sniff test" as a means of conducting a general search without warrant of a person or their car, and on it goes. There is much local jurisprudence that demonstrates a willingness to impose limitations on the authorities and their powers in order to facilitate a free society, and suggesting that a conviction is all but guaranteed with a judge sitting alone ignores all that history and proposes motivations and reasonings that are at odds with what's demonstrated in the past rulings of the collective.

    The pit from whence crawl… • Since Mar 2007 • 3731 posts Report Reply

  • Matthew Poole, in reply to giovanni tiso,

    Some judges may be more authoritarian than others, certainly.

    And perhaps the best chance for success of a botched police case is to find or chance upon one of those.

    Maybe, but I don't think the prosecution get to choose which justice hears the case. There's also the small matter of the inevitable appeal should there be wide-ranging convictions.

    The pit from whence crawl… • Since Mar 2007 • 3731 posts Report Reply

  • Joe Wylie, in reply to Matthew Poole,

    Joe, conspiracy is the only way to describe the implications of McCarten’s column: that a judge sitting alone will convict people who a jury would acquit. It presupposes that the judge will come to a different conclusion simply because they’re part of the establishment.

    By that reasoning the 2003 petition for an independent enquiry into the Ellis case, to be presided over by a foreign jurist untainted by connection with the NZ legal system, would have been unforgivably tinfoil helmet stuff.

    Concern now focuses on the fact that the interviews on which the entire Ellis case was built would now be ruled completely inadmissible and probably lead to conduct complaints against those who conducted them. That concern didn’t have cogent research behind it 10 years ago. Or do you also disagree with overturning past convictions on the basis of DNA testing that wasn’t available at the time of the crime?

    Forensic advances had nothing to do with the Ellis case. The Eichelbaum enquiry was held nearly a decade after the trial, and largely exonerated the experts whose methodology was called into question.

    flat earth • Since Jan 2007 • 3291 posts Report Reply

  • Rich Lock,

    vaguely anarchist t-shirt

    What was the slogan?

    Property is theft or something!

    No Gods, no masters...maybe?

    back in the mother countr… • Since Feb 2007 • 2291 posts Report Reply

  • Russell Brown, in reply to Sacha,

    The suppression of the reasons for the decision is at the request of the defendants.

    Are we allowed to know/say that?

    I think so. The judge's post-teleconference ruling unsuppressing the fact of the original decision doesn't seem to be suppressed itself.

    The reasoning for the original decision presumably includes evidence that might be prejudicial to a fair trial for the defendants, whose counsel wanted only the fact of the decision to be unsuppressed. The Crown wanted more to be revealed.

    Auckland • Since Nov 2006 • 17917 posts Report Reply

  • Russell Brown, in reply to giovanni tiso,

    And perhaps the best chance for success of a botched police case is to find or chance upon one of those.

    OTOH, the party best placed to call bullshit on a highly technical police case might be a judge. I disagree with the decision, but I take Kyle's point above that it could be seen both ways.

    Auckland • Since Nov 2006 • 17917 posts Report Reply

  • giovanni tiso,

    Yes, that seems reasonable.

    Wellington • Since Jun 2007 • 7315 posts Report Reply

  • Matthew Poole, in reply to Russell Brown,

    The judge’s post-teleconference ruling unsuppressing the fact of the original decision doesn’t seem to be suppressed itself.

    This recursive suppression is a bit of a mind-fuck, I have to say.

    The pit from whence crawl… • Since Mar 2007 • 3731 posts Report Reply

  • nzlemming, in reply to Matthew Poole,

    We make a big deal out of a judge not recusing himself because he had business relations with a lawyer appearing before him.

    We could only make a big deal out of it because he did it, don't forget. And, in the end, they paid him off and declined to investigate further because he'd resigned.

    You don't need a conspiracy when your structures have a cultural tendency to deal with embarrassing things in private, rather than in public view.

    Waikanae • Since Nov 2006 • 1701 posts Report Reply

  • Matthew Poole, in reply to nzlemming,

    We could only make a big deal out of it because he did it, don’t forget.

    True, but when you compare it to, say, taking bribes to send people to the briber's jails even when their offences deserve a non-custodial sentence, it's pretty small potatoes. In the history of judicial corruption, we've got off very, very lightly. Either that or our judiciary are far more cunning and conniving than the judiciaries of other countries and we just haven't caught any of them with their fingers in the pie.

    And, in the end, they paid him off and declined to investigate further because he’d resigned.

    In the end "they" ruled that the handling of the matter was so fucked beyond belief that it should never have gone the way it did, and also issued a ruling on inter-shareholder relations that is so convoluted and quacky that its implications are quite scary. To find that he'd really done something wrong, the Supreme Court had to determine that shareholder relations can take on all kinds of unexpected dimensions if there's a non-traditional contribution to the share capital involved. Before you accuse "they" of hiding it all away, you would do well to look into the decision that had to be written to establish that he was in debt to the other party.

    I'm not saying that he shouldn't have disclosed his business relationship, or that he shouldn't have been honest with his colleagues about how well he knew the lawyer, but that's not the same as alleging a whitewash of the entire affair.

    The pit from whence crawl… • Since Mar 2007 • 3731 posts Report Reply

  • nzlemming, in reply to Matthew Poole,

    But where's the inquiry into his behaviour? Where's the censure for bringing the judiciary into disrepute? Where's the frickin' inquiry into how he ever got to be a judge in the first place?

    If a mere mortal had strung the process along as he did, you can bet the judiciary would have looked very dimly on it. But, apart from a very curly decision (which I have read - don't make assumptions that you're the only one who does), no action on him except to pay him to be gone.

    I'm happy you show respect for the judiciary. Not many your age do. But I think your assessment is a little naive. They're only human, but when they screw up, they cover each other's tracks.

    Waikanae • Since Nov 2006 • 1701 posts Report Reply

  • Matthew Poole, in reply to nzlemming,

    And it's the judiciary's role to do these things? You clearly know enough to know that it's not. Your issue seems to be with the ruling that the Judicial Conduct Review was out of order, but the judges didn't write the law that allowed that to happen. Complain to the pollies that he got off effectively scot-free because the process was buggered up.

    The pit from whence crawl… • Since Mar 2007 • 3731 posts Report Reply

  • nzlemming, in reply to Matthew Poole,

    My issue is that a judge gamed the system for (eventual) personal benefit and any inquiry into that was hushed up or not undertaken. Yes, it is the judiciary's role to police itself - the separation of powers demands that they keep their own house in order.

    Waikanae • Since Nov 2006 • 1701 posts Report Reply

  • Kyle Matthews,

    My issue is that a judge gamed the system for (eventual) personal benefit and any inquiry into that was hushed up or not undertaken.

    The inquiry wasn't hushed up. It was prevented by the ruling of a judge, presumably acting under the law, in an open court.

    I really struggle to call the case you're discussing corrupt. Given that the judge lost his job and no longer has that particular power. And that he give up a much more lucrative legal career to become a judge. And the whole thing was played out in the the public eye in the legal system. Far smarter legal minds than me are also pretty ambivalent about the whole thing.

    Since Nov 2006 • 6145 posts Report Reply

  • Matthew Poole, in reply to Kyle Matthews,

    The inquiry wasn’t hushed up. It was prevented by the ruling of a judge, presumably acting under the law, in an open court.

    Emphasis mine.

    That's the problem nzlemming has. A judge stopped the inquiry, ergo, the system protected its own. That it was a ruling on points of law, which can only be delivered by a judge, seems to have escaped him (her?). Or maybe he'd rather have had a kangaroo court just for the sake of doing something. Anything.

    I also disagree with calling it "gaming the system", since the remedy he originally sought was reinstatement. He didn't go into it looking for a payout, he went in looking to get his job back.

    The pit from whence crawl… • Since Mar 2007 • 3731 posts Report Reply

  • DeepRed,

    The '46-year-old celebrity' has spilt the beans. Now he just owes an apology to John Campbell, Simon Dallow and Mike McRoberts.

    The southernmost capital … • Since Nov 2006 • 3892 posts Report Reply

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