Hard News by Russell Brown

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Hard News: Judicial caprice is no way to pursue law and order

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  • Nick Russell, in reply to Katharine Moody,

    You are right. The financial and social costs of prohibition are enormous, wasteful and out of all proportion to the harm caused by smoking cannabis. The law needs to change. But lawyers and courts can't do that. Nor can the Police.

    Wellington • Since Jul 2008 • 125 posts Report Reply

  • Nick Russell, in reply to Russell Brown,

    My former (and now deceased) neighbour was caught manufacturing heroin and didn’t go to jail, despite a long list of previous. An acquaintance, also with previous, was busted with pot, pills, speed and $15k in cash and only got home detention

    Yeah, that’s why it can look like a lottery. I’d like to know why the Judge didn’t give her a non-custodial sentence. But the fundamental problem is that this is still a crime and we really don’t want to live in a country where the Police or courts get to decide which laws they will or won’t enforce, or at least least I don’t. Far better to reform the law than enforce it selectively.

    Wellington • Since Jul 2008 • 125 posts Report Reply

  • Katharine Moody, in reply to Nick Russell,

    But lawyers and courts can’t do that. Nor can the Police.

    Quite right – and neither can any democratic process. But threaten the commercial arm which benefits from the folly – and you just watch how quickly those in power respond. Much of the power the public has lies in its spending power. If I lived in Whangarei I’d be outside the law firm with placards, and I’d get my grandchildren and children to stand there with me. And I don’t smoke pot but if people can get happy for free by growing a weed in their backyard, I’d say it would be a whole lot better, particularly for our impoverished communities, than a trip to the bottle store. Frankly, it's the alcohol manufacturer and distributor mates of the government that are likely the real reason we haven't seen decriminalisation here yet.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Russell Brown, in reply to Nick Russell,

    Far better to reform the law than enforce it selectively.

    Yes. I don't have a particular quarrel with the police or the Crown prosecutor for that very reason. On the other hand, that Salient story does give a pretty strong indication that the police have been "decriminalising" cannabis by that means.

    Auckland • Since Nov 2006 • 22756 posts Report Reply

  • Rosemary McDonald, in reply to Nick Russell,

    we really don’t want to live in a country where the Police or courts get to decide which laws they will or won’t enforce,

    In the case of the Police....that is exactly the country we're living in.

    Waikato, or on the road • Since Apr 2014 • 1344 posts Report Reply

  • Katharine Moody, in reply to Rosemary McDonald,

    In the case of the Police….that is exactly the country we’re living in.

    And we wonder why morale is so low in our police force.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Sofie Bribiesca, in reply to Russell Brown,

    My former (and now deceased) neighbour was caught manufacturing heroin and didn't go to jail, despite a long list of previous. An acquaintance, also with previous, was busted with pot, pills, speed and $15k in cash and only got home detention

    A good lawyer can get your case shifted to different areas for benefit of the client. A good lawyer will know which way to plead and which ins and outs will help your judge to sentence (e.g get you into rehab quick smart to show the judge you intend to "change" your ways) A good lawyer costs lots of money. That's the first problem , lots of money. Next to Kaikohe is Ngawha Prison. Many wives will move to the area to get near the prison for visiting ,(especially gang wives) if they need to and I suspect this particular Judge is used to handing down this sort of sentence in this area. Because Gangs are around this town, jail may be par for the course. If that is the case in kaikohe, the lawyer should have looked at best options and a different plea may have been better. Not all lawyers are good though. Have we got examples of his behaviour in sentencing. A David Hood graph may be revealing.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Rosemary McDonald,

    Support for Kelly from the ALCP....

    http://www.stuff.co.nz/auckland/local-news/northland/70917860/kelly-van-gaalen-supporters-want-bail-for-cannabis-sentence

    Legalise Cannabis Party member Maki Herbert was charged with cultivation for supply of 153 plants.

    She was sentenced to 12 months home detention and 12 months post sentencing on July 4.

    Herbert says the disparity in her and Van Gaalen's sentences is "absolutely disgusting".

    "I just can't believe she got what she got," Herbert says.

    "There's got to be a balance in the sentencing process.

    You've got that right Maki.

    Waikato, or on the road • Since Apr 2014 • 1344 posts Report Reply

  • Ewan Morris,

    Quite right – and neither can any democratic process. But threaten the commercial arm which benefits from the folly – and you just watch how quickly those in power respond. Much of the power the public has lies in its spending power.

    So you don't think anything can be solved by democratic processes and boycotts are the way to change things? Would you be happy with the so-called "Sensible Sentencing Trust" picketing the offices of defence laywers? This approach to social change is a dead-end street that doesn't do anything to change people's views or attitudes.

    Since Nov 2006 • 46 posts Report Reply

  • Katharine Moody, in reply to Ewan Morris,

    So you don’t think anything can be solved by democratic processes and boycotts are the way to change things?

    Once again, don't inflate my argument. I'm talking about an issue for which the democratic process has so far simply not worked. And I'm sick of seeing some of the poorest and most vulnerable members of our community persecuted for it - whilst some of the wealthiest and most privileged profit from it. And the madness and injustice of it all is funded by my taxpayer dollars whilst the kids of those jailed for such offenses struggle on the outside while their parents are incarcerated.

    Don't conflate the issue with a counter-factual. It's a strawman technique and I'm not interested.

    What approach to social change is a dead-end street? Using the power of consumerism to bring about change?

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • linger, in reply to Katharine Moody,

    "The power of consumerism" is not what you have behind you here, unless you're a direct client of the legal firm. Indirectly funding them through taxes doesn't have the same imperative force.

    Tokyo • Since Apr 2007 • 1889 posts Report Reply

  • Katharine Moody, in reply to linger,

    unless you’re a direct client of the legal firm

    And that's what I'm saying - those folks who live in Whangarei and elsewhere locally that might be existing and/or potential future clients should boycott the firm in a very public way.

    Sure, taking their business down for just "playing the game" by the rules sounds unfair to them, but such is the cost of putting right injustices and recovery is much easier for the privileged.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Amanda Wreckonwith, in reply to Katharine Moody,

    If I lived in Whangarei I’d be outside the law firm with placards, and I’d get my grandchildren and children to stand there with me.

    Do you ever moonlight for the Westboro Baptist Church?

    I am the partner of a prominant criminal defence barrister. We have had boulders thrown through our windows, been spat at in the street and had death threats made to our faces.

    I guess these people thought my other half was

    simply “playing the game” by the rules or not.

    Like you, I am sure they felt justified in their demonstrations of their disgust and hatred.

    As you say -

    Real people, real lives.

    Since Sep 2012 • 171 posts Report Reply

  • chris, in reply to Amanda Wreckonwith,

    One would expect that he’d be able enough as a lawyer to distinguish public protest from assault/willful damage/threatening to commit offences - not to minimise the seriousness of what you have experienced but to accurately respond to Katherine's position in this context.

    Mawkland • Since Jan 2010 • 1302 posts Report Reply

  • Katharine Moody, in reply to Amanda Wreckonwith,

    Do you ever moonlight for the Westboro Baptist Church?

    Nope, I live in NZ. Do you?

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Amanda Wreckonwith, in reply to chris,

    One would expect that he’d be able enough as a lawyer to distinguish public protest from assault/willful damage/threatening to commit offences.

    The problem is that this misinformed 'public protest' could serve to whip up sentiment in a way similar to the pronouncements made by Sensible Sentencing, Larry Williams and the rest of the Hang 'Em High Mob.

    As others have noted - targeting the prosecutor is no different to what these people already do and the consequences are all too real to my family and I.

    Since Sep 2012 • 171 posts Report Reply

  • chris, in reply to Amanda Wreckonwith,

    targeting the prosecutor is no different to what these people already do

    To be clear, what I am weary of is that for any protest movement there is always a ready supply of opponents prepared to step up and dismiss it as ‘misinformed’ and reduce the act of protest to its criminal outliers. This type of analysis sits well with those who would subvert democracy by suppressing the right to freedom of assembly.

    On the one hand I’m not convinced that boycotting/ picketing the firm would be the most effective avenue in the grand scheme of things but on the other hand I totally support any person’s democratic right to peacefully protest according to their beliefs without beating up an equivalence between their cause and another and/or an equivalence between peaceful protest and crime. Especially in this instance where those participants likely to gravitate towards this kind of protest would most likely be that breed of stoners who don’t throw them.

    Mawkland • Since Jan 2010 • 1302 posts Report Reply

  • Rosemary McDonald,

    and in the meantime....

    one woman is convicted for growing 153 cannabis plants for supply and gets 12 months home detention....

    ....less than a month later another woman is convicted of possession of cannabis for supply and gets sentenced to two years in jail.

    The Judge in the second case..

    gave her credit for her previous good record and "extremely worthwhile contribution", but said he had to be consistent with sentences imposed for other, similar offences.

    get that...." had to be consistent with sentences imposed for other similar offences."


    Ummm....

    Waikato, or on the road • Since Apr 2014 • 1344 posts Report Reply

  • Amanda Wreckonwith, in reply to chris,

    I see where you are coming from Chris.

    Katharine is welcome to protest all she likes – I just wish that she would take some time to understand that the target of her opprobrium is merely doing their job just like my partner. The prosecutor is just a cog in the wheel – she is not a butterfly that needs breaking upon it.

    I wonder what will be written on the placards that Katharine plans to have her children carry?

    Since Sep 2012 • 171 posts Report Reply

  • chris, in reply to Amanda Wreckonwith,

    yeah...

    Mawkland • Since Jan 2010 • 1302 posts Report Reply

  • Katharine Moody, in reply to Amanda Wreckonwith,

    merely doing their job

    Oh please. I could excuse the folks flogging off fast food for a living at Burger King as "just doing their job" in selling that crap, but lawyers have choices.

    I'll think on the placards overnight and get back to you.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Joe Wylie, in reply to Katharine Moody,

    lawyers have choices.

    So I'd imagined. Given the muted level of outrage from legal quarters when Clayton Weatherston's learned friends enabled - and presumably encouraged - his defence of provocation, I'm wondering if they would be defended as "just doing their job". There are times when it seems one would have to be less than human not to imagine a special circle of hell just for that kind of excessive "creativity".

    flat earth • Since Jan 2007 • 4591 posts Report Reply

  • Lisa Black,

    lawyers have choices

    Not generally correct. Chapter 4.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 provides:

    4.1 Good cause to refuse to accept instructions includes a lack of available time, the instructions falling outside the lawyer's normal field of practice, instructions that could require the lawyer to breach any professional obligation, and the unwillingness or inability of the prospective client to pay the normal fee of the lawyer concerned for the relevant work.

    4.1.1 The following are not good cause to refuse to accept instructions:

    (a) any grounds of discrimination prohibited by law including those set out in section 21 of the Human Rights Act 1993:

    (b) any personal attributes of the prospective client:

    (c) the merits of the matter upon which the lawyer is consulted.

    (Emphasis added)

    So basically, as long as the Crown prosecutor had time to do the work, it was in her field of law, it didn't require her to breach professional obligations, and the Crown could pay, she would have been unable to refuse to act.

    Once she had agreed to act, her professional obligation - and that of Clayton Weatherston's lawyers - was to fight for her client, or as the Rules put it:

    to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:

    to protect, subject to overriding duties as officers of the High Court and to duties under any enactment, the interests of clients

    This is what sets us apart from other legal systems, in which the lawyer does have a choice whether or not to act. In my view, this is a good thing. I do not particularly want to work within a system that allows lawyers to make moral judgements about clients or prospective clients.

    I don't think there is a lawyer in New Zealand who has not had to represent a client whose position is diametrically opposed to the lawyer's personal views. But we take our obligations very seriously. As you saw above, the fundamental obligation is an overriding duty as officers of the High Court.

    This means that it is our overriding duty to the Court to bring the relevant law to its attention and to make the very best argument we can in line with our client's instructions, in order that the Court can make the best decision in the circumstances.

    That is the reason people say we are just doing our job. If you don't like the legal arguments we are bringing (for example the provocation defence) then work to change the law so that those arguments cannot be made. But if they are available and relevant, and we do not make them based on a moral judgment, we are in serious breach of our obligation to our client and to the Court. And that is simply not acceptable.

    Wellington • Since Jul 2010 • 71 posts Report Reply

  • Joe Wylie, in reply to Lisa Black,

    Thank you Lisa, most enlightening, though you've rather lost me with this:

    That is the reason people say we are just doing our job. If you don't like the legal arguments we are bringing (for example the provocation defence) then work to change the law so that those arguments cannot be made.

    In the climate of public revulsion following Weatherston's use of the provocation defence, Simon Power announced his intention to do pretty much what you've suggested. My understanding is that claiming provocation did Weatherston's case no good. Presumably a capable lawyer could, indeed should, have used their notable powers of persuasion to talk their client out of what they should have known was a futile exercise in wilfully destructive bloody-mindedness. Instead they knowingly became an accessory to their client's apparent wish to inflict further damage upon the family of his victim.

    flat earth • Since Jan 2007 • 4591 posts Report Reply

  • Lisa Black,

    Agree. But I'm sure you'll have your own experiences of being a specialist in your field and having people seek your advice and ignore it with drearily predictable consequences.

    All we can do is give the client our best professional assessment of the merits of particular choices. Sometimes that advice is pretty strongly worded. The client does not have to take that advice, but we absolutely do have to follow their instructions.

    Of course, our advice can turn out to be wrong. We're not perfect but we do give it our best. We know that by the time lawyers are involved there's generally a lot at stake for our client.

    Wellington • Since Jul 2010 • 71 posts Report Reply

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