Decision Maker for QCs Recommends Himself

The Attorney General Chris Finlayson passes applications for QC on to the Governor General for appointment to silk, following a process of consultation. As he himself was recently appointed a QC this must mean he recommended himself? As the Guidelines say, "Pursuant to regulation 4 of the Queen’s Counsel Regulations 2012 appointments are made on the recommendation of the Attorney-General and with the concurrence of the Chief Justice of New Zealand." 

There is a precedent for similar behaviour. From memory I am pretty certain that then Prime Minister Rob Muldoon effectively awarded himself a knighthood. 

For completeness, the relevant section of the Guidelines states: 


"QUEEN’S COUNSEL – GUIDELINES 
FOR CANDIDATES 
2013 
Introduction 
The rank of Queen’s Counsel is awarded to barristers sole who have demonstrated excellence 
in their careers as litigators. The standard is high and will not be reached merely by 
completing a certain number of years in practice. Candidates are encouraged to consider 
carefully and to consult with senior colleagues before submitting an application. 
These Guidelines are issued by the Attorney-General and Chief Justice pursuant to 
regulation 5 of the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 
2012. 
These Guidelines outline the criteria for appointment and provide information on the 
qualifications and experience that should be possessed by lawyers seeking appointment as 
Queen’s Counsel and the process by which candidates will be recommended for appointment. 
Appointments 
Appointments to Queen’s Counsel are made by the Governor-General, by Letters Patent, 
under the Royal prerogative. Pursuant to regulation 4 of the Queen’s Counsel Regulations 
2012 appointments are made on the recommendation of the Attorney-General and with the 
concurrence of the Chief Justice of New Zealand. 
To be considered for appointment candidates must be barristers sole specialising in litigation. 
Queen’s Counsel are required to continue to practise independently, as barristers sole."

REFLECTIONS ON CRIME AND PUNISHMENT: A Snap Shot of The Life and Career of Judge Barry Lovegrove

Often criminal law can exact a toll not only on defendants and complainants, but also practitioners.  People begin their careers with an enthusiasm to “do what is right” and to help “make a difference.” Then as the years go by, constant exposure to human misery often sees pessimism and cynicism begin to predominate. One person to whom this did not apply was Judge Barry Lovegrove.

Late last year Judge Barry Lovegrove hung up his robe. After a 50 year career encompassing experiences as diverse as practicing law in the Far North, teaching law at universities in Malawi and Hong Kong, engaging in Masters level research in East and Central Africa, prosecuting for the Malawi government, working in the International Labour Office Official in Geneva and, for 18 years, working as a District Court judge in New Zealand and, since 2002, solely as a panel convenor of the New Zealand Parole Board, retirement is well earned.

This background makes Barry well placed to offer views on the role of punishment and parole in the criminal justice system. He shared some of these insights in a talk he gave in the Law Society rooms in Panama Street, Wellington in December last year, entitled, “Crime and Punishment.”

Barry comes from convict stock, being a descendant of Benjamin Shadbolt of Datchworth, who - after narrowly avoiding the hangman's - was transported in 1845 to Van Diemen's land for 15 years for the theft of a bolt of calico and 11lbs of pork. Ben secured his ticket of leave after 15 years and came to New Zealand where he made good.

The fruit did not fall far from the tree for when Barry was just 5 years of age he was made to sit in the naughty chair in front of class at Three Kings Primary School in Auckland with his wrists bound together, by a Ms Needham – his crime, throwing an apple core in the playground.

Barry recounted feelings of helplessness and nausea from a few years later, in standard 2 at Westmere Primary while enduring the morning ritual strapping of a young Barry Whitmore for yet another failure to do his homework. Mr Jennings his habitual tormentor seemed incapable of any other course of action.

This blunt approach to punishment contrasted with an experience from Auckland Grammar when a prefect caught him flicking paper projectiles with a rubber band in the playground and sent him for the compulsory caning. Displaying early advocacy skills, Barry managed to talk the prefect out of the punishment and was let off with a warning. Barry advised that having been shown mercy he never flicked another paper projectile. The prefect was David Baragwanath. Barry observed of the young David, “how wise he was and how good sense, well argued, is calculated to produce a good result.” 

While at Auckland Grammar, Barry recalled speaking to Mount Eden Prison inmates through the barbed wire fence above the prison’s 'hard labour' quarry.  From the vantage point of the school grounds he once looked down sombrely through the fence at the temporary corrugated iron structure projecting through the roof of the prison to accommodate the extra height of the gallows where William Fiore had just been hanged.

Then aged 19 on his OE Barry recounted seeing three men hanging from a lamppost outside the exit to Addis Ababa airport on arrival in Ethiopia in 1959. A British matron had been raped and murdered at a foreign-aided hospital and someone had to hang in the traditional way at the scene of the crime. Barry spoke with beggars clustered outside the Central Post Office in Addis Ababa whose left hands had been hacked off for theft or both hands hacked off if repeat offenders.

Barry spoke of watching while wanting to turn away from the macabre spectacle of the public hanging before an audience of thousands in the Central Piazza of rebel leader Menghistu Gedamu and of how his legs kicked until finally stilled. His crime: seeking political change.

Arriving back in New Zealand, Barry started professional life as a law clerk in 1963 with Johnston, Prichard and Fee and then with Buddle Weir. In 1967, still with Buddle Weir, he graduated in Arts and Law, qualified as a barrister and solicitor. He then returned to Africa to teach law at Malawi University while completing, externally, a higher degree from the University of Reading in the United Kingdom. 

In Malawi, Barry taught law to young Africans and prosecuted part-time for Dr Hastings Banda's government. Barry recalls that Dr Banda had a fairly uncompromising view of the notion of opposition, “he liked to say, 'I have very few political opponents - and very many well-fed crocodiles'.”

A career in African academe came to an end in 1970, after being asked by the president to become Principal State Counsel. The first job being a 'double-jeopardy' prosecution of 5 young Malawians on 'show-case' charges of treason. The 5 men, like Menghistu Gedamu in 1959, sought political change from the oppression of a dictatorial political system.  The year before, the neighbouring Rhodesians hanged 4 young men at Bulawayo Prison for much the same sort of thing and Barry had no stomach for that kind of action. Like Godfather Don Corleone, an offer from Dr Banda, couldn't be refused. So Barry hightailed it under cover of darkness to South Africa en route to Geneva and the International Labour Organisation. While working there Barry gained an understanding of how politics and law - as the handmaiden of politicians sectional interests got in the way of progress and good ideas.

Barry then completed his Masters at Reading University while pulling pints part time at the Jack-of-Both Sides Tavern.  Having completed his  Masters Barry then spent ten years as a Lecturer in Law at the University of Hong Kong.

While lecturing he also helped open the first pub on Hong Kong Island - The Old China Hand – where he later met the retired executioner from Bulawayo Prison who had hanged the 5 young Malawians he declined to prosecute a decade before. This man had sent over 360 human beings plunging to their deaths over the course of his grisly career.

Returning to New Zealand in 1983 Barry sought the good life on a smallholding in the Hokianga, with his wife and young daughter. However, the reality of gorse, fencing and muddy fields saw Barry moving from stomping the sod, to practising at the bar based in Kaikohe and in David Lange's old office in Rawene. Barry quickly immersed himself in the affairs of his community being elected chairman of the Horeke Primary School Board of Trustees and legal adviser to two schools. He also played a role in the establishment of Ngawha Prison and establishing a jury system in the new Kaikohe District Court. Barry’s interest in having a prison at Ngawha was driven by having Ngapuhi prisoners closer to home where they could maintain their links with whanau. He recounted satisfaction in having all Youth Justice Family Group Conferences in the Far North held on marae.

Barry was appointed a District Court Judge in 1995. From 1999, Barry began his “love affair with parole” firstly as chairman of the Manawatu District Prison Board and, after 2002, as a panel convenor of the New Zealand Parole Board. Drawing both from his time on the bench and from a lifetime of observing traditional notions of punishment, he saw parole offering an alternative to tired old notions of punishment which were counter-productive and costly.

Barry views parole as “a thoroughly enlightened form of social engineering through rehabilitation and the promise of a better tomorrow.” Fuelled by his passion he relinquished his role as a bench judge in 2004 and carried on until 31 October 2012 exclusively as a Parole Board panel convenor. Over that time he estimates that he has spent more time in prison than many who have appeared before him and he has written more reviews of Parole Board decisions under section 67 of the Parole Act than any other panel convenor and has become even more convinced that rehabilitation trumps punishment every time. 

The Prime Minister, the GCSB & Devices of Mass Distraction

So the Prime Minister's answer to the GCSB (Government Communications Security Bureau) spying illegally on New Zealanders and residents is to rush through legislation allowing the GCSB to do just that. And the reason we need this is that overseas baddies want to use Kiwi technology for weapons of mass destruction, but we can't see the evidence, because it is secret.  Will the Prime Minister please advise how many of the 88 New Zealanders illegally spied upon were providing Kiwi technology to people trying to build weapons of mass destruction? I think Mr Key is very adept at employing his own devices of mass distraction.

  Sweeping GCSB changes announced 15/4/13

Prime Minister John Key has announced sweeping changes to the powers of the Government Communications Security Bureau.

Key said failure to do so would leave New Zealand's national security open to threat.

"As prime minister I am simply not willing to do that. To do nothing would be an easy course of action politically, but it would be an irresponsible one."

The changes would allow the GCSB to provide information assurance and cyber security advice and help to both public and private sector organisations, and allow it to assist other entities such as the New Zealand Security Intelligence Service, New Zealand Defence Force and Police while retaining its foreign intelligence gathering powers "broadly as is".

The change follows a top level report revealing widespread problems within the bureau and more than 80 cases where it may have spied on New Zealanders illegally.

The potential illegality was uncovered in the wake of revelations the GCSB spied on German internet entrepreneur Kim Dotcom illegally, apparently under the mistaken belief he was not a New Zealand citizen or resident.

A 2003 law change explicitly barred the GCSB from spying on Kiwis.

Key said the cases of potential illegality involved the GCSB assisting police and the Security Intelligence Service acting under warrants. It believed the law allowed it to do so.

But the legality of that has now been called into question.

The terrorism threat in New Zealand is low but people have tried to use our technology to build weapons of mass destruction, Key said.

..........

- © Fairfax NZ News

Spy agency could have illegally spied on dozens of Kiwis

Published: 6:27PM Tuesday April 09, 2013 Source: ONE News

A critical report into the Government's spy agency has been released this afternoon.

The top secret review, by senior public servant Rebecca Kitteridge, into the Government Communications Security Bureau (GCSB) , which was leaked to media yesterday, has been officially made public this afternoon.

Kitteridge's 71-page report, which was ordered after the illegal raid on Kim Dotcom's Coatesville mansion, reveals a series of failings within the bureau's management and culture.

Story continues below...

• Related

  • Spy report exposes 'shortcomings' - GCSB boss video
  • Extended video: Spy boss reacts to GCSB report (9:03)

It shows that at least 88 people may have been illegally spied on between April 2003 and September last year on behalf of domestic spy agency, the Security Intelligence Service (SIS).

Court Staff Replaced By A Computer System That Doesn't Exist

One of the supposed reasons for the closure of many community courthouse was the advent of the eBench computer system coming on line in July this year, has been shown to be the lie it is, with Radio New Zealand's announcement (15 April) that the hoped for date of cross over to the new system will be delayed until at least July 2014 because writing the computer programmes is "more complex than anticipated." So it is now apparent that hundreds of trained and experienced court staff have been sacked nationwide and communities have lost their courthouses because of a Minister's desire to have them replaced by a computer system yet to be built and computer programmes that are not even written. Teachers have seen the carnage created by ditching in haste a system that actually works for a "cheaper more efficient system" with Novopay, now the same level of incompetence and haste have been visited on urban and rural centres who have had courthouses close and on staff now sacked after decades of loyal service by a Minister who does not care. 

Updated at 8:43 am today

Plans to make law courts paperless have been delayed by up to a year.

Courts Minister Chester Borrows had hoped to have the change take effect in July, but getting the technology in place has proved a bigger job than first thought.

The eBench computer system will allow judges to manage criminal cases electronically and process charges up to 70% faster.

Mr Borrows said police will begin filing their paperwork electronically to courts from July, as planned, but it could be July next year before the system is fully functioning.

He says that was because building computer programmes to handle the changeover is more complex than anticipated.

Kids With Fake IDs Commit Fraud But Officers With False Badge Numbers OK?

On 10 March 2013 I was disturbed to see on a Fairfax site a story that police officers when arresting people during a protest wore false badge numbers:

"Police officers who deliberately faked their uniform badge numbers to avoid being identified as they weighed into a violent public protest will keep their jobs and won't be investigated by the force's watchdog.

Two of the officers were found guilty of breaching their own code of conduct and a third was said to have a "performance issue" after they were caught using matching identification badges at an Occupy Auckland eviction in January 2012.

Despite the pre-meditation involved, the Independent Police Conduct Authority decided the three officers' behaviour was not serious enough to warrant its attention, saying investigators were too busy dealing with cases involving death and bodily harm."

Police officers as a matter of law are required to wear their identifying numbers,. These numbers enable people who wish to complain about individual officers breaching the law, using excessive force etc. In other words these numbers serve as a tool to protect citizens and to enable investigating bodies to undertake meaningful investigations into the actions of individual officers."

If an officer beats a citizen while wearing a false id they could never be held accountable, as they can't be identified. In other words a meaningful check on the exercise of an officer's coercive power would be removed. The ability for the State to monitor the actions of those who enforce its law would be blocked or frustrated.

This is actually very serious. The Crimes Act 1961 gives but one example of an offence that these officers could have committed by wearing false badges:

116Conspiring to defeat justice

• Every one is liable to imprisonment for a term not exceeding 7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.

I thought of this when reading an article from the Hutt News today:

False IDs have cost for young

Hutt cops confiscating four fakes per week

A Lower Hutt policeman frustrated at increasing numbers of young people using false identification says many don't realise they could end up with a criminal record.

Hutt Valley Sergeant Shane Benge says as many as four false ID cards are handed to him a week from Hutt Valley bars. He says that's just the tip of the iceberg.

Bar staff often don't hold on to false IDs, while many Hutt Valley teens head to Wellington for a night on the town.

However the numbers of people presenting false ID at Hutt Valley bars seems to be growing this summer, he says.

Mr Benge says he is not sure whether this is because of better door checks at bars or more young people trying it on.

In most cases, those using false ID at bars are 17 year olds whose friends are legally able to drink, and they don't want to miss out.

"It's actually quite a serious fraud offence - it's using a document dishonestly.

This whole story reeks of a double standard. So in other words, it is fraud for a young person to use a false id to get into a pub, but when police officers arguably commit fraud and or breach the Crimes Act by using false IDs, it is something that the IPCA thinks is not serious, and will result in no prosecutions. Integral to any notion of the Rule of Law is surely the notion of equality of all before the law - "Be you never so high, the law is above you," should be as true today as when Dr Thomas Fuller wrote it in 1733.

International watchdog Transparency International recently released a study showing that New Zealand views itself as one of the least corrupt countries in the world. Perhaps that is so if you never have any mechanisms to ensure transparency, or the watchdogs that are meant to watch out for corruption fail to exercise their role with sufficient rigour.  

State Absolves Itself From Trial Delay Carnage it Created

"Groan!" is a sound uttered by those who love the rule of law and the presumption of innocence with increasing frequency when opening daily newspapers in New Zealand over the last five years. I uttered it yesterday when reading the New Zealand Herald as I saw this story:

"Changes aim to ease trial delaysBy Joanne Carroll

Reluctance of accused to go to jail blamed
A judge set the task of taking the handbrake off jury-trial delays says the problem is being caused by defendants who "are not in any hurry to get off to prison".Judge Geoff Rea has revealed 70 per cent of cases where a defendant has pleaded not guilty, are resolved before or during a trial. That included plea bargains, last-minute guilty pleas or charges being dropped. That was wasting the courts' time and causing a backlog of trials in district courts where defendants and victims were forced to wait up to three years for their cases to be heard."These people are facing serious criminal charges and a term of imprisonment and, human nature being what it is, they are not in any hurry to get off to prison, particularly if they are on bail," Judge Rea said......"

(Source: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10874529 (31 March 2013))



So in other words delays in cases heading to trial are caused by guilty people wanting to delay the inevitable. Really? I have several concerns about this story. First, the judge's remarks, if correct, are offensive to the presumption of innocence. How would any defendant think he or she would ever get a fair hearing before a judge who thinks you are guilty, before you've even started? Many times the Crown provides disclosure late, and if a defendant instructs counsel to delay so the defence can properly read the material and respond to it, they are presumed to be just delaying the inevitable? Have we really reached a stage in New Zealand where we pay homage to fair trial rights by way of lip service?  Second, this just doesn't accord with my experience. Often defendants lament delay, especially for those remanded in custody for over a year before trial. Often delay crushes their resolve and they just plead to stop the torment of being remanded in custody often for a period greater than any effective sentence. 

Also as another colleague observed, since the changes in sentencing following Hessell v R SC 192/2009 [16 November 2010], where  appellate courts decided to heavily cut discounts for guilty pleas to a mere 10% for a plea entered late in proceedings there is even less incentive for defendants to "delay the inevitable."

What is also worthy of note is that Judge Rea was in Wellington around a fortnight ago and was anxiously looking for reasons as to why there was this huge delay in cases getting to trial. Not once did he or any judge present, suggest that reluctant defendants were the cause of this pre-trial delay. This raises the question as to why one would say one thing to the profession and then blame the accused (the people least likely to complain) in the media?

In reality the bulk of the blame can be visited on the door step of former Minister of Justice and junior lawyer Simon Power, who had a bizarre reforming zeal when he assumed the position of Minister and began to tear down established processes that were actually working in relation to trials. I say bizarre because often his reforms were informed by ignorance and have been proven to be the failures that those better in the know, advised him they would be at the time he decided to push the detonation button. One classic example of this, was in his removal of depositions. Power argued that depositions were being used by lawyers to "game the system" and in his mind, it created delay. If Power had ever run a jury trial, he would have realised that depositions enabled evidence to be tested, resulting in an early plea, amendment of charges or at least a honing of the issues at trial. As Robert Lithgow QC said at the time of Power's reforms, "So you're just moving one indigestible blob of time into another place. So how exactly that's going to fix things I don't know."

So here we are several years later, the independent defence bar has been decimated, legal aid has been slashed, legally aided defendants have largely lost the right to counsel of choice, bail is harder to get and depositions have been wiped yet the delays are greater than ever. While this damage has been occurring the judiciary have publicly been noticeably mute (with the exception of the odd retirement speech) at expressing concern at the damage that has been and is still being wrought on our criminal justice system. And now we are told that the delays are largely caused by accused persons selfishly putting off their inevitable prison sentences. Yet in reality the delays that apparently cause concern were created by a Justice Minister possessed of an unbridled sense of his own omniscience which led him to remove depositions in 2009 meaning weak cases often get to trial before the evidence can be tested. Funny how the State wants to absolve itself from the carnage it created.

And Now After Susan Devoy As Race Relations Commissioner...........

News Flash: Judith Collins has just announced that the Government has appointed respected sports administrator, business leader and former All Black Andy Haden as EEO Commissioner. "He is human and will bring much needed business experience and mana to the role", she says. "His appointment reflects our pattern of making bold and innovative moves and demonstrates how seriously we take our commitment to the work of the Human Rights Commission", she says.