Tuesday, 21 April 2020

Another Police Shooting

I am shocked at the latest reporting about another person shot dead by Police (Stuff 20 April 2020). Hitesh, a Fijian Indian was carrying a machete which he was using to smash windows and some power lines. He was deeply upset at the loss of a significant sum in an overseas family dispute and had obviously become emotionally distraught. Police were called and warned him to drop the machete, when he advanced on them he was shot by an officer. 
I am not saying that this was not a tense or fast moving situation, but are there not other courses of action that you can take before killing someone? What about Tasers or firing a net? These are less than lethal options designed to incapacitate without inflicting a mortal injury. I feel uncomfortable with the ease with which we appear to accept that killing a person in a situation like this is automatically justified. Increasing access to firearms by Police will only mean that these sorts of incidents will become more common. 
I have every sympathy for Police. To my mind they are underpaid and resources are stretched. However, the killing of an ordinary person, with no previous criminal history, in these circumstances raises significant questions. It is time that all frontline Police are issued with body cameras that record every use of force interaction, situations leading up to an arrest and tragic outcomes like the decision to discharge a firearm. This technology would assist with understanding the reasonableness of use of force decisions and provide a further piece of evidence in assessing whether the decision to shoot someone was justified. 
I became convinced of the need for this technology several years ago, when I was cross examining some officers in a High Court trial that followed after a case in which Police shot a man in the Wellington Region. Police raided a house, armed with Tasers and firearms and my client had holed himself up in a bedroom wardrobe. He had a .22 rifle with him, and was hidden behind the wardrobe door. Long-story short, Police forced there way in to the bedroom and an officer became aware of my client with the rifle hiding behind the door. The officer fired through the wardrobe door and my client was shot. Was my client presenting the rifle in a manner which conveyed an imminent risk of harm to the officer, or was he cowering behind the door frightened at the speed with which events unfolded?

The case made it to trial. From the disclosure and from cross-examination during the trial it emerged that the Police officers who attended the scene during the events leading up to the shooting and its aftermath, were advised by a lawyer from the Police Association that because this was a shooting case they were not to make contemporaneous notes recording what they saw. As one officer disclosed in cross-examination: " ....by the time I got to Palmerston North and met up with other Palmerston North staff, because it's a police investigation and I know we're going to be questioned about the shooting, you seek advice and the advice was not to record anything."

Also the ESR scientists that were tasked with examining the scene, were instructed to do so, solely from the perspective of the officer who fired the rounds. This meant that no contemporary forensic analysis was undertaken from the position of the person who was shot by the officer. The problem with this is that the Police appeared to direct the gathering of forensic evidence, which would later be used as evidence in a Police prosecution, that was based upon instructions to analyse the evidence solely from the perspective of the officer who fired the rounds. There was no analysis from a neutral examination from the perspectives of both parties involved.

While the forensic scientists instructed by Police, may be organisationally independent of the Police, the fact is that the bulk of their work comes from the Police, who pay for the scientific services provided by them. This is important because basis principles one might think, in terms of scientific analysis include neutrality and objectivity. A resonating concern with this, in my shooting case is whether Police were being provided with objective and unbiased advice about the crime scene from the scientists; or were they being given opinion based upon instructions given by Police, that fettered the independent forensic analysis of the scene?

Ordinarily, officers will make contemporaneous notes of what they observed. The analysis of these varying perspectives enables a decision maker to gain a fuller understanding of what occurred and it is vital to fair trial rights. While we all like to think Police officers will always be truthful, in my close on two decades of experience at the bar, occasionally the odd officer will lie under oath, or they may unconsciously interpret events in a way the coalesces with their theory of the Police case. 

Body cameras would provide a protection against issues of unconscious or actual bias and would provide a neutral record of events in situations such as this and would be one further potentially useful form of evidence. Body cameras are regularly used overseas and it is time they were used here.

Tuesday, 11 June 2019

Lauren Theisen and the Football Ferns

12 June 2019

Michael Bott

American sports-writer Lauren Theisen resorts to ‘National Enquirer’ type insult journalism, when she labels the Football Ferns “the cockroaches of women’s international soccer”.

The Ferns come from one of the smaller nations in international football. For years they have struggled with resourcing, recognition and exposure. However, what they may lack in the largesse of the cash rich teams from larger nations, they make up for in personal dedication and passion.

In sports, there is excitement when an underdog achieves the upset. Against the odds a small team pushes and achieves greatness. This makes for sporting memories. Following in this tradition our Football Ferns are heroes!

To strive to be one’s best, to display a dignity, decency and graciousness in both victory and defeat are the hallmarks of leadership and greatness.  This contrasts with those who believe the goal of sports is winning at all costs. To prefer the put-down of those who are passionate and push for greatness over adversity, speaks more to the character of the writer than it does the to the object of their derision.

The lessons learned from the field do translate into society, and perhaps all of us could do with reflecting on that.

Tuesday, 5 March 2019

Capital Gains Tax and Fairness?

The Capital Gains Tax proposals are throwing up some oddities. A family home on a section up to 4500 sqm won't be subject to CGT, but the percentage of land over that 4500 sqm will be. Hundreds of sections are on blocks, where a steep unusable section is covered in bush, why should that unusable land be subject to CGT?

Also, what about the thousands of Kiwis who live on uneconomic lifestyle blocks? There is one on the market with a block size of 1.2 ha (12,000 sqm) in Eketahuna at the moment, for $195,000.00. Under the proposed rules 7500 sqm of that block will be subject to CGT, whereas the apartment on Oriental Bay, Wellington, worth $2,500,000.00 will not be. It also gets worse for the family in Eketahuna - they will have to hire an accountant to work out the proportion of land is subject to CGT, whereas on bluechip row Oriental Bay, there is no complex formula or CGT liability due, as the apartment is the family home and the total area is under 250 sqm.

On a more technical note, currently in relation to Kiwisaver, the investments in New Zealand, in shares and the like, will be subject to CGT (at a tax rate of around 28% for people whose income is over $70,000). The regime for shares and dividends from offshore investments is a lot less onerous (i.e considerably a less than 28%). As a matter of commonsense this disparity will potentially lead to an increased flow of investment funds heading offshore.

If the CGT is about fairness, these issues will need to be addressed.

Thursday, 14 February 2019

Don't give a shit? Then give a Cadbury

As a child, every Christmas was a time of magic, made more special by my being given a two tray deep box of Cadbury Continental Chocolates. Every year without fail, mum would put a box of these treasures under the tree.

There was a French cafe scene, complete with Eiffel Tower reproduced on the lid. Peeling back the cellophane unleashed the comforting, yet decadently rich aroma of dark dairy rich chocolates with an array of drool inducing centres. Roses, the slightly down market version also offered the same heady sensations.

Every pay day with my first job as a shop boy, I would buy - no invest in, a family sized block of Cadbury's Caramello or Dairy Milk, with it's famous, "glass and a half of full cream milk" emblazoned on the wrapper.  I would tear the wrapper off and hastily devour the contents on the walk home.

Leap forward now several decades and Mondelez International an American multinational has bought the Cadbury brand. Gone is the dairy content. The caramel hard centres, Turkish delight and venetian fudge, so loved by generations have been consigned to history, replaced by insipid sickly "chocolates", devoid of taste. This company seems driven in a pursuit to show complete contempt for its market in a race to prove, "if we can't be the best, then hell we'll be the worst."

In the past, a gift of Cadbury chocolates was a thing to look forward to, now they are something to avoid. If you don't give a toss about someone and just want to go through the motions (incidentally that is what Cadbury chocolates now taste like), then give a nod to your gift buying obligations by giving the object of your contempt this Claytons gift. Now New Zealanders think of Cadbury chocolates, as the "gift you give, when you don't want to give one."

Perhaps the new phrase to emblazon Cadbury products should be: "Don't give a shit? Then give a Cadbury."

Saturday, 19 January 2019

Eulogy for John Andrew Tannahill

John Andrew Tannahill, 1938 - 2018

By Michael Bott

John Andrew Tannahill

To John's beloved family, Vicki his wife and soulmate. Kelly & Rob, Andrew & Heidi, Julie & Peter, Brad & Kate, Paul and Amy & Carl, Jack, Sam, Charlie, Billie, Ella, Sam, Kaitlyn, Freya and Marleah. To John’s colleagues and his friends from all walks of life we come to celebrate an extraordinary man – John Tannahill - a husband, a father, a lawyer and a horse racing nut.
John was born in Taranaki on 29 August 1938 to John and Lavinia, immigrants from Northern Ireland. John senior was a construction worker, and Lavinia was a stay at home mum. He started his education at Fitzroy Primary School, then going on to New Plymouth Boys’ High.
Photo of John Tannahill.1
The Wellington legal community will long remember John as a colourful larger than life figure, a champion for those who had none, who leaves behind a weighty legacy as an advocate who represented his clients without fear or favour.
But to those of us who loved him and mourn his passing, we know John, JAT or Tanners by the other titles he held: a good mate, a father, husband, grandfather, Uncle John.
I, like so many others in the city where he worked for nearly half a century, knew him as a colleague, a mentor, and above all, as a friend.
In fact, many of John’s friends, even those who stayed with him to the end, first interacted with him when they arrived on his doorstep seeking legal advice.
Just yesterday I met one of John’s client’s who has been falsely accused again, who has been a mate of John’s for close on 40 years.
I first met John 30 years ago, when I was working as a housemover and turned up seeking the services of counsel at Deacon and Tannahill, for Paul, the son of the director of the firm I worked for. I met this loud short, man with a walrus moustache wearing a waistcoat. The case involved Paul being charged with failing to give particulars. The offence occurred late at night and Paul was driving a tractor unit towing an entire house on a trailer through Lower Hutt. He was stopped by Police, who demanded to know his occupation? Well it was obvious what his occupation was, but for a bit of humour, Paul told them he was a florist. It turns out the officer didn’t share the same sense of humour.
John took the case, and it was heard in the Lower Hutt District Court, where it was eventually thrown out.
John met his first wife Janice Murray when she came to him to get a divorce from her then husband. They subsequently married in 1964. They had three children - Kelly, Andrew and Julie. That marriage unfortunately ended in divorce in 1974.
John then met Ms Vicki White and they eventually married on 30 August 1975 and three more children followed: Brad, Paul and Amy.
Over the past five or so years John, Bernie Brodie and several others would meet, roughly once a month for a Friday lunch. These would go on from one to, on the odd occasion, a number of hours. Stories would be swapped, stretched and advice dispensed.
Anyway, it was during these lunches that I met Vicki, John’s wife.
What struck me was the closeness and friendship that they had. There was no one dominant partner. They were a team. They would spark off each other, baiting each other and teasing. Their love wasn’t fawning, it was real.
Over the final weeks, when John could no longer attend court and was confined to barracks, I would travel up to Telford Way in Raumati to chew the fat and just spend time with John. Towards the end, John was anxious to get me some paperwork and he was in his electric wheelchair, as he was unable to walk and was extremely debilitated.
Anyway, he was at his kitchen bench making a show of finding a file. “Vicki, where’s that bloody file? It was here, have you been tidying?” John demanded. Vicki was within earshot and was out in the garden. “I haven’t seen it, it’s where you damn well put it!” she bellowed back.
John looked at me and even then he had the most wicked devilish glint in his eye and was grinning from ear to ear. He had put out the bait and had gotten the bite he was expecting.
When Vicki phoned me on Christmas morning to tell me that John had passed one of the things she said, was, “Who am I going to argue with?”
Vicki, you and John were together for over 40 years and cared for each other very deeply. In the latter years you were there for John as that illness slowly tightened its hold on his body. Even as this occurred that deep love you both had shone through and John’s spirit was undiminished. John’s death is going to leave a big gap. You were great friends and a great team. It was a privilege to be part of it and to witness it, and we are here for you.
“He was the best daddy for me :)”
Amy told me of the memories she has of being woken early by dad before school, before he headed off to work. It was always a nice wake up and goodbye kiss. He worked a lot (most/every weekend mornings!)
“But that became partly my fault because he took me to choir on Sundays. I enjoyed those days with him, chats in the car, checking the p.o box, just the two of us ....
“Although he worked a lot dad was never the absent father. Always home for the family dinner together. We always went on family holidays, every year. Some overseas! We were pretty spoilt kids and never needed anything and always had all we needed. Growing up on a farm and all the fun stuff we got to do made for a pretty awesome childhood.”
John had a fondness for junk and Vicki was always fearful when they went to the rubbish dump and would almost come back with as much as they took there. Other people's "treasures" you could say. John was ecstatic when the $2 shop opened in New Zealand!
John always encouraged his children to be cheeky, to approach life with a feisty nature, not to back down!
Amy tells me that that sometimes got her into trouble at boarding-school but it never stopped her.
As a father he always enjoyed a good laugh or cheeky comment with his kids.
Amy can recall being asked questions by her dad, that he always knew the answer to. Like all good lawyers! Apparently at the time it drove her and her friends nuts. 
But it is fair to say that he taught you to question and to be nosey. It is something that seems hard-wired in your Tannahill DNA.
I have been told by his children that he comes across as a grumpy old bugger.  
Amy tells me that as a girl a lot of her friends were initially scared of him, but soon realised he was all gruff and no harm and actually a lot of good fun.  
It was innate in John to question absurdity, and to challenge rules, when they did not make sense.
Vicki recounted the story about when the family lived on their farm up on Horokiwi and John became incensed that the local council prohibited the walking of dogs on Petone Beach. John challenged this by going with his daughter and walking Frank their pet goat up and down the beach.
In the days when I visited John, he told me how he was proud of all his children and how chuffed he was with his grandchildren.  
I know that it pained him, that he would soon not be here to see them grow up, but I know that he lives on in them too. When you see them challenging rules, or being inquisitive and asking a lot of questions, just think the fruit does not fall far from the tree! 
Paul described his dad as a wonderful father and a great lawyer, who helped so many people throughout his life, as a man who was selfless in helping others – the proof of this was the number of people who remained in contact with him after being clients – they remained as friends.
Someone once said that you learn how to treat others from the example set by your parents. Paul mentioned John and Vicki as having big hearts, and having a home where all were welcome, as having a home where the door was always open. The steaks and barbeques and of course the roasts were legendary and were always accompanied by engaging and lively conversation around the dining table.
Photo of John and Vicky Tannahill
John and Vicki at the Wellington District Law Society conference, The Chateau, 1988. 

The loss of your father will leave a huge hole in your family but you will have many, many happy and fun memories of your dad/grandfather to cherish. Hold on to them and enjoy life with all it brings with the same vigour that he did.

The law
John’s headmaster thought John should go into teaching, and in talking with his mum, they thought that an arts degree might help with getting into teaching.
So, at 17 John packs his bags and heads off to Victoria University and commences studying for an Arts degree. Bursaries were scarce and so he supported himself through holiday stints at the local freezing works.
"I did Arts the first year, got three - English, French and Geography. Went off to Australia. I applied for a post-primary studentship, I think I was in Darwin when I was told I had it, I said to the man at the time to get stuffed, I'm going to do Law. So I came back and did Law."
I asked John, where he wished to study law?
John: Vic of course.
While at Vic he was very involved in student affairs such as Extravaganza, a previous incarnation of the Law Revue, a show put on by the students, and was a regular in the male ballet.
While studying he distinguished himself as a scholar, winning the Archibald Francis McCallum Scholarship in Law, a scholarship which is still going. John said, "This came as a surprise to some. One fellow student who is now an academic and a QC was described as being 'very upset' when I got it (big chuckle). He'd say 'How could Tannahill get this?"
Anyway, John wanted to get down town and into harness.
First job
John’s first job was with a firm called Barnett and Cleary, which is a foundation of a firm called Barnett Corrie Watts and Patterson, which later was taken over by Rudd Watts and Stone.  That was his first job. His first case involved an agency matter where he entered a guilty plea for a guy that was charged with some offence of unfairly packing cabbages. Apparently, he used to put the little ones on the bottom, big ones on the top. John recounted what he did for this appearance, “ Pleaded guilty and that was my first court appearance and the press covered most cases in those days so I got a bit of publicity over that.”   
When John was admitted to the Bar, by the Chief Justice, it was Roy Stacey who moved his admission.  In a manner typical of the time, it turns out that John was junioring in a case with Roy – 10 o’clock the same day before Judge Hutchinson. It was a case involving a policeman charged with some minor offence.
Anyway, it was 1 o’clock and Roy Stacey said “Look I’m going to have to go to the Hutt”.  He said “I’ll try and be back by 2:30”.  He didn’t turn up till 4. So John, his first day admitted, found himself in the deep end, having to fill in time. Roy eventually turned up at around 4 and managed to save the day.
Within a couple of years of working for others John met Des Deacon and they decided to form a new firm – Deacon and Tannahill. John was around 23 years of age. That firm lasted for close on 35 years. The name was decided by way of a coin toss, which is how Des’s name wound up being first.
In those days there was no legal aid and the pair built their practice from scratch by going down to the Police Station every morning at 7:30am to see who had been arrested and offering their services to those who had money in their pockets.
In those days the papers would fill their columns with almost verbatim reports of what occurred in the criminal courts. John’s name would regularly appear on the pages of Wellington’s two dailies. A week of headlines from the Evening Post will give you the flavour of a typical week of appearances for John in the 60s: "Barman Was Refused Kiss So Struck Girl"; "Month’s Gaol For Stealing Pens"; "Society Parasite Again Gaoled"; "Threw Ashtray When Benefit Refused" and "Tried To Take Van Belonging to Constable".  
John and Des grew their firm and its burgeoning clientele base from scratch.
Shortly after being in harness and still in his early 20s John undertook his first murder trial with the case of R v Vincent. The crime was alleged to have occurred at sea on a ship called the NZ Star, with the body tossed overboard.
The referral came from another client of John’s who recommended this up and coming young lawyer to Mr Vincent, who was remanded in Mt Crawford. The case had a number of interesting features. The Chief Police Officer hung himself enroute on the NZ Star from Napier to Wellington and the trial Judge had doubts, two weeks out from trial, that someone as young as John was up to a murder trial. Undeterred, John hunted around for a leader. In the end Roy Stacey stepped into the breach. The witness list was split down the middle and after a two weeks trial, the jury returned a verdict of not guilty.
“We had to get this guy new clothes, he had long hair, we gave him a haircut and after the trial finished, he had nowhere to go, he had nobody in New Zealand, so I arranged to have him put up at the Midland.   Had a good relationship with the Midland.  All of us had access to a room there if I needed it because of after-hours drinking. And so we got him a room and in one of the bars we were sitting at the table and we were having a drink.  The press were right on to it and they came to a photograph of Vincent and John having a drink. First, page one of the Dominion the next day: Tannahill and Vincent.”  
A week later John gets a letter from the President of the Wellington District Law Society, demanding he turn up at this meeting to show cause why he should not be exterminated for allowing the photo to be in the paper.  A slap on the wrist eventually followed, but that marked John’s first encounter with the Law Society.
Over the years
Over the years John represented all manner of people. People ranging from Mandy Rice-Davies – a key figure in the Profumo Affair, a scandal that shook Britain in the 60s - to associates of Terry Clarke in the fallout over the Mr Asia drug matters – in both New Zealand and Australia.
In the 1970s he acted for one half of the Bushwhackers, when he was charged with possession of cannabis. John described the Police as being determined to get this bloke and went through his house with a vacuum cleaner to find the cannabis. This was pre-Bill of Rights. John played a key part in getting him a Residence Visa for the States, where he has been ever since.
Over the years John represented a number of people involved in New Zealand’s racing industry, including one of whom was one of our premier riders. One jockey was charged on several occasions with drink driving, and later with unlawful interference with another horse during a race. John would often win those cases, or at worst mitigate the damage his clients suffered.
John’s could succinctly describe his assessment of people. I well remember his description of one client, he was both counsel and a riding agent for: “He rides bloody well. He’s a magnificent jockey but as a person on the ground he’s bloody hopeless.”
John also represented Mr Watt who was charged with video piracy, one of the first such cases in New Zealand.  It was hard fought for a couple of years, going to a second trial and ending up with guilty verdicts on a reduced number of charges before Judge Unwin.
John also crossed-swords with the Serious Fraud Office.  He was counsel in the months-long student loan fraud scam and for a lawyer for a $1.16 million fraud, both prosecuted by the SFO.
John went on to bedevil the SFO, representing a Wellington lawyer and his father charged with defrauding their clients. Anyway, he eventually stoked the ire and suspicions of the SFO and the SFO executed a search warrant at John’s Wellington offices. John Billington QC tells me that those executing the warrant initially thought that burglars had got there before them, given the chaos which they found when they entered his premises. Ultimately, they located a few book-keeping errors which meant John had to take some time out of his practice for a while.
In relation to this John went to court for depositions and it was on day one of the Scott Watson trial, and he was snapped by the Evening Post photographer in a rather unflattering pose as he was getting out of his car. That was on page one the next day.
Photo of John Tannahill.2
A day later, John wrote back to the paper, with a photograph that he asked them to print giving a more realistic picture of him!
It was dutifully published – I think on page 3 – it shows John, in a bush shirt legs apart, and scowling, holding a sub machine gun – ready to take on anyone.
For completeness it was taken in 1986, when John was visiting his cousin Willie, in Galway in Ireland. No-one quite knows why his cousin possessed the weapon.
To my mind it captures John perfectly, a fighter, who will stand to the last.
John eventually was convicted and lost his practising certificate. He was sentenced to 6 months imprisonment with leave to apply for home detention. In those days the sentence could be suspended to allow time for the Parole Board to sit to determine the home detention application.
Anyway, there was a difficulty getting a Judge to sit, so John was taken out to prison by the Court forensic liaison nurse Anne Begg and spent 54 hours in Rimutaka.
What amused him, was that as soon as he was there, the next morning there were 17 inmates queuing up to see him.  
In his wilderness years away from the Bar, John kept using his skills in tribunal work and other forms of advocacy.
Eventually, because of the high regard in which John was held, he returned to practice and carried on representing the less fortunate in our community.
Many of us would have given up, but John kept going, he never lost that sense of fight, of that joy of living.
I was struck by this repeatedly as I saw John slowly become imprisoned in a body that would no longer work as it used to. For several years John suffered from Inclusion-body myositis, an inflammatory condition that led to muscle degeneration. Still, John kept fighting.
Over the past two years on top of that John also fought the cancer that eventually spread to his liver. During that time John fought to the end, last appearing in court in early December.
My friend, in living your life, you displayed a spirit of resilience and humour and have loved and lived your life until the end.
John, you had a passionate sense of justice, you had a wonderful sense of humour and you had a boundless enthusiasm for the practice of law. It is a privilege to have known you and to have been able to count you as my friend.
JOHN ANDREW TANNAHILL may you rest in peace.