Monday, 25 March 2013

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.

Friday, 15 March 2013



14 March 2013
In the artificial sovereignty of Pitcairn Islands known this week as Courtroom 1 of the Auckland High Court, a constitutional challenge against 3 retired New Zealand judges sitting on a Pitcairn Court of Appeal appeal has resulted in the full bench walking the plank.

Three days of legal argument culminated in Justices Bruce Robertson, Andrew McGechan and Judy Potter conceding they lacked jurisdiction to preside as they had not been properly appointed or sworn an oath in accordance with the 2010 Pitcairn Constitution.

Argument will continue in June as to whether the first set of unconstitutional bench appointments of the three judges and another are lawful. The British recently passed retrospective legislation in an attempt to legitimise the judicial appointments, an action being challenged as lacking legal power or effect.

In a concession by appellant Pitcairn Mayor Michael Warren which does not require the 3 foreign judges swear their oaths or conduct court business on Pitcairn soil, Pitcairn Chief Justice (and Manukau District Court Judge) Charles Blackie will preside over the three swearing their judicial oaths today in Courtroom 1, Auckland, in a sitting of the Pitcairn Supreme Court.

The first matter of business will be how the newly sworn judges will deal with the problem of their having presided over days of proceedings and numerous procedural rulings. Senior Counsel for the appellant Tony Ellis (pictured) is expected to motion the court accept the record from the improperly constituted court proceedings as newly made.

Pitcairn, a British colony of 54 inhabitants in the central south Pacific, is ostensibly a constitutional democracy. It is perhaps the only democracy whose government is 100% controlled by foreigners. The bicameral legislature is comprised of the British High Commissioner to New Zealand and the British Foreign Secretary, neither of whom are elected by or accountable to the citizens. The judiciary are New Zealand judges whose Pitcairn appointments are more obscure than the typical New Zealand appointment. Competency never being a hallmark of either, it was still a bit sad to see Mr Ellis giving a lecture to the bench on the Pitcairn Constitution, in circumstances where it appeared none of the judges had read it until very recently.

At the heart of the current appeal in Courtroom 1 is a criminal charge against the Pitcairn Mayor for internet access of child pornography. But this criminal proceeding has been vastly overshadowed by constitutional arguments which are expected to go to the Privy Council in England. Central among them is how a democratic Constitution can be founded upon two one-person legislatures, neither one of whom is elected by the people of Pitcairn.
It is a fight which New Zealand’s premier human rights lawyer is relishing. “How often do you get to argue a violation to the United Nations Charter?” says Mr Ellis.


Should Inmates Have to Confess to Obtain Parole?

I don’t know why, perhaps it is something to do with age, but for some reason I am continually disappointed by what I see as a declining standard of proper investigative journalism in newspapers.

The Sydney Morning Herald recently ran a piece entitled, “Corby May Have to Come Clean to Get Parole” (Stuff 15/03/13).

The thrust of the story is that “Schapelle Corby may need to admit for the first time ever that she is a drug smuggler, and then show remorse for her crime, before she can be granted parole under tough new laws passed in Indonesia.” What the entire column fails to examine or even comment upon, is whether the fact of confession under such circumstances – that is that to obtain release from a hellish prison environment, you must confess your guilt, in fact makes the confession reliable as a statement of what actually occurred.
Whilst all applicants for Parole have the right to maintain their innocence, the price they are forced to pay is often too high. As a result of the desire to be released many compromise themselves and enter into what Naughton (2005) refers to as the ‘Parole Deal’:[1]

This emphasises the problem that is commonly referred to as the ‘parole deal’, which is very much    akin to a ‘plea bargain’ for it attempts to make innocent prisoners acknowledge guilt for crimes that they did not, in fact commit. For Peter Hill (2001), significantly, both offer the same essential ‘deal’ in an attempt to obtain judicial finality in cases: ‘We say you are guilty. Admit it and you get something in return’. The rationale behind the ‘parole deal’ is connected to a range of ‘cognitive skills’, ‘thinking skills’ … and various other ‘offending behaviour’ programmes and courses that have come to dominate regimes in England and Wales over the last decade. These courses are almost universally based on the work of psychologists in the Correctional service of Canada and work from the premise that as offenders think differently to law abiding citizens, once their ‘cognitive distortions’ are corrected they can be released with a reduced risk of re-offending (Wilson 2001). The effect is that whilst the Prison Services officially acknowledges that it is unlawful to refuse to recommend release solely on the ground that a prisoner continues to deny guilt, it tends to work under the simultaneous assumption that denial of offending is a good indicator of a prisoners continuing risk.
[Bold Added]

This issue was also addressed in Varney v Parole Board of Western Australia [2000] WASCA 393 (15 December 2000) dealing with an inmate who denied his offending and as such was deemed not suitable for a SOTP (sex offenders) course. In the course of the decision the following observations were made:

76. In my opinion, by stating that "prisoner needs to address offending behaviour (SOTP) before Board will review again", the Board was saying that it would not again review its decision relating to the applicant's entitlement to parole until he participates in an SOTP. 

77. As participation in a SOTP is dependent on admission of guilt, it follows that the Board, in effect, decided not to review its decision until the applicant admitted his guilt. That is to say, by its decision of 29 June 2000, the Board decided that the applicant would never be entitled to be released on parole until he admitted his guilt. 

78. In Suresh v The Queen (1998) 72 ALJR 769 Kirby J (at 781) commented:
"Enforced admissions of guilt, as the effective price of liberty, are not normally a feature of criminal justice in Australia.  Whilst an acknowledgment of wrongdoing in the undertaking of such courses may be useful in particular cases, the extraction of admissions by the prospect of early release from custody will often lack integrity and may affront the dignity of the conscience even of a convicted person.  A better means of encouraging participation in the treatment course should, in my view, be considered.  A discretion to accommodate the exercise of legal rights and also cases of conscientious objection … would be highly desirable, if not legally required."

79. Apart from the compelling force of these sentiments, the Board has erroneously regarded the denial of guilt and the non-participation in the SOTP as being conclusive of the question whether parole should be granted.  I have pointed out, however, that - while these are relevant matters - there are other factors to which the Board is duty bound to have regard.  In the case of the applicant, it is obvious that, in the passage of time, age and illness on their own may reduce the risk of offending to a bare minimum. 

80. As a matter of law, the discretion vested in the Board must be exercised by reference to all relevant material. By deciding not to review its decision until the applicant admits guilt and participates in an SOTP, the Board has invalidly fettered its discretion.  In my view, the Board erred in this respect.

81. In the circumstances, I consider that the applicant is entitled to have the order nisi for a writ of certiorari relating to the Board's decision of 25 June 2000 made absolute to the extent that it relates to the Board's decision not to review its refusal of parole until the applicant addresses his offending behaviour by participating in an SOTP.  I do not think that it is necessary for a writ of mandamus to issue in respect of this decision, as once the decision is quashed and the Board receives a new application by the applicant, it will be required to decide the question afresh.
[Bold Added]

It is recognised that there are a variety of reasons that an offender may maintain his innocence, even after conviction. This was recognised by the English High Court in Secretary of State for Home Department Ex parte Hepworth, Fenton-Palmer and Baldonzy and R v. Parole Board Ex parte Winfield, R v. [1997] EWHC Admin 324 (25th March, 1997), at paragraph 37 citing Ex p. Zulfikar (July 1995, unreported) :

But there may be a variety of reasons why a prisoner will not accept his guilt. He may genuinely have been wrongly convicted. Although inwardly he may know he is guilty, he may be unwilling to accept that he has lied in the past or confront loss of face in accepting what he has hitherto denied. Where, for example, the offence is one of specific intent, he may genuinely have persuaded himself that he did not have the necessary intent. Such a man may in all other respects be a model prisoner. He may have behaved impeccably in prison, occupied his time constructively and shown himself trustworthy and reliable with a settled background to which to return.

Inmates must have the right to maintain their innocence in respect of the offences they have been convicted of. It is wrong in law and in principle for the Parole Board to refuse to grant release on parole on the basis that an inmate denies guilt.

In New Zealand for a number of offenders one of the ways they can increase the chances of release is be “confessing guilt”, suddenly because they have confessed, the Department’s psychologists can begin treating them. Often with sex offenders (to take one category of inmate as an example), they will remain without any rehabilitative input from the Department until they confess. This creates  a regime that can be expressed thus: to the Department of Corrections (denial = no treatment) and the Parole Board (no treatment = increased risk = no parole). This serves to place undue weight on the denial of guilt. This approach is wrong in law and in principle as it effectively results in denial = high risk = no parole.

While a denial of guilt and failure to show remorse are factors to be taken into account when assessing risk, the policy must have some sound scientific evidence from which it is based.
Otherwise the policy of denial = no treatment = high risk = no parole becomes an arbitrary and unprincipled fetter of the Parole Board’s discretion and the continued detention of the Applicant will be arbitrary and in breach of his or her rights under the New Zealand Bill of Rights Act 1990 (if applied here) and the International Covenant on Civil and Political Rights.

Now in relation to the Corby case, I don't have all the evidence. But she was either set up or was very stupid. As a matter of principle though I do not believe that release on parole should ever be linked to the inmate agreeing the state "got it right." Say in the David Dougherty abduction and rape case, if the DNA exonerating him was discovered after he had to agree that he was guilty to obtain parole. This would see the state saying there is no need to quash his conviction as he has confessed. This would mean the actual perpetrator would remain untroubled by a state that sits back smug in the false comfort of a compelled confession.

[1] Michael Naughton. Why the Failure of the Prison Service and the Parole Board to Acknowledge Wrongful Imprisonment is Untenable. The Howard Journal v.44 No.1 1 February 2005. pp.4.