Will Water Meters Work to Fix the Wellington Region's Water Woes

 

The Grind of Criminal Defence Work

I recently received a call from Police. Someone was being arrested and charged with significant sexual offending. I felt the weight on my chest knowing the enormous stress and long hours that lay ahead if I were to represent them; the pressure that would rest on my shoulders as they placed their future in my hands. 

I went down to the cells at the station to see them. As they spoke I realised I could not act as I was potentially conflicted, as I may know a witness. I approached 12 other defence lawyers, before I could find one, prepared to take the case on. The message was almost the same, "I have had enough of doing this, it is not worth it, I want my life back."

Just how the state really views lawyers who undertake legal aid work can be seen from the following story. Sometime around 2017 the Ministry of Justice prepared a paper for Treasury requesting an increase in legal aid rates, which had been effectively frozen for close on 15 years. The gulf between what lawyers receive for private work compared with legal aid rates was growing wider and wider and it was time to address the gap. I am advised that this was scotched, the prime reason being that the bean-counters felt that criminal trial lawyers' sense of professional obligation and social conscience, meant that they would still keep "some skin in the legal aid scheme".  This view is corrosive of the wellbeing of practitioners, who have to work increasingly long hours to make ends meet, and explains the policy behind the systemic underfunding of the legal aid scheme.

Mechanics are now billing labour at between $100 - $140 per hour. Further, when a mechanic finishes work, it does not follow them home and keep them awake in the small hours. The new rules in relation to fast tracking pre-recorded evidence from complainants, and the increasing burdens placed on defence counsel combined with the low rates of remuneration mean that senior counsel are now leaving criminal defence work. 

I was reminded of this when I attended a "Sexual Violence Legislation Forum" run by the Law Society. A Judge and a giggling academic gave their prepared talks about the changes and how they would help "victims." Bullet points and graphs were displayed. Despite sending in several questions about how this would impact trial processes in reality, these issues were ignored. 

Again Parliament, has foisted wholesale changes upon the criminal trial process, with no understanding of how the changes will impact. These changes will see criminal barristers who represent defendants in sexual violences cases doing a whole lot of extra work with practically no increase in fees. While I and other more experienced practitioners told the Select Committee how their proposals would be corrosive to fair trial rights, it was as if MPs conducted open heart surgery on the failing body of justice while  having their their ears blocked and eyes shut as to the reality of how criminal trials would be impacted in the criminal courts. You can’t keep introducing extra processes with extra work for barristers without proper funding.

Since the loss of depositions, and the log-jam in cases that this change created, delay from arrest, charge and trial has ballooned. Delay has become even worse  post-Covid. A person may be charged today and it will be well over a year before their case actually comes to trial.

In sexual violence cases in order to avoid the stress to 'complainants', which the system now refers to as  "victims," despite the presumption of innocence,  their evidence must be pre-recorded, often a year in advance, very early in proceedings. While the case itself might be listed for trial in a year’s time,  the barrister will have to prepare the case again when it comes to trial for no extra money, but at the front end of the case, they have to get ready to cross-examine a complainant  at the outset.

Worse, before recording the evidence barristers have to attend a “ground rules” hearing and must submit questions for the complainant to be vetted by a Judge in advance.  The reality is that at the start of a case all the disclosure is not available. Often the Crown and or Police are providing disclosure - that is the evidence that informs the case, often right up until the night before the trial gets underway. Now not only does the Crown, with its larger resources, such as staff, Police and forensic evidence face off against a defendant and a sole lawyer lawyer, the defence must now flag their defence at the start of the process, giving the Crown with its greater resources and rates of remuneration time to plug the holes, eroding a defendant's right to silence, and the traditional right to keep their defence under wraps until the trial gets underway in front of a jury.

Nobody wants to cause undue stress to complainants in sexual offending cases. But why is it that complainants in these types of cases are effectively regarded as being inherently more truthful than complainants in other cases, such that their evidence must be pre-recorded months or a year in advance?

Juries, will now no longer see a complainant present their evidence in Court, live. Rather they will receive advice about stress etc. But behind all this is the fact that fair trial rights are being poorly served as a political agenda trumps the reality of how Courts actually work. Lawyers are now  being expected to have locked in trial strategy for defending a client presumed innocent, before they have all the disclosure and before they have had the opportunity to read and consider all the evidence and only after doing that question the complainant. 

I recently was involved in a case of an inmate who had only known a life of extreme violence. When he was a baby feeding at his mother's breast, his father slapped him, out of her arms onto the floor. Growing up as a boy, when he was entitled to feel safe in his family home, he was subjected to what one relative called, "man hidings." Thereafter he was subjected through his developmental years to physical and sexual abuse, which so damaged him, that by the time he was 17 he was in a mainstream adult prison.

He was facing serious fresh charges He had gone through 3 previous lawyers. the trial date was fast approaching. As I reviewed the evidence, it was clear that there was no defence. Around two weeks before trial I had to tell him the bad news - there was no defence. He didn't take it very well. Somehow, my honesty meant that I was an agent for the Crown - taking the easy way out. I subsequently discovered that a "jail house lawyer" had gotten into his ear and had made him suspicious of everyone. This jail house lawyer had self-represented in his own  case, after having been assigned and sacked 21 lawyers. 

Prisons and society are increasingly populated by people who think they know about the law and are more effective that actual lawyers. Often such people believe that law is like some Harry Potter incantation type exercise - you utter some Latin sounding phrases and bars melt, or people will see their point. Anyway, my client asked me to listen to his cell-mate. I then received a 20 minute peroration from someone I didn't know, who had self-represented which such success that he had just himself sentenced to a lengthy term. I was told "you have to  be aware of like - "disclosures" and "double jeopardy" etc. He told me he believed my client innocent and that "if he went down for something he didn't do, some powerful men are going to come down and see me ....". This again is another joy that defence counsel endure. Not only are we attacked in the media for our work, we also face threats from friends of and  sometimes our own clients.

Most lawyers have experienced the bbq or social drinks where some slightly pissed boor will come up, having learned you are a lawyer, suddenly wrestling with an issue that has nagged them for years, will be emboldened, with a sense of excitement, as if they had discovered the Philosopher's Stone only to ask: "How can you defend someone you know to be guilty?" In reality such people often do not want an answer, they really want a launching pad for their views about how lawyers are as bad as their clients and how prison is too soft. Other times, you are asked for free advice on issues ranging from the latest high profile murder, to fencing disputes, employment issues and the like. I once was in a supermarket when I was even approached by an old dear who wanted advice about returning an overdue library book!

In my time at the bar I have seen colleagues burn through their lives as they tirelessly represent clients. I have had friends suicide, drop dead with heart attacks or have break downs. Our professional organisations talk about, "Practising Well", while the pressures of criminal defence work, in terms of compliance measures, timetabling and process obligations increase almost proportionally to the erosion of fair trial rights.

Our criminal defence bar deserves gratitude, not condemnation. The men and women who represent accused people, without regard to economic station or racial, ethnic, or national background, render a vital service to us all. Unfortunately, we often lose sight of the burdens that criminal lawyers have to bear. Without such people we will have a justice system where 'fair trial rights' become increasingly elusive concepts meriting lip service while 'justice' becomes atrophied. It is no wonder that many senior practitioners are voting with their feet already.

AIR NEW ZEALAND AND "COMPUTER SAYS NO"

Air New Zealand has a unique way of measuring success when it comes to customer service. I recount, for example, my experience from earlier this week.

Arriving at Wellington Aerodrome, having checked-in online I found myself standing in the queue to check my bags in with 10 clear minutes before the time to check your luggage in  expired. Unbelievably, the few staff at the booths, all engaged in animated, and it appeared deeply interesting enjoyable conversations with the few customers ahead of me. "Oh, yes, Queenstown is beautiful this time of year……, Yes…… No way…… Brilliant...."  and on and on and on. Next door, a couple who had been married, it appears since Seddon became Prime Minister, were in front, talking animatedly with another staff member for around seven minutes while she struggled to locate hearing aid batteries from somewhere within the depths of a shoulder bag, "Oh, they are so small nowadays," she said, while he  allowed  his dentures  to make clacking sounds  in his open mouth while he reminisced,"I remember when pennies were made of wood… You could buy a house for a pound  back then… clackle, clackle...."

Eventually, I came to the front of the queue, "sorry, you're five minutes late" intoned, the smiling uniform with silken tones. "Yes, but I wouldn't have been, had you not been shooting the breeze with so many people." "Sorry, there's nothing I can do. Tell you what I'll take you over to re-ticketing" she said. I foolishly allowed myself some small glimmer of hope as there was still a good half hour to departure time.  She escorted me across the carpet, over to a booth behind which stood a short fat man, his belly straining to be contained behind a richly embroidered koru decorated waistcoat come corset. "Not another queue", I exclaimed as in front of me was a large German woman who had suffered a similar fate to myself. The silver waistcoat or vizier, as I came to call him, calmly explained, with a degree of sadistic pleasure, that he couldn't help her, but suggested, she rebook on another flight on another day. She muttered that she had never experienced  this in Hamburg or any of the other international airports she had  gone through previously. With what must have been the extent of the vizier's's daily exercise, shrugged his shoulders and walked her over to another counter to purchase a fresh ticket before coming back to me.

My story is retold by the smiling  staffer, who having played her part in what I guess is now a regular farce  walked away, smiling inwardly at my fate. "There's nothing I can do, you were late!" the waistcoated vizier intoned. "But I wouldn't have been, if your organisation actually did their job and checked people in, rather than having detailed lengthy conversations with everyone". "I can't help that" he unhelpfully replied. "But I have a flexi-fare, can't you book me on a later flight to Rotorua today?" I said as I flash my ticket. "No, I can book you a flight for tomorrow morning", he replied all the helpfulness, his I don't give a flying  shit attitude would allow. He didn't even looking at his computer screen while doing this. Unknown to me, there was in fact, another flight, leaving 40 minutes later, that would have seen me land in Rotorua at around 5 pm via Auckland -  there were even spare seats. Yet, he didn't even try ......  "Oh, you are still here, can I help you any more?" "No, you have been completely useless. Air New Zealand could in fact save money by making you redundant and replacing you with a sign that says 'fuck off', it would lead to the same result, but  would be nowhere near as annoying." 

Upon reflection, this waistcoated spokesman for Air New Zealand was a refined version of Little Britain's Carol Beer. I say 'refined' because 'Carol' would at least make the effort of tapping into a computer before telling you, "Computer says no." Air New Zealand has simply refined the process cutting out the  pretence of even looking on a screen, as they focus on communicating a deliberate unhelpfulness and general contempt for the public.

Waka Kotahi's Road to Zero Paved With Bullshit

Waka Kotahi are an opaque bureaucracy that use “consultation” in a way that would make George Orwell the writer of 1984, rub his eyes. Their recent “consultation” over speed limits of State Highway 2, brought back memories of an Uber driver I once represented. This driver had made the mistake of buying some pushbikes off Trade Me and Facebook Marketplace, that subsequently turned out to be stolen. He was a hardworking young man, and the sole income provider for his young family (a wife and three young children). He did this through working as a driver and buying bikes and other things cheap, repairing and on selling them. Anyway Police initially charged him with receiving stolen property. Eventually the matter was resolved, and he was not convicted. In the  meanwhile Waka Kotahi for reasons they maintained of ‘public safety’ moved to suspend the passenger endorsement on his licence. He could of course, ‘consult’ with them over their decision.

I wrote to the agency asking how could the purchasing in good faith of bicycles, had anything to do with ‘public safety’, especially when he was not convicted and as it turned out, never would be. In short  their  concern was a nonsense. Further, the result of a suspension  would be economic ruin for this vulnerable family. The response I got back, betrayed the level of discretion and compassion of a Dalek. I was told that the ‘fact’ of being charged was enough, and that met their criteria. Having “consulted” they suspended him. I obtained an injunction and had the suspension quashed. Prior to my proceeding with a review, Waka Kotahi sensing defeat, reversed their ‘final’ decision.

 

Waka Kotahi’s bizarre logic can be seen again over their moves to lower the speed limits on State Highway 2 in the Wairarapa. In  late July 2021 Waka Kotahi announced a period  of ‘public consultation’ over proposed speed restrictions in specified zones on the state highway between Featherston and Masterton. The reason promulgated was that in 9 years there have been 488 crashes in which 4 people had died. No further information was provided. The inference being that crashes are bad and people dying is even worse, so therefore the entire population, will henceforth travel at the rate of motorised snails. We are left in the dark as to rate of accident versus the number of commuter trips. Further we are not told about the particular breakdown of what each of the 488 crashes relates to by type of accident. For example a  reversing accident, would have little to do with speed on an open road and would have more to do with visibility and or driver error. Similarly, a driver could suffer a medical event and lose consciousness. Speed limits has little to do with those crashes. 

Waka Kotahi has now issued its decision, again devoid of analysis or perspective (DomPost 13/02/23). To understand the causes of accidents in the specified zones between Featherston to Masterton that occurred over the nine year period it is important to consider the following. As it stands over nine years (Jan 2010 - Dec 2019) to have four fatalities out of 488 crashes is a fatality rate of 0.82%. If there is an average of say 6100 trips per day between Featherston and Masterton, over nine years that amounts to 20,038,500 commuter trips. Which means over that nine year timeframe only 0.002% of trips result in crashes. What does Waka Kotahi’s definition of “crashes” capture, and how does the crash rate compare to other highways? 

 

Obviously, artificially slowing vehicles means less crashes, but it also means less pressure to spend money improving and repairing roads. Anyone driving between Masterton and Carterton over the past two years would have seen the phalanxes of road cones and signs slowing traffic. Driving conditions might actually be safer if Waka Kotahi were to spend a greater portion of their road cone budget on actual road repairs. Many people believe that they are being forced to travel at ridiculously slow speeds just so bureaucrats can  achieve this “Road to Zero” policy goal on the cheap.

 

No doubt the earnest folk at Waka Kotahi mean well, but In the absence of any serious analysis, will the people comply with the changes, or will frustration, propel, more dangerous, driving, behaviour, and yet more crashes?

Trump and "Shit-Hole Countries"

During his presidency Trump referred to certain 3rd world countries as "shit-hole countries." This was ironic. If one looks at these countries, they all have authoritarian leaders, with officials who are appointed based upon their fealty to the leader. These countries have no transparency, crumbling infrastructure, non-existent social welfare and dysfunctional to non-existent health care. They have no genuine open, free and fair elections and lack judicial independence. Science and 'reality' are ignored, with the 'party-line' being preferred. In short the "shit-hole countries" represent the very 'qualities' that Trump sought to impose on America.

The Tory Party has Become the Snake that Eats Its Own Tail

The idea of leadership as service for the good of the majority and the betterment of society appears lost on the Tory Party. 12 years of Tory misrule has seen the growth of toxic nationalism, fuelled by economic disparities, tax cuts for the wealthy and the cruel freezing or underspending on the UK's poorest. This pain was falsely attributed to EU membership and immigration. This led to Brexit, which was promoted as the cure for Britain's woes.

In reality Brexit was the gun to the head of the UK, and the Tories in pursuit of power for its own sake pulled the trigger. Brexit is leading to the evisceration of the UK economy as it now lacks the protections and market influence that the EU membership affords its members. Britain also lost its as of right easy access, to its biggest export market - Europe.

Ironically Brexit, pitched as a sign of the independence of a dynamic UK is leading to the sundering of the UK as Scotland wishes to assert its independence and rejoin the EU. Meanwhile Northern Ireland, the site of years of bloodshed has seen the seeds of division grow again. Protestants remain loyal to the United Kingdom, while many Catholics favour a united Ireland. The sectarian divide is growing, as uncertainty about a hard border with EU member country the Republic of Ireland continues.

Economic deprivation continues to grow, leading to a shrinking of the middle class and driving more anger among those who suffer disproportionally the effects of deprivation. This inequality fuels the growth in extremism, upon which the right appears to feed. Bereft of a long term vision the Tory Party has become the snake that eats its own tail.

In a healthy legal system there has to be a popular respect for the rule of law. The population and its political leaders should ideally abide by the decisions that flow from its courts. 

One of the hallmarks of totalitarian regimes is that Judges are not independent of political leaders and the decisions they often issue in important cases, don't reflect constitutional norms, but rather the wishes of those who appointed them. In such cultures the wishes or the rights of citizens are either ignored or treated as subservient to the wishes of the leaders. In such cultures the population has little respect for the rule of law and judicial decisions are accepted with with a resigned sigh. Our own Court of Appeal recently commented upon the justice system in China, making the following observations (Kim v Minister of Justice [2019] 3 1 NZLR 173)

(i) The right to a hearing before an independent panel or public tribunal: 

Mr Kim has a right to be tried before a tribunal that decides cases on the evidence before it and free from political pressure. There was material before the Minister to suggest that political influence is pervasive in the PRC’s criminal justice system and this is how the system is designed to work. There was also material to suggest that the political influence prioritises social policy objectives over individual procedural protections. 

(ii) The right to legal representation, including the right to present a defence, receive legal assistance, adequately prepare a defence and to examine witnesses: 

there were a number issues in connection with this right including the discretionary nature of disclosure to the defence and the fact that witnesses for the prosecution rarely give evidence with trial mostly being conducted on the papers. More troubling is the position of the defence bar in the PRC. Defence counsel must be able to honestly and responsibly represent an accused person without fear of repercussion if the procedural right is to operate in accordance with its purpose. There was material before the Minister to suggest that defence counsel operate in an environment in which they fear persecution for their representation of their client. 

(iii) The right not to be compelled to testify or confess guilt: 

there was material before the Minister to suggest that Mr Kim could be interrogated for a period of months in the absence of a lawyer.

A justice system that lacks independence from the political process is corrosive of fair trial rights and the rule of law. Similarly a justice system where the results are an outcome of political patronage is similarly corrosive. For decisions to be respected by the population it is important that people understand why decisions are made and to a degree that outcomes accord with principles that the general population accept. 

Part of this also includes the fact that the senior judiciary is to a degree representative of the nation. If judges come to be seen as alien and non-reflective of the values of the nation it erodes public confidence in the courts. This is a legal, social and constitutional matter. 

As a matter of practice, if a potential court user does not have faith in the process, it's reasonable to expect that they will be less likely to bring a claim or come forward as a witness in a case, negatively affecting the administration of justice. 

That a non-representative judiciary is a hallmark of authoritarianism can be seen from our Court of Appeal's observations in Kim (above) 

The Supreme Court of the United States (SCOTUS) is rapidly finding itself winding up in this position now. Through political machinations the GOP are in the process of completing a extreme right-wing super majority in the nation's highest court. What is worrying about this, is that the Republican Party has only one the popular vote once out of the last seven presidential elections. SCOTUS is increasingly reflective in its decisions of extreme right wing views of the fringe of legal thinking. 

Barring a miracle, the court Trump is fashioning will be viewed for decades with anxiety and derision by the majority in a society that has traditionally looked to it as the ultimate bulwark against government oppression. That would be a shame for the court, but it will be a catastrophe for Americans whose liberties will be on the chopping block

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.

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.

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."

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.

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.

Family

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.

Children

“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.

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.

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.

FREE SPEECH AND THE ALT-RIGHT

Should free speech rights protect those who knowingly disseminate false stories designed to cast aspersions upon people of other ethnicities, gender preference, religious or political belief?

During the 2016 US Presidential Election campaign, Info-Wars host Alex Jones reported that Hillary Clinton was sexually abusing children in the basement of a Washington DC pizza restaurant. This concerned Mr Welch, who took it upon himself to rescue these children and armed with weapons including a semi-automatic rifle, stormed the restaurant and having shot open a door lock discovered pizza dough, but no children. Further inspection revealed that the building did not even have a basement. ‘Fake news’ can have frightening consequences. 

New Zealand is not immune from fake news. MP Judith Collins recently tweeted a news link which falsely claimed that the French Government had voted against having an age of consent, as part of a global attempt to normalise paedophilia. Collins went further and challenged the Prime Minister to condemn this. When it was pointed out to Ms Collins, that the story was fake news, Ms Collins, dismissively shrugged her shoulders. Whether something is true or not, was of little moment.

The right to free speech is a right to think whatever you like and even say what you like, without fear of government recrimination. While I believe that, I do not believe that that right includes the guarantee of a platform. There is a risk that falsehoods promoted on a large scale, gain a credence beyond their tenuous link with reality by virtue of the megaphone by which they are broadcast.

Hannah Arendt in Origins of Totalitarianism explained the goal of Nazi propaganda. Rather than promoting refined debate and striving for consensus Nazism strove to present a completely different reality, based upon ideology rather than fact:

“The assumption of a Jewish world conspiracy was transformed by totalitarian propaganda from an objective, arguable matter into the chief element of the Nazi reality; the point was the Nazis acted as though the world were dominated by Jews and needed a counter conspiracy to defend itself.”

These beliefs were articles of faith fashioned to serve Nazism’s goals. They needed to be true to justify the race laws and the concentration camps. These beliefs were not a matter for debate being objectively proven false many times.

As with all authoritarian regimes, the right to freedom of expression is advanced as a tool to gain a platform to broadcast their alternative reality, to gain credence. However, once in power these freedoms can be dispensed with.  Once Hitler assumed power, those papers that had reported against him, were shut down with many reporters shipped off to death camps.

Fascism and here I also include the ‘alt-Right’ use the hallowed rights that are the foundation of democracy, against it. Thus Hitler, Putin, Erdogan and now Trump et al assert the right of free speech for themselves as a tool for gaining power and having done so seek to wrench that right away from everyone else.

Now Fascism seeks to stand on a public platform, asserting equality and being but one side of the argument – in which they argue for race-based theories of intelligence etc. This is not because they love free speech, but because they wish to eventually do away with it.