MandM: Jurisprudence

Showing posts with label Jurisprudence. Show all posts

Thursday, 23 July 2009

In Defence of the Partial Defence of Provocation

The case we have all watched in horror playing out in the news is over. Clayton Weatherston has been found guilty of murdering Sophie Elliot and his attempt at the partial defence of provocation was rightly shown the contempt it deserved by the court. At MandM we maintained our standard policy of refusing to comment while a trial is in progress but now the verdict is in we will add our voices to the debate raging in New Zealand over the partial defence of provocation.

Like everyone, we found it sickening to watch the narcissistic Weatherston trying to paint his victim as evil in an attempt to have his brutal stabbing and mutilation of her rendered manslaughter instead of murder. Watching her brave mother, who not only testified but who tried to stop him stabbing her daughter, suffer through the ordeal of the trial, made all the worse by Weatherston's desperate attempt to save himself from the consequences of his actions, was awful. As a mother I cried with her. No mother should have to bury her daughter much less witness her daughter's murder and then sit in the same room with her killer as he spent days in the court room trying to spin his actions into something understandable.

However, likewise, no accused should lose their right to due process, to a fair trial, just because this accused was so obviously guilty and so obviously wrong and utterly reprehensible in his attempts to suggest that his culpability should be reduced. The Weatherston case was open and shut murder. However, not all cases are this clear and some people are falsely accused and some accuseds should succeed with a partial defence of provocation. If we remove the partial defence of provocation because of our disgust at Weatherston and what he tried to argue in the courtroom and how deeply we feel for Mrs Elliot, we would do a far greater wrong.

Accuseds will often try to raise defences for which, if they are being honest with themselves they should not be trying to raise; however, if we remove a defence because we do not like witnessing these attempts, we will be removing it for those whose actions did amount to provocation, who do deserve the lesser charge of manslaughter.

For example, imagine if Mrs Elliot, on breaking down the door to Sophie's bedroom and witnessing Weatherston stabbing her daughter's dead body, had, after calling the police and having a minute to think it through, gone back upstairs with an axe, smashed the door in and hacked Weatherston to pieces. She would have faced murder charges and she would not have available to her a defence of self-defence, her daughter was already dead so she was not defending her, Weatherston wasn't cornering her and threatening her and the force she used was arguable disproportionate. Neither, would she necessarily be guaranteed a defence of temporary insanity. Her best option would be to argue for the partial defence of provocation.

Would you want her to not have that option, to be stuck with murderer as her label? Surely, even though we can all appreciate hacking Weatherston to death with an axe at that moment would have been wrong, we can at least see that the level of blame we as a society should attach to the likes of Weatherston, should not apply to the hypothetical, axe-wielding, Mrs Elliot in my scenario.

Not all killing is equal. We can tell the difference between an accidental death and a pre-meditated killing. We recognise that there are degrees between these two extremes. We also recognise that sometimes murder is understandable, even if not completely excusable; this is precisely why we have the partial defence of provocation.

The person who reacts to discovering an intruder in their child's bedroom by repeatedly bashing them over the head with a cast-iron frying pan is not on par with a serial killer. These degrees are recognised in both the sentences the courts hand down and the convictions placed against the actors names and it is important for justice that the police, the courts and accuseds have this range of options to measure a person's actions and intentions against when they grapple with the evidence and the events and circumstances surrounding a homicide.

People accused of criminal acts, who are not prepared to face up to what they have done and accept the consequences, will always try to run any kind of far-fetched defence they can dream up in a desperate bid to get off. Had Weatherston not had provocation as an option he might have tried self-defence or a complete denial of guilt and you would have seem very similar attempts to smear the victims playing out on the news as he tried to run with these options; likewise if consideration of provocation is moved to sentencing. The only way you can get rid of attempts to smear the victim and the pain the family of the victim goes through in a trial is to completely get rid of trials and summarily convict all accuseds. What Mrs Elliot and Sophie's family, friends and memory went through, terrible as it was, is nevertheless, the lesser evil.

The system worked. Weatherston’s attempt at provocation rightly failed and in making that attempt he made himself look worse and his victim gained more sympathy, distasteful as the process was. Further, we all understand as a community that the court was right to deem this man a murderer. John Stuart Mill was right, truth becomes more evident and thus, more valuable, when it has been permitted to grapple with falsehood.

RELATED POSTS:
No Defences Permitted For The Accused

Thursday, 2 July 2009

The Foreshore and Seabed Repeal: The Inconvenience of Due Process

That the state is not above the law but also subject to it is surely one of the foundational concepts of any just and free society. This notion has found its place in the writings of many influential philosophers, jurists and theologians, it can be found in the constitutions and bills of rights of most nations. Citizens trust their governments to wield their power accordingly and when our governments do not, when they abuse that trust, even if they wield their power against some small group whose cause we are not that into, we need to care about it and hold them to account.

In 2004 the New Zealand Labour Government passed the Foreshore and Seabed Act. At the time both Matt and I were absolutely opposed to its passage but we felt like lone voices in the wilderness in our own community and that saddened us. Christians will happily protest laws that affront issues like marriage, sex, drugs, alcohol and parenting but on issues like freedom and civil liberty our voice is all often too quiet.

Part of this is that we are not as educated a culture as we once were, we don’t know our history or properly understand our theology, we don’t value our freedom or understand how it works or why it is important to defend it even when we don’t feel like it is us under attack but we need to.

A lot of people don’t even understand Foreshore and Seabed issue; they think it was about who owns the beaches and that the law was necessary to protect our beaches, our kiwi way of life. In Any Requests? Anonymous asked, “Why should the government potentially allow access to the beach denied to all New Zealanders?” The Ministerial Review Panel found that this concern was not limited to our anonymous commenter:

Three key issues emerge from our review of submissions to the Select Committee which considered the Bill in 2004: public ownership, access and navigation, and protection of Māori customary interests in the foreshore and seabed. In our view, these issues remain at the very heart of ongoing concerns about the legislation.[1] [Emphasis added]

In all the submissions the amount that focused of the real problem were so negligible the panel didn’t list them. The majority missed the fact that this Act was passed to prevent a group of New Zealand citizens from taking a case to court, instead they wrote submissions about how that would affect them. The Act was and remains, a blatant breach of due process.

Nevertheless, the passage of this Act had widespread support. Although the National party (then in opposition) voted against it, they ran a campaign promising to keep the beaches for all New Zealanders. Within the media and amongst society, debate about the Act was focused on the merits of the court case; totally missing the point that legislative denial of due process is wrong regardless of the merits of the case being brought.

At this point a brief history is necessary due to the widespread misunderstanding about the case itself. In June 2003 the Court of Appeal handed down its decision in Attorney-General v Ngāti Apa [2003] 3 NZLR 643. Public interest in this case was triggered by the reaction of the government to its decision and the way the media reported its significance.[2]

Eight Maori tribes claimed that the foreshore (the land between the high and low-water marks) and the seabed (the land below the low-water mark) of the Marlborough Sounds in the South Island of New Zealand, was "Maori customary land" (a Maori jurisprudence concept which is not the same concept as our western notion of fee simple ownership.) The tribes were not sure if the Maori Land Court, which is the court set up to hear historical Maori land claims against the government, had the jurisdiction to hear their case. There was dispute as to the effect of statutes regarding land and Common Law confusion over land ownership where that land is covered by water. The tribes went to the High Court to ask if they could take the case to the Maori Land Court and the case worked its way up to the Court of Appeal.[3]

In summary, the Court ruled that:
the Crown was wrong to contend that certain statutes affecting the foreshore and seabed had had the effect of extinguishing such Māori customary title as might exist; and
the Māori Land Court has jurisdiction, under Te Ture Whenua Māori/Māori Land Act 1993, to determine whether any part of the foreshore and seabed is still Māori customary land.
While the decision gave rise to uncertainty regarding the “ownership” status of the foreshore and seabed, it also confirmed that this could be tested in the Māori Land Court. However, rather than let that process run its course, the government decided to legislate. The Act vested in the Crown title to all foreshore and seabed land not already in private ownership. It also made some provision for Māori customary interests to be recognised in limited circumstances.[4]

This case was about whether or not the Maori Land Court had the jurisdiction to hear a case. The case was not a ruling on whether the foreshore and seabed belonged to Maori or the Crown. This was a key issue that the media, the politicians and the public missed at the time.

The ex-dean of the University of Waikato's Law School, Margaret Wilson, was the Attorney-General at the time the Court of Appeal was deliberating. She had advised the government that there was no way the Court of Appeal would rule in favour of the appellants, she was not alone in that view, the majority in the legal profession thought that. She was wrong.

When the government realised the error they realised there was a risk that ownership and access to the beach in the Marlborough Sounds area might be able to be handed to Ngati Apa, if the Maori Land Court heard the case and ruled that way. The political fallout from this was not something they wanted. New Zealanders love the beach. We are a small island with a lot of beautiful coastline; we all have summer memories that involve our coastline. The backlash against the government could be disastrous, the opposition could have a field-day, they may lose the next election... So they played on that fear and also on the impatience many have towards historical Maori land claims, the 'gravy-train' mentality, and they rammed through legislation that prevented the case ever being heard.

The problem is that the right to due process trumps the right of the general public to enjoy the beach and the right for a government to not have negative media. If, in fact, Ngati Apa did have a legitimate claim to ownership then as much as we love the beach, the beach ain’t ours.

Usually at this point in a discussion on the issue I am asked if I am Maori to which I throw my hands up. No, I am not Maori. It is just that I get the fact that just because I like something and enjoy it, it doesn’t make it mine and it doesn’t mean I can keep it when it is brought to my attention that it might belong to someone else. We can apply this to other spheres of life, we need to be willing to apply it even to big issues like this one.

Another point to keep in mind is that Ngati Apa never got their day in court. It is not clear that they would have won. Many legal scholars felt they did not have a case – as we keep trying to point out in the smacking debate the mere fact someone can raise a legal issue does not mean they will always succeed - but they should have been allowed to try.

“Public ownership, access and navigation and protection of Maori customary interests in the foreshore and seabed” are all implications of what might have been at stake had the case proceeded. Due process for Ngati Apa and the other tribes was taken by the passage of this Act.

Fast forward to 2008. A new National government was elected, a confidence and supply agreement was drawn up between National and Maori Party (a party formed in protest to the Foreshore and Seabed Act). Policy concessions included National offering a review of the Foreshore and Seabed Act. At the time we were very pleased by this fact but less so by the detail and blogged to that effect; “It is a shame to see that National has not framed the issue in terms of the affront to due process and instead is talking about all New Zealander's being able to access the beach, as if that is somehow more important than human rights.”

Our fears were not unfounded, in addition to the claims made by some commentators that the specially created Ministerial Review Panel was stacked and directed as to which outcome to arrive at, the terms of reference were utterly wrong:

a) What were the nature and extent of the mana whenua and public interests in the coastal marine area prior to Attorney-General v Ngāti Apa [2003] 3 NZLR 643

b) What options were available to the government to respond to the Court of Appeal decision in Attorney-General v Ngāti Apa [2003] 3 NZLR 643

c) Whether the Foreshore and Seabed Act 2004 effectively recognises and provides for customary or aboriginal title and public interests (including Māori, local government and business) in the coastal marine area and maintains and allows for the enhancement of mana whenua

d) If the Panel has reservations that the Foreshore and Seabed Act does not provide for the above, outline options on what could be the most workable and efficient methods by which both customary and public interests in the coastal marine area could be recognised and provided for; and in particular, how processes of recognising and providing for such interests could be streamlined
The Panel will also need to consider how these processes will integrate with legislation that regulates the coastal marine area.

Effectively the panel is acting in the place of the Waitangi Tribunal, the appropriate, already existing, independant investigative tribunal that examines the evidence and makes recommendations. The government is expected by everyone to and has already indicated it probably will follow the recommendations being made by the Ministerial Review Panel as it would be 'too costly for it to go back to court.'

Basically the government looks set to settle this case, out of court, on our behalf, when it is not clear that the government are guilty and not that long ago they denied a case existed on the part of Ngati Apa and many legal scholars agreed with them. Historical Maori land ownership claims are very difficult to prove. There were no deeds or titles issued in pre-european New Zealand and records consist of tribal stories, songs, carvings and so on. To succeed in an historical claim, even if a tribe could establish which part of land their ancestors had used and no other tribe was prepared to offer a counter claim to the land, the land in question has to have been in continual use by the tribe making the claim from at least 1840 through to the present day (unless it was unjustly dispossessed). Not only is it very possible Ngati Apa may not have succeeded, there would not be a huge risk of floodgates because each tribe would need to be able to establish this long chain of use and ownership of the foreshore and seabed in the area their ancestors historically lived.

Regardless of which party is in power, the New Zealand government seems to be happy to have the land of its citizens taken without due process as long as it furthers their political popularity. The former government was willing to suspend due process of one group of citizens and unilaterally declare that the land in question belonged to a second group of citizens. The current government is willing to unilaterally declare that the land in question belongs to the first group of citizens and not the second group and again it seems they will not going to allow a court to hear the evidence.

The Ministerial Review Panel said sending the case back to court would be "protracted, laborious, and expensive" and the politicians appear to agree. It's funny how selectively that card has been played of late, it wasn't too expensive to create a special Ministerial Review Panel that duplicated the services of the existing Waitangi Tribunal and the Maori Land Court but apparently now everyone is concerned with cost. Due process is too expensive apparently; tell that to the authors of the Magna Carta who wrote:

"No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."

Due process is a concept enshrined in constitutions around the world - the Fifth Amendment of the US Constitution states, "No person shall be ... deprived of life, liberty, or property, without due process of law ...." and in New Zealand: the Treaty of Waitangi, the Bill of Rights Act 1990 and the body of Common Law arising from the Magna Carta itself gives us the same legal rights.

The government does not have the right to settle land disputes, where that land is held in trust for its citizens, without due process being observed. It was wrong when Labour did it and it will be wrong if National proceeds to do it.

Send the case back to court. Sell the state owned television company if you need to fund it - a society where I can get 'free' entertainment but it is too expensive to uphold justice is a society with its priorities backwards.

[1] Summary Report of the Ministerial Review Panel on the Foreshore and Seabed Act 2004, 4.
[2] Ibid.
[3] Attorney-General v Ngāti Apa [2003] 3 NZLR 643.
[4] Ibid.

Thursday, 11 June 2009

David Bain 111 Call "I Shot the Prick" - Court Decisions Available Online UPDATED AGAIN

Did David Bain tell the 111 operator "I shot the prick" on discovering the dead bodies of his family?

This evidence was originally suppressed “until completion of the re-trial” as, per Wilson J,

The probative value of the disputed sounds is very modest, but the risk of prejudice resulting from their introduction into the trial is very great. There is more than a minor imbalance; the scales come down firmly on the side of exclusion of the evidence. Even if the disputed sounds were admissible under s 7, they should plainly be excluded under s 8. [of the Evidence Act 2006]

However, as the trial is now over, David Bain had sought to have the suppression continued “until further order of the Court.” Fairfax New Zealand Limited and Television New Zealand applied to set aside the suppression orders. In a judgement issued this afternoon David Bain lost his appeal to continue the suppression (see David Cullen Bain v The Queen [2009] NZSC 59 to read the three page judgement of the Supreme Court which explains why the suppression order remains lifted; effectively there was no clear and compelling reason to continue to offend the principle of openess and the right to free expression).

Due to this decision the original suppression case has now been made public and was also released this afternoon. Now you can read David Cullen Bain v The Queen [2009] NZSC 16 and find out why the court decided on 6 March 2009 that the disputed evidence (the alleged "I shot the prick" part of the 111 call) would be excluded and that part of the call would be excised. (Full transcripts of the various interpretations of David Bain's 111 call are included in the reported decision.)

Extract from the decision of Supreme Court of New Zealand on the appeal to suppress the evidence, per Elias CJ and Blanchard J at paragraphs 3, 4 and 5:

... The presence of the disputed admission was first found by Detective Ward, when he reviewed the recording, in preparation for the retrial, in July 2007. At that time he listened to the recording at a commercial sound studio in Dunedin. Mr Dempsey, the ambulance officer who took the call, had not heard the disputed words and did not suggest their inclusion in the transcript originally prepared in 1994. In October 2007 he was asked to recheck the recording after being told of the words which had been discovered. In listening to the recording with that knowledge, he heard the words “I shot the prick I shot” and was “stunned that I hadn’t heard the words previously”.

Because of the discovery, the recording was sent for analysis to the United Kingdom to forensic consultants, expert in analysing recordings of speech. It was also analysed by experts for the defence. There is very little difference between the experts as to their findings. The opinions constitute evidence extrinsic to the recording itself upon which the decision to admit the recording was based.

Although it is necessary to refer to the forensic opinions at some length later in these reasons, they may be briefly summarised for present purposes. None of the experts is able to say that the sounds relied upon in the recording are words, rather than meaningless exhalation of breath. If they are words, none of the experts is able to say that they amount to the words the Crown wishes to rely upon as evidence. Some consider such words can be heard in the recording, with effort. But all experts caution as to the dangers of hearing something that may not in fact be there, because of accident in arrangements of sounds. ...

After examining further evidence in detail their honours start to hone their thinking, at para 54,

Three reasons weighed principally with the Court of Appeal in concluding that the evidence of the disputed words on the recording should be admitted. They were the fact that the “hypothesis” was “open” on the expert evidence; the fact that the appellant spoke on an exhaled breath without vibration of the vocal folds when giving his telephone number; and the “contextual sense” of the sentence, which left it open to the jury to decline to accept that the sounds had been made by random movements of the tongue and lips in an exhaled breath. ...

Then they conclude at para 67,

... The prejudicial effect on the proceeding could be profound. The jury would, as Mr Raftery acknowledged, be entitled to find the accused guilty simply on the basis of an inculpatory statement unable to be proved to the satisfaction of experts or, in their estimation, of lay people. ...

Finally at para 68,

... For these reasons, we consider that the disputed sounds are not admissible. The risks of jury speculation as to the content of the sounds, and the risk of the contentions put forward being available to them, make it necessary to excise the portion of the recording.

JJ McGrath, Wilson and Gault's judgments are shorter and add slightly different angles, all of them agreeing with Elias CJ and Blanchard J, that jurors may not be able to make the necessary complex and extremely important distinctions and that they should not be given the chance to get it wrong.

Notably none of the justices appear to give any consideration to section 14 of the New Zealand Bill of Rights Act 1990 as they are required to,

Freedom of Expression - Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

All suppression orders offend the right to expression; the disputed tape was information, the evidence of expert witnesses were opinions, the Act does not limit what kind or form this expression comes in and the suppression order meant that we, the public, were unable to receive this order. Suppression orders offend both expression and the principle of openness which is grounded to the right to a fair trial also in the Bill of Rights.

As such, the interests of justice must be weighed against the right to expression "and only where the Court's capacity to ensure justice is significantly imperilled will the right of citizens and the media to seek, receive and impart information be curtailed." (Thomas J in Police v O'Connor [1992] 1 NZLR 87, 99) In deciding to grant a suppression order the court must take into consideration the effect of doing so on freedom of expression, alongside its affronts to the principle of openness, and engage in the weighing Thomas J referred to - especially when the court is the highest court in the land, cannot be appealed from and is overturning a lower court's decision. I cannot find where they considered it, let's hope they thought about it even though they appear to not have recorded doing so.

The fact that the previous courts had not allowed the appeal and the Supreme Court did, will undoubtedly open up the arguments around the abolition of appeals to the Privy Council. If you want to see the judgements and compare the reasoning of the lower courts that originally allowed the appeal - you'll want to start with The Queen v David Cullen Bain [2009] NZCA 1 and work your way back from the Court of Appeal to the High Court [the direct link to the pdf of this case won't work so go here and click on the '30 January 2009' decision entitled "CA 571/2008 (PDF)"].

Personally I tend to lean towards the Court of Appeal's thinking on this one, that while the nuances are complex and very important to grasp, managing this evidence would not have been impossible; starting at paragraph 256,

... As to prejudice, the primary risk is that the jury may wrongly construe the disputed sounds as an inculpatory sentence – in other words, may simply get the facts wrong. But risks of this sort – that the trier of fact may get the facts wrong – are an inescapable part of the trial process and do not in themselves usually represent the sort of prejudicial effect which warrants evidence exclusion. It is, of course, the responsibility of the judge to guard against obvious risk (and particularly one that will be more apparent to a professional judge than lay jurors) of misunderstanding. In this case, there is an obvious risk, namely suggestibility, which must be addressed. But providing this happens, we see no reason why the evidence should not be admitted.

As the Judge noted, it is well settled that the interpretation of an item of real evidence, such as a tape-recording, is a jury question: see for example R v Wickramasinghe (1992) 8 CRNZ 478 at 481 (CA) and R v Taylor [1993] 1 NZLR 647 at 650 – 651 (CA). The Judge took the view, with which we agree, that a transcript is not required, given the short length of the conversation (about a minute).

We think it would be best if the jury first heard the tape without being primed, except perhaps with a request that they listen to it carefully and possibly advice (as recommended by Professor French) that they will hear some speech produced on breath. If they initially do not hear the disputed sounds as an inculpatory sentence (which we think is likely given past history [no one noticed this sentence during the first case]) but, once primed, subsequently do hear the disputed sounds in this way, this should provide a graphic indication of the power of suggestion.

The Judge concluded that after the tape has been played to the jury “unprimed”, expert evidence should be received concerning the interpretation of the disputed sounds. We agree.

We have no doubt that in his summing up the Judge will warn the jury of the dangers of suggestibility. ...

I have no doubt that any Judge would have taken this care and I doubt that any jury wouldn't take their duty and their role seriously given the seriousness of the task they were faced with. I find the tone of the Supreme Court somewhat patronising and agree with the Court of Apeal at paragraph 261,

... it would be quite extraordinary for this Court (or the Judge) to deny the jury the opportunity to listen in full to what the Crown can credibly claim is a recording of the account given by the appellant, within 25 minutes or so of the completion of his paper round, of what he found when he returned to the house.

Extraordinary is one way of putting it.

RELATED POST:
How to Find the Reported Judicial Decision on the David Bain Re-Trial

Friday, 6 March 2009

Three Strikes: Proportion and Protection

The Attorney General has identified an "apparent inconsistency" with the proposed "3 strikes bill" and the New Zealand Bill of Rights. This inconsistency is around whether the punishment inflicted by the 3rd strike would be "disproportionately severe."

There have been various reactions to this; the most extreme I have heard came from the bill's proponent David Garrett "So what? Alter the Bill of Rights Act. We've got too hung up on people's rights."

Discussions on talkback and on the blogosphere tend to include the suggestion that criminals don't deserve the same rights as others while others seem to be getting hung up on the apparent disproportionality the bill might cause in some instances and following Garrett's line, suggest amending the Bill of Rights which, in turn, causes some to state that a bill that requires you to amend the Bill of Rights is evidence of a flawed bill.

The clarity many had towards the concept of a 3-strikes bill is now muddied and confused but I don't think it has to be.

First, Garrett is wrong. One cannot get "too hung up on human rights", the first generation type that is, [he has a point on second and third generation rights but then these are not rights and that's probably a discussion for another post] and they apply equally to all including criminals.

Second, no Bill of Rights is beyond question. This means that if the Sentencing and Parole Reform Bill does, in fact, require an amendment of the Bill of Rights to be passed this is not, in and of itself, necessarily evidence that it violates human rights. It could be evidence that the Bill of Rights itself is wrong.

I don’t see why that, in a conflict between a proposed piece of legislation and the Bill of Rights, we should always assume, a priori, that the Bill of Rights is correct. What if a piece of legislation is proposed that conflicts with the Bill of Rights and yet there are good reasons for believing the proposed legislation is just, and in fact, the fault lies with the Bill of Rights?

Suppose that a Bill of Rights authored in one generation was legally interpreted in such a manner that it permitted slavery. A new piece of legislation was then later introduced banning slavery and this was deemed contrary to the Bill of Rights as it affronts the property rights of slave owners. One response could be that previous legal interpretations of the Bill of Rights were incorrect but it could have actually been the case that there was no interpretation error, that Bill of Rights authors and society at the time it was enacted, had no difficulty with slave ownership.

In such a situation surely the clash between proposed legislation and the constitution cannot be dismissed simply by appealing to the fact that the new bill might conflict with the Bill of Rights? Perhaps it would be appropriate to question the action the Bill of Rights was protecting.

That said, I am not convinced the 3-strikes bill does, in fact, conflict so badly with the Bill of Rights that the Bill of Rights would need amending for it to be passed because I don't think that the proportionality doctrine applies to situations such as the ones identified by the Attorney General in his report on the Sentencing and Parole Reform Bill. I think appropriate force for punishment is being confused with defensive force.

The proportionality doctrine is linked to retributivist understandings of punishment. A person is punished because he or she deserves it and to a degree no more than he or she deserves. However, there are times when we incarcerate those we know via due process to be innocent yet are a threat to society. For example, those found not guilty by reason of insanity are commonly deprived of their liberty despite the lack of culpability and therefore lack of dessert because of their future threat to others. This is also true of self-defence. We can use lethal force against another even if they lack culpability for their crime providing the threat is sufficiently serious and immediate etc. The force used in self-defence must be proportionate but not to the past actions but rather to the future threat (this is how self-defence differs from retributive punishment). Quarantine laws would be another example, there are others too.

Clearly, then, there are accepted instances where it would be mistaken to apply the proportionality doctrine. Such cases seem to have common to them the fact that if the person’s liberty were not restrained then a serious and real future threat to life, liberty and the bodily integrity of others from the person being restrained exists.

In the case of the 3-strikes policy the advocates are not claiming that a person who has committed a third crime deserves a harsher punishment, they are claiming that an habitual offender of particular serious violent crimes has shown him or herself to be a credible threat to others and should be incarcerated for this reason. If they are correct, then the proportionality doctrine does not apply.

Wednesday, 11 February 2009

Maori and Pakeha are Not Partners to the Treaty of Waitangi

[For the benefit of our international readership: Maori are the indigenous people of New Zealand; Pakeha is a term used to describe Caucasian New Zealanders; The Treaty of Waitangi is a significant founding document of our nation over which many historical and current differences have arisen around its role, interpretation and application.]

Recently I read a document that stated, “This institution seeks to honour the partnership between Pakeha and Maori that is laid down in The Treaty of Waitangi.” I have seen this type of statement numerous times before in the mission statements of many different kinds of New Zealand institutions. I think this claim is nonsense. Below I will argue why.

At the heart of this kind of statement is the notion that The Treaty of Waitangi (The Treaty) constitutes a partnership between Maori and Pakeha; Maori and Pakeha apparently entered into an agreement which contains mutual obligations.

The problem with this claim is that only persons can enter into contracts. Persons are either rational self-conscious agents, such as adult human beings or legal persons which are an organisation of rational agents into an institutional structure of some sort. One cannot enter into a contract with concrete objects that are not persons such as rocks or trees; nor can one enter into contracts with abstract objects such as the colour blue. One would have thought this was an obvious point which did not need pointing out.

‘Maori’ and ‘Pakeha,’ however, are not persons. Individual Maori people and individual Pakeha people are persons, and individuals of either race can organise themselves into an institution which will have a legal personhood separate from their own individual personhood, but the racial groups ‘Maori’ and ‘Pakeha are not persons.

The term Pakeha is an abstraction, it is simply a reference to an aggregate of individuals who share a particular genetic trait. It is false that everyone who has these genetic traits signed The Treaty. In fact, as The Treaty was signed in 1840, no individual alive today signed The Treaty. It is equally false that simply because someone with the same genetic traits as me at some point in history signed a treaty that it follows that all members of my race signed a treaty.

What is accurate is to say is that two institutions entered into an agreement, the Crown and various Maori tribes. No Pakeha individual can be identified as the crown and no Maori individual can be identified as a tribal group unless the individuals are acting in an official capacity as the agent of these institutions. Hence, no Maori or Pakeha individual is bound by The Treaty; no individual is responsible or culpable for breeches of The Treaty.

Someone might object that the Crown being the head of a representative government acts on behalf of all Pakeha and hence, Pakeha can be said to have entered into a partnership via The Treaty. I think this claim is mistaken. It assumes that whenever a government performs an action one can attribute the actions of the government to any and all private citizens of that government.

This error is precisely the error we condemn when terrorists target a civilian population. When terrorists target non-combatants they assume that because a government has unjustifiably committed aggression against them that it follows that the citizens of that government can be attacked. The principles of non-combatant immunity, however, deny this. If a state engages in aggression then the military personal who act as the state’s agents can be attacked but citizens who are not acting as agents for the state cannot be. They are innocent third parties.

Maori and Pakeha, therefore, did not enter into a partnership at the time of The Treaty was signed, and private individuals from either race have no obligations to each other under The Treaty. To suggest they do is to commit the error of attributing personhood to racial groups as opposed to individual members of that group. It suggests that the actions of one person who has a particular genetic trait can be attributed to everyone who has that trait. The implication of this is that whenever a Maori gang member commits a crime one could justly claim that ‘Maori’ committed the crime. This is of course racist and would justifiably be condemned in any other context. It should equally be condemned in the context of discussions over The Treaty of Waitangi.

Of course this is not to say that Pakeha and Maori individuals do not have duties to each other. The normal duties to not steal from each other or vandalise each others property, to refrain from rape and assault, etc still apply. These apply because these are general duties laid down by God. I am not bound to fulfil them because some other person signed a contract with a third party. Moreover these have nothing to do with race. I have a duty to not steal from a Maori individual because I have a duty to not steal from any human being. The duty would hold whether the person in question was Maori, Chinese, Persian or Tongan. The duty has nothing to do with a historical event in 1840.

Nor are my comments meant to deny that one party to The Treaty was treated unjustly and unfairly by the other. There is probably good historical evidence that they were. My comments simply point out who the parties in question are. They are not Maori and Pakeha. They were the Crown and certain Maori groups.

By all means let’s have a discussion about what the Crown should do to honour its obligations under The Treaty. I have no problem with the idea that a state should keep its obligations to other states and parties. I have no problem with the idea that government should both protect and respect the property rights of its citizens regardless of their race. I also have no problem with courts demanding the state compensate its victims if it can be proven in a court of law that the state has not done these things - one of the insidious features of the former government was its continual rejection of these principles. But stop suggesting that Maori and Pakeha are “partners” under The Treaty and that they and private individuals have obligations under it. They do not. As Dr Martin Luther King said, individuals should be judged by the content of their character not the colour of their skin.

Monday, 8 December 2008

Moral Issues and Direct Democracy

I have been involved in a discussion over at MacDoctor Moments on various aspects of the abortion debate, though in this post I don't want to talk about that issue. In the course of this discussion Chuck advocated for a policy of direct democracy to decide moral issues and it is this that I want to explore.

Before addressing direct democracy I want to look at the term "moral issue." Which issues are moral issues and which are not? What do people mean when they say this? Every piece of legislation is a moral issue to some extent. When legislators pass laws they have the power to restrict people's freedoms or impose obligations and they have the state to back up these expectations with force for non-compliance. The question as to whether or not they should pass such laws is always a moral one because prima facie it is wrong to coerce others by force. Of course there may be instances were the state is justified in making a particular legislative move but to say that the state is justified is to make a moral claim.

Those who refer to some issues as moral ones and others not, tacitly assume that unless one is talking about sex or something typically associated with moral conservatism the legislation the state passes is not moral. This is a very truncated view of what a person's moral obligations are.

Parliament has a standing practice of not using whips and allowing conscience votes on matters of "moral legislation." There is something almost machiavellian about this because it suggests that governing is an a-moral exercise; that on most issues either an MP's conscience has nothing to say or that an MP has no duty to do what is right but is rather obligatied to follow their peers. Proof positive that MP's have a lot in common with teenagers.

The arbitrary nature of this distinction can be seen in Chuck's examples, he cites the "anti-smacking bill" and "abortion" as moral issues. However, why is smacking a moral issue and assault not? Why is abortion a moral issue and not homicide (or appendectomies if you are pro-abortion)?

Consider taxation, surely one of the most fundamental issues of government. How is taxation not a moral issue? It involves appropriating other people's property, oft obtained by hours and hours of work, by force. Moreover, taxation is often used to support the poor. Surely the method and means of supporting the poor is a moral question.

Chucks reasoning in advocating for direct democracy involves a conflation between what is popular and what is just.

I think it is outrageous that any militant group can force legislation that is opposed by 80% of the people whether it is to do with smacking or abortion.
...
If we had direct democracy on moral issues instead of allowing these issues to be determined by fanatical pressure groups we would have better law.
...
If they [MP's] had a conscience they would support direct democracy and not be so arrogant.

Note the assumption that if the majority support something then it is unjust for any government to pass a law contrary to it. This is clearly false. If the majority supported looting Asian stores on Thursdays the legislature would have an obligation to refuse to legalise this. The government owes a duty to protect the property and liberty of Asian store owners, even if they are a minority, even if the majority demand it. However, Chuck says that it is arrogant for people to suggest that the majority might be wrong.

Now Chuck may seem like a colourful example who takes the whole concept slightly further than most but I think he is a good example of the inherent flaws in the binding referendum movement and his reasoning follows from their basic line of argument. Those who support binding referenda believe that if 51% of the population vote for something then the state is obligated to pass that directive into law. Further, the fact they want it binding is evidence that they think that any legislator who does not do what the majority wants is arrogant and above the people, they just don't phrase it like Chuck but the assumption remains.

However, the whole point of having a legislature is to ensure that justice prevails, not popularity or mob rule. The state has an obligation to protect the rights of all citizens, even unpopular minorities.

Democracy has its problems but it remains the best option. As Wolff argued in his adaptation of Plato's Republic (Plato was much more familiar with direct democracy than any of us are) if you had a medical problem you would consult someone with a degree of expertise in medicine, a doctor; you would not organise a vote on what the public think the appropriate diagnosis is. Likewise, why should those without a degree of expertise, the general populace, vote on matters of state when they are as ill informed about them as they are about medicine?

Of course power corrupts and anyone in a position of power must be subject to checks and balances. The doctor has to answer to the medical council and is ultimately answerable to the Minister of Health. In the same way the MP has to answer to the public and the public has the power to vote them out of office. However, one must be careful to not confuse the right to participate in choosing who will govern with a right to choose which specific acts of government will be passed.

Sunday, 23 November 2008

In Defence of the Defence

Michael Laws has written a strong piece in the Sunday Star times on child abuse which pulls no punches and calls for a return of the death penalty. Most of what he says is spot on (well there is a bit of the 'someone else should be doing something' going on) but this statement is so far off it warrants a response:

... stop buying the liberal excuses. Every blame-shifter, every apologist, every politically correct naysayer is, in reality, part of the problem. They are the pimps of abuse - they condone ill-treatment because they make excuses for the perpetrator.
And I include defence lawyers in that retinue because they whore their intelligence to protect the evildoers. As a rule, criminal defence lawyers have no soul. ... [emphasis added]

Now maybe I took issue with this because of my vocation, but 'defence lawyers whore their intelligence?' Is Laws arguing against due process? Should every accused automatically be assigned an in-intelligent lawyer? Perhaps we should forget about a trial altogether?

Further, 'defence lawyers have no soul?' Is Laws aguing against the presumption of innocence? If the court finds the accused not guilty then we must assume the defence lawyers were right.

What's next? A complete removal of autrefois acquit and autrefois convict (commonly dubbed "double jeopardy") in cases where the public 'know' the court got it wrong?

The defence laywer's job is to present their client's case. The state's job is to present the evidence that the accused is guilty. If the public is to have faith in the integrity of the justice system we should hope that both sides are highly skilled; the standard of evidence must be so high that the court, and the public, are left beyond any reasonable doubt of the accused's guilt, or lack thereof; expecially if we are to consider re-introducing the death penalty.

If the state is competent, and it is patently obvious the accused did it, then the most intelligent defence lawyer in the world will not be able to combat this. When the state bungles a case the last thing we should be doing is booing and hissing at the defence, do we really want to drop the standards and make it easy for the state to get a prosecution? This will give the state far too much power and society far too much uncertainty in the justice system.

We have to remember, as FE Smith points out in the comments section here, that it is not the defence lawyers who kill the Nia's of this world and we must put our faith in the presumption of innocence and in due process because the alternative is worse.

As I have previously argued, the presumption of innocence means, inevitably, that sometimes the guilty will walk and the innocent will be convicted. Whilst no one likes or condones these negative connotations the alternative is worse because the solution to ensuring that the guilty always get convicted is to imprison every accused and likewise, the solution to ensuring the innocent never get convicted is to never convict anyone. The system is balanced to make it difficult to convict, and this is where the intelligent defence lawyer is necessary, because it is generally deemed worse to send an innocent person to jail, or give them a lethal injection, than to fail to punish the guilty.

So we are left having to accept that once a court has heard a case, weighed the evidence and ruled, that's that. Demonising the defence lawyer because, despite the court's assessment, the public "know" this person is guilty (good ol' trial by media) is to give the state far too much power and to give society far too much uncertainty in the justice system. Whilst it may succeed in increasing the chances of nailing the guilty it equally runs the risk of allowing the state, with its vast resources, to hound and harass the innocent.

None of us like the idea that the someone will not be held to account when a child is abused to death but we must be careful we are not calling for anyone to be held to account; what we want is the guilty to be held to account and for that important distinction to be drawn we need good defence lawyers.

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