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Elevating judges and strengthening courts

  • June 20th, 2014

I've been asked if there is anything out of the ordinary in the elevation of Hon Justice Mark Cooper to the Court of Appeal, Hon Justice Ellen France to the presidency of that court, and the shift of current Court of Appeal President Hon Justice Sir Mark O'Regan upstairs to the Supreme Court.

 Justice Cooper is considered to have chaired the Canterbury Earthquakes Royal Commission very well.

I assume that Justice France is expected to be a good court administrator, because I've not heard particular comment about her judgments, good or bad. I criticised her long ago reasoning in the decision that the free speech character of flag burning trumped the terms of a specific statute forbidding desecration of our flag. But judges work where decisions are hard and being considered to have got things wrong occasionally goes with the job.

Justice O'Regan's move after a short time as president of the Court of Appeal is the most significant.

He could help transform the Supreme Court into the leading court it should be. At present practitioners commonly expect better decisions from the Court of Appeal, though of course there are exceptions.
There is a range of reasons for a comparative lack of respect for the Supreme Court. Among them has been an apparent lack of engagement by its members with each other's reasoning in decisions.
Together they've contributed confusion instead of clarity to what the court below has said. It looks like a problem of organisation and willingness to be lead, not a problem of individual quality. Indeed the Supreme Court will lose a very good judge when the Hon Justice McGrath leaves early next year.

But overall there has been a collective judicial failure at the highest levels to accept that they have both the responsibility and the power to deal with the disgraceful delay, expense and ineffectiveness of many justice processes.

Take the routine decisions this week in the Blessie Gotingco murder case. It is striking that there has been only resigned public acceptance instead of outrage over three absurdities in the system:

a) the trial being set down for March next year. Why? When I began practice, murder trials were routinely completed, with all appeal rights over within 6 months of the murder, as the late Greg KIng confirmed when I challenged him to check my recollection. What about the injustice of 9 months in custody if the accused is innocent? He will not get bail. There are many excuses for such delays. The judges call them reasons. Whatever they are, they have multiplied on this generation's watch. There is enormous self indulgence in the courts' leisurely pandering to offenders and lawyers. Parliament cannot discipline these system insiders with constitutional safety. Constitutionally the courts should be self-cleansing. Instead this generation of judges mumbles complaints about interference when Ministers try with limited effect to tell them the public will not tolerate more resources applied while the output is less and less satisfaction that justice is being done.

b) the accused's name is suppressed till the trial. Why? It is widely known. Anyone in the Court when he appeared could readily identify him. When his trial commences the jury members will quickly learn from their smart phones his record and the justice system failures with respect to him. Or they'll get it from google on their first night home. The courts have long known that the days are ended when they could fondly believe that jurors were empty little black boxes, taking account only of data drip-fed into them by the court. Our times are more comparable with when juries were established. They were originally a sample of neighbours who were likely to know enough of the accused already to decide on his veracity.

c) it is likely that the accused should never have been free to commit the murder. Many violent offenses are committed by people who would have been locked up if  judges were obeying the statutory requirement that the worst offenders receive the maximum sentence, and were applying the full sentencing range in a normal curve below that. It is likely that he would not have been out either, if they had not acquiesced in the parole system making a mockery of their sentencing

The Gotingco hearing this week is not so far an example of indifference by the courts to wasted expense, but that could yet come.

I hope that judges like William Young J, and Sir Mark O'Regan will use their time at the top  to take charge and transform the parts of the system within their control. They must restore faith in its common sense. A really simple start could be to pick up a suggestion I've made often, returning to what was routine when I started practice. That is to  increase substantially  the sentences of people who make insolent appeals. The lower courts and the victims would soon be free from the burden of watching ritual meritless appeals, if the courts appropriately treated offenders for their lack of  remorse in not humbly serving the sentences they are given.

A great start to restoring confidence in the courts would be for Mr Ross, the fraudster, to find his sentence increased to the maximum, with a 100%  non-parole period. .

Comments

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  • Chuck Bird
  • June 22nd, 2014
  • 8:38 am

We should first focus on restoring confidence in the District Court and best why that can be done is for judges to be held accountable and not have tenure.

We should not have to rely on appeals. District Court Judges should get things right more often the first time. Their honesty and integrity should be beyond question.

They should be legally obliged to put all their decisions in writing with their reasons and that should include all minute/directions.

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  • dragonfly
  • June 23rd, 2014
  • 7:23 pm

Stephen, do you happen to know why this guy Ivan Campbell did not get preventive detention, but instead is soon to be released on parole?

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11279292

It seems likely to me that in the future someone (probably a teenage boy) is going to pay a terrible (but preventable) price because of this man being released (just as Blessie Gotingco and her family did). I can’t bear it, really.

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I have some proposals if you want to increase the speed of trials:

ban forensic evidence.
ban wiretap, remote and computer surveillance and searches.
mandate modes of evidence (either all in court, or automatic right for video evidence, screens etc.)
ban propensity evidence (including evidence of previous convictions).

There will be other things that can be done for specific classes of case that are particularly problematic, but this will make a big difference.

Not saying I support the measures, but these are things that used not to exist, and while they won’t be the whole of the problem, they’ll play a pretty big part of it, I suspect. These things time up an inordinate amount of court time in comparison to what they replaced.

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  • Tim Cook
  • July 4th, 2014
  • 9:06 pm

Can you please give me the references of some of the cases where appellate courts substantially increased the sentences of people who made insolent appeals?

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I do not have the time Tim, to go and look for them. I did not practice at the right level to have personal experience, but I checked my recollection in 2003 when I moved amendments to a Bill going through (to validate a whole lot of dismissed appeals found to be improper by the Privy Council). The amendments would have given our courts the power exercised by the UK Court of Appeal, to stop the clock on a sentence while holding the appellant in custody, during the appeal, if it was found to be without reasonable foundation.

And before publishing that post I checked with a very experienced former prosecutor. He confirmed my recoolection, mentioning in particular the crusty court over which North P and Turner J reigned. He said they would commonly tell counsel in barely disguised code that they were likely to increase the sentence. If counsel did not take the hint and withdraw the appeal, the sentence would be increased at the end.

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