The saddest thing for us all is the response from spokespeople for the Samoan community so far, and Labour.

Labour should have formally apologised to those they accused of "muckraking" ( I was among them for asking for an independent investigation instead of Clark’s fake enquiry) and sworn to return to bi-partisan upholding of core honesties after the dark years of the Clark morality. 

Corrupt abuse of power is normal for most cultures, at most times. Indeed in most cultures a failure to put the interests of your own family above all other duties is regarded as immoral. Those societies are condemned to the routine abuse of power .

We are the lucky inheritors of the culture of one of history’s few but stunning exceptions. This hard won acheivement depends on continual reinforcement of the ethic of stewardship and self denial. It needs periodic refreshing with example cases. The example scapegoats must be formally denounced then shunned with a uniting of factions to show adherence to the underlying common value.

Such a vital but ‘un-natural’ value demands constant patrolling and re-definition of the boundaries. That process allows successive generations to refresh their committment.

The current beat-up over Ministerial housing allowances is an example. It gains its force because of our need for symbolic distance from personal profit from publicly conferred coercive power. We fight insidious weakening of  the trust nature of  power with emphatic claims whenever the boundary is approached. Almost no nonsense will be over the top when it is an assertion of ‘horror’ at the possibility of personal or family profit from the exercise of public power.

But New Zealand has an achilles heel in this area. Sadly for us, Maori and Polynesian cultures have the normal expectation that bosses will take personal and family benefit from power. 

I think wariness about that may be a partial explanation of the otherwise baffling and self damaging failure by the National Party to place Sir Wira Gardiner on its Board over the weekend. His extraordinary management drive and ability are sorely needed. His mana would have been strategically valuable. I detect no racial antipathy among National people, indeed the opposite.

But there was worry about what could result from the combination of Hekia Parata’s position within caucus and a powerful husband on the Board.

For me the need for his competence on the Board outweighed that worry so he was No 1 on my ballot paper, but I acknowledge the legitimacy of the concern.

Our vulnerability to Polynesian tolerance of corruption is doubly worrying when there has been no purging by Labour of its complicity in Field’s defense. Clark’s handling of the issue was despicable. When our core values needed reinforcing she was AWOL. Pity the UN, where corruption is one of their biggest problems and they have a boss with her instincts.

And National is close to the Maori Party. Much as I like Tariana Turia’s qualities, I can not forget that she took Donna Awatere to her bosom when Donna was shown to have abused trust and her office, then did the same with Field when Labour was finally forced to distance themselves from him. Her only explanation was brown solidarity.

Sadly there can be no confidence that NZ will retain its clean politics until we have some strong Maori and Polynesian leaders who will denounce corruption even when it is brown, and claim their shared inheritance of our rare north European political morality .

[I’ve just seen David Farrar’s withering posts on this issue. If we had a fifth estate worthy of the name they’d put aside their  campaign against Bill English for as long as takes to extract some apology and undertakings from Labour, and they’d be asking the Maori Party for some vigorous cleansing words as well]

There should be one change to the policy announced  by the Hon Bill English last week for overseas investment approval tests ( to replace Dr Cullen’s  undefined ‘strategic asset’ test).

Mr English proposes to be transparent in future. Sometimes there are good reasons for a veil.

Bill English’s other big speech last week was all about that, as he sadly acknowledged that borrowing an extra $40bn to prop up living standards in the meantime was at best stepping backward to launch forward.

[This is a slightly cut down version of a comment published in the DomPost on Monday 27 July. I’ve since had only comment supportive of the need to reserve power to reject without transparency, at least where the applicant has sovereign characteristics]

I will not look a gift horse in the mouth by complaining about the warm DomPost mention of our new firm Franks & Ogilvie in  this story.

I’ve been surprised that no-one else has welcomed the prospect of getting some of our head offices back, as an upside of the global banking panic. I do not go along with the idea that overseas ownership does not matter. Of course control matters.

Some degree of foreign ownership is valuable. But it demoralises when it goes past a tipping point, simply because we’d rather sell assets and borrow than live within our means. A society of servants and tenants working for absentee bosses and landlords is not what  I want for me or my children.

This recession is a chance to help reverse the trend.

But the report also says Franks & Ogilvie will charge $600 per hour. I wish.

In fact the Franks & Ogilvie website sets out our approach to fees in much more detail than any other I’ve seen.  We’re negotiable. We believe in markets and scarcity pricing. Try us before we get too busy.

My former Chapman Tripp colleague, Rob Ogilvie, and I have established a new law firm – Franks & Ogilvie.  We’re fully operational from tomorrow, at 2 Woodward Street in the heart of Wellington, looking over Midland Park across from Astoria Cafe.

The other partner in the firm,  Rob Ogilvie, worked with me in Chapman Tripp before becoming a senior in-house lawyer with Telecom. He led Telecom’s negotiations with the government last year over the compulsory separation that has created Chorus.

• Directors who want a second opinion after being scared into paralysis by legal warnings and complexity,
• Businesses threatened by new law coming down the parliamentary track, looking for ways to improve it or derail it;
• People wanting to cut through to the key alternatives in complex multi-party negotiations,
• Cousins arguing over the family  business and looking for a shareholders agreement to take them out of deadlock
• Investors wanting to know their real balance of risks if they have to ignore some parts of securities law to raise capital
• People wanting an objective opinion on their chances and the balance of costs, risks and benefits in a lawsuit.

• commercial lawyers,
• company directors,
• in Parliament,
• a regulator,
• government advisers,
• in-house counsel, and
• commercial negotiators. 

All the large top flight firms have major clients with strong and sometimes conflicting interests in the outcome of public law advocacy. 

We see a real gap for public law legal advice tied to deep commercial experience.  Sir Geoffrey Palmer left Chapman Tripp in the early 1990s to set up Chen and Palmer but we have an additional element – we both start and end with a career-long interest in business law.

What a pleasant surprise a few months ago to find that the DomPost’s Saturday magazine "your weekend" was both readable and worth reading.

Over recent years I’ve made it easier to get productive on weekends by tossing the newspaper magazines into the bin with the supermarket flyers. More often they’re simply put aside for the women in my household. It took me some time to realise that they were simply mini women’s magazines – written for narcissists, rarely straying from advice on skin, health, clothes, films, books shows and music to like or pretend to like if you need to seem ‘contemporary’,.

But  your weekend has  upset my efficiency. It cunningly includes stories on things I’d like to know more about. Mark Wilson’s editorials, and Mike Crean and Michele A’Court can throw in lines and snippets that elicit "precisely" (though Michele went over the recommended weekly intake of food for thought on the results of touring performers’ lack of access to washing machines).

This weekend’ copy has taken the magazine to new heights. It has become a must read. I’m condemned  to an extra 10 minutes per weekend, looking for those nuggets. 

The standout features this week are its cover story and a writer interview on the book page.

Margie Thomson’s ‘Thrill of the chase is a balanced, beautifully written and illustrated explanation of what makes hunters so passionate about hunting (pigs in this case but it catches the essence of hunting generally). The dogs pictured tell me more about my dog’s genetics. The story reminds me to get through the paperwork and tidy up trapping me here instead of at the farm for weekends.

Philip Matthews’ interview with Brian Boyd avoids the tone of ‘nose holding’ tolerance reviewers so often affect when profiling NZ intellectuals without left wing cant as their creative well-spring. This brief interview even refers without distancing the reviewer, to my friend Denis Dutton. He and Brian Boyd must be now New Zealand’s internationally best known and most influential  intellectuals.

In May 2008 I posted on why the trial of Sophie Elliott’s murderer meant so much to Cathy and me.

"Cathy and I spent several hours with the Elliotts at their home in Dunedin after the graduation ceremony where Sophie’s brother accepted her certificate. My son had travelled with Sophie and another girl in Australia shortly before Christmas."

Cathy attended the trial and Gil and Lesley used her parents’ flat in Christchurch for the trial, after the Court ordered that it be held out of Dunedin. No one compensates victims for the resulting costs..

So I’m sorry I did not discuss with them before now how the law should be changed. Of course they want  to ensure that future families do not have to suffer helplessly for weeks while a monster attacks his victim in court.

I understand why they feel as they do but I disagree with their prescription.

The troubles with abolishing provocation, for families in the Elliotts’ position, are:

a) it could absorb all the political energy that should otherwise he going into the real scandal – the delay before trial, the huge waste of resources on it

b) it will do nothing to increase the rights of victims to be heard in court. One scandal in criminal justice is that they have no standing in court to challenge Weatherston’s lies. That is not the prosecution’s task. We should have the French system’s recognition of vicitms as parties entitled to be heard and to challenge witnesses. The anointed in our justice establishment are moving in the opposite direction, if we are to be guided by the Chief Justice’s recent public burblings against victims gaining "a sense of ownership of the criminal justice processes" and worrying that the emphasis on victims risks "turning back the clock" on "public ownership [she means judicial ownership] of the accusatorial system of determining criminal culpability". 

c) it will leave in place the current imbalance on sentencing, where Weatherston’s family or whanau have a right to tell the judge what they think the sentence should be, while that is prohibited to the victim family.

d) it will be an unstable reform, because provocation is an essential consideration in determining culpability. The next case could be a battered women, driven beyond endurance by years of brutality. Why should she be prevented from explaining why she snapped? Or consider the injustice if Lesley’s brother was unable to advance provocation if he had snapped and attacked Weatherstone that morning if he had arrived just as Weatherstone was leaving covered in blood, and been told by Lesley what had happened. As it happened he almost did call in near the critical time.

e) it will not eliminate public hearings where offenders attack the victim – it will simply shift it to the pre-sentencing hearing, as the convict uses the same excuses to the judge, to diminish culpability, and hopefully the sentence. They will do so to create a foundation for appeals against sentence. Appeal judges will set about crafting a whole new superstructure of formal rulings around the effect of provocation, in place of what we currently get from the jury’s intuitions.

f) it will hand to the judges even more power when they have already shown irresponsibility with what they’ve got. Judges, not Parliament control how trials drag out. They are to blame for criminals knowing there is a pathetic cost, if any, for raising stupid and offensive defences. And judges are to blame for the complexity and confusion in the principles of provocation.

 At root the courts need to recognise there are competing ideologies. The health of our democracy and respect for law and order depend on judges accepting that elite views can not be imposed. If they have not persuaded the people of their justice theories, then they will not stick:

• On one side the ideological world view espoused this morning by Law Commissioner Warren Young who simply asserts that "provocation has no place in the 21st century". In other words the only the State is ever justified in using force. And only justice insiders (not juries, or Parliament)  should prevail on when force will be punished.
• On the other side the view that the law should reflect ordinary morality, and allow juries to put themselves in the shoes of the offender, and decide whether the response was wickedness, or what a reasonable person and society should expect.

Why should provocation be a defence rather than something the judge should take into account in mitigation?

Because self defence is not the only situation where a person is morally justified in using force, even lethal force against someone who has wronged them terribly. Lets consider an example.

If Henk Bouma had been able to free himself to attack Poumako and his henchmen while they were leaving his Reporoa farmhouse no legal system with any respect for normal human emotions should convict him of a wrong. They tied Bouma up, took his wife Beverly to suffer for hours in another room, taunted Henk, then shot her dead.

Self defence would not be available to someone in Henk’s position if he attacked the home invaders as they were leaving, because they were clearly then ending their threat.

If only the facts had played out as proposed in this thought experiment! He would have deserved commendation, not conviction.

Another comment asked why I linked Weatherston’s excuse for killing Sophie with the ‘homosexual advance’ defence. I thought it was obvious. It is the same defence – the argument that the irritation provoked by the victim’s express or implicit insult to the killer justified their subsequent reaction, or drove them into a state in which they should not be held responsibe for their actions.

Often the homosexual advance excuse merges with a self defence claim (‘homosexual panic’). Weatherstone’s excuse tries this trick too, with the ‘scissor attack’ story.

Without solid evidence of reason for panic the law should treat the homosexual advance defence with derision, like Weatherstone’s defence.

[Update – Guilty for Weatherston has saved the law from an explosion of outrage. Instead there is the heightened rumble of discontent.

When it dies down a little provocation can be treated more dispassionately. But whatever emerges, the law must recognise and not consistently affront the consciences and emotions of the ordinary people without whose support it will decay.

The criminal law is the consensus on minimum morality in action. Morality is very interested in questions like – who started it?. What did he/she deserve? We are evolutionarily conditioned to find those matters vital.  If judges apply mumsy rules, like "nothing excuses violence"  or "I dont care who started it, you joined in" they are not judging, The are just applying a rule, which could be done by a computer, or the police, (assuming the evidence is clear).

From this case the judges should take a lesson, and simplify the defence of provocation. It should only relate to what would provoke ordinary reasonable people, not drunks or P addicts or nut cases, or homophobes. The judges should now punish those who turn it into mockery.

From other cases they should accept that ordinary people want the law to distinguish between those who start fights or cause trouble, and those who respond even if their response is "disproportionate".  The criminal should bear the risk of significant  disproportionality in the response to thuggery, rape or robbery , even if common sense says the defence can only go so far.]

When the jury delivers its verdict on Clayton Weatherston, whatever it is, those responsible for our criminal justice system should be ashamed. This case has exhibited the gross self  indulgence of this system.

Weatherston was caught covered in blood having taken a knife to the room of a much smaller former girlfriend. The only question was "what’s your excuse".

The court should have asked him that question within a month of arrest, giving him a day at most to put it. Perhaps if the jury thought he’d raised enough uncertainty that they wanted to hear more the case could be adjourned for another month while Weatherston dug up any supporting evidence for his excuse. Another day at most should have been allowed to present that.

Criminal justice insiders have persuaded themselves that their indifference to cost constraints on process is evidence of the supreme importance of what they do. Their exemption from the normal constraints that affect other social institutions is flaunted, instead of being cause for embarrassment.

Eliminating the defence of provocation is not the answer. It can be a legitimate excuse. There may be times when provocation does reduce the moral culpability of murder to manslaughter, when the murderous reaction is what any normal person could feel driven to. But it should not be allowed to work if it only works when coupled with "I was drunk" or " I was a nut case" "he was gay".

The traditional common sense of the law penalises or rejects defences that would be offered by too many people, and be too hard to disprove – as I’ve mentioned before,  the rejection of ‘ignorance of the law’ as a defence is a simple example.

More importantly the courts should balance the incentives to drag out such problematic excuses. Part of the answer is simple. It should not be cost free.

It should be an extremely expensive excuse – to be risked only when any normal person might have reacted similarly. The cost of raising it should be a massive increase in sentence, because of the extra hurt it causes those left behind, and the clear admission it so often makes, of lack of remorse.

The remedies to these grotesque abuses of process are in the hands of the judges.

There is nothing constitutionally improper in a Chief Justice speaking publicly outside her Court on matters of vital concern to the administration of justice. In the UK, from where we draw our conventions, senior judges have been much more prone to lecturing the government recently.

But nothing is costless. The courts and justice will pay the price in disrespect if the judges are not obviously being wise, and confining their comments to matters on which they are expert. Stray into political partisanship, or even criticise politicians even-handedly, and judges can expect to be treated like politicians.

In the UK there is open hostility between the government and the judiciary, as a once revered criminal justice system decays. It helped deliver some of the lowest crime rates and most free and civil societies in the world. Now the average UK citizen is at substantially greater risk of burglary and violence than US citizens. And our figures are worse.

Our Chief Justice quite properly complains that there are not enough probation officers to run community based sentences. She should speak out about the Executive’s failure to deliver psychological and drug and alcohol treatment  ordered by the courts.

There is nothing wrong in hand-wringing over the increase in prison musters. Our serious violent crime rate is a proper matter for court anguish. But genuine leaders only indulge in hand wringing when they have some necessary but unpalatable solutions to impose.

Our charming and intelligent Chief Justice has raised those matters, but her only ‘solution’ is for the state to declare surrender to criminals, more ‘interventions’ and ‘fences at the top of the cliff’. Her poorly researched speech offers nothing that was not heard ad nauseum in 1960’s idealistic party meetings and university common rooms (and parroted by me in my days as a member of the Prisoners Aid and Rehabilitation Society).

Instead of looking for evidence of what works she’s endorsed the maudlin sentiment of Shirley Smith, another kind and well-meaning but dotty lawyer.

There is good evidence on what works, from countries which have dramatically cut their crime rates. Foremost among them are speed and certainty of consequence. The evidence is clear. The only thing likely to alter our trajectory to having the longest sentences and the highest crime rates is well founded knowledge among those tempted to offend that crime will not pay. Criminals are gambers. Offer them uncertainty, and they’ll back themselves to win the lottery. So the CJ’s speech is lamentably damaging.

She has her own stables to clean, when on her watch the average delay to trial has doubled, the average length of defended trials has more than doubled, the number of judges has tripled over the last 30 years, and the cost of justice is putting it out of reach of all but the rich and those who qualify for legal aid.

The convention that politicians reinforce public respect for the courts was recently strengthened. In a sorry piece of Parliamentary self mutilation the Privileges Committee succumbed to the temptation to slap Heather Roy on the hand. Parliamentarians strenthened their self-tied gags on commenting in Parliament on matters before the courts.

Revisiting that stupidity might be one good outcome of this sad episode.

I can understand why our friend Seddon Bennington carried on into a storm. The Kime Hut plateau would be a glorious and  eerie experience the morning after a midwinter blizzard. Even the huts become paradisical when you reach them in a blizzard.

And I can understand how it might dawn too late even on an experienced tramper that a blizzard on those tops is beyond all previous experience. In fine weather the hut is a pleasant ramble from the bush edge.

As a first year student I had a taste, in a VUW Tramping Club southern crossing party led by an excellent trip leader, an older student who has since made his career in outdoor experience work. I’d encouraged a Malaysian friend to come along, his first experience of the NZ bush.

Nearly four hours after leaving the hut (Vosseller I seem to recall) around 10 of us were standing scared and shivering in the lee of a knob above a steep snow covered drop-off, trying to regain confidence in our leader. The wind screamed past, ice particles tenderised exposed skin and our parka hoods rattled and battered at our faces with so much noise we could scarcely hear each other. Some in the party were whimpering involuntarily just crouched with their backs to the wind.

To the credit of my Malaysian friend he stayed mute in his misery while the decisions were made.

The problem was that we’d just recognised the chocolate wrapping in the snow at our feet as the debris of our first rest-stop an hour or so after leaving the hut.

Plainly we’d come in an unplanned circle around the upper slopes of Hector, instead of  getting to the shelter of the bush on the other side.

Though he was not sure, no one knew any better than our leader where we were, so in the end we followed him again. We had to crawl in places, grabbing at the ice to stop being blown off.

Second time lucky. The hut was too damp and cold to heat up with its open fire, but still a paradise down in the trees out of the wind.

RIP Seddon.