David Farrar’s Thursday post on Clayton Weatherston’s trial for killing Sophie Elliott had triggered over 130 comments when I last looked.

The post and string are to me the epitome of good blogging. I learned something I did not know from David’s post. The comments are diverse, vigorous, and frequently informative. Few of the trolls emerge. F E Smith in particular admirably puts the case for his reviled branch of my profession, defence counsel.

And it is a debate among strangers that is simply not available in MSM. It may be as close as we can get to the vision of those who died to secure free speech, an  ‘agora’ or marketplace of ideas where understanding emerges from unconstrained contention.

h) Restore truth in sentencing. When judges sentence it is the non-parole period that is the real sentence. The rest is just potential punishment for not playing the game in prison.

I ask that you make the law mean what it says.

Have a look at Nicky Hager’s complaint about his defamation stoush with Crosby Textor (or Crosby alone to be more accurate). 

I expected to be amused by Hager’s complaints. . Instead I agree with aImost every word of his criticisms of the law. Judges and lawyers indifferent to the real effect of their costs and processes have made defamation law into a shield for wrongdoers.

The Hollow Men was deceptive. That  book spun sinister fantasy our of the ordinary wearying necessities of politics. Hager is a sophisticated political player. He  knows that politicians are forced into image indignities to play to an infantilised population through a media largely unable to distinguish political reporting (debate over issues) from sports reporting (whose plays and tactics might win the game).

But that does not mean that there is anything wrong with Hager’s complaint about defamation law. He is dead right.

I think there’s a simple solution. People who inflict cost on others with meritless threats of legal action should know before they start that they’ll wear those costs as well as their own, if they don’t or can’t substantiate their claims. It must apply whether or not the case proceeds in court, and cover all the costs reasonably incurred by the targets of the threat. 

A bill amending the Defamation Act for that purpose was among the many Member’s Bills I drafted to go into the ballot. I’ve loaded it here as a page on this site.

It was never selected. It may never have been submitted, because the Commonwealth Press Union showed little interest when I asked for their suggestions for improvement.

For me as a lawyer defamation law has not been such a  fearsome gag, because I’ve been able to do my own pre-trial assessments and correspondence. So I moved on to more pressing things. But to most it is justifiably terrifying.

Winston Peters was a master of the gagging writ. He lost at virutally every stage in actions with people I know, yet cost them staggering sums. The effect of his success with gagging writs has been that we may never know whether our Parliament has hid corruption worse than that uncovered in Britain. Our media stopped trying to find out whether Peter’s fisheries involvements were a filthy "cash for questions"  scandal or just involved unfortunate coincidences. We are all losers from that, including me, because I do not know for sure.

TV 3 did the bleeding obvious this morning. Unlike Radio New Zealand, who left  the odious Cosgrove to define their story in "debate" with Judith Collins, Oliver Driver on Sunrise  asked Corrections for some facts.

While waiting in TV 3’s Wellington studio to comment on criminal trial delays, I sat next to Corrections’ Derek Lyons. He explained that the containers are purpose built, and probably at least as comfortable as most cells.  Before they’re deployed we’ll see double bunking, from early next year. A client of mine will, I hope, be one of the tenderers to supply the accomodation.

Derek and I discussed (off camera) the facts no one seems to have raised yet – that many of New Zealand’s prisons were built or partly built by prisoners doing useful work.

Mt Eden is substantially built of stone quarried and shaped by prisoners.

I mentioned the prison officer I met at Invercargill Prison in 2004, who had a deep knowledge of the history of that prison, with many photographs. When it opened it was regarded as state of the art, the best in the British Empire. Parts of it were designed to be beautiful to uplift prisoners, as well as to intimidate. You could still see some of the beauty in the dining hall.

It was built by prisoners brought from Dunedin Prison to live in tents while they built their new home.

Sadly, the loss of effective control of prison discipline has resulted in horrible modifications.  When I toured the prison a grand staircase was about to be divided, because guards are no longer confident that they can stop attacks in stairwells if too many prisoners can access them at one time. 

A well equipped prison workshop that once made furniture for government offices all over New Zealand lay almost idle, because too few prisoners can be trusted not to turn tools into weapons.

Now of course no one can be made to work for their supper in a NZ prison.

Taihape College to Weir House, Victoria University was heaven-sent for a curious 18 year old in 1969.  We lived with scores of Colombo Plan students from  Malaysia, Afghanistan, Vietnam and elsewhere.  Mealtimes were exposure to aliens. For those who bothered, getting to know these polite strangers we were living with could be mind-opening. 

I took some (not enough) of those opportunities. I believe my Afghan acquaintance died in the early stages of the Soviet occupation, but I remain in touch with others, especially several who accepted invitations to Taihape. Their hospitality in Malaysia has more than repaid mine.

My children now have an amazing array of exchange opportunities for semesters or half years or more at overseas universities. Perhaps we got as much from being in Weir House as they now get out of those exchanges in hostels full of other ‘exchange’ students in places like Prague, Lyon, Amsterdam, and Stockholm.

Yet few of my children’s generation seem to have much contact with their fellow student visitors now all around them in New Zealand. They are so many, perhaps the strangers feel no need to reach out to the big nosed noisy people they’ve come to learn English among. And perhaps they are such a familiar sight to our kids, that it does not occur to them to be curious enough to want to get to know the strangers.

But I’m curious. I wonder what these blank foreign faces are thinking. Do they find here as much to admire as to deplore? I look at the many Chinese language newspapers in local shops and wonder what kind of intellectual world is created here for the thousands of kids during their sponge age, the time of maximum absorption. A local Chinese friend tells me how much she detests mainland Chinese "because they look down on me". A week in Karachi for work a couple of years ago revives my interest in the reactions of Auckland Moslem taxi drivers to the immorality their children face at school.

I was lucky to have hours with Chinese supporters in the Wellington Central election campaign. But the need to be "the candidate" limited the frankness of that kind of interaction.

So I’m fascinated by the contemporary novels and films that are now flooding in.

Arvind Adiga’s The White Tiger, and of course Slumdog Millionaire echo with each news story from India.

Auckland writer Mo Zhi Hong’s The Year of the Shanghai Shark, has been reviewed in the Listener, and here. At the start of my main OE I went to Mao Tse Tung’s China. The Year of the Shanghai Shark channels the echoes of those years despite its world being overtly an epoch apart. It seems to me to be self-consciously a bridge for foreigners. Frequent references to the teenage Dalian view of Bush, of Americana, to our Mike Moore, to English language teachers on OE and to how English sounds to young Chinese suggest to me that as well as describing his ilk, Mo Zhi Hong was writing for people like me – those wondering what these strangers think of us.

Murong Xuecun’s Leave me Alone – A Novel of Chengdu is tougher going. It is perhaps more revealing, but normally I leave others to read books about alienation, self indulgence and decline. Life is too short to waste on despair. But this book too is fascinating. According to brief internet research ((Allen and Unwin’s back cover summary does not tell much) the book emerged in episodes on the intranet of the writer’s employer. It developed a cult following then exploded as an internet sensation in China.

It depicts a world and consequences eerily close to what I would have predicted looking from the outside. My puritan side deplores the time consumed by young people out late at night drinking, eating, in bars and night clubs, and texting and phoning. Ubiquitious lighting up cigarettes is the only jarringly unfamiliar element in the Chengdu descriptions.  I wonder how far the rest is from the world of many of our kids of the same generation. 

Will the experience of Chen Zhong, Leave Me Alone’s protagonist, resonate for all that generation? 

Funny listening to Sean Plunket on Morning Report with Sue Bradford this morning, following yesterday’s awful performance. He finally dropped to the fact that he and his media colleagues have been peddling her side’s deceptions. 

Her law makes into criminal assault all uninvited physical contact by a parent which is unwecome to the child. It always has. It flows simply and unavoidably from the law’s definition of assault and the removal of the section 59 exception.

She explained that to him, apparently forgetting that the "compromise" had gained its support by being falsely described as not criminalising minor smacking. It was not a compromise. It was a successful obfuscation. 

I won’t hold my breath waiting for the journalists who so gratefully spread the falsehood, to show grace some day by apologising to McCroskie and others they’ve shouted down instead of interviewing.

If you fancy a bit of intellectual biffo, have a look at the critique in the University of Canterbury’s Economics and Finance Working Papers. of  BERL’s study for ACC and the Ministry of Health, of the social costs of alcohol.

Eric Crampton and Matt Burgess summarize the findings detailed in their paper:

"BERL calculated annual social costs of alcohol and illicit drug consumption of $6.8 billion, including $4.8 billion in social costs from alcohol alone. The report was cited by Law Commission President Sir Geoffrey Palmer as evidence in support of greater regulation, gaining considerable media coverage.

We find substantial flaws in BERL’s method that together account for well over 90% of BERL’s calculated costs of alcohol use. Corrected external costs of alcohol use amount to $662 million and are roughly matched by the $516 million collected in alcohol excise taxes."

I can’t think of another critique of a professional research paper as blunt, or as devastating, assuming its methodology is as orthodox as it appears to this non-economist. BERL must convincingly answer the criticims (or preferably other economists for them) if their future work is to have credence.

Crampton and Burgess pull no punches:

The BERL report is wholly inadequate for use in assisting policy development .

The Law Commission, presumably committed to intellectual integrity in its work, should commission an umpire.

I’ve not been able to fold any notes or drop any coins into collection buckets for Plunket or Barnardos since running into them in the early phases of their campaign with Sue Bradford to criminalise smacking. They distributed pamphlets falsely claiming that her bill did not do that. I first found one at a Barnardos-organised public discussion. [The ACT website had my speech notes, but now has only a release with an inactive link].

When I first saw the pamplet I called a lawyer involved with their campaign. How, I asked, did they decide that repealing s. 59 did not criminalise smacking (and pushing your child into its room for ‘time out" along with other routine parental ‘assaults’).

His reply was long and embarrassed. Boiled down it was "because though the law would have that effect they do not intend the law to be used that way. Its really to educate parents, so they stop smacking. As people realise that they should not smack their kids, ordinary people won’t be prosecuted".

Sue was less disingenuous. In private, as we travelled the country debating her bill, she made no secret of her intention. She thinks it is wrong to use force on children and she set out to make it a criminal offence. She succeeded.

Listening this morning to Sean Plunket on Morning Report reminded me of those days. He was badgering a spokesman for the referendum question, demanding to know the name of one person criminalised for smacking. The poor guy did not say what he should have – that everyone is criminalised for smacking.

Thats the way criminal law works in rule of law countries. It applies to everyone equally. Whether or not you are an offender does not depend on the mood or political inclinations of those armed with the state’s coercive authority. It depends on what the law says, and what you’ve done. The law is not the plaything or the tool of the ruler. All are subject to it, whether or not the ruler decides not to enforce it, or enforces it the way he’d prefer it was written.

The right of private prosecution is precious for that reason. Otherwise rulers can play favourites, and decide who benefits and who is damaged by the law. In other words the enforcer is given the power to effectively make up the law as they go along.

And that is exactly what the compromise in the current law does. It says everyone who smacks is criminal, but the the Police are to decide which ones pay the price. Not the Courts, not Parliament, but the Police.

The compromise was stupid expedience. The New Zealand legal profession, which finally found its tongue when the Electoral Finance Act fostered political corruption, should have loudly protested that corrosion of the rule of law. Instead it is said to be the brain child of the President of the Law Commission. I hope not.

The anointed generally seem to have decided that their motives are good, so principles can be suspended. Besides, it is always satisfying telling the masses they are wrong, and less worthy than those wielding power. 

So I can understand that Sean Plunket thinks he is on strong ground pestering McCroskie.  Who is McCroskie, to dare annoy the anointed with an unwelcome referendum? Plunket (both versions) can just tell those less worthy that they are not all criminals, those who wield the power will decide who should feel the lash from day to day. It encourages the others to have more respect when they can’t know in advance who will cop it.

A friend sent me the link to G K Chesterton’s rumination on his experience on a jury. Apart from wistful wonder at the fact that his jury appears to have despatched two or three trials in a morning’s work, how about this for eloquence:

" …And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it.

Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop. Therefore, the instinct of Christian civilisation has most wisely declared that into their judgments there shall upon every occasion be infused fresh blood and fresh thoughts from the streets. Men shall come in who can see the court and the crowd, and coarse faces of the policemen and the professional criminals, the wasted faces of the wastrels, the unreal faces of the gesticulating counsel, and see it all as one sees a new picture or a ballet hitherto unvisited….." The Twelve Men 1909

A court in Queensland a few years ago horrified the barristerial world by ordering lawyers in a case to pay costs personally, when the judge considered them personally responsible for unconscionably dragging it out.

Now the Australian Federal Attorney General has announced moves to formalise such risks.

"Parties and their lawyers will be obliged to resolve disputes as quickly, cheaply and efficiently as possible.  If lawyers breach these obligations, a judge will be able to make personal costs orders against them, including that they have no right of reimbursement from their clients."

If the courts were run in a business like way there would be other changes to improve the incentives on lawyers and to help clients.

For example, clients need better information about who is worth paying to go to court.

Most barrister clients are not repeat players. It is hard for them to know whether their lawyers have done a good job. The outcome can depend on whether the law was against the client,  the facts, the performance of the other side and the performance of the judge.

Judges are in the best position to rate lawyers. They have traditionally been the most influential in assessing candidates for ‘silk’ (QC or Senior Counsel appointment). The judge can not know whether the lawyer has been handicapped by silly client instructions, or not enough time to do a proper job, etc. But over time those factors average out, and judges collectively can develop informed views of performance. It does not really matter if they reflect prejudice, if they do not see the intrinsic intelligence or diligence applied. The key thing for a client is how well the lawyer appeals to the judge, so their ratings are valuable whatever the source of bias.

Judges should rate the performance of lawyers after each trial, on several factors, including time wasted, judgment and persuasiveness. The average ratings each year should be publicly accessible on a website.

I’m amused by elite vituperation against juries since the Bain acquittal.  I’ve expressed my opinion that Bain did it, but to me the jury  did exactly what we have juries for  – they erred in the right direction. 

They cried halt on a legal establishment wasting its time, its respect capital, and our money in a frosty attempt to protect its pride.

Like the Crown prerogative of mercy, juries inject a vital fuzziness into the law. Perverse verdicts are sometimes the only thing that protects the system from its own pomposity or rigidity. I mentioned some 2004 cases to my Select Committee, when trial-by-jury rights were under attack :