The verdict on Sila for the Edgeware road murders was right, but the system is disgraced by the cost, the delay, and the uncertainty in reaching it, more than a year after the killings.

Harry Young, the father of murdered Jane Young, has exploded. His lambasting of the judge in Sila’s trial is well merited, though the judge is merely applying the rules of the system.

Harry was boiling when I met him at Sensible Sentencing’s homicide victims’ conference in Wellington a few weeks ago. There was absolutely no doubt about who killed his daughter, in front of scores of witnesses. If there is one strong finding of the research on what works in reducing offending, it is that justice must be swift, and certain.

Yet a year later the system has preened its way through an elaborate dance with no certain outcome. He’d been told by the judge, the Police and plenty of well meaning other performers in that ritual dance that he would put everything at risk if he even expressed publicly his bafflement and rage.

Who wouldn’t feel for those families, waiting 4 days for the jury to decide an open and shut case, with every passing minute adding to the possibility that the killer would go free.

I support the right of the accused to a fair trial, where guilt must be proved beyond reasonable doubt. I support the jury system. But they are conditions, not purposes. The primary purpose is to deliver justice to wrongdoers, for victims, and for those of us who are merely potential victims. The wrong must be balanced by punishment.

And wrongs must not be compounded by punishing people who are not guilty.

But the processes have taken over. They’re no longer subordinate to those ends.

Sophie Elliott’s father was at the conference too, because Sensible Sentencing is often the only comfort for these desperate people. SST are not funded by the system, so they can say what no one else will. They explain the realities the victims will undergo, while everyone else professionally excuses the inexcusable.

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. The Elliotts were baffled too. Four court attendances already when there is absolutely no doubt about the circumstances of her murder, yet the process had not even reached depositions. As a lawyer and a former law-maker I think they expected me to come up with some sophistry to justify what was happening to them.

I could not. The system is the work of well meaning, highly educated people who’ve become fools. Being part of the elite, they’re not obliged to focus on the purpose of their processes, so they don’t. They’ll tell each other that the critics simply don’t understand, and no doubt go home each night feeling the smugness of the misunderstood in a righteous cause.

I suspect that the highly intelligent killer is manufacturing a defence of insanity. The mad/bad distinction he’ll rely on is another idiocy sacred to the anointed. They will not weigh against it the insult to victims.

I tried gently to prepare the Elliotts for a lottery, and possible disappointment. But I could not pretend the processes were redeemed by any justifying outcome.

They could be hugely simplified with no added risk of convicting the innocent. But those who serve the processes now have a trained indifference to the real outcomes. People who’ve spent their careers picking holes in arguments are so adept at finding problems they can never be expected to reform anything. They’ll persuade themselves with their professional eloquence that there is grave risk in anything but the status quo.

Frank Field MP is one of the world’s most interesting political leaders. He’s a humble back-bencher (he lost his UK Labour Cabinet office prematurely) because he’s persisted in openly thinking the unthinkable for the left. For example he wants new secular law to respond to oik boorishness, to stand in for the lost Christian morality that he believes previously made working class Britain so much less vicious.

He’s effectively the media champion of Labour’s loyal internal opposition, straining to get his beloved party to discard dogma to look at what is really in the interests of the poor.

And he’s just won a public arm wrestle with Gordon Brown, his Prime Minister, on a tax and budget matter.

The NZ left has nobody filling that role. Chris Trotter can’t do it despite the vividness of his writing. Occasionally he seems to manufacture blinkered vitriol to reinstate his leftist credentials, but it disqualifies his more sustained arguments from getting the serious attention they sometimes deserve. Mike Moore is probably much closer to it, but he’s marginalised by the left, whereas Frank Field is hated only by those with poison in their souls.

NZ Labour lost that entire idealistic side when the ruthless machine side triumphed under Clark and their thinkers left with Roger Douglas. As Tamihere confirmed to Investigate,  nobody in NZ Labour dares any hard thinking on welfare or criminal justice.

I’ve long read Frank Field’s stuff. So I looked at his website for signs of triumph after the recent contretemp. Not there.

But there was this interesting lecture.  I’m not aware of anyone here worrying intelligently about rebuilding a culture of philanthropy.

We should be. New Zealand has just moved from being one of the most miserly to being one of the most generous in its tax treatment of charitable donations. There’s a minefield of problems with the Charities Commission ( the law gave it a one off registration task it can simply not perform). The government has shut its eyes to that impossibility. The Commission can only register all the charities that are supposed to be registered by 1 July 2008, if it effectively waives some or all of the quality and eligibility vetting that is expected of it. Vetting trust deeds for compliance with the complex law that distinguishes charities from other forms of altruistic or non-commercial purpose is no simple task.

The Commission was supposed to be our tax system’s major line of defence against rorts. It would be a tragedy if reviving philanthropy generally is discredited by scandal as the new rules take effect, and the crooks realise that nobody is guarding the doors.

I’ve long advocated ending the “so-called right to silence” (not my phrase – it belongs to former Court of Appeal judge Ted Thomas). But now the change is getting some serious acceptability testing.  

It is not like Sir Geoffrey Palmer to sit on the fence, unless he’s waiting for political instructions or political clearance.

So why is he waffling on? Why say “It is not a change that would happen quickly, but talking about it is not wrong” when he well knows that the change is simple and has been discussed to death. There is plenty of respectable legal support for ending a rule that has more to do with the notion of a trial as a game between counsel than a search for the truth.

Could this be a change he’s planned with his Labour patrons for anouncement later this year, intended to seem controversial, brave and forward looking? Has the Kahui case ended prematurely for political purposes?

Perhaps I’m giving to myself  more influence than I deserve, but it is possible that Russell Fairbrother will be working  through a range of reform suggestions I urged during my time in Parliament. He and Labour need to be seen to be more responsive to the Sensible Sentencing Trust (and incidentally to try to sink Russell’s reputation as a woolly woofter on crime).

I discussed the end of the right to silence with Russell as an example of an overdue reform. The “right” was effectively abolished years ago in the UK, well before the great rush of Blair criminal law changes. At my suggestion the Sensible Sentencing Trust had floated it as a desirable change. Now the Kahui trial has brought it to the fore.

I hope Garth McVicar does not let it die.

The change could be extremely simple. Despite its fearsome connotations, ending the right does not mean that an accused could be forced to answer questions (what would they use – the rack?).  

All it needs is statutory confirmation that a judge and jury can give whatever weight they think fit to the failure of an accused to give evidence, or to allow himslf to be cross-examined. The Sounds murder trial is an example. In my view the jury should have been able to have regard to Scott Watson’s willingness, or otherwise, to be questioned on the alternative theories his counsel put forward about his movements.

When the defence postulates hypothetical alternative explanations to incriminating circumstance, common sense says the accused is the only person who can know the truth, and best placed to clear up the uncertainty. His failure to give evidence in support, or in rebuttal of a competing hypothesis, and to submit to cross-examination on it, could be highly significant.

I have little respect for the organised criminal bar. They refuse to distinguish between rules that serve to protect the innocent from wrongful conviction, and those that are unjustifiable relics of  long ago hard cases when judges were trying to cement in a then contentious principle – that evidence obtained under duress was unreliable. 

Our justice system is truly insane, when it spends months trying 30 year old complaints, turning a blind eye to the grotesque risks in fitful and often warped memories of emotionally stressful events so far back, yet pretends alarm about pressure on an accused to answer personally to his accusers, on very recent events he knows better than anyone else in the Court. 

[25 May – For other views see Kiwiblog. ]

I’ve just come across a rare specimen – a friend back to work here after years in Australia (commuting because the family is refusing to come).  He has some troubling comparative judgements on what we’ve done to ourselves while he’s been away. 

But I’d never thought to question the warrant of fitness system. Here’s his comment:

“I watch with wonder the warrant of fitness system. Perfectly good cars are inspected every six months by guys who are second guessing Mercedes or Toyota.

I am sure that British cars in the fifties needed to inspected every other week.
Yet no state in Australia has a warrant of fitness scheme. No state in America requires mandatory car inspections.

 It is assumed that no one wants to kill themselves with a defective car. People fix cars when they are dangerous.

.
In those countries if a policeman finds a problem with your car he can order it off the road.

You don’t need a vast infrastructure of buildings and mechanics to do that. The mechanics are better employed fixing cars not inspecting them.
A miniscule number of accidents are caused by the defects in the car. It is always other factors.
Yet the punishing effect on the less well off imposed by the warrant of fitness regime is crippling.

The sort of thing that gave communism a bad name and which eventually dragged them down.
Doing useless things day after day saps your strength in the end and diverts energy and intelligence and effort away from the things that bring prosperity.”

Which comes first, a cafe culture, or “Italian” pedestrian and driving habits? Recent Wellington history suggests a clear correlation. The question was raised while friends were speculating on  Wellington Central issues for me.

One proposed the dangerous habits of Wellington pedestrians, and the drivers who accommodate them. 

Wellington pedestrians consider their right to the roads to be only intermittently subordinate to cars. Bus drivers hold lordships far above any others. Next come car drivers, then professional truck drivers, then pedestrians, and finally cyclists.

In a classless category all their own (like New Zealanders in the UK) are courier cyclists. With some minor courtesy they are accepted as being above all rules and outside all rank.

I could not take up any aspect of this issue without hypocrisy. I’ve become so dangerously steeped in Wellington habits that I’ve found myself all alone in the middle of a roaring Auckland traffic stream. I absent-mindedly step out of the crowd and off the curb into a gap in the traffic flow, ignoring the lights. Two lanes later I realise the crowd are still where they were, patiently waiting for the cross signal.

Wellington drivers would take this in their stride, like Italians. In Auckland they’re alarmed, so the risk is doubled.

Listening to Cosgrove on Nine-to-Noon brings up waves of nausea. If our Westminster inheritance meant anything he’d have resigned. Instead he is raising utterly spurious legal “obstacles” to him having ensured that corruption was rooted out of his department.

There was no legal impediment. He had every right to demand a full explanation, and the constitutional duty not to rest until satisfied that the agency under his stewardship was clean.

I believe the true impediment was his utter lack of morality – corruption simply rings no alarm bells to him. It is just business as usual until the public howls. I realise how extreme that claim could sound, but I base that opinion on days of strong evidence.

He was the only government member who constantly interjected speeches from our side of the house with accusations of corruption. It was his favourite theme for me, whatever the subject of my speech.

I used to wonder then whether it was a classic case of projecting the flaw that most gnaws at you. Now I’m convinced.

No honest man could have had the reports he had, yet decided to let a false claim about the law governing the State sector shield him from unwanted further knowledge.  In his shoes, if anyone had even raised the law as a reason for not knowing more, I’d have said “bugger the law – I must have the truth, and the whole truth”.

Of course no one would have raised such an objection because the law is not that stupid.

Cosgrove’s excuses put him among the crooks in this affair. If he was subject to securities law, or even the existing law for the real estate agents he’s been pasting, he’d be liable for misleading and deceptive conduct. Of course he relies on journalists not reading the law he claims to rely on, and may yet get away with his lies. 

A new research report suggests an evolutionary link between a society’s persistent high exposure to disease, and its predilection to collectivism. It raises but can not answer the nature/nurture questions. An accessible commentary is published in Reason.

It would be terrible to think that some societies are conformist, and doomed always to choose to live under the dictators’ lash, because too many of its people are genetically programmed to distrust freedom’s risk of non-conformity (and strangers).

I once read of a study in France that showed a strong and inexplicable link between blood type grouping, and left/right voting patterns. From recollection that report said that it had eliminated religious/cultural effects (though that must have been difficult). I’ve never found a reference to it since. If anyone knows of it and can point me to the reference I’d love to know whether my memory is accurate.

A month ago, while in Sydney for my law firm, I spent the last few hours before coming back at the Red Bull Flugtag. People competed to see how far they could fly from a 10m ramp before hitting Sydney harbour.  There were prizes for the quality of ritual pre-flight dance, and novelty of aircraft. The sun shone, the idiots plunged delightfully into the tide, the masses laughed and cheered.

Then they drifted off  LARGELY TAKING THEIR LITTER WITH THEM. I was stunned at the crowd’s civility, given the amount of alcohol being washed down with Red Bull. Perhaps it was out of respect for the Botanic Gardens but if that is normal Aussie crowd behaviour I am more than ever determined that things have got to change here.

I’ve ordered this book by Cass Sunstein and Richard Thaler.

From reviews,  I suspect it will supply a major missing link in popular and political acceptance of economic insights – validating our disbelief  when urged to believe that laissez faire market choices always optimise community welfare, despite our personal experience to the contrary in our own lives. We can all think of external disciplines that have helped us to help ourselves.

Freedom’s cause has not been well served by denying the common sense that there are often better outcomes when authority nudges people away from self-damaging behaviour. Nudge will actually strengthen freedom as research supports persuasive mechanisms, but also urges opt-outs and other means of preserving choice despite official preferences. If extremists are intellectually marginalised,  trashing genuine freedom of choice may become less respectable.

I suspect this book will not sell as well as Freakonomics, but it could capitalise on the interest created by that book. It  could have more practical influence (if only because the authors are thought to advise Barack Obama).

I met Cass Sunstein in 1992, introduced as “our pet lefty” when we met at the University of Chicago staff club. I attended one of his ‘work in progress’ sessions (though I can not remember the topic). He would have no reason to remember my time there, but I but remember his sharp questions of Stephen Shavell, a visiting Harvard professor, about a then forthcoming paper on ‘efficient punishment’.

The dedication of that University’s professors to maintaining an intelligent interest in their colleagues’ work well outside their specialty interest, despite ideological differences, was absolutely inspiring. I went there with the honorary title ‘visiting fellow’ and came back considering more time in academia. That interest wilted promptly when told by the friends at VUW  of the PC intellectual scorched earth in their common room.  I hope that is changing as a generation rolls over, but have heard few encouraging reports.

Have you been sceptical of the argument that NZ businesses should reduce their carbon footprints because consumers will punish us if we don’t? Some have seen the argument as the fallback of those who can’t substantiate the climate change justification, but want us all to wear hair shirts anyway.

The Wall Street Journal reports research suggesting consumers will punish companies perceived as unethical, but not much reward those perceived as ethical. So even those who are not persuaded by good citizenship motives should do at least enough to avoid being singled out as baddies.

Doubters may claim that research using consumers’ statements about what they would do is not as good as research of actual buying behaviour. If that is a business’s excuse for doing nothing it could be a poor bet.