The Week In Pictures

Imperator Fish Goes To Wellington

It's referendum time.

But the referendum question has been troubling me. Who really knows what it means?

I believe we need something a bit clearer. Maybe like this:

Should a smack, when administered in circumstances that are not already expressly permitted under the Crimes Act 1961, and where the circumstances are such that the recipient of the smack is not left bruised, cut or marked, where the smack is administered in a moderate way so as to cause no serious hurt to the recipient, in circumstances where the person administering the smack is not hitting out of simple frustration or anger but rather out of a desire to correct wayward or errant behaviour, where the smack does not constitute part of a pattern of more systematic abuse (where a series of smacks, while moderate in and of themselves, would, when taken collectively, constitute abuse), where the person administering the smack has considered other means of correction or punishment for the said wayward or errant behaviour but has (having taken consideration of all facts reasonably available to that person given the particular circumstances of the case) determined that the said means are inappropriate, where none of the following means of administering the smack are used or applied: fists, claws, broken bottles, paddles, whips, and other non-human means of intervention (including, without limitation, frozen poultry); and in circumstances where the said smack is administered by the recipient’s parent or caregiver, be regarded as a breach of the Crimes Act 1961, thereby entitling the full apparatus of the State to be brought against the person administering the smack? (breathe...)

Shall I start the petition process?

Someone Must Die

Just when you thought it was safe to return to your newspaper or favourite blogsite, the bastards went and released details of MPs' expenses.

You were probably sick of the strident and hysterical rubbish written or spoken over the last few days about either Paula Bennett or beneficiaries. You thought "well it has to end some time soon", but I bet you were hoping for a pleasant diversion from dirty politicking. You know, maybe a nice juicy murder, or another killer pandemic. Anything to take those preening politicians from our thoughts.

The unfortunate thing about the expenses scandal (for it will become a scandal - Kiwis are too mean to see how modestly our MPs are remunerated) is that a number of hardworking MPs are about to be asked unfair questions, and have their expenses examined out of context. Talkback radio callers will be foaming, Right blogs will cite Labour's extravagance, and Left blogs will accuse the Nats and Act of hypocrisy. And it will all become so dreadfully tedious and petty.

For all of our sakes, let us hope some celebrity snuffs it soon in iffy circumstances, so we can all talk about something more interesting.

9/11 Conspiracy Theorist Visiting Soon: Tin Foil Hats Likely to Sell Out

How many of you know that one of the main leaders of the 9/11 Truth Movement will be in Wellington in November? I didn't know until the comments on this vile thread discussion at the Standard alerted me to the fact.

In case you don't know, the "movement" is a group of organisations that don't believe the official 9/11 story. Most of them think 9/11 was an inside job by the US government.

The man visiting is Richard Gage, of Architects and Engineers for 9/11 Truth. His organisation believes there is compelling evidence that the World Trade Centre was brought down by a controlled demolition. It is fair to say their views are not shared by many in the industry.

In fact, I would go as far as to predict there may be a shortage of tin foil in the Wellington area in November.

I have no time for conspiracy theorists who opt to deny what is painfully obvious. The worst thing about the 9/11 conspiracy movements is that antisemites and Holocaust-deniers appear to be prominent within them. After all, it is the perfect story for someone with a world view that a New World Order controls us.

Holocaust denier and antisemite David Irving was banned from visiting New Zealand in 2004. I'm not saying we should also ban Gage, but I certainly hope his Wellington audience is ready to give him a hard time.

Can We Call It Privacy-Gate?

The title of course refers to the Bennett matter. This deserves a proper scandal title, after all.

So what do we know today:

• Bennett showed very poor judgment in acting the way she did. Her revelations in Parliament make that clear.
• The Opposition have been gleeful, perhaps rather too much.
• The Right have also been gleeful at the opportunity presented to them to beat up on the bludgers.
• Disclaimers have appeared on numerous left-leaning blogsites (my bad: I thought it was all a joke, hence my contribution. Apparently these guys are actually worried).
• The women at the centre of the storm don't seem to give two hoots about the privacy issues.

A bad look for Bennett, but she's not Darth Vader's mistress, no babies were eaten, and no seals were clubbed to death. So we can reasonably expect the sun to rise tomorrow.

Just don't tell the Standard and some other left-leaning sites. To be fair, it's what we'd expect. To me, a political moderate who possibly leans more left than right, the Nats are like a tepid cup of tea: not that pleasant, but it won't kill me. Whereas the folk at the Standard appear to be vomiting thunderously into the cup.

Dear Paula

Publication, dissemination, distribution, disclosure, or transmittal by any person of any information or other content located on this blogsite (“Blog”) shall not be construed as a consent (whether express or implied) by the author of this Blog (“Author”) to the use or disclosure by any other person anywhere in the world of any personal information of the Author, or any person associated with the Author.

No delay, neglect or forbearance by the Author in enforcing any right or remedy that may be available to the Author at law (whether under the Privacy Act (1993) (“Act”) or otherwise), will be construed as a waiver or limitation of any such right or remedy.

The rights and remedies of the Author under the Act should not be considered waived by the Author, unless the Author waives such rights and remedies in writing.

A waiver by the Author of any right or remedy in relation to a breach by any other person of the Act, should not be construed as a waiver in respect of any continuing or re-occurring breach of the Act, unless the Author has expressly specified otherwise in writing.

“Personal information” has the meaning given to that term in the Act.

Hat tip: Kiwipolitico

Debating The Silence

I have a questions for the Herald on its week-long Smacking Debate.

My questions is this: when will we see some actual debate?

Every morning this week the first thing I've seen when I've picked up the Herald (yes, my secret shame: I'm a subscriber) has been an attack on the current "anti-smacking" law by some expert or traumatised family.

Surely the first principle of any debate must be that an alternative viewpoint is allowed to be expressed. It troubles me that our biggest newspaper has determined it knows what the answer to the referendum question should be. Shouldn't it just stick to reporting the news? If it wants to run a series of articles on a topical issue, shouldn't we expect some balance?

Here's an example of how the Herald appears to have sold itself out to the "pro-smacking" lobby, from yesterday's newspaper, reporting on a parent's experiences:

"I said, 'Either your behaviour stops or you're going to get a smack'," he said. "She started kicking at me. I grabbed hold of her ankle and smacked her bottom." Two of his fingers went above the line of her belt, leaving red marks on her back.

The smack worked. She stopped kicking and was soon apologetic.

But the mental health service was about to give her a full medical examination. Lisa told a nurse about the red marks and the smack.

Why did the Herald not ask the obvious question: how hard did you have to hit your child to leave obvious red marks?

Now I don't want to accuse these parents of anything, because I don 't know the full facts. But why isn't the Herald asking these questions?

The Name's Kane: Delores Kane

It's a dirty job being a spy.

Take this story:

With its trout stream, village cricket pitch and sedate tearoom, Abinger Hammer is a quintessential slice of village England. Recently, this jewel of the Surrey stockbroker belt has added a more unconventional element to its list of attractions - a 6ft transvestite squatter called Delores Kane who believes he is the Messiah and happens to be Britain's best-known renegade former spy.

Delores is better known as David Shayler, the infamous former spy who sold state secrets to the tabloids in the 90s, and went to prison because of it.

A short distance from the home of the novelist EM Forster, David Shayler and his miniskirt-clad alter ego have taken up residence in a 17th-century National Trust farmhouse after a decade of spiritual contemplation which has led the one-time MI5 officer to the conclusion that he is the reincarnation of Jesus Christ and that all of humanity's ills can be cured by a four-year programme of hemp cultivation.

And is he wrong? If your brains were fried would you be worried about your mortgage?

But as he greeted The Independent at the door of the salubrious squat close to Guildford dressed as Delores in a blonde wig, sheer black tights, a leopard skin skirt and a cropped top with prosthetic breasts, before explaining that the world as it is known will end of 23 December 2012, it is perhaps clear why some of his former friends are concerned that he has suffered some form of mental collapse.

I can't think why...

Looking much thinner than the rotund spy who spent four months in a French prison without charge in 1998 and was then later sentenced to six months' imprisonment in Britain for breaching the Official Secrets Act, Mr Shayler is fond of expounding on the many "signs" (from biblical codes to the film The Da Vinci Code) which he says have proved him that he is the current incarnation of the Messiah - a role he says was previously performed by King Arthur, Mark Antony, Macbeth, Lawrence of Arabia and his immediate predecessor as the embodiment of Christ, Che Guevara.

Mark Antony = Jesus? Hmm... Anyone who's ever read Cicero's juicy and sordid Second Philippic would not be hurrying to compare Mark Antony to anyone divine. Maybe a dog on heat, but not a god.

Can you tell which one is Jesus?

But yet more startling revelations:

Alongside disarming frankness about his transvestism (Delores is the manifestation of a clothes-swapping habit that dates back to his teenage years and his conviction that "Jesus is a tranny"), Mr Shayler outlines how Castrol GTX adverts are a subliminal reference to God, and Gaia, the spirit linking all life, will rise up in December 2012 and reshape the cosmos.

A nice little product placement there too.

When I started reading this I immediately thought "David Icke. How long will it take?" Sure enough, towards the end of the story:

He is also complimentary about David Icke, the former BBC sports presenter who has gone before him in revealing himself as Jesus's reincarnation before suggesting the world is controlled by shape-shifting lizards. Mr Shayler said: "David has done some enormously important work. I see him as the John the Baptist to my Christ. I have spoken to him on the phone and suggested we meet."

Of course, you know how spies are. I've watched Spooks and all the Bond films. This could all be an act. Maybe he was undercover all along.

If so, he needs another gig. Because it clearly sucks to be a spy.

Politicians and Privacy

Politicians are typically feral beasts who'll do anything to defend themselves and their reputations. That many politicians have reputations worth defending is debatable.

But it should not have surprised us that Social Development Minister Paula Bennett bared both teeth and claws when challenged by a couple of beneficiaries on cutbacks to a training allowance.

Welfare is meant to be a ladder up. Unfortunately Bennett appears to be of the view that now she's used the ladder herself she'll flog it off on Trade Me for a song. When she's called on it she plays dirty.

But irrespective of whether Paula Bennett has behaved disgracefully by disclosing to the public details of the beneficiaries' incomes (more on that in a moment), has she breached the Privacy Act?

I'll let others who have greater expertise on privacy law make that argument, but if she is potentially in breach of the Act her defence is laughable:

Ms Bennett told Parliament that guidelines for ministers on the Privacy Commissioner's website allow people to give "implied consent" for their details to be released.

How in any universe, real or imaginary, could talking to the media be an implied consent?

Even more alarming is the fact she appears to have taken no legal advice on whether or not her actions would be in breach of the Privacy Act.

Predictably, Labour's now lodging a complaint with the Privacy Commissioner.

This is another PR disaster for Bennett. Even if she's legally in the right her actions appear mean and petty. It's no defence to say "but Labour would have done the same thing." Because it's still wrong.

A person who criticises the Government should not expect their personal details to be fair game. The State holds enormous amounts of information about all of us. Is our democracy well served if that information could become public the moment we dare to question our rulers?

Jesus and Home Shopping

Adam Rutherford of the Guardian asks: why did Jesus die?

At last count there were 676 comments on his article.

But I'm a problem solver, so let's cut to the chase.

Adam, I think it was because he was crucified.

******

Since we're on the subject of religion and the UK papers, the Times reports that the British Foreign Secretary wants to hold talks with "moderate Taleban".

I'm only guessing what a moderate Taleban might believe in:

"A woman or girl who looks at a man other than her husband, or who dares to go to school, should not be beheaded or stoned to death. That is barbaric. A systematic and sustained beating will suffice to teach her a lesson."

Of course, the Foreign Secretary is actually being very clever. He's prepared only to talk to the Taleban. Not to those evil bastards the Taliban.

******

On the topic of Afghanistan, Editing the Herald reports on the Herald's trip to that troubled country:

From the front page report on the US guilt-tripping New Zealand into sending more troops we don't have to Afghanistan:

The Herald travelled to Afghanistan this month, when the United States openly asked for more troops, more police trainers, more civilian expertise and more aid money.

One has to admire the Herald's boldness, but I fear that the United States will be less than delighted with our latest contribution.

I say don't underestimate the power of the Herald. One thing guaranteed to make the Taliban surrender in horror is the threat of another column by Kerre Woodham.

******

Back to the UK papers. Tonight's "No shit, Einstein" award goes to the writer of this article entitled "Inventor of Tamiflu profits from swine flu pandemic".

What is the Telegraph trying to say? Should inventors of lifesaving drugs not be entitled to profit from their inventions? That sounds like socialism to me. Oh my beloved Torygraph!

But here's a more interesting story about who's really trying to profit from the pandemic. At the bottom of the Telegraph story is this series of advertisement links.

Our own Woolworths is there. Swine flu's good for business, it seems.

One Of Our Noses Is Missing

David Farrar has announced a bold new experiment for Kiwiblog:

For four days (Mon 27 Jul to Thu 30 Jul) A temporary set of rules will apply as an experiment. The daily general debate will continue to be largely a free for all (subject to existing rules for extreme abuse, defamation etc). All other threads will be moderated/censored and posts that are even moderately offtopic, trollish, abusive will be deleted or edited. Demerits will not be given (unless comment is really over the top) during the experiment – the sanction will merely be the comment goes.

General rule to avoid trouble – respond to the topic and to arguments, don’t get personal.

Normal rules will apply from Friday. No immediate decision will be made about a long-term change. This is just an experiment with no per-determined outcome.

This is not before time. I'm not sure whether this prompted Farrar's new approach, or whether he's simply sick of the numerous two-bit minnow hacks (and yes, I am one) having a go at him.

Kiwiblog is the most popular political blog in the country, but a small group of noisy, abusive trollish posters have made it a laughing stock to many in the internet community. Mention "Kiwiblog" in some circles and watch the eyes roll.

A new dawn for Kiwiblog? Maybe.

******

Is there anything we aren't going to find out about Michael Jackson and his death?

This is a story that just keeps on giving.

Today's revelation:

Michael Jackson's nose was missing as he lay in state, an eyewitness has claimed.

The source told Rolling Stone magazine in an unconfirmed report he saw the Beat It singer's body on an autopsy table of a Los Angeles morgue with part of his face completely disappeared.

Hmm... Two possible theories here:

• His nose was somewhere in a jar or on a plate nearby. I'm no scientician, but doesn't an autopsy usually involve cutting and slicing?
• MJ's nose went missing quite a few years ago.

And then:

One of the King Of Pop's former housekeepers has previously told how the singer kept a number of false noses, which he applied using plasters and glue.

Adrian McManus said: "In his closet he had a jar of fake noses and stage glue, which he told me he used for disguises. But some were similar to his real nose, just without the hole."

Is there anything left to know about the Man in the Mirror?

The Weatherston Effect

So much nonsense has being written or spoken in the last month or two about the criminal justice system.

This is no doubt due to a number of salacious criminal trials that have played out on our TV screens and on the front pages of our newspapers. Add to that the incessant drum-banging by the "string-em-up" mob, and recent "controversial" comments by the Chief Justice on sentencing matters, and what you have is an overwhelming noise. Opinion columnists won't need to worry what to write about for a few weeks yet.

Each story brings a villain. The villain of the moment is Clayton Weatherston. If you took a sample of the opinions expressed in the main newspapers and blogsites you'd be forgiven for thinking Weatherston was the most monstrous man that ever lived. On talkback and on blogsites people are chanting for the death penalty, and newspapers are gleefully reporting on the threats Weatherston will face from other inmates.

Weatherston is a nasty piece of work: that's clear to anyone. But why have we chosen to vilify him in particular? After all, our prisons have many other monsters behind their walls.

The answer is that he is intelligent and articulate. We hate Weatherston more than the other monsters because we got to see the slimy, smirking, winking fool up close on TV.

My interest in the Weatherston trial has only ever been about the legal issues raised by the trial. I could easily write a blog post on what a sick evil psycho the man is, and how I hope he gets "sorted out" in prison, but why bother when there are others actually being paid to do this?

The "Weatherston Effect", as I'll call it, pushes even (relatively) sensible journalists and columnists into a frothing fury. Take the effort of Fran O'Sullivan yesterday. O'Sullivan usually writes about politics and the business world and is, I think it is fair to say, right-leaning. Some would say if she leaned much further right she'd fall on top of Rodney Hide. But that's another matter.

O'Sullivan was clearly struggling with this one, and it took her a while to get into the swing of things. Her beginning could have been any other political/business story:

The primary question must surely be in these politically correct days

But the "PC nonsense" theme doesn't really work for this story. O'Sullivan writes that Weatherston is clearly mad and shouldn't be in prison. This despite no evidence ever being presented during trial that Weatherston didn't know what he was doing, or that what he was doing was morally wrong (i.e. the legal definition of insanity).

So O'Sullivan's suggestion that Weatherston's personality disorder should have earned him a stay not in the slammer, but in the house with bouncy walls, is surely about as "PC mad" as you can get.

There's been far too much analysis from rent-a-quote psychologists about Weatherston's mental state, and I wonder why the Herald has suddenly shown an interest in narcissism as a mental disorder.

Come on people! Don't you think it's time we moved on and found something else to talk about? Surely we can milk some more from Michael Jackson's death.

Napoleon Rides Again

From the Stuff website:

A poll putting Manukau Mayor Len Brown ahead of Auckland City Mayor John Banks in the race to be the super city's first mayor is part of internal Labour Party plotting, Banks says.

He said the poll itself was "shonky" and did not match his own polling. UMR Research surveyed 482 Aucklanders to show Brown had 35 percent support to Banks' 34 percent.

Mr Banks told Stuff.co.nz UMR were Labour pollsters and their operation was about getting Brown into the candidacy ahead of Auckland Regional Council chairman Mike Lee.

Banks' comments defy logic. UMR is a respected and independent polling company. And if he really wanted to attack the poll, why didn't he just point out its relatively small sample group? And it's over a year away from the election. Surely it's a little early to be panicking over the polls.

Banks' problem is that if he has one strong opponent, as opposed to two or three, he'll lose. His problem is this: large numbers of the populace just don't like him. His rampant ego, temper tantrums and preening don't sit well with many. And that's without even mentioning his policies.

From the same article:

"I am the only candidate who has put up his hand and said this is a job I really really want."

So we ought to vote for him because he's more desperate for power than the others?

Will The Minister Please Explain Himself

So my last post took the mickey out of the Justice Minister.

But let's be fair to the guy: Power seems diligent and certainly shows energy. Although David Farrar's gushing praise made me slightly queasy.

It now seems Power was trying to say that the sexual history of the complainant with the accused should be off limits. It currently is not, although the complainant's reputation is.

So why didn't Power just say that in the first place? Instead he's launched an attack on those who criticised him. From the Herald:

Lawyers have criticised Mr Power's plan made public in a major speech yesterday, saying such restrictions already exist and claiming he does not know the law.

But Mr Power said they had misinterpreted his speech.

"Lawyers should read proposals before criticising."

When Ministers of the Crown talk about law reform, they need to be clear about what the hell they're talking about.

Back To Law School For Justice Minister?

From the Herald today:

The sexual history of rape-case complainants may no longer be able to be raked over by defence lawyers in potentially far-reaching reforms proposed by Justice Minister Simon Power.

He is considering making evidence about a complainant's previous sexual relationships inadmissible without the agreement of the trial judge.

Surely not! How extraordinary!

Oh, wait, what's this?

44 Evidence of sexual experience of complainants in sexual cases

(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.

(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.

Yes, that's right: it's already the law.

I won't blame the Herald. After all, its report is based largely on this press release from Simon Power.

Isn't it comforting to know our Justice Minister and his advisers have such a full appreciation of the criminal law?

Provocation: Time To Go (II)

Since I wrote my piece yesterday on why the partial defence of provocation must go, a few people have come out in the media and blogosphere to express support for the partial defence, albeit in some modified form.

I outlined in my piece some of the justifications put forward for retaining the current law. I then dismantled them.

But now Stephen Franks has argued the partial defence should remain on the books. I'm not a great fan of his work, to be honest, so it gives me enormous pleasure to deconstruct his latest incontinent ramblings.

Here's what the former Act MP said in his blog:

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

The waste of resources? Doesn't everyone, however odious, deserve a hearing? To hell with that. Next time let's just take the guy out back of the station and put a bullet in his head. Much cheaper.

Sure, let's deal with any issues about delay (hint: maybe if we weren't so obsessed with throwing people in jail the court system wouldn't be so clogged up). That doesn't mean we shouldn't look at reform on other issues, like provocation.

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".

This is typical Franks. An utterly irrelevant point on the issue of provocation, but it goes to the heart of Franks' belief system. He favours a system of retribution and punishment, not rehabilitation. In Franks-Land all crims are monsters, judges are weak-kneed liberals, and victims of crime have no say. So what's that got to do with provocation?

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.

See my point above. Leaving the provocation law as is will not do that either. So what's that got to do with provocation?

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.

Most battered women have relied on self-defence, which is an absolute defence, rather than provocation.

If provocation were to disappear from the books, a judge could still take provocation into account during sentencing. There is no mandatory life sentence for murder in New Zealand.

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.

This is the only criticism that has any legs at all. Indeed, the grounds for provocation would be raised at sentencing. But here are some considerations:

• defence lawyers won't be playing to the jury in a sentencing hearing
• the media don't follow sentencing hearings as avidly as they do trials
• sentencing hearings don't generally drag on for weeks
• victims won't be cross-examined in a sentencing hearing.

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.

More classic Franks, and straight from the Sensible Sentencing Trust playbook. We are told that judges are the problem. This despite the fact Weatherston had every right under the law Franks wants to retain to raise provocation as a partial defence. If Franks doesn't like that maybe he ought to blame Parliament, who passed the law. Judges are merely following the law handed to them.

Franks likes the partial defence, though he can't provide a sensible explanation why. Maybe he ought to find a justification that actually makes sense before pushing the "publish post" button on his blog.

Hitler, Stalin and Weatherston

It's always good to see the Herald keeping things in perspective.

Like this article on the Weatherston trial.

Someone has lined up the mass murderers of history and decided they were narcissists. Then compared them with Mr Weatherston, who is also a mass... um.. hang on... who killed one person.

I'm no rent-a-quote pop psychologist, but I have done a lot of reading in the past about some of these monsters. All despots display narcissism to some degree, but I'm not convinced all of these ghouls were A grade narcissists. They had plenty of "issues" (as the experts would say), but not all badness is narcissism related.

Is it too much to ask the Herald to enlighten us on its sources?

Interestingly, the one despot who stands out to me as displaying classic narcissism is Mao. Why's he not on the list?

And if we want a list of narcissists to handily refer to, surely the entertainment and fashion industries could furnish a nice long list.

Provocation: Time To Go

It’s time to get rid of the partial defence of provocation.

A couple of recent criminal trials have elevated to public attention the issue of provocation. First there was the trial of Ferdinand Ambach, the Hungarian tourist who bashed Ronald Brown repeatedly with a banjo, before the neck of the instrument was rammed down the victim’s throat. Ambach claimed he was provoked by two unwanted sexual advances by Mr Brown. In the Ambach case the jury found the accused not guilty of murder, but guilty on the lesser charge of manslaughter.

More prominent has been the Clayton Weatherston case. In that case the jury was asked to decide whether Mr Weatherston was guilty of murder or manslaughter for the killing of his girlfriend Sophie Elliot. The jury of course found him guilty of murder.

Both cases have incited controversy. Many people have been offended by the nature of the defences run in both cases. Inevitably, a defence of provocation requires the defendant to impugn the character or good name of the victim. But arguably in the Weatherston trial things were pushed too far. That is not a criticism of the defence team in each case: the law as it stands allows provocation to be raised as a partial defence, and they were arguably just doing their job - arguably, as I say. But the public reaction to the tactic has generally been one of disgust.

So let’s take a good look at the law and see if it needs to be dropped.

Or, better still, let’s just act on the recommendations of the Law Commission, who’ve already looked exhaustively at the issue.

If you read the Commission's report you’ll probably agree the time has come to drop the partial defence.

The public disgust incited by the Weatherston trial, the proposals by labour MP Charles Chauvel, and now news that Simon Power is reviewing the law, mean maybe this time something will be done.

But in case that all sounds like a lot of grumpy venting, let’s actually look at what the partial defence is and why it must go.

So what is the partial defence?

The Crimes Act 1961 states that a culpable homicide is either murder or manslaughter (subject to an exception for infanticide).

Provocation is a partial defence to murder. Partial defences are only available in homicide cases. They apply where the circumstances, but for the partial defence, would constitute murder. They result in a lesser conviction, usually for manslaughter.

Section 169(2) states that it will be manslaughter if both of the following apply:

• in the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control
• it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.

However, the meaning of section 169(2) is so shrouded in confusion that even appellate judges struggle with it. In the case of R v Rongonui [2000] 2 NZLR 385; (2000) 17 CRNZ 310 (CA ). para 216, per Blanchard J, the Court said:

The present law is plainly unsatisfactory. There must be doubt whether a jury can realistically be expected to understand the instruction which the statute requires of the judge. What can and should be said is that the present statutory provisions are in need of early attention by Parliament. The policy behind any amended provision is of course for Parliament. Whatever approach is adopted its expression must be easier of understanding and application than the present section.

Why abolish the partial defence?

The Law Commission report is damning. One critical problem with the law is that the courts have struggled to understand exactly what section 169(2) means. It imposes an objective standard (“person having the power of self-control of an ordinary person”) with an assessment of the person’s characteristics (“but otherwise having the characteristics of the offender”).

From the report:

In our view, appellate courts and juries have struggled (and continue to struggle) to come to grips with the provocation defence for one very simple reason: the defence is irretrievably flawed. Some of the flaws are such that the defence does not in fact fulfil its policy purposes. These are outlined in chapter 3. First, it purports to be a partial excuse, but arguably does not give effect to the spirit of excuse philosophy (recognition of human frailty), because defendants who through no fault of their own are unable to demonstrate an ordinary facility for self-control are excluded from the scope of the defence. Secondly, it envisages a “bifurcation” between a defendant’s perceptions of heightened provocation gravity, which may be affected by particular characteristics, and their capacity for ordinary self-control, which must be wholly objectively assessed. Thirdly, it assumes that there is in fact such a phenomenon as a loss of self-control. Fourthly, if the phenomenon of loss of self-control exists, it further assumes that the ordinary person, faced with a severely grave provocation, will in consequence resort to homicidal violence, when in fact it is arguable that only the most extraordinary person does this. And finally, the tensions that can be observed in the legal development of the provocation defence can arguably be seen as a response to liberal motives – that is, a desire to meaningfully recognise increasing social diversity. However, in its practical application, we would suggest that the provocation defence backfires in this regard, because of the stereotypical effect of requiring defendants to define their characteristics, and the defence’s bias in favour of the interests of heterosexual men.

There is one further and final issue, that to our minds is much more fundamental than the legal, conceptual and practical difficulties already canvassed. Section 169 excuses a homicidal loss of self control, in the face of a provocation of such gravity that it would have prompted a person with ordinary self-control to do likewise. The defence is thus open-ended about the precise emotions that might be driving the defendant; in other words, on its face, provocation is not necessarily confined to an angry loss of self-control, as opposed to one prompted by fear or sympathy. However, anger is the context in which it is commonly understood to operate, and is most frequently used. We would thus argue that the defence puts a premium on anger – and not merely anger, but homicidally violent anger. This, to our minds, is or should be a central issue in considering whether reform is required: out of the range of possible responses to adversity, why is this the sole response that we choose to partially excuse? Ultimately, issues such as the sexist and heterosexist bias of the provocation defence, that are accorded considerable weight in the literature, strike us as relatively immaterial, when weighed against the larger question of how we, as a society, wish to choose to respond to violence.

It's a good point. Why do we give crimes of anger or rage a special status? Why is a mercy killing always murder, whereas a maddening rage killing is potentially manslaughter?

The difficulties expressed by judges in interpreting the law were also cited:

Provocation is widely recognised as a troublesome and difficult area of the criminal law. Dissatisfaction with it has been extensively and repeatedly expressed, in all manner of forums. It is evident in judicial dicta at the highest levels. Submissions to similar effect were received by the Law Commission in consultation on Some Criminal Defences with Particular Reference to Battered Defendants: the District Court judges’ jury trial committee said provocation was “an all but impenetrable and incomprehensible mess” and the High Court judges described it as “a blot on the criminal law”. There is a vast and complicated literature, addressing and critiquing every possible aspect of the defence, and a similarly vast and complicated body of case law. We have been able to address only a very small portion of that material in this report.

One matter often raised in defence of retaining provocation as a partial defence is the need to protect mentally ill or impaired persons. But the Commission rejected such concerns as being unfounded:

In particular, our current terms of reference were founded on concerns about the risk of prejudice to mentally ill or impaired persons arising from provocation’s repeal. We have not found any basis for such concerns. The theory, now widely accepted in almost all jurisdictions, is that provocation is a partial defence for those who are in a broad sense mentally normal; diminished responsibility (which does not exist in New Zealand) would be the appropriate defence for the mentally ill or impaired. The practical effect of this is to limit the extent to which section 169 benefits mentally ill or impaired persons. This conclusion is borne out by reviews of case law. Furthermore, it may be that reliance upon the provocation defence is in fact disadvantaging mentally ill or impaired defendants, because of the disjunction between legal and psychiatric considerations.

Provocation requires a binary approach – the defendant is either convicted of murder or of manslaughter – and if they are convicted of murder, the judge is likely to be constrained in his or her ability to take account of the alleged provocation on sentence. By contrast, the sentencing forum permits a more rounded consideration of the issues, unhampered by the legal definition of provocation, including the extent to which mitigation may be appropriate by reason of mental impairment.

The Law Commission also took the view that the historical justifications for the partial defence no longer applied:

The partial defence of provocation is an ancient defence to a charge of murder, which has been recognised in the criminal law for at least three centuries. The historical rationale for it was to mitigate the death sentence, and then subsequently the mandatory life sentence. On this basis, there is arguably no longer a need for provocation to exist in New Zealand.

Additionally, the provocation law tends to favour heterosexual men. This can certainly be seen from the cases where the partial defence has been successfully used:

The way in which it tends to operate against both women and gay men and thereby serves the interests of heterosexual men, is one example in relation to which there is a substantial literature, documenting the way in which provocation has acted as a shield for men to react with murderous violence to threats to their sexual identity. The thesis is that the defence is overwhelmingly used by men, and often used in situations where they deem their masculinity to be fundamentally threatened (when their partner leaves them for another, or they are propositioned by another man); the defence also offers sympathy to a reassertion of that masculinity by violence, so that from start to finish it operates as a defence that protects and reaffirms a male way of thinking. Furthermore, an acceptance that such reactions are those of the ordinary person (as the provocation defence explicitly does, when it succeeds) implies that it is natural and excusable to feel revolted and violently outraged by the gay men and the former partners who have done no more than exercise their freedom of choice and expression.

The Law Commission recommended that factors in mitigation, such as provocation, would be better addressed at the time of sentencing, and that for that reason the partial defence ought to be abolished:

We recommend that the partial defence of provocation should be abolished in New Zealand by repealing section 169 of the Crimes Act 1961; the defendants who would otherwise have relied upon that partial defence should be convicted of murder; and evidence of alleged provocation in the circumstances of their particular case should be weighed with other aggravating and mitigating factors as part of the sentencing exercise.

And:

While there are some arguable reasons to retain either a partial defence of provocation, or partial defences in general, overall we consider these insufficient to outweigh the considerable problems that bedevil both the status quo and every other possible reform option. This report therefore concludes, first, that the partial defence of provocation in section 169 should be repealed; and secondly, that it should be replaced by a sentencing guideline, rather than a revised partial defences framework.

But are there any good reasons to retain the partial defence?

The Law Commission identified two main justifications for retaining provocation under our law.

The “fair labelling” argument.

The argument goes that it would be fundamentally wrong in principle for the criminal law to fail to tangibly recognise a degree of culpability short of murder, and the provocation defence is a desirable mechanism for achieving this.

A person with a lesser degree of culpability should not suffer the stigma of being labelled a murderer. Letting the jury make the decision is a better way of reflecting the community’s view on the matter.

If jurors feel some sympathy with the accused but are faced with a stark choice between a conviction for murder and an acquittal, they may acquit in circumstances where otherwise under the provocation law the accused would have at least had some culpability. This may not always be desirable or in the interests of justice.

But the Commission rejected the argument that in all circumstances a label of murder was likely to incur a greater stigma than manslaughter:

All of the objections to provocation’s repeal also turn on the assertion that murder is unique, although it is in fact arguable that the stigma attached to any given homicide varies depending on the circumstances of the case as much as the name of the crime. For example, a drunk driver who crashes and kills the occupants of another car will be convicted of manslaughter, which reflects lack of criminal intent, but not the public abhorrence of this kind of crime; whereas an elderly spouse who kills his failing partner, by consent or believing that it is in her best interests, is dubbed a murderer. We consider that the argument might plausibly be made that some murders (e.g. mercy killing) may be more sympathetically regarded by society than some instances of manslaughter that are widely regarded as particularly abhorrent.

It then provided concrete examples to show how the “fair labelling” argument really doesn’t stack up:

…it has been said that provocation justly distinguishes between defendants who kill intentionally in cold blood and defendants whose acts are unpremeditated and occur in an extreme emotional state. However, this is a pejorative generalisation without reference to the facts: anyone who reviews the cases will find that not all cold blooded killers are undeserving of sympathy, and not all defendants who have relied upon provocation have acted in an unpremeditated and extreme emotional state. It does not follow that someone who kills in hot blood (e.g. a young man such as Edwards, who was provoked to kill David McNee by an alleged homosexual assault) is automatically less culpable than a cold-blooded killer (e.g. assisting the suicide of an elderly and terminally ill spouse, as in the case of Rex Law).

The "everyone else has one" argument

This argument goes that a majority of jurisdictions with which New Zealand typically compares itself still offer a provocation defence. But many of those countries also have a mandatory life sentence for murder. That is not longer the case in New Zealand. For countries with a mandatory life sentence and no ability to take into account reduced culpability at sentencing for murder, some kind of provocation defence may make sense. It makes no sense in the New Zealand context.

Conclusion

There are no good reasons to retain the current law. It's been exhaustively examined on more than one occasion. Mechanisms already exist under New Zealand law to reflect reduced culpability.

Any why give provocation a special status? What of other potential excuses for killing, such as the mercy-killing of a terminally ill relative? Why do we seek to bestow a special status on anger?

Let's hope the Government moves on this soon.

Dear Mr John

Dear Mr John,

Please can you help me and my people.

I live in a small village on the West Bank. My life is difficult. We have no running water, and when I go with my sister to the well we are sometimes abused by the Israeli settlers who live nearby. Once they fired guns at us and told us if we ever came back we’d be shot. We are very afraid.

I have a Jewish friend in that settlement. Our friendship is a secret, as it would bring great shame on both our families. He tells me his family can’t go out alone for fear of being attacked by my people. They must travel in armed convoys. They live in fear. It makes me very sad to see my friend's family suffering so.

Last year the Israeli soldiers came and took my brother away for questioning. I have not seen him since.

Truly it is a bad time for us all. Papa has no work, and we must make do with very little. Our lives are grim, and we have very little hope that things will get better.

But, Mr John, I think you can help us.

My Jewish friend has the internet, and we sometimes look to see what goes on in the outside world. We always read the New Zealand Herald. It is a wonderful paper, and for us in this awful place it is a pillar of reason, fairness and journalistic integrity. It is the only thing we read online. So when I read that you had singlehandedly resolved a dispute between two implacable foes, I was filled with hope.

Please come to Palestine, Mr John. Your peacemaking skills are needed here more than ever. Only your healing hands can mend the wounds inflicted by generations of violence and bloodshed.

You must come. Please, Mr John.

Yours,
Ahmed

P.S. Please don’t bring your foreign minister, that McCully man. He bad.

Imperator Fish Home Shopping Now Open For Business!

With news that Dunbar Sloane are proposing to auction an alleged piece of A flagpole cut down by Hone Heke, it now seems an appropriate time to launch my own shopping venture.

So welcome to Imperator Fish Home Shopping!

I have a whole range of products to offer my readers. So let’s go shopping!

What can you buy?

The True Cross

This splendid piece, lovingly crafted with Baltic Pine, is an essential item for the genuine collector.

You say you’re a true believer, but nothing shows devotion like a religious relic.

And at this price it’s a steal (really it is a steal).

$10,000.00

Ayn Rand’s Thighbone

Want to make all the other boys and girls at this year's Roundtable Ball go “wow”?

Better hurry though. I have only ten available.

Make an offer.

PM's Book

I have one copy of John Key’s book “My Plan To Beat The Recession”, personally signed by the PM.

I guarantee this will be a collector’s item. You won’t find this plan anywhere!

$5,000.00

Dinner with Michael Laws

He’ll have you in stitches as he regales you with tales of PC madness, racists, loony leftists and onanism.

Just don’t mention the BSA.

All proceeds go to worthwhile causes (ladies and cocaine).

NZ$500.00

Set of steak knives.

Imagine slicing your wife/girlfriend/other-half with these. And if they catch you just say you were provoked!

And if you click “buy now” in the next ten minutes I’ll throw in a complementary copy of Richard Worth’s new novel “Naughty Nautical Tales”.

$10,000,000.00 (Westpac finance available).

With deals like this you'd be a fool to say no!

BUY NOW! BUY NOW!

Section 92A: Are We There Yet?

I don’t generally blog on copyright and the internet, even though I’m an IP lawyer. Admittedly digital copyright isn't my specialty, but I know a bit about the area.

The reason I don’t generally comment on such matters are twofold:

1. Self preservation. The debate on section 92A of the Copyright Act became so heated that anyone who dared to express a contrary view to the rest of the internet community was likely to be torn to shreds.
2. Professional sensibilities. I have clients on different sides of the debate. As a lawyer I’m an advocate for my clients. So it’s sometimes unwise to express a strong public view on IP matters if that view could be at odds with the interests of a particular client.

However, I do feel the need to comment on the section 92A review.

Background

Unless you have been living in Antarctica for the last six months, or are new to the internet blogging thing, you’ll know there has been hot debate over section 92A of the Copyright Act 1994.

That section was inserted into the principal Act by section 53 of the Copyright (New Technologies) Amendment Act 2008.

Section 92A says:

92A Internet service provider must have policy for terminating accounts of repeat infringers

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

Section 92A was originally due to take effect as at the end of March, but its implementation has been indefinitely delayed after an effective “blackout” campaign by bloggers.

The Government has now recognised there needs to be more consultation on this issue, and has now issued a policy proposal document and invited public submissions.

So what was the problem?

The debate over section 92A centred around a number of concerns expressed by the internet community:

• What is an “internet service provider”
• What does “repeat infringer” actually mean?
• The potential for ISPs to terminate accounts without appropriate safeguards to protect account holders from unjustified termination.

Unfortunately the debate became somewhat excited, with more heat than light generated. The main positions can be summarised as follows:

Internet Community: Oh my god! We’re doomed! We’ll all lose our internet. Police state! This is the end of days.

Copyright owners: Come now, we wouldn’t do such a thing. We’re really lovely people. You can trust us. Just don’t cross us.

ISPs: Oh great! Now we’ve got to come up with a policy that nobody will be happy with. Couldn’t you have just left us out of this?

So what’s new?

It’s possible, just possible, that common sense has taken over. I never subscribed to the view expressed by other bloggers that section 92A heralded the end of western civilisation. But there were clearly areas that needed to be worked on.

The policy proposal document sets out a three-stage process:

1. Issue Cease and Desist Notice

Where a rights holder considers on reasonable grounds that there has been online copyright infringement of one or more of its works, it may invoke the section 92A procedure by sending a first infringement notice to an ISP. The notice must be in a particular form.

That notice must be forwarded by the ISP to the subscriber.

If there is further copyright infringement by that subscriber, a rights holder may send, via the ISP, a cease and desist notice. This must occur within 9 months after the initial notice.

The subscriber will have an opportunity to reply within 30 days to either notice by way of a response notice directly to the rights holder. The rights holder can either accept or reject it, and must inform the subscriber accordingly.

2. Obtain Copyright Tribunal Order For Subscriber Details

Where a rights holder considers on reasonable grounds that there has been further infringement by a particular subscriber after a cease and desist notice has been sent, and the subscriber concerned has been provided with an opportunity to respond by way of a response notice, a rights holder may apply to the Copyright Tribunal to obtain an order requiring the ISP to provide the name and contact details of the alleged copyright infringer (the subscriber).

It is intended that this process be undertaken online. The information obtained may only be used to take action against the alleged infringer.

3. Remedy via Copyright Tribunal

The rights holder may then register an infringement complaint with the Copyright Tribunal.

The subscriber will have an opportunity to respond to the allegation and to elect to proceed to mediation. The Copyright Tribunal will be convened unless agreed otherwise. There will be a set filing fee, though if mediation is elected the mediation costs are shared.

The Copyright Tribunal may order a number of remedies in favour of the rights holder, including awarding damages, issuing injunctions, an order for an account of profits, ordering the subscriber to pay a fine, and ordering an ISP to terminate the subscriber’s internet account.

Is this an improvement?

One of the advantages of the proposed new procedure is that it will ensure arbitrary action is not taken against internet account holders. The threat of arbitrary action was the biggest gripe the internet community had with section 92A. Now no action can be taken without either a Copyright Tribunal order or the consent of the account holder.

There are still many questions remaining. One issue with section 92A is that the definition of "Internet service provider" under the Copyright Act is unclear. The definition may cover not just traditional ISPs, but other networks such as workplaces. The proposed new policy does not appear to address that matter, leaving uncertainty about just who the policy applies to.

It is also questionable from a rights holder's point of view whether the procedure will be of any practical use. There will need to be much detail ironed out during submissions if this process is to be workable. If the process is not simple to use rights-holders may simply go old-school and seek court orders against infringers.

However, the proposals are certainly more balanced, and must be a positive step as far as the internet community is concerned. It may be that some of the details can be thrashed out during submissions. Let's hope so.

End All Regulation Now!

So ideology has prevailed over scientific wisdom.

It doesn't matter that putting folic acid into bread has been shown to reduce the incidence of spina bifida and other diseases.

Because "mustn't let nanny state tell us what to do" trumps public health every time, it seems.

Never mind that most of us have no idea what else bakers are putting into our bread.

What will we see next? The removal of fluoride from our water? Let's remove all food regulation, because isn't that just more nanny state? And why stop at food? Why can't I have a skinful and then get behind the wheel? Why can't I give the wife and kids the bash? How dare the state tell me what I can do.

The role of law and regulation is to impose on a community a series of rules all must abide by. Thus every Act or Regulation ever passed perpetuates the nanny-state.

So will the Nats now proceed with a rollback of all legislation? Will we all get to live in an idealised world, such as that depicted by the philosophers Locke and Rousseau?

Hobbes' "solitary, poor, nasty, brutish, and short" would probably be a more accurate description of such an existence, however. So I suspect the Nats might be quite keen on retaining the nanny state after all.

Which is why their decision to drop the folic acid plan makes no sense, whichever way you look at it.

Is This Michael Laws' Most Insightful Column Yet?

Could someone please help me out?

I don't buy the SST - why give them my money when I can access it online?

But because I don't get the hard copy I'm not sure what to make of Michael Laws' latest effort. It is largely gibberish, not that there's anything new in that.

Here it is.

What I would like to know is this: when Laws says "It was a stupid idea from the start", what did he mean?

• Was he referring to his every public utterance?
  
• Was he simply providing a helpful synopsis that could be applied to each of his SST columns?
  
• Maybe he meant his broadcasting career in general?
  
• The decision of Radio Live not to sack him after his refusal to apologise over his disgraceful firefighter comments?
  
• The decision by the voters of Wanganui to elect him mayor?
  
• The decision by his parents to conceive?

Answers on the back of a cheque please.

When Winning Isn't Enough

We in New Zealand take our rugby rather seriously. Probably too seriously.

When we lose it's a catastrophe and the coaches should swing from the nearest gibbet.

When we lose we don't celebrate. There's more a sense of relief.

And then there's this reaction:

I get an awful feeling deep down inside that all Deans is doing is laying traps not designed to go off until 2011.

Pardon? Can't we just accept we won a tough game against a useful Australian side? I'm pretty sure Deans wanted desperately to win.

And forget 2011. We all know what happens when we think too far ahead of ourselves. Let's worry about the World Cup in, say, 2011.

Brave Judge Lifts Head Above Parapet

Chief Justice Dame Sian Elias has been in the news this week, after a speech she made to women lawyers last Thursday.

Most of the attention has been focused on the reaction to her speech, rather than the speech's content.

The text of the speech can be viewed here.

What did she say?

Elias chose to speak about the criminal justice system, and it is a matter she is well qualified to talk about:

My views are those of someone who has been involved in criminal justice in one way or another for forty years.

She spoke about current public perspectives on crime:

We have seen the rise of popular anxiety about crime which has led to calls for increasingly punitive sentences, and which has led to fixation with management of risk and marked intolerance when risks come about, as risk always does from time to time. We live in a climate in which "every mistake becomes a scandal".

Part of the problem has been the emphasis on victims' rights. The "re-personalisation" of criminal justice leads victims to expect the courts to impose severe sentences as a gesture of loyalty to victims. The system is designed to turn hot vengeance into cool, impartial justice, but as Elias says:

Cool, impartial justice is not getting a very good press these days.

She makes it clear she is not advocating a return to the days where the rights of victims were largely ignored. However, she questions how useful the involvement of victims in the various criminal justice processes is as a means of helping victims. And she clearly has concerns about the impact of victims' rights on the sentencing process.

Much of her speech is devoted to looking at the effects of incarceration on crime levels. She concludes that the effect is very small. Most offenders are already enormously troubled people, and prison may simply make them more dangerous.

...the problem with incarceration is that in all but a small number of cases at some point the offender must re-enter society... If prison further damages such an offender, he may well be more dangerous when he comes out than when he went in.

She points out that prisoners have much higher rates of mental disorder than those found in the community.

Reforms over the years have led to the widespread use of community-based sentences. But they have not brought down the number of prisoners. She suggests a lack of personal life-skills may mean many criminals serving community-based sentences may be unable to fulfill the sentence conditions, thus leading to eventual imprisonment.

She makes it clear that she sees a place for prison. But her point is that as a means of reducing crime, imprisonment does not work.

Penal policy is largely irrelevant to reduction of crime and to making our communities safest.

Our imprisonment rates are among the worst in the world, and there is a looming crisis because there simply are not enough beds to meet demand. She advocates a concerted effort be made to reduce the number of prisoners. She identifies five potential ways to do this.

1. Community education

Elias wants a campaign to promote the message that imprisonment does not reduce crime.

... we need a strategy of public education about the causes of crime and the limits of prison as a solution. We need acceptance that sentences should reduce and that imprisonment should be reserved for cases in respect of which it is the only appropriate response... We need to support politicians and officials undertaking these policies, not to turn on them.

2. Intervention

She is in favour of intervention at an early stage, before offending can begin. Potential criminals can be identified at an early age:

The unfortunate reality is that the most influential risk factors will have been present at birth. As a result, those at risk can be identified with "increasing certainty from birth to the beginning of their adult offending career". The most effective interventions are the early interventions.

3. Probation

The Chief Justice identifies the deterioration of the probation service as one factor in the increase in custodial sentences. It is:

a service that is overwhelmed by its case-load, under-resourced to do the job, and insufficiently supported and appreciated in the hard work it does by the public.

The probation service's increasing emphasis on managing risk means officers have less time to actually make a positive difference to the lives of offenders.

Today, responsibility to manage risk, which is imposed by statute, is conducted against public unwillingness to accept that risk cannot be eliminated, and a pervasive culture of blame. Meeting these public expectations is not only highly stressful and largely unrewarding, it seems to leave little time for getting alongside offenders.

And she says:

Today, the statutory functions of the probation officer contain no explicit reference to advice or assistance, much less to "befriending". Have we lost something here that needs to be reconsidered?

4. Mental ill-health

She makes the point that substance abuse is rife throughout prisons, and among the criminal community. She quotes studies that show 90% of those prisoners with mental health problems also have a substance abuse disorder. Only a minority of these are ever treated.

It has been estimated that up to 70% of male prisoners have some form of anti-social personality disorder.

While personality disorder is not invariably associated with criminal behaviour, it is clearly linked with much abnormally aggressive or seriously irresponsible conduct. We need more commitment to addressing this component of criminal offending.

5. Reduction of prison population

The Chief Justice must have foreseen the reaction to her fifth point:

My last suggestion may be controversial. I do not know whether it is practical or politically acceptable, but I think it needs to be considered.

She recommends using executive amnesties to reduce overcrowding in prisons. This is a tool used in some other countries. She is right that it won't go down well with many, and much of the hysterical reaction has been focused on this point. Clearly, however, she has not advocated releasing murderers or rapists. The amnesty idea may have some merit, and it at least deserves debate.

She also recognises that the court system needs to be improved to reduce the length of time prisoners are in remand.

What has the reaction been?

The reaction to Elias' speech has been predictable, and the usual suspects have been lining up to lob grenades at her. This usually happens whenever some brave soul lifts his/her head above the parapet and attempts to add something intelligent to the ongoing debate on law and order.

Garth McVicar, spokesperson for the Sensible Sentencing Trust, as usual was the most vocal and outspoken:

It's corrupt. I think she is totally on the wrong track. She should resign, if that's what she thinks, because it will be difficult for her to continue in her job.

And Justice Minister Simon Power has told her to butt out of politics:

The Government is elected to set sentencing policy. Judges are appointed to apply it.

The Act Party's David Garrett has also expressed predictable outrage that someone should have a differing opinion to his own.

But Law Society President John Marshall QC defended her:

Most of what the chief justice says is non-controversial, and most lawyers would fully agree with her comments - for example that imprisonment does not reduce crime, and that the causes of crime need to be addressed, as do the issues of mental health and substance abuse.

Did she cross a line?

A number of politicians peddling tough-on-criminals policies have accused the Chief Justice of venturing into the political realm with her speech.

I'm not a constitutional lawyer, so it's not for me to make a definitive assessment.

However, anyone involved in legal practice knows that judges frequently express opinions outside of the courtroom. Because in most cases those opinions are expressed in a restrained manner, usually nothing is made of the matter. Judges have expertise in matters relating to criminal justice, which is why they often speak at legal conferences, or are keynote speakers at professional events.

This arrangement works well, so long as judges maintain a sense of moderation and don't actively attack government policy or politicians.

If you read the Chief Justice's speech, the first thing you realise is that there's nothing particularly radical or controversial abut anything she has said. She has pulled together a number of strands from accepted wisdom on crime, punishment and rehabilitation, and presented them in an authoritative and restrained manner.

There has never been an absolute separation between the different branches of government. Members of the judiciary don't go home after a day's judging and lock themselves in cupboards: they are respected members of the legal profession with valuable experience and insights into the system they help to administer. They have always commented on matters relating to their job.

And let's not for a moment pretend our politicians either respect or understand the supposed separation. People like the Act Party's David Garrett are always at it, attacking judges for their soft sentences. Maybe he should have stuck to employment law, because he doesn't understand constitutional law.

Despite some of the silly responses (and, frankly, we wouldn't expect anything less from the likes of McVicar and lightweight Garrett), Elias has succeeded in getting the issue to the fore. It is true that much of the media response to her comments has been directed towards whether she stepped over the line and ventured into political territory. But the newspapers have generally reported fairly much of what she said.

We cannot expect any immediate change to the toxic atmosphere surrounding issues of crime and punishment, but contributions like those of the Chief Justice are useful and generate attention.

Ithaca At Last

I have returned to the world of blogging after a week away. During that time I barely read a newspaper or looked at a computer screen. And yet I did not suffer a meltdown or assail my poor wife with the noxious opinions I usually reserve for my online audience (all two of you).

The Great Pyramid of Hastings

We travelled down to the Hawkes Bay, then to Dannevirke, then Palmerston North, and finally up to see the in-laws in Tahuna. One exotic location after another.

Dannevirke Tower

Town Hall, Tokoroa

It was nice to be home after a long trip. There was no loyal hound waiting for me, nor was a faithful swineherd ready to take me in. On the other hand, I was relieved to find that I didn't have a household filled with suitors to slaughter (I'm awaiting the result of the Weatherston trial to see if manslaughter would have been a viable option). The worst we had to deal with were a messy house and loads of things to unpack. I always find with holidays that by the time you get home and unpack you're exhausted again.

Anyway, before I post anything meaningful I have to catch up with the world. I hear there are troubles in the Balkans and that the Austro-Hungarians aren't happy about what happened to their archduke. I predict trouble. Also I need to catch up with the latest news about the death of that musical genius. And before his time too. Poor Mozart.

Maybe I'll post something sensible tomorrow.

Goodbye!

I'm on holiday* for a week and a bit.

My blogging activities are likely to be limited during this time.

But if I get a chance to foist my tedious opinions on the world, I will do so!

See you all soon.


* If driving around the North Island with two under-threes in the back of the car can be considered a holiday

Fomenting Misogyny Since 2003

I probably write too much about Kiwiblog. But this is a blog about the media and politics, and David Farrar’s site Kiwiblog is probably the most read political blog in the country. The quarterly blogosphere figures released by Tumeke back that up.

So my interest about what David Farrar publishes on his site is legitimate.

So what’s got me wound up this time? This has.

I wrote an article a couple of weeks ago, comparing the two main political blogsites in New Zealand, Kiwiblog and The Standard. Both are prone to expressing extreme opinions. But in other respects they differ considerably in tone. I described the main differences between Kiwiblog and The Standard as follows:

…while I often shake my head at what I find, I don't tend to leave The Standard's website wanting to throw up.

I had another one of those almost-throw-up moments last night when I took a look at what was on Kiwiblog.

I disagree strongly with much of what Farrar writes. I don’t identify with his free market no-regulation libertarian views. That doesn’t make me a socialist. It just means I’m not a free market no-regulation libertarian. But I’m fine with that, really. The blogosphere would be a dull place if we all had the same views.

But because Farrar takes a laissez faire approach towards site moderation (his “points” system is about as random as the points awarded on Whose Line Is It Anyway? and seems to deliberately exclude the most obnoxious serial posters, such as the infamous potty-mouth Redbaiter), his comments sections would make Caligula blush.

I could almost tolerate that on the grounds of freedom of speech, if Farrar wasn’t so obviously trying to feed raw meat to his deranged audience. Which is why his post on Loudon v Trawick so annoys me.

I don’t know anything about the Massey academic Margaret Trawick, but clearly she has expressed some strong feminist opinions. Some of those opinions might even be objectionable. I really don't know, because I haven't investigated. She's not the subject of my post. However, when an academic says something crazy my preferred approach is to poke fun at them.

But crusading anti-communist and former Act Party Vice President Trevor Loudon decided to go to war against her, and Farrar has all the details. It might have been a legitimate story, but for the fact that Loudon is so right-wing he’d have locked General Pinochet away for being a soft pinko. Judging by Loudon's blogposts (find them yourselves - I won't give him traffic) and his general internet contributions, he appears convinced the Left are planning to incite bloody revolution and ravish all our women.

So Loudon's just another extremist blogger who doesn’t deserve the oxygen of publicity.

And when Farrar posted links to Loudon’s site attacking Trawick, and then offered his own opinions on Trawick's utterings, such as “but that to me sounds like you hate men (as a category of human beings), just not quite enough to advocate their extermination”, he was clearly dog-whistling.

I’ve mentioned before there’s a particularly vicious misogynist element that regularly posts comments on Kiwiblog.

Most of these posters remain anonymous, for obvious reasons, but not all do. They include the infamous Chuck Bird. He is the guy who “outed” Helen Clark’s husband to Investigate magazine. So that gives you an idea about the sort of people I'm talking about.

These misogynists still passionately hate Helen Clark, and attack anything that empowers women or promotes equality for women. You can’t engage sensibly with them – I tried a couple of times but gave up in disgust.

On one such occasion several of them made claims that women were as responsible for domestic violence as men were. Their tenuous arguments relied on a couple of flaky bits of research that had come out to support their odd view. They of course ignored the mass of evidence to the contrary, such as figures on police callouts, restraining orders and hospital admissions.

But did my calm reasoned approach in pointing these matters out work? Hardly. It was like being in a zombie film, where the hero tries to fight off the ravening hordes. He hacks away at arms, legs, even heads, and still the brainless mass attacks.

So I’ll stand outside and have my say. I accept this is rather like throwing a pebble at the Sky Tower and expecting it to fall over. After all, Farrar’s site probably gets more hits per day than my shabby little blog has got in its entire history.

Actually, I don’t even want the Tower to fall over. Kiwiblog serves a purpose, and can be a good antidote to the sometimes silly extremism on the other side of the spectrum. But I just wish the misogynists would move on, and that Farrar would put his whistle away.

Avert Your Eyes, Young Christians! For Satan Is In Our Midst!

If you were a Christian school organising a photographer to take pics of your school ball, would your first pick be an outfit called "NakedArt"? (warning: site linked to may not be suitable for viewing at work).

So exactly why is Middleton Grange School so outraged that a site to purchase ball photos was linked from NakedArt's "adult" site?

Perhaps the photography firm made a mistake by having the link on its site. But how exactly does a Christian school operating under stern Christian values explain giving money to peddlers of porn/erotica in the first place?

How stern are those values? The school's Statement of Belief gives us a clue:

The unity of the Father, the Son and the Holy Spirit in the Godhead.

The Sovereignty of God in creation, revelation, redemption and final judgement.

The divine inspiration and trustworthiness of Holy Scripture, as originally given and its supreme authority in all matters of faith and conduct.

The universal sinfulness and guilt of human nature since the fall, rendering humankind subject to God's wrath and condemnation.

Redemption from the guilt, penalty, pollution and power of sin only through the sacrificial death (as our representative and substitute) of Jesus Christ, the incarnate Son of God.

The bodily resurrection of Jesus Christ from the dead, His ascension, His mediatorial work and His personal return in power and glory.

The necessity of the work of the Holy Spirit to make the death of Christ effective to the individual sinner, granting repentance toward God and faith in Jesus Christ.

The indwelling and sanctifying work of the Holy Spirit in the believer.

The one holy, universal church, which is the Body of Christ, to which all true believers belong and in which they are united through the Spirit.

The resurrection of the body and life everlasting.

So why were they in business with NakedArt in the first place?

From the Press:

Unfortunately, we did not vet that photographer," [Acting Principal] Vanderpyl said. "We didn't do due diligence and unfortunately, if we had known the background, we certainly would not have even entertained contracting this person to do the photos.

"We certainly take responsibility for the fact we didn't vet the photographer."

How does a group of stern moralising Christians do business with a firm called NakedArt, and not wonder what the "Naked" bit is all about?

More Of The Same Please

The UK's Daily Mail has reported on a British family being kicked out of New Zealand after the father was made redundant. It concludes that New Zealand may not be such a paradise for Brits after all.

The dreams of hundreds who left for a better life on the other side of the world are now turning into nightmares.

Now the Herald has picked up on the story. Other media will probably soon follow. They like these types of stories. And we can all feel threatened by the thought that other people might not always think we're a wondrous land full of hobbits, beautiful mountains and cheery brown folk.

However, anyone who has ever lived in the UK, or followed the UK newspaper scene, will know that the Daily Mail is a paper not fit for wrapping greasy chips in.

So the thought that readers of the Daily Mail might no longer want to emigrate to New Zealand hardly fills me with trepidation.

In fact, to be on the safe side let's seal the deal. Here are some headlines I'd like them to run:

"Tourists Attacked: Crime Rampant Throughout New Zealand Cities"

"Anti-Foreigner Rioting in Wellington Leaves Ten Brits Dead"

Wait till we tell them what gives Rotorua its smell

"Pristine Kiwi Beaches Hide Toxic Secrets"

"Nazgul Catch Up With Hobbits: Sauron Becomes Prime Minister of New Zealand"

Actually, scratch that last one. We want Daily Mail readers to stay away, after all.

Will The Police Get Their Man?

Author Alan Duff is a polarising figure who has controversial views on a range of issues. Thus he has many enemies.

So I wonder if there is just a little bit of vindictiveness in this action by police:

A High Court judge has reserved his decision on an appeal by police over a District Court's acquittal of author Alan Duff on traffic charges.

In the High Court at Rotorua today, Justice Paul Heath also reserved his decision on an application from Duff's lawyer to have the appeal thrown out.

Duff, who is temporarily living in France, was found not guilty in Taupo District Court in June last year.

Police laid charges after he failed to remain at the scene after being stopped for speeding in September 2007.

Two further charges of resisting arrest were dropped with Judge Chris McGuire criticising police for laying them in the first place.

He said in his written judgment that evidence in support of the resisting charges was "unpersuasive and vague" and police were right to seek leave to withdraw them.

"The result, however, is that I am left uneasy over whether police prosecutorial power was used wisely and fairly," Judge McGuire said before dismissing the other charges.

Duff was charged after he was stopped for speeding north of Taupo.

This ties in with something I wrote a couple of days ago about the police being partly to blame for the legal aid blowout. I don't know if Duff is legally-aided, though his money woes are well-documented.

You have to wonder about the wisdom of pursuing a trivial matter such as this, after the last attempt to convict got a working-over by the judge.

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Here is an information release that may be of use to TV3's news team:

Vladimir Putin is the Prime Minister of Russia, not the President.

And Dmitri Medvedev is the President of Russia, not the Prime Minister.

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I dream of the day when the offensive utterings of one Mr Laws no longer dominate the media. There's clearly an opening for some aspiring blogger to make a name for him/herself by devoting a site to the witless ravings of the man - much like the site Editing the Herald so cleverly savages the New Zealand Herald. God knows, I tire of the buffoon's antics.

However. I can hardly let this pass without comment.

Talkback host and Wanganui mayor Michael Laws remains defiant despite a Broadcasting Standards Authority ruling that found he had used "sustained personal abuse" against two firemen.

Later on we learn that Laws accused the Fire Service of using "little dead Polynesian kiddies as a marketing tool", merely because someone pointed out that the fire that killed four children, might have been prevented if chips had not been left unattended in a frying pan, and if smoke alarms had been installed and operational.

During the attack, Mr Laws said Cocker should have the "er" removed from his name and said: "You're a cock".

He called the firemen "dickheads in a uniform", "idiots", "morons", "arseholes" and said racism was going on.

Mr Laws is ever so talented at exposing racism. He knows what it looks like. He sees it every time he looks in the mirror.