Published 30 April 2006
I received an email at the weekend, copied to many people before it reached me, saying “The law is an ass”.
The writer already felt justice had not been served in the findings of not guilty against a deputy police commissioner, Clint Rickards, & 2 former colleagues, Bob Schollum & Brad Shipton, on charges of raping Louise Nicholas 20 years ago, when she was 18. After seeing a widely distributed statement â€“ the material presented by street protesters in Wellington and deemed by mainstream media, in particular, to be in contempt of court â€“ the writer sent the email headed Justice was not served.
It’s reasonable to concur, when an email of this nature makes the rounds, and the recipients become bitter about the system, that the law is indeed an ass. We have a deliberative & often ponderous justice system which should in many cases reach speedier conclusions.
One area in which the law makes itself an ass â€“ and where it doesn’t deal fairly with popular justice â€“ is in appeals. Appeals stifle comment following a judgment â€“ which may be fair where a judgment can be overturned, but is unlikely to be relevant stifling where the issue is a matter of penalty terms.
Often an appeal in one case, or a pending trial in a separate case, will affect the giving of evidence in another. The question then becomes: Will the judge or judges (jury) be swayed by evidence in a case where the defendant may be found not guilty? Will smoke equal fire?
In an appeal, that shouldn’t be so. Appeal judges consider matters of law and are forever sweeping away submissions & evidence outside their scope. A bit more shouldn’t hurt them, so it can easily be argued that suppression could be lifted if it’s in place to protect an appeal.
Evidence from another trial might be suppressed because that trial’s incomplete â€“ it hasn’t reached the stage of a final judgment. That’s a matter of timing, of how the court calendar is ordered, and that’s sometimes just how things are.
In the case of policemen versus Nicholas, the jury must have boiled the argument down to 2 things: evidence concerning the events, and an assessment of willingness. The jury’s conclusion on evidence is a matter of sorting out relevant fact, but the assessment of willingness includes an array of subjective conclusions.
In this case, as in many others, the jury’s ability to reach those subjective conclusions is limited by a matter of timing. This case was brought 20 years after the event â€“ would another year have made a difference if trial timing was the issue?
Maybe it would have made many differences. The police gather the evidence for a case then put it on the shelf, which then reflects on them. A witness dies, a prosecutor leaves and the case falls apart in the interimâ€¦. And maybe with fuller information, the judgment would have been different.
Those sorts of question make you wonder if, sometimes, the law is obliged to be an ass.
Who should respond? Maybe the Law Commission
In the case of the reactions to the policemen versus Nicholas case, the law has made itself an ass by not responding. And it will make itself a bigger ass the longer it takes to respond.
This task has been made more difficult by the Attorney-general (then & apparently soon), David Parker, making an ass of himself. But there are others who might respond with substance, such as the Law Commission.
In the end, it’s probably a job for that commission to propose better ways of dealing with suppression and how the law might make less of an ass of itself.
Thus it’s reasonable, again, to conclude that the law in this area will remain an ass.
Sir Geoffrey Palmer was Minister of Justice when the commission was set up in 1985 and wrote an evaluation of the commission in 2000 for Attorney-general Margaret Wilson. His evaluation was written as a voluminous essay.
Last December, Sir Geoffrey was appointed president of the commission. He’s since posted 4 speeches on the commission website, the last of them Law reform & the Law Commission in NZ after 20 years â€“ we need to try a little harder. At the end of that address he wrote: “Before Government bills are introduced, more effort needs to go into the initial design of legislation, particularly its architecture & the relationship of the proposed law to the established body of laws as a whole. Similarly, post-legislative scrutiny of Government bills that are passed needs to be undertaken to ensure that the stated objectives were met and that unexpected consequences did not ensue. There needs to be a retreat from the pattern of wholesale amendments that over the years so distort & destroy the logic & pattern of a statute that it becomes unrecognisable.”
One of his proposals in 2000 was for the commission to look at fewer tasks â€“ at the time it had about 30 reports under way and Sir Geoffrey recommended halving the number.
So unless there is a monumental change, the Law Commission won’t go near this sort of ground-level work. A minority government in its third term is showing less & less desire for revolution, the Opposition is concerned with unsettling the Government rather than taking the country forward, which means the public is left in charge of real lawmaking: The campaign of the Nicholas supporters will result in laws & procedures being changed, or the country’s lawmakers will, by their inaction, reduce the status of the law.
Road tolls call for the same kind of public attack
We will see the same thing again in Auckland over the proposal for road tolls everywhere. This proposal has been accepted by many of the region’s politicians but is an inadequate response to travel difficulties. The task this time is more difficult for the public: Because our politicians haven’t thought too far outside the square, the public needs to do it for them, probably in different forums (like this one, and others of both independent & lobbyist persuasions), presenting papers, ideas, scenarios, deposing politicians who support ill-considered schemes.
Attribution: Email, Law Commission website, story written by Bob Dey for this website.