Wednesday, April 05, 2006

The Courts vs Freedom of Speech...

This follows immediately from my update of the "Practical Considerations 2".

First from Herald. Read this as it sets the scene very nicely.

Right, now forget the individual case. The Louise Nicholson case is an instance, one of several that have played out in recent times following emotional and lengthy Court battles. The primary question here has to be the sanctity of the justice system, and the powers held by the Court to suppress and conceal.

In any Court case, civil or criminal, there is a "winner" and a "loser". In the vast majority of those actions, the decision of the Court is accepted - given that the legal processes of appeal may be followed in some cases.

Just occasionally, the "loser" can not accept (for any of many reasons) the validity of the Court's decision; whether it is the acquittal of a policeman for shooting a man who was using a golf club to break shop windows, or a rapist or murderer convicted on shonky evidence, or the suppression of all identification of those involved in Family Court proceedings, or a battle between neighbours over the trees that block that million dollar view.

Where the Court makes orders regarding its decision, or its process, then it is fundamental in my view that those orders either be complied with or challenged through the processes of Justice and the Courts.

There is no justification, moral or otherwise, for the blatant breach of Orders put in place by the Court.

As Dr Nick Smith found out, the power of the Courts reaches as far as the chambers of Parliament. Using the excuse of "parliamentary privilege" to identify the family involved in a very messy Family Court process earned him a well deserved judicial kick in the jacksie.

Now this to many people would be "restraint of freedom of speech". I do not agree.

There is a point, and it is not something that I believe could possibly be codified in any way, where the rights of two parties have to be independantly balanced out. That surely is in the fundamental nature of justice?

But what about the situation where justice is not seen to be fair? This in many respects was at the heart of the instance that Dr Smith undressed in Parliament. He was attempting to address what he saw as an injustice of law; the rights of a mother to custody of a child taking precendence over the father. There are other instances where one of those directly concerned takes his/her case directly to the media. If a person breaches their own protections, their own confidentiality, who is going to suffer?

That rationalisation just does not work for me. There are (almost invariably) two parties to an action. In 99.9% of criminal cases, the "other party" is the Crown as the prosecuting authority. But that justification is not sustainable either because the Crown is "representing the rights" of the person who is the victim of the crime.

OK, it has taken a while, but we are getting to the problem (at last)...

How does one distinguish true injustice from perceived injustice?

The classic of all true injustices in this country has to be Arthur Alan Thomas - he who was convicted of murdering the Crewe couple and sentenced to life in prison. Details of the extent that evidence was "manufactured and mis-interpreted" are still surfacing today.

One might add to that the Christchurch Civic Creche, where four people were charged, three were found not guilty and one was guilty. Significant is the fact that the three not guilty were women - two of whom were discharged by the Judge before the trial finished with no case to answer - and the one found guilty was a male. The evidence (from children aged between 4 and 6) indicated involvement of more than just one person. Some of those witnesses (now in their late teens) have indicated the extent of the coaching and instruction that they received. Some have resiled the evidence that they gave. Perhaps the fact that the one found guilty is male was the deciding factor? Or was it because he is homosexual?

What about the aggrieved father who is denied custody of his child. Or the father who is trying to prevent his estranged wife from departing for Britain removing his child from his (court awarded) access?

It gets somewhat more fundamental than that...

How far should we trust institutions such as the Courts, the Police, even our armed forces?

Certainly in recent times - beginning with three different parliamentary enquiries including one initiated by the Nicholson case - the credibility of our Police force has suffered. Descriptions of "an inappropriate corporate culture" have emerged from all. The other side of the coin is that they do an extremely thankless task. They generally sit in a lose-lose situation; or damned if we do and damned if we do not.

The credibility of our Courts has been threatened as well. Instances such as a Judge publicly denigrating a female witness do not sit well. That the Judge was asked to retire shortly after remains significant.

If the institutions of justice can not be trusted or respected, what must be done?

Here, at last, we return to "freedom of speech".

There is no question that the disclosure and debate of injustice must be carried out in public. It is a matter of finding the right forum and the right form.

Using the media to sensationalise a perceived injustice is in my way of thinking just plain wrong. I can sympathise with the media when presented with a juicy story coming out of that perception. Generally the media here do a pretty good job at fair presentation, and tread the fine line between legal and illegal. Outright breach of the law (including Court Orders) is not the path to follow. I do not (ever if I can help it) listen to talk-back radio. As I have heard the debate in that corner, even the most outspoken of hosts have had to use the 15 sec delay cutoff more than ever before to keep the line in the Nicholson case.

There are processes within the law that can be followed. There are rules and strictures around the use of those processes. I believe that there are as many as five people in NZ whom the justice system considers to be "fractious litigants" - people who will not accept the clear decisions of the Court.

If those processes are subject to question or doubt then the next step must be to take the problem to Parliament. That can be achieved by several means including petition, or under the patronage of an MP.

And there lies the "Catch 22".

In order to "publicise" a true injustice that has arisen from the application of Court Orders, it may well be necessary to breach those Orders of the Court.


UPDATE 6/4/06

Not long after I wrote that, the following report appeared on Herald and other news sites...

Peter Ellis is the man found guilty in the Christchurch Civic Creche case.

Convicted paedophile Peter Ellis is pressing ahead with an appeal to the Privy Council over his 1993 convictions for abusing children.

Ellis' lawyer, Judith Ablett Kerr, QC, of Dunedin, said today she would apply for special leave to appeal to the Privy Council immediately despite having yet had no response from the Attorney-General on whether such an appeal should proceed.

The justice and electoral select committee recommended last August that the Attorney-General not oppose a bid by Ellis, who was convicted of sexually abusing children at the Christchurch Civic Childcare Centre where he worked. He served two-thirds of a 10-year jail sentence but has always maintained his innocence.

The committee also recommended legal aid be provided for the appeal.

Now, not only is that good news, it is also the right way to right an injustice.

Ellis is a fascinating cove. He is very shy. He consistently refused parole from his prison sentence. He has been released, after the system literally had to throw him out. He has consistently maintained that the only just closure is a full government pardon and compensation. There is enough doubt, there has always been enough doubt in his case to justify close examination of his claim.


Dave Justus said...

I think that there are certainly cases where one is justified in not following an unjust law. A great example is probably the civil disobediance against racist laws in the United States in the 60s. There are plenty of other good examples as well.

One does have to be careful though. Particularly if you find yourself in a small minority you have to really stop and think if you cause is in fact just.

I am in general quite distrustful of court orders that prohibit information about a trial from being published, especially when the trial relates to public officials or public policy. Certainly not identifing a victim by name can be important, but other information can be important to the body politic. Many times these information suppressions are not designed to protect the victim, but rather are designed to sheild governments themselves from oversight, like the corruption trial in Canada last year.

I don't think it is possible to fight this sort of thing without violating the suppression order. People cannot judge if something is unjustly suppressed unless they know what is suppressed.

The probligo said...

Dave, this is obviously an on-going so I am adding to the info available rather than arguing against you.

There were extensive interviews this morning on the news with some of the "interested parties". Obviously all were very guarded, and the discussion skirted around the actual truth very carefully.

One of those commenting, a solicitor who practises in criminal defence, pointed out that there can be many reasons for the Court to impose suppression orders. He also said that there were good and valid reasons for the Courts to "sunset" those orders (see below) as well as to make them permanent.

In the category of "permanent suppression" he included;

- identification of victims.
- evidence prejudicial to a fair trial.
- identity of an accused where the proceedings might cause extreme hardship in the event of a "not guilty verdict".
- witnesses whose safety might be at risk if identified.

He also said that it should be the duty of the Court creating the order to determine the duration of the Order.

Where the suppression relates to evidence and a fair trial, there is good cause to continue a suppression order into the future if there are to be appeals or further hearings.

Now, there was a fairly strong indication on the news this morning that at least some of the suppression orders in the Nicholson case related to this particular category. I am still not going to go dig that out, even though the information is now pretty much public domain.

I confess that "prejudice of a fair trial" is an aspect that escaped me previously. Certainly it is a fundamental that needs protection.

The "sunset" of suppression orders came up today as well, with the expiry of an order suppressing the name of a local personality, tv star, model, etc etc who was connected with a fairly notorious drug case; not as one of the accused but as a customer. So, officially, we all now know who that person is; not that there was that much doubt about the speculation given the relationships underlying the status as "customer".

Dave Justus said...

I certainly agree that there are good reasons to suppress information, there are also bad reasons as well. Anyone who decides to violate such an order, because they are convinced the suppression is based upon a bad reason should certainly think carefully about that.

I don't have any particular comment on this individual case, merely on the principle of it.