Sunday, April 30, 2006

A kiwi view of America...

I have mentioned Gareth Morgan a couple times here in his professional capacity of economist.

He is equally (more) famous in NZ as one of the shareholders in "Trademe"which was sold recently for some NZD170 million to Fairfax.

But the reason that I really like the guy is his ability to write about the adventures he has. The last was his journey from Turkey along the Old Silk Route to China.

By motorbike.

This time he is going from Miami to Rio Grande to Prudhoe Bay and back to California.

By secondary roads...

The whole adventure will be recorded on the net here.

His opening to the first entry...

“Backblocks America” is a roadtrip of discovery. From the Rio Grande to the Yukon, Bimini Island to Death Valley, we're on the continent of personal liberty, rugged individualism and frontiersman courage. Legend has it these are the values that made America. In these times of George W Bush, the Religious Right and the terrorist threat - how much of it remains?
They say you can cross the North American continent on metal roads still, you might have to open a few gates but it sure beats being locked up on the Inter-State. Our route meanders along as many of the secondary roads as possible cutting a north west diagonal from the outer reaches of the Bahamas where Columbus first saw land in 1492 and where one of Chinese Admiral Zeng He's fleets arguably sailed 70 years earlier than the Europeans.

And this caught my eye too...

What I like about America so far;

No motorcycle helmets, even on the open highway
No bicycle helmets
Proper Internet access - every motel has FREE, high speed wireless connection to the web (NZ government and Telecom take note).
Petrol at USD3 per gallon (that's just NZD1.28 per litre)
American friendliness

What I don't like

The electric wheelchairs of the fatties lined up outside the Waffle shops. They still manage to stagger in and full their faces with stodge.
The way all the menial jobs are filled by African Americans or Hispanics
US white bread - it is full of sugar
The ubiquity of flagpoles draped with Old Glory, giving the impression of a rabid nationalism as opposed to more-measured national pride

To be very clear.

If I knew that Gareth and his crew were going to be in my town I would be out bells and whistles to meet him.

He is not your ïvory tower intellectual.

He is a westie, a bogan, a petrol head and a bikie before he is anything else. He is as kiwi as the day.

Friday, April 28, 2006

Die weiße Maus

News tonight that the New Zealand Returned Services Association (RSA) has granted its highest honour, The Gold Badge, to Nancy Wake.

Nancy Wake was the Allies' most decorated servicewoman of WWII, and the Gestapo’s most-wanted person. They code-named her 'The White Mouse' because of her ability to elude capture. When war broke out she was a young woman married to a wealthy Frenchman living a life of luxury in cosmopolitan Marseilles. She became a saboteur, organiser and Resistance fighter who led an army of 7,000 Maquis troops in guerrilla warfare to sabotage the Nazis. Her story is one of daring, courage and optimism in the face of impossible odds.

The interesting thing about this is the fact that this is likely to be the only New Zealand recognition (in the form of an award) she will receive.

All of the Governmental awards and medals apparently have been specified in such terms as to rule out a woman who was active in a foreign country, as a citizen of that country, and displaying valour beyond most.

How sad.

Auntie Helen, some legislative music please... and presto!!

Cultural Property - 3

A postscript to my (much) earlier discussion...

It is unlikely to be reported widely in the US. It is of little account to anyone other than Maori.

This is important interms of defining just what might and may not be used to promote products without the consent of owners.

Tobacco giant Philip Morris has issued an unprecedented apology to Maori during a shareholders meeting in the United States for using Maori images on cigarette packets in Israel.

Two Maori Smokefree Coalition representatives confronted Philip Morris in New Jersey early this morning (NZT) over what they say is abuse of Maori culture.

The confrontation was in response to a New Zealander's discovery late last year of cigarettes being sold in Israel branded "Maori Mix", with packaging that included Maori designs.

Coalition director Shane Bradbrook and the organisation's youth advocate Skye Kimura joined the international advocate group Global Partnerships for Tobacco Control (Gptc) to raise issues of misappropriation of Maori culture at the meeting of Philip Morris' parent company, Altria.

Mr Bradbrook said the apology was a "win" for Maori.

"A lot of people came up to us afterwards and said they'd never seen the CEO apologise like that," he said.

"The CEO said it was a mistake and they should never have done it; that they should have recognised that our culture was being used on that product, and that it was a mistake by their marketing people, and they would never do it again."

NOW all that is required is some legal recognition for the principle.

Good on yers, Philip Morris, for recognising that a living culture is not a generic object that can be exploited for brand and promotional purposes.

OK now, let's hear it for America!!!

This is (even though extremely small) a light in the distance that I never thought I would see...

Richard Armitage, the former high-ranking United States official most closely associated with reprisals against New Zealand's anti-nuclear law, has had a change of heart and is now arguing for closer military ties.

Mr Armitage, the former Deputy Secretary of State under Colin Powell, now says "there is no need to take an overly punitive approach" to New Zealand and says it is no longer in the United States' interests to maintain its ban on military exercises.

Further down...

When the David Lange-led Labour Government introduced the law, Mr Armitage was the Assistant Secretary of Defence for International Security.

He has long been regarded as a staunch defender of the ban on military exercises.

In the article, Mr Armitage has no argument about the most fundamental US response to the [anti-nuclear] law that bans nuclear powered and armed ships - suspending the guarantee under the Anzus treaty to protect New Zealand in the event of an attack.

But he says that should not preclude military co-operation in other areas.

He said the ban on military exercises with New Zealand applied even if exercises were held in a third country. That meant third countries were often reluctant to invite New Zealand to defence exercises.

"We feel this no longer best serves American interests. The US military is spread thinly in various missions around the world and could use all the help it can get. New Zealand not only shares similar democratic values, it has increasing capacity to promote them abroad."

OK, I'll get the gumboots on...

But truly, has it taken this long to realise?

The article also champions a free trade agreement between the two countries and it gave weight to what is officially denied - that the nuclear ban is linked to a free trade ban.

"Washington's refusal to commit to negotiations with Wellington on a free trade agreement gives reason to suspect that US officials are viewing this issue through the prism of a nuclear policy."

Yeah, well we knew that from day 1. The message has been given openly, publicly and directly. Not that I mind in the least. NZ would be far better off with a FTA to the other side of the Pacific - China. Not because of any perceived socialist leanings on my part, but a matter of realities.

NZ's major exports are food.

China needs food.

The US is far more interested in protecting its own farmers.

Which one makes more sense? Follow the money!

Wednesday, April 26, 2006

Something to keep an eye on...

This came to mind while penning the open letter to Dave Justus.

Keep watching!!

An open letter for Dave Justus, and other like-minded


You put the challenge there – to stop criticising the US, to take on other challenges.

There are two things that I want to take up as a parting shot as much as anything and I have posted them here rather than in the comments to “Ïnside a terrorist’s bomb” or elsewhere on your page simply for reasons of space.

The first is “continuous criticism of the US” (and one can add in Israel here too because the same logic applies as far as I am concerned.

Dave, when GWB took the Iraq question to the UN, all those three years back I was fulsome in my praise for what I saw as a diplomatically wise and correct gesture. When that opportunity was squandered on the dissemination of “intelligence” (and I still can not get away from smiling at the pun that comes from that word in the context) that was clearly at variance with the reports of successive UN inspection teams, I said as much.

When GWB has the good sense and wisdom to seek international support for action against Iran; when GWB bases his case for action on fact and not the kind of hyperbolic propaganda that the US electorate seems to thrive upon; then I will be fulsome in my praise of him once more. If, as seems far more likely, he decides once more on unilateral action “justified” by less than believable “intelligence” then I shall be equally scathing in my opinion. Not, just to take the words from your mouth, that there is any doubt about the position that Ahmenabijad is holding.

None of this is to say that I do not believe Iran to be a threat to world peace. The nation of Iran is not a threat per se. Iran’s leadership certainly is.

I can say with equal certainty that I do not see the US nation as a threat per se to world peace. I can say with certainty that the US leadership has shown the same propensities and attitudes as Iran’s and hence I would consider both as equal threats to world peace.

I suspect that distinction is probably a shade to subtle for you. Well, it is the shade of difference that I see.

OK. Let us just look at Israel for a moment then.

I am in total agreement with your sentiment that there is equal fault on both sides, on Israeli and Palestinian alike. Of that there is no question, there is no debate.

It is in the following discussion that we part ways. Like so many Americans, you support MSOI without stint or question. There is never any doubt about which side is right, which is wrong.

Conversely, the Palestinian is seen as the aggressor, the terrorist, the killer of innocents, the invader, the alien.

As an expression of that attitude, Greg speaks the extreme of it – that Israel occupies territory in the Levant by dint of conquest, invasion and capture. That in his mind gives Israel the right to do any act within that territory that it desires. There is no morality that speaks against what is done in the name of Israel.

That Dave, is why I called your statement – that Israel was freely giving land to Palestine – a lie. We have been through that; there is no reconciliation or common ground in there. Pedantically, you are right, legally and morally you are wrong. In my mind they are returning what was Palestine before 1967. In the case of Gaza it was part of Egypt prior to 1947 and was then incorporated as inalienable territory in the proposed Palestine state.

That too, is where the parallel between US and Israel is found. Neither nation recognises the validity of international opinion. There is no international morality that can be applied to either. International law is recognised only when it can be abused to the interests of the US (or Israel). If the interests of either are hindered in any way by international law then the law is simply ignored.

(BTW, sitting here composing this and listening to “Fat Freddys Drop” means that there is no way that I can lose my temper. Nor could I get personal or immoderate. Try it some time.)


The second is a single word – hypocrisy.

To describe an Indonesian suicide bomber as a “terrorist” is valid and acceptable. But what are the definitive aspects that make that so? How does that differ from a missile fired from a helicopter into a Palestine home, or a bomb dropped on Baghdad from a B2 at 40,000 feet?

To invade another country and occupy it is a crime in international law. Well it is if your name is Saddam Hussein. But if your name is George Bush it is a “war on terror”, or a “war to remove WMD”, or a “war of liberation”...

For the UN to interefere in the internal affairs of a nation would be in breach of its charter. For an individual nation to unilaterally interfere in the internal affairs of another is in breach of international law. For an the US to use covert intervention, or overt invasion to overthrow democratically elected governments is not.

That is as brief as I can make it.

Dave, I leave you with a challenge –

To post objectively and with balance on the Israel / Palestine conflict, giving equal weight to Palestine and Israeli sources.

Tuesday, April 18, 2006

On being in rude health - 1

Well, it was an interesting weekend for news, especially news that requires more than just passing thought.

I started, about two weeks back, with a radio interview that I listened to which had to do with health and health service provision. The particular interview was concerning the state funding of herceptin for women at risk of breast cancer.

Hot on the heels (heals?) of that came a tv doco on the international drug companies and the “invention is the mother of necessity” principle. Included here was the “invention” of new diseases such as ADHD, used to provide a market for drugs such as Ritalin; “bipolar disorder” – not to be confused with “manic-depressives”? -; cholesterol “imbalances", used to provide a market for beta-blockers etc; right through to the current favourites of “restless leg syndrome” and “FSD”. Now that last I recommend as a piece of quiet research – there should be some fascinating results.

In Sunday’s paper is a further article, very pertinent to the line of thought I was developing myself. It has not been put out on the paper’s website as Part 2 is being published next weekend.

Fundamentally the question is “How much is enough?” I had no idea of the examples that SST brought to light –
    An elderly lady undergoing surgery “to clear intestinal blockages”. She died next day, not from the operation directly – it was totally unrelated. She died from terminal bowel cancer, which was not in any way connected with the blockages.

    A person of 104 receiving his/her third hip replacement.

    A person of 80 plus scheduled for kidney transplant.

At the other end of the scale was the GP who told the story of a patient of his who was admitted to hospital for the fourth time with a more than passing heart attack. The patient had gone out, after his second, and made arrangements with the local undertaker even to the point of selecting and buying his coffin. “What are you doing in here?”, the GP asked. “Buggered if I know”, was the reply, “It’s you guys who keep sending me in here.”


There seem to me to be three separate questions in this;

First and the most challenging is;

When and where does “curative and restorative” treatment justifiably stop and “palliative care” commence?

From the same paper, same day…

The political viewpoint, expressed by the ACT health spokeswoman, Heather Roy –
The public health system of the future may perform only emergency surgery, Act MP Heather Roy believes.

Every country in the western world was grappling with the rationing questions, Roy said.

"We need an intellectually honest debate on how we can pay for health into the future," she said.

The problems of the Hawke's Bay District Health Board, which last week pared 1800 patients from its waiting lists, were not isolated, she said.

Roy says about 40,000 people would be sent back to their GPs if the other 20 district health boards were to do what Hawke's Bay District Health Board had done, and remove everyone who had been waiting longer than the prescribed six months to see a specialist.

She said there needed to be a transition towards an emergency-only public health system - a service the system already performed exceedingly well - by introducing means tested part charging for elective operations and greater use of the private sector.

So, the PC term is obviously “rationing”. I submit that tends to hide the fundamental question; as I have stated it.

Add to this the fact that several other DHB’s have since “fessed up” to trimming waiting lists, and the continual political pumping of waiting lists as a “health scandal”, and one can but wonder that the public health system in this country has lasted as long as it has. But that, truly, is not where I want this article to go.

Then, again in the same paper, was this article -
Surgeons want taxpayers to pay for weight-loss surgery for children as one solution to New Zealand's ballooning obesity epidemic.

Obesity among children is becoming a major problem. Starship Children's Hospital in Auckland recently treated a 12-year-old weighing 182kg and often sees adolescents over 100kg. One in 10 Kiwi kids is obese but no publicly funded surgery -such as a lap-band operation which reduces the stomach size or gastric bypass - is available to treat them.

Surgeons say other children are being bumped from surgery in favour of obesity-related cases.

"In one month alone we had three cases where we probably ended up cancelling eight kids to do more urgent (obesity-related) surgery," said Wellington paediatric surgeon Brendon Bowkett. One child was five and weighed 52kg.

Obese children often have alarming adult conditions including type-2 diabetes, heart disease, gall bladder infections, obstructive sleep apnoea, hip problems, and skin abscesses.

Surgical treatment is a last resort. Only a handful of adults are given publicly-financed gastric bypass surgery, which costs about $20,000. So far only a few 15-year-olds have had the operation, but paediatric surgeons say children could benefit too. America has paediatric surgeons dedicated to obesity surgery and in Australia, an estimated 50-60 children as young as 12 have had lap-band surgery.

Surgeons agree diet and exercise are the best way to combat excess kilos, but losing 50-100kg is often unachievable.

"It appears if you've got a person who's morbidly obese at 12 or 13, you've got a body that's programmed to be overweight," Bowkett said.

Now, to use Heather Roy’s question, “Where is the intellectual honesty in that?”

I want to ask the question this way;
“If a child is morbidly obese, should the ‘cure’ be a palliative in the form of ‘We understand that your life has been hell because you have lived on tv and chippies so we will operate to take away the cause’?

Or should it be honest in the form of telling the parents “If you want your child to live, then you are going to have to change your lifestyle; diet, attitudes, recreation… When you make that commitment to change we will provide the resources to help. Your right to free treatment and assistance will remain as long as your commitment is followed.”

As for the argument that a 12 or 13 overweight person is “programmed” to be obese, I can accept that is so in some instances. I would suggest fairly rare instances. I can not accept that metabolic and endocrinal changes in the human species are proceeding at such a rate that statistics from 50 years back are no longer valid. In the four different schools I attended, from when I was 9 to 17, in contact with perhaps 1000 other kids in that time, there are only three, perhaps five, that I can think of who would fall (anywhere like remotely) into the morbidly obese category. They were known as the “school fatties”, the Billy Bunters, the ones who never played sport unless they were forced to. Yet now we have an “epidemic” of obesity, the only ‘cure’ for which is an advanced form of surgery developed in the past thirty years.

I could follow the same line through a different tack; and use ADHD and Ritalin as the “cause” and “cure”. Or one could follow a man my age into “sexual disfunction” and “Viagra” or “cialis” or the next flavour of the month.

To close this part of my thoughts, I must concede that there are health and appearance problems where major medical intervention is both warranted and perfectly justified. Fifty years back it was cleft palate reconstruction, then surgical techniques were developed to correct “club feet”, it went into orthodontry (my daughter benefited from this at the cost of some $3,000 or 10% of my gross wage at the time) and the surgical correction of heart defects, the care of neonatal and premature birth children, and in more recent times there have been advances in the correction of scarring from burns and accidents, and birthmarks.

So to the second question;
What right should we grant the drug companies to market their product direct to the perceived market?

I am in my late 50’s. I suffer from many of the minor aches, pains and ailments that have plagued men of my age for centuries past. I get the gout from time to time, I have a genetic predisposition to it. I have very poor blood circulation in my legs, again a genetic predisposition. I do not get enough exercise, affecting blood pressure, heart, muscle tone and strength, right through to sexual performance and the “dramas” that go with that. If I listened to my wife and my doc, I would be taking three different drugs for my heart and blood pressure, anti-coagulants because the bp drugs can cause clotting, I would probably be looking at anti-cholesterol drugs as well… a veritable pharmacopoeia. Statistically I am no different to 70% of men of my age. If I listened to the drug companies you could add drugs for sexual performance, to retard the onset of alzheimers (which my grandmother had), depressants to counter the side effects of the steroids I would be taking to prevent the gout, the list is near endless…

I am not that gullible, or at least I would hope not. I fear that the rest of society, a goodly part thereof at least, is otherwise. Why else would sexual performance enhancers, mood modifiers, baldness cures, weight loss programmes and drugs, laxatives, antiseptics (external antibiotics), age inhibitors, youth enhancers… have such a major part of the advertising time on television, on newsprint, on the internet. How often do we read of a “new” disease, at the same time as a drug is discovered to “cure” it?

As an aside, I can not get health insurance for any of these "complaints" - I have had the veins since I was 22, the bp since I was 35, the dodgy heart valve is from the age of about 8... they are all "pre-existing conditions" and fall directly into the exclusions of every policy I have been shown. About the only thing I can get cover for is avian flu and watch the exclusions flow into the market over the next two years on that one...

Is it a case of not having the ability to care for ourselves any longer?

The third question is at the personal level, and it comes from both my personal attitudes, and those of the guy I mentioned back at the beginning – the one who after his second heart attack went and purchased his coffin. It is this –

Are we, as a species, as a civilization, as individuals, so scared of dying that any pain, any other agony is preferred.

As a species, I would have to answer “No. I do not believe so”. I base that (quite empirically I admit) upon the differing “value” placed on human life in different societies. The attitude to death as seen in NZ, Australia or US is considerably different to India, or Chad, or Bangladesh or Thailand. I do not belittle the emotion and grief of families in those countries on the death of a loved one; not at all. It is a matter of acceptance. It is a matter of death being the final stage of life.

It is seen in so many different ways too. An elderly Chinese gentleman in his 80’s would smile contentedly, and would be congratulated on his age. A western person of the same age might wish that they were 30 or even 60 years younger. Some undergo extensive surgery to try and create or maintain that personal falsehood.

As a civilization, I am far less certain. Just in this one area alone, the numbers from that radio interview I mentioned at the beginning –

Total global drug sales – NZD900 billion per year
Drug sales in continental Africa – NZD25 billion per year
Drug sales (pharmaceuticals remember) in the US – NZD225 billion per year.

That is before we get into elective surgery (which seems to have a different meaning to different people). To me, getting my veins done is elective. They are not (yet) threatening the quality of my life. For a baby with a major heart defect, corrective surgery would not be elective; it is essential to the baby’s survival. My daughter’s orthodontic treatment may have been elective, given that at the age of six I could touch her palate with my little finger with her mouth closed so bad was her overbite. The extreme, in my view, is the use of surgery to maintain a pretence of youth and beauty.

On the matter of elective surgery, this from the first of the articles I quoted above –
Health Minister Pete Hodgson said that although the private sector played an important role, the government believed "the private provision of health is always more expensive in the long run". For that reason, he said, it wanted the public health system to dominate.

He did acknowledge the public system falls short by nature. "No public health system in the world that is free of charge can deliver the real or perceived public need for elective surgery."

The critical word, the one that makes the statement bulletproof is “perceived”. There is always someone who feels (because they have disease ‘A’ which is not subsidised when disease ‘B’ is) that the system has failed them, or that the latest drugs on the market should be given by right.

As for my personal medical woes – first get more exercise. That should help bp, circulation, muscle tone. Watch diet – Vitamin B group seems to be one of the personal triggers for the gout. Then start working on the elimination of stressors. Further improvement in bp. More sex, more often – I am a practicing heterosexual; practice makes perfect as they say… That reduces the likelihood of prostate cancer by keeping things working… self maintenance is the key.

If it doesn’t work, well I guess that I will be finding out the truth about gods sooner rather than later. But, as an article in yesterday’s Listener points out, given the choice between ten more years with the ability to have sex, bladder control, and having an operation now to stop prostate cancer with the consequences of no sex, no bladder control and perhaps another ten more years after that, most men would chose the no operation route.

I know that I would.


I mentioned FSD. - Female Sexual Disfunction or post-menopausal loss of libido. It is quite the subject of discussion at present in the circles my wife follows. The general feeling at the (womens’ section of) tennis club seems to be “Wish the old man was able to keep up with me”…

Monday, April 10, 2006

Top of the morning to yers...

It could be the last.

From this morning's Herald comes this quoting Seymour Hersch (who one might recall broke the AbuGhraib story).
The Bush administration has sent undercover forces into Iran, and has stepped up secret planning for a possible major air attack on the country, according to the renowned US investigative journalist Seymour Hersh.


One option under consideration, Mr Hersh reports, involves the possible use of a B61 nuclear "bunker-buster" bomb against Iran's main centrifuge plant, at Natanz.

That thought, just on its own, put me off my oats completely this morning.

No. No one could be THAT stupid. Oh. Hang on. That assumption presumes that there is a human in charge.

If there is the slightest truth in this article, to be published in the next issue of New Yorker Magazine then we, all of us, need be VERY VERY afraid if this is the level of "thinking" within the American administration.

Sunday, April 09, 2006

Learning from history...

From the pages of Arts and Letters Daily comes this op-ed piece from Howard Zinn which (if you want to pick up on the very left wing detail, propaganda and commentary it produces) kicks off with this question…

How come so many people were so easily fooled?

I will leave out the current history, simply because it is likely to result in totally off-topic debate. But going back, Zinn makes these points as a matter of history –

…President Polk lied to the nation about the reason for going to war with Mexico in 1846. It wasn’t that Mexico “shed American blood upon the American soil” …

…President McKinley lied in 1898 about the reason for invading Cuba …

…He [McKinley] also lied about the reasons for our war in the Philippines, claiming we only wanted to “civilize” the Filipinos…

President Woodrow Wilson… lied about the reasons for entering the First World War, saying it was a war to “make the world safe for democracy,” when it was really a war to make the world safe for the Western imperial powers.

Harry Truman lied when he said the atomic bomb was dropped on Hiroshima because it was “a military target.”

Everyone lied about Vietnam—Kennedy about the extent of our involvement, Johnson about the Gulf of Tonkin, Nixon about the secret bombing of Cambodia, all of them claiming it was to keep South Vietnam free of communism …

Reagan lied about the invasion of Grenada ...

The elder Bush lied about the invasion of Panama …

To which one might add that Clinton lied about his wandering willie; Roosevelt lied about the long term impacts of his welfare policies and so on depending upon your personal political point of view.

If one wants, you can try and fill in the ellipses with the reasons for each instance. I would not know enough of American history to be totally honest about them. Don’t, please, just bring Zinn’s rationales in here because that again is not the purpose of this post. I might even be tempted to censor any comments that might so do.

Please, I want to get to the bottom of Zinn’s opening question by the direct route. I want to find out why there is such total and unquestioning acceptance of government rhetoric as shown by the likes of “Right, Wing-Nut!”.

Why, given America’s history of political policy by falsehood, does a seeming majority of its electorate not learn by that history?

How many (of the admittedly very few who might pass this way) accept the word of those in power without question, without complaint?

Are there any in America who look at the candidates they are presented with at election time and say to themselves “OK. Which of these wallies is telling the biggest porkies?”

Saturday, April 08, 2006

The Courts vs Freedom of Speech - 3

I have heard the rumours - the watercooler scuttlebutt has seen to that. As a result, I know that I am now going to be skating around the edges of some very thin ice.

What is apparent (though the sisterhood blogsites seem to be the only ones carrying the "news" openly) is that the suppression orders in the Nicholson trial -

- were imposed by the Judge in the normal course of events to ensure that those accused received a fair trial.
- the suppressed evidence was never presented to the jury.
- that on several occasions during the trial, defence counsel were very close to demanding that a mistrial be declared and that the suppressed evidence was at the heart of the concern.

In the previous posts on the subject, this was one aspect to the suppression of evidence and names by the Courts that I had forgotten, and which was first brought to mind by an interview on radio news on Wednesday morning.

We see it frequently on the Courtroom battle soaps - the lawyer jumps to his feet and demands that the Judge "rule out" evidence; the DA trying to introduce evidence that is essential to the prosecution, but knowing that the rules of evidence are going to make it difficult or prevent it happening.

In NZ, the Courts might hear evidence, or the prosecution may wish to present evidence (and not being a lawyer I do not know the niceties of the process) which could be considered "prejudicial to a fair trial". The Judge might then rule that the evidence be suppressed because it does create that prejudice against the accused.

The op-eds in my Sunday paper, both Rosemary Mcleod and Findlay Macdonald give the principles a fair old workover.
Findlay Macdolald -
JUDGES WIELD a lot of power, and the courts over which they preside are not institutions to be be trifled with. But it's amazing how easily the whole system is undermined by one of our most trivial yet potent instincts - gossip.

The trial of the three men accused of raping and assaulting Louise Nicholas, which ended in their acquittal on all counts, was also the latest bad seed to sprout a national grapevine of chattering conjecture. From my observations, by the middle of the week following the verdicts the nation's phones, mobiles and email systems were at full throttle spreading supposedly privileged information to do with the case.

It happens whenever a blanket suppression (or even just name suppression) order is imposed by the courts in a case marked out from the ordinary by the nature of the alleged crime or the backgrounds of the accused. Or both, in the case of the Nicholas trial.

Rosemary Mcleod -
There's an argument to be made that the whole story and its context should be told in dealing with a crime, and that withholding some parts of it creates a bias as objectionable as a prejudiced jury might be.

Our system is not universal. In America, the whys and wherefores of a case, the lives of the protagonists, their very brand of underwear is up for grabs in news coverage, and court cases are treated like sports fixtures, with running commentaries by media experts on everyone's performance and the odds for and against conviction. Is the outcome any more or less reliable?

That approach admits that secrecy is almost impossible to achieve, and that the public has a right to know what's happening, when it's happening. Our system can make justice seem remote and unjust, and there are times when people - like the women at the railway station - lose faith in its good sense.

Secrecy, we tend to think, is what you want when you've got something unpleasant to hide.

and Findlay Macdonald again -
You have to wonder, then, where contempt of court begins and ends. Suppression orders obviously prevent the mass media publishing and broadcasting that which the courts deem prejudicial to a fair trial, either at the time or in the future. But the net effect of pubs, bars, the workplace and cyberspace buzzing with that same information is surely as damaging to the interests of blind justice.

Are we more concerned, then, with the appearance of judicial propriety than its maintenance? Possibly, but it's an appearance worth keeping up if it means we're all equal before the law.

Now, I want to add to that the following -

For whose benefit do we have criminal trials, the rules and traditions that surround them, the strictures upon the process, the sequestration of juries, all the trappings of Justice?

Is it for the accused?

That is one right answer.

Is it for all of us?

That is another right answer too, simply because we do not know when we might find ourselves in the position of the accused.

And that too is why Macdonald's conclusion is so right.

To be quite clear - this was posted Monday 10 April after some 4 days gestation. First draft was completed Saturday morning - hence the byline date.

Thursday, April 06, 2006

The Courts vs Freedom of Speech - 2

It has been reported that a newspaper has been fined for inadvertently disclosing sufficient detail that the victim of a sex crime (name suppressed by the Court) could be identified.

Read the article.

This case has nothing to do with any other Contempt of Court debate of the moment. In this case I am quite certain that the suppression order is justified.

It does show that the Court is prepared to use some teeth.

My "Catch 22" still stands...

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.

Tuesday, April 04, 2006

Some good news for once -

From Herald again...

Two men involved in what US authorities called the largest bust of pirated music CDs and computer software in America have each pleaded guilty to five criminal counts.

I hope that the US Courts ensure that they have not profited from their crimes.

There were reports late last week that pirate copies of "Sione's Wedding" have been available for the past fortnight - courtesy of an ex-employee of the film editor.

I think it stinks, it is not only immoral, it is (and should be) illegal. Yet the forces of darkness (those who wish to profit from copyright breaches) continue in their campaign - "I have the right..."

Crush those CD's into long, slender, sharp slivers and then shove them where the sun don't ever shine...

Monday, April 03, 2006

Practical considerations - 2

The big news locally over the past three weeks has been a rape trial. Now, normally rape trials do not figure much in the MSM other than a mention after the fact of the sentence handed down. It is not a case of "blase'" or minimising the importance to those affected. They are usually just under the radar. Perhaps the day of the dedicated "Court Reporter" - the old hack who could be found sharing a claret with Rumpole in Pomeroys - has gone?

No, this was something more than that.

First is the age of the charges. They date back 20 years, the complainant was 17 or 18 at the time of the alleged offences.

Second is the accused - three men, two ex-policemen and one currently third ranked (Assistant Commissioner) in the entire force. Well he was until he was suspended when the charges were laid.

Third is the aftermath. There are accusations of political interference in the Justice system, there is the cost (reportedly over $2 million), there are the "Not Guilty" verdicts, there is the dissatisfied plaintiff and there are three angry men.

There are questions that need to be asked, that are quite justified in my mind.

The first question, and the greatest of these comes not just from this case, but from a number of others as well - the Christchurch Civic Creche case (where now grown child witnesses have recanted their evidence citing "coaching", and there is evidence of selective evidence being presented and which ranks as this country's Salem Witch Trial); the Crewe murders (where Police blatantly framed up an ex-boyfriend, who has subsequently been given a full pardon by the Government); and the Bain murders (which is an insecure trial to say the least - yet to run its full course). On the other side of this coin is the trivial and the absurd - like a case reported at length on a news magazine programme last night involving a tiki (a traditional Maori pendant often having great importance) that had been buried with its owner; her grandson dug up the grave and "retrieved" the tiki from the casket. The local police have investigated and have decided that there would be no benefit in laying charges.

At what point does the government and its agencies (Police, Justice Dept, and the Dept of Courts) decide that a case is to be answered?

To bring that a little better into focus; there is the nature of the provable charge; there is the importance of the charge (obviously murder would have to rank considerably higher than shoplifting the local corner dairy); there is the strength of the evidence to support the charge.

It became apparent early on in the rape trial that it was going to be a case based predominantly upon the word of the plaintiff against the word of the defendants. To cloud that issue, the fact that intercourse had taken place - not once but on several occasions - was not disputed. The turning point of the whole case was whether there had been consent to the intercourse or not. Primary to that distinction was the relative "social positions" of the plaintiff and the three policemen - a young girl from a comparatively poor family and three well-known and respected policemen. That decision has been made through the verdicts.

So, how did that trial fit the question? I have little doubt that the Police prosecuted the charges with reluctance. In good part because of the age of the complaint, the evidence was comparatively tenuous as a result and open to interpretation, the fact that previous complaints to the police on the same matters had not been well handled, to a lesser extent the fact that one of their top men was involved...

But, please, notice that the potential cost of the investigation and proceedings does still not figure. But I submit that it must. Against that I must accept as "practical application of reality" the fact that cost is a factor that Police should take heed of when considering a case. While on the matter of "cost of justice", this is by no means the most expensive "Justice" meted out in NZ Courts. That "honour" goes in fact to a case taken by the IRD against an oil company for tax avoidance. The charges involved some $135 million, and last time I heard of it, the "Justice" had cost some $30 million (in the 1980s so probably equivalent to $100 million now). IRD won, including several appeals going all the way to the British House of Lords. But the debt has never been paid.

The second (and almost as important) is whether the accusations of "political interference" can be proven. That will come out in due course I have no doubt. In the morass that will be stirred are factors such as race (the high ranking policeman is a Maori), political alliances, political debts...

The third question is almost forgotten in the heat of the outcome - how do you compensate the accused for the impact the charges have had upon them, their families, their employment, their wealth... It is OK to point out that if they were found guilty no one would have batted an eyelid. It is OK to point out (or as one of the defendants admitted) that they were guilty of very immoral acts - not the least of which because they were all in "relationships" at the time - but not rape.

If you want all the sordid detail, search "Rickard" on or Pick your way through it all. There are some interesting little byways - including the Judge at the closing of the trial reminding the media of the permanent suppression of some of the evidence and the identification of some witnesses, and then musing briefly upon the internet and "uncontrollable publication".

And on that note, I will plead that full coverage has not been possible simply because of "practical considerations" and because the media have pumped as much out of the proceedings as they are able...

UPDATE - 4 Apr 06

The suppression of evidence and witness identification became an issue yesterday morning.

"Supporters" of Louise Nicholson (the plaintiff) were distributing pamphlets Wellington Central Rail Station, including matters that impinged upon the suppression orders of the Court. In an interview with one of the defence lawyers, the action was described as "a very blatant and intentional breach" of the Court Orders.

I have no idea what the suppressed evidence covers. I have no intention of even trying to find out.

There are two aspects to the question of suppression.

The first that the evidence and the names are released in open Court. Therefore anyone who was in the public gallery at the time would have heard the evidence or the names. There have been rare instances where "secret" witnesses have been used. The only ones that I can recall involved undercover police and SIS personel. That the Court Orders did not mention "secret witnesses" specifically rules out that as the rationale.

The second aspect that comes to the fore is the relationship between the suppressed evidence and names and the not guilty outcome of the trial. Given that those who are breaching the Court Orders are supporters of the plaintiff does not in any way determine the nature of the suppressed evidence. I go no further than that. It is an either/or - the suppression of the evidence influenced the outcome or it did not.

Getting cosy with the Yellow Peril...

Again the Herald...

Australia and China signed a nuclear safeguards deal today to allow Beijing to import Australian uranium for power generation, but an Australian minister said exports were unlikely to start for some years.

The deal was signed in the presence of visiting Chinese Premier Wen Jiabao and Australian Prime Minister John Howard.

Australia's willingness to embrace Beijing has highlighted differences with its close ally the United States, which remains wary and has questioned China's military and economic ambitions

Let us hope that the Chinese Government show more respect for the principles and the mores of international law than in the past, and more than has been shown by some other "advanced nations".

The NPT [the international Non-Proliferation Treaty] obligates the five nuclear-weapon states -- the United States, Russia, United Kingdom, France, and China -- not to transfer nuclear weapons, other nuclear explosive devices, or technology to non-nuclear-weapon states and those which haven't signed the treaty.

Hmm, yes. One can but wonder about South Africa (who has since renounced its nuclear weapons development programmes), Israel, Pakistan and India.

Practical considerations - 1

Caught my eye on this one...

Airlines raise a stink over fermented herring
Surstromming, the highly pungent but much loved Swedish dish of fermented herring, has a habit of offending the uninitiated with its peculiar taste and overpowering smell of rotten garbage.

But now the national favourite, traditionally devoured in the summer months with large quantities of highly alcoholic liquor, has fallen foul of the airline industry who have asked passengers not to take it on board, saying it poses a safety risk.

OK, having smelt my daughter's breath after a dinner with the Norsemen I can understand. Just a little, but I can understand. I think I would describe it as being somewhat similar to sticking a spade into the wrong part of my grandfather's compost heap - the one where he buried that shark about three months back.

Jan Lindqvist, head of corporate communications at Arlanda airport, said the decision to remove surstromming from the shelves was a purely practical one.

"It's nothing to do with terrorists," he said.

"We're not saying Bin Laden is going to start using surstromming as a weapon or anything but it is a practical consideration for the airlines."

Airlines are worried that the swollen tins of fermented fish are particularly vulnerable in the air because of pressure changes during take off and landing.

In order to make authentic surstromming, herring from the Baltic is usually caught in the spring and fermented in barrels for a number of months.

It is then placed in tins and left to ferment for a further year, bloating the container and creating the noxious gases for which the dish is so renowned.

"The cans swell up like a football." said Lindqvist

"If it breaks inside a plane it would take two of three days to clean out the aircraft and the airlines don't want to have to ground their flights."

Yes. That I can understand as well. Kate did her own washing - well you can't help but dribble a mix of oil and vodka on your clothes can you - and I donated a 1kg bag of NaOH to be used to clean the washing machine out after...

But no dish is as unforgettable as the foul smelling surstromming, which rivals Southeast Asia's durian fruit and Iceland's famous buried shark in the questionable foodstuffs category.

Oh. Was that what my grandfather was up to? I doubt it.