With apologies to AP Herbert – Haddock v Empire Television Holdings (a firm)

Haddock

v

Empire Television Holdings (a firm)

 

This application for an urgent injunction was heard today before Mr Justice Swallow.

Stephen Swine QC (for Haddock): MayitpleasetheCourt, the applicant seeks entry into a televised debate between the leaders of the two major political parties.  The respondent proposes to host the debate on its television network.  It refuses to let Mr Haddock, gentleman and some-time political candidate, join the candidates on stage.  There is precedent for the Court to order his inclusion in the Dunne and Anderton and Craig matters.

His Honour: But not recently.

Swine QC: It is true the Court’s door has been resolutely shut to the prospect of late.  But the point I would endeavour to make to your Honour is that it has not always been so.  For example, without the Court’s involvement the country would have seen far less of Mr Craig.

His Honour: A mistake her Majesty’s judges have continued to make.

Swine QC: Just so, your Honour.  Though, if your Honour will permit me, the point for which I was reaching is that Mr Haddock is as entitled as anyone to share his political views as anyone in this country.  To exclude him from the debate is tantamount to saying that his beliefs are less important than another person’s merely because she happens to lead a political party.

His Honour: Are you saying Mr Haddock does not lead a political party?

Swine QC: In point of fact, no, your Honour.  And nor is he standing for election.  But he is a concerned citizen.

His Honour: Concerned at what, precisely?

Swine QC: Concerned generally, your Honour.  Mr Haddock’s concerns are both deep and wide-ranging.  It is precisely those he wishes to share with the nation in the debate.

His Honour: And the debate is between the leaders of the two main political parties?

Swine QC: The debate is between persons with differing political opinions to inform voters at large.  There is no reason why that should not be three persons instead of two.  And my learned friend has not provided any.

His Honour: I think you draw rather a long bow, Mr Swine.  I shall hear from your friend. 

Sir Ambrose Stark-Raving QC (for Empire): This Court’s previous decisions permitting interlopers in planned debates share the common feature of illogicality in criteria for inclusion.  Where a television producer has not suffered a brain explosion before setting criteria, a debate may proceed free from the intrusion of both the Court and the Haddocks of this world.

 

His Honour took brief time for consideration and delivered the following judgment ex tempore:

It is the right of every citizen in this country to hold and espouse whatever political beliefs they so choose.  The current make-up of the House is proof positive that a lack of commonsense is no impediment to a political career.  And views are acquired not only from one’s fellow passengers on the Island Bay Bus but through seeing and hearing debates of issues on television.  If elections are the lifeblood of our democracy then television debates are its platelets, ensuring that clots make the occasional appearance.

To this Court comes Mr Albert Haddock, seeking to be included in a television debate convened by Empire Television Holdings.  The debate is between the current Prime Minister and the leader of her Majesty’s loyal opposition.  Mr Haddock is not standing in the general election.  Nevertheless he wishes to be included, and to share his political views.  I am informed from the bar that his views are neither left nor right, but breathtaking. 

The focus must be on the criteria of inclusion and exclusion.  Sir Ambrose for Empire submits that this Court has historically interfered with participation in debates if the criteria for inclusion are illogical.  Empire propose to include the leaders of the two main political parties in the country.  They are the people that may be the next Prime Minister.  Mr Haddock complains of illogic.  A debate is about the airing and exchange of views and what is best for the country.  It is a narrow mind that thinks only two persons will give a full range of views.  And Mr Haddock goes further.  It is a near certainty that the leader of one party will say that what is best for the country is the particular suite of policies belonging to their party.  As will the other leader.  The debate become an opportunity only to repeat things voters are already likely to know from other sources of information.  Restricting participation to two broken records is hardly likely to inform the populace. 

I am driven to agree. 

Now, it is true that Mr Haddock is not the leader of a political party.  And it is true that he is not running for political office of any kind.  What place could he have in a debate between persons who plausibly might be the next Prime Minister?  Empire would deny him entry on that basis. 

But that is to overlook present polling.  We are mere days away from the date of the election.  Many, many voters have already cast their ballots.  When regard is had to the poll numbers (which by now must be very accurate indeed) it might be said categorically that Mr Haddock has as much chance of being the next Prime Minister as does the present leader of the opposition.  He cannot be distinguished from one of the present intended-participants. 

While courts across the country deny reality and spurn fact every day of the week, they may do so only in accordance with well-established criteria such as an Act of Parliament, a rule of common law, or three lunchtime sherries at the Northern Club.  I am satisfied none of those apply here.  There is nothing to compel departure from the plain fact that Mr Haddock has as much right to be in the debate as the leader of the opposition. 

Given that, to exclude Mr Haddock would be illogical in the extreme. 

What, then, remains of Empire’s argument?  So far as I can see: nothing. 

At this point Mr Swine QC rose and objected so strenuously that he suffered a hernia requiring immediate hospitalisation.  His junior, Mr Rupert Boddington then continued the objection, to the effect that if Mr Haddock were to be included on the basis the Court had indicated there would be no grounds to deny participation to any other person wishing to be included in the debate. 

The Court continued:

Mr Boddington has raised a concern that the country lacks sufficient podiums to accommodate the flood of candidates who would take part should this Court continue in the direction it is heading.  

That may be so, but as courts wiser than this one have said: “Fiat justitia ruat caelum. Justice must take its normal course, even in abnormal times.”

There will be a mandatory injunction requiring the inclusion of Mr Haddock.

New Court of Appeal Practice Note On Approach To Precedent

Court of Appeal Practice Note on Approach to Precedent

In Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 the Court of Appeal did not consider the Supreme Court decision in Wong v R [2009] NZSC 64 prevented it from changing the test for appeals from bail decisions.

In Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 the Court of Appeal did not consider the Supreme Court decision in Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 prevented it from holding that personal discounts could be afforded normal weight in drug sentencing.

In Moses v R [2020] NZCA 296 the Court of Appeal did not consider the Supreme Court decision in R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 prevented it from altering the three-stage approach to sentencing.

In light of this, and to assist with the future conduct of litigation, this Practice Note identifies which (if any) Supreme Court decisions bind the Court of Appeal as a matter of stare decisis and court hierarchy.

The Court of Appeal is bound to follow and apply the following Supreme Court decisions:

  • Taylor v Jones [2006] NZSC 114, [2007] 2 NZLR 178
  • Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 (paragraphs [1]-[89] only).
  • New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR 948 (Divisional Courts only).

The above list will be kept under active consideration and updated accordingly.

 

Judges of the Court of Appeal

15 July 2020

A late entry for NZ law firm Employer of Choice Award 2020

Good luck to all the law firms self-nominating for NZ Lawyer Magazine’s Employer of Choice Award.  I have been asked to forward on this late entry.  You too can enter using this form.

 

Introduction

Herring Bai Aviel is a 250 lawyer, full service law firm with glass-ceilinged offices in  Auckland, Wellington and Mosgiel.  Our guiding philosophy is to hasten business and quicken enterprise, hence our motto: “HBA: Fast-Forward The Commercial”.  Our alumni include an Attorney-General from the 1970s and a High Court judge appointed in the 1980s, the names of whom not even we recall.  Our clients are drawn from the ranks of the more rapacious extractive industries, greenwashed carbon emitters, the hair-triggered, the embittered formerly-relevant, the deep of pocket, and anyone with gold-plated indemnity insurance.

Our partnership, most of whom were admitted in the 1960s, are excited about this opportunity to compete for the employer of choice award.  In particular, the idea that employers themselves apply for this award (rather than NZ Lawyer Magazine asking employees) is a lightweight exercise in branding that HBA is proud to say accords with its longheld values.  Below, we address the required criteria.

 

Remuneration

Like many large firms, we are definitely not part of a quasi-cartel paying our junior solicitors on bands that are identical with our competitors.  We pay our employees in a combination of Les Mills memberships, complimentary cheese and crackers and, where necessary to comply with employment laws, New Zealand dollars.  Pay levels are set by estimating firmwide gross yearly income, subtracting overheads, identifying how many swimming pools per partner the equity dividend needs to pay out that year, and then distributing the crumbs among the huddled masses of our employed solicitors based on favouritism and caprice.  

 

Training and professional development

Every mistake is a learning opportunity.  But we don’t make mistakes at HBA, which is a lucky coincidence because we don’t provide learning opportunities either.  Instead we operate an internal program of continuing professional development focused on sharp billing practices, aggressive letter writing and shouting at secretaries.  This is recorded on CPD registers as unconscious bias training.

We employ professional actors to provide references of completion for all CPD, should the New Zealand Law Society enquire.

 

Career progression

There are always plenty of avenues for advancement at HBA.  That is because our intermediates all leave when they realise there’s no way we’re letting them into the partnership.  Happily, that means we aren’t lying when we tell our juniors that it’s likely that they’ll make associate in a couple of years.

 

Diversity and inclusion

Around here, we encourage people to bring their whole selves to work, mainly when refusing their requests for time off.  We don’t see colour, gender or sexuality in a bid to justify our extremely white partnership.  We are happy to say that we were immune to the #MeToo scandal as 100% of our employed junior solicitors are straight white guys called Benedict that went to Kings College.

HBA’s commitment to Tikanga Māori is second to none.  Early in our Te Ao Māori journey we made a promise we stand by to this day: no law firm in New Zealand will out-do us when it comes to shameless co-opting of whakatauki in corporate branding and email signatures.  Talk about one sweet kumara, huh?

 

Access to technology and resources

At HBA we have a saying: Who lodges the most personal grievances?  It is people.  It is people.  It is people.  That is why we are part way through an innovative program to replace as many of our staff with computers that do not know about the Employment Relations Authority.  This builds on last year’s work in Operation Discovery Coda to bring an end to discovery coders and replace them with an AI that now seems to control the building’s lights and air conditioning.

 

Work-life balance / health and well-being

Work life balance is important to HBA.  Everyone agrees that work should be fun.  At HBA we take this one step further and insist that fun should be work.  After all, Billings is not just a city in Montana.  Because HBA is about living your values, we think our staff should live in a way that promotes the value of our equity stakes.  Staff are encouraged to spend their bus-rides, showers, and Saturday morning child sports spectation thinking about their files.  In this way, HBA has a reputation for applying the cutting edge of legal practice to one’s personal life.

 

Leadership

Dr Ashley Bloomfield describes leadership as a call to collective action.  We agree (even if “collective action” sounds a bit uniony to us…).  We exhibit leadership in every aspect of our practice.  We were a market leader in switching from the billable six minute unit to the billable five minute unit.  We were the ones to come up with the phrase “work hard and play hard”.  We were the first in the industry to move on important social issues – by blaming Russell McVeagh for everything and then pretending that the Bazley Report fixed it all.

 

Communication

We operate a Twitter account that blandly posts links to our news page with no added value.  Our LinkedIn page for some reason proudly shows group photos of our extremely white law clerks getting admitted.  Over the last year we have focused on our communications and branding and now operate a five-person team dedicated to photoshopping out champagne flutes from pictures of admission drinks functions.  We are the largest ad buyer in the three most important media markets in the country: Hosking on ZB, NBR, and the noticeboard at Remuera New World.  Our tightly controlled media game has led to our injunctions being praised as super.

 

Reward and recognition

Hard work is its own reward, especially at HBA where we have no rewards but plenty of hard work.

 

Recruitment

Our firm is open to all.  Anyone can find a home here, whether you are rich, white and brilliant, or merely rich and white.  Our summer clerk recruitment programme advertises exclusively in Martinborough and Waiheke Island.  Our intermediate to senior lawyers are drawn from the ranks of defendants in the Lawyers and Conveyancers Disciplinary Tribunal.  A recent survey of our staff confirmed that 95% of our ranks are classified by the Aotearoa Legal Workers Union as scabs.

 

Concluding comments

Thank you for the consideration you have given this application.  The partnership of Herring Bai Aviel looks forward to discussing its ad spend with you at your earliest convenience.

 

Spin-off announced to popular “Legal System”

Following increased interest over recent weeks, the New Zealand government today announced a development deal to produce a spin-off series to the Legal System.  The new show, which does not yet have a title, will bring a “ripped from the Twitter headlines” approach to legal issues.

A spokesperson for the Legal System said that the move was largely aimed at catering for a commentariat that was interested in the cut and thrust of legal issues without necessarily being familiar with either the long-running story lines of the last five hundred years or critical thought.

“The Legal System has been doing fantastic numbers in recent weeks, largely driven by an engaging and mobile legal environment in the form of challenges to aspects of the lockdown.  But what many of those new viewers are interested in are Twitter-driven high-farce takes involving moustache-twirling villains conspiring in high-powered roles, with actions that are unequivocally unlawful.  Up to now, the Legal System has always been about well-intentioned constitutional actors, constructive legal argument, informed commentary, and slightly staid judgments with plots that stretch across seasons.

“Of course, that is always what the Legal System will be.  But rather than lose these new viewers who don’t seem particularly interested in that, we want to indulge them with a separate offering that airs at a later timeslot and a rating that allows for violence and nudity, and then tell them that that is the Legal System.”

The Legal System will not change.  The coming weeks will see the conclusion of a judicial review plot and the resumption of jury trials.  One of the main characters will seek an extension for the filing of reply briefs.

Meanwhile, the spin-off will be set in an alternative reality that diverged from our timeline in the mid-1970s when Chief Justice Wild performed a citizen’s arrest of Robert Muldoon.  The first episode will feature the Attorney-General infiltrating a street-racing gang to try to bust a counterfeiting ring who are printing fake copies of the New Zealand Gazette.  Meanwhile, the Governor-General has invited two constitutional crises to the same dance, and must try to make sure they do not meet.

The Legal System airs Thursdays at 7.30pm on TV One.  The yet-to-be-named spin-off will air on Fridays after new episodes of “Epidemiology: Revenge Explosion”.

The spin-off will be produced by Matthew Hooton.

Supplementary Remote Hearing Protocol for Courts of New Zealand

This supplementary remote hearing protocol is to be read in conjunction with whatever iteration of new guidance one of the courts put out today.  It applies to all remote hearings conducted at levels one, two, three, four, and the hidden level five that you can only unlock by completing all the other levels first.

 

Business of the courts

All courts will continue to hear priority proceedings, these include bail applications and appeals, applications for freezing orders, and all spurious and non-spurious applications for habeas corpus.

Owing to the spirit of the times the Courts will not hear arguments relating to duties of care in negligence that turn on proximity, or contractual interpretation claims that turn on the doctrine of infection.

 

Hearings by AVL

Most hearings are now by AVL.  All courts use the same VMR technology.  The High Court and District Court permit the use of Zoom but for some reason the Court of Appeal forbids it.  It is not intended that any explanation will be given about that.

While not accepting Zoom, the Court of Appeal will permit you to appear remotely by Snapchat, recording your submissions in a series of Snapchat videos, to be sent to the registry.  Questions from the bench will be sent to you by return Snapchat video and, if the judge thinks the question is a really zingy one, posted to the Court of Appeal’s Snap story.

Supreme Court hearings will be facilitated exclusively through Houseparty.

If Houseparty is unavailable, then counsel are permitted to travel to the nearest Supreme Court Justice’s bubble and shout their submissions from the footpath.

At the end of a hearing, the matter will be adjourned apart heard.

 

AVL hearing etiquette

Counsel will be muted when not making submissions and, at the discretion of the Court, muted when making them too.

Counsel are not required to be gowned except when it comes to dressing gowns in which case counsel are required not to be gowned.

A formal standard of attire is required – after all, you’re not in the District Court any more.

You are not required to stand when the judges enter, unless you think giving the bench a close up of your crotch will help your case in which case go for it.

 

Hearings in person

Hearings in person will continue to be conducted (either in person in their entirety or partially through AVL to facilitate the attendance of one or more participants).  The following modifications will apply:

  • Queen’s Counsel seating priority now means they will sit furthest from the bench.
  • Witnesses being sworn-in will be asked to place their hand two metres from a Bible.
  • The Court will not accept any documents to be handed up.  Instead, any documents should be printed on size A1 paper in at least size 72 font, so that they can be read from a safe distance.
  • Should any physical exhibit need to be inspected, it should not be handed up.  Instead, it should be left outside the courtroom in a sufficiently open and ventilated space.  The Court will then use its powers to undertake a view pursuant to s 82 of the Evidence Act 2006.

 

Other matters

Please avoid the following phrases in written and oral submissions:

  • Just to touch on this next point.
  • Hand in glove.
  • A close reading of the statutory text.
  • Noscitur a sociis.

 

 

Latest Supreme Court decision bad news for Chief Justice

The Chief Justice’s last, best hope to avoid having to host a dinner with the profession has been dashed.  Options to get out of hosting an ADLS dinner at the Northern Club on 13 March 2020 are now severely limited following the Supreme Court’s reasons in Minister of Justice v Kim [2020] NZSC 18.

Today’s decision (from a panel that did not include the Chief Justice) held that extrajudicial engagements do not, in and of themselves, affect a judge’s ability to sit.  That had the effect of confirming that there is no legal reason that would prevent the Chief Justice having to pretend to enjoy socialising with 200 people whose idea of a good time is dinner at the Northern Club.

The Supreme Court’s decision was limited to whether appointment under the Inquiries Act 2013 affects judicial independence in the context of William Young J’s appointment to the Royal Commission of Inquiry into the Attack on the Christchurch Mosques on 15 March 2019 and Arnold J’s appointment to the Government Inquiry into Operation Burnham and Related Matters.  The decision contained no helpful obiter observations about whether punishing public dinners on a Friday night might also affect judicial independence, despite “[b]oth the Senior Courts Act and the Inquiries Act [being] silent on the point” as well (Kim at [30]).   Nor did it make any comment on the latent injustice of having to suffer through these sorts of dinners in arm’s reach of sobriety for the sake of public perception.

The Supreme Court confirmed the Saxmere test for apparent bias continues to apply, however bloodstock agents confirmed that, due to new AML regulations, a purchase of a share in a racehorse was unlikely to be able to be effected before 6.30pm on Friday 13 March 2020.  Efforts by clerks late Thursday to locate an extant application for leave to appeal to the Supreme Court that somehow involved either the Northern Club or ADLS proved unsuccessful also.

The Chief Justice’s speech for the dinner currently consists of an entry in her phone’s Notes app that records it wasn’t until her fourth year of being a partner in a law firm that the Northern Club started admitting women as members.

The only New Zealand lawyer Power List you will ever need

LawFuel has updated its Power List for 2020 and I’ve read it with the normal bemusement.

LawFuel’s articles have always fascinated me.  They talk about the New Zealand profession in an American accent.  I non-ironically love the language they use, the press releases they repackage and the headlines they import from the States.  It’s such a distinctive voice.  Siren-like, with all the implications of that term.  Essentially non-essential in ways I can only dream of imitating.

And the Power List is all that and more.  I like the authority with which it speaks:

The List is once again compiled following feedback from senior members of the New Zealand legal profession and our own research into the roles and power rises and falls of a profession facing some unique challenges both from within and from outside.

Strongly rejected is the idea that, hey, this is a list of pretty clever people doing things in the law that we think are interesting and that you might find interesting too and we’ve put it in a list because that’s always a bit of fun.  No, this list is Arduously Researched.  It is Scrupulously Ranked.  One of these people has, this year, Broken Into The Top Ten.  Most lists like this are subjective, so calling it subjective is an observation, not a criticism.  But the subjectiveness sparkles especially brightly when the metric veers all over the shop in order to justify the inclusion of certain people: when straight “power” won’t do, people are lauded for their “quiet power”.

EDIT: As one astute commenter noted, the 2020 list features at number 44 Andrew Stockley as the Dean of the Auckland Law School.  Except the Dean of the Auckland Law School has been Professor Penelope Mathew for the last nine months (since March 2019).  Arduously Researched.

But isn’t it a pain to read up on the Power List every year?  Especially because there seem to be the same types every year.  Fortunately, I have read several iterations now and have distilled its essence.  So if you don’t feel like reading the Power List, read on for the only New Zealand lawyer Power List you will ever need (presented unranked):

 

The doddery old QC

Led every famous case in the 90s and soon to lead a bunch more in his 90s.  And yes, it’s always a him.  Quietly thinks things have gone downhill since Barrowclough gave up the Chief Justice-ship.  Once juniored for Alf Hanlon.  Last looked at the statute book shortly after the 1908 consolidations.  No longer a member of the old boys club since he aged out.

 

The President of some lawyers’ association

NZLS probably, maybe ADLS.  By rights it should be ALWU but you can’t have power if you’re under 30 years old.  An ex officio member of the Power List.  Lawyer organisations exist as sort of punching bags despite doing decent enough work.  Their main function is publishing a magazine in order to feature letters to the editor complaining about what they do.  A profession full of rich egomaniacs is almost impossible to regulate, but the task of the president is to do that lest the government step in.

 

The old legal evergreen who’s been banging around since the 70s

Perhaps they were a Cabinet Minister under Lange.  Maybe they were an Ombudsman in the early 90s.  They’re definitely a Distinguished Fellow somewhere.  Yes, they’re still here and have power if by power you mean name recognition with your dad. They continue to publish articles in law journals that seem more about politics than law.  A new project from them can still land them the second interview slot on Nine To Noon.

 

The head of legal in a large government regulator

Name recognition through fronting cock-ups.  Trying to revitalise this key industry regulator that has fallen on hard times.  What’s worse than a government bureaucracy? A government legal bureaucracy.  They say a large ship takes a long time to turn.  Unfortunately there is no large ship metaphor that ends positively: the Titanic, the Lusitania, the Poseidon.  Wasn’t Speed 2: Cruise Control set on a boat?  Constant tension headaches have given them the power to levitate Panadol tablets with their mind and if that’s not true power we don’t know what is.

 

The tireless self-promoter

Open any issue of LawTalk from the last five years and there will be a piece they got a junior to ghost write.  Has cornered a niche area and writes on it constantly like a cringe budget Kiwi knock-off of Richard Susskind.  Adored outside the legal industry and deplored within.  Has sent three emails to CPD providers already this year suggesting seminars they could front.  Has another book out this year. Power through indefatigability.

 

The ex-High Court Judge who does arbitrations now

Retired from the High Court and treating Ted Thomas as a cautionary tale.  Spending their gold-plated pension on inner-city chambers.  Now able to talk with people they meet on Shortland Street.  They put up with 15 years of the Court of Appeal tipping them over on the facts, and will now face 15 more of the High Court tipping them over on the law.  No longer able to formally hold people in contempt, but freer now to do so informally.

 

The civil servant you have never heard of

Oh, them?  I thought it was old so-and-so who did that?  Where’s he gone to then?  Oh really?  So who’s this then?  Oh well good on them I suppose.

 

The large law firm managing partner

Promoted as a result of their firm casting around to find one of the few partners who wasn’t part of the bad old days.  Has overseen a hasty reform program of working-late dinner allowances and salary top-ups for junior staff, funded by removing the free booze and the strip clubs on expenses.  About to front an apology tour of the Law Deans to get back on the Christmas card list.  Worked out quite quickly that the best answer to corporate clients asking about the firm’s commitment to eliminating mistreatment of junior staff is to say “we do the same things as you”, and then let fear of hypocrisy deter follow-up questions.

 

The one from Christchurch

Everyone else is from Auckland and Wellington so we cast around and found one person we could plausibly put on the list who was from Christchurch. This counts as diversity.

 

Chief Justice: judiciary will send “much stronger signals” to executive on sentences

In light of comments by politicians that the criminal justice system “does respond to the government of the day, and the signals they’ve sent, without a doubt”, and that politicians will “send much stronger signals to the judiciary around [sentences]”, the Chief Justice has issued the following statement:

———————–

The independence of the New Zealand judiciary is the bedrock of our constitution.  The judiciary does not and will not respond to directions from the executive.  Indeed, if there is one thing that my time as Chief Justice these last nine months has confirmed to me it is that the judiciary is almost impossible to give any sort of direction to.

The judiciary will continue to faithfully apply legislation enacted by Parliament.  It is Parliament, not the executive, that can set guidelines for sentencing policy.  That is primarily through the means of the Sentencing Act 2002 which, of course may be amended by Parliament to reflect the policy objectives of the government of the day.

A good example of that is the three strikes provisions.  Since Parliament enacted the three strikes sentencing policy, the courts have followed it to the letter.  It just so happens that, due to misprints in judicial copies of the Sentencing Act, the letters that record the manifest injustice exceptions have been bolded, highlighted and typed in size 48 font.

The independence of the judiciary can also act as a check on the conscience of the executive.  It is not for the judiciary to express an opinion on whether a ban on prisoner voting is a “good idea” or a “bad idea”.  It is for the judiciary to decide whether the executive and Parliament have met the standards those institutions chose to set for themselves through the New Zealand Bill of Rights Act 1990, then throw as much shade as it can over 150 paragraphs.

Sentencing is an exercise that requires the principled exercise of discretion.  Legislative measures that restrict that discretion risk injustice in individual cases where judges are prevented from crafting a sentence that fits the circumstances of the case.

As for the idea of “stronger signals”, it’s cute that you think that, but the executive tends to send a rather singular “signal”.  We get it: you think sentences should be longer.  In the absence of any other constructive input it has fallen to the judiciary to reform sentencing policy on methamphetamine to focus on rehabilitation, recognise the impact of young persons brain development on offending, develop principles about the effect of mental illness on sentencing, craft systemic deprivation discounts that begin to grapple with the effect of colonisation, expand rangatahi courts, and more.  And all of that without the help of signals on any of that.  We are doing more to accomplish a reduction in reoffending than any soundbite on Checkpoint involving a ham radio metaphor.

It is a shocking indictment on this country when the judiciary is the most progressive of the three branches of government.  The finest traditions of the common law system require judges to be port-soaked reactionaries, lamenting the demise of corporal punishment and compulsory national service.  We aren’t thrilled that it falls to us to drag sentencing policy kicking and screaming into the 21st century, but we’ll do it if we have to.

If this signal isn’t strong enough, I’m happy to repeat myself.

 

PS: “Strike Force Raptor” is what we call the High Court commercial panel so you’ll have to come up with another name.

The Court of Appeal’s recipe for a chocolate cake

clos up  on Burned Gingerbread on wood table
I followed the instructions to the letter.

 

Inspired by Zhang v R [2019] NZCA 507 and Orchard v R [2019] NZCA 529.

 

Band Four chocolate cake

As a starting point it serves 8-10.

 

Ingredients

The ingredients available are any of the following.  Before you start be sure to assess not only the presence of these ingredients but also to evaluate their nature and quality.

175 grams of butter (softened depending on personal circumstances)

1 and three quarter cups of sugar in cases of particular aggravation

1 tsp vanilla extract

Up to 3 eggs

2 cups of flour, where the flour is of at least 60% purity

No more than half a cup of cocoa, unless more is required

2 tsp baking powder

1 cup of milk

 

Method

Preheat the oven to up to 180 degrees celsius, but this should not be seen as an upper limit and in appropriate cases this could go higher.

Place the butter, sugar, vanilla in a large clean mixing bowl.  Cream them together but ensure you continue to distinguish between them.

Add the eggs one at a time, being careful to avoid double-counting, then mix.

Sift in the flour and cocoa to the extent they apply.  This will be determined primarily by reference to their weight.

Add the baking powder taking care to avoid excessive uplift.

Pour in the milk and stir gently.  Then, step back and compare the mixture to other cakes you have baked in the past.

The mixture should still have a runny consistency but consistency is not an absolute end: the task remains an evaluative exercise.

Pour into a 30 centimetre tin.  Some overlap at the margins is to be expected.

Place in oven and bake for up to half an hour, though consider whether it should be released from the ten minute mark onwards.

Remember it is the end result that matters and not any individual step or ingredient.

 

The first case note on Zhang v R: meth sentencing pipe dreams

We don’t know what the Court of Appeal will say in its soon(?)-to-be-released guideline judgment on meth sentencing. (EDIT: now we do!  It’s going to be released on Monday 21 October at 11.30am!)  At the moment the decision is shy (by which I mean it is extremely reserved).

But why should that stop pre-punditry?  My opinions are normally so wildly off base I don’t see why not having read the judgment should hold me back.  If anything, uninformed commentary means I’m *more* likely to be on the mark.

So, with that in mind, here is the first case note on the Court of Appeal’s decision in Zhang v R.  

Wow, what a decision!  We can safely say this was written with all audiences in mind.  Whether you’re anti-prison, pro-deterrence, a fan of judicial sleight-of hand, or an arch-Parliamentary sovereigntarian; truly, there’s something here for everyone to dislike.

Gone are the four bands of starting points in R v Fatu.  Replacing them are twenty-three different overlapping bands of starting point gradation, based on inputs ranging from commerciality, offender role, purity, actual and potential profit, gang affiliation, offender star sign, and the colour of getaway vehicle (if any).  An appendix to the judgment sets out an inputs table, that details a range of multipliers to be determined by the sentencing judge on the facts of a particular case and by reference to seven more “archetypal cases” described in the guideline judgment.  When the right factors are entered it will generate a starting point between 12 months and 35 years.  Do it right and be sure to carry the one, and it’ll take you about four hours per case.  It’s basically the Sainte-Laguë method but for starting point.

Now, as the Court of Appeal noted at paragraph 745, “any slight increase in work by busy sentencing judges will be more than made up for by the transparency to sentence calculation engendered by use of the Court’s new sentencing matrix”.

Personally,  I think the Court of Appeal erred in factoring offender star sign into the starting point calculation.  That is a personal aggravating or mitigating factor and including it in the starting point mix presents a challenge to consistency across defendants.

After calculating the starting point, focus then turns to personal mitigating factors.  The Court of Appeal here has latched on to the legislative fact doctrine like a toddler to a parent’s leg.  Sure, that pesky court hierarchy meant it couldn’t do much about the Supreme Court’s warning in Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 that when it comes to serious drug offending that “[t]he crucial importance of deterrence requires, however, that the reduction in sentence [for personal factors] be a modest one”.

But as Palmer J pointed out in R v Wellington [2018] NZHC 2196 at [8] while deterrence is the legislative aim of the game, just how you go about deterring is in fact very much up for grabs.  Here, the Court of Appeal relied on studies that showed that long prison sentences don’t do a great job of deterring people in the grip of addiction.  Now, whether they should have gone as far as express that finding in the terms they did will be a matter for the wider commentariat (I myself haven’t encountered a judgment with that much swearing in it before).

The focus of sentencing is now – as it should be – the offender’s role and type of meth operation, rather than weight of meth.  There are limits though, and the judgment is interesting for its constitutional dance.  Parliament is boss and the Court of Appeal can’t do anything about the maximum sentence for meth manufacture or importation.  The Court of Appeal can’t do anything about s 8(c) of the Sentencing Act 2002 either.  Parliament says to come down like a ton of bricks on *someone*.  The courts really only have control over what instances they will pull the lever to drop the masonry.  The Court has shown it is willing to take that inch and run 1.6 kilometres with it.

But it all leads to an interesting overall sentencing doctrine from the Court of late, about which more deserves to be written.  This decision shows a willingness to grapple with the realities of meth offending.  That can be compared, usefully I think, with Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 where the Court of Appeal threw the book at perpetrators of domestic violence.  Peculiarly, there is nothing in Hutchison itself directly calling for higher sentences, but the decision has reverberated in the lower courts in a way perhaps not intended.  Then there is Setu v R [2018] NZCA 127 where the Court showed a lack of interest in monitoring sentencing drift in its own Taueki guideline judgment.  I don’t know what we learn from all that put together, but there’s something interesting to be charted on it someday about what interests the Court in sentencing policy and administration and what doesn’t; when it will turn to complex solutions and when it won’t.

There will be lots more to unpack from the judgment in the coming days, and even more after we actually know what’s in the judgment.  And of course, it remains to be seen whether the Supreme Court will instead chooses to adopt the approach set out in the surprising two judge dissent.