Q&A – Catriona MacLennan facing Law Society inquiry

This should be interesting, but with a Law Society inquiry into Catriona MacLennan’s criticism of a judge’s decision (that was subsequently overturned on appeal) it may limit what she can say about that.

Some background from Newsroom – Lawyer: I will not be silenced

Under inquiry by the Law Society for criticising a male judge’s comments on a domestic violence case, Catriona MacLennan wonders when the targeting of women in the law will ever stop.

Last December, The New Zealand Herald asked me to comment on a Queenstown case in which a judge had granted a discharge without conviction to a man who had assaulted his wife, a male friend and his daughter.

The judge said that “Really, this is a situation that does your wife no credit and does the [male] no credit” and “There would be many people who would have done exactly what you did, even though it may be against the law to do so.”

The judge’s comments and sentence in my experience are almost unprecedented.

The nearest analogy I can think of is the public criticism following the exculpatory remarks made by the sentencing judge in the case of David Minnitt, who killed his wife Leigh in 1980 and said afterwards he had been provoked by her criticism of his sexual prowess.

I told the Herald that I thought the Queenstown judge’s comments and sentence displayed a complete lack of understanding of domestic violence, victim blamed, and minimised assaults on three people.

I said that it was inappropriate that a discharge without conviction had been granted, and the result in the case was out of line with other decisions.

I also said that it was the role of the judiciary to uphold the law and foster respect for the law. Stating that “many people would have done exactly what you did” condones and excuses domestic violence. I do not consider it appropriate for a judge publicly to condone breaking the law.

I said I did not believe that the judge should continue sitting on the Bench.

This is the first time I have said that in 21 years of commentary on domestic violence.

The Police subsequently reviewed the judge’s decision and referred the matter to the Crown to consider an appeal against the discharge without conviction.
That appeal was granted by the High Court in March 2018.

The Chief District Court Judge, the Police, the Crown and the High Court accordingly all agreed that the Queenstown judge’s comments and/or sentence were inappropriate.

On March 7, I received a letter from the National Standards Committee of the Law Society, advising me that the committee had commenced an investigation against me in relation to the comments I made to the Herald.

Whether I failed to comply with a lawyer’s fundamental obligation to uphold the rule of law and facilitate the administration of justice in New Zealand?

The National Standards Committee asked me to provide a response to its questions. The committee has decided to deal with the matter on the papers, rather than holding a hearing. It can decide to make a finding of unsatisfactory conduct and impose a penalty; or escalate the matter to the Lawyers and Conveyancers Disciplinary Tribunal by laying a charge against me.

The penalties the committee can impose include censuring me; ordering me to apologise; fining me up to $15,000; and ordering me to pay the costs of the committee’s investigation.

My comments to the Herald were based on my 21 years’ experience relating to domestic violence: both as a lawyer in the Family and Criminal Courts, and as a researcher and anti-domestic violence advocate.

I made my remarks based on this experience and I still believe my comments.

Domestic violence victims, in particular, are almost never in a position to speak out about their experiences. As has been widely reported, Aotearoa has the highest reported rate of intimate partner violence in the developed world.

Neither the law society nor anyone else will ever silence me about domestic violence – or about any of my other causes.

If I have to choose between being a lawyer and freedom of speech, I will not hesitate to choose my freedom of speech.

She has chosen to make a stand. Time will tell how the Law Society deals with this, but in the meantime her interview should be interesting.

Immigrant order trumped by court

Donald Trump’s executive order that put an immediate stop to immigrants and others entering the country even though they were already in transit caused an uproar, then a judge put a temporary halt to it.

Fox News: Federal judge grants stay to allow those with visas to remain, 10 still detained at JFK

A federal judge in Brooklyn, New York issued an emergency stay Saturday night that temporarily blocks the U.S. government from sending people out of the country after they have landed at a U.S. airport with valid visas.

The order barred U.S. border agents from removing anyone who arrived in the U.S. with a valid visa from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. It also covered anyone with an approved refugee application. The Department of Homeland Security said that more than 170 people were denied entry to the U.S. as of Saturday night, according to Reuters.

The ruling by Judge Ann Donnelly of the U.S. District Courtfor the Eastern District of New York came during a hearing called after President Donald Trump issued an executive order blocking people from seven Muslim-majority from entering the United States and putting a temporary halt to refugee admissions

Twelve refugees were detained at JFK Airport within hours of Trump’s order restricting immigration from seven majority-Muslim nations — but two were released later in the day — as hundreds of protesters continued to amass at the busy airport throughout the day and into the evening.

Hameed Khalid Darweesh, an Army interpreter in Iraq, had been stopped as he traveled with his wife and three kids when agents pulled him aside, according to the New York Times.

Earlier from Politico: GOP splits on Trump immigration order

Congressional Republicans splintered Saturday over President Donald Trump’s executive order temporarily barring immigrants from seven Muslim-majority nations, with several GOP lawmakers chastising it as overly broad even as Speaker Paul Ryan and committee leaders defended it as a necessary measure for national security.

Yet most Republicans, especially those on Capitol Hill, have kept silent, declining to publicly comment on a hugely controversial move based on a concept from Trump that many party leaders had harshly criticized when he first raised it during the presidential campaign.

Sounds messy but not surprising given the haste the Trump administration has pushed this and other orders through and their apparent lack of adequate consultation.

 

Sexual violence law recommendations

Justice Minister Amy Adams is considering a Law Commission report that recommends significant changes to how sexual violence and assault cases are dealt with by the courts.

Many sexual complaints don’t even get to court, in part due to the stress and difficulties for complainants in sexual cases.

And many cases that do get to court are indecisive, with 8% of trials being retrials due to hung juries, compared to 0.8% of all trials.

In Report suggests no juries in rape trials NZ Herald lists key Law Commission recommendations:

A sexual violence court as a two-year pilot, with specialist judges and counsel.

  • Have District Court and High Court judges take training courses in order to sit on a sexual violence case.
  • Consider an alternative to juries in such cases — perhaps a specially trained judge alone or judge with two expert “lay assessors”.
  • Consider limiting the right to trial by jury in sexual violence cases.
  • Enable victims to seek redress such as an apology, and which wouldn’t lead to a conviction.
  • Ensure cases start in a timely fashion.

Sexual complaint cases can be particularly difficult due to the (often) lack of witnesses in incidents involving just the accused and the complainant, and also the many grey areas of what constitutes offences and what constitutes consent or lack of consent.

The Law Commission has also recommended providing an alternative process for certain lower-level cases, outside the criminal justice system.

Victims would initiate the process and seek redress such as an apology or payment and the perpetrator would not have a criminal record.

That sounds like potentially a good way of dealing with less serious cases.

There were also “powerful cultural conceptions” that were “unique to sexual violence as a form of criminal offending”.

These could include moral beliefs about how a woman should behave, and misplaced ideas about how sexual violence occurs or the “correct” response.

The commission concludes there is a case for eventually putting sexual violence cases before something other than a jury – perhaps a judge alone or judge with two expert “lay assessors”, as in Germany.

That also sounds like it is worth trying.

Justice unexpected

The Spinoff has a very funny court transcript from New Plymouth in an outstanding fine case.

The problem for Troy William Henry La Rue, apart from his laxness in paying fines catching up with him, is that a few days earlier he had made a comment on Facebook about the judge he was now standing in front of.

Mr La Rue posted this in response to a Taranaki Daily News item announcing the impending retirement of the judge:

“LOL I hope the fuckers gone by friday. Ha ha. Fucker, nah fuckin cunt whose old face and saggy chin. Fuck off.”

He came to rue that drunken social media remark. Once the judge confronted him about it he said “Well all I can say is you got me on that one.”

But the judge had some more getting him than that.

Transcript: What happens when you appear before a judge you called a c*** on Facebook?

It’s obviously stupid abusing judges, especially judges you could end up standing before in court.

Justice sometimes works in unexpected ways.

Prudes and nude judges

The Herald on Sunday has an item about a judge who was nude at a naturist/nudist camp. Eyebrows have been raised about photos of the judge on a grass lawn and playing petanque – or perhaps it’s more about click bait raising.

It’s hard to imagine that the Herald on Sunday can this prudish. So is this merely an attempt to make a controversy out of very little, if anything?

Naked judge pics online

That’s a WOW! sort of headline, attempted at least.

Pictures of a naked judge apparently holidaying at a nudist camp were used to promote the resort without the judge’s knowledge.

The pictures showing full-frontal nudity were posted on a public gallery of images advertising Pineglades Naturist Club.

In one, the judge was posing on a grass lawn. In another he was playing petanque.

Ah, is this really news? They try and suggest it could be a breach of Judicial Conduct.

Asked whether public use of the pictures would be considered a breach of the official Guidelines for Judicial Conduct, Doogue said: “The guidelines are intended as guidance for judges, and are not rules.

The Guidelines for Judicial Conduct warn that a judge, both in and out of court, attracts closer public scrutiny than other members of the community.

“The standing of the judiciary is adversely affected by conduct which, for others, might not attract serious criticism,” they say. “Judges must therefore accept some restrictions on conduct and activities as a consequence of appointment.”

The Office of the Judicial Conduct Commissioner has the power to investigate complaints but not to discipline judges.

It’s hard to imagine that reporter Stuart Dye or the Herald on Sunday are this prudish in 2016.

This story cold easily be seen as using the publicising of and possible deliberate embarrassment of a judge as online click bait to earn revenue.

Perhaps this warrants the attention of the equivalent of a Reporter Conduct Commissioner and a Newspaper Conduct Commissioner.

I’m not in to public nudity or ‘naturist’ camps, but I think this story reflects far more poorly on the conduct of the Herald on Sunday than of the judge – I don’t see that he has done anything wrong at all.

 

Farrar only blames the judge

David Farrar has posted at Kiwiblog again on the court order that disrupted this site a couple of weekends ago – Judge got it wrong on HDCA.

Amazingly the Judge did not realise the provisions of the Harmful Digital Communications Act which he relied on, were not to come into force for a couple of years.

I’m shocked a Judge would make such a wide ranging order, and not even have properly read the Act to realise most of it was not in force yet.

Comments on that post show that while the judge was ultimately responsible and allowed a mistake to go through he rectified it as soon as he  was aware of the problem.

Comments also do what Farrar didn’t, they pointed out the incompetence (at best) of person or persons involved in the court order, Marc Spring by the look of things with the assistance of Dermot Nottingham.

Here’s some of the comments, by people with obvious legal backgrounds.

In the Hager decision, the High Court made it plain that all relevant information, both factual and legal should be placed before a Judge who is considering an application made without notice to the other side.

A number of things should have been made clear to the Judge by the applicant. First, the Act under which the order was obtained was not yet in force. Second, the order requiring YourNZ to appoint a moderator was not available under the Act in any event. Third, there was no reason why George should not have been served with the application and given the opportunity to be heard. Presumably none of this was advised to the Judge. If that was done in the knowledge that the grounds did not exist, it seems a clear attempt to pervert the course of justice. If not, it says something about the legal skills of the applicant.

It is also a worry that a Judge, faced with a lay litigant invoking novel powers to abrogate the right to freedom of speech, should grant such an order without checking that he was able to do what he was being asked.

That is a worry.

The District Court Judge, Gary Harrison, is well respected by his colleagues and has a solid pedigree in law dating all the way back to being Justice Mahons assistant in the Erebus Inquiry. Clearly he had a bad day and dropped the ball but it is to his credit to have acted quickly to withdraw his decision when he realised the facts and law, as presented, were quite wrong.

Sounds fair.

Seems the lawyer who sought the order needs to be hauled up before a disciplinary committee. The lawyer is as much to blame as the judge for the foul-up, indeed significantly more so. This is even more so in an ex-parte application (where the judge makes a decision without hearing from the other party because of urgency etc). In such a case the person seeking the application is obliged to put all relevant stuff before the judge, not just the stuff that aids the application.

Litigants do not like the other party spouting off publically about matters before the court and judges tend to side with this. I possibly see the original judge’s ruling as being to in aid of stopping public disclosure of matters concerning the case. This could also explain why the judge is reluctant to release the papers concerning this to the other party. Perhaps the judge is being excessively sensitive about this or may have real concerns.

Except that in this case it was the litigants who spouted off publicly about matters they had put before the court.

I assumed that the order was applied for by a litigant in person. If it was a lawyer who made the application it is serious misconduct. The Judge in making any order under that Act is supposed to give a written decision; it would have been interesting to see that but I suppose that as the Act was not even in force, there is no need for the Judge to comply with it.

There’s been no indication a lawyer was involved. Why wouldn’t it  still be serious misconduct for a lay litigant?

Well, either that or apparent negligence (if we are going to be slightly charitable about it).  If there was a lawyer on either side then the judge should have been told.  If there were no lawyers involved then we get to whether the judge checked that the legislation was in force!

And:

Making an application for an order that is unavailable under an act that is not in force without notice to the other side when that person is readily available and there is no apparent serious risk of harm? Negligent is a more than charitable description. It is at best appalling incompetence and at worst an attempt to pervert the course of justice. Assuming, of course, that a lawyer was involved. If not, then the judge really dropped the ball.

And:

Making an application for an order that is unavailable under an act that is not in force without notice to the other side when that person is readily available and there is no apparent serious risk of harm? Negligent is a more than charitable description. It is at best appalling incompetence and at worst an attempt to pervert the course of justice. Assuming, of course, that a lawyer was involved. If not, then the judge really dropped the ball

And:

Yup, it is up there.

However, I think he will realise that and he will be kicking himself.

In his defence he might have relied on the supporting memorandum from the applicant and decided not to go behind it to check his jurisdiction under the enabling act.

And:

I had assumed that the person was represented and that it was a High Court proceeding. A High Court judge would have a ‘clerk’ (generally a junior lawyer) to check out these things. A District Court judge may not have had such assistance and so bears the onus of having to verify things but in practice often has to rely on memory or instinct or he/she would not get anything done.. A District Court judge would not have the time to reflect on things that a High Court judge would.

It was District Court.

Interesting comments.

Ultimately it was the judge’s responsibility as he signed the court order. But the appalling stuff ups,  either through incompetence or a deliberate attempt to pervert the course of justice, seem to have been due to the actions of non-lawyers. One way or another they seem to have tried to con the court.

I don’t know why David Farrar only blamed the judge.