Sir John McGrath, pictured here in 2010, has expressed concern at the removal of a provision on the rule of law from legislation governing the Supreme Court. Photo / Marty Melville
Sir John McGrath, pictured here in 2010, has expressed concern at the removal of a provision on the rule of law from legislation governing the Supreme Court. Photo / Marty Melville
Opinion by
A statutory provision affirming New Zealand's commitment to the rule of law will soon disappear from the statute book - and retiring Supreme Court judge Sir John McGrath (70) doesn't like it.
In his recent retirement speech, Sir John - a former solicitor general - expressed concern at the removal of a provision on the rule of law from legislation governing the Supreme Court.
Sir John said though the Constitution Act 1986 provided for Parliament to be the supreme law-making power of the nation, there was no equivalent provision stating the role of the judicial branch "or indeed the underlying concept of the judicial function which is to uphold the rule of law".
He said the gap was filled to some extent by the establishment of the Supreme Court in 2003. The establishing legislation stipulated that nothing in it "affects New Zealand's continuing commitment to the rule of law and sovereignty of Parliament".
But he said the statutory provision would be repealed if the Judicature Modernisation Bill, which recently had its second reading, is enacted in its present form.
"If that happens, in the new statute providing for senior courts, we will no longer have this meaningful statutory recognition of both the judicial and legislative roles," Sir John said.
"Few folk know of a provision deep in this proposed Judicial Modernisation malarkey requiring judges' costumes to surrender tried-and-true button flies in favour of unreliable zippers, introduced over a three-year period," said Our Man At The Bar, grappling with his pesky spaver.
Prosecutor jumps to defence
Wellington lawyer and acting deputy solicitor general Madeleine Laracy, better known for her prosecutorial fervour, has jumped ship to head the sometimes troubled public defence service (PDS).
Laracy has been on secondment from the Crown Law Office as acting PDS director since April 2014 - around the time Wellington-based southern public defender, the popular and fun-loving Sandy Baigent, quit for what were described as "personal reasons".
(Please note: CaseLoad is not in the business of repeating gossip spread by lawyers, unless it is in the prurient public interest.)
A lawyer for only 15 years, Laracy was manager of the criminal team at Crown Law where for 10 years she also managed New Zealand's international criminal co-operation requests for mutual assistance - playing a key role in the Kim Dotcom Saga, for example.
"Maddy will need to pull a big one out of the hat if she's to get the ruptured PDS on some kind of an even keel," said A Bloke At The Next Leaner, struggling to fill out his legal aid returns.
Why these lawyers should pull their heads in
Some crime lawyers claim to be concerned the public might be told too much about what happens at what is known as "criminal call-over."
Justices Raynor Asher and Graham Lang. Photo / NZME.
[A call-over is a courtroom meeting - open to the public - where a judge and lawyers for both sides discuss any pre-trial issues. For example, a witness may need to give video evidence as they will be overseas at the time of the trial. Or a defence lawyer may want some evidence excluded. A trial date is set and a second call-over may be needed to give enough time to deal with all pre-trial matters.]
It seems some lawyers aren't happy with what is reported from call-overs.
So in a bid to clear the air, Auckland High Court judges Graham Lang and Raynor Asher - chairman of the ominous-sounding media in courts committee - have summoned the news media and lawyers for a lunchtime chinwag next week.
CaseLoad will be there and will resist any attempt by legal folk to further restrict, blindfold or interfere with the transparency of the courts.
"Better pack a bag and toothbrush," said The Scunner.
"Is that the same week Auckland district law society president Brian Keene QC promises to make good on his promise to shout CaseLoad beer???" two Mature Lady Briefs chorused from the Ladies & Escorts Lounge.
Seen & Heard
* Auckland University of Technology (AUT) health law professor Kate Diesfeld was appointed to the American College of Legal Medicine's global panel of health law experts at the college's 55th annual conference in Las Vegas.
* Peter van Rij has moved from being a partner to a consultant at Christchurch firm Parry Field Lawyers, while Luke Hayward, admitted in 2009 and formerly with Meares Williams, joined Parry Field as an associate.
* Submissions for the Honourable Rex Mason prizes for excellence in legal writing, which must have been published in a New Zealand legal publications during 2014, are being accepted until June 26. More information is available from the New Zealand Law Society.
[Henry Greathead Rex Mason, CMG, QC, who died 40 years ago last week, served as attorney general, minister of justice, education and native affairs had a significant influence on the direction of the Labour Party and was one of New Zealand's longest serving politicians.]
For those who didn't read Justice Rachel Dunningham's interim injunctive relief decision in the Case of the St Bedes Rowers, here's what CaseLoad reckons is the nub of it.
Noting that it was still necessary to carefully consider an individual case, on its merits, in reaching a decision, and in doing that "all the individual circumstances must be weighed," Her Honour went on:
St Bedes rowers. Photo / Christine Cornege
"I am satisfied that there is at least a serious question to be tried here as to whether that was done in the present case. I think it at least seriously arguable that to make the decision based on the emailed report of a head coach who was not present when the incident took place, without interviewing the boys in question or the other participants, and without gathering information on the consequences of the decision to assess whether it was proportionate to the alleged misbehaviour was unfair and in breach of natural justice." (CaseLoad's italics.)
Which proves headmasters/mistresses and occupational mouthpieces ought to have read the judgment before leaping into print to condemn it...
Fiona of Papatoetoe writes:
"I enjoy CaseLoad every week and was interested in your reply to Curious of Christchurch regarding name suppression for sex offenders.
I have waited for years and will probably die waiting, for a judge or judges to stand up and honestly state the reason name suppression is given in alleged or admitted or proven guilty sexual offence cases - to protect the offender. And that's just the miniscule number of cases that actually get to court.
No other offence ever results in name suppression apart from in very rare instances and the names, images and occupations of those charged with financial crimes for example, in particular tax evasion and benefit fraud, are in the public domain instantly.
Murder, assault, drink-driving, finance company fraud, theft, robbery and so on never result in alleged or actual offenders being allowed to remain legally anonymous from the outset.
No consideration for the offender and his/her family or job situation at any time when it's these crimes. And how can judges still say it's to protect the victims when the victims insist on waiving their own name suppression and often have to jump through hoops to achieve that?
Even better for the offender when he's "a prominent New Zealander, a pillar of the community," or "an Auckland comedian who makes people laugh". All enabling and justifying by complicit judges.
It's a total crock in my opinion: always has been and always will be.
I also adhere to the adage that what you support, you condone which means there's a lot of New Zealand judges and by extension, Justice Ministers who condone sexual offending.
Any judges you know, CaseLoad, who will finally tell the truth to end this lie?"
CaseLoad replies:
While Fiona's candid views on name suppression are shared by many folk, the nub of last week's reply to Curious of Christchurch was essentially about statutory suppression built into the law to protect the identities of victims of sexual crime, particularly children, over which judges have no discretion.
Tranny-saurus lunacy
Photo / Thinkstock
Whangarei lawyer and "TransAdvocate" member Kelly Ellis was so enraged the other day that she made The Warehouse remove from sale greeting cards showing a cartoon dinosaur wearing a wig, lipstick and a handbag.
