Blues rugby player George Moala appears in Auckland District Court for his part in a bar fight on K Rd. Photo / John Borren
Blues rugby player George Moala appears in Auckland District Court for his part in a bar fight on K Rd. Photo / John Borren
Many folk agree with Wellington lawyer Stephen Franks and Auckland legal academic Bill Hodge that a recent discharge without conviction of Blues rugby player George Moala is an example of a broken two-tier justice system.
Found guilty by an Auckland jury of taking part in a bar-room brawl which left a man bleeding from his head, Moala was then discharged by Judge Robbie Ronayne because of the effect the learned judge reckoned a conviction would have on his rugby career.
Judge Ronayne reckoned that being a successful high-profile sportsman would never "on its own" justify a discharge without conviction, but said Moala had no tertiary qualifications to fall back on and that would be devastating for him, his partner and their 4-year-old daughter.
Unsurprisingly, former ACT MP and now Sensible Sentencing Trust legal adviser Franks put the boot in, claiming celebrities and public figures were treated more leniently by the courts.
He reckoned judges focused excessively on the offender rather than the interests of the community and said a labourer involved in a bar brawl would not have got the same consideration.
University of Auckland associate law Professor Hodge agreed, saying he was concerned to see a run of cases where athletes were discharged without conviction, on the basis it would affect their employment or ability to travel or compete overseas.
Professor Hodge said it was concerning that it seemed to be setting up a two-tier justice system and called on judges to look more critically at the issue - because defence lawyers would automatically raise it.
Moala was discharged by Judge Robbie Ronayne because of the effect the judge reckoned a conviction would have on his rugby career. Photo / John Borren
In a statement issued to the New Zealand Herald, Moala's Queen's Counsel, Paul Wicks, disagreed with Messrs Franks and Hodge.
* Robbie Ronayne was once a Tauranga lawyer who, after 34 years' small-town lawyering, didn't think twice when a judging job was offered in March 2013.
* Paul Wicks - who, CaseLoad is told, knows about employment law - left some folk pondering the tea leaves when his name turned up last year in a round of Queen's Counsel anointments.
Wicks is better known for his bewildering skill in talking Judge Philippa Cunningham into discharging without conviction Korotangi Paki, the second son of Maori King Tuheitia, on burglary, theft and drink-driving charges by claiming convictions would ruin the lad's chances of becoming king.
When the Crown - correctly, in CaseLoad's opinion - appealed that decision, High Court judge Mark Woolford wasted little time in ordering Paki to be convicted and discharged on the drink-driving offence.
CaseLoad says folk who, for whatever reason, enjoy higher, privileged places in society have an additional responsibility to stay out of trouble and should take the consequences without bleating if they don't.
Colourful Lawyer Forces Mistrial
Just as a full bench of five Court of Appeal judges grapple with the issue of appeals based on allegations of lawyer incompetency (CaseLoad May 8), an incompetent lawyer has forced a mistrial in Canada.
The Ontario Court of Justice's Justice Joseph De Filippis says Toronto lawyer Ernest Guiste - who has been around for a while and is known for his colourful vocabulary - failed to meet a minimum level of competence, describing Guiste as providing "ineffective assistance" to a client charged with assaulting his wife.
Describing it as a "straightforward and routine case," Justice De Filippis said it involved important, but common, issues of credibility and reliability and a final determination whether the Crown had met its burden of proof.
The judge noted that his ruling was not about attaining perfection, but instead, a minimum level of competence.
"That Mr Guiste failed to meet this standard is demonstrated by a fair reading of the trial as a whole; it is not one incident, but the cumulative effect."
"This record includes an incomplete motion to stay proceedings, a confusing request for records, repetitious, irrelevant, and meaningless questions, inattentiveness to the evidence, incivility, and inadequate review of the disclosure material."
"A dispute about the latter resulted in a baseless allegation of prosecutorial misconduct."
"That these matters reflect inadequate preparation for trial was illuminated by counsel's unwillingness or inability to answer clear and simple questions put to him by me during submissions and closing his case before all defence witnesses had been called."
After quoting many examples from the trial record, Justice De Filippis declared he had no confidence in Guiste's ability to represent the client and he had no alternative but to declare a mistrial. (Source: NZ Law Society LawPoints Bulletin)
Guiste (51) was reprimanded in 2011 for professional misconduct, including telling another lawyer at mediation to take an offer and "shove it up your *rse."
"Ernie Guiste wouldn't feel out of place around the Auckland courts," said A Big Bloke At The Next Leaner, jotting down some notes for a robust guilty plea.
"There's a place in chambers for him..." said Our Man At The Bar.
Name Changes To Protect The Ambitious
To increase their chances of becoming judges of the higher courts lawyers need to change their names.
To increase their chances of becoming judges of the higher courts lawyers need to change their names.
New Zealand Law Society lists of the top 10 most popular lawyer names rank - ladies first - Rebecca (Justice Ellis) at No 6, Susan (Justice Glazebrook) at No 8 and Rachel (Justice Dunningham) at No 9.
Names such as Sarah, Nicola, Catherine, Anna and Emma don't get a look-in.
Male lawyers fair a little better with David (Justice Collins) at No 1, John (Justices Wild and Faire) at No 2, Paul (Justice Heath) at No 9 and Mark (Justices O'Regan and Cooper) at No 10.
Michael, Andrew, Peter, Christopher, Richard and James don't rate.
Disclaimer: Official sources had nothing to do with CaseLoad's twisting of the research, which checked out how popular the name Charlotte is among women lawyers. From the Little Known Facts Dept there are 42 lawyers whose first name is Charlotte, making it the 23rd most common name for women lawyers.
"What about that odd fellow in the South Island???" said Our Man At The Bar.
"He's a Deirdre," said The Scunner.
Can We Do Better At Corruption???
News passed to CaseLoad by Queen's Counsel and Auckland District Law Society president Brian Keene shows New Zealand is ranked sixth in global "Rule of Law" performance, ahead of Australia in eighth place.
According to the world justice project, New Zealand is at the top of 15 East Asia and Pacific countries.
This isn't particularly unexpected alongside the likes of Cambodia, which rated 91 out of 99 countries.
Wealthy jurisdictions such as New Zealand apparently display low levels of corruption, open government, effective regulatory enforcements and efficient judicial systems.
Significantly, where New Zealand falls down is in accessibility and affordability of civil justice and effective investigations, timely and effective adjudication and an effective correctional system in criminal justice.
Retiring Supreme Court judge and former solicitor general Sir John McGrath. Photo / Marty Melville
While New Zealand ranks top in the region for constraints on government powers, absence of corruption, open government, fundamental rights and regulatory enforcement, it slips to second place for civil justice and fifth place for criminal justice and order and security.
And this at a time when a statutory provision affirming New Zealand's commitment to the rule of law will soon disappear from the statute book.
Retiring Supreme Court judge and former solicitor general Sir John McGrath (70) doesn't like it and in his recent retirement speech expressed concern at the removal of a provision on the rule of law from legislation governing the Supreme Court (CaseLoad April 10).
Leading legal academics Professor Mark Henaghan, of Otago University, and Associate Professor Bill Hodge, of Auckland University, agreed with Sir John (CaseLoad April 17).
Observers reckon Judge Jimmy Weir's new job means the drinking classes should be prepared for a hardline stance against takeaway booze shops and all-hours drinking.
Jolly Judge Weir has quit his cosy Rotorua District Court job for a five year stretch as head of the Alcohol Regulatory and Licensing Authority - a move some say is akin to judicial purgatory.
As well as controlling the pub and club trade, the authority is in a prime position to do something about the proliferation of neighbourhood bottle shops and the ease with which alcohol is available in the community.
Observers expect Judge Weir's appointment will give succour to folk concerned their neighbourhoods are awash with unwanted and ill-disciplined booze outlets.
Some lawyers are dancing jigs over Judge Weir's departure from Rotorua's courts.
Judge Weir. Photo / NZME.
He is said to have ruled them with an iron hand and what one lawyer familiar with His Honour's wrath described as "an uncompromising approach to crime and punishment popular in a simpler less offender-friendly era..."
Noting that sentencing was the hardest, and often the most memorable part of judging, Judge Weir - at his final sentencing the other day - jailed trout poacher Thomas Tawha (41), of Kawerau, for 12 months.
At sentencing, Judge Weir turfed a bloke out of court who demanded the judge stand down because his position wasn't recognised under the Maori Land Act.
The mother of Tawha's co-offender, David Pake Leef (35) of Te Teko - who failed to appear for sentencing and is on the run - was also ejected from the court after shouting at Judge Weir that her son's conviction was being appealed.
Judge Weir is reportedly looking forward to dealing with what he described as the root of many crimes - alcohol and people getting into trouble when they're highly intoxicated.
Which may not be totally welcomed by the legions of plonk enthusiasts who inhabit the law.
"Pots and kettles, CaseLoad," said Our Man At The Bar, whacking back a brace of Bombay chasers.
