MandM » Justice

More Mistakes: A Rejoinder to Randal Rauser

Andrew — Fri, 02 Dec 2011 18:36:19 +0000

For those who aren’t aware, there has been something of a “debate”, but what I’d prefer to refer to as an “in house discussion” between Randal Rauser (Professor of Historical Theology at Taylor Seminary) and myself.

The discussion so far can be found here:

My initial article was Randal Rauser’s Mistake: A Defense of Calvin’s Doctrine of Election

Rauser’s response: Calvinism and the Arbitrary Camp Director Revisited: A Response to Andrew

Before I begin, I should point out that I have been on the Kapiti coast for the last week at a TSCF (Tertiary Student Christian Fellowship, a cousin of Inter-Varsity) retreat where I was without internet. Hence it’s only in the last day that I’ve learned that Professor Rauser has kindly taken the time to respond to my initial article. So I apologize for my delayed response.

I would also like to point out that while my intention was to provoke Rauser’s response, it was not to be rude, and I apologize if that’s the impression he has received. I have a great deal of respect for Rauser, particularly given (as I pointed out in my last article) that he is a Professor of Historical Theology with an obvious background in analytic philosophy, while I am a mere undergrad with far more ambition than actual ability. The last thing that I want is for this discussion to devolve into the kind of vitriol that plagues almost all other web based discussions of the philosophy of religion and/or theology. I say this, largely because I fear (from the tone of his response) that he has received the impression of ill intent on my part.

Secondly, I appreciate that Rauser took the time to respond to my article, and I appreciate that he also took the time to counter my personal testimony with that of his own.

But now to specifics: How does Rauser respond to my claim that the arbitrariness objection (at least if it is to be an objection) begs the question against Calvin’s doctrine of election? On the face of it, he doesn’t seem to challenge my point that God may not be acting unjustly if we are undeserving of salvation. To the contrary, Rauser seems to admit for the possibility that the tortures may be justly deserved. But if that’s the case, then, as I tried to point out in my first post, there’s no real injustice or immoral state of affairs that obtains if God so desires to instantiate those punishments. Paradoxically though, Rauser refers to my theology as “brutal” and “morally incoherent”. Both of these terms, emotionally provocative as they are, seem to suggest that there is something nasty, horrible, evil (whatever negative adjective your heart desires) about a God that selects some for salvation while selecting others for damnation. But if, as Rauser seems to allow, the tortures are justly deserved, then none of those adjectives can rightly be said to stick. After all, if the tortures are justly deserved, and God decides to carry out those tortures, then God can only be said to be doing what the demands of morality and/or justice require. So wherein does the moral incoherence obtain?

But according to Rauser, I would still be missing the point. After all, he (Rauser) says, the Camp Director Analogy was not intended to show that God, given Calvinism, is “unjust”, but rather that He cannot be seen as “maximally loving”. I see no real reason to deny Rauser the liberty to make this distinction, but its relevance is, at best, unclear.

Thankfully, Rauser does seem to hint at one possible way in which we could interpret this as an objection. He seems to engage in something of a pair-wise comparison between two possible scenarios that are supposed to be relevantly similar to the Arminian and Calvinist conceptions of election respectively.

Scenario 1: The director arbitrarily selects some children for beatings and others for loving rehabilitation.
Scenario 2: The director selects all children for loving rehabilitation.

According to Rauser, were God to bring about scenario 2, we would state that He is more loving were he to bring about scenario 1. There are three things that I have to say to this:

Even if I were to grant this assumption (which I don’t), the most it establishes is that the God who brings about scenario 1 is less loving than the God who brings about scenario 2. But notice that this is not equivalent to saying that God is “objectively unloving” in the sense that we are able to predicate of God (in that situation) terms like “cruel” and “brutal” et al. To get to the conclusion that God is “objectively unloving” which (given the words he has elected to use to describe my theology) is evidently his goal, Rauser would need to show that anything less than complete love for all creatures is tantamount to cruelty. Given what I have hitherto argued regarding the fact that God’s arbitrary choice may not necessarily be unjust or immoral if Calvinism is true, and given that he (Rauser) seems to allow for this possibility, I don’t see how he can plausibly do that.
Once again, it seems as if Rauser pre-supposes the falsity of Calvinism to infer to its falsity. The only way that I can see Rauser’s conclusion (that were God to bring about scenario 2 He would be more loving than were he to bring about scenario 1) would have a shot at truth, is if we assume that the “L” of the acrostic TULIP is false. If the scope of God’s love extends only to His elect, while the rest are totally depraved to the extent of total opposition to God, (the T of the acrostic TULIP), then for Him (God) to leave the elect to suffer the pestilence of the others, is cruelty on His part. Consider by way of illustrative analogy, a father who allows his small child to suffer continuous beatings from school bullies. For the father to fail to remove the child from that situation is for that father to shirk his responsibilities as a father, and to be downright cruel. Now note, I’m not saying that the God of Arminianism is crueller than the God of Calvinism (though that is an interesting idea), I am merely trying to show that the God of Calvinism is at least as loving as the God of Arminianism (a comparatively small task). To sum up then, to establish that scenario 1 makes God more loving than does scenario 2, Rauser has to smuggle in the assumption that the T of the acrostic TULIP is false. So unfortunately, it’s another case of question begging on Rauser’s part.
The final problem for Rauser consists in the fact that much of what he says entails Universalism. If God brings about scenario 2 AND God loves his children in the way that Rauser loves his daughter, then we are left, not with Classical Arminianism, but with Karl Barth’s Universalism. After all, it should be intuitively obvious that a good father will forcibly pull a child out of harm’s way, particularly if that harm is akin to the fire of hell. Suppose, for instance, that a child is sitting in the way of a stampede of elephants. A good father does not sit idly by, watching from the sidelines and protest that the child must freely get up and run. Rather, a good father sprints into the middle and hauls the child out of the way. This kind of causal sufficiency for salvation in conjunction with God’s salvific love for all humans entails Universal Redemption.

It’s not too late Rauser, you need not think of God as a bad father who stands idly on the sidelines while hell bears down on His children. To sinners like you and I, Calvin’s message of Irresistible Grace and the Perseverance of the Saints ought to be a great comfort. It means that Salvation is a guarantee, and that we needn’t rest on our own failing ability to trust in the Lord. In truth though, returning would be merely speeding up the inevitable. As my Pastor puts it, it’s determined that you will be a Calvinist even if it’s not in this life.

No Special Rights, So . . . One Law for All

John Tertullian — Sun, 08 May 2011 11:36:07 +0000

We remain militantly critical of contemporary Maori ideology. We believe it excuses personal and family accountability by resorting to the fallacy of historical determinism: Maori, their leadership tells them, are victims of predatory exploitation by European or imperial powers; the significant cause of social and cultural and spiritual degradation amongst Maori stems from the unjust extortions of the Pakeha. We believe this ideology enslaves Maori and subjugates them more subtly and more potently than any European migration.

We believe this ideology is a neo-Marxist variant. Maori represent the exploited poor, the weak, from which the hegemonic Pakeha have extracted their pound of flesh. It makes many within Maoridom sunburnt strawberries: brown on the outside, red on the inside. We have smiled at Hone Harawira’s call to arms: he wants to stand up now for poor and disadvantaged Maori, the working stiffs. He opposes exploitative Pakeha, but also (now) monied tribal interests. Maori neo-Marxism is undressing and exposing itself. This is a false Gospel and will betray those seduced by it to their destruction.

But, at the same time, we believe there are historical injustices wrought by our government which should be addressed. They should be addressed because it is just to do so. At a personal or communal level, our lives should not be made to depend upon the redress of past wrongs and grievances, whether real or imagined. Evil happens in our sinful world. The Christian call is to accept such without bitterness, seek to begin again under the wonderful aegis of Christ Himself, and arise to serve Him where we are, with what we have.

But there is an obligation to restitute, where possible, those who have suffered injustices at the hands of the state. (Restitution is not always possible, but if it can be done, it ought to be. The state must at all times be under law, and held to account by the law; if not, then we are governed not by law, but despots.)

In this regard, we were pleased (whilst saddened, and provoked) by historian Paul Moon’s piece in the NZ Herald on the injustice being perpetuated against the Tuhoe people. (For the benefit of our overseas readers, the Tuhoe is a Maori tribe located on the South Eastern part of the North Island of New Zealand.) Here is a synopsis of Moon’s account:

At the start of May last year, all the indications were that the Crown and Tuhoe were putting the finishing touches on a deal that would see Te Urewera National Park returned to Tuhoe, with enough caveats to ensure that access and other rights for the public would remain practically unchanged.

Tuhoe would have what all the evidence shows rightfully belongs to it, and the rest of the country would not be adversely affected in any way in the process. The sort of settlement one would have expected the Crown and the public to welcome with open arms.

The deal was a long time coming. The Waitangi Tribunal has documented in excruciating detail how successive governments since the 19th century trampled over Tuhoe rights – appropriating their lands with disregard for the occupants and with contempt for any sense of natural justice.

In the roughly 18 months before last May, negotiations between various Government departments and the iwi looked promising. All that remained were the formalities confirming the transfer.

What happened? Considerations of justice got tossed out the window. Politics intruded.

Then, someone blinked. A rushed announcement was made by the Prime Minster that Tuhoe were not going to have the National Park returned to them after all. The iwi’s clearly stunned negotiators were left wondering what had suddenly gone wrong with negotiations that had appeared to have been progressing so well. The excuse the Government used last May – and has stuck to since – was that the return of Te Urewera National Park might set a precedent for other Treaty settlements.

Putting aside the sui generis nature of Tuhoe’s claim, the argument that doing something right in dealings with one iwi might mean having to do things right with other iwi, hardly seemed to be a good basis for the decision. The moral rectitude of returning Te Urewera National Park to Tuhoe ownership was completely airbrushed out of the political equation.

This hits the matter front and centre. Had the Crown acted unjustly towards a Maori tribe? The evidence is compelling that it had. It would seem that duplicity and mendacity were the guiding “principles” of government actions towards Tuhoe over a long period of time. Was the government now saying that justice is a wax nose to be shaped at will by the whimsy of government as it genuflects to political considerations? Populism at its worst.

What has happened since, and where are things at now?

Yet, in spite of the enormous frustration of having the expected return of the land snatched away at the last minute, Tuhoe’s response in the subsequent 12 months has been one of patience, restraint and dignity. Its negotiators have persisted with their calm, informed approach in dealings with the Crown, while all the time, the Crown’s tactic has been one of delay.

No doubt the beguiling character of Te Urewera National Park has been a consideration for those who oppose returning the park to Tuhoe. Its long-lauded sublime characteristics have for more than a century left visitors to the area in awe of its staggering beauty.

To others, it is a drug-addled and gang-choked backwater – a dystopia in the middle of utopia. Either way, it is a part of the country where the links indigenous communities have with the land is strong, and where experiences since the 1860s have left an ingrained sense of grievance among many of the inhabitants.

We agree that the return of historical lands will not redeem Tuhoe. To the extent that tribal members believe that it would is a measure of their self-deception. But justice ought to be done, nonetheless.

It is becoming apparent that the forthcoming election will focus once again upon Maori and their place in this country. Some will be arguing forcefully (and we believe correctly) that there must be one law for all New Zealanders and that Maori are not in a special category. They do not have a special class of citizenship.

It would be a very salutary thing, we believe, if the advocates of “one law for all New Zealanders” would take up the case of Tuhoe, precisely because there must be one law for all in this country.

Cross posted at: Contra Celsum

The “Three Strikes Bill” Moves Forward

Madeleine — Tue, 19 Jan 2010 06:26:57 +0000

I am cautiously optimistic at today’s announcement that the Sentencing and Parole Reform Bill a.k.a. the “Three Strikes Bill” will be moving forward as part of the government’s legislative program. In my post Three Strikes: Proportion and Protection, which was published in the New Zealand Law Students Association publication LEX, I argued that the “apparent inconsistency” identified by the Attorney General, per his statutory obligation under section 7 of the New Zealand Bill of Rights Act on the basis that the Bill affronts the proportionality doctrine, was able to be argued around on the basis that criticisms of the Bill along these lines confuse appropriate force for punishment with defensive force.

Given this, provided the select committee does a good job on assessing submission and making recommendations and parliament carefully considers these we have the potential to finally have much tougher sentences on recidivist offenders of heinous and violent crimes. Regular readers will remember that, as documented in The Deal is Signed: New Zealand Has a New Government, part of the confidence and supply agreement that the National Party made with the ACT Party back in November 08 following New Zealand’s last general election was that National agree to introduce ACT’s “Three Strikes Bill” and support it to Select Committee, so this news was fairly inevitable.

The Foreshore and Seabed Repeal: The Inconvenience of Due Process

Madeleine — Thu, 02 Jul 2009 05:09:00 +0000

That the state is not above the law but also subject to it is surely one of the foundational concepts of any just and free society. This notion has found its place in the writings of many influential philosophers, jurists and theologians, it can be found in the constitutions and bills of rights of most nations. Citizens trust their governments to wield their power accordingly and when our governments do not, when they abuse that trust, even if they wield their power against some small group whose cause we are not that into, we need to care about it and hold them to account.

In 2004 the New Zealand Labour Government passed the Foreshore and Seabed Act. At the time both Matt and I were absolutely opposed to its passage but we felt like lone voices in the wilderness in our own community and that saddened us. Christians will happily protest laws that affront issues like marriage, sex, drugs, alcohol and parenting but on issues like freedom and civil liberty our voice is all often too quiet.

Part of this is that we are not as educated a culture as we once were, we don’t know our history or properly understand our theology, we don’t value our freedom or understand how it works or why it is important to defend it even when we don’t feel like it is us under attack but we need to.

A lot of people don’t even understand Foreshore and Seabed issue; they think it was about who owns the beaches and that the law was necessary to protect our beaches, our kiwi way of life. In Any Requests? Anonymous asked, “Why should the government potentially allow access to the beach denied to all New Zealanders?” The Ministerial Review Panel found that this concern was not limited to our anonymous commenter:

Three key issues emerge from our review of submissions to the Select Committee which considered the Bill in 2004: public ownership, access and navigation, and protection of Māori customary interests in the foreshore and seabed. In our view, these issues remain at the very heart of ongoing concerns about the legislation. [Emphasis added]

In all the submissions the amount that focused of the real problem were so negligible the panel didn’t list them. The majority missed the fact that this Act was passed to prevent a group of New Zealand citizens from taking a case to court, instead they wrote submissions about how that would affect them. The Act was and remains, a blatant breach of due process.

Nevertheless, the passage of this Act had widespread support. Although the National party (then in opposition) voted against it, they ran a campaign promising to keep the beaches for all New Zealanders. Within the media and amongst society, debate about the Act was focused on the merits of the court case; totally missing the point that legislative denial of due process is wrong regardless of the merits of the case being brought.

At this point a brief history is necessary due to the widespread misunderstanding about the case itself. In June 2003 the Court of Appeal handed down its decision in Attorney-General v Ngāti Apa [2003] 3 NZLR 643. Public interest in this case was triggered by the reaction of the government to its decision and the way the media reported its significance.

Eight Maori tribes claimed that the foreshore (the land between the high and low-water marks) and the seabed (the land below the low-water mark) of the Marlborough Sounds in the South Island of New Zealand, was “Maori customary land” (a Maori jurisprudence concept which is not the same concept as our western notion of fee simple ownership.) The tribes were not sure if the Maori Land Court, which is the court set up to hear historical Maori land claims against the government, had the jurisdiction to hear their case. There was dispute as to the effect of statutes regarding land and Common Law confusion over land ownership where that land is covered by water. The tribes went to the High Court to ask if they could take the case to the Maori Land Court and the case worked its way up to the Court of Appeal.

In summary, the Court ruled that:

the Crown was wrong to contend that certain statutes affecting the foreshore and seabed had had the effect of extinguishing such Māori customary title as might exist; and
the Māori Land Court has jurisdiction, under Te Ture Whenua Māori/Māori Land Act 1993, to determine whether any part of the foreshore and seabed is still Māori customary land.

While the decision gave rise to uncertainty regarding the “ownership” status of the foreshore and seabed, it also confirmed that this could be tested in the Māori Land Court. However, rather than let that process run its course, the government decided to legislate. The Act vested in the Crown title to all foreshore and seabed land not already in private ownership. It also made some provision for Māori customary interests to be recognised in limited circumstances.

This case was about whether or not the Maori Land Court had the jurisdiction to hear a case. The case was not a ruling on whether the foreshore and seabed belonged to Maori or the Crown. This was a key issue that the media, the politicians and the public missed at the time.

The ex-dean of the University of Waikato’s Law School, Margaret Wilson, was the Attorney-General at the time the Court of Appeal was deliberating. She had advised the government that there was no way the Court of Appeal would rule in favour of the appellants, she was not alone in that view, the majority in the legal profession thought that. She was wrong.

When the government realised the error they realised there was a risk that ownership and access to the beach in the Marlborough Sounds area might be able to be handed to Ngati Apa, if the Maori Land Court heard the case and ruled that way. The political fallout from this was not something they wanted. New Zealanders love the beach. We are a small island with a lot of beautiful coastline; we all have summer memories that involve our coastline. The backlash against the government could be disastrous, the opposition could have a field-day, they may lose the next election… So they played on that fear and also on the impatience many have towards historical Maori land claims, the ‘gravy-train’ mentality, and they rammed through legislation that prevented the case ever being heard.

The problem is that the right to due process trumps the right of the general public to enjoy the beach and the right for a government to not have negative media. If, in fact, Ngati Apa did have a legitimate claim to ownership then as much as we love the beach, the beach ain’t ours.

Usually at this point in a discussion on the issue I am asked if I am Maori to which I throw my hands up. No, I am not Maori. It is just that I get the fact that just because I like something and enjoy it, it doesn’t make it mine and it doesn’t mean I can keep it when it is brought to my attention that it might belong to someone else. We can apply this to other spheres of life, we need to be willing to apply it even to big issues like this one.

Another point to keep in mind is that Ngati Apa never got their day in court. It is not clear that they would have won. Many legal scholars felt they did not have a case – as we keep trying to point out in the smacking debate the mere fact someone can raise a legal issue does not mean they will always succeed – but they should have been allowed to try.

“Public ownership, access and navigation and protection of Maori customary interests in the foreshore and seabed” are all implications of what might have been at stake had the case proceeded. Due process for Ngati Apa and the other tribes was taken by the passage of this Act.

Fast forward to 2008. A new National government was elected, a confidence and supply agreement was drawn up between National and Maori Party (a party formed in protest to the Foreshore and Seabed Act). Policy concessions included National offering a review of the Foreshore and Seabed Act. At the time we were very pleased by this fact but less so by the detail and blogged to that effect; “It is a shame to see that National has not framed the issue in terms of the affront to due process and instead is talking about all New Zealander’s being able to access the beach, as if that is somehow more important than human rights.”

Our fears were not unfounded, in addition to the claims made by some commentators that the specially created Ministerial Review Panel was stacked and directed as to which outcome to arrive at, the terms of reference were utterly wrong:

a) What were the nature and extent of the mana whenua and public interests in the coastal marine area prior to Attorney-General v Ngāti Apa [2003] 3 NZLR 643

b) What options were available to the government to respond to the Court of Appeal decision in Attorney-General v Ngāti Apa [2003] 3 NZLR 643

c) Whether the Foreshore and Seabed Act 2004 effectively recognises and provides for customary or aboriginal title and public interests (including Māori, local government and business) in the coastal marine area and maintains and allows for the enhancement of mana whenua

d) If the Panel has reservations that the Foreshore and Seabed Act does not provide for the above, outline options on what could be the most workable and efficient methods by which both customary and public interests in the coastal marine area could be recognised and provided for; and in particular, how processes of recognising and providing for such interests could be streamlined

The Panel will also need to consider how these processes will integrate with legislation that regulates the coastal marine area.

Effectively the panel is acting in the place of the Waitangi Tribunal, the appropriate, already existing, independant investigative tribunal that examines the evidence and makes recommendations. The government is expected by everyone to and has already indicated it probably will follow the recommendations being made by the Ministerial Review Panel as it would be ‘too costly for it to go back to court.’

Basically the government looks set to settle this case, out of court, on our behalf, when it is not clear that the government are guilty and not that long ago they denied a case existed on the part of Ngati Apa and many legal scholars agreed with them. Historical Maori land ownership claims are very difficult to prove. There were no deeds or titles issued in pre-european New Zealand and records consist of tribal stories, songs, carvings and so on. To succeed in an historical claim, even if a tribe could establish which part of land their ancestors had used and no other tribe was prepared to offer a counter claim to the land, the land in question has to have been in continual use by the tribe making the claim from at least 1840 through to the present day (unless it was unjustly dispossessed). Not only is it very possible Ngati Apa may not have succeeded, there would not be a huge risk of floodgates because each tribe would need to be able to establish this long chain of use and ownership of the foreshore and seabed in the area their ancestors historically lived.

Regardless of which party is in power, the New Zealand government seems to be happy to have the land of its citizens taken without due process as long as it furthers their political popularity. The former government was willing to suspend due process of one group of citizens and unilaterally declare that the land in question belonged to a second group of citizens. The current government is willing to unilaterally declare that the land in question belongs to the first group and not the second and again it seems they are not going to allow a court to hear the evidence.

The Ministerial Review Panel said sending the case back to court would be “protracted, laborious, and expensive” and the politicians appear to agree. It’s funny how selectively that card has been played of late, it wasn’t too expensive to create a special Ministerial Review Panel that duplicated the services of the existing Waitangi Tribunal and the Maori Land Court but apparently now everyone is concerned with cost. Due process is too expensive apparently; tell that to the authors of the Magna Carta who wrote:

“No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.”

Due process is a concept enshrined in constitutions around the world – the Fifth Amendment of the US Constitution states, “No person shall be … deprived of life, liberty, or property, without due process of law ….” and in New Zealand: the Treaty of Waitangi, the Bill of Rights Act 1990 and the body of Common Law arising from the Magna Carta itself gives us the same legal rights.

The government does not have the right to settle land disputes, where that land is held in trust for its citizens, without due process being observed. It was wrong when Labour did it and it will be wrong if National proceeds to do it.

Send the case back to court. Sell the state owned television company if you need to fund it – a society where I can get ‘free’ entertainment but it is too expensive to uphold justice is a society with its priorities backwards.

Summary Report of the Ministerial Review Panel on the Foreshore and Seabed Act 2004, 4.
Ibid.
Attorney-General v Ngāti Apa [2003] 3 NZLR 643.
Ibid.

A Counter-Point on the David Bain Re-Trial

Madeleine — Thu, 25 Jun 2009 21:29:00 +0000

David Farrar links to this interesting opinion piece in The Press on the David Bain re-trial, Plenty of Doubt in Bain Jury’s Verdict. While we normally do not link to media reports of trials, because the media tend to publish selective, sensational snippets of trials removed from their context, this piece is different. It is the opinion of a reporter present for virtually every minute of the trial and in the absence of the official court report it makes for very interesting reading – particularly the actions of Jury members that the reporter observed.

We’re Confused about the Anti-Smacking Referendum Question

Madeleine — Thu, 18 Jun 2009 23:30:00 +0000

… we’re confused that anyone could find it confusing. The referendum question is:

Should a smack as part of good parental correction be a criminal offence in New Zealand?

Should it or shouldn’t it? It seems pretty simple to me.

According to TVNZ,

Labour leader Phil Goff says the question implies that if you vote ‘yes’ that you’re in favour of criminal sanctions being taken against reasonable parents, when actually nobody believes that. [Emphasis added]

Section 59 of the Crimes Act 1961, the defence to the criminal charge of assault (“Every parent or person in place of a parent of a child is justified in using force by way of correction towards a child if that force is reasonable in the circumstances”) was part of our c r i m i n a l code. To reinstate s59 of the Crimes Act (or not) is the question.

If Mr Goff wants anyone to believe that removing a defence from the Crimes Act will not have any bearing on criminal sanctions against those charged with assault he needs to stop being a legislator.

Does making something a criminal offence mean that criminal sanctions should not be brought against those who commit the offence? If yes then it does not follow that giving a yes vote in the referendum means that you support criminal sanctions against those who smack their children. If the answer is no then it is already the case that criminal sanctions can be brought against offenders who smack their children because it is currently a criminal offence to do so – Goff’s claim that nobody advocates this is false because the Crimes Act does.

The only people confused here are Goff, Key, Bradford who seem to not understand that if your action crosses the Crimes Act then your action is criminal. Twits.

The only ambiguous, confusing thing about the law is the convoluted crap they inserted in place of s59. It reads like the sort of thing those who think they know a few things about the law write to impress their friends; read subsection (4) and see if you can work out what it means, it’s the bit that starts “to avoid doubt…” but then doesn’t (one wonders if Bradford wrote it herself, if someone with a law degree wrote it they should be up before the Bar).

Crimes (Substituted Section 59) Amendment Act 2007 No 18, Public Act

New section 59 substituted
Section 59 is repealed and the following section substituted:

“59 Parental control
“(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—

“(a) preventing or minimising harm to the child or another person; or
“(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
“(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
“(d) performing the normal daily tasks that are incidental to good care and parenting.

“(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
“(3) Subsection (2) prevails over subsection (1).
“(4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.”

Defamation of the Acquitted – Some Advice

Madeleine — Thu, 11 Jun 2009 23:28:00 +0000

Due to the presumption of innocence we are all supposed to accord an accused following a not guilty verdict, please do take care in suggesting and stating any disagreement you might have in regard to a court’s decision. Defamation is a real possibility in such instances and the defamed can sue the blog/site owner, in some instances the ISP, as well as the comment poster.

Be aware that you can defame someone when you suggest or allude to your meaning as the court can imply both identity and meaning; if you have written it cryptically so people will get it without you saying it directly what makes you think that the court won’t?

Stating it is your opinion is not a defence unless you can show your opinion is reasonably held and even then, unless you have the money to prove your defence in court it is wiser to not go there and to respect the presumption of innocence – you were not in that court room afterall. Don’t rely on a plaintiff’s broke status, that they won’t be able to afford to drag you into court; lawyers are far more willing to do pro-bono work when their client is legally famous.

MandM do not moderate comments and allow anonymous contributors; however, as with spam, any comments posted on this blog that are defamatory will be deleted; legal defences for permitting publication of a defamatory viewpoint are much harder to succeed with. I suggest other bloggers watch their comments for this issue and be aware that even if you promptly delete it, you can still be sued even though you didn’t write it.

From all of the above the so called “chilling effect” of defamation can be seen. Effectively what I am saying is that if you criticise the court’s finding or you claim the court got it wrong then effectively you are saying that the accused that the court ruled ‘not guilty’ is in fact guilty and you step into the realm of defamation law. Whilst I support the concept of reputation as property that one can defend at law, as reputation can directly affect the pursuit of life, liberty and happiness, I also support freedom of expression and the principle of openness and further, I strongly oppose a system that effectively renders the courts as infallible or unquestionable.

Even though defences to defamation do exist that can, in some instances, support questioning of court and jury decisions, such as:

honest opinion – must be reasonably held,
truth – because defamation is a civil action in New Zealand, this will be held to the balance of probabilities, not reasonable doubt;

These defences are expensive to mount, you could easily run up a legal bill of $20,000 plus and there is no guarantee you will succeed, most of us don’t have a spare 20k to throw at the things we say online so when confronted with the risk of having to we err on the side of caution and cede too much of our freedom of expression and our right to open trials; hence the chilling effect of defamation law.

However, rather than do away with defamation law or deem reputation to not be a form of property – I think requiring people to think about not harming others before they open their mouths is not that unreasonable a limitation on freedom of expression – the problem could be solved by a revamp of how the law works. Either publicly fund access to justice so you can defend yourself when accused and protect your property when it is attacked – judges could keep a check on frivolous actions or make defamation a criminal offence, which would achieve the same thing.

David Bain 111 Call "I Shot the Prick" – Court Decisions Available Online UPDATED AGAIN

Madeleine — Thu, 11 Jun 2009 05:07:00 +0000

Did David Bain tell the 111 operator “I shot the prick” on discovering the dead bodies of his family?

This evidence was originally suppressed “until completion of the re-trial” as, per Wilson J,

The probative value of the disputed sounds is very modest, but the risk of prejudice resulting from their introduction into the trial is very great. There is more than a minor imbalance; the scales come down firmly on the side of exclusion of the evidence. Even if the disputed sounds were admissible under s 7, they should plainly be excluded under s 8. [of the Evidence Act 2006]

However, as the trial is now over, David Bain had sought to have the suppression continued “until further order of the Court.” Fairfax New Zealand Limited and Television New Zealand applied to set aside the suppression orders. In a judgement issued this afternoon David Bain lost his appeal to continue the suppression (see David Cullen Bain v The Queen [2009] NZSC 59 to read the three page judgement of the Supreme Court which explains why the suppression order remains lifted; effectively there was no clear and compelling reason to continue to offend the principle of openess and the right to free expression).

Due to this decision the original suppression case has now been made public and was also released this afternoon. Now you can read David Cullen Bain v The Queen [2009] NZSC 16 and find out why the court decided on 6 March 2009 that the disputed evidence (the alleged “I shot the prick” part of the 111 call) would be excluded and that part of the call would be excised. (Full transcripts of the various interpretations of David Bain’s 111 call are included in the reported decision.)

Extract from the decision of Supreme Court of New Zealand on the appeal to suppress the evidence, per Elias CJ and Blanchard J at paragraphs 3, 4 and 5:

… The presence of the disputed admission was first found by Detective Ward, when he reviewed the recording, in preparation for the retrial, in July 2007. At that time he listened to the recording at a commercial sound studio in Dunedin. Mr Dempsey, the ambulance officer who took the call, had not heard the disputed words and did not suggest their inclusion in the transcript originally prepared in 1994. In October 2007 he was asked to recheck the recording after being told of the words which had been discovered. In listening to the recording with that knowledge, he heard the words “I shot the prick I shot” and was “stunned that I hadn’t heard the words previously”.

Because of the discovery, the recording was sent for analysis to the United Kingdom to forensic consultants, expert in analysing recordings of speech. It was also analysed by experts for the defence. There is very little difference between the experts as to their findings. The opinions constitute evidence extrinsic to the recording itself upon which the decision to admit the recording was based.

Although it is necessary to refer to the forensic opinions at some length later in these reasons, they may be briefly summarised for present purposes. None of the experts is able to say that the sounds relied upon in the recording are words, rather than meaningless exhalation of breath. If they are words, none of the experts is able to say that they amount to the words the Crown wishes to rely upon as evidence. Some consider such words can be heard in the recording, with effort. But all experts caution as to the dangers of hearing something that may not in fact be there, because of accident in arrangements of sounds. …

After examining further evidence in detail their honours start to hone their thinking, at para 54,

Three reasons weighed principally with the Court of Appeal in concluding that the evidence of the disputed words on the recording should be admitted. They were the fact that the “hypothesis” was “open” on the expert evidence; the fact that the appellant spoke on an exhaled breath without vibration of the vocal folds when giving his telephone number; and the “contextual sense” of the sentence, which left it open to the jury to decline to accept that the sounds had been made by random movements of the tongue and lips in an exhaled breath. …

Then they conclude at para 67,

… The prejudicial effect on the proceeding could be profound. The jury would, as Mr Raftery acknowledged, be entitled to find the accused guilty simply on the basis of an inculpatory statement unable to be proved to the satisfaction of experts or, in their estimation, of lay people. …

Finally at para 68,

… For these reasons, we consider that the disputed sounds are not admissible. The risks of jury speculation as to the content of the sounds, and the risk of the contentions put forward being available to them, make it necessary to excise the portion of the recording.

JJ McGrath, Wilson and Gault’s judgments are shorter and add slightly different angles, all of them agreeing with Elias CJ and Blanchard J, that jurors may not be able to make the necessary complex and extremely important distinctions and that they should not be given the chance to get it wrong.

Notably none of the justices appear to give any consideration to section 14 of the New Zealand Bill of Rights Act 1990 as they are required to,

Freedom of Expression – Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

All suppression orders offend the right to expression; the disputed tape was information, the evidence of expert witnesses were opinions, the Act does not limit what kind or form this expression comes in and the suppression order meant that we, the public, were unable to receive this order. Suppression orders offend both expression and the principle of openness which is grounded to the right to a fair trial also in the Bill of Rights.

As such, the interests of justice must be weighed against the right to expression “and only where the Court’s capacity to ensure justice is significantly imperilled will the right of citizens and the media to seek, receive and impart information be curtailed.” (Thomas J in Police v O’Connor [1992] 1 NZLR 87, 99) In deciding to grant a suppression order the court must take into consideration the effect of doing so on freedom of expression, alongside its affronts to the principle of openness, and engage in the weighing Thomas J referred to – especially when the court is the highest court in the land, cannot be appealed from and is overturning a lower court’s decision. I cannot find where they considered it, let’s hope they thought about it even though they appear to not have recorded doing so.

The fact that the previous courts had not allowed the appeal and the Supreme Court did, will undoubtedly open up the arguments around the abolition of appeals to the Privy Council. If you want to see the judgements and compare the reasoning of the lower courts that originally allowed the appeal – you’ll want to start with The Queen v David Cullen Bain [2009] NZCA 1 and work your way back from the Court of Appeal to the High Court [the direct link to the pdf of this case won't work so go here and click on the '30 January 2009' decision entitled "CA 571/2008 (PDF)"].

Personally I tend to lean towards the Court of Appeal’s thinking on this one, that while the nuances are complex and very important to grasp, managing this evidence would not have been impossible; starting at paragraph 256,

… As to prejudice, the primary risk is that the jury may wrongly construe the disputed sounds as an inculpatory sentence – in other words, may simply get the facts wrong. But risks of this sort – that the trier of fact may get the facts wrong – are an inescapable part of the trial process and do not in themselves usually represent the sort of prejudicial effect which warrants evidence exclusion. It is, of course, the responsibility of the judge to guard against obvious risk (and particularly one that will be more apparent to a professional judge than lay jurors) of misunderstanding. In this case, there is an obvious risk, namely suggestibility, which must be addressed. But providing this happens, we see no reason why the evidence should not be admitted.

As the Judge noted, it is well settled that the interpretation of an item of real evidence, such as a tape-recording, is a jury question: see for example R v Wickramasinghe (1992) 8 CRNZ 478 at 481 (CA) and R v Taylor [1993] 1 NZLR 647 at 650 – 651 (CA). The Judge took the view, with which we agree, that a transcript is not required, given the short length of the conversation (about a minute).

We think it would be best if the jury first heard the tape without being primed, except perhaps with a request that they listen to it carefully and possibly advice (as recommended by Professor French) that they will hear some speech produced on breath. If they initially do not hear the disputed sounds as an inculpatory sentence (which we think is likely given past history [no one noticed this sentence during the first case]) but, once primed, subsequently do hear the disputed sounds in this way, this should provide a graphic indication of the power of suggestion.

The Judge concluded that after the tape has been played to the jury “unprimed”, expert evidence should be received concerning the interpretation of the disputed sounds. We agree.

We have no doubt that in his summing up the Judge will warn the jury of the dangers of suggestibility. …

I have no doubt that any Judge would have taken this care and I doubt that any jury wouldn’t take their duty and their role seriously given the seriousness of the task they were faced with. I find the tone of the Supreme Court somewhat patronising and agree with the Court of Apeal at paragraph 261,

… it would be quite extraordinary for this Court (or the Judge) to deny the jury the opportunity to listen in full to what the Crown can credibly claim is a recording of the account given by the appellant, within 25 minutes or so of the completion of his paper round, of what he found when he returned to the house.

Extraordinary is one way of putting it.

David Bain Not Guilty

Madeleine — Fri, 05 Jun 2009 04:48:00 +0000

Well the verdict is in; David Bain didn’t do it.

I will accept the ruling of the court but I am now more than ever keen to read the judicial decision which should be available in the next few days from the sites I have mentioned previously.

How to Find the Reported Judicial Decision on the David Bain Re-Trial

Madeleine — Tue, 02 Jun 2009 20:15:00 +0000

The blogosphere has featured many posts on many blogs regarding David Bain’s guilt or innocence regarding the homicide of his family. We have refused to participate in this speculation and have made our opinions on speculating on the Bain case before the court has ruled clear. I do not intend to break this self-imposed rule here today, you will not hear my opinion as to his guilt or innocence until after the verdict is in and I have read the reported decision (or unreported as the case may be) as despite the twitter updates, the articles, the live streaming and the “in depth” takes on the evidence provided by the media, unless you have sat in the court room and seen and heard only what the jury has had presented to it you cannot know one way or the other what the correct verdict should be.

However, when the case has been decided, I have no moral qualms about examining the court’s report on the case and seeing what I think. As a law student it is pretty easy for me to gain a copy of a decision or a report on a case but it is also easy for the public; you just have to know where to look. So, here are three methods of gaining copies of the court’s judicial report on the case online to save you having to navigate a law library or even leave your computer:

Judicial Decisions Online publishes all New Zealand Supreme Court, Court of Appeal (post 1 January 2003) and all High Court (post August 2005) decisions, provided they are not subject to limited restrictions, following delivery to the parties but not earlier than three days after the decisions are given. Simply search for the case – Bain, High Court, Christchurch, etc..

Courts of New Zealand publishes judicial decisions of public interest and you can enter your email address and subscribe to be notified when new decisions are added. Visit the site, click on “from the courts” click on “judicial decisions” click on “judicial decisions of public interest” – the subscription box in in the left hand column.

The New Zealand Legal Information Institute is a joint project of the University of Otago Faculty of Law, the Victoria University of Wellington Faculty of Law and the Australasian Legal Information Institute. NZLII is not updated as quickly as the other sites but given the interest in the David Bain trial I would expect the judgement to go up pretty shortly after it becomes available.