Wednesday, August 26, 2015

Justice Wylie finds reason in the modern age of information.

Information and knowledge is King, information rules - but is that the case always?

It seems at the moment information and the administration of Justice are on a collision course. Who hasn't heard calls for longer sentences across the board because of a particularly bad crime, one invariably follows the other. I started out by saying information and knowledge is King, but what if information is abused. For instance every so often there is crime committed by teenagers that attracts a lot of attention, some people see that as a random event that will happen occasionally while others will see as proof that Governments, Judges, Courts, even Juries are corrupt. As a fictional character of interest to me has said, 'it's like a disease they get.' Each event of a noteworthy crime appears to the disaffected to 'prove' once again that Judges, Courts etc are weak and corrupt and that a current Government is soft on crime, clich├ęs are rolled out and satisfaction is abroad that only particularly alert and knowing individuals understand what others don't - the crime is rife and harsher and harsher punishment is required. In reality the critics are, at least to their own minds, the only ones in New Zealand, perhaps even the world, that can see overt corruption taking place right under their noses and man do they have to tell us, again and again -  somehow forgetting that they've said it a million times before.

No doubt freer access to news and information is part of this phenomenon but more so are interactive blogs. The blogs in fact become the rally points for the same stories to be repeated over and over again at least partly, one would imagine, to drive fear. That is, unless the public listen to the chorus about weak Judges, soft Governments and so on then everyone is doomed. It's the middle ages all over again except for observers such as myself don't want to revisit the middle ages, dine on doom and gloom or desire to feel unsafe because of some perverse reasoning that all people are bad to the core, and should be locked away for ever.

In the last week there were 2 relatively unrelated events revealed about a murder case that was concluded in Auckland around 10 days ago with the conviction of a 33 year old Michael Thrift Murray. Murray was convicted of the murder of a gang member during a street brawl. His defence was that his brother was being beaten by the deceased Connor Morris who Murray hit with a scythe having claimed to have asked Morris to stop the beating. The case was well publicised and one member of the media and ex Member of Parliament Rodney Hide wrote about the loss of the defence of provocation following outrage in a much earlier case where a Lecturer argued that he was provoked into killing one of his students with whom he had been in some kind of relationship before she decided to leave for another city and better opportunities.

Rodney Hide offered how difficult it would be to not help a brother being beaten, lamented the law change that had taken away the defence of provocation observing that in the trial of Murray there would previously have been the right for Murray to lawfully say he was provoked into striking the man he claimed had been beating his much younger brother. What Hide said was wrong in not having the defence available is the result of members of the public baying for the defence of provocation to be removed because of one particular case. It's use caused outrage to the people who like to be outraged in their quest to prove Judges are weak, Juries corrupt, Laws need changing and that Governments are involved in the conspiracy. Calls for change after one trial that overlooked beaten wife syndrome, spousal abuse and so on in far many more cases than the particular trial of the University Lecturer. If any of those people that thought it was wrong for the Lecturer to claim provocation, which notably, was rejected by the trial Jury, are now confused that Murray was not able to argue defending his brother was a situation brought about by the provocation of seeing him beaten, then they're obviously unable to connect that they were part and parcel of Murray's lack of opportunity to plead his case in the way Hide suggested was possibly reasonable for a man allegedly seeing his brother being beaten by a gang.

I'm fairly sure I won't receive any correspondence from any member of the public or lobby groups who 'demanded' that the defence of provocation be removed in order to put right a prosecution in which such a defence was rejected by a jury, and where the defendant was found guilty anyway, that will explain  the apparent dilemma that follows a law working well being taken off the books. In fact, the real outrage was that Lecturer was able to project his fantasy defence which was hurtful to the family. For some, and at least Rodney Hide, it's an outrage that Murray couldn't say he was provoked by seeing by brother being beaten on the ground. So the question remains did the Law change assist anyone that might be in a situation like that of Murray in the future, or did it say that a person can only ask for his brother to stop being beaten and little more short of receiving the same treatment himself.

The second event, strikingly, relates to the same case wherein the media sought from the Court after Murray's conviction  the release of information about Murray and whether or not he had a criminal record. This is in part what Justice Wyle said in rejecting the application..

'I did however consider, under r 6.10(2)(b), that there were implications for the orderly and fair administration of justice. It has become relatively common journalistic practice to publicise, after a verdict, a record of a defendant’s criminal convictions, frequently under the heading of "what the jury didn’t know", or the like. Although I raised the issue with them, neither Ms Bremner nor Ms Gillies were able to offer any sound rationale for this type of reporting. I do not consider that publication of such information promotes the orderly and fair administration of justice. Rather it seems to me that it could potentially undermine the fair administration of justice, by inviting the public to "second guess" any verdict – particularly if the verdict were that the defendant is not guilty.'

Although it may seem of little moment that if Murray was in fact also a gang member, or perhaps, helpfully for any reporter, a man with convictions for violence, that he was nevertheless convicted - it remains that in cases where the media report with headlines such as 'what the jury didn't know' it is invariably with the purpose of inviting the public to 'second guess' a Jury's verdict. Put simply it invites the argument of saying 'if I'd known that I would have found him (or her) guilty.'


It is clearly plain to Justice Wylie that if indeed the media were hoping to make mischief with previously unrevealed facts that such mischief deliberately undermined the credibility of the Justice system by inviting a public auction on the character of an accused person, rather than scrutiny of the evidence for or against him by the a Jury who had heard the evidence in detail. But this is the age of information, un-curtailed, unmeasured, unverified passing into the hands of not only the careful minded but also those whose agenda is not to scrutinise data apart from its potential use in advancing a cause against the Justice system and its perceived weaknesses. No doubt Justice Wylie did consider the public interest as presented by the media involved in the Murray application. Had a valid argument of how the public interest was not being served been satisfied their application would not have failed. Conversely, Rodney Hide did write in the public interest for those interested in the Law, that is, whether it is fair for an accused person to have the opportunity to argue before a Jury that he or she was provoked into an act of defending another person with deadly force - something which before contemporary times and an 'modern' age of information was their lawful entitlement and a Jury's right to either accept or reject such a defence.