Jock Anderson 's Opinion

A look behind the scenes of the legal profession

Jock Anderson's Caseload: What price Stephen Dudley's death?

Chief High Court Judge Helen Winkelmann and deceased Auckland school boy Stephen Dudley.
Chief High Court Judge Helen Winkelmann and deceased Auckland school boy Stephen Dudley.

Fifteen year old Auckland schoolboy Stephen Dudley collapsed and died from an undiagnosed heart problem after being beaten and punched to the ground a year ago by two brothers, then aged 15 and 17 - both of whom walked from court free, anonymous and unpunished.

The Crown is considering appealing the older brother's discharge without conviction after he pleaded guilty to assaulting Stephen with intent to injure him.

Many folk are angered and outraged by Chief High Court Judge Helen Winkelmann's decision to discharge without conviction the older attacker, now 18 and identified in court only as "M" - who was initially charged with manslaughter but later admitted the lesser charge.

Whatever else the law says, many people struggle to reconcile Justice Winkelmann's repeated view that in letting "M" go free she did not take into account the fact Stephen died after the fight.

They cannot reconcile her finding that the punches which put him on the ground were thrown in the context of what she said was a "schoolyard fight."

Nor can they reconcile her findings that "M" must be held accountable for his offending, that there was a need to denounce his conduct and to deter him and others from similar offending in future - then discharge him without conviction.

Read Justice Winkelmann's judgement here.

Nor can they reconcile her findings that "M" aggravated the situation, pushed his way into a scuffle, initiated the violence and struck Stephen a blind-sided blow to the neck - then discharge him without conviction.

Nor can they reconcile her findings that "M's" actions were worthy of condemnation and, while common in schools, unacceptable - then discharge him without conviction.

Nor can they reconcile her finding that the consequences on "M" of a conviction would be out of proportion to his assault on Stephen.

Read also:
Schoolboy death: Family vows to fight on
Stephen Dudley death: 'We have been deprived of justice'
Mai Chen: Judge had to put schoolboy's death to one side
Kerre McIvor: Where's natural justice?

Many people will struggle to understand why Justice Winkelmann dismissed Crown prosecutor Kieran Raftery's strong call for a sentence of 80 to 100 hours community work - given the harm "M's" offending caused to the greater community.

Mr Raftery reminded Justice Winkelmann that "M" was more culpable than his younger brother; that his attack on Stephen was unprovoked and unexpected; he was older and bigger than Stephen; he was the first to resort to violence and he joined his brother in attacking Stephen.

Mr Raftery opposed a discharge without conviction, saying the discharge would fail to reflect adequately the purposes and principles relevant to sentencing "M".

Justice Winkelmann disagreed.

Mr Raftery said a greater deterrent, both specifically to "M" and more generally to others in his 17-18 year age bracket, was needed.

Justice Winkelmann disagreed.

Mr Raftery said there was nothing to suggest "M" would have to bear any special consequences of conviction that would make the effects of a conviction disproportionate to the gravity of "M's" offending.

Justice Winkelmann disagreed.

For many folk not as learned in the intricate ways of the law as Her Honour Justice Winkelmann, the judge's thinking and utterances may appear unfathomable, incomprehensible, irrational and outrageous - perhaps even cruel.

Has justice been served in this case?


No such judicial dodginess here

A Judicial Complaints Panel of Newfoundland and Labrador, Canada, says provincial court judge Harry Porter made an error of judgment when he wrote a character reference suggesting a "private reprimand" for lawyer chum Robert Regular, who was in trouble with the local law society.

But it threw out the law society's complaint that Judge Porter - who promised not to do it again - had offended a number of ethical rules approved by the judicial council of the provincial court.

"This sort of thing doesn't happen here," said Our Man At The Bar.

"How do we know?" said The Scunner.

Meanwhile, a judgment littered with spelling and typographical errors is no ground for appeal, according to the English High Court.

It was argued the large number of mistakes suggested a judge did not approach his judgment with the care and thoughtfulness which the case warranted.

Acknowledging that many judgments contained typographical errors, the High Court threw out the appeal.

"This sort of thing does not happen here," said The Bloke At The Next Leaner.
"How do we know?" said The Scunner.


Seen & Heard

* Former London barrister and insurance and negotiation specialist Toby Gee is a new special counsel at Minter Ellison Rudd Watts in Wellington. His UK insurer clients included AIG, Allianz, Aviva, QBE, Zurich and the Medical Protection Society.

* The College of Law has announced Brian Kilkelly (Dunedin), Rachael Schmidt-McCleave (Wellington) and Philip Shamy (Christchurch) as adjunct appointments to its professional legal studies course in regional areas.

* After 24 years as a Chapman Tripp partner, banking, finance and corporate recovery specialist Michael Anderson has taken up partnership at Lowndes Associates.

Find out more about who's in, who's out and who's on the move in Law Points here.


Why not all judges agree with Greenpeace

Some observers say a recent majority decision of the Supreme Court - driven by Chief Justice Dame Sian Elias - permits political and possibly illegal activities by the Greenpeace organisation, which wants to be a charity and not pay tax.

Chief Justice Elias, along with Justices John McGrath and Susan Glazebrook, backed Greenpeace's bid for charity status and sent it back to the Charities Commission for favourable reconsideration.

The Commission earlier declined Greenpeace registration because its promotion of disarmament and peace and the promotion of other objects through political or judicial processes were not charitable.

It held fast to the Charities Act, which says societies or institutions qualify for registration only if they are established and maintained exclusively for charitable purposes.

The Supreme Court majority has now changed that by ruling that a political purpose exclusion should no longer be applied and that political advocacy can be a charitable purpose.

The minority view of Justices William Young and Terence Arnold says the Charities Commission was right and there is no need for change.

Justices Young and Arnold say the Charities Act presupposes that advocacy in support of a charitable purpose "is non-charitable unless it is merely ancillary to that charitable purpose."

"If advocacy in support of a charitable purpose is not in itself charitable, how can political advocacy ever be charitable in itself," they argued.

Their Honours argued that judges are usually not well-placed to determine whether the success of a particular cause would be in the public interest.

They say a dispute between Greenpeace and the CEO of the Internal Affairs Department under the Charities Act does not provide an ideal forum for determining the appropriate policies for New Zealand to adopt towards other states in relation to nuclear weapons and weapons of mass destruction.

They also reckoned the courts could not easily determine the worth of Greenpeace's environmental purposes or its advocacy against genetic engineering , saying a judge may feel that entering into such an inquiry lies outside the proper scope of the judicial role.
They concluded that the position that political advocacy is not charitable is reasonably defensible not only on the basis of the legal authorities but also as a matter of policy and practicality.

The Supreme Court majority has now changed that by ruling that a political purpose exclusion should no longer be applied and that political advocacy can be a charitable purpose.

Do you think Greenpeace should be a tax-free charity?


Footnote

It completely slipped CaseLoad's mind to mention that his genuine and sincere application to be made a contributing non-lawyer member of the Auckland district law society (ADLSI) was rejected.

While ADLSI acknowledges that CaseLoad follows and reports on developments in law firms, ADLSI itself and other items of legal interest, that does not qualify him for membership.

Apparently the required interest in, or engagement with, the law is intended to relate to legal learning, practice of the law or to policy issues regarding the law.

"Sighs of relief all round," chorused a Pair Of Mature Lady Briefs.

"Maybe it was asking for the membership fee to be waived," said The Scunner.

- NZ Herald

Jock Anderson

A look behind the scenes of the legal profession

With a life-time of court reporting under his belt - and from the sanctuary of the Ladies & Escorts Lounge - journalist Jock Anderson produces law-flavoured news and views with a touch of humour - occasionally aided and abetted by disparate cronies including Our Man At The Bar and The Scunner.

Read more by Jock Anderson

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