Justice Joe Williams (pictured here in 2009) said that the detective's statement was "opinion evidence with no foundation provided that might qualify her to give that opinion". Photo / Glenn Taylor
Justice Joe Williams (pictured here in 2009) said that the detective's statement was "opinion evidence with no foundation provided that might qualify her to give that opinion". Photo / Glenn Taylor
Opinion by
Weird things are said when lawyers gather.
Here's an abridged snippet from Auckland law school associate professor and evidence specialist Scott Optican's action-packed address to the Criminal Bar Association conference last Saturday (which CaseLoad observed from the free seats):
Professor Optican told how the Court of Appeal approved, as propensity evidence, the admission of a store of girls' underwear found in a chest of drawers in an adult male defendant's bedroom.
(Tittering from back row late-comers.)
At trial a female detective who uplifted the items at the scene unexpectedly testified: "Based on my personal opinion, some of the pairs of underwear smelt of semen..."
(Bursts of laughter and a bit of unisex nudge and wink.)
Legally speaking, said Professor Optican, and where relevant, testimony from lay witnesses regarding an object's smell would clearly be the kind of ordinary opinion evidence admissible under the Evidence Act.
But in order to pass muster, he said such opinion testimony would still need to be rationally based in what the witness perceived - "and hence in their own experience".
(Folk in fits all over the place.)
The Court of Appeal - in recently finding a miscarriage of justice and ordering a new trial - had little trouble concluding the detective's statements should have been ruled inadmissible at trial.
Justice Joe Williams pointed out that the detective's answer was "opinion evidence with no foundation provided that might qualify her to give that opinion".
The judge went on to say it was impossible "without formal testing, to determine how fresh the scent was, and there was no evidence as to whether, with age, the odour of bodily fluids changes or becomes indistinguishable from that of any other body fluid."
"Wouldn't we all want to be in the courtroom when that evidence was presented? Not to mention taking the witness to lunch..." said the Professor.
(Falling-over audience erupts into uncontrolled side-splitting guffaws.)
The underwear evidence - suggesting the defendant collected children's underwear in order to masturbate into it - was clearly unfair and the lower court judge, who exacerbated the unfair prejudice by asking his own questions about the detective's testimony - got it wrong.
"So why is this instructive as a matter of evidence law?" asked Professor Optican.
"It's really not, but it's hysterical...
"It may not be instructive because it's just too obvious an outcome...
"But how often do you get a decision from the Court of Appeal - about boring old non-expert opinion testimony under s24 of the Evidence Act - with these kinds of facts?
"It's what I love about the law of evidence, you just can't make this stuff up..."
(Elderly wheezing briefs carried from the room.)
A case of colonial entitlement
CaseLoad never takes pleasure in the misfortunes of others, but he couldn't resist a wee chortle the other day when the Supreme Court put the final hot poker up the Lombard Four.
Former justice ministers Sir Doug Graham and Bill Jeffries, ex PR flunky for the Queen, Lawrie Bryant and Lombard director Michael Reeves were earlier convicted of making untrue statements in company offer documents before Lombard's collapse in 2008.
The Lombard Four: from left, Lawrence Bryant, William Jeffries, Michael Reeves and Sir Douglas Graham. Photo / Mark Mitchell
The Court of Appeal upheld their convictions and the Supreme Court in 2013 refused leave to challenge them.
Nevertheless, the Lombard Four tried and failed, to have the Supreme Court recall its leave refusal, the judges finding the bid was "completely misconceived," and a "substantial mischaracterisation" of what happened at trial.
The judges are now considering whether the Lombard Boys should pay costs.
"What you have to remember, CaseLoad," said Our Man At The Bar, "is that blokes who wear pinstripe suits and hand-stitched shoes, belong to clubs, eat thick beefsteaks and slurp the best plonk, do not regard convictions in the way Donny the Dip does.
"It is inconceivable amongst such folk that they would be even charged with anything let alone convicted."
What made lawyers get to their feet?
Non-drinking vegetarian Baltimore lawyer Judge William H "Billy" Murphy Jr doesn't mince words.
Baltimore lawyer Judge William H "Billy" Murphy Jr. Photo / AP
"All Republicans are not racists," he told the Criminal Bar Association Conference the other day, in a speech which tracked the history and present of "persons of colour" in the United States.
"But all racists are Republicans...Richard Nixon is racist, Ronald Reagan is racist and so are many police and judges...
"We had just about lost all hope then someone found Barack Obama."
Descended from African American slaves, Billy Murphy Jr is a well-known US litigator with more than 40 years experience in the law, who is most energised when battling the powerful to protect the rights of the innocent and under-represented.
"Even as the son of a judge, segregation was an up-close and personal thing for me."
While deciding on acceptance for Harvard Law School or University of Maryland School of Law, his father, Billy Sr, received an intriguing offer from the Maryland law dean, an avid supporter of segregation.
He offered to pay the young man's full tuition at Harvard in an effort to keep his school free of black students.
It was the motivation Billy Sr needed, and in 1939, under court order, he became the third African American to be admitted to the Maryland school of law.
The injustices Billy Jr experienced as a young man were formative, inspiring him to undertake a lifelong fight for the rights of under-represented communities.
His most noteworthy case from the 1970s was in defence of Charles Hopkins, who went into Baltimore city hall intending to murder then-mayor Donald Schaefer, but instead shot and killed a city councillor, caused a fatal heart attack in another and injured a mayoral aide.
Billy Murphy Jr focused on the bigger picture, arguing that Hopkins' actions had been driven by decades of deeply-rooted social inequalities, having grown up poor and black in a city that was oppressive for non-white citizens from low-income backgrounds.
In a verdict that shocked Baltimore and divided the city along racial lines, the jury found Hopkins not guilty by reason of insanity.
Later, dismayed by the lack of black appointments to the Baltimore courts, Judge Billy Murphy Jr served three years on the Circuit Court for Baltimore city, before returning to his legal practice and carrying on the fight.
His riveting address to New Zealand's criminal defence lawyers received a standing ovation.
CaseLoad cannot do justice to his message here but Billy Murphy talks to Kim Hill on National Radio this Saturday morning (August 8) in what he rates is the best interview he's ever had.
Something harsher needs to be done
A grave unease surrounds the way in which the justice system allowed Tony Douglas Robertson to drift from being an 18-year-old child molester to raping and murdering Blessie Gotingco some 10 years later.
Tony Douglas Robertson appearing in the Rotorua High Court in 2006. Photo / Kelvin Teixeira
Robertson was yesterday sentenced to life imprisonment with a minimum non-parole period of 24 years for the murder, and preventive detention for raping Gotingco, meaning he could spend the rest of his life in jail.
The crimes were committed while he was supposedly on long-term monitoring.
After initially serving an eight-year prison term Robertson, who continued to deny his offending, was put on a monitored 10-year extended supervision order - the maximum allowed - by Justice Ed Wylie in 2014.
When Robertson appeared in Tauranga court in 2005 for kidnapping and molesting a 5-year old girl, the then Crown prosecutor - now Transport Minister - Simon Bridges, put up a strong case for an indefinite jail sentence of preventive detention.
Justice Patrick Keane rejected the call for preventive detention, instead jailing Robertson for eight years.
Which prompted Fiona, of Onehunga, to write:
"Will the first person asked to 'please explain' at the upcoming independent inquiry into the paedophile, rapist and murderer's monitoring by the Corrections Department be the judge [Justice Keane] who decided he knew better than the Crown prosecutor and the police, so only imposed a jail term of eight years for the abduction and sexual assault of a 5-year-old girl?
Or have I just written the next beer billboard when it comes to judicial accountability?"
What have they done to our pub, Ma?
CaseLoad's legal and literary cronies are struggling to cope with changes to their favoured pub - Vulcan Lane's Queens Ferry - which now suffers from a bizarre "makeover" and a new name.
The Queens Ferry - where many cut their teeth on the road to fame, fortune or ruin - is now called Urchin & Amber, which one literary luminary and veteran connoisseur of the licensed trade reckons is a slight on Asian children and resembles a South Auckland factory staff caf.
It hasn't helped that the padding on the outside bench is now thinner and less welcoming than the old one and that for 90 minutes the other day no waitperson came out to inquire if CaseLoad wanted another beer or something to eat.
"A sign they don't want your sort hanging about," said The Scunner.
A final verdict on this state of affairs has yet to be delivered, but encouraging noises have been made at welcoming West Coaster Ken Hix's QF in Queen St.
Shifty looking briefs kerfuffled
CaseLoad's item on whether folk get stiffer penalties if their lawyers look as if they can't be trusted (CaseLoad July 31), has caused a kerfuffle...
Photographs purporting to show numerous gender diverse lawyers at their most attractive have been deposited behind the bar at the Ladies & Escorts Lounge...
A statement has also been received from "We Can't Help How We Look But The Money's Good" - a support group representing some 10,000 lawyers and related hangers-on - challenging the validity of the associated research...
"You can use some of our photos," shrieked A Pair of Mature Lady Briefs...
An obedient servant writes on a delicate topic:
"About 10 years ago - perhaps several editors ago - I wrote to (name of publication withheld for jolly good reasons) asking about their policy on honorifics (CaseLoad July 31).
A friend of mine, a much respected widow of about 70, had been interviewed regarding her successful business career. The first sentence mentioned her Christian name, but afterwards only her surname was used.
In section A (of the paper) a group of youthful lowlifes had indulged in a fracas which had resulted in the death of one of them. All except the murder accused had their names prefixed with Mr.
The (adjective deleted) reply was that many of the business stories came from overseas and it was sometimes difficult to determine sex from some of the stories.
To be fair I may be a trifle old fashioned when it comes to honorifics. I believe that sportsmen like Bob Charles and Nick Faldo should not have their titles used unless their fellow competitors are called Mr.
This is unlikely to happen, when junior shop assistants are asking Alan what he will be up to at the weekend.
Cheers (or should that be Your Obedient Servant?) Alan Tomlinson Herne Bay"
Footnote: Not many folk know that judges talk to each other by using surnames only. For example: "Hello Heath J, it's Moore J here, be a good chap and give us a tip for the 4.30 at Rakaia."
