Catriona MacLennan draws on her experience as a lawyer in Manukau District Court to argue we need change that provides justice both for perpetrators and victims
Our legal system delivers injustice not only when people are wrongly convicted, but also when they are wrongly acquitted.
In the latter case, the injustice is to victims, who do not receive the redress our system is designed to provide.
I worked as a duty lawyer at Manukau District Court for 11 years. The people I most remember from that time are the 17-year-old young men I spoke to in the cells under the court building first thing in the morning.
Many could not read and write. They did not have jobs and were not in education or training.
They had substance abuse problems and came from violent backgrounds.
A few of the young men I clearly remember were specifically poised at turning points in their lives – if they got some help, they could participate fully in society and have good lives.
However, if they did not get support, they were clearly on a fast track to jail.
So, my experience leads me to agree that our current criminal system is futile and a failure.
We are willing to spend around $100,000 a year per inmate to keep people locked up, but we’re not willing to provide comprehensive help with adequate benefit levels, proper housing, education, literacy skills and obtaining drivers’ licences.
For those reasons, I helped initiate a pilot at Manukau District Court of having a Ministry of Social Development employee based at court so that people could check whether they were entitled to a benefit and receive referrals for housing, assistance with obtaining a driver’s licence, substance abuse assessments and other matters.
Similarly, judges, despairing at the futility of the same people cycling through their courtrooms, have taken the positive initiatives of establishing the Alcohol and Other Drug Treatment Courts, and the New Beginnings Court Te Kooti Timatanga Hou and the Special Circumstances Court to address homelessness.
However, my concerns about our current system do not mean I support every change that might be suggested.
We need change that provides justice both for perpetrators and for victims.
Justice Minister Andrew Little in interviews prior to his Criminal Justice Summit used an anecdote about a mother writing to him concerning her son being imprisoned.
She told Little her son and his partner had separated and his ex-partner had turned up at his new home with mag wheels he had left at their old address.
Little said that “she put them on her car and parked in front of his place. The way it was characterised in the letter, that was intended to be provocative”.
The son went out with a sledge hammer and started whacking the wheels on the car. Little went on to state that “the way the letter was written, he apparently wasn’t threatening the young woman, but I can understand why she would feel threatened, and so she calls the police and he gets charged with an offence of violence. So he’s remanded overnight, and goes to the judge. The judge remands him in custody”.
Little said the man was remanded hundreds of miles away from home and lost his job and his flat and didn’t see his family.
There are many problems with this anecdote. First, mothers support their children and are often reluctant to acknowledge their offspring’s wrongdoing.
That is to be expected. Families support each other.
I have dealt with hundreds of parents at court who denied and minimised their children’s behaviour.
As Little acknowledged, he heard only part of the story – and, in particular, nothing about whether the son had a previous record which might have influenced the decision to keep him in custody.
The Minister’s tacit acceptance that the cause of the son’s violent behaviour was his ex-partner’s “provocation” is deeply worrying and appears to show he subscribes to myths that blame women when we are the victims of violence.
The head of the Government’s Safe and Effective Justice Programme Advisory Group, Te Uepū Hāpai I te Ora, Chester Borrows, has called for changes to be evidence-based.
Little’s story is anecdote, not evidence.
However, even worse, is the fact that recounting this anecdote displays a lack of understanding of domestic violence.
On any objective view, taking a sledge hammer to a person’s car is an extremely violent and aggressive act.
What domestic violence survivors and advocates know is that attacking property can be a precursor to attacking a partner.
We also know that domestic violence is usually a pattern of behaviour, encompassing psychological abuse, threatening language and attacks on property and the partner.
We should take all of these manifestations seriously and intervene when the first abusive behaviour happens, to try and halt an escalation of violence.
It is for precisely this reason that Aotearoa in 2008 followed other nations in establishing a Family Violence Death Review Committee.
The committee’s main purpose is to help prevent family violence and family violence deaths by developing strategic plans. It reviews homicides, tracks patterns of behaviour and makes recommendations aimed at preventing future killings.
Usually, there is an accumulation of acts against the victim.
Behaviour that appears benign to outsiders and those unfamiliar with domestic violence actually acts as a warning signal to victims and anti-violence advocates.
Sending someone a card, leaving flowers on the doorstep or phoning an ex-partner to say they are missed might appear “romantic”.
However, when there is a protection order in place, all contact with the protected person is forbidden.
When a perpetrator makes contact irrespective of the protection order and when there are no consequences for him as a result – which is most of the time – this tells the victim the law will not protect her and reassures the perpetrator he can escalate his law-breaking with no consequences.
Little does not appear to understand all this, and that is a concern.
And my concerns do not end there.
Little in July announced a review of the Family Court.
In speaking about it, he said that he had urged the three-person panel he had appointed to take a human rights approach to its work.
That is wrong.
The panel should take a safety-first approach, focusing on protecting women and children from domestic violence.
When the previous government carried out its changes to the Family Court in 2014, anti-domestic violence advocates warned it not to abolish the “Bristol clause” inserted into law after Alan Bristol killed his three daughters.
The Government went ahead and removed the provision. It needs to be placed back into the law.
When Little speaks about the Family Court, he invariably mentions concerns by both mothers and fathers, as though those are equal.
He disregards the fact that the Backbone Collective has produced detailed reports about the Family Court’s failure to apply the law properly in relation to domestic violence.
Other researchers have documented the court’s disregarding and minimising of violence reported by women and children.
The United Nations Committee on the Elimination of Discrimination against Women in July called for a Royal Commission of Inquiry into the Family Court.
Little dismissed that call unilaterally, apparently without consulting other ministers or Cabinet.
In July 2017, the Court of Appeal released its decision in SN v MN. That judgment found that an extremely experienced Family Court Judge had misunderstood and misapplied the Domestic Violence Act in almost every respect.
That decision should have raised huge red flags both with the Minister and with the judiciary.
There should have been immediate action to review the judge’s other domestic violence decisions, to check how many other women and children had been wrongly denied protection orders.
A proactive and safety-first approach would have led to a review of all the Family Court’s domestic violence decisions.
But none of that happened.
In fact, as far as I know, absolutely nothing was done in the wake of the Court of Appeal judgment.
Another aspect of the Government’s changes to the criminal justice system is its plan to create a Criminal Cases Review Commission.
I do not support the establishment of a commission.
If we had one in Aotearoa, Teina Pora would still have spent many years in jail before being freed, as his case worked through appeals and then the commission process.
It is 2018, and we should be doing more to ensure people are not wrongly convicted in the first place, rather than focusing on eventually getting them released from jail.
The other problem with a commission is that it focuses only on the injustice of offenders who are wrongly convicted.
However, our legal system also dispenses injustice when it wrongly acquits the guilty.
This is unjust to victims.
Our legal system operates according to very old principles and procedures. We need to overhaul it thoroughly to make it more just both to victims and to offenders, rather than placing our faith in an ambulance a very long way down the cliff.