Weatherston appeal a reproach to Court of Appeal

October 14th, 2009

Another reminder to New Zealanders to be ashamed of our criminal justice system. A reminder that the self-absorbed folk in charge have neither the sense nor the concern to take the simple steps to end pointless appeals. The Minister of Justice and the Attorney General should now do it for them. Meritless appeals affront the victims. They insult us who pay the judges on whose watch crime has blossomed while the numbers of lawyers, and the length of trials has rocketed. They make mugs out of those who plead guilty. So it’s time to legislate past the judges who think it is sacriligious even to ask that trials and appeals focus on distinguishing the guilty from the innocent and the remorseful and deserving of mercy from those whose post-crime conduct multiplies their culpability. These are not games the rest of us must sponsor. Meritless appeals would largely dry up the moment they ceased to be costless to the criminal and lucrative for the criminal bar. Appeal judges could achieve that overnight by extending sentences without letting the criminal drop the appeal. They have every reason in the insult they represent to victims. Meritless appeals get more state resource in a day than the victim has received through the whole process. Judges would also curtail this waste of precious time and money if they could resist the temptation to reward non-compelling try-ons with trivial sentence adjustments. Pursuing sentencing "consistency" is an indulgence of dubious logic in any event.

Filed under Criminal Justice

Comments

Keeping Stock is right – Judges give credit for supposed remorse, which is never altered when the thug changes his mind and appeals. Knowing that they will get sentencing credit, Judges and Lawyers encourage the guilty to fake remorse at sentencing, then rescind the remorse by appealing.
Weatherston’s appeal was a foregone conclusion – he has nothing to lose. Probably a Supreme Court appeal after that.
This case has been a sick pantomime. The man was caught red handed. A 2 hour trial THE DAY AFTER would have been more than adequate, just like used to happen when trial by jury was first initiated.
The trial arguments and witnesses were a spurious and irrelevant – a tax funded ‘cruel and unusual punishment’ of Sophies parents. The crazy delay meant he had time to make up crap like the knife was for self defence and Sophie attacked him with scissors.
Why does the “Justice” system torment victims so badly?
I have seen this obscene system through the trial and appeals of my daughter’s murderer. I hold the system and especially the Judges and defence lawyers in utter contempt for their corruption, dishonesty, inhumanity and arrogance.

Judges give credit for supposed remorse, which is never altered when the thug changes his mind and appeals. Knowing that they will get sentencing credit, Judges and Lawyers encourage the guilty to fake remorse at sentencing, then rescind the remorse by appealing.
Weatherston’s appeal was a foregone conclusion – he has nothing to lose. Probably a Supreme Court appeal after that.
This case has been a sick pantomime. The man was caught red handed. A 2 hour trial THE DAY AFTER would have been more than adequate, just like used to happen when trial by jury was first initiated.
The trial arguments and witnesses were a spurious and irrelevant – a tax funded ‘cruel and unusual punishment’ of Sophies parents. The crazy delay meant he had time to make up crap like the knife was for self defence and Sophie attacked him with scissors.
Why does the “Justice” system torment victims so badly?
I have seen this obscene system through the trial and appeals of my daughter’s murderer. I hold the system and especially the Judges and defence lawyers in utter contempt for their corruption, dishonesty, inhumanity and arrogance.

Stephen, Can the Court increase the sentence when only the conviction is a appalled and not the sentence? If so, maybe the Crown should appeal the sentence.

Chuck. The Crown can appeal the sentence, but they won’t because they don’t want to upset the Judge and face them the next day on another case, because they won the case and don’t really care about the sentence and because they have the conflict of interest that they are the “Court’s friends” a duty to keep court time and costs down, which conflicts with their moral and theoretical duty to appeal.
Also, they know that precedent will prevail and any adjustment will be minimal, because major increases would put the system in disrepute in the public eye.
So the old boys all stick together.
This is the corruption I referred to earlier. All involved look out for each other and screw justice, the public and the victim.

Harry, sorry about you daughter. It must be hard to think logically when you are emotionally involved. Weatherston is scum but we do not want to deny someone else a fair trial because of it. Particularly someone defending them selves or family.

I have put in a submission to keep the defence of provocation but penalize those like Weatherston who use the defence without merit. I have use Stephen’s examples.

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Harry Young, while it is of course sad that you lost a member of your family, the loss of a loved one is no reason for the statements you make. I am guessing that your daughter was one of the two young women killed by Lipene Sila, namely Jane Young. If so, then your statements regarding his counsel are groundless. I know full well of his integrity and utter dedication to his job. Their is not an ounce of corruption in him. For your information, if I have the correct case, then the defence lawyer you so criticise is also regularly conducts prosecutions on behalf of the Crown in his area. I do not seek to minimise your loss, but you direct your ire at the wrong person. If I have the wrong case then obviously my comments do not apply and I will make no further comment on that issue.

However, in the case of Weatherston the Crown only argued for a 19 year minimum period of imprisonment, and Weatherston recieved 18 years. So, rather than Crown not appealing because they don’t want to upset the judge or wish to stick with the ‘old boys’, they won’t appeal simply because there was only a small difference between what they asked for and what was handed down. They got pretty much what they wanted. Some of us thought they would go for much more, but we were wrong about that and that is the Crown’s right based on their reading of the previous case law.

Weatherston’s appeal was not a foregone conclusion. It has taken much of the defence bar by surprise. In my view it is telling that his trial lawyer is not the one taking the appeal. In fact, from my reading of the reporting around this issue, it appears that Mr Lithgow QC hadn’t yet been instructed by legal aid when the appeal was filed, so it is entirely possible that Weatherston filed the appeal himself. After all, he is the one who has to sign the appeal papers.

Stephen, just a couple of points re your post: First, Weatherston bhas an absolute right to appeal under s383 Crimes Act. The CA doesn’t have the ability to refuse permission to appeal if he does it within time and if Mr Lithgow QC is instructed by the LSA to appear on Weatherston’s behalf, the appeal already having been filed without him being instructed, then I fail to see how it can possibly be that the appeal was filed because it would prove lucrative to Mr Lithgow. In fact, the rate of pay for Mr Lithgow will be much less through legal aid than he would earn on a private matter. If you have a problem with the right of Weatherston to apppeal, and he may well have done it against the advice of his former counsel, then your issue is not with the Court of Appeal nor with the defence bar, but with Parliament. Why, if this is such a problem, in your time in Parliament, did you not try to amend the Crimes Act to remove the right of appeal and make any appeal subject to a grant of leave? That would have fixed the issue.

Secondly, and this is one that I am surprised you have got wrong as I have always viewed you as having the figures at your fingertips. You make the point that “the numbers of lawyers, and the length of trials has rocketed” in your comments. You are correct that the number of lawyers practicing in NZ is today at an all time high of about 10,700 lawyers. That number has indeed skyrocketed in the last decade or so.

However, contrary to the point I take you to be inferring in that statement, the actual number of criminal defence lawyers (as shown in LSA figures, which is most of them) has stayed constant over the last 10-15 years and as a percentage of the profession has dropped in the last 10-15 years from over 12% to under 9% of the profession. Those numbers include all persons who do even one legal aid case in a year. In fact, most criminal defence work in this country is undertaken by about 3% or so of the profession, or between 300 and 400 lawyers out of 10,700.

This percentage drops every year and as the criminal defence bar gets older the numbers of young criminal lawyers is dropping fast. The attacks on the criminal defence bar by Minister Power, Attorney-General Finlayson and by respected commentaters such as yourself, and by talkback hosts such as Michael Laws and the media, has seen the morale of the defence bar drop to all time lows.

So, the number of commercial lawyers is increasing rapidly. The number of Crown Prosecutors and Police Prosecution Service lawyers are growing rapidly, but the defence bar is in fact getting smaller and older.

Next, the average length of trials in NZ has grown because we have seen a real increase in large drugs trials taken by the police under conspiracy laws because they police know that having multiple defendants in those types of trials make convictions more likely. Were I prosecuting I would do the same. These large, multi-defendant trials always take much longer than single defendant trials and the average figures show that increase. Most of it relates to Auckland, especially the High Court figures. We have also seen an increase in trials as police charge more people indictably, something the police choose far more often than the defence does. In reality, however, most trials are over with in 1 to 3 days, just as they always have been.

I understand that there is an amount of frustration that families feel when their cases proceed to appeal. However, in a criminal justice system where people are innocent until proven guilty and where we allow the right of appeal, we shouldn’t criticise the courts or the defence bar for that process. Criticise the appellant, by all means, in private we do as well. However, we should not be criticised for it. Nor are the appeals lucrative. Appeals to the High Court are a joke and make the lawyer concerned a loss each time. Appeals to the Court of Appeal are better paid, but most appeals are dealt with for less than $3000 -$4000, which for the work we do is cheap and contains an element of pro bono work in it. Try seeing what an appeal to the Court of Appeal would cost you privately. Then go and ask Mr Lithgow what he would charge privately and it goes up again.

Stephen, this appeal is not a reproach to the Court of Appeal. If it is a reproach it is one to Parliament. It is up to them to fix it.

[…] you see the one about . . . Weatherston appeal reproach to Court of Appeal – Stephen Franks speaks sense on meritless […]

There is a slow but progressive rage building among ordinary New Zealanders at the sophisticated tragicomedy which the justice system has become.
A lack of financial corruption does not mean a lack of moral corruption and I fear it is the latter rather than the former to which Stephen refers and the cause of the public disquiet.
Weatherston represents pure evil. At least this in some measure is understandable and we depend on the Justice system to deal with his kind, but we feel utterly betrayed by those in silk who feel no moral perogative to simply ensure that once caught in the most blatant and unquestionable circumstances they are promptly and fairly tried with minimum opportunity to cause further harm and trauma to those already wronged and then locked up for long enough to do no further harm.
I do not care how that is achieved, but I know the present system is not achieving it and no amount of spin or sophistry will cover that discontent. I cannot see how any “fair” publically funded system would allow further harm to be done to the victims by revictimising them in court for the amusement of an unrepentant and evil man.
It is better for those learned souls to turn their minds to how society may be better served by the law, than to have change forced upon them by politicians panicked by angry voters into truly draconian measures.
Right now, draconian measures have significant appeal to me and I am sure many others too!

Jim, what exactly would you change about the criminal justice system. Leave out tougher sentences because they are a given in most people’s minds, but could you tell me what systemic changes you would make, if you could, to prevent ‘revictimisation’ and make the system work?

Reinstate the gallows.

I believe the absolute right to silence is a traversty. A change to this is being looked at already for some crimes and I know with regard to tax liability it does not exist.
I loathe the idea of concurrent sentances and equate them to the idea of paying three fines of five hundred dollars, one of seven hundred dollars and one of nine hundred dollars with the same thousand dollar cheque and holding your hand out for the hundred dollars change. I feel conned every time I see someone has comitted an offence on parole and the unserved time is not added to the new sentence automatically. Effectively no one can be recalled to serve their original sentence without comitting another offence and their debt to society for the original offence is conveniently forgotton. I cannot understand why Judges guard against “ad hominum” or “post hoc ergo propter hoc” type arguments by prosecution witnesses but give the defendant or his/her lawyer latitude to exploit these in the minds of gullible jurours. Finally to come back to Weatherston, the same legal system which regularly tells people it lacks the resources to take up or even continue many worthy cases will allow itself to be “played” outrageously by someone so overwhelmingly and obviously guilty and in doing so, add insult to the already terrible injury he has caused. Enough already, simply tell him “No! You have had a more than fair hearing, go away!”

If I can add to the list. It is just plain wrong that the Judiciary censors the victim impact report. After the offender is found guilty the victim should have the opportunity to say their piece without let or hinderance. This is the only opportunity they have and to deny them (even with the best of motivation) is to stand against any chance of the victim feeling that they truly are involved in the process as a sentient human being, and not just another piece of evidence, to be toyed with by a lying defendant and used and discarded at the whim of the prosecution.

The Law is an ass, however we talk it up. LOL

I found the news on the twitter feed last night.Great news,i srpead around a few forums.But Oh dear the judges comments,you don’t beleive in their system your mentaltaly ill ordelusional wtf.There seems to be alot of attacking of conspiricy theorists and truthers of late.Operation northwood was once a conspiracy M’lud.Well done to Normans team, good luck for the future Norman.