Taking the Law Into Your Own Hands

September 1st, 2005

Last Sunday if you read Deborah Coddington’s column in the Herald on Sunday you’ll know part of a story about a man who caught a would-be burglar and called the police to come and collect him. This Sunday evening, if you watch TV One’s Sunday program you’ll get an update.

Deborah told about Michael Vaimauga a 24-year-old father of four who works as a dispatcher and lives next to the Guthrie Bowron store in Panmure. “Vaimauga woke at 4.30am last February to the sound of three guys smashing their way into the store. Did our hero go back to bed, ignore a crime taking place under his nose, and bury his head under the pillow muttering ‘not my problem’? No. He phoned the police, grabbed his baseball bat and shouted at the would-be thieves to stop. When they took off, he chased one, whereupon he was attacked. Vaimauga responded in kind with his baseball bat and felled the attacker with a blow to the shin. He then dragged him down the road to the service station and waited for the police”.

The police duly arrived, talked to both men, then arrested Vaimauga for assault and sent the other guy to hospital. After losing time off work for at least five court appearances this young man with no previous convictions was discharged without conviction, but the judge ordered him to pay $150 to a charity. She told him he must not take the law into his own hands. The would be burglar was never charged.

The man should have got a medal. His legal aid lawyer was paid $910. With four kids the days off work hit Michael and his family hard. I’ve sent him my own practical medal – a small contribution toward the costs of those days off work.

Do watch the programme on Sunday. If you too think Michael needs such a medal send me a cheque made out to him, and I’ll ensure he gets them. Letters can be addressed to me without postage at Parliament Buildings, Wellington.

The TV programme will reveal a lot about the attitudes of the police, and judges – the insiders of our criminal justice system. But there is a lot TV won’t have time to include.

As soon as I heard about the case I sought access to the court file. That was over a month ago and still I have not seen it.

I’ve explained to the court that I do not like to propose changes to the law, or criticise decisions, without knowing as much as I can find out. I got Vaimauga’s consent to disclosure, and the court now has it in writing.

First, a court clerk referred my request to the Minister for Courts for vetting. I went to the court office. I’ve now heard from the Chief District Court Judge, Judge Mathers, and the Minister, that the court clerk was mistaken in telling me there was a protocol requiring such referral, and that the decision is for the judge alone. I have not heard what they are going to do to shore up understanding in the Registrar’s office of the concept of judicial independence from the Executive.

I suspect that this is another case where the justice system has stolen a precious right from the man charged. The judge told Michael that he should not take the law into his own hands.

But the law was already in his hands, and in our hands, and it always has been. It does not belong the system insiders – the judges, police and the lawyers. The Crimes Act is clear about citizen’s arrest immunities. Judicial carping at people who take the law into their own hands is now common but that does not make it lawful. The justice insiders may think that citizens arrest provisions are old-fashioned. They may want to confine enforcement decisions and powers exclusively to themselves, but sections 35 to 39 of the Crimes Act have not been repealed. Punishing people who uphold the law is stealing rights from us all. Do you find the following obscure?

“35 Arrest of persons found committing certain crimes. Every one is justified and arresting without warrant any person whom he finds by night committing any offence against this Act.

‘39 Force used in executing process or in arrest. Where any person is justified or protected from criminal responsibility … in making… any arrest, that justification or protection shall extend and apply to the use by him of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the… arrest made by reasonable means in a less violent manner”.

Every controversial prosecution in effect narrows these provisions. Why prosecute? It might be different if the police could even credibly pretend to be able to stop such burglaries. When the state can’t protect people and their property it has no right to stop the brave volunteers who try. This is not a call for vigilantes. Michael did not set out to punish the offenders. He tried to bring them to justice.

I am campaigning for the right of individuals and the community to defend themselves. It is a campaign for existing rights, and for restoration of rights lost to politically correct practice only in the last 25 years. New Zealand will never re-attain the low violent crime we enjoyed until 30 years ago until we have restored the routine expectation that people will defend themselves and others against criminality. This campaign is a call for the courts and the police to uphold the law themselves, even if they don’t approve of it.

Dr Martin Lally of Victoria University read last Sunday’s Herald and copied to me his letter to the Minister for Courts. You can see the message he has taken from the case in these excerpts:

“1. The fact that the police were unable to locate the victim of the assault is rather disturbing. Obviously, he is entitled to compensation (and should probably get it if he can secure appropriate legal services at the taxpayer’s expense). I trust you will spare no expense in attempting to locate him for this purpose, and institute procedural changes to ensure that these sorts of errors do not recur. …

3. The fact that the Judge ordered Mr Vaimauga to pay $150 to a charity is rather disturbing. I thought our courts had got well past the point of compelling anyone to do anything. Of course, the circumstances were exceptional (taking the law into one’s own hands in defense of private property is obviously serious stuff) and she doubtless took this into account in departing from the accepted practice.

4. It is commendable that Judge Mather asserted that taking the law into one’s own hands is unacceptable. However, she should have added that there are NO exceptions to this general principle. Some misguided members of the public might, for example, feel that had Mr Vaimauga witnessed rape, it would have been acceptable for him to confront the assailant and strike him on the shin with a baseball bat. Of course, as we both know, the right course of action here would be to ring the police and patiently await their arrival (and this would remain true even if the call did not get through, or the location was misunderstood by the dispatcher, or a taxi sent in substitution).”

Here are some recent Ministerial questions. A lot more in this genre will be posted on the ACT website. To me the answers are contemptuous of the public. What do you think?

Questions for Written Answer

Received 4th August 2005

Question: 08412 (2005) Published – Police – Corrected Reply

Portfolio: Police

Minister: Hon George Hawkins

Date Lodged: 20/07/2005

Date Received: 03/08/2005

Question: What steps, if any, has he taken to encourage people to oppose crime and apprehend offenders using the rights set out in sections 34 to 48 of the Crimes Act; and if none why?

Answer: I have not considered it necessary to encourage people to exercise the rights set out in sections 34 to 48 of the Crime Act, as the public continues to assist Police in the prevention of crime and apprehension of offenders.

Question: 08421 (2005) Published – Police – Corrected Reply

Question: Does he think the police should issue statements criticising as foolhardy the actions of people who actively oppose criminal actions, or attempt to apprehend offenders?

Answer: I agree with the advice given by Police and Neighbourhood Support New Zealand cautioning members of the public to act within the law and to not take unnecessary risks when confronted by criminal offending.

Question: 08404 (2005) Published – Police – Corrected Reply

Question: Is there a police or government policy preference to press charges so that the court can decide whether the use of force was justified in defence of self or another or in attempting to stop offences by another, instead of exercising the discretion not to prosecute even where the police consider that conviction is less than likely, and if so what does the Minister think of that policy?

Answer: There is no Police or Government policy preference to press charges so that the court can decide whether the use of force was justified in defence of self or another or in attempting to stop offences by another. I am advised that the outcome of the Police’s exercise of its prosecutorial discretion depends on the circumstances of individual cases and the Solicitor-General’s prosecution guidelines. This response also answers parliamentary question for written answer No. 8410 (2005).

Question: 08410 (2005) Published – Police – Corrected Reply

Question: What weight do the police give to their effect on public willingness to help prevent crime or to apprehend offenders, before prosecuting people who have acted with such motives?

Answer: I refer the Member to my response to parliamentary question for written answer No. 8404 (2005).

Question: 08414 (2005) Published – Police – Normal Reply

Question: To what extent, if any, does he consider that police should have special powers or privileges not available to ordinary citizens?

Answer: All New Zealanders are bound by the laws of New Zealand. This response also answers parliamentary questions for written answer No. 4815, 8416, 8417, 8418, 8419, 8423, 8424, 8425, 8426, 8427, 8428, 8429, 8430 (2005).

Question: 08430 (2005) Published – Police – Normal Reply

Question: Does he think members of the public should attempt to apprehend offenders, beyond taking details and reporting to the police; and if not why not?

Answer: I refer the Member to my response to parliamentary question for written answer No. 8414 (2005

Question: 08429 (2005) Published – Police – Normal Reply

Question: Does he think members of the public should intervene to stop crime while it is underway, beyond taking details and calling the police; and if not why not?