Russell Brown's HARD NEWS

22nd February 2002 - Judge Dread

Copyright © 2002 Russell Brown

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ah, the case of the porn-perusing judge. It began as a scandalous story in the Sunday paper and it ended up as a really admirable illustration of why, under our system, politicians are, and ought to be, kept well clear of the judiciary.

It was the Internet, of course. If, 15 months ago, Justice Fisher had watched the same porn movies on a hotel-room television - "The title of your movie will not appear on your bill" - there would have been rather less moral panic.

On the other hand, it appears the Department of Courts did have something like an acceptable use practice for its IT system - and Justice Fisher ignored it. Thus, it is entirely reasonable to say: Justice Fisher, we, the taxpayers, do not wish to pay for bandwidth, equipment and time so that you can you can watch porn movies on your work computer. We are pleased that you have recognised this. Do not do it again.

In some workplaces, it would have been enough for a sacking. In many others, just a warning. In our system, that decision is left to the Chief Justice, Sean Elias, who had long since dealt with the matter as she saw fit.

But as the story grew, so did the clamour. Wellington Women's Refuge demanded the judge be sacked on the basis that because he had looked at pornography, he supported the degradation of women, and therefore could never sit on a rape, assault or murder case. Their position would have had a little more authority had their chief executive not so recently told everyone that she liked going to strip clubs.

Helen Clark went on TV dropping broad hints that Fisher should walk the plank - which is, of course the action expected of anyone who might take the shine off her government. National's Wayne Mapp went further, issuing a silly press release demanding that Fisher be suspended.

I actually felt sorry for the attorney general Margaret Wilson, who dutifully - and repeatedly - explained on the Holmes show that dismissing judges was a major constitutional act, and would probably not be warranted in this case.

Then, the next morning, with Kim Hill, she was accused by Stephen Franks of the Act Party of conducting a feminist witch-hunt against Justice Fisher. He claimed she was trying to take out the judge because he might at some point comment unfavourably on her Property Relationships Act.

It was a silly enough theory rendered laughable when it was pointed out to Franks that the source of the original leak to the Sunday Star Times was his colleague in the Act Party, Rodney Hide. The subsequent story was the only reason Wilson even got to hear about it.

No doubt, if she'd declined to comment, Franks would have been demanding to know why. Hide's subsequent attempts at self-justification were hilarious. All very earnest. The reporter did all the work, honest. But really, as the author of a letter to the Herald pointed out, what he did was light the fuse and run away. He is a schoolboy.

But he'll be leader of the Act Party before too long. The National Party has done its polling and doesn't think it can sell the public a coalition in which Richard Prebble has a leading role. The moneybags are tiring of him. He's dog tucker, sooner or later.

So, the Stephen Wallace case; tossed out of court after depositions ended this week. Perhaps, in the circumstances, the prospects for a successful murder conviction were slim. Nobody envies the police in their job of fronting up to the crazed and dangerous. But this was not, it seems to me, a pointless prosecution. It showed up what is wrong with the Police Complaints Authority.

No law broken, end of story, said the authority some time ago.

The detail, we were able to discover by means of the hearing, was a little more complicated. There was a failure to follow basic police procedure after the shooting. No blood test, no photograph of the shooter in the clothes he was wearing.

There was sharp criticism of the police response by former policemen - or members of the "disaffected ex-coppers' club" as the defence had it - and, of course, the matching endorsement of every action, from serving police officers who testified with a unanimity that The Borg might envy.

There was the witness who heard Constable Keith Abbott say "We've been after you for a long time, Dave" before he shot Stephen Wallace. Who the hell was Dave? Why didn't they wait for the dogs before grabbing their guns?

The way this was dealt with was also more than passing strange. Why was such a controversial and significant prosecution - which had excited comment as far up as the Prime Minister - handed to a couple of JPs and not a judge to assess?

The Police Association's highly eloquent spokesman, Greg O'Connor, was quick to declare that New Zealanders could sleep safely again. Others will have thought that this was a case where the system didn't work as well as it might have and everybody decided to just pretend it did. The Police Complaints Authority must be improved.

O'Connor was unwisely flippant in commenting on the result of another court case this week. Last year, Chris Fowlie was searched in a police sweep up K Road and found to be in possession of a tiny quantity of marijuana. He could have accepted diversion, but, bless his heart, he decided he wasn't going to take it.

And Justice Gittos agreed. To convict Fowlie, the judge said, he would have to find that the search was reasonable - and thus that Fowlie and his witness were lying. He didn't believe that was the case, so he had a conflict of evidence. He was thus obliged to extend to the defence the benefit of the doubt.

Furthermore, he worried that what even the police described as a "sweep" by a Team Policing Unit might involve "Officers engineering opportunities to conduct personal searches of persons minding their own business in a public street at random or on a purely speculative basis. It needs hardly been [sic] said that such conduct would manifestly contravene the New Zealand Bill of Rights Act."

O'Connor popped up afterwards, declaring that he considered a smell of marijuana smoke fair grounds for a personal search - personal in this case meaning Fowlie being forced to unzip his trousers in a public street. This is to miss the point. There was no smell of marijuana. Chris and his friend had not recently smoked marijuana. Along with a vanload of other people that evening, they were simply in the wrong place at the wrong time.

It may behove a judge to find that he believes both the prosecution and defence witnesses, but the rest of us might find ourselves thinking that the police would fare better in the community if they just stopped this sort of nonsense.

Speaking of nonsense: TV3 takes a bunch of taxpayer money to make a new drama series, The Strip - and then puts it up opposite one of the best local drama series of recent years, Mercy Peak, which is also funded by NZ On Air. Does anybody else think this is a foolish use of a limited pool of money? Can anybody do anything about it?

Now Twenty years ago, in my second year in journalism, I was posted to the Timaru branch office of the Christchurch Star. It was not good. The work was pretty dull and most of the people I lived and hung out with were, frankly, complete idiots. Life was lightened chiefly by occasional visits to the local record shop, where the owner and I would smoke pot out the back.

But then I moved into a better flat and, as you always can in provincial towns, met and befriended the interesting people. Amongst them was a freaky, part-Tongan kid who the year before had been kicked out of school - for, it always seemed to me, being too talented. He drew cartoons, played guitar, sang and wrote songs for a weird little band he had with a couple of his mates. He was gentle, a good guy to know and, of course, quite a physical specimen.

His name was Kevin Smith. When I first met him, he was this bundle of stuff who didn't quite know what he wanted to do - apart, perhaps, from being an All Black. It is cruel that he has lost his life when he not only knew what he wanted to do, he was doing it. Crueller still that he leaves behind Sue and the boys. We've been thinking about that a lot in our family.

I can understand that people will want to on the circumstances of his fall. I could do without hearing it. I've looked across the endless span of China from a high point. It is a fine thing to do when you're feeling on top of the world yourself.

I expect some of you are feeling Kevin fatigue. All those headlines, all those tributes. But it can't be helped - he really was the guy that everyone knew and everyone liked. He was magic.

And, like I said, he once sang in a little band called Say Yes to Apes. They liked Radio Birdman and Sun Ra, although I think Kevin mostly just liked to sing and play. They were only the second New Zealand band to release a double album; the magnificently-titled 'The Decline and Fall of Say Yes to Apes', aka 'Trance of Savagery' by Max & the Puffins.

I want to play a tune from their 1984 7" EP, Knife. It's called 'This is Your Lucky Night' and it's kind of their country song. Lord knows what anyone else will make of it, but it's one of my favourite songs. Cheers, Kev.


Russell Brown

This week's Hard News, including 'This Is Your Lucky Night', can be heard at

The recording is as broadcast. I would have liked to have posted a stand-alone file of the song at, but I don't want to do that without approval from at least one of the former band members. If anyone knows Pat Faigan or Steve Watson, I'd appreciate it if they could get back to me at .

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