Stephen Franks

Stephen Franks comments on the changes that Judith Collins is making in Justice to repair the damage caused by Simon Power and the liberal elite he pandered to.

The Hon Judith Collins justifies the ordinary voter’s support for National. Her  preparedness to establish a register of convictions is another example.

Let’s hope that she makes it simple. The current system has converted “open courts and justice being seen to be done” into a hollow slogan. A Press editorial advocates simplicity as far as it goes – but that is not far enough.

The record should be open. What happens in open court should be on that record. It should mean that people ‘live down their crime’ if people who know their offending gain confidence in them from long term reliability. That is not the current version. System defenders claim without research evidence that not being caught and living among unwitting associates is rehabilitation.  Read more »

Grant Robertson will be suffering in his jocks with the post from Stephen Franks today. He probably won’t suffer too much as he is reputed to use fabric softener on his jocks and with his leadership challenge weight-loss programme going along nicely there is a bit more room as well.

Franks though gives him and his shopped lines to the media a good kick in the slats.

Interesting to see even the sophisticated Peter Cresswell parrotting the establishment line that Ministers should stay out of appointing their own direct reports.

But disconcerting that he casually throws in “separation of powers” as if Key has infringed some constitutional principle.

Peter that convention/principle urges separation and mutual respect and a balance between the Executive, the Judiciary, and the Legislature.

The Prime Minister is the leader of the Executive. He should have a vital interest in who reports to him, in every portfolio. The current convention that Ministers get a veto power after an independent vetting process is not prejudiced by a Minister shoulder tapping candidates to suggest they put themselves forward. Separation of powers is an important constitutional protection. It is cheapened by attempted application to criticise actions entirely confined to the Executive.  Read more »

Stephen Franks is like his name and he doesn’t shilly-shally around in discussing the appointment of Dame Susan Devoy as Race Relations Commissioner.

The appointment of Dame Susan Devoy, could be a wasted opportunity despite Michael Laws’ instinctive judgment that it can’t matter because it is a non-job.. I’ll wait to judge. She could be a success as stuning to the media chooks as  Lockwood Smith’s Speakership. But I wish the Minister had used the sinecure position to install someone more likely to take on the racism of the Treaty industry from a position of academic superiority.   Read more »

Stephen Franks has even more disdain for what he calls the ‘100 Prominent Numpties‘ than I did the other day:

I’ve had feedback on my radio scepticism (Jim Mora’s Panel Thursday last) about the “Appeal to Parliament” group promoted by Sir Alan Mark. I said they were wasting their time, that I’d have to be paid to listen to their list of concerns because it sounded like Moaning Report concentrated, and that they were likely to generate the same reaction as ‘Citizens for Rowling” – that is anti-elitist resentment.  Read more »

Stephen Franks is a thinker, he can be dry sometimes but he does think things through. He was recently on Radio Live with Marcus Lush talking about the Green Taliban and their plan to stop foreigners buying houses.

As sometimes happens in a genuine conversation, I realised that the issues could be summed up simply. Prices go up when supply can’t increase to respond to demand. There is no a shortage of building supplies, or builders. So foreign buyers’ money can only affect prices if there is a shortage of land to build on. But New Zealand is not short of land. It is short of consents to use land. And probably more important than the supply of new land, is the cost, delay and risk in trying to intensify the use of land that is already built on, nearer the centre of our cities.

In other words, our housing problem is the inevitable consequence of the political success of selfish middle and upper class families, working with  their stupid green children. They enforce their aesthetic preferences for the status quo (labelled as ‘heritage’) by locking newcomers out of their leafy and quaint inner suburbs. The RMA has frozen the dynamic processes of rebuilding and intensification that have created all great cities (and our own towns and cities up till 3 decades ago. The result is that poorer people must pay for more expensive housing ever further from where the work is.  Read more »

Stephen Franks blogs about the case where the alleged murderer of a Waihi man, who was on bail at the time has applied for bail for this new crime.

The 18 year old charged with murdering Murray Wilkinson outside his Waihi caravan applied for bail again yesterday. Bail was denied but I’m told that his QC indicated he would try again.

The accused has name suppression so we can’t learn the truth about him but if today’s judges had half the common sense of previous generations’ such an application would be unthinkable. Our courts are pathetic about discouraging wasteful and abusive procedures.  But then they are handicapped by what should be shame, but is probably instead passive recognition that it could be years before the case is tried. They have to at least consider whether the presumption of innocence is compatible with holding an accused for so long.  Read more »

The Anita Killeen case goes from bad to worse, and one can’t go past the erudite conclusions of Stephen Franks:

Behind the NBR paywall is a depressing report that the judge (Mary-Beth Sharpe) had tried to reserve rights to censor Radio New Zealand coverage of the trial.

The Herald has taken the story up, and we are reminded that earlier proceedings were made secret.

The overall impression from what  is public, is of prosecution and defence as a privileged profession colluding with its even more privileged members in the judiciary to shield favoured members in ways that they would not for ordinary people.

Good judges often do, and should,  approach lawyer defendants rigorously. We should know better, but more importantly on the Casear’s wife principle, lawyers should accept that the courts will err if necessary  to emphasise that there is no favouritism.

My initial post focussed wrongly on the gender and class issues. This is now a  more serious case which appears to present favouritism from the prosecution, indifference to the victims, and the misuse of the power the Court should never have been given,  to keep it all secret for as long as possible.

It takes a lot to make Stephen Franks angry..but angry he is, over the pathetic case of Anita Maria Killeen:

Honest lawyers would not forge documents to damage an enemy. And if their medications made them susceptible to such  temptations they would be so mortified on realising what they’s done that they would not try to evade detection. They would confess and seek better treatment and not work while they were exposing their clients to such terrible judgment.

So lets hope the Law Society now promplty and publicly takes a position to ensure that Ms Killeen is never again in a position to discredit the profession as she has today. There are plenty of satisfying jobs for people with legal training and experience that need not leave them in the profession. We do not need  more reminders of the inequalities that benefit middle class, white female defendants caught in disgraceful conduct.

I note that the Crown did not oppose the discharge without conviction. Presumably they accept the medication excuse. That might protect the judge from appearing hopelessly credulous, though I doubt that the publice will appreciate the significance of the Crown position.

We must support such judging from time to time as the price of judicial independence. But it makes it very hard for lay-people to respect the institution.

Stephen Franks comments on the Red Devils case where an activist judge let 21 harden gang members get away with their crimes:

Herald writer John Roughan puts the layman’s case against Simon France J’s stay of the Red Devil prosecutions mentioned in my Thursday post.

Though he probably feels no need for them, there is also legal logic against what the judge did. Hopefully it will be tested on appeal in this case.

Having now read the judgment I can understand the judge’s outrage. I would not have been as charitable as him about the police serving up a late-manufactured purported ops manual entry.

From the judge’s account there should be prosecutions for false swearing or some other perjury or serious deceit charge.

But on the judge’s own statement the deceptions, including the deceits involved in being undercover, have no connection to the charges he then stayed, including the evidence on them.

So his reaction is no different in principle from the operating strategy of terrorism – injure innocent third parties to coerce those you think should obey you.

Terrorists believe their purposes over ride all others. Their objectives are so pure that the suffering of those they injure as tools is just a necessary price. Their ends justify their means.

Comparing a Judges actions to those of terror organisations is certainly novel.

Or when they have to acknowledge the hurt of those they choose to sacrifice, they may impute collective guilt to the whole class who may be victims (capitalists, citizens of the great Satan, Christians, Jews, night club patrons, Shia – to Sunni and Sunni to Shia)to justify hurting innocents with no power to make the decisions sought by terrorists.

They often turn to terrorism because they can’t overcome safeguards in the usual procedures (such as persuading voters, or getting a privilege or decision in due process).

The Red Devil case judicial approach is indistinguishable.

The case against the Judge strengthens.

Judges who trash prosecutions to punish breaches by particular Police officers seem to feel they have no lawful direct power over those they want to control or to punish. Perhaps the lawful procedure has what they consider to be inadequate sentence. Perhaps the process is cumbersome or gets less attention.

Welcome to the law as citizens experience it every day.

But citizens are told smugly that they have no excuse for taking remedies into their own hands. And they certainly have no excuse for taking their deterrent vengeance to an organisation that employs the wrongdoer. Do we see support from judges for wronged individuals taking out their frustration on associates or colleagues of the wrongdoers?

As John Roughan makes plain, staying a prosecution punishes the community, and perhaps not even the police officers who are culpable.

Yes, the actions of the judge do punish the citizens of Nelson. He is an activist and petulant Judge.

Those who pay the highest price for a stay are the next victims of offenders who would have been in custody or deterred by the charges proceeding. Next comes the community’s trust in the law.

If the consequence is the emboldening of a gang the outcomes of this application of the terrorist approach could be as dire as the physical harm of “normal” terrorism. To the extent crime rates generally are affected by any obvious ineffectiveness of the law the decision could have as many victims as a bomb targetting random innocents. The bomber says ” I destroy or kill something or someone valuable to you if you do not behave as I want”.

While Judge sit aloof in their courts they run the risk of losing touch with the communities they are supposed to serve. This si the problem we face with tenured, padded and cosseted judges. This problem is exacerbated when they are FIFO (Fly in, Fly out) judges as is the case with Simon France. He is based in Wellington and so can safely go home while 21 hardened criminals roam the streets of Nelson as a result of his decision.

Stephen Franks makes a reasoned and sage assessment of the travesty of this judicial activism, many including me are not so subtle.

ᔥ NZ Herald

Stephen Franks has a column in the NZ Herald about the elected dictatorship that exists at the Auckland Council:

The Auditor-General is unlikely to fix Auckland Council member Cathy Casey’s complaint that the council was kept in the dark on the V8 race subsidy. The law setting up the Super City deliberately created a presidential mayoralty and gave councillors no clear rights to information.

It certainly does not protect council officers who want to provide unbiased information to councillors against the wishes of their bosses, the chief executive and the mayor.

The law may have been drafted out of frustration with years of indecision fuelled by endless reporting and consultation as excuses for inaction. Perhaps the law’s designers chose to give elected dictatorship a go instead.

There is building anger with what Len Brown is up to, his latest stunt over the rail loop funding is now causing genuine anger.

Amazingly till now there has been little publicised protest at the constitutional barbarity of this structure. Without clear rights to the same information available to the executive they must monitor, councillors become spare wheels.

“Carping critics” who are also unavoidably ignorant are in no position to maintain the safeguards of democratic control.

Conflicts of Interest is interesting considering all the Brown hacks rewarded with cushy directorhips under Brown.

The Auckland mayor holds central power in a hybrid Westminster/presidential system without separation of powers. Unlike all other mayors in New Zealand he is not first among equals. He is the boss.

Auckland Council workers report to his chief executive (not the council) and some have been told their duty is to implement the mayor’s vision.

Even if his vision is cock-eyed and myopic with some serious astigmatism? One good thing though is if he is the boss then the buck stops with him.

All that may be a useful reform, but it is not obvious where representative democracy fits in. There is plenty of consultation, the lip service version of democracy that is drowning councils and ratepayers across New Zealand in empty process but doing nothing to entitle councillors to timely answers to their queries.

Worse, there is no equivalent to central government’s State Services Commission code for state servants, or the parliamentary conventions that oblige officials to provide honest and impartial advice to MPs in a select committee, and protect them from senior wrath when they give it.

Current law requires councils to have a code of conduct for councillors. It should be extended to officers.

The current boards, despite Brown’s promise they would be relevant are nothing but lip gloss on lip service. Witness the mess at Manurewa when Brown countermanded the wishes of the community. The council officers and Len Brown are running amok…proper constitutional and governance reform is needed.

Auckland badly needs a constitutional upgrade. Version 2 should enshrine the right of councillors to information. It should protect and constrain council employees along the lines of the State Services Commission code that guides public servants and protects the impartiality of their service.

Auckland Constitution 2 should also require council consultants to certify their work to councillors. They are now a vital part of local government quality control.

With intense competition and Auckland being the major employer of many consultants, the temptation is too great for consultants to tell council officers (who control where the next contract goes) what they want to hear.

Share prospectus law deals with similar pressure. Expert names are used to persuade people to invest. So they must certify references to their work. That would deal with a problem my firm has seen recently in helping Auckland clients, where low-quality professional reports were described to councillors (and in public documents) as if they said more than they did, and leaving out the weasel exclusions in the actual reports.

Consultant reputations would be better protected against misuse if the consultants had to certify that “summaries, references and extracts of their reports are fair, balanced and properly informative for their intended purposes in the form and context in which they appear” and if they were liable for false or reckless certification, as company directors are.

Such constitutional upgrades could be in the Government’s announced local government reform bills.

Sensible stuff from Stephen Franks, why isn’t he on some government boards that could do with his clear intellectualism and frank speaking.