"We have maintained a silence closely resembling stupidity" - Neil Roberts

Until we have legislation adopted into law to ensure fiduciary accountability and transparency in public affairs we will continue to have human rights breached because the existing crown immunity and lack of any independent oversight invites corruption to flourish.


"Question authority, and think for yourself" - Timothy Leary


"We have maintained a silence closely resembling stupidity" - Neil Roberts


"Information is the currency of democracy" - Thomas Jefferson


‎"Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever does." - Margaret Mead

"The truth is like a lion, you don't have to defend it. Let it loose, it will defend itself."

"I = m c 2 [squared] where "I" am information" - Timothy Leary

"Ring the bells that still can ring, forget your perfect offering, there's a crack in everything, that's how the light gets in." Leonard Cohen

"The internet is a TV that watches you"

Sunday, June 23, 2019

Shortcomings of the Harmful Digital Communications Act:


The following Minute has been issued by the Court regarding civil proceedings against the writer under the Harmful Digital Communications Act:


ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES

IN THE DISTRICT COURT AT HAWERA

                           BETWEEN    L  
                                                  Applicant


                            and                R
                                                  Defendant


  
                   Date:                                  18 June 2019

MINUTE OF JUDGE G P BARKLE
[1]   [the Applicant] has filed two documents with the Hawera Court in respect of this matter.
[2]   The first is dated 29 April 2019 and is addressed directly to Judge Rowe.
His Honour issued an oral judgment in respect of the proceeding on 18 April 2019.
[the Applicant] raises concern that Ministry of Justice staff had not effected service on [the Defendant] by 1 May 2019 in accordance with the directions of Judge Rowe.
[3]   I am advised by the Hawera District Court registry that the documents were sent to the service document team of the Ministry of Justice on the first working day after Judge Rowe's decision, that was Tuesday 23 April 2019 due to the Easter break. On 30 April 2019, the registry was advised by the service document team that personal service on [the Defendant] has not been effected. Judge Rowe was emailed that advice with a request that substituted service be considered.
[4] Judge Rowe issued directions for substituted service on 2 May 2019. In accordance with His Honour's directions the defendant was served by email at 4.18 pm on 2 May 2019 and advised by text message at the same time. I note   [the Defendant] filed her notice of opposition on 10 May 2019.
[5] There has not been any change to the date of hearing set by Judge Rowe and the telephone conference allocated by His Honour took place in accordance with the direction made.
[6] Next, [the Applicant] seeks to have an amicus curiae appointed to assist her with the proceedings. She states that she does not have a lawyer and requires legal representation. [the Applicant] refers to it being a person's right to have such assistance to access justice and refers to herself having multiple chronic permanent physical health issues. She refers to the application being made in reliance on the New Zealand Bill of Rights Act and the convention for people with disabilities.  [the Applicant] states that the Taranaki Community Law Trust cannot assist her due to heavy workload and she has not been able to secure a lawyer by other means.
[7]   In Erwood v Holmes the role of an amicus curiae in the civil jurisdiction was clarified. [1] Justice Moore noted that the "counsel assisting the Court" nomenclature is now preferred. That is the language employed in r 10.27 District Court Rules 2014 which provides:
10.27 Counsel assisting
At the request of the court, the Solicitor-General must appoint counsel to appear and be heard as counsel assisting the court.
  Justice Moore referred to the decision of Beneficial Owners of Whangaruru
Whakaturia (No 4) v Warin in which the Court of Appeal stated: [2]
What is true of all amici, however, is that they are not parties. They are appointed at the discretion of the court and the extent to which they may file documents and present legal argument is at the discretion of the Court.
[9]   Counsel assisting the Court will usually be appointed where there is a danger that an important and difficult point of law will require a determination without having been the focus of argument before the Court.
[10]                     The role of counsel to assist the Court is demonstrated in the decision of Justice Moore by the Judge setting out a non-exhaustive list of examples of when they are appointed that emphasise the core nature of the role and its primary purpose to assist the Court rather than the parties to the litigation. Those purposes include:
(a)               Cases where important issues may arise for determination, but where a party to the proceedings has chosen not to participate.
(b)              Cases where an issue is raised as likely to affect the interests of a sector or society which is not party to the proceedings.
(c)               Cases involving complex issues of human rights or international law.
(d)              Cases involving confidential information which cannot be disclosed to a defendant or their counsel.
  His Honour stated that• [3]
Counsel to assist should not be appointed where the primary purpose is to help a party when they are unable or unwilling to access a lawyer to represent them, this includes when the party has had legal aid refused to them.
[12]                     The High Court stated that funding is at the expense of the public and as such the Court must hesitate before it appoints counsel to assist where "the purpose of the appointment is primarily to streamline the case of a self-represented litigant in private litigation. "4
[13]                       [the Applicant] has initiated the proceedings under the Harmful Digital Communications Act 2015 ("the Act") on her own behalf. The documentation satisfied His Honour Judge Rowe that interim orders in her favour should be made.
  [the Applicant] has since filed further affidavit evidence and this application seeking appointment of counsel to assist the Court. While the documents are in her own handwriting, they exhibit an ability to understand the requirements of the Act.   [the Applicant] does not indicate whether she has applied for legal aid. The defendant, […], is currently self-represented.
[14]                     In my determination, none of the criteria that are set out in Erwood v Holmes are satisfied. Even though the High Court did not suggest that the list was an exhaustive one, nevertheless, I am not persuaded that the circumstances of this litigation nor of [the Applicant] personally requiring appointment of an amicus curiae.
[15]                     Accordingly, I decline the application of [the Applicant].
G P Barkle
District Court Judge


[1] Erwoodv Holmes [2017] NZHC 1278.
[2] Beneficial Owners ofWhangaruru Whakaturia (No 4) v Warin [2009] NZCA 60 at [21].
[3] Erwoodv Holmes above n 1 at [40]. 4 n I at [58].

_________________________________________

The magnitude of the many and various ironies of this matter will become apparent in due course.

Wednesday, October 3, 2018

Ministry of Social Development uses fake names in Courts:

"This judgment explains why members of a committee, established by legislation to review decisions made by a government department, may not use fictitious names and signatures when issuing their decisions.

Benefit Review Committees (BRCs) are responsible for reviewing decisions made on behalf of the Chief Executive of the Ministry of Social Development (MSD) concerning an applicant's entitlement to benefits under the Social Security Act 1964.

[The Plaintiff] applied to have the BRCs review seven decisions of the MSD.
Decisions from the seven differently constituted BRCs were duly delivered.

It transpired, however, that in six of the seven decisions of the BRCs, the names and signatures were fictitious.

This revelation occurred when [The Plaintiff] appealed the BRCs' decisions to the Social Security Appeal Appeal Authority (SSAA).

Prior to the scheduled hearing of the appeals, Mr van Ooyen, a senior manager at the MSD, filed a memorandum with the SSAA headed "In Confidence" saying that the Ministry had decided that the true identities of the members of the BRCs should be hidden in order to protect Committee members from the risk of being harassed and threatened.

Mr van Ooyen's memorandum was not served on [The Plaintiff], who was not represented by a lawyer.

The Authority responded with a minute conveying its concerns that the Committees had issued decisions using fictitious names and signatures and that the Ministry had attempted to communicate with the SSAA "in confidence" and without involving [The Plaintiff].
Upon being notified of the SSAAs concerns, the MSD applied to the SSAA to withhold from [The Plaintiff] the true identities of the members of the six BRCs who had used fictitious names and signatures.

In a decision dated 15 September 2017, the SSAA dismissed the Ministry's application, saying that there was "an absolute prohibition" on statutory decision makers using fictitious names and signatures unless there was an express legislative basis for them to do so. 
The SSAA also said the MSD's justification for using fictitious names and signatures lacked substance when weighed against the right to open justice, and that permitting members of the BRCs to continue the practise would "seriously compromise" the SSAA.
This was the second time the SSAA had ruled that the names of BRC members must be disclosed to an applicant.

MSD appealed the decision in the High Court under section 12Q of the Social Security Act.
At paragraph 42 of the judgment of Collins J the issue of recusal arises.  Other recent cases involving the question of recusal include Taueki and Mihaka.

At paragraph 43 Collins J notes "The question that then arises is how [The Plaintiff] can make an informed decision about challenging the appointment of members of a BRC, for example, for bias, if she is prevented from knowing their true identities.  The answer is clear.  She cannot.  To conclude otherwise would produce an outcome that is the antithesis of natural justice."

Paragraph 44 upholds the principle of 'equality of arms', which means that the Plaintiff, and not just the Ministry, should have the opportunity to challenge the appointment of BRC members.
Paragraphs 45 addresses the need for legislative authority thus:  "The debate among constitutional scholars about the sources of government power has never been satisfactorily resolved.  In the present case, it is accepted that the prerpgative powers are not engaged.  Instead, there are in theory, three potential sources of authority for the Committees to use fictitious names and signatures namely, implied legislative authority, the "reasonably incidental doctrine" and a concept referred to as the "third source of government powers".  Before examining thse possibilities, I shall first set the scene by explaining the constitutional principles that underpin the need for there to be a source of power for government actions."

After correctly concluding that the Ministry had no implied statutory authority, Collins J turned to the question of "reasonably incidental doctrine", which enables public bodies to do things that are reasonably incidental to the discharge of their statutory functions such as purchasing paperclips without express statutory or common law authority, but not to use fictitious names in legal proceedings.  He correctly concluded that the doctrine was of no assistance to the Ministry and "cannot be invoked to justify infringement of a citizen's rights, particularly a right as fundamental as the right to natural justice."

Likewise, Collins J concluded that actions by the Ministry derived from the third source of government authority cannot override a citizen's right to natural justice.

Counsel for the Ministry then raised the question of whether the law could be "developed" which was firmly rejected by the judge thus:  "Only Parliament can sanction breaches of . . . the observance of the principles of natural justice by  authorising BRC members to use ficutions name and signatures when determining her applications for review.  This is especially because anonymous decision-makers are a rare and unusual feature of a system of justice in ay jurisdiction that respects the rule of law.  I would be trespassing beyond my constitutional role were I to usurp the functions of Parliament by authorising the practise followed by the Ministry in this case."

P J Radich QC (for the Ministry) then submitted that [The Plaintiff]'s right to natural justice, affirmed by s 27(1) of the New Zealand Bill of Rights Act, could be justifiably limited pursuant to s 5 of NZBORA through the Ministry ostensibly complying with its obligations under the Health and Safety at Work Act.

The judge responded:  "This argument could, however, never assist the Ministry's case, but rather it creates an additional hurdle that the Ministry would have to overcome" and "It is at this point that the approach taken by the Ministry hits a further insurmountable hurdle."

Paragraph 69 of the decision states:  " . . . First the use of fictitious names and signatures by Committees breached Ms L's right to the observance of the principles of natural justice.  Second, there is no legislative or common law authority for Committees to have used fictitious names and signatures when determining Ms L's applications.  Third, the common law cannot be "developed" to permit the practice followed by the Committees in this case.  Fourth, s 5 of NZBORA cannot be invoked to savage the Committees' practice of using fictitious names and signatures."







The Ministry of Justice has published a media release regarding the decision.

State Services Commissioner Peter Hughes has the power to sack Brendon Boyle for condoning the practice, and should do so.


Peter Hughes

Sunday, December 3, 2017

Unconditional surrender:


More than three years ago, on 31 October 2014, Housing New Zealand Corporation began trying to evict Te Ringa Mangu 'Dun' Mihaka from his home, serving him with a 90 day notice under section 51(1)(d) of the Residential Tenancies Act 1986, on the basis of a false allegation from another tenant, fuelled by the prejudice and bias of NZ Police.

On 2 December 2014 the Tenancy Tribunal issued an order terminating Mr Mihaka's tenancy and granting possession to Housing New Zealand Corporation from noon the following day, 3 December.  Mr Mihaka was approximately 73 years old at this time.

Nearly 3 years later, on 2 November 2017, Sir David Carruthers issued a carefully worded Minute. following the hearing of an appeal of the decision of the Tenancy Tribunal.  Our response was to challenge the 'Minute' of Judge Walker which is referred to in Judge Carruthers's Minute, inter alia (among other related matters which we are challenging in the various Courts and Tribunals established by the colonial governance structure).  During the hearing it also came to light that Housing New Zealand Corporation had issued not one but two eviction notices, which raised some interesting questions (explored in more detail at the link above).

Preceding this hearing, on 2 October 2017, Housing New Zealand Corporation wrote to Mr Mihaka with an offer of settlement, which was conditional on Mr Mihaka withdrawing all his Court action against Housing New Zealand Corporation, and promising not to take any further Court action against Housing New Zealand Corporation.  Rather ironic, as it was Housing New Zealand Corporation who initiated the litigation in the first place, and played hardball all the way down the line, until long after they realised there was more to these matters than met the eye.

On 28 November 2017 Housing New Zealand Corporation wrote another letter to Mr Mihaka, to say that he can remain in his home, regardless of the conditions proposed in the offer of settlement the previous month, as wisely indicated by Judge Carruthers.

While there is still a very long way to go to any real justice regarding these matters, as documented on this website, we have reached a significant milestone.  The manner in which we have achieved our goals thus far and gained so much ground is much more significant.  We will continue to fight for our rights, and fight for justice and fiduciary accountability, for as long as it takes.

"Justice the seed, peace the flower" - the words on Dun's chosen shirt of the day.

Tuesday, September 12, 2017

Challenge to Court seating arrangements results in decision of public interest.



A recent decision of public interest, in the District Court at Wellington, September 2017, regarding seating arrangements in the Court.  In particular, seating arrangements regarding Police officers.  This decision has serious implications - it is clear that the colonial Courts have been conspiring with Police to a significant degree by condoning what many people know to be a widespread practice of allowing Police to sit where they like, and also to sit in Court listening to other witnesses give evidence before they take the stand and give their own evidence, another seriously prejudicial practise that is widespread.

For :

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN
[SQUARE BRACKETS].

R v [WITHHELD - JUST IN CASE] [WITHHELD - JUST IN CASE] NZDC 20073 [WITHHELD - JUST IN CASE]
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRES(ES),
OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT

TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT
AT WELLINGTON

CRI-2016-091-000424
[WITHHELD - JUST IN CASE] NZDC 20073

THE QUEEN

v

[WITHHELD - JUST IN CASE]

Date of Ruling: 7 September 2017
Appearances: E Light with C Hislop for the Crown
C Stevenson for the Defendant

Judgment: 7 September 2017

RULING 2 OF JUDGE A I M TOMPKINS

[1] At the commencement of what is likely to be the final day in this trial,
Mr Stevenson, appearing for the defendant, has raised an issue concerning the
disposition of persons within the courtroom, and specifically the presence at a table to
the side of the courtroom on the opposite side from the jury, and slightly in front of
the dock, of the officer in charge.

[2] Mr Stevenson submits that in the interests of overall fairness, and the officer
in charge’s formal role in the trial now having ceased, the officer in charge should not
remain seated at the table in case the jury are left with the impression, perhaps
intangible but, nevertheless, potentially real, that the officer in charge in particular,

and the police in general, retain a role in the trial process elevated above that of any
other witness who has completed their evidence but who is entitled to remain in the
public gallery in the Court.

[3] Ms Light, appearing for the Crown, accepts that in the end, it is a matter of
overall trial fairness but submits that given the custom in the Wellington region for
this particular aspect of Court layout and seating arrangements to be observed, and
that a move of the officer in charge at this stage in the trial might trigger some
speculation in the jury as to why that occurred, submits, first, that the officer in charge
should be entitled to remain seated where he has been throughout the trial and,
secondly, that if the officer in charge is required to relocate to the public gallery, that
the jury simply be told that because the officer in charge’s formal role as a witness has
ended, he has moved to the public gallery, that being a suggestion with which
Mr Stevenson agrees.

[4] This is a matter that I have not encountered before. Indeed, it is, in my personal
experience, apparent that throughout the country, different seating arrangements and
configurations are adopted, not only for the officer in charge but also, indeed, for the
defendant, who in some courtrooms remains in the dock throughout the trial, as is the
case in Wellington, but in other courtrooms in other centres, following arraignment,
moves to a table in the body of the Court, normally immediately behind defence
counsel.

[5] Mr Stevenson advises that although this issue is a matter of discussion and
debate within the defence bar, as far as he and, I assume, Ms Light is concerned, there
is no available ruling to serve as a precedent to guide the Court as to the
appropriateness or otherwise of various available and alternative seating
configurations in the courtroom.

[6] In the end, it must come down in those circumstances to overall fairness, being
both fairness to the defendant but also, as Judges routinely tell juries, fairness to the
community, represented here by the Crown.

[7] In those circumstances, I am minded to accede to Mr Stevenson’s request,
given that in the absence of any statutory guide or, indeed, any precedent or prior
relevant ruling, and if the matter is finely balanced and one of intangible and potential
impression only then in the end, the Court should err on the side of ensuring that the
defendant receives a fair trial.
[8] In those circumstances, I will request, when the jury returns to hear closing
addresses today, that the officer in charge move to the public gallery. And I will, as
endorsed by both counsel, mention that in passing to the jury.

A I M Tompkins
District Court Judge

Sunday, July 2, 2017

Maori Agents - challenging flawed laws:

The Human Rights Review Tribunal recently cited two interesting precedents in the matter of Mihaka v Housing New Zealand Corporation.  The first one is cited in the Minute dated 13 October 2016 (copied below for ease of reference) - the Tribunal cites Mihaka v Police 1981 1 NZLR 54.



 




 What's interesting here is that the Tribunal didn't have any problem addressing Mrs Raue as Maori Agent in its Minute dated 9 June 2016, as evidenced below:

The Minute of the HRRT dated 9 June 2016 clearly states "REPRESENTATION:  Mr TRMN Mihaka in person assisted by Ms K Raue, Maori Agent" -


Mr Mihaka, as a descendant of the original inhabitants of this land, he uri o nga tangata whenua, has the sovereignty, te tino rangitiratanga, to appoint a person of his own choosing to speak for him.

Tangata whenua have always had the right to appoint a kaikorero of their own choosing, and it is ridiculous to assert that the quasi colonial 'government' acting on the questionable and ultra vires authority of a treaty claimed by the English to grant them all our mana and all our tino rangitiratanga by some sleight of hand smoke and mirrors.

Mr and Mrs Mihaka cite the Law Practitioners Act 1955, which refers to the role of Maori Agents but does not define the role.  In fact the 'Maori Agents' who claimed authority under this Act were infamous for cheating Maori out of their land - which is likely why attempts are being made to expunge all evidence from the historical record and pretend it didn't happen.

So let's have a closer look at Mihaka v Police 1981 - did the Crown attempt to trick Mr and Mrs Mihaka by the use of clever legal language?  Here are the relevant paragraphs, the problem's not that hard to spot - there's a question of law here:









Mrs Mihaka's trial was not in the High Court, it was in the District Court - she was charged with Wilful Damage.  Barristers don't normally bother with District Court work, they stick to High Court work, and they are required to be instructed by solicitors normally.






This decision cites sections 13 and 14 of the Law Practitioners Act 1955 - it completely ignores the infamous section 17 - which relates to solicitors and Maori Agents:


The role of McKenzie Friend is often misunderstood - the original McKenzie Friend is Ian Hangar QC - an Australian barrister, and a qualified barrister at the time of his involvement in the McKenzie case.  Not a layman at all.  It seems there are currently moves underway to 'reform' the role of McKenzie Friends in NZ Courts.

Why this is important is because Dun was royally ripped off by the two pettifoggers assigned by Legal Aid to conduct his appeals - neither of the two lawyers noticed he'd not been provided with Disclosure - let alone what that Disclosure contained - and let alone bring this to the attention of the appeal Court. Dun's been billed around eight thousand dollars for this incompetence, and would like to point out that he finds pettifogger Brett Crowley the more culpable of the two, Nathan Bourke slightly less so.

And then just when you think you've got it sussed you find the Hardie Boys decision.

No automatic alt text available.



Monday, April 24, 2017

At the going down of the sun and in the morning.

At marae throughout Aotearoa young men were mourned.  Some of our finest future leaders never came home from war.





Alister Te Ariki Campbell lived just up the road from us in Pukerua Bay, he wrote about war:

"The light of adventure that shone so brightly in our eyes when we set out was extinguished that day. Young men from the farms, the mines, the cities, the public schools, we died in a vast quagmire of blood and broken bodies. No one told us it would be like this."

Animals played a big part in the war.  As well as providing more practical service, they also provided emotional support and comfort.

Pte. T P Noonan, Auckland, with the mascot NZASC Bruno of the No 1 Platoon. New Zealand. Department of Internal Affairs. War History Branch :Photographs relating to World War 1914-1918, World War 1939-1945, occupation of Japan, Korean War, and Malayan Emergency. Ref: PA1-q-305-0071. Alexander Turnbull Library, Wellington, New Zealand. /records/22780140

Bess, one of only four horses of the 18,000 who went to WW1 who returned home after the war.

Over 18,000 New Zealand horses went to war.  Over 10,000 went to World War One alone, but just four returned home.  Bess was one of them.  The vast majority were acquired by the Ministry of Agriculture.

There's a great interview at this link about the four horses who returned, Bess, Beauty, Dolly, and the unfortunately named Nigger.  All belonged to officers, and Bess was the only horse who returned from the Middle East.  Bess led a parade of honour at the Carterton Agricultural and Pastoral Show wearing all the medals and ribbons of her much decorated partner, Colonel Guy Powles.

Add caption


Bess on the banks of the Jordan river in 1918

Moses, an Egyptian donkey, mascot of the NZ Service Company in France, 0n 20 April 1918





















The Great War 1914-1918 - For the Fallen
Poem by Robert Laurence Binyon (1869-1943), published in The Times newspaper on 21st September 1914.

With proud thanksgiving, a mother for her children,
England mourns for her dead across the sea.
Flesh of her flesh they were, spirit of her spirit,
Fallen in the cause of the free.

Solemn the drums thrill: Death august and royal
Sings sorrow up into immortal spheres.
There is music in the midst of desolation
And a glory that shines upon our tears.

They went with songs to the battle, they were young,
Straight of limb, true of eye, steady and aglow.
They were staunch to the end against odds uncounted,
They fell with their faces to the foe.

They shall grow not old, as we that are left grow old:
Age shall not weary them, nor the years condemn.
At the going down of the sun and in the morning
We will remember them.

They mingle not with their laughing comrades again;
They sit no more at familiar tables of home;
They have no lot in our labour of the day-time;
They sleep beyond England's foam.

But where our desires are and our hopes profound,
Felt as a well-spring that is hidden from sight,
To the innermost heart of their own land they are known
As the stars are known to the Night;

As the stars that shall be bright when we are dust,
Moving in marches upon the heavenly plain,
As the stars that are starry in the time of our darkness,
To the end, to the end, they remain.

An image of Christ on a war grave in Fricourt, 1916  Odette Carrez/Reuters


“If we really saw war, what war does to young minds and bodies, it would be impossible to embrace the myth of war. If we had to stand over the mangled corpses of schoolchildren killed in Afghanistan and listen to the wails of their parents, we would not be able to repeat clich├ęs we use to justify war. This is why war is carefully sanitised. This is why we are given war's perverse and dark thrill but are spared from seeing war's consequences. The mythic visions of war keep it heroic and entertaining…

The wounded, the crippled, and the dead are, in this great charade, swiftly carted offstage. They are war's refuse. We do not see them. We do not hear them. They are doomed, like wandering spirits, to float around the edges of our consciousness, ignored, even reviled. The message they tell is too painful for us to hear. We prefer to celebrate ourselves and our nation by imbibing the myths of glory, honour, patriotism, and heroism, words that in combat become empty and meaningless.”

― Chris Hedges, Death of the Liberal Class