La Trahison des Clercs

When academics venture into the media to inform the public about their discipline, they have a basic obligation to be accurate in what they say. I'm afraid that Prof. Chris Gallavin has fallen short of this standard.

In an opinion piece published in Monday's NZ Herald, Professor Chris Gallavin made a number of suggestions as to how the Court of Appeal should respond to appeals by the killers of three-year-old “Baby Moko” against their 17-year jail sentences. He did so while labelled as "Deputy Pro Vice-Chancellor, College of Humanities and Social Sciences, at Massey University", so it's fair to say that his commentary was intended to carry the mana and credibility implied by his academic position. Those of us with the privilege of commenting from such vantages have attendant duties.

Given that, as reluctant as I am to publicly diss a fellow academic who has ventured into the media commentary game, Prof Gallavin's article so misrepresents both the criminal appeals process and reasons for the original manslaughter verdict that a response is necessary. In fact, I think it operates as an object lesson in the risks of academic commentators writing on contemporary topics without stopping and carefully asking themselves "is what I'm saying about this correct?"

Although it hardly needs saying, let's begin by acknowledging that the actions of those responsible for Baby Moko’s death, David Haerewa and Tania Shailer, were quite reprehensible. They have met with perfectly justified, widespread public condemnation.

And while they have a legal right to appeal their sentences, it is understandable that many regard both their decision to do so and the arguments they are using in support as adding insult to their earlier injurious behaviour. Nevertheless, our feelings of moral repugnance at their actions ought not to replace important matters of legal principle and process. And those with academic knowledge of those matters of legal principle and process have a responsibility to explain why they matter; or, at least, not misrepresent how they work. 

Unfortunately, however, in his Herald article Prof. Gallavin appears to have allowed the emotion of this case to overcome this responsibility. His first suggestion is that “the Court of Appeal ought to take the unprecedented move of quashing the convictions, and substituting them with murder.”

This move would indeed be “unprecedented”, because it is legally impossible. Under the Criminal Procedure Act 2011, where a sentence (and not a verdict) is appealed a court can only alter that sentence. It has no power to quash a conviction, much less impose a conviction for a completely different offence.

In his article, Prof Gallavin refers obliquely to the Court of Appeal’s alleged “inherent ability to oversee plea bargains” as permitting such a move. With respect, he appears to have just made this power up out of thin air. It has no basis whatsoever in the governing statute.

Furthermore, consider what Prof Gallavin’s call really amounts to. He is, in essence, saying that the judges on the Court of Appeal ought to simply declare Haerewa and Shailer guilty of murder without their ever having been tried on that charge and so having had no opportunity to mount a defence. Such a proposal is entirely antithetical to the very rule of law.

In fact, it rather reminds me of the demand issued by Lewis Carroll’s Queen of Hearts for “sentence first—verdict afterwards.” To which the only sane response is that of Alice: “Stuff and nonsense!”

This same problem infects Prof Gallavin’s later suggestion that the Court of Appeal could alternatively “quash the conviction for manslaughter based upon the plea bargain and leave it then for the Crown to come back with charging them with something else - i.e. murder.” Once again, the Court simply has no legal power to do so on an appeal against sentence brought by the convicted party.

So Prof Gallavin really is recommending that our courts completely ignore the law, in order to produce an outcome he thinks would be a good one. This is not how these institutions should operate in a society predicated on the rule of law.

Furthermore, Prof Gallavin’s understanding of why Haerewa and Shailer were charged with (and plead guilty to) manslaughter instead of murder seems fundamentally misguided. He appears to believe that the reason for only bringing the lower-level charge was because of the existence of possible defences to a murder charge.

That, anyway, is the only sense I can make of his claim that Haerewa and Shailer “have, in effect, received the concession they would normally receive had [the defences of] diminished responsibility and provocation been successfully plead at a trial for murder - that came to pass the moment they were convicted of manslaughter.”

But we know why the Crown decided not to bring murder charges in this case, and this had nothing whatsoever to do with any possible defences that Haerewa and Shailer may have had.

Rather, as the Attorney-General explained following trial’s conclusion:

“To prove the legal charge of murder in this case, the Crown was required to prove beyond a reasonable doubt that Moko’s fatal injuries were inflicted with murderous intent.


The injuries Moko suffered were not inevitably fatal. With reasonably prompt medical treatment, he could have been saved.


If the jury was not satisfied beyond a reasonable doubt that Ms Shailer had murderous intent at the time she inflicted the fatal injuries, then neither she nor Mr Haerewa could have been convicted of murder.

In other words, murder was not charged because the Crown concluded there was a real and substantial risk it could not prove the necessary elements of the offence. Further, should it lay a charge that it could not prove, the Crown believed that there was a real risk the jury may end up acquitting Haerewa and/or Shailer of both murder and manslaughter.

Of course, the Crown's decision not to pursue a murder charge in order to ensure a manslaughter conviction was obtained against both accused represents a judgment call that may reasonably be debated. But it had nothing whatsoever to do with the issue of “diminished responsibility and provocation” that Prof Gallavin raises. Which in turn means that Prof Gallavin’s claim that arguing such matters in their appeal against sentence somehow shows that Haerewa and Shailer were guilty of murder makes absolutely no sense at all.

To reiterate, Haerewa and Shailer’s horrible actions in killing Baby Moko stir real outrage and anger. But when academics venture into the public realm to comment on such matters, especially when they are explaining to the lay reader how legal processes operate, there is an obligation on them to make sure their contributions are as accurate as they can be (always given the reality of human frailty and the fact that the occasional slip-up will occur).

Prof Gallavin’s errors go beyond such understandable slips made in the heat of the moment. It is regrettable that his discussion of the appeal process is so misleading and gives such a false impression of what the Baby Moko case was about. Given his background as a former Associate Professor and Dean of a law faculty, he really ought to know and do better.