"We have been here before"

You probably want to read about Andrew Little and Jacinda Ardern. But I want to talk about what our recently very busy Court of Appeal has been up to.

I'm aware that all anyone probably cares about today is Andrew Little's decision (helped, no doubt, by some pointed advice from colleagues) to step down as Labour Party leader, to be replaced by Jacinda Ardern. But if you want my views on that particular development, you'll have to wait for them to be published tomorrow in New Zealand's premier forum for incisive and considered news and commentary - the Otago Daily Times.

All I'll say here is that the whole saga puts me in mind of a much, much more important leadership transition in New Zealand's history ... the NZRFU's decision in 2001 not to reappoint Wayne Smith as All Blacks coach and instead replace him with John Mitchell. Recall, if you will, the events leading up to that decision. A bad run of losses for the All Blacks against Australia, after which their "leader" Smith appeared before a review panel where the following took place:

Smith faced the union's review committee last week and then decided he would not continue.

"I said to the panel, 'I'm unsure'. I said, 'At times, when I sit down and think of another two years I break into a cold sweat'."

The next day he rang union chief executive David Rutherford to say he had changed his mind, and if the position was advertised he would apply for it.

The rest is then history - which truly occurs first as tragedy and then as farce. For all the same elements are there: a leader seemingly out of his depth in charge of a group being outplayed by its rivals, his self-confidence dented by this series of poor performances, a frank and honest admission of frailty and self-doubt which renders him incapable of continuing in the job he says he still wants, so gets replaced by a bright and shining new hope (coincidentally, also 37 years of age!) who promises to take us on a "Journey" back to greatness at the 2003 World Cup.

I guess Labour just has to hope that history rhymes rather than repeats.

Because I really, really am not here to write about Labour's leadership issues. Instead, I want to draw your attention to three (three!) Court of Appeal decisions that have been made public today. Each is, in its own way, very interesting.

The first deals with an appeal by a truly execrable individual, Allan Titford, against his 2013 conviction and sentence for various crimes over a 22 year period. If his name sounds somewhat familiar, I have written about him before

Titford was known in certain circles as a martyr, whom the Government and Maori "forced" off his Northland farm in order to return the land to Te Iwi O Te Roroa as a part of their Treaty Settlement. Oh, sure, he may have appeared to agree to sell that land to the Crown in exchange for $3.25 million (after buying it for $600,000 nine years earlier). But (so it is claimed) that agreement only came about as the result of duress, after Titford faced a campaign of intimidation and violence - including the burning down of his home - from members of Te Roroa who were occupying "his" land.

Unfortunately for his supporters (who for a while included "Hobson's Pledge" frontman, Don Brash), it transpires that Titford actually burnt down his own house and committed insurance fraud in relation to damage he did to his own bulldozer and then blamed on "Maoris" ... as well as subjected his wife and children to a prolonged "reign of terror" (in the sentencing judge's words) that included rape, repeated brutal assaults with a variety of weapons and numerous threats to kill. All of which earned Titford a 24 year jail term when he finally was convicted for these actions.

Today, the Court of Appeal rejected his appeal both against conviction for these various offences and the sentence imposed on him. That outcome is not so very surprising - the evidence against him from his ex-wife and children was overwhelming. But what is of interest is the main ground on which Titford went to the Court of Appeal.

You see, Titford's original defence at trial was that he simply didn't do any of the things he was accused of, but rather was the victim of a Vast Māori Loving Conspiracy (or, VMLC) that encompassed the Police, the Government, his family and anyone who had ever said anything bad about him ... all of whom had come together and concocted the "evidence" against him. This claim seemingly did not impress the jury to whom it was put, as they convicted him of most of the charges he faced.

So on appeal, Titford's lawyer tried a different approach. This VMLC claim was so outlandish and preposterous, he argued, that it demonstrates Titford was incompetent to stand trial as he simply wasn't capable of mounting a proper defence to the charges against him. Because only a "crazy" person could possibly believe the things Titford claimed - and we really shouldn't try "crazy" people in a criminal court because they can't properly defend themselves.

The Court of Appeal rejected that ground of appeal (as it did Titford's other attempts to overturn the trial decision). But what is particularly interesting for me, however, is the light that the attempt casts on Titford's remaining supporters (and, amazingly enough, such people do still exist as Scott Hamilton unweaves in this quite remarkable story in The Spinoff).

Because such people are now left trying to defend a story about Titford that - get this - Titford's own lawyer argues is so completely implausible that even asserting it demonstrates a lack of cognitive capacity, such that anyone who argues for it cannot be criminally tried for their actions. Something to think about next time you read a story on the New Zealand Herald's website that one of these people has discovered "proof" that europeans settled in Aotearoa before Māori arrived here.

The second case also involves a criminal appeal, but a successful one. Kelvin Williams left the pub pissed and got into a street fight, in which he so badly injured his opponent (Mr Strong) that Mr Strong died from internal bleeding. Williams was then convicted at trial for murder ... but the Court of Appeal now has found faults in that trial process that renders this verdict unsafe.

So far, so ordinary. What makes this case in any way interesting (for those beyond Williams and his victim's family, of course) is the fact that the events in question happened back in 1995. So why is it only now getting in front of the Court of Appeal?

Well, the answer is that it already had been appealled to the Court, in late 1995. But at that time, the Court was triaging the mountain of criminal appeals it received by using a decidedly dodgy shortcut. In essence, if an appellant sought legal aid to pay for a lawyer for the appeal, the Court would look at the case papers and decide if it thought there was enough in it to warrant such a grant. If so, then, the appellant would get a "proper" trial with a lawyer to represent her or him. If not, then the Court invariably would reject the appeal along with the legal aid request. 

So, in 1995 the Court rejected Williams legal aid application (and hence his appeal). Then, in 2002, some seven years after Williams' case was "finished with", the Privy Council in London gave the NZ Court of Appeal a mighty serve for failing to comply with basic fair trial norms and declared its triage processes unlawful. As a result, everyone who had had their appeals summarily rejected over the past decade got the right to reapply for a new appeal hearing.

Unfortunately, no one actually went out and told these people about their right to reapply - so Williams didn't realise he could do so until relatively recently. And in the meantime, some of the proceedings from the original trial (including transcripts of the counsels' addresses and judge's summing up) have gone missing. But still there was enough remaining for the Court of Appeal to find that mistakes in the original trial rendered the original verdict unsafe, so they overturned it.

But what to do instead? You can't really have a retrial on a case some 22 years old, where much of the original evidence is no longer available. So the Court of Appeal instead substituted a verdict of manslaughter and a (now entirely notional) 8 year jail term in place of the original sentence of life imprisonment.

But here's what seems interesting to me. If the Court hadn't applied its unlawful and pretty outrageous triage process back in 1995, Williams should have had his verdict overturned at that point ... and thus had a chance of a retrial and manslaughter verdict which probably would have seen him released in 1998. However, because of the Court's unlawful and pretty outrageous triage process, it's taken 22 years for his murder conviction to be overturned ... at least 10 years of which he's spent in jail serving his life sentence.

So, what follows now? Should he be able to claim compensation for the potential extra jail time he has served as a consquence of the failure to grant him a proper and timely appeal? Because the New Zealand Bill of Rights Act 1990, s.25(h) guarantees:

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both

Clearly, in 1995 the Court of Appeal breached this right. As a consequence, Williams spent far longer in prison than he otherwise might have. Doesn't that then mean that he can claim public law damages for the harm caused by this breach of his rights?

Well, probably not ... because back in 2011 the Supreme Court decided that the judiciary is immune to such NZBORA claims. Of course, that decision was only by a 3-2 majority. And the majority's decision can be criticised for its reasoning. So perhaps we'll see more of Mr Williams in the future.

The third and final case involves familiar terrain: or, as the Court of Appeal somewhat pointedly notes, "We have been here before."

Following the 2011 Christchurch earthquake, the Government offered to buy the land and houses of people living in the "red zones" that resulted from earthquake damage. It didn't have to do this - it was a policy that the Government thought might help give some certainty to residents and help them move out and on with their lives.

But the Government's offer differed depending on whether a person had insured their land/home. If they had, then they got the full value of the property (as of 2007, anyway). If they hadn't (for any reason), then they got 50% of the value of the land and nothing for any improvements on that land.

A group of uninsured property owners then challenged this policy all the way to the Supreme Court, where they won. The Government, said the Court, had given inappropriate weight to considerations such as avoiding "moral hazard" (where people fail to insure themselves because they think the Government will help them out) and perceived notions of "fairness" when designing the policy. So the Government had to go away and come up with a new offer policy for uninsured property owners.

Which it did - this time offering them 100% of the value of the land (as at 2007), but again nothing for any improvements on that land. Meaning that if you had a house in the red zone that, for any reason, did not have insurance cover on the day of the earthquake, you faced getting only a fraction of the full value of the property.

That lead some of the remaining uninsured owners to go back to court and claim that the Government had effectively ignored the Supreme Court's decision and, once again, created an offer policy that inappropriately focused on avoiding "unfairly" rewarding uninsured owners and thus disincentivising peoples' future decisions on whether to insure their homes.

And today the Court of Appeal agreed. The offer policy, it has found, remains "unreasonable" because of its general concern with future moral hazard and failure to consider the individual circumstances of those affected. And so it was unlawfully made.

However, there's now a problem. The legislation under which the Government is managing the Christchurch rebuild has since changed. The organisation that managed that process has ceased to exist. And while there still is a "Greater Christchurch Regeneration Minister", it is not the same one who made these original offers under a different legislative framework. So what can the Court do by way of ordering relief?

Well, it sets that question aside for the moment, saying it can be resolved after "further submissions on whether the Court can and should make orders requiring that the Recovery Plan be reopened and reconsidered in light of this judgment, with renewed offers being made to affected landowners should the reconsideration result in a decision that some payment should be offered for uninsured improvements." I'm betting that the Court secretly is hoping that the Government instead will bite the bullet and offer all uninsured property owners the same deal as was originally made back in 2011.  

Because in the scheme of the billions and billions of dollars being spent in Christchurch, the few million (at very most) it would cost to pay out those last few property owners still not being offered the full 2007 value of their homes is miniscule. And as fun as it is for us public lawyers to see the Government get handed its hat by the courts, it really must be terrible for those still unable to move on from an earthquake that now happened some six years ago.