Tuesday, April 18, 2006

Philip Morgan: Laws designed to bring fairness to sex trials

Publicity surrounding high-profile cases involving sexual allegations has raised questions about the powers the court has to ensure a fair trial; fair to the complainant, the accused and thus fair for the community.

Without commenting on any particular case it may be helpful to examine just how the criminal justice system works to ensure fairness, particularly over allegations of sexual offending.

An accused is presumed innocent until proven guilty and guilt must be proven to the standard of beyond any reasonable doubt.

To ensure a fair trial, the jury hears only the relevant evidence. Evidence that is not relevant is excluded because it cannot help the jury in determining the issues.

During the trial and throughout the criminal justice process measures are there to protect complainants in sexual cases.

As a general rule they need not give oral evidence at the preliminary hearing. During the trial there are tight restrictions on who may be present when a complainant gives evidence and the public are excluded.

The court has powers to allow complainants to give evidence from behind screens and, particularly in the case of younger complainants, use closed-circuit television.

Special provisions in the Evidence Act prohibit complainants being questioned about their sexual experience with persons other than the accused, or about their general reputation in sexual matters.

In all cases, jurors are instructed by the trial judge that they must reach their decision solely on the basis of the evidence they have heard in the courtroom. They are asked to put out of their minds entirely speculation, prejudice, rumour or other material they have come on from sources outside.

All these measures are designed to ensure fairness to the complainant, the accused and, therefore, the community, which has just as great an interest in a trial that is fair.

Open justice is a guiding principle in our legal system. As a general rule, court proceedings are open to the public and the outcome is a matter of public record.

Even where identifying particulars of an accused or a witness are suppressed, or evidence is suppressed, the jury hears that material as do the news media and public in the courtroom. The limitation is only on publishing the material.

Names, identifying particulars and evidence are suppressed only where there is good reason and then to the least extent necessary and generally for a limited period of time.

In many cases where suppression orders are made they will inevitably lapse so the public will get to hear the information through the news media. It is merely delayed.

Evidence may be suppressed where publication would be unfair and prejudicial to the right of an accused to a fair trial, where it could jeopardise other pending matters, infringe the legitimate privacy interests of complainants and witnesses, or otherwise undermine the proper administration of justice.

In cases involving serious sexual allegations, the name and identifying particulars of the complainant are automatically suppressed by law.

The details of the criminal acts alleged may also be suppressed by the judge to protect the complainant's interests.

Complainants are free to waive their entitlement to name suppression if they wish and not to seek suppression of the details of the alleged criminal acts.

In short, the law of New Zealand says the name or identifying particulars of a complainant in a sexual case are not to be published without the express permission of the judge. In practice, a complainant's identity is never disclosed unless the complainant waives the right.

In the case of the accused, suppression of name is often only temporary and only then for good reason. Permanent name suppression is likely to occur only if publication might identify a complainant.

Breaches of suppression may be considered contempt of court. Matters which the court has concluded are not relevant or should be suppressed which are then published in the media and on the internet, can seriously undermine the fairness of the trial process.

It undermines the right of an accused to a fair trial, the legitimate privacy interests of complainants and witnesses and the community's interest in ensuring a fair trial.

The law of contempt exists to maintain public confidence in the administration of justice, including upholding fair standards. Individuals or entities may be held in contempt of court for words or actions which obstruct, interfere with or undermine the justice system or the authority of the courts.

Contempt may commonly occur in two broad situations. The first is contempt "in the face of the court", which occurs within the court or its immediate environs. The second is where it is committed outside this sphere.

Contempts committed "in the face of the court" can take a variety of forms and include attempts to interfere with witnesses, jurors or judges by pressure, dissuasion, duress, intimidation, bribes or deliberate breach of court orders or the directions of a judge.

Whether words or actions which occur outside the court or its immediate environs amount to a contempt of court will depend on the circumstances.

In situations involving publication or dissemination of information relating to the judicial process, a court considering the issue of contempt must balance the public interest in freedom of speech, as recognised in the New Zealand Bill of Rights Act, against the real risk of prejudice to proceedings, as well as the benefits of protecting the administration of justice.

In cases of contempt beyond the courthouse, it is not the role of the judge, the court or the Ministry of Justice to investigate or police allegations of contempt.

Information tending to suggest actions in contempt of court may be referred to the Solicitor General, who has the power to initiate court proceedings. If satisfied a contempt has occurred, the court has powers which include a fine or imprisonment.

* Philip Morgan, QC, is a Hamilton lawyer who for the past six years has been a member of the NZ Law Society's Criminal Law Committee, the last four as convenor.

Eye on China: Americans accept trade-offs

By Matthew Benjamin

Americans want to maintain good economic relations with China and are less concerned about the near-record US trade deficit, according to a Bloomberg/Los Angeles Times poll.

By a margin of 50 per cent to 26 per cent, Americans say China should be allowed to proceed at its own pace in making its currency more flexible rather than being forced to make changes to reduce the trade gap with the US. That view contrasts with the atmosphere and rhetoric in the US Congress, where at least 15 legislative measures have been introduced in the past year addressing trade and currency issues with China. Politicians say China is keeping the yuan artificially weak to increase exports.

"China is on its way to being an economic giant," said Rick Haverman, a 46-year-old high school history teacher in Spokane, Washington, who participated in the poll. "That trumps the trade deficit, which I see as more of a short-term problem."

Americans are also supportive of foreign investment in the US, with nearly 7 in 10 saying overseas companies should be allowed to put money into some areas of the US economy, according to the survey of 1357 adults conducted from April 8 to April 11. The margin of sampling error is plus or minus 3 percentage points.

The news isn't all good for overseas companies looking to do business in the US. Fifty-one per cent said some restrictions on investment are more important than the jobs such investments create.

Exports, including to the US, helped China vault ahead of Britain in the fourth quarter to become the world's fourth largest economy.

The US trade deficit swelled to a record US$726 billion ($1.2 trillion) last year, including a shortfall of US$202 billion with China. The overall gap narrowed in February from the previous month, the Commerce Department said on April 12.

"There is broad public support for global engagement, not global withdrawal," said Tom Mann, a congressional scholar at the Brookings Institution in Washington.

Haverman's attitude, typical of many respondents contacted after the poll, probably reflects current economic prosperity, says Nicholas Lardy, a senior fellow at the Institute for International Economics in Washington.

The US jobless rate matched a four-year low of 4.7 per cent last month, and the Conference Board's measure of consumer confidence climbed to the highest since 2002.

"We're at almost record low unemployment, so the trade deficit isn't perceived to be weighing on jobs like it was a few years ago," said Lardy, author of six books on Chinese economics and government policy.

The value of the yuan will probably be discussed by President George W. Bush and Chinese President Hu Jintao when Hu arrives in Washington this week. Bush has chosen to tread lightly on the topic, while Congress has been pressing him to force the issue.

A Senate bill sponsored by Charles Schumer, a Democrat from New York, and Lindsey Graham, a South Carolina Republican, would impose 27.5 per cent tariffs on Chinese imports unless the yuan rises. They delayed a vote on their bill until September.

As for American attitudes on US-China relations, "the two things aren't contradictory", Schumer said. "A good relationship with China in part depends on their willingness to stop manipulating their currency."

Another trade issue, foreign investment in the US, flared in Congress during February when Dubai-based DP World attempted to buy several US port facilities. Opposition from Republicans and Democrats, citing national-security concerns and a lack of consultation, forced the firm to abandon the purchase.

One bill, introduced by House Armed Services Chairman Duncan Hunter of California, would require any company that owns or operates an asset deemed "critical infrastructure" by the Defence Secretary to be majority-owned by US citizens.

Only 16 per cent of Americans say foreigners should be barred from investing in the US. At the same time, just one in 10 said foreigners should have carte blanche to buy whatever they want. Most said foreigners, including those in Arab countries, should be allowed to invest in "some areas" of the US economy.

"I wouldn't want to eliminate foreign companies from investing in anything in the US," said Mckenzie Laurence, 26, a real estate broker in Jacksonville, North Carolina. "But there are certain lines in the sand I'd be more comfortable that they didn't cross."

Laurence, who took part in the poll, said barring foreigners from defence-related industries would be prudent, as well as keeping them from dominating any single market.

"The US needs to compete for foreign investment, because there are many other places to invest now," said George Nolen, chief executive officer of Siemens, a unit of Siemens AG, Germany's largest engineering company. Siemens employees 70,000 people in the US.

Jobs may also be the issue there, said Lardy.

"There's a fairly widespread understanding that foreign investment in the US helps create jobs," he said.

Americans are slightly less amenable when the foreigners are Arabs. Twice as many said Arabs should be barred from investing in the US as those who said foreigners in general ought to be excluded.

For most Americans, "English speakers from Australia are one type of investor, and those from the Middle East are another type of investor," said Edwin Feo, co-chairman of the Global Project Finance Department at law firm Milbank, Tweed, Hadley & McCloy in Los Angeles, which represents foreign companies looking to invest in US infrastructure.

Despite a general openness of Americans to foreign investment, Feo says he's seeing growing opposition after the failed DP World deal.

This week, Cintra-Macquarie, a Spanish-Australian consortium, is scheduled to sign a 75-year lease on a toll road in Indiana. The deal may be delayed by a lawsuit filed by a group of Indiana citizens.

"Americans feel that everything is slipping out of our hands, and we're losing control of our whole way of life here," said Steve Bonney, a West Lafayette, Indiana, farmer who represents the group. "Globalisation is working against us."

Sideswipe

Queen Helen? An easy mistake to make

By Ana Samways

A reader overheard the following conversation about the latest New Zealand Woman's Weekly in his local Starmart, between a boy of about 8 and his mother.

Boy: Mum, that's not Helen Clark, is it?

Mum: No, it's Queen Liz.

Boy: Who?

Mum: Queen Elizabeth.

Boy: Who? I thought Helen Clark was our Queen?

Mum: No, Queen Elizabeth is, she's the Queen of England.

Boy: But isn't Helen Clark the Queen of New Zealand?

Mum: No, she's the Prime Minister.

Boy: What's the difference?

* * *

A reader writes: "Prime Television were so keen to show off their all-new, Eric Young-fronted news service that last week, in the delayed transmission of the Warriors rugby league game, they gave us the result of the game in Headline News, during the half-time break. Obviously not wanting a repeat of that scenario, they came up with a cunning plan: this Sunday they broadcast the game more than 24 hours after it was played so they could be sure everyone would know the final score by this time."

* * *

Pat Donovan of Albany would like to confess ... "I have just buried, with ceremony and flowers, the identical cat to mine. It was found at the junction of Coatesville Rd and State Highway 17 on Easter Saturday. My cat has just walked in large as life, having no idea that her funeral had just taken place. Whoever owns the identical cat to mine, a tabby with cream and tan markings on her belly, should know your cat went to earth in a clean pillowslip with flowers and many tears and now resides in our paddock with the rest of the animals we have lost over the years."

* * *

Homeowners Robin Sutton and Allen Lade, of Cincinnati, Ohio, wanted to put up a 2m-high cedar fence in their yard but the local government denied the request because the fence wouldn't "fit in with the look and feel of the township" and needed to be a minimum of 13.7m away from the street. As a protest Sutton and Lade installed a surrealist display of yard art where the fence would be. They've decorated their property line with 15 toilet planters, dozens of multi-coloured toilet brushes, an array of pinwheels, toy skeletons and assorted other oddities. As Lade puts it: "It's colourful. It's bright. It's humorous. It's pointed ... " For Christmas, they strung 2800 lights in their back yard and invited neighbourhood children to spray-paint the toilet brushes. Sutton said: "It's a reminder of basic property rights. It shows the absurdity of being told you can't put up a fence ... " (Source: boingboing.net)

* * *

Trying a different publicity tack, Tom Cruise is now talking sanctimoniously about sex instead of religion or the myth of post-natal depression. He tells GQ that casual sex is "really horrible and pathetic and lonely. And yech". Sex, he says, "is about the connection. Great sex is a by-product, for me, of a great relationship, where you have communication and it's an extension of that. Where it's just ... free. And that's how it should be. It's spectacular. If you're not in good communication with your partner, it sucks." (Source: nerve.com)

Editorial: Study tour necessary but flawed

Representatives of Auckland City need, from time to time, to go on study tours overseas. In the quest to make this a first-class city, there is much to be gained from the insight and inspiration provided by international comparisons.

Unfortunately, there is no great benefit to be derived from cheaper visits to the likes of Wellington, Christchurch or Dunedin. The extent of Auckland's problems, the size of its potential, and the scale of several looming projects make globetrotting unavoidable.

It is hardly surprising, therefore, that councillors Vern Walsh and Penny Sefuiva are off on an overseas study tour. The council, they say, needs to be ready for the likes of rugby's World Cup in 2011 and a possible America's Cup defence, and to develop an appreciation of what successful waterfront and Aotea Square upgrades could involve. They could do better, though, than characterise their trip as an "intellectual capacity-building tour". Phrases such as that generally are an attempt to disguise a lack of substance. Closer examination of their itinerary suggests that is certainly so in this case.

In four weeks, the two councillors, accompanied by two council officials, are visiting a bewildering array of waterfronts, art galleries, museums and sports stadiums in North America and Europe. They will even, for reasons that are not readily apparent, visit the medieval town of Cesky Krumlov, a world heritage site in the Czech Republic. That one stop-off highlights the peculiarity and irrelevance of much of the tour. For every point inspected that has an obvious connection to Auckland - the successful waterfront development in Vancouver, for instance - there is one that is difficult to justify.

The grand terminology the councillors attach to their tour is not the only reason to suspect that even they are uncomfortable with its length and breadth. Why else would they keep it under wraps? For three weeks, the Herald sought details from the council. All it received was a sketchy outline, with a declaration that the councillors would receive a $150-a-night accommodation allowance. Only late in the piece was it conceded the group would, in fact, stay in hotels.

Now that, belatedly, the details have been released, it is possible to assess its likely value. Obviously, there are serious question-marks. Indeed, what is suggested, above all else, is that such tours should, in the main, be the domain of officials, not councillors. There is little point, for example, in the Walsh-Sefuiva team meeting 2007 World Cup officials in Paris to discuss planning at the Stade de France. Auckland's staging of the event four years later is simply too distant for the pair to be confident they will still be on the council. A trip to Valencia to talk with the Team New Zealand yachting squad is even more will-o'-the-wisp, given that we are yet to see if the team's new boat is fast enough to mount a strong challenge.

There is a far greater likelihood that officials occupying senior seats in the council bureaucracy will be around in the long term. And, because they are not captive to the three-year electoral cycle, they can also take a broader perspective of what will work best for Auckland. It is they who councillors must often rely on, as a matter of course, for judgment and insight before they sign off development schemes. It is they who provide the best return to Auckland from study tours such as this.

The shortcomings of this trip should not be a catalyst for the reining in of such ventures. Auckland needs to draw the best from successful overseas developments. But it needs to do it in a way that does not involve unnecessary expense and leave the suspicion that ratepayers are providing an inflated junket.

Peter Nowak: TV must adapt to the net or die

This time around, the revolution will not be televised - or at least it won't be in the way we recognise.

There's a whole lot of moving and shaking going on in the way video - whether it's television or movies - is being viewed and delivered, which is forcing content producers to take a long hard look at their business models.

Hardly a week goes by without a TV or film company announcing some sort of new internet-oriented product or service announcement. Last week it was Disney's ABC network announcing it will soon offer some of its popular programmes free on its website.

The fact is, TV is moving to the internet. And as the old adage goes, the industry needs to be quick or be dead.

The revolution began in earnest in 1999, with the advent of Napster. The user-friendly peer-to-peer software spurred the takeoff of file sharing, which led to music industry revenues plummeting as millions of downloaders got their songs, in the form of MP3 files, online for free.

The music industry then made a big mistake. Rather than embracing the technology and figuring out a way to use it to their advantage, record labels mounted an offensive against the file-sharing networks. Years later, they succeeded in shutting down or crippling most of the big ones, such as Napster and Kazaa.

In the meantime, someone did figure out how to use the technology - Apple Computer. The company smartly integrated its iPod music player with its iTunes online store, and has been reaping the benefits since.

Five years ago, Apple had very little to do with music, but now it's the world's largest online retailer, with more than one billion songs sold so far.

This equates to squandered revenue for the record labels, and wrestling that market share back from Apple is going to be extraordinarily difficult.

The television and movie industries have been in a slightly better position, mostly because of the internet's previous technical limitations. While relatively small music files can be downloaded over slow connections, most internet users have found the interminable wait to get the much larger video files just isn't worth it. But the speeds have improved, and will continue to do so.

Worse still, Apple is starting to sell television episodes and movies through iTunes. Time is running out for the networks and studios.

Some television networks, such as ABC, have realised this and are rethinking their strategies and experimenting with delivery methods. Aside from the pending free offerings on its website, ABC also sells some of its shows through iTunes in the United States.

"None of us can live in a world of just one business model. This is about the consumer, and how the consumers use all this new technology. It's consumer first, business model second," Anne Sweeney, president of Disney-ABC Television Group, told an industry panel last week.

Disney seems to understand the real effect of the revolution, which is that the Napster generation doesn't want content producers dictating how they will receive that content. They want it immediately and preferably for free, and they have the technology to get it that way. It's a horrifying prospect for the traditional business model, but companies unwilling to learn from it and adapt accordingly will meet the same fate as the record labels.

The biggest effect emerging from all this is the cutting out of the middle men. Under the traditional television model, a producer generates its main revenue by creating a programme and selling it to a network. The network then earns revenue by selling advertising time during the programme, which it airs to the public. Along the way, providers such as Sky charge viewers to access that content.

But the internet is changing all this. If the producer can deliver that programme to the public over the internet and sell its own advertising, which is where the real television money is, what use is there for the network or traditional access provider? Not much.

ABC's move is interesting because, being a network, it is in effect a middle man that sells the wares of its content producer Disney. The network must know its days are numbered.

At this point, we've only seen the tip of the iceberg. A future where the viewing public subscribes to and pays for individual programmes on the internet, rather than a package of channels through Sky, is entirely possible and not too far off.

Telecom last week formed a video division and plans to offer some form of internet television next year.

Australia's iiNet, owner of local internet service provider ihug, is also experimenting with broadband-based video on demand. When local loop unbundling opens up competition, improves broadband speeds and removes download caps, the ISPs will start making content deals.TVNZ and Sky would do well to sit up and take notice. They need to learn the lessons of the Napster revolution or, like the record labels, they'll find their businesses evaporate overnight.

Robert Overtz: Catch less and pay more

It is common knowledge that we are running out of oil. What is not so well known is that we are also running out of big fish.

The harsh realisation that catches of big fish - marlin, sharks, swordfish and tuna - are declining rapidly is beginning to sink in. The United Nations Food and Agriculture Organisation considers about 75 per cent of all fish fully exploited, over-exploited or depleted.

The crisis can be seen most extremely across the Pacific, the world's largest source of tuna, where catches are shrinking with the average size of the fish.

Today, a 30kg swordfish - which is too young to have even reproduced - is considered "a good-sized fish" and can be legally landed in the United States. Just a few decades ago the same fish averaged 136-180kg and could be caught close to shore with a harpoon.

In the past two years, the Pacific has seen quotas, restrictions on catches, freezes on effort and even moratoriums. The US longline fleet had to shut down for the second half of last year in the Eastern Pacific. Japan and China were not far behind.

Last December, the new international body with the unwieldy name Western and Central Pacific Fishery Commission imposed a freeze on further efforts to catch bigeye and albacore. Throughout the Pacific, it is widely documented that these two species have joined the lucrative southern bluefin tuna on the overfished list.

Scientific reports document that the biomass of these large fish have declined by about 90 per cent in the Pacific since 1950 - about the time new technologies allowed us to fish further from shore for longer and catch more fish.

Since then, technology has eviscerated those last areas of the ocean safe from us only because we were unable to reach them and stay there.

The announcement last month by the US Government that yellowfin tuna is also being overfished will send a shockwave throughout the Pacific.

We are faced with incontrovertible evidence that the lions and tigers of the sea - the ones we feed our children for lunch - are disappearing fast.

That is bad news for the dozens of impoverished Pacific Island nations that have leased their national waters to foreign industrial longline vessels to catch and export their fish, primarily to the US, Japan and the European Union.

For some of these nations, these meagre licensing fees contribute as much as 70 per cent of their GDP.

When greed and waste finally leads to collapse of these fish, millions of people throughout the Pacific will sink further into poverty.

Canneries are cutting their hours or even closing for want of fish. Stories abound of crews mutinying or being abandoned in foreign countries by captains who couldn't pay them.

The days of three cans of tuna for $1 are long gone.

The way out of this crisis is to catch less and pay more while staying out of critical areas of the ocean. It only seems fair that the countries with the resources should receive a far larger share of their $2 billion-a-year resource and still have some of the big fish around to attract far more lucrative game fishing tourism.

The US has taken the right step by restricting longline fishing for tuna in the Eastern Pacific and banning it on the West Coast. Now it is time to put the pressure on other countries to do the same.

* Robert Ovetz, PhD, is the Save the Leatherback Campaign co-ordinator with the US-based Sea Turtle Restoration Project.