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Sun 4th March 2007

Making the Punishment Fit The Crime

Filed under: General — MurrayBacon @ 1:29 pm

This line is taken from a comic opera, by Gilbert and Sullivan. Although spoken in jest, there is more wisdom in these operas, than I have ever seen in action at the Familycaught! This is the essence of a working court system. If they cannot do this, then they are worthless to society, just a drain on resources.

Alice in Wonderland has recently been compared favourably to the NZ High Court. The children were right all along! The courts system in NZ has severe problems, if you ever compare what it promises society, to the outcomes and the costs.

There is a major value for money problem, that as yet, has not been successfully addressed. The legal workers try to say, don’t budget for courts, we must spend what it takes. This is clearly not true, a dollar spent on legal aid, is a dollar not spent on a doctor or a teacher or a new hospital building.

Society must start listening to it’s members, who have been through these courts and listen carefully to what they are saying. Talk to your family, about their court experiences. Talk to your workmates, about their Familycaught experiences.

You may end up being forced to use the services of one of these courts, one day.

Lets consider an everyday Familycaught hearing:

The first step is to clarify the situation.

How skilled are Familycaught judges at “weighing” evidence?
If a mistake was made in a previous hearing, how skilled are these judges at sorting out past mistakes, so that this hearing can get it right and move on?

When you deal with doctors, how easy is it to get any past mistakes corrected?

When it comes to making the punishment fit the crime, then it is important to understand the FULL set of options available.

When “lay judges” only select from a reduced set of options, they are prejudging the situation.

Gary Becker was awarded a Nobel Prize in 1992, for giving a mathematical proof that prejudice only gives a benefit, when one party places a greater value on a loss to another party, than on their own benefit. This concept has been known generally, for over two thousand years.

NZ legislation is silent on value issues, so should the judges personal values about “real men should be at work for 40+ hours per week”, be applied to your family?

If you can support your family on 30 hours a week, should a judge set you to working 40 – 50 hours per week and let your Xwife care for your children without being obliged to work?

Whose values should be applied?

Prejudice is a dead loss game, but NZ Familycaught judges don’t yet understand this!

Professor Mark Henaghen Otago University, in his book Family Law, tries to explain the Familycaught approach in custody disputes. I understand that Prof Henaghen is an academic and I am not sure if he has actually acted in court. It appears he has only ever read published cases, which show the Familycaught in the light that it wants the public to see it. I believe that Professor Henaghen is using the same twisted meanings on English words, that judges use in their reading of legislation so that what they write is very misleading when read by a citizen.

Sanford L Braver discusses how courts approach custody, in his book Divorced Dads shattering the myths. Reading his book, it is possible to reconcile experience in Familycaught, with his discussion of how judges approach these issues.

Chapter 4 Standards of Living is quite relevant to child support issues in NZ.

The chapter on Child Custody is excellent, in terms of understanding the dully simplified way that “judges” try to think their ways through custody cases.

Braver’s book does not address the issues about the quality of lay judges “weighing” evidence. Most of the problems in Familycaught arise from unskilled weighing of evidence, associated with dragging cases out to generate more income for the lawyers.

In NZ, judges are appointed from practicing lawyers, with 7 years of experience.

In Europe, judges do standard lawyer training. Then they have a further 4 years of training, some of it work experience in courts and law practices and some academic training in judicial issues:

Weighing evidence
Using Bayes Theorem in calculating probability associated with evidence
(Look up Bayes theorem, prosecutors fallacy and defense lawyers fallacy in Wikipedia)

Professional level skills for weighing evidence were discussed by Judge Arthur Tomkins, in 2002.

The Role and Use of Expert Witnesses in Trials Judge Arthur Tompkins 7 November 2002

These ideas have not appeared in any published cases in NZ, so it seems that the ideas have never moved into the practice of the NZ courts, other than for understanding DNA evidence. This shows how important it is, to have judges with professional level training.

NZers cannot really complain about judges skills, if they expect “lay” judges to provide judicial services in NZ!

Are you happy to have untrained social workers roaming the streets, taking children, with the checks and balances provided by untrained “lay” judges in Familycaught?

I prefer to gamble with money in investments. I don’t want to gamble with my children, by being forced to present my case before “lay” judges, who lack professional level training to be a judge.

Thus NZ is essentially using “lay” judges, that is people who lack any professional level training to be judges.

We have Justices of the Peace, remember Jim Bailey’s aborted trial in Tauranga.
We have District Court and High Court Judges (and familycaught judges), who have only basic lawyers training.

Thus, it should be no surprise that we have such a poor record of court hearings getting it right first time!

Look up the following in Wikipedia:
Moira Woods
Sir Roy Meadow
Sally Clark case
Defendant’s fallacy
prosecutor’s fallacies

It is important that we understand our limitations in life.

When we have accusations, about incidents that have occurred in private, then trying to find out what happened is fraught with risk of getting it wrong.

Anyone who is brave enough to claim they can reliably find the truth, without hard evidence, is deluding themself. Don’t let them delude you as well. An inquisitorial approach allows investigation until the situation has been clarified well enough, so that decisions can be based on solid ground. The Adversarial approach may be quicker, but carries large risks of decisions based on poor or incorrect information. (The adversarial approach garners more money for lawyers and generates more work for judges.)

When a court “finds facts”, there is always a risk of mistake. Even with judges having professional training, this risk will still be present, to a significant degree.

The art to minimising self inflicted damage, is to act on information, only to the extent that it can be relied upon. This is why hanging has been abolished, due to the practical difficulties judges found, to later correct mistakes properly.

Just as important, is the quality of legislation. The Domestic Violence Act was passed on the initiative of the then Chief Justice. Even though the high probability of breaches of natural justice were pointed out, prior to the passing of this legislation. After the Act has been running for over a decade, there has been no reliable investigation of whether this Act is achieving anything at all (for society). It has made more work for lawyers. It appears to have given many children reduced contact with a good father and increased time with a manipulative mother.

Surely this is an important issue and should be looked into, rather than just let a destructive Act of Parliament stay on the books?

Lets have a campaign to get rid of the existing “lay” judges and appoint judges with relevant professional level training.

Best regards,
Murray Bacon

4 Responses to “Making the Punishment Fit The Crime”

  1. Stephen says:

    Thankyou Murray.
    I think an end to our ludicrous ‘no fault’ divorce law will go a long way to ending the ease with which men can be dumped as hubbies then shafted in what is laughingly called our ‘family’ courts.
    Many nz women I know have gone down this track and thus breought about a situation whereby an increasing number switched on nz men are wary of women period.
    That’s a shame.

  2. Dave llewell says:

    Your comments Reminds Of the Page a5 story under the courts heading in todays Sunday Star Times.Evey dad should read this. It shows what a farce the family court really is I feel for this guy and Hope to hell that things turn out for him and his Child with much more compensation than he hopes for.All males in this country have a major problem as long as this court is allowed to operate in this manner.Thank god there are those who are committed to doing something about it.Let us all throw our wieght behind them. Dave L.

  3. xsryder says:

    Thanks Murray,
    Excellent work.
    I’ve read chapter 4; “Standards of living after divorce”, and note that the author has left out one important factor; legal fees.
    Since the analysis was made 1 year after divorce, it is likely that the noncustodial parent will still be paying off their 20-30k (+) lawyer bill, while the custodial parent (the abductor) won’t be required to pay back Legal Aid. I’d like to see the figures revised with legal costs factored in.

  4. MurrayBacon says:

    Weighing evidence in NZ caughts ?????????????
    Justice Department “fixes” trial of court employee
    Wednesday 5 March 2014, 3:19PM
    By New Zealand Justice Forum
    60 views

    WELLINGTON

    Last week, on a quiet Monday afternoon in the Porirua District Court, Judge Arthur Tompkins dealt with a case that up until recently would have been put to a jury to decide whether or not the Crown had proven its case. Now days, an offence has to attract a penalty of 2 or more years imprisonment before an accused is entitled to request a jury trial.

    Judge Tompkins was called in from Hamilton to preside over the trial because of the difficulty in finding a Wellington judge who did not know the complainant, the registrar of the Court of Appeal, Clare O’Brien.

    Ms O’Brien made a complaint to police last September that she had been assaulted by a process server outside the Court of Appeal in Wellington. Although the incident occurred in Wellington and the complaint laid with the Wellington Police, the case was dealt with in Porirua to avoid any media scrutiny. The court subsequently heard that the decision to prosecute the case had been taken before witnesses had been interviewed, with the Constable charge of the case, Gareth Kearney saying he; “didn’t need to speak to other witnesses first because his orders to pursue the matter had come from above.”

    In the lead up to the trial several applications were made by the defendant for disclosure of CCTV footage of the encounter outside the Aitken Street entrance of the Court. It was here the defendant alleged that Clare O’Brien had first committed an assault by “swatting” a cellphone being used to take a picture of her to confirm service.
    ……..
    Despite the facts before the court that the Justice Department had obviously misled the police and the court about this critical evidence, further inquiry was not possible after security staff admitted that the footage had most likely been expired from the system, despite the fact that it was critical evidence in the proceeding.

    The Court heard evidence from all the witnesses, including the complainant which confirmed that Clare O’Brien had pushed the defendant first, thereby committing an assault. However in a bizarre twist of perverse reasoning which confirmed the depraved and corrupt nature of the proceedings, Judge Tompkins ruled that despite all the evidence to the contrary,Clare O’Brien had in fact been assaulted first before pushing the defendant.

    A sentencing hearing will take place in the Porirua District Court on 20 March 2014 and an appeal will be filed by with the High Court thereafter.

    _______________________________________________________________________
    What a horrifying story.

    Arthur Tompkins seems to be the only NZ judge who has heard of Bayes’ Theorem about conditional probabilities. He wrote a paper about it in 2002.

    Look about half way down the post above, or search for Tompkins in browser.

    He speaks internationally at art theft legal conferences, about weighing evidence.

    Bayes’ Theorem is the basis of probability calculations used in DNA analysis. The scientists do the calculations and I don’t think any legal minds understand it properly, if at all.

    So, if any judge in NZ should have been able to weigh the evidence, it should have been Arthur Tompkins?

    In my opinion, the NZ caught$ system is an old 1950s mental hospital, where even the staff can’t get competent psychiatric help.

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