The worst top court decision?

January 24th, 2012 at 11:00 am by David Farrar

at Pundit blogs:

I’ve been asked by a colleague at an overseas law school to contribute to a special issue of their journal. The topic for the issue is: “The worst decision by a nation’s top court of the last 25 years.”

As the Kiwi representative, I’m expected to give a response to that prompt in relation to New Zealand jurisprudence. But I thought I’d throw it over to the knowledgable and opinionated readers of this site to crowdsource their wisdom (or, at least, pick up some suggestions of avenues that might be worth chasing down).

So – in the comments below, what do you think our top court’s worst decision has been in the last quarter century, and what makes it so bad? I’ll be interested to see if there’s any sort of consensus on this question, in the same way as US lawyers virtually all agree Dred Scott, Lochner, Plessy and Korematsu were bad. I’ll also be interested in what people think makes a “bad” court decision in the first place – is it the reasoning (or lack of), or the consequences, or something else instead?

There’s already an interesting thread at Pundit on the issue, but no consensus. If any lawyers reading this have an opinion, feel free to share.

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62 Responses to “The worst top court decision?”

  1. Fisiani (851 comments) says:

    Easy. The Christchurch creche conviction of Peter Ellis for a crime that never took place.

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  2. Pete George (21,798 comments) says:

    Peter Ellis was the first that came to mind for me as well. It wasn’t just a flawed court decision though, the investigation would rank as one of the most flawed too. And how it’s not been dealt with since.

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  3. Graeme Edgeler (3,216 comments) says:

    Fisiani – that’s never been to the Privy Council or the Supreme Court, so probably doesn’t count.

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  4. Pete George (21,798 comments) says:

    Maybe it should count because it hasn’t been to the Privy Council or the Supreme Court.

    Or maybe it was so bad it shouldn’t have needed to go to the highest court.

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  5. Dave A (61 comments) says:

    No but it’s been to the Court of Appeal twice and resulted in two appalling decisions.

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  6. alex Masterley (1,438 comments) says:

    NZ Maori Council v AG. 1987.

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  7. RRM (8,988 comments) says:

    I can’t believe no-one has mentioned Roe vs Wade…

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  8. Dave Stringer (182 comments) says:

    Perhaps a bottom court might be a starting point.

    For instance, a woman was convicted of common assault for slapping a 14 year old who punched her 13 year old daughter in the face. http://www.stuff.co.nz/national/6304053/Diversion-for-mum-who-slapped-bully
    No mention of the puncher being punished, just the defensive mother!
    When mothers are not allowed to defend their children against attack, surely we have started down the slippery road to anarchy.

    David – if this is too far out of line for this topic please delete it.

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  9. Pete George (21,798 comments) says:

    Because this is a law school journal exercise the choice will be for a bad technical decision as per law.
    Maybe we should have two categories – one for legal purists and one for public outrage.

    Roe vs Wade – too old regardless of any other argument for or against.

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  10. Pauleastbay (5,030 comments) says:

    There wiill be a few ripper civil decisions tucked away that only the puriest will be aware of but have far reaching effect on us all.

    Criminal decisions very rarely affect anyone else other than those directly involved .

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  11. XChequer (350 comments) says:

    Making Dame Sian chief justice – her logic escapes me sometimes.

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  12. tristanb (1,133 comments) says:

    Does David Bain being “not guilty” count?

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  13. kowtow (6,690 comments) says:

    1987 Court of Appeal.NZ Maori Council v AG.

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  14. KiwiGreg (3,129 comments) says:

    Not sure if they intend Court of Appeal decisions to count as it’s never been our “Top Court” – either PC or SC.

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  15. trout (865 comments) says:

    It has to be the interpretation (by Justice Cooke was it?) that the Treaty of Waitangi created a ‘partnership’.

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  16. Salacious Crumb (28 comments) says:

    Have to agree that the Peter Ellis trial is up there – probably worse than the Arthur Thomas conviction. Also the decision to disallow so much prosecution evidence at the Bain retrial despite the defence being permitted heresay evidence was particularly alarming.

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  17. Dave A (61 comments) says:

    Regardless of your view of Roe v Wade, it is not a New Zealand case.

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  18. ross (1,454 comments) says:

    “Fisiani – that’s never been to the Privy Council or the Supreme Court, so probably doesn’t count.”

    The Supreme Court didn’t exist when Ellis’ trial took place. It still didn’t exist when both appeals were heard.

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  19. Put it away (2,888 comments) says:

    An awful lot of people commenting here seem to have difficulty reading and understanding simple English…

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  20. Viking2 (10,701 comments) says:

    The worst decision by a nation’s top court of the last 25 years.”

    Where to start there are soooo many!

    In NZ terms Cooks ruling on the Treaty. It was bad and will have a continuing legacy forever in NZ.
    FWIW

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  21. fatnuts (164 comments) says:

    Not sure about the worst, but the finding that flag buring was not ‘offensive’ was somewhat irritating. Certainly offended me.

    http://www.stuff.co.nz/national/4973951/Ruling-makes-flag-burning-legal-says-expert

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  22. lilman (658 comments) says:

    With out doubt the BAIN fiasco.
    A murder has walked.

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  23. Paulus (2,292 comments) says:

    The worse decision was for Helen Clark to move New Zealand away from the Privy Council and set up a quasi Supreme Court.
    On a local level Peter Ellis.

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  24. Spoon (99 comments) says:

    Bain. Although whether the bad decision was 17 years ago or 3 is open for debate.

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  25. oob (194 comments) says:

    The wrongful conviction of Bruce Emery.

    Emery was a prisoner of conscience of the Clark regime, convicted for defending his home and family from a violent gagng associate.

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  26. annie (533 comments) says:

    Peter Ellis.

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  27. lastmanstanding (1,154 comments) says:

    As Viking says there are 2 many to list here. But just to illustrate the dumb arse mentality of people appointyed to the bench how about the stupid bitch Judge who said the evil little bastard that raped the 5 year old in Taupo looked nicely dressed at his Court appearance and how she appreciated the nice prayer he had written asking for forgiveness,

    What we have i s a Judicary composed of

    A Those who are immune to the seriousness of the crimes coming to their Courts

    B Those who dont give jack shit for the citizens views.

    Time we had a Committee of Citizens to ‘examine” Judges decisions and recall those who dont pass muster.

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  28. ben (2,385 comments) says:

    The decision early in the life of the Resource Management Act which took the implementation of the act in a whole other direction from that intended by Parliament. Not sure if that decision ended up before the Privy Council.

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  29. Daigotsu (444 comments) says:

    “Roe vs Wade – too old regardless of any other argument for or against.”

    If Dred Scott can be cited, why not Roe vs Wade? By contrast it’s minty fresh

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  30. farmerdes (16 comments) says:

    Marbo.

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  31. Joseph Carpenter (210 comments) says:

    Well said Ben, it was the decision that allowed “environmental sustainability” to mean everything you wanted to object to. Another bad early Environment Court decision was the one that effectively destroyed “existing use rights” and made the RMA retrospective, allowed “come to the problem” and forcing consent renewals.

    Surprised about the USA decisions – surely Kelo vs City of New London is by the worst of the recent ones both for lack of technical merits and incredibly poor jurisprudence.

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  32. F E Smith (3,273 comments) says:

    Roe vs Wade is a US decision and is more than 25 years old. Dredd Scott was given solely as an example.

    A bad decision in recent years? I would have to say R v Shaheed, a CA decision from 10 years ago. One of the most incomprehensible decisions the CA made. It was awful to work with, and involved an appalling change of principle in criminal law for NZ.

    The Bain decisions made by the SC were completely correct, Salacious Crumb. You may disagree with the verdict, but in law the SC got it right.

    Another bad CA decision is the dismissal of the Scott Watson appeal, in my view, but that is not one on a par with the concept put forward here, being that every lawyer will look at a case and go ‘that stinks’.

    Bruce Emery was not wrongfull convicted. Ellis is an appalling set of circumstances and one the CA should be ashamed of.

    lastmanstanding, your abuse of the judge in that case is uncalled for and wrong. It was entirely appropriate for a judge in the Youth Court to say those things. Then she kicked him up to the District Court for sentence, so she did her job in an exemplary fashion.

    EDIT: farmerdes, Mabo is an Australian case…

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  33. Pauleastbay (5,030 comments) says:

    FES

    r v shaeed

    first twenty months of judicial application of Shaheed has not lead to the erosion of rights that was feared by some critics. Indeed, the New Zealand Bill of Rights Act 1990 itself contemplated such a balancing approach being given to the application of its

    A great bit of case law ensuring that the prosecution was not constantly having defence lawyers throwing Geofforyisims at them, gold

    I was hoping you’d come up with some civil dinger that has cost us all money

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  34. tvb (3,938 comments) says:

    What is the point of this post. The Government can use legislation to overturn anything unacceptable though I would put the Judges against some self serving politicians thinking they know best – any day. We are extremely well served by our Judges, there are checks and balances in the system, it is all out in the open and any hint of corruption is just unthinable. It is a credit to our legal system and the values our Judges subscribe to. Worst decision indeed, what rot.

    [DPF: Tim why don't you try reading the post. Prof Geddis explains in detail why he is seeking this info]

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  35. Scott Chris (5,675 comments) says:

    Bit off the subject of the NZ judicial system, but some people might find this interesting:

    :arrow: Best and Worst US Supreme Court Decisions ever according to Alex Harris of “The Technology Liberation Front”, an organization dedicated to preserving the freedom of the internet.

    http://techliberation.com/2009/02/15/best-and-worst-supreme-court-decisions/

    Somewhat topical…..

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  36. Joseph Carpenter (210 comments) says:

    I would also have thought for the USA Gore vs Bush Jnr. has to be right up there, I agree with the decision but basically they pulled it entirely out of their asses.

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  37. Nostalgia-NZ (4,683 comments) says:

    Any case where the COA try to function as a Jury to the point of predicting what the outcome of what a Jury’s deliberation might have been where new evidence is available, or where there have been misdirections. The whole point of a jury is their diversity, praticality, intelligence, even prejudices – such features can’t be applied by the bench as to what a verdict might otherwise have been unless in favour of a convicted person.
    There are others at the moment, but the most ‘urgent’ is Watson, anybody who believes the Jurors in that case were not effected by the evidence of the ‘singing for their supper prisoners’ must be an avid fan of Disney comics. The question of how to attempt to Judge the impact of such evidence once it is discredited (imo it was discredited at the outset and shouldn’t have been allowed) – you (the Court) don’t, that is firmly the domain of the Jury. And how do you (the Court) judge the effect of the evidence in the 1st place, you also can’t, because all the qualitities and realities of the personnel of a sworn Jury cannot be captured anywhere else that in the Juror’s room – they are the Judges of guilt and innocence.

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  38. BlairM (2,266 comments) says:

    @Joseph Carpenter – the Gore vs Bush was a 7-2 decision, so it wasn’t even partisan. And no, they didn’t pull it out of their arses. The decision on how a state selects its delegates to the electoral college rests entirely with the state. Constitutionally, they don’t even have to abide by the results of the election in the state and can select the delegates according to their own rules and whim. In this specific case, the Florida Attorney General had certified the result and confirmed the delegates, and the Supreme Court regarded that as the end of the matter, as all rules had been followed.

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  39. F E Smith (3,273 comments) says:

    Joseph Carpenter,

    BlairM has it completely right. If you want one that qualifies for your description, then Roe vs Wade does. Regardless of what you think re abortion, the way they got to their decision was just weird.

    PaulEB,

    As a former police prosecutor, I would expect no less of a statement from you!!! However, regardless of the effect (and I disagree with your opinion of it, obviously!) the decision itself is appalling. It is considered (and I have had this from the bench, not just the bar) one of the most incomprehensible cases. It just doesn’t make sense. Fortunately it has been superseded so we don’t have to use it any more.

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  40. UpandComer (496 comments) says:

    I think the peter ellis case. really bad right from the beginning.

    I know this isn’t directly on topic but found a really interesting article about imprisonment in the United States, thought some of you might like to look at it.

    http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik?currentPage=all

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  41. sbw (44 comments) says:

    Waihopai Three Claim of Right case – http://www.beehive.govt.nz/release/government-reform-or-repeal-waihopai-3-defence

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  42. F E Smith (3,273 comments) says:

    sbw,

    the Waihopai case was a jury decision, not a CA or SC judgment, so it doesn’t count.

    But, for the record, the argument was there…

    EDIT: and Power’s reaction was typical of the kneejerk stuff he indulged in. Completely unnecessary. Just making up for a prosecution that hadn’t prepared properly.

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  43. GPT1 (2,042 comments) says:

    Simpson v AG (Biagent’s case). A piece of Judicial Treason I believe Prof. Allan described it as.

    Shame Simon Power isn’t a decision as he would win.

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  44. F E Smith (3,273 comments) says:

    Shame Simon Power isn’t a decision as he would win.

    Absolute gold!

    Disagree on Baigent’s case, though- I quite like it.  Really means nothing today, though, surely? 

    What would you replace it with?

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  45. GPT1 (2,042 comments) says:

    I wouldn’t touch it because it has become such an integral part of the legal landscape, the horse has well and truly bolted. Hell, perhaps it should have had remedies but the reality is that Parliament passed a declaratory law, the intent of Parliament was that it should have no remedies (I believe that Palmer said that to Parliament) and the CA usurped Parliament.

    On the other hand if you’re going to give the bird to Parliament and make stuff up then Human Rights is not a bad area to have a go at as it’s never going to be rescinded.

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  46. GPT1 (2,042 comments) says:

    Btw I think I tried to read Shaheed once. I have falled asleep in a law book and my drool was more readable than that case.

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  47. F E Smith (3,273 comments) says:

    On the other hand if you’re going to give the bird to Parliament and make stuff up then Human Rights is not a bad area to have a go at as it’s never going to be rescinded.

    My thoughts exactly!  Hence my liking for the decision.  But a fair point on your part.

    I think I tried to read Shaheed once

    It really was a nightmare to work with.

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  48. GPT1 (2,042 comments) says:

    * fallen even

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  49. Tauhei Notts (1,508 comments) says:

    I go for the Penny & Hooper tax case decided last year.
    What they did was completely within the law as that law has been passed by our parliamentarians.
    Our tax law has measures about associated persons being paid too much as that can create a tax saving. There is nothing whatsoever in our tax laws to make it an offence to pay somebody too little. Parliamentarians are there to make the law; not some unelected group of judges trying to grovel up to the politicians. In that case the judges wrote the law.
    They had not been elected to do so.
    They are appointed to enforce the law that our elected officials make.
    The fact that some Labour Party dickwits made the top personal tax rate far in excess of either the trustee rate or the company rate; the bastards should have altered other parts of the law because of the consequential effects. They were too obstinate to do so.

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  50. Viking2 (10,701 comments) says:

    “The worst decision by a nation’s top court of the last 25 years.”

    I take that to mean by Judiciary rather than Jury.

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  51. Paul Marsden (935 comments) says:

    Pauleastbay (1,885) Says:

    January 24th, 2012 at 11:32 am
    There wiill be a few ripper civil decisions tucked away that only the puriest will be aware of but have far reaching effect on us all.

    PEB Absolutely correct. Here’s a brief snapshot of a High Court Judge’s conduct in just one of them:

    In an injunctive proceeding, a High Court judge contacts a plaintiff’s legal counsel to enquire as to whether orders he made against the defendant at an earlier hearing, were been followed. The same High Court judge rules a defendant’s key witness’s testimony as ‘hearsay evidence‘. The same High Court judge sullies people’s reputations from the bench (worse, based on perjured evidence), and these people are unable to defend themselves. The same High Court judge makes a ruling against the defendant, then refuses to state why. (The Appeal Court later went on to mention that this High Court Judge failed to follow even basic principles of law). This High Court judge was not sanctioned in anyway and was not automatically disqualified from sitting on the bench at any later, substantive hearing. Worse, the Judge’s incompetence and malfeasance cost NZ many millions of dollars of lost export earnings and caused other, significant, collateral, economic damage and he gets off scot-free. This is the system we have in NZ and its wrong. Very wrong indeed

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  52. Viking2 (10,701 comments) says:

    Tauhei Notts (1,010) Says:
    January 24th, 2012 at 6:43 pm

    I go for the Penny & Hooper tax case decided last year.

    Don’t agree with you there. Always considered they would lose that argument. Its was an artifical contsruct , the purpose of which was to avoid paying the correct tax. Had they not been so bloody greedy then we would all have been better off because now the taxman has got eveyone captured in the net, no argument.

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  53. tvb (3,938 comments) says:

    The Waihopai case was based on a direction given to the jury by a judge

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  54. Johnboy (13,342 comments) says:

    Neglecting to shoot Doctor Sutch, for espionage, as an example to the rest of the lefty fucks that populate the civil service, was a very serious mistake IMHO. :)

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  55. Joseph Carpenter (210 comments) says:

    Mr Smith and Mr Blair I bow to your superior memory of Gore v. Bush, like I said I thought they came to the right decision: the first part of their judgment was sound and relied on Equal Protection Amendment (7-2) but I thought the second part (remedy) was controversial – per curiam 5-4 decision relying on “reasonableness” and “safe harbour” estimated intent of Florida state legislature. And don’t forget the judgment was to overturn the States’ decision not enforce it – both grounds highly disputable and not specifically within the constitution – and given that they were effectively determining the Presidential election should have been on a firmer basis.

    Agree Roe v. Wade “penumbra” was another out there one right up there with the “principles of partnership” in the penumbra of the Treaty of Waitangi, who knew?

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  56. F E Smith (3,273 comments) says:

    tvb,

    the direction was on the available defences, of which the accused had raised one. It was a valid defence to raise and the judge pretty much had to let it go to the jury.

    Ergo, it was a jury decision, not a judicial one.

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  57. farmerdes (16 comments) says:

    F E Smith,

    Obscure I know, but I was joking, you should watch “The Castle” sometime. Very Funny.

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  58. tevita (11 comments) says:

    One of the worst: Taito Phillip Field. The police and crown spent literally millions of dollars of taxpayers money to nail him with a falsely alleged $58,000. They intimidated fearful immigrants with dodgy backgrounds, gave them immunity and got them to lie against him. Then fought him all the way to the SC on their spurious redefinition of bribery. Why? To please Helen Clark and her minions who hated him. And of course he had no friends in National to defend him – certainly no one on this blog.

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  59. Pauleastbay (5,030 comments) says:

    …………….certainly no one on this blog.

    Jesus you’re sharp tevita, stand for Parliament.

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  60. tevita (11 comments) says:

    My point, with a respect you have not shown me, and just in case it was not obvious,is that he was and is an understandable political target for National Party supporters, including most of the contributors to this blog.

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  61. Pauleastbay (5,030 comments) says:

    tevita

    Plain old Phillip Field is a convicted criminal, there was nothing political about it and as for your rambling about pleasing Helen Clark, she sat on her arse for an eternity doing nothing about this crook. keep up.

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  62. tevita (11 comments) says:

    Not political? Just one point for now: Inspector Malcolm Burgess pursued a number of cases at Helen Clark’s behest, including this one, for which he commuted from the South Island, and he was promoted afterwards.

    Did nothing about it? Before it went before the jury, HC as Prime Minister told the whole country that he was ‘immoral and unethical’.

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