Why criminal histories should be shared

April 4th, 2014 at 12:00 pm by David Farrar

The Herald reports:

The tragic deaths of two Dunedin children shot by their father Edward Livingstone earlier this year could have been prevented if New Zealand and Australian police shared information on criminal convictions, TVNZ has reported.

Livingstone killed his two children Bradley, 9, and Ellen, 6, at their mother’s home in Dunedin in January, before turning the gun on himself.

TVNZ reported tonight that Livingstone had previously been convicted for arson in Sydney, after trying to burn down his then-girlfriend’s house when she broke up with him.

The incident occurred 30 years ago.

He also assaulted a flatmate during the same incident, ripping the phone from his girlfriend’s hands to prevent her from calling police, TVNZ reported.

New Zealand judges were unaware of Livingstone’s past conviction and behaviour when he appeared before the courts for twice breaching a protection order against his ex-wife, Katharine Webb.

Three months before Livingstone shot his children, the 51-year-old was discharged without conviction for breaching a protection order against his family for a second time.

We can’t know if this extra info would have made a difference, but it could well have. Even though it was 30 years ago, the behaviour was so extreme I think a Judge would have taken it into account. Having said that I think a second breach of a protection order should be jail anyway.

Tags:

29 Responses to “Why criminal histories should be shared”

  1. anticorruptionnz (215 comments) says:

    I cannot understand why criminal histories are not a matter for public record. If a person appeal their conviction then the court records are there for all to see. Even in civil matters , tenancy tribunal wets decisions are publicly available and all your washing is out in public but criminals who do things intentionally have a right to Privacy !.

    I have never been able to establish any legal grounds as to why criminal convictions are subject to secrecy and civil matters are publicly available .

    Vote: Thumb up 9 Thumb down 0 You need to be logged in to vote
  2. Judith (8,534 comments) says:

    I agree with most of what DPF says but have issue with this: –

    Having said that I think a second breach of a protection order should be jail anyway.

    Protection orders, whilst primarily used to ensure safety, can and have been widely abused, and even used as a tool by some to ‘control’ others.

    I know of one situation where a woman, wanting to punish her partner for some reason or other, applied for a protection order to keep him away from his children. There had not been any violence in the relationship, but there were issues over money. She would frequently allow him to come over and baby sit his own children, often hitting him up for cash at the same time. When he said no, she would them report him to the police for being there. They knew the situation, but are duty bound to follow the law.

    Under the requirement of compulsory imprisonment, this poor guy, who simply wanted to see his kids and do what was right for them, would be in prison?

    If we are going to have such a clause, then we also need to have some way of defining protection orders so they cannot be a manipulation tool in the nasty experience of relationship breakups.

    Vote: Thumb up 16 Thumb down 0 You need to be logged in to vote
  3. Chris2 (766 comments) says:

    The secrecy thing is mad. If an employer does a criminal records check on a job applicant (has to be with their consent) the criminal conviction result from the Ministry of Justice does not even say what the actual sentenced imposed was.

    If they got prison it will only say “sentenced to imprisonment” so you have no idea how long they got – the employer has no way of knowing how severe the crime was because the Ministry of Justice wont disclose how long a term of imprisonment was imposed. If they were fined you have no information on how much the fine was – $50 or a million dollars. They won’t tell you.

    Vote: Thumb up 6 Thumb down 0 You need to be logged in to vote
  4. tvb (4,421 comments) says:

    Many breaches of a PO do not involve violence or threats of violence. An unsolicited text can breach a protection order. Not leaving when asked to leave. Send the to jail you screech. I wish you were more sophisticated on these matters

    Vote: Thumb up 7 Thumb down 0 You need to be logged in to vote
  5. iMP (2,385 comments) says:

    I have to say, that if NZ courts are going to…

    “discharge(d) without conviction for breaching a protection order against his family for a second time”

    then women have the right to arm themselves and take what measures they deem fit to protect themselves and their children.

    Vote: Thumb up 1 Thumb down 2 You need to be logged in to vote
  6. David Garrett (7,272 comments) says:

    Having criminal histories shared is a no brainer..but I find myself in the rare position of agreeing with Judith on protection orders. Although I believe the situation may have changed a little now, getting a protection order used to be as simple as swearing a false affidavit as to the other party’s behaviour…Often such orders were issued ex parte (without notice to the person against whom the order was made). When such orders were breached even in a minor way – such as the father calling the house to speak to his kids – the police used to “lock up first, ask questions later.”

    I would be interested in hearing from someone who practises in family law about the current situation.

    Vote: Thumb up 8 Thumb down 0 You need to be logged in to vote
  7. kowtow (8,469 comments) says:

    Even better!

    This guy was employed by the Corrections Dept.

    How the f@#k does that happen?

    Vote: Thumb up 7 Thumb down 0 You need to be logged in to vote
  8. mikenmild (11,247 comments) says:

    ‘I think a second breach of a protection order should be jail anyway’
    Surely there should be three strikes here.

    Vote: Thumb up 4 Thumb down 1 You need to be logged in to vote
  9. David Garrett (7,272 comments) says:

    ImP: Yep, that’s a good idea…authorize mum to shoot dad in front of the kids if he does something silly like bring around a birthday present for one of his children..great idea!

    Vote: Thumb up 12 Thumb down 0 You need to be logged in to vote
  10. Longknives (4,744 comments) says:

    Agreed with David G and Judith (how often does that happen?)
    Protection Orders can be murky, messy affairs and prone to abuse by parties involved in Custody Disputes etc
    I would be loathe to see the Courts slam the cell door shut on any guy who is alleged to have ‘breached’…
    That said- this Livingstone bloke was clearly a complete arsewipe…

    Vote: Thumb up 5 Thumb down 0 You need to be logged in to vote
  11. Lance (2,655 comments) says:

    From a personal point of view my brother had a mad girlfriend, mad as a box of snakes.
    He told her it was all over and she came around and started damaging his car with rocks. He yelled at her to stop, didn’t work, damage continued so eventually he pushed her on her arse to prevent the ongoing expensive property damage.
    Yep, he was done for assault and a protection order ensued.

    To actually see such shit go down was breathtaking.

    I lost a lot of respect for the cops that day, a pity because I held the Police in high regard.

    So it isn’t hard to imagine someone having a perverse sense of revenge visited upon them by a mentally twisted ex.

    Vote: Thumb up 14 Thumb down 0 You need to be logged in to vote
  12. David Garrett (7,272 comments) says:

    Knives: When I worked in a firm before I went to Tonga the Family Law partner often used to boast about how easy it was for her to get ex parte protections orders…Often the applicant couldn’t even read the affidavit in support, much less dictate it..

    In my little community out here I am aware of three guys – unconnected in any way except their all knowing me – who spent weekends in jail when the ex missus called the cops and claimed she had been assaulted…no physical evidence of any assault; no corroborating evidence of any kind. In one case the ex was convicted of assaulting the guys new partner…convicted and discharged without further penalty because she was “upset” at the time…

    Vote: Thumb up 10 Thumb down 0 You need to be logged in to vote
  13. Fox (206 comments) says:

    First of all, I’m all for sharing criminal histories. Not just from a trans-Tasman perspective, but globally.

    However, isn’t the real issue here the refusal of soft-touch, detached-from-reality NZ judges to properly enforce an existing protection order?

    How on earth can such an order be effective if there are no consequences whatsoever for breaching it?!

    Vote: Thumb up 7 Thumb down 1 You need to be logged in to vote
  14. Fox (206 comments) says:

    Protection Orders can be murky, messy affairs and prone to abuse by parties

    If this is the case, then surely the solution is to place the protection order process under review in order to enhance it’s veracity, rather than simply disregard protection orders altogether?

    Vote: Thumb up 4 Thumb down 0 You need to be logged in to vote
  15. David Garrett (7,272 comments) says:

    Fox: I dont think anyone is suggesting protection orders should be disregarded altogether…commenters are simply pointing to instances where they are abused and/or issued wrongly.

    A thorough review of this area of the law might well be a good idea, but it’s not a “sexy” issue, and thus one unlikely to give rise to much enthusiasm…especially in election year.

    Vote: Thumb up 6 Thumb down 0 You need to be logged in to vote
  16. Rex Widerstrom (5,354 comments) says:

    David Garrett points out:

    A thorough review of this area of the law might well be a good idea, but it’s not a “sexy” issue, and thus one unlikely to give rise to much enthusiasm…especially in election year.

    True, and furthermore any suggestion they were being abused in the way Lance and others have pointed out would lead to a vocal backlash from certain sectors of society. Whereas not only are men who are victimised by the whole protection order / Family Court system poorly organised, they’re easily written off as “disgruntled” or “crazy”. And occasionally… usually because they’re pushed to the edge by being ignored… they are their own worst enemies (I’m thinking D4J, for instance, who seems to have been materially disadvantaged on numerous occasions but who eroded any sympathy people may have had for his plight through the sheer intensity of his advocacy).

    On the broader question, of cross-border criminal history sharing, there’s a gross disparity between offenders which needs to be redressed. And it’s that if you happened to offend at a time when records were kept electronically, chances are that – sooner or later – your record will catch up with you. But if you offended prior, you’ll likely always avoid scrutiny, as no government thinks it worth the money to pay for data entry of old records.

    Thus a 30 year old conviction probably wouldn’t show up even if data sharing did occur. I know of people with old convictions who regularly enter NZ and simply tick “no” to the immigration card question about criminal convictions, for instance. They’re in effect able to avoid an additional penalty (the risk of being declined a visa) that someone whose offence date happens to be different could not avoid. That’s discriminatory (as well as potentially dangerous) and needs to be addressed. In other words, if we’re going to share records, we should do it properly, and demand the same of other countries. And that means loading the histories of everyone still alive, regardless of the date of their offence.

    Vote: Thumb up 7 Thumb down 0 You need to be logged in to vote
  17. Rex Widerstrom (5,354 comments) says:

    And on another point of David Garrett’s:

    I would be interested in hearing from someone who practises in family law about the current situation.

    I’m providing advice on the civil liberties implications of two matters currently before the Family Court of Western Australia. Certainly there, swearing a false affidavit and gaining a VRO (protection order) is such a common practice that a special court has been created in the Magistrates Court registry (where ex parte VRO applications are first heard) so that a Magistrate – hopefully – becomes better able to sift the bullshit from the truth. A Magistrate commented to me to the effect that they assume both parties are lying through their teeth, and are usually proved right.

    In terms of enforcement, also, things are much the same as you describe. A few years back I had the insane situation whereby a person restrained by an order was allowed to sue the protected person for defamation. He had something like 13 other cases on the go at once, all self represented, yet I couldn’t convince the AG to declare him a vexatious litigant.

    At the other extreme, police turned up at the home of a woman I was advising claiming that her ex-partner had obtained an order barring me from being near his child (and thus her, since the child is 18 months old). I calmly read the orders and there was nothing whatsoever to that effect, but they’d simply believed what he’d told them on the phone. Asking the officer to show me the relevant paragraph produced the response that they would arrest her – not me! – if I didn’t leave.

    And to compound matters, Parliament introduced what are called “technical breaches”. So you can breach a Violence Restraining Order by sending a text saying “You threw me out of the house with only the clothes I’m wearing. Could you please put my clothes in a garbage bag and leave them on the kerb for me to collect? I’m happy to drive past when you’re not home if you tell me a suitable time”. Send three of those and you can end up doing jail time – and many men have.

    Vote: Thumb up 8 Thumb down 0 You need to be logged in to vote
  18. ross69 (3,652 comments) says:

    Judith Collins reckons the info probably wouldn’t have mattered as Livingstone’s record might have been wiped clean.

    Vote: Thumb up 1 Thumb down 3 You need to be logged in to vote
  19. ross69 (3,652 comments) says:

    Having said that I think a second breach of a protection order should be jail anyway.

    So, let’s say Livingstone had been sent to prison. He probably would have been given a light sentence. So he would soon have been released, possibly angrier than what he was when he committed double murder. Indeed, he might have murdered his two kids and his ex-wife and others, a worse situation than what eventuated.

    Vote: Thumb up 3 Thumb down 5 You need to be logged in to vote
  20. Elaycee (4,392 comments) says:

    @ross69: So, let’s say….. He probably… So he would… possibly angrier… he might have…

    Sheesh – by your ‘logic’ he could have been paroled to an address in your street on Waiheke.

    You complete sock puppet.

    Vote: Thumb up 4 Thumb down 4 You need to be logged in to vote
  21. Chuck Bird (4,883 comments) says:

    Just slightly off topic. I heard Mike Hoskings this morning talk about a case where a employee did not disclose criminal record and was fired. Employer was fined about $6k and had to pay 3 month wages. Has anyone heard of this case?

    Vote: Thumb up 2 Thumb down 0 You need to be logged in to vote
  22. David Garrett (7,272 comments) says:

    “complete sock puppet”…coffee all over my keyboard…

    Vote: Thumb up 3 Thumb down 0 You need to be logged in to vote
  23. Elaycee (4,392 comments) says:

    @Chuck Bird: Article here may help… ;)

    http://www.stuff.co.nz/the-press/news/9898107/Firm-to-pay-compo-for-firing-liar

    Vote: Thumb up 2 Thumb down 0 You need to be logged in to vote
  24. Chuck Bird (4,883 comments) says:

    Elaycee

    Thanks for that. It is very hard to have a strong opinion with so few facts.

    It would depend on the nature of the crime for one thing. If the person was employed in a school and the offense was against a child I can certainly understand the employers action.

    Vote: Thumb up 2 Thumb down 0 You need to be logged in to vote
  25. Rowan (2,345 comments) says:

    Yes they should definitely be shared, the case of Jeremy McLaughlin as well as the Livingstone murder suicide illustrates this. Livingston should of also been in jail as a protection order is not worth the paper its written on.

    Vote: Thumb up 0 Thumb down 1 You need to be logged in to vote
  26. jackinabox (776 comments) says:

    “At the other extreme, police turned up at the home of a woman I was advising claiming that her ex-partner had obtained an order barring me from being near his child (and thus her, since the child is 18 months old). I calmly read the orders and there was nothing whatsoever to that effect, but they’d simply believed what he’d told them on the phone. Asking the officer to show me the relevant paragraph produced the response that they would arrest her – not me! – if I didn’t leave.”

    Porky bastards!!

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  27. Elaycee (4,392 comments) says:

    @Chuck Bird: The ERA decision is here…

    http://www.dol.govt.nz/workplace/determinations/PDF/2014/2014_NZERA_Christchurch_44.pdf

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  28. Viking2 (11,471 comments) says:

    Didn’t the guy work for the employer for about 13 years until some hotshot fired up educated university graduate come along to practice HR?

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote
  29. Nostalgia-NZ (5,202 comments) says:

    Just finished reading that Judgement, 13 years and absolutely no issues with his work, in fact several promotions through that time. Distributing the letter from the police to other staff seems to be the issue of the complaint to the Privacy Commissioner – hard to see how the company were meant to deal with it without consulting about it. Tricky one, so is the question of how Livingstone got a job with corrections. With the former the only way was probably to make a negotiable offer for him to go, as much as that might rankle it is the way the ERA, and the Courts expect it to be dealt with.

    Vote: Thumb up 1 Thumb down 0 You need to be logged in to vote