Guest Post: David Garrett on manifestly unjust

A guest post by David Garrett:

Application of “manifestly unjust” exception a constitutional outrage

On 22 May, I sat among the grieving family members of Aroha Kerehoma, listening to the appalling injuries inflicted on her by third strike murderer Dylan Davis. What the family members heard – judging by their comments and questions of me – was to them an incomprehensible judicial farce.

Whenever “life without parole” was mentioned during what was a lengthy sentencing, family members would say “YES” in  a loud stage whisper. Sadly it was  obvious to me fairly early on that LWOP would  not in fact be imposed. Whenever  Davison started on a “however….” section, a woman I later learned was Aroha’s auntie would lean forward to me, the white guy in a suit muttering to himself, and say “What does he mean Boss?” The family members had no way of knowing that Davis would eventually escape his fate due to judgments made in a superior court almost three years ago.

I mean no disrespect to Justice Davison, and the family seemed to understand what I explained to them: that Davison’s  hands were largely tied by the Court of Appeal, which  misinterpreted both the meaning and intent of the “manifestly unjust” proviso to the three strikes (3S) law relating to murder.

The “unless it is manifestly unjust” out clause was insisted on by National as its price for agreeing to support the 3S law in the first place – without that, we would not have a 3S law at all. That notwithstanding, I now feel something of a dupe for recommending to the ACT caucus that we agree to it. It was intended to be something that was very rarely used; we never envisaged it being applied in every case  of murder – all eight of them – which have now  come before the court as a second or third strike.

I agreed to the insertion of the “manifestly unjust” proviso for the sound lawyerly reason that the phrase had been used before – most notably in s.102 (1) of the Sentencing Act  (s.102 deals with  the presumption of life imprisonment in cases of murder). Sub-section (1)  allows a Judge to depart from the presumption of life imprisonment  “ if a sentence of imprisonment for life would be manifestly unjust”. To my knowledge, the proviso to s.102 has only been resorted to only a handful of  times in the hundreds of cases of murder since the Sentencing Act came into force in 2002.

As far as I am aware, the proviso to s.102 has been used only  in cases where a spouse, often an elderly husband,  has killed a much loved wife who was suffering from a painful terminal disease; in other words, a mercy killing or euthanasia. There may be other cases; if so one of my brethren at the criminal bar will correct me.

In the Court of Appeal case which constrained Justice Davison, the court not only  re-wrote the meaning of “manifestly unjust”, and explicitly said that a different meaning must prevail when applied in  3S murder cases, but inserted the crucial words “…or grossly disproportionate” into the definition – words parliament never intended to be part of the law. Something the Judges would have known if they had referred to Hansard, which they carefully refrained from doing.

In fact it is even worse than that. I spoke at every stage of  3S  passing through parliament, and numerous times during the Committee of the Whole stage.  The issue of the “disproportionality” of 3S sentences was raised numerous times by the Labour Party; it was raised and responded to  so often I wondered if they were simpletons.

I made it clear that disproportionality was the whole point of the 3S regime; it was intended  that consequences get exponentially worse for repeat offenders.  At no stage did any of the National Party speakers on the  Bill  suggest that “…or grossly disproportionate” ought to be explicitly added to, or implicitly understood to be included in, the “manifestly unjust” proviso.

The Judges of the Court of Appeal have  not only thwarted the clear will of parliament, but have inserted words into a definition that are not there, and were never intended to be there. In my view, this is nothing less than a constitutional outrage, and if it were occurring regarding a law passed by a government of  the left, there would be loud protests in the street.

Our constitution is very clear: the laws are made on one side of Molesworth Street, in parliament, and ultimately applied on the other side of the street in the Court of Appeal. Because the Judges of the Court of Appeal don’t like the 3S regime, they have rewritten it. That is nothing short of a disgrace.

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