Karl du Fresne: When principle sinks in a swamp of legalism

In a past life, many years ago, I informally sought advice from a highly respected Wellington lawyer, the late Sandra Moran, over a legal issue that had been weighing on my mind. 

It involved what I thought was an important point of principle, and I vividly remember Sandra warning me off by saying, very emphatically: “It costs a lot of money to establish a point of principle.” I didn’t have a lot of money, so I didn’t proceed. 
At the time, I was astonished by what Sandra said. Surely principles are at the heart of the law and should be promptly and decisively confirmed by the courts? Of course I was naïve. Judges are generally restricted to applying the law as it’s written. Points of principle may be established in the courts, but often only after years of legal argument. 

I was reminded of that this morning while reading NZME court reporter Ric Stevens’ account in the New Zealand Herald of a case that has been dragging on for years and is still far short of resolution. 

It’s a case that cries out for justice, but the law keeps getting in the way. 

Ida Hawkins’ 16-year-old daughter, Colleen Burrows, was raped and murdered by a gang associate on a Hawke’s Bay riverbank in 1987. One of her killers, Sam Te Hei, served 31 years in prison. A younger co-offender was released in 1998. 

After he was paroled, Te Hei succeeded in a claim against the Crown for breaches of his rights while in jail. He was awarded $17,664. 

In such circumstances, the Prisoners’ and Victims’ Claims (PVC) Act entitles victims of a crime to claim some or all of the money awarded to the criminal. Ida Hawkins did so and initially succeeded. She went to the Victims’ Special Claims Tribunal and was awarded $15,000 for emotional harm – paltry compensation for the anguish of losing a teenage daughter in appalling circumstances and then being harassed and intimidated by the Mongrel Mob, but at least she would have had the satisfaction of knowing Te Hei had been prevented from profiting out of his murderous act. 

You can probably predict what happened next. Te Hei (or more precisely his lawyers) successfully appealed to the High Court on the basis that another piece of legislation – the Deaths by Accidents Compensation Act 1952 – didn’t create a right to damages for emotional harm, and this remedy was not available under the general law either. 

Mrs Hawkins then went to the Court of Appeal, where her case was heard in the middle of last year. The court’s decision was released this week – too late for Mrs Hawkins, who died last July. In the meantime another daughter, Tracey Peka, obtained a court order allowing her to continue the legal fight. 

Stevens’ story in the Herald describes the 34-page judgment from the Court of Appeal as “largely technical”. The veteran court reporter wrote: “It represented a win for the family in the sense that it upheld their appeal and kept their case alive, even as it found against some of their arguments. 

“The court said that Hawkins did not have a claim under the Deaths by Accident Compensation Act for her emotional injury. Nor could she make a wrongful death claim under common law [law developed by the courts rather than decreed by Acts of Parliament], and the PVC Act did not provide a standalone basis for her claim either. 

“However, the justices said: ‘We have … concluded that Mrs Hawkins may have a common law claim for her mental injury arising from the circumstances of the rape and death of her daughter Colleen. If she does, it appears that such a claim would be confined to exemplary damages.’ ” 

Did the court then determine that Mrs Hawkins (or her family, given that she’s no longer alive) was entitled to Te Hei’s ill-gotten gains, or at least a share of them? Oh no, that’s not how the system works. The court referred the matter back to the Victims’ Special Claims Tribunal which had heard the case in the first place. 

The appeal judges said they were sending the case back for reconsideration and suggested the tribunal might seek further evidence and call for written submissions. They noted that the case involved complex legal issues. 

So here we are, five years after the decision that gave rise to Mrs Hawkins’ claim, and the case will again get swallowed up by the system. For how long? That’s anyone guess. Common law evolves at a glacial pace and we’re expected to just be patient while Their Honours deliberate.

To use the vernacular, the Court of Appeal judges kicked the can down the street - in fact possibly beyond that into the long grass. 

There will be more dry legal argument and more lawyers’ fees. In the meantime Mrs Hawkins has died and I imagine costs will have more than eaten up any compensation she might have been able to look forward to had she lived. Indeed I would imagine that arguments over costs have the potential to keep the case grinding on even longer. 

This seems a case of an important principle being lost in a swamp of nitpicking legalism. While judges and lawyers debate arcane points of law, a terrible injustice goes uncorrected. 

Most reasonable people would have no difficulty deciding that Mrs Hawkins’ entitlement to compensation for harm and wrongdoing far outweighs that of her daughter’s murderer, but that’s not how the system works. 

It should be simple, but it isn’t. Sandra Moran was right. 

Karl du Fresne, a freelance journalist, is the former editor of The Dominion newspaper. This article was republished from his blog which can be found at karldufresne.blogspot.co.nz.