Since Ahmed Zaoui arrived in New Zealand, the reactionaries on the right have been complaining about the cost of his persecution, and in particular the cost of legal aid so Mr Zaoui can contest his detention and deportation. It's long been my belief that this has been worth every cent - not because I think Zaoui should have been imprisoned or should be deported (quite the contrary) - but because the precedents his case is establishing on human rights and the application of international law in New Zealand are of inestimable value and will serve us for a long time to come.
There's an example of this in last month's New Zealand Law Journal, in an article about the case of R v Mist [2005] NZSC 77 [PDF]. This is a "lesser penalty" case, about whether someone who committed serious sex offences while under the age of 21, but sentenced after his 21st birthday, could be sentenced to preventative detention (a sentence that was at the time available only to those over 21). It is well established in New Zealand and international law that, where a sentence has been varied between the commission of an offence and sentencing, that anyone convicted of that offence is entitled to the lesser penalty - but it wasn't clear at the time what happened if it was the convicted person who varied rather than the sentence. In answering this, Justice Keith drew upon the ruling in Attorney-General v Zaoui [2005] SC 38 [PDF] that not only is New Zealand law to be interpreted insofar as possible so as to be consistent with the rights and freedoms affirmed in the BORA, but that
Those rights in turn are to be interpreted... if the wording will permit, so as to be in accordance with international law, both customary and treaty based.
This being sanctioned both by the title of the BORA - that it is an act to "affirm New Zealand's commitment to the International Covenant on Civil and Political Rights" - and clear and consistent legislative intent. Article 15 of the ICCPR lays out a clear guideline for these sorts of cases, stating (among other things) that:
Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.
Preventative detention wasn't applicable to the offender at the time of offending, since they weren't 21 yet, so Justice Keith concluded that an ordinary (but long) jail sentence would have to do. He was joined in this by Justice Elias, and two other justices reached the same conclusion by a different route, but the Zaoui precedent played a valuable role in upholding the fundamental rights of the accused. And I expect it to continue to do so, as long as cases with these sorts of human rights implications keep cropping up. In that sense, then, the money spent on Zaoui's legal aid has been money well spent.
1 comments:
It would be bonkers for sentences to reflect facts about the convicted person post the time at which their crime was committed... if that were allowed, there could be incentives for the state to delay prosecution and sentencing, and much else besides (which the Supremes discuss).
I dare say that even without the BORA, let alone international law, let alone Zaoui (you're stretching from half a footnote!), the Supremes would have made the right decision. One thing though: Both the ICCPR clause and BORA 25(g) - and all of the discussion in the Supreme Court decision that I could be bothered looking through - are "no heavier penalty"-centered. They don't require appropriate punishment to be *settled* by the law and the facts about the crime at the time of commission, just that it can't be *worsened* by such changes/post facts. While I can *almost* get my head around only benefitting the defendant/convicted in the case of changing law, allowing post facts about the defendant herself to benefit her seems utterly horrible. I therefore see no reason for the asymmetry between heavier and lighter sentences in that case. I looked for some general statement of that sort that would escape the procrustean International Law bed....but couldn't find one. Blanchard and Fitting's S. 82 comes close but they appear to muddle their (basically v. nice) argument and lose generality soon thereafter.... But maybe I've missed something.
"Money well spent": I wonder how much the mess that the Sol-Gen/Crown Law and the Appeals Court cooked up in this case ended up costing the tax-payer? :)
Posted by Anonymous : 5/08/2006 01:35:00 AM
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