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Race and the law

Written By: - Date published: 1:30 pm, March 11th, 2010 - 31 comments
Categories: law, racism - Tags: ,

Is race a factor in the NZ legal system? The answer seems to be yes. In a couple of recent high profile cases where the victim is an ethnic minority, killers have received extraordinarily light sentences. In early 2009 Tane wrote:

Bruce Emery’s sentence of just four years and three months on a reduced charge of manslaughter for chasing 15 year old Pihema Cameron 300 metres down the street and stabbing him to death with a knife is a stark reminder of the institutional racism that still exists in this country. Let’s not pretend for a second that Emery would have got off so lightly if he was an unemployed Maori and his victim a middle class Pakeha child, tagger or not.

Now we have another case with similar overtones. Yesterday, Scoop reported (on a 95bFM interview):

Selwyn Manning talks to Paul Deady about how the Indian community in New Zealand is appalled at the verdicts handed down to Manurewa liquor-store owner Navtej Singh’s killers. The offender who pulled the trigger, leaving Mr Singh to die in his wife’s arms, was convicted of murder, but all five of his co-offenders received aggravated robbery convictions… This appears contrary to recent case law precedence and the Indian community wants to know why.

Those who have been following this and similar cases see a clear pattern emerging:

Indian Kiwis hurt by a seemingly warped New Zealand justice system

The verdict of the jury (and the court) in the murder trial of the killers of Navtej Singh, Manurewa liquor store owner who was shot in his store last year in a gang robbery, has sent wrong signals about the fairness and the consistency of the justice system in New Zealand. …

Members of Auckland’s Indian community are also confused and perhaps perturbed by the justice system which appears to be giving a signal that the killers of Indians have an easy exit from the justice system. As a journalist who has covered three recent violent deaths and funerals of Indians in the local media, I can appreciate such concerns which have high elements of merit in them. …

President of a Sanatan Pratinidhi Sabha, (a Hindu religious group), Jayati Prasad strongly deplored the law and order in the country. He claimed that democracy and equal rights were only confined to paper while in reality, the situation reeked of racism, discrimination and lopsided treatment, and questioned why others in the group escaped serious conviction. He called it a shameful judgement and condemned the action of the police that led to Navtej’s death. …

Racism within the legal system is just one aspect of racism within our society generally. In other news today:

Racial discrimination at worrying levels: watchdog

The Human Rights Commission says racial discrimination and harassment in New Zealand is worrying. In the annual Race Relations Report released today, the commission says it received 1253 race-related complaints and inquiries last year, which is “significantly higher” than in previous years. Complaints related to race accounted for 55.4 per cent of all discrimination approaches.

“Data on racial discrimination and harassment from 2009 are a cause for concern,” said Race Relations Commissioner Joris de Bres. Also on the rise is public perceptions of discrimination against ethnic minorities, especially Asians. …

Now is not the time for the legal system to be sending all the wrong messages.

31 comments on “Race and the law ”

  1. Ari 1

    Wait for all the law and order types to start their blatant hypocrisy about how these cases were DIFFERENT. 😉

  2. SPC 2

    Before I jumped to any conclusions, I would like to see evidence that different sentencing by judges does occur in such cases. This may be a case of locals jumping on the Oz bandwagon about their police to a concern about sentencing.

    It’s too easy to cite one or two cases, I would like to see a comparison to the average sentence for the offence.

  3. SPC 3

    As not all trials have the same jury there will be inconsistency.

    The major area of contention appears to be the reduction of murder charges to manslaughter and complicity in someone’s death only resulting in aggravated robbery charges.

    On the latter point, not everyone is convinced that being complicit in armed robbery makes one an accomplice to murder – unless judges direct juries on this point there will be inconsistency. If judges mention it, but do not clearly direct juries there is still some discretion left to the jury.

    Given past murders of Asians included the murder charge and conviction against all accomplices, it’s hard to say discrepancy is based on the victim being Asian.

    In the matter of cases which are genuinely problematic – the road rage case where the victim was Asian and another where the householder murdered someone (not Asian) tagging their fence – both involve inadequate conviction and sentencing. The only reason for it appears to be that neither act was premeditated – though taking a knife to a confrontation and then chasing after someone while carrying it, is hardly innocence in action is it? So here the (property owning householder) jury was not sending a message as much to those carrying knives as those who tag suburban property fences.

  4. grumpy 4

    Charges of Racism are difficult to sustain in this case.

    All parties were brown, either Indian, Polynesian or Maori. Are the complaints about low sentences (and they are low) on the basis that the victim was discriminated “against” or the protagonists were discriminated “for”.

    It seems the allegation is that some “brown” people are discriminated against and some “brown” people discriminated “for”.

  5. tsmithfield 5

    It would be interesting to see how consistent each of the judges criticised here was in other sentencings. Some judges tend to be a lot more lenient generally. Therefore, to cherry-pick from those cases to find ones that suit the judicial racism meme may produce misleading results.

    For instance, when I worked in the High Court many years ago, one of the judges on the bench at that time was Justice Hardie Boys. We used to refer to him as “Softy Girls”. Say no more.

  6. PK 6

    ***In a couple of recent high profile cases where the victim is an ethnic minority, killers have received extraordinarily light sentences.***

    Following the logic above the perpetrators of crimes against Maori or Pacific Island people receive harsher penalties than those who attack Indians. Or at least are more likely to all be charged and convicted of the same level of offence.

    From the Pacific Scoop article:

    “In another gang related case involving six members of JCB gang which attacked and injured members of PDBs in Otara, South Auckland on October 22 2005, Justice Winkelmann ruled that all six were guilty and the verdict of guilt suggested that the jury was satisfied that while Levi Smith was the principal offender, the remaining five were part of a criminal enterprise and knew their action could result in serious injury or even worse.

    For the August 2007 murder of the three-year-old Nia Glassie in Rotorua by her loved ones who should have protected her, the court ruled heavily and convicted more than one relative for murder and manslaughter for a group crime and came out with little mercy on the offenders for a heinous crime on a defenceless baby.”

  7. Wait for all the law and order types to start their blatant hypocrisy about how these cases were DIFFERENT.

    What blatantly hypocritical type fails to recognise the glaringly obvious way in which these cases actually were different? In the interests of not attracting the attention of the moderators I won’t speculate.

    [lprent: The moderators usually don’t give a shit if you make a point (rather than just relying on stupid stereotypes that will bring down the wrath). But why bother, the text of the relevant decisions will probably be posted by now. Read them and quote. ]

  8. Scott 8

    There is an obvious flaw in this argument.

    If Bruce Emery got a light sentence because he was white, why did the people involved in the robbery of Navtej Singh’s liquor store receive such lenient sentences? They were Polynesian.

    • r0b 8.1

      The post is largely about the effect of the ethnicity of the victim(s), not the attacker(s).

      • Scott 8.1.1

        That’s not what I took from the post. You raised the Emery case, and made a point of quoting someone who thought the ethnicity of the attacker affected the outcome.

  9. The light sentences handed down to most of the group that killed Navtej Singh have caused consternation within the NZ Indian community.

    What sentences?

    [and why is the introductory paragraph different on the home page from the post? have I just not noticed that it does that previously?]

    [lprent: The default is to just grab ‘x’ characters rounded to words from the post. However you can also write a separate excerpt specifically for display on the front page. Most of the authors do this if their first paragraph doesn’t explain the post well (which they often don’t). Think of it as an artifact of the new site format. ]

  10. r0b 10

    What sentences?

    As per the first Scoop link “all five of his co-offenders received aggravated robbery convictions”.

    [and why is the introductory paragraph different on the home page from the post? have I just not noticed that it does that previously?]

    It has been that way since the upgrade to the new format (if the post author uses the feature).

  11. Neil 11

    oh yeah. what would judges know. give David Garret a call and cry into a few whiskeys.

    • r0b 11.1

      oh yeah. what would judges know

      Apparently not much Neil, since the government wants to take away their discretion with the three strikes legislation.

      • Neil 11.1.1

        just like you, no confidence in the judiciary.

        • r0b

          The judiciary is human, with human strengths and weaknesses. They should be left with their discretion (no three strikes). But they aren’t above criticism, and if their decisions appear to be racially influenced then it is perfectly legitimate to point that out.

          • Neil

            it’s very tenuous. the Emery case and the killings of Indian shop owners is quite differrent. but what’s your remedy – instructing judges much like Garret wants to do?

            • r0b

              what’s your remedy

              My remedy is sunlight and plenty of it. Raise the questions, discuss the issues, make society aware of and alert to potential problems.

  12. “all five of his co-offenders received aggravated robbery convictions’.

    And their sentences were what? Maybe they’ll all get 14 years. Unlikely, certainly, but it’s kinda odd to complain about the sentences people receive when they haven’t even been sentenced.

    And I think I recall comments here to the effect that some of those convicted of the killing of Michael Choy (high profile, ethnic minority victim) received sentences that were quite harsh (perhaps not you, though?).

    • r0b 12.1

      And their sentences were what? Maybe they’ll all get 14 years. Unlikely, certainly, but it’s kinda odd to complain about the sentences people receive when they haven’t even been sentenced.

      Beg pardon, I should have said “the crimes of which they were convicted” rather than “their sentences”. The point still stands though, that according to the Scoop reporting they have been perceived as being treated extremely leniently.

      And I think I recall comments here to the effect that some of those convicted of the killing of Michael Choy (high profile, ethnic minority victim) received sentences that were quite harsh (perhaps not you, though?).

      No I don’t recall taking part in that discussion.

      Have to go for now, but may be back later.

  13. Kevin 13

    Afghan Kiwi Taxi driver murderer = 15.5 years
    White cop murder – 6 years
    Indian grandfather murderer = 3 years
    No its not racism, its our totally dysfunctional, arbitrary criminal justice system to blame. Still presided over by the same people who caused its demise, with no accountability whatsoever

  14. xvx 14

    Kevin: Have you read the sentencing notes concerned? They are likely to be publicly available online, although may not be.

    Rob: The semantics of sentence/conviction are key. Sentencing is still largely a matter of judicial discretion, although following a very defined process. There are good reasons for this – allowing the courts to tailor sentences to different precise facts and different personal backgrounds being the main one. Convictions are a decision of the jury, as directed by the Judge. To establish a judicial inconsistency in between case and the JCB and Glassie examples, you would have to review the different instructions given to the jury by each Judge. If the Judge gave similar or the same instructions – which I expect – then the discrepancy is down to the jury – not the Judge.

    And simply criticising the legal system for apparent inconsistency in jury decisions is pretty problematic, because the people who make up juries aren’t lawyers or Judges. If randomly chosen jurors are racist – that presumably shows racism in society generally, not racism in the legal system. But, of course, because jury confidentiality is absolute, we can’t know if jurors are racist! Because we don’t know at all what goes on in the jury room. There may be good reasons for the jurors’ verdict – but we will never know those reasons, because – again, for good reasons (freedom from intimidation being an obvious one) – jurors can’t disclose their deliberations.

    • r0b 14.1

      Rob: The semantics of sentence/conviction are key

      Yes, I accept that I was sloppy in my description there. And I haven’t tried to finely dissect responsibility between judge and jury, I have lumped them all together as “the legal system”. I don’t think that it is invalid to do so. What people see is the end results of this system. What people see, and respond to, is the various punishments that get matched to the various crimes.

      In the Navtej Singh Singh case the Indian community very strongly perceives that the end result of the system has been unjust, and according to the reporter quoted they have sound grounds for that belief. That seems worth pointing out, and seeing in the wider context of the issue of racism generally in NZ, which was what this post was about.

  15. Kevin 15

    The main reason for the jurors wierd virdicts is they are heavily instructed by the judges not to find guilt at certain levels. Hiding behind nonsense like deliberations cannot be disclosed is nonsnese – it could be anonymised. One of the ways judges excuse crime is this intent nonsense – you have to have intent to convict for murder. We’re already being buttered up for this in other high profile cass going on at present. Any rational compassionate human knows, if you go into a shop to rob someone and that person gets killed its murder. Juries should be anonymous from the defendant. Basically the jury system and the whole judicial system isn’t up to dealing with the thuggery and corruption of modern crime.

    • killinginthenameof 15.1

      I think one of the biggest problems with crime policy in NZ is that people as stupid as yourself think that you have something worth while to add. Quite simply, you are not a very smart person, and would be far better off leaving running the justice system to people who actually have a clue.

      I’m sure you don’t tell your doctor how to diagnose you, how pilots to fly planes or how a computer technician to fix your computer, yet apparently in this country, it is ok for every man and his dog to think that they know how to reduce crime.

      Unfortuantely it is always the stupidest people (like yourself) who think it is approriate to give your opinion. Unfortunately these are the same people who are the most impervious to evidence and counter argument, the most anti intellectual, the most willing to spout uninformed crap.

      Please for the good of the country, get some perspective, expericance some reality, and think before you next open your mouth or pick up your keyboard.

  16. xvx 16

    Rob: The problem is that there is a strict divide in the system, so it’s inaccurate to lump them together. We can isolate where the inconsistency is easily enough, by comparing the Judges instructions to the jury. If they are inconsistent, then the problem is that one Judge erred in law and gave the wrong instructions. If they are consistent, then…we have no idea what happened, because no one in New Zealand has – or can – study what goes on in the jury room.

    Accusations of racism are very serious. By asserting that the legal system is racist, you are effectively accusing Judges and lawyers of racism. If, however, it is the jury that is racist (if, indeed, racism is present here), then:
    1) This might just indicate racism in the general population, reflecting the Human Rights Commission’s statement. If racist is prevalent within our society, and we use randomly chosen juries as finders of fact, some juries will probably be racist. I don’t really see any way around this.
    2) Because we can’t isolate what goes on in the jury room, we don’t know whether racism is a factor here – so possibly we need to limit or pierce jury secrecy. But that’s deeply problematic, because of the potential risks to the jurors, the risks that jury deliberations may be altered for the worse by the observation, etc. I don’t know if we’d get better or worse outcomes that way.
    3) We need to consider ways that the jury system can be altered to eliminate racism amongst jurors – but I don’t know how.

    Pointing a finger at the legal system may be what some in the Indian community are doing – but that doesn’t help to solve any problems, and without further information, we have no idea whether it’s justified. We don’t know what instructions the Judge gave the jury or what factors the jury considered. Any criticism of the legal system without a little more information is a mindless kneejerk.

    Kevin: The Judge instructs the jury on the law. Your declaration that this causes weird verdicts would only make sense if different judges were giving different instructions in like cases. I really doubt that.

    The requirement of intent is not nonsense. It is what separates murder from manslaughter. If I punch you in a brawl, and you fall backwards, hit your head, and die (similar cases are surprisingly frequent), I have committed a less serious crime than if I intentionally knocked you over then bashed in your skull. The key difference is intent. If the law did not require intent to be proved, accidents would be criminal; crashing your car, through no fault of your own, could make you a murderer.

    That would be nonsense.

    Your rambling about the jury system is frankly unrealistic, and your description of the justice system makes me suspect that you have very little knowledge of it.

  17. r0b 17

    xvx: This is a much more interesting discussion than I was expecting from this post! Thanks for stopping by.

    The problem is that there is a strict divide in the system, so it’s inaccurate to lump them together.

    The solution that you appear to favour is to subdivide the system so that no one is responsible for its outcomes, except perhaps juries, who (for perfectly good reasons I agree) we can’t inspect. It won’t do.

    In a world where we hold teachers responsible for the outcomes of the education system despite the vagaries of the humans in the loop (pupils), in a world where we hold medics responsible for the outcomes of the medical system despite the vagaries of the humans in the loop (patients), we are also entitled to hold legal professionals responsible for the outcomes of the legal system despite the vagaries of the humans in the loop (juries).

    Particularly so in the case of the legal system, for two reasons, the first abstract and the second practical. (1) The whole mythology and stated purpose of the law is about impartiality and fairness. If the system fails at that it fails at everything. (2) The system has explicit mechanisms for identifying and countering bias, one of those is jury selection. It isn’t good enough to shift the blame to racist juries when such juries themselves represent a failure of the system. No, of course in the real world it will never be perfect, but it has to be as close to perfect as it can get. Glaringly racist outcomes – as we appear to have in the cases discussed in this post – represent failures of the system no matter how you slice and dice it.

    Accusations of racism are very serious.

    I quite agree, and I don’t make them / repeat them here lightly. But on the other hand the legal system is not above criticism, and such accusations certainly need to be made if they seem to be warranted.

    Any criticism of the legal system without a little more information is a mindless kneejerk.

    Not your finest contribution there!

    I’m out and about in the field today, not near computers much, so probably no chance to continue a discussion until late tonight.

    • SPC 17.1

      “Glaringly racist outcomes as we appear to have in the cases discussed in this post represent failures of the system no matter how you slice and dice it.”

      rob, your conclusion of racism is not based on appearances, let alone fact, all you have is the appearance of inconsistent results. You have chosen to agree with others citing the reason for this as racism. Their doing so is to try and coerce jury and trial outcomes they are happy with (the tough sentence line favoured by some victims of crime – here manifested in group cause identity politics). This is us and them politicisation of crime and the court process.

      To the specifics.

      There are two cases – of Asians being killed and in one case all involved were found guilty of complicity in the death (during the course of robbery) and in the other only one was.

      There are two cases of people being killed in unpremeditated (non crime related) acts of violence (road rage and the fence tagging) – one victim was Asian and one victim was not. In both cases the conviction was for manslaughter and the sentences were very light .

      It’s not that much to go on to make a charge of racism.

      Some also cite our prisons as being 5 star hotels – are you going to support that as well?

  18. deemac 18

    not sure about the racial aspect or even if it was down to the judge rather than the jury. The standout odd thing about this case is surely that the law has clear rulings on common purpose yet only one person was found guilty of murder. I am quite confident that all the main protagonists would have been found guilty of murder in a British court.

    • Rich 18.1

      One should remember the case of Derek Bentley who a “British court” wrongfully convicted of murder. This was a case where Bentley and accomplice, Christopher Craig burgled a warehouse. Craig (who was under age and could not be hung) shot a policeman. Bentley was convicted of the murder under the doctrine of a “joint enterprise” and sentenced to death.

      Bentley’s conviction was quashed (posthumously) in 1998. The appeal judges in deciding that and other cases have substantially narrowed the definition of “joint enterprise”.

      There have also been various abuses of the common purpose doctrine (in Ireland and South Africa) to (wrongfully) convict groups of people for a murder committed by one of the group.

  19. Rich 19

    I think the jury, who will have heard *all* the evidence, rather than a few hundred words of distorted newspaper articles, were in the best position to decide on guilt or innocence. In this case, they clearly decided that apart from Kee, who shot Singh, the other defendants didn’t murder him.

    As Graeme rightly says, aggravated robbery is itself a serious offence, carrying a 14 year maximum sentence.

    The justice system is not there to provide victims and their families with an instrument of retribution.That’s a lynch mob, not a court.

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