Academic correcting an academic

Andrew Geddis takes the rare but justified step of criticising another academic:

In an opinion piece published in Monday’s NZ Herald, ProfessorChris Gallavin made a number of suggestions as to how the Court of Appeal should respond to appeals by the killers of three-year-old “Baby Moko” against their 17-year jail sentences. He did so while labelled as “Deputy Pro Vice-Chancellor, College of Humanities and Social Sciences, at Massey University”, so it’s fair to say that his commentary was intended to carry the mana and credibility implied by his academic position. Those of us with the privilege of commenting from such vantages have attendant duties.

Given that, as reluctant as I am to publicly diss a fellow academic who has ventured into the media commentary game, Prof Gallavin’s article so misrepresents both the criminal appeals process and reasons for the original manslaughter verdict that a response is necessary. In fact, I think it operates as an object lesson in the risks of academic commentators writing on contemporary topics without stopping and carefully asking themselves “is what I’m saying about this correct?”

So this is not about disagreement of opinion, but accuracy.

Although it hardly needs saying, let’s begin by acknowledging that the actions of those responsible for Baby Moko’s death, David Haerewa and Tania Shailer, were quite reprehensible. They have met with perfectly justified, widespread public condemnation.

And while they have a legal right to appeal their sentences, it is understandable that many regard both their decision to do so and the arguments they are using in support as adding insult to their earlier injurious behaviour. Nevertheless, our feelings of moral repugnance at their actions ought not to replace important matters of legal principle and process. And those with academic knowledge of those matters of legal principle and process have a responsibility to explain why they matter; or, at least, not misrepresent how they work. 

Unfortunately, however, in his Herald article Prof. Gallavin appears to have allowed the emotion of this case to overcome this responsibility. His first suggestion is that “the Court of Appeal ought to take the unprecedented move of quashing the convictions, and substituting them with murder.”

This move would indeed be “unprecedented”, because it is legally impossible. Under the Criminal Procedure Act 2011, where a sentence (and not a verdict) is appealed a court can only alter that sentence. It has no power to quash a conviction, much less impose a conviction for a completely different offence.

So first inaccuracy.

In his article, Prof Gallavin refers obliquely to the Court of Appeal’s alleged “inherent ability to oversee plea bargains” as permitting such a move. With respect, he appears to have just made this power up out of thin air. It has no basis whatsoever in the governing statute.

No 2.

Furthermore, consider what Prof Gallavin’s call really amounts to. He is, in essence, saying that the judges on the Court of Appeal ought to simply declare Haerewa and Shailer guilty of murder without their ever having been tried on that charge and so having had no opportunity to mount a defence. Such a proposal is entirely antithetical to the very rule of law.

No 3. Conviction without trial.

This same problem infects Prof Gallavin’s later suggestion that the Court of Appeal could alternatively “quash the conviction for manslaughter based upon the plea bargain and leave it then for the Crown to come back with charging them with something else – i.e. murder.” Once again, the Court simply has no legal power to do so on an appeal against sentence brought by the convicted party.

No 4.

To reiterate, Haerewa and Shailer’s horrible actions in killing Baby Moko stir real outrage and anger. But when academics venture into the public realm to comment on such matters, especially when they are explaining to the lay reader how legal processes operate, there is an obligation on them to make sure their contributions are as accurate as they can be (always given the reality of human frailty and the fact that the occasional slip-up will occur).

Prof Gallavin’s errors go beyond such understandable slips made in the heat of the moment. It is regrettable that his discussion of the appeal process is so misleading and gives such a false impression of what the Baby Moko case was about. Given his background as a former Associate Professor and Dean of a law faculty, he really ought to know and do better.

This is what shocked me, that such basic errors were being made by a former law school dean.