R v Fitzgerald: Repeating Our Mistakes
A legally-interesting court judgement was released last week that has flown fairly under the media radar considering how relevant the topic is to our current legislative agenda. The courts have, once again, issued a ruling regarding the Three Strikes law, this time around a complicated matter that arose about a man who was wrongly imprisoned for some years.
R v Fitzgerald is a leading case that was cited for its unfairness in the repeal of the Three Strikes law. The matter of his compensation awarded by the High Court has now been appealed to the Court of Appeal by the Attorney-General. The case asks, unusually, whether a Crown prosecutor can be held liable for charging a defendant with too severe a crime.
The High Court said yes, they can.
Which is frankly wild for the High Court to rule, in my layman’s opinion — if you were to apply that to every case, a prosecutor would be required to consider every possible sentence outcome and determine its likelihood and level of unfairness before they could even pursue a charge. The duty and responsibility of a miscarriage of justice would rest squarely upon their shoulders in the case of an excessive sentence — full responsibility, even though the jury (or judge) decides guilt and innocence and on what charges, and the judge themself is the one who lays the sentence.
Judges will sometimes make very… interesting… calls in our courts, but the reassuring thing about the New Zealand justice system is that usually — usually — case law plays out so that in the end, all the matters make sense.
(Though not the benefit fraud law. That precedent is a total mess).
So I was very satisfied to read that this was such an outcome here, with the Court of Appeal bringing some logic to the law and ruling that the defendant Daniel Fitzgerald had essentially sued the wrong person: the Crown was financially liable, but the responsibility lay with the presiding judge who got the sentence wrong in the first place, and not the prosecutor who theoretically shouldn’t have charged him with it.
Sensible, right?
Imagine being a prosecutor attempting to get a conviction against someone when it is also your responsibility to ensure that their sentence outcome is fair. Talk about a conflict of interest! It is an often-done thing for prosecutors to lay a number of charges that may be appropriate, at higher and lower levels of offending, and they then present the case for the judge or jury to decide based on the evidence presented.
Our prosecutors would need prophetic vision added to their professional repertoire to be able to predict the outcomes of their actions in those situations, and a law degree already takes long enough.
If the National/Act/New Zealand First coalition ever manages to pass this Three Strikes Law, it will be the weirdest legislative tug-of-war I’ve ever witnessed. First National/NZFirst pass it, then Labour/NZFirst/Greens announce they’re repealing it, but NZFirst blocks that attempt. Then in the next term when Winnie is booted from Parliament, Labour repeal it literally as fast as they can (while still following due process — Luxon take note!) giving the distinct vibe that they’re naughty children who’ve been caught stealing bills from the parliamentary biscuit tin. And then, only a term later, Winnie is back in Parliament, back in government, back in the DP chair, and back passing the Three Strikes Law again because, I don’t know, he really wants to stick it to Jacinda Ardern? It can’t possibly be because evidence proved it was an effective policy, as that evidence doesn’t exist.
In all rights, this case law shouldn’t have a lot of legal relevance anymore, but with the government bringing Three Strikes back, judges will once again be forced to consider not just the weighting of sentences they are passing at present, but what a sentence could mean as a “strike” in future.
Judges are required to make just rulings and give fair sentences, and their duty to justice and due process exists outside of dealing with the Three Strikes legislation. It is reasonable, required even, for a judge to consider whether a discharge or a conviction would have an effect on an offender’s life and rehabilitative prospects. But justices are right now handing down sentences for crimes (potentially minor or borderline crimes) that may or may not become strikes in the future — bringing up some serious questions about retroactive punishment. A judge handing down a sentence today might not have done so if that sentence is considered a strike, precisely because of the potential for outcomes like this.
This case affirmed that the responsibility of an equitable outcome lies with the Crown via the judge, and as we can see from the facts of this case and how sentencing played out, that means, in reality, almost all of it rests with the final judge, the judge of the third strike – even when that results in final-strike sentences for comparatively light offending, or for third-strike offending with so many circumstantial and mitigating factors that a three-strikes application isn’t appropriate.
AG vs Fitzgerald repeatedly raises the question of who becomes responsible for ensuring sentences are fair because the Three Strikes law has artificially narrowed the remit of the judge while still charging them with the same responsibilies for fairness and justice that they have always had. It tries to tie the judge’s hands behind their back on particular sentences rather than attempting to fix overall balance issues that exist within our sentencing system.
And our judges are unfortunately human; often quite moral ones at that — they sometimes even become judges because they believe in justice and the power the law has to benefit society and all people within it. So even without a legal obligation or remit, unless explicitly instructed not to, it will be a consideration in sentencing that this may give offenders a strike, which risks injustice. Judges are very genuinely trying to bring about fair outcomes for individuals while also continually moulding the judicial system into something that hands down good law.
Some of our “weirdest” and worst judicial law comes from cases where a judge or a series of judges have tried to find an equitable outcome for a person or case, and so twisted the law beyond what it should have meant, setting a bent precedent that future judges have had to follow.
This dual responsibility creates a conflict not dissimilar to the one faced by the prosecutor here (even without the addition of the potential for a future life sentence).
I believe the original judgment handed down that the Court of Appeal overturned here was one of those warped judgements; the defendant in Fitzgerald has obviously been imprisoned unfairly, well beyond what was reasonable in the circumstances, and is entitled to compensation under the law. But in trying to affirm that right, the wrong procedure was followed, and the culpability for the defendant’s sentence was placed on the wrong person.
The sum awarded in this case was overturned as it’s based on how the injustice played out; it is material to the total that it was the judge and not the prosecutor who had “wronged” the defendant here. As such, the case will go back to the High Court for a lower judge to determine the amount to be awarded, now that the instructions for how to calculate it properly have been laid down by Court of Appeal.
And while our courts continue to iteratively see out case after case to try and find fairness in our legislation by laying precedents, scrupulously scrutinising each one to rectify past mistakes and prevent future injustices, all while balancing the careful considerations of all angles of the law and the rights of every person who comes before them (be that defendant, plaintiff, prosecutor, witness, or judge), our Parliament is again passing a law that has already led to the false imprisonment of far too many people. And disproportionately far too many Maori and mentally ill people to boot.
This was already a well-recognised outcome of Three Strikes laws like California’s, even back in 2010. It did not stop National the first time and it will not stop them this time either. R v Fitzgerald was, as was always predicted it would be, a case in which a man with an incapacity affecting his offending received an unfair, abusive outcome from a state that just wanted to “deal to the bad ‘uns” and didn’t care about any other vulnerable people that got hurt along the way.
And doesn’t that just sum up this entire government’s philosophy?