A bizarre District court judgment has appalled advocates of equality and justice.
Auckland District Court Judge Philippa Cunningham exonerated a comedian who had pleaded guilty to an indecent act involving his four-year old daughter. She suppressed his name, discharged him without conviction, and ruled that a conviction would outweigh the gravity of the crime.
In support of her decision, she said, “He’s is a talented New Zealander. He makes people laugh. Laughter is an incredible medicine and we all need more of it.”
Auckland University Law School Associate Professor Bill Hodge joined the chorus of disapproval. He said, “If he had been an auto mechanic, he would have been down the drain before you could blink.”
The justice system has taken a severe knock, as it clearly showed that the accused received special treatment because of his position.
It was revealed that the comedian returned home drunk and went to sleep with his partner. Later, when his four-year old daughter climbed into bed with them, he performed an indecent act on her. When his partner awoke and asked him what he was doing, he replied, “I thought it was you.”
He later claimed that he could remember nothing. A forensic scientist report found that the comedian had previous episodes of “unusual behaviour” after going to bed drunk. “It was possible that he was not fully awake at the time.”
Apparently, Judge Cunningham trivialised the nature of offense and made an inappropriate comment that has rightly earned public odium.
Sexual offence against children is a heinous crime.
Inadmissible defense
Those implicated for such crimes proffer the most profane defense – that they were drunk, suggesting that they were seriously incapacitated in making rational choices or making rational decisions.
This defense is inadmissible and is not even a great mitigating factor in most courts throughout the world. In every society, sexual crimes are viewed with revulsion and punishments always reflect the gravity of the crime.
It is commonly held that everyone is equal before the law. New Zealand has a proud record in upholding the rule of law and ensuring that justice, freedom, rights and equality of its citizens are not selectively administered.
The courts have enforced the established moral and ethical codes with credence but this is not to claim that its decisions have always been above reproach.
Interestingly, it is second time in two years that entertainers have escaped conviction for indecent acts, as the judges held that their careers would outweigh the gravity of the offences they committed.
In 2009, a high-profile musician pleaded guilty to committing an indecent act on a 16-year old girl while drunk. Judge Eddie Paul permanently suppressed the name of the accused. Naming people who are convicted for crimes is a powerful deterrent and suppression should only be given in exceptional circumstances.
Suppression of name is now being sought by most people who commit such crimes.
Could this judgment be used as a plausible defense or a mitigating factor by entertainers charged for such crimes? If so, the New Zealand justice system is anarchic and there is an urgent need for the Government to issue clear guidelines to courts, ensuring that there is no discrimination in the application of rules of justice.
Fame and fortune must never be used in courts to set people free from their crimes.
Generally, the courts are not subject to judicial audits and they operate in an environment where they retain considerable sway in reaching decisions independently.
Independence of the judiciary is the hallmark of democracy in New Zealand.
It has unfettered power and authority to dispense its duties and responsibilities to the nation. While this is laudable, the judiciary cannot escape public scrutiny for its actions. The courts must show judiciousness and depth in its rulings and comments to not only retain but also strengthen its stature.
Public faith and trust in the justice system would wane if such decisions continue to become the norm.
Email: raj.prasad@xtra.co.nz
