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Introduction
I have a Law degree,
amongst other degrees, and here is a brief explanation of one
aspect of the Law -- for the benefit of people who have not studied
Law.
The basic work of a lawyer or judge is to apply
the Law to the facts. That is to say, you try to find out what
the relevant facts are and then you apply the relevant laws (Acts of
Parliament, Rules or Regulations, previous rulings by judges and/or
unwritten conventions) to those facts.
This book has what is apparently a misprint on page 69. It states:
"Once a decision has gone out into the world, it's at the
mercy of the media and talkback radio, and, of course, the Appeal
courts who, if called upon, must determine whether the
application of facts and law was erroneous in any way."
Although Riddell is ignorant in other ways, I assume that she knows
the Law and that this was a mistake, because she uses the correct phrase,
"applying law to the facts," on page 187.
However, it is clear from other parts of the book that she actually
does apply both facts AND law
-- at least to certain issues. That is to say, she
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has first made a predetermination of what the facts are (in certain
kinds of cases),
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then proceeds to apply these predetermined "facts" (or
factoids) to the matter at hand, and
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finally applies the relevant Law to the resulting combination
of factoids and any remaining actual facts!
Family Violence
The main issue where this process clearly takes place is Family Violence
(a.k.a. Domestic Violence), which is the topic which she discusses in
Chapter 9, "The dark side". She writes (page 75):
"I won't attempt to list the multitude of factors that
contribute to family violence. Yes, it's power and control by men,
and, yes, colonisation has played a part. But there is much, much
more."
She does not provide any evidence or
cite any references or research
to support her mention of "power and control by men"
and colonisation with respect to family violence. In fact, in her Preface
(on page 9), she admits:
"I realise I wander in the book from tales of judging to
other subjects, on which I am certainly not an expert. But to the
extent we are all living in Aotearoa New Zealand, we all have views
about those thorny issues of poverty, family violence and racism.
I have put in my two cents' worth. They are views that have been influenced
by my years on the bench and coloured by what I have observed."
The above-quoted statements which she makes on the causes of family
violence give no hint that they are merely her "two cents' worth"
or that she is not an expert. She presents them as clear statements
of what she regards to be facts about family violence. Why does she
use her prestige as a former judge to include in her book views on topics
about which she admits that she knows nothing more than other members
of the public? Why has she not researched these topics, if they were
an important aspect of her work as a judge? It is ludicrous for her
to state that her views "have been influenced by my years on the
bench and coloured by what I have observed." Judges do
not witness family violence in court (generally speaking). All they
observe is statements from lawyers, police and other witnesses, who
may be telling the truth, but are often telling lies, or just giving
opinions.
Her Preface was obviously written after the rest of the book. In it
(on page 7) she states:
"Some of my colleagues may grumble that I have given away
too much. That judging is such a high profession and it is impolite
at best to divulge the more crass aspects of the job. They may be
right."
It is clear from her Acknowlegements chapter that other people read
drafts of the book before it was published, and some of them must have
pointed out to her that she had pontificated on some non-legal subjects,
such as poverty, family violence and racism. That is presumably why
she made the above-quoted admission that her book "wanders"
into territory on which she is not an expert.
The important issue, however, is how she decided family violence cases
in court. It is clear that she has some strong views on family violence
-- without, in fact, having any actual knowledge on the topic. It is
worth quoting the following long passage from her book (pages 76-77):
"One of the sad aspects of family violence is that the
victim is often reluctant to follow through with any prosecution.
One of the most graphic examples I encountered was a case where he
had stomped on her neck and the police
photos showed the clear outline of a boot imprint.
When the matter progressed to a trial, she was reluctant, claiming
it hadn't been like that. Maybe she was
afraid of recrimination after the court case. Perhaps,
put baldly, she loved him and wanted him back in the house. Or
she believed it wouldn't happen again.
I don't know, but I have enormous sympathy for victims who think,
'This relationship, dysfunctional as it is, is as good as it will
ever get for me, so I probably should stick with him or I'll be alone.'
That is a common pattern for family
abuse cases.
Initially the woman contacts the
police to report abuse of some kind.
They visit the home and, with her permission, take photos and then
a statement. At any point after the man
is charged, she recants with a letter
to the court, or an affidavit (which is a sworn statement, so lying
invites a perjury charge), or in person.
She might perhaps leave it until the actual day of the trial
and either doesn't turn up, whereby (sic) the police have to locate
and arrest her, or comes to court and, under oath, says
she made it up.
When there is graphic evidence of physical abuse, denial is
more difficult. Some say, 'Well, I hit him too.'
But since he has never claimed to the police that he acted in self-defence,
that argument isn't going to fly.
The law is changing. The court can rely on a prior consistent
statement, regardless of whether the victim later recants.
I always felt uncomfortable putting the
victim in the position of potentially breaking the law, either
by not turning up to court, or, worse, lying. It's bad enough being
a victim of family violence, but the woman
then tries to 'save' her man, the aggressor.
If she's successful, it usually results in things being fine for a
while. Then the whole cycle of abuse
starts again."
I have highlighted certain words and phrases above, because I want
to refer back to them in my comments below.
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Riddell refers to "a common pattern for family abuse cases,"
and you can see from the way she uses the terms "the
victim," "the woman"
and "the man" that
she is referring to a pattern where the aggressor is a man and the
victim is a woman. Non-coincidentally, that is exactly what the
Duluth model (see below), which Riddell obviously subscribes
to, lays down in its ideology. This totally excludes female-on-male
violence and same-sex relationship violence.
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Turning to the specific case which Riddell refers to, I have a
quibble about its plausibility. How could the man have "stomped"
on the woman's neck hard enough to leave a boot imprint -- and yet
the woman was not killed or at least paralysed? Even placing his
boot on her neck would have been unacceptable, of course, but it
would have been a much less serious event than stomping.
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On page 145, Riddell discusses what a good written decision looks
like:
"A good decision must first traverse the facts of the
case. Then the judge must set out the opposing arguments, so it's
clear they have considered them."
Although the above passage about family violence is not a written
decision, it does reflect the judge's thinking about such cases.
What is staggeringly clear is that Riddell does not even consider
the possibility that the woman lied the first time and spoke the
truth when she changed her story. Riddell states -- as a fact --
that the man had stomped on the woman's neck and then uses the word
"claiming" to describe
what the woman said the second time. Then Riddell outlines various
possible reasons why the woman may have lied the second time: Maybe
so-and-so. Perhaps this-and-that. Or
there was some other reason.
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Notice that she isn't particularly interested in women's violence.
If women say, "I hit him too,"
Riddell's response is that the man has not pleaded self-defence!
The man, in this situation, is a victim of Parliament, the
media, the education system, the
police, his lawyer and the judges. Since Parliament has laid
down a
more severe penalty for men who assault women than vice-versa,
and the media and education system have given virtually zero publicity
to female violence against men, the man is not likely to consider
pleading self-defence against a woman, the police are more likely
to prosecute the man than the woman in cases of mutual violence,
and the lawyer is likely to consider that the judge (especially
someone like Riddell) is unlikely to agree with a self-defence argument.
Lawyers generally know the judges they appear before and they bear
in mind the judges' characteristics when deciding how to present
their cases in court.
Lying Judge
Judge Riddell states that her views on family violence have been influenced
by her years on the bench and coloured by what she has observed. That
is obviously a lie, for the most part. She uses the phrases "power
and control" and "cycle of abuse," which are straight
from the man-hating ideology of the
"Power and Control" (a.k.a. Duluth) model of family violence.
There is no chance that she could have invented these terms herself
on the basis of her experience as a judge! She has obviously slurped
up this man-hating doctrine and applied it to the family violence cases
she was supposedly trying "To Be Fair" about in her judgments!
It is important to realise that the Duluth model is totally unscientific
and is just a man-hating fantasy. I suggest that you go to the main
Duluth website (https://www.theduluthmodel.org/wheels/understanding-power-control-wheel/)
and search for the scientific, objective studies that this model is
based on. There are none! Then visit the following two webpages, which,
respectively, expose the unscientific nature of this ideology and list
a huge number of objective studies on family violence:
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See also:
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