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Image: Getty
Image: Getty

OPINIONSocietyApril 19, 2021

The terrible story of Mrs P: Cruel injustice compounded by arbitrary, unkind response

Image: Getty
Image: Getty

The premature dismissal of compensation for a woman wrongly convicted and sentenced to a year of home detention is morally rotten and practically misguided, writes Andrew Geddis.

In her magnificent reporting on things New Zealander’s usually don’t like to think about, Stuff’s Kirsty Johnston has told some pretty sad stories. Families denied payment for a lifetime of caring for their disabled adult children. Autistic people locked in seclusion cells because they are just too hard to deal with. But her latest story on a woman who can only be called “Mrs P” might just about be the saddest of all.

The full account deserves your attention. However, a nutshell version is that following the end of an abusive relationship, Mrs P ended up in the Family Court. The judge in her case apparently took against her, ultimately accusing her of altering a document to try and mislead him. He reported her to the police, who prosecuted and upon being convicted she was sentenced to a year of home detention. In 2020, the Court of Appeal quashed her conviction with, it’s fair to say, some raised eyebrows at the way the lower courts had dealt with her case. However, by that time her sentence already had been completed.

So far, so terrible. Being falsely found guilty of a committing a crime would be a pretty awful thing in itself. Sure, quashing the conviction lifts it from Mrs P’s record, but it can’t undo the initial blow. And, as Johnston lays out, the consequences of that ultimately overturned conviction were devastating for Mrs P. She lost a year of her life sitting in one place, unable to leave it. She lost her job as a teacher. It caused her to rack up significant legal debts. It has left her living on a benefit in a garage with no hot water.

As such, given that Mrs P’s life largely has been ruined by the justice system wrongly labelling her a criminal, you might think that maybe the government would want to do something about putting that wrong to right. No system can ever be perfect and errors will be made. But, surely, if the power of the state is used wrongly to deprive you of your liberty and so take most everything from you, then it should then do something to help undo that harm.

Apparently not, as Johnston subsequently has reported. You see, the “guidelines” that the Labour government adopted in 2020 to deal with wrongful convictions only cover cases where a person is imprisoned. Because Mrs P instead was sentenced to home detention – by “the narrowest of margins” according to the sentencing judge – she falls outside of these. Meaning that the current minister of justice, Kris Faafoi, has rejected out of hand any chance of Mrs P receiving compensation.

There’s three points here. The first is the most obvious: what the actual fuck? An abused woman is revictimised by the criminal justice system and the response is, in essence, “computer says no”? The guidelines on compensating for wrongful conviction are just that … guidelines. Compensation payments made by the government remain a matter of “prerogative”, given on an “ex gratia” basis. If the Labour government wanted to be kind to Mrs P, then it is entirely free to divert from the guidelines and do so.

Second, the decision to exclude wrongfully convicted persons sentenced to home detention from the government’s compensation guidelines makes little sense. Here’s how Andrew Little, the then-minister-of-justice, explained the decision in September last year: “You get to be in a place you’re familiar with, usually with people you’re familiar with … It’s not the level of regimentation and stony-faced existence you’d get in prison.”

There’s an element of truth to that. Home detention isn’t as complete a removal of liberty and other freedoms as is imprisonment. However, it is still a severe restriction. You have to remain in one place for up to an entire year, only leaving it for extremely limited purposes approved by a probation officer. Imagine living under level four lockdown for 12 months, with no exercise breaks or supermarket trips beyond your property. And as the court may impose conditions on you while you are on detention, you may not even be allowed wine to see you through these long days.

Then consider the reasons why the guidelines say a person wrongfully imprisoned should be given a base rate of $150,000 for “non-pecuniary losses” per year locked up:

  • Loss of liberty;
  • Loss of reputation;
  • Loss or interruption of family or other personal relationships;
  • Loss or interruption of school or study opportunities;
  • Mental or emotional harm.

At least three of these five reasons apply to home detention just as they do to imprisonment. Sure, they may not apply with quite the same force; prison is considered “tougher” than home detention. But, that’s only a reason to give a lesser amount of compensation, not to deny compensation altogether.

In fact, this is what the guidelines already do. They provide for compensation at a lower rate for any time that an imprisoned person spent “where there are significant restrictions on liberty as conditions of … bail or parole.” So, this sort of outside-of-prison loss of liberty will get compensated for – but only if a person also spent time in prison. If a person has more significant restrictions on liberty placed on them due to being on home detention, it apparently won’t get compensated for.

Which brings us to the third point. The guidelines’ exclusion of home detention appears pretty arbitrary and unreasonable, given the stated intention to compensate for certain specified harms. Furthermore, Kris Faafoi has publicly rejected the idea of compensating Mrs P before her lawyer even has made a formal request. He’s treated the (arbitrary and unreasonable) guidelines as if they were a binding legal constraint on his actions, rather than guidelines to aid him when making recommendations to cabinet.

That makes his refusal look somewhat vulnerable to legal challenge to me. Just because any decision on compensation ultimately is for cabinet to make as an exercise of prerogative discretion doesn’t remove the role of the courts in reviewing it. After all, when Amy Adams, then minister of justice, decided not to adjust the guideline compensation awarded to Teina Pora to account for inflation, the High Court told her she’d got it wrong.

As such, when Mrs P’s lawyer does put her formal application for compensation before Kris Faafoi, he might want to think long and hard about actually saying “no” to it. For one thing, he serves in a government where kindness is queen. It costs little to just do the right thing. And for another, if he won’t do this willingly, he may find that the courts are prepared to make him do it anyway.

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Illustration: Sophie Watson
Illustration: Sophie Watson

The Sunday EssayApril 18, 2021

The Sunday Essay: Cricket with child

Illustration: Sophie Watson
Illustration: Sophie Watson

James Borrowdale bids farewell to a summer of cricket with his oblivious baby daughter.

Made possible thanks to the support of Creative New Zealand

Original illustrations by Sophie Watson

If cricket, at least in its longer forms, can lay claim to something approaching artistic meaning – that is, for its actions to mean something outside of the game itself – some of that meaning is surely entwined in the game’s relationship to time. Time, and time’s constant shadow: change. The way the ball decays over an 80-plus-over life; the way a pitch erodes; the way a mind might over five days, over a series; the way an overburdened shoulder or knee can curtail a career. Time – its passing, its ravages – strikes me as the central fact of long-form cricket.

It was, as spring challenged winter’s tenancy in the sky and New Zealand’s domestic cricket season began, a concept much on my mind. My first child, a little girl, had been born a week into the first lockdown. “Today is a very sad day,” blared the front page of the New Zealand Herald on the morning of her arrival, quoting Jacinda Ardern. It was, somewhat auspiciously, the day of New Zealand’s first Covid death – a reminder of the direction in which time’s flashing neon arrow points us all. Time, and the limited amount of it that a single life allows, seems to me the fundamental concern of the minds that usher us through what we hope will be an 80-plus year life.

I had spent my partner’s pregnancy slogging away at my first book, which was experienced by her, at times, as a mental absence from anything outside its subject. Early on we decided that, book published, baby in the world, and my partner’s maternity leave expended, I would be the parent to stay home with the little one. Suddenly – for somehow it felt sudden – I found myself as a stay-at-home father with hours to fill between my daughter’s naps. Eden Park Outer Oval, the home ground of Auckland’s domestic teams, was to join the geography of the relationship between my daughter and me.

It was a slightly strange addition, as cricket grounds go. The playing oval is nestled in the shadow of Eden Park proper, the rear-facing ugliness of its western stand looming as a brutalist proscenium to the village-green proceedings below. Sandringham Road borders the other boundary, where a gentle embankment does little to hide the noise and traffic of Auckland bustling by.

Illustration: Sophie Watson

By the time we first unfurled our rug on the grass between the old Merv Wallace Stand and the practice wickets, my daughter was five months old, sitting up and infinitely curious about the world outside our little home on the watery edges of West Auckland. Her schedule had formed fortuitously, allowing the 40-minute drive to the ground to account for the day’s first sleep and giving us most of the first session before unconsciousness came calling for her and our homeward journey, the car rumbling her into deep sleep, would commence.

And so, together we whiled away our time just beyond the boundary rope, she in the centre of a circumference of toys that demanded most of her attention, and me with one eye on the cricket. A flask of tea and a novel to dip into completed my happiness; a bottle of milk and her favourite toy wolf did the same for her. Around us were scattered fellow cricket cognoscenti – retired men for the most part, numbering a few dozen, who pointed deck chairs and, when spring’s climate allowed, hirsute bare chests at the action in the middle. My eyes would wander: book, cricket, baby.

One of those books – growing ever more dog-eared at the bottom of the baby bag – was Virginia Woolf’s The Waves. Time, also, is a central concern of that novel, but, elsewhere, it seemed almost to render my own summer, with its sense of hazy unreality caused by the accumulation of unsettled nights, on the page in front of me. “I lie back and regard the stiff-legged figures of the padded batsman through the trembling grasses… Faintly among the soft, white clouds I hear the cry ‘Run’, I hear the cry ‘How’s that?’ The clouds lose tufts of whiteness as the breeze dishevels them. If that blue could stay for ever; if that hole could remain for ever; if this moment could stay for ever—”

“Stay-at-home dad?” a voice asked from behind one morning, breaking a similar reverie. Auckland was in the field against Otago. Martin Guptill’s familiar shape was crouched at second slip; Kyle Jamieson’s towered at the top of his mark. Olly Pringle, a fast-bowler on debut, stood beyond the rope, patrolling the fine-leg boundary. That voice, as it turned out, belonged to his father, Martin, himself a former Auckland batsman. Over the periodic smack of leather on willow from practice pitches next door, he explained that he’d introduced the bowler in front of us, when he had been my daughter’s age, to the game in this exact fashion, at this exact ground – trundling the nascent cricketer home for a nap during the lunch break, and back for the afternoon session. My mind was fixated, for obvious reasons, on infancy, on beginnings. Pringle, at the outset of a first-class career, briefly became a beacon whose progress through the season seemed an omen.

But only briefly: summer flowered and successively shorter forms of cricket were pulled, like a deconstructing Russian doll, from the last. Pringle dropped out of the playing XI. My daughter grew, as did – with no job to make demands on my appearance – my beard. It was soon possible to watch batsmen in the throes of run-rate mania invert the commentators’ favourite expression by hoicking the ball into the stadium, or at least at it – the white ball pinging against Eden Park’s concrete derrière.

Illustration: Sophie Watson

But the cricket highlights – a Jamieson hattrick featuring two of the booming in-swingers that would prove so effective in the international season to come, the electric batting form of William O’Donnell, the success of the Auckland women’s team – were mere accoutrements to the escalating achievements of this tiny child in life’s first bloom. Her teeth emerged, and then kept emerging, and with them came an escalating appetite for food whose preparation soon dominated my days, just as the Tupperware in which it was carted into town soon overwhelmed our cupboard space. She began crawling with a strange gait that dragged one of her shins, its skin soon noticeably coarsened, over the ground. That meant, of course, she was no longer fenced in by a collection of toys just beyond the boundary rope; no more could I dip into a novel as she sat idly beside me.

The men’s team faded quickly from T20 reckoning. The women fared much better, eventually finishing third. Then came the putting back together of the Russian doll, and the brief re-emergence of Covid that locked spectators out of the men’s final List A matches. Canterbury – the team of my youth, before a decade in Auckland and the birth of this little Aucklander had shifted my loyalty north – came to dominate, ticking off the titles. By now, the expanding interests of my daughter – playgroups, out-of-town family to visit – had come to disrupt our attendance, but it was, appropriately enough, Canterbury versus Auckland in the final of the Hallyburton Johnstone Shield, the women’s one-day competition, on the last day of cricket we watched together this summer.

Auckland batted first. A few friends joined us. Captain Lauren Down, whose form had done much to drag Auckland into the final, was out cheaply. Conversation, as wickets continued to regularly fall, turned to the immediate future: my daughter’s first birthday approached, there were job interviews to think about, a beard to shave off, a stalled career to re-establish, daycare to organise. The line into Eden Park that day was divided in two: one for the rugby game in the stadium, the other for the cricket below. Life, as I had recently known it, was ending. Time – measured in increments of cricket – had eaten up the first year of my daughter’s life. Time torn off, and used – to corrupt a phrase from Philip Larkin’s ‘Aubade’. And used well, in the shadow of Eden Park, in the light of a game that has given me so much pleasure. The innings ended, Auckland all out for 185. Unconsciousness called; the homeward journey commenced. Canterbury, unwatched by us, cantered to a resounding eight-wicket victory.

Summer, then, felt truly at its end. The Canterbury men, after the season’s customary soggy end, daylight savings italicising the sense of an ending, were confirmed as first-class champions – Canterbury, across the men’s and women’s competitions, had won four of a possible five titles. But more importantly, for me, stay-at-home fatherhood was almost at its end. Time, to return to Woolf, was about to give “the arrangement another shake”.