The Pot Luck Nature of New Zealands Judicial System
A compare and contrast response to articles relating to the cases of Joel Hintz by Tom Kitchin, Stuff, NZ. The tragic case of Stephen Dudley reported by Rob Kidd, then Stuff, NZ, (now ODT) and the case of Sevu Reece by Phillipa Yalden, Stuff, NZ.
http://www.stuff.co.nz/national/9853389/No-conviction-for-boy-over-rugby-training-death
The recent case of Joel Hintz at the High Court, New Zealand, highlights the ‘potluck’ nature when it comes to judicial proceedings in New Zealand.
Hintz is a rugby player and former world weightlifting champion currently playing for Hawke’s Bay Magpies. In 2017, whilst studying at Lincoln University he went to Dunedin for a field trip, where at a party, he assaulted a male by punching him to the face with a closed fist causing a tooth to be damaged.
Police in Dunedin charged him with the assault. Hintz had a lawyer who advised him that he could argue self defence and or apply for a discharge without conviction, but Hintz decided to plead guilty due to the further costs involved and stress he was under relating to court proceedings making him depressed, unable to sleep, and not eating. Hintz took the decision to get it over with.
In 2019 Hintz, decided to appeal his plea at the High Court after a psychiatric assessment said that at the time of his plea, his decision making was ‘substantially impaired’. He asked the court to set aside the conviction and order that the case be reheard.
He failed in his application. Justice Dunningham effectively saying, you had options, you didn’t take them, there is no miscarriage of justice.
The average Joe in the street reading the article by Tom Kitchin, may well respond with ‘actions have consequences’; something I for one wouldn’t argue with. But dig deeper and with an understanding of how rugby coalesces with the nation, was the appeal a case of some chicanery being deployed after the event, in order to further a playing career?
That suspicion though has no place in a court room. The court can, or should in all cases, only deal with the evidence presented before it.
However, you only have to look at some recent cases to see that similar fact evidence presented before courts can lead to some very different outcomes, that case disposal is not a level playing field and becomes a game of ‘pot luck’, which can alter the path of some careers, enhance others and even following a death, provide a golden halo to cocoon you for the rest of your life.
Sevu Reece at the time of his assault on a girlfriend was playing provincial rugby with Waikato, very similar to that of Hintz. In a drunken argument he assaulted his girlfriend by grabbing her and dragging her to the ground. Had it not been for the intervention of a third party she may well have received greater injuries than she did.
As New Zealanders we are all aware of where we sit in the global league table when it comes to domestic violence.
Right at the top.
And the Crown prosecutor didn’t mince her words when opposing a discharge without conviction application by the defendant.
The Irish rugby team Connacht seemed to support Reece in his application by submitting evidence that they would withdraw his contract if he had a conviction.
It was Reece’s first court appearance and it also appears to be Hintz’s.
Chicanery may well have been lurking in the shadows in the Reece case as well, as following the discharge without conviction when Connacht heard the outcome, one would think they would honour the contract.
Uh…no they didn’t.
Oh, and, discharge without conviction in NZ law really means, a person pleads guilty and then the court finds you not guilty and discharges you without a conviction. I kid you not!
The outcome of the Irish perspective was lauded by victim advocates. But for that to happen there would have had to have been some sort of change in position from them in relation to the evidential stance they took at court.
Fetid aroma? Maybe, maybe not.
What we know is that Reece was discharged without conviction and didn’t go to Ireland. The Crusaders picked him up, he got his second chance, and went all the way to the World Cup.
So, Reece 1 Hintz 0
Another case, a very tragic one, and one that I had personal involvement with by way of authoring an appeal to the AG; was the case of Stephen Dudley.
Stephen’s case is not as straight forward as Hintz and Reece, and this piece is not the place to go into in detail either. But it can be used in a comparison of ‘pot luck’ to the Hintz case, especially when the disposal Judge is now our Chief Justice.
In brief, Stephen, was attacked by a youth who was two years older than him who ran to the centre of the field, pushed his way through, and threw a swinging punch to the side of Stephen’s neck, who did not see the attack coming. In fact, Stephen who had no time to protect or defend himself hunched down defensively and was assaulted further by the youth and his brother who threw punches to his body area causing him to collapse on the floor. The youth and his brother left the scene. Attempts were made to revive Stephen, but he later died in hospital.
It transpired Stephen had an undiagnosed heart condition which made him vulnerable to heart rhythm changes in traumatic or stressful situations.
The youth was initially charged with manslaughter, which was reduced to assault with intent to injure, and a lesser plea accepted following the medical condition being known. The defence made an application for a discharge without conviction and their application was met with a very wide and open door.
Remember, a discharge without conviction, is where someone pleads to a crime and then the court finds you not guilty to discharge you without a conviction.
This was the outcome of a cowardly unprovoked ‘king hit’ attack where a boy died as a direct result of the attack. Part of the defence submission was that the offender, now innocent offender, would not be able to pursue his rugby career in the future.
The golden halo was enshrined on the innocent offender by way of permanent name suppression, and for good value the younger brother got it, as did their school.
Actions and consequences? I don’t think so.
Consequences in this sense means that there needs to be an unwelcome or unpleasant effect as a direct result of the action. The unpleasant outcome should reflect the nature of the action, and be of same or similar weighting, otherwise is ceases to be a consequence.
So, what about Hintz. Where does that leave him?
Let’s not be shy here. Many people might say that his application was not believable, after all he is a world champion weightlifter and a tighthead prop for Hawke’s Bay. Not exactly a shrinking violet day job!
There is another side here though and one worthy of discussion. Being a world champion at such a young age and then playing for Canterbury and subsequently Hawke’s Bay brings with it huge mental pressure. Pressure just as great as that found in the dark arts at the bottom of a scrum, and one in which he may well have been ill equipped to deal with.
Reece, and name suppressed youth 2, Hintz 0.
Hintz, could pursue further legal avenues but from what I have read that would be wasted at this point. He should employ an investigator to search out and undertake interviews with the people at the party in Dunedin. If his account is true, then he may be able to gain new information that would give his legal team more options.
Whatever Hintz does or doesn’t do next, these cases highlight that the NZ Justice system is not a level playing field, and one which can be easily manipulated as a result.
Failure to do anything means you countenance it, and as a result you become part of the problem. For Joel Hintz, action and consequences have a totally different meaning compared to that of the other two cases, but that does not stop him from making the next step to Super Rugby.
Addendum added 7/10/20 by I R. Tyler
On the 5th of October this year, the mighty Hawke’s Bay rugby team won the Ranfurly Shield, and returned home to ‘The Bay’, triumphant. Whilst Hintz has served his sentence for a violent assault, I know that the victim’s in his case will still carry significant trauma from the event. I was surprised that he was elected to be the ‘caretaker ‘ of the trophy, amongst many of his other faultless peers.
This is adding salt to his victim’s wounds. It also indicates, that even though at the top of NZR, where they say they won’t accept violence, yet again, they have failed to take real life proactive steps to support their own rhetoric. It leaves me feeling that despite all their glossy marketing and communication, they just don’t get it.
When will they?
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