Motorcade Redux

On Thursday the civilian driver convicted of dangerous driving in Prime Minister Helen Clark's now infamous motorcade between Waimate and Christchurch was back in court. He along with two police officers was convicted in August for his role in the incident. However he's the only member of the trio seeking to get the conviction overturned. His lawyer Johnathan Eaton made submissions on his behalf in a four and a half hour hearing before Justice Cooper at the High Court in Timaru.

As with all such appeals the appellant has to prove the sentencing judge (in this case District Court Judge John Strettell) made an error of law when he imposed the conviction and sentence. Johnathon Eaton challenged the Judge's ruling on several points, which I'll try to outline.

One of his key attacks was against the way Judge Strettell treated the defendants in the District Court when handing down the sentences. Under NZ law when there are a group of defendants the Judge, or jury, are obliged to treat them individually when considering their cases. The sentence has to be based on evidence that pertains to each individual and evidence used against one can not be applied against another unless it has relevance. Johnathan Eaton's argument is that the Judge failed to do this for the civilian driver and instead treated all the three defendants in the same manner. In his view the Judge erred in assessing the culpability of his client and had he done it correctly the civilian driver would have been discharged without conviction.

The key here is culpability. In Johnathan Eaton's view his client's culpability was less, compared to that of the police. It was pointed out the civilian driver was following the lead car which was responsible for undertaking the passing maneuvers which were deemed by the Court to have posed an undue and unnecessary risk. Jonathan Eaton said the lead car cleared the road so that the second vehicle, driven by his client, actually posed no danger to other traffic as the road was already clear. Thus the civilian driver's actions had a significantly lower impact. Furthermore he argued the police were in charge of the motorcade and the civilian driver was acting according to their directions. He even had the police officer, who was in charge of the motorcade, sitting next to him giving tacit approval to his actions (as a quick aside Johnathan Eaton did not extend the tacit approval to the Prime Minister as has been reported in the newspapers). As far as the driver was aware he was acting appropriately and it would complete unrealistic to expect that he would have expressed concern at the situation and pulled the car (containing the PM) over and refused to have driven. Eaton also focused on Judge Strettell's sentencing remarks which estimated the average speed of the motorcade was at least 150 km/hr. He maintained Judge Strettell's figure did not fit the evidence provided by witnesses at the trial which put the average speed, in his view, at 140-145 km/hr. This, he said, meant the Judge had not sentenced his client on the evidence at hand.

The police, through prosecutor Tim Gresson, countered by saying the elements of dangerous driving had been amply proved at the trial and once proved there can be no defence to dangerous driving. Tim Gresson referred to the civilian driver's expertise, and 30 years of experience maintaining a person with such a background had the necessary knowledge not to have taken the actions that he did. In response to the criticism of the trial Judge not applying individual assessments for each defendant Tim Gresson said it had been established at the trial that all three defendants had acted in a similar fashion, through their driving and so were equally culpable. He pointed out this element hadn't been challenged by the defence during the original trial.

Tim Gresson also iterated the failure of any of the parties, both the police and the civilian driver, to question the need for the motorcade to travel at such speed. Had they done so, he said, they would not have found themselves in the predicament they ended up in. Tim Gresson also quoted from a Court of Appeal decision which set the legal precedent that following orders is not a legal defence if the result of following such orders results in an unlawful act.

Those matters aside there were some other interesting points that came up during the proceedings. One of significance is that the written defence submissions presented to Justice Cooper included a letter from prime Minister Helen Clark. Its details were not read in open court so I can't say what was in the letter. However traditionally such material is in support of the appellant. It'd be safe to assume that in this case the Prime Minister has made a representation on behalf of her driver.

Another issue that was canvassed by Johnathan Eaton was the impact the conviction and its resulting publicity has had on the driver. Now this man has been granted permanent name suppression so Justice Cooper did query that given this was the case how could the publicity affect the appellant? Eaton's submission was that his client's identity was well known in both media and diplomatic circles leading to him being identified at official events as "that speeding motorcade driver". It was something he argued had a significant impact on the man's ability to do his job and as a result he'd seriously considered quitting. It pays to bear in mind the ministerial drivers transport both Government and leading opposition MP's. When you factor in the political capital the opposition made about the affair it's fair to say the driver ends up in a somewhat invidious position in situations where he has to drive someone like Don Brash or Rodney Hide. It can't be a pleasant situation to sit in a car with politicians who have used you as a political football to further their own ends.

The appeal is now waiting on a decision from Justice Cooper. There's no word as to when it will be released though it's been promised, by the Judge, that it'll be given high priority.

Do You Ever Get the Feeling That We Are All Fucked?

I'm sorry to keep harping on about avian flu but this press release (see below) put out by the Ministry of Health this week deserves a bit of a critique. When you read it bear in mind the Ministry has spent millions preparing NZ for an epidemic and that we're regarded as one of the best prepared countries in the world.

This is part of a release was put out on behalf of the Director of Public Health, Dr Mark Jacobs on the 20th of October.

Personal hygiene measures that all New Zealanders can take will form a crucial part of helping to reduce the risk of influenza infection. At a community level, there are simple, practical measures families and individuals can take to help themselves, in the event of a pandemic. These are: regular handwashing using soap, remembering to dry hands thoroughly afterwards covering your cough or sneeze with a tissue and safely disposing of the used tissue in a bin avoiding contact with others if you are sick, and staying home from work to reduce the risk of passing on the infection making sure you have enough food and water in the house to keep going if you become sick and can't get out to the shops. Plan for about a week's worth of supplies having a supply of paracetamol in the house to reduce fevers in people who are sick.

So what he's saying is: use a tissue, wash your hands, and take a disprin. I feel so much safer and better prepared now. Hell, that's the same sort of advice my grandmother would have given me, except at least she would have added chicken soup to the list. I wonder how many millions of dollars they spent to come up with that handy list of advice.

Further in the release Dr Jacobs says the Government has spent 26 million dollars to buy 850,000 doses of Tamiflu. This will be enough to treat 21 percent of the population. Which is all well and good for the lucky 21 percent although not so flash for the remaining 79 percent of us. And as this study points out general infection rates from influenza in a non-pandemic year are around 20 percent of the population. That suggests a pandemic will infect more (figures being bandied about suggest around 30 percent) meaning we still won't have enough Tamiflu to treat everyone. Even then there's no guarantee it'll work.

So here we have out health authorities telling us everything is in hand and under control. I'd really like to know what the clinicians are thinking. You know the people that will be taking care of us when, and if, the shit hits the fan. I wonder if they're of the same opinion as this Australian physician. If he's to be believed we are totally screwed as there's no way our hospital systems can cope with a pandemic of the size that's being talked about.

Those of you with health insurance are probably sniggering right now thinking you're home and free. I've got news for you, you're not. The official word from the Health Insurers Association of NZ is that only a tiny minority of people with health insurance have the type of cover that will provide private healthcare if they come down with bird flu. The sad fact is the spiralling cost of health insurance means the vast majority of people with policies are only covered for surgery.

I Don't Get It.

A German backpacker is murdered in Taranaki and we get saturation coverage in every paper, every radio station, and every news bulletin for a fortnight.

Meanwhile in Christchurch a 43 year old man is beaten to death while walking home from a party late at night. He gets barely a mention in the media and doesn't even rate a story on TV news.

Isn't it amazing the differing values we put on a human life? Is the message that if the victim is a woman, and there's been some suggestion of a sexual attack, that it's more important, or somehow more significant?

Now onto a different matter entirely. I ran into a friend today who'd had the good fortune to hear a speech given by Crusaders Coach Robbie Deans to staff from a local radio station at some sort of team-building exercise they were having. One thing that stuck in his mind was the live for the moment, grasp every opportunity, message Deans put across. The example he gave was this:

"Imagine full time is almost up, there's time for one, maybe two more plays. Your opponents are five metres from your goal line, they have a howling southerly at their back, a six point lead and the ball is in their possession. From the breakdown they play the ball to Jonah Lomu who charges for the line. What do you do?

For many they'd say; that's it; we're doomed; and play defensively and probably lose. But what you do is you target your man, make the tackle and make sure you get the ball first. Then you put it through the hands and get it down the other end as quickly as possible, score and win the game.

Remember the opposition, when they're on attack and just short of your line, well the last thing on their mind will be the possibility that their own goal line is in danger"

The interesting point being that in the season the Crusaders introduced this philosophy they scored 45% of their tries from turnover ball. Glass half full indeed!

The Great Pandemic

The threat of Avian Flu's been around for a year or two now and it seems, all of a sudden, it's becoming a very serious thing indeed. Is it going to be a repeat of the post-WW1 Spanish Flu epidemic? Or will it be reminiscent of the great SARS scare of a couple of years ago (ie prophets foretelling a doom which never came)?

On the basis of some recent observations I've decided it might be wise to take a few precautions. When you hear the local radio station, that doubles as the Civil Defence emergency broadcast network, is developing contingency plans to keep itself on the air one develops certain concerns for self preservation. Also when the local DHB virologist starts saying things like "it's a matter of when, not if, it gets here" it's time to start worrying. When he's also a well regarded expert who works for the World Health Organisation it feels like it's time to be seriously scared. The plus at the moment is that while the virus can pass from animal to human, it seems it can't pass from human to human. Though how long it'll be before there's an antigenic shift is anyone's guess.

You see the kicker with these types of epidemics is it's hard to tell who is most at risk. Generally normal flu viruses will infect between 5 to 15 percent of a population and it's the old, the young, and the chronically ill that are vulnerable. While SARS never had those sort of infection rates it did have a mortality rate of around 3 percent. On the face of it that may not sound like much, but if everyone in New Zealand had been infected with SARS then it would have resulted in over 100,000 deaths. That would have been the worst disaster in our country's history. Historically the most recent comparison for us to look at, as far as western societies are concerned, is the Spanish Flu which had a mortality rate of 2.5 percent. It was pretty indiscriminate and seemingly healthy people dropped like flies. But if this column in the Washington Post is right then human to human transmission of the Avian Flu will be to Spanish Flu what a nuclear weapon is compared to a lit match.