Nice to see Labour not automatically opposed

November 16th, 2010 at 10:00 am by David Farrar

The Herald reports on the sweeping changes to trials in the Criminal Procedure (Reform and Modernisation) Bill.

The one that will probably attract the most debate is moving the threshold for from a maximum three months to a maximum three years.

While the list of offences that would be affected is long, officials have advised Mr Power that the most common cases would be theft of between $5oppos00 and $1000; receiving between $500 and $1000; possession of a class A drug; common assault; and assault on a female or child.

I’d be interested in what the stats are for these offences, in terms of how many people convicted of them even receive a jail sentence at all. A maximum is just that – and generally never given out.

The opposition Labour Party’s associate justice spokesman, Charles Chauvel, said that while some change in the threshold for jury trials made sense, Labour would reserve its position until it had heard select committee submissions.

That is a very sensible position to take, and good on Labour for not being opposed just for the sake of it. I’m not 100% convinced myself moving the threshold to three years is the right point – maybe it should be two years – again would be good to see hard data on this.

Some of the charges no longer tried before a jury (with current maximum term):

SIX MONTHS
* Ill treatment or wilful neglect of child
* Possession or use of class A drug

ONE YEAR
* Possession of unauthorised seed or fruit

TWO YEARS
* Driving with excess breath alcohol (3rd offence onwards)
* Driving while disqualified (3rd offence onwards)
* Bigamy
* Infanticide

THREE YEARS
* Assault with intent
* Making intimate visual recording
* Aggravated careless use of vehicle causing injury or death
* Indecency with animal

Oh that is unfortunate. If these changes come through, I’ll never get to be a juror on a donkey sex case. I always thought if one has to be a juror, that would be more interesting that an assault or burglary case etc.

On the other hand these donkey sex cases tend to always be in Nelson or Christchurch, so I guess I would not have got one anyway. And add to that, that in 25 years of availability I have never once been summoned for jury service.

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68 Responses to “Nice to see Labour not automatically opposed”

  1. GPT1 (2,090 comments) says:

    The worst element is requiring defences to be disclosed to allow prosecution to plug holes in their evidence.

    Jury trials are pretty bad as well. Perhaps some movement but Infantcide and the 3 year stuff should stay. Can specifically amend for aggravated dsq driving and EBA.

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  2. s.russell (1,564 comments) says:

    I am very pleased to see this reform package presented. The long process delays in our court system do not serve the interests of justice and simply drag out the pain for victims (and those few accused who are actually innocent). Only the lawyers benefit.

    While we should certainly be very careful over the details, this will be a big step forward for justice in New Zealand. Justice delayed is justice denied.

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  3. adze (1,869 comments) says:

    Kind of weird that indecency with an animal has a higher max penalty than infanticide.

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  4. backster (2,081 comments) says:

    At last a Government is coming to grips with a farcically prolonged and expensive process. It is an Act to replace the Summary Proceedings Act 1957. There was nothing wrong with that Act, it is the amendments, rights and processes that evolved since then that have got us into the current mess. At the time it was implemented there was a real prospect of receiving the maximum penalty for a serious breach of the particular offence or for repeated offending and a warrant for imprisonment was issued if a fine was not paid within 14 days. In these more enlightened times prison is seldom applied even for crimes committed within the new proposed limits.

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  5. Pauleastbay (5,035 comments) says:

    GPT1

    The prosecution has had to disclose for years. If the defence has to it will enable many matters to be completed without the need for a trial.

    The Judge will have some input prior and if he doesn’t think there is a defence or prosecution evidence sufficent, game over.

    This is what deposition hearings are meant to do but for too long deps have just been a rubber stamp on the way to the trial.

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  6. tvb (4,210 comments) says:

    The most common area for electing trial is male assaults female, and possibly receiving, and some drug cases laid summarily though the election bumps the penalty up.

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  7. Murray (8,838 comments) says:

    Fuck who needs to follow any kind of judical proceedures at all, lets just let the police decide to lock up whoever they like for as long as they like.

    This following “rules and proceedures” because people in western democracies have managed to aquire some rights over the last two thousand years is really just an antiquated concept and its just like too hard you know.

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  8. MT_Tinman (2,993 comments) says:

    On the other hand these donkey sex cases tend to always be in Nelson or Christchurch, so I guess I would not have got one anyway. And add to that, that in 25 years of availability I have never once been summoned for jury service.

    Being Wellington based the donkey is more likely to be on trial.

    I admit to surprise that you have never been summoned to serve.

    I get the call about once every two years – and each time I look at the remuneration, look at my daily costs and refuse the offer.

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  9. GPT1 (2,090 comments) says:

    s.russell – please provide evidence to show that “only the lawyers benefit” or are you just talking through a hole in your head?
    Pauleast – with respect do you also hug trees and sing kumbyah whilst waiting for the tooth fairy? I’ve tried the whole here is our defence you are screwed argument. Suddenly the evidence improves and a long lost job sheet turns up. Had a case recently where there was absolutely no chance of success. Write to police – here is why you should never have arrested my guy let alone charged him (oh and the beating was probably a bit tough too). Lots more evidence turns up (although in this case it couldn’t help them). I explain again why they are going to fail. We go through this stupid bloody hand holding session the ministry is so keen on to “discuss the case” I explain you are completely screwed how look at this Court of Appeal case that all but says Dear Plod, we have read your facts and you are wrong. Goes to court. Cost of counsel, court etc – get through first witness and Judge says “erm, Mr Prosecutor isn’t it traditionally that some sort of crime is disclosed in evidence?” (slight paraphrase) and police finally collapse in a heap.

    The point is that it is for the crown to prove a case not for a defendant to disprove it. Having to disclose your defence is the first step to reversing the onus.

    Here is a UK example:
    http://www.criminalsolicitor.net/forum/forum_posts.asp?TID=6647&PN=1

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  10. Pauleastbay (5,035 comments) says:

    GPT1

    When you get an office instead of your car boot you may find that the prosecution have been putting up ” new ” evidence and witnesses from the defence for years.

    Disclosure has a time limit. What I can see from these changes is a lot of legal aid work is going to dry up. I smell fear GPT1 and Court kicked off 53 minutes ago.

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  11. GPT1 (2,090 comments) says:

    The changes are also based on the fallacy that court appearances delay proceedings. They do not. Court hearings get things done even if it is just making the defendant face up to reality.

    The biggest delay that I can see in the summary jurisdiction is getting disclosure. Prosecutions have washed their hands of it and the OCs either give it directly to the punters (think shredding it) or attach it to the court file. The result is that you have to go to the first appearance in the hope that disclosure is still there (if they have already appeared and had a remand for legal aid then chances are that disclosure has disappeared – given to the punter who promptly loses it). So second appearance (first as assigned counsel) and no disclosure = delay.

    In indictable matters the charges are laid, there is a brief flurry around bail, and then the matter disappears for about four to six months before an indictment is prepared. Madness.

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  12. wreck1080 (3,734 comments) says:

    labour will object, cos their voter base will be the most affected.

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  13. Pauleastbay (5,035 comments) says:

    GPT1

    Having been out of the system for 7 years and things may have changed but, no disclosure, no case , charge kicked.
    There were only ever two or three criminal lawyers in Auckland that were that untrustworthy I would require a signature from before handing over the disclosure, everyone else you just photcopied the file and posted it.

    I loathed anything to do with the District Court as it is such a fuck up and would do anything to not have to appear, so the more the information the defence has the better the chance of the matter being sorted without a hearing. When dealing with mature defence counsel most matters can be sorted without a defended hearing

    From what you have written above you are talking about initial disclosure anyway, Summary of facts etc, thats generally all thats on a file for first appearance. There have always been three copies done and one of those was for the defence and made available. If the client hasn’t made the effort to see a duty solicitor first up, tough luck.

    I hear there are a lot of matters that are not going to go any where near Court anymore anyway, a couple of joints, pissing in the street these are going to be ticketedd and end of story.

    Its going to dent alot of legal aid work

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  14. KevinH (1,131 comments) says:

    The changes will be welcome in an overloaded Justice system bogged down by a multitude of cases that don’t require a jury’s deliberations ie drug and alcohol offences as well as driving offences.
    I have been on a jury trial and thankfully it didn’t involve any bestiality although the case was tragic and involved unlawful sexual connection with a minor. It was difficult and traumatising listening to a weeks worth of evidence which left no stone unturned and as a member of the public I was confronted with the dysfunction that can exist in some communities. Needless to say the verdict was correct and a slimebag got his just deserts.
    Jury trials are harrowing emotionally and for some it is an experience you never forget.

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  15. Pauleastbay (5,035 comments) says:

    KevinH
    Sorry but thats all part of our society , most people are fortunate enough to never have to have a contact with the police or the justice system, but there is evil out there and you never really know until you see them before a judge.

    There are only a small percentage of criminal offenders in our society that readily identify themselves as criminals, the majority are our next door neighbours and work mates.

    And its not just in “some communities” all these dysfunctions happen in all communities some just have better legal representation than others.

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  16. Repton (769 comments) says:

    Maybe the defense and prosecution should just get together over coffee and figure out what should happen. That way we can skip the expense of a trial altogether and really speed things up.

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  17. Dexter (272 comments) says:

    Excellent changes, the disclosure rules have already been heavily tightened up placing the onus fully on the Police/prosecution to ensure it is full and delivered in a timely manner. You can certainly see why some lawyers are opposed, dragging it on through countless hearings with Defendants failing to appear on multiple occasions and enabling them to manufacture defenses or rely on witnesses/complainants finally losing motivation and having the case dismissed.

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  18. RightNow (6,675 comments) says:

    wreck1080 (1,300) Says:
    November 16th, 2010 at 11:05 am
    labour will object, cos their voter base will be the most affected.

    I agree, once Chauvel and the rest of the party figure this out they will likely tout this as an assault on human rights.

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  19. F E Smith (3,302 comments) says:

    Pauleastbay (550) Says:
    November 16th, 2010 at 10:54 am

    “GPT1

    When you get an office instead of your car boot you may find that the prosecution have been putting up ” new ” evidence and witnesses from the defence for years.”

    He has an office and is a a well respected and very able lawyer in his town. Stop your petty insults, especially if you are a part of the profession.

    Delays to the process do not make us extra money. They cost us money because they delay us getting paid. I would much rather have a guilty plea so I can move on to the next matter than have a client go to summary trial, with the minimal money that pays, and not get paid for 6 to 9 months.

    And the Police are huge causes of delays in the system.

    Initial dislcosure is a shambles. The government can say what it likes in legislation, but getting the police to comply with the letter or the spirit of the law is almost impossible. They will generally do anything they can to make life easier for them, regardless of what parliament says, and the Courts will rarely hold them to account.

    Indeed, what do we get proposed but sanctions against the prosecution (i.e. the government agency bringing the case), the defendant and the defence lawyer! So, tell me, who would want to be a defence lawyer if you are at risk of being fined because a judge disagrees with how you thought you should run the case in the best interest of your client?

    Oh, silly me, I forgot that it is the victim that is most important in all of this and the process of justice should not involve the defendant other than to pronounce sentence upon him or her.

    @Repton: “Maybe the defense and prosecution should just get together over coffee and figure out what should happen. ”

    Yeah, sure. The agency that brings the charges being faced by the defendant is really going to be open to getting together over coffee and figuring out… what? That the defendant should plead guilty to all charges because that would save the system money and the police time?

    This isn’t civil litigation, it is criminal justice, and the plaintiff isn’t seeking money, they are seeking a criminal conviction and a state sanctioned punishment. Get real, people, this is the State with all of its resources attempting to make the playing field even more tilted in favour of the prosecution than it is now. At least Tony Blair and Jack Straw, when they brought these practices into the UK, were honest about why they were doing it- it is to obtain more convictions, pure and simple.

    And can I just point out that most jury trials are elected by the police, not the defence.

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  20. BeaB (2,060 comments) says:

    Most of these offences could be dealt with by a fine in any case. Never saw the problem with bigamy. Seems to be more a moral offence than a criminal one. Like adult incest.

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  21. GPT1 (2,090 comments) says:

    Oh grow up Paul East. I have an office and you mistake the smell of fear for the lament of a dying justice system. Still, it doesn’t affect you (yet) so who gives a shit if a few more innocent people get locked up – they’re bound to have done something wrong any way.

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  22. Pauleastbay (5,035 comments) says:

    FE Smith

    I’ll take a couple of your points but its not just the prosecution, thats why I stated above, I did anything not to have to attend District Court its a zoo.

    The police don’t want to be at Court, they get paid anyway and generally its on days off that hearings fall anyway.

    There maybe a few young police members out there who still care enough to crawl over broken glass to get a conviction in a summary matter but this enthusiasim soon wanes after the first decade and having several days work dismissed because the Judge may have over imbibed at the Auckland Club at lunch and wants to knock off

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  23. F E Smith (3,302 comments) says:

    You forget, BeaB, that most people want the default sentence for all crime to be a prison sentence. Fines are not popular and get both judge and defence lawyer abused by the public.

    @Pauleastbay: “no disclosure, no case , charge kicked.”

    Ha ha ha ha! What are you? Stupid? I have had disclosure turn up the day before and been required to proceed. Why? Because my client would obviously have told me about the case and, anyway, I had the paperwork now!!!

    Especially in summary jurisdiction, the rules do not apply to the police in any meaningful way. Pure and simple.

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  24. F E Smith (3,302 comments) says:

    “There maybe a few young police members out there who still care enough to crawl over broken glass to get a conviction in a summary matter…but this enthusiasim soon wanes after the first decade ”

    I obviously don’t have the pleasure of dealing with the same cops you do. The point of disclosure of issues by the defence is so that the police can shore up a case. While that means that parliament expects that patching of the hole in the case to be done honestly, the fact is that it isn’t always so.

    This is Simon Power implementing policy lifted straight from the UK Labour Party. I hope he doesn’t take credit for coming up with it himself.

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  25. Pauleastbay (5,035 comments) says:

    GPT1

    Good to see the enthusiasm , but we do not have a justice system, we have a legal system and if you have ever spent any length of time at the zoo called the Auckland District Court you may well agree that a bullet is needed

    Not all cops are like some you meet, just like not all lawyers are that untrustworthy you had to get a signature before you would hand over a file.

    And as for Summary matters ………….they’re bound to have done something wrong any way.
    When you see people with 150 convictions walking out to the pub after their third arrest this month the cynicism levels sky rocket.

    How many levels of sentence are there now before a person gets “locked uP” i.e imprisoned?

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  26. Repton (769 comments) says:

    Huh. Sorry, F E Smith, I thought I was being obviously sarcastic but I guess Kiwiblog is so authoritarian these days, it’s hard to take a view so extreme that it doesn’t seem normal.

    Here was me thinking right-wingers were opposed to too much state power. But it’s evidently OK when it’s “crims” that suffer the consequences.

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  27. F E Smith (3,302 comments) says:

    Repton, if you were being sarcastic then you have my apologies. But, yes, Kiwiblog is becoming quite authoritarian indeed these days. I have always had the same view as you express when it comes to state power, and indeed giving up my rights in the criminal process where I am pitted against the state, but it seems that rights are overrated these days and we can all do without them.

    Next to go, the concept of innocent until proven guilty. It definitely slows up the justice system and makes it much harder for the Crown to punish people.

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  28. Pauleastbay (5,035 comments) says:

    Repton

    But what you stated is exactly what these changes want to do, get things sorted without a hearing i.e defended hearing.

    Its not about crims” suffering its about money and the victims,

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  29. F E Smith (3,302 comments) says:

    Victims are not the focus of the criminal justice system. Nor should they be. They rightly come into relevance at any sentencing. Any focus on victims prior to that time takes away the central point of the criminal justice system, which is whethe the charges laid against the defendant can be proved beyond reasonable doubt.

    Criminal justice is not civil litigation and should not be expected to operate in the same way.

    EDIT: I mean, do you seriously expect the police to pull charges just because the defence lawyer turns up at the police station (because sure as hell the police won’t go to the defence lawyer) and explains why the defendant thinks the police should not proceed? Get real. It happens so rarely that making it law merely makes the playing field even more favourable to the prosecution.

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  30. Pauleastbay (5,035 comments) says:

    This is where the justice in justice (legal) system comes in surely?

    Its all very well having a system focused on the defendant but when the system is that bogged down that a victim has to wait ( and the defendant as well) a year for the matter to go trial there is something drastically wrong.

    Anything to speed this up is must be supported.

    And then we have juries ,well where do you start..?……………….

    EDIT: You must duscuss with the Crown before High court matters? Thats all thats going to happen it may be formalised but a lot of rubbish matter should just be a phone call. Plea bargining has happened fpor years

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  31. Pauleastbay (5,035 comments) says:

    FE Smith

    Have you never plea bargined a matter? Thats what a lot of this is.

    I know its not official but its happened for years. A phone call, a chat with the defendant, a quick amendment to a Information and job done. You get to talk in mitigation, the police can carry on giving me speeding tickets and you go onto the next client.

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  32. GPT1 (2,090 comments) says:

    Most cops I met are basically decent although within that group is a large number who joined to chase bad guys not do paper work. Understand that but it makes it even crazier that OCs are in charge of disclosure. There seems to be this myth that most people “get off”. 90% of Informations end in guilty pleas.

    The sentencing heirachy is convict and discharge, if called upon, fine, supervision, community work, CD, intensive supervision, HD, bin although there is no obligation on a court to go step by step and they do not (at least not in Chch). In fact with one Judge it goes cw then bin despite what the CA say. Anyway how did we get to sentencing? I’m more worried about fair trials (my colleagues tell me they would be quite happy to have me judge their clients but want me nowhere near them for sentencing).

    What ever the spin and the posturing these changes are designed to make it easier to convict people. As FES notes locking people up is actually quite a big thing – coercive power of the state over the individual and all that – hence why it has been so difficult. Still as you note Paul – they’ve bound to have done something.

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  33. F E Smith (3,302 comments) says:

    I like juries. They keep the system honest and exercise a far more common sense approach to life than judges are allowed to.

    And I often don’t discuss cases with the Crown. The case is theirs and they are making the allegations, why should I assist them in prosecuting my client? Oh, I forgot, because this is about getting someone for the victim to blame.

    Of course, these proposals will be wildly popular on both this blog and with the general public. So why oppose them? After all, when the public lose the right to be defended by a lawyer in any circumstances (which would obviously save a ton of money), I will still be able to represent myself if the worst comes to the worst.

    So consider my opposition withdrawn. This good man is choosing to do nothing.

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  34. GPT1 (2,090 comments) says:

    Paul – your point is self defeating. We have all pleaded stuff out and despite my horror stories there are a number of OCs and prosecutors who are (usually but not always the day before fixture) ready and willing to sort things out sensibly (that’s an objective sensible). Indeed when a deal went sour recently (someone of higher rank vetoed the OC after he had agreed in writing) the Judge was most concerned that this practice of communication occurs and memos started to fly. So yes it does happen already. So why add another step in the process and OBLIGATE the defence to show their cards? As I noted above I have gone through the group hug session with less objective police and got nowhere – if it is going to work it already does.

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  35. Pauleastbay (5,035 comments) says:

    GPT1.. Thats nine levels of sentence up until prison. perhaps thats where its wrongthen. Most people will only ever go one level and never be heard of, but the 10% appear hundreds of time. perhaps a good sentence at the beginning may see a drop off? the first four levels really have no consequence to those who are used to the system.

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  36. s.russell (1,564 comments) says:

    GTP1,

    Your 10.45am post demonstrates that the system (legal, not justice as Pauleastbay says) is indeed a shambles. Ergo the need for reform.

    In the case you cite it seems to me is that disclosure was exactly what you did yourself. I fail to see why mutual disclosure is a threat to the presumption of innocence, perhaps you might explain further. It rather seems to me that such mutual disclosure would eliminate the need for wasting time on proving matters that are not in dispute, and enable lawyers on both sides to be fully prepared to tackle the issues that are in dispute. Surely, that serves the interest of getting at the truth.

    Simon Power claims that the changes will cut about 43,000 court appearances a year potentially freeing up 16,000 sitting hours. If so, the legal profession (and let us also count judges, clerks, security guards, etc) must surely have a lot less work to do – or be able to get a lot more done with the same effort.

    In claiming that “only the lawyers benefit” I am not claiming that lawyers are crooks, only that the system creates a lot of extra work for them, and means we need more lawyers.

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  37. Pauleastbay (5,035 comments) says:

    FE Smith

    When good men do nothing, evil triumphs…………

    I love that quote.

    Never give up

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  38. Dexter (272 comments) says:

    Perhaps an independent mediator to whom the defence would take issues who would then in turn make recommendation to the prosecution ie whether to drop, reduce charges, without necessarily revealing the defence case would be a better option and avoid some of the adversarial aspects of the present system.

    Although an improved version of the English caution incorporated here in which there is an obligation on the accused to provide an explanation when questioned rather than having 9 months to learn the ins and outs of the police case, witness statements and manufacture an explanation based on that would also make alot of sense.

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  39. GPT1 (2,090 comments) says:

    Dexter it’s criminal law that can end up with people in prison not the disputes tribunal. Besides there already is an independent mediator called a Judge.

    s.russel – that case I was on a win regardless so I was able to chose the best course of action for my client – ie: get it sorted. In other situations saying nothing is the best bet – especially where your case relies on cross examination of a witness. Tipping off said witness that you are going to pin him down on the fact that he told Constable A one thing but you have, say, a fb post dated two days later saying “got the little bastard” removes the opportunity for a Judge (or Jury) to assess the witness’ credibility when first confronted with other evidence. And it is not for the defence to disprove the case but for the prosecution to prove it so requiring defences to be advised is undermining that core principle.

    Also the story above will in no way change as a result of these proposals. The area I was in was already running a version of the group hug chat about the case carry on and we still ended up wasting time in Court.

    Paul – not that this thread is about sentencing – but it is not 9 individual steps (the supervision sentences aren’t really a step) and the court does not go step by step. You don’t get a C&D for stabbing someone even if it is your first offence. I do sometimes wonder about the value of short sharp shock sentences (21 days type) for repeated anti social crime – constant shop lifting, tagging etc. In fact if it was me tagging would very quickly end up in the bin (since stocks and public flogging is out).

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  40. rouppe (916 comments) says:

    Well if it were moved to a maximum of 3 years or more then you could still get called for your intimate donkey case cause the max penalty is 3 years…

    What surprises me more is that infanticide is held in the same regard as bigamy or driving while disqualified. To me the killing of a infant is the same as homicide with the aggravating factor that the infant is defenceless.

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  41. Pauleastbay (5,035 comments) says:

    …………….not that this thread is about sentencing ..

    Good point, but the anti social stuff takes up an inordinate amount of space,true?, which these changes seem to be wanting to clear. But the steps do seem to apply for minor matters , appearance after appearance, which add to the congestion.

    I’m not suggesting that we plea out serious assaults etc but the crap stuff needs to be sorted, like the old drunk charge, plead at the police station stuff like pissing in doorways, smashing bottles , (although I believe that a lot of this stuff is going to a ticket system anyway,)convicted and discharged be gone drunken fool…. except tagging …………life without parole

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  42. nickb (3,659 comments) says:

    keep up the good work FE.

    Good to see there are still some lawyers (and right wingers) standing up for civil liberties.

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  43. Pete George (22,859 comments) says:

    Seems like Finlayson is opposed to parts of it:

    Proposals to allow criminal trials to proceed without the accused being present will strip defendants of a fundamental right, Attorney-General Chris Finlayson has warned.

    Mr Finlayson also criticises moves to allow courts to order the retrial of an acquitted defendant if new evidence comes to light and the reversing of the onus of proof for some offences.

    It also requires the defence to disclose issues in dispute before cases get to court, a move that civil liberties and defence lawyers say erodes the right to silence.

    But Mr Finlayson said the defence would not be made to disclose the evidence or witnesses they intended to call. Although juries could draw negative inferences when defendants did not disclose issues in dispute but later raised them at their trial, there was significant judicial discretion on when the prosecution could put that to them.

    Mr Finlayson said allowing cases to proceed when defendants failed to appear breached the right for an accused to be present at trial and to present a defence.

    http://www.stuff.co.nz/national/politics/4350343/Attorney-General-criticises-justice-law-change

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  44. big bruv (13,314 comments) says:

    F E Smith

    I also like that quote, there is a new one along similar lines.

    “When lawyers get involved, evil triumphs….

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  45. GPT1 (2,090 comments) says:

    I agree re. dealing with the anti social stuff. Change disorderly (fine only) so that police can issue a summary fine of, say, $200 – if punter wants to argue they can take it to JPs and risk costs.

    I really don’t know who minor charges get stretched out so long, or if they do. Mine certainly do not whether I am DS or assigned. Manyof the prosecutors are also pretty good, even in a busy list court, if you offer them something sensible they will often deal with it on the day.

    My biggest problem is getting the damn disclosure. It used to be pretty good in that you got a client, faxed prosecutions and an hour later you had the disclosure, spoke to punter and dealt with the matter either to status hearing or by (most of the time GP). If there were issues you faxed prosecutions and one day they got back to you.

    Since the Criminal Disclosure Act came in it is harder and harder. To give a practical example. Punter A comes in to DS and says (well grunts usually) ‘bloody cops made this shit up, i never hit no one, bro.’. You ask a few questions and they insist they did nothing – NG plea and delay. If they come with disclosure then you can see that there are two independent witnesses, a dude with a broken nose and camera footage of the guy punching and you can tell the guy to shut up and take the hit before someone wakes up and realises that common assault was really a bit low. Matter sorted.

    I imagine it is mainly a dislike of paper work but honestly disclosure is the policeman’s friend. If the charge is a good one disclose more and get an early plea.

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  46. Kris K (3,570 comments) says:

    From the Herald article:

    At present, with a few exceptions, defendants charged with an offence punishable by more than three months in prison have the right to elect a jury trial. That is guaranteed under the Bill of Rights Act, which will have to be amended if the new law is passed.

    Under the proposed law the threshold will be raised to offences punishable by more than three years’ imprisonment.

    That’s a HUGE adjustment; from 3 months to 3 years.

    Hell, why not really streamline the system and do away with trials altogether – and simply convict people on the untested word of a police officer?

    … and I’m sure something like that is the eventual goal. More Big Brother control of the population through continual erosion of our freedoms and rights. We’ve got to stop these charlatans like Powers dead in their tracks.

    Also from the Hearld article:

    Bob McCoskrie, the national director of Family First, which opposed Sue Bradford’s anti-smacking law, said that while Mr Power’s reforms were well intentioned, the Government had not thought through the implications for parents “prosecuted for minor acts of physical discipline or smacking”.

    Indeed.
    It’s unconscionable that parents who may be brought to trial for “disciplining their children” will have the right to a trial by their peers removed. Especially as it was National who refused to repeal this bad law by ignoring the 87% referendum demanding its repeal.

    And I’m suprised you didn’t highlight the above portion of the Herald article, DPF?

    This proposal by National just goes to show that it is just as Left-wing as is the socilaist Labour Party. And as FES said at 12:27 pm:
    “This is Simon Power implementing policy lifted straight from the UK Labour Party. I hope he doesn’t take credit for coming up with it himself.”

    I think National need to change their colours from blue to RED – this lot are worse than Labour was under Helengrad. We need to give them the boot quick-smart, before they do any more damage!

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  47. Pauleastbay (5,035 comments) says:

    …honestly disclosure is the policeman’s friend. If the charge is a good one disclose more and get an early plea…..

    Couldn’t agree more

    Do you still deal with the cops down there or with briefing sections? I know the ones in Auckland are not staffed by police but civilians, and has this led to crap disclosure if you are dealing with them?

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  48. Pete George (22,859 comments) says:

    KrisK, you’ve decided to take a break from Club Exclusive and your slagging off Kiwiblog to rejoin the riffraff?

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  49. GPT1 (2,090 comments) says:

    Deal with the OCs directly. They (usually) stick a brown envelope on the file which goes to the punters at first opportunity. Ie is lost almost immediately. If it goes further then the usually have a panic two days before a SH and send off something but are generally ok for hearings.

    Mate of mine who is a cop has the right idea in my opinion. Does an arrest, grabs dictophone, dictates detailed job sheet straight away which is typed up and put on file. In theory that should cover it through to fixture. Civilians should be better dealing with the paper work as they should be hired to do that job and do that job well. Clearly not the case.

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  50. Rex Widerstrom (5,270 comments) says:

    Fascinating discussion… I’m reading along because there’s not much I can contribute beyond noting that my experiences and observations re disclosure confirm totally those of GPT1. However I must commend Repton for this:

    Here was me thinking right-wingers were opposed to too much state power. But it’s evidently OK when it’s “crims” that suffer the consequences.

    It seems many commenters haven’t left behind that juvenile belief that “it’ll never happen to me”. Anything can happen to you, no matter how successful, no matter how wealthy, no matter how “connected” you think you are. And you needn’t be a “violent crim”. It may be that your original beef is with a business partner who, after a deal goes wrong, accuses you of fraud. Or a partner who, during a break up, decides to accuse you of assault.

    You understandably resent the fact that an officer turns up on your doorstep and (if they’re that way inclined, and most are) clearly gets off on his or her ability to treat you like something on the bottom of their shoe. You challenge their authority and criticise their attitude.

    And bang… you’re on a long, stessful and horrifically expensive journey during which you’ll be thankful to have a GPT1 or an FE Smith or another of that hated profession, the defence lawyer, standing beside you. Because almost no one else will be. And if you’re fortunate enough to have truth prevail and be acquitted, you’ll find your reputation remains damaged, you don’t get your money back, and you’re being lined up for another go-round because the police don’t like losing.

    As Repton points out, if you permit injustice to be done to “crims” you’re acceding to it being done to you; or to a member of your family, or someone else you care about. Think about that.

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  51. Pete George (22,859 comments) says:

    Don’t expect the key-away-throwers and the bullet-and-rope-brigade to think about that Rex. If lawyers were as bad as they say they are, the lawyers would scan the blogs looking for evidence of legal-dissing before deciding whether to accept clients.

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  52. Pauleastbay (5,035 comments) says:

    Rex

    Hear you, but you have to have faith in the system, I worked in it for 25 plus years and even left it with some vistage of faith remaining

    No one, me included wants to see injustice done, but the system is sick and needs an overhaul. And I think that we have been talking about the very bottom end of things only after a rocky start

    I’ve just read that Finlayson doesn’t want what would be the main points of contention anyway i.e, trial in abstentia and defence disclosure, so really not a hell of a lot is going to change, except bands for jury trials and most of them were very out of date anyway.

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  53. Kris K (3,570 comments) says:

    Rex Widerstrom 3:58 pm,

    Spot on, Rex.

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  54. Graeme Edgeler (3,267 comments) says:

    Oh that is unfortunate. If these changes come through, I’ll never get to be a juror on a donkey sex case.

    Donkey Sex (i.e. bestiality) will still be able to be heard by a jury, donkey indecency will not.

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  55. Repton (769 comments) says:

    I’ve just read that Finlayson doesn’t want what would be the main points of contention anyway i.e, trial in abstentia and defence disclosure, so really not a hell of a lot is going to change, except bands for jury trials and most of them were very out of date anyway.

    It’s Finlayson’s job to point out problems where legislation contradicts the bill of rights act. But that doesn’t mean National care about the problems. Finlayson may not even care.

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  56. Pauleastbay (5,035 comments) says:

    But he will advise the Government of these problems surely, and if and only if these measures were voted into law, would thy be illegal if they breached the Bill of Rights Act?

    I believe he will care because he is of the legal profession.

    There a lot of gobble de gook in it now anyway. i.e taking away your right to silence except where it may incriminate you, well duh, why waste the paper.

    What are they going to do to you to make you talk. ? waterboarding ( theres a plan)

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  57. Rex Widerstrom (5,270 comments) says:

    Pauleastbay:

    you have to have faith in the system

    I do… because of the presence of the handful of dedicated and competent defence lawyers I’ve met, and the many NGOs (including a couple in which I’m involved) who dedicate hours to righting wrongs.

    the system is sick and needs an overhaul

    I agree. But it won’t be fixed by eroding defendant’s protections. It’ll be fixed by properly investigating and punishing abuse of power by police and prosecutors so that otherwise decent defence lawyers don’t feel they have to game the system sometimes just to keep innocent people out of jail.

    Clear up the cause first – underhand tactics by police and prosecutors. Then you remove any excuse for malfeasance by defence lawyers. Then you go after that.

    Having said that, I’d tend to opt for a trial before a judge alone in the bulk of cases, even if I had the option of a jury. You only have to read Kiwiblog and imagine what it’d be like to have twelve commenters sitting on your jury… they’d be crocheting the hanging rope while waiting for the scurrilous defence lawyer to stop telling lies on behalf of his clearly guilty client :-D

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  58. Pauleastbay (5,035 comments) says:

    I would expect the gallows built and the rope in place long before the trial…………………

    Juries are for guilty people, they are just too random to trust your freedom to if you are innocent

    Look at David Bains last lot……………..and with that I better do some work.

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  59. GPT1 (2,090 comments) says:

    Bain trial and that spy base one (the Bain jury on tour) are two arguments for removing jury trials to be fair…

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  60. GPT1 (2,090 comments) says:

    Rex I would settle for an end to the presumption that all delays are defence related and some sort of equity of arms. At this stage punter gets one (maybe two for big stuff lawyers). Crown have two or three and police backing them up. Crown lawyer was telling me that (admittedly reluctantly) the Friday before trial he needed several thousand phone intercepts put into order. Poor old plod did that. Good luck getting that past LSA.

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  61. Dexter (272 comments) says:

    “so that otherwise decent defence lawyers don’t feel they have to game the system sometimes just to keep innocent people out of jail.”

    You have a rather large grudge against the Police that much is obvious and want to blame them for all the wrongs in the system, but your quite a bit off the mark. The very small minority of defence lawyers who were/are rorting and abusing the system were hardly doing it out of a sense of injustice, they were doing it out of greed.

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  62. Rex Widerstrom (5,270 comments) says:

    GPT1:

    Hah, me too. I’m against the State Solicitor’s Office in one civil rights case here in WA. They’re grossly understaffed and the nice lady lawyer has asked for several extensions for filing to which I’ve agreed. On the way to a directions hearing my car blew up on a long stretch of freeway. It would have taken three or four hours to walk to a train station (and I’d have died of dehydration before I got there).

    Rang the SSO lady. She was happy to agree to an adjournment. Rang the court, left a message. Rung back by the judge’s associate. No way was I getting an adjournment, I’d have to appear by phone. Did the hearing from the cab of the tow truck, and was lectured at length by the judge about how she “wasn’t prepared to accept constant delays” and “this has been going on long enough”.

    Now the SSO is behind schedule again. So am I, so it was fortuitous. The nice SSO lady asked on both our behalfs for an extension of time to file, and got it without a murmur.

    *sigh*

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  63. Rex Widerstrom (5,270 comments) says:

    Dexter:

    The very small minority of defence lawyers who were/are rorting and abusing the system were hardly doing it out of a sense of injustice, they were doing it out of greed.

    We’re talking at cross purposes. I agree that a lot of delays were a few lawyers (usually the “car boot” variety) rorting Legal Aid for additional fees. But then people started discussing issues like withholding of information by prosecutors and similar defence tactics and it was in that context that I mentioned defence lawyers employing such tactics to defend their clients against unfair prosecutorial manoevures.

    Getting back to the delays-for-gain issue, there’s better ways of dealing with that than removing the right to jury trials. Like better resourcing Legal Aid to investigate and prosecute rorters and, if appropriate, apply to have them struck off.

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  64. CharlieBrown (909 comments) says:

    Wow – I’m shocked to see that “Ill treatment or wilful neglect of child” only garners a 6 months max prison sentence when neglect of an animal can get you a year in prison. What a f&cked up country we live in.

    Getting rid of trials by jury is scary however, as sometimes the law is an arse and jury trials at least allow for the possibility to defend yourself based on that fact. I wouldn’t be happy that a person who has made their career out of other peoples misery is going to decide my innocense.

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  65. wat dabney (3,672 comments) says:

    This proposal by the government is on a par with the worst of the draconion impositions of the Labour Party in Britain during its evil decade in power.

    There is one over-riding reason for jury trials – a defence against state tyranny through jury nullification. Rather than a state-appointed magistrate automatically throwing you in prison for two years if you breach the Green Party’s restrictions on free speech, you’ll at least have the chance that a jury will do the right thing and choose to find you not guilty; and the same for all other victimless “crimes” which the state tries to prosecute.

    And now National proposes to dispense with this most fundamental failsafe of the justice system and replace it with decisions made by state apparatchiks.

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  66. tarrant (35 comments) says:

    Further to Rex’s comments above, I’ve always said that any person who drives a motor vehicle is potentially a criminal – in the sense that you could get caught up in the criminal justice system at some point in your life – if only because on a bad day, you took your eye off the road, at the wrong time and in the wrong place. Result being a careless or dangerous driving charge causing injury – or death, if you are really unlucky. Now, as the driver you may believe you are innocent, and blame for the accident should lie elsewhere – unfortunately, whatever the rights or wrongs, the State might look at it rather differently. Welcome to the system!

    Getting back to the main topic, has anyone made the point that any time and cost savings in having fewer jury trials, will be offset by the need to provide more courtrooms and judges for summary/judge-alone trials? Unless sufficient provision is made, I believe delays in getting matters heard could get even worse than they are now.

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  67. tarrant (35 comments) says:

    By the way, how on earth did Power get his figure of 43,000 “unnecessary” appearances?

    With the benefit of hindsight, I am sure.

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  68. Clint Heine (1,563 comments) says:

    I am not surprised at all the cases of animal sodomy in NZ. The choices are pretty bleak for many men out there. :)

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