The Spirit of Christmas

December 25th, 2011 at 9:00 am by David Farrar

Stuff reports:

New Zealanders have donated more than $8000 to the 5-year-old girl who was brutally violated in Turangi.

The girl was asleep with her three-year-old brother in a caravan at Club Habitat holiday park when she was attacked between 10.10pm and 10.40pm on Wednesday.

She needed four hours of surgery after receiving “heart-wrenching” injuries to her face and body in the sexually-motivated attack, Detective Inspector Mark Loper said.

Hundreds of people dropped off presents at Waikato Hospital yesterday and thousands more emailed or phoned with messages of support.

Police said the girl’s parents, believed to from Belgium, were incredibly appreciative of the generosity, but there was no capacity to take any more presents.

The family would only be able to take so much back to Europe and the surplus would help put smiles on the faces of a lot of sick children at the hospital.

Police said the family were reading all of the cards and messages being sent through the Waikato DHB email and they have been a huge support.

“We are very touched by the reactions of New Zealanders,” the parents said in a statement.

I was sickened and ashamed when I read of the barbaric assault on the five year old from Belgium. But this response from hundreds of total strangers epitomises the spirit, and is a wonderful reflection of most New Zealanders.

I just hope the Police catch the man responsible, and he is jailed indefinitely. Anyone who would do this to a five year old, with sexual motivation, can never be trusted out in the community again.

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43 Responses to “The Spirit of Christmas”

  1. Paulus (2,632 comments) says:

    Makes me believe in non chemical castration for this low life.
    So saddened for New Zealand that we still let this scum walk around us.
    He will be caught soon.

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  2. iMP (2,387 comments) says:

    Yes, this was nice, but it was really about ‘making NZ ok again’ for European visitors; as much about us as the poor wee girl. Because on the same day two young Kiwi girls were mangled by a drink driver, and those families have received nothing or much attention. So at best, selective Christmas spirit. Sorry to break the magic.

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  3. David Garrett (7,318 comments) says:

    But he almost certainly won’t be “jailed indefinitely” David, will he? At least we now have a Minister of Justice with a good connection with the real world, and a clear understanding that gangs are scum and not whanau….but with the distintegration of ACT who is going to support her? Not Chester “criminals are victims too” Borrows….

    Chester by the way is now saying that “crime was dropping anyway” and the changes made three years ago have nothing to do with it….rather different from what the Nats were saying prior to the 2008 election, but there you go….

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  4. Manolo (13,838 comments) says:

    One thing is certain: this animal and criminal will blame his mother didn’t breast-feed him, an unhappy childhood or even colonialism. Who knows?

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  5. laworder (292 comments) says:

    David Garrett is correct – this thing almost certainly will not be “jailed indefinitely”. And I would be willing to bet good money that it has extensive prior form for similar offending, and has been released from prison for that offending in the not too distant past.

    The powers that be will no doubt put it through one of the “treatment programmes” for child molesters such as Te Piriti or Kia Marama, if it hasnt already been through one. And it will eventually be released back into society….. supposedly “safe” due to having been “treated”. The idea that this condition which is of biological origin can ever be “treated” with any long term certainty of success is inherently flawed, and these programmes are basically snake oil, based on wishful thinking

    Regards
    Peter J
    Webmaster for http://www.sensiblesentencing.org.nz

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  6. Longknives (4,767 comments) says:

    Manolo- This will clearly be the fault of the ‘Evil Colonial Pakeha’, that goes without saying..

    iMP- That’s a good point, but the reality is- Many ‘Macho’ New Zealand blokes will never accept that speeding and boozing is unacceptable. Take a look at how many blog posts and letters to the editor you read at this time of the year attacking the Police for ‘Revenue gathering’….these dickheads need to be first at the scene of a high speed car v truck collision to see first hand the rather unpleasant consequences..

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  7. Paul Rain (47 comments) says:

    Longknives: Crap. So driving poorly at 100kph in a 50kph zone is down to Mr Fereti Aiono being slightly over the limit? Nice reasoning there.

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  8. Longknives (4,767 comments) says:

    Let me guess Paul- You consider yourself an exceptionally good driver (especially after a few beers) so speed limits and the like shouldn’t apply to you? Damn those pesky ‘Revenue gatherers’ eh?

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  9. tristanb (1,127 comments) says:

    The spirit of humanity was shown in the bystanders who, after the crash, stopped the drunk Fereti Aiono from running away.

    The majority of Manurewa are nice people. It’s a pity they are being let down by politicians who won’t help protect them from the scumbags who kill innocent people, rob and sell drugs. They just kept being allowed back “to their families”.

    One thing that surprises me is that no politician seems to want to tackle the issue of our under-punishment of criminals. Most people I speak to (from all walks of life and levels of wealth) seem to want society to be kept safe from the nasty offenders. Why isn’t it tackled? Are the politicians scared of the judges or something?

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  10. Paul Rain (47 comments) says:

    Longknives: No, I consider myself only a slightly better driver than the useless masses, so I drive at the speed limit after a few beers. I have no problem with the MOT cops, just people like you who look at the large portion of our crashes caused by young inexperienced male drivers, often late at night or early in the morning when they’re tired and happen to have had a few beers, and try and screw over decent people because some of the idiots who crash are mildly intoxicated.

    Considering the subject of the ‘think of the children’ story brought up by iMP is a disqualified driver who’s probably related to a murderer, if he doesn’t have any convictions himself, then that doesn’t really make that much sense to me.

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  11. ross (1,437 comments) says:

    “At least we now have a Minister of Justice with a good connection with the real world”

    What we have is a Minister who isn’t the brighest light on the Xmas tree. And there may be more to this story than meets the eye.

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  12. laworder (292 comments) says:

    tristanb wrote

    The majority of Manurewa are nice people. It’s a pity they are being let down by politicians who won’t help protect them from the scumbags who kill innocent people, rob and sell drugs. They just kept being allowed back “to their families”.

    One thing that surprises me is that no politician seems to want to tackle the issue of our under-punishment of criminals. Most people I speak to (from all walks of life and levels of wealth) seem to want society to be kept safe from the nasty offenders. Why isn’t it tackled? Are the politicians scared of the judges or something?

    Very well said – of all the people in NZ that are let down by our “justice system” and its inability to incapacitate the evil among us, it is the poor in areas like Manurewa that are let down most of all, as it is to those places that these scumbags are most often released, where they prey on those around them. As to why politicians will not not tackle this issue, a lot of it comes down to the ingrained ideology that all of us are equal, and should have equal rights including the “nasty offenders” you mention – most of whom are psychopaths

    ross, if you mean to imply by “And there may be more to this story than meets the eye.” that there is some sort of involvement from one of the parents that is extremely unlikely as they were both within 20 metres or less and there were independent witnesses that verified their presence in the amenity block, particularly the father. On the other hand if you mean to imply that the offence was quite possibly committed by a recently released crim or one of the Mongrel Mob members that was in the vicinity of the campground at that time then yes that I would find completely credible

    Regards
    Peter J
    Webmaster for http://www.sensiblesentencing.org.nz

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  13. Griff (7,818 comments) says:

    Feral
    The information known by the public supports a stand point that whoever perpetrated these crimes does not belong in the human gene pool
    Extreme behavior of this nature is abhorrent to the degree that a removal from society is deserved
    Death
    We do not need to place the constraint that civilization gives us in this case
    violent sexual behavior towards a child should give a suspended death penalty .Carried out with no right of appeal on a second conviction
    This should be applied to all crimes of this nature murder extreme violence and sexual offending.
    To be convicted twice for this sort of extreme crime takes away all rights bestowed by society

    FERAL put it down

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  14. tristanb (1,127 comments) says:

    May I just add another comment about what I think is wrong with our legal system.

    When we hear about this crime, most of us feel sick to our stomachs, we think about our kids or family’s kids, we remember camping trips in our youth, we think how defenseless a poor five year old is, how terrified she would have been with mum and dad away, how she’s going to remember this for the rest of her life, the sickening guilt her parents will be feeling despite doing nothing wrong, the scary hospital trip, the procedures and evidence gathering, the years of never-quite-complete recovery for the family, the criminal trials away from home in a foreign country, the loss of a special Christmas, the ongoing nightmares, etc. etc.

    The criminal’s lawyer’s point of view:
    “That sexual assault charge – there’s no proof of any sexual intent, and the child’s testimony is inadmissible and at any rate has been tainted by media coverage – the police know that won’t get this. Easily defensible, I wouldn’t worry.”
    “As for the assault charge – we’ll have difficulty defending that, I recommend you plead guilty and the judge will be obligated to shorten your sentence, and since no weapon was used, the max sentence is tiny. Sound like a good plan? Now, let’s talk bail.”

    All of us can see how horrific this crime is, surely a judges job should be judging the amount of callousness and evil dealt by these psychopaths, and locking them up for an appropriate sentence. But their role seems to be… “well, the standard sentence for assault on a child is 4 years, so 4 years it is.”

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  15. F E Smith (3,305 comments) says:

    The criminal’s lawyer’s point of view:
    “That sexual assault charge – there’s no proof of any sexual intent, and
    the child’s testimony is inadmissible and at any rate has been tainted
    by media coverage – the police know that won’t get this. Easily
    defensible, I wouldn’t worry.”
    “As for the assault charge – we’ll have difficulty defending that, I
    recommend you plead guilty and the judge will be obligated to shorten
    your sentence, and since no weapon was used, the max sentence is tiny.
    Sound like a good plan? Now, let’s talk bail.”
    All of us can see how horrific this crime is, surely a judges job should be judging
    the amount of callousness and evil dealt by these psychopaths, and
    locking them up for an appropriate sentence. But their role seems to be…
    “well, the standard sentence for assault on a child is 4 years, so 4
    years it is.”

    That is so wrong that it isn’t funny.  Not only have you analysed it completely incorrectly, you defame criminal defence lawyers by doing so.  We defend the person, not the crime.  And by defend we don’t mean excuse, we mean hold the system to account.  Not one of my colleagues, nor I, ever justify crimes like this, regardless of what most ill-informed NZers think.

    laworder, if you have a problem with the system, get yourself elected to Parliament and campaign to change it, like David Garrett did.  Parliament set the maximum penalty for this horrific offending, and ‘the criminal justice system’ merely implements what Parliament sets down.  You are blaming the wrong people.

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  16. tristanb (1,127 comments) says:

    Not only have you analysed it completely incorrectly, you defame criminal defence lawyers by doing so.

    Look, I’m not a lawyer, so I don’t really know what the exact laws are. As a matter of fact, the closest I’ve come to using a lawyer was getting a letter in the post about a relative’s Will. When they catch this guy, I don’t have a clue what he’d be charged with and I don’t have the faintest about the precise definitions of the various charges in the Crimes Act. So I admit my scenario is a composite of various pseudo-legal terminology, made up as a narrative for dramatic effect – it wasn’t intended as legal advice!

    I meant no disrespect to your profession, and I’m sure there is a lot of misrepresentation by the media. I’m sure even comments like “That little girl was a timebomb waiting to explode” are taken out of context. And of course I understand that defence lawyers are a fundamental part of our justice system, and if I’m ever in trouble I’m going to hire one.

    So I apologise for any personal offence caused. But my perception is, as I’m sure you’re well aware, more widespread than just in my mind. You guys should start a PR campaign. “Hug a Defence Lawyer Day”.

    What’s actually happening when Ablett-Kerr insinuates nasties about Sophie Elliot? Why should that fact ex-cop Denis Phillips was gay mean that killing him is manslaughter? Why does publicity about a trial seem to always make it unfair for the defendant? Maybe I’m too dumb to understand, or maybe these are rare exceptions, but they just don’t seem right in my simple mind.

    I acknowledge defending criminals is a dirty job that someone’s gotta do – but just like the sewer cleaner who gets teased by his mates for his unavoidable stink, lawyers are going to cop flak because of who their clients are. I didn’t mean to imply lawyers are heartless (I’m sure they share the same personal views as a layperson), just that they have a job that is occasionally and vocally portrayed by the media as heartless with very little information to the contrary.

    One point though, I don’t see where the lawyer in my made-up conversation justified the crime, to my mind the lawyer is simply defending it.

    I’m sure one thing we agree on is that we hope this offender is caught soon and brought to justice.

    Have a very Merry Christmas anyway! And I hope you’re not at work today!

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  17. big bruv (13,933 comments) says:

    Have we had a description of the attacker?

    (Serious question)

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  18. Sideoiler (74 comments) says:

    No big bruv, surprisingly quiet in the description department.

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  19. big bruv (13,933 comments) says:

    That is what I thought. Why would they not say they are looking for a Caucasian, a Maori or PI or an Asian?

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  20. Pauleastbay (5,035 comments) says:

    A horrible event ,but why is our host ashamed,? all this shows is we are no different from the rest of the world, nothing to be proud of ,but horrible things happen every where.

    As the Canuck tourist interviewed said,” Its horrible but these things happen its not going to stop me visiting

    Lastly, why does this huge out cry over a tourist when this shit happens every day to kids in New Zealand and hundreds of presnts are not dropped off.

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  21. F E Smith (3,305 comments) says:

    tristanb,

    the problem is that defence lawyers are vital to a functioning democracy, standing between the public and the untrammelled power of the state.  Without us, you find yourself at the mercy of the government agencies that can prosecute you with impunity.  While NZers for the most part trust their government, experience from the UK, Australia and the US show that it doesn’t take much for innocent people to suffer at the hands of officialdom. 

    Yet the media vilifies us, portraying us as being freinds of scum who delight in their crimes and do our best to fabricate defences to allow criminals out to commit more crimes, all the while fraudlently ripping off legal aid.  Oh, hold on, that wasn’t just the media saying that, it was the Minister Power as well….

    What’s actually happening when Ablett-Kerr insinuates nasties about Sophie Elliot? Why should that fact ex-cop Denis Phillips was gay mean that killing him is manslaughter?

    She didn’t.  The defence was provocation.  I have explained before on KB what that meant in the Weatherstone trial.  Provocation is about the defendant, not the deceased.  Of course, our mentally challenged media can’t understand that and don’t care about misrepresenting it in their reports, but there you go.  The fact is that provocation doesn’t have to be about anything the deceased person intended, but about what the defendant, if they were a reasonable person with the mental conditions that he/she has took it to be.   So the defence was that Weatherstone took something Sophie Elliot did that may or may not have been inappropriate, but that her actions acted as provocation to Weatherstone because of the mental problems or conditions that he has. Same with the killer of Dennis Phillips. 

    Moreover, the defence lawyer is not expressing their own opinion.  That is prohibited.  The defence lawyer is advancing the justifications given by the accused person.  These justifications are not fabricated or sought by the defence lawyer, they are either there or they are not.  We interview our client’s quite rigorously to find out what is what. 

    When a defendant is to give evidence, as Weatherstone did, the defence lawyer is required by law to put what he/she will say to any prosecution witness that has knowledge to allow them to comment on it.  In this case, that would have been Sophie Elliot’s mother.  And that happened.  It was not Ablett-Kerr beating up on the mother, or defaming the deceased, it was a defence lawyer following the law as set by Parliament.  Not that the media bothered telling the public this.

      Why does publicity about a trial seem to always make it unfair for the defendant?

    Because publicity is always, without fail, from the prosecution point of view.  It is always advanced from information given to the media by the police or the prosecution.  It involves speaking to the family of ‘victims’.  It involves creating outrage around an offence.  Now, that outrage is usually justified, but what it means is that all of the background detail is known to the public before a case is heard, often more detail than the jury will hear at trial.  

    Now, that wouldn’t be a problem, but often that background detail is incorrect, or only partially correct.  Rumours can be reported as truth, and eye-witness reports are known to be extremely unreliable.  In fact, eye-witness evidence is some of the most unreliable evidence that a Court can hear.  So imagine if the jury is composed of people who have read all of the details of a case beforehand, and bring the knowledge that they have gleaned from the media, not knowing whether it is true or not, but presuming it to be so, and then applies it to their decision making?  A good example of the dangers of this is found in the witchhunt the media conducted against Jo Yeates’ landlord in the UK, when he was wrongly suspected of her murder.

    You will never hear the media urging caution against presuming an arrested person’s guilt, nor will you ever hear anything other than outrage at any offending.  When it comes to criminal justice reporting, the media does not exercise balance, instead it engages in populism.  

    But with the glut of American TV shows, and the NZ hatred of defence lawyers, you will never hear a fair word said about us, even when we defend innocent people.  Your scenario is a good example:

    That sexual assault charge – there’s no proof of any sexual intent,

    Not relevant:  in this case intent can be inferred from the actions.  The only defence would be something like automatism or mistake, the latter very hard to suceed with.

    and
    the child’s testimony is inadmissible

    A  child’s evidence is of course admissible, especially when they are the victim.  And 

    and at any rate has been tainted
    by media coverage – the police know that won’t get this. Easily
    defensible, I wouldn’t worry.”

    Media coverage won’t affect the prosecution, unless it is so incredible that a fair trial could not possibly be held.  At most the trial would be transferred from the area, but most unlikely.

    “As for the assault charge – we’ll have difficulty defending that, I
    recommend you plead guilty and the judge will be obligated to shorten
    your sentence, and since no weapon was used, the max sentence is tiny.

    The use of the word ‘we’ is wrong- the lawyer would say ‘you’, as this is not a decision the lawyer has to make, it is one that the defendant has to make.  A guilty plea does attract a discount, a maximum reduction of 1/3 of the sentence that would have been imposed had the defendant pleaded guilty and gone to trial.  And with the injuries suffered in this attack the use or not of a weapon would be irrelevant- the sentence would be high regardless.  Even just assaulting a child carries 2 years imprisonment as the maximum.  Wounding in this manner and in this sort of attack would carry a relatively high sentence.

    Sound like a good plan? Now, let’s talk bail.”

    You see what you are doing?  Exactly what the TV shows and media do; portray the defence lawyer  as a scheming, amoral (or usally immoral) conspirator of the defendant’s, no better than the defendant him/herself.  This is so far from the truth as to be laughable, but of course nobody is willing to admit that, and the public just don’t know it.

    Doesn’t stop them believing it, though.

    The media don’t like defence lawyers, and nor do the public or the politicians.  We stand in the way of a nice easy lynching.  If we had a ‘hug a defence lawyer day’, the media would ridicule us.  It is hard enough getting our point of view out into the media in the first place (witness the half-truths and exaggerations that the media have indulged in with the legal aid fight)  so we just don’t bother now. 

    But it is ok, tristanb, as the MoJ recently released the new pay rates for criminal legal aid work and the rates have been reduced to 1996 rates or worse.    Give it a couple or three years and I think you will see the number of defence lawyers not employed directly in the Public Defender’s office so low that nobody will care what the media call a bunch of civil servants. 

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  22. nasska (11,580 comments) says:

    F E Smith

    In the USA it seems, at least to a layman, that there is no name suppression for the defendant & the press have the right to quote witnesses’ opinions & views before any trial. Even the press statements from Sheriffs’ offices & interviews from arresting officers don’t seem to lack much detail. This is in total contrast to NZ where almost nothing is disclosed before trial.

    Do you think that the quality of justice in the USA is compromised by this openness?

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  23. Paul Rain (47 comments) says:

    Come on nasska, that’s a ridiculous question. In the US, everyone knew OJ Simpson was guilty as hell before Johnnie Cochran played his magic on a jury carefully selected to be as thick as two telephone poles. Over here, we’d never get to experience the true magic of hearing about a guilty man’s acquittal on the strength of a theatrical defence; we wouldn’t even know how bloody his hands were.

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  24. laworder (292 comments) says:

    FE Smith wrote

    laworder, if you have a problem with the system, get yourself elected to Parliament and campaign to change it, like David Garrett did. Parliament set the maximum penalty for this horrific offending, and ‘the criminal justice system’ merely implements what Parliament sets down. You are blaming the wrong people.

    The thought has crossed my mind – but I suspect I am temperamentally unsuited and not cut out for the bearpit that is Parliament, and am perhaps more effective in supporting others in campaigning for change. I take your point that Parliament sets the maximum penalties – which is why I noted that it was politicians that are constrained by ingrained ideology. However I will also point out that it is very rare for the judiciary to hand down sentences at or close to the maximums that the laws passed by Parliament have allowed – i.e. the judiciary appear also to constrain themselves from using the law to its full effect.

    On the matter of defence lawyers, I do appreciate that they perform a vital function, and they are not to blame for the current state of affairs.

    I have no problems with first/second offenders receiving legal aid, 100% funded. People make mistakes, and people have unexpected things happen to them, and I do not object to the state funding defence of people in such situations. The problem arise when having already accumulated half a dozen convictions, or 40, or 50 or a couple of hundred, they are still eligible to receive legal aid. I suspect that is what is behind much public disdain for the legal profession – yet it is not really their fault, they are merely operating within the legal framework set down by Parliament.

    To clarify my point; a couple of examples – there is an indivdual name of Llewelynn Burchell (sp) who is a relatively recent immigrant from South Africa. He’s currently doing time for assault (his third conviction for same, last one was on a Police Officer). He has a long string of convictions for fraud, threats of violence etc etc, yet he was still able to apply for legal aid to take a number of people to court for defamation not so long ago. That said, the Chief Justice is I believe close to ruling him a vexatious litigant, which will mean he will be unable to initiatate any further cases. That is a good start, but I do think it is high time the system turned off the tap altogether on any sort of State funded representation for this guy.

    And he is not the only one. Another person of a similarly litigious nature is pursuing some people I know after they exposed his long string of prior convictions for paedophilia plus drink driving resulting in death etc etc. He is receiving legal aid to hound them through the Courts…. and we are paying for it.

    I have no objection to the State funding the legal defence of someone who gets into legal difficulties, even if it is their fault. It is when they keep doing so that I believe a line need to be drawn somewhere.

    Regards
    Peter J
    Webmaster for http://www.sensiblesentencing.org.nz

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  25. nasska (11,580 comments) says:

    Paul Rain

    Sort of yes & sort of no. Simpson’s trial owed more to theatre than justice but I was referring more to the humdrum, robbery or assault where the defendant is probably a non entity even in his own town. American newspapers routinely publish the defendant’s name & criminal history, full details of the crime & even interviews from the arresting officer.

    It makes our “secret squirrel” attitude look ridiculous unless there is a serious risk of sabotaging a fair trial.

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  26. F E Smith (3,305 comments) says:

    nasska & Paul Rain,

    Like nasska said, the OJ Simpson trial was more theatre than justice. I suspect that it didn’t matter what the defence or prosecution did, OJ was going to walk the moment that particular jury was empanelled. Implying that Cochrane and his team fooled the jury in any way is just ridiculous- he didn’t.

    The manner in which a jury is selected in the USA is so intrusive on the jurors that jury experts make an enormous living assisting high income defendants with jury selection. You just cannot do that here; NZ is not even remotely similar.

    The US system is incredibly flawed. If you look at it closely, you will see that their concept of a fair trial is so far removed from ours as to almost be from different planets. It is not that ours should be more like the US system, more that the US system should be more like ours. The amount of plea bargaining that goes on is appalling- justice is not served, but the system is expedited and the smallest amount of money saved.

    Don’t forget that in the US the defendant’s lawyers are also known to go in to bat for them in the media as well, holding press conferences where they set out the defendant’s side of things. The whole thing is a circus. That is if the defendant can even get a lawyer. I remember talking to a US professor a few years ago who is an expert in this area, and her telling me about some states where the non-urban areas have to send to the state capital to get a defence lawyer, as nobody outside of the public defender office would do it because it pays so little. As an aside, I suspect that NZ will go like that in a few years time.

    Anyway, to sum up- the US criminal justice process is, for the most part, a joke.

    Laworder,

    the judiciary is not supposed to hand down sentences near the maximums. The maximums are not targets, they are maximums. To get a maximum sentence you would need a lengthy list of similar offending, plus an horrific offence for which you are being punished. That is how it should be. The uninformed public think that the maximums are there to be used, but the public is wrong.

    Your example of Llewellyn Burchill is not pertinent to this discussion because you are describing his application for civil legal aid, which has different criteria than for criminal legal aid. It is much more difficult to obtain, actually. Your other example also appears to be a matter of civil legal aid, as a criminal defendant cannot ‘hound’ anyone through the courts.

    But I also disagree with the idea of offenders receiving no legal aid beyond their first or second conviction. The state is funding the prosecution of the person, why should the state be allowed to fund the prosecution but then require the person to defend themselves with no legal assistance. And don’t tell me they could pay for a lawyer: we both know that if they are eligible for legal aid then they cannot pay privately. So they would have to defend themselves. Which means they are more likely to plead guilty, because regardless of what anybody says, it is really hard to defend yourself in court. Most defendants can barely put two words together when in front of the judge, but you would expect them to conduct their own defence, to seek out their own witnesses (whilst, in many cases, behind bars on remand) and to examine and cross-examine witnesses? These people are the ones that society has forgotten. Often barely literate, and usually not fluent in verbal expression. But, up against this self-represented defendant, we will put a state-hired lawyer, knowledgeable in the law and experienced in the ways of the courtroom?

    Even with legal aid there is an enormous inequality of arms between the prosecution and defence that you would be kinder, and save a lot more money, if you just took away their right to plead not guilty after their second offence.

    The fact is that we will always have people who are of a criminal disposition, and other who just do dumb things. But while the state is paying to prosecute them, then it is only fair and just that the state should pay to defend them. If you make it that all criminal prosecutions were private prosecutions, brought by the victim or his/her family and paid for by them, then I would have no problem with your idea.

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  27. nasska (11,580 comments) says:

    F E Smith

    Thank you.

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  28. tristanb (1,127 comments) says:

    @FE Smith.
    I also mentioned that I hoped you weren’t at work! That’s about $4000 worth of typing right there! :-D

    It was interesting reading. Thank you, I do appreciate it.

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  29. Paul Rain (47 comments) says:

    “in the US the defendant’s lawyers are also known to go in to bat for them in the media as well,”- it’s not as if this doesn’t happen here, and not just in the case of the Bain family murderer either. Perhaps explained to some extent by our media giving this practice shorter shrift? Who knows.

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  30. David Garrett (7,318 comments) says:

    F E Smith: Sleepless in Kaukapakapa also appreciates your devotion to righting some misconceptions about the role of defence lawyers in our criminal justice system…for the most part, I agree with you – and I am, as everyone knows, a foaming at the mouth redneck maniac!

    There are two things I take issue with you regarding your most recent lengthy post. The first is the reference to plea bargaining in the US as opposed to here. You are suggesting – or at least that’s how it reads – that such tawdry behaviour doesnt happen here. As I understand it, admittedly based on second hand information from defence lawyer mates, the only real difference in that in the US the plea bargaining is much more open; here it is done too, but all behind the scenes; done between prosecutor and defence in without prejudice communications or in “lawyer speak” that both sides understand, but which could never be used as an admission of guilt. Is that fair comment?

    Secondly, you say that the “Power of the State” argument means there can never be limits on how much legal aid society should fund for habitual criminals. The corollary of that is that every scumbag who racks up 100 convictions (there wont be so many of them in the future due to 3S) is entitled to a taxpayer funded defence EVERY TIME.

    That cannot be right. Just as I argue that after a third conviction for a “strike” offence a mandatory sentence becomes not only justifiable but entirely sensible, surely after one’s third unsuccessful state funded defence society is entitled to say “Enough sunshine, next time you are on your own?”

    Of course my argument presupposes that “next time” will be like the previous 47 times the hypothetical defendant appeared, and that he is again guilty as charged, and not the subject of an arbitrary or improper state prosecution. Well, you and I (you better than I) know that that the fomer (guilty as charged) scenario is hugely more likely to be the case than the latter.

    And if he’s not, and a Judge at a prelimary stage doesnt think such a defendant should go it alone, there is always court appointed defenders required to act pro bono….Barry Hart and Gottleib can afford the odd such case! What do you say to that idea?

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  31. ross (1,437 comments) says:

    “That is so wrong that it isn’t funny.”

    I agree.

    Tristanb, why would the child’s evidence be inadmissible? Children appear as witnesses in many cases each year. You have a weird view of the criminal justice system. You forget that innocent people are sometimes charged and convicted.

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  32. ross (1,437 comments) says:

    David G,

    Yes, it’s my understanding too that there is a plea bargaining of sorts here. I recall the recent case of the comedian who was charged with a sexual offence to which the accused pled not guilty. The media reported that there were discussions between the prosecution and defence. Subsequently, the accused faced a lesser charge to which he pleaded guilty, apparently on the basis that he would not go to prison.

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  33. ross (1,437 comments) says:

    “This is in total contrast to NZ where almost nothing is disclosed before trial.”

    Really? I suggest you read Keith Hunter’s book Trial By Trickery, about the Scott Watson case. You might come to a different conclusion. A lot of evidence was leaked by the media, given to them by police, before the trial. It was a disgrace.

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  34. F E Smith (3,305 comments) says:

    DavidG,

    of course there is plea bargaining in NZ. We don’t call it that, we call it ‘negotiating’, but it is plea bargaining all the same. That is not what I am against in the US system. Plea bargaining, despite the fact that we officially don’t do it, has an important part to play in the system.

    But in the US it is not just the norm, it is almost everything. Sentences are so high and appeal victories are so difficult that a defendant, even an innocent defendant, will seek to plea bargain their way to a shorter prison term. At the same time, overworked prosecutors under pressure from the government and the court to get through the workload will offer outlandish reductions in order to get a deal. Neither side actually ends up winning and justice is not served in any way. In fact, it is not even addressed.

    I have no problem with negotiation. But I have refused plea offers as much as I have accepted them, and had them refused as much as I have been accepted. But we are not talking about a reduction from a probable 50 year sentence to a 5 year sentence here, we are talking about going from 10 theft charges to, say, 6, by offering to plead guilty to some and not defending others. The sentence is reduced, but it is still in the hands of the judge, so there is never certainty unless there is a sentence indication (which I also like).

    In the US, for the most part, you have overworked prosecutors and defence lawyers who generally don’t care. When a US appeals court says that a trial where the defence lawyer slept through the entire proceeding was fair, then you might grasp the problem. Plus, there is always the risk that you will have an investigator or forensic analyst who is happy to give the prosecution case a boost, regardless of whether you are innocent or guilty. They have just had another case of that recently, but there is a notorious case from Virginia where a scientist may have falsified or lied about guilt in a couple of thousand cases. We don’t know for sure because the state will only admit to problems in cases where the defence can prove the scientist lied. All other cases they are staying mum about.

    So let’s say you are an innocent person, accused of a crime in the US. Your lawyer comes to you and says “you are looking at a 15-20 year sentence if convicted, but the prosecutor has offered a lesser charge that will see you given a 2 year sentence, out in half that time. What do you do? Risk a guilty verdict and the longer sentence, or take the shorter one, regardless of the fact that you are innocent?

    We get nothing like that in NZ. In NZ, a plea bargain might be a reduction from Male Assaults Female to Common Assault. The sentence will be roughly similar, regardless, because the judge looks at the overall criminality of the offence rather than solely relying on the charge, but it isn’t so bad on the criminal record. Or a reduction from Dangerous Driving to Careless Use. That said, the prosecutors are just as happy to refuse an offer and go to trial. Oh, and you can never bind a judge to a particular sentence. If a judge wants to imprison someone, they usually can.

    With regards the provision of criminal legal aid, it is a simple fact that when the state prosecutes it has unlimited resources at its fingers. Witness the Bain trial, where prosecution spending far outstripped the defence. Nobody is really asking for equality of arms, because we just won’t get it. But to say to someone that because they have 2 convictions on their record then the state can harass them at will (and there is harassment by police officers, make no mistake) and can force them to defend themselves, then what do you say when the person is truly innocent, but is forced to defend themselves? Are you happy for an innocent person to go to prison because they have previously committed criminal offences? I had a client like that a few years ago. A moderate list, mostly nuisance type offences (he was an idiot, rather than a bad person) who was accused of an offence of which he was clearly (and I mean on the Police evidence) not guilty. They had arrested the wrong person, clear and simple. I was able to get the charge dismissed early on, but had he not had a lawyer you would have seen it go to a summary hearing with him having to defend himself. His chances of success would have been slim, at best.

    Or the client charged with kidnapping, in the same position. Clearly not guilty, should never have been charged, but happened to be in the wrong place at the wrong time. Again, charges dismissed, but he had previous offences (none of that type) and would therefore have been forced to defend himself, something he could never have done. Would you all have been happy for him to serve a 2-3 year sentence for an offence that he never committed?

    I would not be happy for that to happen, hence my support for legal aid regardless of the number of offences a person has committed. Legal Aid is a tiny part of the overall justice system budget, but it is the one area where massive cuts are being made. Judges have just received a pay rise, but criminal legal aid lawyers have just received an average 10% pay cut. And new fixed fees have come in that reduce the amount you get for a case even more.

    Criminal legal aid lawyers are now working on 1996 rates, and that is about to go down. How many of you are getting the same pay that you were receiving in 1996?

    But that is a bit off topic.

    Oh, and the police disclose quite a bit to the media. Look at the Kahui case! Or the Bain case. They do it all the time. Look at the press conferences they call after a police shooting, setting out the police side of things before any investigation or any criminal trial.

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  35. David Garrett (7,318 comments) says:

    Good FE as always…but please dont insult me by assuming I do not know about the faults of the US system generally…I am well aware there are even capital cases where appeals have been refused even when it has been proven that defence counsel was asleep, on drugs, or drunk.

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  36. F E Smith (3,305 comments) says:

    David,

    no insult intended, but you are not the only person who might read my comment! Hence my explanation.

    Of course, I could have just said that I disagree with you, but I had some time on my hands…

    If you feel insulted, please accept my apologies.

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  37. pollywog (1,153 comments) says:

    Why would they not say they are looking for a Caucasian, a Maori or PI or an Asian?

    yeah…i’m kinda surprised that if it were a Pasifikan, inclusive of Maori suspect, why the brown bashing media has hesitated in not dog whistling the cracka asses into full on baying at the moon racist rants.

    Somthing doesn’t quite gel about this story. I hope it doesn’t turn out to be a Mathieu Basteraud type of affair.

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  38. ross (1,437 comments) says:

    I agree, Polly, that there’s something not quite right. The police are usually very quick to put out information about a suspect. But a week on and there’s nothing…maybe the mother and child have been unable to provide a useful description but usually police would say if that was the case. Police have said very little which is most unusual. They were, however, quick to point out that the Mongrel Mob were in town. WTF. The Mongrel Mob as a general rule, and I’ll admit I am no expert on them, don’t carry out random acts of sexual violence on young kids.

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  39. pollywog (1,153 comments) says:

    Yeah…If it were a mobster i’d say they would have executed their own justice on the kiddy fiddler. That sort of shit isn’t tolerated !!!

    Seems strange too that the victims names aren’t in the public domain either.

    I reckon the police know who it is and are on the hunt but don’t want to drive the suspect underground by releasing details that might eventually cause them to act out of desperation and put the public at large in unneccessary danger or…

    …something isn’t quite right with the victim’s account and the police want to line up their ducks before releasing any real details.

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  40. ross (1,437 comments) says:

    “or…something isn’t quite right with the victim’s account”

    It’s been the mother’s account that has been reported…but now that the victim is talking I would expect the police might have more to go on.

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  41. ross (1,437 comments) says:

    Actually police say they have no intention of speaking with the victim in the meantime.

    http://www.stuff.co.nz/national/crime/6192356/Attacked-girl-not-ready-to-speak-to-police

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  42. pollywog (1,153 comments) says:

    in this case, i view the mother as victim too…

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  43. F E Smith (3,305 comments) says:

    actually, on the ‘no legal aid after two cases’ point, this guy’s lawyer was bad enough, but if he had been self-represented he probably would be spending the rest of his life behind bars for this offence.  That is not to say he is not a criminal, just that he wasn’t guilty of this partidular offence.

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