SST on bail

February 18th, 2012 at 9:49 am by David Farrar

Michael Fox at Stuff reports:

The is set to launch a campaign to toughen laws after the murder of an Auckland teen, allegedly by a man on .

The hard-line law and order lobby group also wants judges to be subjected to annual performance reviews and the right of serious offenders to apply for bail removed under a campaign dubbed ‘Christie’s Law’.

The campaign comes after the death of North Shore teen Christie Marceau who was stabbed to death in her parents’ Auckland home last November. She died in her mother’s arms.

Akshay Anand Chand, 19, has been charged with her murder.

Chand was on bail having previously been charged with kidnapping Marceau, and despite opposition from police and Marceau’s family, the judge released him on bail to live at an address near her house.

Judges can never get it right 100%, but wow was that a bad decision.

The trust says a number of murders have been committed by offenders on bail and in association with the Marceau family, wants “to send a very clear message to judges”.

The trust is also recommending that judges undergo an annual performance review and for police to have the power to veto a judge’s decision to grant bail.

Ummm, no. I prefer not to live in a police state.

It has also called for amendments to the Bail Act including the removal of the option of bail for defendants with a history of violence which involved a sentence of more than two years.

Now that is a far better proposal.

The trust also wants an automatic inquiry after serious breaches of bail similar, to that carried out after police shootings.

Depends what is deemed a serious breach of bail, but certainly at a minimum any breach of bail which leads to a killing should be fully investigated.

The trust has written to Birkenhead MP Jonathan Coleman, seeking his support for the campaign.

Northcote. The seat’s name changed in 1996.

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110 Responses to “SST on bail”

  1. Murray (8,847 comments) says:

    Police state or living in the country where you 18 year old daughter dies in your arms? Smidge extreme on the options I think.

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  2. davidp (3,581 comments) says:

    What’s the problem with setting judges performance targets? Say, if 5% of people you grant bail to commit crimes while on bail then you’re rated “unsatisfactory” and shown the door. Maybe we could implement performance-based incentives for judges at the same time we implement them for teachers?

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  3. Put it away (2,880 comments) says:

    how about requiring people on bail to live within a certain distance of the judge’s house? I suspect there’d be a few less obvious psychos let out…

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  4. tristanb (1,127 comments) says:

    What is the name of the judge who made the decision to release him on bail?

    It sickens me that someone like Dotcom was denied bail, but this obsessed weirdo Chand (who had already kidnapped the girl) was let out. I thought it was pretty common in this type of “domestic” situation for the obsessed man to eventually kill his target.

    The judge who allowed him out must lack all common sense. He/she must be downright thick. I hope he has nightmares about letting this pathetic psychopath out.

    Sadly, I think the judge (like most stupid people) is not going to release his stupidity, and will justify his decision in his own head and not even question whether he did the wrong thing.

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

    Judges are human and will sometimes make poor or wrong decisions. That is why we have the ability of an appeal, even on bail matters. We have seen that, when they want to, the Police can get a bail appeal in the High Court on the same day on which the original bail decision was made, something that no defence lawyer could ever achieve.

    If it was such a poor decision, was it under Police appeal at the time?

    But the idea that the Police should have the right to veto a judge’s decision on bail is one of the most moronic suggestions that I have ever seen. It is worse than dumb.

    Judges up and down NZ make hundreds of bail decisions each day, many opposed by the Police, and sometimes they get them wrong. But the 99%+ that they get right seems to be ignored by all and sundry.

    Tristanb, I think your are wrong in your last sentence above. This is every judge’s nightmare. I am sure that the lawyer who applied for bail on Chand’s behalf also feels terrible. I have applied (and got) bail in similar (but less threatening) circumstances, and when discussing it later both the judge and I have felt we made the right decision, but hoped that the decision would not come back to haunt us.

    The other scenario that judges fear is the denial of bail then leading to a suicide by the prisoner, but then nobody worries about that but us bleeding heart lawyers, eh?

    And performance targets are another really stupid idea. Judges only work with what they are presented with. They don’t go out looking for cases, nor do they get to choose what cases they have to decide on. Decisions are only made on allegations presented (generally by the Police), and those are often not facts but assertions and often very biased. For the judge, trying to get to the truth is difficult, and the fact that their rate of success is so high with grants of bail is something that is lost sight of by organisations like the SST.

    Finally, if you all want to name judges who find themselves in this position, will we also criticise a judge whose decision to refuse bail is overturned on appeal? That happens a lot more than you might think.

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  6. gazzmaniac (2,307 comments) says:

    When DPF wrote SST I assumed Sunday Star Times…

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  7. Scott Chris (6,155 comments) says:

    Did Chand have any previous convictions? Did he show a propensity for violence? Had he make any death threats? The report doesn’t say.

    Perhaps those charged with kidnapping should have a mandatory psychiatric examination to better determine their potential risk to the community, but it is a knee-jerk reaction to deny them all bail imo.

    Or better still, you could issue all judges with a crystal ball.

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  8. Sofia (858 comments) says:

    F E Smith – Judges are human and will sometimes make poor or wrong decisions. That is why we have the ability of an appeal, even on bail matters.

    To state the obvious – Christie Marceau is unable to appeal

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  9. reid (16,522 comments) says:

    What’s the problem with setting judges performance targets?

    David it’s not so much performance targets its the constitutional position of judges that has to be protected. A judge sits everyday hearing cases of citizen vs. the state and everyday they are required to make decisions that may have an adverse outcome for the state. Our justice system in order to have the “seen to be done” protection therefore has to have built-in protections which guarantee no-one can turn around and accuse any judge of being biased against the citizenry.

    One of the things they have which is not well known is tax-free govt superannuation, or they used to and the reason for that is so that the state cannot be seen to excercise undue influence on them while they’re sitting by affecting their income after retirement. There are many other aspects in the justice system design which are there for this reason, such as the convention judges aren’t criticised in Parliament (that is very serious) and they can’t be fired except for gross misconduct such as Jeffries or gross incompetence and even then its a huge deal and it has to be gross, not just mild.

    But that’s why it is like it is.

    Of course, the counter to this is that as a consequence many judges get so up themselves they behave like demi-gods, such as when the Justices in the new SC building required expensive brass plates to be fitted over the cable outlets in the walls so their lordships precious sensibilities weren’t damaged lest their eyes occasionally alight upon such ugly monstrosities and quite frankly, the Justice Dept should have operating procedures that don’t cater to judges every precious little whim when it comes to things like that which have no constitutional import, but instead they allow them to get away with things like that and quite frankly, that’s an abuse of the taxpayer. Taxpayers are victims too, you see. We’re all victims, aren’t we. Victims are everywhere. Oh the humanity.

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  10. markra (200 comments) says:

    That is what happens when Judges don’t live in the real world. They live in protected leafy suburbs , hidden with privacy and are not accountable for their actions or decisions, nor do they feel the impact of them. The same for the politicians who make the laws. The law is a joke in this country and is set up to protect the offenders. Anyone who has been through the Justice System will tell you, that there is little justice. Justice is supposed to mean being “just” , “even handed”, that sentence fits the crime. The scales of justice For example How can you say it is just to release a murderer on parole after 10 years, or even 25 years when they have taken someone elses life, worth many years more than 10 years of life to live, not to mention the damage to the families etc. Mathematically it doesn’t add up. Victims life worth ten years. Therefore theoretically a criminal could kill 7 people in his lifetime. So his life is worth 7 victims.There are so many examples of our stupid laws. This will continue whilst we have the political elite, including the so called educated upper echelons deciding what is right for the common people. The true criminal are the politicians, Judges and those that do not demand true justice for these low lives.

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  11. Michael (910 comments) says:

    Firstly, we have a concept in New Zealand that says you should only be punished when a crime is proven. If we locked everyone accused of a violent crime up then we’d frequently find we were imprisoning the innocent. Having said that, past behaviour is a pretty good predictor of future behavior. If a person accused of a violent crime has already been convicted of a violent crime in the past then bail should be nigh on impossible to get.

    But as for bailing an accused to very near the victim of a violent attack it would seem to be a no brainer to update the law so that never happens again.

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  12. nasska (11,589 comments) says:

    F E Smith

    What information do judges have to base a bail decision on? Presumably the Police present what evidence they wish to divulge at that point & the defense lawyer will stress the defendants likely innocence, good character & supportive family. All of this is basically hearsay.

    Can they take previous convictions into account? Also is obvious guilt as opposed to possible innocence a factor? All we as the public know is what is reported by some airhead manufacturing a headline for the cat box liner.

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

    Sofia,

    Your comment emotive and without relevance. The deceased was not a party to the decision, the Police were.

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

    Sofia,

    Your comment emotive and without relevance. The deceased was not a party to the decision, the Police were.

    Markra,

    it was a decision of politicians that a murderer should, ordinarily, be eligible for release after 10 years of a life sentence. If you have a problem with that, then don’t blame the judges but instead the people who actually write the laws the judges are there to apply.

    If you think the law is a joke and there to protect criminals (which it isn’t, but I will let that go for now), then get elected and do something about it.

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  15. tas (625 comments) says:

    There should definitely be greater accountability for judges. They have enormous power and basically answer to no one. That’s a terrible combination.

    Just like teachers and any other public servant they should be accountable. The vast majority of judged do a good job, but I refuse to believe that all judges are infallible–there are a couple of bad apples out there.

    If the government can devise decent performance measures, then I think they should be implemented and under-performing judges should be sacked.

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  16. KevinH (1,229 comments) says:

    The S.S.T. said:

    “The trust is also recommending that judges undergo an annual performance review and for police to have the power to veto a judge’s decision to grant bail.”

    That is a ridiculous request to make, underminig the legal system and creating a Police State where possibly all decisions can be vetoed. No doubt the S.S.T. will want to appoint judges and control the Police as well.
    Mistakes do happen, it was tragic what happened to Christie Marceau, but this example alone doesn’t warrant turning the judiciary on it’s head.

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  17. Nostalgia-NZ (5,221 comments) says:

    SST have an insatible appetite for whipping up public outrage over single cases, the fact that this all costs a lot of money is lost on them. It’s hardly in their favour, but I acknowledge they attack every body without apparently being able to consider that attacking Judges is hardly upholding the law or the independence of the Judiciary. I agree with Reid above that some Judges might become lost in the pomposity they imagine is part of their world, but finally they, like all people, need to function in a just society and this convoluted attack is opportunistic in my opinion, as is much that SST aspire to do.
    Perhaps if they just came clean with their desire for a police state, which they controlled, the debate and motives would become clearer.

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  18. markra (200 comments) says:

    F E Smith
    Seems to be a self self proclaimed expert on Law. The politicians are guilty because they write the Laws. The Judiciary are also guilty because the interpret the laws, (decide how they should be applied, ie. granting bail was a decision of the judges to make in this case) . They can interpret and create decisions on how laws are applied in future creating legal Precendent.

    Also please explain how it is just to serve only 10 years, 17 years or even 25 years in jail for murdering someone. Given what the legal definition of murder in this country.

    I just hope none of your family goes through what these people have had to endure. Your statement tells me you haven’t or that you are part of this dogmatic elite that know better than everyone else.

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  19. Put it away (2,880 comments) says:

    Sofia, you made the mistake of thinking the murdered woman “has relevance” to F. E. Smith.

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

    Nasska,

    The judge is presented with a bail opposition form containing the alleged facts, a summary of the defendants history and anything the defendant may have said to police. The defendants criminal list is always available to the judge.

    Defence subs are according to law, with good character only available as a submission if there is no previous offending. Any suggested residence can be checked out by police if necessary. A lawyer won’t make a submission of family support unless it is true.

    The problem with this decision was how close the residences were.

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  21. markra (200 comments) says:

    Looking at the posts above I think FE Smith is one of the dogmatic elitists who think they know better than everyone else. On the internet and Blog sites this type of blogger is know as a “Troll”. Probably works for the Min of Justice or Government. I wouldn’t engage them further in discussion.

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

    Markra,

    I’m a criminal lawyer with a masters degree in law. Good enough for you?

    PIA,

    Don’t be asinine. The deceased was alive at the time of the decision and the responsibility for appealing belonged to the police.

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  23. markra (200 comments) says:

    Yep, I was right one of those people who would declare Hitler innocent if the price was right. Dogmatic elitist know it all who thinks their opinion is more important than everyone else.
    Shame they didn’t teach you ethics in Law School.
    Joke, “how do you know when a lawyer is lying?” Answer . You see their lips moving. – I got told that by a District Court Registrar, that’s what they think of Lawyers as well. Ha ha

    I rest my case you honor , definately a “troll”

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

    Ha, just read Markra’s 12.02 comment. Rumbled after all this time, and by a newby at that!

    But I definitely don’t work for MoJ!

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  25. tristanb (1,127 comments) says:

    F E Smith
    Seems to be a self self proclaimed expert on Law.

    Well, he is a lawyer!

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  26. adze (2,126 comments) says:

    F E Smith what is your opinion on this case?

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10634306

    If Judges are human do you not see any merit in the idea that there should be checks and balances for their own power – both legal, and softer power (reputation) exercised in the case above – regardless of their constitutional importance?

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  27. Put it away (2,880 comments) says:

    F E Smith, you just don’t get it do you? Some people think the fact that a woman got murdered is just a little bit important here.

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  28. PaulP (150 comments) says:

    FE Smith, given you’re a “criminal lawyer” are you on bail, home detention or do you have access to the Internet inside?

    Perhaps you’re a criminal defence lawyer maybe???

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  29. Elaycee (4,393 comments) says:

    I’m disappointed with F E Smith’s comment: “The other scenario that judges fear is the denial of bail then leading to a suicide by the prisoner…. ”

    So F E Smith is advocating a scenario that has someone granted bail because there is a concern they may commit suicide whilst in custody? You have to be joking! What about the risk to society at large if this person is allowed back onto the streets? Shouldn’t that factor be the overriding consideration when deciding whether bail should be granted or not?

    Like many others, I’m concerned to read of many instances where Police have asked for someone to be held in custody – only to have bail granted. One presumes that the Police would have ‘good reason’ to request someone is held in custody in the first place, so any decision by a Judge that grants bail and allows someone back onto the street, seems to me to flirt with the obvious risk that the person may commit another crime whilst on bail. And unfortunately, we all know of such instances where bail has been granted and that very decision has had tragic consequences. But I don’t recall instances where the Judge has been held to account for a bad decision… But they should be. And if they stuff up, they should be reprimanded or even sacked for non performance. It happens in the commercial world, so why not in our Judiciary system?

    In my view, the NZ Judiciary (generalisation) is totally out of touch with the public / the voter and they treat us like mushrooms.

    Despite a massive support for tougher sentences / tougher bail conditions etc, the (F E Smith description) “bleeding heart lawyers” continue to push hard for a totally limp wrist response to crime. And what happens to the very same “bleeding heart lawyers” – they ultimately get promoted to the bench.

    We reap what we sow. And unfortunately, unless there is some accountability built into the equation, it will not get any better.

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  30. markra (200 comments) says:

    That’s a good point (Put it Away), FE Smith is a lawyer. He just plays the game of Law. He doesn’t really care that it involves real people, with lives destroyed. That’s the point I was making, with the Legal System, which he is part of, it is just a gentlemen’s club that’s a big game of rules and precedents. It’s only a game to them. I don’t think that FE Smith can comment on the problem, because he is part of the problem. No offence intended to FE Smith as I am sure he is a good lawyer and very good at playing the game. Even if it means that gaining legal victories that result in serious harm to others. Obviously like this Judges decision did to grant bail. Costing someone their life

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

    Adze,

    I don’t see your point: it was a criminal case and the defendant, a retired judge, was acquitted. What is the problem?

    Pia,

    Hindsight is 20/20, but the responsibility at the time belonged to the police. Sofia saying that the deceased had no appeal added nothing but emotion to the debate. I am not dismissing her death, it is tragic, and the decision was a poor one, but the responsibility for any appeal lay with the cops.

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  32. adze (2,126 comments) says:

    FE Smith

    It was fairly clear (IMHO) that had he not been a (former) judge, he may not have been acquitted. It was his “reputation” against the word of some witnesses.

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

    Elaycee,

    No, I am not saying those concerns are linked at all. They generally do not coincide. You have misunderstood my point.

    Markra,

    Whatever.

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

    Adze,

    That is complete bollocks.

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  35. Scott Chris (6,155 comments) says:

    markra

    Fuck off troll.

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  36. Nostalgia-NZ (5,221 comments) says:

    Elaycee 12.17

    Your main problem Elaycee is that you want to gather a number of different circumstances into a bundle, some unproven, some clearly biased, some speculation give it a shake and reach an hysterical conclusion. Like makra above you’ve got a mindset that the SST can appeal to, a whole lot of people giving their bitches about things, some relevant, some irrelevant from which grows a chorus for law changes, tougher sentences, monitoring of Judges by police and so on – in fact a police state. You’re out to destroy democracry and you do it from fear. What are you so afraid of?

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  37. Longknives (4,767 comments) says:

    FE Smith-

    “I am sure that the lawyer who applied for bail on Chand’s behalf also feels terrible.”

    C’mon pal….Your fellow posters here on Kiwiblog might not have law degrees but please don’t treat us all as fools. The myth of the ‘noble and honourable’ defence lawyer fighting the ‘evil and corrupt’ police might fool fans of Ally McBeal but doesn’t wash with anyone who has experience of the New Zealand judicial system..
    Fact- Police OPPOSED Mr Chand’s bail and his defence lawyer obviously did everything in his power to ensure he remained at large in the Community..It’s the way the game is played.No amount of spin can overlook this fact.

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  38. Mark (496 comments) says:

    The trust has some good ideas, if you are arrested on a charge that involves violence, then you should not be granted bail.

    I understand that does mean some people will be found not guilty later on, but there should be compensation for those individuals.

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  39. markra (200 comments) says:

    FE Smith .The fact that you have a Masters Degree in Law only means that you have been trained in the Law. Worts and all, it doesn’t give your opinion greater weight than anyone elses. The comments you have made and your big noting of your qualifications rings of an elitist attitude. Insinuating that we are are stupid ignorant public.

    I feel that Lawyers and Judges, whom usually consist of ex-Lawyers need to stop being elitist in order to protect their own profession and start listening to society and the effects of their decisions have on us.

    In case you have noticed Lawyers aren’t the most respect profession and are low rated for this reason. It doesn’t have to be this way, but the Judiciary needs to be aware of what happens in the real world. Politicians need to as well, but we can get rid of them.

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  40. adze (2,126 comments) says:

    F E Smith

    Whatever. I won’t derail the thread debating another case.

    But if as you concede that Judges are human, why should their performance not be subject to oversight (even if its a body of peers), just as the offices of other branches of government are?

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  41. markra (200 comments) says:

    Scott Chris – Definately uneducated in the use of the english language. Your four letter anglo saxon expletives do you no justice here. Why don’t you use proper reasoning and argument or is that above you?

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  42. bhudson (4,740 comments) says:

    F E Smith,

    I won’t try to impugn your character simply because you strive to perform to the best of your abilities.

    I do have a question, however. In criminal proceedings do you think the emphasis should be on the ‘truth’ or on ‘winning’?

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  43. tristanb (1,127 comments) says:

    markra:

    The comments you [FES] have made and your big noting of your qualifications rings of an elitist attitude.

    To be fair, you did call him a “self-proclaimed expert in law”, and letting you know he was a lawyer seems like a reasonable response!

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  44. Elaycee (4,393 comments) says:

    Nostalgia bleats: “some unproven, some clearly biased, some speculation give it a shake and reach an hysterical conclusion.”

    What is unproven? What is biased? Where is the speculation? What has been shaken? What hysterical conclusions?

    But before you respond, best go read it again. And this time, remove your monocle and put on your glasses.

    And do try to buck up!

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

    Adze,

    They do have oversight: it is called an appellate process. The police could have used it and didn’t.

    Longknives et al,

    Police don’t always oppose bail reasonably. Sometimes they oppose it just to be nasty. Sometimes they oppose it when the law requires bail be granted. Police are not impartial and bail opposition is not always objective. That is why a judge has to consider an application, not police.

    And defence lawyers don’t ‘do anything’ to get a defendant bail. We simply work with what is presented to us. Usually we are ambivalent about it- much easier to work with a defendant on remand than one on bail!

    Now must go, I am out with the family and am using my wife’s iPhone far too much! I will look back in a couple of hours.

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

    Bhudson,

    Neither. The focus is on sufficiency of evidence. Winning or losing is irrelevant. But there must be sufficient evidence to justify a conviction, otherwise an acquittal should be entered.

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  47. markra (200 comments) says:

    fair call tristanb, although my argument still stands, and if you read the thread, FE Smiths comments do ring of arrogance. We are all supposed to have an opinion here and his isn’t superior to everyone elses. I only said this because I sensed this arrogance before he told me that he was a lawyer. I was right.

    It is this arrogance that I believe is part of the whole problem. ie . “because I am a judge I know better”, “because I am a Lawyer I know better” This is my point

    I know that with Victim imp[act statements, they get censored and little weight is given to victims views. Perhaps if this girl and her family were given more say then this man may not have been out on bail and she would be alive.

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  48. Longknives (4,767 comments) says:

    “And defence lawyers don’t ‘do anything’ to get a defendant bail. We simply work with what is presented to us.”

    Really? What on earth is a ‘Bail Application Hearing’ then??
    I don’t have a “Masters in Law” but this ‘bush lawyer’ is fairly sure these are instigated by defence counsel….

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  49. Nookin (3,361 comments) says:

    “Insinuating that we are are stupid ignorant public.”

    Actually, I do not think that FES was referring to the public – nor was he looking down on the comments from an elitist perspective. He was referring, in particular, to you, Markra. If you stopped making stupid ignorant comments then maybe you wont feel singled out.

    I dont always agree with what FES says but he does speak with considerable experience of criminal procedure. He says what happens on a daily basis and I really would have thought that his comments would have warranted some respect. Bail hearings necessarily involve predictions of what may happen in the future. Bail is not denied as a punishment for being arrested. There can never be any guarantee that a bail decision is correct in terms of absconsion, repeat offending etc. If the police thought that there was a real risk that this offender was going to murder Christie, why didn’t they appeal?

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  50. nasska (11,589 comments) says:

    The bail decision rests on the judge……there’s no point in arguing what the defence does or doesn’t do as their role is to ensure justice for the defendant…..no more & no less. In this particular case it is questionable if the Police did their job properly as he was bailed to an address close to a woman he had previously assaulted.

    We’d advance the cause more by taking our local MP aside & whispering things like “protecting society” & “re election chances” in his/her shell like ears. Parliament are the ringmasters & the only ones with any ability to bring the Judges up to speed with what their paymasters (aka the taxpayers) expect of them.

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  51. Nostalgia-NZ (5,221 comments) says:

    Elaycee 12.41

    I need only look at the words you used ‘bleeding heart lawyer’ to answer your questions, because that is the ‘particular’ language that attends the feeding of panic and the observation that lawyers, or some other profession, or body, are to be dismissed for not being presumably ‘hard hearted’ enough and so it goes on. My pragmatic problem with all of it, is the cost to the country and the futility of panic.

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  52. markra (200 comments) says:

    Knookin: Well I actually have studied Law at Uni as well, several papers although I didn’t get a Masters Degree so I guess I don’t know everything like some of us on this blog claim to. And it makes my opinion no greater than anyone elses.

    But one thing I can see, arrogance is definately alive and well in the Law fraternity.
    I think this might be a few Lawyers on this blog. How about arguing the point rather than attacking the person. Or is that what they teach you at law school now.

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  53. markra (200 comments) says:

    Nookin, honest question, are you a Lawyer as well? Just wondering?

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  54. Nookin (3,361 comments) says:

    Maybe, Markra, you should read your posts and practice what you preach. You started the ad homs. Lets argue the point, then. Did section 15 of the Bail Act apply in this case?

    15Granting of bail to defendant under 20 years of age
    (1)
    If a court remands or commits for trial or for sentence a defendant who appears to the court to be of or over the age of 17 years but under the age of 20 years, it must release the defendant on bail or otherwise subject to such conditions as it thinks fit.
    (2)
    Subsection (1) is subject to—
    (a)sections 7 (except subsection (5)), 9 to 12, and 16 and 17 of this Act; and
    (b)subsections (4A) and (4B) of section 142 of the Criminal Justice Act 1985,—
    but no other enactment.

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  55. GPT1 (2,122 comments) says:

    Markra what are your credentials? So far all you’ve shown is a propensity for hyperbole, insult and baseless assertion. It is often said better to be thought animist than to open your mouth (metaphorically in this case) and remove all doubt.

    Anyone got a copy of the bail decision? I am always suspicious of cherry picked examples.

    Clearly the sst view is that everyone should be locked up until they can prove they will not commit violent crime.

    That said there might be room around s12 to bring the reverse onus in earlier. Basically a person with previous convictions, by law, has less rights than a clean skin.

    Of course the prosecution will be delay free if a defendant is remanded in custody. Tui ad anyone?

    In terms of setting policy making laws based on one apparent bad decision will make bad law. If bail laws are made tighter more innocent people will be locked up pending trial. How many innocent people should be locked up to protect against something that a person on bail might do?

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  56. cha (4,036 comments) says:

    LoL…newbie trolls respected long time commentators….popcorn..

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  57. markra (200 comments) says:

    Nookin: Arrgh another arrogant Lawyer. It figures. Quoting rules from your Game rule book.

    You can’t see further from the law.

    Wake Bozo. This girl is dead because of people like you. Why don’t you put into your rule book ” must remember to speak to victim before letting offender our to murder her”
    Why doesn’t the law society recommend that to the government

    Sorry mate I have to go to work now. No , thank god I am not a defence lawyer and I can sleep at night

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  58. GPT1 (2,122 comments) says:

    Oh, sorry I see you went to uni. When I went they tought critical analysis but you must have misse that bit. Anyway, you’ve done a law degree and think all lawyers are arrogant trolls so clearly you are over qualified for a senior moj policy position

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  59. cha (4,036 comments) says:

    ..and spoils the fun by running away…

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  60. markra (200 comments) says:

    hgtfuyfuyf, this is a channel filled with Lawyers, enjoy comparing your rule books, while us the poor public get killed by crims you guys get let out.

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  61. GPT1 (2,122 comments) says:

    And there goes your credibility – can sleep at night because you’re not a defence lawyer. So you’d dispense with the right to a defence altogether? After all the police are always right and would never charge the wrong person. Run along now and let the adults talk.
    ‘did you want fries with that?’

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  62. Elaycee (4,393 comments) says:

    Jeez Nostalgia – you’re not the brightest, are you. As soon as you are called to try and prove your crap, you disappear in a cloud of pixie dust. And not for the first time.

    The term “bleeding heart lawyers” was a direct quote from F E Smith’s earlier comment (11.02am) in which he said: “The other scenario that judges fear is the denial of bail then leading to a suicide by the prisoner, but then nobody worries about that but us bleeding heart lawyers, eh?”

    So it wasn’t my own terminology – and that’s why it was attributed to F E Smith and was contained within quotes “…”. Had you read all comments on this thread, you would have seen it. Or maybe not… :(

    No apology necessary. You’ve already proven you’re just a prat.

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  63. nasska (11,589 comments) says:

    markra

    There are at least half a dozen lawyers comment on these threads on a fairly regular basis. “F E Smith” you now know as a criminal lawyer but we have representatives from marine, commercial & political law as well. All seem to be competent in their fields & often give us an insight into how the law works in practice as opposed to the way it is worded.

    They are rarely arrogant but I would suggest that most people will be less than cordial if you attack them personally as well as their knowledge of their field of expertise. I’ve noted that plumbers & mechanics act the same way.

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

    Elaycee,

    Um, I was being sarcastic with the bleeding heart lawyer bit. Defence lawyers a rarely bleeding heart types.

    Oops, wife just busted me…

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  65. Nookin (3,361 comments) says:

    Markra – why don’t you address the issue and not resort to generalisations and ad homs. Read the section. Did it apply? If it applied what was the judge to do about it? I should point out, given that your papers at Law School did not include “Where do Laws Come from, 101″ that an Act of Parliament is not a game rule book. It has rather more effect than that. If you didn’t like the section (and it was around for some 10 years before this incident) why didn’t you toddle off down to your local MP, or even become one yourself, and come up with a sensible alternative?

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  66. markra (200 comments) says:

    GPT1 the arrogant lawyer. That’s precisely my point, Arrogance.
    No the police aren’t always right, I do agree to a defence. By an honest lawyer, I am sure they do exist.

    Yes you are arrogant. Good luck arguing over your rule book. Remember, whatever post analysis and findings you discover, remember the judge made the wrong decision and now a girl is dead. Who will compensate her family you?

    Certainly not the judge, not the defence counsel.

    Maybe the law should be changed with the ability to sue when the Judge or parole board gets it wrong and then maybe we might making decisions a bit more carefully.

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  67. Elaycee (4,393 comments) says:

    @F E Smith: Totally understood – that’s why I played it back.

    But clearly, not everyone got it….

    Watch out for SWMBO! :D

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  68. Nookin (3,361 comments) says:

    Actually Markra – it’s your rule book, too. Your representatives wrote it based on their perception of what you wanted. Lawyers and judges are stuck with it – whether they agree with it or not. You say that the judge made the wrong decision? On what basis do you say that there was another decision open to him. Did the section appy? If not, why not?

    Argue the issue – that’s what you tell others to do. Or are you in the pennycamp — one rule for you and another for everyone with whom you disagree?

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  69. markra (200 comments) says:

    Nookin, in case you haven’t realised, I am not arguing the law with you. I agree that it is likely the judge made the right decision in law. But obviously there needs to be a global rethink of the way the law is applied, maybe our legal system.
    Lawyers have invested in that system, so I wouldn’t expect them to welcome a change.

    Simple Sensible alternative below:

    The court needs to ensure that it speaks to, considers the concerns of the victims, find out the living arrangements, do the necessary home work to avoid this type of situation. Not just concentrate of the offender. Most of criminal law is all about the offender. Surely you would admit that.

    Stop just quoting the law. It obviously didn’t work in this case as it hasn’t worked in many others. Everyday we read in the papers of botched cases such as this. I could write you a massive list of obvious stuff ups of offenders being released next door to and go on murder when it could have been avoidable. I don’t agree with SST in all their views but the court is dismal when it comes to considering victims rights.

    Have to go sorry.

    Thanks for discussion

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  70. Nookin (3,361 comments) says:

    “Who will compensate her family you?”
    Aren’t you overlooking the fact that someone has been arrested and charged with her murder – someone who, according to the Police – murdered this person? Or does that not count in your book — it is always someone else’s fault?

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  71. markra (200 comments) says:

    someone who will likely serve 10 -20 years for it. Tha’ts all. Life should be life without parole. That’s as close to real( not NZ view of justice) justice without killing them, which I don’t agree with in case they are found to be innocent

    Question if a zoo keeper lets a lion out of a cage and it kills people. Who would you blame?
    The lion? A lion does what it does, kills people.

    No one can be responsible for a first time offender, but when that offender has shown a propensity for violence, and you let him out and goes and does it again. ie. extreme case – Burton It is the person whom let him out who is partially to blame. Take your pick whether that’s the parole board, Politicians or the Judge.

    I thought that would be obviously, despite what the law says.

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  72. GPT1 (2,122 comments) says:

    Ok, so in markra’s world anyone who suggests she is wrong is arrogant, the judge may have been right in law but should be sued and lawyers shouldn’t argue the law if she thinks it might be wrong.

    Big night was it?

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  73. GPT1 (2,122 comments) says:

    In all seriousness markra bail laws are about locking up people who are presumed to be innocent ie: detention with out trial. Where the line is to be drawn deserves a bit more respect than random rumblings and abusing those who point out alternatives and even facts.

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  74. bhudson (4,740 comments) says:

    F E Smith,

    Neither. The focus is on sufficiency of evidence.

    I don’t dispute that “sufficiency of evidence” is the case, but I would argue that it devolves the proceedings – the system if you will – into a matter of ‘winning’ or ‘losing’.

    Both sides arguing over whether evidence is admissible and, if it is, what it actually means to the case. Arguably neither side has any interest in establishing the truth as such. It is merely a contest as to who can win an argument; a debating contest with more serious stakes.

    What are your thoughts on the merits (or otherwise) of an inquisitorial system for criminal proceedings in NZ?

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  75. BlairM (2,341 comments) says:

    There is a lot to be said for having elected judges, as they do at a state level here in the US. It makes judges more accountable.

    If that’s too unpalatable for people, what about fixed term appointments for judges instead? That way at least parliament can drop lousy judges at the end of their term.

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  76. Nookin (3,361 comments) says:

    “That’s as close to real( not NZ view of justice) justice without killing them, which I don’t agree with in case they are found to be innocent”

    Interesting perspective. It’s ok to lock someone away for life without parole knowing that there is a possibility of innocence yet you draw the line at execution. Most people draw the line at the point of determining guilt/innocence — which is why there is a general reluctance to lock people up before trial and conviction unless there is good reason to the contrary.

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  77. Nostalgia-NZ (5,221 comments) says:

    Elaycee 1.18

    The quote wasn’t first used by F E Smith either, it’s been around for years, and somehow you don’t think it was meant to be a sarcastic use by F E Smith?
    But it remains that your views are tempered by fear.
    I see your predictions sometime before xmas of the water front strike about to be over, and the workers replaced are getting a bit long in the tooth. What are your predictions of Judges going to be answerable to the police?

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  78. Johnboy (16,722 comments) says:

    What a wonderful thread.

    All I can say is Lord Birkenhead for Chief Justice/President/PM/Pope/God! :)

    (and double his benefit money to $902,000 odd! ) :)

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  79. Viking2 (11,491 comments) says:

    Who invited this doppy prick top our blog?

    dadforjustice, Milklady, breal, which of you dozey buggers did it?

    Cmon fees up.

    Actually looks a lot like bereal in smelly clothes.

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  80. Viking2 (11,491 comments) says:

    Nostalgia-NZ (310) Says:
    February 18th, 2012 at 3:15 pm

    I see your predictions sometime before xmas of the water front strike about to be over, and the workers replaced are getting a bit long in the tooth.

    don’t be so coocky. By the time they want to go back the business will all be done at the Taurnag Port. going like crazy. Lots of new staff.
    Jaffa wharfies are fucked.

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  81. Johnboy (16,722 comments) says:

    What you drinkin V2?

    I want some! :)

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  82. Nostalgia-NZ (5,221 comments) says:

    viking 3.28

    Was I too subtle when I told you to get your container trucks and return from where you came?
    Please to hear that Tauranga Port is overstaffed now, nothing like a slow decline for the opposition under the weight of too much paid labour. It think that’s happened elsewhere but I can’t recall where at the moment.

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  83. reid (16,522 comments) says:

    The comments markra was making above re: FES are just mental. What sort of logic is s/he using that says a criminal lawyer doesn’t understand issues such as this thread is addressing? What sort of idiot can’t draw the quite obvious connection between the two strands? Is it so Gordian as to be to him or her, something quite impenetrable?

    Clearly it is, therefore I’m picking this guy/gal is a sociology graduate with a major in peace studies and a minor in Maoritanga which bwoke his/her widdle heart cos it would have been super to have a major in Maowitanga as well but their widdle heart would have simply bwoke in two if s/he couldn’t learn all about the big bad meanies who cause all the distwess in the world via the peace studies, and that was weally, weally important! (Stamp.)

    What do others think? I might be reading a bit too much into it, but something along those general lines?

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  84. Elaycee (4,393 comments) says:

    Nostalgia – haven’t you been spanked enough? Now you want to drop your buggered up finger point exercise re FES’ quote and try something else? OK, I’ll play. :D

    The POA wharfies issue will end in the inevitable use of contractors and no amount of your wishful thinking will change it. Business previously sent via Auckland has already moved to Tauranga and they are coping fine with the additional volumes. The rail link is also the beneficiary of the additional business – that’s good too. Not much going in favour of the wharfies who earn (on average) $91,480 for FY2011. No sympathy either.

    And whilst the union officials are sunning themselves in Australia, I hear that POA is deep in negotiations with stevedore contractors. And as soon as that deal is locked and loaded, then the ratepayer value of the POA will be restored.

    But if you continue to believe in pixies, then perhaps you’ll still believe that the POA will retain the militant unionists and pay them $91k per year / that Len Brown will be returned as mayor / and that Karam’s latest book of fiction is somehow accurate and therefore David Bain was innocent.

    And if you believe any of that, I have a bridge for sale.

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  85. GPT1 (2,122 comments) says:

    Reid that is gold re sociology graduate

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  86. Viking2 (11,491 comments) says:

    Nostalgia-NZ (312) Says:
    February 18th, 2012 at 3:43 pm

    viking 3.28

    Was I too subtle when I told you to get your container trucks and return from where you came?
    Please to hear that Tauranga Port is overstaffed now, nothing like a slow decline for the opposition under the weight of too much paid labour. It think that’s happened elsewhere but I can’t recall where at the moment.

    Port of Tauranga have announced today a new service by Marresk to Australia. embarking an a 150 million dollar expansion program including a new crane and refurbishing some of the others. Cranes that lift two containers at a time rather than one. a lift in productivity is expected.

    I note that I have never seen containers stacked here like they are presently. 8 high and big blocks of them.
    You shoud note that POT also own a big chunk of Port of Northland so once they get organised and the rail organised the rest of Aucklands jobs will go north. Leaving Auckland as a feeder port about as relative as Picton.

    You should also note that over the last several years many of the liquid imports have moved to Tauranga.

    The only thing left will be used cars for dogey Auckland car dealers.

    Auckland is dying. Strangled by its own efforts. (or lack thereof.)

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  87. Tookinator (221 comments) says:

    Although I agree it was a major stuff up bailing him so close to the victim I don’t think in this case it would have mattered if he was bailed to another part of the country. he was out to get his victim either way no matter where he lived

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  88. Nostalgia-NZ (5,221 comments) says:

    Elaycee 5.03

    Yes, I’ve heard all your hysterical predictions. But you’re making little progress with them. As for the Ports if you could just calm yourself from your inevitable panic, you might recall that my stand on the wharves has always been that they should be working and I’m critical that Gibson has made such a mess of that in his short time in office. He went head on with a beast probably more willing that he to go headon, meanwhile revenue and customers are lost. I know of forklift drivers earning $35 per hour for an average 50 hours per week – comes out around $91,000, you’ve got the problem with the $91,000 I don’t. I have a problem with the port not working.

    If you didn’t look at yourself so often in the mirror you would also know I’m not a supporter of Len Brown and never have been.

    As for Karam read what Don Mathias says here http://donmathias.wordpress.com/.

    After that perhaps I’ll see if I can do you a deal on box of dummys that you can spit out to your heart’s content.

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  89. Nostalgia-NZ (5,221 comments) says:

    Viking 7.11

    Well that ups the ante. At least old Gibbo’s fiddling while the city burns, having no money in the ports at stake long term.

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  90. Nick K (1,244 comments) says:

    I have been in District COurt summary hearings where the Judge has asked the court staff to phone MoJ officials to see if there is room for some remand prisoners. The situation is that critical sometimes. When that happens, Police keep remand prisoners in their cells. Then the prisoners complain, and fair enough too because there are no proper facilities for remand prisoners in police cells.

    So I propose this. We should build brand new, very large, remand prisons. The first one is going to go right next to Garth McVicar’s farm in the Hawkes Bay. Others can go near a lot of the people who frequent this blog.

    Then let’s watch the uproar. You all want everyone locked up before trial, but I bet you don’t want it if they’re in your neighbourhood.

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  91. Viking2 (11,491 comments) says:

    This will go down well in Europe.

    http://www.smh.com.au/world/german-president-quits-amid-legal-probe-20120217-1tf1n.html

    German President quits amid legal probe

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  92. Longknives (4,767 comments) says:

    Boo fucking Hoo Nick K.

    I’m sorry but I just can’t share your obvious sympathy for criminal scum who are out robbing, raping and bashing innocent members of our society…
    So the Prisoners complain when they are kept in remand at the Police Station? Ooh the poor wee mites…No sky digital??

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  93. Tookinator (221 comments) says:

    But are their mattress’s thick enough?

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  94. markra (200 comments) says:

    GPT1 . The law is about making people accountable. The law takes away the right for a victim to seek revenge, or their own justice, so that function is handed off to the state with it’s legal machinations.

    The legal fraternity wants to make others accountable for their actions through the law, but want to hide behind anonymity and legal protections so they don’t have to be held responsible. If a judge lets someone out on bail and it was opposed because of the risk, why doesn’t he have some responsibility or some repercussion . If you take the risk , and let a crim out to put the risk onto society, esp. when you have a duty of care to take reasonable steps. ie. you let em out and they kill someone and their was a likelihood that this may happen, Then some accountability should fall on those who facilitated this, whether it be Judges, Lawyers and those who involved. That’s a moral law.

    It’s funny how so many lawyers(esp. on this thread) tend to be well academically trained yet devoid of common sense and basic logic.

    No wonder society in general think legal system is a joke and lawyers are dishonest crooks. If you are not aware of that, you have your heads in the clouds.I don’t subscribe to this view as I am sure that there are a number of honest lawyers out there, although most live on a different planet than the general population.

    Reid comments:”.. so Gordian as to be to him or her, something quite impenetrable?”.. did you learn english at school or you some kind of weird academic poofter. Why don’t you learn to speak English and get your head out your arse. Are you some kind of hand bag swinging effeminate who needs to impress your legal peers with your command of the english language. Generally ordinary people don’t use that sort of tripe.

    This thread shows me that although admittedly I have limited grasp compared to those present of the legal arguments, Lawyers on this thread are out of touch with society, and its views, and it is little wonder that your profession is held with disdain.

    You might think that my arguments are beneath you, as I expect that you do, but they are views that are held widely by society, so it seems that the legal system and those who are involved with it have a serious image problem.

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  95. Elaycee (4,393 comments) says:

    Nostalgia: Your latest efforts have confirmed your foundation membership of the morons club.

    Hysterical predictions? Where? Again you’re short on fact. Do you work for the Gweens by chance?

    Today you bleat at me in relation to a comment that was actually made by FES. And when I point this out, you realised your cock up and switched to bleat about something else. Then you bring up the POA disgrace… WTF? And again you are short on facts – I have no issues with people earning more than $91k per annum. Nor $200k per annum. Nor $400k per annum. Maybe you’ll get it sooner or later…. but in the meantime, stop telling porkies.

    And then you link to the Mathias review of Karam’s latest piece of fiction. But you forgot to mention that TV programmer Bryan Bruce was sufficiently motivated to come out and rubbish Karam’s theories via an interview with NewstalkZB on Friday. In any event, Karam’s book is simply another effort to try and shift blame to Bain Sr (who was also murdered but cannot defend his name). And of course, a cynic could also comment on the ‘coincidental’ timing of Karam’s latest fiction… But what’s the point? You wouldn’t get that either.

    But the bridge is still for sale. And discount rates apply for 2 or more.

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  96. Nostalgia-NZ (5,221 comments) says:

    Haha.
    Don Mathias reviewed fiction, instead of a tv programme.
    How sad you must feel.

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  97. markra (200 comments) says:

    Nick K: I have an idea, rather than letting remand prisoners out because the conditions are a little off and not their comfort and satisfaction, how about you having some to stay at your house.

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  98. Elaycee (4,393 comments) says:

    Nostalgia says: “Haha. Don Mathias reviewed fiction, instead of a tv programme. How sad you must feel.”

    Do you actually read what you write, you complete muppet? Mathias reviewed Karam’s BOOK! A BOOK and not a TV programme.

    And you still wonder why I question your comprehension skills???

    Pfftt.

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  99. reid (16,522 comments) says:

    This thread shows me that although admittedly I have limited grasp compared to those present of the legal arguments, Lawyers on this thread are out of touch with society, and its views, and it is little wonder that your profession is held with disdain.

    Look you complete fucking mental, this is NOT ABOUT HUMAN WIGHTS IN ANY WAY AT ALL.

    This is a simple elementary constitutional question vis a vis binding the judiciary to a political target. Isn’t it. Yes it is. Isn’t it.

    You might think that my arguments are beneath you, as I expect that you do, but they are views that are held widely by society, so it seems that the legal system and those who are involved with it have a serious image problem.

    In some ways you’re prescient markra however I’m not sure your particular fantasy about the legal system is as prevalent as you suspect. Why don’t you hold a few public meetings to test the waters?

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  100. markra (200 comments) says:

    Congrats Blair M. The most intelligent post on this Blog. Great idea. Accountability, what a concept. Limited terms is also fab.
    Elected by the people, for the people is another great idea. Although that could be open to politicing and loose judicial independence from the executive.
    Then these people can go back to life living in the real world.

    As a note for Reid. I read your little blog of trash. Mark is a male name in case you haven’t realised and your little raft of assumptions are totally wrong. I am a Business major. I like drink piss while you appear to be the type of little academic weed, who talks shit down the pub on a Friday night and I laugh and then punch your lights out. You stinkin little toss pot.

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  101. alex Masterley (1,517 comments) says:

    Go away for a day and I miss out on some fun.
    This thread proves the truth of one of my favourite aphorisms. “Opionons are like arseholes. Everyone has one”.

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  102. mikenmild (11,247 comments) says:

    And every arsehole seems to have an opinion.

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  103. Nookin (3,361 comments) says:

    Markra’s comments do open the legitimate debate about how far people should be accountable if they have it within their means to minimise the risk of injury to others. It is not altogether clear from his comments whether he regards this as a strict liability matter (i.e. if the judge makes the wrong decision, the judge should be accountable regardless of the validity of the views expressed at the time) or whether there has to be a degree of negligence. The first premise (strict liability) opens a real can of worms. For example, assume for the moment that somebody is declined to bail because the judge was of the view that the accused had a propensity towards violence – based primarily on the as yet untried charges. If the judge declined to bail and the accused is subsequently acquitted of the charges, is the judge obliged to compensate that person because he locked up without good reason? This is an inevitable corollary of the views expressed by Markra.

    A more appropriate approach is that accountability should be based on negligence. This would involve a failure to take action to prevent injury to others in circumstances where the risk is foreseeable.

    The question is, why should accountability be limited to judges. A very small fraction of violent crimes are committed by people on bail. By far the greater proportion is committed by people acting outside the oversight of the Justice Department (i.e. probation, Department for Courts, parole et cetera). If a person who has particular insight into a potentially violent offender, and that person does nothing about it, should they be held accountable?

    Let us take a case example– Markra:

    1. He has what appears to be an obsessive dislike the sectors of the society based solely on profession. We do not know much about the facts of the Christie Marceau case. One thing is clear is that he had some obsession with her and that obsession may have led him to act outside normally accepted codes of conduct.
    2. He clearly has a chip on his shoulder and regards comments made by parties totally unknown to him to be personally denigrating and responds by displaying a sense of outrage. He goes for the person rather than the argument. it is always a matter of concern when someone perceives what most regard as a bone of fide expression of opinion on a particular issue as personal denigration. the inability to debate the issue and the sense of degradation (unjustifiably instilled in this case) often lead to an irrational retaliation – sometimes violence – so one would normally be on guard with dealing with such a person. You would, for example, look to see whether he has any violent tendencies.
    3. He takes the view that rules that are applicable to others are not necessarily applicable to himself. For example, having engaged in ad hominem attacks, he expresses outrage when he perceives and ad hominem attack on him (a baseless perception, by the way).
    4. He regards Acts of Parliament as a “game rulebook”. He trivialises the importance of laws, raising the concern that he does not consider it of any particular significance if they are transgressed.
    5. His underlying view is that a victim has a right to extract revenge or justice – presumably based on wholly subjective perceptions. There must be some concern at this claim to an underlying right of an eye for an eye when read in the light of his trivialisation of statute law as “a game rulebook”.
    6. He is particularly intolerant of criticism.
    7. He is predisposed to the consumption of alcohol and the use of the term “drink piss” suggests an unhealthy attitude towards one of the more significant catalysts of violence.
    8. His professed inclination to “punch your lights out” suggest that he is likely to engage in an completely unprovoked, gratuitous violent attack for no reason other than his targeted victim is an academic nerd who engages in discussions with which he disagrees. The propensity to violence is of some concern given that the threat suggests a “head attack” which is of course more likely to result in significant injury or death.

    All of these factors appear to add up to somebody who is clearly a menace, who is capable of irrational thought and has a gratuitous disposition towards violent behaviour.

    One therefore has to ask whether this particular person should be left in the community. Should those who know of his identity be held accountable for not taking action? Should he be locked up before somebody is injured? DPF knows him and is affording him anonymity. That is one of the rules of this blog. Given the propensity to violence, should DPF be obliged to disclose his identity so that people can take protective measures? If Reid gets clouted by a pissed jock with a business major, is he able to take action against the DPF?

    And while we are at it, should juries be accountable for acquitting people who are clearly guilty and to go on to commit other crimes?

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  104. Nostalgia-NZ (5,221 comments) says:

    Nookin 10.38

    Very very good one of the best reads for ages.

    I think also the revelations yesterday that the police could have appealed the bail decision is difficult to climb over and by SST’s direction they should also be in line for closer monitoring which leaves me to wonder who will police the police in a police state – SST?

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  105. Dean Papa (784 comments) says:

    in hindsight the judge got this terribly wrong. As to the question of accountability, well, the problem is that the judge was probably not equipped with the expertise to make such a decision in the first place. What advice would a judge receive in such circumstances? Any decision regarding the potential danger posed by the criminal should be left up to experts (criminal psychologists, or whatever they are called). But kidnapping is a pretty serious offence, you’d hope that bail would be denied as a matter of course. The police and family opposed bail, presumably the reasons were to do with the threat posed to the victim if the offender was at large. The judge, in his/her wisdom disagreed. The victim was subsequently murdered as a result of the ruling. I wonder just how racked with guilt this judge feels, or do they just dismiss it as part of the job?

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  106. Nostalgia-NZ (5,221 comments) says:

    Dean Papa

    What arrogant nonsense, saying the judge was not equipped to make a decision or speculating on how the Judge might be feeling regarding the decision. You’re in dreamland, is that also part of this initiative for SST to have the power to veto judgements, or are you consideriing a more direct manipulation where SST become the Court?

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  107. laworder (292 comments) says:

    tristanb wrote


    What is the name of the judge who made the decision to release him on bail?

    It sickens me that someone like Dotcom was denied bail, but this obsessed weirdo Chand (who had already kidnapped the girl) was let out. I thought it was pretty common in this type of “domestic” situation for the obsessed man to eventually kill his target.

    Get this – it was the SAME judge! Judge David McNaughton who bailed Christie Marceau’s killer also DENIED bail to Kim Dotcom on breach of copyright charges on the grounds that he was a significant flight risk.

    You are also correct in noting that with domestic violence situations of this sort there is a much higher risk for the victims, something the Police and the family both understood all too well when they opposed bail.

    F E Smith wrote

    I have applied (and got) bail in similar (but less threatening) circumstances, and when discussing it later both the judge and I have felt we made the right decision, but hoped that the decision would not come back to haunt us.

    Surely if you had that level of misgiving you would have been better to have erred on the side of caution – that is what the public is demanding, and quite rightly too.

    It is high time there was a greater degree of accountability from the judiciary, either in the form of some sort of performance review system, measuring outcomes like this, or alternatively have an elected judiciary. If I made a decision like this in my job, I would be down the road, and I do not get to make potentially life or death decisions in my line of (paid) work. As someone earlier pointed out, the judiciary wield considerable power, and are well compensated for serving us the public. I have no issue with that provided it comes with accountability to those whom they serve.

    As for the proposal that “police to have the power to veto a judge’s decision to grant bail.” what is meant by this is that the Police would be able to appeal a bail decision if they so desired, the defendant would remain in custody in the interim.

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

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  108. markra (200 comments) says:

    good answer Nookin.

    Accountability should always be considered. Everyone should have a duty of care, Judiciary included. How this could be written in Acts of Parliament would need considerable work. Obviously, we don’t want a situation where Judges are restrained from the discharge of their duties in good faith due to fear of legal risk. Judges should display a duty of care, which I am sure most do, but those who don’t should beware.

    But it does obviously need some work. Given strange outbursts and world views exclaimed by some judges. Also accompanied by decisions that appear without sense. I am merely saying that their needs to be more redress to victims if the court or say the Parole get it grossly wrong. ie. The parole board decisions of Burton, W Bell.

    1/ No, I have tremendous respect for lawyers and the mine field of legislation they work through. Reid earlier comments. before he decided to insult me I was in agreement with a number of them.If he wants to make insulting generalisations whilst hiding behind a computer. If I came across such an insulting dickhead in real life I probably would deck him. No I am not really a drinker,nor study sociology or the other ludicrous comments made. When you assume such it makes an arse out of you.

    2/ I don’t like people who talk down to others, as shown .

    3/ Using words like “ad hominem” although latin legal terminology and appropriate for Work, and the courtroom show a superiority complex and that you need to put on airs to impress others with your knowledge. This I find uneccessary. We know that you are a legal expert. Not everyone on here knows all the legal terminology, by using such you are shutting down any meaningful dialogue with those outside your profession, who might also have ideas that may be of merit.

    The Rules I apply on others being inconsistent. You may be right there and I will try to be more moderate, although Others on this forum appear to suffer from the same ailment. Obviously I am very intense about some of these issues. Although it should be obvious to you that I have seen great injustices done to others close to me by the Court. ie. friend raped by repeat sex offender. As I said real people are affected.

    4/ No I very much respect the acts of Parliament. All I am saying is lift you head above the trees for a sec and look at the picture globally and not just restrain yourself arguing points of law in its current form. I guess I am speaking from a view, should the law be changed . I don’t agree with SST, and I don’t belong to them.

    5/ The Justice system is often signified by a pair of scales, which I thought means that the punishment or compensation should be equivalent to the gravity of the crime. Remember the “rulebook” law is not infallible. If the law says it is ok to murder, doesn’t make the law correct and without question. I am only questioning the law.

    6/ No not intolerant to criticism, I admit that what I am saying has weaknesses and is not the end of the matter, which needs further discussion, which I thought this forum was supposed to be. If this forum is only for Lawyers comparing notes then maybe I am on the wrong forum. Good luck to you, but obviously there are problems with the status quo. If you don’t know this perhaps those who don’t should look at another profession.

    7/ Not really a drinker actually, I was jiving with Reid. But he is an insulting character. Read his post 12:01. He is also a coward talking like that to someone because he can hide behind his computer. I would say and do on here as in real life. Although I do admit he pissed me off. I actually would probably walk away. But the guy has problems with those who he disagrees with and resorts to insults. What I say on here I would say to your face. That is called being honest Reid.

    8/ Don’t be a wuss. I was pissed but haven’t done that for many years, school. Although if Reid did say that to my Face I would. Just as most guys would in this country. Probably a weakness, I admit.

    Yes totally agree, and my point, if I was the guy they were letting out to live next to Reid, knowing that I was likely to inflict physical harm on Reid, the Judge had it within his power, within the act, to stop me, then the Judge should be held accountable. Just Kidding Reid!!. Lets be a bit more charitable from now on.

    I like you comment as a whole and your argument I felt was sound and you did not insult me, thank you.

    Have to go now, will be interested to see what you come up with later.

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  109. Dean Papa (784 comments) says:

    Nostalgia-NZ,

    nothing arrogant intended. But tell me then, how can a judge possibly be expected to make decisions in such cases? I’d have thought a trained psychologist should make the assessment. Better still, anyone charged with the offence of kidnapping shouldn’t be granted bail at all. The psychology of the crime should be enough to indicate that escalation is a strong possibility. As for the judge, what’s wrong with speculating on how he feels? He might need to be put on suicide watch after such a cock-up.

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  110. Nookin (3,361 comments) says:

    Laws requiring accountability are under constant review in order to meet changing social demands. The Susan Couch litigation is an example of a victim seeking to hold a government department responsible for failing to exercise appropriate supervision over a parolee. I understand, but have not seen, that there may be litigation arising out of Burton’s activities.

    Traditionally, barristers were immune from action in negligence but this community has now gone.

    The big issue here is how we approach the immunity of judges from suit. Debate on this thread has concentrated on the liability of the judges personally but the reality is that we are talking about compensation from the Crown.

    As soon as you open the way for people to sue judges for what they perceive to be incorrect decisions, you bring the whole justice system to a grinding standstill. The independence of the judiciary is probably the cornerstone of our justice system and I have yet to see any convincing argument that it should be otherwise.

    If you are going to sue judges for wrong decisions, do you also sue juries? If the police decided not to prosecute a violent offender because the police negligently perceived that they would not have achieved a conviction, can a subsequent victim sue the police?

    I highlighted the problem in my last post. If you are going to have incorrect decisions actionable, then it has to apply across the board.

    If somebody is accused of a serious crime and is refused bail because of the seriousness of the initial charge, at what point is that person is entitled to compensation if the main charge is dismissed?

    The situation is analogous to the claim by David Bain for compensation. In order to get compensation, Bain has to prove on the balance of probabilities that he is innocent. How do you translate that to a decision on a bail application if a third party is injured by somebody released on bail.

    People do commit offences on bail. The only way of ensuring that people do not commit offences on bail is play abolishing bail altogether. At what point on the continuum do you go from a “right” decision to a “wrong” decision?

    How can anybody suggest that “on the balance of probabilities” a person before the court is probably going to deal to somebody else if released on bail?

    Do you have a higher threshold depending on the sort of offence that the bail applicant may commit while on bail? For example, because of the ramifications of the violence directed at the person, should a judge take a much more stringent attitude towards potentially violent offenders than, for example, burglars? If the answer to that is yes, how do you set the standard knowing that failure to meet that standard may result in an action against the judge?

    The whole problem is that if bail is to be denied on the grounds of potential future offending, the judge has to express some opinion on the likely future action of somebody whom he does not know in circumstances where the only information available is untested fact – in the form of allegations by the police and countered by representations from the accused.

    Some commenters have made the point that lawyers benefit from the system and do not want to change it. If the system is to be changed as these commenters want, there will be a growth industry in litigation involving the Justice Department. It would be a lawyer’s delight. For a start, bail hearings will extend and last a day or two. Judges are going to insist on evidence in support of applications for bail and representations by the police that it should be denied.

    Then we come to the whole issue of compensation. Are commenters suggesting that accident compensation should not apply to personal injury arising out of incorrect legal decisions?

    Will compensation extend to those whose houses are burgled by people out on bail or parolees? The notion will bring the whole system to a grinding halt.

    Markra – my earlier post involved an analysis of your predilection to do injury to somebody else based on what limited information was available. It was not intended to be insulting to and I am happy that you did not take it that way.

    As an exercise, it simply shows how difficult it is to address a particular matter. You have given explanations for some of the arguments that I advanced. When you come to bail applications, not all of the explanations are necessarily before the judge, nor are the facts and you have correctly identified how inappropriate it is to come to conclusions based on limited information.

    I too can respond to some of the comments that you made. The term “ad hominem” is frequently used on this blog site. I think if you go back, you might find that users are from all walks of life and not necessarily restricted to Latin speaking lawyers. I prefer the analogy to rugby (playing the ball and not the man) but ad hom seems to be universally accepted and does not involve as much typing.

    Your reference to the justice system being signified by a pair of scales is apt. It is not confined to the notion that punishment or compensation should be equivalent to the gravity of the crime. It signifies that the justice system involves a raft of conflicting values, interests, rights and obligations and the proper functioning of society requires a balance. In many cases, the dividing line is clear-cut. In a vast majority of cases, the dividing line is based on fine judgement. To hold someone the whose job it is to identify the dividing line be accountable by civil suit or some other action is likely to create more problems than it will solve.

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