Bail changes

August 28th, 2013 at 4:00 pm by David Farrar

The Herald reports:

Serious violent, sexual or drugs offenders now face greater hurdles to getting after sweeping changes to laws were backed by Parliament.

The Bail Amendment Bill passed into law this morning by 102 votes to 19. It was opposed by the Greens, the Maori Party, Mana and Brendan Horan.

The bill would require that a person on a murder charge or repeat violence, drugs or sex charges would have to persuade a judge that the community would be safe if they were released.

A very welcome step. Far too many offences are caused by people on bail. This generally won’t impact alleged first time offenders, but will affect those with a history of offending.

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43 Responses to “Bail changes”

  1. Longknives (4,878 comments) says:

    “It was opposed by the Greens, the Maori Party, Mana and Brendan Horan.”

    How the hell could anybody ‘oppose’ tougher bail requirements for serious sexual and violence offenders??
    Did they drag out the tired old ‘It will target Maori’ line?

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  2. laworder (292 comments) says:

    I can understand the Greens, the Maori Party, and Mana opposing this on ideological grounds, even if there is no rational reason to do so, but Brendan Horan?? I didnt think he fell into that category.

    And, it must be noted that Labour and NZ First voted in favour, good on them. Politics doesnt always have to be partisan, we can all co-operate for the collective good.

    Regards
    Peter J
    http://www.sst.org.nz

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  3. duggledog (1,589 comments) says:

    ‘Opposed by the Greens, Maori, Mana & Horan’

    National need to bludgeon these anti – NZers with this next year.

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  4. leftyliberal (651 comments) says:

    @LongKnives: From the article:

    “Opponents argued that people would be locked up for longer on the presumption that they would offend again in future – a breach of the Bill of Rights Act.”

    If you wish to read or watch one of the the Green’s speaking on the bill, then here’s Jan Logie at the second reading.

    https://www.greens.org.nz/speeches/jan-logie-speaks-bail-amendment-bill-second-reading

    Notice no use of the word “Maori”.

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  5. duggledog (1,589 comments) says:

    L L no need to use it. Maori are considerably over represented in all crime stats and prison populations, cheers for the link though I don’t think I need to watch it.

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  6. Chuck Bird (4,924 comments) says:

    It sounds like good sensible balanced legislation. There are many false rape allegations as well as sexual abuse of children by a bitter ex partner. To say anyone facing such a charge should be denied bail full stop would be way over the top.

    I have not looked closely at this legislation but I understand there has been changes to the law regarding making it very hard to deny a young person bail.

    Peter, are you generally happy with this new legislation?

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  7. David Garrett (7,545 comments) says:

    This is very good law…although it arguably should have gone further. One early proposal by SST was that anyone accused of a “strike” offence would have the onus put on them to prove they were safe to be released; that was later modified to reverse the onus of proof on anyone who had in the past been convicted of a strike offence. That proposal was still unacceptable to the government, and was watered down still further to what has just passed. Overall the government has to get 7/10 for getting the balance right. There have justt been too many cases of murders and other serious violent offences being committed by offenders on bail for a violent offence.

    Very interesting that Labour supported it…and no surprise at all that the dipshit Greens opposed it …They oppose ANY modification of the law which is victim rather than criminal focused. Ditto – sadly – the Maori Party…if any law change means more of the bros are locked up, they are opposed to it, and sadly, this will indeed impact disproportionately on Maori offenders simply because they are overrespresented in the violent crime stats.

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  8. leftyliberal (651 comments) says:

    @duggledog: My comment regarding the use of the word “Maori” was in reference to Longknives’ erroneous assumption.

    Personally I enjoy reading the arguments of those that I generally disagree with – on occasion they win me over.

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  9. Chuck Bird (4,924 comments) says:

    “and sadly, this will indeed impact disproportionately on Maori offenders simply because they are overrespresented in the violent crime stats.”

    I do not have any figures but Maori may be disproportionately represented as victims as well.

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  10. David Garrett (7,545 comments) says:

    Chuck: You are quite right…and young Maori MALES are the segment of the population most likely to be victims of violence…preyed on of course by other young Maori males…young Maori women are next likely, with middle aged white guys like you and me way down the list of likely victims….then of course there are the tragic exceptions, like white middle aged christian Austin Heemings…stabbled to death on the street (when going to the aid of a PI woman) by a mongrel who already had a conviction for manslaughter in Australia…

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  11. smttc (763 comments) says:

    I had great expectations for the Maori Party when they went into government with National. Sadly they have opposed their coalition partners on practically every government policy except supply and demand. They have taken what they bargained for and given fuck all in return by way of common sense or loyalty. I hope they get annihilated at the next general election.

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  12. F E Smith (3,307 comments) says:

    To be honest, I am not sure that it will make a huge amount of difference, but if it makes everyone happy then ok. It should make it a bit tougher to get bail in Auckland, which has traditionally been the easiest place to get it, but south of there I am not so sure how much it will impact practically.

    From memory, the last law change surrounding bail, which I think National trumpeted as being a real ‘get tough on crims’ bit of legislation saw little practical change at all!

    Not that I have any issue with the law change. And I could be wrong; the judges might interpret it as a chance to make bail a lot tougher.

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  13. Graeme Edgeler (3,290 comments) says:

    One early proposal by SST was that anyone accused of a “strike” offence would have the onus put on them to prove they were safe to be released

    I’m pretty sure another early proposal was that no-one charged with a strike offence should ever get bail.

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  14. Judith (8,534 comments) says:

    @ Graeme E.

    Sorry to change the subject of the thread, but I’m interested in opinions regarding the need for CCRC in NZ. Do you have an opinion on that?

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  15. peterwn (3,307 comments) says:

    Judith – my take on CCRC (UK’s Criminal Cases Review Commission) – In 2003, the Court of Appeal was asked by the Government to do a CCRC type review on David Bain. All three skilled and experienced judges were quite satisfied that the conviction was sound even when considering additional evidence. Funny, thing – some people did not accept that conclusion. So a CCRC is only likely to find favour if it is effectively a ‘get out of jail free’ card.

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  16. CharlieBrown (1,027 comments) says:

    The fact that drug use is considered in the same light as sexual and violent offenders shows just how f’d up the government and alot of NZ society is.

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  17. Nostalgia-NZ (5,279 comments) says:

    ‘F E Smith (2,816) Says:
    August 28th, 2013 at 7:32 pm
    To be honest, I am not sure that it will make a huge amount of difference, but if it makes everyone happy then ok’

    I remember that the Judge who granted bail to the second offender mentioned directly by JC today was going to be targeted for not acting on information he didn’t have, and which had become lost in the processes of the Court. Overall a good political expedient for a situation that had raised public concern.

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  18. F E Smith (3,307 comments) says:

    So a CCRC is only likely to find favour if it is effectively a ‘get out of jail free’ card.

    Quite frankly, that is rubbish.

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  19. laworder (292 comments) says:

    Chuck Bird wrote

    It sounds like good sensible balanced legislation. There are many false rape allegations as well as sexual abuse of children by a bitter ex partner. To say anyone facing such a charge should be denied bail full stop would be way over the top.

    I have not looked closely at this legislation but I understand there has been changes to the law regarding making it very hard to deny a young person bail.

    Peter, are you generally happy with this new legislation?

    It isnt all that I would like to have seen but it is a positive step in the right direction. A number of submitters also requested cumulative sentencing for those convicted of offending whilst on bail and this was not acted on unfortunately. I would have liked to have seen something slightly more stringent to the effect that if both the victim/family AND Police BOTH opposed bail then the judge would be duty bound to withold it unless he could produce substantial independent expert evidence in favour of the bail application.

    As David has said, the result is a compromise, but that is to be expected. We will have to see it plays out in reality and maybe press for further upgrades if it doesnt perform to expectations

    Chuck Bird also wrote

    I do not have any figures but Maori may be disproportionately represented as victims as well.

    You are right. This legislation will if it works as I hope will actually protect Maori women and children (and some men too) which is why I am disappointed the Maori Party did not vote for it. The Greens I expected, they are beholden to the lunatic ideology that we are all equal and should have equal rights regardless of our track record of behaviour

    Regards
    Peter Jenkins
    see http://www.sst.org.nz

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  20. laworder (292 comments) says:

    Judith wrote

    Sorry to change the subject of the thread, but I’m interested in opinions regarding the need for CCRC in NZ. Do you have an opinion on that?

    No problems. I am strongly in favour of a CCRC in NZ, and/or something like the Innocence Project. The is a small Innocence Project running at Victoria University http://www.victoria.ac.nz/ipnz/index.aspx and I would be happy to see this expanded and perhaps even receive a little Government funding.

    You may wonder why I want to see the Innocence Project running here. There are two reasons;
    1) It is important that people can trust our justice system and that convictions are seen to be sound and independently verified and tested where necessary.
    2) It would give me somewhere to send people who contact me and the others involved in the Trust’s offender databases somewhere to send the (mostly) deluded individuals who contact us claiming that “so-and-so is innocent”. If they could get it past the Innocence Project people then maybe I’d reconsider :-)

    Regards
    Peter Jenkins
    see http://www.sst.org.nz

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  21. flipper (4,205 comments) says:

    F E Smith (2,817) Says:
    August 28th, 2013 at 10:26 pm

    So a CCRC is only likely to find favour if ” it is effectively a ‘get out of jail free’ card.”

    Quite frankly, that is rubbish

    *****
    A an excellent observation FES.

    The quotation appears to explain much of Peterwn’s promotion of Crown Law’s skewed views.

    And that Court of Appeal “CCRC” effort . Was that the same CoA effort that was gutted and sent down the waste chute by the Five Law Lords of the Privy Council?

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  22. Chuck Bird (4,924 comments) says:

    I am sorry Peter but I would strongly oppose the police effectively deciding a person’s guilt or innocence. I can hardly imagine many cases where the alleged victim would be happy for the the accused to have bail while the police opposed it. There would be exceptions of course like the woman who lost a foot escaping from the boot of a car but very few.

    As I said many rape complaints are false. When a person is charged with a serious crime they are punished whether found guilty or not. How much would a person’s legal cost be defending a false rape charge? If a person is innocent they would not only suffer severe financial loss but loss of freedom for a year or two as well.

    Most police are good people as are most judges. However, I can see some police opposes bail because they do not like the accused or his attitude when questioned.

    I am certainly happy with the new legislation would be very unhappy to give so much power to the police when you look at the incompetency in a number of cases.

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  23. peterwn (3,307 comments) says:

    Flipper – yes. There were two stages to the CoA process:
    1. consideration of the evidence, including evidence that was not placed before the initial jury. The three judges ruled in a CCRC type exercise that the original conviction was safe. IMO if a CCRC had considered the matter soon after trial, it would have ruled the conviction safe for the same reasons as given by the CoA, unless the CCRC was stacked with ‘wets’.
    2. whether there should be a re-trial with the additional evidence being placed before the court. This is where the three CoA judges and the five Law Lords diverged with IMO the CoA taking a Kiwi pragmatic approach and Their Lordships a philosophical approach. It is not known whether any internal dissention between the judges was sorted out internally. In this regard the Privy Council generally gives unified judgments whereas the then HL Judicial Committee would often give separate judgments – especially as the judgments were in the form of speeches to the HL.

    To the CCRC proponents – what sort of people should comprise any CCRC in NZ?

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  24. Chuck Bird (4,924 comments) says:

    “To the CCRC proponents – what sort of people should comprise any CCRC in NZ?”

    Some non lawyers. I would hope research scientist.

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  25. Judith (8,534 comments) says:

    Thank you for your answers regarding the CCRC.

    It appears there are a number of New Zealanders who are in favor of this, including the Law Society, who presented a report on it during the 90’s.

    I am at a loss to understand why nothing has been done further about this (yes I am aware of the Innocence Project, thanks Peter).

    Although the idea was canvassed and strongly supported at the Miscarriages of Justice Conference in Auckland, 2010, there doesn’t appear to have been anything concrete done to continue the debate. It seems to me, with the Pora case, and others, that the time would be right to raise this issue again – but by whom, and to who?

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  26. flipper (4,205 comments) says:

    peterwn (2,384) Says:
    August 29th, 2013 at 8:29 am
    Flipper – yes. There were two stages to the CoA process:
    1. consideration of the evidence, including evidence that was not placed before the initial jury. The three judges ruled in a CCRC type exercise that the original conviction…..

    ***

    Ok, explanation noted. Thanks.

    The nature of folk selected for CCRC???

    A good question, but we should probably start by importing another Commonwealth Jurist to chair the group since NZ is too xyz small for true independence. It is the brother judge syndrome, is it not?

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  27. Ian McK (237 comments) says:

    If one cares to analyse bail granting, it is predominately judges, appointed by the last Labour regime, giving these cretins freedom.

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  28. laworder (292 comments) says:

    Ian McK wrote

    If one cares to analyse bail granting, it is predominately judges, appointed by the last Labour regime, giving these cretins freedom.

    That’s why I am in favour of introducing some element of mandatory withholding of bail providing certain conditions are met. We need a mechanism that will prevent future recurrences of cases like the Christie Marceau one (and it was far from from an isolated case, there have been numerous bail fails, including some after the Marceau case) while also addressing the concerns that Chuck raises re false accusations of rape.

    Whether this new law will prove to be an adequate mechanism we will find out in due course.

    Perhaps a useful compromise would be to permit bail in some cases but only on condition of the bail address being at least a couple of hundred kms from the victim

    Regards
    Peter Jenkins
    http://www.sst.org.nz

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  29. Chuck Bird (4,924 comments) says:

    Peter, do you think the murderer of Christie Marceau have got bail if he had of been over 20?

    If not, the bail law changes will help a reduce the chance of a reoccurrence of such a case.

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  30. laworder (292 comments) says:

    Given that the Judge in that case ignored written testimony form both Police and family that Chand was an ongoing threat, I think he would have been bailed regardless of his age. There was also an expert psychologist report that the Judge didnt have access to at the time that also recommended Chand be held in custody, but I suspect that even had he had access to that he may well have ignored it too since he ignored everything else. Given the outrage that understandably erupted when Chand inevitably killed the victim he had already tried to kidnap, I have a feeling the Judge used the absence of that psychologists report as an excuse for some arse covering – had it been available I wonder if the outcome would actually have been any different?

    At least if Chand had been bailed to Wellington or Gore or somewhere else in the South Island, rather than to a location less than 400 metres from his victim, perhaps she would still have been alive today?

    Regards
    Peter Jenkins
    http://www.sst.org.nz

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  31. Chuck Bird (4,924 comments) says:

    Peter, I would like to think when a judge gives or declines bail on a very serious change that his decision would have to be in writing. Do you know if that is the case and if it is has the decision been made public?

    I am still very reluctant to take away all discretion from judges. Kidnapping is a very serious charge. I would assume you are aware of the Christchurch businessman who was recently convicted of the charge. I understand for a variety of reason the police did not like him. The so called scumbag victims would have been happy for him to have been declined bail. I believe it would have been a travesty of justice for him to be denied bail.

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  32. F E Smith (3,307 comments) says:

    Ok, here goes:

    Ian McK,

    If one cares to analyse bail granting, it is predominately judges, appointed by the last Labour regime, giving these cretins freedom.

    This is false.  I dislike Labour as much as anyone, but that statement is completely and utterly wrong.  Indeed, it is moronic.

    laworder,

    I would have liked to have seen something slightly more stringent to the effect that if both the victim/family AND Police BOTH opposed bail then the judge would be duty bound to withold it unless he could produce substantial independent expert evidence in favour of the bail application.

    As I have said before on KB, this just shows your ignorance of how things actually work.   Judges are independent arbiters who are appointed to determine between litigants. That includes litigants in the criminal justice system.  It is up to the litigants to present to the judge the evidence to support their contentions, including at bail time.

    Giving complainants a veto over judge’s bail decisions lessens the authority of the judge to just another functionary.  You may as well have bail decisions made by the deputy registrar at the front counter, if that is the case.  It also allows for vindictive complainants and false complainants to utterly ruin the lives of defendants well before anything has been proved against them.

    It is, quite honestly, a ridiculous position to have.

    The is a small Innocence Project running at Victoria University

    Yes, there is, but as I have said before, the Innocence Project only works with cases where there is DNA evidence that is able to exonerate the defendant.  A properly run CCRC would have a far wider ambit.

    Anyway, has the VUW Innocence Project actually done anything?

    Perhaps a useful compromise would be to permit bail in some cases but only on condition of the bail address being at least a couple of hundred kms from the victim

    And how is the defendant supposed to find an address that far from where the complainant lives? Let alone continue in their job, if they have one, and maintain their family, if they have one.  

    Any grant of bail involves an element of trust.  Sometimes there will be major consequences from breaches of that trust, and that is sad.  But the only alternative is to imprison every person accused of an offence pending disposition of the charge.  To concentrate on those cases is to ignore the vast majority of times where bail is not breached or where a breach has occured that is very minor (which, taken together, would cover almost all grants of bail).

    Given that the Judge in that case ignored written testimony form both Police and family that Chand was an ongoing threat, I think he would have been bailed regardless of his age.

    This has already been covered in previous threads, and you are wrong in your assertions.  The judge made the right call according to law.  It was only the wrong call in hindsight.

    There was also an expert psychologist report that the Judge didnt have access to at the time that also recommended Chand be held in custody, but I suspect that even had he had access to that he may well have ignored it too since he ignored everything else.

     You have no idea how the judge would have viewed such a report and your conclusion has no supporting evidence. 

    Given the outrage that understandably erupted when Chand inevitably killed the victim he had already tried to kidnap

    It was not inevitable that Chand would kill the complainant.  It is difficult to argue that it was even foreseeable.

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  33. laworder (292 comments) says:

    F E Smith wrote

    It was not inevitable that Chand would kill the complainant. It is difficult to argue that it was even foreseeable

    Well the Police and the family both foresaw it, and told the Judge with as much force as the system permitted. Maybe it was not inevitable, but the risk was certainly high enough given what information was available that the rational thing to do would have been to put the rights of the Marceau family above those of the accused and at the very least not bail him to a location only 400 metres from the complainant. People who take risks like that in other industries lose their jobs.

    Certainly the judge should have had the psych report made available to him, but in the absence of that the rational thing to do would have been to remand Chand in custody until it became available to him at the very least

    Regards
    Peter Jenkins
    http://www.sst.org.nz

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  34. F E Smith (3,307 comments) says:

    in the absence of that the rational thing to do would have been to remand Chand in custody until it became available to him at the very least

    While I do not accept your points, I would just address this one:  if that is the case, then the Police did not adequately do their job in opposing bail.  It is not the judge’s role to second-guess the Police, nor is it the judge’s role to act on behalf of the police or the complainant. 

    Moreover, if the Police were unhappy with the judge’s decision, why did they not immediately appeal the decision to the High Court?  That option was avialable to them, and the Uruwera case shows that, unlike defendants appealing a bail refusal, the Police can get a bail appeal heard the same day as the original decision. 

    Judges are not able to see the future. They can only work with what they have before them according to the law.  And if they make a decision that the Police do not agree with then they can be appealed.  It has been shown previously on KB that the judge in the Chand case most likely made the right call with the evidence before him and the law as it was at the time.  Sometimes, however, even the right decision can be made to look wrong by future events.

    Your criticisms would appear to be better aimed at the Police, who obviously failed to substantiate their opposition to bail at the time, and who failed to appeal the decision to grant bail once it had been made.

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  35. Chuck Bird (4,924 comments) says:

    Do either of you know if the judge gave written reasons for his decision to grant bail and if not why not?

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  36. laworder (292 comments) says:

    Chuck Bird wrote


    Do either of you know if the judge gave written reasons for his decision to grant bail and if not why not?

    I have not seen anything from the judge giving reasons to date, and if I recall correctly these are the subject of an OIA request by SST. We make lots of these, not me personally, one of the volunteers in the Napier office does this

    Regards
    Peter Jenkins
    http://www.sst.org.nz

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  37. Chuck Bird (4,924 comments) says:

    Peter, judicially accountability is a major problem. Judges are allowed to make important decisions without being required to put them in writing. The problem is both in the criminal and civil system. A bloody lazy judge that failed to put his important decision in writing has cost me between $50 and $70k.

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  38. F E Smith (3,307 comments) says:

    Do either of you know if the judge gave written reasons for his decision to grant bail and if not why not?

    I have not seen anything from the judge giving reasons to date,

    The decision will most likely have been an oral one, it will have been recorded and a copy should be on the Court file.  His lawyer and the Police might also have a copy on their respective files, but that is not guaranteed. 

    It will most definitely have been recorded, however.

    EDIT: When I say recorded, I mean that it will have been recorded on to a CD or tape as a part of the recording of the proceedings as is required for every criminal proceeding in NZ.

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  39. Chuck Bird (4,924 comments) says:

    ” I mean that it will have been recorded on to a CD or tape as a part of the recording of the proceedings as is required for every criminal proceeding in NZ.”

    It is a bloody shame there is not the same requirement in civil proceedings.

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  40. Nostalgia-NZ (5,279 comments) says:

    F E Smith

    Innocence Project link re the Allan Hall case. I’m not sure that they only deal in cases where there is a dispute over DNA evidence. I can’t think of any in the Hall case in particular:

    http://www.stuff.co.nz/national/crime/2779008/Group-asks-for-murder-case-review

    On the CCRC a friend made the useful suggestion of perhaps ‘setting one up’ with Aussie in order to widen the information base and experience whilst also ensuring some professional ‘distance’ from a particular case. Probably why Muldoon chose the panel he did with the Thomas RC, although flipper I think has confirmed that earlier.

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  41. F E Smith (3,307 comments) says:

    Nostalgia,

    cheers. I was referring to the US guidelines for the Innocence project. I haven’t kept abreast of what the Innocence Project was up to in NZ, so they may have different rules. When they were set up I had intended to offer my services to them pro bono, but then I realised that they were mostly psych and sociology people so I lost interest in them.

    Right now I don’t see much to justify changing that opinion.

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  42. Judith (8,534 comments) says:

    @ F. E. Smith

    Pfffftt … get over it, us ‘sociology’ people are o.k. – not all of us eat nothing but greens, keep whales in the bath up and adopt thousands of homeless kids, you know!! ;-)

    I know that Sandison, the forensic pathologist (?) is also involved in the Innocence Project here. I am not, but from a distance it looks to me that it desperately needs input from people like yourself, if it is to have any chance of succeeding.

    What gets to me is that there are a variety of people, with a variety of skills from all parts of the community that seemingly want the same thing. The legal profession is a major component if the innocence project or the proposition of a CCRC is ever to get off the ground. I believe that it is your profession that should be taking a lead role and until they do, any intentions will fail to get off the ground.

    The Innocence Project in NZ was formed using the US format from what I can tell.

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  43. Judith (8,534 comments) says:

    Opps, sorry about the bad wording, I was interrupted.

    What I was trying to say is that if the Innocence Project is to have a higher profile and achieve what it was formed for, then it needs lawyers, such as yourself. The legal profession needs to take a lead role in both the Innocence Project and in campaigning for the establishment of a CCRC, either exclusive to NZ or shared with Australia.

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