Why I couldn’t be a defence lawyer

November 14th, 2013 at 5:29 am by David Farrar

Stuff reports:

A young Wellington woman raped by a bouncer in an alleyway could have “closed her legs” if she didn’t want sex, the man’s lawyer told a jury. …

He claimed the woman made a false complaint to police six days later because she regretted the sex. There was no struggle or any threats, nor was there violence, Jefferies said in his closing arguments yesterday.

“All she would have had to do was to close her legs . . . it’s as simple as that,” he told the jury. “Why didn’t she do that? . . . The reason she didn’t do that was because the sex was consensual, as easy as that.” …

Jefferies said after the verdict that his comments were made as part of the defence, and were not his personal view.

“This is the defence of a criminal charge. The Crown and the judge didn’t complain about it.”

The case revolved around whether sex was consensual, which made the complainant’s position important, he said.

“The accused was of the view there was an element of willingness from the accuser, and that she was a willing partner. What I say to the jury doesn’t represent my personal view. It merely represents the defence.”

He is just doing his job, but personally speaking I don’t think I could do a job where I have to advocate that a woman consented to sex just because she didn’t close her legs.

 

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212 Responses to “Why I couldn’t be a defence lawyer”

  1. Daigotsu (454 comments) says:

    In this socialist bureaucratic state, it’s the lawyers who really make out like bandits. Lord help us.

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  2. MT_Tinman (3,102 comments) says:

    Slime beat-up all the way – including man-hater quote about blaming the victim.

    The shyster, unusually for his lot, got it right by the sound of it.

    Most likely the sheila only complained – a week later – after she found giving the bouncer a quickie didn’t give her automatic entry to the nightclub at a later date.

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  3. Harriet (4,794 comments) says:

    “……He is just doing his job, but personally speaking I don’t think I could do a job where I have to advocate that a woman consented to sex just because she didn’t close her legs…..”

    But here is the message I’m getting from it:

    We’ve always known that there are rapists amongst us and always will be, but unfortunately due to PC and the feminist message – all that women now need do is say ‘no’ – and they won’t then be raped.

    And plenty of rapists out there would now find their targets are being rather simple minded about precaution. In this case, the opportunity arose and he couldn’t help himself. Being alone and drunk is one of the most stupid mistakes a girl can make. As any father with a wallet would know.

    Sadly, this young girl is the victim of the PC and hardcore feminist ideal that no male will ever again become a rapist in NZ if we all just keep chanting ‘No’ about rape.

    Women still need to be precautious.

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  4. big bruv (13,686 comments) says:

    I agree with Tinman. It is all very well for DPF to say he could not be a defence lawyer but we are only getting one side of the story here.

    Was this female already in a relationship and got the guilts?
    Has this female made a decision to try and rewrite history like a certain other high profile rape “survivor”?

    Remember folks, according to the ever expanding female co-leader of the Green party this bouncer would have to prove that he did not rape the female if the Greens ever get their way. According to Meteria Turei all men are rapists.

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  5. Simon (694 comments) says:

    Yes he is doing his job.

    Which basically involves appealing to morons like MT Tinman who are on juries.

    The Defence lawyer had Tinbrain at didn’t close her legs.

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  6. ross69 (3,652 comments) says:

    “women still need to be precautious

    They need to be cautious AND precautious? Goodness.

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  7. Harriet (4,794 comments) says:

    Reality check!

    Saying ‘no’ didn’t save her.

    Society will always have rapists.

    Women still need to be precautious.

    Women should not be drunk and alone.

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  8. nickb (3,686 comments) says:

    Why don’t we just remove defence lawyers’ absolute privilege and ban offensive statements by them if it offends people?

    You know, just like National repealed provocation because it was used unsuccessfully, offending some people?

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  9. Alan (1,087 comments) says:

    “He claimed the woman made a false complaint to police six days later because she regretted the sex. There was no struggle or any threats, nor was there violence, Jefferies said in his closing arguments yesterday.”

    Apparently we’re at ‘he said vs she said’ and i’m staggered a jury can convict for rape without physical evidence or witnesses. Did she just meekly allow it?

    Having said that, a sober guy in a position of (very small) authority doing a drunk girl makes it hard to demonstrate consent. However in a criminal trial don’t we start from a presumption of innocence?

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  10. RRM (9,784 comments) says:

    What a waste of time jury trials are!

    See, we’ve worked out he’s not guilty in just a few minutes of deliberation on here. Didn’t even need to see any evidence, or listen to any witnesses, or anything.

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  11. Pete George (23,436 comments) says:

    Guilt is not the point of the post. It’s impossible to judge the merits of the case with the very limited information in the Stuff article. That leaves ample opportunity for people to jump to their own predictable conclusions.

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  12. Colville (2,254 comments) says:

    Really does sound from the article that said bouncer targeted a completely wasted chick took her down a alley and bent her over and didnt take no for a answer/ chick to pissed to talk or fight back.

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  13. Scott Chris (6,036 comments) says:

    Judging from the vague details given in the story it appears that the bouncer, who was not known to the young woman took advantage of her intoxicated state and raped her.

    Either way, the defense lawyer’s still a retard.

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  14. peterwn (3,239 comments) says:

    If a jury plays strictly to the book, a lawyer can try this on as a last ditch defence. However surely a lawyer needs to recognise the human frailties of a jury and recognise a comment of this sort can add fuel to the fire. I have been on two juries and in both cases the prosecutor tried to be excessively smart and annoyed the jury. I cannot believe how they can do it – but then lawyers do not get ‘feedback’ from juries except the verdict.

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  15. Alan (1,087 comments) says:

    The night is dark and full of terrors.

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  16. Pete George (23,436 comments) says:

    “of this sort can add fuel to the fire”

    Quite possible, rightly or wrongly the jury may take the attitude of the lawyer as representing the attitude of the lawyer, and ‘close your legs or it’s implied consent’ doesn’t stack up.

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  17. Dennis Horne (2,371 comments) says:

    Well, it’s true, isn’t it? Unless you’ve got a knife how do you get a woman to open her legs if she doesn’t want to, without leaving bruises? Money? Drugs? Hypnosis?

    If there is a lesson, it’s to report an assault right away. People are more likely to believe you and there may be physical evidence.

    This defence lawyer was absolutely right to use this defence. Quite possible the girl did fancy the big bouncer at the time and later regretted it. Simply no way of knowing. We know what a cock-up Binnie Dunce made by believing a “victim’s story”.

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  18. Chuck Bird (4,835 comments) says:

    There was a 6 day gap before she made a complaint. I wonder if she told at least one person when she got home what had happened and that person testified. That can be used as evidence in a court case.

    From what little I have read that guy would be guilty on the balance of probabilities but beyond a reasonable doubt is a different matter.

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  19. Andrew M (49 comments) says:

    “I don’t think I could do a job where I have to advocate that a woman consented to sex just because she didn’t close her legs”

    You don’t have to advocate that – there are numerous ways to assert that consent existed without being quite so crude.

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  20. Daigotsu (454 comments) says:

    ‘Precautious’ isn’t a word.

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  21. nickb (3,686 comments) says:

    In this socialist bureaucratic state, it’s the lawyers who really make out like bandits. Lord help us.

    Yeah, those criminal lawyers and their mansions and Ferrari’s, eh? I say we limit their pay, no better than grubby bankers.

    Daigotsu, you are an uniformed fuckwit. Please educate yourself about legal aid pay scales, then come back if you feel you can talk with the adults.

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  22. SW (240 comments) says:

    “He is just doing his job” – He didn’t have to run his defence using those words.

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  23. Cato (1,095 comments) says:

    I would hate to be a criminal lawyer because they’re not very well paid compared to their cousins who work in commercial, property or civil litigation.

    However, if I was ever accused of a crime, I think I’d be pretty grateful that there are some top class people who’ve chosen that career. And If I was ever falsely accused of rape, then I’d be darn upset it the lawyer didn’t do everything they could to discredit the prosecution’s case – even if it meant getting villified by media types and bloggers.

    Sex occurs in a private setting – usually with just two people present. It’s not like burglary or murder where there will raraly be an alternative explanation for what’s transpired. In those situations, context is everything.

    Yeah – it sucks for the victim to have this performance at court, but I just don’t see why compounding one injustice on top of another is a good idea.

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  24. Pete George (23,436 comments) says:

    He didn’t have to run his defence using those words.

    If he is instructed to say those words by his client I think he is obliged to use those words.

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  25. WineOh (629 comments) says:

    Stupid choice of words… should have just stopped with ‘the sex was consentual’.

    At the risk of stating the obvious, waiting until 6 days afterwards means that there is likely no physical evidence to rely on and makes it purely a case of ‘he said she said.’

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  26. Chuck Bird (4,835 comments) says:

    @nikeb

    Considering your uninformed comments as well as other lawyers about my problems with a crooked lawyer it is no surprise many people have such a low view lawyers. Your profession does itself no favours particularly on KB.

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  27. muggins (3,343 comments) says:

    If a woman has been raped she should go to the police as soon as she has physically recovered which in this case would have been as soon as she was sober enough to speak to the police coherently.

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  28. Nigel Kearney (971 comments) says:

    He is just doing his job, but personally speaking I don’t think I could do a job where I have to advocate that a woman consented to sex just because she didn’t close her legs.

    Terrible choice of words, but he is advocating that there is reasonable doubt as to whether she consented, which is quite different. We have very limited facts about this case, but in general if a woman doesn’t scream or fight back or go to police immediately so the evidence is essentially one person’s word against another, there is reasonable doubt even if we strongly suspect the guy is lying and the woman is telling the truth. Cases with this fact pattern should generally be thrown out before reaching a jury.

    Or maybe we should be open about abandoning the reasonable doubt standard, and other procedural safeguards, for sexual assaults instead of doing it by stealth.

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  29. Cato (1,095 comments) says:

    It’s not so much a matter of that Peter George – it’s more a matter that the advocate is obliged to take all steps consistent with his professional obligations to zealously represent the interests of his or her client. That can mean putting a spin on some fact that others find distasteful.

    If the lawyer thinks it will help his or her client, then he or she should not refrain from doing so just to avoid media criticism.

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  30. Dennis Horne (2,371 comments) says:

    @Cato, 8:47. Agree with what you say with the proviso if it was someone I knew well I would make a judgement considering the word of the person.

    When the jury system started in small populations some jurors probably knew the people involved and how trustworthy they were. That is no longer the case.

    The adversarial system is an anachronism. I believe an inquisitorial system could be better, maybe even in rape cases.

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  31. Longknives (4,686 comments) says:

    I for one am not comfortable with the direction all this is heading- Media/Political pressure to take any rape complainant’s word as absolute gospel…

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  32. Pete George (23,436 comments) says:

    Cato – I’m sure lawyers don’t care about media criticism, and blog criticism even less.

    the advocate is obliged to take all steps consistent with his professional obligations to zealously represent the interests of his or her client.

    I think the wishes and instructions of the client come before that. A lawyer can advise but is bound to do as he is told.

    I think there will be many cases where lawyers cannot act in what they believe are the best interests of their client. For example, if a lawyer thinks the defence will fail and the client should plead guilty to get a reduced sentence they can’t override a client’s wish to plead not guilty and defend the charge.

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  33. alex Masterley (1,507 comments) says:

    The Lawyers and Converyancers Act Client care rules, state in relation to the duties of a defence lawyer that such lawyers
    “…must protect his or her client so far as is possible from being convicted (except upon admissible evidence sufficient to support a conviction for the offence with which the client is charged) and in doing so must-…put before the court any proper defence in accordance with the clients instructions”.

    Tedious I know but if the counsel in this case was following his clients instructions, which appear to have been there was consensual sexual relations he is entitled to put that case as he sees appropriate.

    Personally I think the counsel should have worded the comment in a different manner but with the same meaning as what he said will now attract more attention than the case itself.

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  34. Nostalgia-NZ (5,097 comments) says:

    ‘Personally I think the counsel should have worded the comment in a different manner but with the same meaning as what he said will now attract more attention than the case itself.’

    Exactly right. Now the mad men have been set free.

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  35. Chuck Bird (4,835 comments) says:

    @alex

    Do you know if there are any rules about a lawyer’s duty in civil cases? It appears there are not many. I remember under the old Matrimonial Act lawyers were meant in theory to act in a conciliar manner. In ordinary civil cases there seems to be no such rule so it benefits an unethical lawyers to wind things up.

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  36. F E Smith (3,304 comments) says:

    Personally I think the counsel should have worded the comment in a different manner but with the same meaning as what he said will now attract more attention than the case itself.

    This.

    Unfortunately, the ill-informed then take an unfortunate choice of words and extrapolate that as being representative of the practice of the whole profession.

    Rapes are the toughest cases to defend, especially where the defendant says it was consensual and the complainant says, with hindsight, that they weren’t capable of giving consent at the time so it was rape.  Even with that point made, any defence lawyer should be very careful how they word their arguments.

    It just confirms my general advice that every male should, before engaging in sexual activity of any kind, obtain written (or, even better, video :D) consent from his partner.

    longknives,

    I for one am not comfortable with the direction all this is heading- Media/Political pressure to take any rape complainant’s word as absolute gospel…

    I think that is the ultimate goal of most people currently campaigning to change the way rapes are tried.

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  37. Chuck Bird (4,835 comments) says:

    @NOS

    “Exactly right. Now the mad men have been set free.”

    If you read the article you will see he has been found guilty.

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  38. Cato (1,095 comments) says:

    Peter George – the scenario you outline would not be in the best interests of the client, because the client has expressed a wish otherwise.

    What I am saying is that it is a big assumption to say that the lawyer only said what he said because the client instructed him to say it. I highly doubt the defendant ordered his counsel to use the particular forumalation he used. That’s down to the judgment of the advocate.

    I don’t think the adversarial system is an anachronism, I think it’s a vital safeguard to ensure that a case is properly probed, that the inconsistencies of either side are exposed and leaves less room for the bias of the state to be imposed on the individual. The inquisitorial system has its flaws and I suspect that a large part of its appeal among media elites is that they can call it “European style”

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  39. Psycho Milt (2,405 comments) says:

    In this case, the opportunity arose and he couldn’t help himself.

    There is no “couldn’t” help himself, there’s only “wouldn’t.” Jury members should take an opportunity themselves, and make examples of shits like this so that future rapists who find that the “opportunity arises” are well aware that dragging pissed-woman into an alley and fucking her will almost certainly net them a criminal conviction and a jail term measured in years. They’ll find it a bit easier to “help themselves” then, maybe.

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  40. Chuck Bird (4,835 comments) says:

    I note some of the lawyers here have not picked there are two issues here.

    1 Did the woman consent?

    2 Was that consent informed? In other words was she drunk?

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  41. Pete George (23,436 comments) says:

    especially where the defendant says it was consensual and the complainant says, with hindsight, that they weren’t capable of giving consent at the time so it was rape.

    Why only the complainant “with hindsight”? Isn’t everything the defendant says after the event “with hindsight” as well?

    For example a defendant could say (with hindsight) “Shit, I should have got consent first but I’m not going to admit that now”.

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  42. F E Smith (3,304 comments) says:

    The adversarial system is an anachronism. I believe an inquisitorial system could be better, maybe even in rape cases.

    Dennis, do you actually have an idea of what you are suggesting?   Bringing in an inqusitorial system would change nothing.  In almost all inquisitorial systems, the actual trial is usually conducted in an adversarial fashion.  Even those few that begin with the judges questioning the complainant then allow the defence lawyer to question the commplainant in an adversarial fashion.  And in all of them the defence is allowed to make a closing statement. 

    NZ treats complainants in sexual cases with kid gloves.  If you want robust trials in such cases, go watch one in Australia!

    What amazes me is that you are happy to put the freedom of an accused person in the hands of a judge who might never have cross-examined a criminal witness in their entire career, by virtue of them having been a civil or commercial lawyer, making the judge the least experienced criminal lawyer in the room, all in the name of the process being better for the complainant.

    Let’s come out and say what the actual goal of such a suggestion is: getting a higher conviction rate in rape cases.

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  43. Cato (1,095 comments) says:

    Actually Chuck Bird, the issue is whether the accused believed there was consent. The purpose of the criminal law is to measure the guilt of the accused, not the damage to the victim.

    Her remedies fall under the civil law and, in this country, the ACC system.

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  44. Chuck Bird (4,835 comments) says:

    “by virtue of them having been a civil or commercial lawyer, making the judge the least experienced criminal lawyer in the room”

    You mean a dunce like Binnie the Ninnie?

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  45. Pete George (23,436 comments) says:

    I highly doubt the defendant ordered his counsel to use the particular forumalation he used. That’s down to the judgment of the advocate.

    I don’t see how a laywer could say in court “All she would have had to do was to close her legs . . . it’s as simple as that” without getting advice on it from his client. If the lawyer simply dreamt up the defence including the term “close her legs” and it adversely affected the case then the client would have grounds for complaint against his lawyer.

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  46. F E Smith (3,304 comments) says:

    Why only the complainant “with hindsight”? Isn’t everything the defendant says after the event “with hindsight” as well?

    No, because the defendant’s actions already exist and cannot be altered.  The issue of consent, however, is not.

    For example a defendant could say (with hindsight) “Shit, I should have got consent first but I’m not going to admit that now”.

    Defendants don’t need hindsight for that.  However, even if both parties are heavily intoxicated, only the male has any requirement to consider how his actions will appear to people in the future.

    Basically, if a woman is intoxicated then no male should have sexual contact with her of any sort, no matter whether it was her idea or not.

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  47. Chuck Bird (4,835 comments) says:

    @Cato

    Are you sure? Is there not a test whether a reasonable person would believe there was consent?

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  48. Cato (1,095 comments) says:

    As aside, but I think anyone who holds themselves up as being seriously concerned about “rape culture” should get involved in prison reform. Did you know that more American men are raped every year than women are, if prison rapes are counted?

    And yet and yet – it’s still acceptable for some reason to joke and laugh about the matter and how the bad guys “will get it in the end” once they’ve been convicted.

    But alas, I sometimes fear that peacockery on this issue is sometimes more about moral display rather than a serious concern for justice.

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  49. gump (1,620 comments) says:

    @Harriet

    “In this case, the opportunity arose and he couldn’t help himself. ”

    ———————-

    Couldn’t help himself?

    Are you seriously suggesting that men lack the ability to control their sexual urges?

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  50. F E Smith (3,304 comments) says:

    I don’t see how a laywer could say in court “All she would have had to do was to close her legs . . . it’s as simple as that” without getting advice on it from his client

    Instruction, not advice.  And no defence lawyer dreams up a defence; to do so would be to mislead the Court.  I really do think this comes down to a poor choice of words to say that the complainants actions indicated consent, which is a very tenuous argument to make at the best of times.

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  51. David Garrett (6,995 comments) says:

    There is no reference in the Stuff article extracted above to her being drunk, but many commenters are writing as if that is a fact…is it? Where the defence is consent, whether she was drunk or not – and if so to what degree – is absolutely relevant.

    All of that aside, this is a tricky one. As I have made clear, this is not an area of the law I would ever want to practice in…but from where I sit anyway, this scenario would be a lot easier for a defence lawyer than the hypothetical I posed here a couple of weeks ago: Drunk driver with several priors kills a young child while driving drunk. The cop makes a hash of the process, and the guy doesn’t get his phone call to his lawyer “in private and without delay” as BORA requires. On the basis of that, the guy walks, although there is no doubt 1) he was drunk; and 2) he killed the child.

    I personally would find that harder to defend than this scenario. Neither are very appealing.

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  52. vendetta (60 comments) says:

    Guilt or innocence judgements aside, the ‘why didn’t she fight back’ or ‘close her legs’ defence is completely disingenuous, and ignores the incredible strength discrepancy between your average man and your average woman.

    In my experience, most people completely underestimate the difference unless they’ve actually been in a physical confrontation with a member of the opposite sex.

    If asked beforehand, I would have considered my ex-boyfriend and I pretty evenly physically matched. I was an athlete, trained with weights, very strong – while he did no exercise. The weight/height difference between us was negligible.

    In reality, when he got violent with me I had nothing. I fought back with everything I had – and I quickly realised all I was doing was pissing him off, and the best I could do was curl into a ball and hope his rage dissipated before he killed me. It was both humiliating and a huge shock.

    In this instance, involving a bouncer (almost certainly huge and very strong) it’s hardly surprising the girl wouldn’t fight back. It’s a choice between raped – or broken jaw, missing teeth etc and still raped.

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  53. Cato (1,095 comments) says:

    Hi Chuck Bird – just reread your post and I misread it in the first instance. Not my forte but, yeah, I understand that belief in consent has to be reasonable in all the circumstances.

    The issue I take is actually with the idea that the criminal law should primarily about the damage suffered by the victim, and righting that wrong, rather than determining the culpability of the accused.

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  54. SW (240 comments) says:

    Pete George – “If he is instructed to say those words by his client I think he is obliged to use those words”. He is obligated to run the defence his client instructs but that does not extend to his client writting the submissions.

    The article might not have been indictive of the lawyers entire defence but I can’t imagine the language he used resonated much with the Jury.

    I agree entirely with F E Smith when he says, “the ill-informed then take an unfortunate choice of words and extrapolate that as being representative of the practice of the whole profession”.

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  55. F E Smith (3,304 comments) says:

    And yet and yet – it’s still acceptable for some reason to joke and laugh about the matter and how the bad guys “will get it in the end” once they’ve been convicted.

    I have had a prison guard say exactly that when gleefully relating a story of a prison rape to me.   For some reason he and his female colleague thought said rape was extremely funny. Apparently they saw it as normal and nothing to be concerned about.  Apparently they told the victim to get lost when he tried to complain.

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  56. Cato (1,095 comments) says:

    @vendetta – well, the guy was convicted wasn’t he?

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  57. Pete George (23,436 comments) says:

    DG “There is no reference in the Stuff article extracted above to her being drunk, “- second paragraph:

    Keith Jefferies was addressing the Wellington District Court in defence of George Jason Pule, who was found guilty last night of raping the drunk 20-year-old

    And later:

    Kelly said it was Pule who approached the woman in Courtenay Place when she was alone, and drunk on beer and vodka…

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  58. vendetta (60 comments) says:

    @Cato – merely pointing out it’s a very silly defence – and as it’s not the first time it’s been used, some individuals still seem to think it has merit.

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  59. F E Smith (3,304 comments) says:

    DG,

    the article says

    who was found guilty last night of raping the drunk 20-year-old after telling her he could help get her into a club to see her friends.

    which would tend to imply that she was intoxicated.

    But you make a good point re how tough rapes are to defend.

    EDIT: Oh, I see that Pete beat me to it!

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  60. Chuck Bird (4,835 comments) says:

    @DG

    “Kelly said it was Pule who approached the woman in Courtenay Place when she was alone, and drunk on beer and vodka.”

    Kelly was the prosecutor.

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  61. Cato (1,095 comments) says:

    Then aren’t you glad it failed? I mean, the question that’s seemingly being asked is whether the defendant (and his advocate) should be free to run his defence even the manner of how it is run offends our sensibilities. If that’s all he had by way of exculpatory argument then why shouldn’t be able to say it – even if the jury wasn’t persuaded?

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  62. F E Smith (3,304 comments) says:

    Jefferies said after the verdict that his comments were made as part of the defence, and were not his personal view.

    It sounds like instructions were very much key to the submission.  In which case Mr Jefferies probably has a detailed instruction sheet with the defendant’s signature on it telling him just how much of a dumb idea it is.

    I still think it could have been worded better, even so.

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  63. Chuck Bird (4,835 comments) says:

    @Cato

    Unfortunately too often the justice system is more about the law than justice.

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  64. Pete George (23,436 comments) says:

    Basically, if a woman is intoxicated then no male should have sexual contact with her of any sort, no matter whether it was her idea or not.

    Much has been said recently about the risks young females take by getting drunk and going places where they could be raped.

    Taking a drunk young female stranger up an alley and having sex is also very risky behaviour,

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  65. F E Smith (3,304 comments) says:

    I mean, the question that’s seemingly being asked is whether the defendant (and his advocate) should be free to run his defence even the manner of how it is run offends our sensibilities.

    You are obviously mistaken, Cato.  Defences are apparently only acceptable if the public considers them so based upon a media report written by a know-nothing reporter doing their best to drum up outrage against the lawyer…

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  66. Cato (1,095 comments) says:

    @F E Smith. I have to plead ignorance here. But do you really think the client would have instructed to formulate the defence in that precise way (or with words to that effect)?

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  67. Dennis Horne (2,371 comments) says:

    F E Smith (2,913) Says: November 14th, 2013 at 9:32 am. Bringing in an inqusitorial system would change nothing. In almost all inquisitorial systems, the actual trial is usually conducted in an adversarial fashion. Even those few that begin with the judges questioning the complainant then allow the defence lawyer to question the commplainant in an adversarial fashion.

    Yes, I do know that, but an examining magistrate in France can lead the investigation. I would prefer three good judges to a typical jury.

    What amazes me is that you are happy to put the freedom of an accused person in the hands of a judge who might never have cross-examined a criminal witness in their entire career, by virtue of them having been a civil or commercial lawyer, making the judge the least experienced criminal lawyer in the room, all in the name of the process being better for the complainant.

    How on earth do you deduce that from what I said? I am staggered. I want to find the truth, not find a winner, that is why I want a scientific approach. I saw what happened at the second Bain trial and I watched Reed QC in Karam versus Counterspin.

    Let’s come out and say what the actual goal of such a suggestion is: getting a higher conviction rate in rape cases.

    Oh, Smiffy, for fuck’s sake…

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  68. Mark1 (90 comments) says:

    Maybe the lawyer’s mum should have kept her legs closed.

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  69. Cato (1,095 comments) says:

    A true word spoken in just, perhaps FE Smith. After all, we did witness the overturning of the very well tested common law defence of provocation as a simple knee-jerk reaction to random events wherein it was invoked, unsuccesfully, in a high profile case.

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  70. F E Smith (3,304 comments) says:

    Yes, I do know that, but an examining magistrate in France can lead the investigation.

    Ah, so it is not the Court trial process that you have an issue with, but instead the police investigation.  Why didn’t you say so?

    I want to find the truth, not find a winner, that is why I want a scientific approach.

    And how do you expect to achieve that in a criminal trial?  Truth serum?  Most people’s concepts of an inquisitorial process wrongly substitutes a defence lawyer’s questioning for a judge’s questioning.  How is that any more likely to get to the truth?

    Let’s come out and say what the actual goal of such a suggestion is: getting a higher conviction rate in rape cases.

    Oh, Smiffy, for fuck’s sake…

    It is.  That is the stated goal of many who would change the system.  Just because you are ignorant of it does not make it any less true.

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  71. unaha-closp (1,157 comments) says:

    We’ve seen this before haven’t we? Clayton Weatherston

    A mean spirited, idiotic, pointless and ultimately futile defence is made in a trial at the behest of an arsehole. Media stirs itself into a frenzy. Two weeks later our lords and masters have stripped away some of our ability to defend ourselves.

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  72. Harriet (4,794 comments) says:

    @Harriet

    “In this case, the opportunity arose and he couldn’t help himself. ”

    ———————-

    Couldn’t help himself?

    Are you seriously suggesting that men lack the ability to control their sexual urges?

    ——————

    Gump, I’m sayng that some men arn’t prepared to control their sexual urges – what society has ever got rid of rapists? None!

    The opportunity arose, an alone pissed girl decided to go with someone who had sex in mind – and became a rapist.

    Believing that just saying ‘no’ is going to save women, and especially alone drunk women from rape is foolish.

    All dad’s know that.

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  73. F E Smith (3,304 comments) says:

     But do you really think the client would have instructed to formulate the defence in that precise way (or with words to that effect)?

    I would hope not, but clients can be quite unrealistic in their instructions.  It might show that the lawyer was simply not persuasive enough to get the instructions changed, or that he was unwilling to (as some of us might have done on a couple of occasions) flat out refuse to do so.   Or it might mean that the client was just bloody-minded.  I don’t like to second-guess colleagues because I just don’t know what the situation was.

    After all, we did witness the overturning of the very well tested common law defence of provocation as a simple knee-jerk reaction to random events wherein it was invoked, unsuccesfully, in a high profile case.

    Too true, sadly.

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  74. Jack5 (5,014 comments) says:

    Non-consent issue aside, what’s a security guard doing shagging customers in an alleyway?

    What sort of trash are clubs hiring these days? What sort of a club was it? If its staff rape or even just shag customers or would-be customers surely it should be delicensed and closed, and its owners face some sort of penalty.

    If NZ were rational enough to ease firearms laws so that responsible, licensed women and licensed men could carry pistols, there would be helluva lot less rape. Thugs might then carry guns, too, but they are mostly cowards and would shrink from facing someone trained and resolute and ready to shoot.

    As for homosexual rape in prisons, my understanding from warders is that this is rare in NZ, even if it is rife in the US. Prison rape is anarchy and control by prisoners. Why should they have the right to hand out punishment on other prisoners? That undermines the whole system.

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  75. Graeme Edgeler (3,282 comments) says:

    Most people’s concepts of an inquisitorial process wrongly substitutes a defence lawyer’s questioning for a judge’s questioning. How is that any more likely to get to the truth?

    Defence lawyers avoid asking many questions because, for example, the answers might hurt their client, or they don’t know what the answer will be and it’s too much of a risk.

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  76. Cato (1,095 comments) says:

    The frenzy is the problem. It’s good to be outraged by horrible crimes but the problem is that you don’t necessarily think clearly when you are outraged. The real problem, though, comes when we decide to like being outraged and offended.

    It enables us to puff ourselves up by defining ourselves against something we dislike. It makes us feel better about ourselves so we care less and less for the facts and justice and more and more about the outcome that would feed that feeling of righteous anger.

    Maybe some people don’t struggle with that. I know I do, though. You just have to constantly check yourself.

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  77. vendetta (60 comments) says:

    @cato

    Yes, I was thinking how this echoes the Weatherston case. I feel almost any line of defence – no matter how feeble – should probably be allowed to run, because it quickly becomes obvious (as you say) that that’s all they’ve got. I’m not legal-minded, but that’s my armchair critic opinion :)

    My initial comment pertained to the fact that many people (evidenced by opinions further up the thread) seem to view this line of defence as relevant.

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  78. F E Smith (3,304 comments) says:

    A mean spirited, idiotic, pointless and ultimately futile defence is made in a trial at the behest of an arsehole.

    That is wrong.  For that defence to have been allowed to go to the jury it had to have been given a evidential basis by the defence and accepted as being so by a High Court judge.  That involves having psychiatric examination and evidence about the defendant.

    That the judge, as the gate keeper, allowed it to be considered by the jury means that the defence team met the legal requirement of evidential sufficiency.  That means that the defence was neither idiotic, nor pointless.  Indeed, it was the only defence Weatherston had.  The jury decided that the evidence was insufficient to constitute a defence, which was their right.  But the rejection of Weatherston’s defence in no way makes it an invalid defence.

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  79. F E Smith (3,304 comments) says:

    Defence lawyers avoid asking many questions because, for example, the answers might hurt their client, or they don’t know what the answer will be and it’s too much of a risk.

    That is true, Graeme, although surely that is what the prosecuting lawyer is there to do.

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  80. Scott (1,765 comments) says:

    vendetta – I do feel a lot of sympathy for your situation. We do hope that you are recovered and that you are able to find a nice bloke that will treat you well.

    The rape situation is very difficult because our morals are so loose now. In the past woman would not have gone off with a bouncer that they did not know by themselves – for what purpose? Was she just trying to get into the club and was an innocent victim? Or was she looking for sex from the bouncer but then regretted it later?

    At the risk of being pilloried I just believe that this is what we should expect with our loose sexual morals. We need better boundaries. We need to re-establish a marriage culture rather than a free for all fornication culture.

    Young women need to have respect for themselves and save themselves for their husband. Young men need to have honour and treat women honourably. So I would like to see us shift back to a marriage culture and away from the nightclub/pickup culture which unfortunately breeds this type of situation.

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  81. Dennis Horne (2,371 comments) says:

    @F E Smith. Sometime I will try to explain it to you. Lawyers don’t want to know the truth. They want to maintain their belief in a quaint system. Human nature. Lawyers are human…

    Put your fancy wigs back on and we’ll see trials for what they are: charades, theatre. The scientific method can be used to approach any rational question. (By the way, two of my uncles, by marriage, were SMs.)

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  82. Nostalgia-NZ (5,097 comments) says:

    A good insight from peterwn

    ‘I have been on two juries and in both cases the prosecutor tried to be excessively smart and annoyed the jury. I cannot believe how they can do it – but then lawyers do not get ‘feedback’ from juries except the verdict.’

    There may have members of the Jury who were offended by the Lawyer’s phrasing, just as have others been here, resulting in them deciding the client was guilty. The fragilities of human nature, offended by a jersey, race, manner and all sorts of things none of which are necessarily proof of either guilt or evidence. It made me think the classic ‘To Kill a Mockingbird,’ or how a clever lawyer might appeal to a Jury subtlety about race if a defendant was black and a complainant white. Nothing subtle about using the term could have ‘closed her legs’ though, a point on appeal perhaps. I wonder if it is safe to assume from the apparent bluntness of the Lawyer’s terms that the Lawyer may not have invited the Jury to consider that the complainant had second thoughts as the week wore on from consent to no consent.

    Chuck 9.23, didn’t know that.

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  83. Dennis Horne (2,371 comments) says:

    I think the defence of insanity/mental incompetence should go. It should be taken into account for the sentencing, that’s all.

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  84. Cato (1,095 comments) says:

    @dennis Horne – not true: http://en.m.wikipedia.org/wiki/Court_Martial_(Star_Trek:_The_Original_Series)

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  85. Dennis Horne (2,371 comments) says:

    @Nostalgia. Tell, me, Nosty, was it you or one of the others? I’d tend to believe you, actually. I don’t like the way the police get evidence from possible co-defendants. Take care, I gotta go now.

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  86. gump (1,620 comments) says:

    @Harriet

    “Gump, I’m sayng that some men arn’t prepared to control their sexual urges – what society has ever got rid of rapists? None!”

    ————————

    A sexual urge does not cause a man to rape a woman.

    The man must still make the decision to commit the rape.

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  87. F E Smith (3,304 comments) says:

    So, Dennis, how do you propose to get truth in a trial? Can your scientific method expose a skillful liar? I am genuinely interested.

    And that two of your Uncles by marriage were Stipendiary Magistrates means absolutely zilch to me…

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  88. Graeme Edgeler (3,282 comments) says:

    That is true, Graeme, although surely that is what the prosecuting lawyer is there to do.

    No. They also avoid asking question because they don’t know the answer and it will be too much of a risk.

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  89. Rowan (2,074 comments) says:

    Yes the lawyer was just doing his job, a rather inappropriate comment for him to have made in the circumstances but even arseholes like this prick are entitled to a defence lawyer to put forward there arguments, not the lawyers fault if there client is a POS like this individual.

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  90. Akaroa (552 comments) says:

    David posted: “……personally speaking I don’t think I could do a job where I have to advocate that a woman consented to sex just because she didn’t close her legs”.

    Yes, David, but you’re forgetting that lawyers are not real people, and they do not operate under the same norms as the rest of us.

    They are the chameleons of society – who will assume any stance in the interests of their – paying – clients! Right, wrong or morally indefensible.

    (And, no, before you ask, I have not had a bad experience attributable to a lawyer. I stay well away from such creatures!!)

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  91. RichardX (324 comments) says:

    From your comments above Harriett, I take it you stand by your comment yesterday

    Harriet (2,974) Says:
    November 13th, 2013 at 2:27 pm
    There is a huge differance between being raped and being an ‘unwilling’ wife when sex is requested.

    How can a wife be “precautious” with her husband?
    Or did she give up the right to say no when she got married?

    Harriet (2,974) Says:
    November 14th, 2013 at 7:10 am
    Reality check!
    Saying ‘no’ didn’t save her.
    Society will always have rapists.
    Women still need to be precautious.

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  92. Chuck Bird (4,835 comments) says:

    @gump

    A man commenting about a woman’s attire does not justify him getting king hit. I hope other men many young men may learn for this.

    Maybe a lesson woman can learn from this other event is that woman are much more likely to lose their purse and all their money along with their cell phone than men. Also, if they do they are in a lot more trouble.

    There is a simple solution and that is keep a 20 or 50 dollars note in their clothing to be used in an emergency.

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  93. F E Smith (3,304 comments) says:

    No. They also avoid asking question because they don’t know the answer and it will be too much of a risk.

    Well then, surely such questions should be asked in the Police interview?  Or if not, and all three questioners have avoided the questions, perhaps they are not relevant?  After all, our questioning these days is quite restricted as to relevance.  

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  94. Rowan (2,074 comments) says:

    FES

    Your thoughts please on the insanity/provacation defence, I see insanity as a legitimite defence to use, hypothetically if David Gray had survived Aramoana do you think he would have been found to be insane rather than guity of murder?
    I would not regard provocation as a legitimite defence i.e. Weatherston although he never stood a hope in hell of succeeding on this. Legally should he still be allowed to use it? It parralels this case quite well.

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  95. F E Smith (3,304 comments) says:

    Rowan,

    I agree with you. There are people who are insane when they commit crimes, and it is wrong to hold them criminally liable for their actions in such a case. I can’t answer re David Gray because I am not a psychiatrist. Don’t forget that any plea of that nature requires evidence from experts to establish the defence.

    I think that provocation should still be a defence. There was a reason that the it was developed at Common Law, and I think that reason still exists. Just because we don’t like the way it is unsuccessfully argued did not and does not justify its abolition. Don’t forget that it would merely have reduced the verdict in the Weatherston case from Murder to Manslaughter, which has a maximum penalty of Life Imprisonment.

    Ironically, abolishing the defence but allowing it as mitigation means that the Weatherston case would still have to be conducted in the same way, either at trial or in at sentencing.

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  96. wikiriwhis business (3,883 comments) says:

    Is a bouncer sposed to be having sex on duty. If he was on duty.

    Sackable offence to me

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  97. unaha-closp (1,157 comments) says:

    But the rejection of Weatherston’s defence in no way makes it an invalid defence.

    30 year Argentinian bonds are valid investment options.

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  98. GPT1 (2,116 comments) says:

    This is an appalling beat up and a straight out attack on the right to a fair trial. It was not a comment directed at mitigation of a rape (“she asked for it”) but quite simply a submission as to the factual enquiry that the jury faced. Where consent is at issue any defence lawyer, within the rules of evidence, is going to point out evidence that counters the allegation that there was no consent.

    There is justified societal concern about sex offending and rape in particular but the answer is not removing the right to a fair defence.

    The Weatherstone case was an example of our common law system at it’s finest. Ably represented a full and fair defence was afforded him, he was (rightly) convicted by a jury of his peers having heard and seen the evidence and locked up for a long time. Quite why the system working as it should resulted in removing the defence of provocation is beyond me.

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  99. wikiriwhis business (3,883 comments) says:

    “I can’t answer re David Gray because I am not a psychiatrist. ”

    The movie used the David Gray case as an example that people who complained about the new bank charges of the time were mentally challenged. Gray was in fact correct when he asserted his complaints against the bank charges the corporate media never questioned.

    The public were also slowly duped into losing cash wages over time into direct credit. Then the banks controlled our finances. At least now the banks are being pursued for their over charging. Interestingly, never from their firiends in teh Beehive. Banker J Key is their best friend.

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  100. GPT1 (2,116 comments) says:

    He is just doing his job, but personally speaking I don’t think I could do a job where I have to advocate that a woman consented to sex just because she didn’t close her legs.
    What if it was a situation where the sex was consensual and it was a false accusation of rape?

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  101. Pete George (23,436 comments) says:

    What if it was a situation where the sex was consensual and it was a false accusation of rape?

    If that was the case I’d expect the defence to explain how consent was given. The “close her legs” statement statement did nothing to explain or prove consent.

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  102. nickb (3,686 comments) says:

    Uh, maybe because the burden of proof is (rightly) on the prosecution?

    Take your Simon Power-like justice ideas and stick them up…

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  103. Manolo (13,518 comments) says:

    This is a case for KB’s Cape Crusader, angel and saviour who will redeem and cleanse NZ of its terrible “culture of rape”.

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  104. nickb (3,686 comments) says:

    Quite why the system working as it should resulted in removing the defence of provocation is beyond me.

    Because National is a populist party with no meaningful principles.

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  105. ross69 (3,652 comments) says:

    I saw what happened at the second Bain trial

    Yes, that was hardly a ringing endorsement for trials by juries. Juries can and do make mistakes. Having said that, so can judges but maybe not as often as jurors.

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  106. Graeme Edgeler (3,282 comments) says:

    Well then, surely such questions should be asked in the Police interview? Or if not, and all three questioners have avoided the questions, perhaps they are not relevant? After all, our questioning these days is quite restricted as to relevance.

    Relevant to the issue in hand (i.e. guilt or not guilt) sure, but you were asking about truth. And there may be questions that are relevant to truth, that don’t get asked in a common law adversarial trial, but that would get asked in a civil law inquisitorial hearing.

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  107. Rowan (2,074 comments) says:

    Pretty much agree with your thoughts FES
    They are legitimite defences in some cases.

    http://www.smh.com.au/news/National/Abused-wife-cleared-of-husbands-murder/2006/03/03/1141191843495.html

    In the above case I find it surprising that the wife didn’t at least go down for at least manslaughter as in my mind definite premeditation.
    Cases like Gay Oakes would be a similiar one, do you think the verdict in that case was correct?

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  108. ross69 (3,652 comments) says:

    What if it was a situation where the sex was consensual and it was a false accusation of rape?

    If that was the case, the accuser probably wouldn’t get charged.

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  109. nickb (3,686 comments) says:

    Oh Ross. So innocent and naive.

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  110. Pete George (23,436 comments) says:

    Uh, maybe because the burden of proof is (rightly) on the prosecution?

    Yep. But when a case comes down to one person’s word against another I presume it’s wise to at least contest the other version, and it would help to give your own version, if it would help your case.

    The prosecution claimed:

    When he tried to kiss and grope her she clearly said no, and was clearly saying no as he bent her against a wall and raped her.

    There’s nothing in the Stuff article about this account being disputed. Obviously the ‘close her legs’ defence was not enough to convince a jury because it does little to dispute non-consent.

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  111. Rowan (2,074 comments) says:

    http://www.stuff.co.nz/the-press/news/9395025/Aaron-Keown-urges-phone-abuse

    FE
    Is what Keown is doing here legal? Should it? Do we need better defamation laws in NZ?
    In response to 3, it the upcoming court decision for Mr Parker should be great to read and will hopefully set a legal precedent for cyberbullying and ‘witch sniffing’
    A lesson many here could do with learning.

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  112. Scott Chris (6,036 comments) says:

    What if it was a situation where the sex was consensual

    It seems apparent that the complainant copulated with the defendant so the fact that she must have opened her legs is not really pertinent to that question. As FES stated earlier:

    a poor choice of words to say that the complainants actions indicated consent, which is a very tenuous argument to make at the best of times

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  113. Harriet (4,794 comments) says:

    RichardX

    From your comments above Harriett, I take it you stand by your comment yesterday

    Harriet (2,974) Says:
    November 13th, 2013 at 2:27 pm

    “….There is a huge differance between being raped and being an ‘unwilling’ wife when sex is requested….”

    How can a wife be “precautious” with her husband?
    Or did she give up the right to say no when she got married?

    ————————————————————–

    ‘Unwillingly’ having sex with a husband or partner is not rape!

    You will probably find that MOST wifes have ‘unwillingly’ had sex with their husbands.

    Plenty of blokes turn up home after a few drinks, or from working on a fishing trawler ect, and want sex with their wifes – and their wifes ‘unwillingly’ have sex with them. It happens all the time in the real world.

    That is not rape, and feminists & academics ect should be more precise with the questions on their surveys and studies.

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  114. Pete George (23,436 comments) says:

    Harriet, you should be more precise, because something as vague as “‘Unwillingly’ having sex with a husband or partner” could be consensual or non-consensual, so could encompass rape. Unless unconscious how could a rape victim be anything other than unwilling to have sex?

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  115. F E Smith (3,304 comments) says:

    Graeme,

    And there may be questions that are relevant to truth, that don’t get asked in a common law adversarial trial, but that would get asked in a civil law inquisitorial hearing.

    Oh, I see.  I wasn’t so much myself concerned with truth as much as asking Dennis how his preferred system would get to it, but I see how my wording would lead to that conclusion.  However, fair point, but not one I accept: in an adversarial system the judge (or the jury) is perfectly entitled to ask a question even if the prosecution or defence has skirted around it.  So there shouldn’t be any difference.

    Dennis appears to have more issue with police investigation, rather than the actual trial process, although I am still very interested in hearing how his scientific method would improve the ability to get to truth in a trial.

    Pete,

    But when a case comes down to one person’s word against another I presume it’s wise to at least contest the other version, and it would help to give your own version, if it would help your case.

    Not always.  If the complainant’s evidence is weak there may be no need to provide another version.  But most times it is a good idea.

    Rowan,

    Is what Keown is doing here legal? Should it? Do we need better defamation laws in NZ?

    1. Probably. 2. Why not?  Do we really need a law criminalising being an unpleasant dick?  3. And no (because it is not defamation but harassment, and the defamation laws are strong enough and not used often enough).

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  116. gump (1,620 comments) says:

    @Harriet

    “‘Unwillingly’ having sex with a husband or partner is not rape!

    You will probably find that MOST wifes have ‘unwillingly’ had sex with their husbands.

    —————————-

    If a wife doesn’t consent to having sex with her husband and he persists, then he has committed sexual violation (rape) according to the Crimes Act. This is a legal definition and has nothing to do with feminist interpretation.

    The fact that the two people are married has no legal bearing in the matter. I bring your attention to section 128 (4):

    “128. (4) One person may be convicted of the sexual violation of another person at a time when they were married to each other.”

    http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329051.html

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  117. Harriet (4,794 comments) says:

    PG#

    ‘…Harriet, you should be more precise, because something as vague as “‘Unwillingly’ having sex with a husband or partner” could be consensual or non-consensual, so could encompass rape….’

    Pete a good example would be a wife who stays in a Marriage for the sake of the kids, the husband doesn’t abuse her but rather, she is just unhappy in it. She at times would ‘unwillingly’ have sex with him.

    The same with a man who ‘on a rare occasion’ came home a bit ‘more drunk’ than he should be, and himself and his wife were ‘expecting sex’ as they ‘regulay’ did – she ‘may then’ ‘unwillingly’ have sex.

    It’s probably a matter of context and how those individuals act and re-act towards each other in particular situations. Cheers Pete.

    Edit: This matter was in The Australian a year or so ago. It was about the way ‘questions’ were written in studies and surveys on sexual assault ect. Women were being misled.

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  118. Pete George (23,436 comments) says:

    Relevant to this topic is a blog account of a survivor of sexual assault. Sobering.

    http://pantograph-punch.com/a-simple-acknowledgement/

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  119. Judith (8,534 comments) says:

    I don’t think anyone could pay me enough to be a lawyer. It’s a losers game, because even when they win the argument, someone feels like they have lost.

    As far as ‘just closing your legs’ – a stupid statement, but not the first time it has been said in a court of law, and I doubt it will be the last. It is just a reflection of similar comments that are made in the community everyday, and indeed were made several times on this board within the last couple of weeks.

    Men, the stronger sex, often believe women, the weaker sex, can and should be able to find the strength in such situations to fight the man off. ‘To close their legs’ despite the fact there is someone with much more strength and body weight lying between them. It’s just ignorance – something that is demonstrated by both sexes when it comes to understanding the differences between each other.

    Of course the same ‘culture’ makes it to the Courtroom that is demonstrated in the community at large. And why shouldn’t it – if I was paying for a defence lawyer I would expect them to do everything within their legal capability to get a not guilty verdict.

    When you go to Macdonald’s and ask for a bacon burger do you expect them to leave the bacon out because they couldn’t source any that wasn’t produced in an overcrowded conditions? You expect to get what you paid for, in this situation professional assistance to defend your case.

    I don’t like what he did, and I hate that someone would use such a defence in this type of case, but I accept that is the ‘nature of the beast’ and believe that most judges and juries are astute enough to see it for what it was.

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  120. Judith (8,534 comments) says:

    @ gump (995) Says:
    November 14th, 2013 at 1:24 pm

    Quite right – rape is rape is rape (sexual violation by law). It is not excused because the couple is married, or seeing each other.

    That would be like an employer saying he has the right to force sexual relations with an employee during the hours he is paying them. Ridiculous.

    A man no right to sex, regardless of his contract of marriage, neither partner does.

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  121. nickb (3,686 comments) says:

    I don’t think anyone could pay me enough to be a lawyer.

    Given your critical reasoning over the Bain case, I can assure you the profession doesn’t want you either :)

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  122. Judith (8,534 comments) says:

    @ nickb (3,031) Says:
    November 14th, 2013 at 1:55 pm

    Oh dear, another person that makes all their judgments based on another’s opinion of the Bain case. Life must be very difficult for you with such an obsession.

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  123. Pete George (23,436 comments) says:

    Given your lack of integrity nick I’m surprised the profession would want you.

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  124. nickb (3,686 comments) says:

    You need to have integrity to be a lawyer?!?!

    Some of my colleagues in the media spotlight recently seemed to have missed that memo.

    Have you registered your billionth thumbs down on KB yet?

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  125. nickb (3,686 comments) says:

    On that topic, to FE, GPT and Nosty, what are your views on this? Ever dealt with him before?

    http://www.lawfuel.co.nz/news/1086/orlov-struck-off-for-attacks-on-judiciary

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  126. Judith (8,534 comments) says:

    So the legal profession does not value critical reasoning? I rather thought that the ability to apply critical reasoning was fundamental to the profession.

    Obviously not because you have deemed it so – FES and the other members of the legal profession that do so on here must be unusual examples.

    Perhaps it is just that my critical reasoning opposes your critical bias, and therefore you don’t like it. What you offer cannot be called critical reasoning, because it is totally absent of any degree of factual knowledge However, the comments I have seen of yours demonstrate a high degree of ignorance when it comes to the Bain case.

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  127. alex Masterley (1,507 comments) says:

    nickb

    I was a member of the Council of the ADLS when what is known as “the pitch invasion” took place in 2008.
    Fortunately I was not at the meeting in question so I missed the fun and games.

    I think that the decision of the tribunal will be welcomed by many practitioners and one or two judicial officers.

    Having said that Mr Orlov is nothing if not persistent.

    I am picking that he will appeal the decision of the tribunal to the High Court, the decision of the High Court to the court of appeal and then to the Supreme Court. No doubt there will be applications for recusals all round. It will make the siemer litigation look like a walk in the park.

    And then there is Mr Deliu.

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  128. nickb (3,686 comments) says:

    Haha – please go on! The “pitch invasion” being the physical altercation?

    Between Orlov, Simer and Deliu its no wonder the wheels of justice turn slowly in Auckland!

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  129. Dennis Horne (2,371 comments) says:

    @Nostalgia. I read my earlier comment and I see it is ambiguous. What I should have said is, if you told me you didn’t do it I would probably believe you, because I don’t trust co-accused to tell the truth.

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  130. F E Smith (3,304 comments) says:

    I’m surprised the profession would want you.

    In my own capacity, and especially based upon his comments here on KB, I am very pleased to be able to call Nick a colleague!

    On that topic, to FE, GPT and Nosty, what are your views on this? Ever dealt with him before?

    I have not dealt with him, but I do have some emails from 2008 that raise him as an issue!  

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  131. Pete George (23,436 comments) says:

    FES – I wouldn’t go near a lawyer who lied and abused here like nick. His sort of repeated nastiness does not look professional at all to me.

    Which is a shame, the contribution from most lawyers here is excellent.

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  132. alex Masterley (1,507 comments) says:

    Nickb,

    Most of what I know about the pitch invasion is 2nd hand.

    I understand that things didn’t get physical in the sense of people coming to blows or handbag swinging although words were exchanged.

    The constabulary were called, I understand, to prevent a breach of the peace.

    There has been a certain frostiness between both Mr Deliu and Mr Orlov and the Law societis since.

    I have also read the lawfuel piece.

    There is one egregious mistake.

    It is the members of the Lawyers and Conveyancers Discilinary Tribunal, not the Law Society, that made the unanimous decision to strike Mr Orlov off. The NZLS through the medium of Standards Committees that prosecutes practitioners for breaches of the LCA, the practice rules etc.

    I understand Mr Deliu will be appearing before the tribunal in the near future. Subject of course to the outcome of a judicial review case he is running.

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  133. F E Smith (3,304 comments) says:

    I wouldn’t go near a lawyer who lied and abused here like nick. His sort of repeated nastiness does not look professional at all to me.

    I think it would be a mistake to conflate anything we say here on KB with our professional conduct.  Generally, only the Police find me as irritating in real life as I can be here on KB…

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  134. nickb (3,686 comments) says:

    PG, calling you out on your unwavering support of one of NZ’s most venal and unprincipled politicians, and your assertion NZ males foster a “rape culture” is not nastiness. I know in your centrist utopia Peter Dunne would be President and any criticism of His Worship would be punishable by imprisonment. But we are in Kiwiblog, and I have as much right to free speech as anyone else.

    I am sure you are not a bad person and I don’t recall ever trying to attack your personal character. Actions yes, character no. I have never met you so can’t pass any adverse judgement on you outside of your comments on KB (which rightly attract criticism).

    By the way, if overwhelming evidence of the leak of government secrets pointed to a Minister, yet that Minister’s underling ran interference all over the NZ blogosphere blaming and defaming innocent public servants, what would you call that? Would it be “nastiness”?

    Grow up, man. Stop being a hypocrite.

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  135. nickb (3,686 comments) says:

    There is one egregious mistake.

    TBH Lawfuel seems to be chocka with egregious mistakes. I don’t think a lawyer writes that website. At leat, I hope not.

    Thanks for the insight, by the way!

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  136. alex Masterley (1,507 comments) says:

    Nickb

    John Bowie one of the contributors to lawfuel is/was a lawyer.

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  137. nickb (3,686 comments) says:

    That’s interesting. There seem to have been quite a few bizarre statements lacking authority in a few articles I have read. Some interesting stories nonetheless.

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  138. Pete George (23,436 comments) says:

    You’re wrong in your very first assertion there nick. And you continue on with utter bullshit.

    Is your making stuff up through deliberate misrepresentation? There are small number of people here who keep doing that regularly, which makes their motives highly suspect. Or perhaps you just like being ignorant arseholes.

    Grow up, man. Stop being a hypocrite.

    There is considerable irony in that.

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  139. Longknives (4,686 comments) says:

    Them’s fightin’ words Pete..

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  140. nickb (3,686 comments) says:

    What exactly about my post was wrong?

    Maybe you should take this to GD, because you have taken this thread miles off topic with your personal attack earlier.

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  141. Cato (1,095 comments) says:

    @Peter George – I’m not sure why you think the horrific story of a survivor of has relevance to the guilt or innocence of any other person. Sometimes it seems as if you have a complex about this, but as FES pointed out earlier – the object shouldn’t be to drive up convictions. It should be to do justice in each individual case. That means that occassionally, guilty men will get off. I suppose as a non-atheist I don’t think anyone ever really gets off a crime – but your mileage might vary, I guess.

    As a fellow practitioner – though as one who probably operates in a very different jurisdiction – I can only say that nickb’s comments are pretty interesting and logical. I certainly haven’t seen any cause for your defamation about him. You need to stop being so prickly about mild criticism.

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  142. Longknives (4,686 comments) says:

    “What we’ve got here is failure to communicate! Some men you just can’t reach- So you get what we had here last week, which is the way he wants it. Well, he gets it. I don’t like it any more than you men….”

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  143. Dennis Horne (2,371 comments) says:

    @F E Smith. Science is not a magic wand. It’s the philosophy and approach to a problem that is the crux.

    A group of investigators would work together to get to the truth, not one half wanting a conviction and the other an acquittal, with a judge as referee and a jury deciding who played the best game on the day.

    I know that is vague, but you know that a defence lawyer never asks a question unless he knows the answer. In science this would be nonsensical, or rhetorical. Furthermore, a question is not asked to get to the truth, it is framed to get the answer that’s wanted, even though it may not be the question that should be asked. It’s not an honest process. In fact it’s deceitful. A lie.

    To give an example. A defence lawyer asks a series of questions and gets some answers he doesn’t like but eventually the witness says “No” to the question “Can you tell if the wound is one minute old or 12 hours old?” Contained in that answer is no information as to how old the witness thinks the wound is. It may be true he can’t tell, because nobody can or he doesn’t have the expertise or the equipment. He’s not telling you he thinks the wound is between one minute and 12 hours old, he wasn’t asked that. Straw man. Karamel.

    I mentioned my mother’s sisters were married to SMs because I suspect people might conclude a I think all lawyers are lying parasites. Don’t you agree?

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  144. Manolo (13,518 comments) says:

    Sometimes it seems as if you have a complex about this…

    I would bet my house he does. Something must have happened to P.G. that left him scarred.
    As I said before: a true Dunedin mystery.

    Think of us as your “sisters”, Pete. Tell us all.

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  145. Cato (1,095 comments) says:

    @Dennis Horne – I think most people would have interpreted it as a very, very weak appeal to authority.

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  146. Pete George (23,436 comments) says:

    What exactly about my post was wrong?

    You really don’t know?

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  147. Cato (1,095 comments) says:

    @Manolo – I’m not sure that’s a fair call. But he does seem to have a bee in his bonnet about it. In reality, I don’t think anyone thinks rape isn’t a horrible, awful thing. It’s just how a society responds to it in a way that protects victims and the rights of innocents alike that’s up for debate.

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  148. Pete George (23,436 comments) says:

    As a fellow practitioner – though as one who probably operates in a very different jurisdiction – I can only say that nickb’s comments are pretty interesting and logical. I certainly haven’t seen any cause for your defamation about him. You need to stop being so prickly about mild criticism.

    How can you defame an anonymous blog commenter?

    nick frequently substantially misrepresents what I’ve said and what I do and don’t do. Some others like the abuse and bully culture here and support it and do similar. If they are corrected they ignore it and repeat. It’s a gutless game they play. You see them flocking to where they sense a victim, trying to do whatever damage they can. Maybe that’s how gang rapists operate, trying to humiliate those they think are vulnerable.

    And they get upset when they are challenged on it.

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  149. Manolo (13,518 comments) says:

    In reality, I don’t think anyone thinks rape isn’t a horrible, awful thing.

    @Cato, you have my unreserved support on this.

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  150. Cato (1,095 comments) says:

    Simple, you maligned his character.

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  151. Dennis Horne (2,371 comments) says:

    I don’t think Pete George is a paedophile. I don’t know why I think he isn’t, I don’t know him from Adam. I know for sure only that he isn’t a convicted paedophile.

    How does that feel, Pete? ;)

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  152. Cato (1,095 comments) says:

    So nickb is now the moral equivalent of a gang-rapist? Stop being such a whingeing old fool. If you think there’s a bullying culture here, why do you spend so much time here. You have your own blog! You’re coming up to 20,000 comments.

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  153. Manolo (13,518 comments) says:

    I don’t think Pete George is an old girl’s blouse. I don’t know why I think he isn’t, I don’t know him from Germaine. I know for sure only that he isn’t an old girl’s blouse.

    With thanks to Denis Horne for the divine inspiration. :D

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  154. Dennis Horne (2,371 comments) says:

    Oh, Manolo, that was heavenly… :) :) :)

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  155. nickb (3,686 comments) says:

    Makes allegations of a rape culture existing with no facts and based off vague opinion.

    Gets questioned on it by most of Kiwiblog.

    Responds by drawing analogies between gang rapists and those who disagree with him…

    :S

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  156. Weihana (4,496 comments) says:

    Dennis Horne (1,949) Says:
    November 14th, 2013 at 9:59 am

    I want to find the truth, not find a winner, that is why I want a scientific approach.

    Dennis Horne (1,949) Says:
    November 14th, 2013 at 10:22 am

    The scientific method can be used to approach any rational question.

    In what way does the legal process not conform with the scientific method? The scientific method consists of a hypothesis (i.e. the accused is guilty/not-guilty), and this hypothesis is tested against empirical evidence which is presented at trial.

    The jury in this process act as fact finders. This is not scientific as such, but then neither is the process of peer review undertaken by academic journals. They too are “fact finders” of sorts tasked to distinguish robust scientific work from those less so, just as jurors are tasked to distinguish robust prosecutions from those less so.

    Whether or not jurors are particularly competent at their job would not seem to me to change the fact that the trial process is in principle scientific.

    Also, raising examples of unscientific or illogical legal arguments is no more an indictment on the legal process than raising examples of flawed scientific studies.

    Dennis Horne (1,950) Says:
    November 14th, 2013 at 3:19 pm

    A group of investigators would work together to get to the truth…

    Maybe. Maybe they’re biased by their preconceptions. Maybe they are biased towards certain benefactors. The person with the most motivation to find the reasons for their innocence is the person accused of a crime. No one else has as much incentive to find good reasons for acquittal if such reasons exist.

    Furthermore, a question is not asked to get to the truth…

    What is a truth? How can you know the truth in advance? You can’t. The relevant question is what process is most likely to arrive at the truth: competition? or co-operation? :)

    …it is framed to get the answer that’s wanted, even though it may not be the question that should be asked

    But if the question is not asked because it is not in the interests of one side, then in principle the other side has an incentive to ask that question.

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  157. F E Smith (3,304 comments) says:

    A group of investigators would work together to get to the truth,

    Here in NZ we generally call them the Police.

    I know that is vague,

    Not just vague, it answers nothing and gives no idea of how your supposed ‘scientific method’ would actually work.  At the moment all you are doing is telling us that you have a better way.  

    but you know that a defence lawyer never asks a question unless he knows the answer. In science this would be nonsensical, or rhetorical. Furthermore, a question is not asked to get to the truth, it is framed to get the answer that’s wanted, even though it may not be the question that should be asked. It’s not an honest process. In fact it’s deceitful. A lie.

    Actually that shows an overly cynical view of what we do.  In many ways it is a wrong-headed view to take, and if that is your starting point then you are devaluing your so far unproven assertion that you have a better way.

    A defence lawyer asks a series of questions and gets some answers he doesn’t like but eventually the witness says “No” to the question “Can you tell if the wound is one minute old or 12 hours old?” Contained in that answer is no information as to how old the witness thinks the wound is. It may be true he can’t tell, because nobody can or he doesn’t have the expertise or the equipment. He’s not telling you he thinks the wound is between one minute and 12 hours old, he wasn’t asked that. Straw man. Karamel.

    I am coming to the conclusion that you don’t really know what you are talking about.  Either way, your example is itself wrong.

    I mentioned my mother’s sisters were married to SMs because I suspect people might conclude a I think all lawyers are lying parasites. Don’t you agree?

    No, I just think that you appear to have a very high opinion of yourself.  But you still have not told us how your scientific method would actually work in a trial situation, let alone be better than the current process.

    That all said, I think Weihana’s response to you is fantastic.

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  158. F E Smith (3,304 comments) says:

    But if the question is not asked because it is not in the interests of one side, then in principle the other side has an incentive to ask that question.

    Exactly.  We call that the adversarial system. As counsel, I cannot control what the other side asks.

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  159. Chuck Bird (4,835 comments) says:

    @FES

    “I am coming to the conclusion that you don’t really know what you are talking about.”

    Only lawyers know what they are talking about? There are far too many guilty ones getting off and innocent ones being convicted.

    One solution would be for judges to be better trained. The one I had who will for the time being will remain nameless had trouble with basic mental arithmetic. A compliant to the JCC will probably be a waste of time but I have do so regardless. We will never have a fair system till judges are held accountable. Maybe if Sir Edmond Thomas was appointed to the position people may have more confidence in the system.

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  160. Pete George (23,436 comments) says:

    Another “vague opinion’ for nick.

    Judith, I would certainly agree with your use of the term ‘rape culture’. And you are quite correct when you say that there are varying opinions on exactly what behaviour/beliefs are perceived to be part of a ‘rape culture’.

    That there is a ‘rape culture’ in New Zealand I don’t doubt.

    http://www.kiwiblog.co.nz/2013/11/general_debate_14_november_2013.html/comment-page-1#comment-1234295

    Gets questioned on it by most of Kiwiblog.

    I think you confuse the level of noise here with numbers and with what you want to see. “Most of Kiwiblog” is invisible to most of Kiwiblog.

    It has been evident over the past couple of weeks that most of the blogosphere, including Whale Oil, is at odds with a few vocal deniers here on ‘rape culture’.

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  161. Cato (1,095 comments) says:

    Peter George – can you please define what you mean by ‘rape culture’ so that we all know exactly what you’re talking about?

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  162. Nookin (3,273 comments) says:

    Nickb

    “Between Orlov, Simer and Deliu its no wonder the wheels of justice turn slowly in Auckland!”

    I think you mean “Siemer”. Did you notice that the Supreme Court delivered decisions on 7 of his applications today (separate judgements)? It directed that no more applications be accepted in relation to one set of proceedings on the grounds of abuse of process. Mr Siemer was singularly unsuccessful on every application.

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  163. Cato (1,095 comments) says:

    For example, does the following attitude promote the normalisation of rape:

    “Nobody has the right to forcibly have any sexual connection with you against your will. However, because of the realities of sex, which mostly occurs in private, it can be very hard to prove rape or other claims of sexual abuse. There is no guarantee that we’ll be able to catch someone who hurts you or convict someone we do catch. There are enough bad men who know that and always will be.

    It’s unfair, but on the whole, it will be better for you to never have to go through it. So when you go out, please, please don’t put yourself in the position where someone could take advantage of you or hurt you. Be sensible, don’t get really drunk and stay with your friends at all times. Don’t hook up with anyone you don’t completely trust. ”

    If I said that to a 18 year old about to go out on the town, would I be promoting the ‘rape culture’.

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  164. Pete George (23,436 comments) says:

    No, that sounds like good advice.

    There are various definitions and understandings but this is a commonly accepted summary:

    Rape culture is a concept that links rape and sexual violence to the culture of a society, and in which prevalent attitudes and practices normalize, excuse, tolerate, and even condone rape.

    Examples of behaviors commonly associated with rape culture include victim blaming, sexual objectification, and trivializing rape.

    http://en.wikipedia.org/wiki/Rape_culture

    Another part of rape culture is where people who speak up and confront it are attacked and attempts are made to discredit them to try and protect the culture from being questioned.

    A contentious aspect is where some in society ignore rape culture behaviour. This can give those who are active in rape culture behaviour the impression that their behaviour and opinions are shared or accepted by society.

    We all ignore behaviours we don’t agree with at times, for a variety of reasons. Obviously we can all speak up or take action on everything negative all the time.

    What I think is important is being aware of the need to speak up more and confront the bad behaviour more often, so it becomes obvious to the perpetrators that it is not generally accepted behaviour. And backing up those who speak up. There’s been a big move towards this in the past two weeks.

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  165. Cato (1,095 comments) says:

    @Peter George – can I tell you something with complete honesty? No malace intended but you might take some offence,

    I don’t think people attack you because you’re ‘speaking truth to power’ about your opposition to ‘rape culure’ – I think it’s because you’re so prone to longwinded, priggish speechifying in a way that really, really grates on some people. Myself included. Have you ever noticed how people thumb you down. You’re persona non grata at the Standard, remember. Was that because they support the ‘rape culture’?

    Maybe if we knew what the amazing insights you have that justify your smugness then maybe you wouldn’t get such an earful. But it just seems like you’re some guy in Dunedin with a modem.

    It’s not that you never add value. You’ve clearly got a few brains and a good eye for detail I just think if you didn’t have to puff up everything you say so much you might get through to people instead of just irritating them.

    Take that on board – or don’t (it’s your life).

    Sincerely, Cato.

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  166. Pete George (23,436 comments) says:

    Correction: “Obviously we can’t all speak up or take action on everything negative all the time.”

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  167. Cato (1,095 comments) says:

    I’ll take it you’re sulking now Pete.

    Ta-ra.

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  168. nickb (3,686 comments) says:

    I did indeed Nookin. I thought he had recently been declared a “vexatious litigant” or whatever its called and banned from bringing proceedings in our courts?

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  169. nickb (3,686 comments) says:

    Cato: Bravo sir, well said.

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  170. Manolo (13,518 comments) says:

    Twaddle, crap, rubbish, garbage, bollocks. Sorry to offend anyone, but I must say it: what a sanctimonious whinger P.G. is!

    No ifs or buts, he wins the Oscar for his “hollier-than-thou” performance.

    Will he ever understand that any decent human being abhors rape/rape violence and cannot be but opposed to it? Why his stupid belief NZ men are either rapists or potential rapists?

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  171. Chuck Bird (4,835 comments) says:

    “http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11157257″

    To be fair he is not on his own. But to answer your question people that spout such nonsense do it for one reason and that is to make themselves sound like knight is shining armor.

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  172. Dennis Horne (2,371 comments) says:

    Weihana (4,049) Says: November 14th, 2013 at 4:05 pm
    [Dennis Horne (1,949) Says: November 14th, 10:22 am. The scientific method can be used to approach any rational question.]

    In what way does the legal process not conform with the scientific method? … The jury in this process act as fact finders. This is not scientific as such…

    Looking for an answer? Apply within.

    My turn: In what way does the scientific method not conform with the legal process?

    Ultimately, science is self-correcting whereas the legal system is inward looking and self-believing. Ask Peter Ellis.

    Trick question. In what way is a cat not a dog?

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  173. Pete George (23,436 comments) says:

    I’m not offended Cato, I’ve heard much worse, and that’s more funny than anything.

    My style is my style, I’m not going to try and change to fit with everyone’s suggestions – some complain whatever I do, even when I don’t say anything. No, I wasn’t sulking, I’ve had other things to do.

    I think it’s because you’re so prone to longwinded, priggish speechifying

    That’s funny. Read your own speech again and you might see what I mean.

    I’ve never discussed rape culture at The Standard but probably have a similar view to most of them on that. Like here they have a core of trolls who like to target and attack people just because that’s what they do. But I was banned because I stood up to lprent until he blinked.

    There’s quite a bit of commenting here that I could moan about for various reasons but I don’t see any point. There’s people grizzling at me now much the same as for years. Every day. They must enjoy that but I don’t know why they don’t get bored with it.

    People tend to object most when you say something they don’t want to hear. Or they think you represent something that they want to defeat, anything to foil their frustration at being on a futile political fringe.

    As well as sharing information and debating I come here to challenge myself and challenge others, and follow the blog motto – it’s easy to get various people to react, sometimes it’s better to let them say things for you.

    I’m flattered by all your attention. Perhaps you can examine some of the others before they get jealous.

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  174. Pete George (23,436 comments) says:

    Why his stupid belief NZ men are either rapists or potential rapists?

    I don’t believe that. But that probably won’t stop it from being repeated and repeated for the next few years.

    Irony of the day, being called a whinger by Moanolo. You really are a bit of a dag.

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  175. Johnboy (15,903 comments) says:

    Pete George on “Why I couldn’t be a Defence Lawyer” !

    Is it because you always lose Pete? :)

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  176. Pete George (23,436 comments) says:

    I don’t really think I’ve lost JB. I’ve tried things, I’ve learnt things and I’ve gained quite a bit.

    My eldest daughter thought she wanted to be a defence lawyer when she was at school. So I took her to the district court one day. She didn’t think she wanted to be a defence lawyer any more.

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  177. Dennis Horne (2,371 comments) says:

    F E Smith (2,931) Says: November 14th, 2013 at 4:16 pm

    Horne: A group of investigators would work together to get to the truth,

    Here in NZ we generally call them the Police.

    Then why do we have trials? If the police find the truth…

    Horne: A defence lawyer asks a series of questions and gets some answers he doesn’t like but eventually the witness says “No” to the question “Can you tell if the wound is one minute old or 12 hours old?” Contained in that answer is no information as to how old the witness thinks the wound is. It may be true he can’t tell, because nobody can or he doesn’t have the expertise or the equipment. He’s not telling you he thinks the wound is between one minute and 12 hours old, he wasn’t asked that.

    Either way, your example is itself wrong.

    No, it’s not wrong.

    No, I just think that you appear to have a very high opinion of yourself.

    Wrong again. I just have a very very low opinion of lawyers (not mine, of course) and the legal system generally.

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  178. Johnboy (15,903 comments) says:

    A wise girl PG. You must have brought her up well! :)

    If folks want to get down and grovel with the shit for money they should take up pig farming not the legal profession.

    After a hard day with the pigs you can always clean the shit away in a hot shower! :)

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  179. Weihana (4,496 comments) says:

    Dennis Horne (1,954) Says:
    November 14th, 2013 at 6:48 pm

    Ultimately, science is self-correcting

    What’s the time-frame between Newton and Einstein?

    whereas the legal system is inward looking and self-believing.

    The Lundy case seems to suggest otherwise.

    Ask Peter Ellis.

    Injustice happens. You set an impossible standard to satisfy.

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  180. Weihana (4,496 comments) says:

    Dennis Horne (1,954) Says:
    November 14th, 2013 at 7:26 pm

    F E Smith (2,931) Says: November 14th, 2013 at 4:16 pm

    Horne: A group of investigators would work together to get to the truth,

    Here in NZ we generally call them the Police.

    Then why do we have trials? If the police find the truth…

    So an elite and privileged group of investigators does not have arbitrary power over our freedom.

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  181. Dennis Horne (2,371 comments) says:

    Weihana (4,051) Says: November 14th, 7:45 pm. What’s the time-frame between Newton and Einstein?

    Neither Newton’ mechanics nor Einstein’s Special Theory are wrong.

    $8M so far on Bain and the theory completely wrong.

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  182. Dennis Horne (2,371 comments) says:

    @Weihana. We have trials because the police build a case to convict a suspect, their underlying philosophy is not to find the truth, although they may find it.

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  183. ross69 (3,652 comments) says:

    As counsel, I cannot control what the other side asks.

    I think you can. You can advise your client to say nothing. Seeing as they don’t have to testify, the other side cannot question the defendant.

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  184. Weihana (4,496 comments) says:

    Dennis Horne (1,957) Says:
    November 14th, 2013 at 8:24 pm

    @Weihana. We have trials because the police build a case to convict a suspect

    That police build cases does not explain why courts must have trials to assess those cases. The reason we have trials is so that the state does not exercise arbitrary power: the rule of law, not men.

    …their underlying philosophy is not to find the truth, although they may find it.

    You’ve made this point clear, I just don’t see you’ve provided much of a justification for it.

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  185. Dennis Horne (2,371 comments) says:

    @Weihana. I didn’t introduce “police” as the answer, Smiffy told me that’s what I meant. suggested something like examining magistrates looking for the truth.

    Justification? Ask Scott Watson. (Goodnight)

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  186. Nostalgia-NZ (5,097 comments) says:

    There is merit in a scientific approach, in fact we have one now. The problems arise when the human element emerges to ‘demand’ the science must fit, or does fit an opinion. I guess it’s the same as arguing the length of a string. In 3 topical and controversial cases now ‘on the books:’ in Bain, science provides examination of the hands of the 2 suspects where one comes up short, in Lundy and Watson science provides no conclusive weight as to their guilt, meaning therefore that the are innocent. Which raises the lack of accepting science and therefore accepting the propensity toward opinion over fact, it’s the ‘human’ element at fault, not the scientific one. The evidence of this is where people must argue using such phrases as Binnie the ninny, or become grotesquely fixated on the death of Amber, or that Olivia and pinpoint Mark Lundy or Scot Watson to calibrate that fixation and indeed, fear. There has been a classic example of this again recently where debates about Mark Lundy’s guilt or innocence were measured on these boards by posters saying that ‘they didn’t know’ of anyone else (read here, apart from Lundy) that would kill his wife and daughter – a statement of bizarre magnitude, because it follows therefore that because ‘they didn’t know’ then Lundy must be guilty.

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  187. Weihana (4,496 comments) says:

    Dennis Horne (1,959) Says:
    November 14th, 2013 at 9:29 pm

    @Weihana. I didn’t introduce “police” as the answer, Smiffy told me that’s what I meant. suggested something like examining magistrates looking for the truth.

    What’s the difference?

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  188. F E Smith (3,304 comments) says:

    What’s the difference?

    Nothing, that is the problem with his responses, none of which have answered either your or my questions.

    ross69,

    I think you can. You can advise your client to say nothing. Seeing as they don’t have to testify, the other side cannot question the defendant

    My client does not have to take my advice.  But that wasn’t quite what I was meaning; I cannot control what my opposing counsel asks any witness.  My client can only control whether they give evidence, but no-one else.  If he/she chooses to give evidence, then I cannot control what prosecution or co-accused’s counsel asks them.

    But isn’t it interesting that in just over 100 years we have gone from not allowing the accused person to give evidence to crying foul if they don’t?

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  189. Scott Chris (6,036 comments) says:

    In what way does the legal process not conform with the scientific method?

    In that the requirement and incentive to be objective is absent from the adversarial legal process.

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  190. Chuck Bird (4,835 comments) says:

    Lawyer in gun over affair with teenager

    By Matthew Theunissen, Patrice Dougan
    5:30 AM Friday Nov 15, 2013

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11157386

    It certainly take a bit to nail one. As far as I know their is no hard and fast rule against a lawyer having sex with a client. I am sure some apologist lawyer will correct me if I am wrong.

    I know of lawyers who take advantage of distressed woman who come to them with their matrimonial problems.

    I have also heard of Council for child bonking the mothers and the fathers wonder why the CfC is so much pro the mother.

    There needs to be hard and fast rules against this as well as lawyers borrowing money off clients and other things like representing more than one client.

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  191. alex Masterley (1,507 comments) says:

    Chuck,

    Stand corrected.

    Having sexual relations with a client, even on a consensual basis is a no-no.

    I do not propose to comment on what the outcome will be for the individual mentioned in this story as the case is still proceeding. I can say from my own experience as a member of a complaints and standards committee the disciplinary tribunal takes a very dim view of such activities.

    The rules of conduct for lawyers are contained in the Lawyers and Conveyancers act and the “client care rules”. The later set out the minimum requirements for conduct of a lawyer. Google them – read them.

    Acting in situations where there is a conflict of interest is prohibited as is borrowing money from a client (except trading banks) without the client obtaining independent legal advice.

    Breach of those rules is either unsatisfactory conduct or misconduct depending on the seriousness of the breach.

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  192. Weihana (4,496 comments) says:

    Scott Chris (5,288) Says:
    November 15th, 2013 at 12:24 am

    In what way does the legal process not conform with the scientific method?

    In that the requirement and incentive to be objective is absent from the adversarial legal process.

    I don’t agree. The adversarial process goes to great lengths to ensure, as much as possible, decisions are reached objectively. You seem to confuse the individual zealous representation of each side with the process overall. The rules of evidence ensure that only evidence with probative value is admitted and that such probative value is not outweighed by prejudice. Jurors are selected in a manner to ensure they are not related to the case and so their decision is not influenced by personal bias. Judges must be impartial to ensure the law and the rules of the court are applied without favour to one side. There are a myriad of principles which apply to a case that exist with the intention that, ultimately, a decision is reached objectively.

    Scientists, I think, are in general fairly good at applying critical thinking to be objective. But it is surely naive to think that because someone acts as a scientist that their conclusions are therefore objective because the scientist proclaims that he was being objective. The fact is scientists are subject to the same human flaws as anyone else. Does anyone really think they do not become zealous advocates of their own beliefs? Indeed this is why we have academic journals with peer review so that others without a vested interest can ensure the findings are robust. The criminal process is analagous and the fact that it acknowledges, and even requires, that each side be zealous is their representation does not change the fact that the decision of the court/jury is expected to be reached objectively: based on the evidence presented with the most compelling argument regardless of personal feelings or bias.

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  193. Dennis Horne (2,371 comments) says:

    Weihana (4,054) Says: November 14th, 2013 at 11:02 pm
    Horne: I didn’t introduce “police” as the answer, Smiffy told me that’s what I meant. suggested something like examining magistrates looking for the truth.
    What’s the difference?

    Police want a conviction and examining magistrates want the truth.

    F E Smith (2,940) Says: November 14th, 2013 at 11:12 pm
    What’s the difference?

    Nothing, that is the problem with his responses, none of which have answered either your or my questions.

    Different philosophy altogether. Reasoning alone doesn’t make science.

    An example: Do juries hear everything about the case, or is some information withheld?

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  194. Dennis Horne (2,371 comments) says:

    Weihana (4,055) Says: November 15th, 2013 at 9:57 am

    I’ll read this and send an answer later. To which planet?

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  195. Rowan (2,074 comments) says:

    Nos
    Agree pretty much with your thoughts, In these cases people seem to have pretty much decided on the outcome they desire (i.e. that the accused is guilty) and selected the evidence to fit there ‘guity’ mindset. Mike White goes into it quite well in his book on the Scott Guy case.
    In the last chapter White goes into ‘leaps of logic’ and shows how illogical and weak the case against EM really is, i.e. for Ewen to be the killer he needs to be standing outside Scotts gate 1.8 km away at around 4.45am with the farm shotgun (which is incapable of firing 3 shots in succession) and getting back home and cleaned up and be ready for milking at 5am all without being noticed by anyone.
    This can equally apply to the Lundy case and the Watson case quite well because there is no alternative killer put forward but you need to place Lundy in Palmy on that night which is rather troublesome, and also to place Ben and Olivia on Scotts boat despite it or Scott not being identified by the immediate witnesses (Guy Wallace and his passengers).
    In the Bain case Davids ‘guilt’ seems to have been decided by the ‘witch sniffers’ based on a weak exoneration of Robin but in order to work needs to explain how Robin stood cooperatively while his killer held the gun pointed upwards in direct contact with his head and shot him. The ‘default’ analogy doesn’t work as the case needs to stand up on its own merits which none of these do.

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  196. wikiriwhis business (3,883 comments) says:

    “why do you spend so much time here. You have your own blog! You’re coming up to 20,000 comments.”

    ROFL

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  197. Weihana (4,496 comments) says:

    Dennis Horne (1,961) Says:
    November 15th, 2013 at 11:40 am

    Police want a conviction and examining magistrates want the truth.

    The police don’t have to prosecute and in many cases they don’t. They would say as much as anyone that they want the truth and don’t want to prosecute innocent people. Good intentions are not enough.

    Different philosophy altogether. Reasoning alone doesn’t make science.

    An example: Do juries hear everything about the case, or is some information withheld?

    If a scientific paper is submitted to an academic journal does the journal evaluate the author’s race? religion? taxes? or just the study?

    Information is withheld from juries because it undermines an objective outcome of the case. To do otherwise would be contrary to scientific principles.

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  198. F E Smith (3,304 comments) says:

    Do juries hear everything about the case, or is some information withheld?

    The general rule is that if it is relevant then it is able to be put in front of the finder of fact.  So the answer is yes, a jury will hear everything relevant to the case.  Something is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

    There are exceptions to protect the public from unlawful and unreasonable evidence gathering, and to ensure that most (but not all) hearsay is excluded, the first for public policy reasons and the second because long experience has shown hearsay to be very unreliable.

    Police want a conviction and examining magistrates want the truth.

    You do know that an examining magistrate does not decide the case, don’t you? Examining magistrates direct police investigations and ensure that there is a prima facie case against an accused.  Truth is not the test that they apply, evidential sufficiency is.

    Once an examining magistrate has found that there is sufficient evidence to prima facie show that a suspect has a case to answer, the matter is then sent for trial, almost always conducted via the adversarial system, and always involving prosecution and a defence lawyers.

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  199. alex Masterley (1,507 comments) says:

    FES, Myth busting?

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  200. F E Smith (3,304 comments) says:

    Myth busting?

    I wish, alex!  Would that I could use explosives in making my point!!!

    Sadly, I think that with Dennis I will have little success, even with the estimable Weihana also arguing the point.

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  201. Dennis Horne (2,371 comments) says:

    @F E Smith. No, juries hear what is selected for them. Isn’t this the basis that the Privy Cuncil ordered a retrial for Bain, after the second visit? The Toffs though a jury might have reached a different verdict had it heard the rumours. I hope I’m not misrepresenting what you said about this case – along the lines you don’t care about the reality, only the law…

    Macdonald. Great pains taken the jury didn’t hear he is a complete arsehole. Don’t think the police looked at the farm shotgun immediately (Examining magistrate.)

    Yes, I do know, in France anyway, an examining magistrate leads the investigation and a trial may follow. Ping pong with a jury?

    You are dissatisfied with my answers. Do you expect me, after a few minutes thought, to roll out a complete system?

    All I can say is, I am absolutely sure a panel of a few scientists would have got to the bottom of the Bain business in days. This case illustrates the merry dance you lawyers lead us, and still get the wrong answer.

    Scott Watson. You don’t think an examining magistrate would have told the plod to look for the yacht the young people were seen climbing aboard? And told them to get knotted about Watson’s boat going up and down the channel at the speed of a fizz boat?

    Lundy. What nonsense about time of death. Even I know using stomach contents is inadequate. More money down the drain. Didn’t Hislop say on TV he didn’t concern himself with guilt/innocence. And you call this attitude science.

    What, did you read a book about a book about science, once?

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  202. Johnboy (15,903 comments) says:

    A FESter of much huge renown
    Attempted to knock Dennis down
    Jurisprudence most wise
    Just increased the rise
    Of a fellow who talks like a clown

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  203. F E Smith (3,304 comments) says:

    No, juries hear what is selected for them. Isn’t this the basis that the Privy Cuncil ordered a retrial for Bain, after the second visit

    No, both of those points are incorrect.

    The Toffs though a jury might have reached a different verdict had it heard the rumours.

    No, they said (to paraphrase) that the trial judge should have allowed the excluded evidence as it was relevant.  What the jury made of it was the jury’s problem.

     I hope I’m not misrepresenting what you said about this case – along the lines you don’t care about the reality, only the law…

    Yes, you are misrepresenting me.  I have never said that I don’t care about the reality, only the law.

    Macdonald. Great pains taken the jury didn’t hear he is a complete arsehole. Don’t think the police looked at the farm shotgun immediately (Examining magistrate.)

    Yep, because none of those charges in any way proved or disproved whether Macdonald murded Scott Guy.  I don’t know what you mean by putting ‘(Examining magistrate)’ in there, because it isn’t relevant.

    You do know that examining magistrates are lawyers, don’t you?  That in the civil system they become judges straight out of law school?  That your examining magistrate might have just graduated from law school last year?

    Do you expect me, after a few minutes thought, to roll out a complete system?

    Yes, I do.  You are telling us all that you have a better way involving the scientific method, so come on, tell us what it is.

    All I can say is, I am absolutely sure a panel of a few scientists would have got to the bottom of the Bain business in days.

    Bollocks.  No, they would not have.  But answer me this: if I have a client who is accused of a rape allegedly committed 20 years ago, and he says he has no memory of ever having intercourse with the complainaint, and the only evidence is that of the complainant, how does your scientific method determine the truth of whether the rape happened or not?

    Scott Watson. You don’t think an examining magistrate would have told the plod to look for the yacht the young people were seen climbing aboard? And told them to get knotted about Watson’s boat going up and down the channel at the speed of a fizz boat?

    So you think that an examining magistrate, a lawyer, would have done a better job of Watson than the Police?  Cheers for the vote of confidence in my profession. 

    The Police were aware of it, said they looked for it, decided it didn’t exist.  Do you think that they are lying? Or just mistaken? 

    Lundy. What nonsense about time of death. Even I know using stomach contents is inadequate. More money down the drain. Didn’t Hislop say on TV he didn’t concern himself with guilt/innocence. And you call this attitude science.

    I don’t call it science.  Please don’t put words in my mouth. 

    What, did you read a book about a book about science, once?

    You really are just an abusive troll, aren’t you?  I don’t know what the above has to do with anything said so far today or yesterday, other than you being unnecessarily abusive.  That said, can’t you actually show how your scientific method would work?  I am waiting for you to tell us next who killed the Crewes.  After all,  you tell us that scientists could work these things out, so, given you are obviously a genius at this, why haven’t you gone to the Ministry of Justice with your new method?  Come on, there are investigations waiting for you…

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  204. Rowan (2,074 comments) says:

    Yes McDonald was an arsehole but the way the system dealt with him was exactly as it should, He is currently serving a 5 year sentance for killing the calves and the other crimes he committed, there was however no evidence linking him to the murder, and quite a bit to suggest he wasn’t the killer. The crimes committed against the Guys property some 18 months earlier were not of relevance to the shooting of Scott so were rightfully excluded from the jury.
    Thoughts FES?

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  205. Dennis Horne (2,371 comments) says:

    @Weihana: Information is withheld from juries because it undermines an objective outcome of the case. To do otherwise would be contrary to scientific principles.

    The first thing a scientist would do is a review of the literature, get the background. Not work deny himself stuff.

    I am really too tired to go back and read your comments,sorry, but didn’t I read you likened the jury system to peer review? A peer review is conducted by people who know something about science and the particular topic (peers). It’s to ensure there are no obvious flaws in the design and conclusions to protect the journal and the reader. What does a jury know about anything? Does it need to justify its conclusions?

    As I said earlier, the jury system started when populations were small and in all probability some jurors knew the accused and witnesses. The system probably worked better then. I would believe most people I know. The present system is impersonal but not science or anything like it.

    Our legal system is little more than a theatre with the defence appealing to authority in an attempt to bamboozle the jury.

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  206. Rowan (2,074 comments) says:

    When science comes back with the conclusion that you don’t like it is ‘flawed’ and ‘wrong’, and illustrates the point I made at 11.48 regarding the ‘leaps of logic’ required in order to sustain a guilty verdict, that are conviently ignored in the ‘mountain of evidence’ that exists only in the mind of the individual who ‘knows’ what happened

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  207. Dennis Horne (2,371 comments) says:

    @F E Smith. You really are just an abusive troll, aren’t you? I don’t know what the above has to do with anything said so far today or yesterday, other than you being unnecessarily abusive. That said, can’t you actually show how your scientific method would work? I am waiting for you to tell us next who killed the Crewes. After all, you tell us that scientists could work these things out, so, given you are obviously a genius at this, why haven’t you gone to the Ministry of Justice with your new method? Come on, there are investigations waiting for you…

    Sorry, I read only this paragraph; I am exhausted tonight. Obviously you are upset and angry.

    Aren’t you the lawyer who advised Chuck Bird to get a lawyer to sue a penniless crooked lawyer who owed him money, now impossible to recover because the high court judge didn’t record his instruction to the defendant not to sell his house, and he did? Ever heard the expression “Throwing good money after bad”?

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  208. Nostalgia-NZ (5,097 comments) says:

    ‘The crimes committed against the Guys property some 18 months earlier were not of relevance to the shooting of Scott so were rightfully excluded from the jury’

    Rowan, I think they were relevant but their likely prejudicial bias against MacDonald outweighed that relevance. It was a very good decision.

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  209. Judith (8,534 comments) says:

    @ Dennis Horne (1,964) Says:
    November 15th, 2013 at 9:17 pm

    Chuck was out of his depth. The argument he presented on here made it clear he did not have enough understanding of the process he was taking part in. If he wanted to increase his chances to be successful in his case, then obtaining someone that was familiar with the process was his best opportunity.

    Just like another friend of yours is about to learn – every profession has it’s place in society. There are few times when one can ‘manage’ without expertise, however, the Court room is not one of them, not unless you wish to increase the odds that you will lose. Just as a brain surgeon must understand the structure of the brain in order to remove a tumour, a person that requires defense in Court, needs to have the support of someone that also understands the structure.

    For some stupid reason people get the ‘romantic’ idea from popular media that the courts are idea places to do renditions of Perry Mason – they aren’t. I’ve never seen a lay person defending themselves reach any sort of conclusion that they have been happy with.

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  210. Johnboy (15,903 comments) says:

    Folks named MacDonald have always been bloody dodgy bastards. :)

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  211. Rowan (2,074 comments) says:

    Science did actually uncover the truth in the Bain retrial regarding the fingerprints where it was shown that crown expert was a lying piece of crap and had perjured himself in the 1995 trial by lying to the jury so ‘they would understand better’ what he was telling them.

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  212. F E Smith (3,304 comments) says:

    Aren’t you the lawyer who advised Chuck Bird to get a lawyer to sue a penniless crooked lawyer who owed him money,

    Nope, I simply advised him to get legal advice, because I wasn’t going to give him any via this forum.  For some reason Chuck thinks it was because I didn’t know what I was doing and didn’t do a Cost-Benefit Analysis for him.  Why he would think anything like that is beyond me.

    But, in general, getting a lawyer to conduct a law suit on your behalf is generally a better idea than doing it yourself.  I would point out that I was not the only lawyer here on KB to advise him to seek legal advice.

    That all said, I still have no idea what relevance any of that has to you not providing a template for your scientific way of deciding truth.

    I am neither upset nor angry, but you simply appear to be living in a world of your own, where if people don’t agree with you then you abuse them.

    However, when you say

    A peer review is conducted by people who know something about science and the particular topic (peers). It’s to ensure there are no obvious flaws in the design and conclusions to protect the journal and the reader. What does a jury know about anything? Does it need to justify its conclusions?

    you appear to be simply making an argument for the abolition of juries and the use of judge-alone trials at every stage of the system.  Nothing yet that you have written in any way can be said to be better, or even as good as, what we currently have.

    I think the problem is that you just don’t understand what you are talking about.

    Rowan,

    re your 9.01pm, I agree with you, so have nothing to add!

    Nostalgia,

     re your 9.28pm comment, I disagree in that I don’t think that they were relevant (they did not tend to prove whether or not Macdonald actually did kill Scott Guy), but I agree that even if they were they would have been too prejudicial to be admitted.  Either way, the decision, as you say, was correct.

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