A Criminal Cases Review Commission

January 4th, 2014 at 8:18 am by David Farrar

Stuff reports:

Millions of taxpayers’ dollars could be saved by setting up an independent body to investigate miscarriages of justice currently dealt with by a “clumsy and blunt” court process, Canterbury University’s dean of law says.

Chris Gallavin and Labour justice spokesperson Andrew Little have renewed a decade-old debate, calling for the establishment of a Criminal Cases Review Commission.

I’m actually a supporter of such a Commission. It was the Peter Ellis case that convinced me it was necessary.

Little said the current process for dealing with alleged miscarriages of justice was “very ad hoc and there’s no dedicated resources to it”.

He quoted research which showed there were about 12 cases of injustice in New Zealand each year, but only one or two were picked up in through the prerogative of mercy process.

As I said, I support such a Commission. But what isn’t clear is whether Labour is promising to establish one, or is just calling for this Government to introduce one. There is a significant difference. If it is the former, then what are the proposed details of it, what will it cost, and what will its scope and powers be? Much harder to do the detailed work, than to just say I think this is a good idea.

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113 Responses to “A Criminal Cases Review Commission”

  1. duggledog (1,505 comments) says:

    If Labour has anything to do with it, the cost will be irrelevant. The Principle is everything

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  2. peterwn (3,239 comments) says:

    An outcome is virtually every serious conviction would be referred to the Commission for review. Would the Commission also review affirmative defences especially self defence / defence of others? In the event of a hung jury, should the Commission assess if there should be a re-trial?

    A step I would like to see is an alternative ‘inquisitorial’ trial system at the election of the accused (but not like Simon Power’s proposed inquisitorial method for crimes such as sexual violation etc). The accused would be required to face questioning by the prosecutor or court. Court would be headed by three total of judges/ lay assessors. If it functions properly, an accused who knows that he or she is innocent on the facts would have nothing to fear, the case could collapse early on once material evidence is assessed. Because those presiding are ‘professionals’ they can hear and consider evidence which is normally kept away from a jury. With no jury, they would also be able to rip into the prosecutor, witnesses or accused if their bullshit-o-meters are flashing.

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  3. marcw (243 comments) says:

    And if it’s Andrew Little, it’s not likely he will get his hands dirty doing any actual work to create a PM Bill or anything that would be expected to take more than “calling for the establishment of a Criminal Cases Review Commission.”

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  4. ross69 (3,652 comments) says:

    I think costings have been done and the cost isn’t huge. Phil Goff was a yes-minister when Justice Minister. Officials told him that a CCRC was a bad idea and he swallowed their bad advice. The same officials said Peter Ellis’ conviction was safe.

    Officials at the Justice Ministry have this odd idea that a CCRC will uncover many miscarriages of justice which will reflect badly on the justice system and consequently erode public confidence in the system. They don’t seem to realise that public confidence in the system is probably at an all time low with cases like Lundy, Watson, Dougherty, Bain, Ellis, etc.

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  5. Nostalgia-NZ (5,099 comments) says:

    ‘If it functions properly, an accused who knows that he or she is innocent on the facts would have nothing to fear, the case could collapse early on once material evidence is assessed. Because those presiding are ‘professionals’ they can hear and consider evidence which is normally kept away from a jury.’

    How would that work if suspect DNA evidence, gaol house ‘confession’, planted evidence, non disclosure, behind the scenes deal with witnesses etc were factors. All the type of events that were exactly what Thomas and Ellis for example would have had to ‘fear.’

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  6. flipper (3,952 comments) says:

    Just look at the UK and Scottish models.

    All the bullshit about every guilty verdict being investigated is plainly that – cold crap. The actual number seriously examined is relatively small….but they are doozies. NZ has its own set of doozies, but in the interests of AVODING A DIVERSIONARY argument, I refrain from mentioning any, apart from Peter Ellis which is an appalling case, and a slight on our the political/judicial/prosecutorial system. Stannaway should be in stocks.

    But back to the point. The Law Comm has already done all the work on this. Doug Graham, however, accepted advice from the self-interested MoJ, and the smart arses in CL , …. …and recommended against it at Cabinet.

    Just dust off the LC report, and upgrade/date…/./and get on with it.

    The cost? Bugger all. And, in any event, what is the cost of State inflicted injustice? Of course such costs are fine – until they are imposed ion family and friends. .

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  7. ross69 (3,652 comments) says:

    Peterwn,

    Where do you get the idea that every serious conviction will be referred to a CCRC? It is nonsense. Believe it or not, but some offenders plead guilty, which suggests it’s unlikely they would be appealing. The numbers that would appeal are not huge and neither is the cost.

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  8. ross69 (3,652 comments) says:

    In Scotland the cost is about $2 million per annum to run their CCRC. On average, it hears about 125 cases each year. About four cases are found to be wrongful convictions.

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  9. peterwn (3,239 comments) says:

    ross69
    1. You are being unfair to Justice Ministry officials. It is no skin off their nose that there may have been miscarriages of justice.
    2. I think it is pretty damn obvious that defence lawyers will want to run all serious convictions through such a commission in the hope of obtaining an acquittal. This could be resolved by making it a requirement to seek leave from the trial judge or the Commission itself to put a case before the Commission.

    More general point – should the Commission be subject to judicial review? possibly not, since the judiciary by the time the case reaches the Commission would have had a good go at it.

    One advantage of the Commission – on finding of fact, the decision of the ‘first instance’ court is final and higher courts are loathe to re-investigate facts unless specifically asked to by the Government (as occurred in the David Bain case). The Commission would have no such inhibition – presumably it would be entitled to review the ‘raw’ evidence and if need be re-call witnesses.

    One issue to be resolved – should an accused be allowed to give evidence to the Commission after choosing to remain silent in court. An appeal court will not grant a re-trial because the accused changes his mind about giving evidence, so the accused (via a fresh lawyer) tries to argue that he was incompetently advised not to give evidence – appeal judges almost invariably do not buy this argument.

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  10. flipper (3,952 comments) says:

    Peterwn….

    Herrings, all.

    Go look at the UK.
    Unless I am 100% wrong, the UK model investigates and decides on the merit of the case, and then, if it believes there is justification, goes to the Court of Appeal. It is the C of A which makes the decision – not the CCRC.

    They have an excellent batting average. Simple.

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  11. anticorruptionnz (212 comments) says:

    There is also a further issue which has never ( officially ) been considered and that is the use of the civil jurisdiction to pervert the course of justice – particularly in matters of public interest .Its called Slapp Strategic lawsuit against public participation

    What happens is the potential accuser ( whistle blower ) is taken to court on a civil matter such as harassment or defamation, this will keep the matter before the courts and through the lesser and often the lack of requirement for evidence (other than the uncorroborated evidence of the person covering up ), a verdict is obtained which effectively turns fiction into fact.

    The criminals have the funding to do this and the innocent party .. the victim in most cases , is silenced very quickly.

    The civil jurisdiction has he ability to financially cripple an innocent part financially, emotionally and destroy their reputation the criminal walks free. The Authorities rely on the decisions of the court rather than conduct an investigation into the public fraud – it is called “economy” it certainly does not serve the public and it allows fraud to perpetrate.

    gone are the days where we had service and public interest was paramount. It is in the public interest that we have a safe legal system and the only way we can have that is through accountability to the truth . Currently you have more chance of winning lotto than being prosecuted for perjury.

    What we need is an independent Commission against corruption, since corruption is at the root of obtaining false convictions/ decisions , this body could easily take on the tasks of investigating any matter in which justice is perverted by any means.

    I have a petition already going I will have it presented this year if there is a MP who is willing to present it.

    it is downloadable at http://www.anticorruption.co.nz/petition-for-an-independent-commission-against-corruption.

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  12. Rowan (2,074 comments) says:

    Definitely needed, cases like Watson and Teina Pora come to mind where the accused is rotting in jail where there is no case against them and it is highly unlikely they had any involvement at all in the crime they are there for.
    Our current system is all about ‘proving’ a case against an individual, and this is generally won by the which side has the best lawyers, truth often seems irrelevant or secondary to this, especially where the accused is unlikely to be guilty.

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  13. Rowan (2,074 comments) says:

    Peterwn

    “should the Commission be subject to judicial review?”
    Do you mean by the prosecution appealling the right for the case to be reheard by the courts before it gets there? No
    The courts and/or a retrial jury can decide if the new evidence put forward has no merits and throw it out or reconvict. This is basically saying to me that the crown be given the right to appeal against the decision to review the case by the courts. Why should they?

    “the decision of the ‘first instance’ court is final and higher courts are loathe to re-investigate facts unless specifically asked to by the Government (as occurred in the David Bain case).”

    Do you mean by the Privy Council, government had no intervention in the Bain case it was quashed by the PC or are you referring to the AA Thomas case which was quashed by Muldoon.

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  14. ChardonnayGuy (1,197 comments) says:

    I’m glad to see that you support a criminal cases review commission, David, and I do take your point about costing such a commission’s operational cost. However, surely such an institution would also save the costs of maintaining innocent parties within penal institutions, and therefore be a fiscal benefit to the taxpayer.

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  15. stephieboy (2,707 comments) says:

    flipper (2,913 comments) says:
    January 4th, 2014 at 9:08 am

    You will likely beware though that UK CCRC did not find in favour of Jeremy Bamber a case that has chilling parallels to the Bain murders.

    http://www.theguardian.com/uk/2012/apr/26/jeremy-bamber-murder-appeal-thrown-out

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  16. Nostalgia-NZ (5,099 comments) says:

    “chilling parallels’ more dingbats land.

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  17. stephieboy (2,707 comments) says:

    Nostalgia-NZ (4,253 comments) says:
    January 4th, 2014 at 9:08 am

    Phew.! Am glad you omitted to mention David Bain..
    Maybe at last the point has been driven home as his compo claim is bogged down in the appeals process.!Sorry Nostalgia but you re obviously unfamiliar with the Bamber case .?
    Bamber attempted to frame his step sister.!

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  18. Nostalgia-NZ (5,099 comments) says:

    I don’t give a stuff about the Bamber case, or about what Mrs Laney might have said that wasn’t in evidence, what Aunt Fanny reckons about dog shit, sex with goats or how depressed dear leader might be. Witchcraft, heckling, cackling, frog legs and bat wings are bloody boring. Yawn.

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  19. flipper (3,952 comments) says:

    Stephie….
    Not looked at that ….BUT..,…

    In the context of this thread it is irrelevant, as is discussion on individual cases, except Ellis, Pora, Watson. and now Lundy/Grantham, the latter by placing the Crown prosecution in the dock.

    Oh wait. The PC has already done that, but as usual the Crown ignores its own crimes in such cases, because they made the decision to prosecute in the knowledge that their “scientific evidence” was fatally flawed.

    So “YES”. Put the Crown in the dock, and the CL prosecutors made subject to CCRC investigation – and prosecution before the CofA. . :-).

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  20. Rowan (2,074 comments) says:

    Stephie
    What point are you trying to make? So one specific case was rejected by the UK CCRC? whats the point? not a lot of simalarity either.

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  21. stephieboy (2,707 comments) says:

    Flipper your outburst re “crown ignores its own crimes etc…”
    Are you suggesting such a commission will automatically absolve any appellant just because they or you may think “… they made the decision to prosecute … etc.”
    The Bamber case is highly relevant in that UK CCRC do not operate under your kind of assumptions, namely a tendency towards predetermination and bias.
    Someone like Lundy might a appeal to such a body but what if as in the Bamber case they find against Lundy.?
    What then.?

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  22. Jack5 (5,014 comments) says:

    Perhaps it’s time to review whether we should have juries at all.

    They may not fit an increasingly diverse society.

    It is folly to think our tradition and institutions from a monocultural or bicultural heritage still must suit the emerging multicultural society which we chose, after all, with the necessary wide and deep discussion, political debate and polling.

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  23. flipper (3,952 comments) says:

    stephieboy (243 comments) says:

    January 4th, 2014 at 11:01 am

    Flipper your outburst re “crown ignores its own crimes etc…”
    Are you suggesting such a commission will automatically

    *************

    No “outburst”, and you know it.

    Criminality should be prosecuted whenever it occurs, irrespective of the felon.

    But felonies, by commission or by omission, by those sworn to uphold the law are worse than others. And you well know that.

    This thread is very simple – A CCRC.
    So take your trolls and stick them up your goat.

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

    An outcome is virtually every serious conviction would be referred to the Commission for review.

    That is straight out wrong.  The English experience shows it to be wrong.

    A step I would like to see is an alternative ‘inquisitorial’ trial system at the election of the accused (but not like Simon Power’s proposed inquisitorial method for crimes such as sexual violation etc). The accused would be required to face questioning by the prosecutor or court.

    No accused person would elect it.  Suggesting an inquisitorial anything is pointless when you have the potential for the judges being the least experienced trial lawyer in the room.

    If it functions properly, an accused who knows that he or she is innocent on the facts would have nothing to fear,

    That is so wrong-headed that I do not know where to begin on it.  Even innocent people can come across looking bad in the witness box.  An experienced prosecutor can make a fool out of almost anyone.  Innocence is no guarantee of a good performance by a defendant.  And so on.

    the case could collapse early on once material evidence is assessed.

    You must not live on Planet Earth.  The Peter Ellis case stands against that view, and you appear to think that prosecutors do not believe their own propaganda.

    With no jury, they would also be able to rip into the prosecutor, witnesses or accused if their bullshit-o-meters are flashing.

    What, like they way that they don’t do that in what used to be called summary jurisdiction?  Get real.

    You are being unfair to Justice Ministry officials. It is no skin off their nose that there may have been miscarriages of justice.

    Hey, peterwn, I have a bridge to sell you up in Auckland.  It is a big one but it is going cheap.  Of course the MoJ have an interest in convictions not being overturned.  If they didn’t then Peter Ellis would not still have convictions against his name.

    I think it is pretty damn obvious that defence lawyers will want to run all serious convictions through such a commission in the hope of obtaining an acquittal.

    No, that would be wrong as well. Please don’t take your view of defence lawyers from US television shows.

    Now, on point, a CCRC is a great idea and good on Chris for giving his backing to it.  I have no faith in Little’s involvement, given how Ellis has been treated by both Labour and National, but if the law schools are going to support it then it is a good start. 

    Oh, and flipper,

    Oh wait. The PC has already done that, but as usual the Crown ignores its own crimes in such cases, because they made the decision to prosecute in the knowledge that their “scientific evidence” was fatally flawed.

    So “YES”. Put the Crown in the dock, and the CL prosecutors made subject to CCRC investigation – and prosecution before the CofA. . :-).

    I can tell you that any prosecutors who become the subject of criminal charges as a result of their actions in a courtroom will be protected by the Solicitor-General by a stay of the prosecution. 

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  25. backster (2,142 comments) says:

    This is just another left wing bureaucratic idea brought out every holiday period by socialist academics and gratefully embraced by their media to fill the news vacuum. As for a Commission saving money, that would be one for the Guinness book of records.

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  26. flipper (3,952 comments) says:

    @ FES….
    Good stuff, and well said.

    ***

    So “YES”. Put the Crown in the dock, and the CL prosecutors made subject to CCRC investigation – and prosecution before the CofA. . :-).

    I can tell you that any prosecutors who become the subject of criminal charges as a result of their actions in a courtroom will be protected by the Solicitor-General by a stay of the prosecution. ”

    Precisely the point. They are a protected species. And that is why Morris appointed personal legal counsel. The SG and C were not permitted to intervene in the AAT RC.

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  27. Rowan (2,074 comments) says:

    FES

    Whats your take on the following actions of the crown illustrated at the Bain retrial.
    The crown calling further pathologists to discredit the evidence of Dr Dempster that gunshot wound to Robin Bains temple was close contact.
    They knew that Dempster was right and that it was close contact, this was in Hentschels notes re blood in the barrel, but deliberately tried to put forward the alternate view that it wasn’t.
    Their argument wasn’t very successful and it was shown up for what it was, remembering that this was their only piece of ‘evidence’ that he ‘didn’t’ commit suicide.

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  28. flipper (3,952 comments) says:

    : Thumb up 2 Thumb down 0
    backster (1,935 comments) says:

    January 4th, 2014 at 11:17 am

    This is just another left wing bureaucratic idea brought

    ******

    If you believe that you are clearly as thick as pig ‘s excrement. Dummy!

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

    “Suggesting an inquisitorial anything is pointless when you have the potential for the judges being the least experienced trial lawyer in the room.”

    If you read what Peter said he mentioned lay assessors. Many of us are more concerned about the correct verdict than that all the correct procedures are followed. Highly qualified lay assessors in fields other than law may help to achieve that.

    BTW – I am well on my way to have the ridiculous and malicious counterclaim thrown out. That which has not be withdrawn already. I am pretty sure I will be awarded most if not all of what I claim. But getting blood out of a stone will be the problem. That is why I did not waste money on employing a lawyer.

    However, even if I get an excellent ruling I will not hold my breath expecting you to acknowledge you were wrong. It is not in the nature of lawyers to admit they are wrong except when compelled to by a judge.

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

    flipper,

    I have no problem with it.  It is entirely with the rights of both sides to try to show the opposing side’s expert is wrong.  Our rules try to ensure as much agreement as possible between experts (so the US idea of hired gun experts doesn’t really apply in NZ) but sometimes there is genuine disagreement.

    I have seen cases where the opposite has happened so I have no issue with it.

    And Backster is an ex-cop, so he would be against anything that would overturn convictions.

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  31. anticorruptionnz (212 comments) says:

    The easiest solution is to make every one accountable to the truth , perjury should not be tolerated and lawyers should be officers of the court and should not be using the law to circumvent the law or to conceal crime .

    The law as it is written would work it simply relied on truth, when there is no truth there is no justice. The penalty for straying from the truth should be so great and the chance of being caught out so real that that it encourages those, who the court process relies upon, to act in an honorable and crebile manner.

    The outcome of an investigation is determined by the the evidence , but so often we prefer to grab the nearest person and mold the evidence to fit.

    Could you be the next person to walk into a scene and be charged with a criminal offence simply because some one made the evidence look as though it was you ?

    Economics and investigations are not good bed fellows , saving money will send the wrong person to jail. .. do it once do it impartially and properly justice depends on truth and facts .. lets have some.

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  32. Longknives (4,686 comments) says:

    They’re ALL innocent I tell ya!!!
    ALL framed by those dirty coppers….

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

    They’re ALL innocent I tell ya!!!

    Not all, LK, just the ones that I represent… :D

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  34. Paulus (2,603 comments) says:

    Bring back the Privy Council that Helen Clark and Margaret Wilson, that great Law lecturer stuffed, at their will, without reference to Parliament..
    And make a defendant give evidence in Court – defend themselves, and not let the Lawyer be the defendant.

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  35. stephieboy (2,707 comments) says:

    Rowan (1,358 comments) says:
    January 4th, 2014 at 11:25 am

    Both Crown and Defence witnesses gave varying takes on the alleged close contact wound in terms of rifle to skin distance. They varied from 30cm to 12 cm. Philip Boyce originally estimated the distance as 24cm but on realizing his mistake had to take the stand again and d change his testimony from 24cm to 12cm. As you can see even at 12cm it makes the idea of Robin shooting himself highly implausible.
    Blood in the barrel ? Laniet as you will be aware received a shot to her head at point blank range.
    As people will see there was considerable muddying of the waters by the Defence in this case
    A CCRC.?? It needs to be looked at but its not helped by many posters with their wild assumptions that all Crown cases are inherently corrupt and flawed. Also the UK CCCRC has not necessarily found in favour of the appellant.
    Important to remember that .!

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

    And make a defendant give evidence in Court – defend themselves, and not let the Lawyer be the defendant.

    Oh how far we have come in 120 years, eh?

    BTW, I have just noticed that I replied to flipper above when in fact I meant Rowan. My apologies to both of you.

    But please let’s not make this another Bain thread!

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  37. stephieboy (2,707 comments) says:

    Paulus I disagree you about the PC and the facts are the UK do not want to continue with it given its jurisdiction is extremely limited excluding practically all Common wealth members .
    In the UK the Right to silence has been modified allowing the Jury to make inferences as to the accused’s silence under certain guidelines.
    It has some merit.!

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

    Paulus I disagree you about the PC and the facts are the UK do not want to continue with it given its jurisdiction is extremely limited excluding practically all Common wealth members .

    Yeah, well, most of the lawyers in NZ (and almost all of those at the Defence Bar) disagree with you.  

    In the UK the Right to silence has been modified allowing the Jury to make inferences as to the accused’s silence under certain guidelines.

    What they did was effectively abolish the right to silence.  It remains in name, which allows the politicians to pretend that they have retained a ‘vital freedom’, but in practice it is gone.  

    It has some merit.!

    No, it doesn’t.

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  39. stephieboy (2,707 comments) says:

    FE Smith.

    Most lawyers in NZ etc. Facts and Evidence of this.?
    The right to silence has been maintained but in certain situations the Jury is allowed to make inferences from that silence. This is notably in the case of Terrorist suspects and acts of Terror.!
    What is wrong with that precisely.?
    BTW no conviction in the UK may be made exclusively based on the silence of the accused.

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  40. Jack5 (5,014 comments) says:

    Rowan (11,.25) brings the Bainiacs into the discussion.

    Let’s leave Bain to another thread at another time so that F.E. Smith and the others can give us a good background to the commission suggestion.

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

    Facts and Evidence of this.?

    Anecdotally, from speaking to my colleagues.  Otherwise, the Law Society did surveys of the profession when the bill was progressing through Parliament, came out at about 75% in favour of retaining the PC.  I can’t be bothered looking for the links right now.  I can tell you that the Court of Appeal has a bad reputation among Defence lawyers (there are very few criminal lawyers in the High Court and above, and even fewer with defence experience) and I believe that it also wasn’t highly thought of by commercial litigators at the time of the change.  I don’t know how the CA rates with my commercial colleagues today.

    The right to silence has been maintained but in certain situations the Jury is allowed to make inferences from that silence.

    Yes, inferences of guilt!

    Adverse inferences may be drawn in certain circumstances where before or on being charged, the accused:

    fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention;
    fails to give evidence at trial or answer any question;
    fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested; or
    fails to account on arrest for his presence at a place.

    This is notably in the case of Terrorist suspects and acts of Terror.!

    Nope, applies to everything and everyone.  The effect of the legislation is that the right to silence is there in name but not in practice.  Exercising your right to silence is asking for trouble at trial.

    What is wrong with that precisely.?

    Really? You have no problem with the effective abolition of the right to silence?  I do, and there is a long history of reasons to support me, beginning with the Star Chamber.

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  42. Nostalgia-NZ (5,099 comments) says:

    41 responses to setting up CCRC and only a handful of spinners wanting to tighten the laws to make it easier to gain convictions. Hello thought a CCRC was to dismantle unsafe convictions. There must have been an alien landing overnight.

    Jack5 check out 10.34 for when the spaceship landed, only missed mars by a few million kilometres. Then 10.42, 1.34. Take a photo of the footprints, they’ll be worth money one day. Three legs, no toes and dragging a tail or perhaps aboard a broom. It’s so exciting I could hit my toe with a hammer.

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

    BTW no conviction in the UK may be made exclusively based on the silence of the accused.

    Yeah, I am aware of that.  It does not strengthen your argument, nor does it make the E&W legislation any less appalling.

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  44. Akld Commercial Lawyer (165 comments) says:

    As a sort of postscript to the last of the posts from FES above, as a non-litigator, I do second his comment about the concern that a number of my litigation colleagues voice about the difficulties experienced by the newer judges when dealing with a steady diet of criminal appeals. Today, only a few have an extensive cv as anything other than commercial litigators.

    The view relayed to me is that it takes some time for a number of them to get over the top of the heavy-duty criminal matters. But, and without doubting FES’s more informed view on this issue, I am also told that – over time many of them do make the grade.

    As to the reputation of the current C of A with commercial lawyers (I cannot speak for my litigation colleagues) it is good – Forrie Miller particularly, and amongst others Justices Randerson, O’Regan & Harrison are thought of as good appointments. There are some others I don’t know, but Justice Wild has a very good reputation with some lawyers whose opinions I value and, having dealt with Justice White a few times when he was a barrister, I thought his intelligence, common sense and huge work rate would make him a good judge.

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  45. Rex Widerstrom (5,349 comments) says:

    I see FES has said most of what I want to say. I would reiterate flipper’s point that the UK model, if followed here, would see a Commission set up as an investigative and review body, not a finder of fact. That duty remains with the courts, to whom the Commission refers cases.

    Case Statistics – Figures to 30 September 2013

    Total applications: 16792
    Cases waiting: 658
    Cases under review: 511
    Completed: 15624 (incl. ineligible), 537 referrals
    Heard by Court of Appeal: 509 (351 quashed, 147 upheld)

    537 referrals from 16972 applications is hardly “every case” being subject to the full review process. And 351 innocent people set free is priceless, to them and to their families, and something any civilised society which takes upon itself the power to deprive some of its citizens of their liberty just has to suck it up and pay for.

    Otherwise it cannot claim to be either civilised, or a society.

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

    Thanks for the comments, ACL. Interesting to hear the current commercial reputation of the CA (and acknowledging your caveat).

    I have a lot of respect for many of our High Court judges, and I acknowledge and agree with your point that a lot of the High Court judges do work hard to make the grade in the criminal jurisdiction (although there remain a number who just shouldn’t sit in criminal matters). I am a proponent of specialisation in the District Court, High Court, and Court of Appeal, although I know we have a relatively small group of lawyers to choose from to do that.  However, having specialist courts would require the A-G to appoint more defence lawyers to the higher courts, and that might not be popular in political circles.

    By the way, anyone who thinks that prosecuting is more difficult than defending just has no experience in what they are talking about.  Everyone seems to think that the prosecutors are the hot-shots and defence lawyers are the ones who couldn’t successfully do anything else, but I assure you all that such a perception is very wrong.

    Today, only a few have an extensive cv as anything other than commercial litigators.

    I think that is a problem, especially in the Court of Appeal, which deals with a steady diet of criminal appeals and is seen as generally very pro-Crown by the Defence bar.  I note that the CA has had a bad run in the SC and in the PC of late.

    I think the focus on cases like Lundy, Watson, Ellis, & Bain, et al, does tend to hide the fact that most cases in NZ are dealt with on a judge-alone basis in the District Court, and given the workload in that Court the capacity for miscarriages of justice is far greater there than in the High Court.

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

    A very good point that you make, Rex. Those figures show it isn’t a landslide of cases, but the small number of those who are freed as a result shows it is a vital backstop for the justice system in E&W.

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  48. fernglas (142 comments) says:

    What intrigues me is that when people talk about miscarriages of justice, it is almost always murder of which the accused has been convicted ( noted exceptions include Peter Ellis and David Dougherty). Is it that the Police are less thorough or more bent in murder cases? Does the “glamour” of a murder conviction attract the support groups but not, say, sexual violation? Or is it just that people convicted of murder are in prison longer, and so have a better chance to drum up support? If the ratio of wrongful convictions in murder cases was extrapolated across all convictions, there would be many wrongfully convicted people out there (or in there). So why do we not hear from them? I totally support the idea of a CCRC as I am not convinced that juries are omniscient, but is the problem as great as some have suggested? For what it’s worth, the cost of establishing a commission would be justified if a single wrongful conviction was overturned; just ask the innocent.

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  49. stephieboy (2,707 comments) says:

    Nostalgia-NZ (4,258 comments) says:
    January 4th, 2014 at 2:59 pm

    There are a couple of points that I want to emphasize. There is an assumption that the establishment of a CCRC infers that any appeal to such a body automatically means that the Crown must be corrupt and nefarious.
    This is totally an unwarranted assumption. Each case should be based on the facts before such a commission and not just because the often unfounded claim that the police or prosecution are incompetent or stitching evidence etc.

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

    fernglas,

    So why do we not hear from them?

    See the last paragraph of my 3.29pm comment.  Basically there is generally funding available for murder appeals, but nobody is willing to put the resources into an appeal by someone wrongfully convicted of, say, receiving a bicycle.

    I think it has to be an indisputable fact that there are far more miscarriages in the judge-alone jurisdiction than in the trial jurisdiction.

    stephieboy,

    Do you have a connection in this that we should know about?

    There is an assumption that the establishment of a CCRC infers that any appeal to such a body automatically means that the Crown must be corrupt and nefarious.

    I don’t think anybody is seriously suggesting that.  Sometimes the justice system just gets things wrong.  However, sometimes the Crown or Police are to blame.  The recent Lundy decision is a prime example of that.  Anybody who thinks that the investigative and prosecution services are always squeaky clean is a fool, but that is not to say that every case is tainted by misconduct.

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  51. Nostalgia-NZ (5,099 comments) says:

    stephieboy 5.35

    I don’t agree there is any such assumption of corruption. In fact the British system shows that by the number of cases the CCRC declines to make recommendations to the COA, and on the other hand the high ratio of reversal of convictions in cases it did refer – over 60% quashed, compared to approx. 97% rejected by the CCRC. That’s a fair amount of sorting claims of corruption before making referrals, and no figures that I’m aware that show number of convictions quashed where there was proven corruption. But if corruption was in fact cited in all, or some, of the case where convictions were quashed, and taking into account the probably 100s of thousands of convictions that didn’t result in applications to the CCRC the ‘corruption allegation’ level would be negligible. That said, 351 people walked free whose convictions were unsafe, applied in NZ that might be Ellis, Watson, Pora, Hall and probably even Rex Haig all costing far less than the most controversial cases here which continue to drag on, and not to overlook the value of their freedom.

    I’m in favour of it. Others including PEB have said simply beef up PCA but overall I think NZ should be taking advantage of the Privy Council whilst continuing with the Supreme Court. Apart from that, whilst the PC were writing their report critical of the COA in the Lundy case, Kirsty McDonald was using the same ‘approach’ that the COA had used in Lundy, even though it was beyond her role and already held to be wrong in another case – yet Kirsty McDonald is not the COA. It’s micky mouseville. Extending to the Supreme Court and beyond gives the opportunity of experience to ‘judge’ the narrative which often fails in unsafe convictions -Watson’s ‘confession for example and hard questioning about controversial dna evidence or ‘evidence’ which somehow ‘shows up’ despite earlier searches – Thomas.

    You were arguing to make it easier for convictions to be gained as though Thomas and others were in fact guilty and got away with their crimes. And you are the one who raised the suggestion that the Crown is corrupt and nefarious.

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  52. Rowan (2,074 comments) says:

    Srephieboy

    Don’t misquote what was said, Boyce did not estimate the firing distance as 24cm revised to 12 cm, his 12cm was the over reach that Robin would have had i.e. he would have had 12 to 24 cm to spare after holding the gun in close contact with his skin making suicide easy. It was the crown who tried to make it not contact as their only ‘evidence’ that Robin ‘didn’t’ do it.
    Laniets shot was fired through an intermediate target containing white fibres, this is not the same as a close contact shot and there is no way that blood would be sucked through an intermediate target, it is not in dispute that the final shot was to Robin so any blood in the barrel is his and proof that it was a hard contact shot.

    Anyway what is the relevance of the rejection of Bambers appeal in the UK to a possible NZ CCRC?
    No not all crown cases are flawed, just a handful of ones, there are a number like the recent Helen Milner poisoning one that are straightforward and require no intervention by further courts.

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  53. RichardX (324 comments) says:

    Rowan, Considering your rejection of the very clear and scientifically validated evidence when it comes to evolution, are you really the right person to evaluate any form of evidence?

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  54. stephieboy (2,707 comments) says:

    Rowan,

    Dr Dempster found the wound Robin suffered was a “near contact wound”, but he considered suicide was unlikely because of the angle and trajectory of the bullet fired through Robin’s head.Even Dr Chapman ,even though he disagreed with Dr Dempster ,conceded that Dr Dempster was in a much better position to make such an assessment as he had only the photos to go by which he found not of good quality.
    Furthermore under cross examination Boyce also conceded that close contact wounds did not rule out homicide
    Boyce also needed to be asked the frequency for a right-handed man to commit suicide by shooting himself in the left temple.
The incidence also for a right-handed man to shoot himself in the left temple using a rifle with a silencer attached.
    In fact it would be safe to say never been occurred .
And it would be safe to say again that no right -handed man has ever shot himself in the left temple using a rifle with a silencer attached while standing with one foot on a chair.
Boyce should also of been quizzed on the fact that no right-handed man has ever shot himself in the left temple using a rifle with a silencer attached while standing with one foot on a chair and then fallen down well away from that chair with his outstretched right hand almost touching an upright magazine without dislodging the said magazine.

    http://www.marzuka.x10.mx/trademe/javascript/bain%20sim%201.06/bain%20sim.htm

    http://marzuka.x10.mx/trademe/David%20Bain%20versus%20the%20laws%20of%20physics/David%20Bain%20versus%20the%20laws%20of%20physics.htm

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  55. Nostalgia-NZ (5,099 comments) says:

    ‘I can tell you that any prosecutors who become the subject of criminal charges as a result of their actions in a courtroom will be protected by the Solicitor-General by a stay of the prosecution.’

    F E Smith. 11.11am.

    Not so sure about that. Or that if a stay was utilised the stay would not be reviewed. In the case of Grantham, the comments made by the PC could indicate that his actions contributed to a MOJ. Right there, no consequences for actions that may in part lead to a MOJ, are the reasons why history repeats. Rutherford holding a boy of limited intelligence incommunicado on the pretence of helping him without access to counsel are all actions that have resulted in MOJs as was Hutton never ‘bothering’ to trace the identifiable trail of the planted cartridge case. All the millions of dollars wasted and lives wrecked isn’t going to be helped by a CCRC until those responsible for ‘finding’ and ‘losing’ things, or failure to disclose get hammered. One law for all. Maybe the Law Society should have a policy on this, to the point of even financing private prosecutions where the evidence appears to be clear – following that it wouldn’t be long before Crown Law took over and then we would no longer have prosecutors who saw no evil among their ranks.

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  56. ross69 (3,652 comments) says:

    What intrigues me is that when people talk about miscarriages of justice, it is almost always murder of which the accused has been convicted ( noted exceptions include Peter Ellis and David Dougherty).

    I’m not sure if this is true. Sir Thomas Thorp, in his review of claims for the Royal prerogative, said that (from memory) about a third of such claims involved sexual offences.

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  57. anticorruptionnz (212 comments) says:

    a miscarriage of justice is a miscarriage of justice the alleged offence has nothing to do with it no one should be erroneously found guilty of something which they did not commit

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

    Not so sure about that.

    I am.

    Maybe the Law Society should have a policy on this, to the point of even financing private prosecutions where the evidence appears to be clear

    Not the Law Society’s role.  But with regards the second suggestion, see above.

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  59. Rowan (2,074 comments) says:

    Stephieboy
    You are talking a load of shit, and Marzukas simulations are a complete joke! Do you really buy his ‘murder’ piece with Robin sitting on the beanbag, level with the gunmen, and then collapsing on himself! this is a joke!
    Dr Dempster had to say he considered suicide ‘unlikely’ as he was a crown witness, not surprisingly his initial post mortem notes show one conclusion as to the cause of death (these were not disclosed at the 1995 trial).
    He also agreed that none of the scenarios put forward by the defence required any difficult contortions whatsoever and conceded that it was quite feasible to shoot yourself in such a way.
    As to the one foot on a chair, this is a scenario only, he could also have put the butt of the rifle on the floor, it is unlikely that he held it horizontally as per Dempsters demonstration of remembering he was asked by the prosecution “not to show it any other way”
    In terms of whether or not someone would shoot themselves with a silencer attached to the rifle, or in the left temple your probabilities are again incorrect, the probability of someone shooting yourself using a rifle with a silencer attached is not the same as given that the rifle had a silencer attached whats the probability that he would remove it. The same argument applies to the left temple, see the following article from Don Mathias under transposition of the conditional although it will probably go way over your head.
    Robin would not have needed to remove the silencer and to do so would have taken time and would have risked being discovered by David, i.e. he would have to go and get a screwdriver from wherever he kept them meaning that David could have come home and discovered it while he was still there.

    Yes a contact wound doesn’t ‘rule out’ homicide but it just puts the probability at around 5% or less, Given there is no explanation or evidence consistent with homicide and the characteristics are all consistent with suicide then if you are going to say he was “murdered” then you are going to need to give the explanations of “how” and the “evidence for”. Don’t worry the crown couldn’t either.

    http://donmathias.wordpress.com/2009/06/08/a-bit-about-david-bain%e2%80%99s-retrial/

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  60. Rowan (2,074 comments) says:

    RichardX

    Different subjects, this is not a discussion about religion/evolution. You could be asked the same question about ‘your rejection of the very clear validated evidence’ of religion. I’ll remove the ‘scientific’ bit.
    If you want to believe that we are descended from monkeys etc, then provide the proof of it before making a dick of yourself.

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  61. Rowan (2,074 comments) says:

    “Someone like Lundy might a appeal to such a body but what if as in the Bamber case they find against Lundy.?
    What then.?”

    Then (without getting ahead of myself regarding the outcome of Lundys retrial) Lundy (or any other individual) serves the remainder of their sentance. Just because the case is referred for review by the CCRC this doesn’t automatically mean the intial verdict is incorrect. The CCRC is needed for cases like Teina Pora and Scott Watson where the verdict is unsafe and demonstratebly incorrect and the individuals are rotting in jail for crimes they didn’t commit.

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  62. Rowan (2,074 comments) says:

    Paulus
    Agree with you on the PC, thought it was a dumb decision to get rid of it as they were totally independent of NZ law which the NZ courts are not.
    Disagree in regards to the right to silence, An innocent person can get flustered on the stand giving evidence and get presented in a bad light, i.e. Vivienne Thomas giving evidence at Arthurs trial did not present well. Most lawyers would discourage their client from taking the stand as well even if the client wanted to. There is no reason in my mind to abolish this right.

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  63. RichardX (324 comments) says:

    Rowan (1,363 comments) says:
    January 5th, 2014 at 12:31 pm
    RichardX
    Different subjects, this is not a discussion about religion/evolution. You could be asked the same question about ‘your rejection of the very clear validated evidence’ of religion. I’ll remove the ‘scientific’ bit.
    If you want to believe that we are descended from monkeys etc, then provide the proof of it before making a dick of yourself.

    Would any evidence I provide be sufficient to change your beliefs?
    Note I say belief as I can see no sign that you have used any form of intellect in deciding what to believe

    We are not descended from monkeys
    Evolution does not say we are descended from monkeys
    To suggest evolutions states we are descended from monkeys demonstrates a lack of understanding and to use the statement in such a pejorative manner says quite a lot about the lack of reason used.

    We share a common ancestor with monkeys which has been shown by various methods including the fossil record
    I think before we go too deep into the evidence behind evolution I think you need to correct your view on what evolution actually means
    You could try the following as starting points;
    http://en.wikipedia.org/wiki/Evolution
    http://evolution.berkeley.edu/

    I do understand your unwillingness to understand as your beliefs are more important to you than anything else and I know that I am incapable of changing your beliefs so I won’t bother trying beyond this post

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  64. Johnboy (15,903 comments) says:

    “and Labour justice spokesperson Andrew Little have renewed a decade-old debate, calling for the establishment of a Criminal Cases Review Commission.”

    I’d be very dubious about a review of the law by a chap who bears a striking resemblance to a reincarnation of Oliver Cromwell ! :)

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

    Come on, guys, this is not a Bain thread! If you want to argue that topic head for General Debate.

    RichardX, you seem to be new here so can I point out that statements like this

    Rowan, Considering your rejection of the very clear and scientifically validated evidence when it comes to evolution, are you really the right person to evaluate any form of evidence?

    are not just very wrong and completely unjustifiable, but also incredibly condescending.

    Moreover, it is also off-topic, as is your follow-up comment.  If you want to argue that people who do not believe in evolution should have no place in deciding matters involving evidence (which takes a large portion of the world’s population out of any form of decisionmaking position) then you should do so in the General Debate thread.

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  66. Johnboy (15,903 comments) says:

    As a man of history FES do you feel any disquiet regarding Andrew Littles striking features? :)

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

    The Bamber case is highly relevant in that UK CCRC do not operate under your kind of assumptions, namely a tendency towards predetermination and bias.  Someone like Lundy might a appeal to such a body but what if as in the Bamber case they find against Lundy.?
    What then.?

    Well, that is easy.  Even if the CCRC decides not to take a case, or if an Appeal Court rejects the CCRC’s referral, there is still the Royal Prerogative of Mercy available to apply for.

    Failing that, there is always the ability to further appeal with leave based upon new evidence.

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

    Yeah, nah, Johnboy. I don’t see a huge similarity there. I can’t see how one can get much worse than simply being a member of the Labour Party, short of being a member of the Greens, so for me it doesn’t really matter!

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  69. Johnboy (15,903 comments) says:

    I have this intense foreboding every time I obseve his forbidding presence sitting in the rump of Silents caucus knowing that he has the power of General Kelly’s New Model Trade Union behind him FES.

    A shudder runs up my spine everytime he says nothing at QT. That’s when him and his ilk are most dangerous! :)

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  70. Rowan (2,074 comments) says:

    NZ needs a CCRC and Judith Collins is just wrong in her arrogant comment that
    “New Zealand has an independent, highly regarded judiciary, with a robust appeal process for people who feel they have been wrongly convicted.”
    Tell that to the likes of Teina Pora who has been rotting in jail for 20 years for Malcolm Rewas crime! Is there anyone apart from Malcolm Burgess and Collins that actually believes he committed the crime!
    The NZ system seems to muddy the waters i.e.Collins pays big bucks to her hired guns Robert Fisher and Kristy McDonald to come up with written to perscription decisions in favour of the crown rather than objectively looking at the safety of the conviction, i.e. recent RPOM decision on Scott Watson.

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  71. flipper (3,952 comments) says:

    Rowan….
    Quite agree with your assessment of Collins and the need for a NZ CCRC.

    Some say that her snarling smirk is similar to that often seen on the vultures at Ravensbruck, circa 1943-45.
    Clearly her attitude is similar.

    While it is disgraceful that a sworn Minister of the Crown should adopt such a position, it is equally disgraceful that the MSM quote her without subjecting her remarks to the scrutiny that they apply to most offenders. Moreover, as you remind us, they ignore her frequent use of the porno ex judge, and K McDonald. I would have thought that the frequent use of such persons as “independent assessors” producing similar findings on almost every case they “evaluate” would be enough for the media to cry foul. But the child reporters assigned by the MSM to cover such matters have neither the experience nor the inclination to ;robe. they prefer to “report” hand-outs.

    But back to her comments on the NZ judicial process, the RPOM and the need for a CCRC.

    The Crown (we, the taxpayers) got thumped by the Law Lords of the Privy Council’s Judicial Committee on Bain and Lundy. Now Collins is allowing Heron and his arrogant, self-serving bunch to go for a third strike on Pora. Whatever the result (I have no doubt the Crown will either withdraw or suffer further humiliation) the need to bring back the PC as a level above the Supreme Court grows more urgent. A CCRC may defer that need while we evaluate results.

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  72. Nostalgia-NZ (5,099 comments) says:

    F E Smith. 10.52

    I was being hopeful about the Law Society I guess. Overall, lawyers working for the Crown or not don’t do the reputation of Lawyers a lot of good by with holding evidence. Perhaps a complaint to the Law Society.

    Why are you so sure the Solicitor General would stay any proceedings, even in a tide of public opinion which might follow the Lundy trial or the Judgement of the PC on Pora? I’m not sure but I may have read about staying of proceedings against Crown Lawyers years ago, is it in statute? What is your opinion on what seems to effectively be a ‘guarantee’ of immunity for those whose actions may have led to a MOJ. I remember you posted something from one of the American states where it was off to prison you go for a sheriff or similar who’d been ‘creative.’

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  73. Nostalgia-NZ (5,099 comments) says:

    Flipper the Crown are heading into a disaster with Pora, in the aftermath there’ll be high interest in determining the facts of whether the pursuit of Rewa was ‘parked up’ allowing him to continue raping and perhaps being responsible for another equally serious crime. Additionally, Rewa would never have been found not guilty had the Crown persisted with the idiocy that Pora was guilty. This seems a case that a functioning CCRC would have sorted a long time ago.

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  74. flipper (3,952 comments) says:

    Nostalgia….

    Well said. A CCRC would have sorted Pora at peanuts cost….. AND certain folks might be facing MOJ proceedings.

    I look forward to the day when the PC issues its findings on Pora, that Kiwiblog and another normally sensible (on other issues) blog, hold Collins and her mob to account. I am certain KB will.

    At that time, she may also be suffering the embarrassment of a JR and/or a subsequent BORA action by D Bain.

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  75. stephieboy (2,707 comments) says:

    Flipper I can assure that Judith Collins will not be loosing no sleep or” suffering the embarrassment of a JR/ and or subsequent “BORA” action by D Bain.”
    As you suggest also that is a very big “may also.” !

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  76. muggins (3,343 comments) says:

    Rowan.
    It is Joe Karam who reckons Robin Bain committed suicide by shooting himself in the left temple with one foot on a chair.
    He reckons he probably shot himself with his right foot on a chair because of those three pinhead drops of supposed blood spatter on his right shoe. Are you saying Karam is wrong? If so then for once I agree with you.
    As for that close contact wound and the blood in the silencer barrel, that doesn’t prove anything,one way or the other.
    One of the shots to Laniet’s head was a hard contact wound so obviously her blood would have been in the barrel at one point of time,and she didn’t commit suicide.

    So far as a criminal cases review commission goes, probably a good idea. I wonder if such a commission would have found David Bain had been wrongly convicted of murdering his family? Somehow I doubt it.
    Instead of which we had a retrial where the jurors were beaten over the head with “reasonable doubt” until they coudn’t think straight. And then to top it off a Canadian judge was called in to determine whether or not David Bain was innocent and he decided that he was even though he seemed to accept that Bain had lied on oath at the first trial about those glasses that were found in his room. Hopefully a review commision would do away with all that . A review commission would almost certainly have spoken to Michael Guest,David Bain’s lawyer at the first trial, who would have left them in no doubt that he did not believe David Bain was innocent.

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  77. Nostalgia-NZ (5,099 comments) says:

    Yawn…..

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  78. stephieboy (2,707 comments) says:

    Well Nostalgia at least Muggins is prepared to entertain the idea of a CCRC.
    Give him credit for that at least..!

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  79. Rowan (2,074 comments) says:

    Yawn
    Aunt Fanny is back spewing the usual delusional crap. Again Muggins you are again factually incorrect, but hardly surprising.

    Nos your latest blog piece was hilarious!

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  80. Rowan (2,074 comments) says:

    Flipper
    I would just establish a CRCC here in NZ as opposed to going back to the PC, I didn’t agree with scrapping the PC at the time but don’t see the need for both.

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  81. Rowan (2,074 comments) says:

    DPF
    Can you give the old biddy his own seperate thread, and ban him from the rest of KB, that way he can rant his ignorance of the Bain case to himself and the rest of us would be able to have a semi intelligent debate without the valueless delusional crap that this troll keeps spewing.

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  82. stephieboy (2,707 comments) says:

    Rowan (1,367 comments) says:
    January 5th, 2014 at 6:05 pm

    Our resident comments Gestapo.!!

    Aunt Fanny factually incorrect, ?
    In what ways exactly.?

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  83. Rowan (2,074 comments) says:

    Stephie
    The better question would be which way is he correct?

    You are both incorrect in regards to Laniets head wound and the blood in the barrel,
    To make it very basic
    Robin was the last family member to die on either murder/suicide scenario
    The only way that blood could get into the barrel is by the rifle being held in direct contact with his temple. The blood would be sucked back into the rifle via vacuam action.
    If the rifle was fired after this then the action of firing it would remove all the blood from it with the bullet so it is not possible for it to Laniets blood. Also as she was shot through an intermediate target (as demonstrated by the white fibres and a 2.5cm entry wound), this would block any blood from entering the rifle.
    There would be no blood in the barrel unless the last shot was a hard contact wound.

    Also he is factually incorrect in deliberate misrepresentations in regards to Michael Guest, Guest has never stated that he believes that he is guilty, last year when interviewed by 3rd Degree he very clearly stated he didn’t have a view either way and was unsure.

    Before you harp on about what has ‘never’ previously occured, have you actually ever seen someone that has committed suicide by shooting themselves in the head? so as to know what position, pose etc that they did or didn’t adopt.

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

    Why are you so sure the Solicitor General would stay any proceedings

    Can’t say.  Take what you want from that!

    even in a tide of public opinion which might follow the Lundy trial or the Judgement of the PC on Pora?

    Will never happen.  Public doesn’t feel strongly enough about either case.

    I’m not sure but I may have read about staying of proceedings against Crown Lawyers years ago, is it in statute?

    Not re Crown lawyers specifically, just the general power of the A-G to stay as set out in s176 Criminal Procedure Act 2011.

    What is your opinion on what seems to effectively be a ‘guarantee’ of immunity for those whose actions may have led to a MOJ

    I say a lot of things here on KB under the protection of relative anonymity.  I am not, however, brave enough to print my honest response to that question.

    I remember you posted something from one of the American states where it was off to prison you go for a sheriff or similar who’d been ‘creative.’

    Yes, just recently a Texas prosecutor was imprisoned for misconduct of a nature similar to the Lundy miscarriage.

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  85. Rowan (2,074 comments) says:

    FES
    I think there is a lot of public support in Teina Poras case, and I don’t actually know anyone who actually believes him to be guilty, there is also petions for an enquiry into the case and also political and support from some of the police involved so I think it inaccurate to say that the public doesn’t feel strongly about his case. You are right about Lundy whose personality and appearance make him rather unpopular in the court of public opinion.

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  86. Nostalgia-NZ (5,099 comments) says:

    Fair point about public support in the Pora case Rowan. As for Lundy, not so sure – it’s actually nothing to do with his personality (which we don’t know anyway,) it’s to do with evidence. Hopefully, the public view is maturing beyond ‘looks’ or ‘personality’ to critical thinking.

    I don’t agree about the PC. The PC and a CCRC will never work in tandem, and one would never be able to replace the other because they have different functions. We’d be mugs not to take the opportunity to sit at one of the tables from where our law has taken shape.

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

    I think there is a lot of public support in Teina Poras case, and I don’t actually know anyone who actually believes him to be guilty

    I am sure that there is, but however much it is at present, it is not enough.  I don’t think that there is a person in NZ outside of the Police and the Crown who thinks that Peter Ellis is guilty, but still nothing is done about it.  

    Until the outcry over Pora is too loud to ignore, the Government will ignore it.  It is nowhere near there, and the media are content to do pretty much nothing to keep it in the public eye. 

    Hence my statement that the public feeling is not strong enough.

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  88. Rowan (2,074 comments) says:

    Nosty
    Refferring to the way Lundy came across, how he was banging a prostitute on the night and was a heavy drinker along with his dramatic performance at the funerals. None of this would have won him much in the way of public support.
    Nigel Lattas episode on him was very good especially if you believe he is guilty. I am undecided on what I think, at the time I thought innocent, then I changed to probably guilty, now unsure. However I don’t think the crown have a hope in hell of reconviction at the retrial, guilty or not.
    Agree with you about the PC, I made the point to Flipper @ 5.46, but thought it was unwise to dispense with it at the time.

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  89. stephieboy (2,707 comments) says:

    Rowan,

    I’ll deal with this first,

    “Before you harp on about what has ‘never’ previously occured, have ‘you ‘ yourself actually ever seen someone that has committed suicide by shooting themselves in the head etc.??.

    My simple response is , well have you seen “someone who has committed suicide by shooting themselves etc … ”
    And let me ” harp on again if I may. Has there ever been a case recorded where a would be suicide has left the silencer on and shot himself in the most awkward way possible leaving absolutely no trace of his fingerprints from his alleged” bloodied” hands ,?
    Additionally the scenario changing from his bloodied clothes into his Sunday best to ” meet his maker,”
    )And the said bloody clothes disposed of never located or identified. ( you seriously don’t still believe in this old canard. do you ?
    The facts remain that Laniet was shot above her head with the gun flush to her scalp and Boyce, once again ,did concede under cross examination that a close contact wound did not preclude homicide..

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  90. Rowan (2,074 comments) says:

    FES

    I don’t believe that the tax lawyer/justice minister takes a lot of notice of public opinion, and it will need more than public opinion to get the government to act, i.e. a court decision. Then Collins et all will waste a lot of time and money by trying to reconvict and ‘prove’ themselves right, rather than doing the decent thing by admitting they screwed up and compensating Pora.

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  91. Nostalgia-NZ (5,099 comments) says:

    I agree F E Smith, however I think the disquiet about these convictions filters through to the public mind because of the continuity of them individually and collectively – that’s a situation that should be remedied by the Law Makers to my mind.

    Rowan. A heavy drinker ‘banging’ prostitutes,’ running along a street in women’s clothes with dna from an unknown source either upon his shirt or dress – take your pick, is stretching the credibility line even if Lundy could be seen a fat bastard of uncertain physical condition drinking everything in sight, banging away at will, making incredible journeys, changing clothes except for his white shirt that had an unknown substance found on it months after it had been in police custody – there remains scant evidence that he killed his wife and daughter.

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  92. Rowan (2,074 comments) says:

    Stephie
    Blah blah blah
    What a load of bull, “most awkward way possible”- bollocks, Dempster agreed there were no difficult contortions.
    “No trace of fingerprints” – again bollocks, 9 unidentified prints, that could have easily belonged to Robin, chances of positively identifiable prints <5%, Desmond Winnie shot his wife, father-in-law and himself leaving no trace of fingerprints. So again wrong!
    "Silencer" blah blah again read Mathias's article. The rifle had a silencer attached, what is the probability or reason to remove it? It is not the same as the probability of whether someone would shoot themselves with a silencer attached to the gun.
    "Bloodied clothes…" You are trying to use a rational reasoning. Why would a rationally thinking person commit such actions? What does rational thinking have to do with it?
    Again your statements are factually incorrect and you have no explanation of how Daddy was 'murdered'.

    Try google searching the characteristics of suicidal versus homicidal wounds.
    Heres some questions to ask yourself
    Close contact wounds are indicitive of homicide or suicide?
    Upward trajectory and Robin standing is consistent with?
    Removal of beanie is consistent with?
    Smeared blood on his hands and under his fingernails is consistent with (head wound or victims)

    I challenge you to find any other case worldwide where someone has been 'murdered' in circumstances even remotely resembling this.

    If there is a new investigation, and report into innocence or guilt maybe you, Muggy and Marzuka can explain and give evidence how Daddy was 'murdered' Whoever does it could do with the laugh! They can then compare Marzukas simulation with Boyces demonstrations and ask themselves whats more probable. Thats not a question that even needs answering!

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  93. Rowan (2,074 comments) says:

    Nos
    Agreed, I don’t agree with it all, it just seems to be the public perception of the man. The likes of Ross, Longknives, Muggins et al, can sniff his ‘guilt’ based on this, but I require evidence and there is sweet f… all that it is convincing in this case, which is why I think the crown are flogging a dead horse by sending this one to retrial.

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  94. stephieboy (2,707 comments) says:

    Rowan you are a clear victim of obfuscation and fudging much like the Defence attempted to do but of which its gaping holes began and were unravelled in the Binnie Report . This with David Bain’s hopelessly contradictory and misleading accounts of his actions.
    Dr Dempster did agree that suicide was possible but nowhere did he state that he supported Boyce’s suicide scenarios .
    The unidentified prints could of just as easily belonged to David. They were sufficiently undefined to be no evidential value and none of your fudging can change that fact . But one thing s for sure they were consistent with someone having wiped the gun down.
    Did Winnie have soiled or bloodied hands as Robin was alleged to have.?
    Yes fingerprints were not found on the shot gun but they were on David’s gun ( David’s and Stephen’s ) so the comparison is irrelevant. !!
    Rational reasoning and bloodied clothes.?? Thats not physical or forensic evidence.! A simple question.? Where were Robin’s bloodied clothes that he allegedly got changed out of .??
    Dr Demspster felt the trajectory was entirely consistent with and act of homicide .
    Robin remove his Beanie.?? Darn he forgot to remove it during the final act. How odd.?
    Actually the amount of blood on his hands was tiny and insignificant.
    BTW can you explain whilst holding the barrel or silencer as he shot himself why the ejection of blood from the wound did not spray onto his Jersey sleeve or hands .???.
    Strange as it seems the murder of Sheila Caffael in the Bamber family murders does uncannily resemblance to the Bain murders. Especially in the manner in which her step brother attempted to try and frame her.
    Mazuraka has given an excellent account and critique the ludicrous implausibility of Boyce’s suicide scenarios . Do remember they are in fact only scenarios not physical facts .

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  95. Rowan (2,074 comments) says:

    Yawn
    Tired of arguing with amateurs, Marzukas computer simulations are a joke and are not based on facts, he has no measurements to base his arguments on and his scenario of Robins ‘murder’ gets 100% Sorry but for entertainment value only, it is ludicrous and the evidential value is negative!
    Again numerous errors of fact in your ‘evidence’
    Winnie used a 22 not a shot gun
    Actually Robin did lift his beanie for the final act, had he not there would have been a bullet hole in the beaniem and there was none.
    Dr Dempster did actualy state that all the suicide demonstrations and photos accurately demonstrated the angle and trajectory and that there was no required contortions, it is explicitly stated by him in cross examination by Reed.

    “BTW can you explain whilst holding the barrel or silencer as he shot himself why the ejection of blood from the wound did not spray onto his Jersey sleeve or hands .???.”
    Easy its called a hard contact wound and the ejection of blood went up the rifle barrel instead.

    Try replicating Davids prints on the gun, remember they are of the left hand on on the forestock pointing towards the trigger. Try holding a gun that way; use your right hand if you are left handed, then try firing it.
    The fingerprint argument is so last century, and of no eviidential value given the deliberate lies and perjury used in 1995 by Kim Jones, where he lied to the jury so they ‘would understand it better’

    There is no evidence that the gun was wiped, this is rubbish and the very existence of the prints is evidence the gun was not wiped down.

    Again you provide a lot of ‘spin’ but nothing of evidential value.
    Enough for tonight.

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  96. stephieboy (2,707 comments) says:

    Rowan.
    Robin lift his Beanie. ? Er um not according to plate 23 in David and Goliath.I wonder if he placed it there up by his hood after he topped himself.?
    Yes your right Winnie did use a .22 but my point is still valid. Fingerprints were found on David ‘s .22 his, Stephen’s and some others that were smudged and sufficiently undefined to be of no evidential value.
    More likely David’s in my view .
    You simply miss and avoid the point that the two cases are not comparable. Fingerprints were found on David’s gun and not on Winnies’ gun. You try and obfuscate the issue that there are circumstances where prints can and are left on guns. You can’t have it both ways.
    Could you link the trial transcript where Dr Dempster under cross examination actually endorsed and supported Boyce’s hypotheses about. the trajectory and contortions as per his court demo.??
    That would of been a major sensational admission. I suspect it was not quite as straight forward as you try and suggest .

    I Can assure you the arterial spray from his head wound would of ejected copious quantities of blood and not just into the tip of the barrel.
    The fingerprints of David’s were there and that is indisputable and in David and Goliath it is suggested that he may of picked it up to examine it . My theory is that he picked it up to wipe off the potentially incriminating other fingerprints that you somehow spuriously claim were Robin’s.
    There is no evidence that Kim Jones committed perjury for what in fact was a mistaken miscommunication between Henstscell and himself.. But given the damning nature of his evidence examining the gun on 21/ 06/94 and the blood sample taken by Dr Cropp I can see how the Defence in the retrial tried to portray it otherwise.
    BTW was Jone’s ever charged by Mr Justice Pankhurst or the Courts for Perjury.?
    The prints were smudged in such away as not to be defined enough which strongly indicates to me that someone attempted to wipe away/ remove the evidence.
    Your the spinner and obfuscater not me.!
    PS Thought son where Ronin’s bloody clothes were found and identified.??

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  97. anticorruptionnz (212 comments) says:

    Is this an other trial by blog , I thought the whole point about this thread was about the need for a criminal case commission so that we can get rid of every ones opinion and stop a whole lot of arm chair investigators go off half cocked.

    all we need is facts truth and accountability to the truth and the result of an impartial investigation will reveal the true answer but we seem to want to prove and disprove different theories.. there is only one true outcome and that is an impartial investigation which is commenced and conducted with an open mind and without a particular result in mind except for identifying the offender . The evidence will point the way.

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  98. muggins (3,343 comments) says:

    Re David Bain if anyone is interested.
    David Bain obviously believed his fingerprints that were on the rifle were in blood because he told Justice Binnie that his best notion was that it was animal blood from the summer. Well, he was hardly going to tell Binnie it was Stephen’s blood, was he?
    There was only one hard contact wound and that was one of the wounds to Laniet’s head, either the second or third time she was shot. So at one point of time her blood would have been in the barrel and,as I have already pointed out, she did not commit suicide. It was never proven whose blood was in the barrel but if it was Robin Bain’s that proves nothing, just means he was shot with the rifle virtually touching his head.

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  99. Nostalgia-NZ (5,099 comments) says:

    Double yawn….

    questions from the court: 3653 -54

    Q. One of those Mr Ross, I take it that if there’s blood in the barrel it would have to be from the last firing of the rifle that it was vacuumed in?
    A. It is far more likely sir because of the movement of the gases, the bullet is designed that it fits very, very snugly into the barrel so any biological material would largely be removed, so it really comes down to the final shot.

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  100. ross69 (3,652 comments) says:

    The likes of Ross, Longknives, Muggins et al, can sniff his ‘guilt’ based on this, but I require evidence and there is sweet f… all that it is convincing in this case, which is why I think the crown are flogging a dead horse by sending this one to retrial.

    I’m not sure if you’re referring to me. There was the small matter of brain tissue found on Lundy’s shirt which he could not account for. The defence didn’t argue this point and indeed defence experts apparently agreed that it was indeed brain tissue on his shirt.

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  101. Nostalgia-NZ (5,099 comments) says:

    Only because Grantham appears to have with held evidence from the defence which indicated the alleged dna was too ‘down graded’ to reveal what it was or its source. Read the Judgement where you’ll also find the ‘expert’ they found in Texas, who claimed a new scientific technique, has long since been discredited. Bit like another case where The Crown called witnesses whose evidence supported their theory to contradict the pathologist who did the body examination. While you ponder that, you may have read of an newly accepted technique about to determine the source of up to 4 different sources in a mixed dna sample. That’s more bad news because a certain person’s dna was found to mixed with others which formally couldn’t be identified, add that to a QC’s report with the ultimate conclusion that another report he ‘peer’ reviewed could have reached the same conclusion, call that a bob each way, just like the scientist who couldn’t discount marks being from a magazine of the guy whose blood was in the barrel. That’s the barrel mentioned above, after that try whistling – you might conjure up, temporarily of course, why you’re pushing it up hill. The word sniffing is interesting in the Lundy case because a witness was able to reveal another new technique of ‘smelling’ the stomach contents of a deceased person to determine their time of death, ‘remarkably’ that timing coincided with the Crown’s theory. Still, you could be on the right track because one of your number has wisely pointed out that it ‘must’ be Lundy because she doesn’t know who else it could be – that would get anyone sniffing.

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  102. ross69 (3,652 comments) says:

    Read the Judgement where you’ll also find the ‘expert’ they found in Texas, who claimed a new scientific technique, has long since been discredited.

    I’ve read the Privy Council judgment, and there is support for Miller’s findings. He isn’t out on a limb. But whether his expert testimony is accepted at the re-trial, or is even admissible, is another matter.

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  103. Rowan (2,074 comments) says:

    Stephieboy
    You are starting to sound as stupid and irrational as Muggins,
    Just for you as I am really getting tired of it, these are extracts from TBA where JK has directly quoted from the transcripts and unlike counterspin he doesn’t need to ‘invent the evidence’

    Reed cross examining Dempster

    Q: Doctor, yesterday when you gave your various demonstrations about holding the gun up to your head in various positions I assume that was intended to show how difficult you thought it might be to commit suicide as you demonstrated?
    Dempster: That was the intention.

    Q: I am saying to you if you are giving a fair demonstration to the jury, why would you give a demonstration that is totally unrealistic, why would you do that?
    Dempster: Because I was not asked to step down and show it any other way
    —————————————————

    (Specific scenario)
    Q: I am giving you the opportunity to criticize that if you so wish.
    Dempster: Well, the – rifle and the mask has been used and it is – I think replicated the situation reasonably accurately, as accurately as possible with this arrangment.

    Q: Yes that’s better, you can’t replicate it more accurately?
    Dempster: Not more exactly than that no, thats correct

    (Another photo)
    Dempster: ‘Well I’m suprised that he is able to use his thumb in that position, but it certainly seems that he’s got the rifle orientated properly.’
    Q: THeres the proof of it
    Dempster: It seems to be

    (Other photos)
    Reed: ‘Once again, it seems that it is perfectly feasible in this position to shoot yourself, should you so wish’
    Dempster: It would seem so
    Q: Those are a combination of positions aren’t they?
    Dempster: Yes
    Q: And you agree that in each of them it is quite possible to shoot yourself?
    Dempster: To activate the firearm, yes, at that particular angle.
    Q: And you don’t have to contort yourself in any particular, with any particular difficulty, do you?
    Dempster: No
    ———————————————–

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  104. Nostalgia-NZ (5,099 comments) says:

    ‘But whether his expert testimony is accepted at the re-trial, or is even admissible, is another matter.’

    That’s another way of saying he is out on a limb and the case against Lundy is as degenerated as the ‘dna’ sample was held to be by the first scientist whose task was to identify it. Overall, very weak – and when coupled with sniffing stomach contents, relying on ‘facts’ such as that he was banging prostitutes, changing in and out of women’s clothes that were never found, it appears that we may hear of a ‘confession’ – perhaps like that of claimed against Watson or against Thomas by Murray Kestle. All too fragile and dangerous. It’s the narrative, like jumping in and out of bushes in order to prove that papers were delivered when in fact they were already in letter boxes – reality suspension and high drama.

    Anyway we’ll see.

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  105. Rowan (2,074 comments) says:

    “Thought son where Ronin’s bloody clothes were found and identified.??”

    Umm… Green Jersey in the washing machine as were Robins socks, also a green towel with copius amounts of Robins blood,
    Theres your proof he changed his clothes!

    Kim Jones lied to the jury so they would understand it better, he told them that examining under the polilight caused the blood to ‘flouresce’ He admitted at the retrial that it didn’t, it infact showed up as dark and the background ‘flouresced’ Based on everything he said being proven incorrect, you can also take from his 1995 ‘evidence’ that everything he told the 1995 jury was blood on the rifle was infact not.
    No he hasn’t been charged with perjury neither was Bruce Hutton.

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  106. Rowan (2,074 comments) says:

    Ross
    Yes they assumed that the shirt had been properly scientifically tested, not the expert shopping trip that DS Grantham went on to find the opinion of the texan pathologist having already had it dismissed by NZ experts, convienantly this wasn’t disclosed to the defence. This is highly contentious as to whether or not it is ‘brain tissue’ and not some other staining, this was the main point the whole appeal was based on.

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  107. Rowan (2,074 comments) says:

    Muggins
    If there is a new report on guilt or innocence, then maybe you and Marzuka can give ‘evidence’ as to how Robin was ‘murdered’.
    Whoever does it could do with the laugh!!

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  108. ross69 (3,652 comments) says:

    That’s another way of saying he is out on a limb

    No, it’s not. I suggest you read the Privy Council judgment, especially paragraphs 71-83.

    http://www.jcpc.gov.uk/decided-cases/docs/JCPC_2012_0094_Judgment.pdf

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  109. flipper (3,952 comments) says:

    ross69 (3,224 comments) says:

    January 7th, 2014 at 6:29 am

    ****

    More snake oil rossy….

    Those paras simply rehearse various views. They are preliminary to those in which the PC reached its conclusions.

    Try, for example , the PC finding in Paras 90 and 91……… (and there is more in subsequent paras. Much more, rossy…)
    ***

    ” 90.
    Professor Gatter and Dr Squier addressed the question of the use of immunohistochemistry in the forensic context. While accepting that this was a commonly used diagnostic tool, they pointed out that its use in the forensic setting was innovative. In a clinical context it is, the consultants said, entirely standard practice to selectively present results in order to support a diagnosis made on the basis of a clinician’s skill and experience but that this might not be appropriate in a forensic context, particularly if interpretation of results is presented as providing an absolute or incontrovertible conclusion.
    91.
    The two experts accepted that the staining on the slides was consistent with brain tissue. But it was also consistent with other animal tissue. Even if the substance was brain, it was impossible to say that it was human brain or even mammalian brain. The stain on the shirt, if caused by a processed meat product, could produce an appearance similar to that which they observed on the slides. Finally, they said that if the substance was brain tissue deposited on the shirt following a traumatic injury, they would have expected to find red blood cells and none was present. ***

    Rossie….

    It is abundantly clear that you wish only to tell lies here.
    You do not wish to examine any issue honestly.
    Your Standard Four education clearly does not allow you to read anything other than discredited comment by shopped Crown (by/for Grantham) witnesses.

    If your reading of the PC judgement is limited to Paras 71-83, you need to go though each and every para dealing with DNA and stomach contents.

    But of course. I forgot that you are better qualified to reach a conclusion than all of the eminent authorities quoted by the PC ….not to mention the Law Lords the4mselves.

    Go away. liar.

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  110. Nostalgia-NZ (5,099 comments) says:

    Morning flipper. Happy new year to you and yours.

    Nice reply, nothing like straight from the horse’s mouth compared to straight out of the corner of one of the sister’s mouths. I could ask you a question to which there is probably no simple answer – why do they lie. What profit is there for them or anybody else, this crap costs millions of dollars not to include the human cost.

    Our dear aunt sensed an opportunity to try to start the new year of with more bs that she’s repeated to the point that she is so uncertain now as to which way is up that when she goes to the toilet her ‘wife’ needs to keep an eye on her in case she puts her head in the bowl, again. When Randerson asked the expert about the last shot, the answer excluded the dna in the rifle from being Laniet’s. Anyone with basic comprehension understand about ‘rifling’ and ‘lands,’ the lead being slightly oversized in order not to lose the detonating power and therefore cleaning out the barrel of anything from a previous shot. I guess it’s the mantra thing driven along by the hate mob ‘shouting’ it out that night is day.

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  111. flipper (3,952 comments) says:

    Nostalgia-NZ (4,273 comments) says:

    January 7th, 2014 at 7:50 am
    **

    And a Happy 2014, and good morning to you and yours Nossy ….

    That is an interesting question you haver posed.

    I have tried to consider it objectively. In so doing I have thought back to my own early conclusions on various cases. Often my initial impressions were proved incorrect, so I sought data to support my early views. More often than not I was forced to the honest conclusion that I had been wrong. So I guess that in the case of the frightful few who cannot see self evident truth, they fail the honesty test. But worse, because they lie to themselves they can never, ever, do anything but jump from one lie to another in order to maintain their dishonest beliefs.

    I suppose there is a pShrink term for such a state….like, no let ‘s keep it really simple – crazy.

    The point about rifling is well made. But they would never admit that fundamental truth. By their lights it has to be a lie.

    I and others have previously referred to one or more of them as being escapees from the Mason Clinic. There is no need fort further confirmation.

    Cheers Nos…
    . :-)

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  112. Rowan (2,074 comments) says:

    Happy new year Flipper

    The following with thanks to ‘beyond’ is his explanation as to why Muggins (“sleuth”) continues to lie and misrepresent things, it could equally be applied to a number of the counterspinners.

    Why would do they lie, distort?

    If we take the example of Supersleuth, an elderly gent, in the final trimester of his life, it’s easy to see why he is in such denial. This is his life. For several years now he has invested his time, money and his reputation on discrediting David Bain’s defence, and subsequently Joe Karam. Everyone he’s spoken to in the last few years would have heard his story.

    Not only is his credibility on the line with his friends and relations, but he has contacted officials, members of Parliament, witnesses etc. He has banked everything he has, including his own relationships, on being right about David Bain. If he is proved wrong, then his life will no longer have meaning. People will regard him as nothing but a raving loon that doesn’t know what he’s talking about. Instead of ending his life on a high, and being remembered for his positive input to the Counterspin campaign, he will be remembered as a vindictive fool. If he’s remembered at all. His own mind will never allow him to accept this no matter what evidence he is given, he cannot change.

    The same could be said for the other elderly gents in the Counterspin campaign, who have done similar to Sleuth. Once they had stated their opinion, backing down was just to hard, so instead they feed off each other, approving what each has to say, which gives them permission to continue along the same path.

    If you consider the ages of the Counterspinners, it’s not hard to work out their motives. Other than the egotistical Kent Parker, and the attention seeking Melanie White, the large majority of members are either women in the fifties/sixties, or elderly men. The other dregs are connected to the family or detectives/ambulance staff. Consider these relationships and ages, and the answer for their behaviour is obvious.

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  113. flipper (3,952 comments) says:

    And cheers to you… and a happy and prosperous 2014, Rowan.

    That is as good, if not better, analysis of “why” that I have hitherto seen. You know what they say about pride and falling?
    A classic case or two, no ??

    As a matter of interest, and on the topic of madam nasty, I am somewhat surprised that she has not sent a public rocket to the judiciary on the tardiness of the judges hearing the preliminary Bain JR case, and the Karam v dimwits libel case..

    Writing up a complicated case decision can take time. But then that must not be allowed to interfere with all those leave entitlements. Bugger the litigant. We, and our over-endowed leave entitlements, are more important. :-)

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