Herald against and Labour undecided on people needing to prove their innocence

June 19th, 2014 at 10:00 am by David Farrar

The Herald editorial:

The most contentious idea involves changing the burden of proof so it lies with the perpetrators of child abuse and domestic violence, not the victims. Allied to this is a review of the adversarial system that is said to place an excessive burden of proof on victims, and to lead often to drawn-out proceedings that further disadvantage victims and put many into significant debt.

The report says people with experience of the present model had indicated they would favour a more collaborative system.

The report is not totally out of step in advancing these views. A flipping of the deeply embedded precept of the burden of proof, whereby the necessity to provide proof lies with whoever lays charges, is no longer beyond the pale. Abusive parents must now prove to Child, Youth and Family that they are no longer a threat. As well, bail amendment legislation requires a person on a murder charge or repeat violence, class A drug or sex charges to persuade a judge that the community will be safe if they are released. New Zealand’s appalling family violence record — the police respond to a call relating to this every seven minutes, according to the report — convinces some that there is good reason to further override the principle.

These are about people who have already been convicted of an offence. That is very different to saying anyone charged should have to prove their innocence.

But any such impulse should be resisted. Arguably, the two steps taken by the Government are valid responses to extraordinary circumstances where there is a clear danger to members of society. Both do not involve such a sweeping inversion of the burden of proof principle as would be the case if it were applied to all alleged perpetrators of child abuse and domestic violence.

The precept that a defendant has the right to be considered innocent until proven guilty is too fundamental to our legal system and too strong a safeguard against wrongful conviction to be so comprehensively dismissed.

Absolutely. But sadly is incapable of even deciding they’re against such a thing.

So I’ve got an idea. If Labour is open to reversing the burden of proof on allegations, then we should start the process by alleging that they have filed corrupt false donation returns and require them to prove they are innocent!

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35 Responses to “Herald against and Labour undecided on people needing to prove their innocence”

  1. burt (8,322 comments) says:

    So I’ve got an idea. If Labour is open to reversing the burden of proof on allegations, then we should start the process by alleging that they have filed corrupt false donation returns and require them to prove they are innocent!

    DPF

    The laws they pass are for other people – move on.

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  2. Zebulon (124 comments) says:

    Notions like burden of proof have protected people for hundreds of years and they have lasted for a reason. Just because there are issues doesn’t mean that we should sweep away fundamental legal protections.

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  3. Judith (8,534 comments) says:

    So Labour want to consider the report in its entirety before making a decision on their stance, and that is considered a bad thing?

    Do we support political parties who make decisions without giving the matter its full consideration?

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  4. wikiriwhis business (4,135 comments) says:

    Guilty until innocent is the firm foundation of fascism

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  5. redqueen (583 comments) says:

    @Judith

    This is not one of those ‘grey areas’, where consideration is a good idea. Nor have they been asked in the middle of a press conference on a suddenly identified topic. This is a basic question of legal principle, which they ‘need to think about’. By the same logic, if someone issues a report saying that murder really shouldn’t be prosecuted, will Labour ‘need to have a think about it’ first?

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

    As well, bail amendment legislation requires a person on a murder charge or repeat violence, class A drug or sex charges to persuade a judge that the community will be safe if they are released.

    These are about people who have already been convicted of an offence. That is very different to saying anyone charged should have to prove their innocence.

    Well, not all. They bail one isn’t (to the extent that it’s accurate).

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  7. Judith (8,534 comments) says:

    @ redqueen (417 comments) says:
    June 19th, 2014 at 10:13 am

    Given their current experiences, I would recommend that Labour fully investigates and understands the implications of everything they do from this point on, yes, including the subject matter. They clearly have communication difficulties, and until they learn to express themselves and are able to support and back their stance, examining the full report and deciding on a stance before making any comments, is the very least they should do, on all matters for the time being.

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  8. Harriet (5,145 comments) says:

    “….Guilty until innocent is the firm foundation of fascism….”

    This current proposal will go from domestic and child abuse on to other matters – like rape —– “as a wife is hardly any different to any other ‘female victim’ who’s been raped – so why shouldn’t the ‘justice system’ apply the same ‘equality’ to her?” —– as the left will say – while going down the slippery slope of facism!

    The law in NZ has to now be about ‘equality’ – as there is a precedent!

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  9. J Bloggs (250 comments) says:

    Given their current experiences, I would recommend that Labour fully investigates and understands the implications of everything they do from this point on, yes, including the subject matter. They clearly have communication difficulties, and until they learn to express themselves and are able to support and back their stance, examining the full report and deciding on a stance before making any comments, is the very least they should do, on all matters for the time being.

    Once bitten, eh… (Although given today’s long list of gaffes, this advice is perhaps a wee bit late)

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  10. Adolf Fiinkensein (2,924 comments) says:

    This is the classic example of whyLabour is in the shit. They don’t know what thy stand for until they’ve had time to do a focus group.

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  11. burt (8,322 comments) says:

    Guilty until proven innocent – like NZ traffic laws ?

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  12. Fletch (6,497 comments) says:

    Here is what it says on the U.N website –

    Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

    No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offense was committed.

    PLAIN LANGUAGE VERSION:
    You should be considered innocent until it can be proved that you are guilty. If you are accused of a crime, you should always have the right to defend yourself. Nobody has the right to condemn you and punish you for something you have not done.

    https://www.un.org/cyberschoolbus/humanrights/declaration/11.asp

    I’m not always in agreement with everything the U.N says, but in this case, “innocent until proven guilty” ( or “Ei incumbit probatio qui dicit, non qui negat” (the burden of proof is on he who declares, not on he who denies)) is a right, at least in democratic countries.

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  13. burt (8,322 comments) says:

    Adolf

    This is the classic example of whyLabour is in the shit. They don’t know what thy stand for until they’ve had time to do a focus group. been told by the unions what the unions want.

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  14. burt (8,322 comments) says:

    Judith

    Do we support political parties who make decisions without giving the matter its full consideration?

    The latest poll shows 23% of people do.

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  15. Ed Snack (1,927 comments) says:

    Prove ones innocence, that shouldn’t be a problem surely ? After all, nobody would be so despicable as to make a false accusation in the course of a marriage breakup would they. Unthinkable, so lets do it, for the children you understand. Anyway, its only white cis-gendered men who would be affected and they’re basically scum anyway.

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  16. Nigel Kearney (1,051 comments) says:

    Confronting the witnesses against you used to be a legal right, but we casually ditched that because the same sort of activists convinced politicians it was to stressful for the person making the accusation.

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  17. Paul Williams (880 comments) says:

    David, or perhaps Graeme, correct me if I’m wrong, but there are already reverse onus ‘crimes’ under the Misuse of Drugs legislation (from memory). It’s wrong to characterise this as unimaginable if it’s already in place.

    I’ve not read the Glenn report, but it does strike me as missing the point if the only issue worth discussing is this – surely there’s other recommendations that need careful consideration and shouldn’t all political parties be doing so?

    There’s a risk that politicising this one element distracts from meaningful discussion about how to reduce domestic violence.

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  18. ross411 (881 comments) says:

    Ahh, Helen Clark doesn’t need this. Her teeth can’t stand all the grinding Cunliffe is making her do.

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  19. Unity (611 comments) says:

    Whatever the case, I feel there is something very wrong with our justice (injustice?!) system. We have the adversarial system but all too often innocent people are convicted due to evidence being inadmissable or the cleverness of attornies and prosecutors. We should be more interested in getting at the truth and the inquisatorial system sounds so much more able to do this. I know it would mean changing our whole justice system but time after time we learn of people in prison having been convicted for something they did not do – even after two trials in some cases. Equally I’m sure there are people out there who have got off for a crime they did commit, often on a technicality or some such thing.

    The whole justice system needs to be looked at. I know Judith Collins has and has said it is working very well as it is, but from where I’m sitting, it is not!!

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  20. Paul Williams (880 comments) says:

    but all too often innocent people are convicted due to evidence being inadmissable or the cleverness of attornies and prosecutors

    That’s a significant statement, ususally the reverse is claimed albeit without any evidence/data to back it up.

    What makes you say there’s a large number of flawed guilty verdicts?

    Sounds like anecdote to me.

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  21. Unity (611 comments) says:

    Well how about Arthur Allan Thomas (2 trials) for one, Paul. There are many others like David Doherty, Teina Pora, Peter Ellis (still not formally cleared but obviously innocent), Scott Watson (still in prison but identikit picture was the complete opposite to how he looked that night and he had a sloop, not a ketch so goodness knows how he ever got convicted – trial by trickery obviously), now Mark Lundy has to have a re-trial – and finally David Bain (2 trials). Pretty dodgy work if you ask me and I’m sure there are others who haven’t received the same publicity.

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  22. burt (8,322 comments) says:

    Unity

    Yes, image the saving in court costs if the state didn’t need to bother with a trial for these types of cases.

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  23. Unity (611 comments) says:

    What are you talking about, Burt? Of course there would need to be trials as someone committed these crimes. It would be ‘helpful’ and save a lot of angst and trouble if they got the correct person in the first place instead of getting a mind-set and ignoring evidence which would/could lead them to the real perpetrator. In the case of Scott Watson, lots of evidence about a ketch was given to the Police but it didn’t fit the person they already had in their sights.

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  24. RightNow (7,013 comments) says:

    Judith: “So Labour want to consider the report in its entirety before making a decision on their stance”

    You think there’s an option? They never fear to rush to judgement on anything else, why now?

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  25. RightNow (7,013 comments) says:

    “Given their current experiences, I would recommend that Labour fully investigates and understands the implications of everything they do from this point on, yes, including the subject matter. ”

    Yep, they’re lame ducks.

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  26. Paul Williams (880 comments) says:

    Unity, yes, there’s been a few high profile cases. On that we can agree. I don’t know that this is indicative of a major problem however as you appeared to be suggestnig.

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  27. burt (8,322 comments) says:

    Unity

    I think the key thing you need to do to get a grasp on this is to understand how many cases are handled by the courts every single day across NZ. The compare that to the number of ‘high profile’ cases and see what sort of percentage you are actually pointing the finger at.

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  28. Judith (8,534 comments) says:

    @ RightNow (6,562 comments) says:
    June 19th, 2014 at 3:10 pm

    Why now? I would have thought that was pretty obvious – because they seem to be having great difficulty making any sensible decisions – I think it has something to do with the fact they have put an egg is too many baskets.

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  29. UglyTruth (4,552 comments) says:

    Unity, yes, there’s been a few high profile cases. On that we can agree. I don’t know that this is indicative of a major problem however as you appeared to be suggestnig.

    It’s not just a few cases of the police fitting people up for crimes they didn’t commit, there is also the problem of the state refusing to acknowledge the existence of natural rights by promoting a perverted description of common law.

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  30. Unity (611 comments) says:

    One person in jail for something they didn’t do is bad enough, but other high profile cases too are far too many. There’s obviously something wrong with our system. How would any of you like to be in jail for something you didn’t do?

    I can also add Alan Titford to the list also. He bought his land fair and square with a proper title but he was forced off his land by the State so they could give it back to a tribe who sold it long long ago. He’s had trumped up charges against him, wasn’t allowed to have his chosen lawyer but was appointed a Crown lawyer who didn’t take a proper interest in his case and wasn’t allowed to present his own evidence. He’s now in jail for 26 years and no-one was even murdered. Murderers get far less. He’s a political prisoner.

    Sinister goings on with political interference.

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  31. mikenmild (11,777 comments) says:

    Rapist and arsonist, isn’t he?

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  32. Unity (611 comments) says:

    No mikenmild – you have bought into the trumped up charges. He did not burn his house down. His father-in-law did – to get them out of what he saw as a dangerous situation with all the serious trouble Te Roroa were causing. Rape was not proven – in fact on at least one date he was supposed to have raped his wife, her diary made no mention of it whatsoever. The Crown were even advising her at the time on how to avoid perjurying herself. There is much more to this saga than meets the eye. People who knew him well and spent a lot of time at his house, believe he has been ‘stitched up’ and the Crown isn’t an innocent party in it.

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  33. tvb (4,517 comments) says:

    Judith stepped in and ruled it out. Good to see she is back in charge. It is Judith Collins at her best.

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  34. Paul Williams (880 comments) says:

    Yeah, this thread got weird quickly.

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  35. Aussie Aussie Aussie (22 comments) says:

    Couple of things this blog can stop pretending about

    Stop pretending you care about “Justice”

    and please stop pretending –
    or don’t ever pretend you care

    about all the “murdered and tortured”
    New Zealand children.

    That are a National disgrace

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