Labour and human rights

July 14th, 2014 at 3:00 pm by David Farrar

Article 11(1) of the Universal Declaration of Human Rights says:

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.

’s policy to make people accused of sexual assault prove their innocence is in stark contrast to this. are saying that the presumption of innocence will be reversed if you are accused of sexual assault or , if the only issue is consent, not that sex occurred.

The Green Party has policy saying:

Encourage commitment to international as contained in the Universal Declaration of and other international conventions, and support the work of the International Court of Justice and the International Criminal Court.

So my question to the Greens is, do they support Labour’s policy to reverse the burden of proof for consent in rape cases?

How can you claim to support the UDHR and even entertain for a second Labour’s policy?

While David Cunliffe has backed away from the policy, saying they are just considering it, Andrew Little explicitly said on Twitter changing the burden of proof is policy, and Little is still advocating for the change. Until such a time as Labour unambiguously says there is no chance of a change to burden of proof under Labour, the only safe thing to do is assume it is likely to occur if they get into Government.

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41 Responses to “Labour and human rights”

  1. mikenmild (10,720 comments) says:

    This might already be partially the case in the UK. From Wikipedia:
    ‘Furthermore, in sexual offence cases such as rape, where the sexual act has already been proved beyond reasonable doubt, there are a limited number of circumstances where the defendant has an obligation to adduce evidence that the complainant consented to the sexual act, or that the defendant reasonably believed that the complainant was consenting. These circumstances include, for example, where the complainant was unconscious, unlawfully detained, or subjected to violence.’

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  2. s.russell (1,563 comments) says:

    I have an interesting thought about this policy:
    Suppose you have sex with someone and they later accuse you of rape. Not having videotaped the encounter, you cannot prove consent. So you will be automatically found guilty and go to jail.
    But if you cannot prove consent, neither can they. You could counter-accuse. Without the presumption of innocence, a court must conclude guilt. Thus both parties go to jail for raping each other.

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  3. Reid (15,947 comments) says:

    Until such a time as Labour unambiguously says there is no chance of a change to burden of proof under Labour, the only safe thing to do is assume it is likely to occur if they get into Government.

    Even if they ever say that, how does anyone know that’s what they’ll do?

    Maybe Trevor’s Moa hunt is a coded signal to everyone that something’s broken in Liarbore’s collective mind. Maybe something’s snapped in half like a twig under the strain of remaining halfway sensible in the face of the Gween onslaught of roaring mentalism as poll after poll informed the utterly insane segment of Parliament that they weren’t alone in society and tens of thousands are as mental as they are.

    Maybe it’s a ‘if you can’t beat em, join em’ rush to the cliff face called Reality in a headlong rush to see who’s the biggest mental of them all.

    Who the hell cares, quite frankly. I just wish the media weren’t quite so infested as it is with their ilk, not just because it’s dangerous but because the only cure for what we’re witnessing is a mass outbreak of humiliating pointing and laughing by those of us who remain sane, because that’s the only possible long-shot cure short of isolating them all in a place called Bedlam and we’re not allowed to do that anymore, are we. (Thanks to them…)

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  4. Cunningham (815 comments) says:

    What a bloody shambles Labour are. How on earth can you have different people advocating for different positions within the same party? How can they possibly govern when they can’t even agree with each other on what they should or shouldn’t do?

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  5. MT_Tinman (2,990 comments) says:

    s.russell (1,548 comments) says:
    July 14th, 2014 at 3:16 pm

    Suppose you have sex with someone and they later accuse you of rape. Not having videotaped the encounter, you cannot prove consent. So you will be automatically found guilty and go to jail.

    Joyce McKinney has a lot to answer for.

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  6. Fisiani (953 comments) says:

    Labour’s position is clear “All men are rapists!”
    Sex = rape
    Have sex even within a stable relationship or marriage, you are a rapist UNLESS you can prove consent.
    How can anyone prove consensual sex?
    Be afraid , be very afraid. September 20th is too close to call. We could have the government from Hell if we are not careful.

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  7. masterman (10 comments) says:

    cunningham “how can you have different people for different positions within the same party” its called democracy, at least they don’t blindly play follow my leader. Independent thought and discourse is far more conducive to establishing good policy and fairness to all than autocracy, where only one viewpoint is tolerated

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  8. enjiner (17 comments) says:

    @s.russell : the way rape is defined in New Zealand law, it can only be committed by a male. There *might* be enough ambiguity that two gay men could end up in the scenario you described, but that is the only way I could see it happening.

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  9. soundhill1 (41 comments) says:

    It’s a bit sad really, because people may start to keep away from anyone who might try to dominate them/blackmail them by applying a rape accusation. Won’t be so good going to the pub. And I don’t know how it would work inside marriage. At a massage parlour you’d need a signed statement, but even then the masseur/masseuse could say you were not abiding by the terms.

    But it’s come about because some people don’t have a good enough frontal brain working. Let’s start to look at trauma that we are presented with from birth on, alexithymia, &c.

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  10. burt (7,812 comments) says:

    Meanwhile a gay man running naked from Annette kings house claiming he was … violated … was hushed up. Good one Labour – It’s always been different when you do it !

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  11. Mark (1,362 comments) says:

    Cunningham agree under Cunliffe Labour is an undisciplined shambles. I have little idea of what Labour stands for but I can’t feel too bad because their Caucus has no idea either.

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  12. Cunningham (815 comments) says:

    masterman yes I agree nothing wrong with robust INTERNAL debate but but when it comes to releasing policy, the party should have decided at that point what it’s position will be. How can anyone vote for a party that has 2 contradictory views? Mining is the same. Who is actually in charge of these muppets? Labour are a complete joke. Unfortunately we won’t be laughing after 3 years (if they make it that far) of them if they manage to win.

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  13. Reid (15,947 comments) says:

    its called democracy, at least they don’t blindly play follow my leader. Independent thought and discourse is far more conducive to establishing good policy and fairness to all than autocracy, where only one viewpoint is tolerated

    masterman you’re obviously new to this democracy business, allow me to explain.

    THE PARTY PRESENTS ONE VIEW AFTER INTERNAL DEBATE BECAUSE IF THEY DON’T THE PUBLIC GET ALL CONFUSED AND DON’T KNOW WHAT THE PARTY STANDS FOR.

    It’s rather important to do this regardless of the policy in question and failing to do it is not a sign of healthy democracy in action, it’s a sign the party that does it hasn’t got its shit together on the most elementary things so it’s probably a very good idea to ignore it completely from here on.

    Hope that helps.

    Cunningham snap, and I wish I was as polite as you are.

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  14. kowtow (7,625 comments) says:

    I don’t give a monkey’s for ‘universal’ human rights, or international courts etc they are being used to trounce the west and it’s traditions laws and customs.

    I do care about our constitution and our British system of justice. labour are seeking to overturn that as they did with the human rights legislation they introduced here and the ending of our access to the Privy Council, something we weren’t consulted on.

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  15. Mark1 (89 comments) says:

    Why just focus on rape? Why doesn’t Labour propose that if you kill someone the burden of proof is on the accused to prove that it wasn’t deliberate (manslaughter) with the Court starting with the presumption that it was (murder)?
    They could do it with all sorts of offenses – theft, assault etc. Why only change the burden of proof to one offence (i.e. rape)? Let’s go the whole hog and change ‘em all – we’d have a real kangaroo Court then.

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  16. igm (1,413 comments) says:

    burt: What about the young man molested during a Labour Party gathering at Parliament. He had been plied with booze, after there being a discussion about whether he should be drinking or not, was evidently vetoed by none other than Helen Clark. At the time many Labour MPs were smoking dope and being absolute idiots, even abusive to security staff. This was hushed over by Labour and media, there were some hacks present, but there now appears to be a statement being made in the forthcoming future.

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  17. soundhill1 (41 comments) says:

    There’d be losers. Some people might feel threatened even more by kids begging for money around shopping malls &c.

    There are always wrongly convicted people under any legislation. But this idea might do more good knowing the amount of poor frontal brains around, who may not otherwise be able to exert self restraint.

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  18. pcplod (26 comments) says:

    There have been far too many false accusations of rape to even contemplate a catalyst for more false accusations. Rape is not more serious than GBH type assaults and should be treated the same. Lets put a stop to these political arseholes playing on the emotions of the gullible.

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  19. PaulL (5,873 comments) says:

    I understand that there are many cases where it’s “he said she said”. Everyone agrees sex occurred, but it’s not clear whether there was consent. Particularly where there is drinking or recreational drugs involved, and not everyone even has a clear recollection of what happened, but it can be true even when there are no such confounding factors.

    In this situation it is very difficult to get a conviction. This understandably makes many victim’s advocates unhappy. But it’s not because the law is being unfair, it’s because the nature of sex is that there usually aren’t witnesses other than the two parties involved, and if they say different things then there’s immediately reasonable doubt.

    The suggestion is that they move to a requirement to prove your innocence. If the rule here was that we try to minimise the number of times we get it wrong, then this works, under the assumption that only a small number of instances of allegations of rape are malicious or untrue. It means that all the incorrect allegations (whether due to confusion – that drinking again – or malicious allegations) will now incorrectly result in conviction. But all the true allegations (which previously might have failed in prosecution due to lack of evidence) will now result in a conviction. The problem is that our judicial system conforms to Blackstone’s formulation: “It is better that ten guilty persons escape than that one innocent suffer.” That formulation is the basis of innocent until proven guilty, and is the reason that this is a bad idea.

    The discussions of what it means for the 49% of NZers who are male is simply the logical extension of Blackstone’s formulation. Most men have sex at least once a year in a situation where the fact they had sex is not disputed. So all of those men are in a situation where if the other party chose to make a complaint, they’d be required to prove they had consent. Including sex with your wife or long-standing girlfriend. I know I couldn’t prove that. Sure, I doubt my partner would decide to lay a malicious complaint, but I don’t know that for certain in all circumstances. What if I did something she didn’t like? This is simply bad policy. I wonder if it’s a stalking horse for pushing through a less bad but still bad policy – surely nobody would be dumb enough to actually try to implement this?

    @Mikenmild: that UK law is very substantially different. It’s saying that if any of the aspects that would indicate no consent are there, then you need to prove you had consent. So if the lady concerned is unconscious, then yes, you’d need to provide some sort of evidence that she was OK with you having sex with her. If you’ve violently assaulted her, you’d have to provide some sort of evidence that she liked it that way. Seems to me that’s common sense really, even though it’s not written down in the law in NZ, I suspect that a jury would consider the fact that a lady was unconscious when you had sex with her as pretty good evidence that it was rape.

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  20. PaulL (5,873 comments) says:

    Oh, and I note the suggestion it applies to sexual assault as well. So it probably isn’t only a male thing – plausibly every woman who touches a guy in a sexual way, and that touching isn’t disputed, then they need to prove they had consent for that touching. It sounds pretty broad brush to me.

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  21. soundhill1 (41 comments) says:

    Thanks to Labour for being a party in which policy is not coerced upon candidates. A number of National MPs must have felt terrible having to support the Casino legislation which had always been conscience in the past.

    Thanks for starting to get the light on this rape illness. The tone of some of the writers on this group indicates they may have something to hide. Or they may be like the new Indian PM who claimed that rape is sometimes OK.

    [DPF: 40 demerits]

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  22. Kimble (4,379 comments) says:

    Whoa there DPF! 40 demerits?

    What if Soundhill is a known rapist and was posting that ironically?

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  23. gump (1,487 comments) says:

    @s.russell

    “Suppose you have sex with someone and they later accuse you of rape. Not having videotaped the encounter, you cannot prove consent. So you will be automatically found guilty and go to jail.”

    ———————-

    Something that rarely gets mentioned is that if you videotape a sexual encounter without the knowledge or consent of your partner, you’ve committed an criminal offense as defined by the The Crimes (Intimate Covert Filming) Amendment Bill 2006.

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  24. big bruv (13,292 comments) says:

    It may or may not be Labour party policy but you can bet your life savings (which incidentally will be taxed at over 50%) that it will be the policy of the stinking Greens.

    Each and every one of their male MPs, or supporters, has been emasculated. To the stinking Green females it is quite clear that all men are rapists.

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  25. unaha-closp (1,112 comments) says:

    There are always wrongly convicted people under any legislation. But this idea might do more good knowing the amount of poor frontal brains around, who may not otherwise be able to exert self restraint.

    It won’t be.

    Of all the sexual assault cases that are not reported to police, only 8% – 13% are unreported due to lack of evidence*. Of those only a very minor fraction involve any sexual encounter to which consent can be disputed.

    Labour might only go from 90% unreported sexual assault to 89% unreported sexual assault.

    It will strip us of a vital human right and lead to more innocent people going to prison.

    It is horrible policy.

    * NZCASS 2006

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  26. goldnkiwi (993 comments) says:

    A bit damned if you do damned if you don’t.

    The positives of less sex (just to be safe) are: less population growth, fewer STI’s (I am older so nearly put std’s) fewer paternity tests, less DPB, less child abuse, fewer abortions, gee it would be closer to prior to the sexual revolution. Bet every one knew whether consent was given then because sexual contact was more likely the exception not the norm especially casually.

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  27. soundhill1 (41 comments) says:

    pcplod wrote: “There have been far too many false accusations of rape to even contemplate a catalyst for more false accusations. Rape is not more serious than GBH type assaults and should be treated the same. Lets put a stop to these political arseholes playing on the emotions of the gullible.”
    I didn’t like the tone of that post. Maybe I was wrong, but I said it how I felt it. The message may be that I shouldn’t have.
    With rape there is the possibility of life-long or life-ending disease. Even if “only” herpes that may be life-long suffering. But there is also the chance of pregnancy. For people who don’t believe in abortion that means a huge commitment which cannot be ameliorated by child support. The mother has to spend her life looking after genes forced upon her, at the exclusion of ones she would choose.

    pcplod, please tell me how a child or woman in fear of being impregnated can learn to respond other than crying “rape”.

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  28. goldnkiwi (993 comments) says:

    Not called a penal offence for nothing ;)

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  29. Jack5 (4,589 comments) says:

    What about citizens’ rights not to be badgered by human rights organisations?

    At the supermarket I was solicited by two agents of Amnesty who wanted me to sign a form arranging to pay their organisation $2 a day.

    On talking to the two young collectors I found they were paid agents – students doing the job for money.

    Some of these rights organisations are badgering the Government and Immmigration to allow more foreign workers to be brought in to work as collectors, in effect pressuring people to contract to give them a donation stream. If an NZ political party or church was doing this it would be all over a Leftist show like Campbell Live.

    It seems to me some of these human rights organisations have become international commercial bludgers.
    Amnesty has done good volunteer work over the years, but it now seems to be moving into an international political pressure group, and it seems to me to be biased against Western countries.

    People – especially old pensioners and other vulnerable people – have the right to shop and move about without being badgered and conned by these international hypocrites.

    WHOOPS: Sorry for digressing a little from the thread’s target, burden of proof on rape – I was taken in by the thread heading.

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  30. Mark (1,362 comments) says:

    masterman robust internal debate over policy is a great thing and god knows labour has always had plenty of that. it is fair to expect that once a party (even the labour party) has formulated policy they would be on the same page but that is not the case because there is no discipline and no direction from the top. If Cunliffe can’t effectively lead his party how can voters trust him to lead the country.

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  31. pcplod (26 comments) says:

    Hello soundhill1 – If it is rape there will be proof; maybe hard to find but proof there will be. False accusations do more than ruin a man’s life, they cause suspicion as to the credibility of actual rape victims; common sense really.

    Point taken regarding those life-long problems. I have experience with exactly that when as a teen my casual sex partner decided she wanted to be a mother without my consent. Regardless of my feelings towards my son I had parenthood thrust upon me for life. No concern for me, no concern for my child, just a cash grab for the DPB. Bad luck for her of course when my son chose to live with his Dad.

    Your distaste for my tone is well founded. I am pissed off; pissed off with men being demonised, pissed off with fathers being devalued and pissed off with feminazis trying to punish men today for what may have happened in the fifteenth century to and by people long since dead.

    We are in this TOGETHER for goodness sake.

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  32. soundhill1 (41 comments) says:

    pcplod, still your tone: ” for what may have happened in the fifteenth century to and by people long since dead.” could imply to me that these days a woman is at fault if not using contraceptives. They should all be using them so that rape is nothing more than GBH.

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  33. pcplod (26 comments) says:

    soundhill1 – Yes still ‘my tone’

    Your last post is a bit confusing. Here’s my stance:
    1) Women and girls get pregnant, it is their responsibility. Men cannot take the responsibility as they must rely on the word of the woman/girl. And before you say it, sex is sex, conception is another matter requiring commitment and responsibility.
    2) Why should rape be more serious than GBH type assault? The affects of serious assault can also be life long. Have you ever tried to pick up an assault victim from the road but couldn’t because their head was stuck by congealed blood, brainmatter and bone? I have.
    3) If not on contraception there’s always the morning after pill etc. If a woman is not on contraception she has a moral duty to advise male sexual partners of this fact.

    Speaking of ‘tone’ What’s with your post suggesting there are some sexual offenders participating on Kiwiblog? Just because you disagree with them there is no need to be one of those false accusers many of us are concerned about.

    How’s that for ‘tone’?

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  34. soundhill1 (41 comments) says:

    pcplod you wrote: “We are in this TOGETHER for goodness sake”.

    Does that TOGETHER include the woman afraid of rape? For if it were to then together we should be attending to my question better that I wrote: ” please tell me how a child or woman in fear of being impregnated can learn to respond other than crying “rape”.”
    And you wrote:”If it is rape there will be proof; maybe hard to find but proof there will be.”
    After there is proof that is like the gun which was both presented and the trigger pulled. So now we are to the situation where a threatened person kills someone pointing a gun at him with no proof they were going to pull the trigger. What are the responses for perceived threat of rape?

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  35. Colville (2,081 comments) says:

    If this policy were made law I could see an awful lot of dodgy videos finding there way onto the net because you would want a public record just incase you were accused! :-)

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  36. soundhill1 (41 comments) says:

    pcplod wrote: “Speaking of ‘tone’ What’s with your post suggesting there are some sexual offenders participating on Kiwiblog? ”

    I had written: “The tone of some of the writers on this group indicates they may have something to hide. Or they may be like the new Indian PM who claimed that rape is sometimes OK.”

    Is that what my 40 demerit points were about?

    You say that is an accusation of sexual offending.

    Now you have implied almost that if a rapist is approaching, the victim is morally obliged to tell him she is not using contraceptives, and if he still goes ahead she will be OK because of the morning after pill, wnen it may be against her 15th century beliefs to use it. In my view if you are at least saying the morning after pill makes it not so bad, even if not going so far as the Indian PM.

    Thank you for being explicit about those beliefs I thought some people would want to have in the “hide” category.

    Next the sex act has implications. The implications for a prostitute may be different from that for a youngster exploring love, or who hopes not to be exploring it. But even rape of a prostitute or for that matter a marriage partner, may mean she did not have time to use contraception, or be able to explain she had had antiobiotics which would negate her contraceptive pill, if the rapist would stop because of that.

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  37. Simon J Taylor (31 comments) says:

    DPF: Thanks for persisting on this matter: it must really be settled for good before the election.

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  38. Dexter (272 comments) says:

    Women and girls get pregnant, it is their responsibility. Men cannot take the responsibility as they must rely on the word of the woman/girl.

    If only there was some way men could avoid getting females pregnant, some sort of tool or invention that would allow men to protect themselves from both unwanted children and STD’s. That way men who sleep with women who they don’t know or trust could take some sort of responsibility themselves. One day maybe…..

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  39. Reid (15,947 comments) says:

    soundhill1 I think the 40 demerits was probably because you’re clearly a sanctimonious plonker who hallucinates anyone who disagrees with whatever is your conclusion on a human wights matter must, by virtue, therefore clearly and unarguably be someone at least akin to the crowd who used to go and cheer at the Colosseum, if not more probably, someone who actually conducted the proceedings.

    And quite frankly mate such thinking, while typical of certain people in the political hemisphere, has no place on a civilised blog. Not least because it’s such demonstrable hypocrisy on your part to profess the beliefs you profess in respect of your alleged compassion for the human condition, while at the same time holding those views you obviously hold, based on your comments here, which you can’t deny.

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  40. soundhill1 (41 comments) says:

    Reid, I feel some readers of this group feel great attaching to myths and not having to think. But I note someone, not myself, gave you a red mark. I’ll give you an opportunity to explain at least your last sentence.

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  41. Fentex (867 comments) says:

    Here’s an interesting question; Do those people who think it is improper to presume guilt and demand evidence of innocence hold the same attitude to drug possession in NZ laws? Some of which explicitly take the position that guilt is presumed and innocence must be proved.

    For example as in this concept of accepting proof of sexual intercourse sufficient to put an onus of a person to prove it wasn’t rape we have laws applied today that accept proof of possession of certain quantities of drugs sufficient to put an onus on a person to prove they weren’t for supply.

    I don’t recall people being up in arms about that turn around of the presumption of innocence though it’s long been the practice of NZ law.

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