Prurience or public interest?

November 15, 2019

The media is reporting a lot of detailed and sexually explicit evidence in its coverage of Grace Millane’s modern trial.

I can only imagine how harrowing  it must be for her family to sit through it all.

It’s been hard enough coming across it in the news without knowing anyone involved.

I have not read anything of the trial but haven’t been able to avoid hearing about it in news broadcasts.

I’ve also heard talkback discussion on whether we’re getting too much information.

The media’s right to report and the public’s right to know are important planks in an open justice system. But the line between what’s in the public interest and prurience can be a very fine one.

 


Peter Ellis 30.3.58 – 4.9.19

September 4, 2019

Peter Ellis has died.

Ellis, 61, died at a hospice about noon on Wednesday after battling advanced bladder cancer. He had been fighting to clear his name some 26 years after he was convicted of sex offences against seven children at the Christchurch Civic Creche. . . 

The Supreme Court indicated it would consider hearing Ellis’ appeal even if he died before the hearing date.

The court had scheduled the appeal to be heard over four days from November 11 to 14 with one reserve day if needed. . . 

Lynley Hood, the author of A City Possessed, a book about the case, convinced me of Ellis’s innocence.

I hope the case is heard and gives his family and supporters the justice for which they’ve been fighting.

 

 


Fair not equal, equal not fair

November 13, 2017

How very sad for everyone involved that a dispute over a will ended up in court:

A woman who claimed it was unfair her brother was left the family farm while she received $1 million and a bach has again failed to get a bigger slice of their parents’ estate.

The Talbot family has been farming in South Canterbury for generations. The principal farm, Kingsborough Farm, was initially bought by the siblings’ grandfather in 1915.

It was run by Edwin and Pamela Talbot until their elder years when their only son, Graham, took over the management and financial responsibility of Kingsborough from 2006.

When Edwin and Pamela died in 2014 and 2015, respectively, they granted probate of their estates to Graham in their wills – something that had previously been discussed among the whole family.

“The evidence at trial established that Graham worked long hours on Kingsborough, that he took minimal drawings, and that it is likely that the farm would have had to have been sold if Graham had not left school to work on it,” the Court of Appeal’s decision said. 

This is not an unusual situation.

One or more family members works on the farm, taking minimal drawings, ploughing more  back into the farm; making a significant contribution to the maintenace, development and capital growth of the property; and earning a bigger share of the estate than other family members who sacrifice and contribute nothing.

Jillian and her sister Rachel – an “unwilling but necessary” participant in the court proceedings – had not shown an interest in working on the farm, which their parents had wanted to keep in the family.

“It was their intention from at least 1999, and probably earlier, that Graham, as the only child who had shown any interest in farming Kingsborough, should receive the family farm, and that Rachel and Jillian should share equally in the remainder of their estates.”

The couple left Jillian and Rachel over $1m each with Jillian also being given the family bach.

The Court of Appeal said the key issue for it to determine was whether or not adequate provision had been made from the estate to meet Jillian’s needs. . .

“In our judgment, a sum a little in excess of $1 million is, on any objective assessment, and at the least, a moderate amount. It is not provision so small as to leave a justifiable sense of exclusion from participation in the family estate,” the decision said. . . 

The farm was worth $4 million.  That wouldn’t be a large property and it’s probable an equal division of the estate would have forced more debt on the business than it could sustain.

Farm succession and inheritance can be complex and in situations like this equal isn’t fair and fair isn’t equal.


Good result for good man

May 10, 2017

Whanganui MP, Chester Burrows has been found not guilty of careless driving.

The case related to an incident in which two women were injured during an anti-Trans Pacific Partnership (TPP) protest in Whanganui in March last year. . . 

In her decision, Judge Stephanie Edwards said there was no contention about whether or not Mr Borrows’ vehicle had come into contact with the women involved but the onus was on the Crown to prove he had been careless in doing so.

She said it was clear from the video evidence that the car never came to a complete halt but she accepted the MP’s evidence that he was aware of the people in front of him.

“He was prepared to stop if the police directed him to do so and he would’ve stopped if he had thought the safety of the protesters was at risk.” . . 

“What I knew at the time [was that] there had been threats made and … there was a protest going on outside and blocking our passageway.”

He said, at the time of the protest, he had perceived the threats to include a woman with a baton-sized wooden flagstaff.

There had also been a prior run-in with protesters and one of them climbed on his car, he said.

“I’m not a delicate wee flower and I don’t take offence easily and I wasn’t panicking, I knew exactly what I was doing and what my role and responsibility was.” . . .

He is a former police officer and that training influenced his actions:

. . . He said he feathered the brakes and was ready to stop at any point if he felt he needed to.

The driving was similar to what he did at similar incidents during his 24-year police career, he said. . .

The not guilty verdict is a good result for a good man.

He was driving slowly and carefully in the face of threats, real or perceived, from protesters who, from what I’ve seen in video footage, appeared to put their protest before their own safety.

In New Zealand, unlike most other countries, people have very ready access to MPs. That shouldn’t  extend to using protest to impede their movements.

People have a right to protest but not in a way that infringes the rights of other people, politicians or not, to go about their business, nor in a way that endangers themselves or others.


Not guilty not necessarily innocent

August 2, 2016

Justice Minister Amy Adams has confirmed that David Bain’s application for compensation for wrongful conviction and imprisonment has been concluded:

“This case has been one of the most complex, unique and high profile cases New Zealand has ever known,” says Ms Adams.

Ian Callinan QC, a former Justice of Australia’s highest court, was appointed by Ms Adams on 19 March 2015 to provide advice on Mr Bain’s claim. Mr Callinan’s report was received by the Minister on 27 January 2016.

“Mr Callinan’s report found that Mr Bain has not established his innocence on the balance of probabilities. As such, no statement of innocence or compensation payment will be made to Mr Bain.

“However, the Crown recognises that the compensation application process has lasted nearly six and a half years and that this has been an incredibly difficult and complicated case for all involved. Reaching this point has taken longer than anyone would have wanted it to.

“In addition, since receiving Mr Callinan’s final report it has become evident that Mr Bain and his advisors didn’t accept Mr Callinan’s findings. They made it absolutely clear that they intended to legally challenge that report, leading to considerable further cost and delay in this matter.

“While the Crown is confident in the strength of its position in any such review, it’s clearly desirable to bring finality to this case and avoid the cost and uncertainty of further proceedings.

“In my view, no one benefits from this matter continuing to drag on. In light of that, the Crown has agreed to make an ex gratia payment of $925,000 in recognition of the time involved and expenses incurred by Mr Bain during the compensation process, and the desirability of avoiding further litigation.”

Mr Bain has accepted this payment in full and final settlement of all matters.

“This resolution is a pragmatic one that recognises the unique circumstances of this case and a desire on all sides to bring this matter to a close,” says Ms Adams.

“While many New Zealanders hold strong views on the case, the complexities of the evidence and the opinions that evidence has given rise to, are such that those views are likely to continue to be firmly held without clear resolution.”

“While the issue has divided opinion in New Zealand, I am satisfied that the matter has at least now been concluded.”

The Minister is quite clear the payment is an ex gratia one and not compensation but that won’t stop others using it as a precedent.

The two Callinan reports are  here and here.

From part way down page 114 in the first one, Mr Callinan lists objective or otherwise incontestable facts.

From page 118 he lists contestable facts.

From page 138 he gives his conclusion and the reasons for it.

New Zealand juries are required to find people guilty or not guilty beyond reasonable doubt. If the jury has reasonable doubt as to the accused’s guilt it has to opt for not guilty.

Being found not guilty beyond reasonable doubt doesn’t mean the accused has been proven to be innocent.

Unlike in a court, Bain and his supporters had to provide enough evidence to find him innocent and Mr Callinan found they were unable to do so.


Right to die is right to kill

June 5, 2015

Justice David Collins has ruled it is up to parliament to amend the Crimes Act to give doctors the right to help patients die without prosecution.

Lecretia Seales was unsuccessful in seeking a landmark High Court ruling to allow her doctor to help her die without criminal prosecution.

Justice David Collins released his judgment at 3pm which rejected her bid and said only Parliament can give her what she wanted. . .

Ms Seales died of natural causes at 12.35am this morning, just hours after her family and lawyers received the ruling.

The health of the 42-year-old Wellington lawyer with terminal brain cancer had deteriorated rapidly in the days since her court case last week where she was seeking a declaration that a doctor would not risk prosecution if they were to help her die.

Her family said they were “very disappointed with Justice Collin’s judgment. He found in our favour in relation to the evidence before him, but his interpretation of the purpose of the law meant he could not find aid in dying was available to Lecretia or inconsistent with the Bill of Rights.”

They added: “The judgment has starkly highlighted that the status quo is not ideal; that people are at risk of intolerable suffering and are at risk of ending their lives earlier than they would otherwise. Justice Collins was clear that it is for Parliament to address these issues. . .

The grief Lucretia’s family and friends will be dealing with will be compounded by their disappointment that the case which occupied so much of her final weeks was unsuccessful.

They might choose to honour her memory by campaigning for a law change.

None of us would choose to suffer nor to watch anyone we love suffer.

That suffering might not just be intense physical pain, it could be the loss of dignity which physical and/or mental deterioration can lead to.

But euthanasia is not just about people’s control over their own lives and deaths.

As I wrote on this issue six years ago:

. . . There might be a grey area now about pain relief which gets to the level where it could be fatal but there is a huge gulf between alleviating pain and deliberately killing someone.

If we ever consider our own mortality most of us would choose to die without pain and with all our faculties intact.

Life and death aren’t always that tidy and palliative care isn’t always optimal.

That is a very strong argument for better palliative care, not an argument for euthanasia. . .

Those arguing for euthanasia talk about the right to die.

Let us not forget that it would give doctors the right to kill.

UPDATE:

The judgement is here.

The family’s response to the judgement is here.


Banks acquitted

May 19, 2015

The case against former Auckland mayor and Act leader John Banks has been thrown out:

The Crown misled the Court of Appeal by failing to disclose a document to John Banks ahead of an appeal hearing, according to a new judgment.

But the three senior judges this was an “error of judgment rather than misconduct”.

The case against Mr Banks has been thrown out and he will not face a second trial for allegedly filing a false electoral return.

The Court of Appeal has sensationally reversed its previous decision to order a retrial following the late disclosure of a document, which Mr Banks’ lawyer David Jones QC said “contradicts all evidence given at trial” by the Dotcom witnesses and made the prosecution “untenable”.

In a judgment just released by the Court of Appeal, Justices Ellen France, Forrest Miller and John Wild ruled that Mr Banks should not stand trial again and he was acquitted.

The senior judges disagreed with the Crown’s argument that the ‘Butler memorandum’ did not need to be disclosed.

“We hold rather that the Crown could not both withhold the memorandum and resist the appeal in the manner that it did. The effect was to mislead the Court.

“We are satisfied that there has been a serious error of process. It is, we accept, attributable to an error of judgment rather than misconduct.” . .

 That error of judgement does not reflect well on the court.

The trial largely hinged on the credibility of who was right about a contentious lunch at the Dotcom mansion. Banks was convicted but his wife Amanda later unearthed new witnesses who corroborated their version of events, so the Court of Appeal quashed the conviction and ordered a retrial. . . .

Mrs Banks, understandably, did not take kindly to the judge in the earlier case accepting Kim Dot Com’s word rather than hers:

 . . The Court of Appeal’s decision notes Mrs Banks “was stung by the Judge’s opinion of her reliability”.

“She became quite obsessed as she puts it, with identifying the two Americans. . .

That obsession led to the evidence which secured her husband’s acquittal.

 


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