Not guilty not necessarily innocent


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.

Home should be safe


Justice Minister Amy Adams has launched a review into New Zealand’s family violence legislation:

“Combating family violence is my top priority. The rate of family violence in New Zealand is horrific. While the Government has a comprehensive work programme underway, I think the law can do more to reduce the incidence and impact of family violence,” says Ms Adams.

“This review won’t shy away from taking a hard look at our laws and raising some challenging questions. The reality is if we want different outcomes we have to be prepared to do things differently.

The law underpins our response to family violence, so we need to make sure the broad set of laws that apply to family violence are effective and work well together.

The discussion document raises a number of starters for discussion, including:

  • establishing a set of standalone family violence offences
  • creating an additional pathway for victims, perpetrators and whānau who want help to stop violence, but don’t want to have to go to court
  • ideas about improving the accessibility and effectiveness of protection orders
  • doing a better job of sharing information where family violence concerns arise between agencies and within the courts
  • considering compelling police action in certain circumstances such as requiring mandatory arrest for all breaches of protection orders
  • more prominence to victim safety in related legislation like the Care of Children Act and bail and sentencing law.

“When it was passed in 1995, the Domestic Violence Act was world-leading. It set out a clear response to family violence and distinguished it from other forms of crimes. While successive Governments have modified it over the years, it’s time for a rethink,” says Ms Adams.

“Laws are not the whole picture. We can’t legislate our way out of this. But our laws are a cornerstone element in how we respond to family violence.

“This Government is committed to better addressing the high rate of family violence. The home should be a safe place for all women, children, and men and we want to do our best to protect victims from re-victimisation. 

“This review is just one part of government work toward a coordinated, integrated and efficient response to family violence and sexual violence and is a central part of the cross-government package announced last year by Prime Minister John Key.”

The public consultation opens today at and runs until 18 September.

We have moved on from the time when family violence was regarded as “only a domestic” but it is still a serious problem.

Violence is not acceptable anywhere. It is worse at home which ought to be a safe place.
New Zealand National Party's photo.

Public Interest Project launches


The New Zealand Public Interest Project is being launched in Christchurch today.

What does it do?

In even the fairest justice system, there are those who fall through the cracks. The New Zealand Public Interest Panel was founded on the belief that it is in the highest interest of the New Zealand public to investigate and appeal potential miscarriages of justice wherever possible.

In some countries, such as in England and Scotland, there are Criminal Cases Review Commissions whose role is to pursue these miscarriages and see that they are amended. While these organisations were created and funded by Acts of Parliament, no such Act exists here in New Zealand. 

We see this as an important absence in our country’s legal system, and so we decided to create one ourselves. 

The New Zealand Public Interest Project was founded by a volunteer team that includes prominent lawyers, academics, investigators and forensic scientists, all of whom are committed to acting in the interest of the public. Prior to the launch of NZPIP, members of this team have been privately involved in public interest cases and potential miscarriages of justice such as those of Teina Pora, Michael October, Mark Lundy and David Bain.

NZPIP is supported by the University of Canterbury School of Law, whose facilities help us to keep costs low. UC law students also play a key role in NZPIP, both as volunteers and working for course credit. Their involvement gives us the manpower to keep running on a day-to-day basis but also provides a great opportunity to develop

We take cases that we think are in the public good, whatever they may be. This includes appealing miscarriages of justice against individuals, but can also extend to civil matters where access to justice is inhibited or where there is a public interest which would not otherwise be  effectively served. This may consist of test cases or class actions where the rights of many citizens are affected, or cases where issues of considerable public interest are involved, such as human rights and freedom from discrimination, civil and political rights, or commercial or consumer matters where fundamental economic security are at risk including health, work, and accommodation.

The people behind NZPIP are:

* Dr Jarrod Gilbert, a sociologist and lecturer at the University of Canterbury and a coordinator of the Criminal Justice Degree. He is also the lead researcher at Independent Research Solutions.

* Tim Mckinnel, a Director of the investigation firm Zavést.

* Nigel Hampton  OBE QC.

* Dr Anna Sandiford, a forensic science consultant and director of The Forensic Group Ltd, a scientific consultancy based in New Zealand with extensive national and international networks of experts.

* Kerry Cook, a barrister and a member of the New Zealand Criminal Bar Association Committee.

* Glynn Rigby, the founding Director of investigation firm Zavést.

* Dr Duncan Webb, a expert in Professional Responsibility and Liability.

* Associate Professor Chris Gallavin, the Dean of Law and the Head of the School of Law at the University of Canterbury.

Restorative justice to cover country


Justice Minister Judith Collins has announced restorative justice services will be expanded and rolled out to all courts in the country.

An additional 2,400 restorative justice conferences – totalling 3,600 in 2014/15 – follow the Government’s $4.4 million investment in adult pre-sentence restorative justice as part of Budget 2013.

Ms Collins says investing in pre-sentence restorative justice will help deliver results, give victims a voice in the justice system and make victims strong.

“We know participation in restorative justice can result in a reduction in the reoffending rate of up to 20 per cent when compared to offenders who did not participate,” Ms Collins says.

“As well as delivering more services in existing centres, restorative justice will now be in courts where it was not previously or readily available, such as Alexandra, Queenstown, Gore, Taihape, Dannevirke, Taumarunui, Huntly, Morrinsville, Whakatane and Wairoa.

“Expanding restorative justice services across New Zealand will help the justice sector meet the Government’s Better Public Services target of further reducing reoffending by 25 per cent by 2017 – already reoffending is down by over 9 per cent.”

Ms Collins says restorative justice is also particularly effective at reducing victimisation and repeat victimisation. The 2011 Victim Satisfaction Survey showed 74 per cent of victims who attended a conference felt better.

The roll-out of new services will start from October 1 following decisions made by the Ministry of Justice as part of an open tender process.

Helping victims and reducing reoffending make the extra money spent on this initiative well worth while.

Urewera Operation Eight still before courts


Former Police Minister Annette King was interviewed about the Urewera trial on Q&A yesterday.

Attorney-General Chris Finlayson wasn’t impressed:

This morning Labour MP Annette King appeared on television and made allegations about the Operation Eight investigation which occurred when she was Police Minister.

There are three on-going matters in the trials arising out of that operation:

1. The defendants’ sentencing on the firearms charges where guilty verdicts were returned;

2. The possibility of the defendants appealing those guilty verdicts; and

3. The Crown Solicitor’s decision on whether or not to seek a re-trial on the charges where no verdict was returned.

It is extremely disappointing a former minister of the Police would make these comments on television when she knows full well the Court process must run its course without political interference.

Government ministers will be making absolutely no comment while these matters are unresolved.

It is inappropriate for anyone, but particularly for politicians, to comment publicly on matters that are before the Courts.


Cleaning from the inside


Quote of the day:

 This kind of tattoo is best removed from the inside outwards. Macdoctor

First idiot racer’s car to be crushed


A Milton idiot will be the first to lose his car crushed under new legislation:

Eighteen-year-old Karn Clarrie Forrest, of Milton, appeared before Judge Stephen O’Driscoll in the Balclutha District Court, sitting in Gore, today on two driving charges.   

Forrest was charged with driving while disqualified and driving a vehicle with a sustained loss of traction on State Highway 1 north of Milton on September 29 . . .

Prosecutor Sergeant Penny Stratford noted as it was Forrest’s  third conviction for driving with a sustained loss of traction and under section 129A of the Sentencing Act – which  was amended two years ago – his car could be confiscated and  destroyed.   

The Land Transport (Enforcement Powers) Amendment Act and the  Sentencing (Vehicle Confiscation) Amendment Act – legislation specifically targeting street racers – came into force in  December 2009. . .

 Judith Collins got the nickname Crusher as the architect of this legislation and said she would look forward to pushing the button for the first crushing.

However, she has been promoted in the new Cabinet, so that pleasure might go to her successor, Anne Tolley.


A question of reputation


If you have done something which is serious enough to require name suppression so as not to damage your reputation, do you still deserve the reputation?

The law was changed this year to be explicit that being well-known was not by itself a good reason for name suppression but it doesn’t take effect until next March.

Meanwhile, it is difficult to understand why a former All Black gets his name suppressed, at least in the interim, to protect the victim, when a woman doesn’t although their appears to be a case for doing so to protect her daughter.

National to tighten bail laws


Justice Minister Simon Power has announced a series of changes to bail laws aimed at improving public safety.

The changes build on work the Government achieved in its first 100 days in office to reverse Labour’s 2007 decision which made it
easier for defendants to get bail.

“This announcement fulfils the other half of our 2008 election promise to review aspects of the bail system,” Mr Power said.

The changes were canvassed in a public consultation document released in March which was open to public submissions.

“These changes are designed to achieve the right balance between public safety and a defendant’s right to be considered innocent
until proven guilty, and to not be arbitrarily detained.”

If National is relected the proposals will be included in a Bail Amendment Bill to be introduced to Parliament early next year.

They include:

Reversing the burden of proof to target defendants arrested for the worst crimes and those at highest risk of offending while on bail:

  • Defendants charged with murder  or serious class A drug offences will have to prove they don’t pose a risk to the public or their trial in order to be granted bail, as opposed to the prosecution having to prove a defendant poses a risk of absconding, interfering with witnesses or evidence, or offending while on bail. The reverse burden for murder recognises the seriousness of the offence while
    for class A drug offences it recognises that a third of defendants offend while on bail.
  • Widening the list of violent and sexual offences where the reverse burden of proof applies to those with a history of such offending to include sexual conduct with a young  person under 16, kidnapping, aggravated burglary, and assault with intent to rob. This focuses on defendants with the highest risk of committing serious offences while on bail, rather than those with the highest rates  of offending on bail (which may include non-serious or trivial offences).

Improving the integrity of the bail system:

  • To confirm current practice,  making it clear in legislation that bail will not be granted in return for  information. Public safety and a fair trial must be the primary concern when deciding whether to grant bail. Bail should not be used as a bargaining chip in return for information from the criminal underworld.
  • Increasing the penalty for failure to answer Police bail so that the offence is punishable by up to three months’ imprisonment, in addition to the existing penalty of a fine of up to $1000.
  • Reducing the number of  situations where a defendant is “bailable as of right” because some of these offences can cause serious harm to others (e.g. abandoning children, injury by an unlawful act, and failing to provide the necessaries of life).
  • Putting the electronically monitored bail regime into legislation to ensure it is administered consistently and effectively.

Strengthening bail for young offenders: 

  • Making defendants aged 17 to 19 years old who have previously served a prison sentence subject to the standard (adult) tests for bail, rather than the strong presumption in favour of bail that currently applies (a court may remand a defendant of this age in custody only if it is satisfied there is no other course of  action acceptable in the circumstances, or if the reverse burden of proof  applies). Between 2004/09 more than half of young defendants in this category offended while on bail.
  • Enabling the court to detain defendants under 17 years of age who significantly or repetitively breach bail conditions. Currently, unless it is a particularly serious breach of bail conditions there is little police can do to immediately act on a breach.
  • Enabling police to uplift young defendants found in breach of court-imposed curfews, and return them home or to a place where they will comply with the curfew.

“New Zealanders have a right to feel safe in their homes and their communities and these changes reinforce that.

“These changes will improve public confidence in the bail system and ensure that bail will be harder to get in marginal cases where the court would previously have had no choice but to release a defendant on bail.”

The changes will result in some increased costs, such as additional costs for legal aid, and costs resulting from more defendants spending time in prison pending trial. The estimated cost for this is up to $4.5 million which will come from existing baselines.

There is a large grey area between the rights of accused people and public safety. These proposals are tough and err on the side of safety.



Police were criticised for charging the man whose tragic error led to his son drowning after the vehicle the father had been driving rolled into Lake Dunstan.

We might ask why they can’t have discretion in cases like this, but I do understand the danger of giving police the power which belongs to a judge and/or jury.

Judge Blackie who discharged Ashish Macwan  without conviction made that point:

 At his sentencing today Judge Blackie said he agreed with  Macwan’s lawyer that his “carelessness was minimal”.   

The police did not oppose the discharge without conviction and Judge Blackie said it was right for the police to bring the matter to court.   

“It is not for the police to decide the outcome, but the court.”  

That is a just outcome for a tragic case.

No punishment could be greater than the knowledge that Macwan’s carelessness, however minimal, led to the death of his son.

But that decision should be the judge’s not the police’s.

Justice no longer delayed


Justice delayed is justice denied and bottle necks in our courts are a growing problem.

Justice Minister Simon Power has released plans to streamline proceedings including:

  • Requiring the defence to identify and disclose issues in dispute before a trial. This is estimated to result in a savings of 450 court days a year, or 10% of the expected total trial sitting time under the new regime
  • Allowing courts to proceed in the absence of a defendant if the court is not satisfied the defendant has a reasonable excuse for their absence.
  • Requiring the court to take into account a defendant’s compliance with procedural matters as a mitigating or aggravating factor at sentencing.
  • Allowing the court to impose cost orders against the prosecution, defendant, and defence counsel if it’s satisfied they have failed, without reasonable excuse, to comply with a procedural requirement.
  • Allowing greater flexibility to continue with a trial when jury numbers fall to 10.
  • Ensuring guilty pleas are entered as early as practicable to help avoid unnecessary delay.
  • Promoting out-of-court discussions between parties so there are fewer adjournments and shorter hearings.
  • Reserving jury trials for the most serious and complex cases, including by raising the threshold for a defendant electing a jury trial from crimes carrying a penalty of more than three months’ to those carrying more than three years’ imprisonment. This is expected to cut the jury trial workload by 300 to 600 trials a year (a reduction of 25-45% in the jury trial workload).

He said  the changes have the potential to free up 16,000 court sitting hours each year by delivering benefits which include:

  • 43,000 fewer court events. 
  • 1,000 to 1,400 fewer cases that need to be designated for trial by jury. 
  • 300 to 600 fewer cases that actually proceed to a jury trial. 
  • Shaving about 13 weeks off the time it takes for a jury trial case in the District Court or High Court to go through the pipeline from the time charges are laid to completion.
  • Savings of about $24.3 million over a five-year period.

“I’m a strong believer that justice delayed is justice denied, and this bill will ensure that timely justice is delivered for victims, witnesses, defendants, and the community.

“The key legislation currently in place dates back to the 1950s and has been subject to years of ad hoc reform.

“It’s been clear for some time that the excessive costs, the undue delays, and the needless complexities which govern criminal procedure needed to be addressed.

“We cannot continue to mask delays and inefficiencies in criminal procedure by simply building more courthouses and appointing more judges.

“I’m committed to improving the criminal justice system, particularly for those who find themselves in it through no fault of their own, while maintaining a defendant’s right to a fair trial.

“I’m confident this bill will achieve both.”

 Delays aren’t fair to the accused, victims or witnesses. They add to the costs in both financial and emotional terms.

These changes, at first reading, look like they’ll stop unnecessary delays without prejudicing the right to a fair trial.

If not, people with concerns will have an opportunity to add safeguards during the select committee process.

Vet struck off, doctor still practising


A vet, who placed bets on dogs for which he had responsibility, has been found to have breached the Veterinary Council of New Zealand’s code of professional conduct.

A GP found guilty of disgraceful conduct for having sex with a teenage patient hasn’t been named and is still practising.

The doctor could be struck off by the Medical Council and banned from practising, but hasn’t been yet and has name suppression. The vet who was found guilty of a less serious offence has been named and already been struck off.

It may just be an unfortunate coincidence that these two cases are in the news at the same time and it may not be fair to compare them. They are different people, found guilty of different offences by different professional bodies at different times.

But it appears the Vet who was found guilty of a lesser offence has received a tougher penalty, at least so far, than the GP found guilty of a more serious offence.

I’d rather have a vet who’d done something he shouldn’t have at dog races still being able to treat animals than a doctor found guilty of having sex with a teenager still being able to treat people.

Victim impact report censored


Gil Elliot, the father of Sophie who was murdered by Clayton Weatherston, wants changes to the law to allow greater freedom of expression for people giving victim impact statements.

The statement he delivered to the court before Clayotn Weatherston was sentenced was heavily censored and he is justifiably angry about that.

There is something wrong with a justice system which allows an accused person to besmirch his victim’s reputation but censors her father’s victim impact statement.

You won’t find breaches of court orders here


A large number of people have landed here while searching for a name. It has been linked to a news item about a court case in which the judge has suppressed any information which will identify the people involved

Anyone wanting to find out news or views on the person or issue won’t find anything here.

I won’t pretend to be a media – or any other – law expert but I do understand and respect suppression. If a judge makes an order I’m not going to breach it directly or indirectly with cryptic links, innuendo or by joining dots between stories.

Comments on blogs about a recent court case while it was under way led to suggestions a test case might be made because bloggers were unaware, or careless of, the fact they are subject to the same laws as other media. Several posts on other blogs about a current case show some either don’t know, or don’t care, about the risk they are taking in breaching a suppression order.

I do which is why I won’t be writing anything at all about the case or the people involved in it.

How free are they?


We were wandering round Duomo Plaza in shorts and short-sleeved shirts appropriate to the mid summer temperatures when we noticed three women encased head to foot in black robes with only their eyes peeping out.

“How awful to have to dress like that,” one said.

“It’s their choice,” another replied.

But is it? Do the women who wear these all-enveloping clothes freely choose to do so?

Even if they do, what does it say about the attitude of their men, if a glimpse of flesh is regarded as obscene or an incitement to lust?

And what happens to women who choose to dress in less concealing clothes?

When the law follows the religious dogma, they risk punishment. Lubna Ahmed Al-Hussein, a Sudanese journalist faces 40 lashes because she wore trousers to a restaurant.

She could claim UN immunity but she wants to be tried in the hope of proving there is nothing in the Koran which makes it wrong to dress as she did.

She’s not alone. The Arab Network for Human Rights Information is backing her.

ANHRI calls on “all human rights NGOs interested in freedom of expression and women’s rights to back up Lubna and make efforts to stop this charade trial that violates all international treaties defending freedom of expression and women’s rights asserting that the Sudanese government persecutes antagonists in every possible way and would not refrain from using the worst laws and practices.”

The women of Vejer de la Frontera in southern Spain used to have to wear the cobijada.


It wasn’t a desire to give women more freedom which led to it being banned, it was security issues. During the Civil War in the late 1930s, men used the cobijada to disguise themselves and conceal weapons so it was outlawed.

LVT backs farmers on amenity values


The Otago Land Valuation Tribunal has backed farmers in their case against the inclusion of amenity values in rents for high country pastoral leasehold land.

This is a victory for farmers and common sense.

The previous government had instructed valuers to include amenity values including views and privacy when assessing rents farmers with pastoral leases pay.

It would have meant steep increases in the cost of farming the high country which bore no relationship to its earning potential.

Rents have always been set on land exclusive of improvements and the tribunal’s ruling has backed this stance.

Jonathon and Annabel Wallis of Minaret Station took a test case to the tribunal with the support of the High Country Accord.

It has been an expensive and worrying process for them and their supporters.

The ruling could be appealed but the change of government makes that unlikely.

Ministers have been careful not to pre-empt the judgement but earlier statements from them on the matter suggest they will not only accept the tribunal’s ruling, they will be supportive of it.

Alf Grumble’s approval of the ruling suggests he will be lobbying for that. Although I suspect that won’t be necessary because unlike the previous administration this one appreciates that a sheep isn’t worth any more because the land it grazes has a good view.

The ODT and Southland Times have reports on the case.

Prison for sale


The suggestion that prisoners be housed in containers has got a lot of attention, to which debate Not PC and Stephen Franks add  some facts.

Meanwhile the now disused Dunedin Prison is up for sale and the ODT is running a poll on options for what it might be used for: a boutique hotel, backpackers, exhibition space, museum or bar.

I think it would be easy to market it as a backpackers. Young travellers would take a lot of delight in sending postcards home saying they’d spent a night in gaol.

Time for a public conversation


Jim Hopkins is right:

It’s impossible to know how many people suspect the competence of the police to investigate major crimes. But it’s reasonable to suggest the percentage is statistically significant.

One conversation at one party on one Saturday night can’t be proof – but it can be a pointer.

And what it points to is something corrosive and damaging, something that needs to be addressed. Something we should be talking about – not in private but in public.

And the police probably need to start the conversation. First by acknowledging there is an undercurrent of distrust in the community they serve. And second by conceding they’re aware of its cause.

Read the full column and start the conversation, not to bash the police but to rebuild trust in them.

Bain not eligible for compensation


David Bain isn’t eligible for compensation under current rules for the 13 years he spent in prison, Otago University Dean of Law Mark Henaghan says.

He said there were four requirements to satisfy for compensation:

The first was to be convicted of a crime, the second was to have it quashed in an appeal without an order of retrial, the third was to be alive and the fourth was to personally prove innocence.

Because the Privy Council “clearly ordered a retrial” when Mr Bain’s convictions were quashed, the Cabinet would need to reconsider the guidelines and the other two would still need to be satisfied.

If political pressure was strong enough, the Cabinet might change them, he said.

A not-guilty verdict counted for his acquittal but did not prove Mr Bain’s innocence, Prof Henaghan said.

Apropos the last point, the trial was held in Christchurch rather than Dunedin because of the difficulty of finding jurors who didn’t already have firm views on the case in the city where the murders took place.

We were in Dunedin yesterday where the case was the topic of conversations and we were with people from there last night. They all had very firm views and none of them agreed with the verdict.

But none of them was in court, heard all the evidence and had to make a decision beyond reasonable doubt.

And there views might not have been representative: an ODT poll asking opinions on the verdict has 50% of respondents agreeing with it, 30 disagreeing and 20% not sure.

Not guilty – what will it cost us?


David Bain has been found not guilty.

Wonder how much compensation he’ll be seeking?

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