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?

Who dunnit? Who knows? Who Cares?

Justice matters.

There was a mistrial the first time David Bain was charged with the murder of his family.

The Privy Council which ruled that, didn’t rule on his guilt or innocence.

All of which makes a strong case for a retrial.

But without deliberately reading, watching or listening to any reports on the trial, I have learned far more than I wished to know about what appears to have been a very dysfunctional family; I’ve heard far too many people who can have no idea of what happened pontificating on the case; and I’ve seen far too many reporters breathlessly imparting not very much.

There is only one person alive who was in the house on the morning of the murders and he’s in the dock. The mind can do strange things so it’s possible he killed his family but believes he didn’t.

I don’t envy the jury their job and realise the importance of them doing it carefully and thoroughly, so that whatever the verdict, the case is closed.

I hope they do it quickly because if this was a soap opera I’d have changed the channel weeks ago.

But this isn’t a show, put on for our entertainment. These were real people who were killed, this is a real man who is charged with their murders and I don’t like the way it’s been turned into a circus.

Field trial on hold because jurors can’t afford the time

The trial of former Labour MP Phillip Field has been delayed because too many potential jurors said they couldn’t afford to serve.

The trial against former Government minister Taito Phillip Field is in “limbo” after half the jury was discharged this morning.

Seven jurors – five women and two men – were stood down by Justice Rodney Hansen at the High Court at Auckland this morning after they indicated the trial would have placed them in too much hardship.

The trial has been set down for three months.

Even three days off work could be too costly for some people unless employers were prepared to bridge the gap between the compensation jurors get and normal pay.

When trials stretch into weeks and, in this case, possibly months it puts a strain on people’s finances and also impacts on their workplaces which are left to cope without a staff member or forced to employ a temporary replacement.

Some employers are prepared to top up the pay for their staff while they’re on jury service so they’re not out of pocket but not all can afford to do this, especially for prolonged trials; and if they have to employ a stand-in they end up paying twice.

Few if any self employed people could afford more than a very short time off work either and parents of young children or other fulltime care-givers would find it difficult if not impossible to arrange alternative care for any length of time too.

Unless there is a change in the system, including recompense which matches, or nearly matches, wages forgone, juries will comprise only unemployed and retired people.

Fairfax not in contempt

High Court judge Tony Randerson and senior Judge Warwick Gendell have dismissed charges  of contempt of court laid against Fairfax Media over publishing transcripts of secret police recordings in relation to last year’s terror raids in the Ureweras.

Bomber comments on this at Tumeke!

Let the punishment fit the crime

Champaign County Municipal Judge gave a defendent a tune up and offered him the chance to reduce his fine by facing the music.

But the defendent, who was charged with playing rap music too loudly on his car stereo, chose to pay the $US150 fine rather than accepting a reduction to $US35 if he spent 20 minutes listening to classical music.

Vactor, 24, lasted only about 15 minutes, a probation officer said.

It wasn’t the music, Vactor said, he just needed to be at practice with the rest of the Urbana University basketball team.

“I didn’t have the time to deal with that,” he said. “I just decided to pay the fine.”

Champaign County Municipal Court Judge Susan Fornof-Lippencott says the idea was to force Vactor to listen to something he might not prefer, just as other people had no choice but to listen to his loud rap music.

“I think a lot of people don’t like to be forced to listen to music,” she said.

She’s also taped TV shows for defendants in other cases to watch on topics such as financial responsibility. As she sees it, they get the chance to have their fine reduced “and at the same time broaden their horizons”.

I don’t know how effective these sentences are, but I like the way she tries to link the consequences to the actions which brought the defendents to court in the first place.

Or As Gilbert and Sullivan put it more poetically in The Mikado:

My object all sublime
I shall achieve in time —
To let the punishment fit the crime —
The punishment fit the crime;
And make each prisoner pent
Unwillingly represent
A source of innocent merriment!
Of innocent merriment!

The judge is right

A judge has refused to give a man accused of rape a video tape of his alleged victim’s interview with police.

Police fear tapes of victims discussing what happened to them which are regularly made by police, could be posted on the internet for the sexual gratification of other offenders if they fell into the wrong hands.

Police opposed the application and told the court if they were forced to release such tapes, victims could refuse to be interviewed or report a crime.

This week Wellington District Court judge Bruce Davidson refused the accused rapist’s request.

Despite the ruling, the newspaper said the future security of such tapes remained unclear.

A proposed law change to block the release of such tapes intended to be used as court evidence has been withdrawn for more work.

But the Criminal Disclosure Act 2008, which has been passed but has yet to take effect, could force the courts to release tapes not intended as evidence in court but this remains untested.

Police told the court they intended to lobby to change both laws.

I have no idea whether the judge had the legal right to make this ruling but he’s certainly ethically right to do it.

No means no

A British MP  has taken issue with Dame Helen Mirren for saying that women couldn’t expect to take a man to court for date rape if they’d voluntarily gone to his room, started having sex then asked him to stop.

The Queen star admitted she was the victim of date rape on several occasions in her youth because she didn’t have the courage to stand up to men who wanted to have sex with her.

Mirren added she never reported the incidents to police because the men had not been violent with her.

The actress also stated in the candid interview with British magazine GQ that it would be hard for women to press charges against someone they had planned on being sexually active with.

She told the publication: “I was (date-raped), yes. A couple of times. Not with excessive violence, or being hit, but rather being locked in a room and made to have sex against my will.”

“I don’t think she (a female rape victim) can have that man into court under those circumstances.”

And the star has been heavily criticised by rape victim supporters who say her comments only make it harder for victims to get the judicial system to take the crime seriously.

British Home Office official Tony McNulty brands Mirren’s comments “profoundly disappointing” and “very unhelpful”.

He adds: “No means no, means no, and that needs to be the message as clearly as we can in terms of rape.”

The idea that anyone – male or female – can’t have a change of mind and be safe from rape is an appalling one. Mirren contradicted the good she did by admitting she’d been a victim of date rape with her suggestion that it might not be a matter for the courts.

Ex-expat has more to say on the matter here.

Did tough love case have to go to court?

A tough love call to police from parents who wanted to give their son and his mates a scare ended up court.

The police prosecutor said the defendent stole his mothers credit card and gave it to friends who used it for a $720 spending spree.

The parents had wanted police to give the youths a stern talking to, offer them diversion and teach them a lesson which would keep them on track in future. However, police said the offending was too serious for diversion and laid charges.

Judge Philip Moran said the two youths who were charged had acknowledged their offending, taken responsibility, and pleaded guilty.

“I am persuaded that young men setting out on their lives don’t need convictions for such serious charges.”

He discharged them without conviction and ordered them to pay back the money.

A friend discovered her daughter had stolen something from a shop. She spoke to the youth aid officer who gave the girl a stern talking to then accompanied her while she returned the goods and apologised to the owner.

But that was several years ago. Don’t police have that sort of discretion now or did they choose not to use it?  Surely if the parents, who were the victims of the crime, only wanted to give their son a fright there was no need to clutter the courts by laying charges.

Fortunately the judge used his discretion. But other parents learning of this may hesitate to use tough love if they think it might end in court.