In an article published to day on the Urewera case lawyer Mai Chen has laid out the encroachment upon freedom that retrospective legislation brings. In particular Mai Chen lays a simple pathway that observes that the Supreme Court held that evidence relevant to 11 of the Urewera accused was unlawfully obtained by police. We are yet to know the full story with the remaining accused, but on the surface if 11 accused were subjected to illegal investigation then they probably all were.
She warns that Government plans to 'freeze in time' events and return to them with a new law that had not applied at the time of the alleged crimes, thereby making once illegal procurement of evidence, suddenly legal in a later time to when the charges were laid. That's you on your front step receiving a speed camera ticket for driving legally in a 80km zone because since the day you had driven at the correct speed the limit had been dropped to 50km and a recording device attendant to the camera was noting your rego anyway in case it was later discovered that the decision to have the 80k limit was a 'bad' law, or bad decision because of it being a high-crash area or some other such thing.
My example is simplified and there is the gravity not for the now free of charges Urerewa 11, but for other accused who the Prime Minister has implied are serious criminals. So it is something of a trade-off, letting the Urerewa 11 go free as they should, but repairing the net for others still subject to have evidence gathered against them illegally suddenly made legal. However anybody who has had some excuse for parking overtime because of delays in a medical clinic, speeding in an area they thought had a higher limit, not wearing a seat belt because they were distracted as they left their driveway might tell you their predicament carried no weight in determining that they would be prosecuted. So we have not only events frozen in time and returned to when it suits the Crown, but also selective choice as to whom that applies - in this case not to the Urerewa 11 but however to anybody else caught in the bad law proposed to be made good.
Mai Chen says that the Government is permitting the Urerewa accused the 'fruits of their victory, consistent with the constitutional convention that Parliament should not usurp the role of the courts to decide the guilt or innocence of individual citizens.' A situation as it prevails is a matter of selection, accused 'once were terrorists' may be removed to their freedom forgiven for being trapped by a 'bad law' or application of the law but the mysterious unnamed apparent villains caught in the same illegal trap may not.
I'll move to what most struck me about this situation apart from my specific objection to being frozen in time while events around you changed, making you one day a free person and the next caught or imperilled by a law that came from the future whilst you were frozen and unknowing. David Bain, whom I seldom blog about now, has been caught in this time-warp trap for 2 years, he was judged by his peers and found not guilty now the Government try him again, which by Mai Chen's example above shows more bad law, in a prevailing set of rules set up by the Government and contrary to all principles of freedom.
But for now, every nzer is faced with recognising that the rules could be changed upon them and applied retrospectively and selectively to their detriment. It's not a fair go.
A bit like a man was murdered today by the state in USA..
ReplyDeleteas retrospective law does not allow death row inmates from later presenting evidence they could have presented at trial under the Antiterrorism and Effective Death Penalty Act of 1996..
From 1996 onwards, seven of the nine prosecution witnesses changed all or part of their trial testimony.
Dorothy Ferrell, for example, stated in a 2000 affidavit that she felt under pressure from police to identify Davis as the shooter because she was on parole for a shoplifting conviction.
In a 2002 affidavit, Darrell Collins wrote that the police had scared him into falsely testifying by threatening to charge him as an accessory to the crime, and alleged that he had not seen Davis do anything to Young.
Antoine Williams, Larry Young and Monty Holmes also stated in affidavits that their earlier testimony implicating Davis had been coerced by strong-arm police tactics.
In addition, three witnesses signed affidavits stating that Redd Coles had confessed to the murder to them.
but the State of Georgia argued that the evidence had been procedurally defaulted since it should have been introduced earlier.
I haven't been able to read much about this, but from what I have it appears that the testimony of the witnesses who have since recanted was good enough for a conviction, but when they changed what they had to say, offering reasons why, they were found not to be credible - stunning enough in itself - the State saying 'when you say what we want, you're telling the truth, and when you say what we don't want, you're lying or what you have to say is out of time and we won't hear it'
ReplyDeleteTo this point apart from what you have written I can't find the information regarding evidence being 'procedurally defaulted' for having not been introduced earlier - that totally beggars belief.
Finally, each time one of those witnesses recanted or a new hearing or appeal was sought and Troy Davis was given hope he died a little when the new door was shut in his face, in total his dry death extended over 21 years on death row, something which if viewed in isolation was as cruel as anything the State of Georgia could do to him before it finally took his life. One person doesn't recant lightly knowing that they will be in conflict with the state and perhaps vulnerable to retaliation, but seven and they are still ignored?