Wednesday, April 17, 2013

Bain wins early skirmish.

Though it's hardly 'early' in terms of the 13 or so years he spent in prison for a crime he was eventually acquitted of, it's 'relatively' early in his pursuit for compensation. The above Judgement by Keane J was released yesterday at the Auckland High Court ruling that Minister Collins move to have the case transferred to Wellington was rejected. There are for me a number of interesting facets of to the Judgement and an earlier indication that the Court is drawing a line under the conduct of two Justice Ministers in a framework of 'start as you intend to go.'

Firstly though I'm a little surprised by 2 facets of the Judgement. The first being that Keane J while addressing the history of the case didn't observe pointedly the earlier decision of the Privy Council that an 'actual Miscarriage of Justice' had occurred in this case. Also that he didn't draw any distinction that while the Privy Council had ordered a retrial  they had made it clear that the decision to go to a retrial was entirely up to the New Zealand authorities. Some readers will know that the decision by the Crown to take the case to re-trial effectively put any claim for compensation into a category of having to prove extraordinary circumstances, a situation that wouldn't have been the case had the Crown simply accepted that their case was shot to bits and it was unsound to proceed with it further. That situation effectively meant that the Crown case coming up short on proof penalised Bain from the normal procedures of compensation. I think there is an argument there to test the validity of The Crown's decision to seek a retrial on the basis of the acquittal by a unanimous jury decision in very quick time - however that hasn't been argued as far as we know other than by earlier efforts seeking the Courts to dismiss the charges before the actual re-trial.

Binnie observed the validity of Privy Council Judgement and there is no criticism by the Crown of that observation that I can recall in the 'Peer' review by Fisher of Binnie's report. So it would seem that acceptance by both parties to the Judicial Review of the Privy Council ruling being foremost in Law is not an issue and that may be why Keane J didn't specifically spell it out in his Judgment.

Keane J was quick to reject arguments as to David Bain's financial position being a factor as to where the case should be held. I think that was a mistake. David Bain has been disadvantaged in every way possible since 1994 when he came home from his paper round and found his family dead. He lost all his aspirations for a career, his inheritance, his freedom based on hidden and suspect evidence. That he or anyone in his position might be struggling to pay for a  writ to the High Court shouldn't reasonably be held against them when it already accepted that they are a victim of a Miscarriage of Justice is harsh. On the other hand David Bain has not applied to this point for legal aid and Keane J might simply having been observing that point.

But to the point made in paragraph 1 above about 'start as you intend to go' shines through as the most persuasive reason why Judith Collins wasn't successful in her application to have the case moved and appears unlikely to be able to defend without compromise the claim of David that he has been 'denied natural  Justice' and had his rights under the Bill of Rights Act compromised. It's in the letters of Simon Power (previous Minister of Justice who ordered the report into the compensation claim) to Binnie and Binnie's responding letters at the outset of Binne accepting to do the report. The letters are clear as to the 'background' of the review, the 'openness' expected between the contesting parties and how information was to be shared. A complete contrast to the actions of Collins in excluding Bain from access to Binnie's report while at the same time taking 'secret' steps to undermine it, excluding not only the applicant Bain but also Jurist Binne - the author of the report. Little need be said that Collin's took advice from the parties criticised in the Binnie's review, but completely cut out David Bain and his lawyers. A fatal mistake for the Minister I think we will see, along with the extraordinary and public attack on Binnie in which he was virtually called a liar.

The difference of the approach between the 2 Ministers can't be Bain's fault. It also can't be his fault that one Minister has taken his right to compensation personally, and in doing so trampled over his rights under the Law, as though David Bain, and David Bain alone could be treated with contempt by a Minister charged with overseeing the Justice system. Judith Collins hasn't to this point understood that discretionary powers or prerogatives are not to be administered beyond the normal principles of being just and fair, they are not a return to a complete and unquestioned power that existed before the Magna Carta. Many anticipated that this Judicial Review was going to find an important place in New Zealand Law and those first few steps have been made.

Saturday, April 13, 2013

Injustice threepeat; Thomas, Pora, Bain.

There was publicity on the Pora, Thomas and Bain cases this week. Nothing deliberate, but rather the rare consequences that continue to arise in a country where Miscarriages of Justice are largely mishandled to the extreme.

The week started with the news that Teina Pora was going to the Parole Board for possible release for a crime few, if any New Zealanders now believe he committed. Pora like others before him is disadvantaged in his parole attempt because he hasn't admitted a crime he didn't commit. There is something notably sick, medieval in fact, about that. All that is needed is a trial by fire of some sort as were 'performed' on 'witches' in the dark ages. There is no construction of the case against Pora that shows he should have even been charged. That the real murderer and serial rapist whose DNA was found on the body Susan Burdett is already in prison only adds to the bizarre torture that the state has inflicted upon a young orphan who was encouraged by police, a particularly officer notably, Rutherford, to lie himself into prison believing he was going to get a reward.

It was another now deceased officer, Hutton, at the center of a second controversy this week, when his victim Arthur Allan Thomas called a press conference in the Pukekawa Community Hall where he blasted Deputy Commissioner of Police Mike Bush for speaking out about the integrity of Hutton at his funeral last week in such a manner that it clearly stated that police management, currently investigating the Crewe murders, yet again, believe that Thomas, long since pardoned, is guilty. On a personal note it was great to see the 75 year old farmer speaking publicly about his false imprisonment, few would realise how difficult it was for Thomas to spend 10 years in prison, see his marriage dissolve and being still getting kicked in the teeth 30 years later by a 'progressive' Commissioner with 'no baggage.' The very same man who offered qualifiers that police might have only been speaking about the early years of Hutton's career when saying that he had integrity beyond reproach. Additionally, the Commissioner added that Hutton's family had asked them (police) to attend as though Commissioner Marshall was implying fault with Hutton's family. Mike Bush could have chosen diplomatic language, simply asked his comments not to be published, qualified them in someway - or even pointed out  the obvious that it wasn't appropriate for him to speak while an inquiry into the Crewe murders continues. An inquiry Thomas says will be another white wash.

By Thursday the Bain case was back in Court, among pre-hearing matters being discussed was where the substantive hearing should take place. It seems the 'impartial' Minister of Justice is offended beyond extreme and can't digest the idea that Bain wants his case heard in Auckland, the same city in which the Minister lives.  Kirsty McDonald represented the Minister pointing out that Bain wasn't 'special' that he'd brought the proceedings and so forth. Well hello, The Minister and her counsel, don't think a person spending 13 years in prison for a crime he was acquitted of isn't 'special.' Judging by the cases above I guess people spending decades of their lives in NZ prisons for crimes they didn't commit isn't 'special' after all. In fact as the 3 cases demonstrate, an all too common event. Pora landlocked for not admitting something he didn't do. Thomas convicted a 'third' time by a Commissioner speaking highly of the officer who was named by a Royal Commission as having planted evidence leaving the conclusion in the air that the farmer was guilty anyway. Bain facing a vindictive and petty reaction from the Minister of Justice for 'daring' to stand up for his rights.

I should say the Pora case is an absolute mess, one demanding to be sorted out immediately and not in the antiquated process of a Petition to the Governor General. I believe his counsel should seek Judicial Review of progress of the Petition, pointing out that justice delayed is justice denied. I note that our highest Judge has previously made comment about the Pora case, one that equally applies to the Bain case, where the accused are liars in everything they say other than that which might incriminate them or be twisted to incriminate them. In the meantime there have been other developments. Details of material released to one of the hate site members we'll call Aunt Fanny show that Aunt Fanny lied in great detail about information claimed to have been given to him by the police. Information which he went onto to fill the blog sphere with as if it were gospel. The Minister of those departments, yes Collins, the same person who despite taking advice by Binnie, was alarmed by knowing more about the case and the Law that an international Jurist, and secretly called for a government 'pet' to do a second report to confirm the Minister's observations - happens to have admitted being a reader of the blogs on which Aunt Fanny published the lies he claimed came from police but without any sanction from the Minister or anyone in her department. All part of the plan no doubt. The same plan that is now confirmed that a 'Minister friendly' media outlet got access to information controlled by the Minister's secretary in record time, and able to scoop a headline. How very convenient. Yet if the Minister was looking for the convenience of a 'friendly' press to deny natural justice to David Bain she should have thought a little deeper because not only was Aunt Fanny making purchase out of misrepresenting released information on a blog which the Minister reads, other things beyond the Minister's imagination were underway, findings that will eventually bite even harder at her credibility because they go to the very heart of the failed case against Bain, possibly more so than at any point earlier - more 'egg on face' for the 'hangbainers' coming.

I've called this a threepeat by virtue that all 3 cases were back in the press for various reasons this week. But the title could have equally applied to the mindset of 'nothing's wrong here keep going' that comes with such cases. Or explanations that time has past and such things would happen 'these days' when in fact it is happening 'these days.' It's happening right now, exposing in the extreme a mindset that hasn't changed since it became obvious Thomas was framed - denials and the apparent hope that things will 'die down' or indeed some of the players in these tragedies will die, is it Justice? - no, a thousand times no.

Wednesday, April 10, 2013

What's happening with the Sensible Sentencing Trust?

As most readers will know the Sensible Sentencing Trust (SST) is currently due to face proceedings from the Human Rights Commission (HRC) over it's offenders website. The HRC say that the Trust has broken suppression laws, the Trust say they haven't and ask for proof that a suppression order is in place, all this according to media reports. A quick reading of the HRC indicates that the Trust is highly like to be breaking a range of statutory law encompassed in the HRC act and that of the Privacy Act. Included in those would be that 'agency' holding or publishing information in respect of NZ citizens is required to give the individual involved notice, be accurate, confirm the details with the citizen where reasonably possible, be mindful of the impact on the citizen and consider factors such as the amount of time that has passed since the reported crime, and so on. In this case it appears the Trust's publication resulted in an offender losing his job in  a situation where it could be argued that he was progressing favorably, living his life in a lawful manner, not offending and generally doing what most expect a person does after serving a prison sentence - reform and gets on  with a law-abiding life.

In the overall context it would be assumed a reasonable and prudent organisation would abide directions from the HRC rather than flout them, either look for a compromise, or simply get back within the parameters of what is effectively a public watchdog for privacy and human rights. It's clear the late Greg King  had been acting for the Trust in this matter and it would be safe to assume his advice would, in the current circumstances, have been laced with caution and compromise so as to ensure no legal action was taken against The Trust. I think most people would agree that The Trust is giving the finger to the law because of a fair dose of self-righteousness and because it has been able for years been able to be act in a twilight world in terms of the law.

In terms of the case the HRC have said they will bring against the SST. the question is raised as to whether the Trust think they're not required to obey the law in their pursuit for their catch cry of Justice for the victims of crime. That seems to become the crux of the matter, whether or not New Zealand law encompasses the concerns that the Trust reinforce to the public, or if the Trust is 'creating' laws of it's own. If it is creating it's own laws or is in defiance of Law of course then it is acting unlawfully and with contempt, the very thing that it gives as a reason for listing offenders. It will be noted by some who have read the details of the case being taken against the Trust that it published leaked information from a police officer who has since lost his job. The 'victim's that fall by the wayside due to the Trust's activities are one by one coming to the public's attention. In the case of the Trust holding silent on the criminal background of one of it's members who was elected to Parliament on the Trust's ticket of law and order . Now of course the public are aware of the Trust's willingness to publish information that resulted in a police officer losing his job. What isn't clear, but which may well ultimately become public knowledge. is that the details of the offender the Trust has named has led to victim's of that offenders crimes becoming known to the public.

The first time I became aware of the SST offender database was when we were gravely concerned about the attention and interest a 43 year old man had in an 11 year old family member. My suspicions and reasons to look for this information was based only on 2nd-hand information and hunches that something didn’t feel right.  
 His name didn’t appear on the SST offender database back then as he had name suppression for 3 prior sexual offences against children and as such this information was prohibited from being made public. Our girl was his 4th victim when he raped her before her 12th birthday and I sincerely wish this offender’s name had not been suppressed and that it had been on that database when I looked first looked as we may have averted years of trauma and heartbreak.  
 Btw. His name is now on the database and he is serving a Preventive Detention Sentence … too late for us …too late for victims that preceded

The foregoing is an unconfirmed account of the rape of a child that appears to be the imaginative work of the Trust to gain sympathy for their cause in allegedly breaking the law. The 'letter' was printed on Kiwi Blog recently and is 'glaring' for it's inconsistencies. Particularly that the author would not be irate that information stored on the Trust's site was inaccurate and therefore may have resulted in the purported crime. Frankly, not something the average Joe or Jodie Bloggs would be happy about. It looks like the clandestine work of the Trust to me, poorly thought out and an attempt to manipulate sympathy.

It seems that manipulation is the transparent key of the SST. Manipulating public fear and directing criticism against the Courts and the Law as the means to an ends. So who are Trust members, say compared to the police? The police members are vetted and sworn to uphold the law. The Trust members, as we have seen some examples of, are convicted criminals and others willing to break the Law, just as the Trust now defy the Law. I'm able to go further than that, thanks to those that commented on the above kiwi Blog topic are also members of the hate-sites which are now being sued over the David Bain case, people who have stalked and threatened people on line and made false complaints to the police against their opponents. Just to confirm that, many members of the hate-sites currently being sued, subject to harassment constraints under the Harassment Act are member of SST. People  willing to target opponents and their families on a public debate issue as enemies. Most folks don't take personally the David Bain case for example to the point that they threatened to set the Mongrel Mob on their opponents, nor indeed  talk about their children in an environment where some paedophiles apologists lurk. Most members of the SST also I'm sure, don't have 'unusual' attitudes to pedophilia as are publicly recorded by some SST members, in fact the general thrust is that the Trust is law abiding (well, maybe not) and protective of children.

If Garth McVicar of the Trust speaks of defiance against the law, and has a record of suppressing 'misfortunes' of the members of his own Trust then it is probably not to be unexpected that some members of The Trust feel that they are on a 'crusade' and that therefore the Law should not apply to them, I think that is where the problems begin. I agree that the basic sentiments of the Trust resonant with the public generally, however that resonance has been seen as 'opportunity' by some Trust administrators, a chance to influence the law makers and, unfortunately, to break the law, or at least turn a 'blind eye' when it's members (whoever they are, and whatever their backgrounds might be) use the Trust, or the facilities of the Trust. A properly vetted Government organisation would never do that, nor would it flout the Law, incite fear or allow itself to be taken advantage of by a few feeling entitled to use the 'tools' of being a member to carry out personal vendettas.

Sunday, April 7, 2013

Jobs for the 'boys' and just to prove non-sexist for the 'girls' as well.

First of all we heard that Fisher's 'peer review' (a lofty description by any view where an underling reviews the work of somebody higher on the Judiciary tree) cost the tax payer $200,000. Now it is revealed that the report actually cost double that amount and that a second lawyer was involved (another underling 'peer' no doubt) and an even more worthy 'peer,' if your Irish, a lowly (or is that highly) law clerk as well. Readers will no doubt be surprised that no spouses, relations or even mothers of the 'peers' were involved, but wait a minute a woman in a relationship with Fisher (a law student) was actually the law clerk mentioned above. She was paid $100 per hour. I wonder what legal aid lawyers, fully qualified and working in jury trials think about that after a years of being financially 'screwed down' over fees. I don't know the answer to that of course but I do suspect somebody is being screwed and that money is changing hands.

The Minister when asked about the fees, which in fact are approximately the same for the whole years work that Binnie completed on his report, said that she had no interest in the personal life of Mr Fisher or anyone else that provides professional services to the Ministry of Justice. Fair enough too, personal lives are one thing but public money is another, particularly in tough economic times. I recall the Minister implying that Binnie was trying to milk more money out the Ministry at a time when it appears she was trying to do her best to discredit him, however time has shown such allegations were completely untrue. So in fact the Minister is interested in how much money is spent by the Ministry, which in fact is part of her job unless it is of course 'jobs for the good and compliant girls and boys' who can charge what they like.

Perception is everything and one could easily perceive that Fisher 'sensed' that he could charge what he liked and employed the most substandard help as long as he produced a report that the Minister was happy with. Double standards abound, the Minister wrongly implied that Binnie was overcharging for 12 months work but has no comment on a few weeks work by Fisher employing everybody but the family dog and  charging as though his life depended on it. Who knows Tolmie Bowden might be a legal superstar in the making, she might have the potential to become an international jurist holding great respect throughout the world, but potential compared to reality are hardly in the public interest in a country in it's 5th year of tough fiscal times.

A 'peer review'  ordered by a fiscally aware Minister? Doesn't look like it. This is the same Minister who chose to take a maternal role of what were the best interests of David in terms of Binnie's review. Matters of which were both none of her business and patronizing to the extreme. Well how about some patronizing comment on the 'good judgement' of Fisher to employ his partner and what some have said is a rare rate to be achieved by an unqualified lawyer. Suddenly the shoe becomes on the other foot, the Minister happy to meddle in the life of someone whose life is of no business to her but careful to be silent on the personal situation of somebody who at the very least has been paid very handsomely and without concern for what the public might think of this cosy relationship which looks more and more like mutual back scratching.

A little more from the details: publishing costs? $20,000? Sounds like a rip off to me. A top quality printer is no more than $2,000, printing paper is penny cheap and even a semi qualified dunny cleaner would know how to push the print button. I'd genuinely expect somebody being paid $100 per hour would not only be able to push the print button but be able to top up the paper as it was used, and job done in 5 hours, all costs included $2,500. But the Minister doesn't seem interested in that either. I guess it's too personal.