In all fairness to Kent things didn't go according to plan in his recent trial for the defamation of Joe Karm. First of all, his 'expert' witnesses were rejected as 'irrelevant' before he got to Court.
Having his 'experts' opinions rejected, Kent relied upon the arguments his experts would have tried to bring home to the Court anyway. Kent couldn't work out with the bulk of evidence being of no evidential values there was no point relying on it any longer. That was a hard one for Kent until he came up with the notion that he was out smarted by a smart guy and that wasn't fair. Of course we can't forget Vic's role in all this, he was second in charge after Kent. Unfortunately when Kent traversed the distant landscape he merely saw some settling dust resulting from dear Vic doing a runner. Way to go Vic, nothing like sticking with your mates when the pressure is on.
Seriously, because Kent's witnesses didn't make the grade - it might have been better if Vic had arrived to show if there's not one born every minute, then there's two. Credit's due though, if Vic thought 'f this, I'm goff and I'm off' he sure got his point across. Sometimes it seems that Kent has a competitive nature, if Vic had considered he'd dropped Kenty in it - then Kent admitted to the Judge he was a liar, just to make it a draw. In fact nobody was going to drop Kent in it better than himself.
Confused? Well don't be. There are some politically aspiring 'psychologists' who think any attention is good attention. For example they might tell the Judge at a defamation trial that that they were sorry for the harm they had caused and they were taking their hate-site off line, throwing in a few tears to boot. All good for awhile until old Kenty baby realises he's a 'forgotten' sister and no one loves him anymore, in fact people have even given up disliking him because he's such a dick so what does he do? Goes back on line of course. But wait a minute - he's 'removed' all the defamatory comment.
This is of course is the guy who firstly was an expert on defamation and then wasn't. I think that's kind of funny, if he's isn't an expert how can he 'decide' what is defamatory and what isn't? Tricky question. Not as tricky of course as to how the 'dear daddy' got blood and cuts all over his hands from praying in the lounge that morning not wearing any underpants. That's so tricky Kent can't answer it and nor could any of his hate site sisters so the Judge didn't want to know about them. Perhaps the Judge was concerned that having so many nutters in the Auckland High Court at once might create a black hole in the atmosphere causing hazards for planes flying in and out of Auckland. That's despite them all having little badges declaring they are fully qualified space cadets and refugees from the most distinguished asylums.
Well of course Kenty is fretting. He's not getting any attention and voluntarily sitting in the naughty corner naked except for panties on his head probably isn't much fun for old Kenty. Because he is really such a fun guy, why he once managed to put a forefinger in each ear and flick his nails to the tune 'Only the Loonies know the way I feel tonight.' I guess they do.
I've started this blog to share with those that may be interested in sports, books, topical news and the justice system as it applies to cyberspace and generally.
Saturday, November 30, 2013
Monday, November 25, 2013
Protecting 'injustice' in New Zealand.
Everything arising from a common denominator will have similar elements, often simple, expected characteristics that quickly reveal any construction of deception and lies. So it is with Miscarriages of Injustice in New Zealand. It's one thing to point them out, as simply as they were the missing clothes of the Emperor, yet another to grapple with why the 'system' allows them to repeat, then treats them as if they were novel and not simply paragraphs from the tried and true 'Book on how to frame a suspect.'
Take a look at some well known examples, just as one would look at 'evidence' in isolation and then later in continuity.
#The shell casing found in the 'Thomas' case, first it wasn't there then it was. 40 years have passed no police action, apart from some promotions and awards in the decades that followed.
#The 'Weir' glasses lens in the 'Bain' case, it was there 3 days without being seen but however was said to be visible in a photo taken at the time, then after 3 days 'discovered' after hours by Weir who later admitted misleading a Jury about it's position. So a lens that couldn't be found, but which was 'photographed' only to be 'freshly' discovered under a ski boot. 20 years past, no police action against Weir, no police action against the Officer in Charge of the case who so willingly accepted the 'find' without question, and no comment by the various Judges involved directing that a criminal investigation be launched as to whether or not there had been a Conspiracy to Defeat the Course of Justice.
#The Teina Pora case where he tried to claim a reward for a murder of which he lied about knowing the perpetrators. His claim was dismissed as fantasy. Around a year later he was held for 4 days incommunicado by ex Detective Rutherford, refused a lawyer and 'assisted' to admissions which resulted in his being convicted of a crime he clearly didn't commit. This while at the same time allowing the true perpetrator, 'lone wolf' serial rapist and killer Malcom Rewa, to escape conviction. Case still before the Courts, no investigation into Rutherford, no Judicial 'interest' or public comment about a case of a clear Miscarriage of Justice whilst Pora remains in prison having served 20 years.
#Lundy, convicted on 'witchcraft' a 'smell test' on digested food to determine time of death, 'hidden' advice that suspected DNA was too de-generated to test before going abroad to find a now discredited Scientist, with a now discredited 'search' approach to gain a conviction where it might safely be said no convicted would have otherwise resulted. Still before the Courts, the Prosecutor responsible for the file in which the evidence was hidden promoted to a high position in Crown Law.
#Watson. Many witnesses key to Watson's identification now saying, that following the proper and lawful procedures of identification, they would not have identified him as having been with the missing couple. A series of inconsistencies - over the identification of the yacht onto which the deceased couple boarded - most critically that they 'stepped up' to board the yacht which they were dropped off to, rather than stepped across or down onto Watson's yacht. A central witness recanting his evidence of a 'confession' by Watson, some how now unable to be 'found' by The Crown but the evidence recently 'allowed' to stand by a QC commissioned to investigate a petition for clemency, and who took it upon herself to 'test' fresh evidence, and evidence going to the 'safety' of the Conviction, in a manner at odds with that applied by New Zealand Courts and the Privy Council. The 'reliance' on 2 hairs, to uphold the conviction, that were from the same 'gene pool' as one of the deceased but not necessarily belonging to the deceased, and which weren't found on a blanket from Watson's yacht 'before' some hairs were removed from hair brushes in the home of Olivia Hope. Then, coincidentally, 'found' during a 'further' search of the same blanket in the laboratory to which the hairs had been delivered . Case dormant at the moment whilst Watson remains in prison. A reasonable chance of success if a Judicial Review was sought, as to the 'manner' of the QC 'findings' and the extra judicial approach taken. In 'fairness' a case which ought to be before The Court of Appeal to be argued either for the conviction to be quashed or a retrial ordered. A 'campaign' was waged against Watson before he was ever charged, it was put in the public mind that he was guilty. Personnel involved in the Bain case were also involved in the Watson case and importantly, like Bain, one person was targeted as being guilty to the exclusion of others that might have been guilty.
Of course all the above cases have other aspects than are not mentioned here. Possibly only in the Watson case was their immediate public disquiet about the verdict, generally in the others it was considered that the police had got the right person until, as it invariably does, the 'wrong' evidence began to emerge. Motive in all of the above claimed by the police were never straight forward, and in some cases bizarre - note here the tendency that when a person is 'framed' the continuity of the allegations against them is stretched to incredulity. David Bain 'apparently' ducking in and out of bushes, a liar one minute and truthful the next when it suited The Crown. Thomas, happily married, but 'disgruntled' by a gift that was never opened, his alibi witnesses discredited by the same police who would plant evidence implicating him. The Watson motive 'revealed' by a prisoner in bizarre and incredulous detail even though he was a stranger to Watson and a 'friend' of the police.
What can be said about all these cases as time has passed is that there is a situation alive in NZ where 'injustice' is protected, where the perpetrators of those injustices are protected and in many cases rewarded. It can also be said that the police or Crown take passively the news that officers have 'lied' under oath, so to the Courts. It appears that never once has a Judge ordered the evidence of lying police officer to be investigated, or that police willingly have done anything other than ignore people such as Jones in the Bain case admitting that he 'lied' to help the Jury. So why did Jones lie 20 years of so after Hutton framed Thomas? Because he knew no person in his situation before him had suffered any consequence for 'planting' evidence or lying to a Jury, that in fact such actions were not
'unsettling' to the respective Judges and in some ways might be seen as being later possible passages to the reward of promotion in some way. There is an immunity abroad in the administration of Justice in New Zealand for those that take part in injustices, those that lie, hide or plant evidence and the Courts that don't speak out.
If Jones for example was charged for perjury in the Bain case, if not by the Police then by the venerable McCready of Wellington, convicted and sentenced to imprisonment - a message would be broadcast. One which says that the police are neutral gatherers of evidence and the truth, they don't have 'positions' or 'stances' and no investment in their work beyond the oaths they take to serve the New Zealand public, that if it is 'too hard' to find evidence to convict they don't some how 'find' it, or if there is evidence showing an accused person's innocence. or likely innocence, they do not hide it, or 'promise,' as Weir did, to 'correct' it on the record. The Courts, Crown Law and the Police Administration are guilty of turning a 'blind eye' to an environment where actual miscarriages of Justice are happening, right now, today.
Approaching this another way, as MOJs are so small represented in overall conviction rates, proving that police get it right something like 99.9% of the time then what benefit if for them to 'fight' from a 'neutral position' the few times when MOJs emerge, not just fight for months, or years, but decades.
Fight, a long time long after some of the original participants are dead. There can only really a few people responsible for that the Minister and Commissioner of the Day and the attendant Government. It is them that take up the 'cudgels' of the indefensible, who get dragged down to the common denominator. It is safe to assume such individuals never imagined that their professional, or political lives, would morph into denying common sense, turning a blind eye, and supporting the dark arts of solving mysteries by trading with the devil or conjuring evidence in a place that would circumstantially 'prove' a case that might otherwise be un-provable.
Of course there a public pressure on police to 'solve' certain crimes, but no crime is solved by framing somebody, in fact more crime is committed by doing so. In the middle somewhere it is grey, no doubt villains are sometimes successfully framed for crimes that have committed. But looking at the cases above none of those falsely convicted were villains, 3 had no convictions, one was basically a truant school kid who even at seventeen had the mental development of a child under 12, while the last had minor brushes with the law. What we do know, is that in framing Thomas and Pora the real culprits escaped conviction, Demler in the first instance and Malcom Rewa in the second. Whilst in the Bain case the father Robin's hands were conclusive proof of his guilt and the primary reason his son should never have been charged. With Lundy it has become in some quarters that he must be guilty because no one else would have done it, well hello on that one. If he's guilty where's the proof because speculation means nothing. In Watson if the police no longer have the confidence of one or more of their prime witnesses why isn't that tested before a Jury, it proves that the first trial was a counterfeit version.
As far as the real culprits escaping conviction, it can't be underlined enough where the blame lies for that. The blame is with the 'blinkered' approach starting with investigating police, the Officer in Charge and Crown Law for not being able or willing to test the questionable, they as Lawyers must be aware of - such as items missed on earlier searches, scientific advice contrary to the thrust of the police case, the production of witnesses ready to sing for their supper, a credible narrative, the application of common sense - as in Bain where one suspects hands told of his involvement in the murder of his family, while the others were free of evidence that might link him to the crime. This is really at the second stage where The Crown are buying into a hypothesis, one that clinically often will not make sense. They have begun to make the case 'work.' The 'correct' person has been arrested or is about to be arrested, the ducks lined up. Will common sense prevail, a Judge perhaps asking a telling question when the matter is before him or her - the answer is no - the decades of an injustice are just beginning and the police, The Crown and The Court will see in many cases witnesses commit perjury, knowing, confident that they will never be charged. It has become institutional.
Is there an answer? Yes, deterrent. Imprisonment for perjury, conspiring to defeat the Course of Justice and all the elements that allow police like Weir and Jones to 'admit' lying or misleading and suffer no consequence. Hutton for never pursuing Len and Heather Demler by exploiting the obvious flaws in Heather Demler's account of arriving in the Pukekawa district and ultimately exercising proprietary rights over family holdings in the area. Of course Hutton was never interested in how that cartridge case came to be found in that garden bed despite having a red hot trial to its time of manufacture and transport to Pukekawa because he was the 'architect' and officer in charge of framing Arthur Thomas. Would Weir and Jones been more careful with their evidence, nonsense about skin sharpening in profile when under pressure, if it were a fact that Hutton had been brought to task? If the big things are to be fixed it is the detail of the smaller picture - that which is blatantly revealed in the belief that good can follow from a bad common denominator.
Take a look at some well known examples, just as one would look at 'evidence' in isolation and then later in continuity.
#The shell casing found in the 'Thomas' case, first it wasn't there then it was. 40 years have passed no police action, apart from some promotions and awards in the decades that followed.
#The 'Weir' glasses lens in the 'Bain' case, it was there 3 days without being seen but however was said to be visible in a photo taken at the time, then after 3 days 'discovered' after hours by Weir who later admitted misleading a Jury about it's position. So a lens that couldn't be found, but which was 'photographed' only to be 'freshly' discovered under a ski boot. 20 years past, no police action against Weir, no police action against the Officer in Charge of the case who so willingly accepted the 'find' without question, and no comment by the various Judges involved directing that a criminal investigation be launched as to whether or not there had been a Conspiracy to Defeat the Course of Justice.
#The Teina Pora case where he tried to claim a reward for a murder of which he lied about knowing the perpetrators. His claim was dismissed as fantasy. Around a year later he was held for 4 days incommunicado by ex Detective Rutherford, refused a lawyer and 'assisted' to admissions which resulted in his being convicted of a crime he clearly didn't commit. This while at the same time allowing the true perpetrator, 'lone wolf' serial rapist and killer Malcom Rewa, to escape conviction. Case still before the Courts, no investigation into Rutherford, no Judicial 'interest' or public comment about a case of a clear Miscarriage of Justice whilst Pora remains in prison having served 20 years.
#Lundy, convicted on 'witchcraft' a 'smell test' on digested food to determine time of death, 'hidden' advice that suspected DNA was too de-generated to test before going abroad to find a now discredited Scientist, with a now discredited 'search' approach to gain a conviction where it might safely be said no convicted would have otherwise resulted. Still before the Courts, the Prosecutor responsible for the file in which the evidence was hidden promoted to a high position in Crown Law.
#Watson. Many witnesses key to Watson's identification now saying, that following the proper and lawful procedures of identification, they would not have identified him as having been with the missing couple. A series of inconsistencies - over the identification of the yacht onto which the deceased couple boarded - most critically that they 'stepped up' to board the yacht which they were dropped off to, rather than stepped across or down onto Watson's yacht. A central witness recanting his evidence of a 'confession' by Watson, some how now unable to be 'found' by The Crown but the evidence recently 'allowed' to stand by a QC commissioned to investigate a petition for clemency, and who took it upon herself to 'test' fresh evidence, and evidence going to the 'safety' of the Conviction, in a manner at odds with that applied by New Zealand Courts and the Privy Council. The 'reliance' on 2 hairs, to uphold the conviction, that were from the same 'gene pool' as one of the deceased but not necessarily belonging to the deceased, and which weren't found on a blanket from Watson's yacht 'before' some hairs were removed from hair brushes in the home of Olivia Hope. Then, coincidentally, 'found' during a 'further' search of the same blanket in the laboratory to which the hairs had been delivered . Case dormant at the moment whilst Watson remains in prison. A reasonable chance of success if a Judicial Review was sought, as to the 'manner' of the QC 'findings' and the extra judicial approach taken. In 'fairness' a case which ought to be before The Court of Appeal to be argued either for the conviction to be quashed or a retrial ordered. A 'campaign' was waged against Watson before he was ever charged, it was put in the public mind that he was guilty. Personnel involved in the Bain case were also involved in the Watson case and importantly, like Bain, one person was targeted as being guilty to the exclusion of others that might have been guilty.
Of course all the above cases have other aspects than are not mentioned here. Possibly only in the Watson case was their immediate public disquiet about the verdict, generally in the others it was considered that the police had got the right person until, as it invariably does, the 'wrong' evidence began to emerge. Motive in all of the above claimed by the police were never straight forward, and in some cases bizarre - note here the tendency that when a person is 'framed' the continuity of the allegations against them is stretched to incredulity. David Bain 'apparently' ducking in and out of bushes, a liar one minute and truthful the next when it suited The Crown. Thomas, happily married, but 'disgruntled' by a gift that was never opened, his alibi witnesses discredited by the same police who would plant evidence implicating him. The Watson motive 'revealed' by a prisoner in bizarre and incredulous detail even though he was a stranger to Watson and a 'friend' of the police.
What can be said about all these cases as time has passed is that there is a situation alive in NZ where 'injustice' is protected, where the perpetrators of those injustices are protected and in many cases rewarded. It can also be said that the police or Crown take passively the news that officers have 'lied' under oath, so to the Courts. It appears that never once has a Judge ordered the evidence of lying police officer to be investigated, or that police willingly have done anything other than ignore people such as Jones in the Bain case admitting that he 'lied' to help the Jury. So why did Jones lie 20 years of so after Hutton framed Thomas? Because he knew no person in his situation before him had suffered any consequence for 'planting' evidence or lying to a Jury, that in fact such actions were not
'unsettling' to the respective Judges and in some ways might be seen as being later possible passages to the reward of promotion in some way. There is an immunity abroad in the administration of Justice in New Zealand for those that take part in injustices, those that lie, hide or plant evidence and the Courts that don't speak out.
If Jones for example was charged for perjury in the Bain case, if not by the Police then by the venerable McCready of Wellington, convicted and sentenced to imprisonment - a message would be broadcast. One which says that the police are neutral gatherers of evidence and the truth, they don't have 'positions' or 'stances' and no investment in their work beyond the oaths they take to serve the New Zealand public, that if it is 'too hard' to find evidence to convict they don't some how 'find' it, or if there is evidence showing an accused person's innocence. or likely innocence, they do not hide it, or 'promise,' as Weir did, to 'correct' it on the record. The Courts, Crown Law and the Police Administration are guilty of turning a 'blind eye' to an environment where actual miscarriages of Justice are happening, right now, today.
Approaching this another way, as MOJs are so small represented in overall conviction rates, proving that police get it right something like 99.9% of the time then what benefit if for them to 'fight' from a 'neutral position' the few times when MOJs emerge, not just fight for months, or years, but decades.
Fight, a long time long after some of the original participants are dead. There can only really a few people responsible for that the Minister and Commissioner of the Day and the attendant Government. It is them that take up the 'cudgels' of the indefensible, who get dragged down to the common denominator. It is safe to assume such individuals never imagined that their professional, or political lives, would morph into denying common sense, turning a blind eye, and supporting the dark arts of solving mysteries by trading with the devil or conjuring evidence in a place that would circumstantially 'prove' a case that might otherwise be un-provable.
Of course there a public pressure on police to 'solve' certain crimes, but no crime is solved by framing somebody, in fact more crime is committed by doing so. In the middle somewhere it is grey, no doubt villains are sometimes successfully framed for crimes that have committed. But looking at the cases above none of those falsely convicted were villains, 3 had no convictions, one was basically a truant school kid who even at seventeen had the mental development of a child under 12, while the last had minor brushes with the law. What we do know, is that in framing Thomas and Pora the real culprits escaped conviction, Demler in the first instance and Malcom Rewa in the second. Whilst in the Bain case the father Robin's hands were conclusive proof of his guilt and the primary reason his son should never have been charged. With Lundy it has become in some quarters that he must be guilty because no one else would have done it, well hello on that one. If he's guilty where's the proof because speculation means nothing. In Watson if the police no longer have the confidence of one or more of their prime witnesses why isn't that tested before a Jury, it proves that the first trial was a counterfeit version.
As far as the real culprits escaping conviction, it can't be underlined enough where the blame lies for that. The blame is with the 'blinkered' approach starting with investigating police, the Officer in Charge and Crown Law for not being able or willing to test the questionable, they as Lawyers must be aware of - such as items missed on earlier searches, scientific advice contrary to the thrust of the police case, the production of witnesses ready to sing for their supper, a credible narrative, the application of common sense - as in Bain where one suspects hands told of his involvement in the murder of his family, while the others were free of evidence that might link him to the crime. This is really at the second stage where The Crown are buying into a hypothesis, one that clinically often will not make sense. They have begun to make the case 'work.' The 'correct' person has been arrested or is about to be arrested, the ducks lined up. Will common sense prevail, a Judge perhaps asking a telling question when the matter is before him or her - the answer is no - the decades of an injustice are just beginning and the police, The Crown and The Court will see in many cases witnesses commit perjury, knowing, confident that they will never be charged. It has become institutional.
Is there an answer? Yes, deterrent. Imprisonment for perjury, conspiring to defeat the Course of Justice and all the elements that allow police like Weir and Jones to 'admit' lying or misleading and suffer no consequence. Hutton for never pursuing Len and Heather Demler by exploiting the obvious flaws in Heather Demler's account of arriving in the Pukekawa district and ultimately exercising proprietary rights over family holdings in the area. Of course Hutton was never interested in how that cartridge case came to be found in that garden bed despite having a red hot trial to its time of manufacture and transport to Pukekawa because he was the 'architect' and officer in charge of framing Arthur Thomas. Would Weir and Jones been more careful with their evidence, nonsense about skin sharpening in profile when under pressure, if it were a fact that Hutton had been brought to task? If the big things are to be fixed it is the detail of the smaller picture - that which is blatantly revealed in the belief that good can follow from a bad common denominator.
Sunday, November 17, 2013
Scott Watson, short changed again.
If the McDonald QC report looked like an abysmal, made to order, white wash into Watson's application for an Exercise of the Royal Prerogative of Mercy (RPOM) on first reading, that was confirmed in spades when the Lundy decision was released by the Privy Council a few weeks ago.
,
Before turning to that decision it is a good reference to read the analysis of M. Travis, May 1998 into the exercise of the RPOM in New Zealand in which it is revealed that the whole concept of the RPOM is fundamentally misunderstood by the Justice Department and it's advisors to the point that it has at times relied upon 'advice' from within the Department as virtually anecdotal reference. In the mean time taken from M. Travis's paper is the fellowing conceptual grasp that McDonald didn't bother with and failed to even reference it seems:
While the points of view discussed above are regarding the opportunity to seek Judicial Review, an important observation is made by Lord Diplock as to what mercy in fact is in the concept of the RPOM - it starts where Legal rights end. That is where appeals may have been exhausted and there in no other route for a petitioner to take - in practice in New Zealand the venue for a way back to the Courts for fresh evidence, or any evidence going to the safety of a conviction may go back to the Courts. Although the scope is wider than the legislative 'right' to have a case referred to the Courts, that would have been the proper recommendation for McDonald to have made. Immediately upon reading McDonald on the Watson application two clear 'positions' become obvious. Firstly, McDonald does not address, apart from in the barest way what her 'appreciation' of what the RPOM is, normally in a report this would be done at the outset and again in the conclusion. McDonald should have spelt out what her 'job' was and how she understood it should be done, and the way in which it was performed to meet public expectation of the exercise of a Royal Prerogative. In fact she has produced an opinion contrary to not only the concept of Mercy, but contrary to the Law. Reading the text of her report the second erroneous 'position' becomes clear. Also, probably inadvertently, explaining the first 'error' - she reveals her an apparent 'duty' to conduct a trial or review of the application as if she were a Judge in an Appeal Court - but even there, as both the Lundy and Bain Privy Council decisions show, she got it wrong in her 'Judgement.'
There are three striking errors in the McDonald report, even overlooking that no description was given of the RPOM in operation or how the author understood, with references, what the RPOM is in essence. It appears she feels the Royal Prerogative extended to her own whim giving her free reign to act as an omniscient Judge.
# Secret Witness A who reportedly recanted his testimony of a gaol house 'confession' by Watson. Despite all the Government resources behind her, McDonald was unable to locate this Crown witness. As far as I'm aware she never sought the help of The Crown to find him, leaving speculation that the Crown, or McDonald in fact on contract to the Crown, didn't want to find the witness. It remains that The Crown have been 'unable' to locate their own witness, a witness upon whom they relied to gain a conviction. McDonald did not offer that as a discount against Watson's conviction but rather allowed the discount to The Crown who were unable to produce their witness in an attempt to disprove or confirm the recantation. One can only wonder if the Crown already knew their witness was no longer 'pliable' to inducement. That's neither fair nor merciful for a conviction to stand on evidence that has essentially been withdrawn, or put another way - no longer exists. This was not an unimportant witness but one whose evidence went to the heart of Watson's conviction and a person for whom it can be argued 'sold' their evidence to the Crown in order to obtain favourable treatment, evidence which wouldn't have been admitted in some other jurisdictions.
# McDonald never once tested the totality of the weakened aspects of the Crown case against the conviction. Of course that wasn't her job, at the very least she needed to report that the various advances in favour of Watson to those whose job it is, the Court of Appeal. As witnesses crucial to Watson's identification and proximity to the deceased at particular times were no longer resolute on their previous evidence in became a matter for the proper consideration by The Court of Appeal. Rather than noting Diplock's assertion that mercy 'begins where legal rights end' she dismembered the petition denying Watson the test of evidence which goes the 'safeness' of his conviction, singularly and in totality. This despite the manner spelt out in both the Bain and Lundy PC Judgements as to how such evidence should be treated. McDonald effectively set herself up as a Judge, who had a 'right' to use selectively, or omit, legal precedent - in each instance that was to the detriment of Watson and to the 'benefit' of a Crown case that if not in tatters has lost crucial pieces of it's narrative. McDonald papered over the cracks of a 'story' gone wrong and one which now there is considerable doubt a Jury would convict upon.
# In essence the 2 failures above (which are more expansive than is traversed here,) where 'nestled behind' a 'catchall.' Two hairs on a blanket. The public got to hear the Minister of Justice Judith Collins say that the 'two hairs' sustained the conviction. In other words, witnesses who now say they wouldn't, or couldn't now identify Watson as a person alleged to have been identified in company with the deceased, a critical witness who had recanted having heard a confession, extreme doubt about the vessel the couple boarded in the company of a man (no longer clearly Watson in the now fractured dialogue) were swept aside on the basis of 2 hairs. As to those 2 hairs, and anticipating that a new Jury would hear the amended evidence of eye witnesses who could now not put Watson with the couple where formerly they could, the abandonment of The Crown case by one of it's most important witnesses, a more specific examination of sailing times that do not 'assist' the Crown version they can not, and are not, 'a catchall.' There is no evidence that they were, as is alleged, from Olivia Hope, but were rather from a broad genetic pool that may have included Olivia. Not only that they 'had a history' of appearing 'when they were needed,' the two hairs were 'not found' on a earlier search, they were found after the 'delivery' of bag containing hair samples taken from the Hope home in a bag which it appears had a split on one side.
The evidence of the hairs needs support of other evidence, ie positive identifications, the 'right' (in fact sadly the wrong) people boarding the 'right' vessels in the harbour that morning. Also, of course a 'genuine' witness attesting to a 'confession.' All of these things would make up the short fall in the credibility of the case against Watson that the Minister and McDonald have said can rely on 2 hairs from an unconfirmed source. Instead we see the 'fallen short' evidence supported by other evidence similarly short of the mark. How it goes in a 'real' Court is that Judges look at the weakened points, new evidence and indeed any evidence which goes to the centre of a conviction which is then individually assessed, then collectively assessed firstly to the mind of Judges, duty bound to consider the 'safety' of a conviction, then also by the same Judges as to how a Jury might consider the points individually and in totality with the caution that they are not the Jury and can not undertake the function of a Jury.
Watson has been hung out to dry. If McDonald, indeed the Minister now needs to rely parts of a case to hold together others which are fractured, that plank, or construction steel cannot itself be of suspect condition. It must be of absolute certainty, even then, with so many 'grey' areas now evident in the Crown case it is for a Court of Law to rule, not a defacto Judge working at the behest of a Minister on a narrow scope that is contradictory to the Law, precedent and practice as to how the concept of 'Mercy' is available to citizens for whom all other avenues toward their freedom are closed. I anticipate the Scot Watson may now be waiting for the Judicial Review process in Bain to be completed so as to learn what the Court's view is in contemporary time as to the rights of us all to know there is something to be found 'where legal rights end,' that is not merely paper to cover over the cracks of injustice.
,
Before turning to that decision it is a good reference to read the analysis of M. Travis, May 1998 into the exercise of the RPOM in New Zealand in which it is revealed that the whole concept of the RPOM is fundamentally misunderstood by the Justice Department and it's advisors to the point that it has at times relied upon 'advice' from within the Department as virtually anecdotal reference. In the mean time taken from M. Travis's paper is the fellowing conceptual grasp that McDonald didn't bother with and failed to even reference it seems:
In
de Freitas v Benny [1976] (Court of Appeal in Trinidad), Lord Diplock observed
that “mercy is not the subject of legal rights [but] begins where legal rights
end.” Christopher Gelber considered this a ruling that “the exercise of the
prerogative of mercy was inherently extra-legal in nature and therefore not
justiciable,” as did Lord Roskill in the G.C.H.Q. case [1985] A.C. 374.
Furthermore it cannot be denied that the Crown’s ability to pardon displays the
necessary characteristics of a true prerogative; yet there are those like Watkins
L.J. who reject the test of justiciability “in favour of an examination of the
court’s capacity to weigh the competing issues of principle in each case.”
Watkins considered the courts to be competent enough to review the prerogative
of mercy.
While the points of view discussed above are regarding the opportunity to seek Judicial Review, an important observation is made by Lord Diplock as to what mercy in fact is in the concept of the RPOM - it starts where Legal rights end. That is where appeals may have been exhausted and there in no other route for a petitioner to take - in practice in New Zealand the venue for a way back to the Courts for fresh evidence, or any evidence going to the safety of a conviction may go back to the Courts. Although the scope is wider than the legislative 'right' to have a case referred to the Courts, that would have been the proper recommendation for McDonald to have made. Immediately upon reading McDonald on the Watson application two clear 'positions' become obvious. Firstly, McDonald does not address, apart from in the barest way what her 'appreciation' of what the RPOM is, normally in a report this would be done at the outset and again in the conclusion. McDonald should have spelt out what her 'job' was and how she understood it should be done, and the way in which it was performed to meet public expectation of the exercise of a Royal Prerogative. In fact she has produced an opinion contrary to not only the concept of Mercy, but contrary to the Law. Reading the text of her report the second erroneous 'position' becomes clear. Also, probably inadvertently, explaining the first 'error' - she reveals her an apparent 'duty' to conduct a trial or review of the application as if she were a Judge in an Appeal Court - but even there, as both the Lundy and Bain Privy Council decisions show, she got it wrong in her 'Judgement.'
There are three striking errors in the McDonald report, even overlooking that no description was given of the RPOM in operation or how the author understood, with references, what the RPOM is in essence. It appears she feels the Royal Prerogative extended to her own whim giving her free reign to act as an omniscient Judge.
# Secret Witness A who reportedly recanted his testimony of a gaol house 'confession' by Watson. Despite all the Government resources behind her, McDonald was unable to locate this Crown witness. As far as I'm aware she never sought the help of The Crown to find him, leaving speculation that the Crown, or McDonald in fact on contract to the Crown, didn't want to find the witness. It remains that The Crown have been 'unable' to locate their own witness, a witness upon whom they relied to gain a conviction. McDonald did not offer that as a discount against Watson's conviction but rather allowed the discount to The Crown who were unable to produce their witness in an attempt to disprove or confirm the recantation. One can only wonder if the Crown already knew their witness was no longer 'pliable' to inducement. That's neither fair nor merciful for a conviction to stand on evidence that has essentially been withdrawn, or put another way - no longer exists. This was not an unimportant witness but one whose evidence went to the heart of Watson's conviction and a person for whom it can be argued 'sold' their evidence to the Crown in order to obtain favourable treatment, evidence which wouldn't have been admitted in some other jurisdictions.
# McDonald never once tested the totality of the weakened aspects of the Crown case against the conviction. Of course that wasn't her job, at the very least she needed to report that the various advances in favour of Watson to those whose job it is, the Court of Appeal. As witnesses crucial to Watson's identification and proximity to the deceased at particular times were no longer resolute on their previous evidence in became a matter for the proper consideration by The Court of Appeal. Rather than noting Diplock's assertion that mercy 'begins where legal rights end' she dismembered the petition denying Watson the test of evidence which goes the 'safeness' of his conviction, singularly and in totality. This despite the manner spelt out in both the Bain and Lundy PC Judgements as to how such evidence should be treated. McDonald effectively set herself up as a Judge, who had a 'right' to use selectively, or omit, legal precedent - in each instance that was to the detriment of Watson and to the 'benefit' of a Crown case that if not in tatters has lost crucial pieces of it's narrative. McDonald papered over the cracks of a 'story' gone wrong and one which now there is considerable doubt a Jury would convict upon.
# In essence the 2 failures above (which are more expansive than is traversed here,) where 'nestled behind' a 'catchall.' Two hairs on a blanket. The public got to hear the Minister of Justice Judith Collins say that the 'two hairs' sustained the conviction. In other words, witnesses who now say they wouldn't, or couldn't now identify Watson as a person alleged to have been identified in company with the deceased, a critical witness who had recanted having heard a confession, extreme doubt about the vessel the couple boarded in the company of a man (no longer clearly Watson in the now fractured dialogue) were swept aside on the basis of 2 hairs. As to those 2 hairs, and anticipating that a new Jury would hear the amended evidence of eye witnesses who could now not put Watson with the couple where formerly they could, the abandonment of The Crown case by one of it's most important witnesses, a more specific examination of sailing times that do not 'assist' the Crown version they can not, and are not, 'a catchall.' There is no evidence that they were, as is alleged, from Olivia Hope, but were rather from a broad genetic pool that may have included Olivia. Not only that they 'had a history' of appearing 'when they were needed,' the two hairs were 'not found' on a earlier search, they were found after the 'delivery' of bag containing hair samples taken from the Hope home in a bag which it appears had a split on one side.
The evidence of the hairs needs support of other evidence, ie positive identifications, the 'right' (in fact sadly the wrong) people boarding the 'right' vessels in the harbour that morning. Also, of course a 'genuine' witness attesting to a 'confession.' All of these things would make up the short fall in the credibility of the case against Watson that the Minister and McDonald have said can rely on 2 hairs from an unconfirmed source. Instead we see the 'fallen short' evidence supported by other evidence similarly short of the mark. How it goes in a 'real' Court is that Judges look at the weakened points, new evidence and indeed any evidence which goes to the centre of a conviction which is then individually assessed, then collectively assessed firstly to the mind of Judges, duty bound to consider the 'safety' of a conviction, then also by the same Judges as to how a Jury might consider the points individually and in totality with the caution that they are not the Jury and can not undertake the function of a Jury.
Watson has been hung out to dry. If McDonald, indeed the Minister now needs to rely parts of a case to hold together others which are fractured, that plank, or construction steel cannot itself be of suspect condition. It must be of absolute certainty, even then, with so many 'grey' areas now evident in the Crown case it is for a Court of Law to rule, not a defacto Judge working at the behest of a Minister on a narrow scope that is contradictory to the Law, precedent and practice as to how the concept of 'Mercy' is available to citizens for whom all other avenues toward their freedom are closed. I anticipate the Scot Watson may now be waiting for the Judicial Review process in Bain to be completed so as to learn what the Court's view is in contemporary time as to the rights of us all to know there is something to be found 'where legal rights end,' that is not merely paper to cover over the cracks of injustice.
Friday, November 15, 2013
David Tua gloves up to a man mountain.
This is truly 'Tua Time.' The meeting of heavyweights, the meeting of David against his critics, and himself, in the shape of Ustinov ranked 8th in the World and a veritable giant. By all reports Ustinov will 'lean down' on David in an effort to wear him out, clinch, push and lean. For the fans the question will be if Ustinov can absorb the body punishment David will look to work on the bigger man.
There are most often signs to read from David Tua before a fight. Before losing to Lewis he spoke about his destiny and never really delivered in a fight, that a spectator might have imagined that the winning of, belonged to Tua because he believed it was his 'destiny.' So much for that and so much for the menacing Tua who entered the ring against Shane Cameron to destroy him, and the many times overweight David who seemed to go into the ring with a bag of problems epitomised by his weight.
'This' David Tua is lean and focused. I saw him recently and he was bleeding power and aggression, the 2 greatest assets of the Tua arsenal. By all appearances he looks together and focused, determined. Age also now enters against his natural disadvantage in height, but a boxer loses his power last when speed and footwork has already declined. Tua though has always been an 'on off' fighter, this week he has mentioned his 'own' demons. I suggest that it means he's looking into himself for triumph, not looking outwardly for what he thinks should be his or what might be his 'destiny,' focused on the fact that he can only bring what is in himself, that he can control nothing except himself, focus his mind there, not on his demons and not on his destiny.
I expect, hope, to see an honest fight and effort. I expect that David will be mindful of the death in the last week of another great Samoan warrior, Pita Fatialofa only 14 years David's senior and a mentor and inspiration, that this fight may in someway be for 'fats.' Tua was the boy pitched in to fight men by his disciplinarian father, he had no way out, no escape from his father's ambition that he should, and would be a fighter. Well a fighter he is, sometimes locked in a battle with himself showing all the fragilities of nature where maturity and fear of punishment has been forced upon a child. This Saturday evening there will be no shadows of the past stepping into the ring with him, only months of training that have seen him drop over 30 kilos, the mountain is before he and his raw power, the aspirations and goodwill of 1000s around the globe will be behind him wanting to see the mountain fall.
There are most often signs to read from David Tua before a fight. Before losing to Lewis he spoke about his destiny and never really delivered in a fight, that a spectator might have imagined that the winning of, belonged to Tua because he believed it was his 'destiny.' So much for that and so much for the menacing Tua who entered the ring against Shane Cameron to destroy him, and the many times overweight David who seemed to go into the ring with a bag of problems epitomised by his weight.
'This' David Tua is lean and focused. I saw him recently and he was bleeding power and aggression, the 2 greatest assets of the Tua arsenal. By all appearances he looks together and focused, determined. Age also now enters against his natural disadvantage in height, but a boxer loses his power last when speed and footwork has already declined. Tua though has always been an 'on off' fighter, this week he has mentioned his 'own' demons. I suggest that it means he's looking into himself for triumph, not looking outwardly for what he thinks should be his or what might be his 'destiny,' focused on the fact that he can only bring what is in himself, that he can control nothing except himself, focus his mind there, not on his demons and not on his destiny.
I expect, hope, to see an honest fight and effort. I expect that David will be mindful of the death in the last week of another great Samoan warrior, Pita Fatialofa only 14 years David's senior and a mentor and inspiration, that this fight may in someway be for 'fats.' Tua was the boy pitched in to fight men by his disciplinarian father, he had no way out, no escape from his father's ambition that he should, and would be a fighter. Well a fighter he is, sometimes locked in a battle with himself showing all the fragilities of nature where maturity and fear of punishment has been forced upon a child. This Saturday evening there will be no shadows of the past stepping into the ring with him, only months of training that have seen him drop over 30 kilos, the mountain is before he and his raw power, the aspirations and goodwill of 1000s around the globe will be behind him wanting to see the mountain fall.
Wednesday, November 6, 2013
Salem, in Auckland?
The following from a correspondent:
Whether the death in Auckland last night is in fact linked to this latest misuse of the internet will be revealed in the fullness of time. There is no doubt however about the vigilante aspect at this point and Trade Me should and Facebook should not be allowing misuse of their message boards or other facilities in this way.
On the question of 'nothing being done' it seems again that lack of using the existing Laws, as in the case of using The Harassment Act, rather than waiting for the 'new miracle' Act advanced by the Minister of Justice is again evident. In so much that both Trade Me and Facebook are 'public places' there are various sections of current NZ Law that would allow public 'offence' charges of various types to be laid by police. The Courts are the right place for it to be determine if the Facebook and Trade Me postings are offensive to the public or a threat to public order. Some of the posts readily display offensive material, others incite public disorder.
Again we see the authorities unable to grasp the concept that cyber space is a 'reality,' in fact a public place and not somewhere in 'space.' These are offences conceived and committed from behind computers electronically linked into the homes of other New Zealanders, just as shouts may be from a street corner into a private address. Any member of the public has the right to complain about this to police about this and there is already precedent for New Zealand Courts to accept that harassment can and does take place in 'cyber space.'
And now we see the witchhunt mentality in action, fired by
the police apparent inaction, over this ‘roastbusters’ thing, facilitated by
facebook and the media. The police have not acted, for whatever reason – I
think their claim they need a complaint is a bit feeble. But so the vigilante
groups have taken it into their own hands. Today there’s a report of a man
killed in Burnley Terrace in Auckland, and it’s being said it’s one of the
roastbusters. The older brother of one of them (the other Parker boy) has lost
his job (he had a new baby at the weekend) just for being the brother of one of
the pair in the media. This is real harm being done.
While this roastbuster gang are beyond despicable, it should
not be something that vigilantes take into their own hands. That in
itself shows a loss of trust in ‘the system’ – the Police and justice system.
And they are being egged on by social media – the TradeMe threads are cranking
people up, the comments sections on various media reports are. The readiness to
assume that the police are holding back because one of the boys involved is a
cop’s son also suggests that society at large does not trust the police to act
properly.
Salem, Auckland….