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Secrecy of previous convictions – Collins fingers hypocrisy

  • May 8th, 2013

The Hon Judith Collins justifies the ordinary voter's support for National. Her  preparedness to establish a register of convictions is another example.

Let's hope that she makes it simple. The current system has converted "open courts and justice being seen to be done" into a hollow slogan. A Press editorial advocates simplicity as far as it goes – but that is not far enough.

The record should be open. What happens in open court should be on that record. It should mean that people 'live down their crime' if people who know their offending gain confidence in them from long term reliability. That is not the current version. System defenders claim without research evidence that not being caught and living among unwitting associates is rehabilitation.

Minister Collins should at the same time straighten out name suppression.  Lawyers and judges claim  public or victim interest justifications for name suppression. From  years as a MP, watching the cases closely, that claim is often spurious. Even the claim that it is necessary for the rehabilitiation of offenders is undisciplined, not supported by robust research.

Many court lawyers are more clerical than logical in their reasoning and their intuitive default positions. They are like the priests who hated Luther for allowing the common people to know what the Latin mumbling meant. They sense a loss of power when ordinary people are allowed to have as much knowledge as them. So losing the power to keep names secret is opposed from instinct, not rational evidence.

Take for example, the almost universal suppression of names pending trial. It is allegedly to protect victims, and the trial process.
I’ve seen no research evidence that routine suppression actually protects many victims. There will undoubtedly be some who would want it but often almost everyone close to a victim (those whose reactions will matter)  will know of the misfortune before the offender is apprehended. Those more distant may get garbled rumours. Rumours may be  as bad or worse than the truth that disclosure would reveal.

The claim that suppression is for victims (rather than to feed the status interests of justice system insiders) is exposd for what it is by the system’s usual refusal to drop suppression even when the victim desperately wants full exposure of the offender, and sees knowledge of their suffering and role in that exposure as worth it, or even as rehabilitative.
 

The claim that suppression is necessary to protect against contamination of the trial process is:
 

  • Ludicrous in relation to judge alone trials. Are the judges saying they will be unable to overcome their own prejudices established by early media coverage?
  • Untested against the reality that many if not most internet savvy jurors regard doing their own google research as a basic right. I understand that jurors commonly ignore judges’ prohibitions. It is long overdue for the Courts to recognise that we are now well back into the ‘village’ environment in which the jury system emerged. At that time jurors were the accused's peers. Their background knowledge of the accused was required to help judge truthfulness. It is a recent development that jurors are meant to be empty vessels, to have in their heads only the software and database poured into them by the court. Time to adjust to reality.
  • An excuse that relies on not measuring or having confidence in the impact of the slow and careful testing and challenge process to evidence in a modern trial. If the jury cannot put their own pre-knowledge to test then we have much good reason to dump the jury as a fact finder.
     

IMHO solutions are staring court lawyers in the face:
 

  • Stop suppression unless victims ask for it;
  • Ask jurors to identify at the beginning of a trial all the pre-knowledge they come with, and any theories and provisional conclusions they start with, including sources, so that counsel and the judge can test them explicitly if they seem sufficiently influential; or, if juries are still not trusted to overcome preconceptions
  • End their role as finders of guilt or innocence and give them the role they are better suited for – to express the community view in sentencing with a residual protection function in an ability to come down with a nil or negligible sentence if they have concerns about the judge’s finding of guilt
     

Comments

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  • Mike Mckee
  • May 8th, 2013
  • 7:07 pm

Certainly one should consider suppression before trial but once in court, justice must be seen to be done. simple.
If the Hon Mrs Collins & Mr Key don’t understand that, then they need retraining on the basics of a western democracy and maintaining the rule of law and the trust in the organs of state.

However even now the NZPolice and I presume the lawyers at Crown law leak info to get more victims or info on a person or situation.
Is this because most people don’t apply for suppression or do they just do it ad hoc depending on the crime, offender or when they need too?

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  • John Brett
  • May 9th, 2013
  • 9:36 am

Many years ago, I was accused of indecently assaulting my daughter, during am acrimonious divorce, to support my wife’s claim for custody. This was before DV legislation made violence the allegation of choice. The advice I was given was that “there is no effective defence, you are guilty until proven innocent, and to plead guilty”. I sacked that Lawyer. The Police eventually dropped the charge following strong denials by my daughter,the alleged victim, that the alleged offence occurred or even could occur. I was extremely lucky. My name was published, and to this day many people regard me as guilty of despicable crimes. I can see reasons for suppression, to protect the wrongly accused.

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John

Possibly, but from what you say your reputation was affected though you were not before the courts. The remedy for false accusations, particularly for tactical reasons in custody and other separatioin stoushes, is in my opinion much more vigilant use of perjury charges by Police, and defamation suits. The failure of judges to maintain the cost of the latter within reasonable bounds is not a reason to tolerate secrecy in the courts,

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Publishing the names of those found guilty is still a good start.

Secondly, when name suppression is requested to be lifted BY THE VICTIMS in those cases where the person was found guilty, that should be the case. I see a few cases where the victims have requested this, and the name suppression stands – supposedly for their own good – which makes be believe that is a sham excuse.

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  • NJ Pritchard
  • May 9th, 2013
  • 3:22 pm

I commend the Hon. Judith Collins for sharing this… commentary, methinks.
Honestly, when the tables are turned and victims all victims are looking for a good judge, the one who goes the longest mile behind the bench instills public confidence.
The remarks before mine would be the second point; one surely does not have to have Thomas as a last name for damages done.
Thirdly, when I read about cases in NZ newspapers, I am always reminded of the brilliance of our judicious ethic remaining intact. There are always going to be all families involved to consider in our small nation.
Which brings me to conclusion of import. I dont suggest we re-introduce Latin or other benchmark such historic laws against normalizing Sodomy. Slander law is the benchmark of civilization –priests don’t at all need help from the State with priest bashing…but due process and robust evidence for suppression of a man’s good name I’m pretty sure as mentioned at the top, the last time I looked is the difference between law and persecution –for aghast public bystanders. Tumeke and too thin Mr Franks. There must be other legalese case you can come up with besides reference to the Reformation. Jesus Christ.
Try restoration.

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  • Roy Edwards
  • May 9th, 2013
  • 4:40 pm

As I understand it the principle is “innocent until proved guilty”.
It has for many years amazed me that by publishing the names of people arrested that by dint of human nature, then all accused are guilty in the mind of the populace.
I refer to Johns comment above. He is not the only situation I have heard of and not only in custody cases.
Other than a idle curosity what purpose does the publication of someones name before trial serve.
Would be interesting to see how many cases are
a)arrested but not brought to trial
b) Found not guilty
That number will be the people who will all tell you that they are guilty in some peoples minds even tho they are innocent.

My suspicion also is that Police often arrest people knowing that they will
a) be castigated by the population
b) have to spend, in many cases a large sum of money on lawyers fees defending their innocence

and hence be punished.

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End their role as finders of guilt or innocence and give them the role they are better suited for…

You seem to have a lot of faith in our those who currently inhabit important positions in our justice system.

[SLF] Irony Graeme?

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Well, yes.

You don’t seem to place great stock in our current judges, so I’m wondering why you want to give them to power to find guilt or non-guilt in serious cases.

I also like the irony of your proposed repeal of three strikes. If a jury is deciding a sentence (and can impose no sentence if they think a person didn’t actually commit an offence a judge has convicted them of), then I can’t see how three strikes could work with your proposed system.

Grrr, A blog is had by me on my website and it sucks. I actually
removed it, but may need to bring it back again. I was presented with by you motivation!
Keep on writing!

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