0 Here comes the back-down

Labour appears to be backing away from its proposal to reverse the burden of proof on consent in rape cases; Newstalk ZB reports:

A case of Andrew Little thinking out loud.
Labour's downplaying its justice spokesman's proposal to shift the burden of proof in rape cases.
The party wants the Law Commission to consider a shift to an inquisitorial system - to make courtrooms less combative for alleged victims of sexual assault.
Mr Little's suggested the defence should have to show there was consent, to prove the accused's innocence.
But leader David Cunliffe says Labour will await expert advice on the idea.
"I think he was saying what I've been saying which is that it is a matter for the Law Commission.
"There's a range of options on the table.
"One possibility could be - dot, dot, dot." 

David Cunliffe has obviously been holding his finger up to the winds of public opinion on this important issue. He's know starting to back away from what Andrew Little was proposing with no ambiguity whatsoever up until Tuesday.

This is vintage Labour Party policy-making on the hoof. Announce something, then back away from it when you get an adverse reaction. That is no way for Labour to be demonstrating that the party is a credible alternative government-in-waiting.

It reminds us of the infamous Groucho Marx quote:

Those are my principles, and if you don't like them... well, I have others.

We're pleased that David Cunliffe has seen sense, and will not be going ahead with this proposal, for now, anyway. But the mere fact that it was raised at all suggests an absence of good judgment on the part of Labour's MPs.

0 Idiot/Savant on the presumption of innocence

Every now and again the planets align in such a way that we agree with something Idiot/Savant at No Right Turn has written.

Today is one of those days. Under the heading Time to defend the presumption of innocence Idiot/Savant blogs:

I accept that rape cases are difficult to prove. This change will make them remarkably easier. If Labour gets its way, there will be a lot more convictions for rape. And a lot more of them will be of innocent people. We presume innocence because we believe it is far better for the guilty to go free than for the innocent to be punished. Labour clearly does not believe that any more.

A party which does not believe in and will not defend the presumption of innocence does not deserve your vote. All they deserve is your contempt. If they retain this policy, you should not vote Labour.

In its haste to appeal to female voters, Labour has overreacted. The policy proposed by Andrew Little will create far more legal problems than it will solve, and it highly likely to result in innocent people being jailed. 

In the meantime, it will be interesting to hear what other parties, and especially the Green Party think of Andrew Little and Labour's proposal. There may yet be other parties to add to Idiot/Savant's "do not vote for" list.

0 Labour IS planning on reversing the burden of proof

We asked on Saturday if it was true the Labour Party was planning to reverse the burden of proof of consent in cases of alleged rape. 

This morning we have discovered that it is indeed true as Derek Cheng reports in the Herald:

The Labour Party's plan to reform the criminal justice system would mean that the accused in a rape case would have to prove consent to be found innocent -- a change it acknowledges as a monumental shift.
But Labour's justice spokesman Andrew Little said the current system is broken and in need of a major shake-up. The party favours an inquisitorial system, where a judge interviewed the alleged victim after conferring with prosecution and defence lawyers.
The policy would mean that in a rape case, if the Crown proved a sexual encounter and the identity of the defendant, it would be rape unless the defendant could prove it was consensual.
"The Crown has to prove more than just sex; the issue of consent has to be raised by the Crown, they have to prove the identity of the offender. They would have to bear that burden of proof before a switch to the defence to prove consent," Mr Little said.

He said the issue of proof would only apply where allegations of rape had been raised.
"It is pretty radical thing to say that 'all sex is rape' unless you prove consent. The reality is that in 99.9 per cent of cases, no one is being asked to prove consent."

Firstly we will make this statement; rape is abhorrent. As we have blogged previously, a close family member was a victim of rape a number of years ago, and without doubt, that reinforces our view on the horror of the crime of rape.

And whilst we agree with Andrew Little up to a point that the current system with regard to rape victims needs work, we are completely opposed to Labour's proposed solution. 

Requiring those accused of rape to prove consent will be a legal minefield, and it is no surprise the Law Society is opposed; read on:

The Law Society has a strong stance on traditional principles of the legal system, including a presumption of innocence until proven guilty beyond reasonable doubt. It has argued strongly against inquisitorial systems in the past.
Mr Little said the inquisitorial system still preserved those principles because the Crown would still have to prove a number of aspects of a case before consent was explored.
"I don't accept that that is creating an offence under which the defendant is guilty until proven innocent."
He acknowledged the change would be a "huge leap".
"But when you look at the volume of sexual violence cases and the 1 per cent of cases that result in a conviction, there is something wrong with the way we are handling sexual violation cases. The circumstances may well justify doing something radically different."
In such a system, a victim would not be cross-examined by a defence lawyer.

Andrew Little is right about one thing. What he is proposing as Labour Party policy is indeed "something radically different", and it is something that is simply too radical. The presumption of innocence is a fundamental aspect of the criminal justice system, and it ought not be tampered with.

We know a number of our readers are from the legal fraternity, and we would be very interested in their views. If there is a lawyer who would be prepared to contribute a guest post, written from a legal perspective, we would be hugely grateful - feel free to e-mail us.

We commend Andrew Little for proposing something new, but his proposal goes far, far too far in dismantling a legal principle that has its origins over 1700 years ago. The prosecution must prove all aspects of a case beyond a reasonable doubt, and we can think of no good reason why this should change.

0 Is Labour proposing reversing the burden of proof?

DPF blogs:

This is a major policy by Labour, that has had very little attention. It is now Labour Party policy that you have to prove your innocence if accused of rape.
Andrew Little said on the 2nd of July:

“A better measure would be to hand control of all examination of a victim to the judge with lawyers for both sides notifying the court which issues they want dealt with, along with shifting the burden of proof on the issue of consent to the defence.

This means that if two people have sex, and one person accuses the other of rape, then the accused must prove beyond reasonable doubt they had consent.
Now you might think this is just Andrew Little musing aloud. Not so.  He confirms in this tweet it is official policy.

The post then goes on to say this:

Andrew Little says:

“This approach does not contradict the fundamental principle that a defendant is innocent until proven guilty – the basic facts of the case still have to be made out – but it does mean the prosecution doesn’t need to prove a negative, namely that there was no consent.

This is sophistry. If the act of sex is not disputed, just consent, then the defendant does have to prove themselves innocent.
I wonder how many hours it will take until Labour does a u-turn on their policy, once people realise its implications.
Rape is a terrible crime, and the court process is very hard on many victims, and I am sure it can be improved. But reversing the presumption of innocence and burden of proof is not the answer.

We agree with DPF; rape is abhorrent. A close family member was a rape victim a number of years ago, so this is an issue we have particularly strong feelings about.

The judicial system is far from perfect for the victims of sexual abuse and rape. But we are sure there are other ways to improve the system than by reversing the burden of proof, and requiring alleged offenders to prove their innocence if an allegation is made against them.

If this is indeed official Labour Party policy, and not just a kite-flying exercise by Andrew Little it is one occasion where a policy u-turn would be welcomed, and most certainly not mocked by this blog. 

John Mortimer's fictional but lifelike character Horace Rumpole refers to the presumption of innocence as the "golden thread" of the criminal justice system. Whatever changes are made within the system to make it better for the victims of sexual offences, reversing the burden of proof should not be one of them, and any suggestions of that must be vigorously opposed.

0 Hope the cleaners are well paid

Whoever cleans up after Labour's list ranking meeting this weekend had better be very well paid. There's likely to be blood on the floor in what is shaping up as an acrimonious session; the Herald reports:

The Labour Party will set its party list on Sunday and most of the prime real estate on it is expected to go to women candidates as the party wrestles with its new requirement to have a caucus with at least 45 per cent women after the 2014 election.
All of the top 20 MPs in caucus have also been told to go on the list in a bid to stop any perception the male MPs are boycotting it because of that rule, which makes it harder for males to get good list slots.
The party's low polling makes the news worse for male candidates relying on the list. It is expecting to win at least 28 electorates, 5 more than at present. That will give it two more female electorate MPs than present - Carmel Sepuloni and Jenny Salesa are in safe seats.
However, if Labour gets 30 per cent at the election that leaves only 8 places for List MPs - and 6 of those would have to go to women if it is to meet the 45 per cent.

That would not be enough to get all of the current List MPs back. It could put the likes of Clayton Cosgrove, Andrew Little and Kelvin Davis at risk of missing out if more women are ranked above them to ensure the 45 per cent target was safely passed.

The Labour Party's Man-Ban is about to come back and bite MP's on the bum. When senior MP's such as Andrew Little and Clayton Cosgrove are in danger of missing out (and David Parker's name was also mentioned this week, when Labour polled 23%), things are pretty grim.

Quota systems simply don't work. As honourable as Labour MP's trying to honour the party's commitment to gender equity may feel, very competent male MP's are going to have to make way for less qualified females, simply to make up the numbers.

We don't say that to demean Labour's female candidates. But a party which has been to the forefront of bringing women forward in politics ought not to have to resort to a quota system. It is the quota imposed by the Man-Ban policy that is demeaning to women. The sole qualification for an MP should be ability, not genitalia.

And as the polls continue their descent, and male MP's such Messrs Parker, Cosgrove, Little and Davis scramble for winnable list places, this weekend's ranking meeting will be brutal. We guess that's only to be expected when someone is about to be dudded out of a job and a $150,000 salary simply because they had the misfortune to be born the wrong gender.

The Man-Ban always was a daft idea. When Labour's Party List is released some time tomorrow, and when the casualties have been either bandaged up or transported to hospital we're going to see just how daft the Man-Ban is now. And we'll get an idea of how much worse it will be in 2017 when Labour's rules will require a 50/50 split.

0 Quote of the Day - 13 June 2014

Fran O'Sullivan's Herald column today is about political donations, and the expectations thereafter. Headed Cash donors have expectations it concludes thus:

Justice Wylie's judgment is also notable for the light it sheds on SkyCity's relationship with Brown. SkyCity had not previously donated to an Auckland mayoral campaign. But in 2010, Brown's campaign team approached the casino company for a donation.
SkyCity's board and CEO Nigel Morrison agreed to make the donation and one of a similar size to Banks. SkyCity did not want either of the two $15,000 donations to be made anonymously.
The Banks saga is still to finally play out. But what is notable is that Brown - who was publicly perceived to be concerned about the social cost of casinos - was quite prepared to have his campaign team pursue SkyCity for a donation.
As the EY inquiry disclosed, Brown benefited from free nights at the casino operator's hotel. Brown also gave his support to the Government's "pokies for convention centre" deal with SkyCity.
It's not easy to hold back a tsunami of disbelief that donor cash doesn't buy influence when looking at the sequence of events.
I've questioned before why Brown wanted to take power off the Council Controlled Organisations and centralise it in the mayor's office. There are some good commercial brains on the boards of the CCOs. But they have been subject to too much dictate from the centre.
At a national level, Labour's Andrew Little was right on the button with his call for an independent inquiry into the police decision not to prosecute Banks. But Little shouldn't stop there. The bigger question - which far outweighs Banks' transgressions - is why the police didn't file a legal prosecution against Labour Party identities after Labour raided parliamentary funds to back its 2005 campaign for re-election.
That question still remains.
Banks has paid a price for a crime which is substantially less than that committed by the country's then ruling party.

Fran O'Sullivan's comments about Len Brown and his relationship with SkyCity reawaken the events surrounding the outing of his affair with Bevan Chuang, and the investigation which followed. They will do nothing to dispel the lingering suspicion that Brown is unfit for the office of Mayor of Auckland on several levels.

But it is her comments on Labour and the 2005 Pledge card scandal that are the most telling. We warned Andrew Little last week to be careful what he wished for. Now the Pledge card rort is back in the news, and Labour will have to go into damage control all over again. 

This time though, they are doing the damage control from the Opposition benches, so any time spent putting out nine-year-old fires is time that Labour ISN'T telling New Zealand what it would do for the next nine years.

0 Some thoughts on Electoral Act breaches

3News reports that the Labour Party wants an inquiry into why the Police chose not to prosecute John Banks; check this out:

Labour is calling for an independent inquiry into recent investigations and prosecutions involving politicians, in the wake of the John Banks scandal.

Friday will be the Epsom MP's last day in Parliament as he is quitting after being found guilty of electoral fraud.

Labour's justice spokesman Andrew Little says the public is entitled to know why the police decided originally not to prosecute Banks.

"There is a real question now that has to be examined more closely by a very high-powered, legally trained person," he says.

Mr Little says an independent agency may be needed to look into allegations of electoral malpractice and corruption.

We actually agree with Andrew Little on his final point above. But we reckon that Andrew Little should be careful what he wishes for, given the Labour Party's past record of electoral infringements that were not prosecuted. 

Cameron Slater has refreshed a story published in Truth when he was editing it, detailing some outstanding and unresolved alleged breaches of the Electoral Act:

Back when I was editor of Truth I OIAd the Electoral Commission about outstanding complaints they had sent to the Police for prosecution.
To date nothing has happened with those complaints.
Here is what I wrote back then. The sentiments and facts remain the same:

In our January 3rd issue we reported the following story. This has since been picked up by other media agencies, so we thought we would refresh your memories on how you heard it first at Truth.

Police are sitting on more than twenty open investigations referred to them for prosecution under the Electoral Act by the Electoral Commission.

Truth has obtained details under the Official Information Act that reveal Police seem to have no interest in prosecuting offences and breaches of the Electoral Act.

Of the 32 cases referred, 6 have lapsed because the prosecution time limit has expired.

62 dual vote referrals remain open and un-prosecuted.

Headline cases referred by the Electoral Commission that remain open with little or no progress are the Green party worker Jolyon White’s alleged vandalism of National’s signs at the 2011 election, several of Labour’s flyers including their ‘Stop Asset Sales’, ‘Prices are Rising faster than wages’ and ‘Ohariu Census’ pamphlets.

Only 3 cases have been closed, with no action or prosecution resulting.

The Electoral Act is the governing act to keep checks on political parties and candidates. The Police do not appear to be interested in prosecuting these cases.

We agree with Cameron Slater that the Police seem to have no interest in getting involved in electoral offences. We even have a possible solution! 

We reckon that the Electoral Commission should be given the necessary powers to set up a prosecutions branch, independent of the Police and of any political parties. Those staffing the branch would have an in-depth knowledge of electoral law, something that the Police seems to lack. 

Whilst some of the offences listed above may seem trivial, they are breaches of the law nonetheless. Political parties are given extensive information from the Electoral Commission as to what they can and cannot do. If they choose to ignore that advice, as David Cunliffe did with his tweet on the morning of last year's Christchurch East by-election, a prosecution should be strongly considered. If there is no sanction for breaking the law, there is no incentive to comply with it.

If the Police lack the will to prosecute, then that responsibility should be passed on to an agency that will treat breaches of the law with due seriousness. That agency should be the Electoral Commission, which already administers the Electoral Act.

Do you agree?