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 The ICC backs McCullum

New Zealand cricket captain Brendon McCullum has received something of an endorsement from the ICC; the Herald reports:

The ICC has publicly commended New Zealand captain Brendon McCullum for his conduct in the match-fixing scandal enveloping the game.
The International Cricket Council's chief executive David Richardson spoke publicly to ward off any "misperception that he is somehow under suspicion".
McCullum's testimony to the ICC's anti-corruption investigation was leaked to the public this week, along with that of Lou Vincent. While Vincent's role in match-fixing is now becoming clear, Richardson said McCullum had done everything right.
He said the fact confidential information found its way into the public domain was worrying and the ICC was investigating how this happened as a matter of urgency.

"Of course, we recognise that this is a deeply concerning development for the stakeholders in the fight against corruption in the sport of cricket, and we wish to emphasise that Brendon McCullum is not under investigation in this matter," Richardson said.
"Whilst we have privately offered our full support to Brendon, we do so now publicly not only to confirm that, by assisting with the ACSU's enquiries, he has acted quite properly in accordance with his responsibilities as a professional cricketer... He is to be commended for his actions and we deeply regret that aspects of his statement are now in the public domain."

This does not bode well for Chris Cairns. He has said that Brendon McCullum and Lou Vincent are lying when they accuse him of being the mysterious Player X, but the evidence that McCullum, Vincent, Vincent's ex-wife and others have given to the ICC's Anti-Corruption and Security Unit is detailed and explicit.

Chris Cairns is, as we have said any number of times, entitled to the presumption of innocence. The onus will be on the ICC and any prosecutorial services to prove the allegations against Cairns beyond reasonable doubt. But it must be said that the evidence at this point is stacking up against Cairns. Clearly, both Cairns and McCullum cannot be telling the truth when their stories are at opposite ends of the scale. 

There is a separate issue for Chris Cairns. If it is later found that the evidence he gave in his libel case against ICL boss Lalit Modi in London was false, he will be at risk of being prosecuted for perjury, and the damages awarded to him may have to be repaid. The arrest in March of his former lawyer Andrew Fitch-Holland in London on suspicion of perverting the course of justice in relation to the libel case suggests that the match-fixing investigation may be just one of the hurdles Cairns faces in the next few months and years.

These are terribly sad times for those of us who love cricket.

0 Photo of the Day - 19 May 2014

John Banks got a muddy reception at the High Court in Auckland today from a bloke who obviously doesn't believe in the presumption of innocence; the Herald reports:

John Banks' trial on a charge of filing a false electoral return got off to a dirty start today when a man threw a bucket of mud at him as he walked into the High Court at Auckland.
Act's sole MP was walking towards the court's entrance when an elderly man stepped forward and threw a bucket load of mud at him, spattering his face and suit.

Of course, serial protester and Auckland rates defaulter Penny Bright just happened to be right on hand:

Penny Bright, who was protesting against Banks outside the court, witnessed the incident and said the man "just biffed it all over" Banks.

"He just looked like thunder," she said of Banks, who then composed himself and walked inside.
Ms Bright said the man, who was wearing a purple polar fleece top and grey track pants, was angry about something Banks had said on Radio Pacific in 1997.
Court security were dealing with the man.

Mr Banks' assailant, like Mr Banks himself, may find himself in court. If that is the case, he will be entitled to the same presumption of innocence that Mr Banks is, and that the protester tried to circumvent this morning. Isn't that ironic...

0 The Banks trial

John Banks goes on trial in the High Court in Auckland today. He is being prosecuted over allegations of knowingly filing a false return of donations after the 2010 local body elections; NBR reports:

John Banks' trial for allegedly filing a false electoral return kicks off in the High Court at Auckland today.
The judge-only trial centres on Crown allegations that Mr Banks knowingly filed a false return after the 2010 Auckland Mayoral election (in which the then Auckland Mayor stood unsuccessfully against Manukau Len Brown for the to head the newly amalgamated "super city"). Under the local government electoral law at the time, it was an offence to list a donour as anonymous if a candidate knew their identity.
The Crown says Mr Banks asked Kim Dotcom to split a $50,000 cheque into two $25,000 payments to skirt threshold on anonymous donations. It also alleges Mr Banks rang Mr Dotcom to thank him a few days later. Mr Banks denies the claim.
Mr Dotcom — who became angered after Mr Banks failed to answer a request for help after the accused pirate was jailed following the January 20, 2012 raid on his rented mansion — has backed the Crown's version of events.
The prosecution also alleges that Sky City CEO Nigel Morrison personally handed Mr Banks a campaign donation cheque for $15,000. The Sky City donation was also listed as anonymous.
Mr Banks has denied any wrongdoing. 

We will refrain from making any comment on the trial until the judge hands down a verdict. John Banks is entitled to be presumed innocent, and the Crown is required to prove its case against the MP. Listening to TV and radio coverage this morning though, you'd think that Banks had already been convicted, and was appearing for sentencing this morning!

Kim Dotcom will be a key witness in the Crown's case. We noted recently that the defence will seek to put Dotcom's credibility under scrutiny, given that his evidence is crucial to the Crown's case.

This will be a most interesting trial. If Banks is convicted he can, as a long-serving politician, expect little sympathy from us.


Footnote: This post will be closely moderated. Comments that prejudge Mr Banks or are in any way defamatory will not be published. His guilt or innocence is a matter for the High Court to decide.