Sunday, November 22, 2015

Scott Watson unconvincing.

In what is possibly Scott Watson's first ever interview he comes across as complex in this months issue of North and South. He seemed to have been busting to tell his side of the story and why not of course. But unfortunately it appeared to me that in describing the police case manufactured against him he has brought too deeply into needing to explain something uncomfortable to the public - that he was framed more by rumour and deliberate misinformation than by evidence. He came across at times as though arguing that the entire police force and even the prison administrators were against him when that is simply not the case.

Such descriptions took the emphasis away from the main doubts about his convictions. I think he needed to be hammering them, rather that trying to convince the public of a plot against him rather than a lack of evidence. While he may be well justified, as he appears to be, to denounce the police investigation - that unfortunately doesn't resonate broadly in the public mind. The public I think are given the option to either accept that Watson is obsessed to the point of fuelling suspicion against himself or confirming already held opinions of his guilt rather than accepting his argument that the entire police force is corrupt. For example had he merely said that officer in charge of the police case had only been able to put Watson and the young couple together by employing an apparently deliberately deceitful manipulations of 2 prime witnesses and photographs which now longer stood, a telling aspect of the failure of the case would have stood firm - giving a strong, inescapable   argument for a retrial.

Of course Watson is not trained in public relations as he clearly told Mike White from the North and South magazine. Nor is his father. Scott Watson also showed he does not have the single mindedness of arguing how the case against him has now failed, compared to the time of the trial. Again he has brought into the rhetoric used by the police to arguing in circles on the periphery of the evidence, rather than right at the heart of the unsoundness of his conviction. That suits the police, they take advantage of the misinformation against Watson because Watson himself raises it time and again.

What do the public need to know? Something simple, easy to follow rather than an over burdened picture with details they might find scary or even bizarre. It is at this point that the complexity of Watson himself works against him. I think that is entirely understandable on the 1 hand but very destructive on the other. I for example wanted to hear about his recent failed application under the Royal Prerogative of Mercy. I looked forward to a tight argument based on tight facts as to why that application is, or should be, taken for Judicial Review. Though it cannot be a surprise that Scott Watson perhaps is unable to appreciate the simple detail of the failing Crown case against him when so much about his conviction is over burdened with pointless detail and insinuation.

The Crown needed to put Watson and the deceased Ben and Olivia together. Whilst they did to that at the trial through 2 witnesses, the water taxi operator and the bar manager both recanted and now say they were tricked into their identification of Watson being with the couple. That is a simple and crippling point in the Crown case. Watson cannot be reliably placed with the deceased couple before or after their deaths. Moving forward from that is the description of Watson's boat compared to the much bigger vessel the couple were dropped of at after leaving the hotel. The descriptions are not the same, even remotely. The Crown argue that Watson came ashore after alone being dropped off to his boat with the couple, however that is a theory they have been unable to prove beyond reasonable doubt.

Where Watson explains point by point the dismantling of the evidence against himself, he either fails to appreciate, having brought hook line and sinker the report into his failed application for The Royal Prerogative of Mercy, that the dismantling of various facts once held against him not only need to be looked at in isolation but in continuity. For example the recanted identifications cannot be relied upon to prop up the case against Watson in other areas. The bar manager and the water taxi driver that put the couple together with Watson no longer stands, that is from the witnesses themselves. There is no longer any credit the Crown can take from evidence that has been withdrawn and this indicates the real Miscarriage of Justice that is now the Watson case. The Crown in Law cannot rely upon evidence that no longer exists to prop up other evidence  that is contingent upon the failed evidence. In short what puts the couple on Watson's both if the water taxi driver says it wasn't he that put the couple on Watson's both but on a large ketch and not in the company of Watson but another man? Nothing. If the 2 witnesses are mistaken in their recantation let a Jury make heads or tails of it, let a Jury decide having first heard the witnesses evidence and cross examination, don't allow their evidence to a credit to the Crown in a case which has failed.

Following those recalled identifications there really are only 2 other issues in question about the purported validity of the Watson verdict. Firstly his 'confession' to a stranger in prison which has also been recanted. Because the Crown could not find the witness the investigator of Watson's application for the Royal Prerogative of Mercy allowed the evidence to stand. Well hello, if the police no longer have positive identifications of Watson with the couple that can't be support for the police being unable to find their own witness who has recanted anyway. This is the systematic failure in the case against Watson, doubtful or recanted evidence used to hold together other doubtful or recanted evidence. Watson, in his interview, didn't focus on that - instead he gave breath to peripheral stuff which included a media campaign. Well, the media campaign, if it can be called that - doesn't put the couple together with Watson, only hard unimpeachable evidence can do that and it does not exist.

I've written before about what appears to be keeping Watson from his freedom 2 hairs found on a blanket in a lab. While the blanket had been taken from Watson yacht and over 400 hairs removed from it 2 distinctive, blond and long hairs were not found. The 'hair search' was conducted by a scientist in a laboratory situation. It was only after a second search, and following hairs being uplifted from the home of Olivia and delivered to the same Laboratory that 2 hairs from un unknown number of introduced hairs were found on the blanket in a subsequent search. Those 2 hairs at Watson's trial backed up the identifications of Watson being with the couple. However when those identifications are withdrawn the 2 hairs become something entirely different, evidence in isolation that 2 hairs were found on a blanket already carefully searched and only found after a bag containing an unknown number of hairs was introduced to the laboratory.

On the subject of the hairs and the mystery ketch, elsewhere on this blog has been submitted a photo of a ketch which really ought to have been seen by the Jury and put to witnesses at the trial as in fact the vessel that the couple went aboard. Also elsewhere on this blog is an analysis of the forensic value of the 2 hairs. That analysis, and perhaps this is not known to Watson, shows that the 2 hairs indicate the same hereditary line of Olivia and her sister, that they were both the daughters of their mother - the conduit of that hereditary line. They could have been the hairs of one sister or the other I understand, that is a could rather than a definite. Something else that favours Watson since the identifications and so called confession no longer stands, not only are the couple  not put in the company of Watson by witnesses, or on is boat but that 2 hairs apparently pivotal to the validity of Watson's conviction prove neither to be those of Olivia beyond reasonable doubt, or in fact not to have been absolutely unable to have arrived on a blanket in a laboratory 'between' searches other than by some kind of evidence contamination. The case against Watson is in tatters. The credibility of the Exercise of the Royal Prerogative of Mercy by the Crown's own agents is in tatters and should be taken to the Court for Judicial Review.

Scott Watson should be paroled in the meantime. It is an absurdity that his lack of admitting being responsible for the deaths of Ben and Olivia is held against him for parole. This is a form of witchcraft belonging to the dark ages - 'confess and be forgiven otherwise rot in hell.' There is not place for such sentiment in controversial cases. Watson is smart enough to know that his bucking of the system is working against him, stealing 1 year after another. He is trusted enough to be in minimum security to have worked in prison forests. He may be obsessed with the crisis that has been brought upon him,  how a system works against the innocent and guilty equally and most often against the innocent more so - but that too does not make him guilty. It makes him frustrated and no doubt unbelieving that a system cannot correct itself.

Watson built his own yacht in quick time, spoke about building his own home. He is no doubt a practical and methodical person, those building skills and method now need to focus on an absolute truth that Ben and Olivia cannot be put in his company beyond reasonable doubt on the morning of their disappearance, or on his yacht, take that to the High Court for review.

Saturday, October 10, 2015

Arthur Taylor wins as Paremoremo Maxi gets closer to being shut down.

Earlier in the week we saw the Minister of Corrections Sam Lotui'iga set about striking into the foundation works of a new maximum security prison to be built at Paremoremo in close distance, just over a small prison road in fact, from where the 'old' Maxi Security Block stands with all it's secrets, its violence, the spaces where men's bleak futures were sometimes uplifted into a better life, or where others died by their own hands or that of others. Some days later we got the chance to read a  judgement delivered by the Appeal Court into an appeal by Arthur William Taylor who won case of the analysis of the New Zealand Constitution, Bill of Rights. He's had more than a few victories in his various differences with the NZ Justice system where he has been imprisoned for much of life.

I recall recently reading a disclosure in the Courts or media where he had spoken or written about issues of rehabilitation - it seemed to be particular to be in respect of youth who got fed into the Justice system and were criminalised by it, or had their fledging or experimental criminality, hardened. In this week where the grounds for a new maximum security block is to be built the long term prisoner Taylor is successful in our 2nd highest Court in winning an appeal as to his, in fact our, rights under the New Zealand Constitution. His opponent once again the Justice System that failed to conscript the young Taylor into a law abiding citizen. Most people agree that the early years of any person's life are the most important, in that respect the Justice System failed Arthur Taylor and around 80% of those that come into their 'care' as children, teenagers or young adults.

Maybe the old Maxi Unit will be opened up for the public to view in future times. Those who will have read the latest judgement favouring Arthur Taylor who remember the detail that according to the Justice Department refusing to let Arthur be interviewed on TV one reason was that Arthur ought not be interviewed was because he jammed a lock in his cell,  also set a fire there - in the end of the road  formerly called D Block, now whitewashed with a new name 'East Block' will get a surprise to find there are no locks on D Block cells. Surely not, one might think. How could the gaolers not know there were no locks on the cells. It would certainly be a mishap, dangerous maximum security prisoners in cells which someone had forgotten to include a lock? Basic English please.

Out where Sam had been filmed digging new foundations there had a sound over in which he said would be included in the new institution better rehabilitation than old prison which he described as run down. He spoke about safety of staff, inmates - the design for better  rehabilitative outcomes for those that will be housed there. It really was a fresh start dug into the clay according to Sam. Clay of course is a barren underlay where fresh roots can't crop. The Minister would not have known that later in the same week that he overturned those first sods of soil from where a new prison would emerge another man who had spent a great part of his life in the old maximum security unit would win another case against Sam's department, the same one for which the Minister furnished hope for better outcomes as he dug at the foundations. A further analysis of those foundations and the case Taylor just won would show that what Arthur dug into was the self protecting construction of the Justice Department. Arguing that Taylor was too dangerous to be interviewed because he allegedly 'jammed' a lock exemplifies how old antiquated the Justice System in NZ has become.

From the beginning of having prisoners mine rock to in fact build prisons where they were fed meagre food, lashed and treated largely according to the whim of the prison master whether he be a good man or one described as tough. Prisons where the opportunity to go to Court over a grievance was limited to periodic visits by a Magistrate called a visiting Justice whose main task was to deal with serious 'insubordination' resulting in punishments of isolation and restricted diets designed to break the spirit of incalcitrant prisoners, escapers, the violent and often those of disturbed mind who could be ordered into the care of psychiatric institution - to a time now where only a small percentage of prisoners have the knowledge of opportunity to seek Justice in the Courts was marked this week.

What was also marked for the keen observer was the nonsense that the Justice Department can bring to situations. Taylor had sought a Judicial Review of the JD (Justice Department's) decision to not allow Television NZ to interview Taylor about another case Taylor won regarding the rights of prisoners to smoke tobacco. The High Court rejected the Judicial Review which Taylor in turn took to the Court of Appeal. There the Court first of all referred to the description of Heath in the High Court as to the essence of Taylor's case as;

As Heath J succinctly put it, the issues arising involve the balance to be struck between the need to maintain order in a prison and the human rights of its inmates.

This is the old acorn of prison administration 'maintaining order' which is invariably wheeled out as a buttress against anything other that routines which suit the prison, and the administrational mind set as order at all costs. Basically most people would agree that an interview is hardly likely to strike at good order in a prison, especially in a maxi unit where all inmates are locked down anyway. Additionally, there was the opportunity for the JD to take action to prevent TVNZ from presenting to the public any segment of the interview by Court Order. A compromise could quickly have been reached leaving those of the public who watched the interview able to make up their own minds as to it's value and consider the counter views of both the JD and Taylor himself.

The concept that 'order' would be disrupted by an interview held in a maximum security unit is fragile and should have failed in the first instance. Of course more thoughtful people might consider that the concern about 'order' was simply a red herring and the uncomfortableness of the JD was that they had lost the case Taylor had taken to Court over smoking. When considerations such as that can be seen to linger in the background the JD ought to be more circumspect about 'order' as an old favourite and consider the depth and breadth of 'human rights' under the NZ Constitution of  Human Rights. In doing so it could be submitted that they are benefitting society by ensuring all citizens are equal before the Law. The message in that is also to the inmates who feel aggrieved or lost in a system where they might have spent most of their lives without a voice or direction. This in itself is in the public interest, the move forward of an archaic Justice System with it's high failure rate.

More fool me perhaps, but I genuinely believe in the efforts by Minister Sam, that hatched within the current Government and it's predecessors. Most importantly by the current Minister of Finance looking at the financial generational costs of not capturing those youngsters (as Taylor once was) tangled in the Justice System. Time to remember all the recent reports into the abuse against children in the care of the Government, the mixing of those in care from abuse or neglect with those in care for crime - each treated no differently, one group victims, the second beginning to victimise others - be tough and bad or die.

Obviously I don't believe in obstinacy against good reason, or against demonstrations of logic and fairness to those in particular who may not have ever experienced the same. In Taylor's recent victory we all share in the thought of what is right should prevail and that which is wrong cannot be disguised as 'order' or as broken locks where there are no locks.

Even the locks feature in the COA Judgement where it is described that a SMS message was received to prison, thought to having come from within the prison, where, how exciting and fortunate for the JD - it was revealed that during the consultation process with TVNZ over the interview news broke that Taylor had flooded his D Block cell, set a fire and jammed the locks. Even if that were true the person in danger was Taylor himself which seems quite contrary to the view of considering the safety of others, rather than Taylor, in deciding whether he could be interviewed. By the time the review of the decision had been heard and the appeal held it was acknowledged that the SMS message was incorrect, only a hopefully bewildered person would consider that it was not a member of the JD who had sent the message from within the prison, and who of course had been unable to consider Taylor allegedly harming himself in a protest was not threat to any other person.

The report that accompanied the 2nd decision not to allow the interview basically were wisps of smoke, maybes that included character analysis and the purported motivation of Taylor himself - all of which was quickly set aside by the COA as irrelevant, or in my terms irrational speculation without logical reasoning. Para 44 of the Judgement on extra material sought to be submitted post the original decision and declined was of particular interest in that it referred to prison 'hard liner' Garth McVicar being refused permission to visit Taylor - in itself a surprise, that the 2 men from very different sides of the fence were not allowed to meet.

In finding the appeal in Taylor's favour the Court gave significant weight to the false allegations made about Taylor and the lock. Minister Sam is a Lawyer and well as Minister of the Crown and many days ago released the care of the digger (excavator) back to its operator. It might now be time for the Minister to seek information from someone duly qualified to 'dig into' where the false allegation arose from, you know the one - the one that miraculously supported the JD decision to turn down the interview.

In the meantime Garth McVicar who recently lost a Judicial Review for want of status regarding a Parole Board decision might be even more interested to meet Arthur Taylor, if not for that fact alone.  However, if solely for the symbolism, a Minister digging the foundations for a new prison in the shadow of the old prison where one man somehow, without training, and by self education became a person able to win cases of merit concerning the Bill of Rights. Achieving this milestone from behind razor wire nearby where the Minister worked in a photo opportunity for the press and claims of improve rehabilitation, is worth noting. It is mysteries such as these (the false report) that favour the Crown or Police in some prosecutions which are seldom dug into after the fact of their falsity is revealed which leave those adversely effected by them to learn the inequality of the administration of the Law strikes at freedom and all rights which follow - that is a lesson that students of the Law (as the Minister once was) might learn from this case.

The full judgement is here:

CA816/2013 [2015] NZCA 477


Sunday, September 20, 2015

Cameron Slater: taking water on board much?

I received the following link and comments from a correspondent last Friday night so decided to read the Judgement included in the link.


The ruling against whaleoil for defamation. It holds him responsible for comments posted on his blog, and also says that removal of those comments rectifies the problem. AND it hold him responsible for things his wife said – he told his wife about a confidential judicial hearing, and she posted the details on whaleoil. The judge says that even though not an employee, she was an ‘agent’ of his.
It was worth the read but I should first say that Cameron is an amusing guy. Somewhere along the line I read that he had been a 'debt collector', collecting debts of gangs. Well, that's funny enough. But I thought it was a little on the nose when a friend said 'What gang? The boy scouts.' I guess old Pam/Cam is a little short off the mark, and everywhere else for that matter apart from his rather gigantic girth. Although everyone is their own size whether they wear high heels or not, Pam didn't assist by being a cry baby on TV some years ago when he wanted people to feel sorry for him because really he was  a good Cam. Anyway some such things passed through my mind when taking the opportunity to read where dear Cam was these days, having finally climbed off the canvas after his recent 30 second boxing bout in which he demonstrated how to fly backwards, forwards, hover, then crash. Way to go Cam/Pam.
Off course I knew that Cam had told the World that he was financially backed in his stoush with Colin Craig the Conservative Party Leader who is a full 6 inches taller than Cam/Pam so I was surprised to read Justice Raynor, when handing down a sentence to bad Cam, that he possibly  considered that bad Cam was not only of modest height, but also modest means so he'd lay off the fine. Fair enough, just because Cam doesn't know if he's rich one minute or poor the next isn't a crime. Either apparently is bad Cam breaking a Court Order and confidential conference by telling his wife the details after which she just happened to publish them on bad Cam's blog near enough to straight away. Because Raynor appears to have considered that Cam/Pam told his wife of the confidential details but 'never thought' not to tell her to publish them on his blog when he flew off to Germany.
These things happen, people are rich one minute and poor the next - the cost of holidays to Germany set aside. I'm sure also that people have confidential conversations then publish them on public blogs as information that just happens to be in breach of a Court Order when one party flies off to Germany. Interesting in the Judgement which relates to a slow winding defamation suit against Cam there is mention in the Judge's findings as to defamatory statements. Considering that it appears that even before the Trial it is recorded in the Court file that statements published by Cam about the applicant are indeed defamatory from the point of view of at least one Judge. That doesn't look good, nor do 7 convictions just entered against Cam for Contempt of Court over the same matter.

For all the apparent support Cam claims at times it was surprise that he was self represented which might be the result of his modest means as Justice Raynor described. A lot of Court time is being wasted along with the probability of any costs or order for payments not being able to be met. I'm sure if Cam took some structured legal advice he would make the effort to settle this dispute without further delay and get on with life. The same goes for other proceedings issued against him that look to have him entangled up to chin level to the point he may soon be unable to breath.

As the undisputed most read blogger in NZ, and taking into account changes in internet Law and other common law developments under the Harassment Act it would be great if Cam used his popularity and came out the other side of the tunnel he's found himself buried in, publically apologise, construction settlements solutions and no longer be a sad Cam.

Saturday, September 19, 2015

Bain compensation: what the calculator says.

With the  Bain application for compensation due for a result before xmas along with a sudden quietness in place since an agreement that settled David Bain's Judicial Review of the former Minister of Justice's decision to not honour an independent review of David's guilt or innocence it could be time to consider how much compensation, if any, he could be awarded. The following, using an inflation calculator, takes as it base line the compensation paid to Arthur Thomas in 1979 after he was pardoned for a double homicide which has never been solved.

Arthur Allen Thomas got $950,000

Set the cost to $950,000, the date of cost to Q4 1979, leave the date for comparison as it is…

Then try putting in $300,000 – which was his inheritance – and seeing what that works out to. 

 I got the following under the general index on the comparison of the amount awarded to Thomas at $4.7 million and $1.6 million for the inheritance he lost under the housing index.

As expected none of the 'hangbainers' were able to respond to my earlier blog 'If the sock print fits,' wherein a picture shows the difference between the shape of David's foot to that of his late father as lifted from the murder scene - it wasn't just size but also shape. Similarly the forensic evidence included in David's application cannot be overcome either individually or collectively - science leads where Justice has stumbled.

Rightly or wrongly, I've been confident about David Bain gaining compensation since he was acquitted at his retrial all those years ago. Perhaps above I don't have my calculations quite right, nevertheless - I'm sure I have one thing correct, that is the credibility of the NZ Justice system is at stake and it will put this actual Miscarriage of Justice right. I sometimes think of the white gloves the killer of the Bain family was said to have worn to see the symbolism of a broken man believing he was putting things right before surrendering his beliefs to his god with a dark shadow and blood over himself that the gloves didn't hide.

Friday, September 18, 2015

Overcoming wrongful imprisonment using the Law as it is.

One of the debates that surround cases such as that of David Bain, Teina Pora, Scott Watson is that we need an independent review procedure similar to that which reviews convictions in Britain. I agree with that, however it is like moving a mountain. I think the way to more easily move the mountain is Judicial Review and more significant funding by way of Legal Aid for cases, at least at the outset, of high public concern that a conviction might be unsound.

Scott Watson fits into that category, his recent application for an Exercise of the Prerogative of Mercy is a diabolical black mark against Executive power forming a remedy for the wrongfully convicted. In the first instance the Watson application took an extended period of time, so much so that in the normal course of events if he were a defendant in a Trial the charges could have been dismissed for want of timely prosecution. Then reading the report into the Watson application, including the manner in which it was looked into, arguably shows that it was not viewed in any merciful way whatsoever. Moreover, common practices of Law, such as individual evidence looked at singularly but also collectively was ignored as has been pointed out in other posts and comments regarding Scott Watson on this blog.

So what does Watson, or others in his situation do? I think there is a clear answer. Take rogue decisions or long delays in recommendations to the Court by way of Judicial Review. I think the old saying of Justice delayed is Justice denied needs to be read with the Bill of Rights. It is a fundamental right that a person know the case against them, that charges or any trial be brought in a timely fashion. When a trial is apparently splintered as in the case of Watson time is of the essence to have it adjudicated by the Courts. The Courts are the home of Justice, not a Government Executive administering 'Mercy' by way of long delays, along with what looks like deliberate lacking of careful Judicial oversight.

I've use this quote by Lord Diplock of the Privy Council before: 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.”

Equally interesting are the comments by M Travis below:
1.      Some material from M. Travis, May 1998 on the RPOM in NZ.

The whole thing is worth reading, however in the excerpt below is what seems to the answer in Pora – no limits apparent on ‘the discretion’ to exercise. And in the final sentence, what now appears to be a ‘prophetic’ observation regarding a current Judicial Review as, hopefully the Courts and The Executive will ensure that ‘Executive Powers’ are consistent with Statute, due process and Natural Justice – all things which must have been included in the original concepts of the Royal Prerogative. Great observation by Lord Diplock included.

‘The prerogative of mercy seems limited only by the discretion of those who have the power to exercise it – the Sovereign, and the Governor-General by way of delegation in the Letters Patent 1983. Fortunately a precedence has been set by the practice of successive Home Secretaries that, in the words of Ivan Hare , “a free pardon should only be granted in cases where it was established that the convicted individual was both technically and morally innocent.” Although only a precedent and in no way binding, this is most compelling and surely to be followed by successive Governor-Generals.

The only major mechanism that has been suggested for controlling the use of this prerogative is the possible threat of judicial review. So far there has not been a successful appeal for review, but there are many arguments on either side of the issue.

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.

Nonetheless, a judicial review of the prerogative has never been undertaken in a New Zealand court. The closest thing so far was the ‘review via invitation’ in R v Secretary of State for the Home Department, ex parte Benley [1993] 2 W.L.R. 101; where the Divisional Court did not order a formal review but “[invited] the Home Secretary to look at the matter again.” Ivan Hare saw this invitation as attempting to “impose narrower parameters on the discretion of the Home Secretary” via the informal mechanism of invitation, but he seems dubious as to its ability in having any real effect. This is because it is beyond the role of the courts to suggest a particular result, and because any purported limitation on the role of the Home Secretary is illegitimate.

The issue is also a live one in Burt v Governor-General [1989] 3 NZLR 64, (1987-89) 7 NZAR and [1992] 3 NZLR 672, and some very important contributions to the argument are made. In these cases, Mr Burt sought a judicial review of the Governor-General’s refusal to exercise the prerogative of mercy in granting him a free pardon. Although unsuccessful, Cooke P said that:

“It would be inconsistent with the contemporary approach to say that, merely because [the prerogative of mercy] is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge.”

He states that the Courts’ wish to review the refusal to exercise the prerogative is not “absurd, extreme or contrary to principle” as it is at the very least attempting to ensure that fair procedure has been followed. Moreso he adds that the prerogative of mercy is not “an arbitary monarchical right” but “an integral element in the criminal justice system…a constitutional safeguard against mistakes.”

In conclusion, the prerogative is not to be touched by the Courts or judicial review, yet the concept is one that is winning favour amongst the Judges. It is possible that in a few years there will be mechanisms like judicial review to control the use of the prerogative, but it is very unlikely that it should ever become part of a statute.’

Of course David Bain was the first from memory to succeed with a Judicial Review, at least to the point, of the Minister of Justice agreeing with Bain's counsel to accept a new application from Bain for compensation for wrongful imprisonment. This was after a former Minister of Justice, Judith Collins, displayed a less than merciful grasp of even due process as she set out to apparently take a position opposing an independent finding favouring David Bain's innocence, and his 'right' to compensation. M Travis was quite prophetic in 1998 in his suggestion that in a few years from that time that there will likely be judicial review to control the use of the prerogative. Well, it happened in Bain, possibly years later in my opinion than it should have, but happened nevertheless. There seems to be no known reason that Watson should not take this course, Peter Ellis or Alan Hall, apart from lack of funding. But even that may be contestable on review. For example if a case is made out that is strong enough to support review for Watson or others but funding is denied that decision to deny funding should/is be reviewable.

These approaches can be taken now, with public participation by way of open Court rather than closed Executive Council meetings.

Wednesday, September 16, 2015

Jay Kuten: In the Whaganui Chronicle on compensatiof for wrongful conviction

Wanganui Chronicle - Jay Kuten: Consider compensation for wrongful convictions

By Jay Kuten

9:58 AM Wednesday Sep 9, 2015 

LAST week, a North Carolina State Commission awarded $750,000 each as compensation to two half-brothers, Henry Lee McCollum, 51, and Leon Brown, 47, who spent three decades in prison - much of it on death row.

Both men are developmentally disabled, their IQs in the low 50s. The pair - aged 19 and 15 at the time - were convicted solely on the basis of coerced confessions they later recanted, according to the judge who freed them after DNA testing, long-resisted by authorities, proved them not guilty. After hiring a lawyer who argued that "government and law enforcement officials of Robeson County, NC, had obtained their convictions through 'fraud, perjury, coercion, the wilful failure or refusal to investigate exculpatory evidence'", the two men were awarded $750,000 each.

You may think that a generous amount, but it is less than $15,000 per year in prison. After contingent attorney's fees, each will have $500,000. Considering their lack of job skills - never mind the added burden of prison on mental deficiency - they will be lucky to retain the full amount and have roughly $25,000 a year for the expected lifespan of African-Americans like them.

Does any of that sound remotely familiar? A pattern of over-aggressive and ethically challengeable prosecutorial and/or police misconduct led to a wrongful conviction in which a person lost decades of his life and experienced the severe trauma of imprisonment for an act he did not commit.

Here in New Zealand you can fill in the names of Teina Pora, or David Bain or Peter Ellis - and, I submit, Scott Watson.

These cases raise many questions. How is it that prosecutorial misconduct is rarely if ever called to account in any legally significant manner? And, for the wrongfully convicted, how can we fairly compensate someone whose life has been so severely damaged?

How much is time in prison worth, considering not only the issue of endurance (the day-to-day limitation and degradation of prison life) but the fact of injustice?

In the David Bain case, we have seen the effort by former Minister Judith Collins to safeguard our common treasury by enacting a standard for compensation that is beyond possibility. Collins demanded that Bain prove he is innocent. While that sounds plausible, it is actually impossible. When you enter a courtroom as a defendant you are granted a presumption of innocence. It is a presumption often honoured in the breach. If the evidence against you does not warrant conviction, you are declared not guilty. That is it.

You are never declared innocent and that is in concert with the legal reality and the social one in which your neighbours are unlikely to hold you in the same esteem as before your trial.

Collins, however, insisted that Bain establish for her benefit a new reality - something that was once a presumption but which can never be demonstrated as fact.

Prison time is not subject to quantification. The rare human being - Nelson Mandela - retains his dignity and even grows in stature. Most people are reduced, if only because of the cognitive assault on their functioning.

For our human brains to function optimally, they need, in adult life, the continuing practice of making informed decisions and the challenge of coping with expectable social relationships. That disappears in the authoritarian hierarchy that is prison.

Then there's the Rip van Winkle effect - disorganisation coming out of prison to a new and frightening world. It is in our name that people have been wrongfully convicted and deprived of their fundamental freedom, their presumption of innocence.

One fair standard for compensation would consider that the worth of a year's incarceration be equivalent to the compensation of our own highest representatives in government. In other words, the amount the not guilty might have earned had they been Members of Parliament during the same time period. While our parliamentarians cannot claim innocence except as presumption, the stress of their work is hardly comparable to that of being an inmate, especially one wrongfully convicted.

Jay Kuten is an American-trained forensic psychiatrist who emigrated to New Zealand for the fly fishing. He spent 40 years comforting the afflicted and intends to spend the rest afflicting the comfortable.

Sunday, September 6, 2015

Garth McVicar attempts another takeover.

In what may be a NZ first Garth McVicar of the Sensible Sentencing Trust this week took the National Parole Board to Court. This was an attempt to overturn a decision by the Parole Board to release a convicted fraudster Rob Petricevic on Parole on Monday the 7th of September. I read about the Court action Friday afternoon and learnt that the application was for a Judicial Review of the Parole Boards (PB's) decision. That late in the day I wondered how Garth McVicar could convince the Court that he could be a party of standing in the Board's decision, or if the Act, allowed situations where a party could essentially invite themselves into an action that for all intents and purposes wasn't their direct business or something which directly affected them. I certainly couldn't recall any such legislation but it seemed unlikely that McV would take such steps if he didn't have status. A quick read showed that the Act in fact did not allow such applications but that in practice the Courts would likely 'hear' the arguments before ruling on them.

What I hadn't realised was that by the time I'd read about the application was that it had already taken place. In fact shortly after the online decision was released a little after 5 in the evening - indicating that the presiding Judge most likely saw the application as pressing. The Judgement is available on line and is most notable by what was said regarding  McV's application. The application appears to have been made on the basis that 2 or 3 (apparently unnamed) victims of the frauds of Petrievic may have been members of the Trust. Nothing definite on that, a surprise because a victim coming forward would have status at the very least above a political lobby group.

As it happens a wag on line said that the action was doomed to failure and was actually an effort by McV to take on the Parole Board. That might have been unkind but McVicar in recent years has attempted to take control of Judges by threatening to start a register against those of whose decisions he did not approve. There was even talk of 'outing' Judges and protesting at their homes in what was a fairly frightening turn in a modern society and which must have been near to resulting in charges being brought against McV and the SST. McV had actually threatened the Judiciary, telling them to give decisions of which he approved or watch out. All in all the fact that he was taking the case for Judicial Review in a legal way could have been either that he was chastised to the view that the Law was paramount or that he had convinced himself, or been convinced that he must take on the Courts head on - and that a Judicial Review of a Parole Board decision was a way to do that.

In other words McV was worried less about Petricevic than the opportunity to  take on the Courts and flex his muscles and political power? If it was that later then choosing an attempt at a remedy that was bound to fail made little sense, nevertheless it did look like round 2 of McV versus the Law. Increasingly what his argument would be was fascinating. From sound bites it soon became clear that McVicar's 'lead' counsel against the convicted fraudster was another convicted fraudster and practicing Lawyer David Garrett who at the very least was straight to the point. He argued that the Parole Board's duty and directives were to let those eligible for parole go at the first opportunity a view overlooking many Legislative requirements. This despite that the NZ Parole system is tighter than it has even been historically, and that Petricevic had been denied parole at least once earlier and only gained parole when he had been frank and honest about his offending (having earlier downplayed it, or suggested that it was the fault of others.)

So how did this go? Well apart from not having one victim in sight to support their case, Garratt argued that fraudsters were as bad or worse than those that robbed dairies. I've no idea the relevance of that, or how a Judge could decide a case on the basis of who were the worst criminals in a clearly defined application to have Petricevic kept in prison on the basis that he 'might' have been worse that a dairy robber. The submissions included the harm fraudsters did to the elderly in particular, while these were comments with merit they were beyond the scope of a Judicial Review. Petricevic had already been sentenced for his crime, served several years and the argument was as to whether or not he should be released, and whether or not McVicar had any legitimate role in that. It appears that Garratt on McVicar's behalf paid no consideration to the telling fact that the PB had earlier rejected Parole for Petricevic on the basis that he had no insight into his offending, was self important and so on - in short did their job.

The fact that Petricevic had been able to pay for an independent psychological report from which experience Petricevic claimed to have a better understanding of himself and the harm to the victims was seen as his having 'brought' a favourable view. There is no proof of that, it is unfortunate that a professional person having formed an opinion, after which the subject of the opinion, made frank disclosures which help him gain parole - was subject to such assertions.

But back to the real reason for the Judicial Review, McVicar's chance to take on the Justice system, Judges in particular along with the Parole Board. Did he not consider that first of all he would have needed status, and that secondly a general discussion as to who the worse criminals might be wasn't relevant in an application about 1 individual's parole? Nothing to show that he did. If he missed the bus on that he also missed the bus on another argument, possibly less irrelevant. At the outset in public statements McV said the well educated (as Petricevic is apparently) were also worse because they came from privileged backgrounds but still chose to offend, whereas, it was implied, those worse off may have had less choice or power or reason in any decision to offend. Good point, and another good point (but also typically irrelevant as well to the Judge had it been made) was that those inmates who couldn't afford a private report as Petricevic was able, who had no home to go to and so on were disadvantaged compared to Petricevic. Though I guess the application was not about the fairness of Parole Board applications or distinction between the rich or poor but about Garth laying down the Law as he saw it from Garthsville, Arizona.

My last tongue in cheek comment aside, McVicar, most probably inadvertently - by his failed action did advance case Law on an important aspect of Judicial Review and the Bill of Rights. Most likely, he may not realise it, but the importance of opportunity and fairness before the Law were canvassed in the Judicial Review, at least for those that can see that.