General Debate 7 August 2010

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barry

some very interesting stuff on Asian Invasion re the supreme court and various emails between a James Farmer [jamesfarmer@queenscounsel.co.nz] and a ted Thomas [ewthomas@xtra.co.nz].

they seem to be communicating at about the same level as a couple of horny dogs………………
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August 7, 2010 9:52am
Shunda barunda

Barry you are supposed to say something silly as first poster on GD, Something like Wassup bee-arches, somthin like that.
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August 7, 2010 10:08am
tom hunter

Here’s something for a rainy Saturday. It’s by a guy named Michael Totten, who has been doing so-called “war-blog reporting” from places like Afghanistan and Iraq for several years.

I think that his reporting and analysis is far superior to most of the so-called foreign correspondent reporting dross I see in everyday newspapers. He does not pull punches about US foreign policy and their military but at the same time does not indulge in the usual soft-left analysis of groups like the Taliban, the Iranian theocracy, and the Palestinians.

The link is to one of the most interesting articles I’ve ever read about Israel and Israelis, and it also puts into context a lot of the reporting that emerges from that place. You’ll want to think about this the next time you read the usual MSM articles.

the greatest collection of nightmares on earth

You also might consider hitting his tip jar.
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August 7, 2010 10:17am
F E Smith

Without wanting to re-open the Bain issue (and I really don’t), I would like to see if there is any reaction to this point:

Many, on this blog and in the media, have decried the Bain defence team for blaming Robin Bain for the killing of his family, asking how can the justice system allow David Bain to blame somebody who isn’t there to defend himself. It is reasoning that is very silly, from my point of view, for a number of reasons, but for some reason many people seem to think it makes sense.

Of course, I am a criminal defence lawyer, so I may be considered biased by those who hold the above opinion.

But can you please tell me whether your objections to the idea of an accused person blaming one of the ‘victims’ remain in the following story? You see, it is a situation somewhat reminiscent of Bain, although the facts surrounding the killing and how it was done are of course at variance with the Bain scenario/s. But, it is a situation that involves the death of a number of family members by gunshot, with the only survivor (who says he wasn’t present) being accused of their murders. At trial, and ever since, the person, now a convicted murderer, has blamed another family member for the killing, notwithstanding the fact that that person is one of the ‘victims’ and is therefore unable to defend herself. As I take some of the arguments that have been heard here on this blog and also from Michael Bain, Robin’s brother, that line of defence should not be allowed in the trial. But what if the accused is telling the truth and, 25 years later, something comes up that may corroborate him? Does that change your views on accusing the dead? Or should it still be unable to be used as a defence, even if it is true?

I base that on the two articles set out below from the ‘This is London’ website, which is quoting the Daily Mail. Note I don’t say that it is true, just that it may be true. The convicted man is apparently serving a ‘whole of life’ sentence, which means he will never be released, and has spent the last 25 years in prison. Notwithstanding the fact that the English justice system appears to be making a minor habit out of discovering new evidence that is actually old evidence that exonerates convicted criminals, this man has been called some pretty strong epithets by the judiciary and the police.

Is a deceased’s person reputation to be sacrosanct at all costs? Or are there exceptions that David Bain does not fall into?

“Jeremy Bamber spoke today of his confidence that his conviction for the murders of five relatives would be overturned thanks to new evidence against his sister. Bamber, serving a whole life term for the 1985 killings, claims schizophrenic Sheila Caffell shot her family before turning the gun on herself.

In extracts from a letter published in the Daily Mirror, Bamber, 49, says: “We now have evidence to directly link Sheila in a struggle with my dad in the kitchen, a clear forensic link that is compelling to say the least. Sheila’s psychiatry files were not released to us so building a case against Sheila has not been easy but we have pretty much done so.”

Bamber has served nearly 25 years for the killings of his wealthy adoptive parents June and Nevill, Sheila — nicknamed Bambi — and her six-year-old twin sons Daniel and Nicholas at their Essex farmhouse. Bamber claims to have unearthed a phone log that suggests Nevill called police on the night of the massacre, saying his daughter had “gone berserk” and “got hold of one of my guns”.

His case is being reviewed by the Criminal Cases Review Commission which will decide if the new evidence is strong enough to refer it to the Court of Appeal.”

and

“Mass killer Jeremy Bamber is claiming to have found dramatic new evidence which could overturn his conviction for shooting dead five relatives. Lawyers are examining two “lost” police phone logs which appear to support Bamber’s claims that his sister Sheila Caffell, a model known as Bambi, carried out the shootings before turning the gun on herself.

Bamber, who has always protested his innocence, has served nearly 25 years for the 1985 massacre of his family in Essex.

His wealthy adoptive parents Nevill and June, Ms Caffell and her six-year-old twin sons Daniel and Nicholas were found shot dead in White House Farm in the Essex village of Tolleshunt D’Arcy. The murder weapon, a .22 Anschutz semi-automatic rifle, was found in schizophrenic Ms Caffell’s hands.

At first police believed Bamber’s version of events that Ms Caffell had slaughtered her family before shooting herself in the neck. But later a blood-stained silencer was found in a cupboard in the farmhouse which appeared to have been used on the murder weapon.

If the silencer had been fitted the gun would have been too long for Bamber’s sister to shoot herself and it was unlikely she had removed it after killing the rest of her family. The new phone logs suggest that Bamber’s magistrate father Nevill called police on the night of the massacre, saying his daughter had “gone berserk” and “got hold of one of my guns”.

According to the Daily Mirror the log, which is published in the paper, is timed at 0326 on the day of the massacre. Titled “Daughter gone berserk”, it says: “Mr Bamber … White House Farm … daughter Sheila Bamber aged 26 years has got hold of one of my guns.” The memo is similar to another police phone log timed 10 minutes later which details a call that Bamber himself made to police from his home in Goldhanger, three and a half miles from White House Farm. In that he tells of a call from his father saying that Sheila had gone crazy with a gun.

The documents are now being considered by the Criminal Cases Review Commission which is considering whether to refer the case to the Court of Appeal.

The prosecution at his trial said he had carried out the murders out of greed, hoping to inherit a £500,000 fortune.

Bamber, now 50, was given a whole life tariff after being branded “evil almost beyond belief” on his conviction of the murders in October 1986.

A message on his website last month said the Criminal Cases Review Commission was “reviewing a wealth of new evidence which must surely see Jeremy’s case being referred back to the Court of Appeal”.

Last year he lost a Court of Appeal challenge against the order that he must die behind bars. He has twice lost appeals against conviction.

Essex Police were unable to comment on the fresh evidence claim.”
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August 7, 2010 10:23am
F E Smith

Barry, I think the emails on Cactus Kate’s blog may be a parody of the real emails found on the NBR website.

Just possibly…
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August 7, 2010 10:25am
Falafulu Fisi

Some interesting researches in the field of optics (from physics).

#1) Disappear into thin air? Scientists take step toward invisibility

#2) Invisibility cloak a step closer as scientists bend light ‘the wrong way’

Here is the abstract summary of the research done by the Berkeley team who first created it. For those here who subscribed to Nature, the link to the article is shown at the end (see below).

Abstract:
Metamaterials are artificially engineered structures that have properties, such as a negative refractive index, not attainable with naturally occurring materials. Negative-index metamaterials (NIMs) were first demonstrated for microwave frequencies, but it has been challenging to design NIMs for optical frequencies and they have so far been limited to optically thin samples because of significant fabrication challenges and strong energy dissipation in metals. Such thin structures are analogous to a monolayer of atoms, making it difficult to assign bulk properties such as the index of refraction. Negative refraction of surface plasmons was recently demonstrated but was confined to a two-dimensional waveguide. Three-dimensional (3D) optical metamaterials have come into focus recently, including the realization of negative refraction by using layered semiconductor metamaterials and a 3D magnetic metamaterial in the infrared frequencies; however, neither of these had a negative index of refraction. Here we report a 3D optical metamaterial having negative refractive index with a very high figure of merit of 3.5 (that is, low loss). This metamaterial is made of cascaded ‘fishnet’ structures, with a negative index existing over a broad spectral range. Moreover, it can readily be probed from free space, making it functional for optical devices. We construct a prism made of this optical NIM to demonstrate negative refractive index at optical frequencies, resulting unambiguously from the negative phase evolution of the wave propagating inside the metamaterial. Bulk optical metamaterials open up prospects for studies of 3D optical effects and applications associated with NIMs and zero-index materials such as reversed Doppler effect, superlenses, optical tunnelling devices, compact resonators and highly directional sources.

From Nature : Three-dimensional optical metamaterial with a negative refractive index
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August 7, 2010 10:34am
tom hunter

Great articles Falafula. Perhaps we’re not so far from the Panther Moderns in Neuromancer
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August 7, 2010 11:01am
Chuck Bird

FE Smith while I think on the balance of probabilities that David did it and should not get compensation I think it ridiculous that the defence could not blame Robin. The only thing I am uncomfortable with is the suppression of David’s fantasy alibi years earlier.
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August 7, 2010 11:14am
Jimbob

F E Smith: I think you will find the answer to your musings is that police hate being proved they got it wrong. Which sadly happens quite often.
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August 7, 2010 11:16am
Redbaiter

Something to cheer up all of the anti-Christian Communists who post on Kiwiblog. Your ideological buddies in North Korea are doing the best they can to help you.

————————————————–

“NORTH KOREA- About 23 Christians arrested, 3 executed

As the country’s economic crisis worsens, North Koreans turn to faith despite the regime’s vicious persecution. In reprisal, Kim Jong-il orders another crackdown.

Seoul (AsiaNews) – North Korea’s Stalinist regime has discovered some underground Christians in a house church in Pyongan Province. All 23 who met to celebrate a religious function were arrested. Three were tried and given the death penalty, which was swiftly executed, sources told AsiaNews. Confirmation about the incident also came from the North Korea Intellectual Solidarity, a group of North Korean exiles.

After the Korean War in 1953, the Stalinist regime ruthlessly proceeded to kill the country’s estimated 200,000 Catholics, and destroy their churches and abbeys.”

http://www.asianews.it/news-en/About-23-Christians-arrested,-3-executed-19142.html
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August 7, 2010 11:20am
Manolo

The modern Marie Antoniette, aka Michelle Obama, lives the high life: http://www.dailymail.co.uk/news/worldnews/article-1300852/Spanish-police-close-public-beach-Michelle-Obamas-250k-Spanish-holiday.html
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August 7, 2010 11:28am
Robert Mapplethorpe

Red, so fucking what? All this shows it the the attack of In Group v Out Group is still a major human trait.

Why, just today a dropkick by the name of S. Alcock writes to The Press saying “Please do not pass judgement on me because of my religious beliefs.”, totally ignoraing the fact that religion is one of the many ways humans use to judge others as being either In or Out.
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August 7, 2010 11:32am
F E Smith

Chuck: so you would have acquitted him but would deny him compensation? Fair enough

Jimbob: I agree that the police hate losing, but my point is more on the popular notion that an accused should not blame somebody who is not present to defend themselves. We also saw this, to an extent, in the Weatherstone case.

Robert Mapplethorpe, you are sick. 3 people are executed simply for their religious belief, and your response is a crudity mixed with an obscenity. No state should be executing any person because of their religion, whether or not any religion is true or not. Your response is disgusting.
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August 7, 2010 11:48am
Robert Mapplethorpe

Oh for fuck’s sake. Three people executed in North Korea and I’m supposed to go all weepy over it? How many are executed by our two of our biggest trading partners and no one gives a fuck? How many of those are executed for religious belief(s)? For being feeble of mind? Or just for being an inconvenience?

If a right wing troglodyte like Russell tries to make a political point from death why should you be surprised if others fire back at him?

For the record, I oppose the death penalty without exception, I am anti- christian as I am anti all religions and some may even see a little of the communist in my economic ideals, but I am no friend of North Korea, or in fact, ANY dictatorship, including the ones Russell loves to snuggle up to, such as in Afghanistan.
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August 7, 2010 11:57am
Chuck Bird

F E Smith, I did not say I would have acquitted him. I would have to have heard all the evidence. Whether I found a reasonable doubt may have depended on whether the evidence of his fantasy alibi was allowed.
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August 7, 2010 12:08pm
gravedodger

Condolences to all who mourn the man who died on Mt Hutt yesterday.

Alas another skier dead on Mt Hutt and the clarions start up again for another kneejerk response ie compulsory Helmets. Yes a helmet may have made a difference if it was good fitting, well secured and an appropriate strength. Also if the snow boarder was sufficiently skilled to meet the challenge that he exposed his all too fragile body to, had valued his life to a greater level, had observed warning signs etc. He died indulging in a dangerous activity, in an inherently dangerous place with what could be claimed to be inadequate protection.
A coroner will make another inane proposal to increase safety at his coronial hearing and the repeaters will duly follow with more drivel.
How many occupants of motor vehicles could have serious and/or fatal head injuries prevented if the victims wore helmets, along with tourists in busses, children in school buses, rugby players, golfers children on CYFS watch lists, mothers in violent relationships etc, sheesh.

Understanding the vulnerability of life and placing a suitable value on it leaves all of us to assess risk and act accordingly and in this unfortunate incident he mis-calculated and his family, friends, the ski area staff and many caring citizens are saddened by another death. After many many years skiing on Ruapehu, mainly Turoa with its too often marginal visability from cloud and whiteout, bluffs, outcrops, icy conditions etc, and being unaware of a single fatality from a skiing/ boarding related fatality I see this second fatality at Hutt this season as a blip statistically. The third death there was a road accident.

Sh*t happens and nearing seventy years on this planet over fifty challenging the conditions on mountain slopes and ski fields being the only place I can speed legally I sincerely ask, leave it to the individual whether a helmet is the entire answer when the reality is a storm that would have closed the field yesterday was statistically a more likely factor to have saved his life than another nanny state intervention.
ps I choose to assess the risk and ski without a helmet, my much smarter daughter wears a helmet and she would be a lot better equipped to minimise the risk of a serious crash on skis, however leave the choice to me please. I already own two worksite hard hats, a motorcycle helmet, a bycycle helmet, a welding helmet and an exaggerated sense of bullet proof attitude. I know none of those protections are appropriate for skiing and at my age another mandated piece of safety equipment is in my eyes not wanted.
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August 7, 2010 12:10pm
Robert Mapplethorpe

what does the US,and by extension, NZ, offer Afghanistan and its people?

According to Priyamvada Gopal nothing more than oprah and bikini waxes.

http://www.theage.com.au/opinion/politics/simplistic-moralism-sells-afghans-short-20100806-11ofx.html

A damned good read.
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August 7, 2010 1:49pm
side show bob

Falafulu Fisi, they should try this technology on our politicians, probably work very well, most are already transparent .
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August 7, 2010 1:54pm
Jibbering Gibbon

“…but my point is more on the popular notion that an accused should not blame somebody who is not present to defend themselves…”

Of course it doesn’t make sense. It’s where unexamined cultural behaviours and beliefs attempt to fight off more intelligent legalities. The animal of popular culture knows no reason or method, it is primarily instinctual and irrational. You’ll never be able to reason with it. Nothing in popular culture, no slogan, no trite saying is true or has any worth that is not soley in the sensation of emotion.
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August 7, 2010 2:03pm
tom hunter

what does the US,and by extension, NZ, offer Afghanistan and its people?
According to Priyamvada Gopal nothing more than oprah and bikini waxes.

The paradox is that even viewing Oprah would provide a superior education for Afghanistan girls compared to their traditional “education” – and a bikini wax is less painful than acid in the face or having ones nose cut off.

The other day I wrote about how many of the Western Left – despite their protestations to the contrary – actually end up siding with groups like the Islamists because they so loath their traditional enemy – Western, capitalist, consumerist society. This is a classic example.

“simplistic-moralism-sells-afghans-short

If the Taliban take control of Afghanistan again Mr Bopal will get to see what simplistic moralism really looks like.
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August 7, 2010 2:31pm
tom hunter

Oh yes – I forgot the sad yet hilarious footnote to the article.

GUARDIAN

Priyamvada Gopal teaches post-colonial studies at Cambridge University.

But of course – muuuhahahahahahaha.
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August 7, 2010 2:38pm
Johnboy

Shit Aunty is rolling Goofy from New York via remote control! Fuck. Isn’t technology wonderful! 🙂

http://www.stuff.co.nz/national/politics/4001939/Carter-to-answer-case
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August 7, 2010 3:30pm
starboard

Just read this over at Whaleoil…

The Herald reports (print only, Business Herald page 27) that traitor Key has ordered MFAT to begin preparations for a diplomatic campaign to back Helen Clark for UN Secretary General. The paper says the traitor Key is facing opposition from his cabinet colleagues but is determined to get Clark into the world’s top diplomatic job.

WTF ?? Unbelieveable.
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August 7, 2010 3:57pm
Yvette

Johnboy – “Shit Aunty is rolling Goofy from New York via remote control! Fuck. Isn’t technology wonderful! ”

but …
“Mr Goff said he will be talking to former Labour Prime Minister Helen Clark tomorrow at a party thrown by Jonathan Hunt to celebrate his mother’s 100th birthday.”
– http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10664327
… maybe not so remote!
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August 7, 2010 4:10pm
mawm

If the Taliban take control of Afghanistan again Mr Bopal will get to see what simplistic moralism really looks like.

Of course Mr Bopal will be nowhere to be found as women and children are stoned to death.

Just as the left were silent when Mugabe, their darling and saviour of post-colonial Africa, went into Matabeleland and slaughtered 30 000 Ndebele.
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August 7, 2010 4:24pm
reid

Robert, you might also find this interesting.

I wonder if you could quantify some of these long term benefits? ANZUS? I don’t think so. Free Trade? Only if you want to see a further erosion of NZ businesses. Presidential visits?

Robert this is yours from the Armstrong thread but I’ll respond here. My whole adult life I’ve been a defense hawk and that doesn’t mean I’m aggressive it means I believe there is inherent benefit in permanently adopting a watchful and muscular defense posture, no matter what the external situation happens to be at the current moment.

This is because history tells us (which BTW, in any arena, is only ever repeated when and if we forget it) that existential threats more often than not come out of the blue. I recognise threat assessment today lies exclusively in the asymmetric arena which for those not versed means it’s guerrilla tactics for which we need to prepare.

Notwithstanding, I believe there’s great value in having an extremely well-equipped balanced force with good armour, good naval, good infantry and good air force equipment with plenty of pointy things that we practice with all the time. A balanced force doesn’t mean a huge one – I’d be comfortable if all three arms were three times current personnel and that’s still pretty small but the proviso is that it has the very latest of good shit which is not necessarily American and not necessarily the most expensive but the proviso is it all, to a very large extent, has to contribute sharply to the pointy end and away from the peace-keeping transport logistics bullshit end that is currently almost all we are focused upon. To make up from our current position we need to spend 5% of GDP for the next twenty years. Then we could ramp back to 3%.

(BTW I know that’s not GOING to happen, but that’s what I think SHOULD happen so please don’t tell me what an unrealistic goal it is because that’s not my argument. I’m not trying to sell it to the public, they’d never get it because they’re mindless fools, apparently, and I can tell this by the way they vote, time after time.)

The reason is not to protect ourselves from existential threat, it’s to play our part in the world.

We depend more than most upon sea lanes and that and border protection is what the navy is for. It’s as much in our interest as it is in the nations where it happens, to help free the sea lanes of the vicious pirate scourge for example. Anyone with eyes can see the latter issue is about to hit our shores and in twenty years time will be a major problem.

In terms of the air force we should be looking into Spectre gunships for our SAS and UAVs. Sadly I think the end has come for the human fighter jock and while it was brilliant while it lasted, it would be only for sentimental reasons that we re-equip now with manned strike jets. But those weapons have myrid uses – well the Spectre doesn’t but it’s pretty fucking cool. I’d like to see that shooting up a mock version of Liabore Party Headquarters at a future Auckland Air Show.

The army needs more world-class AFVs of both troop-transport and missile/artillery capability. We don’t have a role for MBTs. One thing I’d use the Army for right here and now, is put every unemployed person between 18-24 through six-month compulsory service. That would expose enough of the good ones who are Army material to decide to stick around, and would be of tremendous benefit to the others. I would not let them be trained in unarmed combat or advanced weapons, but obstacle courses, fitness, self-discipline and rifle-range stuff would all be in the ball-park. They would on exercise, firing artillery, train them in comms, codes, cypers – the whole works. Everything except training them in anything which would make a young person who WASN’T the right sort, more dangerous when they got back to civvie street.

That would give them a good personnel seeding and I’d take it from there.

People for some reason see the military as a sink but using them for something like that would I believe have a net ROI quick-time. You imagine three-four thousand at a time going through a six-month rotation. How long would those people remain unemployed when they got back?
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August 7, 2010 4:28pm
reid

“WTF ?? Unbelieveable.”

The issue is, is it on balance good or bad for the nation, if Clark is S-G?

I think the equation is positive for us, but negative for the rest of the world.

However, I don’t care about the rest of the world quite as much as I care about us, so I say, hooray, go Hulun go.

Even though it makes me dry-retch.
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August 7, 2010 4:32pm
Manolo

starboard (1,218) Says:
August 7th, 2010 at 3:57 pm

I doesn’t surprise me in the slightest, so why are you shocked? There is not much difference between the openly socialist Clark and the closet-one and accomplished liar Neville Key. His actions betray National Party policies, though. But, hey, his spin doctors will convince the bovine membership.
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August 7, 2010 5:04pm
Johnboy

Bon Dieu Yvette. Nous proposez-vous devez-vous continuer à alimenter Johnathon pendant encore 38 années ?

Malédictions!!!!
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August 7, 2010 5:23pm
Yvette

Hélas, je pense que c’est l’erreur de Jonathan – il doit nous rappeler l’évidence cela qu’il a eu un père – pas simplement une mère
Alas, I think it is Jonathan’s mistake – he needs to remind us of evidence that he had a father – not just a mother!
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August 7, 2010 5:28pm
reid

So. Key – what is he doing right, what’s he doing wrong and why?

What is he doing right IMO?

Trade. Bloody well. Outstandingly. Go Tim, Murray and John. You are a bloody good team. Keep it up. Go go go. Faster.

Diplomacy: A+ (not as good as trade cause I… – crikey John I hope you’re not too smarmy behind closed doors, I imagine that may be an issue sometimes?)

What’s he doing wrong?

Farken hell. It’s a long long list.

Why?

McCully and Brownlie: Key’s principal caucus strategists + His naive young exclusively-Wellington-comprised press team, which newsflash John, is HYPER-FUCKING-MISSION-CRITICAL when you’re the PM.

Key’s saving grace is that while he remains the PM, we’re a lucky country. Fuck he’s lucky.

Seriously though, he IS a man of considerable substance. As I said awhile ago, I really do believe he needs to consider his legacy. If he turns his mind to that, I believe the right decisions will begin to flow.
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August 7, 2010 5:29pm
Johnboy

Le père et la mère de Johnathons sont tous deux très arrondissent et regardent tout comme un plat. 🙂
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August 7, 2010 5:34pm
Yvette

Johnboy, you earlier referred to a stuff. item about Carter – it, and the news on PRIME minutes ago, seem a little confusing, with officials repeatedly saying we are following due process, awaiting Carter’s response; but Goff will write to the Speaker on Monday severing ties with Carter who will then be Independent.
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August 7, 2010 5:38pm
Johnboy

reid: Deep Thought. 🙂

“Seriously though, he IS a man of considerable substance. As I said awhile ago, I really do believe he needs to consider his legacy. If he turns his mind to that, I believe the right decisions will begin to flow.”

Marvin: You can blame the Sirius Cybernetics Corporation for making androids with GPP…
Arthur: Um… what’s GPP?
Marvin: Genuine People Personalities. I’m a personality prototype. You can tell, can’t you…?

🙂
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August 7, 2010 5:39pm
starboard

Manolo (1,927) Says:

August 7th, 2010 at 5:04 pm

..more sickened and disgusted than shocked..why does he keep lickin her boots. Same as, why did he lie down with our black version of the kkk…so many questions…
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August 7, 2010 5:58pm
Rex Widerstrom

FE Smith:

I recall at least two documentaries (don’t have the details, alas… sorry) in which a convicted person was acquitted on new evidence, that evidence proving that one of the “victims” had in fact killed the others. One was a woman found dead with her children by her husband. She’d called him screaming that there was an intruder in the house, he claimed. There was a record of the call, of course, but not the content.

The fact that they were known to be having marital strife suggested, said the defence, that she’d deliberately set him up. But making such an accusation against the mother of your children was always fraught with danger and it backfired.

The other was a house full of “gang bangers” from which one escaped. In both cases, not defendants to whom a jury would naturally warm (and neither, I’d say, was Bain). And in both cases police were so convinced that the obvious answer was the right one they looked no further.

Not exactly case references I know, and I’m sorry… it was the US “20/20” show on which I recall both cases being profiled, if that’s any help.

The point being, of course it’s acceptable to accuse one of the victims. And sometimes, it’s correct to do so… so a blanket prohibition on running it as a defence cannot possibly be in the interests of justice.
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August 7, 2010 6:09pm
Rex Widerstrom

starboard asks:

why does he keep lickin her boots

You can’t have too many friends in high places. The elites have more in common with one another than with us, starboard. That’s why their actions appear so often inexplicable.
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August 7, 2010 6:12pm
Yvette

That he will be an Independent Member from later Monday, should clarify some of the conditions that contribute to Carter’s unwellness, if indeed it is of a nature relating to his mental disposition. So maybe he will need less sick leave than he has anticipated.
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August 7, 2010 6:28pm
Luc Hansen

@Tom Hunter re Michael Totten.

You have got to be joking. He is AIPAC financed because of his tame, Israel friendly, westerncentric reporting. I got kicked off his comments column real quick when I asked him a coupe of hard questions and supplied an alternative view to his (Zionist supplied) sanitised version of history.

A faint tone of European superiority runs all through his so-called reporting. As with his mate, Hitchens, these days (and may he get well soon). I prefer Pepe Escobar, Asia-Times. Or Gwynne Dyer. Or Jon Stewart, even though he calls his show a comedy, there is a very serious and informed undertone.
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August 7, 2010 6:34pm
Yvette

‘Phil Goff has lashed out after being questioned about his leadership following a meeting today to discuss the future of suspended MP Chris Carter …
A “frustrated” Phil Goff has dropped the s-bomb, telling reporters in Wellington today that questions about the strength of his leadership are “bullshit”.’
– stuff.co.nz

“lashed out”? – Goff seemed reasonably cheerful talking to reporters on PRIME.
and “the s-bomb” – what the hell is “the s-bomb”
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August 7, 2010 6:37pm
starboard

The elites have more in common with one another than with us

..mate , he aint elite..I went to school with him..he’s a joe blow with 50 mill in the bank…and a title ..PM.
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August 7, 2010 6:38pm
reid

and “the s-bomb” – what the hell is “the s-bomb”

Exactly Yvette. The fools…
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August 7, 2010 6:41pm
side show bob

Shit is the Dear One back in the country?. I have always wondered and perhaps some out there might know. Is the broomstick fitted with extra fuel tanks for the trans Pacific flight or can it do the whole leg on pure spite?
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August 7, 2010 6:51pm
Manolo

Staboard, I understand and share your disappointment. Key and his government have hitherto offered little change from Clark’s vile regime.

What irks me is Key’s duplicity, his ability to lie and deliver something completely different to what he campaigned on. Why does he continue to pander to the racist Maori Party? It’s not a matter of jump, but how high.

It leads me to conclude today’s National Party is a lost cause. Its membership must be blinded by Key’s inane grim or be too coward to challenge this spineless PM. The latter is more likely.

Either way, NZ will pay dearly for the wasted opportunity.
Instead of correcting Labour’s mistakes, National is aggravating them.
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August 7, 2010 7:11pm
Johnboy

“and “the s-bomb” – what the hell is “the s-bomb””

http://www.urbandictionary.com/define.php?term=s-bomb

“S-bomb n A very messy run to the shitter, resulting in splatter that is not necessarily contained within the toilet and/or urinal’s boundries.”

Yep sounds about right to me as far as Goofies concerned. 🙂
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August 7, 2010 7:14pm
Johnboy

“It leads me to conclude today’s National Party is a lost cause. Its membership must be blinded by Key’s inane grim”

Yep they have to be the most inane grim bastards I have ever voted for.

Never again! 🙂
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August 7, 2010 7:18pm
Manolo

Thank you for highlighting my mistake, johnboy. I meant grin not grim, althought the latter term is quite applicable to hopeless National 🙂
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August 7, 2010 7:31pm
starboard

Shit is the Dear One back in the country

yep..in christchurch attending some women get together…no doubt lots of ooohhing and ahhhing and air kissing..
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August 7, 2010 7:34pm
Johnboy

I do feel I must direct you to this page of the Urban Dictionary Manolo. 🙂

http://www.urbandictionary.com/define.php?term=grim
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August 7, 2010 7:37pm
side show bob

Nooooooooooooo please say she is not in Christchurch Starboard, the ABs are doomed.
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August 7, 2010 7:39pm
F E Smith

Thanks, Rex. Of course, I agree with you. However, I have struggled with the ideas of many commenters on this site when discussing the issue that the reputation of the deceased, or even just those not present at the trial, should be sacrosanct when determining whether a person goes to prison or not. It seems to me that many people want to take the defences used (Bain, Weatherstone, Waihopi) simply because they either don’t like the person accused or think they are guilty. That is a good reason why representative democracy is so much better than direct democracy (have a look at some of the ancient Athenian trial results for examples of the latter) and why having a populist Minister of Justice is such a bad thing.
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August 7, 2010 9:21pm
Hurf Durf

but I am no friend of North Korea, or in fact, ANY dictatorship

LOL Bonkers, who are you trying to kid? This isn’t the RWF.

Gwen Dire and Little Johann Hari in the Huruld today. How the hell can anyone seriously call that shitrag conservative? Really?
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August 7, 2010 9:27pm
Johnboy

I do get the impression FES from your musings here, that you do regard the opinion of the Judge or the Defending Counsel as more significant than that of the General Populace.

Is this a common belief amongst Lawyers in general or just in your case?
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August 7, 2010 9:35pm
F E Smith

Nice try, Johnboy, but I don’t take the insult. I know what people like you think of defence lawyers and it doesn’t bother me. I presume, of course, that if you were ever wrongly charged with an offence that you would eschew the services of a defence lawyer and simply plead guilty.

But my answer is that I believe neither of your propositions, Johnboy, and your impression is completely wrong. I regard the law of evidence as it currently stands and as it has been developed (and is developing) for hundreds of years to be far more significant than the kneejerk opinions of anybody- general populace, politicians, judges or lawyers. The mood of the general population ebbs and flows, never holding true to one course and never being consistent when it comes to criminal justice- until, that is, an individual is wrongly or unfairly charged. Then, for some reason, a fair and just criminal justice system becomes all important to that individual. The general population, however, just doesn’t care.

I also have the sneaking suspicion (and it is only a suspicion, I do not say I speak for the judge at all) that Justice Panckhurst may also believe David Bain to be guilty, so your jibe further fails on that point. Indeed, there are times that even defence lawyers believe their clients to be guilty. It doesn’t change the requirements of our job. I have had times when I have been even more convinced of the guilt of my client than the proseucting lawyer, but I will still do my job as I swore I would do when I was admitted.

Indeed, it may be beneficial to cross-post a part of a comment I left on Inventory 2’s blog:

“Don Mathias, one of NZ’s great intellectual lawyers, has this to say about the ongoing debate:

“There will always be differences of opinion over who was the murderer. People who were not at the trial and who did not hear all the witnesses and see all the evidence cannot possibly have worthwhile opinions on that issue. Even people who sat through the whole case disagree on its outcome. If people can’t agree on whether there was a reasonable doubt, how can they agree on whether on the balance of probabilities the acquitted David Bain should receive compensation?”

I agree with him fully, which is why I have never said whether I think Bain is guilty or not.”

And I have never said whether he is guilty or not guilty. Simply that those who saw and heard the entire trial are in a far better position to decide than we are. If those people disagree, then the general public can never get the answer right other than by pure chance.

But the
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August 7, 2010 10:55pm
Luc Hansen

The question is not whether David Bain is innocent or guilty. The question is whether, in the light of the final jury verdict, he will gain compensation. I don’t believe he will, because it’s simply impossible for him to prove that he did not do it. If he is truly innocent, that’s bad luck, but that’s just the way it is. Personally, I’m one who thinks in this case the cops got the right man.
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August 7, 2010 11:14pm
reid

“I have had times when I have been even more convinced of the guilt of my client than the proseucting lawyer, but I will still do my job as I swore I would do when I was admitted.”

So this is something many have a prob with, F.E.

Can you clarify the ethical/legal obligations?
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August 7, 2010 11:16pm
Luc Hansen

It’s simple reid:

PAY ME THE MONEY!
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August 7, 2010 11:20pm
reid

“Personally, I’m one who thinks in this case the cops got the right man.”

Myself, I don’t give a fuck.

To me, the guy may in fact be guilty, but apparently he wasn’t, in the final light of the final verdict. Period.

So was there a mistake, or wasn’t there?

Yes.

What happened.

Someone was imprisoned for many years.

Right…

So nothing went wrong then…
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August 7, 2010 11:53pm
F E Smith

Nobody asked you, Luc. Go away and play somewhere else.

Reid, it is simple: the rules of the New Zealand Law Society require me to represent somebody regardless of their guilt or innocence. There are times when I cannot, but those situations are few. Even if my client confesses to me, I must represent them according to their instructions, so long as I do not present a postive defence. That means that, if a client has admitted their guilt to me, that I cannot present a defence that says he/she did not do it, rather I have to put the police to proof. Of course, the option (and the benefits) of pleading guilty are presented to the client early on- often in our first meeting. However, I am bound by their instructions as to the plea and must go from there.

Some countries allow the lawyer to refuse to represent an accused person. The USA, for example, or, in the UK, solicitors can refuse to represent a client. However, that leads to the problem where you get an publicly unpopular defendant (like a Weatherstone or a Dreyfus) and nobody will represent him/her.

As a defence lawyer, I do not advocate for myself. I do so for my client. The rules of advocacy prevent me from putting my own opinion across in the case (and that is common throughout the common law world), as I am simply there to present the case on behalf of the defendant. That is why, when Judges sum up to a jury, they don’t say to the jury that “Mr Smith says this or that” but that “(The defendant) says this or that”. The case is not mine and I don’t have to believe in it, it is my client’s and presented on their instructions.

However, I must never lie to the Court, ever. Doing so is an offence in so many different ways and will spell the end of my career. Anyway, no client is worth lying to the Court, no case is so important that I would do so. If anybody says that defence lawyers lie on behalf of their clients then that person is showing they haven’t a clue about what they are talking about.

But, in brief, I am required to by the Law Society rules. And I have no problem with that. Most people charged with an offence plead guilty, so there is generally no issue. Those who don’t have a legal right not to, and so I will assist them to the best of my ability. Sometimes that can get embarrassing, if they want to plead not guilty when you have told them point blank they haven’t a chance, and sometimes it is frustrating, when they insist on pleading guilty even when they are clearly innocent. But you take the good with the bad and you try to help everyone in some way.

Does that make sense?
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August 7, 2010 11:53pm
reid

F.E. thank you.

That is the best summary exposition of the barrister’s ethical code I have ever read.

Is the Inquisitorial system a goer here?
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August 8, 2010 12:09am
F E Smith

“Is the Inquisitorial system a goer here?”

I hope not! I will explain tomorrow.
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August 8, 2010 12:24am
Luc Hansen

Mr Smith

This is a spin free zone. We are all equal.

I have no problem with defence lawyers – I love them, in fact. I have paid Barry Hart a not insignificant sum of money to represent me. I admire the way he carried out his role. I didn’t win, but I didn’t lose as badly as I could have.

Answer this, if you please: what do you think of the US government doctrine of extra-judicial executions that not only deny the subject any judicial process, but prohibits anyone like you from representing the target. I’m talking the Al Awliki ( spelling is from memory) case case. Any thoughts?
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August 8, 2010 12:28am
Dave Mann

F E Smith… You and all your kind make me want to vomit. I feel defiled just reading the shit that you try to pass off as ‘ethics’. Cockroach.

[DPF: If you can’t engage more politely than that, you may need to engage elsewhere]
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August 8, 2010 12:29am
Manolo

Do as I say, not as I do: http://www.theage.com.au/world/while-obama-preaches-sacrifice-his-family-frolics-in-spain-20100807-11pd2.html
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August 8, 2010 6:22am
starboard

side show bob (2,642) Says:
August 7th, 2010 at 7:39 pm
Nooooooooooooo please say she is not in Christchurch Starboard, the ABs are doomed

…my mistake..shes at the Chc Cathedral on Friday 13th doin a lecture on behalf of the UN re ending world poverty * yawn *
..Im busy that nite…got some nose hair to trim…
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August 8, 2010 6:51am
Manolo

“She’s at the Chc Cathedral on Friday 13th doin a lecture on behalf of the UN re ending world poverty”

What a great life dear witch former leader lives, doesn’t she? Preaching how to end poverty while collecting USD $500,000 annually and paying bugger all tax. Travelling around the world supporting the con men of global warming, meeting crooks and dictators, attending the cocktail/chardonnay circuit, dining at the finest restaurants, etc.

All in the name of socialism, of course.

And rumour has it that the “brave” Key’s government will lend full support to her bid to become the next Secretary General? The mind boggles.
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August 8, 2010 6:59am
Guy Fawkes

“A message on his website last month said the Criminal Cases Review Commission was “reviewing a wealth of new evidence which must surely see Jeremy’s case being referred back to the Court of Appeal”.

Last year he lost a Court of Appeal challenge against the order that he must die behind bars. He has twice lost appeals against conviction.

Essex Police were unable to comment on the fresh evidence claim.”

Surely no-one is ever fit up by the non disclosure of vital evidence by the Police?

4 or 5 o-levels , and all that power. Surely not.
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August 8, 2010 7:07am
Guy Fawkes

“F E Smith… You and all your kind make me want to vomit. I feel defiled just reading the shit that you try to pass off as ‘ethics’. Cockroach.”

Monkeys know their own tricks.

Oh please do tell why you are so robust in your convictions and actions that you may stand so firmly on the moral high ground?

Teacher? Lecturer? Fine Artist? Sculptor? Pornographer?
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August 8, 2010 7:16am
Tauhei Notts

Reid at 12.09.
Spot on.
We are lucky to have contributors like F E Smith.
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August 8, 2010 8:10am
Jibbering Gibbon

This stuff fascinates me, because in it’s theoretical form it appears super-human:

“…As a defence lawyer, I do not advocate for myself. I do so for my client. The rules of advocacy prevent me from putting my own opinion across in the case (and that is common throughout the common law world), as I am simply there to present the case on behalf of the defendant. That is why, when Judges sum up to a jury, they don’t say to the jury that “Mr Smith says this or that” but that “(The defendant) says this or that”. The case is not mine and I don’t have to believe in it, it is my client’s and presented on their instructions…”

Somewhere between here:

“…However, I must never lie to the Court, ever. Doing so is an offence in so many different ways and will spell the end of my career…”

and here:

“…Anyway, no client is worth lying to the Court, no case is so important that I would do so…”

Some major mental gymnastics must take place. (That isn’t sarcasm) What’s the methodology? How did you learn it?

And here again the reality starts to blend with theoretical perspective and opinion and what appears to be contradiction of roughly articulated ideas begins:

“…If anybody says that defence lawyers lie on behalf of their clients then that person is showing they haven’t a clue about what they are talking about.

But, in brief, I am required to by the Law Society rules. And I have no problem with that. Most people charged with an offence plead guilty, so there is generally no issue. Those who don’t have a legal right not to, and so I will assist them to the best of my ability. Sometimes that can get embarrassing, if they want to plead not guilty when you have told them point blank they haven’t a chance, and sometimes it is frustrating, when they insist on pleading guilty even when they are clearly innocent. But you take the good with the bad and you try to help everyone in some way…”

But relax, I’m not trying to suggest that since a contradiction appears to exist, that everything else uttered is wrong or that there are only degrees of lying or that only black and white truths exist. I’m interested in how you suspend opinion and remove yourself, as completely as you say, from the case.

Everything a person does and says is an expression of their values (good or bad) their opinions and their prejudices. For instance, why have you latched onto the Bain case to prove this point of law? Why do you feel the need to prove this point? As far as I know/have experienced, the point you chose reveals something about you – you are not seperate from the things you chose to examine – and the way you examine it presents what and how you have learned and what you believe and the fact that you are pushing against something [an idea, an injustice, a fear] reveals even more about you. Depending on who you are and your own unexamined beliefs you will behave in a certain way and, in your positon of power, influence the case directly. This is what I know to be true about me. But here you are saying you have exceeded this common human flaw and I choose to believe you. So how did you do it?
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August 8, 2010 8:23am
F E Smith

Reid and Tahui: thank you very much, both of you.

Gibbon: It can seem difficult to grasp to a non-lawyer, I accept. I will go through your points in a moment, but let me relate that at the beginning of my first year of law school, our first lecturer introduced the study of law by stating that they were going to spend the next four years teaching us to think in a manner that is very different from which we were used to and that is very diferent to how the general population thinks. He told us that, he said, because we apparently could get comments from our families as we went along on our change in thinking, even though it would not seem apparent to us. I can say that he was correct, and I did.

That is not to say we think in a way that is superior to the general population. We are just different, and indeed, as you point out, we are very much more theoretical than most other professions. We also often think more abstractly in our reasoning.

So, to explain the reasoning behind your first quotation: We barristers have a right of audience before the Court. Technically that means the Royal Court and the audience is with the Queen, who is the ultimate judge of all law in the realm. Because Her Majesty is often busy with other matters, Her Majesty, on the advice of her Attorney General for New Zealand, appoints judges to sit in her stead in the High Court of New Zealand. District Court judges are a different creature, but High Court judges are indeed ‘the Queen’s judges’, as we are reminded when one enters his/her Courtroom each morning.

That right of audience, however, is not granted on our own behalf. It is there so that we can advocate on behalf of our client. I, as a barrister, am not entitled to state my own opinion to the finder of fact (either the judge or the jury, depending) as the case is not mine. I am, if you want to put it crudely, a mouthpiece for my client. It is in fact a rule of the New Zealand Law Society that the barrister (proseucting or defending) may not convey there own opinion to the Court. The Court does not want to hear what we think, they want to know what our client thinks. That is often something that the general public do not understand, assuming that if we are representing a person in Court that we must agree with them and support their contention, whatever it is. That is incorrect. You can never tell what a lawyer thinks of the case from what they say in Court.

You then say “Somewhere between here: “…However, I must never lie to the Court, ever. Doing so is an offence in so many different ways and will spell the end of my career…” and here: “…Anyway, no client is worth lying to the Court, no case is so important that I would do so…” Some major mental gymnastics must take place. (That isn’t sarcasm) What’s the methodology? How did you learn it?

I confess that I don’t see the mental gymnastics at all. I am an officer of the Court. My first loyalty must be to the Court. If you want mental gymnastics, try and reconcile that obligation with an equal obliagation (as a defence lawyer) to my client. That is something that a barrister can really struggle with. However, our obligation to the Court is to always tell the truth. I suppose, if you want, the rule is really never to lie to the Court. We all know what a lie is, so I will assume you can understand that concept, but with that in the back of your mind you must then understand that sometimes our clients will ask us to lie to the Court. Or will present what is obviously a falsehood and ask us to present it as truth. No amount of money will ever convince me to do that. If I lie to the Court then the first person I harm is myself, and my own view of my professional reputation. Secondly, I would assume that at some point my lie would become known. If it does, then my professional reputation is also kaput among the judges, as well as my colleagues.

While most people seem to think that defence lawyers are bleeding heart liberals who are willing to do anything to win, most of us are actually fairly right wing when it comes to criminal justice and have a very realistic view of our clients. That latter point, especially, means that we are very censorious of any lawyer who is caught out either lying or even stretching the truth. Indeed, we are censorious even of a lawyer whom we suspect of lying or stretching the truth. I am not kidding when I say that my reputation among my colleagues and in the profession is far more important that any client could ever be. Which is part of why I don’t see any mental gymnastics in the concept. I will not lie to the Court, ever. I have, on occasion, been asked to and I have responded, very bluntly, with a ‘no’. While that is a bit convoluted, it all basically comes down to the idea that clients come and go, but I aim to be in the profession for a good 50 years, so I know which is more important to me! On top of that, if I am caught lying to the Court, then there are both professional (striking off, suspesion, and so forth) and criminal (prison, most probably) sanctions that I would prefer to avoid.

Where I say “But, in brief, I am required to”, I think I was not clear in linking that back to the original concept of why I represent any person in need of assistance. I can see how it could be seen as linking to lying to the Court, but I hope people would not think that given what I had said in the previous paragraph. I can see the poor paragraph construction, however, so admit my error there.

I remove opinion and suspend myself from the case simply by understanding that I am not advancing my own cause. I am not the one on trial, or the one seeking a favourable judgment. That situation belongs to my client. I will do my utmost for them, so long as it is within the rules, and they instruct me because I have an expertise in matters legal that they do not have. I still take things personally. As you seem to allude to, it is not human not to have some attachment to a case. But for me that attachment is not from a belief in the guilt or innocence, or the rightness or wrongness, of the client and their case. For me it is a professional attachment in making the correct argument, addressing the correct points, eliciting the necessary evidence. I would dearly love to be able to question jurors following a verdict to see what it was that convinced them one way or another. I also know that recieving an unfavourable verdict does seem like a blow when it is rendered. However, you go back to your office, think about it or discuss it with your colleagues, and then you move on. If I took it too personally I would go mad. The job is stressful enough without attaching some personal importance to it.

Don’t get me wrong. I still feel bad, and feel aggrieved, when I see somebody that I know is innocent go to prison. I have less problem when somebody I think is guilty gets off, but that is mainly because I believe strongly that a person should only be convicted of an offence if the evidence presented in Court proves their guilt beyond reasonable doubt. Sometimes there just isn’t the evidence, sometimes the Police haven’t done their job properly, sometimes the person just gets lucky. Regardless, that rule is there to add extra protection to the innnocent accused, and in full knowledge that guilty people will sometimes walk free as a result. That is not anathema to justice (as Tony Blair and Simon Power would have us believe), instead it is the true course of justice. It is William Blackstone, one of the most famous judges and author of the first comprehensive commentaries on the Laws of England, who said that we would rather have 10 guilty men acquitted than 1 innocent man go to prison. And that in an age when many innocent men hung because of the abuse of the system or the incomplete rules of evidence as they then existed.

The outcome in Bain doesn’t worry me at all. I won’t say whether I think he is guilty or innocent, and I refer you to the Don Mathias quote as to why I will not do so. I raise it, and the Bamber issue, because many people on this blog (and the comments go into the thousands on the topic) criticised Bain for blaming his father for the killings when his father was not able to defend himself. Indeed, Robin Bain’s brother has said the same thing. I have raised it not to support or condemn Bain, but to see what people thought when such a defence was raised in somewhat similar circumstances but where it suddenly becomes possible that the person raising the defence was telling the truth.

I expect comments like Dave Mann’s because you will always find people who are ignorant of the defence lawyers true role. I hope that what I have said here answers your points a little.
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August 8, 2010 9:37am
Jibbering Gibbon

Thanks for your reply, F.E. Smith. Read and understood.
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August 8, 2010 12:41pm

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