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August 2, 2012 8:00am by Kokila Patel

General Debate 2 August 2012

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wat dabney

“Prior convictions ARE NOT EVIDENCE.”

They kind of are.
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August 2, 2012 5:40pm
Longknives

“Here you go Kiwibloggers!
Now – how many of you will sign THIS petition?”

I’m guessing not more than two- Keep flogging that dead horse Penny….
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August 2, 2012 5:43pm
Longknives

“Prior convictions ARE NOT EVIDENCE.”

They are certainly evidence of character…
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August 2, 2012 5:44pm
Put it away

To sum up the water loon’s petition for anyone who can’t be bothered reading it ( say it ain’t so!) It basically says “does anybody care that I’m upset that the police followed the actual law of the land, and not some law I just made up to persecute someone purely because I disagree with them “. I can save the taxpayer some money by giving you the answer: no
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August 2, 2012 5:47pm
Pauleastbay

@Longknives……..They are certainly evidence of character…

Yea but, how many of us could handle our characters being put under the microscope in a trial sitaution and hope to come out of it looking mint. I could handle it but I wouldn’t be smelling minty fresh by the end of it and that coupled with a bit of circumstantial and its off to the pokie regardless of guilt or not.
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August 2, 2012 5:50pm
Weihana

Longknives (1,220) Says:
August 2nd, 2012 at 5:44 pm

“Prior convictions ARE NOT EVIDENCE.”

They are certainly evidence of character…

Exactly, but a person isn’t tried for their character they are tried for committing a specific act.
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August 2, 2012 5:54pm
wat dabney

I’m not sure that revealing dozens of prior convictions counts as “having ones character put under the microscope.”
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August 2, 2012 5:55pm
chiz

Character is surely relevant when it comes to considerations of motive.
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August 2, 2012 5:57pm
Weihana

chiz (561) Says:
August 2nd, 2012 at 4:54 pm

It doesn’t really speak to the question of whether they did or didn’t do something, but to their propensity for doing it. In any case it is, as I understand it, up to the judge as to whether any particular piece of propensity evidence is admissable.

“Propensity for doing something” is another way of saying that you are evaluating his character. But his character is not on trial. He is, or was, on trial for a specific act the evidence for which could not (apparently) establish guilt beyond all reasonable doubt.

Besides, does arson really establish a propensity for murder? That argument itself, as irrelevant as it is, would seem untenable.
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August 2, 2012 5:58pm
Fletch

kk, we had a C=64 also. Great computer!
I could program in BASIC and a little 6502 machine language.

Programming was all part of owning a computer in those days.
These days when someone buys a computer, they don’t have to know a thing about it.

I see that some are trying to resurrect the C=64, but I don’t see it being very popular.

I still remember codes, for some reason, like POKE 53281,x changing the screen color based on the value of x.
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August 2, 2012 6:04pm
Longknives

“how many of us could handle our characters being put under the microscope in a trial sitaution and hope to come out of it looking mint”

I’d like to think that 37 years on the planet and no criminal convictions would work in my favour. Likewise if some piece of excrement had multiple convictions for similar violent offending I personally think that the jury should be able to take this into account- despite what the criminal hugging lefties think…
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August 2, 2012 6:07pm
Elaycee

Penny Not-So asks: “Now – how many of you will sign THIS petition?…”
Answer: Apart from the usual list of placard wavers, dissidents and no-hopers – bugger all.

1. “What did he think it [the envelope] was?”
Answer: Tickets to Blue Man Group?

2. “What would he have thought it was?”
Answer: Front row tickets and an ice cream voucher for half time?

3. “How did he know to give it to who ever opened the envelope?”
Answer: He heard the instruction via his earpiece link to Bradley Ambrose / TV3?

4. “What were the words which were spoken at the time of the exchange?”
Answer: Thank You?

5. “Why did the administration person for Bank who processed the check write ‘anonymous’ on the register when the cheque would quite clearly have shown who it came from”.
Answer: He didn’t have enough room on the sheet to write down: The New Zealand Chapter Of The Wheel Tappers And Shunters Club?

6. “How did Sky City deal with this payment as part of their tax obligations?”
Answer: Maybe they listed it as a donation?

There… all answered for you, Penny Not-so. 😀

Elaycee,
Society Against The Exploitation Of Skunks.
http>// http://www.Penny.Not-So.Has.Lost.The.Plot.Again.
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August 2, 2012 6:11pm
Dean Papa

@ Weihana – while committing arson against someone may not prove murder, obviously it doesn’t, it certainly hints at motive and intent. Your claims that these crimes have nothing in common would seem to be conjecture on your part. I’d say they fall into the pattern of what could be termed escalation.
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August 2, 2012 6:13pm
Other_Andy

The UN, controlled by a bunch of corrupt, anti-Semitic, misogynistic, dictatorial countries, telling New Zealand what to do.

In a draft report on the state of gender equality in New Zealand, the UN’s committee on the elimination of discrimination against women said it was concerned new welfare laws would likely “predominantly affect Maori women and reduce their social benefits”.

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10824146

That is the ‘organisation’ that gave seats to Russia, Cuba, Saudi Arabia and Cameroon on the Human Rights Council which was chaired by ……..Libya.
The ‘organisation’ which gave Iran a seat on the UN’s Commission on the Status of Women.

The sooner that bunch of pocket filling corrupt and hypocritical socialist rejects is run out of town the better.
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August 2, 2012 6:16pm
publicwatchdog

What is the definition of a ‘lobbyist’?

This may help more informed debate on this issue?

Lobbying – Code of Conduct and Register of Lobbyists – the Australian experience.

http://lobbyists.pmc.gov.au/conduct_code.cfm

Lobbying Code of Conduct
Lobbying Code of Conduct – PDF 35KB
In 2008 the Australian Government introduced a Lobbying Code of Conduct and established a Register of Lobbyists.

The Code underpins the Register and sets out the requirements for contact between third-party lobbyists and Government representatives, indicates what will be publicly available on the Register and outlines the conditions for successful registration of lobbyists. It also defines lobbyists, clients, Government representatives and lobbying activities for the purposes of the Register.

Preamble
Application
Definitions
No contact between government representatives and unregistered lobbyists
Register of Lobbyists
Access to the register of lobbyists
Prohibition on Lobbying Activities
Principles of engagement with government representatives
Reporting of breaches of code
Registration
_____________________________________________________________________________

Penny Bright
‘Anti-corruption campaigner’

http://www.dodgyjohnhasgone.com
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August 2, 2012 6:22pm
Put it away

Of course prior convictions should be admissable, if a trial depends significantly on the honesty of the defendant’s evidence, the jury should know if the defendant has a history of dishonesty. This could be established by telling the jury if the defendant has been convicted before, and most importantly – whether he pleaded guilty or not guilty to the past offences. If he has a history of pleading not guilty when he actually was guilty, then clearly he has no qualms about lying in court in order to evade justice. The jury ought to be aware of that when assessing the veracity of his evidence.
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August 2, 2012 6:23pm
graham

I would prefer to consider signing up to the Draft Action Plan that Penny mooted some time ago – I think it emanated from OccupyAuckland. I found myself in agreement with two points from that plan:

4. Legislate for an enforceable ‘Code of Conduct’ for NZ Members of Parliament (who make the rules for everyone else).

5. Make it an offence under the Local Government Act 2002 for NZ Local Government elected representatives to breach their ‘Code of Conduct’.

In all seriousness, I think the behaviour of some of our MPs over the past years has been quite disgusting. And I completely endorse the sentiment that those people who make the rules for everyone else, should be held accountable. I have found it quite bizarre that we allow people such as Hone Harawira into Parliament, when he openly states that he will not obey the laws of the land if he happens to disagree with them.

And I’m equally in agreement with the sentiment of point 5, extending this ‘Code of Conduct’ to Local Government elected representatives. So, presumably, somebody standing for public office who was found to have STOLEN water, encouraged others to STEAL water, STOLEN electricity (as part of the Occupy movement), would not be looked upon very favourably under this ‘Code of Conduct’. And as for somebody standing for public office who proceeded to VANDALISE AND DEFACE the billboards of her opponents during the campaign – that wouldn’t be very seemly, now would it?
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August 2, 2012 6:28pm
Pauleastbay

Put it Away

I see a problem in the situation where the defendant is a clean skin but is guilty as hell and this lack of prior history is put forward as a reason to aquit.

As any honest defence lawyer will tell you they actually win bugger all, its only when there is a high profile trial and the result is debated by us that do not know all the facts that the calls for change come.

I like my rule of thumb – we are all just a bad day away from being a defendant for what ever reason – if this were to occurr I want the field as level as possible.
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August 2, 2012 6:32pm
Weihana

Dean Papa (95) Says:
August 2nd, 2012 at 6:13 pm

@ Weihana – while committing arson against someone may not prove murder, obviously it doesn’t, it certainly hints at motive and intent. Your claims that these crimes have nothing in common would seem to be conjecture on your part. I’d say they fall into the pattern of what could be termed escalation.

“hints at”. Is this the standard upon which we convict? Even if we accept that prior bad acts in some way “hint” at something relevant to the present case, the probative value provided from such “hints” is very likely to be outweighed by the prejudicial nature of the evidence and thus dismissed. Anything which tends more towards prejudice than probity undermines the judicial process and makes for an unfair trial.
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August 2, 2012 6:42pm
cha

NYT obituary: Gore Vidal.

Success did not mellow Mr. Vidal. In 1968, while covering the Democratic National Convention on television, he called William F. Buckley a “crypto-Nazi.” Buckley responded by calling Mr. Vidal a “queer,” and the two were in court for years. In a 1971 essay he compared Norman Mailer to Charles Manson, and a few months later Mailer head-butted him in the green room while the two were waiting to appear on the Dick Cavett show. They then took their quarrel on the air in a memorable exchange that ended with Mr. Cavett’s telling Mailer to take a piece of paper on the table in front of them and “fold it five ways and put it where the moon don’t shine.” In 1975 Mr. Vidal sued Truman Capote for libel after Capote wrote that Mr. Vidal had been thrown out of the Kennedy White House. Mr. Vidal won a grudging apology.
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August 2, 2012 6:43pm
Elaycee

“http://www.dodgyjohnhasgone….. etc”

Best update your link, Ms Dim… the campaign actually failed!

😀
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August 2, 2012 6:52pm
Nostalgia-NZ

Wake up Weihana.

The country needs trials that lack evidence to be compensated with irrelevant details of the accused’s past. To borrow the phrase from Mike White, it satisfies the ‘witch sniffers.’ That would have allowed any tattooed mob member to be convicted of this crime, even if they’d been in prison or Aussie at the time.

I’m glad this case is going to the High Court for sentence, a lot of important issues in this. Not to mention that the Sexton’s seem an unusual bunch.
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August 2, 2012 6:53pm
Dean Papa

@ Weihana -maybe “hints” wasn’t quite the right word. Perhaps “points at motive” is better. Whatever, it proves he possessed some sort of grudge or motive which could lead him to commit the crime. Doesn’t mean he did of course, but he had a motive, which would make him a more likely candidate than if he didn’t. The nature of his previous crimes also “points” towards the possibility of escalation. With the knowledge of his previous crimes a jury could have been better prepared to judge the plausibility of the defence presented. It certainly shows him to be of a different character than that presented to the jury by Greg King. If the defence is permitted to lie to the jury about the character of the defendant, it is only fair that the jury have full access to the facts in order to make a better informed judgment.
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August 2, 2012 6:58pm
wreck1080

“It was bloody obvious the suppressed charges against McDonald were dynamite.
Hands up those who think he didn’t do it now?”

Well, after hearing this I think maybe he did do it — previously I was uncertain as there was not enough evidence to decide and there was this thing about the dogs. Maybe mcdonald was responsible for them too?

I’m a believer that a persons past convictions matter. A persons past behaviour is an indication of their character and that is key to knowing whether someone is capable of committing a crime.

eg, if some clown is convicted of 20 burglaries and they are on another charge of burglary I’d say it is rather likely they did it again.

Lawyers will argue against this, because they’ve been indoctrinated into the current system and don’t like change.

But, if you’ve committed a number of nasty crimes then it is your own fault that this ‘blackens’ your character for future trials.
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August 2, 2012 7:08pm
chiz

Petition against gay marriage attracts jokers.
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August 2, 2012 7:14pm
Nostalgia-NZ

Dean Papa if you had followed the trial you would know that GK lambasted MacDonald at the opening and in the closing address. It would also have shown how stupid your comment about a ‘p’ freak was. GK didn’t lie to anybody.
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August 2, 2012 7:18pm
cha

#ebertchicago

Oppose gay marriage by eating chicken? Words fail me.
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August 2, 2012 7:21pm
SGA

I’ve been on the jury for two trials. In one case, one of the juror’s main reasons for wanting to convict the guy was that he was a ginga (“and we all know what trouble they have keeping their temper” – probably not word perfect, but that was the message). No kidding at all. The remaining eleven managed to convince him that this wasn’t sufficient (the actual evidence was a complete mess, really). If this guy had had a previous conviction for assault, and we had been told that, god knows how long we would have been there. I like the system the way it is – jurors came in with enough biases as it is.
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August 2, 2012 7:27pm
Reid

Think of it as “extreme sports science,” a kind of lab-based game of automatic one-upmanship where researchers fiddle with incredibly complex, painstakingly calibrated machinery to produce unprecedented results — then outdo them.
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August 2, 2012 7:38pm
Nostalgia-NZ

Well said SGA. We’ve seen demonstrated here that there are some who accepted that there wasn’t evidence to convict EM become ‘suddenly’ unsure because of unrelated charges that have emerged. If Joe Bloggs wasn’t standing on the corner under a street light at 3am, by the account of a number of witnesses, he doesn’t suddenly just appear there because we hear that he’s in fact been knocking off the vicar’s daughter and drinks on Sundays.
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August 2, 2012 7:41pm
Steve (North Shore)

Govt defends programme allegedly used by gang to buy drugs.

“This afternoon Finance Minister Bill English, speaking on behalf of Minister for Whanau Ora Tariana Turia, said the Government remained committed to the scheme.”
What I want to know is why Bill English was speaking on behalf of Turiana Turia? Where are the Maori Party to speak for themselves?
I think the Maori Party used Bill English instead of standing up for themselves – once were warriors, what a crock of shit.
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10824178&ref=rss
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August 2, 2012 7:52pm
Reid

So when morons like Hamnida talk about neolibs, this is what he means. But isn’t it fucking mental. Clearly the lefties have totally forgotten much of the raping and pillaging they are wringing their hands over occurred when the lefties were in power, such as Blair in the UK and Hulun over here and Obama with his bailouts a few years ago. Or doesn’t that count? Or didn’t they do any raping and pillaging? Or even if they did, it doesn’t count because they were lefties and they meant well? Perhaps Hamnida can explain which option it is? Either way, who gives a shit. Don’t you just love how fucking self-righteous the supercilious little pricks are. The stupid little fucks really truly apparently believe their fucking politicians are just as white as snow over this whole fucking mess and the entire blame for everything can be sheeted home once and for all to the selfish conservatives. Fuck lefties are M-E-N-T-A-L.

http://www.guardian.co.uk/commentisfree/2012/jul/30/economic-ruin-super-rich-totalitarian-capitalism
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August 2, 2012 7:53pm
nasska

Rangi is walking along the cliff-top above Island Bay when a pakeha guy says to him “Excuse me, would you mind holding my hang glider for a minute while I get my flight suit on?” Rangi says “yeah no problem bro,” and takes it from him.

Just as he takes hold a huge gust of wind lifts the glider & Rangi into the air and over the edge of the cliff. Plummeting towards the rocks below, Rangi hangs on to the glider & manages to get it flying. He has no idea how to control the thing though & quickly disappears from view.

Two hours later he was gliding over a farm in Marlborough. Two farmers were in the paddock below shooting ducks & they hear Rangi’s cry for help. Looking up, one says to the other “What the fuck’s that?” His mate says “I don’t know but let’s shoot it!”

They both fire towards the hang glider & after a few seconds one of the farmers says “Did we hit it?” “I think so” says the other “it’s dropped the Maori anyway”.
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August 2, 2012 8:00pm
Andrei

Oppose gay marriage by eating chicken? Words fail me.

Yes Cha, it is an example of a brain defect that progressives seem to have.

See a Christian Businessman is interviewed by a Baptist publication and in the course of that interview he is asked about the support he gives to pro family organizations to which he answers that he is a family man still married to his first wife as are the rest of the executives of his company and that they support traditional families.

Progressives inhabiting the strange universe they do must read Baptist publications looking for things to get upset about and apparently supporting mum, dad, three kids and a dog domestic arrangements is offensive to gays or something.

And so all hell breaks loose with the mayor of Boston and the mayor of Chicago (who happens to be Obama’s ex chief of staff) threatening to run his firm out of their towns.

Funnily enough all lot of people in the good ol USA think that running people out of town because they are still married to their first wives is unAmerican and so to show their support patronized his outlets today in large numbers.

And those who think that they should control public dialogue by threats and intimidation are most put out.
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August 2, 2012 8:09pm
chiz

Penis length is correlated with finger length ratio according to new research.
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August 2, 2012 8:12pm
calendar girl

FES@1.55 re Clayton Weatherstone’s defence: “If the psychological evidence that formed the basis of the provocation defence was manufactured then it was by Weatherstone himself, not his lawyers.”

I’m surprised that you can say that with such dismissive conviction. How could you know that, hypothetically speaking, a member of Weatherstone’s defence team did not make the first suggestion of provocation as a defence, and outline in detail how that defence could be presented and supported by yet-to-be-gathered evidence? You see, for most ordinary lay people the concept of a client “giving instructions” (in the manner that lawyers like to portray) it is something of a myth. A barrister might well gain the client’s ultimate approval for a particular defence strategy, but gaining that approval is likely to be quite a different process from the barrister sitting there passively, waiting for his/her client to decide how the client wants the defence case to be presented. (But in a more elegant style of presentation.)

You say in the same 1.55pm post that barristers “… owe a duty to the Court, as well as to our clients”. Quite correct, that is an important aspect of their oath of admission to the Bar. But in your view would my hypothetical example of the previous paragraph – were it to occur, of course – accord with your own concept of defence barristers fulfilling faithfully their “duty to the Court”?
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August 2, 2012 8:23pm
Steve (North Shore)

How many times per day do you check chiz? asuming you have one.
There is a rumour about women with big feet as well 🙄
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August 2, 2012 8:26pm
cha

And so all hell breaks loose with the mayor of Boston and the mayor of Chicago (who happens to be Obama’s ex chief of staff) threatening to run his firm out of their towns.

I assume you’re referring to a prospective outlets inability to comply with the law and furnish a written anti-discrimination policy Andrei?. SFW.

Oh, and progressive, just rolls off the tongue doesn’t it Andrei.
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August 2, 2012 8:29pm
Pauleastbay

http://www.stuff.co.nz/business/industries/7403424/Barry-Hart-guilty-of-misconduct

Lovin’ it.
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August 2, 2012 8:37pm
edd

What system costs the country more in total? ‘User pays’ or ‘everyone pays for everything’ (if they use it or not).
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August 2, 2012 8:40pm
publicwatchdog

BEFORE THE 2011 ELECTION – ACT DO NOT MENTION CHARTER SCHOOLS IN THEIR EDUCATION POLICY.

http://www.act.org.nz/policies/education

While education for many children is among the best in the world, we have a well-known “long-tail” of underachievers, who become the next generation of under skilled, unemployed, disengaged citizens. After 70 years of state controlled and mandated education, we have a situation where around 20% of our children left school last year unable to read or write sufficiently to fill out a job application.

ACT believes that if we continue to do what we’ve always done, we will continue to get the same results that we’ve always had. The education system must do better for these New Zealanders. What we have done for too long is run education as a centrally planned, Wellington-dictated bureaucracy that gives little autonomy to schools and little choice to parents.

Meanwhile, education policy in Australia, Sweden, parts of Canada and the United States, and Great Britain is showing the benefits of making education more market-like and entrepreneurial. Such policies lead to a wider range of education opportunities being available. ACT supports decentralisation in education, giving more autonomy to principals and teachers and more choice to students and parents.

In the last parliamentary term, with ACT’s pressure and support, the government:

• Introduced Aspire Scholarships, allowing disadvantaged children to access any school of their choice, public or private;

• Undertake a review of education in New Zealand, leading to the ACT Party’s minority report Free to Learn, a comprehensive roadmap for reforming education towards a more market-like and entrepreneurial service;
• Increase the subsidy for private schools, to reduce the extent to which those who send their children pay twice (once in taxes and once in school fees);
• Value the special education sector more, with a special education review resulting in new directions described in the report Success for All: Every school, every child.

ACT will keep working for a more vibrant and dynamic education system. A Party Vote for ACT is a vote to:

• Continue awarding Aspire scholarships to underprivileged children;
• Increase the autonomy that local principals and staff have in running their school. Boards and principals should be able, for example, to set teacher remuneration at their discretion like any other employer, rather than having a rigid, seniority based pay scale;
• Further increase the subsidy for independent schools so that parents who choose independent schools for their children do not lose so much of their child’s share of education funding;
• Encourage choice in assessment systems, whether they be NCEA, Cambridge International Examination, International Baccalaureate, or other qualifications.

______________________________________________________________________________________________________________

AFTER THE 2011 ELECTION CHARTER SCHOOLS (CONVENIENTLY) BECOME PART OF THE NATIONAL/ACT CONFIDENCE AND SUPPLY AGREEMENT:

http://www.act.org.nz/national-act-confidence-and-supply-agreement

5. Education

National and ACT acknowledge that many New Zealand children are not achieving their potential in education and are leaving school ill-equipped to enter the workforce and with limited choices for their future. Underachievement in education often compounds the disadvantages already faced by children in vulnerable, at-risk communities, and can contribute to intergenerational disadvantage, poor health, poverty, joblessness, welfare dependence, criminal offending and social dysfunction. It is one of the reasons for New Zealand’s very high rate of youth unemployment.

Both parties agree that to break this cycle a range of mutually-supporting reforms is required in the areas of welfare, primary health, education, youth transition and employment law.

With respect to education, the parties have, in particular, agreed to implement a system, enabled under either sections 155 (Kura Kaupapa Maori) or 156 (Designated character schools), or another section if appropriate, of the Education Act, whereby school charters can be allocated in areas where educational underachievement is most entrenched. A series of charters would initially be allocated in areas such as South Auckland and Christchurch. Iwi, private and community (including Pacific Island) groups and existing educational providers would compete to operate a local school or start up a new one. Schools would be externally accountable and have a clearly-defined, ambitious mission. Public funding would continue to be on a per-child basis. (Details are included in the attached Annex).

National and ACT agree to establish an implementation group comprising a private sector chair, and private sector, business, iwi and community representatives along with government officials to develop the proposal. They also agree to ensure it is implemented within this Parliamentary term. The terms of reference and composition of the group would be agreed by National and ACT and be supported by the Ministry of Education and external resources. (Details are included in the attached Annex.)

National and ACT also agree to set up a task force to produce a comprehensive report on governance issues relating to policy towards state, integrated and independent schools.

_______________________________________________________________________

Penny Bright
‘Anti-corruption campaigner’

http://www.dodgyjohnhasgone.com
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August 2, 2012 8:47pm
Fletch

Andrei, re: Chick-Fil-A –

Just goes to show that the liberal narrative is just that – a narrative put forward by the progressive liberals; only, it isn’t true.
Most people in the U.S are supportive of traditional marriage, no matter what the mobs of the media and liberals say, and they let it be known today.

The liberal narrative is a lie: the mainstream is not really supportive of gay marriage at all. It’s a certain few pushing the story. The man in the street has spoken though and patronized the establishment that liberals intended to smear and marginalize.

Eat it, liberals.
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August 2, 2012 9:20pm
F E Smith

As any honest defence lawyer will tell you they actually win bugger all, its only when there is a high profile trial and the result is debated by us that do not know all the facts that the calls for change come.

Not so much that we win bugger all as that upwards of 85% plead guilty early on. A bit of a difference, but the point remains that most cases don’t go to a hearing. With hearings, I just point out that the defence has a better chance of success with a jury, and that the more serious the crime the better odds of a successful defence. A minor offence in front of a judge alone has about a 20% chance of resulting in an acquittal.

calendar girl,

well, because I have met and worked with Greg, albeit not a great deal, and I have complete faith that he would not make such a ‘suggestion’, nor would he tolerate one of his team making such a suggestion.

You see, for most ordinary lay people the concept of a client “giving instructions” (in the manner that lawyers like to portray) it is something of a myth

Well then laypeople are wrong, aren’t they.

A barrister might well gain the client’s ultimate approval for a particular defence strategy, but gaining that approval is likely to be quite a different process from the barrister sitting there passively, waiting for his/her client to decide how the client wants the defence case to be presented. (But in a more elegant style of presentation.)

A client who comes to me is generally seeking advice. I give them advice. It is for the client to give me instructions based upon that advice. I will set out the options, I will discuss with them the options, and I will tell them what option I think is best. They are under no obligation to take what I think is the best option, nor will I get upset if they don’t do so. The case, after all, is not mine but theirs I have had clients who have pleaded guilty when I said that I thought that they had a defence, and others who have defended a charge when I have told them that I thought they were screwed. (and that is often how I phrase it!).

What you are suggesting is the manufacturing of a defence. That is highly unethical, as well as probably illegal in most circumstances. I have never done it. I have been asked to do it but I have always refused to do so. I have every confidence that most (not all, but I cannot vouch for all) of my colleagues at the defence bar would take the same approach. And if anybody were to suggest that I had done so in my practice (rather than in a forum like this) then I would sue them for defamation.

that is an important aspect of their oath of admission to the Bar.

Actually, it is in the Rules of Client Care and Professional Conduct. The duty is to the Court first, but the duty to the client is, for a defence lawyer in a criminal case, exceptionally high.

The oath that lawyers swear at admission is

“I, AB, swear that I will truly and honestly conduct myself in the practice of a barrister and solicitor according to the best of my knowledge and ability.”

which, as you see, has nothing in it about our duty to the Court.

Now, the rules that I referred to say this about my duty at rule 13.13:

A defence lawyer must protect his or her client so far as is possible from being convicted (except upon admissible evidence sufficient to support a conviction for the offence with which the client is charged) and in doing so must—

(a) put the prosecution to proof in obtaining a conviction regardless of any personal belief or opinion of the lawyer as to his or her client’s guilt or innocence; and

(b) put before the court any proper defence in accordance with his or her client’s instructions—

but must not mislead the court in any way.

When you suggest that we might “make the first suggestion of provocation as a defence, and outline in detail how that defence could be presented and supported by yet-to-be-gathered evidence” you are simply suggesting that we are misleading the Court. No client is worth that, trust me.

So I reject your hypothetical points as being nothing more than innuendo and smear tactics. While there must be, just because of the numbers, a lawyer who is willing to manufacture a case, it is just as possible that such a lawyer is working for the Crown as it is for them to be at the defence bar.
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August 2, 2012 9:35pm
F E Smith

a couple of other points from the Rules:

When taking instructions from a client, including instructions on a plea and whether or not to give evidence, a defence lawyer must ensure that his or her client is fully informed on all relevant implications of his or her decision and the defence lawyer must then act in accordance with the client’s instructions.

and

13.10 A lawyer must not adduce evidence knowing it to be false.

13.10.1 If a witness (not being the lawyer’s client) gives material evidence in support of the lawyer’s client’s case that the lawyer knows to be false, the lawyer must, in the absence of a retraction, refuse to examine the witness further on that matter. If the witness is the client of the lawyer, the lawyer must, in the absence of a retraction, cease to act for that client.

13.10.2 A lawyer cross-examining a witness must not put any proposition to a witness that is either not supported by reasonable instructions or that lacks foundation by reference to credible information in the lawyer’s possession.
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August 2, 2012 9:38pm
Other_Andy

@cha

“I assume you’re referring to a prospective outlets inability to comply with the law and furnish a written anti-discrimination policy.”

Is this the new twist?

The LGBT watchdog group Equality Matters published a report with details of donations given by Chick-fil-A to organizations that are opposed to same-sex marriage, such as the Marriage & Family Foundation and the Family Research Council.
This is what started the boycott call.

And the actions of Emanuel’s and Menino denying a private business permits because of such speech by its owner is a blatant First Amendment violation.

Nothing less, nothing more.

And..
Stop making things up.
This is not about discrimination. This is about having an opinion about ‘gay marriage’.
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August 2, 2012 9:45pm
Luc Hansen

I know it’s late but I’m busy these days and….

http://thecaucus.blogs.nytimes.com/2012/07/30/romney-comments-on-palestinians-draw-criticism/?ref=opinion

This article is about one ofMitt Romney’s Israel visitation gaffes, where he seems to say either Jews are good at making money or Palestinians are little better than monkeys…

However, the point I wish to make is that the writer of this NYT article puts the underdevelopment of the Occupied Palestinian Territories down to “trade restrictions” imposed by Israel.

In fact, the “trade restrictions” are but one aspect of an aggressive, brutal, and highly oppressive OCCUPATION.

Obviously, the writer is worried about AIPAC reaction to the simple truth.
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August 2, 2012 11:27pm
Lazybum

We won our first Gold at the Olympics. Arise Nathan Cohen and Joseph Sullivan, well done lads. Great sprint finish in the final 500m.
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August 3, 2012 12:09am
Mark

Judith Collins is clearly going after John Judge with some form of personal character assassination objective. Lesson being if you work with Collins watch your back and keep detailed notes.
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August 3, 2012 6:17am
Dean Papa

@ Nostalgia-NZ, King may have not lied, literally, but he lied by omission. But his lies were legit, just part of a system that expects random members of the general public to make the big decision, yet also deems them not intellectually capable of judging all of the evidence on its merit.

http://www.3news.co.nz/Ewen-Macdonalds-other-crimes-revealed/tabid/309/articleID/263641/Default.aspx

Macdonald said he did it “because I could”. The logic of a psychopath.
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August 3, 2012 7:56am
Viking2

mussings.
So far there has been no mention of drugs in the Mc Donald saga.
The actions kinda smack of “p” use.

Just wondering
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August 3, 2012 7:57am
calendar girl

FES: Thank you for your comprehensive response. Most of it is helpful, other than a bit of bluster and your “innuendo and smear tactics” comment.

Nobody is suggesting that you or Greg manufacture defences, or even that a significant proportion of barristers would do so. I was dealing with generalities that you were issuing rather unguardedly (including “.. can I just point out that defence lawyers don’t make up or go hunting for defences). Even you appear to recognise and acknowledge that renegade barristers can exist (the other side of “… not all, but I cannot vouch for all…”).

The real issue is the very fine line that exists between your description of counsel setting out valid defence options that night be available to a defendant, and any potential for encouragement of the defendant to adopt a novel, contrived or deliberately misleading defence strategy. Both the profession itself and society in general need to be vigilant in guarding against erosion of the established principles involved.
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August 3, 2012 10:12am
F E Smith

and Luc Hansen returns with more support of his favourite Jew-haters/murderers…

1. It wasn’t a gaffe by Romney, it was the truth;
2. Perhaps if the Palestinians stopped firing rockets into Israel there wouldn’t be a need for a blockade; and
3. Any country that celebrates suicide bombing and the murder of Jews in its primary schools has not just a poor culture but a sick culture.
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August 3, 2012 10:45am
F E Smith

calendar girl,

my apologies, the way you worded the comment that I responded to meant that I read it as an attack, not as a question. Sometimes there is a fine line…

But every profession/occupation has the potential for bad apples. Doctors who illegally prescribe drugs, accountants who assist in tax evasion, policemen who commit ‘noble cause corruption, politicians who take bribes. The list of possible forms of corruption is lengthy, but we should be careful tarnishing entire professions because of unproven, or uncommon, possibilities. Sure, some crims are smart enough to manufacture a defence. More difficult in the case of Weatherstone because of the psychiatric interviews that were necessary.

Just don’t make the mistake of thinking that the we think that keeping our clients from being convicted of an offence is worth risking our career over, and any lawyer who assisted in manufacturing a defence, or even obliquely suggested it, is indeed risking their career. So I do not accept that there is a fine line between setting out options and encouraging of the defendant to adopt a novel, contrived or deliberately misleading defence strategy. I say that with full confidence because defence strategies are based upon a series of events that have already taken place. We work with what has already happened and base any defence upon the facts that we have to work with. Short of time travel, it can be very difficult to manufacture evidence in a situation that you come to after the fact. Sometimes well after the fact.

I think your position is unnecessarily cynical, as well as being wrong.
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August 3, 2012 10:59am
kowtow

Palestine was dirt poor and backward when the great enlightened Ottomans ruled it,so can we blame them too?
No of course not ,that doesn’t fit the anti Semitic theme. And post ’48 Arabs ruled the west bank,so whose fault was a lack of development then?

From the 1937 British Royal Commission on Palestine

“It was assumed that the establishment of the National Home (for Jews) would mean a great increase of prosperity for all Palestine. It was an essential part of the Zionist mission to revivify the country,to repair by Jewish labour,skill and capital the damage it had suffered from centuries of neglect. Arabs would benefit therefrom as well as Jews. They would find the country they had known so long as poor and backward rapidly acquiring the material blessings of western civilisation. On that account it was assumed that Arab fears and prejudices would gradually be overcome.”

Note back then they were Arabs,not Palestinians…….Palestinian is a leftist construction.
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August 3, 2012 11:17am
F E Smith

absolutely, kowtow. Also, don’t forget that the West Bank was part of Jordan from 1948 to 1967. The even annexed it, so it should really go to back to Jordan, not the PA.

By the time of the Royal Commission you mention, Jews had been returning to Palestine in increasing numbers for 40 years. They didn’t evict those already resident (although the muslim Ottomans did when they committed genocide against the christian Armenians in 20 years before the commission) but instead legally bought up land that was sold to them by people already resident in the area.

Moreover, the Palestinians rejected the idea of a two state solution, so they really only have themselves to blame. Nobody was actually taking their land. They would still own the land after partition that they had owned before it. The difference is political, not property. Nobody was stealing their land.

The Israelis (Jewish, Arab and Christian) have done a great job of making their country successful. If only the Palestinians would stop trying to kill their neighbours (or each other) and instead focus on moving forward, then they might also succeed.
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August 3, 2012 11:27am

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