Legal Beagle by Graeme Edgeler

Read Post

Legal Beagle: Urewerrors

21 Responses

  • Graeme Edgeler,

    And open to comments.

    Wellington, New Zealand • Since Nov 2006 • 2999 posts Report Reply

  • Sacha,

    whether that view was open to him given the findings of the jury

    Are there other NZ examples you can describe for us where the jury's verdict and the judge's sentencing were based on totally opposing core conclusions drawn from the same trial evidence and case law?

    Ak • Since May 2008 • 16614 posts Report Reply

  • Keir Leslie,

    Of course Hansen would say that his sentencing was based on entirely compatible theories. (I say of course because it is a pretty fundamental principle that you can't sentence contrary to the jury's verdict.) He discusses this at para 43 of his sentencing notes.

    (Depressingly, if you want to learn more about sentencing in New Zealand, Hall's Sentencing is, as the title suggests, pretty authoritative, and covers this stuff well if soul-destroyingly. In particular, see Appendix 3 especially (a) and .5, as well as the commentary to s 24. R v Smee (1985) 19 A Crim R 261, 262 is quoted at 3.5(b):

    Courts must be careful not to step over the fine line that distinguishes relevant background circumstances such as the character of the accused, the ‘real relationship between the complainant and the accused’ (R v Cooksley [1982] Qd R 405 at 417), the fact that the crime was part of a system followed by the accused (R v Singh (1981) 3 Cr App R (S) 90), or the rebuttal of the suggestion that it was an isolated instance unlikely to be repeated … from punishing the accused for offences of which he has not been convicted, or from taking into account circumstances that are too remote from the facts that constitute the offence. However the limiting of attention to the facts that comprise the bare elements of the offence is obviously too narrow an approach.

    Which is probably a good thing to keep in mind when reading Hansen's notes.)

    Since Jul 2008 • 1339 posts Report Reply

  • Graeme Edgeler, in reply to Sacha,

    Are there other NZ examples you can describe for us where the jury's verdict and the judge's sentencing were based on totally opposing core conclusions drawn from the same trial evidence and case law?

    They're not based on totally opposing core conclusions. It is not completely inconsistent with the non-conclusion on the criminal group charge. That their intention was not found to be to form a group intent on committing serious violent crimes may, but may not, mean they were still intent on forming a private militia.

    And the case I immediately think of is the musician smacking case. He was charged with one count of assault alleging two different things: a smack and a punch (or slap to the head or something worse). His conviction (or sentence?) was ultimately overturned because the jury's decision of guilt didn't (and couldn't) tell the judge enough to distinguish between which of the two (or both) happened. And the judge in sentencing decided both did. Which the Supreme Court thought was unfair.

    Wellington, New Zealand • Since Nov 2006 • 2999 posts Report Reply

  • Rich of Observationz,

    The allegations that the accused were setting up a private militia are not unproved

    But is such an act illegal? I don't believe it is - the jury didn't believe that they'd gone the further step to a criminal organisation. While society might mostly disapprove of people starting such private militia, if there isn't a law that proscribes them, then they're a lawful activity.

    And if a private militia isn't illegal, why isn't training one a 'lawful purpose' under the Arms Act on the basis that anything not proscribed is allowed?

    Back in Wellington • Since Nov 2006 • 4444 posts Report Reply

  • Stewart,

    Any chance that the police will be called to face charges on their own illegal acts? They seem to be above the law...

    Te Ika A Maui - Waitakere… • Since Oct 2008 • 572 posts Report Reply

  • Graeme Edgeler, in reply to Stewart,

    Any chance that the police will be called to face charges on their own illegal acts? They seem to be above the law...

    I should be clear that it isn't suggested that the police behaved criminally in conducting the video surveillance. Rather, they committed the tort of trespass.

    There is a report of the Independent Police Conduct Authority I understand to currently be in draft form.

    Wellington, New Zealand • Since Nov 2006 • 2999 posts Report Reply

  • Sacha, in reply to Graeme Edgeler,

    the non-conclusion on the criminal group charge

    as a layperson, is this another instance of 'not guilty does not mean innocent' then?

    Ak • Since May 2008 • 16614 posts Report Reply

  • Lucy,

    I have a couple of questions:

    Firstly, what is the purpose of pre-sentencing reports carried out by Probations? What amount of consideration does the court give them? It is my understanding that in this case the pre-sentencing reports recommended community service for most accused and dismissal or discharge for Emily Bailey. Is it usual for a sentence to be so far from what was recommended and does it matter (on a legal, not ethical, basis)?

    Secondly, I second Rich's question above. Is it illegal to establish a private militia?

    Since Jun 2012 • 2 posts Report Reply

  • merc, in reply to Lucy,

    Is it usual for a sentence to be so far from what was recommended and does it matter (on a legal, not ethical, basis)?

    It matters a great deal and it's weight is as effective as it's recommendation's acceptance - should the State not be pursuing an obvious vendetta.

    Since Dec 2006 • 2471 posts Report Reply

  • Graeme Edgeler, in reply to Lucy,

    Is it usual for a sentence to be so far from what was recommended and does it matter (on a legal, not ethical, basis)?

    Not usual, but not uncommon. And do we really want sentences decided by relatively low-level employees of the Department of Corrections?

    Secondly, I second Rich’s question above. Is it illegal to establish a private militia?

    Just a militia? I can't think of a law that would prohibit it. A militia with certain intentions or purposes, perhaps.

    Wellington, New Zealand • Since Nov 2006 • 2999 posts Report Reply

  • Angus Robertson, in reply to Rich of Observationz,

    And if a private militia isn't illegal, why isn't training one a 'lawful purpose' under the Arms Act on the basis that anything not proscribed is allowed?

    Training to kill people might be construed as potentially threatening.

    Auckland • Since May 2007 • 984 posts Report Reply

  • Ian Dalziel, in reply to Graeme Edgeler,

    Just a militia?
    I can’t think of a law that would prohibit it.

    Team Tame may have just been a
    nascent backwater Blackwater...

    Christchurch • Since Dec 2006 • 4860 posts Report Reply

  • Andrew Geddis,

    "The two judges who dissented in the Supreme Court only did so on the question of whether the evidence should be admitted despite the illegality"

    And then one would have thrown ALL the evidence out for EVERYONE (rather than allowed in the evidence for the four charged "seriously").

    Dunedin • Since Nov 2007 • 125 posts Report Reply

  • merc, in reply to Graeme Edgeler,

    Not usual, but not uncommon. And do we really want sentences decided by relatively low-level employees of the Department of Corrections?

    No, and that is not currently, nor has ever been the case.

    Since Dec 2006 • 2471 posts Report Reply

  • Lucy, in reply to Graeme Edgeler,

    I need some clarification on the private militia issue. I am unclear as to the intent aspect. Judge Hansen says that they had good intentions in his sentencing notes but says they commited criminal acts in furthering these intentions - as I recall, although I haven't time to check. If he is refering to 'serious violent offences' as the criminal acts, how is a militia different from an organised criminal group? And if the criminal acts are the arms act offences, then is it these convictions which make the militia illegal? I'm trying to figure out whether they were sentenced on the charge they were not found guilty on (rather than found not guilty) or if intention, in relation to the arms charges, comes under another part of the law. Is it in the Arms Act? I haven't been able to find it.

    I hope my questions make sense. I'm trying to do about 15 things at the same time.

    Thanks!

    Since Jun 2012 • 2 posts Report Reply

  • Just thinking,

    This was simply the madness of Howard Broad, & the ever growing ego of Tama Iti.

    Howie had to use it (Terrorism Suppression Act) or lose it. That he's a fantasist (see Satanic Christchurch Creche) was an unfortunate coincident.

    Looking back on the video that made it to light.
    It was all about close protection for Tama Iti. This wasn't an offensive excercise but an ego driven defensive one.

    As to the legal status of militia - there are a few around
    http://frontiersmen.homestead.com/Conference2000.html

    Putaringamotu • Since Apr 2009 • 1147 posts Report Reply

  • Graeme Edgeler, in reply to Just thinking,

    Howie had to use it (Terrorism Suppression Act) or lose it.

    He didn't use it. There's nothing in it for police to use.

    Wellington, New Zealand • Since Nov 2006 • 2999 posts Report Reply

  • Just thinking,

    Nothing new whatsoever.

    I respectfully disagree.
    It would be correct in some circles to claim Vietnam was a Police Action not a War, because no formal declaration of war was issued and we were invited to that smoke show.
    So too the absurdity of considering this 'Police' action within existing parameters the Police use else where.
    The show of force(s) was war-like and akin to our Peace-Keeping efforts in Timor Leste with all the compromises of human rights that entails.
    Broad actions speak louder than words.

    Putaringamotu • Since Apr 2009 • 1147 posts Report Reply

  • Steve Barnes,

    Urewera pair to serve time at home

    Signer was found guilty of five firearms charges and not guilty of five. Bailey was found guilty of six firearms charges and not guilty of four.

    The other members of the quartet, Tame Iti and Te Rangikaiwhiria Kemara, were each sentenced to two and half years in prison after being found guilty of six firearms charges and not guilty of four.

    Brings a whole new meaning to "Whitey Go Home"

    The wireless north ;-) • Since Dec 2006 • 4802 posts Report Reply

  • Joe Wylie, in reply to Steve Barnes,

    Brings a whole new meaning to "Whitey Go Home"

    ++++++!!!!!!!

    flat earth • Since Jan 2007 • 3456 posts Report Reply

Post your response…

Please sign in using your Public Address credentials…

Login

You may also create an account or retrieve your password.