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Speaker: Not quite everything you ever wanted to know about bail

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  • Rich of Observationz,

    The Urewera activists will apparently have to wait at least two years before there is a trial. Really, denying bail in this case amounts to internment. If the police case collapses completely in court they'll still have kept people in jail for two years - and they can then throw them back in jail on some alternate charges.

    They haven't even been charged with anything more substantial than Arms Act violations. You'll note that there has never been any question of not granting bail when "mainstream" gun nuts get charged with such offences.
    http://www.nzherald.co.nz/topic/story.cfm?c_id=240&objectid=10120194

    It's also interesting that none of the accused have been charged with offences such as conspiracy to murder, which doesn't require the consent of the Attorney General. Surely if they is actually evidence that they were planning to blow up buildings or shoot Bush that would be an appropriate charge?

    Back in Wellington • Since Nov 2006 • 4411 posts Report Reply

  • Stephen Judd,

    Yes. that is my biggest concern.

    Graeme, you're doing the body politic sterling service. Thank you very much.

    Wellington • Since Nov 2006 • 2932 posts Report Reply

  • steven crawford,

    Peter Williams, QC is on the case. The general over use of the remand in custody option might get a good public airing as an optimistic outcome to this tragic affair.

    Since Nov 2006 • 2562 posts Report Reply

  • 3410,

    Graeme,
    Could you enlighten us a little bit about the suppression of bail hearing information. How unusual is it? What grounds for it? etc. Thanks for another good article.

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Raymond A Francis,

    An excellent distilation of the bail laws Graeme
    As someone who occasionaly has to apply them you have captured the flavour exactly
    When it comes to supression it is easier to keep Pandora's box closed because quite simply once opened it is too late to do anything
    Hence the conservative approach to suppession

    45' South • Since Nov 2006 • 531 posts Report Reply

  • Graeme Edgeler,

    Could you enlighten us a little bit about the suppression of bail hearing information. How unusual is it? What grounds for it?

    As you'll appreciate, many (most?) of the suppression orders are being made at the request of the defendants. Certainly, the suppression is being made for the benefit of the defendants. There can be a bunch of different reasons for suppression, my guess is that in this case, the rationale will be something like this:

    The defendants are charged with offences against the Arms Act, but in opposing bail the police have also presented some of the evidence they may use for a prosecution under the Terrorism Suppression Act. This is proper, there is a process the police have to follow to lay charges under the TSA and it has a week or so to run - if police have serious evidence that those involved are terrorists it's potentially relevant to whether there is a risk to the community.

    However, much of the evidence that points to the defendants being terrorists is inadmissible in a trial on the Arms Act charges.*

    If the evidence that points to terrorism is made public, then it may be incredibly difficult for the defendants to get a fair trial on the Arms Act charges. This is a particular concern if the Solicitor-General refuses permission to lay the terrorism charges - all the defendants would face are Arms Act charges, but everyone in the country would know all about this evidence that suggests these people are terrorists.

    Any potential jury will have this knowledge and might be more likely to convict them on the Arms Act charges - not because they think there's a breach of the Arms Act, but because the people are "terrorists". This would be wrong, and incredibly unfair to the defendants.

    *The evidence will be inadmissible for a couple of reasons:

    **1)** that someone is potentially a terrorist doesn't help show they've breached the Arms Act - even terrorists can have lawful weapons;

    2) any evidence obtained through an interception warrant (e.g. phonecalls, text messages, etc.) can't be used to prove breaches of the Arms Act - the police are not allowed to get interception warrants for Arms Act offences.

    Wellington, New Zealand • Since Nov 2006 • 2990 posts Report Reply

  • 3410,

    As you'll appreciate, many (most?) of the suppression orders are being made at the request of the defendants.

    I wasn't, actually. It makes a bit more sense now. Thanks for the comments.

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Terence Wood,

    What Stephen and Rich said: Thanks Graeme; and two years seems like an awfully long time to detain people we presume to be guilty*.

    _______________________________________________
    *Or, more accurately, our justice system presumes to be guilty.

    Since Nov 2006 • 148 posts Report Reply

  • Russell Brown,

    What Stephen and Rich said: Thanks Graeme; and two years seems like an awfully long time to detain people we presume to be guilty*

    It does. But as I noted in another thread, Iti and his nephew were on Friday granted leave to apply for home detention, which seems a reasonable compromise.

    Auckland • Since Nov 2006 • 18656 posts Report Reply

  • Michael Fitzgerald,

    Graeme is this evidence?
    I thought this kind of thing doesn't get to court.

    "John Minto's characterisation of the bugged evidence against those who won't be facing TSA charges as "something you'd hear at any gun club" may well be seen as very charitable indeed."

    And therefore will/shud it ever see the light of day?

    Since May 2007 • 631 posts Report Reply

  • Margaret B,

    Thanks for this Graeme, it is very useful indeed.

    I do have a further question, what might happen if they aren't bailed and continue in custody for a significant period of time and the police cases fall apart when tested in court? I don't just mean found not guilty, reasonable doubt and all that, but actually thrown out by a judge, or the police drop charges before trial. Would those remanded in custody be able to argue for compensation?

    Since Oct 2007 • 59 posts Report Reply

  • Rich of Observationz,

    home detention, which seems a reasonable compromise.

    Hang on, if Tama Iti's really a cross between Osama Bin Laden and Martin McGuinness, is an electronic tag really going to stop him heading off on a terrorist rampage? The fact of his being granted home detention suggests that they don't really believe he's up to anything worse than a bit more political theatre.

    Back in Wellington • Since Nov 2006 • 4411 posts Report Reply

  • Kyle Matthews,

    Hang on, if Tama Iti's really a cross between Osama Bin Laden and Martin McGuinness, is an electronic tag really going to stop him heading off on a terrorist rampage?

    As I understand home detention, the bracelets set of a communicated alarm once you get a certain distance from the home. 100 metres or something.

    So once he headed off to go on his terrorist rampage, it would go off, the police would probably pop around to check on him. Once they couldn't find him, they'd start looking for him, and if they learnt that he was off on a terrorist rampage, it'd ramp up real quick.

    I think he'd only be halfway to Wellington or wherever he was off to rampage, before the AOS would be all over it.

    If he did a David Gray, and went on rampage around his local community, then yes, home detention would be next to useless. I presume that's something that judge would take into account however.

    Since Nov 2006 • 6157 posts Report Reply

  • Terence Wood,

    Russell,

    I was unaware of that. I certainly hope that the same offer is made to the other detainees. Nevertheless, home detention is still detention of sorts and it doesn't really change the fact that those we presume to be innocent may have to live their lives under severe restriction for two years. My own preferred solution would be for us to fore-go tax cuts at the next election* and spend some money on our court system so that there isn't a two year wait for jury trials. To do anything else seems incompatible with the system of justice we profess to maintain.

    I'm saying this not just because it seems unfair on the current batch of prisoners but also everyone else who goes through our court system.


    *Warning pet cause.

    Since Nov 2006 • 148 posts Report Reply

  • kowhai montgomery,

    My own preferred solution would be for us to fore-go tax cuts at the next election* and spend some money on our court system so that there isn't a two year wait for jury trials.

    Yes please.

    To do anything else seems incompatible with the system of justice we profess to maintain.

    Yes.

    wellington • Since Nov 2006 • 485 posts Report Reply

  • Kyle Matthews,

    I'm sure spending money on the court system would speed up cases, but it's not a magic bullet.

    It's not just judges and availability of courts and their staff that cause things to slow down. Prosecution and defence want time to collect evidence, witnesses need to be spoken to. The wheels of justice turn slowly for many reasons.

    Since Nov 2006 • 6157 posts Report Reply

  • kowhai montgomery,

    It's not just judges and availability of courts and their staff that cause things to slow down. Prosecution and defence want time to collect evidence, witnesses need to be spoken to. The wheels of justice turn slowly for many reasons.

    Really? I mean really? I don't profess to be any kind of expert so I genuinely would like someone to explain how it could take 2 years for this to get to trial. My understanding is that people had been under surveillance for a year or more. How can it take an additional two years for people to stand trial?

    wellington • Since Nov 2006 • 485 posts Report Reply

  • Terence Wood,

    I guess the one constraint might be getting jurors. nevertheless I'm not convinced that we couldn't overcome this if we really wanted to.

    Since Nov 2006 • 148 posts Report Reply

  • Kyle Matthews,

    Actually I think jurors is the fast part of the process. There's very little contestation in the NZ jury system, so I think jury selection even for large trials only takes an hour or so.

    My understanding is that people had been under surveillance for a year or more. How can it take an additional two years for people to stand trial?

    Well that's fine for the prosecution, though I'm sure they'll still take a fair while. The defense might want a fair whack at collecting their own evidence though, they only found out about this a couple of weeks ago.

    Also, I might be wrong, but the 'two years' is something that people have just been throwing around. I'm not sure if it's come from anyone in the industry. Murder trials typically take a year to get to trial don't they? For them more of the evidence is collected before the arrest, here some of the evidence is probably being collected at the same time as the arrest. I'd guess mid- to late- next year for any trials to occur for these.

    Since Nov 2006 • 6157 posts Report Reply

  • Russell Brown,

    I'd guess mid- to late- next year for any trials to occur for these.

    It's going to be an interesting election campaign ...

    Auckland • Since Nov 2006 • 18656 posts Report Reply

  • Rich of Observationz,

    Graeme: what are the constraints on the police investigation of a case after charges have been laid (and where are these codified)?

    Can they interview the accused? Can they add to the charges?

    Back in Wellington • Since Nov 2006 • 4411 posts Report Reply

  • Graeme Edgeler,

    Graeme is this evidence?
    I thought this kind of thing doesn't get to court.

    "John Minto's characterisation of the bugged evidence against those who won't be facing TSA charges as "something you'd hear at any gun club" may well be seen as very charitable indeed."

    Well, yes, statements intercepted under an interception warrant are evidence. The utility of any particular recorded statement, and exactly what it proves obviously depends on what it contains - it might be so irrelevant that a judge won't let you waste the court's time with it. I wouldn't want to comment on the strength or otherwise of the case against bail without much more information.

    Section 20 of the Bail Act does allow for the full rules of evidence to be ignored somewhat - the court is entitled to rely on forms of information that wouldn't be permitted during a trial. For example, written statements (even if they haven't be sworn) or a letter from a victim or someone who knows the accused are admissible, where in a trial you'd want either a sworn affidavit or oral evidence in its place.

    Wellington, New Zealand • Since Nov 2006 • 2990 posts Report Reply

  • Graeme Edgeler,

    what might happen if they aren't bailed and continue in custody for a significant period of time and the police cases fall apart when tested in court? ... Would those remanded in custody be able to argue for compensation?

    They could try, but their prospects of success would be negligible unless they could prove some sort of police misconduct. If there really is very little evidence, and the courts begin to realise this through the case process, then bail at some later point does of course become more likely.

    Wellington, New Zealand • Since Nov 2006 • 2990 posts Report Reply

  • Graeme Edgeler,

    what are the constraints on the police investigation of a case after charges have been laid (and where are these codified)?

    Can they interview the accused? Can they add to the charges?

    This isn't actually something I've come across, so don't quote me on this. There's certainly no rule against continuing to investigate ('though they'll have to keep disclosing what they come up with to the other side), but I don't believe they can (except perhaps in exceptional circumstances) interview the accused. I'm not 100% sure where this comes from. I don't believe it's a statute, and is probably a case I can't remember the name of (and don't currently have the ability to look up).

    The standard rule is that evidence that is "unfairly obtained" is inadmissible - I suspect that evidence obtained from a statement made under questioning by police after charges have been laid is considered unfair. Some time ago, judges made a list of "Judges' Rules" to cover police interviews, explaining how they could be conducted fairly.

    The UK rules specifically prohibit post-charge interviews. Our equivalent (which used to be called Judges' Rules, but are now known as the Practice Note on Police Questioning - available here as a pdf) do not have an express prohibition on post-charge interviews, but the way they are structured certainly suggests that post-charge interviews aren't contemplated. It includes rules like:

    Questions of a person in custody or in respect of whom there is sufficient evidence to lay a charge must not amount to cross-examination.

    Police can definitely lay additional charges later, and can potentially interview suspects in relation to those additional charges, they would be careful not to ask questions on the original charges, and probably couldn't use any statement made relating to the original charge.

    Wellington, New Zealand • Since Nov 2006 • 2990 posts Report Reply

  • Graeme Edgeler,

    Actually I think jurors is the fast part of the process. There's very little contestation in the NZ jury system, so I think jury selection even for large trials only takes an hour or so.

    If the defendants are tried together, which I suspect is the police intention, then jury selection could take quite a while. Each defendant will be entitled to object to 6 jurors, and the prosecution will be able to object to 12. You could have 60 or 70 challenges.

    That said, you're right that lack of jurors isn't the problem, lack of judges/court space are a problem, particularly in the High Court, with P dealing/manufacturing "clogging" the system. There are suggestions that some P (or other drug dealing) trials could be dealt with in the district courts, which I suspect cannot happen fat enough for our High Court judges (P trials have to be heard in the High Court at the moment because dealing with class A drugs carries a maximum life sentence).

    I doubt our defendants need even as much as six months to gather evidence to prepare their case.

    Wellington, New Zealand • Since Nov 2006 • 2990 posts Report Reply

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