Legal Beagle by Graeme Edgeler

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Legal Beagle: Presuming innocence

24 Responses

  • merc,

    Police felt it necessary to publicly state that they had no concerns about the validity of complaint.

    The Police become political pawns with these acts of publicly stated feelings. NZ, correct me if I am wrong has a unique situation in this regard and that of their ability to hire private lawyers for enacting public prosecutions. In the past this has allowed for the question as to impartiality on the part of those who may be chosen for such a service.
    As in the Thomas case the hired prosecuting lawyer had to follow the evidence trail as posited by the Police (the cartridge case for one). We all know the outcome.
    However would a DA situation improve matters? Probably not because the NZ Police have such a history in NZ, I don't see it possible to change it.
    http://www.nzlii.org/nz/other/nzlc/report/R66/R66-4_.html may be apposite, need to read just wanted to get the link in before the PAS statute on comment editing limitations came into force ;-)

    Since Dec 2006 • 2471 posts Report Reply

  • Graeme Edgeler, in reply to merc,

    NZ, correct me if I am wrong has a unique situation in this regard and that of their ability to hire private lawyers for enacting public prosecutions.

    Not unique. The Crown Prosecution Service in the United Kingdom regularly briefs (private) barristers to prosecute cases.

    In New Zealand, each region (I think each High Court district ... checks ... each High Court district + Tauranga) has a Crown Solicitor, who tends to be in private practice, but really, isn't all that different from one who is not. Prosecutors are required to act independently of police, and can amend and/or drop charges even over police objection.

    One problem of the system is that, being in a private firm, it is in the financial interests of the firm to continue with a prosecution, although I don't know that it has been seriously suggested that this influences decisions. The appearance is certainly unfortunate.

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • merc, in reply to Graeme Edgeler,

    Ah thank you, yes I read the Law Commission report in part, a lot has been done since 1999, and in the main the system seems to me to work.
    Perhaps my issue is that one cannot legislate around political interference. The obvious one about it possibly not being in the interest of a private practice to discontinue a prosecution is probably mitigated by the collected experience of these types of practice.
    Swings and roundabouts perhaps.

    Since Dec 2006 • 2471 posts Report Reply

  • WH,

    Your takeaway from the decision not to prosecute is that the Police have infringed Banks’ right to be presumed innocent? I’m not sure that’s a plausible interpretation of what happened here, bearing in mind that the actus reus of the offence was essentially admitted. Which part of the letter to Mallard do you say had this effect?

    The reactions to these different cases has been instructive. As with many things, it has tended to align with the commentator’s political position, or their view of the individual concerned.

    That pose presents your argument as being above the fray, but it confuses the presumption of innocence with the attempt to draw civic meaning from what John Banks did and did not do. It might be different if Banks was a private citizen, acting in a private capacity. John Banks was advising a businessman on how to make anonymous donations to his fringe political party, deliberately circumventing our election laws in the process. The courts said John Edwards did nothing illegal, but that doesn’t make it the end of the conversation.

    Since Nov 2006 • 797 posts Report Reply

  • Graeme Edgeler, in reply to WH,

    John Banks was advising a businessman on how to make anonymous donations to his fringe political party, deliberating circumventing our election laws in the process.

    This was about John Banks' mayoral campaign, not the ACT Party.

    Your takeaway from the decision not to prosecute is that the Police have infringed Banks' right to be presumed innocent?

    No. My takeaway was that the police thought Banks was a lawbreaker, and then that Banks was a lawbreaker, and then what on Earth is Banks doing signing legal documents he hasn't read. You can read my initial view in my earlier post, or on Twitter, where my observation:

    Police seem to be saying "John Banks knew who made some donations declared as anonymous, but simply didn't know he wasn't declaring them".

    got a few RTs.

    And then I realised my view was somewhat at odds with the position I'd taken after Police announced their decision over Bradley Ambrose, where I sympathised with the view they were "smearing" him. The underlying facts were agreed in that situation too: Ambrose recorded conversation, media asked to leave, no-one else heard conversation, gave recording to newspaper etc.

    That pose presents your argument as being above the fray, but it confuses the presumption of innocence with the entirely worthwhile attempt to draw civic meaning from what John Banks did and did not do.

    I think there may be a difference between the public having their view, and media commentators addressing the political aspects of the case, and media organisations sermonising about how appalling MP X's behaviour is, and some official organ of the state coming out and saying: this guy is guilty, but we're not going to charge him. We can make what we like out of the situation, but is is the job of the police to tell us?

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • Gareth Ward,

    From my layman's read, the press release and letter (haven't listened to audio) lay out the factual basis of their investigation. We can infer from that basis that a successful case may have been bought under Section (2) but I think it's a bit much to say the Police are smearing or accusing.
    Asking the Police to limit the factual reporting of their investigations (especially in response to the claimaint) in order to stop inferrence of other possible crimes seems a step to far to me...

    Edit: On the flipside, I often find myself arguing for default name supression until conviction given our media and societies seeming inability to understand presumption of innocence...

    Auckland, NZ • Since Mar 2007 • 1727 posts Report Reply

  • WH,

    I’m sorry if I’m shooting the messenger, it’s good to be reminded of these things in unsympathetic cases.

    I wonder whether the known facts and narrow grounds of defence make it hard for the Police to discuss the case without casting Banks in a bad light. It’s an odd situation in that although Banks knew that he had received donations from Dotcom, and solicited them in “anonymous” form, he is pleading ignorance of the corresponding inaccuracies in his return, which he signed. It’s telling that everyone agrees the law should be amended to ensure that what Banks did is illegal going forward.

    Since Nov 2006 • 797 posts Report Reply

  • Graeme Edgeler, in reply to WH,

    It’s telling that everyone agrees the law should be amended to ensure that what Banks did is illegal going forward.

    I believe everyone is also in agreement that the law should be changed so that what Len Brown did is also illegal in the future.

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • Matthew Poole,

    One difference I see between this and Cuppa-gate is that a key issue in the latter was whether the conversation that Ambrose recorded was, in the legal sense, private. There’s pretty much no question there that Banks knew he’d got this money from these people, the issue is only that he says he didn’t know they’d been recorded as anonymous when he signed a return prepared by someone else.

    The private-or-otherwise nature of the Key-Banks conversation was what would’ve made or broken a prosecution. Ambrose recorded the conversation, and that wasn’t debated. Key and Banks didn’t know the conversation was being recorded, and that wasn’t debated. But the two other parts of an illegal act – a private conversation, and mens rea by Ambrose – were very much in doubt. By announcing to the world that they believed Ambrose was a criminal, the Police reached conclusions about matters that were not in their purview: the privacy of the conversation, and Ambrose’s intent. Indeed, they reached conclusions that directly countered Ambrose’s public statements, whereas I’m pretty sure that deciding someone is lying is the job of a court not the Police.

    Conversely, the Police have been absolutely clear that they are sure Banks knew who had donated the money based on evidence. They are also clear that the statutory limitation is what stopped them bringing s134(2) prosecutions, while it was only ambiguity about Banks’ knowledge that stopped them bringing s134(1) prosecutions. Ambrose got no such benefit-of-the-doubt over his intent or knowledge, despite his consistent protestations of innocence.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Matthew Poole, in reply to Graeme Edgeler,

    I believe everyone is also in agreement that the law should be changed so that what Len Brown did is also illegal in the future.

    ???
    What'd I miss about Len's conduct?

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Sacha, in reply to Matthew Poole,

    By announcing to the world that they believed Ambrose was a criminal, the Police reached conclusions about matters that were not in their purview

    Certainly did. Not their job to judge a case - and I support any changes to fix what seems to be a slide in that direction.

    Ak • Since May 2008 • 19719 posts Report Reply

  • Sacha, in reply to Matthew Poole,

    Len's conduct

    Used anonymising Trusts as used to be allowed for central govt elections.

    Ak • Since May 2008 • 19719 posts Report Reply

  • Angus Robertson,

    There are other high profile examples. Following their investigation into Darren Hughes Police announced that "After this careful consideration, the allegations do not reach the evidential threshold required to bring charges. As a result, no charges will be brought against Mr Hughes." Nothing particularly concerning about this, but following a public statement released by Mr Hughes that he had been "falsely accused", Police felt it necessary to publicly state that they had no concerns about the validity of complaint.

    Hardly the same. Attempting to pervert the course of justice is a criminal offence and Darren Hughes stated that he was a victim of being "falsely accused". The police had to comment as to why they were not prosecuting this crime.

    And like, John Banks, and Bradley Ambrose, Hughes is placed in a position where the sole official conclusion is the untested one of Police detective.

    Perhaps Darren Hughes can bring a private prosecution and gain a suitable official conclusion instead of a police opinion. Might not happen.

    Auckland • Since May 2007 • 984 posts Report Reply

  • Peter Green,

    I suspect our reactions might be coloured by whether or not the police got it right. With Bradley Ambrose it looked like they were smearing an innocent man, whereas Banks is quite obviously guilty, so it's a bit harder to feel any sympathy for him.

    Dunedin • Since Nov 2011 • 21 posts Report Reply

  • Graeme Edgeler, in reply to Peter Green,

    I suspect our reactions might be coloured by whether or not the police got it right.

    That's my suspicion too. Then I asked myself whether my different reactions to the two cases was actually justified, given the role of the police, the fact they make mistakes, and the fact neither man will really get to defend himself. Then I wrote my blog post :-)

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • Steve Barnes,

    Shame that Ambrose didn't record Banks chatting about that donation deal with our esteemed PM. Oh, wait, perhaps he did. We will never know, the recording quality was awful.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • Euan Mason,

    "Well, the Police are not charging Mr Banks. He will never be given the opportunity to argue his case. This is, in effect, a smear Mr Banks will never have the opportunity to defend in court."

    It would be nice if we had a mechanism where in such circumstances someone could defend the charge without fear of formal punishment. I doubt Banks would dare go down such a route, but Ambrose probably would have preferred this option.

    Canterbury • Since Jul 2008 • 259 posts Report Reply

  • Phil fryer,

    If ya trying to make me/us feel sorry poor old JB can't defend himself, yea right,
    perhaps Operation 7, & Dotcom,where NZ Police where lead by the nose into trouble,
    has made them feel they need to "justify their actions, instead of the odium of serving officers, & the public, to "make" politicans,make appropiate laws ! ???????????
    some say I'm just to cynical but !

    Laingholm • Since Mar 2011 • 34 posts Report Reply

  • DexterX,

    Heard a sound bite today from Dishonest John banks - the gist of it all was that his innocence had been proven, that there was no wrongdoing on his part and he had been exonerated.

    Exxonerated in the sense of the Exxon Valdez traveling through Prince William Sound.

    Banks also said of Kim Dot Com, “He stole my Rap”. Banks is looking to sue Kim Dot Come for copyright infringement in the song “Amnesia”,

    Banks acknowledged that getting away with dishonesty had both short-term and long-term consequences – namely he was happy to still be the Member for Epsom and Minister of Small Business, and that long term he really wanted to be the Minister for Big Business.

    Banks considered the further destruction to the “existence value” of the electoral process, the value to the public of having faith in a clear and accountable electoral process, was priceless. Banks when questioned about matters further said, “Who cares if I am innocent or guilty, I got away with it and that is what counts”.

    When explaining his strange laughter on the Paul; Homes interview earlier in the year Banks said, “What do you expect? My phone is well packed away and always on vibrate, Woof Woof.”.

    Auckland • Since Nov 2006 • 1224 posts Report Reply

  • WH,

    Should readers be concerned that the Police have breached John Banks’ human rights? Or should they just be concerned about the direction of the trend?

    I think it’s accepted that Police should emphasise the preliminary nature of their conclusions when commenting on investigations. On the other hand, making an arrest and laying charges – being a legal assertion that there are reasonable grounds to convict – also communicates the Police view that the accused is guilty of the crime they are charged with. As does the presentation of evidence in Court. It’s a bit unreal to say that the pre-trial press conference is a violation of the right to be presumed innocent but that the rest of the judicial process is not.

    Assuming it was accepted here, I don’t see how you can extend the de Broglie reasoning to Banks, where the Police explicitly stated that there was insufficient evidence to proceed and declined to lay charges. There’s no presumption of innocence necessary in such a case – it’s basically an actual police finding. Having listened to the radio interview and read the letter, I’m not sure what you’d have the Police tell the public about their decision in these sorts of cases.

    There is a real cosmic unfairness to being wrongly accused, but the effect is suffused throughout the ordeal, and can’t always be described as a breach of the right to be presumed innocent.

    Since Nov 2006 • 797 posts Report Reply

  • Sacha, in reply to DexterX,

    Heard a sound bite today from Dishonest John banks - the gist of it all was that his innocence had been proven, that there was no wrongdoing on his part and he had been exonerated.

    I just want to emphasise that this part is totally true, lest innocent readers believe it's satirical. The man is seriously proclaiming that the Police have 'cleared' him. Another downside of them behaving like a judge and jury.

    Ak • Since May 2008 • 19719 posts Report Reply

  • merc, in reply to Sacha,

    The man is seriously proclaiming that the Police have 'cleared' him. Another downside of them (the Police) behaving like a judge and jury.

    It's a Police political feature not a bug.

    Since Dec 2006 • 2471 posts Report Reply

  • Steve Barnes,

    John Banks is the kind of guy who will adhere to the letter of the law while ignoring the spirit. He has been ignoring "The Spirit" for many years...

    Archie Banks was a notorious career criminal and Banks' mother Kitty was an alcoholic (Mayor Banks does not drink) and they were both jailed while he was attending Avondale College (after failing to get in to Auckland Grammar for being a "drongo". Banks is a strange mix of boasting and self-deprecation.)

    And as Ernest Hemingway said...

    "I can't trust a man who doesn't drink, because a man who doesn't drink doesn't trust himself."

    which was later beautifully paraphrased by James Arthur Crumley as...

    Son, never trust a man who doesn’t drink because he’s probably a self-righteous sort, a man who thinks he knows right from wrong all the time. Some of them are good men, but in the name of goodness, they cause most of the suffering in the world. They’re the judges, the meddlers. And, son, never trust a man who drinks but refuses to get drunk. They’re usually afraid of something deep down inside, either that they’re a coward or a fool or mean and violent. You can’t trust a man who’s afraid of himself. But sometimes, son, you can trust a man who occasionally kneels before a toilet. The chances are that he is learning something about humility and his natural human foolishness, about how to survive himself. It’s damned hard for a man to take himself too seriously when he’s heaving his guts into a dirty toilet bowl.

    Just goes ta show ya eh?.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • DexterX, in reply to Steve Barnes,

    John Banks is the kind of guy who will adhere to the letter of the law while ignoring the spirit.

    Banks doesn't have a problem with the law, neither does Brash, and Key doesn't have a problem with people who don't have a problem with the law.

    Banks has been around a long while he knows how things work and how to milk it to the max - same for Brash and Key.

    The electoral return bullshit isn't the first time Banks has escaped a prosecution for putting his signature on something that was false.

    Banks and Brash escaped having to defend themselves in court for signing a prospectuses for the Huljich KiwiSaver scheme, the prospectus contained false and misleading statements and Peter Huljich pleaded guilty to the charges bought against him, though Banks and Brash who as Directors also signed the prospectus had no charges bought against them.

    http://www.stuff.co.nz/business/6555638/Petition-stalks-Banks-Brash

    Mum and Dad investors are expected to trust the NZ Govt – a bunch of Asshats hell bent on Assets Sales regardless of the fact it makes no fiscal or economic sense.

    Look at how the Nats took over Act, then dumped Brash for Banks and we have the whole Teapot Tape saga.

    The behaviour of Key, Banks and Brash is consistently foul and highly cynical towards the electorate (populace) as a whole and even towards the people that voted for them – their behaviour is to my mind inherently dishonest even for politicians.

    Look at Sky City, The Dot Com Saga, MFAT, Education – the list goes on and on – not only are they to my mind dirty dealers – they are incompetent and think they are more than they really are or ever could be.

    I would not be surprised if Key and Banks shared the same bath water.

    Auckland • Since Nov 2006 • 1224 posts Report Reply

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