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  Reply # 1643501 30-Sep-2016 20:11
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MikeB4:

 

Hands up those who were present throughout the hearing, heard in person the Judges decision and any reports he received.

 

I am happy to wait the outcome of the appeal and leave it there.

 

 

That's all very well and good -- in theory. And I normally would vigorously defend judicial decisions against uninformed criticisms. But uninformed criticisms aside, the reasoning process that is apparent from the written judicial decision itself indicated that the judge got the basic test wrong IMO. And ultimately this kind of thing is only a matter of opinion -- just because one High Court judge later on might uphold or reverse the decision, it doesn't necessarily mean that his/her reasoning is 100% correct either. Ultimately all people can do is that by virtue of a legitimate, legislatively determined process, the High Court will make a final ruling.

 

But it's silly to pretend that people with a proper understanding of legislative provisions and legal reasoning cannot or will not examine the original decision to test out its premises. As a lawyer I cannot see how paragraph [16] of Judge Davidson can pass for a proper analysis of the third limb of the test required under ss 106 and 107 of the Sentencing Act, which together govern the granting of discharges without conviction. And the strong, absolute assertion by the judge that convictions would destroy the thug's rugby career is of itself highly questionable.

 

 


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  Reply # 1643502 30-Sep-2016 20:18
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dejadeadnz:

 

MikeB4:

 

Hands up those who were present throughout the hearing, heard in person the Judges decision and any reports he received.

 

I am happy to wait the outcome of the appeal and leave it there.

 

 

That's all very well and good -- in theory. And I normally would vigorously defend judicial decisions against uninformed criticisms. But uninformed criticisms aside, the reasoning process that is apparent from the written judicial decision itself indicated that the judge got the basic test wrong IMO. And ultimately this kind of thing is only a matter of opinion -- just because one High Court judge later on might uphold or reverse the decision, it doesn't necessarily mean that his/her reasoning is 100% correct either. Ultimately all people can do is that by virtue of a legitimate, legislatively determined process, the High Court will make a final ruling.

 

But it's silly to pretend that people with a proper understanding of legislative provisions and legal reasoning cannot or will not examine the original decision to test out its premises. As a lawyer I cannot see how paragraph [16] of Judge Davidson can pass for a proper analysis of the third limb of the test required under ss 106 and 107 of the Sentencing Act, which together govern the granting of discharges without conviction. And the strong, absolute assertion by the judge that convictions would destroy the thug's rugby career is of itself highly questionable.

 

 

 

 

Thats what bothers me. A conviction won't destroy his career. He can play, he can travel. If he was given big hours of community service, thats a penalty, and as you suggested home detention, then its done. He can move on then. Justice has been served and thats all that anyone wants.


 
 
 
 


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  Reply # 1643504 30-Sep-2016 20:26
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dejadeadnz:

MikeB4:


Hands up those who were present throughout the hearing, heard in person the Judges decision and any reports he received.


I am happy to wait the outcome of the appeal and leave it there.



That's all very well and good -- in theory. And I normally would vigorously defend judicial decisions against uninformed criticisms. But uninformed criticisms aside, the reasoning process that is apparent from the written judicial decision itself indicated that the judge got the basic test wrong IMO. And ultimately this kind of thing is only a matter of opinion -- just because one High Court judge later on might uphold or reverse the decision, it doesn't necessarily mean that his/her reasoning is 100% correct either. Ultimately all people can do is that by virtue of a legitimate, legislatively determined process, the High Court will make a final ruling.


But it's silly to pretend that people with a proper understanding of legislative provisions and legal reasoning cannot or will not examine the original decision to test out its premises. As a lawyer I cannot see how paragraph [16] of Judge Davidson can pass for a proper analysis of the third limb of the test required under ss 106 and 107 of the Sentencing Act, which together govern the granting of discharges without conviction. And the strong, absolute assertion by the judge that convictions would destroy the thug's rugby career is of itself highly questionable.


 



As a professional you clearly have read the judgement etc and in an informed position to comment. I read an hear opinions etc here and other places from folks that have not.

I have not. Read the judgement and that is why my only comment basically is to wait the outcome of the appeal.




Mike
Retired IT Manager. 
The views stated in my posts are my personal views and not that of any other organisation.

 

Using empathy takes no energy and can gain so much. Try it.

 

 


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  Reply # 1643506 30-Sep-2016 20:32
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tdgeek:

 

 

 

Thats what bothers me. A conviction won't destroy his career. He can play, he can travel. If he was given big hours of community service, thats a penalty, and as you suggested home detention, then its done. He can move on then. Justice has been served and thats all that anyone wants.

 

 

I am quite prepared to grant that he will find it harder to get into some countries with convictions. But this isn't something that a pattern of authentic rehabilitation and law-abiding existence cannot militate. He will just have to get some character references and apply for a waiver from the usual "good character" requirements. Like I said in my previous post on page 5, it isn't necessary for a defendant to show conclusively that a potential detriment absolutely will occur to justify a discharge without conviction. But when you have what is at best a reasonably tenuous detriment that can almost certainly be mitigated with time weighted against the fact that this thug attacked 4 people, one of whom extremely seriously and involving hitting him about the head when the victim was on the ground (do not forget as well that this thug and his imbecile brother attacked as a group), the outcome is entirely out of line with normal sentencing outcomes, quite aside frim the Judge's poor legal reasoning.

 

MikeB4: We're pretty much in agreement. IMO, nobody should be making any comments before they have actually read the decision (it's actually very short and readable). And any criticism should only be confined to what can be readily discerned from the judgment. You were quite correct in saying that it is conceivable that other relevant things may come out on appeal.

 

 

 

 

 

 


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  Reply # 1643519 30-Sep-2016 21:10
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Japan is an interesting case and they offer a lot of rugby related employment. It appears Japan will grant visas for those who have been sentenced but then the actual border control people will refuse entry on landing if the sentence is greater than one year. Something about different sets of laws governing each department. It seems some celebrities have trouble and some celebrities are allowed after prior negotiation.

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  Reply # 1643533 30-Sep-2016 21:55
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Who paid for his lawyer? I'm guessing it wasn't legal aid.

 

Who was his lawyer? Was he/she a community lawyer from Porirua? I'm doubting it.

 

 

 

I'd also be guessing your average "apprentice electrician" couldn't afford the same lawyer, or that the lawyer would even take them on if they could afford it. 

 

I'd be thinking that this is where his "employers" come into the whole situation. 

I'd be thinking favours and $$$

And that would be why they were apologising. 

 

 

 

He's also obviously spent some time with the NZ/WRU PR team too.

 

Do either of these sport organisations get any money from the tax payer? 

 

 

 

 

 

EDIT: Looks like I was wrong!!! (unless it was favours and not $$$)


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  Reply # 1643545 30-Sep-2016 22:25
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blakamin:

 

Who paid for his lawyer? I'm guessing it wasn't legal aid.

 

Who was his lawyer? Was he/she a community lawyer from Porirua? I'm doubting it.

 

 

 

I'd also be guessing your average "apprentice electrician" couldn't afford the same lawyer, or that the lawyer would even take them on if they could afford it. 

 

I'd be thinking that this is where his "employers" come into the whole situation. 

I'd be thinking favours and $$$

And that would be why they were apologising. 

 

 

 

He's also obviously spent some time with the NZ/WRU PR team too.

 

Do either of these sport organisations get any money from the tax payer? 

 

 

At para [13] of the sentencing indication the Judge refers to 'Mr Sainsbury' which will be Noel Sainsbury, a well known Wellington barrister who's been around a long time. He's recently become the President of the Criminal Bar Association and has previously applied (unsuccessfully) to be head of the Public Defender Service. I'd imagine it is legal aid that paid/is paying for this case.


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  Reply # 1643547 30-Sep-2016 22:29
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Dratsab:

 

At para [13] of the sentencing indication the Judge refers to 'Mr Sainsbury' which will be Noel Sainsbury, a well known Wellington barrister who's been around a long time. He's recently become the President of the Criminal Bar Association and has previously applied (unsuccessfully) to be head of the Public Defender Service. I'd imagine it is legal aid that paid/is paying for this case.

 

 

 

 

WOW! How did some "random" dude end up with him? 


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  Reply # 1643548 30-Sep-2016 22:36
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For just a sentencing indication and related preparation work, even a top lawyer isn't totally out of reach for someone turning to family, especially in more "traditional" communities where family members are expected (and more likely) to help those in strife.

 

 

 

 


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  Reply # 1643565 30-Sep-2016 22:51
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To be brutally honest, much of the mainstream media criticisms of the discharge without conviction regime, along with the usual self-interested "our clients are always angels; give the poor, oppressed people a chance" BS from the usual suspects from the defence bar, is basically exactly the same as what you get inside the average courtroom in a criminal trial from everybody. I certainly do not miss my days as a criminal lawyer.

 

 

 

 


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  Reply # 1643674 1-Oct-2016 09:49
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dejadeadnz:

 

To be brutally honest, much of the mainstream media criticisms of the discharge without conviction regime, along with the usual self-interested "our clients are always angels; give the poor, oppressed people a chance" BS from the usual suspects from the defence bar, is basically exactly the same as what you get inside the average courtroom in a criminal trial from everybody. I certainly do not miss my days as a criminal lawyer.

 

 

So much for the notion of presumption of innocence eh?

 

One could conclude from what you've said that that prosecutors would never stoop to present an opposing view - that the defendant is the devil incarnate.  And worse - the weaker their case the greater the effort it seems.

 

 


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  Reply # 1643680 1-Oct-2016 10:04
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Fred99:

 

So much for the notion of presumption of innocence eh?

 

One could conclude from what you've said that that prosecutors would never stoop to present an opposing view - that the defendant is the devil incarnate.  And worse - the weaker their case the greater the effort it seems.

 

 

 

You've evidently missed the fact that my comment was intended to cover all sides of the criminal trial fence (hint: see the word "everybody" in the relevant post). The adversarial system is a total failure -- people go on and on about the failure of the of the family court or the civil justice system but go into a criminal trial courtroom and you will see ten times worse. Witness the endless torrents of emotive BS, overcharging, police officers trying to convince the judge or jury that they have superhuman memory, and defence lawyers often going well beyond the bounds of what are properly understood (i.e. I am not coming to this from your average ignaramous' perspective but with an understanding of a defence lawyer's ethical duties to their client and the court) to be proper behaviour in attacking complainants etc.

 

 


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  Reply # 1643703 1-Oct-2016 10:36
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Having lived under both the inquisitorial system in Europe and the adversarial one here, I have to say I much prefer a panel of expert judges, who ideally drill down to find the truth, rather than one who keeps score to declare a winner. Like so many things English, the system of justice we inherited might have made sense when witches were being burned, but it is badly out of step with modern needs.  

 

 





I reject your reality and substitute my own. - Adam Savage
 


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  Reply # 1643726 1-Oct-2016 11:22
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dejadeadnz:

 

Fred99:

 

So much for the notion of presumption of innocence eh?

 

One could conclude from what you've said that that prosecutors would never stoop to present an opposing view - that the defendant is the devil incarnate.  And worse - the weaker their case the greater the effort it seems.

 

 

 

You've evidently missed the fact that my comment was intended to cover all sides of the criminal trial fence (hint: see the word "everybody" in the relevant post). The adversarial system is a total failure -- people go on and on about the failure of the of the family court or the civil justice system but go into a criminal trial courtroom and you will see ten times worse. Witness the endless torrents of emotive BS, overcharging, police officers trying to convince the judge or jury that they have superhuman memory, and defence lawyers often going well beyond the bounds of what are properly understood (i.e. I am not coming to this from your average ignaramous' perspective but with an understanding of a defence lawyer's ethical duties to their client and the court) to be proper behaviour in attacking complainants etc.

 

 

 

 

 

 

Fair enough - I'd assumed that "everybody" didn't include the prosecution.

 

I've been in court once after being arrested on a (minor) criminal charge.  The whole thing from point of being arrested was a thoroughly unpleasant experience, the trumped up charges were thrown out of court by the judge - so I have no conviction, my (expensive) lawyer mentioned to me - after the judge had given the police detective who'd arrested me a very thorough dressing down for being rather too "creative" - that I'd nail the police for wrongful arrest etc, but strongly advised me against going down that route and to just put the whole thing behind me.  The cop scored an "own goal" by telling huge porking lies so unbelievably that he was... unbelievable. Slightly weird twist was that the straw which broke the camel's back and enraged the judge was about the only piece of evidence he'd given that was 100% complete gospel truth, about something I'd said that had clearly got right under the evil detective's skin - as I'd intended it to do at the time (at great risk - I was damned lucky to not have been beaten to a pulp for saying it).

 

Good learning experience for the thug, next time I came across his name in the news, he was a detective inspector working on murder cases.  

 

I'm tainted from that experience - forever. I do wonder what the outcome of that would have been if I'd been brown and poor. 


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  Reply # 1644059 2-Oct-2016 09:27
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By the way people have reacted to this whole saga, anyone would think it was the rugby union themselves who assaulted the 4 people. Sure they made an error in the way they handled Filipo, but just maybe its about time Filipo apologised to the victims & the rugby union. In my mind, the judge is probably the 2nd worst offender here, not the rugby union


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