Why is there no right to compensation for wrongful imprisonment in NZ?

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#1115296 25-Aug-2014 16:14

networkn:
Are you being serious? The chances of being remanded for a crime, based SOLEY on the fact you look like someone else who committed a crime serious enough to warrant remand in the first place are so low, it doesn't really warrant wasting bandwidth to discuss it.

You think this sort of thing has never happened?

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#1115477 25-Aug-2014 20:45

scuwp:
Geektastic:
scuwp:
networkn:
wongtop: The other thing is that the system is slow, so people can be held in remand for over a year while they are waiting for their case to come up. I don't think it is great that people might have to spend a year in prison before they have been found guilty of anything (nor do I think it would be great that dangerous/guilty people would be free for a year while waiting for trial). The delays in the system are too long. A year in prison would wreak havoc on your life even before you've been found guilty of anything.

Yah that is a fair call actually, though if you spent time in remand, that time is taken from your sentence.

It's a bit of a hard call though as lawyers need time to prepare a defense or prosecution adequately

Also only those with a history and/or are a risk to society get remanded in custody, the rest (vast majority) are released on bail. There is also the chance to argue a custodial remand on the basis of the weight of evidence. I would assume those incarcerated in such situations would have an equal right to apply for compensation as a person convicted and later acquitted? They would still need to pass a test of 'on the balance of probabilities innocent' however.

Being found innocent does not equal "not guilty". That's just really naive.

In fact the verdict is "Not Guilty"

If we follow your logic it is equally reasonable to assume that being found "guilty" does not equal 'guilty'.

The law is a technical construct. "Getting off on a technicality" is hardly an oddity therefore. To use my law lecturer's example of many years ago: if the law is drafted by Parliament to state that murder is only murder when committed by a person wearing a blue hat, then if you kill someone whilst not wearing a blue hat you have NOT committed murder within the meaning of the law. The fact that you were not wearing a blue hat is a technicality but it is a crucial one.

To add to the remand point: if you are jailed on remand for 12 months, your business goes bust and your wife leaves you, then at trial you are found not guilty, are you then entitled to compensation for the harm that the State has done to your life?

Definitely, provided you can prove to a reasonable standard that you are in all likelihood innocent of the allegation.

If you are "not guilty" just because a policeman said "and" instead of "or" when reading your rights, or because there was a typo on a charging document, and every other piece of evidence says you are guilty...absolutely not.

I hear where you are coming from, but I doubt the fact that the offender was not wearing a blue hat would be accepted by any normal society, let alone the victim, whether or not it is "right" in the eyes of the law. What's that saying?...sometimes 'the law is an ass'. This is the exact sort of argument that keep lawyers in the manner in which they have become accustomed.

But how do you KNOW someone is not guilty ONLY because a policeman said x not y etc unless they admit the crime in which case they will almost certainly be convicted anyway? If the court finds the defendant not guilty, our legal system is such that they are in fact not guilty.

You cannot make an assumption that just because you think someone is guilty, you can ignore the proceedings of the court. That undermines the principle foundation of our legal system! Trial in the Court Of Public Opinion is thankfully not part of our statute book.

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#1115482 25-Aug-2014 20:56

Paul1977: You don't need specific examples.

In a court of law there is GUILTY and NOT GUILTY. If a person is found not guilty by way of an aquittal, then they are legally not guilty and should be entitled to compensation.

There should be no place for the minister or anyone to decide "they shouldn't get compensation because they are probably guilty" - a court of law has already determined that the are not guilty and have been wrongfully imprisoned.

I personally think fair compensation would be their earning potential for they time they were in prison plus at least $50,000 per year wrongly served.

Yes! This is exactly it.The amounts can be argued about but the principle is correct.

Not guilty is not guilty. It's wrong that the Minister/Cabinet can decide the court is wrong and deny compensation - otherwise, why can't they just say 'Well, I know the judge said he/she ought to be released but we don't agree - send him back to prison' whenever they disagree with the court?

Independent judiciary free of political interference is - as I understood it - a necessary part of democracy. This process appears to suffer considerable political interference in at least the Bain case. i.e. Independent Canadian judge says yes you should pay and Minister says "Nah I don't want to - you must have got it wrong! I'll get someone else to look at it until I get the answer I want!"

I have no axe to grind re Bain - which is why I originally left out any specific reference to it because I knew it would become a debate on that case not the general principle.

However, if there was a rule that someone wrongfully imprisoned received say minimum wage for the time they were imprisoned as of right automatically but had also the right to make a claim for greater amounts (with appropriate justification) to be decided by some sort of official panel that would seem somewhat fairer to me.

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#1115488 25-Aug-2014 20:58

networkn:
Geektastic:
scuwp:
networkn:
wongtop: The other thing is that the system is slow, so people can be held in remand for over a year while they are waiting for their case to come up. I don't think it is great that people might have to spend a year in prison before they have been found guilty of anything (nor do I think it would be great that dangerous/guilty people would be free for a year while waiting for trial). The delays in the system are too long. A year in prison would wreak havoc on your life even before you've been found guilty of anything.

Yah that is a fair call actually, though if you spent time in remand, that time is taken from your sentence.

It's a bit of a hard call though as lawyers need time to prepare a defense or prosecution adequately

Also only those with a history and/or are a risk to society get remanded in custody, the rest (vast majority) are released on bail. There is also the chance to argue a custodial remand on the basis of the weight of evidence. I would assume those incarcerated in such situations would have an equal right to apply for compensation as a person convicted and later acquitted? They would still need to pass a test of 'on the balance of probabilities innocent' however.

Being found innocent does not equal "not guilty". That's just really naive.

In fact the verdict is "Not Guilty"

If we follow your logic it is equally reasonable to assume that being found "guilty" does not equal 'guilty'.

The law is a technical construct. "Getting off on a technicality" is hardly an oddity therefore. To use my law lecturer's example of many years ago: if the law is drafted by Parliament to state that murder is only murder when committed by a person wearing a blue hat, then if you kill someone whilst not wearing a blue hat you have NOT committed murder within the meaning of the law. The fact that you were not wearing a blue hat is a technicality but it is a crucial one.

To add to the remand point: if you are jailed on remand for 12 months, your business goes bust and your wife leaves you, then at trial you are found not guilty, are you then entitled to compensation for the harm that the State has done to your life?

Some people might consider their wives leaving them as compensation enough :-)

There is that...!!

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#1115523 25-Aug-2014 21:42

Geektastic:
Zippity: Any examples in mind?

No because if I give any, it will colour the discussion.

I don't think there is a need for any, particularly - it's a discussion of principles. Is it right or wrong someone can be wrongfully jailed and left penniless on their eventual release?

Arthur Allen Thomas. - very clear cut - black and white - did he get compensation?

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#1115529 25-Aug-2014 21:47

tardtasticx: I think there should be some form of compensation yeh, but it would have to depend on what the person done prior to being wrongfully convicted. If they had been on the bennie for 5 years, then nothing. If they worked as a cashier at CountDown, pay them the wage they were on as if they worked a full 40hr week. Obviously maybe something extra thrown in since they lost all weekends and time with family and stuff.

But if someone gets thrown in jail, they obviously won't be making mortgage or credit card payments. They'll probably default on all of those and have their credit history destroyed by it. They'd have lost their home and everything. Then again I'm not entirely sure how that works if you're in jail since you're not intentionally avoiding payments.

Its not about lost earnings or possible earnigs. how do you give back someone the years they couldn't hug their wife / husband, see their kids grow up? how to you compensate ofr the kids not having a dad / mum? how do you compensate ofr the readjustment to normal life again?

Personally - if some gets fitted up (like AAThomas) and it is proven without a shadow of a doubt someone fitted them up then I would suggest natural justice would be to throw that person in the slammer for the length of time their victim was locked up.

Unlawful / wrong conviction can only happen if someone is fraudulent or completely incompetent / lazy. either way someones life has been stolen.

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#1115535 25-Aug-2014 21:59

networkn:
Geektastic:
scuwp:
Geektastic:
networkn:
Geektastic:
networkn:
sleemanj: The trouble is that the population at large has the (not quite, but almost universal) misguided opinion "if the police arrest them, they MUST be guilty", doesn't matter what the outcome of a trial, let alone an appeal, doesn't matter the evidence or lack thereof, to the population at large, once you've been arrested, you are guilty, and guilty people don't get paid out.

Politicians know this, they know that if they pay out somebody who was incorrectly detained, that large swathes of the VOTING public will be incensed that this obviously guilty person (because they were arrested, let alone tried for the crime) has received a payment, which they will perceive as coming from their tax dollars.

So the answer to the question "Why is there no right to compensation for wrongful imprisonment in NZ?" is, in my humble opinion, "because the unwashed masses are by and large one step away from forming a vigilante mob with torches and pitchforks based on no more than somebody being arrested".

This might be the case in the people you mix with, but I've never heard of anything like that in my 35+ years. Most (I say this having not once found an exception) people would be more than happy for genuinely innocent people to be compensated for being wrongly imprisoned. I can't imagine much worse than having it happen to me for sure.

I do however firmly believe that those who spend time in prison for a crime they DO commit, and get off on a technicality, should get nothing (except their freedom), and I've found the VAST majority of people feel this way too.

I would say that I would view someone arrested (and charged) for a crime, to be reasonably likely to be guilty of said crime, as an initial impression.

However, it is pretty rare for someone to do what you suggest, because the only certain way would be if they actually admitted the crime, in which case it's unlikely in the extreme a 'technicality' would serve to get them off.

In the case of Mr Bain which has been offered as an example here by others, I am fairly sure he has never done anything but deny responsibility from day one. I would agree he might have committed an offence against public decency with regard to knitted wearing apparel however....

Fortunately, how you or anyone else chooses to view a suspect's arrest and charge with regard to guilt or otherwise is not how the legal system works - otherwise we really will be heading back to pitchfork-toting mobs!

Well I guess I am talking about someone who gets their conviction overturned as a result of a thing like incorrect chain of evidence or something like that. The evidence shows they did commit the crime, categorically, but it can't be presented at trial due to a breach of the rules.
Whilst I am not happy they are out, it falls into the way that the rules work, and I am prepared to accept it, however to then turn around and give that person money as compensation for spending time in prison, I'm afraid you'd never convince me that is the right thing to do.

I will be very unhappy indeed if Bain gets compensated (As I believe he falls into the above category), however, we are a socialist country and will likely give him something I believe.

So let us assume two people who commit identical crimes and the evidence chain is compromised as you suggest.

Person A is found not guilty at trial and released to continue life.

Person B is found guilty, jailed for 20 years. 10 years later, the chain of evidence issue comes to light and his conviction is found to be unsafe and he is released.

In that example, A has had 10 years of freedom and earning. B has not.

Both allegedly committed the same crime but were not convicted for the same reason, simply at different points in time.

It seems to me that the State, which presumably had responsibility for the evidence chain, owes person B some compensation. Do you not think so?

No. He committed the crime, why should the taxpayer pay out?

Because (a) the court said that if he did, it cannot be adequately proven (b) the State deprived him of liberty unlawfully. Arguably that is the verdict that should have been reached in the Person B's trial in the first place in which case he would have lost nothing.

In the Bain case, he was specifically found 'Not Guilty' on all 5 murder charges. There really does not seem much room for claiming "Well I know he did it even though a jury did not agree with me, so he should not get anything". Otherwise in corollary one could theoretically detain former defendants found not guilty at a trial and lock them in your shed. When charged with kidnapping and/or unlawful imprisonment, a defence that "He did (the crime he was acquitted of) anyway, so he should be locked up" would be enough of a defence....

Based on that logic, the first time around they found him guilty, so then why would he be due compensation?

Also not guilty, does not mean innocent :)

I believe one of the above posters summed it up - the compensation is not about guilt or innocence in this case but about the fact that D Bain was unlawfully / unfairly imprisoned. whether he is guilty or not is immaterial - the point in question is if he was unlawfully deprived of freedom.

If for instance 20 years ago I molested a kid - the most heinous crime I can think of, and a police man couldn't prove it but planted evidence, and I was detained owing to fraud by the police officer - then I would be eligible for compensation as i was unlawfully detained. It is not the crime that is being compensated but an unlawful act committed against a person that is being compensated.
My crime or guilt or lack thereof is completely seperate to the illegality of an imprisonment. A natural sense of justice or fairness would say I got what I deserved - and that may be true, but it was still an illegal act - and that is not what anyone deserves. The law protects the most heinous scum and equally the most saintly saint.

To take the point further - say DNA evidence was kept from the crime (20 years ago) and then used to convict and imprison me then I would still be eligible for compensation for unlawful imprisonment, while at the same time being inside (a second time) due to a lawful imprisonment. It is not the crime or lack thereof which is at stake but the unlawful actions perpetrated against a person that is the issue. even scumbags have the right to a fair trial.

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#1115663 26-Aug-2014 09:17

I believe one of the above posters summed it up - the compensation is not about guilt or innocence in this case but about the fact that D Bain was unlawfully / unfairly imprisoned. whether he is guilty or not is immaterial - the point in question is if he was unlawfully deprived of freedom.

If for instance 20 years ago I molested a kid - the most heinous crime I can think of, and a police man couldn't prove it but planted evidence, and I was detained owing to fraud by the police officer - then I would be eligible for compensation as i was unlawfully detained. It is not the crime that is being compensated but an unlawful act committed against a person that is being compensated.
My crime or guilt or lack thereof is completely seperate to the illegality of an imprisonment. A natural sense of justice or fairness would say I got what I deserved - and that may be true, but it was still an illegal act - and that is not what anyone deserves. The law protects the most heinous scum and equally the most saintly saint.

To take the point further - say DNA evidence was kept from the crime (20 years ago) and then used to convict and imprison me then I would still be eligible for compensation for unlawful imprisonment, while at the same time being inside (a second time) due to a lawful imprisonment. It is not the crime or lack thereof which is at stake but the unlawful actions perpetrated against a person that is the issue. even scumbags have the right to a fair trial.

But if you are wrongfully free, and then get convicted, do you pay the state for your freedom incorrectly given over that time? :)

I'm afraid you are probably pushing the proverbial up hill with a teaspoon trying to convince the average kiwi, that someone who committed a crime, but was let off due to a technicality should be given taxpayer money.

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#1115707 26-Aug-2014 10:23

networkn:

I believe one of the above posters summed it up - the compensation is not about guilt or innocence in this case but about the fact that D Bain was unlawfully / unfairly imprisoned. whether he is guilty or not is immaterial - the point in question is if he was unlawfully deprived of freedom.

If for instance 20 years ago I molested a kid - the most heinous crime I can think of, and a police man couldn't prove it but planted evidence, and I was detained owing to fraud by the police officer - then I would be eligible for compensation as i was unlawfully detained. It is not the crime that is being compensated but an unlawful act committed against a person that is being compensated.
My crime or guilt or lack thereof is completely seperate to the illegality of an imprisonment. A natural sense of justice or fairness would say I got what I deserved - and that may be true, but it was still an illegal act - and that is not what anyone deserves. The law protects the most heinous scum and equally the most saintly saint.

To take the point further - say DNA evidence was kept from the crime (20 years ago) and then used to convict and imprison me then I would still be eligible for compensation for unlawful imprisonment, while at the same time being inside (a second time) due to a lawful imprisonment. It is not the crime or lack thereof which is at stake but the unlawful actions perpetrated against a person that is the issue. even scumbags have the right to a fair trial.

But if you are wrongfully free, and then get convicted, do you pay the state for your freedom incorrectly given over that time? :)

I'm afraid you are probably pushing the proverbial up hill with a teaspoon trying to convince the average kiwi, that someone who committed a crime, but was let off due to a technicality should be given taxpayer money.

You can't be 'let off on a technicality' - the law does not work that way.

If you are found not guilty, you are not guilty. There's no room for Joe Public, the Prime Minister or anyone else to say 'yeah, well, he got off but we know he did it so we will treat him as if the verdict was guilty'.

Let us say you got a speeding ticket and the consequences were a $5,000 fine and loss of your licence for 2 years, which would mean losing your job as well and perhaps your house because you couldn't pay the mortgage, thus turfing your wife and kids out of their home.

You know you were in fact speeding. However your lawyer spots that the policeman made a procedural error and he manages to get the court to dismiss the ticket completely because of that 'technicality'.

Do you

(a) Say 'thank heavens for that - I will drive more carefully in future! Phew!'

or

(b) Stick your hand up and say "Excuse me your honour, please ignore the technicality! I am happy to be punished!'

A technicality is not a technicality - it IS the law.

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#1115879 26-Aug-2014 14:19

Geektastic:
networkn:

I believe one of the above posters summed it up - the compensation is not about guilt or innocence in this case but about the fact that D Bain was unlawfully / unfairly imprisoned. whether he is guilty or not is immaterial - the point in question is if he was unlawfully deprived of freedom.

If for instance 20 years ago I molested a kid - the most heinous crime I can think of, and a police man couldn't prove it but planted evidence, and I was detained owing to fraud by the police officer - then I would be eligible for compensation as i was unlawfully detained. It is not the crime that is being compensated but an unlawful act committed against a person that is being compensated.
My crime or guilt or lack thereof is completely seperate to the illegality of an imprisonment. A natural sense of justice or fairness would say I got what I deserved - and that may be true, but it was still an illegal act - and that is not what anyone deserves. The law protects the most heinous scum and equally the most saintly saint.

To take the point further - say DNA evidence was kept from the crime (20 years ago) and then used to convict and imprison me then I would still be eligible for compensation for unlawful imprisonment, while at the same time being inside (a second time) due to a lawful imprisonment. It is not the crime or lack thereof which is at stake but the unlawful actions perpetrated against a person that is the issue. even scumbags have the right to a fair trial.

But if you are wrongfully free, and then get convicted, do you pay the state for your freedom incorrectly given over that time? :)

I'm afraid you are probably pushing the proverbial up hill with a teaspoon trying to convince the average kiwi, that someone who committed a crime, but was let off due to a technicality should be given taxpayer money.

You can't be 'let off on a technicality' - the law does not work that way.

If you are found not guilty, you are not guilty. There's no room for Joe Public, the Prime Minister or anyone else to say 'yeah, well, he got off but we know he did it so we will treat him as if the verdict was guilty'.

Let us say you got a speeding ticket and the consequences were a $5,000 fine and loss of your licence for 2 years, which would mean losing your job as well and perhaps your house because you couldn't pay the mortgage, thus turfing your wife and kids out of their home.

You know you were in fact speeding. However your lawyer spots that the policeman made a procedural error and he manages to get the court to dismiss the ticket completely because of that 'technicality'.

Do you

(a) Say 'thank heavens for that - I will drive more carefully in future! Phew!'

or

(b) Stick your hand up and say "Excuse me your honour, please ignore the technicality! I am happy to be punished!'

A technicality is not a technicality - it IS the law.

Well I am afraid we will need to agree to disagree. Quite simply in my mind, if you find a loophole in the system that allows you to be free after committing a crime, then you have been compensated.

As to your comment about PM and Joe Public, you are wrong, obviously, since this is the way the law works now, and in my eyes is no more unfair than your complaint he should be compensated if found not guilty because proof was in-admissible due to someone handling it wrong etc.

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#1115889 26-Aug-2014 14:33

networkn:
Geektastic:
networkn:

I believe one of the above posters summed it up - the compensation is not about guilt or innocence in this case but about the fact that D Bain was unlawfully / unfairly imprisoned. whether he is guilty or not is immaterial - the point in question is if he was unlawfully deprived of freedom.

If for instance 20 years ago I molested a kid - the most heinous crime I can think of, and a police man couldn't prove it but planted evidence, and I was detained owing to fraud by the police officer - then I would be eligible for compensation as i was unlawfully detained. It is not the crime that is being compensated but an unlawful act committed against a person that is being compensated.
My crime or guilt or lack thereof is completely seperate to the illegality of an imprisonment. A natural sense of justice or fairness would say I got what I deserved - and that may be true, but it was still an illegal act - and that is not what anyone deserves. The law protects the most heinous scum and equally the most saintly saint.

To take the point further - say DNA evidence was kept from the crime (20 years ago) and then used to convict and imprison me then I would still be eligible for compensation for unlawful imprisonment, while at the same time being inside (a second time) due to a lawful imprisonment. It is not the crime or lack thereof which is at stake but the unlawful actions perpetrated against a person that is the issue. even scumbags have the right to a fair trial.

But if you are wrongfully free, and then get convicted, do you pay the state for your freedom incorrectly given over that time? :)

I'm afraid you are probably pushing the proverbial up hill with a teaspoon trying to convince the average kiwi, that someone who committed a crime, but was let off due to a technicality should be given taxpayer money.

You can't be 'let off on a technicality' - the law does not work that way.

If you are found not guilty, you are not guilty. There's no room for Joe Public, the Prime Minister or anyone else to say 'yeah, well, he got off but we know he did it so we will treat him as if the verdict was guilty'.

Let us say you got a speeding ticket and the consequences were a $5,000 fine and loss of your licence for 2 years, which would mean losing your job as well and perhaps your house because you couldn't pay the mortgage, thus turfing your wife and kids out of their home.

You know you were in fact speeding. However your lawyer spots that the policeman made a procedural error and he manages to get the court to dismiss the ticket completely because of that 'technicality'.

Do you

(a) Say 'thank heavens for that - I will drive more carefully in future! Phew!'

or

(b) Stick your hand up and say "Excuse me your honour, please ignore the technicality! I am happy to be punished!'

A technicality is not a technicality - it IS the law.

Well I am afraid we will need to agree to disagree. Quite simply in my mind, if you find a loophole in the system that allows you to be free after committing a crime, then you have been compensated.

As to your comment about PM and Joe Public, you are wrong, obviously, since this is the way the law works now, and in my eyes is no more unfair than your complaint he should be compensated if found not guilty because proof was in-admissible due to someone handling it wrong etc.

Really? I look forward to seeing evidence of that. Is it the kind of idea where if I kill someone nobody likes, the Court Of Twitter will issue instructions to the police and judiciary that I should be released forthwith?!

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#1118557 30-Aug-2014 14:15

There will never be compensation riten up in black and white for all to see.The reason is that we have the old english law system and not the american system.There is no way this will change..When the govt (police) charge you then you must prove your inocence.Years down the track your still trying to prove your inosence and when successful your let out so why should there be compensation.It just took you a while to prove.This is the argument and anything dealing with govt is a wast of money.The lawers win,the govt change the laws if there is a hint of you being right.Thay win

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#1118794 30-Aug-2014 22:52

sogytrype: There will never be compensation riten up in black and white for all to see.The reason is that we have the old english law system and not the american system.There is no way this will change..When the govt (police) charge you then you must prove your inocence.Years down the track your still trying to prove your inosence and when successful your let out so why should there be compensation.It just took you a while to prove.This is the argument and anything dealing with govt is a wast of money.The lawers win,the govt change the laws if there is a hint of you being right.Thay win

You're not wrong in saying that the lawyers are really the only winners, that is for sure.

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#1119365 1-Sep-2014 09:43

sogytrype: When the govt (police) charge you then you must prove your inocence.

Isn't the the burden of proof on the prosecution to prove your guilt, not for you to prove your innocence? I may be thinking of American TV, but I still thought the NZ system worked on the same basis of innocent until proven guilty - not the other way around.

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#1119402 1-Sep-2014 10:40

Paul1977:
sogytrype: When the govt (police) charge you then you must prove your inocence.

Isn't the the burden of proof on the prosecution to prove your guilt, not for you to prove your innocence? I may be thinking of American TV, but I still thought the NZ system worked on the same basis of innocent until proven guilty - not the other way around.

You are correct - unless it involves downloading a movie illegally, of course. In that case they are free to assume your guilt.

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