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  Reply # 1604140 4-Aug-2016 10:54
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I am not suggesting that when a conviction is overturned that they are necessarily actually innocent. But from a legal perspective they are NOT GUILTY.

 

I disagree with the precedent of having to prove innocence as it runs contrary to the rest of out justice system that requires proof of guilt.

 

 

The privilege of being NOT GUILTY is you are NOT IN PRISON. 

 

The privilege of receiving financial compensation should require actual innocence and in the Crowns position how can they prove something that may not exist?

 

I think the reason the difference exists is because the two concepts are different. One is a negative and one is a positive in terms of consequence.

 

I am happy with the way it is, seems pretty fair to me.


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  Reply # 1604194 4-Aug-2016 11:55
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networkn:

 

 The privilege of being NOT GUILTY is you are NOT IN PRISON. 

 

The privilege of receiving financial compensation should require actual innocence and in the Crowns position how can they prove something that may not exist?

 

 

???

 

Being NOT IN PRISON is a *right*, not a privilege (unless you're a prisoner on parole). You can only be rightfully imprisoned if you are guilty of a crime. If you are not guilty, then imprisoning you is unfair.

 

You have a *right* to be treated fairly, especially by the Government. If someone treats you unfairly, then they should be punished and you should be compensated.

 

So, if you are WRONGFULLY imprisoned, then you should be compensated.

 

All this hair-splitting over "Not Guilty" and "Not Innocent" is just red herrings.

 

The Govt would be a lot more careful about how they prosecute and imprison people if they feel some pain when they do it wrongly.

 

 




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  Reply # 1604201 4-Aug-2016 12:00
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frankv:

 

networkn:

 

 The privilege of being NOT GUILTY is you are NOT IN PRISON. 

 

The privilege of receiving financial compensation should require actual innocence and in the Crowns position how can they prove something that may not exist?

 

 

???

 

Being NOT IN PRISON is a *right*, not a privilege (unless you're a prisoner on parole). You can only be rightfully imprisoned if you are guilty of a crime. If you are not guilty, then imprisoning you is unfair.

 

You have a *right* to be treated fairly, especially by the Government. If someone treats you unfairly, then they should be punished and you should be compensated.

 

So, if you are WRONGFULLY imprisoned, then you should be compensated.

 

All this hair-splitting over "Not Guilty" and "Not Innocent" is just red herrings.

 

The Govt would be a lot more careful about how they prosecute and imprison people if they feel some pain when they do it wrongly.

 

 

 

 

 

 

I'm afraid will need to agree to disagree here.


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  Reply # 1604210 4-Aug-2016 12:13
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frankv:

 

 

 

The Govt would be a lot more careful about how they prosecute and imprison people if they feel some pain when they do it wrongly.

 

 

 

 

 

On principle, I certainly think there's little argument that the above is right. Pragmatically (just like how the government went to for pragmatic approach by making an ex gratia payment to Bain even though they were not in theory obliged to), I truly think we will never/can't get to a point where everybody gets compo as of right the moment their convictions are overturned. Another thing that's overlooked in this debate is the crippling costs of defending criminal accusations, even when you are found not guilty the first time round. The costs that a successful defendant can potentially get (with great difficulty) under the Costs in Criminal Cases Act is nothing short of insulting. And contrary to popular belief, even when you qualify for legal aid (and you practically have to be cripplingly poor to qualify), your defence generally isn't free. There is likely a debt that you will have to pay back.

 

I certainly think we as a society have to be more open to paying successful defendants and people who have served jail time but have had their convictions overturned. Whether they should get paid as of right every time is possibly another matter.

 

 

 

 




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  Reply # 1604215 4-Aug-2016 12:20
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dejadeadnz:

 

frankv:

 

 

 

The Govt would be a lot more careful about how they prosecute and imprison people if they feel some pain when they do it wrongly.

 

 

 

 

 

On principle, I certainly think there's little argument that the above is right. Pragmatically (just like how the government went to for pragmatic approach by making an ex gratia payment to Bain even though they were not in theory obliged to), I truly think we will never/can't get to a point where everybody gets compo as of right the moment their convictions are overturned. Another thing that's overlooked in this debate is the crippling costs of defending criminal accusations, even when you are found not guilty the first time round. The costs that a successful defendant can potentially get (with great difficulty) under the Costs in Criminal Cases Act is nothing short of insulting. And contrary to popular belief, even when you qualify for legal aid (and you practically have to be cripplingly poor to qualify), your defence generally isn't free. There is likely a debt that you will have to pay back.

 

I certainly think we as a society have to be more open to paying successful defendants and people who have served jail time but have had their convictions overturned. Whether they should get paid as of right every time is possibly another matter.

 

 

 

 

 

 

 

 

Conversely, do you think people who make appeals after appeals which get struck down, should be required to meet the crowns costs for wasting tax payers money? It's got to cut both ways surely? Potentially these costs could be met by additional prison time equal to their costs divided by their expected salary if they weren't in prison!

 

 

 

Maybe then only when an appeal had true merit would they lodge appeals in the first place!


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  Reply # 1604223 4-Aug-2016 12:29
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dejadeadnz:

 

... the crippling costs of defending criminal accusations

 

 

I blame the lawyers for this. innocent

 

 

 

 




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  Reply # 1604224 4-Aug-2016 12:30
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frankv:

 

dejadeadnz:

 

... the crippling costs of defending criminal accusations

 

 

I blame the lawyers for this. innocent

 

 

 

 

 

 

THAT we can agree on.


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  Reply # 1604228 4-Aug-2016 12:36
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networkn:

 

 

 

 

 

Conversely, do you think people who make appeals after appeals which get struck down, should be required to meet the crowns costs for wasting tax payers money? It's got to cut both ways surely?

 

 

 

 

Nope. People like you just need to quit with the intellectually flawed attempts at pretending that a person charged with/convicted of a crime is in the same position as the state in terms of power and ability to uphold one's rights. The right of appeal is basically the only thing that these people have got. And no amount of times of you pretending that it must cut both ways will change the fact that severely curtailing people's appeal rights and/or putting undue financial obstacles/disincentives to those convicted appealing breaches our international law obligations. And your claim that people get to make "appeals after appeals" is manifestly false. Goodness me, the fact that no civilised common law jurisdiction has such a regime should tell you something!

 

If you're convicted in a judge-alone, summary trial, you have a right of appeal to the High Court. Any further appeals after that are rarely granted, unless the appellate courts give leave/permission and you have to be able to show that there are serious/open questions of legal interpretation to be decided* or that there is a manifest injustice in the original verdict. If you're convicted in a jury trial at the District Court or the High Court, you have a right of appeal to the Court of Appeal (the second highest court in the land) and if you want to go to the Supreme Court after that, what I wrote earlier applies.

 

As for the point that I put an asterisk next to, understand that society at large benefit from having uncertain legal provisions clarified, controversies regarding criminal trial procedures settled, conflicting common law precedents clarified, and unaddressed legal issues be thoroughly argued. This is what happens before the appellate courts. Severely curtailing people's appeal rights will lead to unworkable trial situations and appeals aren't just about whether X or Y is guilty.

 

 

 

 Edit: Tidied up some repeats.


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  Reply # 1604241 4-Aug-2016 12:55
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People sometimes forget about all these processes, often clarify areas of existing law and motivate change to existing procedures, eg; collection and storage of evidence.

So, they are of benefit to everyone (including police and prosecution) in future cases.

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  Reply # 1604258 4-Aug-2016 13:01
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No system of justice (or anything) can ever be perfect. I believe it is right and necessary that the law should bend over backwards to err on the side of caution. The appeals process is part of that. If you were the one wrongly deprived of your liberty for something you didn't do, you would want every opportunity possible to challenge your situation. If the price of justice is allowing a few bad people to undeservedly benefit, then that must be accepted. It is by far the lesser of evils.

 

 





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




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  Reply # 1604270 4-Aug-2016 13:19
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Rikkitic:

 

No system of justice (or anything) can ever be perfect. I believe it is right and necessary that the law should bend over backwards to err on the side of caution. The appeals process is part of that. If you were the one wrongly deprived of your liberty for something you didn't do, you would want every opportunity possible to challenge your situation. If the price of justice is allowing a few bad people to undeservedly benefit, then that must be accepted. It is by far the lesser of evils.

 

 

 

 

You are right in this regard, though when the "few bad people benefit" it really rankles with my "justice bells".

 

I think fair should be fair for all, not just fair for the accused, but in a largely socialist country this isn't how it works, and it's probably right it's like this. 


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  Reply # 1604296 4-Aug-2016 13:57
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@dejadeadnz:

 

 

 

On principle, I certainly think there's little argument that the above is right. Pragmatically (just like how the government went to for pragmatic approach by making an ex gratia payment to Bain even though they were not in theory obliged to), I truly think we will never/can't get to a point where everybody gets compo as of right the moment their convictions are overturned. Another thing that's overlooked in this debate is the crippling costs of defending criminal accusations, even when you are found not guilty the first time round. The costs that a successful defendant can potentially get (with great difficulty) under the Costs in Criminal Cases Act is nothing short of insulting. And contrary to popular belief, even when you qualify for legal aid (and you practically have to be cripplingly poor to qualify), your defence generally isn't free. There is likely a debt that you will have to pay back.

 

I certainly think we as a society have to be more open to paying successful defendants and people who have served jail time but have had their convictions overturned. Whether they should get paid as of right every time is possibly another matter.

 

 

It seems like you are the most knowledgeable in this issue. Do you know if by accepting the "ex-gratia" payment, Bain cannot challenge any issue related to this again? I am curious because I read somewhere that Bain and the team will still challenge the outcome? (maybe I misread the old news)








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  Reply # 1604297 4-Aug-2016 13:58
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nakedmolerat:

 

@dejadeadnz:

 

 

 

On principle, I certainly think there's little argument that the above is right. Pragmatically (just like how the government went to for pragmatic approach by making an ex gratia payment to Bain even though they were not in theory obliged to), I truly think we will never/can't get to a point where everybody gets compo as of right the moment their convictions are overturned. Another thing that's overlooked in this debate is the crippling costs of defending criminal accusations, even when you are found not guilty the first time round. The costs that a successful defendant can potentially get (with great difficulty) under the Costs in Criminal Cases Act is nothing short of insulting. And contrary to popular belief, even when you qualify for legal aid (and you practically have to be cripplingly poor to qualify), your defence generally isn't free. There is likely a debt that you will have to pay back.

 

I certainly think we as a society have to be more open to paying successful defendants and people who have served jail time but have had their convictions overturned. Whether they should get paid as of right every time is possibly another matter.

 

 

It seems like you are the most knowledgeable in this issue. Do you know if by accepting the "ex-gratia" payment, Bain cannot challenge any issue related to this again? I am curious because I read somewhere that Bain and the team will still challenge the outcome? (maybe I misread the old news)

 

 

It's a full and final settlement of all matters as I read it. 


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  Reply # 1604432 4-Aug-2016 17:39
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nakedmolerat:

 

 

 

It seems like you are the most knowledgeable in this issue. Do you know if by accepting the "ex-gratia" payment, Bain cannot challenge any issue related to this again? I am curious because I read somewhere that Bain and the team will still challenge the outcome? (maybe I misread the old news)

 

 

 

 

It's definitely full and final. Now I obviously don't know what is in their settlement agreement/deed but on the face of things, neither side appears to be subject to a confidentiality agreement as to the amount, hence we all know how much Bain is getting paid. It also appears to be that Bain has been left free to continue to proclaim his innocence, which I imagine would be quite important to him. But in terms of any further litigation or monetary claims against the government, these are well and truly over.

 

One advantage with an ex gratia payment is that it almost certainly will not count as income under the Tax Administration Act, hence Bain gets this tax free. Again, I don't know his affairs but that's an informed guess from a lawyer. I'd imagine he would have some legal aid bills to repay and maybe additional lawyers' bills but he still should come out of this with a decent amount. Given everything that has been said and done, I think the ex gratia payment is both the sensible and right outcome.

 

 

 

 


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  Reply # 1604572 4-Aug-2016 20:16
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dejadeadnz:

 

nakedmolerat:

 

 

 

It seems like you are the most knowledgeable in this issue. Do you know if by accepting the "ex-gratia" payment, Bain cannot challenge any issue related to this again? I am curious because I read somewhere that Bain and the team will still challenge the outcome? (maybe I misread the old news)

 

 

 

 

It's definitely full and final. Now I obviously don't know what is in their settlement agreement/deed but on the face of things, neither side appears to be subject to a confidentiality agreement as to the amount, hence we all know how much Bain is getting paid. It also appears to be that Bain has been left free to continue to proclaim his innocence, which I imagine would be quite important to him. But in terms of any further litigation or monetary claims against the government, these are well and truly over.

 

One advantage with an ex gratia payment is that it almost certainly will not count as income under the Tax Administration Act, hence Bain gets this tax free. Again, I don't know his affairs but that's an informed guess from a lawyer. I'd imagine he would have some legal aid bills to repay and maybe additional lawyers' bills but he still should come out of this with a decent amount. Given everything that has been said and done, I think the ex gratia payment is both the sensible and right outcome.

 

 

 

 

 

 

Will Joe feel aggrieved and at a loss financially?


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