Saturday, November 11, 2006

Bail and the presumption of innocence

The Sensible Sentencing Trust has reacted to the bailing of Chris Kahui by calling for a law change to prevent those accused of murder from being granted bail. Apparently, this has "made a mockery of our justice system". I disagree. Rather, what would make "a mockery of our justice system" would be to bow to the demands of the "hang 'em high" brigade and start treating people accused of serious crime as guilty and deserving of punishment, despite the fact that they have not been convicted.

In this country, people are innocent until proven guilty. This has been part of our legal tradition for centuries, and is affirmed in s25(c) of our Bill of Rights Act. A consequence of this is that we cannot imprison them simply because they have been accused of a crime, no matter how serious. Bail is available as of right for most offences, and according to the Bail Act 2000, those accused of serious crimes must be released

on reasonable terms and conditions unless the court is satisfied that there is just cause for continued detention.

There are three primary reasons why a defendant might be refused bail. Being accused of a crime which outrages the public is not one of them. Rather, it is a matter of whether there is a risk of flight, interference with witnesses, or further offending while on bail (previous conviction for the same offence may also be a reason, but even then it simply raises the bar for bail to be granted). Chris Kahui clearly didn't meet those conditions in the eyes of the judge, and so bail was granted. This is as it should be - anything else would constitute punishment without trial.

If Kahui is convicted, then he will no doubt be sentenced to a long spell in prison. But he should serve that sentence only after conviction, not before.


The SST don't seem to seriously think through these things.

Posted by Genius : 11/11/2006 10:41:00 AM

Genius: The SST is primarily interested in vengeance, not justice. And they don't seem to care too much whether they get the right person or not. They are promoting a lynchmob system, not a justice system.

Posted by Idiot/Savant : 11/11/2006 10:54:00 AM

Fully agree with the principal innocent till proven guilty.

One extra reason to refuse bail would be for a repeat offender who has a history of skipping bail.

How you would judge this I dont know, maybe the "three strikes of skipping bail and no more bail" principal might apply.

Posted by Anonymous : 11/11/2006 11:24:00 AM

Gerrit: the risk that the accused might fail to appear in court is already well-covered by the law.

Posted by Idiot/Savant : 11/11/2006 11:37:00 AM

The SST can always be relied on to call anything they disagree with either a "travesty" or "a mockery of justice". I'm sure they simply churn out the same old press release each time - the only intellectual ability it demonstrates is the capacity to use the Find/Replace function in Microsoft Word.

- Clarke

Posted by Anonymous : 11/11/2006 02:52:00 PM

I doubt many people skip bail for very long. It's not that easy to leave NZ undetected.

Posted by Rich : 11/11/2006 04:25:00 PM

ideally bail would be set at a level where either

1) the person has too much at risk to skip it
2) the state has enough to gain that they hope he skips it (and will of course chase him down anyway)

I like option 2 !
Maybe Bill gates can come here commit a drug offense and skip 1 billion in bail.

Posted by Genius : 11/11/2006 07:19:00 PM

is it just a coincidence that SST stands for both Sunday Star-Times and Stupid Sentencing Trust???

Posted by Anonymous : 11/11/2006 07:51:00 PM

Not entirely sure of the figures (which is why I won't quote any) but a disgustingly high percentage of people on bail either try and skip it or refoffend.

I am aware of one case where a guy was brought before the same judge four times for fresh offences comitted while on bail before the judge agreed that he presented a reoffence risk and denied bail.

Ultimately one suspects that judges are under pressure not to place too many people on remand because the govt is incapable of building remand facilities on time and within budget.

Posted by Anonymous : 11/12/2006 01:24:00 PM

Maybe there should be concequences for judges who have too many people breach their bail requirements.

Posted by Genius : 11/12/2006 03:16:00 PM

"...we cannot imprison them simply because they have been accused of a crime, no matter how serious."

except for Mr Zauoi perhaps, who is really really bad

Posted by Anonymous : 11/13/2006 03:37:00 PM

Zauoi shouldn't have been imprisoned he should just have been on the first plane back to wherever he came from (Vietnam or Malaysia) - and asked to pay for the flight.

Posted by Genius : 11/13/2006 08:18:00 PM

that's right, he sould have sat around in vietnam waiting for the algerian agents to kill or abduct him.

he obviously deserves it, in your unhumble opinion, right?

Posted by Anonymous : 11/13/2006 10:51:00 PM

there is a que - with many people in vastly more danger than him in it. (and if they aren't I could certainly pick some to put there).

If he jumps the que he prevents people from being able to asses how urgent his need is - so he should be assumed NOT to be urgent until proven otherwise (and just being in NZ doesnt push him up the investigation priority list).

Besides Vietnam and malaysia are far from being the most dangerous countries in the world. One would have to assume they would do their bit to stop 'death squads' and may well be more capable of doing so than NZ.

Posted by Genius : 11/14/2006 06:53:00 AM