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Friday, July 02, 2010

Non corpus mentis

Well jolly good it appears at first glance. Unanimous support for audio visual links in courts says the Justice Minister.

But only a protection for the trial - not the pre-trial or anything that happens afterwards. By putting in only one exception they leave out the others. That is my objection to this law.

Habeas corpus hearing without the corpus?

Habeas corpus - the last extant bit of the Magna Carta in NZ - what about that protection? A judge can't make a determination on a prisoner without being there in person. Producing the prisoner in a monitor isn't going to cut it because they are still being held in communicado. That's Orwellian. It's Orwellian that it isn't mentioned.

Wikipedia: Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore in many countries the writ of habeas corpus itself may be suspend[ed] during a time of war or national emergency
in the US:] The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention

The passing of this bill also raises another dimension as to the extent of fairness and transparency in the judicial process. The NZ Herald reports last month:

Taxi killing accused faces China trial:

A Chinese kitchenhand accused of murdering an Auckland cabbie will be tried in his native country, but will not face the death penalty.

It is understood an agreement has been brokered between the New Zealand and Chinese Governments in which 23-year-old Zhen Xiao will stand trial for the killing of Hiren Mohini, but will not be subject to capital punishment, provided New Zealand police hand over their evidence.

Police located Xiao in Shanghai last week - more than four months after Mr Mohini, 39, was stabbed to death in Mt Eden's View Rd.
Inquiry head Detective Senior Sergeant Hywel Jones last night told the Weekend Herald, from China, the death penalty was typically taken off the table in cases stemming from other jurisdictions. "Basically what happens in a case like this is we go through diplomatic channels and request that the death penalty is waived and that's what's happened in the past and once they give assurances they don't go back on that."

Assurances? Either they'll let him off in a trial that will last barely a day (because he's the son of a PLA/communist official) or they'll find him guilty of murder and sentence him to a life in a gulag, which he will appeal and will be heard and dismissed, all of which will take 2-3 working days. Those are the two options here if a bullet in a stadium is off the cards.
Is he going to get a fair trial in China? Is the family of the deceased going to see justice on behalf of the victim? Is it going to work the other way around; are New Zealanders who flee back home able to have their cases about who they killed in China decided in NZ?

Surely this trial must take place in Auckland - where the alleged murder happened, where all the witnesses are and all the evidence is. We wouldn't have accepted - for example - a French tribunal sitting in France to conduct a trial of the Rainbow Warrior saboteurs so why would we let the Chinese carry out their own "trial" in China for a murder of an Auckland Taxi driver in Auckland? For all the faults of this bill the NZ Courts Dept could still run a better trial via Skype than the People's Republic of China can with everyone in the same room of a state court in Shanghai.

If the Crown now has the legal ability to put the defendant in China on trial in a NZ court - regardless of the fact he is in Chinese custody - will China co-operate to make it happen?


At 2/7/10 1:19 pm, Anonymous Anonymous said...

"Either they'll let him off in a trial that will last barely a day (because he's the son of a PLA/communist official)"

Wasn't he working as a kitchen hand when he ran out of money to pay for his hospo course at AUT?

Obviously a sign of someone who was connected to the communist elite.

At 3/7/10 5:05 pm, Anonymous Anonymous said...

What is the saddest part to this post?
(i)That there is only 1 comment on this issue when, this & proposed changes to legal aid will make being tried for crimes before being convicted and punished, a sort of minor speed bump on the road to the penitentiary, one that completely disappears after 10 or 15 years and a handful more 'minor amendments'.
(ii)That the only other comment completely missed the point.
(iii)That the architects of this law seriously believe inmates will really get a free choice' about whether they waive their rights to attend trial.
Remember people can already plead guilty or not guilty yet increasingly innocents plead guilty because they have been told "It will be less hassle for everyone including you" that way.

(iv)When legal aid is changed so that lawyers are only paid for cases prepared with what some 3rd party has deemed to be 'a reasonable argument' not 'frivolous' and defendants are given the 'right' to waive public appearance, will anyone ever really know what is going on in our justice system. Prisons will be built in small towns to 'create employment'. If the jail population gets low will more prisoners be recharged and sentenced to extended terms and no one knows or cares?
(V0 If you didn't have to jump through 57 hoops any one of which can cause your post to disappear, in order to not be 'anonymous' at Tumeke maybe more peeps would post.
After all an anon post is not to be taken seriously.
(vi) Is that the point? 'this is my blog start yer own if you want to speak'.

At 5/7/10 3:14 am, Blogger Wayne said...

We wouldn't have accepted - for example - a French tribunal sitting in France to conduct a trial of the Rainbow Warrior saboteurs so why would we let the Chinese carry out their own "trial" in China for a murder of an Auckland Taxi driver in Auckland?

Because you stupid fat white fuck, there is no extradition treaty between China and New Zealand.

China is actually bending over backwards to help NZ resolve this issue. The alternative to a Chinese trial is no trial (most Chinese would be happy for the lowlife to take a bullet to the head).

Not because the Chinese side or New Zealand side want it that way.

But simply because there is no legal framework under which the suspect can be extradited back to NZ.


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