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The Standard

From the pen of Fran O’Sullivan

Written By: - Date published: 12:25 pm, April 3rd, 2011 - 21 comments
Categories: law and "order" - Tags:

It seems the stench of the decision to remove the right to a jury trial from those arrested in the ‘Terror Raids’ has even risen into the nostrils of usually conservative members of the intelligentsia.

Not only did (judge) Winkelmann suppress her reasoning for her December 9 decision last year but she also suppressed (for some weeks) the fact that she had made it.

“…..untenable for a senior court to rule in the prosecution’s favour and deny these people a right to have their case heard by a jury of their peers.”

and further:

Nor is it tenable for the Court of Appeal to refuse to say publicly why it has ensured the upcoming trial will be one decided by legal insiders.

Comfortable as she is, on the right of the political spectrum, O’Sullivan attacks the moral cowardice of the left for not speaking out as strongly as they could.

O’Sullivan particularly excoriates Labour and the Greens for their silence.

“….even Greens MP Keith Locke – who has been the subject of Security Service surveillance – has had little (if anything) to say on the court’s decision. But unless this carry-on is challenged this country runs the risk of being set on the path to Star Chamber hearings, where any activist facing serious charges will essentially be subject to a secret trial.

Fran O’Sullivan

By calling on the parliamentary left to stand up in condemning this decision, O’Sullivan may be mindful of the words of warning given by Pastor Niemoller before the US Congress, to the members of the establishment of the dangers that can befall, even them, for ignoring abuses of the state.

21 comments on “From the pen of Fran O’Sullivan”

  1. Thanks for highlighting this Jenny. Good to see Fran’s principles are still as sound as ever. I know you couldn’t reproduce the whole article in this post but I found two other passages particularly telling:

    Widely leaked police affidavits painted a colourful story that no doubt alarmed senior political figures…

    At its heart, the Urewera 18 case is not complex. It is being made complex by the prosecution’s apparent drive to retrofit the case so that the police can use what was initially deemed illegally gained evidence to bolster their submissions.

    I too am concerned by the court’s decision, and particularly its supression of its reasons because it may be the decision is somehow justified.

    But what is beyond dispute is the other aspects Fran has highlighted: the prosecution, and particularly the Police, have clearly behaved in an unethical and potentially illegal manner. That shouldn’t need to wait for the trial – and possibly form part of the defence.

    It should be investigated; thoroughly; now.

    • Draco T Bastard 1.1

      What the court does and the reasons for that should never be suppressed. Doing so is part of the make up of a dictatorial and unaccountable government.

      • You start second-guessing the judiciary, or constraining what they can do, you wake up one morning and you’re in bed with David Garrett 😀

        I agree with you in terms of reasons – I can’t think of anyhting that could justify the why of a decision being supressed. And in 95% of cases, that would also apply to the what. But I think there are circumstances – risk of witness or juror intimidation, say – where suppression of certain things may be justified, especially prior to proceedings.

        • Oleolebiscuitbarrell 1.1.1.1

          <i>Doing so is part of the make up of a dictatorial and unaccountable government.</i>

          Except that we do have very effective separation between government and judiciary in New Zealand.

          • lprent 1.1.1.1.1

            With regret, putting in a wysiwyg editor means that putting tags in directly is now something that isn’t allowed while in that editor.

            I’ll be putting the ability to switch editors in this evening. I was going to do it when/if I woke up early as per normal, but I had a really good sleep last night – and I got the solution to the bug whilst dreaming.

          • Jenny 1.1.1.1.2


            “Except that we do have very effective separation between government and judiciary in New Zealand.”

            Oleolebiscuitbarrell

            Ollie, Why is the independence of the state forces from our democracy seen as a virtue?

            Shouldn’t they instead be our accountable servants?

            Doesn’t the “effective separation between government and judiciary” as you put it, also mean less accountability and no democratic oversight of the state forces to the publicly elected officials of our democracy?
             
            What is it that is so great about the effective separation between the government and the judiciary?

            Or for that matter between the police and the government?

            Or between the army and the government?

            Or the secret service and the government?

            Or the crown (in the form of the Governor General) and the government?

            Being independent of the government can also mean being outside the control of our democracy

            Oleole, do you think that the state should be apart from, and separate from the government?

            In a democracy like ours shouldn’t we support the supremacy of our democracy over the state?

            And not the supremacy of the state over our democracy?

            In my opinion, in a democracy an independent state is not such a good thing.

            After all the state forces of Egypt, the army and the police, were until very recently completely independent, separate and above society, with no democratic oversight at all.

            I don’t think you would support this state of affairs in this country. 

            • Colonial Viper 1.1.1.1.2.1

              What is it that is so great about the effective separation between the government and the judiciary?

              It stops the PM from having the police raise trumped up charges against Opposition leaders, and then having the Courts put those leaders in jail for years at a time.

              Like has happened in nearby places like Malaysia, Singapore, Taiwan, South Korea, China,…
               
              So really there are some advantages.
               

              After all the state forces of Egypt, the army and the police, were until very recently completely independent, separate and above society, with no democratic oversight at all.
               

              Not quite: the army and the police were direct extensions of the Executive branch. Again imagine the example: the PM takes a disliking to an Opposition leader, and tells the Police Commissioner to get that Opposition leader arrested. Done. (And the outcome of the trial is predetermined as well).

               

              • Jenny

                C.V. I asked – “What is it that is so great about the effective separation between the government and the judiciary?”

                To which you replied – “It stops the PM from having the police raise trumped up charges against Opposition leaders, and then having the Courts put those leaders in jail for years at a time.
                Like has happened in nearby places like Malaysia, Singapore, Taiwan, South Korea, China,…
                 
                The key difference is that these countries are not democracies but dictatorships.
                There is no public accountability of the state.

                Effectively the un-elected head of state is often the leader of the police or the army.

                In fact the ‘State’ is the army and the police.

                Colonial Viper your argument that the state forces should be independent of a democratically elected government is contradictory.

                I claimed that – “the state forces of Egypt, the army and the police, were until very recently completely independent, separate and above society, with no democratic oversight at all.”

                To which you replied – “Not quite: the army and the police were direct extensions of the Executive branch.”

                I thought that is what I said.

                In Egypt as in most dictatorships the police and the army are the naked state, without any democratic oversight.

                You should never forget that our state forces are also not democratic in their organisational makeup. The so called “chain of command”, ensures that all those promoted to leading positions are appointed by a self perpetuating leadership, and not elected by the ranks and certainly not by the public, in this both, the police and the army are similar to dictatorships. This is why, in a democracy both these forces must be subservient to the democratically elected leaders.

    • Pascal's bookie 1.2
      Aah, but Rex, I was listening to various assorted worthies,
      on one of the blathering programs on the teevee this morning,
      and discovered that the Minister of Police’s job is to defend the Police,
      and that the current minister is well up to the task,
      and that no one can expect her to be anything other than forthright in her defence of the police;

      which is her primary job I was told,
      and not a one of the assorted gathered worthies saw fit to contradict.
      So there you have it.

      • Ker-rist on a popsicle stick. Care to name these worthies. Pb?

        Strangely enough it’s a view of the Minister’s job not confined to the incumbent in NZ. I’ve heard several holders of that office make the same statement.

        Wonder what the same commentators would say if, for instance, a hospital was alleged to have bungled and killed someone and the Minister of Health said it was their job secription to “defend doctors and nurses”.

        One good thing comes from all this though… with Judith Collins taking on the role, there’s no need for the fatuous Police Union.

        • Pascal's bookie 1.2.1.1

          Jon Johansson, Moira Coatsworth and Paul East, plus Holmes. So at least 2 should-have-known-much-betters

          http://tumeke.blogspot.com/2011/04/qa-nation-review.html

          • Rex Widerstrom 1.2.1.1.1

            The new Labour Party President, welcomed with such touching hope in another post here on this very same day?!

            Didn’t take her long to illustrate where her loyalties lie… with the status quo, as with everyone else who manages to rise to senior political office in NZ. Funny that.

            Paul East’s position I find extremely disappointing. Knowing him slightly as I do I have to wonder whether he actually believes that – I’d be astounded if someone with his knowledge of law and constituional matters did – or whether he’s letting party loyalty dictate his response. Either way… shame.

        • lprent 1.2.1.2

          Judith Collins appears to have bought into the defending the police myth more thoroughly than anyone since John Banks had the role.

          I keep having people of the right telling that she is bright and competent (and someone to take over from Key when he bails out) But so far I have seen no evidence of a backbone against anyone who can fight back, or signs of any understanding of the various roles of government.

          Not someone I would trust very far. Looks too stupid to trust.

          • ghostwhowalksnz 1.2.1.2.1

            Shes saying higher standards are ‘expected’ from the new commissioner ?

            Hello?
            shes had the job for 2 1/2 years. It would be interesting  to see if she has raised one finger about  general police competency  in that time

      • Jenny 1.2.2

        “…..the Minister of Police’s job is to defend the Police,
        and that the current minister is well up to the task,
        and that no one can expect her to be anything other than forthright in her defence of the police;
        which is her primary job I was told,
        and not a one of the assorted gathered worthies saw fit to contradict.
        So there you have it.”

        Pascal’s bookie

        Pascal I have been struck that through history it is a hallmark of a right wing politician to want kow tow before the myth of the infallibility and incorruptibility of the armed forces and the police, and to aspire to hand over leadership to them. (Sometimes with comically nauseatingly effusive speeches peppered with words like, “Saviours of the Nation” etc. etc.)

        Frankly apart from being dangerously wrong headed, I think this right wing instinct is rather infantile.

         

  2. Jenny 2

    oops neglected to include the link to the full article

    Fran O’Sullivan: Protect our basic right to trial by jury

  3. Andrew Roger 3

    And she was fairly harsh about Brownlee not too long ago either.

    Fran’s right- she shouldn’t have to worry about being the opposition on this- there should be a strong movement opposing the continuing anti-democratic behaviour of this government. Glad to know that if there was a movement though, she’d consider joining.

  4. Kris Gledhill 4

    The problem with expecting the Labour party to object to this is that the legislation in question – which allows prosecutors to apply to have trials expected to last 20 days or more before a judge and allows a judge to direct that the jury of ones peers should be replaced by a judge – was introduced in 2008 by the then Labour government. What it actually represents is another part of a process of removing fundamental features of the criminal justice system because it is thought that they are too expensive and inefficient. The Criminal Procedure Simplification Bill currently before Parliament is another example of this: the process leading to this was started under Labour and so they have little basis for challenging National for introducing it, since it could just as easily have been a Labour Minister speaking in favour of it. Congratulations to Fran O’Sullivan for pointing out that there is a principle here – namely trial by ones peers and decisions being made by the public not a judge – which is worth the costs involved.

  5. GINA 5

    Kris

    The problem with expecting the Labour party to object to this is that the legislation in question – which allows prosecutors to apply to have trials expected to last 20 days or more before a judge and allows a judge to direct that the jury of ones peers should be replaced by a judge – was introduced in 2008 by the then Labour government.

    Thanks for that. Unless someone can mount a good defense for Labour on this one my vote is going elsewhere. How far did this legislation progress etc etc.This makes it very clear that we need at least 2 new parties i.e. a left and right wing. Would be better with all left wing parties but It’s a free country for now .
    I’m beginning to wonder if we will actually have an election this November and wonder what type of terrorist false flag just might occur during the world cup.
    Then theres is another possibility The World Bank who promote PPP’s and the sale of countries assetts  are obviously writing National party policy.  Nobel prize winner Joseph Stiglitz claims the IMF and the Clinton administration helped rigg the Russian election to get Yeltsin ( their man ) into power. Stiglitz was in the top echelons of the Clinton administration at the time so was an insider. National cannot get electoral compliance with their real agenda so I think they might be going to rigg November.
     

  6. Jenny 6

    Jury trials are a recognised hallmark of a democracy. This is why Fran O’Sullivan specifically mentions that unless this precedent – “is challenged this country runs the risk of being set on the path to Star Chamber hearings”. Fran O’Sullivan

    The sort of court hearings they have in communist China.

    In democracies we have jury trials. 

    In dictatorships judge only trials are the norm. 

    n undemocratically ruled force (the police) should not have the power to oppose jury trials. 

    One of the reasons for jury trials is that the judiciary are not chosen democratically either, like leaders of the police and the army the judiciary are appointed.

    Democratic politicians of all persuasions should be strenuously demanding in the house of representatives that parliament immediately repeal the law that the allows the police to oppose jury trials.
    If the politicians fail to take up this message then it behoves the people of this country as in any other democracy to support the protests of those charged for their right to a jury trial.

  7. Jenny 7

    CV. I asked – “What is it that is so great about the effective separation between the government and the judiciary?”

    You answered – “It stops the PM from having the police raise trumped up charges against Opposition leaders, and then having the Courts put those leaders in jail for years at a time.
    Like has happened in nearby places like Malaysia, Singapore, Taiwan, South Korea, China,…
     
    So really there are some advantages.”

    Colonial Viper

    CV don’t you think that the public accountability, freedom of information, and right to protest that is a featured part of a democracy, makes your scenario of a democratically elected politician haveing his government opposition arrested, is so unlikely as to be farcical. 
    But hey, for a laugh let us explore this idea.
    cue dramatic breaking news music:
    Good evening everybody as everyone has heard by now the big news story of the day is the political furore in Wellington.
    Phil Goff, the leader of the opposition has been arrested on what some say are spurious trumped up drugs charges. 
    Prime Minister John Key says that he has been fully briefed by Howard Broad but says that it is a matter for the police and that the government will not be taking any action on the matter.
    It is early days yet, but already it looks as though Mr Goff is being elevated to National saint hood by mass rallies around the country which have been carried by this channel and in all the other mainstream media outlets, as well as being splashed all over the internet. There has also been world wide interest with this story making headlines around the globe. 
     
    Wait, wait, 
    Some late breaking news has just come through my headset.
    Just to hand, in a matter of hours current polls have turned completely around and show that and in the upcoming election the Labour Party looks set to win by a massive margin. 
    Yes folks it looks like a landslide victory for Labour.
    We cross live now to Labour Party headquarters, where despite the election still being months away, preparations are already being made for a victory parade to welcome Phil Goff on his release from Mt Eden prison where he is being held. The plans are that Phil Goff is to be carried out through the gates of the prison on the shoulders of Labour Party supporters. 
    There is to be a brief news conference and speeches and a temporary stage is to be erected in the road outside the prison gates. The crowds are expected to be massive. After the press conference it is planned for Phil Goff to be immediately taken by limosine to Mangere airport for a special chartered flight to Wellington to take up his position in parliament as Prime Minister. His first move will be to launch an inquiry into how the charges were brought against him. Already there have been some rumours of some early retirements in the police and judiciary.
    The incumbent Prime Minister John Key has been quoted as saying, “I never saw this coming, it has been a most unfortunate set of events, and if I knew this was going to be the result I would never have let things go this far. A full investigation is being launched and alongside ordering Howard Broad to stand down. Parliament has made an executive order that the all charges against the leader of the opposition have been dropped. I would like to take this opportunity to give my sincerest apologies to the New Zealand people for not acting sooner.”

    Later Campbell Live will investigate if this has been a bigger back down in government direction than that brought about by the massive protests against schedule 4 mining.

    In other news…… 

    Actually come to think of it Snake, on current polling, your unlikely fantasy looks the only way of Phil Goff becoming PM.

     

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  • Joyce destroys Government rail link certainty
    Infrastructure Minister Steven Joyce has destroyed the certainty the Prime Minister gave private sector investors in his State of the Nation announcement on the City Rail Link, Labour’s Auckland Issues spokesperson Phil Twyford says.   “Steven Joyce has again poured… ...
    2 weeks ago
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