The Dim-Post

July 30, 2016

Really?

Filed under: Uncategorized — danylmc @ 8:56 am

Duncan Garner writes about two recently sentenced child-killers:

I support Massey law professor Chris Gallavin on this.

We should be applauding him for his bravery and guts in speaking out. He won’t be popular with some in his profession.

He says when these two appear before the Court of Appeal their convictions for manslaughter should be quashed – and they should be re-tried for murder. Like they should have been in the first place.

He’s confident they would be found guilty. Then they could be given a life sentence. Then they would be sent to jail for 20 years plus.

Does the appeals process actually work like this? I’m not a lawyer but I saw a trailer for the Ashley Judd movie Double Jeopardy once, and I don’t think this is how the legal system works.

Update: Andrew Geddis has already written about this inaccurate description of the appeals process here. A shame, what with all this talk of post-truth politicians that senior academics and broadcasters are getting something like this so wrong.

 

26 Comments »

  1. Andrew Geddis has already commented, quite diplomatically, on the flaws in the argument: http://www.pundit.co.nz/content/la-trahison-des-clercs

    Comment by Patrick — July 30, 2016 @ 9:10 am

  2. No. It doesn’t. At all.

    Prof. Gallavin’s article was a complete and utter misstatement of how the law works, and it’s deeply concerning that his wrong views are being parroted by others in the media.

    Comment by Andrew Geddis — July 30, 2016 @ 9:31 am

  3. My reading of Gallavin’s argument is not that the Crown opted for manslaughter rather than murder was because of possible defenses of diminished responsibility and provocation. Rather that those are very close to the arguments the defense is using to have the sentences reduced.

    But diminished responsibility and provocation are only partial defences of murder and used during the sentencing stage to reduce the punishment.

    If the crime was committed in situation of diminished responsibility and provocation then the crime was murder not manslaughter:

    …their pleading of them on appeal is tantamount to a confession to murder.

    I’m not a lawyer so have no idea what options the court has but if it took such a view one would think it would need to be a consideration.

    Andrew Geddis believes the options put foward by Gallavin have no legal basis but if the court took such a view – an implied admission to murder would their be any options?

    Comment by NeilM — July 30, 2016 @ 9:57 am

  4. No it doesn’t. If they challenged their convictions the it would be possible to retry on murder, but as they entered guilty pleas that is all but impossible. Gallavan comments on much but understands a lot less.

    Comment by Douglas Ewen — July 30, 2016 @ 10:12 am

  5. The really sad part is that there is no chance whatsoever that RNZ’s Panel or NZME or Stuff or any of the other media outlets will read, reflect and think twice about asking Gallavin next time. He is available, and available beats accurate. They simply don’t care.

    Comment by sammy 4.0 — July 30, 2016 @ 1:30 pm

  6. Aaron Dale Vercoe springs to mind when discussing this issue. Gallivan doesnt seem to have heard of him.

    Comment by Ross — July 30, 2016 @ 3:57 pm

  7. Vercoe was charged with murder of a young child in the late 1990s. He pleaded not guilty although he was happy to accept a guilty plea for manslaughter. The Crwon rejected the plea deal, and Vercoe walked free after being acquitted of murder.

    Gallivan doesnt seem to understand that Moko’s killers could have been acquitted of murder had they been charged with that crime. For an academic to let emotion triumph over reason and common sense is a real concern.

    Comment by Ross — July 30, 2016 @ 4:03 pm

  8. Perhaps Massey teaches a different legal paradigm?

    Comment by terracefarmorganics — July 30, 2016 @ 4:13 pm

  9. To Ross’s comment on Vercoe,

    Couldn’t he have been charged with both, so that the prosecution argument was ‘find him guilty of murder, or at the very least, manslaughter’?

    If not, could he not have been charged with manslaughter after his acquittal for murder?

    [As is probably obvious, I’m no lawyer but I did watch Law and Order from about the mid-90s to the mid 2000s.]

    Comment by steve — July 30, 2016 @ 5:19 pm

  10. It often happens that people who are acquitted of murder are convicted of manslaughter
    “A man has been found guilty of the manslaughter, but not guilty of the murder, of journalist Phil Cottrell and his teenage co-accused has been acquitted.”
    – R charged with the murder of a young 21 year old man by dropping a rock through a moving cars windscreen from a motorway over bridge. … Jury returns verdict of not guilty of murder but guilty of manslaughter.”
    and this more interesting one
    “OK charged with two others of savagely stabbing a young man to death. All three originally convicted of murder. Successfully reviewed case and successfully argued in the Court of Appeal that there was a serious miscarriage of justice because the jury were not properly instructed on the possibility of K being guilty of manslaughter and not murder. Appeal result: Appeal allowed, murder conviction set aside. K later pleaded guilty to manslaughter ”

    http://guardianchambers.co.nz/index.php/lester-cordwell/cases

    Comment by ghostwhowalksnz — July 30, 2016 @ 6:07 pm

  11. I can’t say I was impressed by Garner’s piece or his previous effort on the same topic. I can’t quite put my finger on my problem with it. Sure the individuals in question deserve no sympathy, but somehow the invidious spectacle of the mob lining up in a competitive derision exercise brings out something suspiciously close to that in me. I don’t like to see people exulting in the suffering of others even if said others are evil and despicable. Queue inevitable segue into how the Norwegian criminal justice system is superior to ours, etc. etc.

    Comment by Bill Forster — July 30, 2016 @ 6:11 pm

  12. “I can’t quite put my finger on my problem with it.”

    In Duncan Garner’s case, the problem would be clickbait. Or in his Mediaworks gig, ratings.

    He might claim to care, but clearly not enough to put the work in. (Bear in mind that Gallavin’s fundamental error was exposed BEFORE Garner’s piece, and he has not responded since. Duncan could surprise us by saying “sorry, my bad”, but don’t bet on it).

    Comment by sammy 4.0 — July 30, 2016 @ 6:27 pm

  13. @NeilM,

    Prof Gallavin is completely wrong about why the Crown accepted a manslaughter guilty plea in place of charging murder. It had nothing whatsoever to do with possible defences (“diminished responsibility and provocation” … which aren’t even defences in NZ), so the fact the killers may be pleading such factors as part of an appeal to have their sentences reduced is irrelevant to the original charge. He’s just … wrong.

    @Steve,

    Couldn’t he have been charged with both, so that the prosecution argument was ‘find him guilty of murder, or at the very least, manslaughter’?

    Yes – this charging in the alternative happens lots and lots. The problem with the “Baby Moko” case is that there was some uncertainty over who did what to the child and what intentions could be proven – and some evidence depended on other children’s testimony (which could fall apart at trial). So the risk was that the Crown puts up murder as a charge (with manslaughter in the alternative), the trial goes pear-shaped and a jury can’t work out which of the two is guilty of anything and so one (or even both of them) walk free. That was a real legal risk here.

    Comment by Andrew Geddis — July 30, 2016 @ 8:13 pm

  14. Was this guy watching too much of the Oscar Pistorius case? Something similar happened there, but I don’t think you can do that in New Zealand.

    Comment by Gareth Wilson — July 30, 2016 @ 9:07 pm

  15. Garner is yet another (know all, loudmouth, ignorant) media personage touting for advertising space.

    Comment by peterlepaysan — July 30, 2016 @ 9:33 pm

  16. @Andrew

    I don’t that’s what he’s arguing though.

    To exaggerate his argument for effect it seems to be:

    How does a court react when the defense lawyers argue – “The sentence for the conviction of manslaughter is too severe since they were provoked to kill the victim”.

    I thought it was an interesting argument even if it has no merit.

    Comment by NeilM — July 30, 2016 @ 10:25 pm

  17. Cue. Not queue. Never thought I’d end up having senior moments.

    Comment by Bill Forster — July 31, 2016 @ 10:05 am

  18. @NeilM,

    I don’t that’s what he’s arguing though.

    I actually have no idea what he is arguing in relation to “provocation”, because his column is so deeply confused as to what actually was at stake in the case and the Crown’s charging decision.

    How does a court react when the defense lawyers argue – “The sentence for the conviction of manslaughter is too severe since they were provoked to kill the victim”.

    As it would any claimed mitigating factor. By asking “is it a real one that is present in this case?” and, if so, “how much should it discount the sentence (if by anything at all)?”

    For why “provocation” might be relevant in such an exercise, let’s move this off the “Baby Moko” case, because it’s a shit argument in regards that killing. Let’s say you come home and find a person standing over the dead body of your child. They raise their hands and kneel before you in submission. But you, enraged, grab a poker and beat them to death.

    Let’s say you get off a murder charge not because of self-defence (they posed no danger to you) but because it can’t be proven you intended to kill/were reckless as to whether you would do so. So you are convicted of manslaughter.

    When it comes to sentencing, should you be able to argue that the fact the person killed your kid “provoked” your actions and so you shouldn’t get as heavy a jail term as you otherwise would? Or does a judge ignore that fact?

    Comment by Andrew Geddis — July 31, 2016 @ 10:54 am

  19. When it comes to sentencing, should you be able to argue that the fact the person killed your kid “provoked” your actions and so you shouldn’t get as heavy a jail term as you otherwise would? Or does a judge ignore that fact?

    AFAIK judges can take provocation into account when sentencing for murder. I don’t believe that can happen when an accused is convicted of manslaughter.

    Comment by Ross — July 31, 2016 @ 3:40 pm

  20. @Ross,

    Sentencing Act 2002

    9 Aggravating and mitigating factors

    (2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case:

    (c) the conduct of the victim:

    Why do you think that this does not apply as much for manslaughter as for murder?

    Comment by Andrew Geddis — July 31, 2016 @ 5:04 pm

  21. It does, but it invariably needs to be approached with grave circumspection and would never work with an infant. That would be the classic plea in aggravation of sentence…

    Comment by Douglas Ewen — July 31, 2016 @ 5:16 pm

  22. @Douglas,

    Yes. As I said, it’s a shit argument in the actual case.

    Comment by Andrew Geddis — July 31, 2016 @ 5:34 pm

  23. I don’t think Massey has a real law school. But they do offer a degree called Master of Construction Law – maybe that enables the graduate to ‘construct’ innovative legal interpretations?

    Comment by richdrich — July 31, 2016 @ 9:56 pm

  24. Andrew,

    Manslaughter is basically less culpable than murder (eg, accidental killing or death). I wouldn’t expect provocation to be used in mitigation in cases involving accidental killing or death, although I can see that in some assault-related cases resulting in death it might be offered during sentencing. Given that provocation can no longer be used to defend a murder charge but can be used in mitigation, I didn’t seriously consider if or how it could be used to mitigate manslaughter. But I guess there are instances when it might be used.

    Comment by Ross — August 1, 2016 @ 6:19 am

  25. My partner was employed in an academic role down near bottom of the food chain at Massey U over a number of years – her experience has led me to conclude the place is akin to a sausage factory

    Comment by rodaigh — August 1, 2016 @ 10:27 am

  26. I really doubt Massey is alone in that regard.

    Comment by Conrad — August 2, 2016 @ 10:36 am


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