Editorial: Switch leaves defendants at disadvantage

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Inverting principle of proof in bail cases heavy handed.

The burden of proof is a precept of our legal system. It decrees that the necessity to provide proof should always lie with whoever lays charges. Defendants, for their part, enjoy the benefit of assumption and need no evidence to support their claims. So deeply embedded is this principle that it has continued to hold sway down through the years. Twice in the past month, however, the Government has ventured into this territory and seen fit to tip the principle upside down. This can be justified only in the most extraordinary circumstances where there is a clear danger to members of society. On balance, that is probably the case in both of the Government's transgressions.

The first, part of its Children's Action Plan, requires abusive parents to prove to Child, Youth and Family that they are no longer a threat. Before, it was up to the state to prove an abusive parent remained unsafe. The switch implies, unfortunately, that previously unfit parents are beyond rehabilitation. It has received little criticism, however, because of this country's appalling record of child abuse and the need to provide greater certainty that children will be removed to a safer and more nurturing environment.

Their welfare must come first.

More recently, another change in the burden of proof has been finalised with the passage of bail amendment legislation. This requires a person on a murder charge or repeat violence, class A drug or sex charges to persuade a judge that the community will be safe if they are released. The Crown no longer needs to show why defendants should be locked up. The legislation is, in large part, a result of the uproar over the murder of North Shore teenager Christie Marceau by Akshay Chand, who was out on bail while awaiting trial for kidnapping her.

Law changes based mainly on one case are rarely a good idea. They smack of a knee-jerk reaction. This, and the switch in legal principle, duly attracted the attention of the Law Society. It argued that the small number of serious crimes committed by people on bail did not justify a reversal of the burden of proof. Ministry of Justice figures showed that of the 123 people bailed while on murder charges over four years, 14 committed an offence while on bail, and seven of these committed an imprisonable offence.

The society said discretion over who should get bail was best left to a judge. Retaining their ability to make fact-sensitive assessments would be better than the blunt instrument provided by the amended law. It added, however, that it was incredibly complex to predict which offenders would reoffend while on bail. There was no foolproof way of identifying who was likely to commit crimes. Judges, the society conceded, did not always get it right. It wondered, however, if the bail amendment legislation would really help matters.

In effect, it answered its own query. When judges do get it wrong, no matter how rarely, the results can be devastating, as in the case of Christie Marceau. The legislation will help by making it far more probable that the likes of Chand will be held in custody.

The Justice Minister, Judith Collins, says the new law "strikes the balance between public safety and a defendant's right to be considered innocent until proven guilty". There is no such balance. On matters of bail and child abuse, defendants have now been disadvantaged by the jettisoning of an important principle. Erring on the side of caution may well be justified in these two instances. It should not, however, become a regular port of call.

- NZ Herald

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