Why the Government, the Opposition and the Media may help Muhammad Rizalman bin Ismail walk

On the weekend when the story broke of the diplomat invoking diplomatic immunity to flee potential charges over a sexual assault I was amazed and concerned as to the tone of the reporting, and the comments made by many as to the alleged incident. Notice I used the word alleged there, I did that on purpose and it’s what many who have spoken publicly have not done, which now may be a genuine defence for Muhammad Rizalman bin Ismail’s lawyers.

We have a think in our justice system called Sub Judice where “it is generally considered inappropriate to comment publicly on cases sub judice, which can be an offence in itself, leading to contempt of court proceedings.” This is also linked quite closely to the legal requirement for a court case that all accused are “innocent until proven guilty” but in a more basic way it’s all about not speaking publicly about a case that may influence the jury, and therefore the outcome of that case. It applies only when charges have been brought so I acknowledge this technically isn’t in breach of that convention, but I would argue that there has already been an atmosphere created that may not allow Muhammad Rizalman bin Ismail to get a fair hearing. If someone cannot get a fair hearing…they walk.

Some specific comments that I would point to.

John Key

“Our hands are effectively tied, but we still expect justice for the victim”
“we will do everything that we possibly can to make sure this person is held to account”

David Shearer

“…justice is not done for the victim here and we don’t see that that person is brought properly to justice”

Now these statements (which are a couple of many, many public comments made by politicians, talkback hosts, bloggers, commentators etc…) paint a picture of justice needing to be done for a victim, If there is a victim there is a crime and they are associating that crime to the diplomat. They are saying he committed the crime and needs to face justice for the victim.

A quick Google on the subject around the time the news broke shows many headlines that talk in the affirmative of a crime being committed and linking it to the diplomat.

HeadlinesNow this post is in now way a support of the diplomat, or a defence of attacks on women so please don’t see it that way, I am purely looking at how this may, or may not proceed in a legal sense. I am left wondering, due to the environment flamed by John Key, Murray McCully, David Shearer and all in the media who have inadvertently, or blatantly, convicted Muhammad Rizalman bin Ismail of committing a crime, have now also given his lawyer the ability to argue that his client cannot get a fair hearing.

And I think he may have a point.

The problem with vilifying the Roastbusters

Roastbusters-1200First let me state that this post in no way supports the alleged actions of the group that has labelled themselves the Roastbusters, what this posts objective is to demonstrate to all New Zealanders the folly of convicting these guys before due process has occurred, and in fact the danger of not getting a conviction if these allegations are true and it goes to trial.

In New Zealand we have a Bill of Rights that entitles every person, no matter how low on the totem pole, the right to a fair trial.

Amongst other specifics, section 25 lists these things as a ‘minimum right’

  • the right to a fair and public hearing by an independent and impartial court
  • the right to be presumed innocent until proved guilty according to law

So far over the past few days we haven’t just heard ‘Owen from Nelson‘ condemn these young men as ‘criminals and rapists’ on late night talkback, but the Police, MPs, Rape Prevention organisations, Bloggers, Commentators, Educators and more.

Here are some examples from just the past 24 hours

  • The Police on Duncan Garner, question, “Do you think this could be rape?“, answer, “Yes!
  • MP Carol Beaumont “This fact that they think it is okay to stupefy young women by using alcohol, and then rape them, is completely wrong.
  • National Rape Collective said on OneNews they were committed ‘criminal behaviour
  • The police said on TVNZ news last night that they believed their ‘behaviour was criminal‘.
  • A Principal of one of the Roastbusters old schools said that it’s wrong that “the legal system does not offer protection” to the girls.

The danger with these kinds of statements, the statements that convict these young men before due process, is that we could be setting up a scenario where they do not, and can not get a fair trial.

As a broadcaster you are always warned about making statements prior to a trial that could be used by a defence team to say that their client cannot get a fair trial. When someone is charged with a most horrendous murder of a child, and the talkback board lights up with people wanting to ‘string them up‘ or using terms against that person like ‘murderer‘ the correct process is to not allow those comments to go to air. Now in this case there are no charges so it’s not quite as black and white as that, but my concern is that if these alleged crimes have been committed, then our society has been allowed to be whipped into such a frenzy against these young men, that there is no way they could get a fair trial and it would get thrown out of court.

I believe these young men will end up facing charges as all it takes is one girl to come forward and make a complaint and I think one will, which makes the idea of allowing due process to take place all the more important.

The danger of vilifying these young men, convicting them in the court of public opinion, and those with authority such as police, politicians and people of varying influence using terms such as ‘rapist’ before a trial happens, is that if they have indeed committed those crimes all our accusations now may lead to their case being dismissed.

Mega blunder…or justice for Kim Dotcom?

From day one of this controversy around Kim Dotcom I stated publicly that his assets shouldn’t be frozen and his site should not have been taken down.

You can hear my initial thoughts here in an interview I did with bFM

Now that wasn’t a statement of his innocence, I have no idea about if he is, or isn’t guilty, but an accused has the right to defend him or herself from accusations. What has happened here is that he is being treated guilty before he has he day in court.

It’s yet to be proven if his site, MegaUpload, has done anything wrong so why has it been taken down, it’s yet to be proven if he has participated in any illegal activity so why are his assets frozen?

Presently Kim Dotcom is innocent of all crimes he is accused of.

Well it seems through a procedural error, Dotcom may have had his chance to now live his life as if he was innocent until proven guilty.

An incorrect court order issued against the founder of Megaupload has been declared “null and void” by a New Zealand judge. The legal bungle could lead to the return of the internet tycoon’s multi-million dollar fortune.

New Zealand police reportedly made a procedural error and applied for the wrong kind of restraining order. As a consequence internet mogul Kim Dotcom, formally known as Kim Schmitz, was not afforded the opportunity to defend himself prior to the seizure of his assets eight weeks ago by the police.

The Judge presiding over the case, Justice Judith Potter said on Friday that the order carried no “legal effect” and the case would have to be re-evaluated, the NZ Herald reports.

Is this the end of end for Kim Dotcom. No. For him there is a long way to go to prove his innocence…which again is not how the justice system should be working. The burden of proof should always be on the prosecution…in this case it seems otherwise.