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Thread ID: 83262	2007-09-25 15:00:00	Awarding of Legal Costs against the State	KenESmith (6287)	PC World Chat

Post ID	Timestamp	Content	User
594946	2007-09-25 15:00:00	A Government Agency such as the Police, Customs, IRD, etc with the relatively unlimited resources of the State can bring a prosecution against a citizen, and lose their case, whether it be Criminal or otherwise, and the defendant does not have as a matter of right, the awarding of legal expenses from the prosecuting department. This is patently unfair, as the cost of defending oneself, even in a relatively minor matter can involve a heavy financial burden on an individual. There is the school of thought that the Police and Government Departments don't get it wrong, and the the defendant was just lucky to get away with it, but whether the defendant was lucky to get away with it or in fact was a victim of State prosecution zeal, the burden of proof is with the prosecution, and if they fail to establish a case against a citizen, why should the victim of a government department prosecution, who does not qualify for legal aid, suffer the financial burden of defending themself, when the State's case was not conclusively established. A judge may exceptionally award costs to the citizen, but this is the exception not the rule, and to my mind this state of affairs is unjust, and should be rectified. Several years ago I raised this issue in the National Party when they were in government, and found that many lawyers in the Party were opposed to the concept of defendants who were acquitted or had the case against them dismissed should be reimbursed their legal costs, but no over powering argument was put up to justify this situation.	KenESmith (6287)
594947	2007-09-25 15:33:00	I agree. That's always seemed strange and unfair to me. Not sure what can be done about it though... Also, not meaning to be rude but your post would be 100 times more readable if you left a line between paragraphs. You've gone to the trouble of writing it in paragrahps, so just press Enter one more time :p	george12 (7)
594948	2007-09-25 19:17:00	You're right. You are referring to the legal notion called "Quality of Arms" - but, as most defence lawyers know, this is really a fiction. The Crown can bring almost unlimited resources to bear on a prosecution in order to obtain a conviction but this level of resource is almost never available to the accused. Crown prosecutors are paid more - and for more hours - than a legally aided accused's lawyer. I think the top rate for legal aid criminal defence is $160 per hour. A top defence lawyer will be billing at around $550 to $600 per hour, and any senior lawyer will be billing at $250 per hour+. I suspect that the argument against reimbursing costs for acquittals would be that a verdict of not guilty is not a verdict of innocent... But really, this is a rather Jesuitical answer because the presumption of innocence should mean that if the Crown fails to prove then the accused has maintained their innocence.	Deane F (8204)
594949	2007-09-25 23:06:00	The argument for reimbursement of costs is a matter of natural justice - one is presumed innocent until found guilty, which must be established beyond reasonable doubt . This issue can range from the Department of Labour bringing an action against an individual, for supposedly being in breach of regulations, to the Police pursuing a case without sufficient evidence to get a conviction . Just reflect at frequent injustices at the lowest level, a Traffic infringement notice that is not justifiable - defend it get off, and be many times worse off than paying up taking the fine on the chin . A recent case in Sydney illustrates this situation - a red light camera only establishes that the infringing vehicle was in the intersection Zone when the light was red, a vehicle may have entered the intersection quite legally on a green light and been forced to stop, and the car was then subsequently photographed when the lights changed . The driver concerned had witnesses and reasonable proof to establish his innocence of the alleged infringement . The local Traffic authorities were not interested, and wouldn't back down . The victim had his day in Court, established his innocence of the infringement, at a personal cost of AUD 10,0000 plus - he was not awarded costs, fortunately he could afford it - but that is not the point, it was unjust for the authorities to proceed . A crusading civil servant or police official will not be usually be the one held to account if the State loses a cases unless it can be established that the individual official was acting with malice . Citizens can be the victims of ill founded or ill prepared prosecutions, just due to the cost of defence . One benefit of a right of reimbursement of legal costs, is that theoretically more care will be taken before the Police or a Government Departments bring a prosecution against a citizen, and perhaps where there is doubtful circumstances a case will not proceed where this is not always the case at present . If a private individual brings a civil case that is lost,(ie not established on the balance of probabilities, which is a much lower level of proof that beyond reasonable doubt), then they will not only have to pay their own costs but also the other parties costs and court costs . Why cannot the State be held accountable to an equal degree where they prosecute a citizen .	KenESmith (6287)
594950	2007-09-26 00:43:00	correction the state is not out to get you sorry drunk again grammar bad after first bottle.	tedheath (537)
594951	2007-09-26 01:10:00	That Aussie would have broken the law before and not got caught so whats the difference. He just should have paid the ticket and moved on. The state is out to get you it just enforces laws.The Crusades have finished the juden have taken over the holy land. Some people just dont know when to give up. tedheath The "juden" Ted? Now why would someone for whom, I assume, German is not their native tongue choose to say "juden" instead of "jews". Why, for that matter, in describing Israel's activities, would you choose to say "jews" and not Israel, as if all Jews automatically agree with Israeli foreign policy. And why would someone who so likes the word "juden" also choose to have a picture of a Stuka, complete with swastika, as their avatar? Just curious.	Biggles (121)
594952	2007-09-26 01:16:00	The argument for reimbursement of costs is a matter of natural justice - one is presumed innocent until found guilty, which must be established beyond reasonable doubt. What you are referring to is burden of proof. The notion of natural justice - in a legal sense, anyway - is something entirely different. defend it get off, and be many times worse off than paying up taking the fine on the chin. Again, sorry to split hairs, but what you are referring to is the cost of employing a legal technician - ie:a lawyer. True, the legal system is so complicated and arcane that to mount a proper defence you must employ such a person - but it cannot be argued that the Crown is required to provide the means to prosecute a case as well as the means to defend that same case. Remember, in a criminal prosecution, the Crown is acting on behalf of society and against the accused - as well has have the cards stacked against them what with the fact that the prosecution must disclose their entire case to the accused but the accused need not disclose the defence they intend to deploy (except in the case of an alibi defence - in which case the amount of disclosure is limited.) If a private individual brings a civil case that is lost,(ie not established on the balance of probabilities, which is a much lower level of proof that beyond reasonable doubt), then they will not only have to pay their own costs but also the other parties costs and court costs. Why cannot the State be held accountable to an equal degree where they prosecute a citizen. This is a compelling argument. I'd say that the reason it does not obtain is that it would cost far too much. But what if you employ a top lawyer and you still lose in court - and go to jail. Should you still have to pay your lawyer?	Deane F (8204)
594953	2007-09-26 01:26:00	Stuka my equaly favorite plane (I am an aircraft engineer) along with DC3. Could get avatar with Hungarian stuka but cant find a picture. Could use DC3 avatar but I dont want to. NZ is a free country, people here are still allowed to use German words even if Germany came second in 2 world wars against us. We shouldnt hold grudges like you may do. tedheath	tedheath (537)
594954	2007-09-26 01:42:00	Stuka my equaly favorite plane (I am an aircraft engineer) along with DC3. Could get avatar with Hungarian stuka but cant find a picture. Could use DC3 avatar but I dont want to. NZ is a free country, people here are still allowed to use German words even if Germany came second in 2 world wars against us. We shouldnt hold grudges like you may do. tedheath Certainly its a free country. Just exercising my freedom to question your motives, especially since you dodged the question. Why would I be holding a grudge?	Biggles (121)
594955	2007-09-26 03:42:00	The "juden" Ted? Now why would someone for whom, I assume, German is not their native tongue choose to say "juden" instead of "jews". Why, for that matter, in describing Israel's activities, would you choose to say "jews" and not Israel, as if all Jews automatically agree with Israeli foreign policy. So, tedheath, answer the question. Why would you use the German word for Jew in an English sentence? The moderators obviously find this acceptable - and so, by extension, PC World Magazine has no problem with it either. But I take offence - and I'm not Jewish. Free speech is not like free beer. Freedom carries responsibility. Your gratuitously offensive language shows very little or no responsibility.	Deane F (8204)
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