Another miscarriage of justice?

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10564304

Let's get this straight: Borrell sought out Davis (all the witnesses agreed with this, including the guy who was with Borrell.)

Now, if I am attacked, how can I be guilty of murder? There's obviously no intent to kill - I would have hunted him down if I wanted to murder him. The absence of an effort to locate Borrell proves that Davis was merely acting instinctively. If anything, Borrell was premeditating.

you are referring to a basic intent

there are other types of intent that satisfy the definition of murder

he shouldnt have even been out of jail.

those conviction figures are completely wrong - certainly did not have any for assault or violence unless you count wilful damage

it is correct however that he was on bail for robbery when he committed this murder

he was a minor, petty offender for a year or two, then the seriousness of his offending very suddenly increased with robbery and murder in 2007

If you attack me with a knife, and the only weapon I have is a shotgun, then I full know if I defend myself that you are going to die.

When I pull that trigger I am sure as fucking intending your death, but no jury would possibly convict me.

true, but that wasn't the situation here

Borrell's friend ADMITTED that Borrell jumped out of a taxi, ran towards Davis and assaulted him!!!

Yes, Davis should have been in jail already for other things. But in this case there was no sign of premeditation unless premeditation means "1 second beforehand."

but Davis didn't claim self-defence

his defence was that it was an accident, Borrell fell on to the knife, which the jury rejected

ps murder doesn't necessarily require premeditation in the sense of a plan to kill

I agree. The fact he was carrying the knife - as a weapon - makes any crime he does with it aggravated. If it was a chef being attacked in his kitchen while he was making sushi then maybe he could say 'I had it in my hand' - but not this situation.

Also - one thing re: his parole. Did anyone see that TVNZ followed the offender around to see what he got up to??? Holy crap, he was hanging out with on of the prosecution witnesses even - I'd love to know what his testimony was in that case..

I feel for the family but god, how can the Herald just blatantly quote lies like that without at least a factual correction after them? So fucking sick of media vigilantism...

So it looks like the only possible underlying systemic problem was the failure of breaches of bail to see him be remanded in prison.
And even then, I'd need to see bail rules as to what is considered a breach such that they are imprisoned for it.
But bailing him in advance of that crime, given the previous crimes were "only" drink-driving and damage etc seems appropriate.

Nasty little shit should clearly be in prison for a long time for this murder of course

Bail was refused in the district court in no uncertain terms

However he later appealed (I think) and was granted EM bail

which is supposed to address the safety concerns and other concerns of granting bail but the electronic monitoring system is not perfect

you're right, if you looked at his conviction history in mid 2007 all you would have seen was a few driving convictions, some wilful damage and disorderly type offences. no violence at all. no different from hundreds of other young male offenders around the country.

OK I had a good look at Brookers (sp?) today on murder, JH, and I have a better understanding of it.

I guess it falls into the inflicting a wound that could reasonably have resulted in death

That seems oddly subjective... why do we see so many GBH assaults and so few attempted murders (when there are South Auckland gang bashes with fence palings etc)? Is it a much harder case to prove?

Do you honestly think his crime is 80% as bad as the Karen Aim murder? (10 vs 12.5 years)

Davis admitted the act, showed remorse. The other guy still refuses to accept he did it.

Davis was sought out by the victim. He had only armed himself to protect the party from intruders earlier (a point agreed to by ALL concerned during the trial). He was not "hunting prey", nor did he have a very similar incident 2 weeks before.

Whereas the Aim killer sought out a victim, carried a weapon for the express purpose of murder, and had showed a similar criminal pattern a couple of weeks before.

Incidentally JH why did the Aim killer get concurrent not consecutive when the acts were separated?

but Davis, despite his initial "confession," pleaded not guilty and was only convicted after a jury trial - therefore no credit for guilty plea etc and remorse was fairly contrived

Broughton on the other hand pleaded guilty - ironically, he then still tried to deny some responsibility, by saying he was only a party to the crime and not the principal - however, he was of course sentenced as the murderer

what was the other offence again?

GBH

yeh safer and easier to get a conviction on GBH rather than risk the accused walking on attempted murder

prosecutors playing it safe will lay the GBH charge and take the view it's better to get a conviction on something, than have the accused get off scott free

okay, well the simple answer is that the GBH has to be concurrent, because the murder sentence is for life!

you can't add a finite sentence on to life!

I guess it just doesn't appeal to my sense of *natural justice* that someone with a single stab - a mistake - gets probably 3x longer than somebody engaging in a bestial beating involving a mob - just because the victim doesn't die!

Not even onto the non parole period?

no. because it's a non-parole period, not a sentence.

one thing really bugging me at the moment is the media constantly speaking of the non-parole period as if it were the actual sentence. grrr. very misleading to the general public.

Can you blame them considering how often - in the past - prisoners have got parole on the first attempt?

A good example of Nagel's Moral Luck I suppose (resultant luck in this case).

http://www.iep.utm.edu/m/moralluc.htm

still not acceptable

jesus christ - national's change to bail law is a fucking abomination. It's so open to abuse.

reverts the law back to how it was tho

How the fuck do you define a risk though?

Anyone who has commit a crime is technically a risk as they have disregarded the law.

My CLS rage is boiling up inside me >_<

Dude if you realised how hard it can be to successfully oppose bail for violent or repeat offenders.

How many burgs do you think are done by bailed offenders?

to make the law work (and make sense) "risk" would have to be defined as "a real risk" (not a remote or fanciful risk)

I agree that on the surface it may look strange

where are you studying law? you're taking juris right now i take it? david williams was always amusing when it came to the critical legal studies component of juris...

It's really hard for someone with a politics/military background - where "might makes right" and basically anything is on the table - which is actually the opposite of pragmatism - to cope with a law/policing type environment.

I've said it before, the law is like a ship covered in barnacles, all those accretions of common and case law that have slowed it down and made it unmanouevrable.

God his girlfriend is trash

vs Judge Learned Hand:

"The common law stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left, and in his turn left a foundation upon which his successors might work."

Common law - barnacles or a coral reef?

a bit of both

It's interesting we thought of similar yet so oddly different analogies - we even used 'accretions' actually. Perhaps I do know a bit more than you think, BG :>

I never doubted how much you know vadinho. In fact, if lets say by some twisted turn of fate you end up running the criminal justice system one day, I wouldn't doubt your capacity to do so, I'd simply immigrate.