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Franks Proposes Remedy For Legal Aid Blow-Out

Franks Proposes Remedy For Legal Aid Blow-Out Risk In Sentencing Bill

ACT Justice Spokesman Stephen Franks wants changes to the Sentencing and Parole Reform Bill to block - before it gets up speed - a new legal aid industry in sentencing hearings. "The Bill has strong new incentives for offenders and their lawyers to dispute facts in their trials after they have been convicted but before sentencing," he said.

"Clause 21A, titled Proof of Facts has been introduced into the Bill following Select Committee hearings. It gives defendants' lawyers a new range of opportunities to stretch out court hearings after a verdict has been delivered. They can argue new evidence that has not been presented to the jury and they can force Police to have to disprove all kinds of personal assertions about the defendant and the case that could mitigate against a longer sentence.

"This clause was included in the Bill despite the fact that the Law Society unselfishly told the Select Committee that this new code of criminals' rights would lead to a vast expansion in the time taken for sentencing at trials and would provide a great new industry for legally-aided lawyers.

"The proposed code makes prosecutors prove beyond reasonable doubt the existence of any disputed aggravating fact and disprove asserted mitigating facts. My amendment to the code takes as a starting position that offenders have been convicted. The burden of proof `beyond reasonable doubt' flows from the presumption of innocence. It need not apply after conviction.

"My amendment would help ensure sentencing proceeds as naturally as in the past by:

· Not encouraging criminals to dispute police statements of fact without having to substantiate their objections;

· Establishing sanctions for misuse of the rights intended by section 21A. They are to protect against sentencing on the basis of false facts, not to create new opportunities for spurious appeals;

· Recognising that victim impact statements should be taken into account by judges in sentencing. During the Select Committee hearings a judge told the Committee that they are not presently treated as material to sentencing.

"I look forward to my amendments being given serious consideration by the Government and the House. Justice Minister Phil Goff has expressed outrage about the Tukuafu burglars' legal aid bill. He should be interested in the effort to stop abuse. Without the amendments, the code will invite criminals and their lawyers to exploit sentencing hearings and drag out trials," Stephen Franks said.


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