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The quest for reform in the courts

By johnboy 30 April 2010 14

Considering the number of people brutally killed in Canberra in the last 12 years it may seem amazing that our justice system has failed to convict anyone of murder in that time.

The Canberra Times now reports that police and prosecutors have been lobbying for reform.

More importantly Attorney-General Simon Corbell is working on a discussion paper due in the next few months on how to fix what ails the system.

In submissions to the Attorney-General made when he first canvassed opinions on law reform in 2008, the ACT’s then Chief Police Officer Michael Phelan said the current arrangements allowed people accused of serious crimes to seek a ”sympathetic judge”.

”The weakness of the current ACT system lies in the potential for defence to seek to have matters heard by a judge who the defence perceives has historically reached decisions sympathetic to the defendants on particular issues; with the requirement for only a single source to be convinced of the defendant’s’s innocence,” Mr Phelan wrote.

Apparently the police want jury trials for sexual assault or murder cases.

With a discussion paper still to come we can expect this to be wound up just before the next election with no time for the cockups to become evident.

Nice work if you can get it.

What’s Your opinion?


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The quest for reform in the courts
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georgesgenitals 7:30 am 02 May 10

vg said :

Wilco

Have you set foot in a Canberra court before?

Oh, and FYI, what you’re quoting is not the ‘Rule of Law’. Wikipedia hasn’t helped you

What is it? If you could help straighten this out it would be great. There’s a lot of misinformation around this subject.

Spideydog 6:04 pm 01 May 10

vg said :

Wilco

Have you set foot in a Canberra court before?

Oh, and FYI, what you’re quoting is not the ‘Rule of Law’. Wikipedia hasn’t helped you

lol – why do these law firms and courts need rows of of those “law” books that people like to call them, when all you need is an internet enabled computer with Wikipedia as the home page ……

imhotep 2:45 pm 01 May 10

Wilco said :

Evidence adduced….

How is first year law treating you Wilco?

I see you’ve already completed the LAWS101 – Legalese For Its Own Sake course.

Wilco 1:49 pm 01 May 10

The ACT is not the only Australian jurisdiction where there is a statutory right to trial by judge alone. That right also exists in SA, WA and NSW.

The SA provisions are similar to those in the ACT. In WA, an application for a judge alone trial must be made before the identity of the trial judge is known, while in NSW an election may be made only with the consent of the Director of Public Prosecutions.

According to the 2008/09 ACT DPP’s Annual Report (Table 3), of 40 matters prosecuted in the ACT Supreme Court, there were 13 ‘guilty’ findings, 23 ‘not guilty’ and 4 ‘other’ findings, giving a conviction rate of 32.5%

The comparable conviction rates in SA, WA and NSW gleaned from those state DPP’s 2008/09 annual reports are 67.5%, 61.8% and 49.4% respectively.

As Professor Julius Sumner Miller once famously said, “Why is it so”? The ACT’s judges determine cases in a broadly similar legal environment to that in the other states, so no real help there. Are there other reasons unique to the ACT that might assist, say difference rules of evidence? Or might there just be some application of the P to the power of 7 Rule – p*ss poor preparation produces p*ss poor performance?

Interestingly, in his October 2007 retirement speech from the ACT Supreme Court, former judge Ken Crispin said:

“Sadly, the decade in which I have been a judge has seen the law in many Australian jurisdictions buffeted by fear, and knee jerk responses have often been embraced as if they had been handed down from Mount Sinai. It is fashionable to chant mantras like ‘Tough on Crime’ but judges must do justice, not merely appease simplistic demands for toughness”.

vg 8:56 am 01 May 10

Wilco

Have you set foot in a Canberra court before?

Oh, and FYI, what you’re quoting is not the ‘Rule of Law’. Wikipedia hasn’t helped you

justin heywood 12:18 am 01 May 10

The faith many lay people place in the ability of judges and magistrates to dispense justice is “bewilderingly naive. A judge is merely a fallible human being like the rest of us. He has only the demeanor of the witnesses and the plausibility of the evidence to assist him in determining who is telling the truth.” *

(Ken Crispin, writing 10 years before, as Justice Crispin, he found Anu Singh not guilty of the murder of Joe Cinque.)

I’m with you Buzz819. It is all too easy to blame the police or the prosecution for any perceived failures in the justice system. Any criticism of judicial decisions is usually shouted down as the rantings of a redneck lynch mob (usually described on RiotAct as ‘spittle flecked’).

But why should judges and magistrates be above criticism? Do people imagine that when someone becomes a judge they are somehow willing and able to suppress their own personality and ego and suddenly become wise and impartial dispensers of justice?

*(From Helen Garner, Joe Cinque’s Consolation)

Heavs 12:15 am 01 May 10

Wilco, don’t be going and using all that logic and stuff. Paper says they were all guilty so they must have been and it was just the liberal lefty judges letting them off. Rule of law is just book smart people trying to trick us every day working joes.

fgzk 10:47 pm 30 Apr 10

Buzz819 Are you referring to an individual case that actually exists. The figures sound a little vague. Tailored for the court of public opinion? I doubt such vagaries would stand up in a court of law.

I can think of one case that may loosely fit into your description. The case I’m thinking about should be familiar to the regular RA readers. But why should we need to be exact about which case. (Dead dog House burning etc.) He may have received a court ordered “detox thingy” in Sydney. I thought that he clearly suffered from some form of psychiatric condition.

You can keep building jails to house all the “nutters” if you like. You can even corrupt our legal system to get them there faster, cheaper and keep them longer. They still will be mentally ill when they come out. I’m yet to see a mental illness cured/managed through a deterrent/punishment.

But its hard to tell who you were talking about so I might be wrong and its a different case with a perfectly sane lucid, intelligent crim who just needs a bigger deterrent to stop beating grannies. Is that your idea to achieve justice?

cleo 9:50 pm 30 Apr 10

The AFP AND the DPP are frustrated with the outcome of most of these pathetic sentences, it is also the law in Canberra that needs to change, we have a law of our own here, which sucks!

What I want to know does an impact statement make a difference with the judge once the person has been found guilty of a serious crime?

buzz819 8:20 pm 30 Apr 10

So I’m guessing that you are talking about the recent Hillier case… You do realize there is a number of cases heard daily hundreds per week where guilty findings are being found?

I know how the court system works. I know the Rule of Law, the Rules of Evidence and can even get my head around the Hearsay rule.

What is wrong with the court system is that defense can ask to be heard by a judge only, the judge in question is known to let people off all the time, it appears that he finds the way to be on the side of the criminal.

If all murder and sexual assault type trials went before a jury the amount of guilty findings would increase. I’m not talking about wrongful findings either.

The AFP and the DPP are working everyday to try as many cases as they can to win. It doesn’t help that a an alleged offender can say no to an interview and then come up with a defense in the 6, 12 or 24 months that it can take for the matter to be heard before the court.

It is allowing people to get away with murder. Plain and simple.

You make it so alleged offenders have to tell there side of the story, if they don’t and they try and bring in new evidence in the hearing, then that evidence should be found to be wrong.

You can say all you want about AFP and the DPP not doing their jobs, maybe you should give it ago. See how they have to play while always being stuck behind the 8 ball.

Pork Hunt 6:28 pm 30 Apr 10

If you count two or three slayings as yet unsolved then Canberra might indeed be the “unsolved murder capital of the world”.

Wilco 6:12 pm 30 Apr 10

Buzz819

Evidence adduced in Court must be admissable and satisfy other requirements of the Law of Evidence. In a criminal trial, guilt must be established beyond reasonable doubt based on admissable evidence. The Prosecution (or, for that matter, the Defence) cannot rely on information that is not proved according to the Rules of Evidence. These Rules have grown up over a long period of time and are designed to achieve fairness, particularly to the accused. It requires a degree of legal expertise to present a case that conforms with these Rules – something which in recent cases has been somewhat lacking in the ACT and has resulted both in ‘not guilty’ findings and judicial criticism of the Prosecution.

As to sentencing, judicial officers have considerable statutory discretion in determining punishment. Both the Prosecution and Defence are heard on sentence. And it’s always open to the Prosecution to appeal a sentence if it’s thought to be manifestly inadequate.

All of this is called the Rule of Law – something that distinguishes us from many overseas jurisdictions where the only Rules are Rafferty’s, and someone must be guilty because the Police and Prosecution say so.

buzz819 4:05 pm 30 Apr 10

Wilco said :

With respect, it’s not the state of the law that’s the problem, it’s the continuing poor performance of both the AFP and the DPP in not properly preparing matters for Court. A bad workman always blames his tools!

Are you serious? Have you been to court and heard the DPP show CCTV evidence, have witness testimony and corroborative evidence for a Judge to either dismiss the charges, or convict the person and give them no sentence?

The laws are broken, the system is soft and it needs to be changed. People like yourself who has no idea and would like to blame the DPP and the AFP are what make it worse.

The whole system needs to change. Crime has to have a deterrent. At the moment there is no deterrent, why would the crims stop committing the crime?

If you were able to look at how many convictions are made then find out how much gaol time is handed out you would be surprised my friend.

Go down to the Supreme Court and sit through a sentencing matter, see a criminal with over 300 crim history, for Assaults minor and serious, theft, burglary, traffic you name it they have it. They beat there Mrs half to death, smash the house up, smash the car up, threaten to burn down the house with the Mrs mother in it – they get a suspended sentence? Is that right? Is that the DPP’s or AFP’s fault? Have a think about it my friend…

Wilco 11:27 am 30 Apr 10

With respect, it’s not the state of the law that’s the problem, it’s the continuing poor performance of both the AFP and the DPP in not properly preparing matters for Court. A bad workman always blames his tools!

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