A podcast about law and legal issues
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In this episode, I’ll talk about an issue that has been bubbling away on the political agenda for a very long time now: should two people of the same sex have a legal right to be married in Australia? How have other countries come to legalise same sex marriage, and what is the current status of the debate in Australia?
Continue reading “1×03: The Antiquity of a Prejudice is No Reason for its Survival”
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In this episode of Hearsay, I’ll dig in to the issue of homelessness, looking at how a media campaign can lead to new criminal laws, how we have criminalised poverty and homelessness through history, and how the City of Melbourne is empowered to create new crimes (even if the Lord Mayor doesn’t really understand that’s what he is proposing). Are we returning to the old days of locking up “idle persons” and “incorrigible rogues”? Continue reading “1×02: Idle Persons and Incorrigible Rogues”
The High Court has reinstated a murder conviction in the high profile case of Gerard Baden-Clay, confirming an initial jury verdict. Baden-Clay was charged with murdering his wife in 2012 after she discovered he was having an affair. He was tried in the Supreme Court of Queensland in 2014. The jury convicted him following a hearing that lasted more than a month, and he was sentenced to life imprisonment. Baden-Clay appealed the jury verdict, arguing that it was “unreasonable, or can not be supported having regard to the evidence”.
During the appeal, Baden-Clay’s lawyers argued that the jury could not rule out the possibility that their client had an altercation with his wife and accidentally killed her. This would mean they could not find, beyond reasonable doubt, that Baden-Clay had the required mens rea for murder (that is, intention to kill or seriously injure the victim). The Queensland Court of Appeal accepted that argument and substituted a verdict of manslaughter.
The prosecution then appealed this decision to the High Court, arguing that the murder verdict should be reinstated. They said that while “the defence offered theories of suicide, overdose, a fall, drowning and alcohol as the cause, unintended or accidental killing by Mr Baden-Clay was not offered during trial”. In fact Baden-Clay had chosen to give evidence and denied any involvement with his wife’s death, which would rule out accidental death.
The High Court agreed with this argument. In the unanimous judgment of five justices, it found that Baden-Clay had chosen to testify that he had not had a physical altercation with his wife, and therefore “the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.” The jury could logically exclude the accidental death scenario, which meant their guilty verdict was not unreasonable.
Importantly, the High Court gave a strongly-worded warning that overturning a jury’s verdict should not be done lightly: “Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … [A] court of criminal appeal is not to substitute trial by an appeal court for trial by jury.”
While the issue in this case was the concept of an “unreasonable” verdict under s 668E(1) of the Queensland Criminal Code, the High Court’s comments will be relevant in other jurisdictions. For example, the Victorian Criminal Procedure Act 2009 includes a similar rule for appeals in s 276(1)(a): the Court of Appeal “must allow the appeal against conviction” if the court is satisfied that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence” — in other words, if the appeal court agrees that the jury reached an impossible verdict based on the evidence presented at the trial.
The High Court has made it clear this power to overturn a jury verdict should only be exercised cautiously.
Victorian courts have sharply criticised Corrections Victoria for its failure to bring prisoners to court for hearings, but the agency continues to breach the rights of those in its custody.
The Herald Sun reported that Corrections Victoria has been fined 650 times since 2013 — with the total penalties approaching $500,000 — for holding people in custody rather than bringing them to their scheduled court appearances, including over $110,000 in fines in the first half of 2016.
Victoria Legal Aid said that 455 Magistrates’ Court matters were affected in the first seven weeks of 2016, with some prisoners being unable to apply for bail or missing assessments for community-based sentences.
In March, a magistrate told The Age in some cases it was more likely an accused person would attend court if they were released than if they remained in custody. “I’m releasing people — not high-risk — but I’m releasing them on bail because I can’t guarantee they’ll appear.”
The problem had not been resolved by August. After being told that a number of prisoners could not apply for bail as they had not been brought to court, Magistrate Timothy Walsh warned Corrections officers, “They can be brought in or they’ll be released on bail.”
The Victorian Government has been aware of the problem since 2014, when the Auditor-General reviewed the prisoner transport system and reported: “Increasing prisoner numbers within the justice system means that prisoners are not always transported when and where required.”
The Government has announced $14.7 million in funding to improve video link facilities at 53 courts, which it hopes will reduce congestion in the prisoner transport system. This investment supports the Justice Legislation (Evidence and Other Acts) Amendment Act 2016, which requires that most Magistrates’ Court hearings involving remand prisoners should be conducted by video link.
Section 21 of the Victorian Charter of Human Rights and Responsibilities requires that people must not be subjected to arbitrary detention, and that deprivation of their liberty must only be in accordance with procedures established by law.
Victorian Police and Corrections Minister Wade Noonan has stepped down from his role for three months. He said he needs a break from the job because of the psychological impact it has had on him. He explained, “It has been difficult to cope with the constant exposure to details of unspeakable crimes and traumatic events that are an everyday part of my role and the accumulation of these experiences has taken an unexpected toll.”
The issue of the exposure of people involved in the legal process to gruesome details of crimes has also been raised recently as a result of the sentencing of Matthew Graham, a 22-year-old Melbourne man who was responsible for websites sharing photos and video of the sexual abuse, torture and killing of children.
The prosecutor asked the County Court judge to view some of the worst videos: “It is with a great deal of regret that I urge your honour to view the material. Seeing it brings it home in a much more realistic and tangible way. It is probably one of the worst things you could see.” In April last year, the County Court recognised the psychological harm caused to judges and court staff who are required to observe traumatic evidence, and engaged five psychologists and psychiatrists to build judicial resilience.
Other participants in the system can also be affected. For instance, the Victorian Juries Commissioner recognises the potential for vicarious trauma, and after the trial jurors can access psychological services. Adrian Lowe, who spent four years reporting on crimes for The Age, said he asked to be assigned to different duties because he was being affected by the work, but that he still suffers the consequences: “It has been almost four years since I left the court round. The nightmares, flashbacks and visions have continued, fortunately with less frequency as the years pass.”
The issue can have an impact on the effectiveness and fairness of the legal system. In January, the ABC’s Law Report looked at how interpreters are affected by translating the details of evidence. A survey of 271 qualified interpreters found that “a quarter of respondents … said that they continued to feel traumatised for some period after and that they would choose to avoid those types of assignment in the future”. This can mean that it is hard to find appropriately qualified interpreters to deal with traumatic cases.
Chief Judge Michael Rozenes has resigned from the County Court due to illness, after 13 years of service. Attorney-General Martin Pakula said, “Michael brought a warmth and generosity to the office of Chief Judge and will be sorely missed by all who worked with him. His considerable intellect and willingness to constantly improve and innovate have made the County Court a modern, progressive and more responsive institution.”
Rozenes oversaw the introduction of a number of specialist divisions and lists in the County Court, aimed at making the court more accessible to people. For example, he oversaw the adoption of the Koori Court in Melbourne after a successful pilot program in Latrobe Valley. He also created the Sexual Offences List to ensure “special attention” was given to the needs of victims and accused persons in such cases.
Other initiatives included the provision training and counselling for judges to deal with stress and trauma, and the introduction of electronic filing in civil cases in 2003 and criminal cases in 2015.
Two Australian citizens, Andrew Chan and Myuran Sukumaran, were executed by firing squad in Indonesia overnight. They had been convicted as part of the Bali 9, who had been caught attempting to smuggle heroin to Australia.Six other people were killed alongside Chan and Sukumaran, and one woman’s execution was postponed. Mark Kenny argues, “By definition, jurisdictions retaining the death penalty believe some crimes are so serious that the perpetrators are beyond redemption and are of zero human value… that no rehabilitation is even possible. This is where the court’s original decision on February 14, 2006 was wrong as a matter of fact.” The pair are widely seen as models of rehabilitation: Chan became a Christian pastor and provided counselling to other prisoners, and Sukumaran established education programs earned a fine arts degree. His portraits became a focal point for campaigners against their execution: “by making his mark in paint, he has created a vivid reminder of the simple fact that real human lives are extinguished by the death penalty. … These paintings cry out against a monstrous inhumanity.” Their work made such a difference to the Kerobokan Prison that its governor appeared in court to support their plea for mercy. In recent weeks, President Joko Widodo refused to consider their individual circumstances, instead applying a blanket policy to reject clemency for drug traffickers. The Indonesian Constitutional Court has agreed to hear an appeal against this policy on 12 May. The Judicial Commission also said it would interview the Bali 9’s lawyers next week, to investigate claims the sentencing judge sought a bribe. However, these pending appeals did not halt the executions. The Australian Government is opposed to the death penalty everywhere in the world, and says there will be diplomatic consequences. It has already withdrawn its ambassador to Indonesia. However, the role of the Australian Federal Police in exposing the Bali 9 to the death penalty remains controversial.
Chief Magistrate Peter Lauritsen has launched a review of the Criminal Justice Diversion Program, which allows people to avoid being prosecuted for a minor crime if they agree to participate in a program. The program was last reviewed 10 years ago, shortly after it was introduced, and the recommendations at the time were about improving awareness of the scheme. This time, a key issue that will be considered is whether “discussions about whether an offender should be placed on an order often occur behind closed doors without the oversight of a magistrate”. This is because under s 59(2)(c) of the Criminal Procedure Act 2009 (Vic), diversion is only available when “both the prosecution and the accused consent”, and some lawyers complain that police veto their requests for diversion before the court has a chance to consider them. In 2011-2012, Deputy Chief Magistrate Jelena Popovic travelled to eight countries to study their approaches to low-level offenders. In addressing diversion, she recommended that “the views of apprehending police officers … be ascertained and taken into account by judicial officers, but the police veto be removed”. In related news, the new Labor Government has committed to keeping the previous Liberal Government’s Youth Diversion Pilot Program in the Children’s Court, which is expected to begin later this year.
Protests have again erupted across the US, after a grand jury decided not to indict a white police officer over the shooting of an unarmed black man, Mike Brown, in Ferguson, Missouri. The grand jury process in Missouri requires 9 of 12 jurors to agree there is “probable cause” to indict the accused. This is similar to a committal in Victoria, in which a magistrate determines whether a prima facie case exists prior to the preparation of an indictment. Critics of the US grand jury system point out that they almost always result in prosecution—except when the accused is a police officer. Historically, Victoria had a very different grand jury system. Instead of weeding out weak cases, it was intended to ensure prosecutions could go ahead. Indictable prosecutions were brought in the name of the Attorney-General—a politician. To ensure that political corruption did not prevent prosecutions, private citizens could call for a grand jury of “not less than twenty-three men” to decide if the accused should be committed for trial. It was used 10 times before the independent DPP was established in 1983, removing the Attorney-General and the risk of political corruption from the process. The Victorian grand jury process was then effectively obsolete. Nevertheless, conspiracy theorist Brian Shaw was declared a vexatious litigant after unsuccessfully filing applications to summon more than 40 grand juries between 2001 and 2007. The grand jury process was then abolished by the Criminal Procedure Act 2009.
A NSW legal researcher is questioning whether Australian courtroom architecture is unfairly biased against the accused in criminal trials. In 2011, Professor David Tait wrote an article for the Chicago-Kent Law Review called Glass Cages in the Dock? Presenting the Defendant to the Jury, in which he considered the history of the dock—the area where the accused sits during a trial. In the US, the dock has been regarded by courts as inappropriate, in part because it may prejudice the jury by making the accused look guilty or even dangerous. In Australia, the dock has been maintained as a tradition inherited from England, but in 2007 a judge ruled that a perspex screen around the dock “materially diminish[ed] their right to the presumption of innocence” and ordered it be removed. However, in his article Tait observed there was “a lack of empirical evidence” to guide judges about how jurors would react to different dock arrangements. To solve this problem, Tait and his team at the University of Western Sydney set up an experiment—they ran the same mock trial before 100 juries: “The only difference in the cases, performed by actors, will be that he accused is either behind glass, in a traditional dock or at the bar table next to their lawyers.” The results of the experiment showed the accused’s seating arrangement may have a significant impact on the outcome of the case: “When the glass dock was used, 60 per cent of jurors delivered a ‘guilty’ verdict, compared to 47 per cent for the open dock and 36 per cent for the bar table.”