ABC 730 | 19 August 2012
See Quentin Dempster's piece "O'Farrell Government overhauls 'right to silence'" here, including O'Farrell's announcement, and interviews with Phillip Boulten SC and Evan Whitton.
And then see Dempster's interview with Attorney-General Greg Smith here.
Smith says the modification will not apply to certain categories of accused, or to people who have not had access to legal advice. He says duty lawyers will not be provided to Police stations, but does hint at a phone advice service being made available.
Showing posts with label Barry O'Farrell. Show all posts
Showing posts with label Barry O'Farrell. Show all posts
Monday, August 20, 2012
Sunday, August 19, 2012
Shouting out our right to silence
Charles Waterstreet | Sun Herald | 19 August 2012
Illustration: michaelmucci.com
Unlike the silent French film The Artist - with its worldwide success this year, including many Academy Awards - the French legal system does not recognise the right to silence for suspects. The accused in France are required to give an account of their activities to an investigating magistrate.
In NSW, we are the beneficiaries of the presumption of innocence until the state proves guilt beyond a reasonable doubt. We are the beneficiaries of basic legal and human rights, the very rights our grandfathers and fathers and brothers fought for in Europe in two wars and against incredible odds in New Guinea, and even in the tragic wars in Vietnam, Afghanistan and Iraq, to ensure.
The right to silence is not some antiquated form of prayer. It protects the accused from the strong-arm tactics of the state when people are at their most vulnerable. Life, human nature, guilt and innocence are a million shades of grey; they are neurotic, stupid, illogical, panicky, bloody, messy, full of white lies, embarrassing, complex, prone to error, prickly and incessant. In the wake of complex human intercourse and events, we are likely to say things in the heat of a roadside accident, in the hot, clinical, white police interview room, that don't reflect real emotions, memories and motives but might be said to please in ignorance, in shame, in panic, or in terror.
Police are trained interrogators with more knowledge about what happened than you know or think. They use it in the way expert card players save their aces for last. They can herd you in a barn and then shut the gate. In the atmosphere of criminal trials, it is extraordinarily difficult for the most innocent of people to explain why they gave a false or misleading account of events in recorded testimony at a police station after they have been arrested. Juries have collective wisdom but not necessarily the breadth of knowledge that jurists retain from bitter experience.
People lie for all kinds of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state. It is a powerful right. It might rarely lead to the guilty being acquitted but it is a bastion against the innocent being convicted on issues that really do not go to the heart of the question of guilt or innocence.
Look at the recent appearance of a talented, respected Supreme Court judge giving an account of his kerbside drinking in the early morning. We all want to underestimate our darker shades of grey and lighten the load.
The Premier, Barry O'Farrell, descended into the tabloid by explaining the English change to the right of silence by drawing on The Bill: ''Why, you have heard it in Sun Hill police station.'' Please, let's not use Saturday night British television shows to persuade this state that the removal of the right to silence is in keeping with a police-procedural television show.
American television series show cops ''Mirandising'' suspects. It is really a suburb in the Shire, but the US Supreme Court's Miranda rights represent the high moral and human right to say nothing until you speak to your lawyer, that you have a right to an eloquent silence in the face of a serious enforcement officer, and to acknowledge the basic right that the state must prove your guilt, not you.
Every parent knows that if you ask an errant child where he was in the afternoon, the child will mumble a deflecting lie or deception. Maturity does not erase human nature; in fact, it makes it more serious and its consequences more disastrous. Any suspect may choose to tell any police freely, after proper advice, after catching his emotional breath. The impact of a video interview played to a jury containing an error, mistake or fumble, mumble or flat-out mistruth on one issue - not the issue of guilt or innocence - is almost impossible to erase. The jury must be brought back to first principles of human nature. The effective cross-examination by a prosecutor of these misstatements can unbalance a trial. It shifts the burden of proof to the accused. Trials become unfocused and unfair. The accused might not always explain innocence, as Lindy Chamberlain in the witness box proved, and Gordon Wood in the glare of the television interview.
The right to silence is not a residue from ancient English criminal practice, in which the accused would never speak at their own trial. It is the living, breathing, beating heart of our bundle of human rights that we have fought so hard to maintain.
At Sun Hill police station, the police by and large play by the rules. Our rights should not be compared and contrasted with television shows, but to the template of dignity and decency that civilisation has accumulated by the collected wisdom of trials and errors, and the tools built to reduce and repair injustices of past experience. Accused people are already required to give notice of any alibi well before the trial. What's next? Will suspects be required to solve crimes for the police?
Illustration: michaelmucci.com
Unlike the silent French film The Artist - with its worldwide success this year, including many Academy Awards - the French legal system does not recognise the right to silence for suspects. The accused in France are required to give an account of their activities to an investigating magistrate.
In NSW, we are the beneficiaries of the presumption of innocence until the state proves guilt beyond a reasonable doubt. We are the beneficiaries of basic legal and human rights, the very rights our grandfathers and fathers and brothers fought for in Europe in two wars and against incredible odds in New Guinea, and even in the tragic wars in Vietnam, Afghanistan and Iraq, to ensure.
The right to silence is not some antiquated form of prayer. It protects the accused from the strong-arm tactics of the state when people are at their most vulnerable. Life, human nature, guilt and innocence are a million shades of grey; they are neurotic, stupid, illogical, panicky, bloody, messy, full of white lies, embarrassing, complex, prone to error, prickly and incessant. In the wake of complex human intercourse and events, we are likely to say things in the heat of a roadside accident, in the hot, clinical, white police interview room, that don't reflect real emotions, memories and motives but might be said to please in ignorance, in shame, in panic, or in terror.
Police are trained interrogators with more knowledge about what happened than you know or think. They use it in the way expert card players save their aces for last. They can herd you in a barn and then shut the gate. In the atmosphere of criminal trials, it is extraordinarily difficult for the most innocent of people to explain why they gave a false or misleading account of events in recorded testimony at a police station after they have been arrested. Juries have collective wisdom but not necessarily the breadth of knowledge that jurists retain from bitter experience.
People lie for all kinds of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state. It is a powerful right. It might rarely lead to the guilty being acquitted but it is a bastion against the innocent being convicted on issues that really do not go to the heart of the question of guilt or innocence.
Look at the recent appearance of a talented, respected Supreme Court judge giving an account of his kerbside drinking in the early morning. We all want to underestimate our darker shades of grey and lighten the load.
The Premier, Barry O'Farrell, descended into the tabloid by explaining the English change to the right of silence by drawing on The Bill: ''Why, you have heard it in Sun Hill police station.'' Please, let's not use Saturday night British television shows to persuade this state that the removal of the right to silence is in keeping with a police-procedural television show.
American television series show cops ''Mirandising'' suspects. It is really a suburb in the Shire, but the US Supreme Court's Miranda rights represent the high moral and human right to say nothing until you speak to your lawyer, that you have a right to an eloquent silence in the face of a serious enforcement officer, and to acknowledge the basic right that the state must prove your guilt, not you.
Every parent knows that if you ask an errant child where he was in the afternoon, the child will mumble a deflecting lie or deception. Maturity does not erase human nature; in fact, it makes it more serious and its consequences more disastrous. Any suspect may choose to tell any police freely, after proper advice, after catching his emotional breath. The impact of a video interview played to a jury containing an error, mistake or fumble, mumble or flat-out mistruth on one issue - not the issue of guilt or innocence - is almost impossible to erase. The jury must be brought back to first principles of human nature. The effective cross-examination by a prosecutor of these misstatements can unbalance a trial. It shifts the burden of proof to the accused. Trials become unfocused and unfair. The accused might not always explain innocence, as Lindy Chamberlain in the witness box proved, and Gordon Wood in the glare of the television interview.
The right to silence is not a residue from ancient English criminal practice, in which the accused would never speak at their own trial. It is the living, breathing, beating heart of our bundle of human rights that we have fought so hard to maintain.
At Sun Hill police station, the police by and large play by the rules. Our rights should not be compared and contrasted with television shows, but to the template of dignity and decency that civilisation has accumulated by the collected wisdom of trials and errors, and the tools built to reduce and repair injustices of past experience. Accused people are already required to give notice of any alibi well before the trial. What's next? Will suspects be required to solve crimes for the police?
This particular Bill needs a little more thought
Heath Aston | Sun Herald | 19 August 2012
IN ANNOUNCING the watering down of the right to silence, Barry O'Farrell was at pains to emphasise the new law for suspected criminals was merely bringing NSW into line with Britain.
The Premier was so keen to play up the British angle that he all but began whistling the theme song to The Bill during the announcement last week.
No one would have been surprised if the actor who played PC Reg Hollis had been wheeled in to audition the police's new arrest line: ''You are not obliged to say or do anything … but it may harm your defence if you do not mention when questioned something you later rely on in court.''
What wasn't mentioned by O'Farrell, the Police Minister, Mike Gallacher, and the Attorney-General, Greg Smith, on Tuesday was that the planned new law would also bring NSW into line with another country: Singapore.
Yes, that well-known bastion of personal freedoms and unobtrusive government, Singapore.
Should we expect mandatory sentences for chewing gum and spitting in NSW next?
Why should NSW arrest laws be out of step with every other state in Australia but in line with Britain anyway?
This is the same country whose major city was in flames a little more than a year ago during the looting revolution by London's underclass. Sure, London put on a good Olympic Games, but is that a good reason to try to harmonise our legal systems?
In return for a limited right to silence, those arrested in Britain are granted free legal advice, with duty solicitors provided at the major lock-ups. In NSW, there is no prospect that this costly service will be provided to offset the ''toughening'' of the law.
The planned reform smells suspiciously like a politician's thought bubble. No one in the wider legal community - apart from the police and the Police Association - appears to have been consulted before its unveiling.
If they had, they might have pointed the government to the 2000 report by the Law Reform Commission, which found most accused did not remain silent under questioning anyway and there was little justification to dilute the right to silence.
In some jury trials, the accused's silence under questioning contributed to an acquittal, but that did not apply to the majority of cases.
Often it's a temporary tactic, advised by a lawyer, to force police to disclose further information about the allegations and possible charges they intend to lay.
In other words, the tension between the accused's rights and the police's right to get to the truth was just about spot on.
It seems a strange thing to say of a premier who calls a review into what he will have on his sandwich at lunch, but some more consideration was needed on this one.
IN ANNOUNCING the watering down of the right to silence, Barry O'Farrell was at pains to emphasise the new law for suspected criminals was merely bringing NSW into line with Britain.
The Premier was so keen to play up the British angle that he all but began whistling the theme song to The Bill during the announcement last week.
No one would have been surprised if the actor who played PC Reg Hollis had been wheeled in to audition the police's new arrest line: ''You are not obliged to say or do anything … but it may harm your defence if you do not mention when questioned something you later rely on in court.''
What wasn't mentioned by O'Farrell, the Police Minister, Mike Gallacher, and the Attorney-General, Greg Smith, on Tuesday was that the planned new law would also bring NSW into line with another country: Singapore.
Yes, that well-known bastion of personal freedoms and unobtrusive government, Singapore.
Should we expect mandatory sentences for chewing gum and spitting in NSW next?
Why should NSW arrest laws be out of step with every other state in Australia but in line with Britain anyway?
This is the same country whose major city was in flames a little more than a year ago during the looting revolution by London's underclass. Sure, London put on a good Olympic Games, but is that a good reason to try to harmonise our legal systems?
In return for a limited right to silence, those arrested in Britain are granted free legal advice, with duty solicitors provided at the major lock-ups. In NSW, there is no prospect that this costly service will be provided to offset the ''toughening'' of the law.
The planned reform smells suspiciously like a politician's thought bubble. No one in the wider legal community - apart from the police and the Police Association - appears to have been consulted before its unveiling.
If they had, they might have pointed the government to the 2000 report by the Law Reform Commission, which found most accused did not remain silent under questioning anyway and there was little justification to dilute the right to silence.
In some jury trials, the accused's silence under questioning contributed to an acquittal, but that did not apply to the majority of cases.
Often it's a temporary tactic, advised by a lawyer, to force police to disclose further information about the allegations and possible charges they intend to lay.
In other words, the tension between the accused's rights and the police's right to get to the truth was just about spot on.
It seems a strange thing to say of a premier who calls a review into what he will have on his sandwich at lunch, but some more consideration was needed on this one.
Friday, August 17, 2012
On the right to silence, all the rhetoric is deafening
David Dixon | SMH | 16 August 2012
Premier Barry O'Farrell's announcement of plans to restrict the right to silence in NSW has set off another rhetorical joust between civil libertarians and critics of this ''right''.
While one side complains about the loss of liberty, the other claims change is necessary because organised criminals exploit the justice process. But both ignore key empirical and legal realities.
Much has been made of the fact that England introduced this change in 1994. However, it should be understood the change was the result of a sustained police campaign that was about politics, not about the reality of criminal investigation.
The right to silence had become a symbolic issue in determining who controlled criminal justice. Its restriction went against the recommendations of two royal commissions and a mass of empirical research (some of it by me).
This research showed that the supposed link between silence and organised criminals was exaggerated, with police sceptical about the effect of the 1994 law on such criminals.
It also showed that real police interviews are unlike those seen in Law and Order and The Bill, in which suspects either refuse to answer questions or skilful police interviewers shift them from denial to confession. In reality, most suspects confess immediately or maintain their denial, whatever tactics police use.
Where is the evidence that a change to the right to silence is necessary?
There has been very little research conducted in Australia. However, in 2006 I conducted a study of every recorded interview across NSW for an entire year, which found a situation very similar to that in England.
The fact is, people tend not to use the right to silence: it's hard not to answer questions and it's usually against your interest to refuse to do so. If police have significant evidence against you, it's best to co-operate.
In my research, the notable cases of failure to answer questions involved young, alienated men who refused to co-operate with police as a mark of honour, even though there was plenty of evidence against them. Their confessions weren't needed, and changing the laws of evidence wouldn't have changed their behaviour.
Best practice in criminal investigation would require police to interview suspects on the basis of evidence rather than relying on a confession. The problems of the latter approach - police malpractice and miscarriages of justice - are well known from a series of high-profile cases in England, Australia and the US.
English police interviewing techniques have substantially changed since the 1990s: they increasingly rely on evidence collected before interview. Australian police are adopting the English approach.
If our police need more resources and/or powers to use phone tap and intercept evidence, DNA and CCTV, in order to provide the evidence needed before interviewing suspects, that's a separate, and equally controversial, debate. We need to talk about how criminal investigation can and should be conducted, not spend time on exchanges of rhetoric about the right to silence. If Premier O'Farrell gets his way, it is likely to have consequences that his government won't welcome. The European Court of Human Rights has ruled that silence can be used as evidence against defendants only if they had received legal advice before being questioned: how otherwise is a lay person to know what might harm their defence in court if they don't mention it to police?
So if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.
This means restricting the right to silence has a major and very expensive corollary: the government would have to fund free access to legal advice and organise duty solicitors to be on hand in police stations.
England has done so since the mid-1980s. In the latest research in England, 48 per cent of suspects interviewed in police custody had legal advice. By contrast, almost nobody does in NSW, because there is no public funding or organised system (except for juveniles and indigenous people).
Providing publicly-funded legal advice would be massively expensive, yet it is an inevitable consequence of restricting the right to silence.
The O'Farrell government needs to be very careful what it wishes for.
Professor David Dixon is Dean of Law at UNSW. His books Law in Policing and Interrogating Images report empirical research on police questioning of suspects in England and NSW.
While one side complains about the loss of liberty, the other claims change is necessary because organised criminals exploit the justice process. But both ignore key empirical and legal realities.
Much has been made of the fact that England introduced this change in 1994. However, it should be understood the change was the result of a sustained police campaign that was about politics, not about the reality of criminal investigation.
The right to silence had become a symbolic issue in determining who controlled criminal justice. Its restriction went against the recommendations of two royal commissions and a mass of empirical research (some of it by me).
This research showed that the supposed link between silence and organised criminals was exaggerated, with police sceptical about the effect of the 1994 law on such criminals.
It also showed that real police interviews are unlike those seen in Law and Order and The Bill, in which suspects either refuse to answer questions or skilful police interviewers shift them from denial to confession. In reality, most suspects confess immediately or maintain their denial, whatever tactics police use.
Where is the evidence that a change to the right to silence is necessary?
There has been very little research conducted in Australia. However, in 2006 I conducted a study of every recorded interview across NSW for an entire year, which found a situation very similar to that in England.
The fact is, people tend not to use the right to silence: it's hard not to answer questions and it's usually against your interest to refuse to do so. If police have significant evidence against you, it's best to co-operate.
In my research, the notable cases of failure to answer questions involved young, alienated men who refused to co-operate with police as a mark of honour, even though there was plenty of evidence against them. Their confessions weren't needed, and changing the laws of evidence wouldn't have changed their behaviour.
Best practice in criminal investigation would require police to interview suspects on the basis of evidence rather than relying on a confession. The problems of the latter approach - police malpractice and miscarriages of justice - are well known from a series of high-profile cases in England, Australia and the US.
English police interviewing techniques have substantially changed since the 1990s: they increasingly rely on evidence collected before interview. Australian police are adopting the English approach.
If our police need more resources and/or powers to use phone tap and intercept evidence, DNA and CCTV, in order to provide the evidence needed before interviewing suspects, that's a separate, and equally controversial, debate. We need to talk about how criminal investigation can and should be conducted, not spend time on exchanges of rhetoric about the right to silence. If Premier O'Farrell gets his way, it is likely to have consequences that his government won't welcome. The European Court of Human Rights has ruled that silence can be used as evidence against defendants only if they had received legal advice before being questioned: how otherwise is a lay person to know what might harm their defence in court if they don't mention it to police?
So if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.
This means restricting the right to silence has a major and very expensive corollary: the government would have to fund free access to legal advice and organise duty solicitors to be on hand in police stations.
England has done so since the mid-1980s. In the latest research in England, 48 per cent of suspects interviewed in police custody had legal advice. By contrast, almost nobody does in NSW, because there is no public funding or organised system (except for juveniles and indigenous people).
Providing publicly-funded legal advice would be massively expensive, yet it is an inevitable consequence of restricting the right to silence.
The O'Farrell government needs to be very careful what it wishes for.
Professor David Dixon is Dean of Law at UNSW. His books Law in Policing and Interrogating Images report empirical research on police questioning of suspects in England and NSW.
NSW Bikie Laws Will Catch Innocents
Kirk McKenzie | New Matilda | 15 August 2012
Barry O'Farrell's consorting laws have already caught one young disabled man, but their scope is wide enough to nab anybody. Repeal these unjust laws, writes Kirk McKenzie
The recent jailing for consorting of Charlie Foster, a young intellectually disabled man, highlights the rank injustice of the O’Farrell government’s new consorting laws. A NSW District Court Judge yesterday set aside Foster’s conviction after finding the elements of the offence not proved, but the matter is not over — the police are still to pursue the matter.
These new laws (sections 93X and 93Y of the State’s Crimes Act) reinstate notoriously bad laws which applied from the late 1920s until 1979 when they were deliberately watered down by the Wran Labor government. They have rarely been used since.
According to Greg Smith, Barry O’Farrell’s Attorney General, the new laws are aimed at bikies. However, the legislation is not so restricted and will inevitably catch many entirely innocent people.
So what precisely is wrong with these laws? They penalise people just for associating with people previously convicted of "indictable offences" — a category not restricted to serious offences.
The legislation says that if you communicate, say by sending a text message, to two convicted offenders on two occasions, you may receive an oral warning from a police officer. If after the warning, you send a further text message to one of the two offenders, you may be charged with "habitual consorting", punishable by up to 3 years imprisonment!
This offence involves at least three clear breaches of Australia’s human rights obligations under the main international human rights treaty, the International Covenant on Civil and Political Rights ("ICCPR"). Australia ratified this treaty in 1980 (under a Liberal National government) with the result that all Australian parliaments have since had an obligation to adhere to its terms, including Article 22 which requires the principle of freedom of association to be respected.
The new offence is amazingly wide. "Indictable offences" are those serious enough to go before a judge and jury. However, most indictable offences are dealt with in the Magistrates Courts and many such offences are quite minor. For example, Common Assault, Shoplifting and Obstructing a Police Officer are indictable offences in NSW (and elsewhere).
A further problem is that there is no automatic defence to the new charge. Even a spouse, parent or a child of a previous offender can be charged. There is (in section 93X) a qualified defence for family members, doctors, teachers, employers and lawyers but significantly, any person in those categories can still be arrested, charged and brought before a Court and then has the onus of proving that their association with the person concerned was "reasonable in the circumstances". This ridiculous provision reverses the onus of proof — even entirely innocent spouses, parents or children are caught. A lawyer could be charged and have to go to Court to prove the reasonableness of acting for the person concerned.
Lawyers who regularly act for convicted persons, may be warned to cease acting for a client, if, for example 40 years ago that client was convicted of shoplifting. If the lawyer ignores the warning, a charge may follow. This amounts to an unjustified interference with the workings of independent courts and, for that reason, the offence is arguably unconstitutional. It also breaches Article 14(3) of the ICCPR by limiting defendants’ rights to communicate with, and to be assisted by, lawyers of their own choosing.
The reversal of the onus of proof imposed on families, doctors and lawyers involves a third breach of international law, namely the abrogation of the presumption of innocence in Article 14(2) of the ICCPR, also a fundamental principle of Australian criminal law. Under this principle, the prosecution is required to prove all elements of a criminal offence beyond a reasonable doubt. It is not the accused’s role to have to prove their innocence, yet that is precisely what a spouse, teacher or doctor (or mother!) may have to do, to avoid conviction. The right to silence also goes out the window.
A bizarre consequence of section 93X is that priests, ministers of religion and other clergy are completely unprotected. They have no defence at all, not even the right to come to Court to prove their association reasonable. Many others such as social workers, trade union members and officials and even fellow members of sporting or social clubs, fall into the same category.
A further important objection is the arbitrary power these laws deliver into the hands of police officers. Bikies have already been charged under these new provisions and say they will appeal any convictions to the High Court. They may end up being seen as heroes as a result. However, it may be the people of Moree, Walgett and other NSW regions where Indigenous Australians live and work, who may be the most vulnerable. Some of these regions have higher crime rates and Aboriginal people are therefore much more susceptible to arbitrary police action than elsewhere.
There is a wider problem with this sort of law making. Unfortunately, because of the mainstream media’s obsession with federal politics, a lot of legislation is quickly waved through state parliaments without sufficient scrutiny. The Bill introducing these changes went through with only minor media comment and little public debate.
In NSW, with no Charter of Rights, many politicians neither know nor understand what rights they should be protecting. The NSW Parliament should replicate the Victorian Charter of Human Rights and Responsibilities which is based on the ICCPR. That treaty contains the universal, minimalist position of the world democratic community on civil rights and has been ratified by 167 countries. The Victorian Charter is now supported by the Baillieu Coalition government and there is little logic in Barry O’Farrell’s continued opposition to such a reform.
One thing is certain — until this dopey, repressive, unjust, outrageous piece of legislation is repealed, more Charlie Fosters will be lined up for punishment.
Barry O'Farrell's consorting laws have already caught one young disabled man, but their scope is wide enough to nab anybody. Repeal these unjust laws, writes Kirk McKenzie
The recent jailing for consorting of Charlie Foster, a young intellectually disabled man, highlights the rank injustice of the O’Farrell government’s new consorting laws. A NSW District Court Judge yesterday set aside Foster’s conviction after finding the elements of the offence not proved, but the matter is not over — the police are still to pursue the matter.
These new laws (sections 93X and 93Y of the State’s Crimes Act) reinstate notoriously bad laws which applied from the late 1920s until 1979 when they were deliberately watered down by the Wran Labor government. They have rarely been used since.
According to Greg Smith, Barry O’Farrell’s Attorney General, the new laws are aimed at bikies. However, the legislation is not so restricted and will inevitably catch many entirely innocent people.
So what precisely is wrong with these laws? They penalise people just for associating with people previously convicted of "indictable offences" — a category not restricted to serious offences.
The legislation says that if you communicate, say by sending a text message, to two convicted offenders on two occasions, you may receive an oral warning from a police officer. If after the warning, you send a further text message to one of the two offenders, you may be charged with "habitual consorting", punishable by up to 3 years imprisonment!
This offence involves at least three clear breaches of Australia’s human rights obligations under the main international human rights treaty, the International Covenant on Civil and Political Rights ("ICCPR"). Australia ratified this treaty in 1980 (under a Liberal National government) with the result that all Australian parliaments have since had an obligation to adhere to its terms, including Article 22 which requires the principle of freedom of association to be respected.
The new offence is amazingly wide. "Indictable offences" are those serious enough to go before a judge and jury. However, most indictable offences are dealt with in the Magistrates Courts and many such offences are quite minor. For example, Common Assault, Shoplifting and Obstructing a Police Officer are indictable offences in NSW (and elsewhere).
A further problem is that there is no automatic defence to the new charge. Even a spouse, parent or a child of a previous offender can be charged. There is (in section 93X) a qualified defence for family members, doctors, teachers, employers and lawyers but significantly, any person in those categories can still be arrested, charged and brought before a Court and then has the onus of proving that their association with the person concerned was "reasonable in the circumstances". This ridiculous provision reverses the onus of proof — even entirely innocent spouses, parents or children are caught. A lawyer could be charged and have to go to Court to prove the reasonableness of acting for the person concerned.
Lawyers who regularly act for convicted persons, may be warned to cease acting for a client, if, for example 40 years ago that client was convicted of shoplifting. If the lawyer ignores the warning, a charge may follow. This amounts to an unjustified interference with the workings of independent courts and, for that reason, the offence is arguably unconstitutional. It also breaches Article 14(3) of the ICCPR by limiting defendants’ rights to communicate with, and to be assisted by, lawyers of their own choosing.
The reversal of the onus of proof imposed on families, doctors and lawyers involves a third breach of international law, namely the abrogation of the presumption of innocence in Article 14(2) of the ICCPR, also a fundamental principle of Australian criminal law. Under this principle, the prosecution is required to prove all elements of a criminal offence beyond a reasonable doubt. It is not the accused’s role to have to prove their innocence, yet that is precisely what a spouse, teacher or doctor (or mother!) may have to do, to avoid conviction. The right to silence also goes out the window.
A bizarre consequence of section 93X is that priests, ministers of religion and other clergy are completely unprotected. They have no defence at all, not even the right to come to Court to prove their association reasonable. Many others such as social workers, trade union members and officials and even fellow members of sporting or social clubs, fall into the same category.
A further important objection is the arbitrary power these laws deliver into the hands of police officers. Bikies have already been charged under these new provisions and say they will appeal any convictions to the High Court. They may end up being seen as heroes as a result. However, it may be the people of Moree, Walgett and other NSW regions where Indigenous Australians live and work, who may be the most vulnerable. Some of these regions have higher crime rates and Aboriginal people are therefore much more susceptible to arbitrary police action than elsewhere.
There is a wider problem with this sort of law making. Unfortunately, because of the mainstream media’s obsession with federal politics, a lot of legislation is quickly waved through state parliaments without sufficient scrutiny. The Bill introducing these changes went through with only minor media comment and little public debate.
In NSW, with no Charter of Rights, many politicians neither know nor understand what rights they should be protecting. The NSW Parliament should replicate the Victorian Charter of Human Rights and Responsibilities which is based on the ICCPR. That treaty contains the universal, minimalist position of the world democratic community on civil rights and has been ratified by 167 countries. The Victorian Charter is now supported by the Baillieu Coalition government and there is little logic in Barry O’Farrell’s continued opposition to such a reform.
One thing is certain — until this dopey, repressive, unjust, outrageous piece of legislation is repealed, more Charlie Fosters will be lined up for punishment.
Wednesday, April 25, 2012
Ray Hadley interview with Barry O'Farrell and Robert Brown
This week we heard Ray Hadley interview Premier Barry O'Farrell on gun crime, the bail review and the "weak-kneed, lily-livered" Attorney General Greg Smith. Ray then moves on to the Shooters and Fishers' Robert Brown, who talks about a bill to deal with the punishment of gun crime.
Listen to the interview here.
It is interesting in the BOF interview to see how the Premier deals with Hadley's ravings. It appears he realises that a proper, reasonable discussion with Hadley is out of the question, and so chooses the only sensible option: tell Ray what he wants to hear and let him think he's won.
When questioned on the bail review, watch how O'Farrell appears to play a successful judo trick on Hadley. Of course, it could be a sign of a complete capitulation to the Police Association's campaign against bail reform, but we rather hope that it's an example of how a seasoned pro like BOF deals with an absolute galah like Hadley.
The Shooters and Fishers' bill is so far receiving no support. That is not surprising, as the major parties are not, generally speaking, made up of fools. The Shooters say on their website:
The Shooters idea, as far as we can work out, is that instead of the Court treating the presence of a firearm in a crime as an aggravating feature on sentence, the Court should instead, for example, impose a sentence for a robbery simpliciter under s.94 (assessing its' seriousness without counting the gun), arrive at a number, and then impose a separate sentence for the possession of the gun during the crime, which can't be any less than the sentence first imposed, and must be cumulative.
"Unworkable" does not do this conceptual dog's breakfast justice.
Let's not forget these are the same geniuses that introduced s.6B Firearms Act, the amendment that allowed the severely mentally ill Shamin Fernando to obtain a gun and ammunition from a gun club with no licence or permit, and no background checks into her mental health, take them home and then shoot dead her father.
Not much more needs to be said about this mob or their backwoods ideas.
Hadley clearly knew nothing about the bill when Brown made a failed attempt to explain it, but nonetheless went ahead and wholeheartedly endorsed it. The same man who threatens governments they will be in Opposition if they don't bend the knee before him.
Listen to the interview here.
It is interesting in the BOF interview to see how the Premier deals with Hadley's ravings. It appears he realises that a proper, reasonable discussion with Hadley is out of the question, and so chooses the only sensible option: tell Ray what he wants to hear and let him think he's won.
When questioned on the bail review, watch how O'Farrell appears to play a successful judo trick on Hadley. Of course, it could be a sign of a complete capitulation to the Police Association's campaign against bail reform, but we rather hope that it's an example of how a seasoned pro like BOF deals with an absolute galah like Hadley.
The Shooters and Fishers' bill is so far receiving no support. That is not surprising, as the major parties are not, generally speaking, made up of fools. The Shooters say on their website:
"We want the law to regard the possession of a firearm during the commission of a crime as a separate crime in itself, not an aggravating offence, as the law sees it now.As it stands, an ordinary robbery under s.94 carries a 14 year maximum. Robbery armed with a dangerous weapon under s.98 carries an almost double maximum of 25 years.
"It will be a separate, additional crime to be dealt with separately by the law both in terms of the judgement and the penalty the court might impose.
"The Bill proposes that on conviction of the separate offence of being in possession of a firearm while committing a crime, the person so convicted will be sentenced to a period of detention NOT LESS than the period of sentence for the core crime, to be served cumulatively.
The Shooters idea, as far as we can work out, is that instead of the Court treating the presence of a firearm in a crime as an aggravating feature on sentence, the Court should instead, for example, impose a sentence for a robbery simpliciter under s.94 (assessing its' seriousness without counting the gun), arrive at a number, and then impose a separate sentence for the possession of the gun during the crime, which can't be any less than the sentence first imposed, and must be cumulative.
"Unworkable" does not do this conceptual dog's breakfast justice.
Let's not forget these are the same geniuses that introduced s.6B Firearms Act, the amendment that allowed the severely mentally ill Shamin Fernando to obtain a gun and ammunition from a gun club with no licence or permit, and no background checks into her mental health, take them home and then shoot dead her father.
Not much more needs to be said about this mob or their backwoods ideas.
Hadley clearly knew nothing about the bill when Brown made a failed attempt to explain it, but nonetheless went ahead and wholeheartedly endorsed it. The same man who threatens governments they will be in Opposition if they don't bend the knee before him.
Wednesday, August 31, 2011
Cops, robbers and shock jocks: the media and criminal justice policy
Dr Alyce McGovern, Elaine Fishwick | The Conversation | 31 August 2011
When it comes to criminal justice policy, it can be easy to assume that the stories we see on the news, read in the papers, or listen to on the radio, are the drivers for change.
Whilst we could quite feasibly assume the link between media commentary and policy is clear cut, the reality of the policy making process is often more complex than superficial analyses suggest. This is no less the case when it comes to “law and order” style reforms.
The relationship between the media and governments, as explored previously, is a symbiotic one; politicians need the media as much as the media need them.
Whilst the media are often accused of running the agenda on a whole range of issues, politicians themselves are not averse to turning to the media to garner favour and to boost their profile.
Successful politicians are those that use the media well; successful media organisations are those that maintain their audiences by linking in to the politics of the day.
With the amount spent on public relations and media across government departments, it would be naïve to assume the media hold all the power in the relationship; more likely, it’s a tangled symbiotic policy, politics, entertainment, information relationship.
A range of factors and a range of choices need to come together then to provide the catalyst for policy action and reform; the media are only part of this process.
MEDIA & DEMOCRACY: Today, Alyce McGovern and Elaine Fishwick look at how the impact a tabloid campaign has had on the law as part of The Conversation’s week-long series on how the media influences the way our representatives develop policy.
When it comes to criminal justice policy, it can be easy to assume that the stories we see on the news, read in the papers, or listen to on the radio, are the drivers for change.
Whilst we could quite feasibly assume the link between media commentary and policy is clear cut, the reality of the policy making process is often more complex than superficial analyses suggest. This is no less the case when it comes to “law and order” style reforms.
The relationship between the media and governments, as explored previously, is a symbiotic one; politicians need the media as much as the media need them.
Whilst the media are often accused of running the agenda on a whole range of issues, politicians themselves are not averse to turning to the media to garner favour and to boost their profile.
Successful politicians are those that use the media well; successful media organisations are those that maintain their audiences by linking in to the politics of the day.
With the amount spent on public relations and media across government departments, it would be naïve to assume the media hold all the power in the relationship; more likely, it’s a tangled symbiotic policy, politics, entertainment, information relationship.
A range of factors and a range of choices need to come together then to provide the catalyst for policy action and reform; the media are only part of this process.
Thursday, August 25, 2011
Ray Denning and lessons unlearnt in our justice system
Jack the Insider Blog | The Australian | 24 August 2011
NSW Premier Barry O’Farrell deserves a round of applause. One of his election commitments was to examine the failures of the Bail Act (2007). In June of this year, the O’Farrell Government announced a judicial review into the Bail Act.
Retired NSW Supreme Court judge Hal Sperling QC will oversee the review which will report in November.
A promise made has been kept and Premier O’Farrell and his government gets a big tick.
The Bail Act was a flawed piece of legislation, driven largely by an appalling state Labor Government too eager to promote itself as being “tough on crime”.
Changes to the Bail Act created some very nasty unintended consequences. The policy wonks call it getting the settings wrong. But in human terms the costs are immeasurable or at least we won’t be able to measure them for some years to come.
Rates of youth detention skyrocketed in NSW; up by a third. Of those remanded in custody, only one third had committed subsequent offences. The overwhelming majority had been incarcerated awaiting trial for breaches of bail conditions, most commonly failing to comply with curfews. Many will await trial in custody for a year or more. Hopefully, the review will put a stop to this madness.
In Victoria, the Baillieu Government has run a “tough on crime” agenda. Ask the premier a question on transport, health or education and his brow quickly furrows but mention crime or God forbid, youth crime and he’ll go on for hours.
Now the Baillieu Government is moving forward with its plan to introduce mandatory minimum two year sentences for offenders between the age of 16 and 17 convicted of crimes involving violence.
It smacks of a stunt because sentencing data from the Children’s Court in Victoria shows that young violent offenders are not getting off easily. Secondly, a report from the Sentencing Advisory Council of Victoria reveals empirical evidence that longer sentences don’t act as a specific deterrent to offenders regardless of age.
In researching and creating the subjects and their histories for the documentary series, Tough Nuts on Foxtel’s CI Channel, one overwhelmingly common theme was the criminogenic effects of incarceration. In other words, that prisons and youth detention centres themselves are a major determinant of recidivism.
Our subjects were the worst of the worst: career criminals, mass murderers, drug dealers, people at the very top of the criminal hierarchy. They are the most notorious figures in Australian criminal history: Chris “Rentakill” Flannery, Dennis “Mr Death” Allen, Len “Mr Big” McPherson and John “The Magician” Regan.
Almost invariably they were products of a juvenile detention system where they were subjected to protracted physical and sexual abuse. Grafton Boys’ Home was the alma mater of any serious crook you could name from the 1970s and 80s; Stan “The Man” Smith, George Freeman, “Neddy” Smith and Len McPherson himself.
NSW Premier Barry O’Farrell deserves a round of applause. One of his election commitments was to examine the failures of the Bail Act (2007). In June of this year, the O’Farrell Government announced a judicial review into the Bail Act.
Retired NSW Supreme Court judge Hal Sperling QC will oversee the review which will report in November.
A promise made has been kept and Premier O’Farrell and his government gets a big tick.
The Bail Act was a flawed piece of legislation, driven largely by an appalling state Labor Government too eager to promote itself as being “tough on crime”.
Changes to the Bail Act created some very nasty unintended consequences. The policy wonks call it getting the settings wrong. But in human terms the costs are immeasurable or at least we won’t be able to measure them for some years to come.
Rates of youth detention skyrocketed in NSW; up by a third. Of those remanded in custody, only one third had committed subsequent offences. The overwhelming majority had been incarcerated awaiting trial for breaches of bail conditions, most commonly failing to comply with curfews. Many will await trial in custody for a year or more. Hopefully, the review will put a stop to this madness.
In Victoria, the Baillieu Government has run a “tough on crime” agenda. Ask the premier a question on transport, health or education and his brow quickly furrows but mention crime or God forbid, youth crime and he’ll go on for hours.
Now the Baillieu Government is moving forward with its plan to introduce mandatory minimum two year sentences for offenders between the age of 16 and 17 convicted of crimes involving violence.
It smacks of a stunt because sentencing data from the Children’s Court in Victoria shows that young violent offenders are not getting off easily. Secondly, a report from the Sentencing Advisory Council of Victoria reveals empirical evidence that longer sentences don’t act as a specific deterrent to offenders regardless of age.
In researching and creating the subjects and their histories for the documentary series, Tough Nuts on Foxtel’s CI Channel, one overwhelmingly common theme was the criminogenic effects of incarceration. In other words, that prisons and youth detention centres themselves are a major determinant of recidivism.
Our subjects were the worst of the worst: career criminals, mass murderers, drug dealers, people at the very top of the criminal hierarchy. They are the most notorious figures in Australian criminal history: Chris “Rentakill” Flannery, Dennis “Mr Death” Allen, Len “Mr Big” McPherson and John “The Magician” Regan.
Almost invariably they were products of a juvenile detention system where they were subjected to protracted physical and sexual abuse. Grafton Boys’ Home was the alma mater of any serious crook you could name from the 1970s and 80s; Stan “The Man” Smith, George Freeman, “Neddy” Smith and Len McPherson himself.
Friday, June 10, 2011
Premier acts on promise to review juvenile detention
Anna Patty | SMH | 10 June 2011
CONTROVERSIAL bail laws will be reviewed in response to an rise in the number of children in detention without any reduction in crime rates.
The Premier, Barry O'Farrell, yesterday appointed a retired Supreme Court judge, Hal Sperling, QC, to lead a comprehensive ''root-and-branch'' review of the Bail Act and to report in November. Mr Sperling will be backed up by the NSW Law Reform Commission.
Mr O'Farrell said he was concerned that juveniles charged with petty offences were being forced to mix with hardened criminals.
''This is particularly disturbing,'' he said, ''when many of the young offenders are eventually released by the courts without any custodial sentence.''
The review fulfils a Coalition election promise and responds to mounting evidence that amendments to the Bail Act in late 2007 fuelled a sharp increase in juvenile detention.
The NSW Attorney-General, Greg Smith, said the number of minors admitted to remand had risen from 3623 in 2006 to 5082 in 2008.
He said many young people were denied bail because they did not have a home and often spent up to six weeks in custody without serving a custodial sentence. He said he would ''encourage more accommodation for young people''.
Thursday, May 26, 2011
Making sentences fit some crime
Anna Patty | SMH | May 26, 2011
A series of gunshots fired at close range killed 26-year-old police officer Glenn McEnallay in his highway patrol car after he responded to a report of a stolen car in Matraville in March 2002.
The man who pulled the trigger, Sione Penisini, was sentenced to 36 years in prison, but his accomplices escaped with much shorter sentences after they pleaded guilty to manslaughter. A public outcry followed and the murdered officer's father, Bob McEnallay, described the seven-year jail term handed to one of them as ''an absolute bloody joke''.
But this week he made it clear he does not believe his son's life was worth more than that of any other citizen. He says the state government's plan to introduce mandatory life sentencing for people who murder police is unfair to other victims of serious crime. Bob McEnallay says the life of his surviving son, Troy, not a police officer, should not be valued less than that of Glenn. He believes there should be a minimum sentence for murder, regardless of who the victim is.
''I wouldn't like to think my son's case would attract more attention from the courts than some other citizen,'' he says. ''I know the [government's] intentions are good, but I would rather see a system where the maximum possible sentences for murder are issued for any citizen who is murdered.''
The NSW Attorney-General, Greg Smith, says the bill to be introduced in Parliament this week was developed in response to the murder of police officers David Carty in 1997 and Glenn McEnallay. His office confirms the new law will not apply to accessories to murder, such as the Taufahema brothers who were involved in the McEnallay killing. The new law will mean only the murderer would serve the term of his natural life in prison.
Wednesday, May 25, 2011
Judging a life's worth
Greg Barns | The Drum | 25 May 2011
The move this week by New South Wales Attorney-General Greg Smith to pass a law which would force courts to impose life imprisonment without parole on persons convicted of murder of a police officer raises broader questions about how our society values life.
Mr Smith’s move is a major development in a disturbing trend for legislatures in Australia, borrowing from the United States, to pass laws which force courts to punish persons more severely where they inflict physical violence on police officers or emergency service personnel such as ambulance officers.
In Western Australia a law introduced in 2009 forces courts to jail individuals who assault police officers, irrespective of the circumstances of the case. In Queensland and in Tasmania conservative political forces have proposed laws which would impose a mandatory period of imprisonment on a person who assaults not only police officers but ambulance officers and firepersons.
The O’Farrell government’s new law in New South Wales has already sparked lobbying by police unions and their allies for other governments around the nation to follow suit.
It is one thing for judges and magistrates to impose harsher punishment on a person who assaults a police officer who is acting in the course of their duty, but quite another for the legislature to enshrine in statute the idea that the right to personal security of that police officer is somehow more worthy of protection than that of say a 25 year old woman in the suburbs, an Aboriginal person living it rough in central Australia, or a 40 year old male working in a coal mine in Queensland.
The trend in law making towards the latter – that is ‘rating’ the value of human life and wellbeing - undermines the notion, rooted deeply in our society, that all lives are equal.
Tuesday, May 24, 2011
Is a policeman's life worth more?
Michael Duffy | SMH | May 24, 2011
Premier Barry O'Farrell announced at the weekend that this week the government will introduce a bill to make life sentences mandatory for people who murder police officers.
At the moment the minimum non-parole period is effectively 25 years.
With all due respect to police, who do an important and sometimes brave job, it seems odd that their lives should be valued so much more highly than those of the rest of us.
Imagine a scenario where someone is being robbed at knifepoint and a police officer, trained, equipped and paid to prevent crime, intervenes and is stabbed to death. Now imagine the same scenario where a member of the public intervenes and meets the same fate. Why should their death be punished less severely? In each case there has been a tragedy and a death, as well as a great loss to family, friends and the community.
One argument in favour of the new bill is that police officers represent the rest of us, and therefore an attack on one of them is an attack on the security of the whole society and deserves to be punished more severely. It is also the case that murders of police usually occur when they're trying to stop a crime, whereas murders of other people (despite my hypothetical above) usually occur in other circumstances. And murders of people trying to prevent a crime arguably deserve a higher punishment than those that occur for many other reasons.
I accept that argument. What I have difficulty with is the assumption that the punishment ought to be so much more extreme.
Sunday, May 22, 2011
Cop killers will get mandatory life term: O'Farrell
SMH | May 22, 2011
The NSW government will this week introduce new legislation that will ensure anyone who murders a serving state police officer receives a full life sentence, Premier Barry O'Farrell says.
"It's unacceptable to me... to the community and others, that police who are murdered don't have those responsible sent to jail," Mr O'Farrell told reporters in Sydney today.
"This is about ensuring that there's the strongest possible message.
"Those who murder police will be locked up for life."
A life sentence would mean for the rest of the convicted killer's natural life, NSW Emergency Services Minister Michael Gallacher said.
"This fulfils a long commitment we've given to the men and women in the NSW Police Force," Mr Gallacher added.
John Carty, whose police officer son David was murdered in Sydney in 1997, supported the plan.
"David was attacked by 25... I call them men but they're vermin from hell as far as I'm concerned," Mr Carty said.
"I'm very happy to be here today and say it's good legislation."
It remains unclear which parties will support the legislation, due to be tabled in the state parliament in coming days.
Mr Gallacher said he believes the NSW Greens would not be supportive of the bill.
Saturday, May 14, 2011
O’Farrell Government To Strengthen Police Move-On Powers
Press Release | NSW Government | 9 May 2011
NSW Premier Barry O’Farrell and Minister for Police and Emergency Services Michael Gallacher today announced strengthened police move-on powers to crackdown on anti-social behaviour.
“Under these new laws to be introduced by my Government today, fulfilling yet another election commitment, Police will be able to move-on intoxicated individuals who are acting in a way that may cause harm to themselves, to others or to property,” Mr O’Farrell said.
“Under the current law, move-on powers can only be used for groups of three or more under the current law,” he said.
“We have to change the culture of alcohol related anti-social behaviour in NSW, and that change starts with making people personally responsible for their own actions.
“The Police are sick of being punching bags on a Friday and Saturday night in our major entertainment districts,” he said.
Mr Gallacher said the community is all too familiar with the problems and the destructive nature which can be caused by a single drunk.
“The offending individual may be shouting and swearing under the windows of people trying to sleep. He or she can be seen any Friday and Saturday night walking recklessly out into traffic or stumbling around railway stations,” Mr Gallacher said.
“We are changing this so Police can give a direction to move on intoxicated individuals as well as groups. The laws can only be exercised in public places.
“This is aimed at those individuals whose excessive drinking makes late night entertainment areas unpleasant and, often, positively dangerous.”
Mr Gallacher said the new laws will be a valuable preventative measure as, by complying with the police move-on direction a person will be able to avoid a charge of being 'intoxicated and disorderly' – a new summary offence which the NSW Government will also shortly introduce.
“With this simple but important reform, the capacity of police to keep our streets and other public places safer will be considerably strengthened,” Mr Gallacher said.
Friday, March 25, 2011
The Coalition and Mandatory Sentencing
Who will prevail in the battle between liberals and “rednecks”?
In each election in New South Wales since 1999, the Coalition has promised a policy of mandatory sentencing in relation to one or more offences. In 1999, the Opposition spokesman on Legal Affairs, John Hannaford, proposed a form of grid sentencing.
In 2003, the Coalition went to the election promising mandatory minimum sentences for a range of offences including murder in the first and second degree, murder of a police officer, gang rape and some commercial drug offences.
It was reported that the original policy, drawn up by Shadow Legal Affairs spokesman Chris Hartcher, had also included mandatory sentences for property offences, and that a split in Shadow Cabinet had developed over the proposals.
A leaked document made its’ way into government hands, and it was revealed that Opposition front bencher, Brad Hazzard, had led the argument against mandatory minimums, and for the proposition that judicial discretion in sentencing should be maintained.
In the end, Opposition Leader John Brogden went to the 2003 election with a modified proposal that did not include property offences, but nonetheless would have required courts to impose, for example, 25 year minimum sentences for first degree murder, and life imprisonment for the murder of a police officer. These laws would have permitted no judicial discretion to impose a sentence that was appropriate to the facts of the offence or the offender.
In 2005, Brogden had again proposed to take mandatory sentencing to the next election, only to lose the Opposition leadership in disgrace. The new leader, Peter Debnam, picked up the baton and maintained the policy of mandatory life for the murder of a police officer, with Hartcher again putting forward proposals to end 'soft' jail terms and introduce a new system of sentencing for violent criminals.
Arriving as a new MP in 2007, former Deputy Director of Public Prosecutions Greg Smith became the new Shadow Attorney General. In that role, Smith has repeatedly stated his determination to take Coalition policy in a very different direction to his predecessors. In 2009, he told the Australian’s Chris Merritt:
Despite these comments, and what would appear to be a denunciation of mandatory sentencing by Smith, the Coalition have not abandoned their policy to introduce mandatory life for the murder of a police officer.
We already know what such an amendment might look like, care of a 2007 private members bill, introduced by NSW’s next Police Minister, Mike Gallacher, but defeated in the Legislative Council.
The proposed amendment was as follows:
Interestingly, the second reading speech referred to the case of Taufahema, a co-accused in the murder of McEnallay, who drove the vehicle being pursued by Police, and in which the shooter was a passenger.
Taufahema’s murder conviction was quashed on appeal to the CCA, on the basis of certain principles of accessorial liability, and he was acquitted of the charge. Notwithstanding that the shooter, Penisini, was convicted of murder and sentenced to 34 years, with a 23 year non parole period, McEnallay’s family and the Police Association were outraged by Taufahema’s acquittal.
Although this result had nothing to do with the adequacy or otherwise of sentencing, and concerned principles that most people (including criminal lawyers) do not understand, Gallacher was not deterred:
Those in the criminal law world might remember that Mr Smith prosecuted the brothers Gilbert and Richard Adam for the murder of Constable David Carty in 1998, and then went on to appear in the appeals in the CCA and High Court. One wonders what that experience had on the formation of his attitude to this policy.
What we do know is that this bill will resurface at some stage. Whether the so-called “rednecks” prevail over the small-l liberals of the Coalition remains to be seen.
In 2000 the then PM John Howard said:
Depending on where the Upper House votes fall tomorrow, the answers to these questions may not be too far away.
In each election in New South Wales since 1999, the Coalition has promised a policy of mandatory sentencing in relation to one or more offences. In 1999, the Opposition spokesman on Legal Affairs, John Hannaford, proposed a form of grid sentencing.
In 2003, the Coalition went to the election promising mandatory minimum sentences for a range of offences including murder in the first and second degree, murder of a police officer, gang rape and some commercial drug offences.
It was reported that the original policy, drawn up by Shadow Legal Affairs spokesman Chris Hartcher, had also included mandatory sentences for property offences, and that a split in Shadow Cabinet had developed over the proposals.
A leaked document made its’ way into government hands, and it was revealed that Opposition front bencher, Brad Hazzard, had led the argument against mandatory minimums, and for the proposition that judicial discretion in sentencing should be maintained.
In the end, Opposition Leader John Brogden went to the 2003 election with a modified proposal that did not include property offences, but nonetheless would have required courts to impose, for example, 25 year minimum sentences for first degree murder, and life imprisonment for the murder of a police officer. These laws would have permitted no judicial discretion to impose a sentence that was appropriate to the facts of the offence or the offender.
In 2005, Brogden had again proposed to take mandatory sentencing to the next election, only to lose the Opposition leadership in disgrace. The new leader, Peter Debnam, picked up the baton and maintained the policy of mandatory life for the murder of a police officer, with Hartcher again putting forward proposals to end 'soft' jail terms and introduce a new system of sentencing for violent criminals.
Arriving as a new MP in 2007, former Deputy Director of Public Prosecutions Greg Smith became the new Shadow Attorney General. In that role, Smith has repeatedly stated his determination to take Coalition policy in a very different direction to his predecessors. In 2009, he told the Australian’s Chris Merritt:
"I have (Liberal Party) support for the view that the law-and-order auction should not be continued in the next election."He said his colleagues in the state opposition "did not take a lot of convincing" to abandon the law-and-order auction and embrace the need for more effective rehabilitation of prisoners:
"The Liberal Party are supportive of this line, as are people who I have spoken to in the community.”Smith went on to say: "I know there are still rednecks out there that want mandatory sentencing and matters of that sort," before emphasizing his priority to reduce the growing budget devoted to imprisonment.
Despite these comments, and what would appear to be a denunciation of mandatory sentencing by Smith, the Coalition have not abandoned their policy to introduce mandatory life for the murder of a police officer.
We already know what such an amendment might look like, care of a 2007 private members bill, introduced by NSW’s next Police Minister, Mike Gallacher, but defeated in the Legislative Council.
The proposed amendment was as follows:
19B Compulsory life sentences for murder of police officers
1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder of a police officer if the murder was committed:
(a) While in the execution of the police officer's duty, or
(b) As a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of the officer's duty.
2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person's natural life.
3) This section applies to a person who is convicted of murder of a police officer only if the person was of or above the age of 18 years at the time the murder was committed.
4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (of any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence.
5) Nothing in this section affects the prerogative of mercy.In the Second Reading Speech, Gallacher referred to his own background in the Police Force, and the deaths of David Carty and Glenn McEnallay, both officers murdered in the execution of their duty. The bill was strongly supported by the NSW Police Association, as well as the parents of Carty and McEnally.
Interestingly, the second reading speech referred to the case of Taufahema, a co-accused in the murder of McEnallay, who drove the vehicle being pursued by Police, and in which the shooter was a passenger.
Taufahema’s murder conviction was quashed on appeal to the CCA, on the basis of certain principles of accessorial liability, and he was acquitted of the charge. Notwithstanding that the shooter, Penisini, was convicted of murder and sentenced to 34 years, with a 23 year non parole period, McEnallay’s family and the Police Association were outraged by Taufahema’s acquittal.
Although this result had nothing to do with the adequacy or otherwise of sentencing, and concerned principles that most people (including criminal lawyers) do not understand, Gallacher was not deterred:
"The community and the Opposition—and certainly Glenn McEnallay's parents—believe the driver of the car involved was implicated in the murder and should have stayed in jail for the murder of Glenn. The cases of those involved in the murders of David Carty and Glenn McEnallay highlight the soft stance taken in New South Wales against people who murder police officers. This bill is another step in providing a higher level of protection for police."It would appear this policy has remained something of an article of faith for some members of the Coalition, and like other matters of faith, resistant to reasoned argument. And as the following part of the second reading speech reveals, Gallacher’s understanding of the effect of the amendment and the removal of judicial discretion was, at least in 2007, questionable:
“One member referred to it as a simple bill. It is a shame that the simpleton did not read this so-called simple bill. The Hon. Lynda Voltz spoke about her big issue with this legislation. In fact, it was her only issue in the contribution she made some time ago. She said:
The question that comes to my mind is: If this sentence is mandatory, is there no situation that we can see where a judge should hear the case and give some weight to the decision?
Should we not ask the judge to look at the situation?
Had she bothered to read the bill she would have seen that in relation to the compulsory life sentence for the murder of police officers—new section 19B—it says:
Nothing in this section affects the prerogative of mercy.
In other words, the very issue that she hung out as the only one that was causing her not to vote for this bill is that we are denying judges the ability to use their prerogative with regard to mercy."It is not known whether there will be a further debate within the party over this policy, or the position that Greg Smith will take. His previous statements appear not to favour mandatory sentencing, yet he has not spoken publicly against this proposal. Requests made to his office this week to clarify his position have not been answered.
Those in the criminal law world might remember that Mr Smith prosecuted the brothers Gilbert and Richard Adam for the murder of Constable David Carty in 1998, and then went on to appear in the appeals in the CCA and High Court. One wonders what that experience had on the formation of his attitude to this policy.
What we do know is that this bill will resurface at some stage. Whether the so-called “rednecks” prevail over the small-l liberals of the Coalition remains to be seen.
In 2000 the then PM John Howard said:
“As a matter of principle, I do not agree with mandatory sentencing. I agree with strong sentencing laws, but in the end I do think these matters ought to be determined by judges and magistrates.”Can we expect the Liberal Party to follow the lead of their patriarch, and stand up for the principle of judical discretion in sentencing? And will this issue give us any line on O'Farrell, and his reputation as a moderate?
Depending on where the Upper House votes fall tomorrow, the answers to these questions may not be too far away.
Monday, March 7, 2011
NSW Libs & Nats Announce Plan To Crackdown On Re-Offending Rates
Coalition Press Release, 7 March 2011:
NSW Opposition Leader Barry O'Farrell and Shadow Attorney General Greg Smith SC today announced a comprehensive plan to crackdown on re-offending rates in NSW, including the establishment of a second Drug Court in Sydney.
Mr O'Farrell explained the NSW Liberals & Nationals ambitious plan has the goal of reducing the re-offending rate to below the national average within ten years.
"The people of NSW are fed up with a corrective services system which merely acts as a 'revolving door' for offenders as they transition through a life of crime," Mr O'Farrell said.
"The NSW Liberals & Nationals are determined to treat crime at its source and this is why we have a comprehensive plan with the goal of reducing the rate of re-offending to below the national average within ten years," he said.
"NSW has the worst recidivism rate of any Australian State with more than 40 per cent of prisoners returning to gaol within two years."
A NSW Liberals & Nationals Government will:
1. Establish a second Drug Court in the Sydney metropolitan area including detoxification facilities, drug testing, monitoring and treatment;
2. Create a specialist Metropolitan Drug Treatment Facility to ensure up to 300 drug addicted prisoners get treatment and are given the opportunity to get off drugs;
3. Provide an additional $20 million over four years for education and training programs in prison; and,
4. Encourage greater use of non-custodial punishment for less serious offenders and create availability and access to diversionary programs.
Mr Smith said reducing re-offending makes sense.
"Every ex-prisoner who returns to gaol costs taxpayers and diverts resources which could be spent on more hospital beds, better public transport or fixing our roads," Mr Smith said.
Prisoners released during 2007-08 who returned to prison with a new correctional sanction within two years – Australian Productivity Commission, Report on Government Services 2011
NSW Vic Qld WA SA Tas Aust
Prisoners returning to prison 42.4% 33.7% 33.5% 38.3% 30.2% 31.7% 37.6%
"A NSW Liberals & Nationals Government will establish a second Sydney Drug Court with evidence showing drug offenders who participate in drug courts are less likely to re-offend," he said.
Monday, January 31, 2011
Reducing Indigenous Contact with the Court System
The Bureau of Crime Statistics and Research released a paper in December 2010, entitled "Reducing Indigenous Contact with the Court System".
Highlights from the BOCSAR media release:
"The best way to get people out of the criminal justice system is to get them employed and the best way to get them employed is to get them off drugs and alcohol.
"But there is a lack of places in these programs. We can spend days or weeks calling trying to get someone in," Mr Pudney said.
According to the the article, a spokesman for the Attorney-General, John Hatzistergos, said that the government was trying to reduce the over-representation of indigenous people in the court system through a number of court-based and rehabilitative programs.
Recently, Barry O'Farrell pledged an additional $10 million to expand rehabilitation places.
Highlights from the BOCSAR media release:
- In 2009, Indigenous Australians constituted less than 2 per cent of the NSW population but accounted for 13 per cent of all persons charged with a criminal offence. The Bureau estimates that more than 80 per cent of Indigenous defendants currently appearing in court will at some stage return, most within less than two years.
- A 10 per cent reduction in the return rate would reduce the number of Indigenous court appearances by 2,558 per annum or approximately 32 per cent. A 20 per cent reduction in the rate of return would virtually halve the number of Indigenous people turning up in court, reducing the ratio of Indigenous to non-Indigenous court appearances from 1 in every 9.6 cases to 1 in every 18.6 cases.
- According to the Director of the Bureau, Dr Don Weatherburn, the best way to reduce the rate of Indigenous re-offending is through effective rehabilitation programs.
“Programs that combine intensive supervision with treatment have been found to produce an average 16 per cent reduction in reoffending. Given the strong influence that drug and alcohol abuse have on the risk of Indigenous arrest, it would also seem prudent to increase Indigenous access to drug and alcohol treatment."In the Illawarra Mercury on Monday 24/1/11, Michelle Webster reports reaction to the BOCSAR paper on the South Coast. Veteran Aboriginal Legal Service solicitor Gary Pudney told the Mercury that indigenous reoffending could be cut through improved access to rehabilitation programs, but said many offenders were missing out on effective treatments because of a lack of available places.
"The best way to get people out of the criminal justice system is to get them employed and the best way to get them employed is to get them off drugs and alcohol.
"But there is a lack of places in these programs. We can spend days or weeks calling trying to get someone in," Mr Pudney said.
According to the the article, a spokesman for the Attorney-General, John Hatzistergos, said that the government was trying to reduce the over-representation of indigenous people in the court system through a number of court-based and rehabilitative programs.
Recently, Barry O'Farrell pledged an additional $10 million to expand rehabilitation places.
Sunday, January 23, 2011
O'Farrell pledges 10 million for rehab
From the SMH, 19 January 2011:
The NSW opposition has pledged $10 million to boost rehabilitation services for drug and alcohol problems in an election promise they say will help an extra 5000 people.
NSW Opposition Leader Barry O'Farrell on Wednesday announced the four-year funding promise, which would see government and non-government rehabilitation services tendering for the additional funding.
"This program today will enable an additional 5000 people to get treatment, to get assistance to get off their treatment, and will have the added benefit of relieving pressure on emergency departments, on acute beds in hospitals, which too often, because of the lack of these services, are filled up with those who suffer addiction," he said.
The Salvation Army's Clinical Director of Recovery Services, Gerard Byrne, said the funding would help organisations like his meet the growing demand for help.
"For a long time we and other organisations such as ours have struggled to meet the demand for services," he said.
"The provision of such a good quantum of funds to provide a sustainable and viable financial basis on which we can then provide our services is very welcome."
The NSW state election will be held on March 26.
But Darren Marton, director of The No-Way Campaign and independent upper house candidate at the upcoming poll, expressed disappointment that funds had not been committed to prevention services.
"Don't get me wrong, I'm all for rehabilitation, but I think our focus and direction should be first and foremost on prevention," he said.
"Trying to turn around a generation over the next couple of generations to make drugs not as prevalent as they are."
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