Monday, February 20, 2012

Shooting from the Hip

Nothing is more likely to create bad law than a political crisis.

The media focus on the shootings in Sydney has clearly reached the stage where O'Farrell and Greg Smith felt they had to act.  And act they have.

No one seems to have considered whether there was actually any problem with the law.  Do the present laws provide police with the charges they need to do their job?

Are there gaping holes in the law where police are powerless to act? Is there evidence that the shooters would be stopped by tougher penalties or new laws?

I think you know the answers to those questions.

What I wanted to do was have a look at the changes at the law and try to analyse what (if anything) will be achieved through their introduction.

The relevant bill is the Crimes Amendment (Consorting and Organised Crime) Bill 2012. It can be found here.

It introduces some new offences and increases penalties for some others.  I'll cover the changes one at a time, in the order they were discussed in Smith's speech.

Firing at a Dwelling House
At present section 93GA of the Crimes Act) reads as follows:
The change is the insertion of (1B):
In other words, the maximum penalty is increased by 2 years where the shooting was part of "organised criminal activity".  Does change accomplish a great deal?

Probably not a lot, but there is no inherent difficulty with the change. It makes sense that such an offence should carry a heavier penalty where it was performed as part of orgnaised criminal activity.

The next definition is small change to law on criminal groups.  Presently section 93T reads, in part, as follows:

The change will replace subsection (1) with this:
Essentially the change softens the prosecution's burden, in that the police no longer need to prove that the offender knew or was "reckless as to whether the conduct contributes to the occurence of any criminal activity", they now need only prove that the offender knew or ought reasonably to have known.

This offence is notorious for being difficult to prove - how can the police prove what a person knew, or ought reasonably to have known?  It requires the prosecution to provide enough evidence about the all the circumstances of the offender's involvement in the "group".

It's not even easy to prove what a criminal group is - have a look at the definition:
Moreover, this is an offence that is most commonly "tacked on" when a person is charged with a far more serious offence, such as drug supply.  This means that the number of criminals who police are now able to prosecute that they couldn't otherwise prosecute will be small indeed.

The bill also adds a new offence of directing a criminal group, and directing a criminal group whose activities are ongoing:
Essentially, all the same issues arise.  Criminals not being in the habit of taking minutes when meeting mean that it will be pretty difficult to prove that a person was "directing" the activities of a group.

Any time police are able to charge a person with directing a criminal group, they will almost certainly be able to charge the person with all the offences committed by that criminal group.  How is this new law supposed to assist police in prosecuting anyone they wouldn't otherwise be able to prosecute?

The next change is the introduction of section 93TA, which reads as follows:
As Smith puts it:
That's true.  What he doesn't mention is that we already have section 193B, which reads as follows:
It is difficult to imagine who could be guilty under the new section 93TA who is not also guilty of s193B, meaning that this change accomplishes precisely squat.

The final change, and by far the most troubling one, is this:
There is also a defence:
There is presently section 546A, which reads as follows:
It should also be noted that, as best I am able to tell, no one has ever been prosecuted in s546A.  Ever.

It is a deeply troubling section, for a number of reasons.  First of all, it is the very definition of "guilty by association". If you spend time with people who have convictions, you are committing an offence.

Moreover, police have to warn you first.  That's fair enough, given that you may not know that they are convicted persons.

What that means, however, is that police will be able to approach you and tell you that someone is a "convicted person", and to hell with their privacy.  There is otherwise no entitlement or reason for you to have that information.

A convicted person is someone who has been convicted of an indictable offence.  Without getting stuck into the detail, that casts an incredibly broad net.  I don't have the resourses to determine how many people in NSW fit that category, but it must be an enormous number.

There is also the fact that the law will be applied pursuant to a police discretion (ie only people they have warned first) means that it is open to police to pursue whoever they want in relation to this offence.  Groups or people can be targeted maliciously or without good reason.

That is a power that worries me.

It gets worse.  The defences to the offence are so broad that they can be easily manipulated by people committing the offence.

If you are given an official warning for consorting with someone, get them to hire you, or enrol you in some bogus "training".

It seems unlikely that police will be able to prosecute many people at all for the offence, despite the repugnance of the provision.

But we should come back to the original intention of the changes.  As Smith put it:
You can read that as "Do SOMETHING legislatively to get Labor off our backs."

The result?  Four minor changes at the margins that will interest criminal lawyers and no one else.  One change that is entirely redundant.  And one change that gives police truly incredible powers but then includes defences that will make the offence easy to circumvent, meaning that it is unlikely that anyone will be prosecuted for it.

How is it that these changes are meant to help police stop the shootings?  No one's really sure.  I'm not even sure whether anyone has asked what the hold-up is.  I doubt it is the lack of useful laws, and if it is then it is difficult to see how these changes will help.

The end result - Labor are now reduced to whining about the efficacy of the changes in a way that will not resonate with most people.
 Mission accomplished, I'd say.  Good governance be damned.

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