Saturday, March 30, 2013

A Glossy Outlook

Another "glossy" pamphlet from Labor appeared this week.
The full document can be seen here.

I was hoping to get stuck in and investigate the claims and allegations that the pamphlet makes, as I have done before (and before).

That hasn't happened for 2 reasons - firstly, it has been a mental week for me, and long weekend notwithstanding I just haven't had time.

More importantly though, the document is deficient in one very major area. It is utterly bereft of references for the claims made.

The only references provided are for quotes that the pamphlets rips out of other documents - which makes the absence of references for the allegations all the more obvious.

I'm going to try and provide some sort of words about the document later this long weekend. In the meantime, have a look and let me know what you think - in the comments or on twitter.

Saturday, March 23, 2013

The Other

I had a minor revelation about the changes to the right to silence today. I think it's also something that reflects more generally on the entire populations attitude to the criminal laws, and is why politicians get away with the stuff they do.

But let's start at the beginning.

As I have said before, our law and order legislation is a mess. It is a piecemeal, arbitrary, poorly thought out and implemented system. That is no surprise, given the hot-button topic that the criminal law is in the media.

It's also true that most people don't really care about the rights of people who are before the criminal justice system. Why? We'll come back to that.

Earlier today I was listening to the podcast of Friday's PM, a transcript of which you can find here.

It was an interesting story about the right to silence changes, and includes a brief interview with Federal member for Greenway, Michelle Rowland, herself a former lawyer. She had this to say:
There's a few problems with that. First of all, thanks to the amendment meaning that the warning has to be given in front of a lawyer (read here if you don't follow that) the indigent are unlikely to be caught by changes. The second paragraph is, in light of this, non-sensical. I suspect that Ms Rowland has simply not read the laws as they were actually passed, relying rather on what was originally proposed.

Ms Rowland also says that she is seeking advice on whether the Federal Government might be able to override the laws. I'm no constitutional expert on whether that is possible, but regardless I think it is unlikely that any such legislation could be passed.

Anyway, her comments got me thinking about the community's attitude to these changes. I've been blogging and tweeting about this, as well as appearing on Something Wonky and PETW (that episode not released yet). Me aside however, there has been surprisingly little reaction other than one day of headlines and the usual levity on twitter.

The attitude, for the most part, is best summed by this tweet from Brad Burden, O'Farrell's media guy:
The obvious inference he wants you to draw? This is a law that affects only the real bad guys.

A similar attitude was on display during the Legislative Council debate. This from John Ajaka:
What nonsense. For the reasons I have explained previously, no sophisticated or organised criminal will ever be subject to any such warning. They will have lawyers who will shield them from that.

As for the suggestion that these changes have anything to do with the recent "community, police and government concern" - the only issue has been the alleged spike in shootings, and the concern on that front was victims and their families not speaking. It was nothing to do with silence from the accused persons.

More important, though, is this. The government is using the criminal gangs information to emphasize everyone's usual assumption about law and order policies - they only affect "other people".

On one level, that's true. I don't know what your chances are statistically of being interviewed by police, but it must be a pretty small percentage.

The problem, however, is that people who are charged with offences are often not guilty of them. Moreover, just being a law-abiding person does not insulate you from, one day, being arrested and charged with something.

The public take a very black-and-white attitude to these matters. It goes to the question "If you have nothing to hide, what are you afraid of?"

There is a fundamental attitude, I believe, that these changes will only affect people who have done something wrong. Even more fundamentally, it will affect "other people".

And who really cares about them?

Wednesday, March 20, 2013

Torbay or not Torbay

High drama in NSW parliament today.

The big story from a legislative point of view is the passing of the right to silence and case statement legislation - but I'm going to put off that blogpost until the Hansard is released (and, to be honest, until I'm a little less furious about what happened).

The shock news today was Richard Torbay suddenly announcing that he was resigning as the member for the Norther Tablelands seat.

In order to appreciate what is going on, it is necessary to step back and look at the history. Therefore, timeline:

1991: Appointed Chief Executive of University of New England Union

1991: Elected Councillor in Armidale

1996: Elected Mayor of Armidale

1998: Surrenders Labor Party membership and, allegedly on advice from Eddie Obeid, decides to run as an Independent in the seat Northern Tablelands

1999: Elected as Independent for Northern Tablelands, defeating the sitting Nationals member

2007: Appointed speaker by Morris Iemma

2009: Offered/is asked to become Premier (depends who you believe). Either way, it doesn't happen, and Kristina Keneally is elected by the Labor caucus.

2011: Upon the election of the Coalition government, is deposed as speaker

2013: Pre-selected to contest the Federal Seat of New England for the Nationals. That seat is held by Tony Windsor. Becomes a member of the National Party

20 March 2013: Asked to resign membership of the National Party after allegations surface that the Labor Party helped fund his 1999 campaign

Later on 20 March 2013: Resigns as member for Northern Tablelands saying "given the events of recent days and the toll it has taken on my family I feel the time has come to consider other options"

It was also revealed that the Nationals themselves had passed information relating to the Obeid connection onto ICAC.

It remains unclear what has happened, and why it has happened. No doubt in the days to come all parties will be speaking to journalists both off and on the record to try and ensure that history comes down on their side.

Precisely why these matters have been referred to ICAC is unclear. The fact that this has been done by the Nationals when the person in question is a member of the National Party is particularly surprising. No doubt many will be wondering whether Barnaby Joyce, the person tipped to seize the nomination, had anything to do with it.

It is equally unclear what may happen in the Northern Tablelands seat, although that is a blogpost for another day.

What is clear, in my view, is that there is a lot more to this story that we presently know. It should be fund seeing it unravel in the days to come.

Friday, March 15, 2013

Lost for Words

I am utterly speechless.

Today this appeared, in response to the "stated case" amendments I blogged about earlier this week:
Full story here
When I wrote my last post, I had assumed that the changes must have had the backing of the DPP. Defence lawyers may think it is a bad idea, but surely the government wouldn't force this change through if the DPP also opposed the change?

You can then imagine my reaction when I read this:
Surely they are exaggerating? How many groups were actually involved in the discussion?

Which all begs the question - is there ANYONE who thinks this is a good idea?

I can't say for certain. But I do note that NSW Police were not part of the working group that indicated its overwhelming opposition to the change. Change that is proceeding despite that overwhelming opposition.

Which begs the question - who exactly is running this show?

Wednesday, March 13, 2013

Attorney General Chaos

Most criminal lawyers in NSW (yours truly included) expected that the Coalition government would be a good for the Laura Norda debate.

There were comments in the lead-up to the election that the Coalition would not be engaging in the traditional auction as to who could appear toughest on criminals. Lawyers rejoiced, talk-back hosts gnashed their teeth, and all was well.

Since the election, with a few notable exceptions, the government has refrained from simplistic attempts to appear tough on criminals. What it has done instead is attack some of the fundamental tenants of the criminal justice system. Not because of some demonstrated, fundamental flaw with the system, and not because the lawyers (on either side) have petitioned the government to fix some flaw.

Rather, thanks to pressures that remain concealed from the public, the government has unilaterally changed things, pretty clearly for the worse.

The first example was life sentences for people who murder police officers. Now, naturally, anyone who murders a police officer deserves an incredibly harsh penalty. Murder is of the the most serious offences on the books, and the where the victim of any offence is a police officer the penalty is, by operation of law, more serious.

My complaint is this: was there any evidence that offenders who had murdered police officers were not getting heavy enough sentences? Or had there perhaps been an outbreak of such offences? Was there even a skerrick of evidence that a harsher maximum sentence would save a single life? The answer to all those questions was a resounding "No."

The last person convicted of murdering a police officer was, if memory serves, Sione Penisini, who killed Glenn McEnallay in 2002. Almost ten years ago. Penisini was sentenced to between 36 and 25 years in gaol. 

Next was the consorting legislation - introduced to make it a crime to consort with a person who has a serious matter on their criminal record. A person could be warned by police to stay away from someone, and if they did not comply they could be prosecuted.

What does such a law accomplish? There must be, at an absolute minimum, tens of thousands of people with a criminal record sufficient to make their friends, work-mates, associates and acquaintances liable to such a warning. Why on earth are we giving police the power to make spending time with someone like that an offence? How does it possibly make NSW a safer place to be?

Of course it does not. But it gave the impression of action, and gave police a new tool to harass people who hadn't actually done anything other than hang out with their mates.

The proposals that have most recently captured attention have been the right to silence legislation and the requirement for the defence to state their case before trial.

The right to silence legislation has been knocking around for a while, and was the subject of heavy criticism when it was first proposed. What was suggested was that, where a person provides an explanation or account at trial that was not provided at arrest, the jury can be instructed, essentially, to be suspicious about whether it was a recent invention.

That goes against the ancient principle that an accused person has a right to silence, and cannot later be suspected for employing that right.

The problem with this law is that it gives police another tool to cajole/force/intimidate an accused person into giving an interview. It should be remembered that accused persons being questioned by police have none of the advantages that their questioners have. I've written about this before - here and here.

Police have spoken to the alleged victim and/or witnesses. Odds are they have sat down, compared all the statements, decided who was credible or not, and have drawn conclusions about what they believe happened.

When a person is arrested, they are typically told the offence that they are accused of having committed. Then they are left in a holding cell for hours to stew and, in short, panic. They are told that they will soon have the chance to tell their side of the story, the (false) implication being that they may be able to talk their way out of the situation in which they find themselves.

They are then taken into a room, reminded of their rights, and asked hundreds (if not over a thousand) questions about the alleged offence. Every single answer is taped and later replayed for a jury. In the most part, people do all this without having had the benefit of legal advice.

Given the above, my universal advice to anyone who will listen has been that the should not give an interview. The problem with the these proposed changes is that they would have allowed a jury or a magistrate to take into account the fact that a person did not immediately provide an explanation when they had not had the opportunity to even speak to a lawyer, let along find out exactly what they were accused of.

The justification offered by the government was the United Kingdom, where similar changes came in some years ago. The fundamental difference never acknowledged was that in the UK the government funds their Legal Aid such that most police stations have a lawyer either on duty to advise accused persons, or otherwise available at a nearby station. The government was not prepared to fund Legal Aid to do this, and given that Legal Aid is (inevitably) strapped for cash, there is no way it could fund such a service from current allocations.

The surprise came today in the media release from the Attorney General:
On one level, it is a entirely sensible amendment. Who can think less of a defendant who refuses to give a statement in the absence of legal advice? People should have the opportunity to have someone who is actually on their side explain the situation and consequences before the make decisions that may make a material difference to their trial that will take place years later.

There is, however, a significant practical impediment. Obviously I have not seen the final bill - but the media release indicates that the warning must be given "in the presence of a lawyer".

Do you think there is any chance at all that any lawyer with half a brain will be caught near a police station where such a warning might given? It is rare that accused persons have a lawyer at the police station anyway (just for cost reasons) - the only reason I would usually attend would be to just essentially hold a client's hand through the process, or where I was concerned that my strident warnings about not giving an interview may not be heeded.

What will inevitably happen in that, where a person seeks legal advice before or upon arrest, the lawyer will say in as many ways as they can that the client must not, under any circumstances, not matter what, ever ever ever give an interview - and then hope they remember. There is no way the lawyer will possibly attend a police station - thus eliminating the risk that a warning complying with the section would ever be given.

It's better than the alternative - but it confirms that the amendment is being made as a public relations measure - nothing more. Lawyers know this stuff, and only an amateur is going to be caught out.

As for the amendment to make trials more "efficient" - well, here we have more problems.
This is a great idea, in theory.

The problem is that, as a matter meanders its way to trial, it is usually managed by a less senior lawyer. A Crown Prosecutor or a private barrister appearing for the Crown is usually not assigned until shortly before the trial - once it becomes clear that the trial is going to run.

Once that happens, the Crown Prosecutor notices problems, deficiencies in the evidence, or other issues they want remedied - and then instructs police as to what needs to be done to plug the holes.

That is inconvenient for defence lawyers, but hardly unexpected. I can assure you that six weeks out from a trial the Crown case can still be, to say the least, opaque.

Consequently, rather than improving efficiency, this change is going to require far greater funding for the Director of Public Prosecutions, because if the case has to be settled a month before the trial, there is going to have to be high level attention paid to every single case that is still live a month out. Otherwise there will be utter chaos as Crown Prosecutors seek leave to change everything and serve new evidence in the final week or two before the trial, and defence lawyers quite rightly object.

There are burdens for defence lawyers too:
There are two obvious problems with the above.

The first is that it is completely unfair to expect the defence to lay its cards on the table unless the Crown case is set in stone. The difficulties with that are set out above.

Moreover, my experience of trial work is that the Crown often (if not usually) shifts during the trial. It is infuriating, but in some ways it cannot be avoided. The Crown cannot always predict what will happen.

Witnesses will not turn up for court. Witnesses will unexpectedly concede that they could not see what happened. A witness might suddenly admit they have a vested interest that you suspected bud did not know.

The Crown will often (quite appropriately) have to change course as a result. That is fair - but to then tie the defence to their previous position is obviously unreasonable.

Seem fanciful? Let's imagine an example. Say you have a client who is accused of robbing a Service Station. Your client says he didn't do it, but the attendant says he did. You don't get to cross-examine the attendant until he gets into the witness box during the trial. The following are all entirely possible:

  • The attendant doesn't turn up
  • The attendant admits he didn't see the defendant because he was distracted
  • The attendant was actually out back when the incident happened
  • The attendant was drunk
  • The attendant stole the money and is blaming someone else
  • The attendant knows the defendant and hates him because he stole his girlfriend
Those may sound a little fanciful, but before the trial starts how can the defendant or his lawyer know which of those explanations may be possible?

So what is every single defence lawyer going to do? Plead every single scenario they can possibly imagine. And this makes trials more efficient how?

It's ridiculous - and anyone who thinks it will make trials more "efficient" has clearly never spent any time running a criminal trial.

Hopefully there will be the opportunity for interested parties to make submissions on the stated case amendment before it becomes law. And hopefully it will be listened to.

Not the AG's finest work, this.

Saturday, March 9, 2013

Pushing the Boundaries

For something that the vast majority of the population is barely aware of, electoral redistributions are incredibly exciting for political nerds.

Not only to political parties get to subtly (and sometimes not so subtly) try to influence an independent process, but the visceral infighting that follows afterwards is enough to convince most observers that politics is best enjoyed as a spectator sport.

NSW is undergoing a redistribution this year, and as is their right the four main parties have put in submissions as to how they think the changes should be made.

First of all, some background. NSW has 93 Lower House Seats. The current enrolment of NSW divided by 93 is, according to Anthony Green, 51 623 people. Naturally the enrolments cannot be exactly correct - but the paramaters that the Electoral Commission has to work within are, to say the least, challenging.

This is what the NSW Constitution Act says:
It also says that such redistributions must be undertaken every 2 elections. Simple enough? Wait, there's more:
Not to mention:
In short, it is a horribly difficult job that I am glad that someone else has to do.

The submissions made to the Commission can be found here, including those from the ALP, the Liberals, the Nationals and the Greens.

Below I have include two quota maps helpfully produced by Anthony Green, as well as two maps from wikipedia that help with the names of the electorates:

Anthony Green's maps, and in particular the NSW-wide one, help illustrate the obvious problem for the commissioners - districts that are under enrolment tend to not have a convenient over-enrolment seat next door. In fact, it is quite the opposite.

The only solution, short of increasing the number of seats (which is not entirely out of the question) is to shift the boundaries of those Western NSW seats progressively eastward.

By the same token, the map Sydney shows the disproportionate growth in the North-West and South-West as well as in and around the CBD.

Ben Raue has written an excellent piece for New Mathilda that, to be honest, I'm tempted to just copy and paste and pretend it is mine. This is the most important part:
The consequence of the low numbers in the west of the state and the high numbers in the Sydney, Inner West and SW Sydney is, Ben suggests, this:
What do the submissions have to say about that?

Goulburn is presently held by Pru Goward, a Liberal who sits on the Coalition's cabinet as the Minister for Community Affairs and Women.

Shockingly, the Liberals have suggested that Goulburn not be dismantled. They say:
Burrinjuck is directly to the West of Goulburn, and is held by the Nationals member Katrina Hodgkinson. The maps provided in the Liberal submission are frustratingly opaque, but the only way such a change could be accomplished would be if most if not all of the NSW electoral seats were to converge on Burrinjuck, each either directly taking a part of moving in that direction to compensate for another division doing that very thing.

The Greens and the Nationals both agree that Goulburn should go. The Labor solution is a little more complicated, and best shown through the map provided as a part of their submission:
Exactly how it is that this proposed map benefits Labor is a little beyond the ambit of a blogpost, but suffice to say that the radical redrawing of the map it requires means it is unlikely to be a particularly influential suggestion.

The disscussion is obviously an incredibly complex one. Even if you exclude the maps, the Liberal's submission runs to 36 pages. The ALP produced over 50 pages including enough tables to make your eyes water.

The parties can now make further submissions until 20 March, and we can expect a decision later this year.

Monday, March 4, 2013

Is that Fare?

It's never nice when you have a piece planned, and someone else beats you to the punch.

That happened to me this morning when I saw this piece by Bambul Shakibaei on his public transport blog.
It is a good post that lists on CityRail's recent failures, and suggests that a fare-free day would be a good way to provide a "token gesture of apology."

This echoes the suggestion of Penny Sharpe, Shadow Transport Minister, who posted this on her website:
However, despite the fact that Bambul's blog is excellent and worth following, I don't agree with his suggestion.

I certainly don't disagree that CityRail's performance over the last few weeks has been pretty average. Some of the problems were simply impossible to anticipate and an inevitable consequence of running a network the size and complexity of Sydney's. But there is no doubt that CityRail can and needs to do better.

But a fare-free day fails to benefit the very people who are most heavily affected by these dramas.

Ms Sharpe's suggestion was that "...the Minister to open the gates at stations on Monday and to extend weekly tickets, as a show of good faith to long suffering commuters."

Some people (like myself) rely on public transport every week-day, and occasionally on weekends. In fact, I use the trains not just to get to and from work but also to travel all over the city for my job. This means I often take as many as 20 separate train journeys per week.

Most regular commuters take 10 journey's each week, or maybe 20 if they have to change services on their way to and from work. A large proportion of those people do so with a periodical ticket. I have a yearly - others have quarterlies or weeklies.

Many other people use trains on what you might call an ad-hoc basis. Maybe they work part-time. Maybe they get a ride to work twice a week. There are any number of reasons that a periodical ticket may not be best for them.

Still others have free passes, most of whom are students.

I've had a look at some of the data provided by CityRail re ticket sales here. It is little difficult to say anything with any certainty, not least of all because ticket sales vary wildly depending on the day of week and, I fancy, time of year.

What is clear from the data is that a very large number of people depend on periodical tickets. Those on those yearly, quarterly, monthly or fortnightly would not benefit from a fare-free Day.

According to Ms Sharpe's suggestion, weekly tickets should be "extended", which sounds great until you consider that most people buy weekly tickets on Monday. Making them all expire on Tuesday is great until they take a week off and revert to the Monday rotation.

Whilst those who rely on singles or returns would benefit most clearly, they are obviously more irregular travellers. That is to say, they are the least likely to have been adversely affected by the recent dramas, and yet they are the biggest beneficiaries.

So, what do I suggest? I certainly don't think that simply not charging fares for one day accomplishes anything. CityRail could agree to a Fare Freeze until benchmarks for performance are met. We could all be handed something for free at the station one Monday (newspaper, magazine, JB voucher, cupcake etc etc).

CityRail could fund a free download of TripView, a fantastic app that provides public transport timetables as well as live-tracking of busses.

It could spend the money installing free, reliable, capable WiFi at all CBD and major interchange stations.

There are probably a thousand other ideas. But any one of them would be a more sensible use of the government's limited funds than just throwing the gates open for a day. It requires a little more effort, but I would suggest we deserve nothing less.