A Hemp in the Road

So are we going to be seeing cannabis for sale in pharmacies soon? Will we be seeing shelves packed with Maxalon, Maltrexone and Marijuana?

I doubt it.

This week the General Purpose Standing Committee Number 4 released a report containing some recommendations that got the media a little hot and bothered.

The first thing to note about the report is that it was a unanimous report. The members of the committee are listed below:

I don't have time go to through the entire report (for the same reason that there aren't as many posts appearing on this blog as I would like at the moment - TIME!) but the main recommendation of the report is:

I'm sure you will forgive me doubting that this government has the courage to do anything as intelligent as that.

NSW has a long history of populist, even stupid Laura Norda policies. Both sides of politics have been guilty of it. I don't know whether it says more about the voters or the politicians, but it's true. I was therefore thoroughly unsurprised when I saw this news appear:

Full story on the ABC website

Further down:

And there you go. A nice report that go everybody a little excited, but no actual enthusiasm for change. It doesn't matter that three Coalition Upper House Members have their name on it - my tip is that the report will be given "thoughtful study" and then promptly disappear without a trace.

How very unlike NSW.

A Western push

Australians are pretty hazy on the different levels of government. That's hardly surprising - the responsibilities and powers of the different levels are almost arbitrarily divided up.

Moreover, the Federal Government funds a lot of things that are a State responsibility, meaning that people can hardly be blamed for confusing who is to blame for what.

That is why (ridiculous) leaflets like this work:

From ElectionLeaflets.com.au

It makes no sense at all, in that it shamelessly confuses the State's responsibility for Laura Norda with the Federal Government's responsibility for the country's borders.

The less said about the boat the better.

The confusion is not helped by stories like this appearing in the Daily Terror:

This piece makes exactly the same "error" in that it (some might say deliberately) conflates Federal and State Responsibilities.

There is a great deal more that could be written about how misguided the article is, but you can read it for yourself. The only thing I want to point out is this:

Labor stronghold?

Pic from Wikipedia

That's a Labor stronghold O'Farrell would love some more of, I fancy.

What I wanted to quickly comment on was how O'Farrell may use that confusion for his benefit. There is no doubt that the gun violence in Western Sydney is a potentially damaging issue for him. That is notwithstanding that the outrage is utterly disproportionate, given the marginal increase in one particular metric of crime in a particular area.

Rather than fighting the issue with that truth (which I accept is difficult to do when the Terror has set it's mind against you), O'Farrell (or, at least, the NSW Liberal Party) appears to be settling for muddying the waters.

It's not even really necessary, given the apparent ineffectiveness of the Labor attacks, the reason for which are the subject of another post. But the electorate cares about Federal politics this year, not State - so why not try and deflect the blame towards Canberra.

It's not exactly high-brow, but no one's really going to notice.

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?

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?

Ah.

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?

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.

Stay Directly In Gaol

Sometimes standing up for an individual's rights can put you in a difficult position.

As many of you would know, my day job is a criminal defence lawyer. Some of my clients have been accused of pretty awful criminal offences. Others who I have represented on sentence have admitted committing awful offences.

That's ok. I'm proud to stand up for someone and make sure they receive the just penalty, rather than the penalty that an ill-informed public baying for blood might deem appropriate.

Having said that, I'm sensitive to society's views on criminal punishment. By way of example - at present the maximum penalty for a person who sexually assaults a person under the age of 16 is 20 years imprisonment.

At present, there are a select group of offences that are deemed worthy of imprisonment for life (including, for example, murder and some examples of gang-rape.

If someone wanted to make the argument that sexual abuse of a child should be added to that list, then that is a discussion we should have. I'm not backing any such change - but it's a reasonable argument for someone to make.

What I will almost always oppose are changes that remove a court's discretion. I wrote earlier this year about the new law mandating life-imprisonment for murder of a police officer earlier this year.

But if there is a particular maximum penalty that needs to be increased, then so be it.

This is why I was so interested to watch this documentary from the always excellent Louis Theroux:

Screenshot from here

The doco is fascinating, and thoroughly worth a viewing. In short, Theroux spends a few days in a mental hospital in the US that was built for paedophiles who are still deemed to be too great a risk for a release, but who had finished their court-imposed sentence.

The offenders were kept in good conditions (at least when compared to a prison). They had all sorts of luxuries and benefits that are not afforded to regular prisoners.

And so it should be. These men had all completed the sentence that was imposed by the court, and there was no longer any basis for "punishing" them. They had rec-rooms, DVD players, sports competitions - they just weren't allowed to leave and re-enter the community.

The problem was that an idea that is perhaps good in theory was perhaps always destined to fail - the "inmates" were almost never approved for release. Even those that completed all the necessary rehabilitative programs found that accommodation difficulties, judicial review or plain bureaucratic SNAFU's meant that they tended to remain there indefinitely - even once approved for release.

But in theory, I think the idea has merit. A person who had completed his or her sentence should not be punished further - but surely there is merit in keeping those people separate from potential victims.

The problem in NSW is that there is not even an attempt to ensure that punishment is not any part of the preventative detention.

Full Act available here

This act, in short, allows the state to apply to the Supreme Court of NSW to keep a person in custody after the completion of his or her sentence if the person is service a sentence for a "serious sex offence".

This isn't simply keeping the person away from potential victims - a person who is subject to such an order is kept in gaol, as if their sentence was not yet finished.

It is abhorrent, but no one really seems that fussed. They're just sex-offenders, after all.

Today Greg Smith announced that the scope of the act was to be widened:

If it was simply a matter of preventing these offenders from re-integrating into the community, and if they were housed and cared for in such a way that made that clear, then I would have some sympathy for the position.

But that is clearly not the case. These people will simply be kept in gaol as if they were still serving their sentences.

And that's the problem. An idea that would be a necessary evil if carefully thought through and sufficiently funded becomes an arbitrary, capricious law that unnecessarily and grossly breaches human rights.

Why? A few cheap headlines in the Terrorgraph.

Worth it?

A PaRole for the Court

The decision to release an offender on parole is always a difficult one.

This is particularly so with serious offences, and doubly so with high-profile ones. The media is often intensely interested, not least of all because it allows them to dredge up scandals in the past.

It's all to easy for the media to get a quote from the victim of victim's family, something inflammatory from some victim's group, rewrite a retrospective article, and there's five o'clock.

The release of Victor Chang's killer was always going to upset a lot of people.

For those of you who are too young (or, like me, too foreign) to know much about the events, this from Wikipedia:

At a public hearing earlier this week, the Parole Board ordered that Liew be released.

In deciding to release a person on parole, the Parole Board is bound by section 135 of the Crimes (Administration of Sentences) Act 1999:

Obviously it's a complicated matter.

In any event, the Parole board ordered that Liew should be released. He had been sentenced to a maximum of 26 years in gaol and had completed his 20 year non-parole period (ie minimum term he has to serve before he can be considered for parole) in July 2011.

Naturally enough, Greg Smith has indicated that the state was going to appeal:

From the SMH

Now, Regular Readers will know I'm usually keen to rant and rave about government's making decisions purely on populist grounds. And this is what Smith is doing - the above article doesn't actually provide any information from Smith explaining why parole is a bad idea or why the Parole Board was wrong.

But, in this case, I'm happy for Smith to take it to the Supreme Court. Obviously I'm not thrilled on the State's resources been wasted if it is in fact a wasted application - but I'm happy to see the state approach these things in a proper fashion.

It's quite different from those times where we frantically legislate to appease the Daily Terrograph. Of course, that is the motivation here, no doubt - but there's nothing wrong with going to the court and asking for a review. It's quite different to just changing the rules to the community's detriment.

What remains to be seen is whether a curmudgeonly Supreme Court judge raps the State over the knuckles for wasting the court's time, or whether there is in fact a valid basis for complaint.

Not that Smith is likely to care either way.

An Opportunity to Improve?

Well, we were waiting to see what the suggested amendment was going to be, and now we know. Except, I'm not certain what to think.

I wrote about the proposed changes to the right to silence a little while ago, and I won't repeat the reasons that I think it is an awful idea.

One thing I mentioned last time was that it would be interesting to see the way the actual law was drafted.

This is what part of the new section 89A of the Evidence Act looks like:

That's interesting, for a number of reasons.

The big problem with the changes is that they are going to pressure lots of people, particularly innocent people, into giving an interview when it would be hugely contrary to their interests to do so.

When similar changes were introduced in the UK, a 24 hour legal aid service was provided so that anyone arrested would be able to get in person advice before deciding to give an interview.

And extract from a UK government website

The English courts have held, as I understand it, that if a person could not get legal advice before the interview then the "old rules" applied.

Naturally enough, the efficacy of the changes for the UK was used to justify the changes in NSW, even though there was no intention of providing funding to Legal Aid so a similar service could be provided.

My experience is that if a person is arrested and says they want to speak to a lawyer, the police usually just fling a yellow pages at them and give them a cordless phone.

Since a lawyer is unlikely to come down to a police station unless the person is able to pay for their attendance, it's extremely rare for a person to actually get legal advice before they get interviewed.

The new section says that the new rule will only apply once they have been given the "opportunity" to obtain legal advice.

It will be fascinating to see the way the courts interpret the word "opportunity".

Technically, every arrested person is already afforded the "opportunity" to seek legal advice. If they say they want to speak to their lawyer, or any lawyer, the police will give them that cordless phone.

But I fancy the drafters had something a little more substantial in mind. But what?

The good thing about the drafting is that it means that the issue will be left up to the courts to interpret with very little precedent to be guided by, other than the UK system.

Given the way in which this section flies in the face of centuries of legal protection for the rights of the individual, it is my hope that the court reads "opportunity" very narrowly, perhaps limited to an in-person conference with a solicitor who has been given the chance to obtain a detailed account from you.

Of course, there are still a number of significant problems with that system. People will be giving interviews before the police have had to provide a brief of evidence, before it is clear what charges will be preferred, and before it is clear whether police have any prospect of proving the charges without you opening your fat mouth.

But it's something at least.

The full proposed amendment can be found here along with an invitation to make a submission. If you are so inclined, you have my permission to plagiarize as much of my writing as you like.

Provoking a Response

This week an Upper House committee has been consider changing the law on provocation.

The review was no doubt motivated, at least in part, by the decision of the jury in the case of Singh.

Full story from the Hun

Charmanjot Singh was found not guilty of murder due to provocation. He cut his wife's throat with a box cutter after, he said, she told him she loved another man.

This story, not unreasonably, sparked outrage in the community, and highlighted some of the problems with the law of provocation today.

Let's take an example to explore the issue a bit.

Let's say you're in a pub, and you punch someone in the face. Perhaps you're charges with Assault Occasioning Actual Body Harm (turns out you have a decent punch on you, and you split the guy's lip).

When your matter comes up for sentence, the court will consider all the relevant circumstances - your age, background, criminal record (or lack thereof), whether you plead guilty, any remorse you have shown, and so on.

Let's say, however, that the court is satisfied that you punched this guy because he just said that he would like to rape your sister.

In that case, you could on sentence ask the court to consider provocation as a mitigating factor. Provocation is listed as a mitigating feature the court has to take into account in deciding what the appropriate sentence is for any matter:

You can find the full list here

It doesn't mean you won't be punished, but it does mean that the court will take that factor into account.

When it comes to murder (and only murder) the law is a little different. The briefing paper for the inquiry defines the test as follows:

If the crown cannot disprove provocation, then you can only be found guilty of manslaughter, and will receive a drastically shorter sentence.

Whilst the committee is also examining whether the law on provocation should be amended or tweaked in some way, the main discussion is whether it should be retained at all.

I'm not going to review all of those or try to provide a detailed argument, because the size of that task exceeds my available time.  What I will do is quickly summarise the reasons that I believe the defence should be abolished entirely.

This would mean that provocation would simply be treated as a mitigating feature of a murder, much like it would be for any other violent offence.

It IS murder. These people intended to kill the victim, and did so. They may have been angry, and they may have been sorely provoked, and that should be considered, but to suggest that the offence is not murder is disingenuous.

Other States have done it. And, more importantly, the sky does not appear to have fallen in. Have a look at pages 6 to 8 of the briefing paper if you're interested in the details.

Sentences would increase. It is difficult to dispute that, if the law was changed as suggested, the sentences for these criminals would be longer. I think the community would approve of that, and, for once, I think the community would be right. To take the example of Singh, he should be punished as a murderer, because that is what he is.

It is impossible to accurately estimate what his sentence might have been had he been convicted of murder but been able to plead provocation, but it would have been several times as long.

It's too easy to prove. To again use Singh as an example, we have only his word that his wife said anything to provoke him. As the briefing paper said:

How could the prosecution in Singh's case possibly prove beyond a reasonable doubt that he had not been provoked by his wife? As is so often the case, the only person who could deny the provocation is the victim.

Some people have suggested reversing the onus, or at least forcing the defendant to prove provocation on balance, and if the defence is to be retained then that would appear to be an excellent suggestion.

Ordinary Person. This is a slightly obscure objection, but I have a difficulty with the "ordinary person" test. Are there any circumstances that could motivate the "ordinary person" to form an intent to murder? The test takes into account age and maturity, but I still struggle with the suggestion that there are anything other than the most incredible circumstances that could cause an ordinary person to intend to murder.

Of course, juries over the years have found that an ordinary person might have formed the intention to murder, so I'm not sure what we are to do with that. Are juries just too confused by the (very complicated) "ordinary person" test and simply allowing leniency to an accused person they felt sorry for?

The Special Treatment of Murder. As I have explained above, no other offence has a partial defence of provocation, not even very serious violence offences carrying 25 years gaol as a maximum penalty. This does not appear to be causing any great difficulty, so it is reasonable to assume the same if the law on provocation in a murder is changed.

More subtlety on sentence. If the problem of how to deal with provocation is given to a judge on sentence, then the judge can make as much allowance as he or she deems appropriate.

At present, a finding by a jury that a person was provoked immediately reduces the offence to murder and drastically decreases the sentence.

Now, naturally a manslaughter where the provocation was slight will get a heavier sentence, and a murderer who just "misses out" on provocation will get a lighter sentence, but there is nonetheless a huge jump.

If provocation becomes simply another mitigating factor, a judge will be able reduce a sentence exactly as much as is deemed appropriate when the offender's conduct is weighed against the level of provocation.

There is far more to say than that, but it's a start. Hopefully there will be a detailed response published, and I will endeavour to review it as and when it appears.

Disclaimer: I was part of a committee that provided a response to the Provocation Inquiry, These views are, obviously, my own.

The Silent Menace

Here's a hypothetical situation for you to consider.

You're out with some friends on a Saturday night. You've had a few drinks - you're not drunk, but you're enjoying your night. It's a dark pub in the city - there is music, flashing lights, people everywhere.

You look over your shoulder and see your friend being punched by someone you don't recognise. You don't know how it started, and your friend may well deserve that punch, but you immediately run over to try and help your friend.

As you arrive, suddenly there are people everywhere. You get a knock to the head - you're not sure who or it was. Suddenly you're just trying to defend yourself.

After 10 seconds of chaos, someone grabs you round the throat, and before you know it you're on the ground, handcuffed. You're taken to a police station, put in a 1m by 2m cell with a clear plexiglass wall and given an icepack for that lump on your forehead.

You wait there for about 2 hours and start to sober up. You are offered the chance to call a lawyer, but it is 1am on a saturday night, and of course you don't have any lawyer's mobile phone number. The few law firms that you find in the Yellow Pages don't pick up, and in any event, how would you pay for their services?

Then, a police officer approaches you, takes you in a room. As he's setting up, you ask what is going on, and he says "We're investigating what happened in that pub. This is your chance to tell your side of the story."

You respond "Do I have to?" and he replies "No." You say "Am I going to be charged" and he says "Maybe."

He turns the video camera on and is joined by another officer. The say "You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?"

You say yes, and police start asking questions.

You know you did nothing wrong, and you've got nothing to hide. Do you answer the questions?

If you said yes, you almost certainly just made a massive mistake. Don't feel bad - the vast majority of people (innocent or guilty) who are charged with an offence give an interview. People who are innocent are even more likely to start talking.

I've been working in criminal defence work for four and a half years, and I am yet to see even one interview given by a client that helps them. Not once. I have NEVER even heard of a situation where police decided not to charge someone because of what they said in their interview.

The problem is this - by the time they speak to you at 1am that night, police have taken statements from security, the barman, the alleged victims, and anyone else who they think might help. They have viewed the CCTV footage, if it exists. They have sat down and worked out what they think happened.

They have all the information. You have none. They know what they plan to charge you with, and what the elements of the offence are. You do not.

If you say anything, ANYTHING that differs from what the CCTV footage shows, the police will do everything in their power to use it to your disadvantage. If you forget something, or in your muddled, disorientated state of mind during the interview and then bring it up when your matter is heard, you will be hammered for it.

If you get home and find a huge bruise on your back and suddenly remember that punch you got just before you got hit in the head, or if you remember something that you forgot to mention - too bad so sad, you missed your chance. Anything you add now looks like something you've invented specially.

Interviews are almost universally a very bad thing for accused persons.

This is what makes the changes announced today all the more shocking:

NSW will be the very first jurisdiction in the country to take these steps.

Why is this change such a bad thing? A lot of reasons.

Firstly, the person being interviewed will almost never have had the benefit of legal advice. There will usually not be a lawyer there to protect and advise them, even if they could afford to pay for one. They won't know what they are to be charged with, they won't know the elements of the offence, and they won't know if they are guilty or innocent.

Police, by contrast, will know what they are trying to prove, and will ask difficult, confusing questions to trap you into admitting something, or at least into contradicting what they know they can prove.

These changes will be an even more powerful emotional tool for police to use to convince a person to give an interview. Of course they cannot literally force someone to start answering questions - but once people are told that, in effect, that if you don't tell us what happened it can be bad for you, it is difficult to resist the natural willingness to answer questions.

Moreover, at present I can as a solicitor give general advice that an interview is almost universally a bad thing. I tend to tell anyone who talks to me about my job for more than a few minutes.

If this change is made, that advice will change to "it depends". It will be pretty much impossible to advise a person whether giving an interview is a good idea without spending a decent amount of time talking to them about what has happened - and that assumes that you even know what you are going to be charged with. At 2am in the morning, there is no way that going to happen.

The second issue is the presumption of innocence. The basic principle is that the Crown needs to prove its case beyond reasonable doubt.

That is a heavy burden - but it is the right burden. Anyone can make an allegation against someone, but we don't want to have to come to court and prove that we didn't do something. Not only is proving a negative all but impossible, but the prosecution have far, far greater resources than all but the wealthiest of defendants.

Police have incredible investigative powers that are not even worth comparing to an individual's. 

The third issue is that there has been no report, no investigation, and no consultation.

Well, that's not quite true. In 2000 the Law Reform Commission closely examined the right to silence and produced this quite excellent report. Their conclusion?

Section 89 of the Evidence Act presently reads:

This mooted change comes completely out of the blue. To my knowledge no one has been actively campaigning for it, no one has suggested that it is a major problem to be fixed, and no other jurisdiction in Australia has tried because it because it is a pretty bloody stupid idea.

The only people quoted in O'Farrell's press release are O'Farrell, AG Greg Smith, the Police Minister Mike Gallagher (3 Liberal politicians) and Police Commissioner Scipione (police being famous for never having met a new power they didn't like).

It is also pretty interesting to look at the reasons that have been proffered by the Coalition as the story broke today.

If by exploited O'Farrell means "being used to the accused's advantage" then I suppose a lot of other rights are in danger.  On that definition, accused person's constantly "exploit" their right to a trial, and their right to legal representation, not to mention their right to a presumption of innocence. 

Unless O'Farrell can point to some evidence of this right being somehow illegitimately exploited then this is a non-sensical criticism.

And to say it an "importan legal right" and then comprehensively rip it to shreds - I don't even know what to say about that.

Well, yes. Of course accused persons restrict information given to police! The police are trying to prove them guilty of an offence that they deny committing! Is O'Farrell expecting these people to actively assist police in trying to prove them guilty?

If police uniformly and reliably investigated matters with the intention of finding the truth (not just "getting their man" as is so often the case), and if the police never made a mistake, never jumped to a conclusion and never relied on their "gut" rather than the evidence, then perhaps this wouldn't be such a problem. But we all know that is a fantasy.

Ah, that old chestnut! Common sense! Also known as "We have no evidence that this is a good idea, but it sounds good, so we're going to do it!"

That's why you hear so much talk about "common sense" from some people. It's a wonderful way to avoid annoying things like "evidence", "specialised knowledge" and "research".

Brad Burden is the head media guy for O'Farrell, and his tweets today got me madder than any others.

Bring into line with the UK? What possible reason is there that we need to have the same laws on this topic as the UK does?

Bringing laws into line with other states can sometimes makes sense. At the moment the states are working on bringing together the laws surrounding heavy vehicles. This makes a lot of sense - the heavy vehicle regulation in NSW is eye-wateringly complicated, and having to work with the laws in 6 other states and territories must be an absolute nightmare.

To suggest that there is a good reason to bring laws into line with the UK is ridiculous in the extreme.

It is also worth noting that in the UK there is a scheme whereby any accused person can at any time have access to legal advice 24/7. There are duty lawyers who are always available to attend police stations and give advice

In NSW, you have the right to access legal advice, but it is impossible to find unless you have the mobile number of a criminal lawyer in your pocket. Legal Aid do great work in NSW but their funding has no prospect of even coming close to this level of service - they are hard-up providing enough lawyers just to make the court appearances for their clients during waking hours.

This was the tweet that really made me crazy. This change has nothing to do with victims of crime. It is about making it easier to convict someone of an offence. To link it to "victims of crime" is just plain deceptive.

That segues pretty well to the biggest complaint I have about these changes.

Everyone is going to be talking about the way that these changes will affect people who are guilty of crimes and trying to hide it. Case in point:

I have no problem with something that makes it easier to lock up people who are guilty of offences. That's good, and proper, and should be encouraged.

What upsets me about these changes is the effect that it will have on people who are not guilty of anything.

If you are innocent of any crime, the absolute worst thing that can happen to you is a police interview, especially before you get legal advice. Police will know the evidence they want to get from you. They will spin your answers, they will provide you with information as and when it suits their questions, they will change tack and try and catch you in a lie, and they will give you every opportunity to say something they can prove is untrue.

There is no magistrate to rule questions out, and there is most likely no lawyer there to help explain things to you. And your answers will be mercilessly used to convince a jury that you are in fact guilty.

And more innocent people will go to gaol as a result. Fact.

Nice one Barry.

A Gun to Your Head?

It's hard to work out what I feel about this report:

Full story here

There was a similar story in the Australian that focussed on O'Farrell's refusal to rule out mandatory sentences for gun crime:

Full story here

Those of you who read regularly will know how I abhor populist Laura Norda policies (see here, for example). Almost invariably they take away discretion from courts and impose harsh, punitive penalties whilst have no effect whatsoever on the crime rate.

It is really easy to appear tough on crime, but extremely difficult to actually do something that reduces the incidence of crime. Greg Smith (for the most part) deserves recognition for what he has achieved in this area since he entered the AG role.

The reason I'm conflicted about O'Farrell's comments is this.  In the past, Premiers would have been desperate to be seen to be "taking action" and "making changes" to "keep our community safe". They would lambast the judiciary, introduce new penalties and rant and rave on radio about how they are fixing the problem.

O'Farrell's approach has been a little more subtle.

I wrote earlier about changes to the criminal law that were (ostensibly) introduced to help prosecute these offences.  Most of the changes were (as I discussed) superficial at best, but it got Labor off the Coalition's back.

What I'm wondering is whether there is a bit more to this than meets the eye.

First of all, he made the comments at the traditional home of reactionary law-making - talkback radio.

Second of all, he didn't promise action the way past premiers would have - when asked about mandatory sentencing he said he was "open to all options".

He knew that the papers would uncritically pick up on that comment, and I'm convinced that was the intention.

Thirdly, he made vague comments about the sentences the offenders would be given, banking that the media would pick up on that. The Herald came through for him:

The result? Stories about how O'Farrell is outraged by the crime, which somewhat dulls Labor's attacks. Talkback listeners would have eaten up his comments yesterday.

He hasn't made any commitments, so he won't need to deal with the fallout that would follow from actually making those changes.

Maybe I'm just being excessively pragmatic about things. But I care far more about the changes that get made rather than meaningless posturing. And if we have to have one of those two, I know which I would prefer.

Poor Judgment

The controversy over appointment of judges is (luckily) a spectacle that we are typically spared in Australia.

As a lawyer, and moreover one specialising in criminal law, I strongly believe that there are few things less edifying than "electing" judges.

There are probably few other decisions that should be as non-political.  After all, judges are tasked with applying the laws made by the legislature. They are a separate head of government, and should be entirely divorced from the political arena.

It goes without saying that judges will make decisions that have political consequences.  But there should not even be the slightest hint that any decision is coloured by an ideological perspective.

Nowhere is this unedifying spectacle more obvious than in the United States.

In the US all Supreme Court judges need to be "confirmed" by the Senate. This means that a majority of the US Senators need to vote to "confirm" an appointment made by the President.

It is a grotesque spectacle.  Every decision, every on-the-record word ever uttered (and many more off the record comments) are raked over by opponents in a desperate attempt to shape the court. Abortion being the political hand-grenade that it is in the US, the justice's position on abortion alone will often define whether he or she is even nominated.

The particular power of the US Supreme Court (for reasons beyond the ambit of this post, far greater than the Australian High Court) as well as the appointment for life (as opposed to the compulsory retirement at 70 in Australia) mean that an appointment can radically affect the Court and, consequently, the country for decades to come.

All in all, it is yet another reason I am grateful to live in Australia.  Here, the AG consults widely, lawyers speculate frantically, a recommendation is made by the AG to cabinet, and the cabinet makes a recommendation to Governor General.

The process in NSW is identical.  The AG takes advice, and makes a recommendation.  Whilst there are obviously political considerations, the process is remarkably apolitical, and whilst there will always be a wide range of views, the particular politics of an appointee are seldom in issue.

And so it should be.

Judges and Magistrates of course are human beings with their own particular prejudices, views and opinions.  Some will sentence harshly in criminal matters; others will tend to find duties of care others cannot in negligence matters; still others will often accept the word of an employee over that of an employer in a work-safety case.

But the close supervision of higher courts (as well as monster egos that cannot countenance being put in their place by higher courts) mean that, as a rule, NSW courts are as predictable and reliable as could be expected from a system run by human beings.

That is why this article came as such a surprise when I saw it yesterday morning.

The article went on to say the following:

There are a few things that are just plain stupid about what Phelps has had to say, working on the assumption that he did in fact say them.

The first is the idea that we can be choosy about who we appoint as judges (and, for that matter, magistrates).

There are a very limited number of people who have the necessary ability, experience and temperament to be a judicial officer.  Moreover, just about anyone good enough to be appointed a judge takes a significant pay-cut to do it (often reducing their income by as much as 75%). We simply cannot afford, if the standard of the bench is to be maintained, to start considering "political leanings".

The next assumption is that the system would be better if we did consider such matters.  Firstly, as discussed above, the ideology of a judge means less than in the US.  Sure, there are judges who are more conservative - but they are more to do with conservative views about the role of the judiciary, rather than conservative political leanings.

This is especially so in any court below the High Court - to suggest otherwise would betray a profound ignorance about the operation of the legal system.

The most infuriating part of this article, however, was the below:

To question the suitability of a judge based upon a client they have represented is truly disgraceful.

Firstly, as a spokesman for the AG Greg Smith noted, when one is at the bar the "cab-rank rule" applies.  This means that if a person approaches you to act for them, you HAVE to take them on, as long as they can pay your fee and you have capacity.

It's the same as a queue of cabs (hence the name) - a cab doesn't get to reject a fare because they don't like the journey length, and a barrister doesn't get to reject a client because he or she finds them morally reprehensible.

There are a number of reasons for this, but the most important one is that everyone is entitled to representation. As someone practicing in criminal law myself, I understand that better than most - I represent some people who have done or are accused of doing awful things.  What kind of legal system would we have if such people were not able to obtain representation but rather had to fend for themselves?

That point is the basis for my second criticism - who is to say that the fact that these barristers represented Mamdouh Habib and David Hicks tells us anything at all about the kind of judge they would be?

I know these judges only by reputation, but I can assure you that the fact they acted for these clients tells us absolutely nothing about their politics or their prejudices.

To criticise Mr Maiden on the basis that he acted for Orkopoulos is, to put it simply, gutter politics at its worst.  As a barrister, Mr Maiden had no choice whatsoever when he was approached to act for Orkopoulos, and to suggest otherwise is unfair and misleading.

Finally, it is plain wrong to suggest that the previous clients of a lawyer tell us which side of the fence they will fall on when it comes to dealing with serious criminals.

There are a lot of defence lawyers I speak to who have become remarkably cynical about the stories their clients tell them.  By contrast, a great number of prosecutors (who only hear the stories filtered through the lawyers) display remarkable compassion towards accused persons.

Typically a magistrate or a judge is lenient to a fault upon being appointed, and then starts to become more cynical and hard-hearted as their career drags on.  That is not ideal, given that all judges would (in an ideal world) be 100% consistent and predictable, but my point is that any leniency almost always has nothing whatsoever to do with the judicial officer's background.

To suggest otherwise is grossly unfair to those judicial officers, and a concerning hat-tip to the overly politicised and frankly unpleasant judicial system in the US.

Here's hoping it is the last we hear of it.

Writing's on the Wall

I try not be too rude about politicians on this blog.

If you want to read about the ideological failings of any party, there are plenty places for you to go. If you enjoy a writer who just spews hatred at anyone in particular, there are probably dozens of blogs and more twitter accounts than you could count.

But sometimes a politician is willfully stupid. Sometimes a politician chooses to set aside any pretence of governing for the good of the people but rather makes a shamelessly populist, attention grabbing move that could wreck people's lives for no good reason whatsoever.

Take a bow David Elliott.

Photo from Hills Shire Times

Earlier today David published his grand theory of dealing with graffiti.

Now, let's be clear about something. Vandalism is a serious issue. Businesses, private individuals, and the taxpayer spend millions every year cleaning it up. I don't think tagging is art, and I'm as annoyed as the next person by graffiti on the train.

As it happens, from where I sit as I type this on a CityRail train, I can see that some wag has scrawled something incomprehensible on the wall. Moreover, some particularly industrious individuals have "etched" words onto every single window of the carriage.

The thing is, though, whilst the perpetrators' work usually simple to the point of being incomprehensible, the solutions are anything but.

Society will always have a lowest rung - a dissaffected, angry youth engages in graffiti because it provides him with self-expression, because he is bored, because he is angry and doesn't know why, or just because, to him, it gives him a sense of power in a society where he has none.

There are any number of reasons why people do this. The causes are not simple, no matter how much you want them to be, and neither are the solutions.

So, let's have a look at Mr Elliott has to say on the issue.

So, he is a victim of crime. That's unfortunate, and not something to be laughed at. What it is not is a good reason to start using the power you have to try and force an increase in penalties for the offence you were the victim of.

That's why we have things like the Law Reform Commission - sober minded people who can weigh and assess all the factors before recommending what, if any, changes need to be made.

Below is a photo of the damage, and it is awful.

Moving on:

Let's be clear.  The entire basis for his call for change is the fact that he has seen graffiti around his local area? And the fact that there is graffiti means that only "strong and aggressive" laws can combat vandalism?

Has he done any research into present penalties? Does he even know what the penalties are? Does he direct the reader to a report calling for harsher penalties? Can he perhaps indicate a foreign jurisdiction where "strong and aggressive" laws resulted in a sudden end to graffiti?

Of course he doesn't.  He's pulling this all from a certain area not mentioned on polite blogs.

Reading on:

Hang on.  He hasn't even discussed this with the AG OR the Police Minister? He is calling for these simply extraordinary penalties without having discussed it with ANYONE other than the poor sod who he got to write this piece?

And let's have a look at what his suggestion is.

Mandatory Gaol? For GRAFFITI? Is he actually crazy?

We all saw how well mandatory detention went in the Northern Territory. We all know how much it costs to keep someone in gaol. We all know that gaols are called Universities of Crime for a reason.

What else? Lifelong bans on Driving? I've written previously about how dumb it is to take licences away from graffiti vandals, so I won't repeat myself. But seriously - for life?

Oh good, naming and shaming.  First of all, if you think the prospect of having your name read out in parliament as being a graffiti vandal is going to stop them, then you really don't understand teenagers AT ALL. If they are smart enough to work Hansard (and that's not a given) I guarantee the extract will be on Facebook within the hour.

When people tag something, they use their "tag".  It's not usually their name, but it is an identifier. As I ride this train, I have no idea who NUEKS is, but I sure as heck know he was here, because his tag is scrawled all over the windows. That's the point!

Of course, had Elliott done five minutes of research he would know this. I suppose, however, that is less fun than grand-standing for attention by promoting a brainless new scheme that won't fix the problem, but will make a few Baby Boomers in their McMansions nod furiously.

Vandalism does cost everyone. And ridiculous politicking like this costs us even more.