Sorry, I need to make a correction. The number of people on death row in the US who have been found to be innocent is 20. I thought my last cited figure seemed far too high. Still a terrible statistic, though.

. Dear AJ Philips, . You wrote : « Like science, the law does not deal in absolute certainties (‘beyond reasonable doubt’ is as far as it goes) … Either an accused’s guilt is beyond reasonable doubt, or it is not. In sentencing, a judge does not consider the strength of the evidence » . Yes, I agree, except for your point that “a judge does not consider the strength of the evidence”. My understanding is that a judge is independent and free to consider whatever he chooses, without any obligation to reveal his thoughts to anyone. The jury is responsible for finding the facts of the case through the adversarial process of contradictory debate between prosecution and defence, while the judge determines the law. As the maxim puts it : the judges answer to the law, the jury to the facts (“de jure judices, de facto juratores, respondent”). In Australia, the jury only judges guilt or a verdict of not guilty, but the actual penalty is set by the judge. . As Ashbo indicated that he was opposed to the death penalty because “our criminal justice system is capable of miscarriages of justice” I asked him if he was not opposed to it in cases where there was no such risk, and I cited a number of well-known cases of famous people who were assassinated. Your comment “ Like science, the law does not deal in absolute certainties (‘beyond reasonable doubt’ is as far as it goes) …” is an allusion to this. While, as you say, “the law does not deal in absolute certainties”, the legal term “beyond reasonable doubt” refers to the opinion of the jury as to the guilt or innocence of the accused on the basis of the evidence produced at the trial. That evidence can take many different forms, but it rarely consists in allowing the jury to be an eyewitness to the assassination of Lee Harvey Oswald by Jack Ruby, as it was by seeing it live on television. US justice is not for poor, black or uneducated ! . (Continued …) .

(Continued …)

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The evidence in the cases I cited in my post to Ashbo qualifies as what is known by the legal term “conclusive evidence”, i.e., “evidence that may not be disputed and must be accepted by a court as a definitive proof of a fact” (Legal IQ), or “that which is incontrovertible, because it is so strong and convincing as to overbear all proof to the contrary and establish the proposition in question beyond any reasonable doubt” (Black's Law Dictionary).

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Dear Ashbo,

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Thank you for your response, but you did not reply to my question : “Does this mean that in cases where there is no risk of miscarriage of justice, you are not opposed to the application of the death penalty ?” – followed by half a dozen famous examples for you to refer to and consider.

Also, on the question of “evidence, one way or the other, as to the death penalty, and its observance, acting as a deterrent”, here is a link to the National Research Council report which I mentioned :

http://deathpenaltyinfo.org/deterrence-national-research-council-concludes-deterrence-studies-should-not-influence-death-penalty

I look forward to your further comments on these two points.

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Dear Banjo Paterson,

No, having the judge state the reasons for their decision is an integral component of the fair trial. A person found guilty deserves to know why they are being sentenced in the way that they are. Furthermore, the ‘sentencing remarks’ (as they are referred to) allow the prosecution and defence to understand where the strengths in their cases lain (in the judge’s view), and provide each party with the information they require to mount an appeal, if an appeal is warranted.

Section 10(1)(a) of the Penalties and Sentences Act 1992 (Qld) requires that judges state the reasons for the sentences they hand down (other states have the same requirement codified in their legislation):

http://www.legislation.qld.gov.au/view/pdf/2017-10-27/act-1992-048

Judges are also not free to based their decision on whatever they choose. There are sentencing guidelines which they must follow. Here in Queensland, these are laid out in s 9(2) in the above Act.

Just think of what the implications could be if a sentence were to be based (at least consciously and openly) on the weight of the evidence:

“Since there cannot be any doubt as regards to your guilt, I hereby sentence you to death…”.

Such a consideration implies that there is SOME doubt as to the guilt of those not sentenced to death for similar crimes (which DOES happen in the US and, co-incidentally, the disparity in sentencing strongly correlates with wealth, status, and the ability to afford a good defence). This would open the door to frivolous appeals and would condone the finding of guilt on various levels of doubt where a binary a ‘beyond reasonable doubt or not’ is more appropriate and less fraught with complexities.

<<The jury is responsible for finding the facts of the case through the adversarial process of contradictory debate between prosecution and defence, while the judge determines the law.>>

This is correct, and does not contradict what I have been saying.

Continued…

…Continued

<<The evidence in the cases I cited in my post to Ashbo qualifies as what is known by the legal term “conclusive evidence”>>

Black’s Law Dictionary is American. I double-checked my Oxford Australian Law Dictionary (2nd edition) and there is no equivalent in criminal law here (the defence lawyers in the US must have a field day with cases not comprising "conclusive evidence"). In Australia, “conclusive evidence” is a term only used in administrative law to prevent vexatious litigants. The central principle in Australian evidence law is ‘relevance’, and evidence is usually divided into two categories: direct and circumstantial. ‘Direct evidence’ would be the closest equivalent we have to ‘conclusive evidence’.

But I digress. Going back to the point I made earlier, if a person found guilty could only be sentenced to death in a case where “conclusive evidence” exists, then that implies that none of the evidence was conclusive in other similar cases where the death penalty could not be applied. The totality of the evidence may still be weighted against the accused in such cases, but if none of it is ‘conclusive’, then that opens the door to all sorts of questions, complexities, and frivolous appeals. It may also close the door on appeals that should be heard.

The notion of conclusivity in evidence is fraught with problems where criminal law is concerned, and I think the Australian Criminal Justice System is better for avoiding it.

One point of your points that I didn't address before, Banjo Patterson, was the independence of judges.

While it's important that judges remain independent, there is still the sentencing principle of consistency which must be applied. Statutory sentencing guidelines help to ensure that similar sentences are handed down for similar crimes.

Such guidelines may sound like they run counter to the doctrine of the separation of powers, and to some extent, they do. But they are necessary to ensure that individuals found guilty of a crime are not subject to the whim of a judge’s mood that day or how much they may or may not like the accused - which you could guarantee would happen if judges had no guidelines and did not have to provide reasons for their decisions.

The doctrine of the separation of powers is a good principle to abide by in order to prevent dictatorships. But it's impossible to apply as a strict, hard and fast rule without creating injustices and absurdities in certain areas. There will occasionally be some unavoidable overlap. Former Queensland premier, Campbell Newman, even went as far as to say that the doctrine of the separation of powers didn't really exist and was "more of an American thing". Needless to say, he was widely criticised for such a foolish gaffe