Both of these concepts are a knee-jerk reaction to a legal system that has atrophied for far too long.

Bring on the inquisitorial system used in places such as Japan and Germany.
A much lower crime rate, and contrary to popular belief, less likely to imprison the innocent.

Only problem is that there's no profit for lawyers, so none of them are going to advocate it. A shame really.

With reference to the second part of the article, having served on a jury I think the idea of jurors recommending sentences is worrying to say the least. In my own experience, I was horrified when guilt was presumed by some members of the jury when the defendents were first sighted, and the area in which they lived was condemned as full of criminals and bludgers. Some of the jurors ridiculed the defendents - how they looked, their level of education, and the fact that they were unemployed. Jurors have pre-conceived ideas, they are acting from a subjective not an objective viewpoint and they have a narrow frame of reference. We would like to think that judges pass sentence objectively and they have the legitimacy and responsibility to do so whereas jurors do not.

I certainly would not be happy to have 12 drongos and true, snatched away from their daily pursuits, making decisions on a sentence for me should I ever find myself in court. If I were one of the jurors, neither would I wish to be making decisions a judge should continue to make, based on his experience and legal qualifications.

I think a good article in no way feathering nests of lawyers.

In a time of fear, which is what this Government has pushed, kindness honesty even religious tolerance go out the window and the emotionally insecure seek the surety of retribution.

An excellent example is the reaction to 9/11 and the Iraq invasion, war without legality, war based on for the public fear for the ‘rulers’ hubris and oil. The rumours become accepted belief the deliberate lies accepted for that is what the media says. So too in court if the prejudices of the jury are expressed in sentence.

The law in its not atrophied but resistance to rapid change. Many feeling themselves deprived of blood and gust satisfying and providing instantaneous pleasure, though one hopes regretted at leisure, seek change.

Is not war and mayhem contrary to the UN and international law, the consequences still with us and into the future, enough? Perhaps we should have blood and guts on the TV, raped Iraqi women or the moment a Lebanese child picks up a cluster bomb (they are illegal in the situation in which they have been used) and blows part of its body to pieces. An ultra fast film digitally enhanced could show the bits flying of and the blood spouting.

So jury recommendations could rule public humiliation,assured andworse to follow, flogging and death being banned--at present

I'll agree wholeheartedly that jury sentencing is not the way to go - and I'm pleased that the Jihad Jack ruling shows the courts are still capable of resisting pressure from the executive.

Though at the same time, any institution that cannot be 'tinkered with' is going to atrophy. It is the nature of man.
The problem with law is, how do you ensure the system remains relevant to society, without having it simply pandering to the public whim? Some sects of society have such little sympathy that it is easy for politicians to go all out against them and use them to whip up hysteria - paedophiles for instance.

I was utterly shocked to hear that a US court had actually charged and sentenced a man for writing lurid thoughts about children in his diary.
He didn't actually act out any of these dark fantasies, but he was charged for what was in his diary.
Fair enough people hate paedophiles, but this is going too far.

The issues I have with our legal system generally aren't related to the points brought up in this article which are accurate, and valid points about our legal system.

Though I'm still convinced it has evolved to suit the needs of lawyers much more than justice. After all, the goal of the adversarial system is not the pursuit of truth. Even the author of the article would be forced to agree with me on that score at least.
Bear that in mind.

Probably I have expressed myself badly.

The Lebanese child or Iraqi woman are placed as evidence of unintended consequences of jury verdict, not media titillation. The Jury being some Western countries, as reported in the media.

Parts of the West seizing on the definition of terrorism found such precluded examination of the evidence. A tit for tat situation, the sought prisoner exchange in the case of Lebanon hardly justifying the jury verdict of war of retribution .

Fear or maybe as Seymour Hearsh suggests background noise to Imperial Intent, allowed the USA and Australia media, presumably reporting our masters, to rule continued war as retribution for legal infringement, capture of two Israeli soldiers.

The jury, as reported, suggested punishment. As reported because though citation may lend credence the spin on information prevents certainty, and hardly engenders trust.

Too wide a bow? After all international law is just a subject of polite ‘me too’ conversation not actuality, but perhaps it makes my point.

Heaven help us from juries who get a say in sentencing.

Most people are frankly too stupid and too ill-informed to make any sort of a rational judgment about a matter as complex as sentencing. Want to have a laugh? Go into the shopping centre of your choosing and ask the first five people you meet the following questions:

1. What is the difference between murder and manslaughter?
2. What is the concept of the separation of powers?
3. What is hearsay evidence?
4. What are the different levels of court in your state?
5. What does "sub judice" mean? Why is it important?
6. Have you ever formed an opinion in relation to a legal case? If so, did you read the judgment in the case, or did you just go from what the media said?

If you REALLY want to be scared, ask those same five questions of a journalist.

If I were charged with a criminal offence, I surely wouldn't want a jury. who wants their fate to be sealed by 12 people who are pissed off at having to do jury duty in the first place?

Surely the ‘chocolate wheel’ system of justice is in need of review. Every other institution has had to submit to examination and review so why not the legal club.

With the pridefullness one expects from a member of the legal club Michael tells us that our justice system (where have you been Michael) is based on hundreds of years of practice and has served us well. Why is it then Michael that the justice system is sexist? A judge who recently heard multiple cases of rape asked that a muslim witness be sworn in. A FEMALE court clerk moved towards the witness with a qur’an when the judge said in a soft voice that a MALE should do the swearing in. Tell us Michael, where in that 800-year-old tradition of legal history does it say that females are second class citizens?

Hang on Sage.

First things first: you are absolutely right on two counts. First, the judge who made an issue of the court officer's gender was reprehensible and their behaviour should be treated with the disdain it deserves. No question. Second, courts should be open to scrutiny like every other agency is. Again, no question.

But neither of these propositions propels us towards the idea that double jeopardy should be allowed, or that juries should have a role in sentencing.

If reform of the courts is required, then let it be done by a sensible process, not by populist politicians bidding for the next swinging vote.

Anth

I agree with most of the above comments. Those who want tougher sentences should also realise that a jury wouldn't necessarily give a tougher sentence anyway - they may like the look of a guilty defendant and give them a lighter one. This debate is generally a very uninformed one - judges are often accused of being out of touch with the community, in an ivory tower etc, but judges will point out that they in fact hear the most horrible stories and deal with some of the most despicable and degraded people much more than your average punter on the street.

The media like to whip up controversy, and the legal system is one of their favourite targets - which is fine, as long as the criticism is fair and informed, and not populist ranting.

The NSW Law Reform Commission has published a discussion paper on jury input to sentencing. It's available on their website. I haven't had time to read it properly, but it raises some interesting problems.

1. Some are mangeable--like the fact that a jury would have to be recalled some time after their verdict, to hear cousel for both sides present evidence and arguments in relation to the sentencing. Some of them might not be able to attend.

2.It would be possible at that later hearing for one of more of the jurors to declare that he or she no longer thought that the person should have been found guilty. That would provide the basis for an appeal.

3. It would be possible, so the NSWLRC says, for a jury to be asked what evidence and argument had persuaded them to find the prisoner guilty. The trial judge might then pass that material on to a higher court as evidence that is relevant to an appeal.

The confidentiality of the jury room would be abandonded.

A good deal of mischief, that is, could be made, and probably would be.

4. Alternatively, the LRC says, the jury might only be asked whether the offence was a very serious instance of the crime in question, or a lesser one.

I worry about sentencing for scandalous crimes. We already have in NSW the leaders of both sides of the parliament trying to outdo each other in demanding higher and higher sentences for those convicted of such crimes. Would jurors distance themselves from such cowardly hullabaloo? They might. But the US experience is not promising.

>>".........recent calls to give jurors powers to make sentencing recommendations to trial judges...."<<

The word here is RECOMMENDATION - not passing sentence!!

I have no problems in the jury having some input into sentencing ... as in "RECOMMENDING" some form of sentence.

After all is the sentence supposed to reflect some of the community expectations? Why should some puffed up pontificating "judge" (sic) have total sway on forming public opinion and imposing totally irrelevant sentences?

How many "judges" have been gently woken from their drunken slumber while supposedly listening to important points of law - these are more perilous to true justice than having some recommendations given to a sentence .... after all the word IS recommendation - which does not have to be taken into consideration by anyone - but it does reflect something of the public angst.

Now why would anyone have any fear of facing their peers Leigh? Obviously you are so puffed up with your own self importance, that you seem to be way and beyond the common "hoi polloi" - Have you no faith in our justice system? Or do you think the key might be lost after it was closed on you by "12 drongoes true"? Might do you well to have your self inflated balloon of pitiable ignorance and arrogance pin pricked on occasion...

Anth - I agree with your stance against jury sentencing. I don't believe it is the way to go.

That being said, I resent the blame you apportionto journalists. Believe it or not, they'renot the ignorantswine towhich you allude.

Alwaysbear in mind thatjournalism isone ofthe mostrushed professions outthere. There'salways adeadline. Sometimesit's everyhour, sometimes it's daily. Journalistsare often under-resourced, andexpected to understandevery bit of complexnuance withinminutes ofbeing onthe scene. And heavenhelp themif theymake amistake.

And asfor theirunderstanding ofthose keyquestions:

1. The difference between murder andmanslaughter refers largely to intent: manslaughter is an actcarried out inhot bloodor byaccident(i.e. the term: vehicularmanslaughter). Murderhas somedegree of premeditation.

2. The separationof powers refersto theidea that thethree central areas ofpower: thejudiciary, the legislative andthe executivebe free fromone another. Ineffect, the legislature make the laws, the executive put theminto place, and the judiciary uphold / interpret them. Theexecutive and thelegislature often have a very fuzzy separation, and one couldargue that it is a very weak separation indeed, whereas thejudiciary tendsto little moreautonomous, being a communityof judgesrather than politicians. (alsosee fourthestate: media)

3. It is evidencethat is generallynot permissible (though in certain cases suchas defamationjust abouteverything goes) whichhas beengleaned simply from 'hearsay' or a sourcethat doesn'treally have any justifiable reason tobecommenting onthe matter.

4. Different levelsof the court system: at the bottom rung we have the magistratescourts, then district, thena host of specialised courts - family court, planningandenvironment court etc. Atthe other end ofthe spectrumwe havethe highcourt and the supreme court. When youlaunch an appeal you tend to climb the ladder to the next highest court.

5. The contamination ofjuries. 'sub judice contempt' is where someone has published details, or has in some way influence a jury currently presiding over a case. Thisis whyyou can'treveal certaindetails about courtcases while the casesis in action, thoughyou can generally reporton what has beensaid incourt providedit isan open court - the jurywould hearthis anyway.

6. Yes,but it tends to be very sceptical of what the media is pushing, andmore often thannot I'lltake anopposing view.

Believe it or not, most journalism courses doactually teachthis stuff, buthey,it's easier to blamethe messenger right?

Believe it or not, most journalism courses do actually teach this stuff, but hey,it's easier to blame the messenger right? (Corrected) [or were you try to beat the 350 word limit?]

Do they really teach journalist this? Do they actually impart (or try to impart) some sense of morality? I hardly concur with this load of old tripe - one only has to look to the sensationalistic print media of today to find the intrusions into private lives. or watch how 60 minutes and current affairs programmes " set up" innocent people and use entrapment and outright lies to get their story ........ You only have to listen to that pernicious parrot on one of the Sydney stations to see how low his morals are - I am sure he would be able to walk under the belly of a snake - and not take off his hat!

Journalists ..... right! As far as I'm concerned the are on a par with politicians, lawyers .... and used car salesmen - so please do not defend the indefensible!

Yes, they do teach these matters, (and yes, I was trying to beat the word limit).

Like most professions, journalism is a varied one. I too am disgusted when I see programming like Today Tonight, and it isn't fair to judge all journalists by the stroke of that brush.

Believe it or not, some actually got into the profession with good intentions.

The difficulty lies in the way the media establishment is now structured. Investigative reporting has taken a severe dive in recent years, simply put, it's too expensive. (For more on this, read Mark Day's piece in todays Australian).

More journalists are being forced to spend more time writing stories from the phone than being out in the field. It's cheaper.

Universities revel in teaching journalism graduates ethics - the students learn all about media ownership and concentration, and have a pretty good understanding of the real problems with the Australian media landscape. That being said, most of them go straight to work for one of the big players. Why? Because that's where the jobs are. They don't like it, but they have to do it to further their careers.

(That being said, some opt for the ABC or independent newspapers which are still surviving in regional areas).

Kekenidika - I'd urge you to talk to some journalists, ask their opinions on these matters before judging them. There are bad ones out there, sure. But there are good ones too, honestly trying to lift the lid on serious issues. But it's getting harder.

TRTL

Actually, mate, there are some bloody good journos out there, and thanks goodness for that. When I did journalism at the Uni of Qld back in the early 90s there was a subject on journalism law, too.

But there are also an awful lot of journos, and an awful lot of subbies, who don't really understand the legal system they're writing about.

If you don't believe me, take a good hard look at the reporting of the Big Brother "turkey slapping" incident a few months ago. Any questions of sub judice, any questions of preserving the right of the potentially accused to a fair process, went out the window. Even basic legal terminology was stuffed up. The reports were about "sexual assault" (i.e. rape) whereas on the reported facts a charge of indecent assault might have been more likely.

Anth - good point. There are the good and the bad, and that goes for all professions.

It just seems that journalists seem to cop more criticism than most, and are constantly derided. I suppose it's to be expected in a profession with such a profile.

Here's an old adage for you:

Doctors bury their mistakes.
Lawyers jail theirs.
Journalists publish them for the whole world to see.

Now the legal profession - they have managed to engineer a system which in many ways insulates them from criticism.
Unlike almost every other profession, solicitors can't be sued for gross negligence. (Barristers can).
It isn't really fair, when the stakes are so high, if you get an incompetent lawyer. No matter how catastrophically he may screw uo your case, it isn't his fault.

But the legal profession would have us believe that incompetent lawyers don't exist. Either that, or they're just protecting their way of life.

There are numerous problems with our legal system, though the solution isn't jury verdicts.

As for altering double jeopardy, the author alludes to the possibility that if we allow two trials, what's to stop more and more.

Well, here's an idea for you - judge an idea on it's merit, rather than what it 'might' lead to.

Cont'd

Cont'd

I think the idea of being able to take a trial twice (not constantly prosecuting a suspect) isn't a bad idea at all, especially if new evidence comes to light. And surely the legal profession has proven it has the wherewithal to resist change. Reform is always a long time coming (thank heaven the multiple defamation laws amongst the states are at last seeing reform).

As it stands, prosecutors charging cases where there are many offences may just choose a few, so they can go back on different charges if the first effort fails.

So we're already in a situation where some cases are in effect, repeated.
Even though the charges may technically be different, the goal is the same.

The legal profession needs periodic review by people who don't have a stake in the industry - not lawyers or those who look after lawyers (i.e. judges who are all ex lawyers).

The problem is, pretty much everybody who has knowledge of the legal system has a stake in it. But sooner or later we need to be willing to review our practices against those used in systems other than the adversarial and westminster models.

"But sooner or later we need to be willing to review our practices against those used in systems other than the adversarial and westminster models."

Certainly. There are well developed alternative models that could be implemented as I think you typed earlier. The superiority of the inquisitorial approach was demonstrated during the Inquisitions when people volunteered to participate in the Inquisition rather than common law because they knew that they would get a fairer hearing.

But if we continue our current system we should be very cautious about changing tried and tested principles of law. Even though we live in a democracy that favours majority decisions there seems to be a kind of immaturity in our culture that has us approaching things like impulsive children instead of appreciating the benefits of established wisdom.

Take for example the churches. They decided that they would have more people on the seats if they changed things to make it more in line with the general society. Instead it emptied the pews. Centuries of clever thinkers do a better job than a few impulsive and immature innovators.

Another example is a group of agricultural scientists who went to Papua New Guinea and noticed that they dug their furrows on the hills in a direction perpendicular to that which was considered correct by their developing science. The visitors demanded innovation. The locals deferred to the innovation which supposedly reduced erosion. The first time it rained it rained extremely heavily as it did in the region. The water pooled up in the new furrows and huge chunks of soil fell away totally destroying the farms (and the reputation of the visitors). The ancestors of the locals had worked it out with centuries of experience but the innovators thought that something that worked elsewhere would work there instead of stopping to consider the folly of challenging the product of the pooling of centuries of wisdom without extreme caution.

CONTINUED

I could go on but there is a need to respect centuries of thinking and not approach serious issues in an immature manner even if my recommended approach seems to be becoming counter cultural. What more needs to be stuffed up before people realize that the beginning of modern technology wasn't the beginning of human reason?

I also note that criminal lawyers seem to get very concerned about foolish impulsiveness relating to the legal system and civil rights only when it can make things harder for them. The foundations of the criminal legal system are continually eroded in Traffic Law and knocking off a principle of venerable antiquity becomes a habit for legislators who then simply continue their habit. Just look at the erosion of the Woolmington rule by the acceptance of infringement notices and strict liability. Such an unsound and unfair approach to law can only be expected to lead to further problems. If criminal lawyers are fair dinkum about their concerns they need to wake up and campaign against the thin edge of the wedge. Instead they whinge citing the interest of the community when their working conditions look like becoming harder but it is probably too late to stem the tide and their objections don't look credible.