As someone who has been mucked around under FOI procedures for years, I appreciated this article and the thoughts behind it.

I agree very strongly that: "From a wider perspective, the reality is that judges and lawyers, like the rest of us, occasionally make mistakes (www.forejustice.org is a handy entry point)." (The website here is fascinating - I could add a few more cases to the list of miscarriages.)

It's commonsense to argue that "victims of judicial bungles deserve proper recompense, as much as do victims of crime" but alas, commonsense and legal proceedings are not always close allies.

The conclusion: "...justice should unequivocally be seen NOT to have been done, if that is what has happened" is irresistible, but we shouldn't hold our breath.

Someone died (not of their own choice it seems)

But no one was responsible

Obviously such is 'justice'.

An excellent article by someone who actually researches a topic.

What a contrast to the usual pontificating from on high.

HAMLET wrote:

"Someone died (not of their own choice it seems)

"But no one was responsible"

There are two answers to your comment.

Answer 1:

It is NOT a question of "responsibility." It is a question of "blame."

Accidents happen. Sometimes people die or are seriously injured as a result of such an accident.

But no one is to blame because it was not foreseeable and everyone concerned acted with due prudence.

Under such circumstances there would be no "justice" in sending to prison a person to whom no blame attaches.

One of the curses of modern society is that someone – preferably someone with a deep pocket – must be to blame for each and every unfortunate event. We seem unable to accept that sometimes people can be the victim of an accident without anyone being to blame.

Answer 2:

Even if a person is morally blameworthy for an individual's death, they may not be CRIMINALLY liable. As a society we set the bar high for a criminal conviction. That protects you and me from unjust imprisonment.

The flip side of this is that some people who may have committed heinous deeds get to walk.

You can’t have it both ways.

Either we protect individual liberties by setting the bar for a criminal conviction high and accept that, as a consequence, some guilty people get acquitted.

OR

We set the bar lower and accept that a greater number of innocent people are going to be imprisoned.

Note that an acquittal does not mean innocence. It simply means the state was unable to prove its case.

In Scotland many years ago the verdict was not "not guilty" but "not proven" and that is a more accurate reflection of what an acquittal means.

Then perhaps this matter should have been taken up by the family of the deceased on a civil liability basis, except that costs them money.

Or would you prefer the recent NSW example where a magistrate, in great haste, declared that a driver was not guilty in a case that involved serious injury to a cyclist, after the driver had pleaded guilty and an agreed set of facts had been handed up: and then the magistrate refused the prosecution's application to adjourn to call witnesses? (This was sent by a Supreme Court Justice back for re-hearing - which from the above comments would be considered a travesty by their writers).

It seems that what has been expressed here is that, any doubt (not any reasonable doubt, but any doubt, expressed by a magistrate or judge) and any person charged with an offence walks free.

Just remember in the case raised to start this topic the accused was found guilty by a jury so the good members of the public must have decided unanimously that the dsriver had committed an offence - and juries are notoriously difficult to convince of guilt in negligent driving causing death, which is why most go before magistrates rather than juries. Most people who kill whilst driving get off with a wrist slap.

Or does the author of the article, and the other responders, really want to abolish jury trials because juries don't have to publish 'Reasons for Judgement' but judicial officers do?

Yes it is unfortunate that justice is often not seen to be done, as juries usually only hear a very santitised fraction of the evidence available. It is after a trial that the community hears the rest, but that is too late as an accused can usually not be re-tried.

And an accused cannot be tried for perjury when they have lied in the witness box to get themselves acquitted, thanks to the High Court.

From the sounds of the opinions here, no-one should ever be found guilty.

In Queensland you would be entitled to obtain a copy of the judge's summing up from the State Reporting Bureau, upon payment of a fee.

I would be interested to know whether the trial judge really does have the final say on disclosure. The judge's decision not to release the transcript can probably be challenged, either by appeal or judicial review.

Also, the Queensland practice would be to include the summing up in the appeal record book. If this is also the practice in Victoria, an application could be made to the Court of Appeal registry. Even if that application was refused by the registrar, the rules usually permit a further application to a judge.

A final suggestion would be to ask the driver for a copy.

Steven L Meyer (bless him) has it right – with his contributions, I, 2, and his summation, ‘OR’.
He knows his stuff at Common Law..

Then Hamlet –
“author of the article, and the other responders, really want to abolish jury trials because juries don't have to publish 'Reasons for Judgement' but judicial officers do?”

Then Ken Mackenzie –
“In Queensland you would be entitled to obtain a copy of the judge's summing up from the State Reporting Bureau, upon payment of a fee”.
I would agree with Ken that he has defined fact as it is written in statute.

“Also, the Queensland practice would be to include the summing up in the appeal record book.”
Spot-on, as a matter of appeal; especially a matter of civil appeal.

To continue – “an application could be made to the Court of Appeal registry. Even if that application was refused by the registrar, the rules usually permit a further application to a judge.”
Which is where we begin to saw away at what lawful process is all about.

What it IS about is what Lord Hewart said –
"It is not merely of some importance, but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
But remarkably enough (and this is precisely why I’ve taken the time to write this for Ken’s advice) none of this matters a jot in Queensland.
For, you see, a Qld Magistrate hired out court 21 in the Brisbane Mags court for an item of civil appeal on the afternoon of 2 August 2006 – used the location, his privilege, and his old boy’s network to completely bastardise due process and law.
Having spoken the fact for Ken’s advice I doubt whether this will be published - Let’s see -