The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
The Forum - On Line Opinion's article discussion area



Syndicate
RSS/XML


RSS 2.0

Main Articles General

Sign In      Register

The Forum > Article Comments > Open justice ends when the criminal justice system bungles > Comments

Open justice ends when the criminal justice system bungles : Comments

By Bob Seaman, published 26/9/2008

'It is ... of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.'

  1. Pages:
  2. 1
  3. 2
  4. All
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.
Posted by Spikey, Friday, 26 September 2008 4:49:01 PM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
Someone died (not of their own choice it seems)

But no one was responsible

Obviously such is 'justice'.
Posted by Hamlet, Friday, 26 September 2008 8:39:54 PM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
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.
Posted by stevenlmeyer, Saturday, 27 September 2008 4:50:19 PM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
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.
Posted by Hamlet, Saturday, 27 September 2008 7:06:40 PM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
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.
Posted by Ken Mackenzie, Saturday, 27 September 2008 7:36:12 PM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
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 -
Posted by A NON FARMER, Sunday, 28 September 2008 9:06:09 PM
Find out more about this user Visit this user's webpage Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
An appeal from a decision of a Magistrate in Queensland can usually be made to the District Court. From there a further appeal lies to the Court of Appeal, and then to the High Court of Australia.

Proceedings in the Magistrates Court are electronically recorded, and transcripts are available to the parties upon payment of a fee.
Posted by Ken Mackenzie, Monday, 29 September 2008 9:07:15 AM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
Of interest in the original article was this statement by a Victorian Supreme Court Justice:

"(The driver's) motor car was neither exceeding the limit, nor being driven at a speed that was inappropriate in the circumstances. (The driver) was not affected by drink, drugs or tiredness. (The driver) was not driving aggressively or erratically. (The driver) made an error of judgement in a situation of sudden crisis."

I compare that with a paragraph from a NSW Supreme Court Justice:
http://www.lawlink.nsw.gov.au/scjudgments/2008nswsc.nsf/6ccf7431c546464bca2570e6001a45d2/23a575bbd43ca1e5ca2574c4007f4281?OpenDocument

27 Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances: R v Buttsworth at 672.

It seems that the defendant in the Victorian matter would still have had a case to answer in NSW, abeit a lesser case than the one they were originally facing in Victoria.

So another question has to be asked, why do people face different consequences depending on which state they maim or kill someone in?

The other thing is what was the 'sudden crisis'and was it more important than someone else's life? Was it ultimately something like a choice between denting his car and killing someone?
Posted by Hamlet, Monday, 29 September 2008 6:16:55 PM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
Lets take another look at the accident (I prefer the word incident, as what happened was obviously preventable) that resulted in a man's death.

The Court of Appeal judgement can be found at

http://www.austlii.edu.au/au/cases/vic/VSCA/2005/304.html

Is R v Mitchell [2005] VSCA 304 (15 December 2005) Please note at

5 The applicant was behind the Triton utility and decided to pass the Mercedes too. She moved towards the centre broken line and part of her vehicle was across it, when she became aware of Mr Major’s vehicle and applied her brakes. She lost control and skidded on to the wrong side of the road, where her vehicle collided with the Ford station wagon. As a result of that collision, Mr Major sustained injuries from which he died. Mr Reid suffered serious head injuries, including brain damage.

and

8 The accident occurred in broad daylight, on a straight stretch of road, with clear visibility. The evidence of an expert in accident reconstruction showed that the distance between the two vehicles, the applicant’s and Mr Major’s, was insufficient for her safely to move on to the wrong side of the road. She was not maintaining a proper lookout.

unquote

In other words 20 year old Ms Mitchell crossed to the wrong side of the road, without due care for anyone coming the other way, killing another driver and severely injuring another man.

Justice is so obviously blind, blind to the fact that if this driver had waited for the road in front to be clear, the incident would not have happened.

Did she intend on a death occurring? No. But did she keep sufficient lookout? Even the good Judges said no. Has she been held responsible for not keeping lookout? Well, no.

Justice must be seen to be done - Justice must keep a better lookout than this driver. Has justice been seen to be done in this case? What do you reckon? Just remember that this judgement tells all those careless drivers out there - one of whom may kill you - that they will escape without penalty under Victorian law.
Posted by Hamlet, Monday, 29 September 2008 10:05:24 PM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
A few points in response to comments so far:

Hamlet .. It's clear we disagree diametrically about the appropriate
outcome of the criminal case in question. That's fine .. it's what
On Line Opinion is here for. Our disagreement only highlights the need
for the Victorian criminal justice system to better observe the principles of open justice, so that people like you and me can comment and act from a more informed perspective.

Ken Mackenzie .. Like you, I was surprised that I had no avenue of appeal against the refusal by the courts to let me see the documents I sought. However, I confirmed this was true, both with a solicitor and with my local Victorian member of parliament. If what you say about the Queensland situation is correct, I can only commend Queensland legislators for their more progressive approach.

Hamlet again .. I agree with your point (implied, I think) that a lesser charge against the driver may well have been successful. In my view the OPP's charge of culpable driving was a gross overreaction, which got what it deserved from the Supreme Court. The OPP went for a home run and struck out, but not before causing vast "collateral damage".

Bob Seaman
Posted by BOB S, Sunday, 5 October 2008 10:59:00 AM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
Well, let's see: If this prosecution went through normal channels it would have been considered by the police in consultation and OPP - and whether it should go before Magistrate at first instance, or go before a Magistrate for committal.

As it made it before the Victorian County Court it would seem that is because a Magistrate, after reviewing the evidence, would have come to the conclusion that 'a jury, properly instructed, could reach a guilty verdict'. Either that, or if a Magistrate rejected the matter at committal, then by ex-officio indictment.

So it seems that a Magistrate, reviewing the law and the evidence in regard to this matter, got it wrong.

It then went before a jury, and an important point in the appeal judgement was that the accused 'stood mute', in other words, she did not present a case, but put the Crown to proof. This can be a tactic, of course, as presenting a defence means that the defence is liable for cross examination by the crown, and there is no suggestion that crown witnesses were not cross examined by counsel for the accused.

If the matter followed normal course the Judge would have given a direction that the accused's silence must not be held against her.

Regardless of this, a jury, as I have said previously juries are notorious for bringing back 'not guilty' verdicts in these matters, using the principle of 'there but for the grace of God go I', found this young woman guilty.

Against this, the Justices of the Appeals Court decided that unless a driver was almost intending to kill someone that they should walk free.

Perhaps the case of Anu Singh (google it please, or listen herehttp://www.abc.net.au/rn/talks/lnl/s1183975.htm) is instructive here. If the driver had been male they would have been gaoled, but because they young and female no Justice wants to gaol them, and will find any way out of this.

Also consider the women would have been found guilty of sexual abuse of minors and who get lesser sentences than their male equivalents.

The message is clear - women walk.
Posted by Hamlet, Sunday, 5 October 2008 11:13:44 PM
Find out more about this user Recommend this comment for deletion Return to top of page Return to Forum Main Page Copy comment URL to clipboard
  1. Pages:
  2. 1
  3. 2
  4. All

About Us :: Search :: Discuss :: Feedback :: Legals :: Privacy