Boaz, re the two Cronulla related trials and your earlier thread, you said, “The sentence by the Lebanese magistrate should be seen in the bigger context of the Cronulla events”.

This is exactly what I would expect a magistrate to be careful to avoid. Her job was to pass sentence on the case before her, not on the broader social conflict. There were many people, Lebbo and non-Lebbo, who behaved badly during that episode, but it is not up to the magistrate to make the kid a scapegoat for others who managed to avoid prosecution. She had to deal with the evidence of the young man’s crime and only his crime, and pass sentence accordingly, bearing in mind his youth and his previously clean record. Most magistrates (in Victoria at least) would want a very good reason for sending an 18 year old cleanskin into the adult prison environment, for the simple reason that you could pretty much guarantee that such a kid would come out worse than he went in. It would depend of course on the seriousness of Osman’s proven involvement in the assault, and I don’t have access to the court transcript to assess that, although the prosecutor would have, and could have appealed if the sentence was inadequate to the evidence. He/she didn’t.

As for the guy jailed for carrying a "branch", the story as you’ve set out has huge gaps. Presumably it wasn’t an olive branch. Osman’s case, you’ll note, took about ten months to be heard, which is pretty standard. There was obviously something else going on with this guy: the process was completely different and so I can’t see how you can compare the two cases. I reckon you’re being disingenuous to attribute the differences to race.

If you can find some more details about this guy it would be more helpful to the discussion, but it sounds to me like the slanted half truths I hear from crims nearly every day. You need to look a bit deeper for the real story.

Kalin, you wrote;

“The best we can do is to appoint judges who are highly trained in the principles of fairness, and who will strive to judge each case on its merits.”

Yes, we should demand the best level of training of this sort.

“Unfortunately, emotions and prejudices powerfully influence the way people, even judges, think.”

Absolutely. And this can and does override even the best training.

So we need to do more – we need to make judges accountable. This means finding that very difficult point of balance between respecting their authority and questioning their authority.

The last thing we want is for judges not to be accountable for their decisions, and to probably only be questioned in a roundabout manner after a whole series of judgements have indicated some bias or perceived bias. Everyone agrees that they are flawed human beings like the rest of us. So to give them autocratic powers without immediate accountability just doesn’t make sense. But that’s exactly what we have done.

Ludwig, judges and magistrates are accountable. Either the prosecution or the defence can appeal if they perceive there are errors of law or sentencing, and there is a hierarchy of courts to examine the findings of lower courts.

The media, governments, academic criminologists and other players regularly provide comment and feedback on sentencing, although in my view much of this is poorly informed and motivated by considerations other than getting the best possible results out of the criminal justice system. For example, politicans seeking election don't always let the facts get in the way of stirring up public anxiety about law and order if they reckon it could help garner a few extra votes, and it's common to see bidding wars to see who can promise to legislate for the "toughest" sentencing irrespective of whether such getting "tough" results in a safer or more just community. Most punters aren't very sophisticated in their understanding of criminal justice issues. Similarly, it's very easy for journalists at the shock jock end of the spectrum to tell crime stories very selectively in order to galvanise their particular tribal followings.

I'm open to David's suggestion of the potential for racially based bias in the judiciary, although I'm pretty skeptical: of his four "examples" two are entirely speculative and the other two the evidence provided isn't enough to support his assertion. My job has me in daily contact with sentenced crims, and often access to more detail as to the circumstances of offences and offenders, as well as the workings of the court systems than are available in the media. I'm no bleeding heart, but my experience of the broader picture than might be available through tabloid reporting leads me to reckon the courts actually get it pretty right most of the time. And it's pretty easy to spin a story to your advantage when you don't reveal all the facts.

Snout, judges are only accountable up to a point. And in my experience, it s a pretty low point.

Sure people can appeal, if they feel strongly enough about it to go through another round of highly stressful and frustrating….and expensive legal wrangling….and usually with a low chance of success.

With minor infringements or alleged infringements, this doesn’t happen anywhere near as often as it should, which basically means that judges are not anywhere near as accountable as they should be.

You mention a whole set of apparent checks and balances. Well, I’m sure they achieve a reasonably good level of accountability a lot of the time. But we also hear much criticism of decisions and sentences without any apparent modification in decision-making from those being criticised. This whole business of magistrates being soft on ‘minor’ criminal behaviour is a case in point.

I would love to know how a magistrate found me guilty of failing to show due care to other road users five years ago when I was completely innocent of any wrongdoing whatsoever, which was borne out in court comprehensively. It was blatantly obvious to me that the magistrate was holding solidarity with the police and that the onus was on me to prove my innocence, and not on the prosecution to prove my guilt or indicate it beyond a reasonable doubt, which of course is contrary to one of the most basic tenets of our legal system and democracy.

I ‘chose’ to take the matter to court in the first place, which was many times more expensive than the maximum possible fine. I had faith in the system and thought that I couldn't possibly lose. Obviously I wouldn't have bothered if I thought the chances of not winning were at all significant. Well, what an eye-opener!

I was well on the way to taking it to an appeal, but the costs and time required were just so extraordinarily disparate with the magnitude of the issue that I felt as though I was forced to drop the matter.

The examples that BD and others have provided here indicate more a problem with leniency than with bias.

Where a judgement has been deemed lenient, a post-facto glance has found the judge to be a member of a particular minority and (Ahah!), the cause for the leniency has been attributed to the membership of that minority, rather than to the judge’s reading of the case.

Judges are not required to switch off their beliefs, or their membership of minority groups, when they sit on the bench. Neither would we want them to. We need judges to bring their entire humanity to their judgements, while interpreting the law and balancing the needs of society, victims and (yes) perpetrators.

This requires them to be aware of their biases, and to put them aside. Where this is not possible, we require them to step down from particular cases, and generally they do.

Punishment is only part of what judges do. I wish BD would reflect on his own biases before assailing us with this stuff

Ludwig, I reckon that's a fair point: there's an inherent bias in the system where the costs of seeking justice over relatively minor issues make the system weighted against small players. Presumably you might have done better if you'd had a high powered legal adviser on your side, but you'd almost certainly have been worse off financially.

I've never faced court myself, but a few years ago a friend challenged a transport fine, and I helped him develop his case. Having no legal background or even any direct experience of court procedure between us it took a lot of work and guesswork to find what turned out to be glaring holes in the prosecution's case and to be able to present them in an acceptable way. My guess is that a trained experienced barrister would have demolished their case in seconds. We treated the experience as a learning exercise (my friend won) but it wouldn't have otherwise been worth our while. Non lawyers are certainly behind the eight ball in minor cases.

I don't think this is the sort of bias that David's talking about, though.