Strict Legalism

"The law is always certain although no one may know what it is."

Three no-spin changes that would help tighten and streamline bail laws

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[Important note:] This article was substantively written on the 2nd May 2017. On the 8th May the bail review changes were announced by the Victorian Government. As predicted, they are not good. Once a substantive policy has been released to the public and the Coghlan Review is released I will look over it. I thought that while this is ‘old news’ it is not necessarily ‘fake news’ – the points are still valid. Watch this space. 

It is a tragic irony that criminal lawyers are unable to effectively communicate the seismic changes required to fix the criminal justice system. This is no criticism of the advocates but merely an observation based on reality. We are in the midst of the nadir of a savage law and order cycle and criminal lawyers (and our organisations and institutes) are faced with a very difficult task. Namely, how do you convince a population and its politicians, in the grips of a punitive law and order cycle, that the path we are going down is wholly wrong, wholly unsafe and most unwise?

Criminal lawyers are duty bound to sell this unsellable message. Recognising this reality reveals that there is a limit to how much we can achieve in such a punitive law and order cycle. So maybe we should aim for things that are achievable in the current political climate.

There are three no-spin (potentially) bipartisan changes that would actually modernise the bail system without tipping the scales. These are: (1) remove the ‘show cause’ provisions, (2) one accused one easily accessible file and (3) treatment beginning from time of arrest. These three suggestions would help to streamline the criminal justice system, modernise the question of bail, save money and remand the people who need to be remanded. Stepping away from the reactionary politics its clear we don’t just need a review of the bail system but the political will to make smart changes.

Currently, I fear what will happen is just a ‘tinkering around the edges’ of the Bail Act couched in the lazy politics and emotive language of being ‘tough’ or ‘weak’ on crime. Continual tinkering with a piece of legislation from 1977 with law and order policy motived by political considerations  does not protect the community, it is unwise, costly and unjust. Smart justice is the best justice.

The poisoned optics of a bail review

At the moment there is a criminal justice review by commissioned by the Andrews Government in the wake of the Bourke Street tragedy. Justice Coghlan spearheads that review. As I have previously stated the review of the Bail Act 1977 (Vic) is long overdue. Many commentators and expert reviews have long highlighted the changes required to have an efficient bail law system. The political will to champion those changes has been lacking, with taking the ‘tough guy’ approach being the easy way out. Without prejudging the recommendations of His Honour, I feel that the review will be rehashing well-worn territory as we have already looked at bail review in 2007.

The core trouble with the Coghlan review is that it will be invariably poisoned by reactionary politics. To be clear, I expect that in reality no enlightened changes will occur despite Justice Coghlan delivering what will invariably be a thorough and precise series of just recommendations. And in the wake of such an emotive tragedy how can there be such a change? The political reality is just too stark at the moment. How can you sell the idea to the Victorian population that we should abolish ‘show cause’ provisions? How can you say to the Victorian people that bail justices are simply a filter who overwhelmingly, almost always deny bail when the police ask for it? How can you convey the idea that rehabilitation and helping alleged offenders will reduce the crime rate and protect society? These are the unsellable messages. My argument is that you cannot achieve the hard nosed and enlightened changes required to remedy a broken system when reviews such as this are announced in a reactionary and emotive setting.

It is my feeling that wholesale change is required but there is simply not the political will to drive that sweeping change. It may be pessimistic (and a broken status quo should never be accepted) but criminal lawyers should focus on achievable goals. Thus I focus on the reality and focus on changes that would be highly effective but not wholly controversial. Aiming small and missing small would not deprive politicians of their ‘tough on crime’ rhetoric that they feel they need to get elected. It would allow prosecutors to fully prosecute their case and defence lawyers to answer it with counter facts. Most importantly it would allow judicial decision makers to make an informed decision. Most importantly, it would save lives. But before I discuss the suggestions, let’s focus on some home truths.

The reality

This is the reality that no politician will talk about, no judicial officer will admit and no paper will print on the record. That is that crime is wholly unpredictable. You cannot, no matter your expertise, predict the outcome of the future.  Mr. Gargousulas was granted bail by a bail justice for driving offences. There were no (or little) indicia of risk that would leave a frontline decision maker to conclude he would commit such a heinous series of crimes. Making a decision regarding sentencing or bail is like playing a deadly game of pass the parcel. You try your best and make the best decisions you can on the day but if you play the game long enough inevitably something will explode.

And yet no Magistrate or Judge wants to be the person who releases the next terror suspect or the next significant criminal out on bail. The reality is that crime is unpredictable and hindsight is a wonderful thing that the people on the ground cannot possess. All we can do as criminal lawyers is have access to as much information as we possibly can to assist the court in makingan informed, impartial decision based on the law.

I feel a lot of empathy for the bail justices and especially the bail justice who granted bail for Mr. Gargousulas. They have been unfairly pilloried for a job that is almost always unthankful and based entirely on a sense of civic duty. Bail justices feel that they have been unfairly blamed for making that fateful bail decision. As a practitioner, I am surprised whenever a bail justice actually grants bail. What is more it is a hard job to do in a system that is so thoroughly antiquated, overwhelmed and broken. So why can’t we focus on getting as much information to the independent decision maker (the judiciary) as efficiently as possible?

Decision makers are operating in an antiquated system based on software that most people wouldn’t even recognise anymore. The courts run on something called ‘Court Link’ and it is a DOS based program. DOS! It is green, yellow and red with a black background. To imprison someone you press the ‘IMP’ button. It is truly the most unruly, user-unfriendly system one could hope for. It also restricts access to information. Court Link cannot open a PDF file or an email. It cannot access CCTV footage or records of interview. When was the last time you punched in a DOS command? This is our criminal justice system. It would be almost comical if the repercussions weren’t so serious. Such an old system means that magistrates, lawyers, police prosecutors etc. have no ability to easily retrieve current or past allegations of criminality, psychiatric reports, bail reports, sentencing decisions etc. How can a decision maker make an informed decision as to risk when relying on a system that cannot provide all salient facts? It’s actually dangerous and outrageously so.

Practical changes that actually work

Here are some suggestions as to how to really tighten up the bail system. It wouldn’t cost a huge amount of money but I would guarantee that it would save lives and reduce people being unjustly remanded. It would also save a decent amount of taxpayer dollars. It would probably make a defence lawyer’s jobs harder, but at least everyone will be operating from easily accessible information.

  • Remove the ‘show cause’ provisions: Simplify the Bail Act 1977 by removing all ‘show cause’ provisions and simply have a single question being asked: “is the accused person an unacceptable risk of committing further offences or failing to appear?” This would free up court time to focus on the only question that actually matters. As I have previously stated, the Bail Act is antiquated in and of itself. Highly confusing, clunky and inconsistent, it costs more in court time that any other piece of legislation. This has been a core recommendation for years and something I have previously written about.
  • One accused, one file: We should have a central and modern database with an access to an accused persons history and file. Currently, judicial officers simply have to guess what persons a priors actually involve based on a system developed in the early 80s called LEAP. It is often impossible to access all briefs for allegations of the offences that an accused is facing. A surprising amount of decisions made in the courts are ones that are not fully informed of the facts and risks. This leads to distrustful judicial officers, who almost always feel dissatisfied with the lack of information available to them. Defence lawyers nearly always have to conduct an enquiry as to the true nature of the risks and facts when presented with a bail application scenario. Overworked prosecutors almost never have the information they need to prosecute their case. We should level the playing field for all with free ranging access to all pertinent information. Why couldn’t the criminal justice system have access to a collated database that held police summaries, correction reports, psychiatric history, intervention orders and the like? Access could be granted once you begin acting for a particular accused. As a tech-savvy lawyer I recoil in horror at the antiquated system the courts and police have to deal with. I should be able to click on a person’s prior from the last two years and access the amended police summary, the corrections report, the psychiatric reports and the CISP reports. If I want to argue that the CCTV identification evidence is weak, I should be able to say to the Magistrate “let’s take a look at 19:20 on the CCTV footage. You cannot see his face!” All then the Magistrate, prosecutor and myself would have to do is click on the current file, the current allegations and then the CCTV evidence. The Magistrate can then make an informed decision based on the strength of the evidence. It is frankly astounding that this doesn’t occur. Make no mistake, innocent people wait in custody for weeks or months on charges that are ultimately unable to be proved.
  • Treatment beginning from the time of arrest: We should have mental health and CISP clinicians available at the time of arrest at every police station. I cannot emphasise this enough, as it would make for a much safer community. Frontline access to drug rehabilitation services and psychiatric intervention would substantially alleviate the risk factors of people committing crimes immediately post-release. This is an idea that I stole in court from Her Honour Magistrate Popovic. It’s a good one and Her Honour should know, she invented CISP. CISP is much cheaper per potential prisoner than remanding them in custody. [Important note:] As of today it seems that there is a promised ‘increase’ in funding for the CISP program. More on this when it comes to light. 

These three suggestions would work to streamline the criminal justice system. It would focus the question being asked, namely “what is the risk of bailing this person?” It would provide the information required to adequately answer that question, by having easy access to psychiatric and treatment related information. Lastly, it would enable to the people who need treatment, at first instance, immediate access to that treatment. By streamlining the question and providing the evidence we could bail the people who need to be bailed and address the question of risk more thoroughly, efficiently and accurately.

I believe that actually implementing these ideas would not be a politically unsellable message and would offer real substantive changes in how we conduct justice in this state. It would cost less than building a new prison and would allow the people who need to be bailed to be bailed. It is an example of smart policy and smart justice through justice reinvestment. Why we haven’t done this already is truly beyond me.

I ask that the criminal lawyers, judges, magistrates, barristers, prosecutors, police officers and citizens who read this blog question why we are operating in a system that is so inaccurate, insufficient, unsafe and clunky. Why do we have a system that is based off technology developed in the 1980s? What can we do better and how do we achieve change that is realistic and that will actually work? How can we get the information required to assist the court in making a just and informed decision?

These are the questions that can be easily answered without expending large political capital or a whole lot of money. More accurate, efficient and available information when assessing bail cannot be a bad thing. Treatment for the people who would ordinarily deserve bail should always be at the forefront of our minds. Maybe we should aim for uncontroversial policies that achieve these things?

Just a thought.

Felix Ralph

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Legal Aid & Bulk Tendering: The Era of the Mega-lawfirm?

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Recently, the Access to Justice Report was released to the public. It is a dense report that will take some time to digest. However, there is one recommendation that is particularly ill conceived. This is recommendation 6.10 entitled “[v]alue for money in purchasing decisions” on p. 414. The report recommends embracing of “innovative” funding and purchasing arrangements, one of which is “bulk tendering” of cases. The recommendation is as follows,

felixralphbulktendering

It is unclear how this would work in practice so let’s look at the United Kingdom. In the UK 100% of legal aid funding goes to private practitioners (referred to as ‘high street solicitors’). In Victoria, roughly 70% of legal aid is done by private practitioners (see page 41, Appendix B of the LIV Pricewaterhousecoopers report). The UK has gone down this “innovative” approach of bulk tendering. It has been largely derided and bemoaned by that jurisdictions legal profession. Here are some of the headlines coming out of that country after that particular innovation. Here is one, “1000 criminal law firms to be cut from legal aid work”. Another, “[h]ow the Ministry of Justice proposal for the tendering of criminal legal aid is misconceived and illiberal”. Another, “High Street solicitors could be forced to close by Government legal aid changes” One from The Guardian [l]egal aid contracts for on-call criminal solicitors to be slashed by two-thirds” One from the Independent[u]ndermine Legal Aid and you put entire justice system at risk” where the article concludes that,

“[a] tendering system like this will reward high volume providers, but bulk-bidding will hurt local high-street firms who will not be able to compete on price against call-centre lawyers operating a ‘pile-it-high and sell it cheap’ model.”

To be clear, the only reason I can see how this saves money is to create “economies of scale” within the legal profession. The larger the law firm the cheaper the running a legally aided case supposedly is. This means larger law firms have a competitive advantage because they can outbid and provide cheaper and more competitive rates for the bulk tendering process. This is called “cost-innovation” and “efficiency”. See the advantages and disadvantages outlined in the LIV 2015 report by PWC. PWC neatly gloss over the real issues with the SWOT analysis below:

felixralphbulktendering2

In discussing the UK example the above PWC report, which is directly cited by the Access to Justice Report in recommending bulk tendering concludes on page 32 that,

“These reforms have led to a high level of concern among the legal profession in England and Wales. This is in part because the number of service contracts for the duty provider scheme will be reduced from approximately 1,600 firms currently providing legal aid criminal defence, to 527 successful applicants. The new system will come into effect in September 2015. It is too early to tell whether this new bulk tendering system will be successful in achieving its objectives of creating economies of scale and greater flexibility and simplification, while continuing to ensure high-quality legal aid representation.” (authors emphasis)

The Access to Justice Report does not explore these concerns citing the PWC report. Regardless, there are a number of reasons why bulk tendering is an unworthy option.

  1. Bulk tendering of legal aid contract removes what’s called the “choice of solicitor principle” which is pretty self-explanatory. As an accused person, a citizen, you get to choose your own solicitor to represent you. By removing this and having a bulk tendering process, you are allocated what you are given – like it or lump it.
  1. Smaller practitioners are wedged out by larger law firms as the constant drive for efficiency creates ‘economies of scale’.   This drive for efficiencies and value will invariably favour larger law firms.
  1. Bulk tendering ignores individual lawyers strengths and weaknesses. For example, when I cannot represent someone for whatever reason I recommend a particular lawyer personally. I never recommend an entire firm. That’s because of the reality that some lawyers are more suitable, more experienced or simply more qualified than others. It doesn’t matter what firm they work for. Bulk tendering could mean that a consumer of legal services has no control over who handles their case.
  1. If bulk tendering is adopted it is creating the conditions for an oligopoly of criminal lawyers for the future. This is an environment ripe for miscarriages of justice. My view is that you let the free market dictate the size and success of the firm.

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Unjust legislative changes means video-links in court all the time

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Technology is not the answer to injustice. Justice is. As of 12 September 2016 it will become the default position that all appearances for persons in custody will be done via video-link unless it is an enquiry into fitness to plead, the hearing of a charge if accused is pleading not guilty or a committal. This is through a combination of legislation under the Justice Legislation (Evidence and other Acts) 2016 (Vic) and through practice direction in the Melbourne Magistrates’ Court.

This is in response to the “phenomenon” of prisoners not being brought to court by Corrections Victoria. This is not a “phenomenon” it is a failure. I view this as a tacit acknowledgment by the government that the criminal justice system has been fundamentally broken by law and order politics. The system is so overfull that Corrections Victoria cannot bring people to court anymore, there is simply no capacity or room. The Court’s are left to struggle with this, at mercy to the Department of Justice and funding considerations. This is what happens to a system, that just a few years ago worked entirely appropriately, to one that completely ignores concepts of justice reinvestment and rehabilitation.

It is assumed that technology is the panacea to all problems. It is not and here is why:

  1. Video-links ignore the fact that the situation with cases changes on the day. I.e. more charges could be added, a new issue arises and/or lawyers need to get further instructions from their clients. A case is never set in stone, it is fluid and moveable.
  1. Video-links being semi-mandatory turns a half-day matter into a multiple day matter. For example, a bail application where the Magistrate needs to grant permission to have the client assessed for the Court Integrated Services Program? That will have to be done on the next occasion. Adjourn the matter to the next date, which could be a month or more away.
  1. This is also the same situation for assessment for Community Corrections Orders, which is the primary way that most matters in the Magistrates’ court resolve.
  1. Video-links blunt the effectiveness of a sentence indication. The vast majority of matters usually resolve at contest mentions upon a sentence indication. This now cannot be done, and if it is, then it is done clumsily.
  1. When things change you cannot get private instructions over video-link. They provide the option to call but often you only get a 5-minute call to take the client through complex legal problems and expect them to make a decision that could drastically affect their lives. I’ve seen people forced into having to get instructions in packed courtrooms, with magistrates’ off the bench.
  1. Video-links ignores the human factor of having difficult clients. Yesterday I saw a terrible situation where a prisoner was confused, disorientated and had just been brought out of medical. He did not understand the situation at all because he had no lawyer to explain it to him. felixralphvideolink
  1. Video-links acts as a barrier to communication and effectively reading the situation. Magistrates’ like to see, hear and observe the defendant in person. 70% of communication is non-verbal. The process of appearing via video-link is dehumanising because it puts the person far away. Magistrates’ like to look people in the eyes. Assess them. Judge them. All video-links all the time means that the prisoner is out of sight out of mind.
  1. Video-links are shared with courts, practitioners, CISP and Corrections. Currently, practitioners can use “Jabber Guest” which is a system that works essentially like Skype. Often there is a significant delay trying to speak to clients in custody over this service. You cannot simply pick up a phone and speak to your client easily. What’s more the Courts “share” the video-links between them, with every court get set “allocations” of video-links per day. You cannot go over time.
  1. As a result pleas in mitigation are timed on video-links, with a threat of ‘running out of time’ with respect to submissions. I.e. you have 30 minutes to finalise the whole matter, where the allegations take 20 minutes to read out.
  1. Video-links often do not work. The technology fails all the time, the result being a delay in a persons case and increase time in custody. Increased costs to the community all because the technology failed to work. I remember one matter where the prisoner had to put both arms in the air if they were to accept the charges against them. It was plea instructions by pantomime.
  1. If a person is released from custody they will be released directly from gaol. Prisons and gaols are often in the middle of nowhere. They have no family to pick them up, often nowhere to sleep and little to no money. Where are the services that are usually provided to people at court? No Salvation Army. No support workers. How are you going to ensure that a homeless, mentally ill man has the wherewithal to access appropriate services post release?
  1. Video-links deprive prisoners their ability to access forensicare nurses when in the cells. This denies the ability of practitioners to have the assistance of trained mental health care professionals to make the appropriate recommendations and referrals.
  1. This places huge pressure on practitioners to be able to explain all these situations in a very short time frame.
  1. It won’t solve the problem. I’ve already had the situation in the last week where I was advised that there was no capacity to bring the prisoner to court but also no capacity or time to have him heard via video-link!
  1. Criminal law is a human business. Criminal lawyers have a very fine instinct for reading situations, reading emotions, assessing the capacity and understanding of clients. As do Magistrates’ (actually they probably have an even finer instinct). It is foreseeable that during this process a lawyer could process a person’s case without ever meeting them face-to-face. It is likely that a Magistrate would as well.  And with increased pressures due to reduced funding to Legal Aid, it becomes harder and harder to communicate with clients. The pressures on the system is immense. How much confidence does that inspire?

This new regime is making the system way more convoluted and inefficient. Technology is not the answer to the fact that the system is failing because people are not being brought to court. If the government wants to send more people into custody then fine, but at least give the court the facilities to able to have people be physically present to instruct their lawyers. The Court needs the resources to do its job.

Video-links are fantastic when used correctly but they are not the answer to fundamental structural deficiencies in the criminal justice system.

This decision will disproportionately impact the poor, the mentally ill, the destitute and the at-risk people in our society. People who should spend no time in custody will spend weeks or months in custody. This is why I constantly talk about justice reinvestment both in my advocacy in court and on this blog. This is why you don’t build new prisons, they cost too much.

 

Felix Ralph

The power of the whinging advocate

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Sometimes the power of a whinge cannot be overstated. My article ‘Delay & Injustice: A New Normal‘ that I wrote on the 25 February 2016 received some modest traction both within and outside of legal circles. Eventually resulted in some good reporting by The Age journalist, Bianca Hall (@_Biancah), in her article entitled ‘Prisoners released on bail instead of remanded because of jail overcrowding‘. I was lucky enough that she took note of my post, which was essentially a whinge and venting of frustration at the situation with remanded citizens not being brought to court. The article was written, pressure was applied and various stakeholders replied. I viewed, with some dissatisfaction, the comments from a spokesman from Corrections Victoria who stated,

“The decision to remand someone into prison custody is generally made by a magistrate or a bail justice. Questions about remand and sentencing decisions, as well as court delays, should be directed to the Victorian courts.”

I’d simply add this. Technically, that spokesman is correct when they state that remand and sentencing decisions are questions to be decided by the courts alone. However, they cannot make those decisions if there is no prisoner before a court! The whole system grinds to a halt and cannot move. I’d also add that when Magistrates’ issue what’s called ‘gaol orders’ it is an order of a court for a person to be presented at a specific court on a specific date. Viewed in that light, it is a particularly glib reply and ignores the massive costs incurred by the system and not to mention the injustice of it all.

However, since then the situation has seemed to slightly improve since March (at least anecdotally). My clients at least have been brought to court for bail applications and sentencing. The situation is far from fixed and I am sure many practitioners have had the opposite experience that I have. But I have to say I have sensed a moderate (almost imperceptible) improvement overall. I imagine or guess that someone higher up in Corrections Victoria or possibly the State Government may have heard that call and maybe re-emphasised the importance of citizens actually being appearing at courts they have been remanded to and maybe avoid the inevitable PR nightmare that would ensue if this persisted. If the situation deteriorates… well all I will say is watch this space.

Anyway, many advocates tend to shy away from discussing things with the media. I am usually one of those advocates. There is a great tradition in the common law jurisdictions of simply letting your advocacy and work do the talking for you. This is reflected in the noble ideals of the Bar, the OPP and the Bench. It can be seen in the regular beatings that Magistrates’ and Judges take within the media – usually over sentencing decisions. These comments are weathered, no matter how painful, and put down to the cost of being part of the criminal justice system. I am a fan of this. I think it provides a silent dignity to the criminal justice system that frees that system from political tit for tat behaviour.

However, sometimes in order to fix systemic problems it is worth having a whinge and pointing out the many injustices in our system. Sometimes it is worth screaming at the top of your lungs hoping someone will hear. This is constructive whinging and part of being in a just and civil democracy. How else can we have a well informed society that at least has some idea of the realities of the criminal justice system? With a bit of luck someone does hear you and something positive can be done. I note my concern at the cuts within Fairfax and the planned redundancies there.  I have no doubt the situation would have continued or worsened had that article not been written. It would not of fixed itself and my whinging would of been relatively obscure as my readership of this blog is paltry at best.

We advocates weather a fair bit of nastiness on a daily basis. Sometimes clients are belligerent or outright hostile. Their family, out of stress and concern, can use advocates as their personal punching bags. Police officers and prosecutors  quite often end up in yelling matches with opposing lawyers. Often, defence lawyers are trying to fix the mistakes of others in a clearly imperfect system. Then Magistrates, for whatever reason, decide to issue scathing criticism (sometimes justified) at the advocates that appear before them. If you are female then you have to deal with an inherent flavour of sexism and discrimination within the system. Or if you happen to work as a refugee advocate you can be criticised by your own parliamentary representative as implicitly causing the self-immolation of your desperate clients (ala The Hon. Peter Dutton MP). If you have a matter appealed, the advocate is exposed to the lofty criticism of the higher courts. And like a monkey dancing on a razor blade that is where the advocate does his or her best work. 

Advocates deal with this largely in silence. That is the job. But if there is a systemic problem or injustice, it is the role of the advocate to point it out and press for change towards a more just, more perfect system. So scream I say. Scream into the void about that injustice and hope that somebody will listen. Or do what I do and have a bit of a whinge at injustice. Because sometimes, just sometimes, some good can come of it.

Keep on whinging on.

Felix Ralph

Delay & injustice: the new normal

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Our Corrections system is broken. Attend any Magistrates’ Court in Victoria and you’ll notice a disturbing trend in the remand courtrooms of people not actually being brought to court.

I am writing this after an appearance at the Sunshine Magistrates’ Court today. Sitting in the remand court for the morning a total of nine prisoners were not brought to court. One was schizophrenic and held in custody for stealing a stick of glue. Some were awaiting sentence after having been told they could be released if they were just brought to court for a Corrections Order assessment and final sentence. I saw one lucky prisoner where an emergency video link was arranged who was due to be released three weeks ago.  Unfortunately he had to actually be at court to be assessed for a CCO. He’ll spend an extra three weeks in custody. Many of these people aren’t even convicted of an offence and they can’t even get to court to apply for bail. How is that just?

This week none of my clients have been brought to court. It was the same the week before and then the week before that. I’ve seen Magistrates adopt a ‘three strikes and you’re out rule’ meaning that if they are not brought to court three times for their bail applications the prisoners will simply be released. The whole system is in utter chaos at the moment and this will only be brought to light when some sort of political disaster happens. I said to one Magistrate last week that I feel like a ‘pantomime in the theatre of the absurd’. Great line but it’s also sadly true.

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Sentencing law: two quick CoA lessons from the Boulton decision

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On the 24 December the Court of Appeal historical delivered its first ever guideline judgment in the Boulton case. The topic was on the role Community Corrections Orders (‘CCO’) had in the sentencing landscape. Since the 1 September 2014 when suspended sentences were abolished, CCOs have been required to fill a vacuum within the sentencing hierarchy. The guideline judgment has since come in to fill that vacuum, making it abundantly clear to the criminal justice system that CCOs can and should fill the space left by suspended sentences.

  1. Bespoke sentences

One very interesting thing about the judgment comes from a statistical analysis provided to the Court of Appeal by the Director of Public Prosecutions. At paragraph [49], their Honours refer to a table which makes for extremely interesting analysis. The table outlines the following, novel types of conditions and the frequency of their application:

Condition type Magistrates’ Court Higher courts
Judicial monitoring 10.6 14.3
Non-association 1.4 4.3
Residence restriction 0.4 3.3
Place restriction 1.0 1.1
Curfew 0.5 0.9
Alcohol Exclusion 1.0 0.9

These new sentencing powers are found in s 48Fs 48J respectively. These statistics certainly reflect my day-to-day observations at Court. A number of Magistrates’ regularly use judicial monitoring as a way to ‘keep tabs’ on offenders and their progress back in the community. Magistrates when responding to offenders who have addictions to drugs – most notably methylamphetamine or ‘ICE’, especially use judicial monitoring for this purpose. However, it is extremely rare to hear submissions from prosecution or defence counsel with respect to any of the other options available to magistrates. However the Sentencing Act 1991 has a lot more arrows in its quiver. For example, here are a few hypothetical situations:

  1. A person with a crippling ICE and pokies addiction who commits burglaries to feed his or her habit(s);
  2. A mean drunk who commits family violence when he drinks. His wife has divorced him and he is in custody and unable to get bail because he does not have a stable address; and
  3. A young member of a gang whose criminality is at the core of his or hers offending.

Now it doesn’t take a genius to come up with a solution that fits the obligations set down by the Court of Appeal. Scenario 1 could involve a period of intensive compliance (depending on the seriousness of addiction and the offence) with possibility a place restriction on venues with gaming licences. Scenario 2 could involve potentially conditions of alcohol exclusion, place restrictions, residence restriction and non-association. Scenario 3 most obviously requires a non-association condition. All of these conditions require the offender to consent under s 37c of the Sentencing Act 1991, as arguably, their first step to take ownership of their offending.

Plus, these conditions give magistrates some serious flexibility with respect to the rehabilitative and also the punitive elements of a CCO. Scenario 2 would be especially useful in situation of family violence, where upon a breach an offender could face potentially up to three months imprisonment. And yet it remains something of a mystery why defence, prosecution and the judiciary are not wholesale adopting these new types of ‘tailored’ punishments.

The Court of Appeal has squarely placed the emphasis on defence counsel and solicitor advocates to adequately enquire as to appropriate conditions. At [101] their Honours state,

“This analysis highlights the particular responsibility of defence counsel who wishes to argue for the imposition of a CCO. No longer will it be sufficient merely to recite the offender’s personal circumstances, as conventionally occurs on a plea in mitigation. When a CCO is proposed, counsel will need to make submissions directed at the formulation of an order which directly addresses those personal circumstances. Attention will need to be paid to the formulation of conditions which will address the offender’s particular needs, and the causes of the offending, and which will promote the necessary changes in the offender’s life to reduce the risk of reoffending.”

I expect Magistrates to make more enquiries around the core reasons of the offending. The Court of Appeal has made two things clear; (i) it expects a CCO to be more tailored to the offender’s circumstances and (ii) the duty rests, to a large extent, on defence practitioners to adequately enquire into these circumstances.

  1. Gaol does not mean gaol

This is the part that is both the most ironic part of the Boulton decision and also it’s greatest achievement. The irony is that the abolition of suspended sentences were arguably a knee-jerk reaction to the law and order policies of the Liberal government. Those advertisements that touted “gaol means gaol” are not wrong but they are not exactly correct either. Logically, the courts had two options – they could either move higher up the sentencing hierarchy or lower down towards the CCO. Boulton makes it clear that the expectation of sentencing is that there should be a general shift downwards. This was hardly unforeseeable, (see page 23). However, I must admit that I was concerned that a lot more people would end up incarcerated when suspended sentences eventually left.

Thankfully that may not be the case. I for one, applaud the Boulton decision.

 

Felix Ralph

Memorable quotes and common phrases from practice

Lawsandsausages

Forget quoting High Court authority, the most memorable come from the clients, prosecutors, Judges, Magistrates’ and all the other actors in court. Here are some memorable vignettes and common phrases that have either been directed at me or I have overheard at court. Of course, all identities have been erased.

Welcome to the circus that never stops.”

“ ‘Waiting in line.’ That will be my autobiography.”

An 80 year old at the Titles Office, “I was your age when I first started in this queue.” 

“ Have a drink”

“Fall on your sword.”

“I can’t seem to get rid of you Mr Ralph.”

“Often the best work is done before you get to the bar table.”

“No mistake that you can make is so disastrous that you can’t fix it.” 

“We do not sentence people to pre-emptive detention in this country.”

“That may be the truth, but it is not the law.”

“It seems this correspondence has omitted the “L” in the OPP. Most unfortunate.”

“Well that’s a bold submission.”

“It wasn’t me – Shaggy” in the dog box of Frankston Magistrates’ Court. 

“He did it. You know he did it. I know he did it. We all know he did it. He did it. He did it. He did it. I am not discussing this any further.”

“Nope. Your instructions are ridiculous. That will not, under any possible circumstance, occur. Get better instructions while I stand this matter down.”

“You may not want a lawyer. But you will get one nevertheless.”

“I cannot take judicial notice of sea-faring vessels and things of that nature counsel. The extent of my sea-faring experience consists of getting a one-speed boat stuck in a small river.”

“A FAP? Are you seriously asking me whether I have a FAP? Is that going on the legal aid form, whether I FAP or not?”

“A collection of individuals? What do you mean a collection of individuals? We are a collection of individuals right now. You mean a gang. – Yes, Your Honour.” 

“Well. You look tired.” 

“How did you get that result?”

“Please wait. Court link has stopped working.”

“I can’t enter the orders court link has stopped working.”

“I will have to write the orders down the old fashioned way because court link is not working.”

“Lets see if my clerk can fix court link.”

 

Feel free to share some of phrases that have stuck out in your legal career/experience.

 

Felix Ralph

Anonymity and the Internet: ‘The Darknet Rises’

frankli

A journal article that I got published last year has been uploaded on the internet and is available for free (page 14 – 16).

It was written at the end of 2012, and is an exploration on where the “darknet” is taking copyrighted media and online communications. For those that do not know what the darknet is, essentially it is online browsing that is completely anonymous. The article was published in the Communications Law Bulletin after I came third place in an essay competition that the Communication and Media Law Association (‘CAMLA’) holds each year. Communications and media law is not my area of expertise, however it was enjoyable to delve into this area of law over the course of a weekend.

Since I wrote that article a number of things have developed. We’ve had the revelations from Edward Snowden concerning the mass surveillance of the global population through NSA’s PRISM program. New phones have been created and touted as “NSA Proof.”  We’ve seen Bitcoin becoming known throughout the mainstream, with the price of the online currency spiking up to $1,200.00 USD. At the time of writing the price of a Bitcoin was roughly $13.00 USD – with the book that I bought with the online currency costing me roughly $2,600.00 worth… Lucky me. We’ve seen governments like Turkey attempt to ban YouTube and Twitter in the bid to win the election and curtail free political speech. The inventor of the internet, Tim Berners-Lee, has called for the creation of an online Magna Carta.

All of these developments have increased the drive towards anonymous browsing. I believe that the trend is here to stay. I also believe that if we are to hold on to our ideals of free speech, privacy and political freedom; we must take those democratic attitudes and apply it to the digital age.

I strongly recommend that you read the article. It is available here and is on pages 14 – 16.

 

Felix Ralph

 

Julian Knight Legislation: Valid or Not?

Julian Knight

There has been some political hubbub surrounding the impending parole period of Mr Julian Knight, the man responsible for the Hoddle Street massacre. The Age’s, @janeSYLee, published a story regarding the potential of a High Court challenge that could be mounted by Knight in relation to laws that specifically are designed to prevent him from even being eligible for parole. The Herald Sun has since weighed in with this piece.

This type of legislation specifically targeted at one person and retrospective in its nature is frequently being used by Parliaments to assuage the public from the prospect of parole for some of our States’ worst offenders. The Age has since commented that this may be more of a ‘political stunt’ than an absolute necessity. Mr Geoff Bower, The LIV President, has labelled the legislation introduced into the House as “Unnecessary and Unconstitutional” – and stated, “[o]nce an exception is made by this government for Julian Knight, it becomes much easier for other exceptions to be made in the future and that sets a dangerous precedent.” I agree with this statement. Mr Bowyer also makes the very good points that:

  1. Julian Knight is never really going to get parole;
  2. Because of point (1), the legislation is fundamentally pointless; and
  3. This legislation is ultimately political in its nature and does more damage to people’s rights than it does good.

I happen to agree with the points of Mr Bower, however I am concerned whether such legislation is constitutional, and specifically if it would have any footing in court. After reviewing the authorities I think the claim would be unsuccessful. Unfortunately, the Julian Knight legislation is constitutionally valid. I will go through some of precedents for this conclusion and specifically why it is valid under our Constitution.

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Obscenity Laws in the Modern Age

title

Public order offences

This is an article that explores some key judgments, my thoughts on them and also the future of public order offences. The article examines the history of law, some of its quirks and then its relevance in the 21st Century.

Public order crimes are offences that occupy a unique space within criminal law. If misused they can become draconian laws that frequently are imposed on the most disadvantaged of people.

A perfect example is the anti-obscenity laws today found in Summary Offences Act 1966 (Vic) s 17:

(1) Any person who in or near a public place or within the view or hearing of any person being or passing therein or thereon-

(a) sings an obscene song or ballad;

(b) writes or draws exhibits or displays an indecent or obscene word figure or representation;

(c) uses profane indecent or obscene language or threatening abusive or insulting words; or

(d)   behaves in a riotous indecent offensive or insulting manner-

shall be guilty of an offence.

Singing obscene songs or ballads aside, these offences are remarkably wide in their scope. The potential for misuse of power is great, and often tempting for a police officer who has had a shift that has dragged out into the night. It is through the power of public order offences that most people, especially social and ethnic minorities, experience police interference with their day-to-day lives. The leading case in this area, as most law students and practitioners should know is Coleman v Power [2004] 39; 220 CLR 1; 209 ALR 182. It is a great case that discusses the implied freedom of political communication in the light of obscenity laws. The case also discusses the history of modern public order offences. As the Justices in Coleman note, the modern genesis of public order offences are found in the Metropolitan Police Act 1839 (UK), specifically s 54 of that Act. The offences range from the practical prohibition of “driving furiously” through the streets to preventing people from flying a “kite or play at any game to the annoyance of the inhabitants or passengers, or who shall make or use any slide upon ice and snow…to the common danger of the passengers.” The legislation further states that,

“Every person who shall use any threatening, abusive, or insulting words or behaviour with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned.”

“Every person who shall sell or distribute or offer for sale or distribution, or exhibit to public view, any profane,…book, paper, print, drawing, painting or representation, or sing any profane, indecent, or obscene song or ballad…, or use any profane, indecent or obscene language to the annoyance of the inhabitants or passengers.”

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