International Criminal Law Congress 2016

15^th International Criminal Law Congress 2016

12 – 16 October 2016, Adelaide, South Australia

I became involved in civil liberties in Queensland as early as 1971 when the Springbok racially selected South African Rugby Team toured Australia.  There were many civil liberties controversies between 1971 and 1977 that are too numerous to account here.  There then followed the 1977 street march ban introduced by the same Bjelke-Petersen Government.  Without any consultation or prior announcement the Premier came into the Queensland Parliament one afternoon and amended the Traffic Act.  The then existing law which gave an appeal to the Magistrates Court from the police refusal to allow a permit for a political street process was changed so that the ‘appeal’ lay from the Superintendent of Traffic who refused the permit to the Police Commissioner.  That same Police Commissioner was later jailed in the 90s for endemic corruption.

It was no surprise that not one permit was granted.  The height of the absurdity that became the 1977 street march ban occurred one afternoon in October in 1977 when 400 people were arrested in one afternoon simply for walking around the block from the city square.  The arrests were for taking part in an illegal street march.  Among the lawyers who walked out of the watchhouse the next day was Wayne Goss who later became Queensland’s premier and Matt Foley who became Attorney General in the Goss Government.

There then followed the 1987 to 89 Fitzgerald enquiry which revealed endemic police and political corruption.  A major overhaul of the police service resulted along with some changes designed to make the Queensland political system more accountable.

We saw the return to Bjelke-Petersen’ism in the Newman Government in the period 2012 to 2015.  The absurdly named VLAD (Vicious Lawless Association Disestablishment Act) and a number of extreme provisions including mandatory minimum of imprisonment of 25 years on top of a sentence that a person was arrested for if the offence, essentially, was committed by three or more persons with a common and organised purpose.

The DPP – Over the last 30 years and into the future

DPP Offices were set up throughout Australia from 1983 to the early 90s starting first with Victoria, the Commonwealth and then quickly followed by other states.  The role of the DPP was stated to be to take the politics out of the decision to prosecute.  While this has been largely achieved over the last 30 years the independence of the Office of the Director of Public Prosecutions has been far too compromised by timidity caused by fear of the media.

It has been said that the Prosecutor’s importance within the criminal justice system cannot be overestimated.

If the decision to prosecute Socrates was made by a trio of private citizens namely, a politician, a poet and a rhetorician and in another well-known trial 400 years later Pontius Pilate first found no basis for a charge against Jesus but later left his prosecution to a crowd, the prosecutorial discretion and decisions to prosecute under the Australian DPP model has little accountability.

It has been said that ‘it is something of an oddity that the Prosecutor has few limitations and is subject to little scrutiny’.

Judicial Review of prosecution decisions is not available.  So said the High Court in Maxwell’s case in 1996.

A prosecutor’s decision whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and decisions as to the particular charge to be laid or prosecuted are not open to review.

Further, the office of the DPP also has its own problems.  The role of the DPP is an appointed one and while the office bearer in theory has independence, at least for the duration of the appointment, the term of the appointment is not consistent throughout Australia.

What for the future for the Office of the DPP.  It really is an absurdity that an acquitted accused can in certain circumstances recover his costs in proceedings before a Magistrate but, even with the exception of the cost regimes operating in at least 2 states, effectively cannot recover his costs if acquitted by a jury in the relatively infrequent number of cases where a higher court prosecution is discontinued.

Any experienced defence practitioner knows that the only brake that exists in relation to unmeritorious prosecutions in the Magistrates Court is the threat of a costs order.  No such brake, ironically, exists in respect of a DPP Prosecutor in relation to Judge and Jury matters.  This must change.

Crime Commissions

Most Australian jurisdictions have Crime Commissions of one sort or another.

A frequent criticism of Crime Commissions is that their work is inimical to a fair trial.  It has been said that the coercive power of these agencies together evidence powers denied to the Police Services give crime commissions and ultimately the prosecution unfair advantage.

It is instructive to observe Mr O’Regan who himself would later become the Chair of the Queensland Criminal Justice Commission noted that “none of the Commission’s powers should be exercisable unless judicial approval has first been obtained and in that regard he noted that that was the opinion of Tony Fitzgerald QC who headed the landmark Fitzgerald enquiry in Queensland from 1987 to 89 where Fitzgerald said:

• “The Official Misconduct Division would have access to more powers than most investigative bodies.  Each such power should only be able to be used by any member of the Official Misconduct Division on judicial authority.  The standard of control on the exercise of those powers must be unreservedly high”.
  

Considering how much power have been given to Crime Commissions around the county since that time, Mr O’Regan’s enforcement of Mr Fitzgerald’s indication of the need for judicial authority before Crime Commissions exercise their coercive powers seems now somewhat extraordinary.  But it shows how far we have travelled in the last 30 years in terms of the extraordinary powers which now are exercised by Crime Commissions around the country.

How far we have travelled down the road of giving Crime Commissions excessive powers is reflected in two recent incidents.

The public but very necessary controversy between ICAC Chairman Megan Latham and ICAC Inspector Devine and the related discussion about people declared guilty by ICAC seeking Clearance Certificates in the Supreme Court demonstrates the very real problem posed by Crime Commissions in this country.

The fact that a very senior public servant in New South Wales lost his job and his career because of a so called public finding against by ICAC only to be acquitted on trial demonstrates the necessity to reign in Crime Commissions.

It is instructive to observe only 15 months ago a damning victorious systemic misconduct inside the specialist covert operations unit of Western Australia’s Corruption and Crime Commission emerged from an investigation by the Commissions Parliamentary Inspector.

The report by ex-Supreme Court Judge Michael Murray QC catalogued 23 allegations of misconduct ranging from theft to improper interference with a police investigation.

The allegations against the officers included false record keeping, unauthorised use of Commission equipment, misuse of an assumed identity, failure of an officer to disclose he had been arrested and convicted for possessing a prohibited drug, improper purchase of 2 motor vehicles and unlawfully obtaining a driver’s license under an assumed identity.

The active and effective oversight roles by the relevant Parliamentary Inspectors over the New South Wales ICAC and Western Australia’s Corruption and Crime Commission needs to be replicated throughout Australia particularly in Queensland, Victoria and South Australia whose Parliamentary Inspectors in respect of the various Crime Commissions in those states appear to have been significantly less effective.

The increased policing role being carried out by Crime Commissions particularly through the Investigative Hearing process is a considerable cause for concern.  Not only in a practical, if not in a legal, sense does the increasing police role impinge on the right to silence, in those states such as Queensland the Crime Commission forms a dual role of greater policing and undertaking complaints against police results in a seriously conflicted process.

Mandatory Sentencing

Most Australian jurisdictions have by now incorporated some form of mandatory sentencing into their overall sentencing regime.  Whether in the form of fixed mandatory penalties, mandatory minimum standard non-parole periods or presumptive sentencing regimes (for example where an offender must serve a period of imprisonment unless there are exceptional circumstances).

In 1997 the Northern Territory introduced a ‘3-strike’ mandatory sentencing regime for property offences: 14 days imprisonment for a first offence, increasing to three months imprisonment for a second offence, and increasing one year for a third offence.

A number of people caught by that regime received penalties which were, objectively in any view, grossly disproportionate to the seriousness of their offending.

These are some examples:

• A 27 year old teacher convicted of unlawful damage (she disputed the quality of a hotdog at a fast food bar and poured water on a cash register).  She paid in full for the damage caused and was sentenced to 14 days actual imprisonment.
• A 19 year old convicted of stealing alcohol worth $2.00 sentenced to 14 days actual imprisonment.
• A 24 year old Aboriginal mother with no criminal history convicted of receiving stolen property being one can of beer worth $2.50 sentenced to 14 days actual imprisonment.
• 22 year old convicted of stealing biscuits and cordial worth $23.00 sentenced to one year actual imprisonment.
• A 29 year old homeless Aboriginal man who had 2 previous minor property convictions of convicted of stealing where he wandered into a backyard when drunk and took a $15.00 beach towel from a clothes line sentenced to one year actual imprisonment.

In 1999 the Northern Territory amended the 3-strike regime to allow for sentencing alternatives in exceptional circumstances and the laws were appealed in 2001.

The Queensland’s Drug Misuse Act had a mandatory life imprisonment regime that applied until 1990.  It ran for a period of 2 years.

The Labor Police Minister in abolishing the fixed mandatory sentencing regime said that “Judges were forced to sentence hopeless drug addicts to life imprisonment… many of the 21 people now serving mandatory life sentences in Queensland gaols are little more than hopeless drug addicts” with the abolition of the mandatory life sentence term all 19 prisoners serving life had the sentences reviewed.  For example a female who’d been sentenced to life imprisonment for supplying, possessing and trafficking heroin was sentenced to mandatory life imprisonment and after the law was amended on review her sentenced was reduced to 4 years imprisonment.

Federally under the Migration Act mandatory sentencing is prescribed.  In one people smuggling case where the sentencing Judge found that a crewman had been motivated by extreme poverty where he was earning about $60 a month as a fisherman in Indonesia and supporting his wife and daughter.  He was approached by a man who offered him $1200 to take on a role in people smuggling.  The sentencing Judge noted that the appropriate sentence would have been three years imprisonment with a non-parole period of 18 months but the accused in that case was required by the mandatory sentencing regime to be sentenced to at least 8 years imprisonment with a non-parole period of 5 years.  The Judge in that case felt so strongly about the injustice caused that the Judge recommended that the Commonwealth Attorney General exercise his prerogative to extend mercy to him.

As a consequence of this case an agreement was reached between the Commonwealth Attorney General and the Director of Public Prosecutions that ‘a charging policy would prevail of avoiding offences carrying mandatory minimum sentences wherever that could be done”.  Thus the sentencing function was, effectively, to be pushed down to prosecutors who are not publically accountable in a way that Judges are.

It is encouraging that in Frank Brennan’s speech early this week he noted that “it is good to see that the Australian Bar Association has pledged to join a national campaign to amend or remove all mandatory sentencing laws….”

Recently in the Melbourne Age John Silvester who is a former police officer and now a weekly columnist for The Age noted that at a  time that the United States are moving away from mandatory sentencing Australian States are moving more in the direction of mandatory sentencing.

Nowhere is this more starkly illustrated than in Queensland.  The previous LNP Government anti-bikie laws had mandatory sentencing of 25 years on top of the sentence a bikie was arrested for even if that sentence was a fine where the offence was committed by three or more people in the so called organised crime context.

The current Labor Government in Queensland has a bill before the Queensland parliament reducing that figure to 7 years.  In the explanatory notes to this legislation it was conceded that a person might not receive jail for the base offence (the offence a person had actually been arrested for) but would still have to serve 7 years on top of the non-jail term if the offence was committed within the so called organised crime context.

Organised crime is very widely defined to effectively, refer to 3 people effectively committing a common purpose offence and it applies even to such offences as stalking.

Conclusion

This short and obviously selective review of parts of the landscape of the Criminal Justice system over the last 30 years presents a rather depressing picture.

Time Magazine observed in its October edition last year that 30 years ago 10% of California’s general revenue went to higher education and just 3% went to prisons.  Today 11% goes to prisons and 8% to higher education.  There are now about as many people working in the prisons business in the US as in manufacturing.

The same depressing picture applies to Australia.

Churchill said that the moods and temper of the public in regards to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.

For the last 30 years there has been a large gap between the perception of crime and the reality.  It is to be hoped that in the next 30 years the reality of crime can be effectively portrayed and the false perceptions caused by populist law and order politicians can be shown to be the empty rhetoric they are.

The philosopher Thomas Hobbs noted that the greatest power a government can have is to define the terms of the debate.  Criminal defence lawyers must strongly and publically participate in this debate so that it is not left to government alone.

Or to apply to criminal lawyers the saying of Martin Luther King: there comes a time when you have to stop being a thermometer and become a thermostat that transforms the morays of society.

Rights for victims need not be secured at the expense of traditional procedural safe guards as though Justice was some kind of commodity that must be taken from some (criminals) so that others (victims) may have more.

 

Speech delivered by Terry O’Gorman

16 October 2016