Tuesday, November 1, 2011

Reasonable Cause conference: papers

On 15-16 September 2011 a group of criminal lawyers gathered in Sydney to hear speakers at the inaugural "Reasonable Cause" conference.

Born from an idea by barrister Mark Dennis, the creator of www.criminalcle.net.au, the conference was the first of its kind: participants paid a registration fee the equivalent of a regular CLE conference but each speaker gave their time for free, and profits were donated to the Cambodian orphanages run by Geraldine Cox.

A group of old and new heads were fortunate to hear from Geraldine herself, and be inspired by the work she does for some of the poorest and most vulnerable children of Cambodia, as well as from top shelf speakers including Peter Hidden, Robert A. Hulme and John Nicholson from the Bench, and Warwick Hunt, Graham Turnbull and Phil Strickland from the Bar.

Papers are available at www.criminalcle.net.au. The highlights for me were two papers: the first by Phil Strickland on the topic of memory and the eyewitness in criminal trials; and the second by Judge John Nicholson, who provided a very strong critique of the "modern" sentencing regime, and the assumptions which underpin it.

Strickland's paper is concerned with the fallibility of memory, and the reliability of eyewitness evidence. He discusses some very interesting research, especially of US academic Dr Elizabeth Loftus, whose book "Eyewitness Testimony - Civil and Criminal" he described as one of the best he had read in the field of criminal law.

Strickland described the state of US jurisprudence as being well ahead of Australia in this area, it now being a common practice in the States to call experts such as Loftus to challenge generally the reliability of memory. He said Courts in Australia have been very reluctant to admit such evidence, but urged practitioners to put forward these kind of experts, and force this issue into appellate Courts.

Nicholson's paper on the rationale of sentencing did not miss, and most refreshingly he saved some of his strongest criticism for the profession itself.

Some excerpts:
2. A bad sentence not only fails to provide a just outcome as described above, but
tributes to undermining the Rule of Law by facilitating or contributing to delinquency contrary to the Rule of Law, and in particular, the best future protection of persons and property in society. My concern is that much of the sentencing undertaken in our courts, by conscientious judicial officers who would consider themselves men and women of good will, does in fact, fuel continued criminal disobedience to the Rule of Law

9. There are numerous assumptions in sentencing, which although they have stood the test of time, are now increasingly under challenge. In any sentencing determination the appropriate prominence of these assumptions in the sentencing exercise may determine whether the sentencing is good, bad or indifferent.

10. Four assumptions I wish to focus on are:

- In all criminal offending the perpetrator has a mental element, mens rea, constituting a greater or lesser reflection of evil and malice.

- Punishment is always an effective measure in reforming criminal offenders.

- Incarceration in prison is always an effective mechanism for reforming criminal offenders.

- General deterrence, as a factor in sentencing, is such an effective method of deterring others from offending, that a component of sentencing should nearly always include a weighting for general deterrence.


12. Other professions have recognised false assumptions in their workplace; inherited from times long gone bye. Engineers have discovered alternative methods of transport from the horse and buggy or the five-mast schooner. Travel across water and land and in the last century air and rail travel, have seen incredible transformations. Communication has changed from horseback post to wireless transmissions into a variety of media forums. Entertainment has moved from the Shakespearian stage to the mobile phone screen.

13. Doctors have moved on from applying leeches and portents to sophisticated micro-surgery and gene manipulation. Architects have moved from punts and wooden bridges, to using cement, steel and glass in constructing multi-lane highway bridges and skyscrapers. The mindset changes that occurring in other professions comes from the Stephensons, the Wrights, the Marconies and other inventors rejecting accepted assumptions in the name of progress.

14. The legal profession should cringe as it considers that the brilliant legal minds of the past have accomplished so little by comparison with other professions, in their approach to the criminal law and in particular to sentencing. The doctrine of precedent has much to answer for – it demands hindsight, and being bound by the past, when other professions are looking to make changes for and adapting to the future. The legal profession has survived on constancy and consistency. An offender from the Eighteenth Century England would have little difficult recognising a criminal courtroom, the judge, the robes and unpreparedness of the advocate, the flow of proceedings, the rhetoric, the results associated with sentencing including the harshness of gaol architecture and gaol life.

15. In a Twenty-First Century sentencing hearing there surely is room to challenge old assumptions. Indeed, they should be challenged if continued reliance upon them produces sentencing outcomes that in reality do not promote the Rule of Law.

16. There is a growing body of evidence and research compelling a view that strict adherence to these assumptions is, or may be counter productive insofar as the future protection of person and property from the offender are concerned. Indeed, in areas having concentrated incarceration rates these assumptions are producing criminogenic factors inviting other community members (usually males) to imitate their predecessors’ journeys to the gaol door as opening for them a way to a rite of passage.


20. Prosecutors, almost invariably, and defence counsel too commonly, accept that punishment is a most effective, and too frequently, the only mechanism for reform of the offender.

21. This all seems a hangover from times past. It was once fashionable to teach the parishioners and children punishment is the choice of God for evil conduct to be found in hell and purgatory. For that reason in times past, those who sat in sentence for crime saw themselves as doing God’s work. This is not the venue to discuss the theological correctness of a proposition that punishment of hellfire and brimstone is the choice of God for evildoers – save and except to say the evidence for it is scant and mostly hearsay. Those raised Catholics and I daresay others were told in youth that wrong-doing would result in everlasting punishment. So ingrained in the collective psyche is this notion that the consequence of discovered wrong-doing is punishment, that it has always been acceptable, nay expected, that criminal wrong doing should also be met by punishment. In this day and age it is the shock-jock, the professional spruiker of law and order, who feigning righteousness indignation, gives voice to an insatiable appetite for the punishment of others; residual ethics suspended in a callous pursuit of audience share and advertising revenue.


66. We live in an age were there is a growing realization among researchers, professionals involved in post-release social behaviour, custodial officers and more recently some politicians that the time has come to dismantle to a considerable extent the punitive paradigm of sentencing, reserving it for hardcore and pathological offenders.

67. There is also a growing awareness that the individual nature of sentencing may require different outcomes for different persons. Where an offence is not so serious as to require long-term incapacitation as well as condign punishment, the better outcome will focus upon a result that is just and advances rather than impedes the Rule of Law.

68. Once it the research becomes known, recognised and accepted sentencing purposes must be reviewed. Both common law and legislation place importance on general deterrence as an important purpose of sentencing. If the research is correct, such a proposition is a fiction having no place in real law. Commonwealth and the State Legislators should seek to remove general deterrence as a purpose of sentencing.

69. All Advocates should familiarise themselves with the current research – at very least research relevant to imprisonment and general deterrence, to satisfy themselves of the integrity of the research. If satisfied the research reveals reality those advancing prosecution cases before sentencing judges, and appeals before the appellate courts should consider that reality before asking for general deterrence to be weighted into the sentence, or for imprisonment in circumstances where some other sentence is justifiable.

No comments:

Post a Comment