Wednesday, February 29, 2012

Australia moves to strengthen oversight and accountability of places of detention

Human Rights Law Centre | 28 Feb 2012

Australia has moved a step closer to ensuring independent monitoring, inspection and oversight of places of detention.

The Commonwealth Attorney-General, Nicola Roxon, and the Acting Minister for Foreign Affairs, Craig Emerson, today tabled a National Interest Analysis on Australia’s ratification of the Optional Protocol to the Convention against Torture.

The Optional Protocol is an international treaty which aims to prevent ill treatment and promote humane conditions by establishing systems for independent monitoring and inspection of all places of detention.

“It is not only in the interests of persons deprived of liberty, but also the broader community, that all places of detention – whether prisons, psychiatric hospitals, police cells or disability facilities – promote rehabilitation and reintegration. It is fundamental that all detainees are treated with basic dignity and respect. Independent inspections and oversight are critical in this regard,” said Human Rights Law Centre Executive Director, Phil Lynch.

At the national level, the Optional Protocol requires that countries establish what is known as a “national preventative mechanism”, or NPM. An NPM is an independent body with a mandate to conduct both announced and unannounced visits to places of detention, to make recommendations to prevent ill treatment and improve conditions, and to report publicly on its findings and views.

At the international level, the Optional Protocol establishes an independent committee of experts, the UN Sub-Committee on the Prevention of Torture, with a mandate to carry out country missions to monitor deprivations of liberty.

According to Mr Lynch, “The whole system is premised on the evidence and experience that external scrutiny of places of detention can prevent and redress torture and other forms of ill treatment. By making places of detention more open, transparent and accountable, it helps to ensure that persons deprived of liberty – whether people with psychiatric illness, prisoners, people with disability or asylum seekers – are treated with basic dignity and respect.”

Australia signed the Optional Protocol in May 2009. Since that time, progress on ratification and implementation has been slow, with wrangling between the states and the Commonwealth about who is to foot the modest bill for detention monitoring and oversight. According to Mr Lynch, “This is despite international evidence as to the very high social and economic costs of failing to prevent and redress ill-treatment.”

Mr Lynch said that, “Now that the NIA has been tabled, the Commonwealth, state and territory governments should all prioritise ratification and implementation of the Optional Protocol. Any further delay in the prevention of ill-treatment has intolerable social and economic costs and is simply not an option.”

Taser Finding: Bugmy Case

Damien Carrick | The Law Report | 28 February 2012

A decision in the Broken Hill Magistrates Court has made it clear that a policeman used excessive force and breached standard police procedures when he tasered Mr Bugmy in February 2011.

Guests: Felicity Graham, Lawyer with the Aboriginal Legal Service, NSW & ACT

Listen to episode here

We need to know who funds these thinktank lobbyists

George Monbiot | The Guardian | 20 February 2012 

The battle for democracy is becoming a fight against backroom billionaires seeking to shape politics to suit their own interests

Shocking, fascinating, entirely unsurprising: the leaked documents, if authentic, confirm what we suspected but could not prove. The Heartland Institute, which has helped lead the war against climate science in the United States, is funded among others by tobacco firms, fossil fuel companies and one of the billionaire Koch brothers.

It appears to have followed the script written by a consultant to the Republican party, Frank Luntz, in 2002. "Should the public come to believe that the scientific issues are settled, their views about global warming will change accordingly. Therefore, you need to continue to make the lack of scientific certainty a primary issue in the debate."

Luntz's technique was pioneered by the tobacco companies and the creationists: teach the controversy. In other words, insist that the question of whether cigarettes cause lung cancer, natural selection drives evolution, or burning fossil fuels causes climate change, is still wide open, and that both sides of the "controversy" should be taught in schools and thrashed out in the media.

The leaked documents appear to show that, courtesy of its multimillionaire donors, the institute has commissioned a global warming curriculum for schools which teaches that "whether humans are changing the climate is a major scientific controversy" and "whether CO2 is a pollutant is controversial".

The institute has claimed it is "a genuinely independent source of research and commentary" and that "we do not take positions in order to appease or avoid losing support from individual donors". But the documents, if authentic, reveal that its attacks on climate science have been largely funded by a single anonymous donor and that "we are extinguishing primarily global warming projects in pace with declines in his giving".

NT alcohol laws 'don't go far enough'

Jennifer Lush | SBS Radio | 24 February 2012 

The NT government is hailing the results of its measures to combat alcohol abuse, but it's being urged to do more.

The Northern Territory government says data on alcohol-related assaults over the past six months shows new reforms are working.

The Territory government introduced the 'Enough is Enough' legislation in July last year, which included a Banned Drinkers Register and a Special Substance Misuse Assessment and Referral to Treatment court.

Dr John Boffa from the People's Alcohol Action Coalition says the initial results do appear positive.

But he told Jennifer Lush more needs to be done.

Listen to interview here

Saturday, February 25, 2012

State prosecutor's reasoning in Wood trial 'dangerous'

Louise Hall, Geesche Jacobsen | SMH | February 25, 2012

THE state's top prosecutor, Mark Tedeschi, QC, has been strongly criticised for his conduct of the Gordon Wood trial, with the most senior of the appeal judges saying some of his reasoning was ''dangerous'' and ''entirely without foundation''.

Justice Peter McClellan found the trial miscarried because of Mr Tedeschi's closing address, in particular, his ''50 questions''.

''Asking questions, even in a rhetorical manner, and inviting the jury when considering its verdict to consider whether the applicant had provided satisfactory answers to the questions was an impermissible course for the prosecutor to follow,'' he said.

Justice McClellan said the submission that Caroline Byrne was thrown from The Gap using a ''shot-put action'' was ''an invention of the prosecutor … for which there was absolutely no support in the evidence''.

Nor was there evidence to support the proposition that Ms Byrne was killed because she knew confidential information about ''powerful people'', including the flamboyant stockbroker Rene Rivkin, for whom Mr Wood acted as chauffeur and personal assistant.

Rumours about a homosexual affair between the pair may have ''coloured'' the evidence, said Justice McClellan.

''The exploitation of public rumour and the use of mere innuendo to compensate for inadequate evidence of motive is not consistent with the obligations of a prosecutor to press the Crown case,'' he said

Late yesterday, the Director of Public Prosecutions declined to comment on the criticism of Mr Tedeschi, who is no stranger to controversy and criticism. In 1990 he prosecuted the Hilton bombing case against Tim Anderson - a prosecution which led to a complaint by the NSW Bar Association seeking a finding of professional misconduct against him.

Mr Anderson had been convicted of the murder of two garbage collectors and a police officer killed when the bomb exploded outside the Hilton hotel in February 1978.

The Court of Criminal Appeal ruled Mr Tedeschi's failure to recall Crown witness and confessed bomber Evan Pederick after a change of the prosecution case had been unfair to Mr Anderson.

When the Bar Association tried to have Mr Tedeschi disciplined, the Administrative Decisions Tribunal ruled his actions in the Anderson case did not amount to professional misconduct.

Mr Tedeschi came under review for his role in the prosecution of former police officer - now solicitor - Paul Kenny, in the late 1980s. Mr Kenny was charged, but found not guilty, of perverting the course of justice. Eventually, a review of the cases by a former judge found witnesses had given false evidence against Mr Kenny but ruled allegations that one witness had been induced by Mr Tedeschi and another prosecutor to give a false statement against Mr Kenny were false. While John Nader, QC, argued that Mr Tedeschi overstated the case against Mr Kenny, he said he had not breached standards of competence or ethics.

A recent case by Mr Tedeschi - that of Keli Lane who was convicted of killing her baby , Tegan - is subject to appeal, with the conduct of the prosecution likely to come under the spotlight.

Monday, February 20, 2012

New Jersey Governor Calls for Mandatory Treatment for Low-Level Drug Offenders

By Join Together Staff | | January 20, 2012

New Jersey Governor Chris Christie this week called for mandatory treatment for all low-level drug offenders. The Wall Street Journal calls it “the most sweeping criminal-justice proposal of his tenure.”

In his State of the State address, Christie said, “”Every one of God’s creations can be redeemed. Everyone deserves a second chance.” He also called for a revision of bail laws to keep violent drug dealers in prison. He said the state’s bail system should mirror the federal courts, where judges decide whether violent offenders should remain in jail while they await trial if they are considered to be a threat to society or a flight risk.

According to the article, drug treatment advocates say the state’s residential drug treatment facilities are already overcrowded. “There are waiting lists of people begging to get into drug treatment. We should fund and expand it for the people who want it,” said Roseanne Scotti, Director of the Drug Policy Alliance in New Jersey.

In 2010, there were 51,985 people admitted into substance-abuse programs in New Jersey, compared with 47,442 in 2008. An estimated 62 percent of New Jersey prison inmates have a moderate to severe drug addiction, the article states.

Christie once served on the board of a Daytop Village treatment program, and his wife volunteers with former convicts, including at drug treatment centers, the newspaper notes.

Rules of American justice: a tale of three cases

Glenn Greenwald  | | January 24, 2012

Developments in three legal cases, just from the last 24 hours, potently illuminate the Rules of American Justice. First, the Justice Department yesterday charged a former CIA agent, John Kiriakou, with four felony counts for having allegedly disclosed classified information to reporters about the CIA’s interrogation program. Included among those charges are two counts under the Espionage Act of 1917, based on the allegation that he disclosed information which he “had reason to believe could be used to the injury of the United States and to the advantage of any foreign nation.” Kiriakou made news in 2007 when he told ABC News that he led the team that captured accused Terrorist Abu Zubaydah and that the techniques to which Zubaydah was subjected, including waterboarding, clearly constituted “torture,” though he claimed they were effective and arguably justifiable. He’s also accused of being the source for a 2008 New York Times article that disclosed the name of one of Zubaydah’s CIA interrogators.

What’s most notable here is that this is now the sixth prosecution by the Obama administration of an accused leaker, and all six have been charged under the draconian, World-War-I era Espionage Act. As EFF’s Trevor Timm put it yesterday: this is the “6th time under Obama someone is charged with Espionage for leaking to a journalist. Before Obama: only 3 cases in history.” This is all accomplished by characterizing disclosures in American newspapers about America’s wrongdoing as “aiding the enemy” (the alleged enemy being informed is Al Qaeda, but the actual concern is that the American people learn what their government is doing). As The New York Times‘ Charlie Savage wrote this morning, Obama has brought “more such cases than all previous presidents combined,” and by doing so, has won the admiration of the CIA and other intelligence agencies which, above all else, loathe transparency (which happens to be the value that Obama vowed to provide more of than any President in history).

Also yesterday in American justice, a three-judge panel of a federal appellate court in Virginia upheld the dismissal of a lawsuit brought against Donald Rumsfeld and other Bush officials by Jose Padilla, the U.S. citizen who was imprisoned for almost three years without charges or even a lawyer and was systematically tortured to the point of permanent mental incapacitation. Padilla sued the former Defense Secretary on the ground that he had authorized Padilla’s illegal imprisonment and torture. The Obama DOJ vigorously defended Rumsfeld, arguing (a) that Rumsfeld is entitled to immunity on the ground that he had reason to believe his acts were legal and (b) an American citizen has no right to sue a government official for the treatment he receives as a designated “enemy combatant” — even if the treatment in question is torture and prolonged imprisonment without charges.

Breath test ban forces other changes to bail rules

Paul Bibby | SMH | February 18, 2012

NSW Chief Magistrate Graeme Henson ... confirmed that he had sent a copy of the Supreme Court decision to magistrates across the state. Photo: Brendan Esposito

THE impact of the Supreme Court ruling against random breath tests as a condition of bail has spread through the NSW court system and NSW Police, with at least one other common bail condition also in doubt.

The Herald revealed yesterday that several magistrates and police in western NSW have been ordering people charged with alcohol-related offences to submit to random breath tests to ensure that they are not breaching their bail conditions by drinking.

Known as ''alcohol bail'', it was not specific to driving and few if any qualifications or restrictions were placed on it.

Officers did not have to reasonably suspect that the alleged offender was drunk and there was no limit to the number of times a person could be tested.

Last Friday, the NSW Supreme Court Justice, Peter Garling, ruled the condition unlawful, finding that it was not in keeping with the main reasons bail is imposed, namely for law enforcement, protection of the community or an individual, promoting the rehabilitation of the accused, and ensuring that people show up to court.

The broader implications of the judgment are now rippling across the court system and police force.

The NSW Chief Magistrate, Judge Graeme Henson, confirmed yesterday that he had sent a copy of the decision to magistrates across the state.

It is understood that he also sent a memo informing magistrates of the potential dangers of so-called ''proof provisions'' within bail conditions. These are provisions requiring alleged offenders to prove that they are not breaching their conditions for bail.

The judgment may spell the end of a common curfew condition where alleged offenders are required to present themselves whenever a police officer comes to their home.

The Aboriginal Legal Service and Legal Aid are among organisations that have objected to the condition on the grounds that it has an unreasonable impact on people's lives, particularly within the indigenous community.

''These conditions have the effect in the community of forcing people out of bed at all hours to come to the door,'' one of the principal legal officers at the Aboriginal Legal Service, Jeremy Styles, said.

''And they are often applied to children.''

Following Justice Garling's judgment and the memo from Judge Henson, several magistrates and judges have deleted the ''present to police'' curfew requirement from the bail conditions of alleged offenders.

This includes cases in Bathurst, Broken Hill and the NSW Supreme Court in Sydney.

When a ''present to police'' condition came before the Deputy Chief Magistrate, Jane Culver, in Sydney's Downing Centre local court on Wednesday, she said: ''The decision [by Justice Garling] in Lawson and Dunlevy is against any such condition remaining in place''.

The impact of Justice Garling's decision is also being felt across the NSW Police Force.

A western NSW police source said that it ''had the potential to change operations of the entire organisation''.

The former NSW director of public prosecutions, Nicholas Cowdery, said that Justice Garling's decision was underpinned by the need to protect people's rights.

Friday, February 17, 2012

The cynical world of America's private prisons

Sadhbh Walshe | | 3 February 2012

A major factor in why US prisons are overflowing is the highly profitable privatised industry that has an incentive to fill them.

In the past few decades, changes in sentencing laws and get-tough-on-crime policies have led to an explosion in America's prison population. Funding this incarceration binge has been an enormous drain on taxpayer dollars, with some states now spending more to lock up their citizens than to provide their children with education. It's difficult to spin anything positive out of that scenario, but as it turns out, even this blackest of clouds has a silver lining – silver as in dollars, that is, for the private prison industry.

In 2010, two of the largest private prison companies in America, GEO Group, Inc and the Corrections Corporation of America (CCA) generated over $4bn dollars in profit between them. Their respective CEOs,George Zoley and Damon Hininger, each earned well in excess of $3m in 2010. Although there have been some concerns that any relaxation of sentencing or drug laws might negatively impact their bottom line (profit), they remain confident in their ability to drum up new ways of generating their taxpayer-funded commodities (also known as inmates): lobbying California for their excess prisoners being one; caging juveniles on trivial charges another. But the favorite, by a long shot, is the accelerated drive to lock up America's immigrants.

So far, these strategies seem to be working nicely. In their 2011 third-quarter earnings report, the GEO group proudly announced an increase in profits from the previous year. This joyous news can be at least partially attributed to changes in immigration law, particularly in states like Arizona and Oklahoma, which allow for, among other things, the indefinite detention of illegal immigrants, including those whose asylum proceedings are underway. The majority of immigrants who are picked up by law enforcement officials, mostly on civil charges, like being caught with a broken tail light for instance, will end up in privately run prisons. In many of these facilities, they will be charged $5 per minute to call their loved ones, whilst earning $1 per day for their labor, from which the corporation running the facility will profit.

Kenneth Clarke to 'wipe slate clean' for hundreds of thousands of ex-offenders

Alan Travis and Owen Bowcot | | 2 February 2012

Justice secretary wants to dramatically reduce the length of time ex-offenders must declare their convictions

The reform of the 1974 Rehabilitation of Offenders Act will see the period of time under which the convictions of medium-term prisoners will be 'spent' reduced from 10 years to four. Photograph: Mark Harvey/Alamy

The justice secretary, Kenneth Clarke, is to "wipe the slate clean" for hundreds of thousands of offenders by dramatically shortening the period during which they are obliged to tell potential employers about their criminal past.

The radical reform of the 1974 Rehabilitation of Offenders Act will see the time after which the convictions of medium-term prisoners are "spent" reduced from 10 years to four.

The convictions of short-term prisoners, serving sentences up to six months, will be spent after two years instead of the current seven.

The proposed reform will also cover hundreds of thousands of people who have recently been fined or ordered to serve community sentences. They will no longer have to declare their criminal record after one year instead of the current five.

The changes will raise the threshold for prison sentences that are never spent from two and half years to four, on the basis that sentence lengths are much longer now than when the period was fixed in 1974.

One factor that will limit the impact of the changes is that the period after which a conviction is spent will be counted from the day an offender completes their sentence rather than, as currently, from the date of their conviction. In the case of someone serving a prison term of two and a half years, this means it will become spent after six and a half years, rather than 10.

Thursday, February 16, 2012

Understanding kinship: indigenous people and law - 13 March 2012

University of Sydney | Sydney Law School Events

Register online

To register and make your secure online payment, please click here_

Please note: places are strictly limited and filling fast.


About the event

Join the Institute of Criminology for Lynette Riley's 'Kinship' presentation. Lynette Riley, Academic Coordinator of the Koori Centre, University of Sydney, will take participants through a kinship system demonstrating the components of moiety, totem, skin names, language and traditional affiliations, and individual identity. Through Lynette's presentation participants will begin to see why Aboriginal people face particular problems when interacting with the mainstream Australian legal system.

The Law Reform Commission of Western Australia Report Aboriginal Customary Laws (Final Report, The interaction of WA law with Aboriginal law and culture, Project 94, September 2006, p. 66) highlighted the importance of Kinship to Aboriginal people:
"Kinship is at the heart of Aboriginal society and underpins the customary law rules and norms... Importantly, kinship governs all aspects of a person's social behaviour...
It is important to note...that while the kinship system was an undeniable part of traditional Aboriginal is also strongly instilled in contemporary Aboriginal society, including urban Aboriginals...certain kinship obligations, such as the duty to accommodate kin, are taken very seriously regardless of urban or remote location."

Although the kinship systems throughout Australia are extremely varied and it is not possible in this forum to examine the differences between them, participants in the workshop will gain a new and deeper understanding of how a kinship system operates.

By the end of the workshop participants will have gained insight into:
  • The social structure of Aboriginal society
  • How this social structure and world view differs from the western liberal world view
  • How this difference impacts upon Aboriginal people in the Criminal Justice System and the legal system more broadly
This workshop will be of interest to:
  • Legal practitioners in Criminal Law, Family Law and Care and Protection, intellectual property, Native Title, and any areas that involve Indigenous Australians.
  • Government personnel who interact with Indigenous Australians (especially DOCS, Juvenile Justice and Corrective services)
  • The Magistracy and Judiciary
  • Police
  • Students
The workshop will be facilitated by Tanya Mitchell, Lecturer in Criminal Law and Indigenous People and the Law at Sydney Law School. Tanya was a senior solicitor-advocate with the Aboriginal Legal Service in NSW and also with the North Australian Aboriginal Justice Agency in the Northern Territory before joining Sydney Law School as a full-time academic in 2010.

Numbers are limited to 80 so be sure to register early.

Group discounts are available. Please contact the Institute of Criminology for details.

Light refreshments provided.

Lawyers/barristers: attendance at thisworkshop is equal to 2 MCLE/CPD units. For a full program of current MCLE/CPD eligible events, please click here.

Time: 6-8pm (registration from 5.30pm)

Location: Sydney Law School, New Law Building, Eastern Ave, University of Sydney

Cost: Full fee $27.50; SLS Alumni $22; F/T students $16.50 (all inc GST)

Contact: Event Coordinator

Phone: 9351 0238


Despair grips the children of the Dreaming

Russell Skelton | The Age | February 11, 2012

IT WAS a seemingly routine day in a thriving Arnhem Land township located on a bay facing the sparkling Arafura Sea. Northern Territory MP Marion Scrymgour had flown to the unnamed Aboriginal and islander community of 2000 to meet constituents, listen to grievances, and relay them to the powers that be in Darwin. ''I was walking from the council office to the health clinic when I saw all these people running, screaming and calling out.''

She stopped a panicked passer-by to ask what had happened and was answered by a swift gesture: a hand passing across the neck. ''It did not dawn on me at first what that gesture meant. Then somebody from the clinic said a girl had hanged herself. When I heard that she was 11, I thought, what is happening to our people and families? What is it that leads a young person to give up all hope and see no alternative in life but to leave?''

Flown by air ambulance to Darwin, the girl died in hospital after life support was turned off.

The circumstances of her death remain a mystery for most. Police requested that details not be publicised and the Coroner is yet to publish a finding - he may never do so, because not all suicides in the territory are subject to coronial investigation. Police reports are often accepted at face value and passed onto grieving families.

Scrymgour, who says she was told that the girl's desperate final act had had something to do with bullying, believes there is an urgent need for much more research into the territory's horrendous number of indigenous suicides. ''There had been a lot of bullying at school, but there is nothing cultural about a kid being bullied. That is an issue that can and should be dealt with.''

The shocking fact remains that more young girls are killing themselves than ever before in the Northern Territory. It is almost impossible to put an accurate figure on the precise number suiciding because of a time lag in reporting the deaths, but no one disputes figures complied in the NT Child Death and Prevention Committee annual report, showing that territory Aboriginal children are 3.5 times more likely to die during childhood than non-Aboriginal children.

Is That All You Got? How the proponents of a gay marriage ban just ran out of arguments.

Dahlia Lithwick | Slate | February 9, 2012 

One of the most remarked-upon aspects of the first round of Prop 8 litigation, that concluded this week with a 2-1 defeat for the initiative at the 9th Circuit Court of Appeals, was the weakness of the case against gay marriage. As Andrew Cohen explained at the time, at every turn Judge Vaughn Walker, who presided over the trial, expressed frustration at the fact that the opponents of gay marriage either had no case or couldn’t be bothered to make one. Arguing for the gay marriage ban, seasoned attorney Charles Cooper called only two witnesses (the plaintiffs called 17), one of whom was not deemed qualified to testify as an expert. As Cooper finally explained in his closing argument, "Your honor, you don't have to have evidence for this. … You only need to go back to your chambers and pull down any dictionary or book that defines marriage," Cooper told the judge. "You won't find it had anything to do with homosexuality."

This defense satisfied almost no one. Ted Olson, the plaintiff’s attorney, was absolutely flummoxed by Cooper’s claim that he had no burden to do anything beside assert the immutability of traditional marriage. In his closing argument, a perplexed Olson replied, “You can't take away the rights of tens of thousands of persons and come in here and say 'I don't know' and 'I don't have to prove anything.' ” An equally maddened Judge Walker agreed, railing in his opinion about how the Prop 8 proponents had failed to produce promised evidence and testimony. Even conservative groups wrung their hands, questioning whether Prop 8 had been “adequately defended” at the hearing. Then again, perhaps punting on Prop 8 was a strategic decision. Doing so allowed the supporters of Prop 8 to argue that the fix was in. Judge Walker, who is gay, and the Hollywood appeals court would never have given them a fair shake in the first place.

Or, perhaps, there was another explanation. Perhaps, as many speculated at the time, it reflected the deeper reality that there was no factual or empirical case to be made: The evidence, the data, and the experts overwhelming agree that gay marriage does not harm children. And that leaves opponents of gay marriage to argue a tautology: Gay marriage is wrong because it’s wrong.

Monday, February 13, 2012

Malabar police station named Aboriginal land in LEC

Vanessa Watson | The Southern Courier | 27 January 2012

The former Malabar Police Station at 1234 Anzac Pde is now Aboriginal land after the Land and Environment Court upheld the La Perouse Local Aboriginal Land Council. Photo: Alex Wisser.

MALABAR Police Station is now Aboriginal land and police must vacate within 60 days after the Land and Environment Court upheld an appeal against an earlier decision to knock back a land claim on the site by the La Perouse Local Aboriginal Land Council.

Following Justice T.W. Sheahan’s decision in the Land and Environment Court, the former Malabar police station at 1234 Azac Pde is now “claimable Crown land” under the Aboriginal Land Rights Act of 1983.

La Perouse Local Aboriginal Land Council CEO Chris Ingrey told the Courier the building’s future use would be determined by the council’s board and members.

“Some of the board members that I’ve been in contact with are quite excited about the outcome,” Mr Ingrey said.

“This legislation is the only form of compensation for the dispossession of land.”

Former police minister, Maroubra MP Michael Daley, called on Premier Barry O’Farrell to appeal the court’s decision and to “honour the Liberal Party’s commitment to a continuing police station at Malabar”.

“In the state election in March last year, the Liberal candidate for Maroubra promised that a Liberal Government would open a fully functioning police station at Malabar,” Mr Daley said.

Mr Daley said he was “very disappointed” by the decision and that the court had “rejected evidence from local police that police were still using the station”.

“That’s why, as police minister, I spent $300,000 upgrading the station, so it could continue to be used by police in our local area.”

Eastern Beaches Police commander Superintendent Gavin Dengate, who provided evidence during the proceedings, said the decision meant the local area command could have a reduced capacity for conducting operations.

“From a local area command perspective, having a reduced capacity to conduct operations is disappointing,” Supt Dengate said.

“It certainly doesn’t mean the La Perouse Aboriginal Land Council can’t do something in support of local police.”

During the proceedings, the court rejected the police minister’s earlier refusal against the land claim on the grounds the building was “lawfully used and occupied” for the purposes of policing.

Under the Aboriginal Land Rights Act, Aboriginal land councils in NSW are able to claim unused Crown land on behalf of their members as compensation for their historical dispossession.

Under the Act, “claimable Crown lands” can mean land not lawfully used or occupied, or lands that are not needed, nor likely to be needed, for an essential public purpose.

Trial By Media: The Justice System No One Wants You to Know About

William Fisher | Truthout, News Analysis | 25 December 2011

Remember Mike Nifong? Sure. He's the sleazebag former district attorney in the Duke University lacrosse team's rape scandal back in 2006. He made himself a short-lived hero by agreeing to prosecute members of the Duke Lacrosse team for allegedly raping an African-American exotic dancer the team had hired for a party.

But Nifong, hellbent on winning re-election, forgot that he was an officer of the court. He went public with a series of accusations that later turned out to be untrue; he exaggerated and intensified racial tensions; he unduly influenced the Durham police investigation; he tried to manipulate potential witnesses; he refused to hear exculpatory evidence prior to indictment - that regulations on the conduct of an identification exercise were breached by failure to include "dummy" photographs, that he had never spoken directly to the alleged victim about the accusations and that he made misleadingly incomplete presentations of various aspects of the evidence in the case (including DNA results).

He was dismissed from his job and later disbarred.

Or how about federal prosecutor William Welch, and his deputy chief, Brenda Morris, who convicted the late Sen. Ted Stevens - and helped their own cause by withholding evidence from the defense that could have helped the defendant.

Or there's Richard Convertino, the lead prosecutor in the so-called Detroit Sleeper Cell terrorism case. He was removed from the case on suspicion that he allegedly failed to turn over photographic evidence to the defense.

These acts and alleged acts by prosecutors all qualify as prosecutorial misconduct. There are hundreds of such cases in our justice system every year. Very few of them ever get such high visibility. In fact, most abuses of this kind probably go unnoticed and unreported. In the three cases referenced above, only Nifong lost his law license. The others did not.

But, since 9/11, there has been another kind of misconduct growing. It usually takes place outside the courtroom and is a favorite of politicians of both parties, especially if they are running for re-election.

This is the phenomenon of politicians and others with private agendas calling press conferences to launch inflammatory - and usually false or grossly exaggerated - claims about the importance of a given case to the national security of the United States.

Tough laws on people smuggling are a con

Michael Duffy | SMH | February 13, 2012

Occasionally I spend a day wandering from trial to trial in the Downing Centre, Sydney's giant justice factory. It's one way of keeping in touch with certain aspects of the city. A while ago I began to notice small dark men in the dock, always with an interpreter.

These are the crew from the Indonesian boats that carry asylum seekers to our shores, charged with people smuggling and farmed out by the Commonwealth to the states for justice. There are lots of them: as of last September, almost 200 had been convicted and another 251 were due before the courts.

The trials generally follow the same pattern: a naval and a federal police officer are flown down from north Australia to give evidence, followed by half a dozen passengers from the boat, who are brought from some distant detention centre to confirm that the accused was in fact responsible for sailing the vessel. The evidence can be interesting when the passengers describe their journey from home in some detail.

If you attend one of these trials, which are open to anyone, you will notice a strange thing. Although our leaders have long assured us the crew of these boats are vile people smugglers preying on human misery, in fact they often seem to come from far more wretched circumstances than their passengers.

These are frequently well educated people such as engineers who, despite the problems that made them leave home, were wealthy enough to raise something like $10,000 for the passage of each member of their families. And most of them have a future in Australia. The fishermen, in contrast, are the poorest of the Indonesian poor - as their appearance indicates, they come from the fringes of the Javanese empire.

Bombastic voices aiming to shout down the Attorney-General

Richard Ackland | SMH | February 10, 2012

"There is a misguided perception that the legal community is soft on crime and out of touch with community expectations" ... Chief Justice of NSW Tom Bathurst. Photo: Wolter Peeters

The Chief Justice of NSW, Tom Bathurst, issued the annual rallying cry to lawyers at Parliament House's new law term banquet. That was on the night of January 30. Part of his speech was about the crisis of confidence faced by the criminal justice system.

''Community trust in the system is eroding. Much of this distrust is fuelled by misinformation that is propagated by sections of the media who prefer to inflame rather than inform … There is a misguided perception that the legal community is soft on crime and out of touch with community expectations.''

The next available issue of The Daily Telegraph promptly splashed on page one with a fine piece of confected inflammation: ''Exclusive: Gays, minorities get bail but the rest … Go Straight to Jail.''
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Accompanying the exclusive was a little graphic of the NSW Attorney-General, Greg Smith, in pink, captioned: ''Marshmallow man: Greg Smith.'' By asking the NSW Law Reform Commission to review the Bail Act, the Attorney-General seems to have confirmed in many minds that he is a big, fat, pink softie who presumably will melt when heat is applied.

The fact that the Attorney-General hasn't yet received the report of the commission, or considered any proposals for reform, or put them to cabinet is beside the point.

Thursday, February 9, 2012

Alan Jones interviews Greg Smith

Alan Jones | 2GB Radio | 31 January 2012

Listen to interview between Alan Jones and Greg Smith here, regarding the bail review and other matters.

Unlike his 2GB morning counterpart, Jones seems prepared to give Smith a fair hearing on his proposed criminal justice reforms.

Small fish in rough seas

Michael Gordon | The Age | February 8, 2012

Greens senator Sarah Hanson-Young wants to stop hundreds of so-called Indonesian people smugglers from serving mandatory five-year terms in Australian jails. As Michael Gordon reports, the treatment of small-time players has big consequences.

Budi was waiting for a bus in Jakarta when he says a stranger made him an offer that was too good to refuse - 10 million rupiah (about $A1000) to crew a boat that would take a group of people to an unnamed island.

He was 19 years old, uneducated and a long way from his home on the Indonesian island of Ambon. Another man at the bus stop was offered the same deal and, like Budi, agreed without a second's hesitation. The only catch, they were told, was that they wouldn't get paid until they came back with the boat.

What neither of them understood was that there was never any chance that the boat would make the return journey, or that they would receive the payment. What neither could envisage, or even vaguely comprehend, was that they would wind up in an Australian jail facing a serious criminal charge with a mandatory five-year jail term.

Budi, not his real name, is an accidental people smuggler, if you accept that cooking noodles and keeping the engine going on an unseaworthy fishing boat for a group of desperate asylum seekers constitutes people smuggling. He is one of about 500 Indonesians in the Australian criminal justice system who share a common bond.

Almost all of them, according to what they have told lawyers, Indonesian officials and Australian Federal Police, are peripheral players in what, for a few Mr Bigs (who never accompany their human cargo to its final destination), is a lucrative business.

It is a sad reflection of the toxic debate between Labor and the Coalition on asylum seekers that one of the few areas of common ground is their support for legislation that denies judges any discretion in sentencing those who crew boats that carry asylum seekers to this country.

Under amendments passed by the Rudd government with Coalition support, so long as there are more than five people on the boat, crew members are charged with aggravated people smuggling and, if found guilty, sentenced to a mandatory term of five years in jail, with a minimum of three.

Today, Greens senator Sarah Hanson-Young will challenge the consensus of the major parties by introducing a private member's bill to remove mandatory minimum sentences for people-smuggling offences, and enable the courts to distinguish between the architects of the trade and the incidental players.

While Hanson-Young's Migration Amendment (Removal of Mandatory Minimum Penalties) Bill would appear doomed, it will prod the conscience of MPs on both sides of the Parliament who agree with human rights advocates and judges that the mandatory jail terms for those who crew asylum seeker boats are problematic, to say the least, on several fronts.

Labor fuzzy to the core

Mark Latham | AFR | 9 February 2012

Recently The Australian newspaper has had a lot of fun with Labor’s fuzzy embrace of the concept of social inclusion. In particular, it has highlighted the haplessness of the new Minister for Social Inclusion, Mark Butler. When asked what the concept meant, Butler fell back on the clich√© of “social inclusion meaning different things to different people”.

When pressed for greater detail, the best he could say was: “Social inclusion is about government delivering services and supports to people experiencing social exclusion in different ways.”

Behind the Monty Pythonesque humour of a minister defining social inclusion as the opposite of social exclusion, rests a sad political truth.

Labour-leaning parties no longer have anything worthwhile to contribute to the egalitarianism of society. The class war has ended. People who grew up working class now aspire to the ownership of capital. After two decades of robust economic growth, Australia has entered an age of affluence and social mobility.

The losers left behind in this process, however, are forever falling further behind. They are part of an entrenched underclass, just 5 per cent of the population – easily ignored by the political system. The Liberal Party assumes they vote Labor, while the ALP takes them for granted. Their closest contact with Labor politicians is through ethnic branch-stacking.

In no part of the Western world have left-of-centre parties found a solution to the problems of the underclass. Their fallback position has been to establish publicly funded committees such as social inclusion boards, thereby giving the appearance of caring about the disadvantaged, while in practice achieving very little. This is the modern version of the warm inner glow.

NSW poised to revamp bail laws

Waleed Aly | ABC RN Drive | 7 February 2012

Listen to interview here 

The bail laws in NSW are the toughest in the country. The state's bail act has been amended no less than 32 times since it was introduced in 1978 and as it stands now, there is effectively a presumption against bail for many offences.

Now the State Coalition Government is seriously looking at softening these laws. An issue that has been of particular concern for some time is growing numbers of young people who are being denied bail and held in jail, only to stand trial and find out they have no sentence to serve.

The man charged with weighing up possible amendments to the Bail Act is the NSW Attorney General Greg Smith and he spoke with Waleed Aly.

Prison plan always on the cards

Heath Aston | SMH | January 29, 2012

BEFORE entering politics, Greg Smith spent a career in the courtroom as a Crown prosecutor. So he knows a thing or two about how words can be twisted to suit a purpose.

But even he must have been surprised by the tenuousness of the recent attacks on him for supposedly going soft on crime. The NSW Attorney-General was in the sights of the tabloid press and talkback radio last week for asking the Law Reform Commission to find ways to reduce the headcount in prisons.

Any move to alter the Crimes Act and increase non-custodial sentences is obviously one of extreme public interest and should be debated thoroughly. But the story quickly evolved into how Smith had been a tough talker in opposition only to turn into a big softie in government. Quotes were dug out that seemed to portray the Attorney-General as having been an old-school ''lock-'em-up'' conservative while in opposition.

The truth is basically the opposite.

Take the very first line of a story I wrote in July 2010: ''A Coalition state government would slash the NSW prison population by a fifth by taking prisoners with mental-health problems out of the criminal justice system and reducing sentences for a range of 'less serious' crimes.

''Shadow attorney-general Greg Smith said he was planning to reduce the headcount inside NSW jails, which is set to push past 11,000 …

''The Coalition's reformist agenda, which would reduce sentences for minor drug offences, minor assaults, theft and fraud, is part of a calculated gamble to prevent the election in March descending into the traditional law-and-order auction for who can crack down hardest on crime.''

There were numerous other articles that covered Smith's desire to reduce the number of graduates from the ''universities of crime'' he considers adult jails to be.

Tuesday, February 7, 2012

Our Dangerous Devotion to Eyewitness Testimony

Patricia J. Williams | The Nation | February 6, 2012

The eyes of Troy Anthony Davis as he entered a courtroom on January 16, 1991. (AP Photo/Savannah Morning News)

“We see what we want to see,” my grandmother used to say. This insight visited me recently after I ran across the mall chasing a woman I thought was my cousin. It wasn’t, as it turned out, but I didn’t realize that until after I had puffed up behind her, bopped her amiably on the shoulder and cried out, “Boo!”

How was it possible, I thought in retrospective embarrassment, to so wrongly misidentify someone I know so well? Empirically my experience was all too common. I’d been thinking about my cousin a few moments before and saw the woman through the lens of those thoughts. We often project our life’s associations onto the faces of strangers. Constantly—if mostly unconsciously—we familiarize them with learned stereotypes. If we are wise, we learn to take caution with our assumptions. We recognize this innate fallibility, and most of the time it doesn’t matter very much.

Oddly enough, however, we reverse that supposition in the one context where fallibility matters most: in criminal cases, eyewitness testimony is viewed as the ne plus ultra for the prosecution, despite a century’s worth of psychological and sociological studies revealing that, from Sacco and Vanzetti to Troy Davis, witnesses misperceive a startling percentage of the time. “Human beings are not very good at identifying people they saw only once for a relatively short period of time,” writes Cornell law professor Michael Dorf. “The studies reveal error rates of as high as fifty percent—a frightening statistic given that many convictions may be based largely or solely on such testimony. These studies show further that the ability to identify a stranger is diminished by stress (and what crime situation is not intensely stressful?), that cross-racial identifications are especially unreliable, and that contrary to what one might think, those witnesses who claim to be ‘certain’ of their identifications are no better at it than everyone else, just more confident.”

Hardline A-G hits back at his critics

Anna Patty | SMH | February 3, 2012

It didn't take long for the vitriol over the state government's approach to law and order to start.

Ten months after the NSW election, the opposition and tabloid media have been dishing it out to the Attorney-General, Greg Smith, accusing him of being soft on crime.

One radio talk-back host recently accused Smith of being a step away from the Greens, saying he had failed to earn his stripes as a conservative Attorney-General.

When it comes to the rehabilitation of non-violent offenders, Smith would agree.

He says he is "more left-wing on issues like dealing with prisoners and rehabilitation than any other Attorney-General in the country".

But Smith, reputed as a tough public prosecutor when he worked for the DPP - having put away murderers including those who killed policeman David Carty - is hardline when it comes to serious violence.

In response to a recent spate of drive-by shootings in Sydney's south-west, the opposition and some commentators have confused the distinction Smith has made between his different approaches to sentencing and rehabilitation.

He believes in non-custodial sentences for less serious offenders and rehabilitation for people with drug and alcohol addiction or mental health problems.

When it comes to people guilty of serious violent crime, including the "buffoons" responsible for the shootings, repeat offenders and those guilty of child sex offences, Smith wants to toughen punishments.

Smith recently asked the Supreme Court to look at how judgments against people convicted of sex offences against children could be strengthened.

Youth bail laws to be eased in NSW

Imre Salusinsky | The Australian | February 7, 2012 

BAIL laws in NSW will be reformed in a push by the state government to reduce the number of young people in jail.

NSW Attorney-General Greg Smith has confirmed to The Australian the changes are likely to include exempting accused juveniles from tough provisions introduced to the bail act in 2007, which limited the right of accused offenders to make repeated applications for bail once an initial bid was refused.

At about 400, the number of juveniles in detention in NSW is the highest in the country.

About half are on remand -- a proportion that spiked following the new provisions.

"Once they get into detention, their prospects of returning to a normal life are diminished," Mr Smith said said of accused offenders aged under 18.

"There are currently more juveniles on remand than are serving detention. They're being exposed to more serious young criminals while they are there."

He said the 2007 changes "did seem to impact in a more prejudicial way on juveniles than it did on adult prisoners".

Sunday, February 5, 2012

The Caging of America: Why do we lock up so many people?

 Adam Gopnik | The New Yorker | January 30, 2012

A prison is a trap for catching time. Good reporting appears often about the inner life of the American prison, but the catch is that American prison life is mostly undramatic—the reported stories fail to grab us, because, for the most part, nothing happens. One day in the life of Ivan Denisovich is all you need to know about Ivan Denisovich, because the idea that anyone could live for a minute in such circumstances seems impossible; one day in the life of an American prison means much less, because the force of it is that one day typically stretches out for decades. It isn’t the horror of the time at hand but the unimaginable sameness of the time ahead that makes prisons unendurable for their inmates. The inmates on death row in Texas are called men in “timeless time,” because they alone aren’t serving time: they aren’t waiting out five years or a decade or a lifetime. The basic reality of American prisons is not that of the lock and key but that of the lock and clock.

That’s why no one who has been inside a prison, if only for a day, can ever forget the feeling. Time stops. A note of attenuated panic, of watchful paranoia—anxiety and boredom and fear mixed into a kind of enveloping fog, covering the guards as much as the guarded. “Sometimes I think this whole world is one big prison yard, / Some of us are prisoners, some of us are guards,” Dylan sings, and while it isn’t strictly true—just ask the prisoners—it contains a truth: the guards are doing time, too. As a smart man once wrote after being locked up, the thing about jail is that there are bars on the windows and they won’t let you out. This simple truth governs all the others. What prisoners try to convey to the free is how the presence of time as something being done to you, instead of something you do things with, alters the mind at every moment. For American prisoners, huge numbers of whom are serving sentences much longer than those given for similar crimes anywhere else in the civilized world—Texas alone has sentenced more than four hundred teen-agers to life imprisonment—time becomes in every sense this thing you serve.

For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.

The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. Ours is, bottom to top, a “carceral state,” in the flat verdict of Conrad Black, the former conservative press lord and newly minted reformer, who right now finds himself imprisoned in Florida, thereby adding a new twist to an old joke: A conservative is a liberal who’s been mugged; a liberal is a conservative who’s been indicted; and a passionate prison reformer is a conservative who’s in one.

The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.) Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an unco√∂perative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized. Though we avoid looking directly at prisons, they seep obliquely into our fashions and manners. Wealthy white teen-agers in baggy jeans and laceless shoes and multiple tattoos show, unconsciously, the reality of incarceration that acts as a hidden foundation for the country.

How did we get here? How is it that our civilization, which rejects hanging and flogging and disembowelling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction? There’s a fairly large recent scholarly literature on the history and sociology of crime and punishment, and it tends to trace the American zeal for punishment back to the nineteenth century, apportioning blame in two directions. There’s an essentially Northern explanation, focussing on the inheritance of the notorious Eastern State Penitentiary, in Philadelphia, and its “reformist” tradition; and a Southern explanation, which sees the prison system as essentially a slave plantation continued by other means. Robert Perkinson, the author of the Southern revisionist tract “Texas Tough: The Rise of America’s Prison Empire,” traces two ancestral lines, “from the North, the birthplace of rehabilitative penology, to the South, the fountainhead of subjugationist discipline.” In other words, there’s the scientific taste for reducing men to numbers and the slave owners’ urge to reduce blacks to brutes.

Rare but Grudging Judicial About-Face in Bias Case

Adam Liptak | The New York Times | December 26, 2011

Mr. Clemon, who stepped down from the bench in 2009 after three decades of service, was talking about an extraordinary about-face this month from the federal appeals court in Atlanta. He was home with a cold, but he sounded delighted to have played a part in persuading the court that some words still carry the sting of oppression, even in the modern South.

“The court now understands,” Mr. Clemon said, “the unwillingness of black men to go back to being called ‘boy.’ ”

Last year, the United States Court of Appeals for the 11th Circuit ruled that there were no racial overtones when a white manager at a Tyson chicken plant in Gadsden, Ala., called adult black men working there “boy.”

“The usages were conversational” and “nonracial in context,” the majority wrote in a 2-to-1 decision that overturned a jury verdict of about $1.4 million in an employment discrimination case brought by a black Tyson employee, John Hithon.

The decision prompted Mr. Clemon and 10 other civil rights leaders to file a brief. Among the signatories were giants of the civil rights movement like the Rev. Fred L. Shuttlesworth, who survived beatings and bombings in Alabama and who died in October, and Andrew Young, a former mayor of Atlanta and ambassador to the United Nations.

The brief urged the court to reconsider, making the case that “boy” retains its venom. For evidence, the brief drew on personal experiences, history, literary classics like “To Kill a Mockingbird” and “Native Son,” and the writings of the Rev. Dr. Martin Luther King Jr.

“Boy,” the brief said, is either a proxy for or “at the very least a close cousin” of the most charged racial epithet.

On Dec. 16, more than a year after the initial decision, the appeals court reversed course. The new ruling was opaque and grudging, but Mr. Clemon said he welcomed it, particularly since it is very unusual for a federal appeals court panel simply to change its mind. “I don’t recall it ever happening,” said Mr. Clemon, who graduated from law school in 1968.

Judge Edward E. Carnes wrote the new decision, now for a unanimous panel. He said the court had reconsidered the evidence in the case and “we now reach a different conclusion.”

Crime and punishment

Jack the Insider Blog | The Australian | 31 January 2012 

Recently, the Australian Bureau of Statistics published the figures for Australia’s corrective services systems and those who exist within it. The figures provide a starting point for reflection on the nature of crime in Australia and how it can be diminished.

There are some startling statistics.

The Northern Territory has a higher incarceration rate than the US (762 prisoners per 100,000 adult population compared to 504/100,000). US incarceration rates vary wildly from state to state, with Maine at 154/100,000 - lower than the Australian national average - while Louisiana stands at the top of the table, making light work of the Top End with 853 per 100,000.

The OECD average is 140/100,000. Across Australia in 2011 we incarcerated people at a rate of 167/100,000.

Prison populations have come down across the nation by two per cent since 2007. This is due largely to a decline in NSW (which contributes both a third of the nation’s population and now an even third of the nation’s prisoners) by eight per cent but this comes after a sharp increase in incarceration rates in NSW between 1995 and 2004.

In the NT, prison populations have increased by 46 per cent and in Tasmania by 32 per cent over the past decade. Queensland accounts for 19 per cent of all Australian prisoners, while the most densely populated state in the Commonwealth, Victoria, has just 14 per cent.

Overall there are 29,106 prisoners behind bars, sentenced and unsentenced. Unsentenced prisoners make up almost a quarter of the total. On average more than half of the nation’s prisoners have had a stretch in prison at least once before.

The average custodial sentence in Australia is three years.

But looking at incarceration rates is really only scraping the surface of crime.

It is estimated that reporting of crime runs at about 40 per cent of all crime committed. 32 per cent will be recorded by the police, just seven per cent of offenders will be detected, four per cent will be convicted and 0.1 per cent will go to jail.

The first and most obvious response is if our governments make more draconian laws, reduce bail applications and legislate mandatory sentences to the effect of say, doubling the prison population in quick time, there will still be 99 per cent of the crime occurring.

Well perhaps not, as those who do get caught often may have been getting away with quite a bit of unreported crime for some time. Nevertheless, the overall trend indicates that longer sentences may satisfy our desires to punish but achieve little else than create a longer list of individuals who, due to the criminogenic effects of prison, will almost invariably reoffend and make further contributions to crime statistics than would otherwise be the case.

The cost of crime in Australia is almost unfathomable. Yet it is the job of criminologists to make an attempt and most estimates put the cost at between $35 and $45 billion a year based on criteria such as direct financial loss, medical costs, lost productive capacity and assorted intangibles including the emotional costs to victims and families. For example the cost of one homicide is estimated at $1.8 million when the victim is aged between 18 and 34.

The direct cost of incarceration runs to about $80 per Australian man, woman and child or $1.6 billion a year.

Then there’s the cost of state policing - $3.2bn a year across the nation; the Commonwealth agencies from the AFP, the Commonwealth DPP, the Australian Crime Commission, the Attorney General’s office etc. cost $820 million. $350m is spent on Juvenile Justice and the courts themselves cost $410m to oversee it all.

The issue of crime prevention is complex and a whole-of-society problem.

William Stuntz, a Harvard law Professor, evangelical Christian and author of The Collapse of American Criminal Justice devoted his life to ending discrimination within the US legal system. He died of cancer in 2011.

Stuntz identified plea bargaining as a scourge and one of the primary causes of the unravelling of the criminal justice system in the US.

It is a scourge that has beset our legal system, too.

In general plea bargaining will see an offender plead guilty to a lesser charge. There is no trial. Unlike the US system, there is no direct bargaining on sentencing in Australia but offenders will appreciate the sentencing scale when they put their hands up.

The statistics on plea bargaining across Australia’s state jurisdictions are difficult to obtain given the clandestine nature in which the bargaining is conducted but approximately 70 per cent of offences in our higher courts are resolved in this manner.

This is an unsatisfactory means of dispensing justice – unacceptable for victims and often likewise for offenders who are represented by overworked and under-resourced public defenders.

Plea bargaining has become rife in our court system to reduce costs. The cost of a trial in the District or County Courts is $10,000 per day and that does not include the cost of defence.

So, there must be a realisation that more money will need to be spent, at least in the short term to ensure that as many, if not all serious offences go to trial to allow a jury to determine guilt or innocence based on the evidence and the legal principle of reasonable doubt.

But according to Stutz, it is not just a trial but the manner in which it is conducted that can make the difference. If an offence occurs in, say, the Blue Mountains region of NSW, then the trial should be conducted there and the jury taken from a pool of residents from the local area.

The rationale is that the regionalisation of juries will provide greater insight and understanding of the peculiarities of the offence and the context in which it may have been committed as opposed to a jury selected from anywhere around the state who have no local knowledge, no real empathy for the victim and may come to the courtroom with certain prejudices obtained from tabloid media.

Stuntz’s thoughtful recommendations would not create a perfect system but may well create a system that is less imperfect than the one in place at the moment.

Certainly, it will lead to better outcomes for victims and while it will be more expensive the hope is that in time, the better dispensation of justice itself will reduce the incidence of crime overall.

It is just one measure available to our legislators who too often run a tough on crime agenda that offers no benefit to our communities and merely amplifies the problem.