The Sunday Telegraph | November 25 2012
ATTORNEY General Greg Smith will stick to his plans to reform bail laws despite police opposition, saying only those likely to abscond, re-offend or hurt someone will be put in jail and the rest will walk free.
Mr Smith believes bail laws are too complex and so tough they "almost made bail an alternative form of imprisonment". Critics fear changes will give criminals a "get out of jail free" card.
In June, the Law Reform Commission suggested presumptions for or against bail depending on offence should be scrapped and the accused should be released unless they are a risk of absconding, reoffending or harming someone.
It was concerned that too many people, particularly young and indigenous, are in jail even though they have not been convicted of a crime.
Mr Smith told The Sunday Telegraph that the government's response to the review, expected this week, would be "sympathetic" to the report.
"That will be the test. If the court is satisfied that any of those things might happen, they will be bail refused. Otherwise they will be bail granted.
"The act and the ultimate act will draw much from the learning that went into the review. It won't strictly stick to many of the recommendations but it will be sympathetic to some of the principles espoused in the review."
He said there would be announcements on specific presumptions, but would not be drawn further.
Police Commissioner Andrew Scipione is opposed to the changes, saying the current laws work well, as is the Police Association, which warns that watering down bail conditions would endanger the community.
Premier Barry O'Farrell has pledged cabinet would not weaken bail laws.
Smith denied suggestion colleagues have been hostile about the changes, saying they have given him "magnificent" support. "The report will be a reasoned report and it will be a unanimous view of the cabinet and the government."
But the Police Association warns that change to the bail laws would give criminals a get out of jail free card.
"Tough bail laws are pivotal to a safe community and we are hopeful that the government will not move towards weakening these protections which are designed to keep criminals behind bars, he said.
"The recommendations made by the Law Reform Commission would put the community at risk if they were implemented."
"Bail laws should help make our society safer. Any watering down of community protections by allowing persons accused of serious and violent crimes to be released on bail would be out of touch with community expectations."
The Law Society NSW supports reforms to the bail laws. "We were very pleased with the report," said President Justin Dowd.
Showing posts with label NSW Criminal Justice. Show all posts
Showing posts with label NSW Criminal Justice. Show all posts
Sunday, November 25, 2012
Tuesday, September 11, 2012
The Right to Silence Takes a Beating in NSW
Adam Fletcher | Castan Centre for Human Rights Law Blog | September 10, 2012
Earlier this month, the NSW Government announced that it is going to restrict criminal suspects’ right to silence to ‘tilt the scales of justice towards common sense.’ A Bill will be introduced by October to amend the Evidence Act 1995 (NSW) “to allow juries and the judiciary to draw an adverse inference against an alleged criminal who refuses to speak to investigating police, but later produces ‘evidence’ at trial in a bid to be found not guilty.”
The press release went on to say: “Attorney General Greg Smith said the right to silence was an important legal principle but it was too easily exploited…. The proposed change reflects reforms made in Britain and Wales in 1994, and will apply to serious indictable offences.”
However, there are at least two important differences between the criminal law system in Britain/Wales and that of NSW:
Apart from Singapore (which incidentally doesn’t provide similar guarantees of legal representation) and Ireland, Britain and Wales are the only other common law jurisdictions to have diluted the right to silence in this way (although changes are being contemplated in Scotland).
Perhaps the principal similarity is the political context – at least one person involved in the UK shift in 1994 claims that it was about politics and the police demonstrating they were ‘in charge’ of the criminal justice process, and went against the recommendations of experts.
According to the NSW Law Reform Commission, in the jurisdictions which have changed their legislation, courts and juries are “specifically permitted to draw strong adverse inferences from evidence that the accused person did not provide certain information to police when asked to do so.”
Is this really something we want for Australian law?
The privilege against self-incrimination was developed at common law hundreds of years ago, although its modern form (protecting the defendant before trial) is more recent. In simple terms, it evolved as a mechanism to prevent investigators from beating confessions out of people, rather than building a case by gathering evidence properly. To ensure the integrity of the right, courts and juries were also instructed not to hold it against a defendant if he or she refused to talk to the police. Cases in recent years have already watered down this ‘no adverse inference to be drawn’ rule a bit for serious crimes, while preserving the essence of the right.
Why would NSW propose to ‘tighten’ the law now? After a spate of serious gun crime in Sydney, the Police are arguing that alleged criminals are ‘obfuscating’ and exploiting the system, and that the right to silence is giving them the ‘tactical upper hand.’ Needless to say, it does not look good for ‘crims’ to have such an advantage, so it was determined that something must be done.
The right not to be compelled to confess a crime is a fundamental component of the right to a fair trial under article 14 of the International Covenant on Civil and Political Rights (ICCPR – see 14(3)(g) in particular). It is also a safeguard against torture and cruel, inhuman and degrading treatment (‘ill‑treatment’) or punishment (prohibited by article 7), which are commonly inflicted for the very purpose of eliciting admissions of guilt.
It is true that section 84 of the Evidence Act 1995 (NSW) makes evidence obtained by unsavoury means inadmissible, but there is also the question of the presumption of innocence (another long‑standing common law right which is reflected in article 14(2) of the ICCPR). This presumption means it is for the State to prove the guilt of a suspect, and to compel the suspect’s cooperation in this endeavour is to undermine the very notion of a fair trial.
The privilege against self-incrimination in article 14(3)(g) of the ICCPR is closely linked to the prohibition of ill-treatment and the presumption of innocence, which are fundamental rights. As such, any limitation on this privilege should be approached with abundant caution. In addition, the delicate balancing act required when limiting rights which go to the heart of our justice system is best undertaken by the courts, not the Executive. As I mentioned, there are Australian cases (including Parkes v R in 1976 and R v Alexander in 1994) which have already made carefully-considered modifications to the rule that silence under questioning may not be held against a suspect, which further weakens the rationale for statutory amendment.
In the UK, the Human Rights Act 1998 incorporates the fair trial guarantees in article 6 of the European Convention on Human Rights into domestic law, giving suspects an added measure of protection (in this case, guaranteed access to a lawyer). In NSW (as in most Australian jurisdictions), our equivalent international obligations (under article 14 of the ICCPR) have not been similarly incorporated into domestic law. This leaves Governments free to strip away important rights in response to the political pressures of the day (especially undesirable if they are ‘temporary aberrations’). Even with the guaranteed access to a lawyer in the UK, the UN Human Rights Committeeobserved in 2001:
Although the Committee appreciates the recent prohibition on drawing negative inferences from a suspect’s silence while his or her lawyer is absent, the Committee remains troubled by the principle that juries may draw negative inferences from the silence of accused persons.
The State party should reconsider, with a view to repealing it, this aspect of criminal procedure, in order to ensure compliance with the rights guaranteed under article 14 of the Covenant.
Professor David Dixon, now Dean of Law at UNSW, is an expert on law relating to policing and is against the proposed changes to the Evidence Act 1995. He notes that two Royal Commissions, in addition to plenty of academic research, recommended against the UK’s 1994 changes. The NSW Law Reform Commission published acomprehensive report on the right to silence in 2000 which supported his stance and specifically recommended against going down the same path as the UK. It noted there are already sensible exceptions in the case of drivers’ licences and alibis. Dixon also warns that, in light of UK and international jurisprudence, “if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.” Would the Government then provide free legal advice to all who are to be questioned by the Police…?
Others with extensive experience in the criminal justice system here in Australia also remind us that “[p]eople lie for all sorts of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state.” Its abrogation can effectively shift the burden of proof to the accused, who often struggle to explain their innocence.
In making it an offence to refuse to answer questions from agencies such as the various Crime Commissions and ASIO (not to mention restricting rather than increasing the involvement of lawyers), Australian Governments have already placed serious limitations on the privilege against self-incrimination. It is time to stand up to the erosion of this important human right.
Earlier this month, the NSW Government announced that it is going to restrict criminal suspects’ right to silence to ‘tilt the scales of justice towards common sense.’ A Bill will be introduced by October to amend the Evidence Act 1995 (NSW) “to allow juries and the judiciary to draw an adverse inference against an alleged criminal who refuses to speak to investigating police, but later produces ‘evidence’ at trial in a bid to be found not guilty.”
The press release went on to say: “Attorney General Greg Smith said the right to silence was an important legal principle but it was too easily exploited…. The proposed change reflects reforms made in Britain and Wales in 1994, and will apply to serious indictable offences.”
However, there are at least two important differences between the criminal law system in Britain/Wales and that of NSW:
- The former has the Human Rights Act 1998 which implements the European Convention on Human Rights and
- in England, Wales and Northern Ireland, the Government provides duty solicitorsat major police lock-ups to ensure procedure is followed and a suspect’s other rights are respected.
Apart from Singapore (which incidentally doesn’t provide similar guarantees of legal representation) and Ireland, Britain and Wales are the only other common law jurisdictions to have diluted the right to silence in this way (although changes are being contemplated in Scotland).
Perhaps the principal similarity is the political context – at least one person involved in the UK shift in 1994 claims that it was about politics and the police demonstrating they were ‘in charge’ of the criminal justice process, and went against the recommendations of experts.
According to the NSW Law Reform Commission, in the jurisdictions which have changed their legislation, courts and juries are “specifically permitted to draw strong adverse inferences from evidence that the accused person did not provide certain information to police when asked to do so.”
Is this really something we want for Australian law?
The privilege against self-incrimination was developed at common law hundreds of years ago, although its modern form (protecting the defendant before trial) is more recent. In simple terms, it evolved as a mechanism to prevent investigators from beating confessions out of people, rather than building a case by gathering evidence properly. To ensure the integrity of the right, courts and juries were also instructed not to hold it against a defendant if he or she refused to talk to the police. Cases in recent years have already watered down this ‘no adverse inference to be drawn’ rule a bit for serious crimes, while preserving the essence of the right.
Why would NSW propose to ‘tighten’ the law now? After a spate of serious gun crime in Sydney, the Police are arguing that alleged criminals are ‘obfuscating’ and exploiting the system, and that the right to silence is giving them the ‘tactical upper hand.’ Needless to say, it does not look good for ‘crims’ to have such an advantage, so it was determined that something must be done.
The right not to be compelled to confess a crime is a fundamental component of the right to a fair trial under article 14 of the International Covenant on Civil and Political Rights (ICCPR – see 14(3)(g) in particular). It is also a safeguard against torture and cruel, inhuman and degrading treatment (‘ill‑treatment’) or punishment (prohibited by article 7), which are commonly inflicted for the very purpose of eliciting admissions of guilt.
It is true that section 84 of the Evidence Act 1995 (NSW) makes evidence obtained by unsavoury means inadmissible, but there is also the question of the presumption of innocence (another long‑standing common law right which is reflected in article 14(2) of the ICCPR). This presumption means it is for the State to prove the guilt of a suspect, and to compel the suspect’s cooperation in this endeavour is to undermine the very notion of a fair trial.
The privilege against self-incrimination in article 14(3)(g) of the ICCPR is closely linked to the prohibition of ill-treatment and the presumption of innocence, which are fundamental rights. As such, any limitation on this privilege should be approached with abundant caution. In addition, the delicate balancing act required when limiting rights which go to the heart of our justice system is best undertaken by the courts, not the Executive. As I mentioned, there are Australian cases (including Parkes v R in 1976 and R v Alexander in 1994) which have already made carefully-considered modifications to the rule that silence under questioning may not be held against a suspect, which further weakens the rationale for statutory amendment.
In the UK, the Human Rights Act 1998 incorporates the fair trial guarantees in article 6 of the European Convention on Human Rights into domestic law, giving suspects an added measure of protection (in this case, guaranteed access to a lawyer). In NSW (as in most Australian jurisdictions), our equivalent international obligations (under article 14 of the ICCPR) have not been similarly incorporated into domestic law. This leaves Governments free to strip away important rights in response to the political pressures of the day (especially undesirable if they are ‘temporary aberrations’). Even with the guaranteed access to a lawyer in the UK, the UN Human Rights Committeeobserved in 2001:
Although the Committee appreciates the recent prohibition on drawing negative inferences from a suspect’s silence while his or her lawyer is absent, the Committee remains troubled by the principle that juries may draw negative inferences from the silence of accused persons.
The State party should reconsider, with a view to repealing it, this aspect of criminal procedure, in order to ensure compliance with the rights guaranteed under article 14 of the Covenant.
Professor David Dixon, now Dean of Law at UNSW, is an expert on law relating to policing and is against the proposed changes to the Evidence Act 1995. He notes that two Royal Commissions, in addition to plenty of academic research, recommended against the UK’s 1994 changes. The NSW Law Reform Commission published acomprehensive report on the right to silence in 2000 which supported his stance and specifically recommended against going down the same path as the UK. It noted there are already sensible exceptions in the case of drivers’ licences and alibis. Dixon also warns that, in light of UK and international jurisprudence, “if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.” Would the Government then provide free legal advice to all who are to be questioned by the Police…?
Others with extensive experience in the criminal justice system here in Australia also remind us that “[p]eople lie for all sorts of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state.” Its abrogation can effectively shift the burden of proof to the accused, who often struggle to explain their innocence.
In making it an offence to refuse to answer questions from agencies such as the various Crime Commissions and ASIO (not to mention restricting rather than increasing the involvement of lawyers), Australian Governments have already placed serious limitations on the privilege against self-incrimination. It is time to stand up to the erosion of this important human right.
Monday, August 27, 2012
Background Briefing: "The big binge"
Di Martin | ABC Radio National | 26 August 2012
More pubs and more bars, open for more hours, more extreme binge drinking, more extreme violence and more hospital admissions! What is being done to stem the alcohol tide? Di Martin investigates.
More pubs and more bars, open for more hours, more extreme binge drinking, more extreme violence and more hospital admissions! What is being done to stem the alcohol tide? Di Martin investigates.
Listen to the program here.
Monday, August 20, 2012
730 New South Wales investigates changes to the Right to Silence
ABC 730 | 19 August 2012
See Quentin Dempster's piece "O'Farrell Government overhauls 'right to silence'" here, including O'Farrell's announcement, and interviews with Phillip Boulten SC and Evan Whitton.
And then see Dempster's interview with Attorney-General Greg Smith here.
Smith says the modification will not apply to certain categories of accused, or to people who have not had access to legal advice. He says duty lawyers will not be provided to Police stations, but does hint at a phone advice service being made available.
See Quentin Dempster's piece "O'Farrell Government overhauls 'right to silence'" here, including O'Farrell's announcement, and interviews with Phillip Boulten SC and Evan Whitton.
And then see Dempster's interview with Attorney-General Greg Smith here.
Smith says the modification will not apply to certain categories of accused, or to people who have not had access to legal advice. He says duty lawyers will not be provided to Police stations, but does hint at a phone advice service being made available.
Sunday, August 19, 2012
Shouting out our right to silence
Charles Waterstreet | Sun Herald | 19 August 2012
Illustration: michaelmucci.com
Unlike the silent French film The Artist - with its worldwide success this year, including many Academy Awards - the French legal system does not recognise the right to silence for suspects. The accused in France are required to give an account of their activities to an investigating magistrate.
In NSW, we are the beneficiaries of the presumption of innocence until the state proves guilt beyond a reasonable doubt. We are the beneficiaries of basic legal and human rights, the very rights our grandfathers and fathers and brothers fought for in Europe in two wars and against incredible odds in New Guinea, and even in the tragic wars in Vietnam, Afghanistan and Iraq, to ensure.
The right to silence is not some antiquated form of prayer. It protects the accused from the strong-arm tactics of the state when people are at their most vulnerable. Life, human nature, guilt and innocence are a million shades of grey; they are neurotic, stupid, illogical, panicky, bloody, messy, full of white lies, embarrassing, complex, prone to error, prickly and incessant. In the wake of complex human intercourse and events, we are likely to say things in the heat of a roadside accident, in the hot, clinical, white police interview room, that don't reflect real emotions, memories and motives but might be said to please in ignorance, in shame, in panic, or in terror.
Police are trained interrogators with more knowledge about what happened than you know or think. They use it in the way expert card players save their aces for last. They can herd you in a barn and then shut the gate. In the atmosphere of criminal trials, it is extraordinarily difficult for the most innocent of people to explain why they gave a false or misleading account of events in recorded testimony at a police station after they have been arrested. Juries have collective wisdom but not necessarily the breadth of knowledge that jurists retain from bitter experience.
People lie for all kinds of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state. It is a powerful right. It might rarely lead to the guilty being acquitted but it is a bastion against the innocent being convicted on issues that really do not go to the heart of the question of guilt or innocence.
Look at the recent appearance of a talented, respected Supreme Court judge giving an account of his kerbside drinking in the early morning. We all want to underestimate our darker shades of grey and lighten the load.
The Premier, Barry O'Farrell, descended into the tabloid by explaining the English change to the right of silence by drawing on The Bill: ''Why, you have heard it in Sun Hill police station.'' Please, let's not use Saturday night British television shows to persuade this state that the removal of the right to silence is in keeping with a police-procedural television show.
American television series show cops ''Mirandising'' suspects. It is really a suburb in the Shire, but the US Supreme Court's Miranda rights represent the high moral and human right to say nothing until you speak to your lawyer, that you have a right to an eloquent silence in the face of a serious enforcement officer, and to acknowledge the basic right that the state must prove your guilt, not you.
Every parent knows that if you ask an errant child where he was in the afternoon, the child will mumble a deflecting lie or deception. Maturity does not erase human nature; in fact, it makes it more serious and its consequences more disastrous. Any suspect may choose to tell any police freely, after proper advice, after catching his emotional breath. The impact of a video interview played to a jury containing an error, mistake or fumble, mumble or flat-out mistruth on one issue - not the issue of guilt or innocence - is almost impossible to erase. The jury must be brought back to first principles of human nature. The effective cross-examination by a prosecutor of these misstatements can unbalance a trial. It shifts the burden of proof to the accused. Trials become unfocused and unfair. The accused might not always explain innocence, as Lindy Chamberlain in the witness box proved, and Gordon Wood in the glare of the television interview.
The right to silence is not a residue from ancient English criminal practice, in which the accused would never speak at their own trial. It is the living, breathing, beating heart of our bundle of human rights that we have fought so hard to maintain.
At Sun Hill police station, the police by and large play by the rules. Our rights should not be compared and contrasted with television shows, but to the template of dignity and decency that civilisation has accumulated by the collected wisdom of trials and errors, and the tools built to reduce and repair injustices of past experience. Accused people are already required to give notice of any alibi well before the trial. What's next? Will suspects be required to solve crimes for the police?
Illustration: michaelmucci.com
Unlike the silent French film The Artist - with its worldwide success this year, including many Academy Awards - the French legal system does not recognise the right to silence for suspects. The accused in France are required to give an account of their activities to an investigating magistrate.
In NSW, we are the beneficiaries of the presumption of innocence until the state proves guilt beyond a reasonable doubt. We are the beneficiaries of basic legal and human rights, the very rights our grandfathers and fathers and brothers fought for in Europe in two wars and against incredible odds in New Guinea, and even in the tragic wars in Vietnam, Afghanistan and Iraq, to ensure.
The right to silence is not some antiquated form of prayer. It protects the accused from the strong-arm tactics of the state when people are at their most vulnerable. Life, human nature, guilt and innocence are a million shades of grey; they are neurotic, stupid, illogical, panicky, bloody, messy, full of white lies, embarrassing, complex, prone to error, prickly and incessant. In the wake of complex human intercourse and events, we are likely to say things in the heat of a roadside accident, in the hot, clinical, white police interview room, that don't reflect real emotions, memories and motives but might be said to please in ignorance, in shame, in panic, or in terror.
Police are trained interrogators with more knowledge about what happened than you know or think. They use it in the way expert card players save their aces for last. They can herd you in a barn and then shut the gate. In the atmosphere of criminal trials, it is extraordinarily difficult for the most innocent of people to explain why they gave a false or misleading account of events in recorded testimony at a police station after they have been arrested. Juries have collective wisdom but not necessarily the breadth of knowledge that jurists retain from bitter experience.
People lie for all kinds of reasons other than guilt. The right to silence protects the accused from being overwhelmed by the apparatus of the state. It is a powerful right. It might rarely lead to the guilty being acquitted but it is a bastion against the innocent being convicted on issues that really do not go to the heart of the question of guilt or innocence.
Look at the recent appearance of a talented, respected Supreme Court judge giving an account of his kerbside drinking in the early morning. We all want to underestimate our darker shades of grey and lighten the load.
The Premier, Barry O'Farrell, descended into the tabloid by explaining the English change to the right of silence by drawing on The Bill: ''Why, you have heard it in Sun Hill police station.'' Please, let's not use Saturday night British television shows to persuade this state that the removal of the right to silence is in keeping with a police-procedural television show.
American television series show cops ''Mirandising'' suspects. It is really a suburb in the Shire, but the US Supreme Court's Miranda rights represent the high moral and human right to say nothing until you speak to your lawyer, that you have a right to an eloquent silence in the face of a serious enforcement officer, and to acknowledge the basic right that the state must prove your guilt, not you.
Every parent knows that if you ask an errant child where he was in the afternoon, the child will mumble a deflecting lie or deception. Maturity does not erase human nature; in fact, it makes it more serious and its consequences more disastrous. Any suspect may choose to tell any police freely, after proper advice, after catching his emotional breath. The impact of a video interview played to a jury containing an error, mistake or fumble, mumble or flat-out mistruth on one issue - not the issue of guilt or innocence - is almost impossible to erase. The jury must be brought back to first principles of human nature. The effective cross-examination by a prosecutor of these misstatements can unbalance a trial. It shifts the burden of proof to the accused. Trials become unfocused and unfair. The accused might not always explain innocence, as Lindy Chamberlain in the witness box proved, and Gordon Wood in the glare of the television interview.
The right to silence is not a residue from ancient English criminal practice, in which the accused would never speak at their own trial. It is the living, breathing, beating heart of our bundle of human rights that we have fought so hard to maintain.
At Sun Hill police station, the police by and large play by the rules. Our rights should not be compared and contrasted with television shows, but to the template of dignity and decency that civilisation has accumulated by the collected wisdom of trials and errors, and the tools built to reduce and repair injustices of past experience. Accused people are already required to give notice of any alibi well before the trial. What's next? Will suspects be required to solve crimes for the police?
This particular Bill needs a little more thought
Heath Aston | Sun Herald | 19 August 2012
IN ANNOUNCING the watering down of the right to silence, Barry O'Farrell was at pains to emphasise the new law for suspected criminals was merely bringing NSW into line with Britain.
The Premier was so keen to play up the British angle that he all but began whistling the theme song to The Bill during the announcement last week.
No one would have been surprised if the actor who played PC Reg Hollis had been wheeled in to audition the police's new arrest line: ''You are not obliged to say or do anything … but it may harm your defence if you do not mention when questioned something you later rely on in court.''
What wasn't mentioned by O'Farrell, the Police Minister, Mike Gallacher, and the Attorney-General, Greg Smith, on Tuesday was that the planned new law would also bring NSW into line with another country: Singapore.
Yes, that well-known bastion of personal freedoms and unobtrusive government, Singapore.
Should we expect mandatory sentences for chewing gum and spitting in NSW next?
Why should NSW arrest laws be out of step with every other state in Australia but in line with Britain anyway?
This is the same country whose major city was in flames a little more than a year ago during the looting revolution by London's underclass. Sure, London put on a good Olympic Games, but is that a good reason to try to harmonise our legal systems?
In return for a limited right to silence, those arrested in Britain are granted free legal advice, with duty solicitors provided at the major lock-ups. In NSW, there is no prospect that this costly service will be provided to offset the ''toughening'' of the law.
The planned reform smells suspiciously like a politician's thought bubble. No one in the wider legal community - apart from the police and the Police Association - appears to have been consulted before its unveiling.
If they had, they might have pointed the government to the 2000 report by the Law Reform Commission, which found most accused did not remain silent under questioning anyway and there was little justification to dilute the right to silence.
In some jury trials, the accused's silence under questioning contributed to an acquittal, but that did not apply to the majority of cases.
Often it's a temporary tactic, advised by a lawyer, to force police to disclose further information about the allegations and possible charges they intend to lay.
In other words, the tension between the accused's rights and the police's right to get to the truth was just about spot on.
It seems a strange thing to say of a premier who calls a review into what he will have on his sandwich at lunch, but some more consideration was needed on this one.
IN ANNOUNCING the watering down of the right to silence, Barry O'Farrell was at pains to emphasise the new law for suspected criminals was merely bringing NSW into line with Britain.
The Premier was so keen to play up the British angle that he all but began whistling the theme song to The Bill during the announcement last week.
No one would have been surprised if the actor who played PC Reg Hollis had been wheeled in to audition the police's new arrest line: ''You are not obliged to say or do anything … but it may harm your defence if you do not mention when questioned something you later rely on in court.''
What wasn't mentioned by O'Farrell, the Police Minister, Mike Gallacher, and the Attorney-General, Greg Smith, on Tuesday was that the planned new law would also bring NSW into line with another country: Singapore.
Yes, that well-known bastion of personal freedoms and unobtrusive government, Singapore.
Should we expect mandatory sentences for chewing gum and spitting in NSW next?
Why should NSW arrest laws be out of step with every other state in Australia but in line with Britain anyway?
This is the same country whose major city was in flames a little more than a year ago during the looting revolution by London's underclass. Sure, London put on a good Olympic Games, but is that a good reason to try to harmonise our legal systems?
In return for a limited right to silence, those arrested in Britain are granted free legal advice, with duty solicitors provided at the major lock-ups. In NSW, there is no prospect that this costly service will be provided to offset the ''toughening'' of the law.
The planned reform smells suspiciously like a politician's thought bubble. No one in the wider legal community - apart from the police and the Police Association - appears to have been consulted before its unveiling.
If they had, they might have pointed the government to the 2000 report by the Law Reform Commission, which found most accused did not remain silent under questioning anyway and there was little justification to dilute the right to silence.
In some jury trials, the accused's silence under questioning contributed to an acquittal, but that did not apply to the majority of cases.
Often it's a temporary tactic, advised by a lawyer, to force police to disclose further information about the allegations and possible charges they intend to lay.
In other words, the tension between the accused's rights and the police's right to get to the truth was just about spot on.
It seems a strange thing to say of a premier who calls a review into what he will have on his sandwich at lunch, but some more consideration was needed on this one.
Friday, August 17, 2012
On the right to silence, all the rhetoric is deafening
David Dixon | SMH | 16 August 2012
Premier Barry O'Farrell's announcement of plans to restrict the right to silence in NSW has set off another rhetorical joust between civil libertarians and critics of this ''right''.
While one side complains about the loss of liberty, the other claims change is necessary because organised criminals exploit the justice process. But both ignore key empirical and legal realities.
Much has been made of the fact that England introduced this change in 1994. However, it should be understood the change was the result of a sustained police campaign that was about politics, not about the reality of criminal investigation.
The right to silence had become a symbolic issue in determining who controlled criminal justice. Its restriction went against the recommendations of two royal commissions and a mass of empirical research (some of it by me).
This research showed that the supposed link between silence and organised criminals was exaggerated, with police sceptical about the effect of the 1994 law on such criminals.
It also showed that real police interviews are unlike those seen in Law and Order and The Bill, in which suspects either refuse to answer questions or skilful police interviewers shift them from denial to confession. In reality, most suspects confess immediately or maintain their denial, whatever tactics police use.
Where is the evidence that a change to the right to silence is necessary?
There has been very little research conducted in Australia. However, in 2006 I conducted a study of every recorded interview across NSW for an entire year, which found a situation very similar to that in England.
The fact is, people tend not to use the right to silence: it's hard not to answer questions and it's usually against your interest to refuse to do so. If police have significant evidence against you, it's best to co-operate.
In my research, the notable cases of failure to answer questions involved young, alienated men who refused to co-operate with police as a mark of honour, even though there was plenty of evidence against them. Their confessions weren't needed, and changing the laws of evidence wouldn't have changed their behaviour.
Best practice in criminal investigation would require police to interview suspects on the basis of evidence rather than relying on a confession. The problems of the latter approach - police malpractice and miscarriages of justice - are well known from a series of high-profile cases in England, Australia and the US.
English police interviewing techniques have substantially changed since the 1990s: they increasingly rely on evidence collected before interview. Australian police are adopting the English approach.
If our police need more resources and/or powers to use phone tap and intercept evidence, DNA and CCTV, in order to provide the evidence needed before interviewing suspects, that's a separate, and equally controversial, debate. We need to talk about how criminal investigation can and should be conducted, not spend time on exchanges of rhetoric about the right to silence. If Premier O'Farrell gets his way, it is likely to have consequences that his government won't welcome. The European Court of Human Rights has ruled that silence can be used as evidence against defendants only if they had received legal advice before being questioned: how otherwise is a lay person to know what might harm their defence in court if they don't mention it to police?
So if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.
This means restricting the right to silence has a major and very expensive corollary: the government would have to fund free access to legal advice and organise duty solicitors to be on hand in police stations.
England has done so since the mid-1980s. In the latest research in England, 48 per cent of suspects interviewed in police custody had legal advice. By contrast, almost nobody does in NSW, because there is no public funding or organised system (except for juveniles and indigenous people).
Providing publicly-funded legal advice would be massively expensive, yet it is an inevitable consequence of restricting the right to silence.
The O'Farrell government needs to be very careful what it wishes for.
Professor David Dixon is Dean of Law at UNSW. His books Law in Policing and Interrogating Images report empirical research on police questioning of suspects in England and NSW.
While one side complains about the loss of liberty, the other claims change is necessary because organised criminals exploit the justice process. But both ignore key empirical and legal realities.
Much has been made of the fact that England introduced this change in 1994. However, it should be understood the change was the result of a sustained police campaign that was about politics, not about the reality of criminal investigation.
The right to silence had become a symbolic issue in determining who controlled criminal justice. Its restriction went against the recommendations of two royal commissions and a mass of empirical research (some of it by me).
This research showed that the supposed link between silence and organised criminals was exaggerated, with police sceptical about the effect of the 1994 law on such criminals.
It also showed that real police interviews are unlike those seen in Law and Order and The Bill, in which suspects either refuse to answer questions or skilful police interviewers shift them from denial to confession. In reality, most suspects confess immediately or maintain their denial, whatever tactics police use.
Where is the evidence that a change to the right to silence is necessary?
There has been very little research conducted in Australia. However, in 2006 I conducted a study of every recorded interview across NSW for an entire year, which found a situation very similar to that in England.
The fact is, people tend not to use the right to silence: it's hard not to answer questions and it's usually against your interest to refuse to do so. If police have significant evidence against you, it's best to co-operate.
In my research, the notable cases of failure to answer questions involved young, alienated men who refused to co-operate with police as a mark of honour, even though there was plenty of evidence against them. Their confessions weren't needed, and changing the laws of evidence wouldn't have changed their behaviour.
Best practice in criminal investigation would require police to interview suspects on the basis of evidence rather than relying on a confession. The problems of the latter approach - police malpractice and miscarriages of justice - are well known from a series of high-profile cases in England, Australia and the US.
English police interviewing techniques have substantially changed since the 1990s: they increasingly rely on evidence collected before interview. Australian police are adopting the English approach.
If our police need more resources and/or powers to use phone tap and intercept evidence, DNA and CCTV, in order to provide the evidence needed before interviewing suspects, that's a separate, and equally controversial, debate. We need to talk about how criminal investigation can and should be conducted, not spend time on exchanges of rhetoric about the right to silence. If Premier O'Farrell gets his way, it is likely to have consequences that his government won't welcome. The European Court of Human Rights has ruled that silence can be used as evidence against defendants only if they had received legal advice before being questioned: how otherwise is a lay person to know what might harm their defence in court if they don't mention it to police?
So if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.
This means restricting the right to silence has a major and very expensive corollary: the government would have to fund free access to legal advice and organise duty solicitors to be on hand in police stations.
England has done so since the mid-1980s. In the latest research in England, 48 per cent of suspects interviewed in police custody had legal advice. By contrast, almost nobody does in NSW, because there is no public funding or organised system (except for juveniles and indigenous people).
Providing publicly-funded legal advice would be massively expensive, yet it is an inevitable consequence of restricting the right to silence.
The O'Farrell government needs to be very careful what it wishes for.
Professor David Dixon is Dean of Law at UNSW. His books Law in Policing and Interrogating Images report empirical research on police questioning of suspects in England and NSW.
NSW Bikie Laws Will Catch Innocents
Kirk McKenzie | New Matilda | 15 August 2012
Barry O'Farrell's consorting laws have already caught one young disabled man, but their scope is wide enough to nab anybody. Repeal these unjust laws, writes Kirk McKenzie
The recent jailing for consorting of Charlie Foster, a young intellectually disabled man, highlights the rank injustice of the O’Farrell government’s new consorting laws. A NSW District Court Judge yesterday set aside Foster’s conviction after finding the elements of the offence not proved, but the matter is not over — the police are still to pursue the matter.
These new laws (sections 93X and 93Y of the State’s Crimes Act) reinstate notoriously bad laws which applied from the late 1920s until 1979 when they were deliberately watered down by the Wran Labor government. They have rarely been used since.
According to Greg Smith, Barry O’Farrell’s Attorney General, the new laws are aimed at bikies. However, the legislation is not so restricted and will inevitably catch many entirely innocent people.
So what precisely is wrong with these laws? They penalise people just for associating with people previously convicted of "indictable offences" — a category not restricted to serious offences.
The legislation says that if you communicate, say by sending a text message, to two convicted offenders on two occasions, you may receive an oral warning from a police officer. If after the warning, you send a further text message to one of the two offenders, you may be charged with "habitual consorting", punishable by up to 3 years imprisonment!
This offence involves at least three clear breaches of Australia’s human rights obligations under the main international human rights treaty, the International Covenant on Civil and Political Rights ("ICCPR"). Australia ratified this treaty in 1980 (under a Liberal National government) with the result that all Australian parliaments have since had an obligation to adhere to its terms, including Article 22 which requires the principle of freedom of association to be respected.
The new offence is amazingly wide. "Indictable offences" are those serious enough to go before a judge and jury. However, most indictable offences are dealt with in the Magistrates Courts and many such offences are quite minor. For example, Common Assault, Shoplifting and Obstructing a Police Officer are indictable offences in NSW (and elsewhere).
A further problem is that there is no automatic defence to the new charge. Even a spouse, parent or a child of a previous offender can be charged. There is (in section 93X) a qualified defence for family members, doctors, teachers, employers and lawyers but significantly, any person in those categories can still be arrested, charged and brought before a Court and then has the onus of proving that their association with the person concerned was "reasonable in the circumstances". This ridiculous provision reverses the onus of proof — even entirely innocent spouses, parents or children are caught. A lawyer could be charged and have to go to Court to prove the reasonableness of acting for the person concerned.
Lawyers who regularly act for convicted persons, may be warned to cease acting for a client, if, for example 40 years ago that client was convicted of shoplifting. If the lawyer ignores the warning, a charge may follow. This amounts to an unjustified interference with the workings of independent courts and, for that reason, the offence is arguably unconstitutional. It also breaches Article 14(3) of the ICCPR by limiting defendants’ rights to communicate with, and to be assisted by, lawyers of their own choosing.
The reversal of the onus of proof imposed on families, doctors and lawyers involves a third breach of international law, namely the abrogation of the presumption of innocence in Article 14(2) of the ICCPR, also a fundamental principle of Australian criminal law. Under this principle, the prosecution is required to prove all elements of a criminal offence beyond a reasonable doubt. It is not the accused’s role to have to prove their innocence, yet that is precisely what a spouse, teacher or doctor (or mother!) may have to do, to avoid conviction. The right to silence also goes out the window.
A bizarre consequence of section 93X is that priests, ministers of religion and other clergy are completely unprotected. They have no defence at all, not even the right to come to Court to prove their association reasonable. Many others such as social workers, trade union members and officials and even fellow members of sporting or social clubs, fall into the same category.
A further important objection is the arbitrary power these laws deliver into the hands of police officers. Bikies have already been charged under these new provisions and say they will appeal any convictions to the High Court. They may end up being seen as heroes as a result. However, it may be the people of Moree, Walgett and other NSW regions where Indigenous Australians live and work, who may be the most vulnerable. Some of these regions have higher crime rates and Aboriginal people are therefore much more susceptible to arbitrary police action than elsewhere.
There is a wider problem with this sort of law making. Unfortunately, because of the mainstream media’s obsession with federal politics, a lot of legislation is quickly waved through state parliaments without sufficient scrutiny. The Bill introducing these changes went through with only minor media comment and little public debate.
In NSW, with no Charter of Rights, many politicians neither know nor understand what rights they should be protecting. The NSW Parliament should replicate the Victorian Charter of Human Rights and Responsibilities which is based on the ICCPR. That treaty contains the universal, minimalist position of the world democratic community on civil rights and has been ratified by 167 countries. The Victorian Charter is now supported by the Baillieu Coalition government and there is little logic in Barry O’Farrell’s continued opposition to such a reform.
One thing is certain — until this dopey, repressive, unjust, outrageous piece of legislation is repealed, more Charlie Fosters will be lined up for punishment.
Barry O'Farrell's consorting laws have already caught one young disabled man, but their scope is wide enough to nab anybody. Repeal these unjust laws, writes Kirk McKenzie
The recent jailing for consorting of Charlie Foster, a young intellectually disabled man, highlights the rank injustice of the O’Farrell government’s new consorting laws. A NSW District Court Judge yesterday set aside Foster’s conviction after finding the elements of the offence not proved, but the matter is not over — the police are still to pursue the matter.
These new laws (sections 93X and 93Y of the State’s Crimes Act) reinstate notoriously bad laws which applied from the late 1920s until 1979 when they were deliberately watered down by the Wran Labor government. They have rarely been used since.
According to Greg Smith, Barry O’Farrell’s Attorney General, the new laws are aimed at bikies. However, the legislation is not so restricted and will inevitably catch many entirely innocent people.
So what precisely is wrong with these laws? They penalise people just for associating with people previously convicted of "indictable offences" — a category not restricted to serious offences.
The legislation says that if you communicate, say by sending a text message, to two convicted offenders on two occasions, you may receive an oral warning from a police officer. If after the warning, you send a further text message to one of the two offenders, you may be charged with "habitual consorting", punishable by up to 3 years imprisonment!
This offence involves at least three clear breaches of Australia’s human rights obligations under the main international human rights treaty, the International Covenant on Civil and Political Rights ("ICCPR"). Australia ratified this treaty in 1980 (under a Liberal National government) with the result that all Australian parliaments have since had an obligation to adhere to its terms, including Article 22 which requires the principle of freedom of association to be respected.
The new offence is amazingly wide. "Indictable offences" are those serious enough to go before a judge and jury. However, most indictable offences are dealt with in the Magistrates Courts and many such offences are quite minor. For example, Common Assault, Shoplifting and Obstructing a Police Officer are indictable offences in NSW (and elsewhere).
A further problem is that there is no automatic defence to the new charge. Even a spouse, parent or a child of a previous offender can be charged. There is (in section 93X) a qualified defence for family members, doctors, teachers, employers and lawyers but significantly, any person in those categories can still be arrested, charged and brought before a Court and then has the onus of proving that their association with the person concerned was "reasonable in the circumstances". This ridiculous provision reverses the onus of proof — even entirely innocent spouses, parents or children are caught. A lawyer could be charged and have to go to Court to prove the reasonableness of acting for the person concerned.
Lawyers who regularly act for convicted persons, may be warned to cease acting for a client, if, for example 40 years ago that client was convicted of shoplifting. If the lawyer ignores the warning, a charge may follow. This amounts to an unjustified interference with the workings of independent courts and, for that reason, the offence is arguably unconstitutional. It also breaches Article 14(3) of the ICCPR by limiting defendants’ rights to communicate with, and to be assisted by, lawyers of their own choosing.
The reversal of the onus of proof imposed on families, doctors and lawyers involves a third breach of international law, namely the abrogation of the presumption of innocence in Article 14(2) of the ICCPR, also a fundamental principle of Australian criminal law. Under this principle, the prosecution is required to prove all elements of a criminal offence beyond a reasonable doubt. It is not the accused’s role to have to prove their innocence, yet that is precisely what a spouse, teacher or doctor (or mother!) may have to do, to avoid conviction. The right to silence also goes out the window.
A bizarre consequence of section 93X is that priests, ministers of religion and other clergy are completely unprotected. They have no defence at all, not even the right to come to Court to prove their association reasonable. Many others such as social workers, trade union members and officials and even fellow members of sporting or social clubs, fall into the same category.
A further important objection is the arbitrary power these laws deliver into the hands of police officers. Bikies have already been charged under these new provisions and say they will appeal any convictions to the High Court. They may end up being seen as heroes as a result. However, it may be the people of Moree, Walgett and other NSW regions where Indigenous Australians live and work, who may be the most vulnerable. Some of these regions have higher crime rates and Aboriginal people are therefore much more susceptible to arbitrary police action than elsewhere.
There is a wider problem with this sort of law making. Unfortunately, because of the mainstream media’s obsession with federal politics, a lot of legislation is quickly waved through state parliaments without sufficient scrutiny. The Bill introducing these changes went through with only minor media comment and little public debate.
In NSW, with no Charter of Rights, many politicians neither know nor understand what rights they should be protecting. The NSW Parliament should replicate the Victorian Charter of Human Rights and Responsibilities which is based on the ICCPR. That treaty contains the universal, minimalist position of the world democratic community on civil rights and has been ratified by 167 countries. The Victorian Charter is now supported by the Baillieu Coalition government and there is little logic in Barry O’Farrell’s continued opposition to such a reform.
One thing is certain — until this dopey, repressive, unjust, outrageous piece of legislation is repealed, more Charlie Fosters will be lined up for punishment.
Monday, June 18, 2012
Not even the state's top cop was immune from culture of surveillance
Neil Mercer | SMH | June 17, 2012
On the eve of the Sydney Olympics undercover police were watching many senior officers, including Peter Ryan.
It was Christmas, 1999, and NSW police commissioner Peter Ryan was winding down after a hectic year. With his then wife, Adrienne, he was enjoying a few drinks after work at the Marriott Hotel, a short walk from police headquarters in College Street in the city.
Unbeknown to Ryan, he and his wife were under surveillance. Not by the dark forces of organised crime, but one of his own officers, an undercover cop known as ''Joe'' who was working for Special Crime and Internal Affairs, commonly known as SCIA.
SCIA's job? To root out corruption. It was supposed to operate to the highest ethical standards.
The surveillance of the state's top cop had been ordered by the then head of SCIA, assistant commissioner Mal Brammer, who believed the Ryans, under the influence of alcohol, might be loose-lipped about confidential police affairs.
Any way you look at it, it was extraordinary. But it was not the first time SCIA, under Brammer, had been involved in highly questionable surveillance of some of the force's most senior ranks.
Earlier that year, Joe and his partner ''Jessie'' - another undercover, or ''UC'' as they are known in the trade - had spent weeks trying to gather dirt on assistant commissioner Clive Small, then head of crime agencies and in charge of squads such as homicide, armed robbery, sexual assault and fraud.
The jailed murderer and notorious crime figure Neddy Smith had alleged Small had formed an improper relationship with a Sydney organised crime figure and well-known drug trafficker, Michael Hurley, and that they were meeting at the Woolwich Pier Hotel in Hunters Hill.
The surveillance ran from January 22 until March 12, 1999.
It turned up three parts of, well, nothing, because neither Small nor Hurley ever appeared at the pub. As Joe and Jessie later remarked, at least the food was good. Small was never even interviewed about the allegation.
Just weeks before they started watching Small, Jessie had been tasked by her superior in SCIA with watching another officer, Detective Inspector Deborah Wallace, who at that time was working for SCIA. That operation ran from May 5 to December16, 1998, and involved Jessie joining the same gym as Inspector Wallace.
Like the surveillance of the Ryans and Small, it turned up nothing. There was simply no evidence that any of them had done anything improper.
As Jessie later remarked: ''It was ridiculous. She [Wallace] was just there to do aerobics.'' Despite it lasting seven months, senior SCIA officers later said they could not recall Jessie being told to watch Wallace.
We know of these three SCIA surveillance operations, from May 1998 to early 2000, because the two undercover police involved, Joe and Jessie, later told their story to Clive Small, the man they had been told was meeting Hurley at the Woolwich Pier.
Small, now retired, and his co-author Tom Gilling revealed the extraordinary saga in their book Betrayed, published in 2010.
Remarkably, the assertion that an ''out of control'' SCIA under Brammer had put its own commissioner, among others, under surveillance did not garner any publicity in the media.
Nor was there any reaction from NSW Police headquarters or the Police Integrity Commission, which is supposed to take a keen interest in allegations of wrongdoing and improper conduct.
But all these years later, those operations have become relevant because of an aspect of another controversial SCIA investigation that did hit the headlines.
It was called Operation Florida and it started in early 1999.
On the eve of the Sydney Olympics undercover police were watching many senior officers, including Peter Ryan.
It was Christmas, 1999, and NSW police commissioner Peter Ryan was winding down after a hectic year. With his then wife, Adrienne, he was enjoying a few drinks after work at the Marriott Hotel, a short walk from police headquarters in College Street in the city.
Unbeknown to Ryan, he and his wife were under surveillance. Not by the dark forces of organised crime, but one of his own officers, an undercover cop known as ''Joe'' who was working for Special Crime and Internal Affairs, commonly known as SCIA.
SCIA's job? To root out corruption. It was supposed to operate to the highest ethical standards.
The surveillance of the state's top cop had been ordered by the then head of SCIA, assistant commissioner Mal Brammer, who believed the Ryans, under the influence of alcohol, might be loose-lipped about confidential police affairs.
Any way you look at it, it was extraordinary. But it was not the first time SCIA, under Brammer, had been involved in highly questionable surveillance of some of the force's most senior ranks.
Earlier that year, Joe and his partner ''Jessie'' - another undercover, or ''UC'' as they are known in the trade - had spent weeks trying to gather dirt on assistant commissioner Clive Small, then head of crime agencies and in charge of squads such as homicide, armed robbery, sexual assault and fraud.
The jailed murderer and notorious crime figure Neddy Smith had alleged Small had formed an improper relationship with a Sydney organised crime figure and well-known drug trafficker, Michael Hurley, and that they were meeting at the Woolwich Pier Hotel in Hunters Hill.
The surveillance ran from January 22 until March 12, 1999.
It turned up three parts of, well, nothing, because neither Small nor Hurley ever appeared at the pub. As Joe and Jessie later remarked, at least the food was good. Small was never even interviewed about the allegation.
Just weeks before they started watching Small, Jessie had been tasked by her superior in SCIA with watching another officer, Detective Inspector Deborah Wallace, who at that time was working for SCIA. That operation ran from May 5 to December16, 1998, and involved Jessie joining the same gym as Inspector Wallace.
Like the surveillance of the Ryans and Small, it turned up nothing. There was simply no evidence that any of them had done anything improper.
As Jessie later remarked: ''It was ridiculous. She [Wallace] was just there to do aerobics.'' Despite it lasting seven months, senior SCIA officers later said they could not recall Jessie being told to watch Wallace.
We know of these three SCIA surveillance operations, from May 1998 to early 2000, because the two undercover police involved, Joe and Jessie, later told their story to Clive Small, the man they had been told was meeting Hurley at the Woolwich Pier.
Small, now retired, and his co-author Tom Gilling revealed the extraordinary saga in their book Betrayed, published in 2010.
Remarkably, the assertion that an ''out of control'' SCIA under Brammer had put its own commissioner, among others, under surveillance did not garner any publicity in the media.
Nor was there any reaction from NSW Police headquarters or the Police Integrity Commission, which is supposed to take a keen interest in allegations of wrongdoing and improper conduct.
But all these years later, those operations have become relevant because of an aspect of another controversial SCIA investigation that did hit the headlines.
It was called Operation Florida and it started in early 1999.
Monday, May 14, 2012
Jails' new advocate
Heath Aston | Sun Herald | May 13, 2012
Prison officers will be able to air their grievances to an independent body without fear of retribution in one of the biggest shake-ups of the NSW jail system.
An inspector of prisons will be appointed in tandem with a new Corrective Services Commissioner, The Sun-Herald can reveal. The new position will be announced by the state government today, just weeks after it showed long-time Commissioner Ron Woodham the door.
The inspector of custodial services will work with Mr Woodham's replacement, but will only answer to Parliament and the Attorney-General, Greg Smith.
Representatives of the state's 3800 prison officers welcomed the creation of the inspectorate but warned the inspector must be allowed to ''implement reform, not just spruik it''.
Mr Smith said the inspector would be a champion for prisons and prisons officers. ''He or she will go into bat for anyone who feels the system can be improved, and anyone who provides information will be protected,'' he said.
''The new position will build public confidence in the justice system and ensure that correctional facilities are safe, secure and operate to a high standard. Prison officers will also be able to air their concerns without fear of being harassed or having their careers prejudiced as a result of assisting an inspector.''
Government sources said the creation of an independent inspector was a direct strike at the opaque structure of the present prison system under the leadership of Mr Woodham, the ''old school'' chief who rose from prison warden to commissioner to hold the top job for the past decade.
Mr Smith was frustrated at being stonewalled when seeking information last year over the death in Grafton jail of Ian Klum, a 52-year-old locked up for traffic offences. Surveillance footage showed prison officers looking on as Mr Klum crawled between cells before later dying of a brain haemorrhage.
Mr Woodham's replacement is expected to be in place by July 1.
The inspector will deal with all complaints from wardens and visitors while prisoners will still take their complaints to the ombudsman.
The position will be legislated in the Inspector of Custodial Services Bill 2012, to be introduced to Parliament shortly.
The inspector, who will be appointed to a five-year term - and can only be reappointed once - is likely to be drawn from the ranks of the judiciary. The independent statutory body led by the inspector will have jurisdiction over all correctional centres, including juvenile institutions, residential facilities, transitional centres and court and police cells managed by Corrective Services or Juvenile Justice.
The position will be modelled on an independent inspector in Western Australia. A similar position exists in systems in England, Scotland and Wales.
Prison officers will be able to air their grievances to an independent body without fear of retribution in one of the biggest shake-ups of the NSW jail system.
An inspector of prisons will be appointed in tandem with a new Corrective Services Commissioner, The Sun-Herald can reveal. The new position will be announced by the state government today, just weeks after it showed long-time Commissioner Ron Woodham the door.
The inspector of custodial services will work with Mr Woodham's replacement, but will only answer to Parliament and the Attorney-General, Greg Smith.
Representatives of the state's 3800 prison officers welcomed the creation of the inspectorate but warned the inspector must be allowed to ''implement reform, not just spruik it''.
Mr Smith said the inspector would be a champion for prisons and prisons officers. ''He or she will go into bat for anyone who feels the system can be improved, and anyone who provides information will be protected,'' he said.
''The new position will build public confidence in the justice system and ensure that correctional facilities are safe, secure and operate to a high standard. Prison officers will also be able to air their concerns without fear of being harassed or having their careers prejudiced as a result of assisting an inspector.''
Government sources said the creation of an independent inspector was a direct strike at the opaque structure of the present prison system under the leadership of Mr Woodham, the ''old school'' chief who rose from prison warden to commissioner to hold the top job for the past decade.
Mr Smith was frustrated at being stonewalled when seeking information last year over the death in Grafton jail of Ian Klum, a 52-year-old locked up for traffic offences. Surveillance footage showed prison officers looking on as Mr Klum crawled between cells before later dying of a brain haemorrhage.
Mr Woodham's replacement is expected to be in place by July 1.
The inspector will deal with all complaints from wardens and visitors while prisoners will still take their complaints to the ombudsman.
The position will be legislated in the Inspector of Custodial Services Bill 2012, to be introduced to Parliament shortly.
The inspector, who will be appointed to a five-year term - and can only be reappointed once - is likely to be drawn from the ranks of the judiciary. The independent statutory body led by the inspector will have jurisdiction over all correctional centres, including juvenile institutions, residential facilities, transitional centres and court and police cells managed by Corrective Services or Juvenile Justice.
The position will be modelled on an independent inspector in Western Australia. A similar position exists in systems in England, Scotland and Wales.
Police chief pushes for bottle shop clampdown
Sean Nicholls | SMH | May 14, 2012
Domestic violence is the "iceberg" of excessive drinking ... NSW Police Comissioner Andrew Scipione. Photo: Jacky Ghossein
THE Police Commissioner, Andrew Scipione, has questioned the lack of regulation of purchases from bottle shops and linked the easy availability of take-away alcohol to stubbornly high rates of domestic violence.
The issue will be examined, at Mr Scipione's request, by a new alcohol policy working group comprising senior police and bureaucrats who will present options to the state government.
The Herald can reveal that the group, formed this year, is conducting a comprehensive review of the alcohol licensing system in response to an offer by the Premier, Barry O'Farrell, last year to give police whatever support they needed to tackle alcohol-related violence.
The group will also examine the concentration of outlets, which it believes is a critical issue for alcohol policy.
In an interview about measures the police are taking to combat alcohol-related violence, Mr Scipione said the numbers of alcohol-related assaults of a non-domestic nature had been falling significantly for the past few years.
''The bit that is not falling as much is the domestic violence, where alcohol is a factor. That's the frightening bit,'' he said.
''Of course, that's predominantly being fed through takeaway bottle shops. I think it's worth looking at the impact and, necessarily, the sort of policy we might need to develop to inform government in this area.''
NSW Bureau of Crime Statistics and Research data shows that between 2007 and 2011, the average annual rate of alcohol-related domestic violence fell 2.6 per cent, compared with a 5.3 per cent drop in other alcohol-related assaults.
Mr Scipione said the visible effects of excessive drinking on weekends and at big events were the tip of the issue but domestic violence was emerging as the ''iceberg'' of alcohol policy.
''That's what worries me - when there are incentives given to people to come in and fill up the car [with alcohol but] if you wanted to buy it over the bar you would have severe restrictions,'' Mr Scipione said.
''In this situation you can go and fill the car up and as quickly as you can throw it down your throat you can come back the next day and fill it up again.
''There is no responsibility in this and by its nature there's not, because it's something that's done in private. But what we do know is that it's causing enormous damage, particularly to women and children.''
The commissioner quoted a national poll conducted for the Alcohol Education and Rehabilitation Foundation, published last month, which showed 69 per cent of adults supported a ban on alcohol advertising on television before 8.30pm.
Acknowledging the issue of advertising was largely a federal one, Mr Scipione still said there were concerns with the marketing done by bottle shops.
''I know there's a problem, at least in my mind, when I've got a brochure that gets shoved into my letterbox at home and it shows me I can buy a can of beer effectively cheaper than I can go downstairs here at lunchtime and buy a can of Coke,'' he said.
The working group, which meets fortnightly, comprises representatives from the Attorney-General's Department and the Office of Liquor, Gaming and Racing as well as the commander of drug and alcohol co-ordination with the NSW Police, Superintendent Patrick Paroz, and the commander of major events and incidents, Assistant Commissioner Alan Clarke.
Mr Paroz said the group was examining licensing as ''the biggest-ticket issue'' and doing research into venue and outlet density as ''another critical issue''.
Mr Scipione said research showed venue density, trading hours and the strength of alcohol served, were key factors in alcohol-related violence.
''I think that there are some locations where there are good questions and there is good reason to ask these questions.
''All the research tells us that if you lower the density in these really highly dense locations then you will see a reduction in associated violence.''
Domestic violence is the "iceberg" of excessive drinking ... NSW Police Comissioner Andrew Scipione. Photo: Jacky Ghossein
THE Police Commissioner, Andrew Scipione, has questioned the lack of regulation of purchases from bottle shops and linked the easy availability of take-away alcohol to stubbornly high rates of domestic violence.
The issue will be examined, at Mr Scipione's request, by a new alcohol policy working group comprising senior police and bureaucrats who will present options to the state government.
The Herald can reveal that the group, formed this year, is conducting a comprehensive review of the alcohol licensing system in response to an offer by the Premier, Barry O'Farrell, last year to give police whatever support they needed to tackle alcohol-related violence.
The group will also examine the concentration of outlets, which it believes is a critical issue for alcohol policy.
In an interview about measures the police are taking to combat alcohol-related violence, Mr Scipione said the numbers of alcohol-related assaults of a non-domestic nature had been falling significantly for the past few years.
''The bit that is not falling as much is the domestic violence, where alcohol is a factor. That's the frightening bit,'' he said.
''Of course, that's predominantly being fed through takeaway bottle shops. I think it's worth looking at the impact and, necessarily, the sort of policy we might need to develop to inform government in this area.''
NSW Bureau of Crime Statistics and Research data shows that between 2007 and 2011, the average annual rate of alcohol-related domestic violence fell 2.6 per cent, compared with a 5.3 per cent drop in other alcohol-related assaults.
Mr Scipione said the visible effects of excessive drinking on weekends and at big events were the tip of the issue but domestic violence was emerging as the ''iceberg'' of alcohol policy.
''That's what worries me - when there are incentives given to people to come in and fill up the car [with alcohol but] if you wanted to buy it over the bar you would have severe restrictions,'' Mr Scipione said.
''In this situation you can go and fill the car up and as quickly as you can throw it down your throat you can come back the next day and fill it up again.
''There is no responsibility in this and by its nature there's not, because it's something that's done in private. But what we do know is that it's causing enormous damage, particularly to women and children.''
The commissioner quoted a national poll conducted for the Alcohol Education and Rehabilitation Foundation, published last month, which showed 69 per cent of adults supported a ban on alcohol advertising on television before 8.30pm.
Acknowledging the issue of advertising was largely a federal one, Mr Scipione still said there were concerns with the marketing done by bottle shops.
''I know there's a problem, at least in my mind, when I've got a brochure that gets shoved into my letterbox at home and it shows me I can buy a can of beer effectively cheaper than I can go downstairs here at lunchtime and buy a can of Coke,'' he said.
The working group, which meets fortnightly, comprises representatives from the Attorney-General's Department and the Office of Liquor, Gaming and Racing as well as the commander of drug and alcohol co-ordination with the NSW Police, Superintendent Patrick Paroz, and the commander of major events and incidents, Assistant Commissioner Alan Clarke.
Mr Paroz said the group was examining licensing as ''the biggest-ticket issue'' and doing research into venue and outlet density as ''another critical issue''.
Mr Scipione said research showed venue density, trading hours and the strength of alcohol served, were key factors in alcohol-related violence.
''I think that there are some locations where there are good questions and there is good reason to ask these questions.
''All the research tells us that if you lower the density in these really highly dense locations then you will see a reduction in associated violence.''
Tuesday, May 8, 2012
Petition to repeal s.6B Firearms Act
A few weeks back I posted this article about the tragic death of Lalin Fernando, who was killed by his daughter Shamin.
Shamin had been suffering with severe mental illness, which caused her to believe that she had to kill her father. She joined a gun club, and there obtained a pistol and ammunition, despite not having a license. She took these out of the gun club, and back home, where she used the skills she had practiced at the gun club to shoot her father.
Is it difficult to fathom how someone in such a state of mind could so easily do this.
But they can. The law as it presently stands actually allows a person to attend a gun club, and shoot pistols, without having had any training, without any need to be licensed to handle a gun, and without any background check at all.
The relevant provision is s.6B Firearms Act (NSW), an amendment which was introduced by the Shooters and Fishers Party in 2008, and supported by the NSW Labor government.
That and being supervised at all times by a licensed shooter, who must carry the weapon to and from the unlicensed self-declared sane person. Except when they're not supervising and instead leaving the weapon with the self-declared sane person to take home. And except when they are selling ammunition to the same person.
All of this occurred in the case of Shamin Fernando, who only had to lie about having a mental illness in order to legally practice killing her father, and then be in a position to walk out of the club with a gun.
The Fernando family have been campaigning to have s.6B Firearms Act (NSW) repealed. After this tragedy, you might question the case for the retention of the provision and its associated regulations in their current form.
A petition to the Police Minister, Michael Gallacher, has been set up on change.org, urging the government to repeal this law. If you would like your support for the repeal to be registered, please consider adding your name to the petition.
Without this provision in its current form, a severely mentally ill person could not legally get their hands on a firearm. A good idea, you might think.
Shamin had been suffering with severe mental illness, which caused her to believe that she had to kill her father. She joined a gun club, and there obtained a pistol and ammunition, despite not having a license. She took these out of the gun club, and back home, where she used the skills she had practiced at the gun club to shoot her father.
Is it difficult to fathom how someone in such a state of mind could so easily do this.
But they can. The law as it presently stands actually allows a person to attend a gun club, and shoot pistols, without having had any training, without any need to be licensed to handle a gun, and without any background check at all.
The relevant provision is s.6B Firearms Act (NSW), an amendment which was introduced by the Shooters and Fishers Party in 2008, and supported by the NSW Labor government.
6B Exemption for unlicensed persons shooting on approved ranges and for persons undertaking firearms safety training courses
(1) A person is exempt from any requirement under this Act to be authorised by a licence or permit to possess or use a firearm (other than a prohibited firearm) if the person possesses or uses the firearm only:
(a) at a shooting range approved by the Commissioner in accordance with the regulations and while under the direct supervision of a person who is authorised by a licence to possess or use a firearm of that kind, or(b) while participating in a firearms safety training course approved by the Commissioner in accordance with the regulations and while under the direct supervision of a firearms instructor approved by the Commissioner in accordance with the regulations.
(2) Any such exemption from the requirement to be authorised by a licence or permit to possess or use a firearm is subject to the requirements prescribed by the regulations.
(3) This section does not apply in relation to a person who is under the age of 12 years.One would think that the exemption would be subject to stringent requirements, but turn to the regulations and you'll find the only requirement is that a person fill out a questionnaire and not answer 'yes' to questions like "are you currently suffering from any mental illness or other disorder that may prevent you from using a firearm safely?"
That and being supervised at all times by a licensed shooter, who must carry the weapon to and from the unlicensed self-declared sane person. Except when they're not supervising and instead leaving the weapon with the self-declared sane person to take home. And except when they are selling ammunition to the same person.
All of this occurred in the case of Shamin Fernando, who only had to lie about having a mental illness in order to legally practice killing her father, and then be in a position to walk out of the club with a gun.
The Fernando family have been campaigning to have s.6B Firearms Act (NSW) repealed. After this tragedy, you might question the case for the retention of the provision and its associated regulations in their current form.
A petition to the Police Minister, Michael Gallacher, has been set up on change.org, urging the government to repeal this law. If you would like your support for the repeal to be registered, please consider adding your name to the petition.
Without this provision in its current form, a severely mentally ill person could not legally get their hands on a firearm. A good idea, you might think.
Monday, May 7, 2012
Prevention the only hope for young offenders, because cure is failing
Gino Vumbaca | SMH | May 02, 2012
In the aftermath of the Kings Cross police shooting of Aboriginal teenagers driving a stolen vehicle, the Herald has published an investigation into juvenile justice and how we deal with children that get into serious trouble.
It's sometimes too easy to look for someone to blame for youth crime - be it parents, government departments or others. What is harder to find are effective solutions, especially when they challenge the prevailing political and media orthodoxy.
Tonight, however, in what may be the start of some long overdue reform in NSW, the Governor, Marie Bashir, will launch a campaign to reduce the staggeringly high rate of young indigenous people in detention centres. It is led by the Aboriginal Legal Service and includes Michael Kirby, Mick Dodson, Bob Debus, Adam Goodes, Mick Gooda, Marcia Ella Duncan, Naomi Mayers, Nick Cowdery and other prominent Australians who want to make ''justice reinvestment'' the new norm.
If the current trajectory continues we are in real danger of losing a generation of young indigenous people. In NSW, they make up more than half of the detention population yet just 2.2 per cent of the general population. An Aboriginal youth facing the court system is 28 times more likely to be placed in juvenile detention than their non-indigenous counterparts. This is a shameful indictment of our current approach, which routinely consigns young Aboriginal people to detention. It cries out for a new approach that includes early intervention, prevention and diversion with incarceration as a last resort only - in short, what is becoming known around the world as ''justice reinvestment''.
Justice reinvestment is not about spending more of our taxes; it is about redirecting the current ineffective investments we are making in the justice system into areas and programs that can provide better, safer and healthier communities. It also reduces the extraordinary costs each time we put a juvenile in a detention centre or an adult in prison.
In NSW, the Auditor-General has revealed that the average annual cost of supervising and caring for juvenile offenders last year was $237,980 a person - a quarter of a million dollars a year for each young person locked up, and what do we get in return? The Australian Institute of Criminology has estimated that more than 30 per cent of adult prisoners were actually first incarcerated within the juvenile detention system. Given there are about 30,000 adult prisoners in the country and fewer than 1,000 juveniles in detention in any given year, that is a lot of juveniles going from detention to adult prison. It is also a system in which just under 60 per cent of NSW prisoners have previously served a sentence. In effect, our juvenile detention centres have become the learning centres for a cycle of offending and imprisonment.
The choices facing NSW today as the jurisdiction with the largest prison and juvenile detainee population are quite stark. We can continue on what is called the tough-on-crime path and replicate what is now known as the American disease. The US is home to 5 per cent of the world's people and 25 per cent of the world's prisoners. The prominent New York-based public health physician Ernie Drucker's recent book describes in epidemiological terms how this prisons ''plague'' has led to more than 2 million people being incarcerated, 800,000 on parole, and more than 4 million on probation. The ancillary effect of this type of justice means millions of children and family members of those incarcerated also come into regular and potentially damaging contact with the justice system.
The US, Russia and China lead the world in imprisonment. They show us the inevitable outcome of such tough policies. Enormous resources are being sucked out of other budget priorities, such as education and health, and they have high re-offending rates as people are churned through a brutal penal system and returned to the community.
NSW has not reached this point but finds itself on a similar path. I am not sure when developing policy based on evidence became synonymous with being soft rather than smart, but I think we should ask the next journalist, commentator or politician who portrays options other than prison as being ''soft'' what their view would be if their family member were facing incarceration. I would bet London to the proverbial brick they would stop at nothing to have them spared. This is because deep down they know, as does anyone who works or has been in prison, that it is an intimidating and violent system, and the last place where we can expect rehabilitation.
In contrast, justice reinvestment is about prevention rather than cure - about creating alternative pathways for young people who may otherwise be destined to lifelong offending, drug and alcohol misuse and suicide. When young people offend, there are likely to be other issues at play that are contributing. Justice reinvestment is our best option to target these causes and factors.
A think tank called Australia 21 recently called for a rethink on drug policy based on a review of the evidence and current approaches. One can only wonder how we can keep ignoring the evidence of our law and order policies. Just as a war on drugs can descend into a war against its citizens, a tough on crime approach can degenerate into a war against its most disadvantaged.
Gino Vumbaca is the executive director of the Australian National Council on Drugs and a member of the Campaign Committee. www.justicereinvestmentnow.net.au
In the aftermath of the Kings Cross police shooting of Aboriginal teenagers driving a stolen vehicle, the Herald has published an investigation into juvenile justice and how we deal with children that get into serious trouble.
It's sometimes too easy to look for someone to blame for youth crime - be it parents, government departments or others. What is harder to find are effective solutions, especially when they challenge the prevailing political and media orthodoxy.
Tonight, however, in what may be the start of some long overdue reform in NSW, the Governor, Marie Bashir, will launch a campaign to reduce the staggeringly high rate of young indigenous people in detention centres. It is led by the Aboriginal Legal Service and includes Michael Kirby, Mick Dodson, Bob Debus, Adam Goodes, Mick Gooda, Marcia Ella Duncan, Naomi Mayers, Nick Cowdery and other prominent Australians who want to make ''justice reinvestment'' the new norm.
If the current trajectory continues we are in real danger of losing a generation of young indigenous people. In NSW, they make up more than half of the detention population yet just 2.2 per cent of the general population. An Aboriginal youth facing the court system is 28 times more likely to be placed in juvenile detention than their non-indigenous counterparts. This is a shameful indictment of our current approach, which routinely consigns young Aboriginal people to detention. It cries out for a new approach that includes early intervention, prevention and diversion with incarceration as a last resort only - in short, what is becoming known around the world as ''justice reinvestment''.
Justice reinvestment is not about spending more of our taxes; it is about redirecting the current ineffective investments we are making in the justice system into areas and programs that can provide better, safer and healthier communities. It also reduces the extraordinary costs each time we put a juvenile in a detention centre or an adult in prison.
In NSW, the Auditor-General has revealed that the average annual cost of supervising and caring for juvenile offenders last year was $237,980 a person - a quarter of a million dollars a year for each young person locked up, and what do we get in return? The Australian Institute of Criminology has estimated that more than 30 per cent of adult prisoners were actually first incarcerated within the juvenile detention system. Given there are about 30,000 adult prisoners in the country and fewer than 1,000 juveniles in detention in any given year, that is a lot of juveniles going from detention to adult prison. It is also a system in which just under 60 per cent of NSW prisoners have previously served a sentence. In effect, our juvenile detention centres have become the learning centres for a cycle of offending and imprisonment.
The choices facing NSW today as the jurisdiction with the largest prison and juvenile detainee population are quite stark. We can continue on what is called the tough-on-crime path and replicate what is now known as the American disease. The US is home to 5 per cent of the world's people and 25 per cent of the world's prisoners. The prominent New York-based public health physician Ernie Drucker's recent book describes in epidemiological terms how this prisons ''plague'' has led to more than 2 million people being incarcerated, 800,000 on parole, and more than 4 million on probation. The ancillary effect of this type of justice means millions of children and family members of those incarcerated also come into regular and potentially damaging contact with the justice system.
The US, Russia and China lead the world in imprisonment. They show us the inevitable outcome of such tough policies. Enormous resources are being sucked out of other budget priorities, such as education and health, and they have high re-offending rates as people are churned through a brutal penal system and returned to the community.
NSW has not reached this point but finds itself on a similar path. I am not sure when developing policy based on evidence became synonymous with being soft rather than smart, but I think we should ask the next journalist, commentator or politician who portrays options other than prison as being ''soft'' what their view would be if their family member were facing incarceration. I would bet London to the proverbial brick they would stop at nothing to have them spared. This is because deep down they know, as does anyone who works or has been in prison, that it is an intimidating and violent system, and the last place where we can expect rehabilitation.
In contrast, justice reinvestment is about prevention rather than cure - about creating alternative pathways for young people who may otherwise be destined to lifelong offending, drug and alcohol misuse and suicide. When young people offend, there are likely to be other issues at play that are contributing. Justice reinvestment is our best option to target these causes and factors.
A think tank called Australia 21 recently called for a rethink on drug policy based on a review of the evidence and current approaches. One can only wonder how we can keep ignoring the evidence of our law and order policies. Just as a war on drugs can descend into a war against its citizens, a tough on crime approach can degenerate into a war against its most disadvantaged.
Gino Vumbaca is the executive director of the Australian National Council on Drugs and a member of the Campaign Committee. www.justicereinvestmentnow.net.au
Wednesday, April 25, 2012
Ray Hadley interview with Barry O'Farrell and Robert Brown
This week we heard Ray Hadley interview Premier Barry O'Farrell on gun crime, the bail review and the "weak-kneed, lily-livered" Attorney General Greg Smith. Ray then moves on to the Shooters and Fishers' Robert Brown, who talks about a bill to deal with the punishment of gun crime.
Listen to the interview here.
It is interesting in the BOF interview to see how the Premier deals with Hadley's ravings. It appears he realises that a proper, reasonable discussion with Hadley is out of the question, and so chooses the only sensible option: tell Ray what he wants to hear and let him think he's won.
When questioned on the bail review, watch how O'Farrell appears to play a successful judo trick on Hadley. Of course, it could be a sign of a complete capitulation to the Police Association's campaign against bail reform, but we rather hope that it's an example of how a seasoned pro like BOF deals with an absolute galah like Hadley.
The Shooters and Fishers' bill is so far receiving no support. That is not surprising, as the major parties are not, generally speaking, made up of fools. The Shooters say on their website:
The Shooters idea, as far as we can work out, is that instead of the Court treating the presence of a firearm in a crime as an aggravating feature on sentence, the Court should instead, for example, impose a sentence for a robbery simpliciter under s.94 (assessing its' seriousness without counting the gun), arrive at a number, and then impose a separate sentence for the possession of the gun during the crime, which can't be any less than the sentence first imposed, and must be cumulative.
"Unworkable" does not do this conceptual dog's breakfast justice.
Let's not forget these are the same geniuses that introduced s.6B Firearms Act, the amendment that allowed the severely mentally ill Shamin Fernando to obtain a gun and ammunition from a gun club with no licence or permit, and no background checks into her mental health, take them home and then shoot dead her father.
Not much more needs to be said about this mob or their backwoods ideas.
Hadley clearly knew nothing about the bill when Brown made a failed attempt to explain it, but nonetheless went ahead and wholeheartedly endorsed it. The same man who threatens governments they will be in Opposition if they don't bend the knee before him.
Listen to the interview here.
It is interesting in the BOF interview to see how the Premier deals with Hadley's ravings. It appears he realises that a proper, reasonable discussion with Hadley is out of the question, and so chooses the only sensible option: tell Ray what he wants to hear and let him think he's won.
When questioned on the bail review, watch how O'Farrell appears to play a successful judo trick on Hadley. Of course, it could be a sign of a complete capitulation to the Police Association's campaign against bail reform, but we rather hope that it's an example of how a seasoned pro like BOF deals with an absolute galah like Hadley.
The Shooters and Fishers' bill is so far receiving no support. That is not surprising, as the major parties are not, generally speaking, made up of fools. The Shooters say on their website:
"We want the law to regard the possession of a firearm during the commission of a crime as a separate crime in itself, not an aggravating offence, as the law sees it now.As it stands, an ordinary robbery under s.94 carries a 14 year maximum. Robbery armed with a dangerous weapon under s.98 carries an almost double maximum of 25 years.
"It will be a separate, additional crime to be dealt with separately by the law both in terms of the judgement and the penalty the court might impose.
"The Bill proposes that on conviction of the separate offence of being in possession of a firearm while committing a crime, the person so convicted will be sentenced to a period of detention NOT LESS than the period of sentence for the core crime, to be served cumulatively.
The Shooters idea, as far as we can work out, is that instead of the Court treating the presence of a firearm in a crime as an aggravating feature on sentence, the Court should instead, for example, impose a sentence for a robbery simpliciter under s.94 (assessing its' seriousness without counting the gun), arrive at a number, and then impose a separate sentence for the possession of the gun during the crime, which can't be any less than the sentence first imposed, and must be cumulative.
"Unworkable" does not do this conceptual dog's breakfast justice.
Let's not forget these are the same geniuses that introduced s.6B Firearms Act, the amendment that allowed the severely mentally ill Shamin Fernando to obtain a gun and ammunition from a gun club with no licence or permit, and no background checks into her mental health, take them home and then shoot dead her father.
Not much more needs to be said about this mob or their backwoods ideas.
Hadley clearly knew nothing about the bill when Brown made a failed attempt to explain it, but nonetheless went ahead and wholeheartedly endorsed it. The same man who threatens governments they will be in Opposition if they don't bend the knee before him.
Do something Barry - time to apply the fear factor
Tim Priest | The Daily Telegraph | April 24, 2012
LAST Monday Sydney awoke to the news that there had been five drive-by shootings during the night with both houses and business premises targeted. On Friday, there was another.
These shootings brought the tally to 20 incidents since the beginning of April and more than 80 since the O'Farrell-led Coalition government took power.
In one incident, shots were fired into residential premises where young children were nearby but miraculously missed them.
Both the government and the Police Commissioner have been at pains to describe the shootings as "targeted" attacks, and they are probably right. By emphasising the "targeted" aspect of the shootings, the government and senior police are being clever in attempting to allay the real fears that the residents of western Sydney hold in relation to this now out-of-control menace, the nightly drive-by.
Yes, they may be "targeted" attacks but eventually some of these bullets will miss their intended "targets" and either kill or wound an innocent person, such as the young children playing innocently in their home on Sunday night.
I recently read figures compiled in a study of drive-by shootings in the US, where up to 38 per cent of the victims are in fact innocent bystanders. No doubt many of these shootings were "targeted" attacks - it's just that they hit the wrong "target".
One of the cases I read recently in the US involved a grandmother who was minding her grandchildren while the parents were at work. She was outside a unit block watching her grandchildren play when gang members decided to shoot up the building. A stray bullet struck the grandmother, killing her in front of her terrified grandchildren.
The other issue about the government and police response to this almost daily occurrence is to hold a press conference with senior police calling the gunmen "cowards" and "idiots". We all know this but the problem is, these "idiots" are outsmarting everyone - the police, customs and border security and the O'Farrell government.
The emotion these senior police show has worried a few veteran detectives and journalists that I have spoken to in the last week or so. All of them agree that senior police and indeed the NSW government look beaten. They have few answers left to give and are relying on their media advisers to "prop them up".
The way senior police and the government are dealing with this crisis reminds me of New York before Rudolf Giuliani and his police commissioner Bill Bratton.
LAST Monday Sydney awoke to the news that there had been five drive-by shootings during the night with both houses and business premises targeted. On Friday, there was another.
These shootings brought the tally to 20 incidents since the beginning of April and more than 80 since the O'Farrell-led Coalition government took power.
In one incident, shots were fired into residential premises where young children were nearby but miraculously missed them.
Both the government and the Police Commissioner have been at pains to describe the shootings as "targeted" attacks, and they are probably right. By emphasising the "targeted" aspect of the shootings, the government and senior police are being clever in attempting to allay the real fears that the residents of western Sydney hold in relation to this now out-of-control menace, the nightly drive-by.
Yes, they may be "targeted" attacks but eventually some of these bullets will miss their intended "targets" and either kill or wound an innocent person, such as the young children playing innocently in their home on Sunday night.
I recently read figures compiled in a study of drive-by shootings in the US, where up to 38 per cent of the victims are in fact innocent bystanders. No doubt many of these shootings were "targeted" attacks - it's just that they hit the wrong "target".
One of the cases I read recently in the US involved a grandmother who was minding her grandchildren while the parents were at work. She was outside a unit block watching her grandchildren play when gang members decided to shoot up the building. A stray bullet struck the grandmother, killing her in front of her terrified grandchildren.
The other issue about the government and police response to this almost daily occurrence is to hold a press conference with senior police calling the gunmen "cowards" and "idiots". We all know this but the problem is, these "idiots" are outsmarting everyone - the police, customs and border security and the O'Farrell government.
The emotion these senior police show has worried a few veteran detectives and journalists that I have spoken to in the last week or so. All of them agree that senior police and indeed the NSW government look beaten. They have few answers left to give and are relying on their media advisers to "prop them up".
The way senior police and the government are dealing with this crisis reminds me of New York before Rudolf Giuliani and his police commissioner Bill Bratton.
Chief law officer eschews a law-and-order auction for young offenders
Imre Salusinky | The Australian | 21 April 2012
THERE have been some under-performers in the one-year-old NSW Coalition government, and a couple of star turns as well - but for sheer surprise value, nobody has outdone the government's chief law officer, Greg Smith.
As a former high-ranking prosecutor in the office of the Director of Public Prosecutions, and coming from the Liberal Party's Right faction, the state's new Attorney-General could have been expected to ramp up the "law-and-order auction" that has been a feature of NSW politics for decades.
Instead, he has done the opposite. Under Smith, the government has begun to explore way of dealing with crime that address causes, rather than simply imposing tougher penalties on perpetrators. In particular, Smith has flagged measures to reduce the number of young people on remand, one of the ugliest features of the criminal justice system in NSW. He's also asked the Law Reform Commission to clean up the dog's breakfast that has become sentencing law in NSW after successive state governments legislated mandatory sentences and non-parole periods to burnish their "tough on crime" credentials.
Smith's judicial appointments have not met any ideological standard but appear to be based on merit and due consultation with key stakeholders. And he's paying the predictable price, being accused of "going soft" on criminals by influential sections of the electronic and print media.
At a youthful 64, Smith is a devout Catholic, plays in a folk group called the Tokens that visits nursing homes, and is a proud grandfather. For him, recent months have been a repeat baptism of fire. During his first months in parliament, in 2007, Labor, disgracefully, trawled through his record as a prosecutor in an effort to portray him as soft on pedophiles.
"I always expected there to be an attack," the Attorney-General tells Inquirer. "The fact that, as a prosecutor, I had experience running some very difficult trials, that made me tougher. Your witnesses may be hostile but that's not the end of it. You can recover your position, as long as you keep calm and keep smiling."
THERE have been some under-performers in the one-year-old NSW Coalition government, and a couple of star turns as well - but for sheer surprise value, nobody has outdone the government's chief law officer, Greg Smith.
As a former high-ranking prosecutor in the office of the Director of Public Prosecutions, and coming from the Liberal Party's Right faction, the state's new Attorney-General could have been expected to ramp up the "law-and-order auction" that has been a feature of NSW politics for decades.
Instead, he has done the opposite. Under Smith, the government has begun to explore way of dealing with crime that address causes, rather than simply imposing tougher penalties on perpetrators. In particular, Smith has flagged measures to reduce the number of young people on remand, one of the ugliest features of the criminal justice system in NSW. He's also asked the Law Reform Commission to clean up the dog's breakfast that has become sentencing law in NSW after successive state governments legislated mandatory sentences and non-parole periods to burnish their "tough on crime" credentials.
Smith's judicial appointments have not met any ideological standard but appear to be based on merit and due consultation with key stakeholders. And he's paying the predictable price, being accused of "going soft" on criminals by influential sections of the electronic and print media.
At a youthful 64, Smith is a devout Catholic, plays in a folk group called the Tokens that visits nursing homes, and is a proud grandfather. For him, recent months have been a repeat baptism of fire. During his first months in parliament, in 2007, Labor, disgracefully, trawled through his record as a prosecutor in an effort to portray him as soft on pedophiles.
"I always expected there to be an attack," the Attorney-General tells Inquirer. "The fact that, as a prosecutor, I had experience running some very difficult trials, that made me tougher. Your witnesses may be hostile but that's not the end of it. You can recover your position, as long as you keep calm and keep smiling."
Sunday, April 22, 2012
Saturday, April 21, 2012
Why do we need any more semi-automatic pistols in Australia?
Samantha Lee | National Times | April 18, 2012
Remembering the Port Arthur massacre ... as the law now stands, a licensed gun owner may legally purchase a military-style, semi-automatic pistol with a magazine capacity of 10 rounds.
April is an eerie time of year. Sixteen years ago this month, Martin Bryant opened fire at historic Port Arthur in Tasmania, killing 35 people and wounding 18 others.
This month also marks the anniversaries of the Columbine massacre of April 20, 1999 in the US, where 13 people were killed and at least 21 injured, the Virginia Tech massacre of April 16, 2007, where 32 people died and 25 were injured, and now Oakland's Oikos University massacre, which happened two weeks ago, in which seven were killed and three injured.
Timing is not the only factor these atrocities have in common; the other is the use of semi-automatic firearms.
A semi-automatic gun, also known as a self-loading firearm, is used in most of these types of massacres because of the weapon's automatic reloading capability. Each time the trigger is pulled, ammunition is automatically loaded into the chamber. A person can fire up to 20 shots without needing to stop and reload.
There are two main types of semi-automatics: longarms (also known as rifles and shotguns) and handguns (also known as pistols).
After Port Arthur, Australia banned semi-automatic longarms, but did not extend the ban to semi-automatic pistols. Why?
The explanations that various analysts have provided include that Bryant used semi-automatic longarms, not handguns; that in 1996 the law on handguns was near to uniform across Australia; and that it would have made it extremely difficult to obtain the National Agreement on Firearms if pistols were included.
Whatever the reasons for putting to one side the issue of handguns, this ongoing legal anomaly has become a major public concern for Australia, requiring immediate attention.
Remembering the Port Arthur massacre ... as the law now stands, a licensed gun owner may legally purchase a military-style, semi-automatic pistol with a magazine capacity of 10 rounds.
April is an eerie time of year. Sixteen years ago this month, Martin Bryant opened fire at historic Port Arthur in Tasmania, killing 35 people and wounding 18 others.
This month also marks the anniversaries of the Columbine massacre of April 20, 1999 in the US, where 13 people were killed and at least 21 injured, the Virginia Tech massacre of April 16, 2007, where 32 people died and 25 were injured, and now Oakland's Oikos University massacre, which happened two weeks ago, in which seven were killed and three injured.
Timing is not the only factor these atrocities have in common; the other is the use of semi-automatic firearms.
A semi-automatic gun, also known as a self-loading firearm, is used in most of these types of massacres because of the weapon's automatic reloading capability. Each time the trigger is pulled, ammunition is automatically loaded into the chamber. A person can fire up to 20 shots without needing to stop and reload.
There are two main types of semi-automatics: longarms (also known as rifles and shotguns) and handguns (also known as pistols).
After Port Arthur, Australia banned semi-automatic longarms, but did not extend the ban to semi-automatic pistols. Why?
The explanations that various analysts have provided include that Bryant used semi-automatic longarms, not handguns; that in 1996 the law on handguns was near to uniform across Australia; and that it would have made it extremely difficult to obtain the National Agreement on Firearms if pistols were included.
Whatever the reasons for putting to one side the issue of handguns, this ongoing legal anomaly has become a major public concern for Australia, requiring immediate attention.
Ending Sydney’s law-and-order auction
Robert Milliken | Inside Story | 3 April 2012
The NSW attorney-general has taken the politically risky step of trying to reduce the prison population, writes Robert Milliken
NSW attorney-general Greg Smith (above, right) and security manager Patrick Aboud viewing the 300-bed drug treatment facility for prisoners at the state’s John Morony Correctional Complex.
Photo: Kate Geraghty/ Fairfax
WHEN Sydney’s southwest suburbs suffered a wave of drive-by shootings early this year, the city’s tabloid press and notorious radio shock jocks went into overdrive. Their target was Greg Smith, who is about to complete his first year as attorney-general in Barry O’Farrell’s state government. In most respects, Smith is a classic conservative Liberal: a barrister, and former public prosecutor, who represents the leafy electorate of Epping. His Sydney north shore constituency is a world away from the streets on the other side of town where rival gangs of young men shot up each other’s homes in an intimidating display of turf warfare.
In one regard, though, Smith is something of a radical. After sixteen years of state Labor governments, he came to power promising to reform the state’s prison system. Instead of locking more people up, Smith has pledged to find formulas to allow many minor offenders and young criminals to be rehabilitated and then let go.
Sydney’s Daily Telegraph has waged an unrelenting campaign against Smith. It calls him “Marshmallow Smith,” and accuses him of going “soft on crime.” In one extraordinary front page splash in early February, the paper claimed: “Exclusive: Gays, Minorities Get Bail but the Rest… Go Straight to Jail.” The piece claimed to be based on a draft report by the NSW Law Reform Commission, which Smith had not seen. Media hype of this sort threatens to unsettle the government, in a political climate in which law-and-order auctions are the name of the game: both sides compete in proving to voters that they are the toughest on crime.
Smith claims to be unmoved. “The whole hardline approach against crime has been a failure in many places,” he tells me. “This attempt to make me look softer misrepresents what I am trying to do. I am trying to turn people away from crime. It’s not soft, it’s being more pragmatic.”
The challenge Smith faces in testing his pragmatic approach is daunting. Australia spends $11.5 billion a year on law and order, about $511 a year per person. The dubious honour for the biggest spending goes to New South Wales. In evidence late last year to a parliamentary estimates committee, and in a speech to a solicitors’ conference in Sydney, Smith painted a chilling picture.
Within two years of their release, 43 per cent of NSW prisoners reoffend, compared with just under 37 per cent in Victoria, for example, and less than 30 per cent in Tasmania. (The Australian Capital Territory will start reporting on recidivism from 2011–12.) This high recidivism rate accompanies another grim profile: of 15,000 people taken into custody in New South Wales in 2007–08, almost two-thirds were affected by drugs or alcohol when they committed their most serious offences.
Smith’s state also has the highest number of prisoners on remand in Australia. Over the ten years to October 2011, the number of adults held on remand rose by 86 per cent. More worryingly, more than four-fifths of the juveniles held on remand were eventually set free with non-custodial sentences. Locking these young people up, when their crimes are finally found not to deserve such punishment, simply creates more problems, says Smith: “They spend a long time being exposed to a university of crime among prisoners.”
NSW attorney-general Greg Smith (above, right) and security manager Patrick Aboud viewing the 300-bed drug treatment facility for prisoners at the state’s John Morony Correctional Complex.
Photo: Kate Geraghty/ Fairfax
WHEN Sydney’s southwest suburbs suffered a wave of drive-by shootings early this year, the city’s tabloid press and notorious radio shock jocks went into overdrive. Their target was Greg Smith, who is about to complete his first year as attorney-general in Barry O’Farrell’s state government. In most respects, Smith is a classic conservative Liberal: a barrister, and former public prosecutor, who represents the leafy electorate of Epping. His Sydney north shore constituency is a world away from the streets on the other side of town where rival gangs of young men shot up each other’s homes in an intimidating display of turf warfare.
In one regard, though, Smith is something of a radical. After sixteen years of state Labor governments, he came to power promising to reform the state’s prison system. Instead of locking more people up, Smith has pledged to find formulas to allow many minor offenders and young criminals to be rehabilitated and then let go.
Sydney’s Daily Telegraph has waged an unrelenting campaign against Smith. It calls him “Marshmallow Smith,” and accuses him of going “soft on crime.” In one extraordinary front page splash in early February, the paper claimed: “Exclusive: Gays, Minorities Get Bail but the Rest… Go Straight to Jail.” The piece claimed to be based on a draft report by the NSW Law Reform Commission, which Smith had not seen. Media hype of this sort threatens to unsettle the government, in a political climate in which law-and-order auctions are the name of the game: both sides compete in proving to voters that they are the toughest on crime.
Smith claims to be unmoved. “The whole hardline approach against crime has been a failure in many places,” he tells me. “This attempt to make me look softer misrepresents what I am trying to do. I am trying to turn people away from crime. It’s not soft, it’s being more pragmatic.”
The challenge Smith faces in testing his pragmatic approach is daunting. Australia spends $11.5 billion a year on law and order, about $511 a year per person. The dubious honour for the biggest spending goes to New South Wales. In evidence late last year to a parliamentary estimates committee, and in a speech to a solicitors’ conference in Sydney, Smith painted a chilling picture.
Within two years of their release, 43 per cent of NSW prisoners reoffend, compared with just under 37 per cent in Victoria, for example, and less than 30 per cent in Tasmania. (The Australian Capital Territory will start reporting on recidivism from 2011–12.) This high recidivism rate accompanies another grim profile: of 15,000 people taken into custody in New South Wales in 2007–08, almost two-thirds were affected by drugs or alcohol when they committed their most serious offences.
Smith’s state also has the highest number of prisoners on remand in Australia. Over the ten years to October 2011, the number of adults held on remand rose by 86 per cent. More worryingly, more than four-fifths of the juveniles held on remand were eventually set free with non-custodial sentences. Locking these young people up, when their crimes are finally found not to deserve such punishment, simply creates more problems, says Smith: “They spend a long time being exposed to a university of crime among prisoners.”
Tuesday, April 10, 2012
The Lukewarm Attomey
Andrew Elder | Politically Homeless | 09 April 2012
So then, because thou art luke-warm, and neither cold nor hot, I will vomit thee out of my mouth.
- Revelation 3:16
NSW Attorney General Greg Smith is in grave danger politically. His agenda needs to be clearer than it is, and stronger, if he is to survive. If he goes on as he is he'll become a bigger target for the opposition than Robyn Parker is but without the personal affection and entrenched political support that Parker can command.
Smith came out of the NSW Labor Right and the broader Liberal Party gave him one of their safest seats, Epping, in 2007. Say what you like about the hopelessness of the NSW Liberals, but it is a genuine pity that former Epping MP Andrew Tink had to retire through ill-health and never became a minister while [take your pick from any NSW ALP arseclown who became a state government minister in their spare time] did. Liberals love all that prodigal-son stuff. Smith was spared the indignity of powerlessness that afflicts other fence-jumpers and blow-ins through a Faustian bargain with the Christianist far right faction headed by David Clarke. As with all Faustian bargains it was probably a lot of fun while it lasted.
This article tells us the bargain is off.
The idea of attacking barristers because of their clientele is bullshit. It is both a deliberate misunderstanding and misrepresentation of how the Anglo-Australian legal system works, and a cack-handed attempt to import the worst tactics of US Republicans posing as people of principle when playing partisan silly-buggers. This post by Andrew Tiedt goes into more and better detail on this. Insofar as there was any substance to Phelps' attack it can be brushed aside easily. What's significant here is the politics.
Smith came out of the NSW Labor Right and the broader Liberal Party gave him one of their safest seats, Epping, in 2007. Say what you like about the hopelessness of the NSW Liberals, but it is a genuine pity that former Epping MP Andrew Tink had to retire through ill-health and never became a minister while [take your pick from any NSW ALP arseclown who became a state government minister in their spare time] did. Liberals love all that prodigal-son stuff. Smith was spared the indignity of powerlessness that afflicts other fence-jumpers and blow-ins through a Faustian bargain with the Christianist far right faction headed by David Clarke. As with all Faustian bargains it was probably a lot of fun while it lasted.
This article tells us the bargain is off.
The idea of attacking barristers because of their clientele is bullshit. It is both a deliberate misunderstanding and misrepresentation of how the Anglo-Australian legal system works, and a cack-handed attempt to import the worst tactics of US Republicans posing as people of principle when playing partisan silly-buggers. This post by Andrew Tiedt goes into more and better detail on this. Insofar as there was any substance to Phelps' attack it can be brushed aside easily. What's significant here is the politics.
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