1×03: The Antiquity of a Prejudice is No Reason for its Survival

In this episode, I’ll talk about an issue that has been bubbling away on the political agenda for a very long time now: should two people of the same sex have a legal right to be married in Australia? How have other countries come to legalise same sex marriage, and what is the current status of the debate in Australia?
Continue reading “1×03: The Antiquity of a Prejudice is No Reason for its Survival”

High Court warns appeal courts to respect the role of the jury

The High Court has reinstated a murder conviction in the high profile case of Gerard Baden-Clay, confirming an initial jury verdict. Baden-Clay was charged with murdering his wife in 2012 after she discovered he was having an affair. He was tried in the Supreme Court of Queensland in 2014. The jury convicted him following a hearing that lasted more than a month, and he was sentenced to life imprisonment. Baden-Clay appealed the jury verdict, arguing that it was “unreasonable, or can not be supported having regard to the evidence”.

During the appeal, Baden-Clay’s lawyers argued that the jury could not rule out the possibility that their client had an altercation with his wife and accidentally killed her. This would mean they could not find, beyond reasonable doubt, that Baden-Clay had the required mens rea for murder (that is, intention to kill or seriously injure the victim). The Queensland Court of Appeal accepted that argument and substituted a verdict of manslaughter.

The prosecution then appealed this decision to the High Court, arguing that the murder verdict should be reinstated. They said that while “the defence offered theories of suicide, overdose, a fall, drowning and alcohol as the cause, unintended or accidental killing by Mr Baden-Clay was not offered during trial”. In fact Baden-Clay had chosen to give evidence and denied any involvement with his wife’s death, which would rule out accidental death.

The High Court agreed with this argument. In the unanimous judgment of five justices, it found that Baden-Clay had chosen to testify that he had not had a physical altercation with his wife, and therefore “the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.” The jury could logically exclude the accidental death scenario, which meant their guilty verdict was not unreasonable.

Importantly, the High Court gave a strongly-worded warning that overturning a jury’s verdict should not be done lightly: “Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … [A] court of criminal appeal is not to substitute trial by an appeal court for trial by jury.”

While the issue in this case was the concept of an “unreasonable” verdict under s 668E(1) of the Queensland Criminal Code, the High Court’s comments will be relevant in other jurisdictions. For example, the Victorian Criminal Procedure Act 2009 includes a similar rule for appeals in s 276(1)(a): the Court of Appeal “must allow the appeal against conviction” if the court is satisfied that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence” — in other words, if the appeal court agrees that the jury reached an impossible verdict based on the evidence presented at the trial.

The High Court has made it clear this power to overturn a jury verdict should only be exercised cautiously.

Community support but still no legal right to die

Professor George Williams argues: “When it comes to achieving the right to die, community support has yet to translate into votes on the floor of Parliament”. He notes that “the law forbids a doctor from acting on a request from a terminally ill patient to end their life… The best that the law offers such a person is to permit them to starve to death”, citing the WA case of Christian Rossiter. Euthanasia was legalised in the Northern Territory in 1996, but the Commonwealth used its constitutional power over the territories to repeal that law in 1997, by withdrawing the NT’s self-government over laws concerning euthanasia. A bill to legalise euthanasia was narrowly defeated in the Tasmanian parliament last year. In Victoria, Dr Rodney Syme has been defying the law in order to pressure the government to change the law, and an opinion poll suggests a majority of Victorians support legal change, but the Andrews Government has given no indication that it intends to act on the issue.

Homicide rate remains at historic low

The latest Australian Institute of Criminology report on homicide offences reveals that “Since 2001–02, there has been a downward trend in the homicide rate, decreasing from 1.8 per 100,000 to 1.1 in the 2010–11 and 2011–12 financial years.” Victoria had the lowest rate of any jurisdiction in recent years, with less than 1 homicide per 100,000 people. The report provides a detailed statistical breakdown of all homicides (defined as “murder and manslaughter, excluding driving causing death”) in Australia, according to location, cause of death, motive, characteristics of offenders and victims, and even time of day—Sunday evening is the most dangerous time of the week.

Mandatory jail opens bidding in law-and-order auction

Premier Denis Napthine has proposed new legislation to crack down on “coward punches” (formerly known as “king hits”) by introducing a 10-year mandatory minimum jail term for the offence. According to the Premier, “Our expectation is that this legislation sends such a strong message that we don’t have people doing these cowards punches in the first place.” However, in a 2008 research report, the Victorian Sentencing Advisory Council warned against mandatory sentencing, noting: “Deterrence presupposes that would-be offenders are rational actors who are capable of weighing up, and actually do weigh up, the costs and benefits of a particular course of conduct. Crime, however, is often impulsive and lacking such judicious forethought.” Chris Berg of the Institute of Public Affairs argues that judges need flexibility to deliver justice: “Discretionary sentencing is a fail-safe mechanism to prevent laws conceived in the abstract from becoming absurdities in practice. … This principle is too important to abandon just because an election is coming up.” The Victorian proposal is harsher than the 8-year mandatory sentence introduced in NSW earlier this year, which suggests the start of a “law-and-order auction” before November’s election.



HIV-specific crime to be amended or repealed

Regardless who wins the next Victorian election, section 19A of the Crimes Act 1958 (Vic) will be on their legislative agenda. The provision makes it an offence to “intentionally causes another person to be infected with a very serious disease”. It was added in 1993 in response to community fears about an AIDS epidemic, and “very serious disease” is defined to only include one disease: HIV, which causes AIDS. Health experts say section 19A is counterproductive because it stigmatises people with HIV, discouraging them from seeking treatment. At the 20th International AIDS Conference, held in Melbourne earlier this month, the Victorian Health Minister, David Davis, announced the government’s intention to amend section 19A”. This was cautiously welcomed by delegates at the conference, though they still had concerns; the Victorian AIDS Council said: “We are concerned by … the possibility that section 19A could be converted into a general provision covering other infectious diseases. We believe that would be a step in the wrong direction.” Soon afterwards, the Shadow Health Minister, Gavin Jennings, promised to repeal the section altogether.

Domestic violence requires jail for deterrence

Section 5 of the Sentencing Act 1991 (Vic) sets out five principles for sentencing in Victoria: punishment, deterrence, rehabilitation, denunciation and protection of the community. Each of these might be more or less significant in a particular case. The Court of Appeal today ruled: “General deterrence is of fundamental importance in cases of domestic violence.” Their Honours explained: “The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.” This decision forms a precedent that will need to be followed by courts sentencing for domestic violence in future. The Court upheld the man’s 8 year head sentence, with a non-parole period of 6 years, for breaking his de facto wife’s arms.

Good behaviour bond for violent vigilantes

Two Melbourne men have avoided a recorded conviction for an assault, despite inflicting a fractured skull, brain haemorrrhaging and hearing loss on their victim. After seeing a man punch a woman, they followed him down the road and took vigilante action. Magistrate Kate Hawkins took into account their remorse, and the circumstances of the attack. She said “it’s desirable to encourage young men to come to the aid of women who are being assaulted by men in the street”, but their “great error of judgment was taking the law into your own hands.” The men were placed on adjourned undertakings (commonly called good behaviour bonds) with conditions to attend positive lifestyle and anger management courses. According to Sentencing Advisory Council statistics, this is an exceptionally rare outcome for a charge of causing serious injury recklessly, which carries up to 15 years jail. The third man was earlier sentenced to a community correction order for his assault on the woman.

Pick-axe killer guilty of defensive homicide

A Victorian woman has been acquitted of murder despite hitting her partner with a pick-axe 16 times and burying him in a shallow grave. In its closing address, the prosecution argued, “You can ask yourselves, members of the jury, … was it because she was sick of him and because she could see that there was a nicer life… just along the way[?]” Her defence was that she had suffered years of abuse and was “living in a state of sustained terror”, and that she acted in self-defence. The jury returned a guilty verdict on the alternative charge of defensive homicide, under s 9AD of the Crimes Act 1958 (Vic). This form of manslaughter arises when the accused believes her conduct was necessary to prevent her death or really serious injury, but “she did not have reasonable grounds for the belief”.

Killer to spend 25 years in psychiatric care

A Melbourne man has been ordered to spend 25 years in a psychiatric hospital after being acquitted of the murder of his parents on the grounds of mental impairment. The family is upset that he did not face trial. However, the court heard expert evidence from three independent psychiatrists, who all agreed that the accused was suffering from paranoid schizophrenia and that the psychotic episode was not drug-induced. Section 20 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) creates a defence to criminal charges where a person “could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong”.