A judge in Florida has been recorded arguing with a defence lawyer before telling him, “If you want to fight, let’s go out back”. The lawyer then leaves the courtroom and an altercation can be heard. According to a colleague quoted by Florida Today, “The lawyer said as soon as he got in the hallway the judge grabbed him by the collar and began punching him in the head.” In Australia, the issue of judicial bullying has been debated by lawyers and judges, who acknowledge that courtroom exchanges are stressful and sometimes necessarily heated, and agree that workplace bullying is unacceptable.
VLRC considers Qld-style juror questioning
A Queensland judge has approved a series of questions to be asked of potential jurors in the trial of a man accused of murdering his wife. Before they are empanelled, they will be asked whether they lived near the family, whether they contributed to a fund to help find the killer, and whether they have ever expressed a view about the case. Queensland is the only State in which pre-trial questioning of jurors is allowed; however, as part of its inquiry into Jury Empanelment, the Victorian Law Reform Commission asked, “Should the judge or the parties have the ability to question prospective jurors to determine their impartiality in certain circumstances?” The VLRC’s final report was due on 31 May, and will be made public after it is tabled in parliament.
Prisoners increasingly likely to die after release
An Australian Institute of Health and Welfare study shows that Australian prisoners are “12 times more likely to die in the first four weeks after release than their peers in the community”, six times more likely to die in the first year—and the rate has been increasing over the last decade. The report suggests that drugs and suicide are two significant causes of post-release death. The University of Melbourne’s Stuart Kinner said, “A prison sentence in Australia is never meant to be a death sentence… but people released from prison remain at increased risk of death indefinitely”. Victorian prisons offer transition programs to assist people returning to the community, to improve their health and to reduce reoffending; however, increasing prison populations are putting those schemes under strain.
Shaw may be expelled for contempt of parliament
The Victorian Parliament’s Privileges Committee, which is responsible for investigating wrongdoing by MPs, has split along party lines in its report on the Member for Frankston, Geoff Shaw. The inquiry began when Shaw’s misuse of a government vehicle for his private business was found by the Ombudsman to be in breach of guidelines. The Liberal and National majority report found that Shaw’s contraventions were not “wilful”, but he should be required to repay the money. The Labor minority said he was “completely reckless, careless and indifferent to obligations”, and warned: “All options are on the table, including the expulsion of Geoff Shaw from parliament, the suspension of Geoff Shaw or a heavy fine.” For his part, Shaw says the committee were “nuff-nuffs”. The issue is sensitive, as Shaw holds the balance of power in the Legislative Assembly, and the Government relies on his support to pass its bills. The former Speaker, Ken Smith—who was forced to resign under pressure from Shaw—has announced his intention to cross the floor and vote to adopt the minority report, possibly suspending Shaw and creating a 43-43 vote deadlock in the Assembly. Shaw says he will run for parliament again as an independent, so the people of Frankston will have the final say.
Tougher penalties planned for drink-drivers
An interlock device is a breath-testing machine that prevents a car being started if the driver has alcohol in their breath. Under current Victorian law, “disqualified drivers found to be over 0.15, repeat offenders or those under the age of 26 who record 0.07 are required to have the devices fitted”. However, the Government has introduced the Road Safety Amendment Bill 2014 into the Legislative Assembly, which would tighten the rules so that they apply to disqualified drivers over 0.07, first offenders over 0.07, and probationary licence holders over the legal limit. According to the Transport Minister, Terry Mulder, “drink-drivers are responsible for 25 to 30 percent of deaths and 11 percent of serious injuries on our roads, while repeat drink-drivers make up 20 percent. Thirty per cent of drink-drivers involved in fatal crashes are repeat offenders.”
Brandis backing down on race law changes
Attorney-General George Brandis is reportedly “preparing to water down a controversial plan to scrap sections of the Racial Discrimination Act that restrict racist insults and hate speech”. A draft bill was released for public comment in March. As a result of lobbying, protests, petitions and written submissions, the Attorney-General is now rewriting the proposal, saying, “We did not engage in a period of both private and public consultation without intending to listen to what people had to say to us“. The government received more than 5300 submissions on the bill. (My submission is available here.)
Treasurer to test “politics” defence to defamation
Commonwealth Treasurer Joe Hockey is suing the Fairfax media company for defamation over articles published in its newspapers under the headline, “Treasurer for sale: Joe Hockey offers privileged access”. The articles described expensive fundraising dinners that allowed people to secretly contribute up to $22,000 to the Liberal Party, bypassing donation disclosure laws. Hockey claims the articles suggested he was corrupt, and that he has been “greatly injured, shunned and avoided” as a result. If the matter goes to trial (which is by no means certain), it will require the court to apply the precedent set by Lange v ABC: publication of defamatory matter is protected if it relates to political issues, is reasonable, and is not motivated by malice.
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.
Leaked transcript breached right to silence
In today’s Lee v The Queen judgment, the High Court unanimously ordered a retrial over drug and firearms charges, in an important decision upholding the privilege against self-incrimination. Two men had been forced to answer questions by the NSW Crime Commission under special powers that suspend the “right to silence”. The men were later charged by the DPP, and the prosecutor obtained a copy of the Crime Commission transcript, breaching a suppression order. The High Court ruled: “It is a … departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges.” Barrister Edward Greaves points out that the decision will force all investigative bodies with compulsory examination powers to ensure they keep their records out of the hands of prosecutors. The High Court said if leaks occurred, trials should only go ahead when “another prosecutor and other DPP personnel, not privy to the evidence, were engaged.”
Justice Kirby “answers anything” about North Korea
Former High Court judge, Michael Kirby, was appointed by the UN to head a Commission of Inquiry on Human Rights in the DPRK (North Korea). Based on testimony from refugees, the commission’s report found that terrible human rights abuses were committed in North Korea, and warned that its leaders faced prosecution for crimes against humanity. North Korea responded with a personal attack on Kirby. Last week, The Guardian organised an Ask Me Anything session on the Reddit forum, and Kirby fielded questions on the commission’s process and findings, and his views on what should occur next. Although he was realistic about the prospect of Kim Jong-Un facing trial—“There is absolutely no possibility that the present Supreme Leader of North Korea would appear voluntarily before the ICC”—he nevertheless remained hopeful that the report, shared by clandestine internet connections, would have an impact: “I suspect that the only thing [the DPRK leaders] respect and fear is the spreading of information about the truth in their country. And especially the risk that this information will get into the hands of the local population. … In the upshot, the truth will out. Truth is a great cleansing agent. North Korea must be opened to the truth. I hope, now that the COI report has been translated into the Korean language, it will become increasingly available to the citizens of DPRK.” The Guardian has collated ten highlights from the Kirby AMA.