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BEHIND THE YELLOW TAPE: CRIMINAL LAW Issue 04 2013 UTS Law Students’ Society Quarterly Academic Journal

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Begging for death

What happens when someone consents to their own murder? 16

When athletes don’t play by the rules

Should violence on the sports field be criminalised? 22

No place for kids Do kids belong behind bars? 30

A Game of Oaths

Criminal justice system in the Game of Thrones 32

Stop. Hammer time.

Should the main purpose of prisons be punishment? 34

Verbatim.

What do legal TV shows and films really teach us?


CREDITS

tfb 2013 [Issue 04]

the full bench

Editors Michelle Smerdon (LSS Publications Director) Lauren Fitzpatrick Joanna Mooney Francesca Elias Arciuli Catie Moore (Guest Editor)

Designer © UTS Law Students’ Society This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers. Disclaimer All expressions of opinion published in the TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest. .

Hamish Burrell

LSS Vice President (Education) Kate Taylor

Marketing Anita Juric

Cover Artist Justin McGregor

With Thanks To Daniel Mckenzie and co. Kwik Kopy Printing centre Neutral Bay 121 Military Road, (cnr. Bydown Street), Neutral Bay, NSW 2089 Tel 02 9953 3077 Fax 9953 0530 www.neutralbay.kwikkopy.com.au

The Full Bench (tfb) is published in Sydney annually by: UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room cM5A.01.08, city Markets campus, Cnr of Quay Street & Ultimo Road Ph (02) 9514 3448 Fax (02) 9514 3427 www.utslss.com

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Contents

Contents

04 06 08 09 10

20

Editors’ Question

22

No place for kids

26

Mental illness: the mad and the misconceived

Obiter

The Royal Commission into Institutional Responses to Child Sex Abuse

14

Begging for death

Johanna Fisher

The criminal justice system and mental illness

28

War crimes and war criminals

30

A Game of Oaths

32

Debate: Stop. Hammer Time.

34

Verbatim:

A continuing challenge for the international community

Oliver Doraisamy

Criminal Justice in Game of Thrones

David Hazan

Should consent be a defence to murder?

Mark Curry

Trials on death row

Searching for justice when the State seeks revenge

Dominic G Smith

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The consequences of detention for young people

Stefanie Costi

What isn’t a crime that should be?

Justice Overdue

Should synthetic cannabis be illegal?

Carla Sheiban

In 10 words or less

Kazem Elkheir

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Synethic Cannabinoids; time for a broader interception

Editorial, President & VPE Addresses

When athletes don’t play by the rules

Should the main purpose of prisons be punishment?

Melissa Roberts and Lauren Fitzpatrick

What to take away from legal TV shows and films

Should violence on the sports field be criminalised?

Martene Gelle

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A step in the right direction The impact of mandatory pre-trial defence disclosure on criminal law

Hemant Vijaykumar

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EDITORIAL

Editorial It was just last month that a woman pleaded guilty to manslaughter after leaving her daughter, who had suffered prolonged neglect and abuse, in a pram for two days to die. She received 12 years imprisonment.

It was just over a year ago that Australia was privy to the traumatic story of Jill Meagher, who was raped and killed by a man who was on parole following being charged with 16 counts of raping five prostitutes (for which he only served 22 months of a five year sentence).

It was less than 10 years ago that serial killer Ivan Milat appeared before a jury for murdering seven young people in the 1990s. He received seven consecutive life sentences, plus 18 years.

The criminal justice system exists to ensure these people are served their just desserts. And in the above cases, it appears that while the dessert is sometimes ‘just right’ (to steal the words of Goldilocks), there are other times where it is ‘too hot’ or ‘too cold’.

But our criminal justice system isn’t just about sending people to prison for their morally reprehensible actions. This edition of The Full Bench delves further beyond the realms of prison bars to expose more

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about our criminal justice system. Stefanie Costi explores the ‘mad and the misconceived’ in her article on how the defence of mental illness plays out in the criminal justice system, while Oliver Doraisamy extends beyond our borders to explore the international response to war crimes. Dominic Smith questions whether capital punishment should still have a role to play in our society, and Hemant Vijaykumar examines why the introduction of mandatory pre-trial defence disclosure has raised a few eyebrows. Need more? We’ve got it, just keep turning the pages for a continuous stream of insightful and eye-opening articles about our criminal justice system.

Be sure to check out our light-hearted ‘In 10 Words or Less’, where we asked our readers: What isn’t a crime that should be?... culminating in some hilarious responses!

A big thank you goes to Catie Moore for her editing prowess and assistance with this final edition of

The Full Bench.

It’s the last edition for 2013, so we’d like to say a special thank you to our readers for sticking with us! We hope you enjoyed the plethora of articles and segments we brought to you this year! 2014 is set to bring you new topics, insightful articles and clever segments – be sure to get involved!

Happy reading and happy holidays!

Love The Full Bench Team (Fran, Joanna, Lauren & Michelle)

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PRESIDENT AND VPE ADDRESS

From the LSS President Dear Readers,

publication wouldn’t be possible. A big thank you to

Welcome to the fourth and final edition

Michelle Smerdon, the Publications Director 2013 for

of The Full Bench (TFB) for 2013.

the phenomenal publications produced by herself

The fabulous editors of the fourth

and her editing team this year. The extensive level of

edition of TFB have composed it with

work and organisation that has been put into these

a focus on criminal legal issues. This

publications has been outstanding. Thank you to Kate

edition of TFB will provide you with an

Taylor, Vice President (Education) for her support,

insight into some of the topical legal

superior organisational skills and guidance throughout

issues that surround us in society today.

all of the publications produced this year.

These include issues that range from capital punishment, international

Thank you to the other editors Lauren Fitzpatrick,

war criminals and questioning whether one should be able to consent

Francesca Elias Arciuli and Joanna Mooney who have

to murder. The issues discussed cross a range of different criminal areas

gone above and beyond to ensure that each edition of

which we hope will provide you with an opportunity to enhance your

TFB was inspiring. A special thank you to Catie Moore

understanding and awareness of the impact of crime in Australia.

who has guest edited this edition.

As this is our final edition of TFB for the year, I would like to thank you

Thank you to our contributors for providing us

for picking up this copy and the other copies of the TFB throughout the

with an insight into criminal legal issues that face us in

year. As this is my last message in TFB for 2013 in my capacity as the UTS

society as well as to those who contributed in the other

Law Students’ Society (the ‘UTS LSS’) President, I extend my best wishes

three editions of the journal this year.

to you all with your studies, the remainder of your degrees and hope

Thank you to our sponsors, Clayton Utz, Corrs

that you continue to make the most of the opportunities presented by

Chambers Westgarth and King & Wood Mallesons for

both the LSS and the Faculty of Law.

their continued support and commitment to the UTS

As always, should you have any questions or queries about

LSS.

any aspect of the UTS LSS, please do not hesitate to contact me at

Katherine Agapitos

president@utslss.com.

LSS President

There a number of individuals without whom the success of this

Vice President (Education) Address As a child, I thought that criminal lawyers were the only type of lawyers that existed. As a teenager I was obsessed with Law and Order and as a law student, notions of justice and fairness have coloured the lenses of the glasses through which I view the world so needless to say I am very excited that the UTSLSS can bring you this fourth of The Full Bench for 2013. The edition focuses on contentious aspects of the criminal law both

A tremendous thank you also to the contributors,

in a domestic and international context. This edition seeks to challenge

both of this edition and those previous for the time

ideas of what is morally reprehensible enough to be a crime, who can

and effort you have put into bringing such thought

commit a crime and what the purpose of any sanctions for committing

provoking issues and ideas to our readers. I hope you all can join us for The Full Bench Awards

a crime should be. This edition is also the final for the year and as such as I would

which will be held in conjunction with the final Speaker

like to congratulate the editorial team lead by Michelle Smerdon and

Series for the year in late October.

consisting also of Francesca Elias Arcuili, Lauren Fitzpatrick and Joanna

Good luck for the rest of semester and all the best for

Mooney, on their incredible work in delivering The Full Bench to you this

your summer break.

year. It has been my absolute pleasure to watch as they have continued

Best wishes

to grow the calibre and profile of this publication.

Kate Taylor

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EDITORS’ QUESTION

Editors’ Question Should sadomasochism (S&M) be a crime in Australia?

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Michelle says:

Lauren says:

You say hi to your neighbours as

The general rule in the law

you pick up the newspaper in the

of assault, as established in

morning, maybe you nod and

R v Donovan [1934], is that

smile to one another as you leave

“it is an unlawful act to beat

your driveway on the way to work.

another person with such a

But usually that’s the end of the

degree of violence that the

relationship. Aside from perhaps

infliction of bodily harm is

their gardening rituals, you have

a

probable

consequence,

no idea what is going on behind the confines of their white

and when such an act is proved, consent is immaterial”.

picket fence. Who knows - maybe they can’t help but slur

And while the Attorney-General’s Reference (No 6 of

racist remarks during the news, or maybe they smack their

1980) [1981] noted that there are exceptions to the rule,

child for not cleaning their teeth, or maybe they are involved

including properly conducted sporting games, reasonable

in sadomasochism (S&M). To be honest, it’s none of your

surgical interference, and tattooing and ear-piercing,

business, and it’s not the Court’s business either – unless they

sadomasochism is not one of them. But it should be.

take it too far.

The ability of the courts to construe a sexual act between

If their racial slurs are taken to the supermarket and put to

consenting adults as a criminal assault emphasises the

use, or if that smack becomes domestic violence, or if that S&M

judicial inconsistency that exists in applying the defence

becomes non-consensual bodily harm, then the matters should

of consent. The Institute for Advanced Study of Human

step outside the confines of the white picket fence and should

Sexuality estimates that at least one in ten people have

become criminal. Under the law, it is a crime to commit assault

experimented with some form of sadomasochism, and in

occasioning actual bodily harm – and thus S&M activities could

a civilised society, this behaviour between two consenting

fall within the realms of crime in the event that ABH occurs.

adults is completely acceptable. Sadomasochism is a

However, I believe the question should not be has violence

legitimate form of sexual expression, deserving of privacy

occurred, it should be: have the individual parties consented to

rights, where the law should not purport to interfere.

the violence that has occurred?

Fran says: Rihanna claimed that she was bad, but perfectly good at it. The debonair Mr Christian Grey was (more than) partial to it. Oh yes, we’re talking about S&M. S&M has a contentious legal history.

Marquis de

Sade, from whose name the word ‘sadism’ is derived, was imprisoned for his writings and practice of sadism on unwilling participants. Interestingly, Leopold von Sacher-

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Mosoch, from whose name (you guessed it), the word

in which the subservient party has died as a result of the S&M

‘masochism’ originated, garnered popularity for his erotic

activities.

novels that closely echoed his own sexual exploits. The

I believe that this approach provides protection to

most famous historical case concerning S&M is R v Brown,

individuals without overstepping individual freedom of choice

in which extreme S&M practices were presented as an

and sexual expression, as where the S&M activities occur in

affront to public wellbeing.

private and do not result in serious injury they do not come to

S&M is not illegal in Australia, yet can be criminally

the attention of authorities.

prosecuted as assault or other offences against the person, as discussed by Jo. I think that the prosecution of

‘bedroom play’ and delve into the realm of violence should

Catie says:

continue, due to the arguably detrimental impact that

Do chains and whips excite you?

allowing violent practices could have on society. However,

If so, should you be prosecuted

I believe that this is where the arm of the law should end,

for practicing sadomasochism as a

lest it become longer and infringe on individuals’ right to

form of sexual activity?

S&M practices that overstep the line of what is deemed

(GUEST

BDSM

freedom of sexual expression.

and

B&D

Discipline)

(Sadomasochism)

Joanna says:

EDITOR)

(Bondage and

has

S&M become

largely sensationalized in recent

S&M is certainly becoming more

pop-culture through characters such as E L James’ suave and

mainstream.

trends

oh so sensual, Christian Grey. This fascination with bondage and

adopt leather bondage looks,

kinky sex has stimulated debate as to the legal status of such

magazines include articles about

activity, and further, whether BDSM should be characterised as

S&M and popular authors write

its own form of sexual orientation.

Fashion

S&M erotica for the mass market

In Australia and the UK, there are criminal precedents

– just to name a few examples.

such as R v Brown to suggest that there is no such thing as

Yet,

mainstream

consenting to assault. However, to what extent do these laws

treatment in popular culture, S&M poses problems for

infringe upon the rights of the so-called “subservient” party?

the law where the activities involve actions that are legally

Personally, I believe it should be viewed with the same scrutiny

defined as assault, and as such questions arise regarding

as laws concerning the illegality of homosexual behaviour or

whether such activities should be criminalized.

any form of sexual activity. It is a personal choice and an act

despite

this

The criminal law already places a positive restriction on

between two consenting adults, thus for the law to impose its

individual liberty and choice by prohibiting a person from

own expectations and standards on what is essentially a private

being able to consent to an assault occasioning actual

relationship is to set a dangerous precedent for the evolution

bodily harm (ABH) or greater. The case law in this area

of sex in modern society.

generally implies that where the activities result in ABH,

Further, and a question that may stimulate a deeper

or more, they are not treated as private sexual activities.

discussion, is to what extent should BDSM contracts have legal

For example, the only two cases involving S&M activities

standing in our courts? Are they a legally binding document, or

in Australia, R v McIntosh and R v Stein, involve instances

are they void on the basis of illegality?

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OBITER

Obiter “You put your feet up on the sofa, settle your spectacles on your nose and open the News of the World. In these

85% of juvenile justice victims and offenders said they were satisfied or very satisfied with youth justice

blissful circumstances, what is it that you want to read

conferencing

about? Naturally, about a murder.”

- NSW Bureau of Crime Statistics and Research 2013

- George Orwell alludes to the widespread desire to read about crime and be ‘tough on crime’ in his essay: Decline of the English Murder

43% of people in gaol will be back behind bars within two

“Across the sporting codes, if there is one punch boys are suspended for a mandatory minimum and a judiciary decides if they should be playing the game at all.” - Dean of students at St Joseph’s Nudgee College, Paul Begg, believes that the professionals could learn from

years of their release - Sydney Morning Herald 2012

1 in 3 people entering prisons in Australia suffer from a

school boy competitions that violence is sport should

mental illness

not be tolerated

- The Australian Institute of Health and Welfare 2010

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Same same, but...

THINKING DIFFERENT Yes, we realise that the heading is not grammatically correct, that dogs don’t wear glasses and that this has nothing to do with being a great law firm. But sometimes it’s ok to be a little bold, to be creative, to have fun – and to do things a little differently. As a lawyer with us, you’ll see this everyday. Whether delivering energy deals or raising billions in funds – you’ll be creating commercial solutions (not legal obstacles), communicating in simple English (not legalese) and offering the world’s first Sino-Australian expertise (not old world capability). You’ll be building skills and relationships in the world’s growth markets. “Thinking different” is why clients love us, why we’re at the centre of the action and why you should come to work for us. Get social with a firm that’s different – facebook.com/KingWoodMallesons

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IN 10 WORDS OR LESS

In 10 words or less What isn’t a crime that should be? We asked our readers what isn’t a crime that should be in ten words or less, and we received some hilarious responses. Enjoy! - Traveling slowly, aimlessly blocking roads, paths or escalators. - Walking up an escalator then stopping at the last steps. Charles Rios

- Runners worn with full business attire. - Socks and thongs.

- Loud and obnoxious chewing.

Joseph Andriano

- Spitting…anywhere, anytime. - Slow walking on the footpath. - Double or more side-by-side slow walking on the foot path. - Spray tans. - Facebook overshares. - Politicians filmed partaking in exercise activities.

- Littering. Morgen Masuku

- Message tones that go for more than 1 second. - Charging $8 for a bottle of water at festivals.

- Teetotallers.

- People who don’t know the difference between “your” and “you’re”.

Naomi Kopp

- Bicycle shorts on men except when actually on a bike.

- People that don’t queue.

Sophia Bialey - Neglecting parents in their old age; they looked after you!

Sidney Hioe

Ivan Adnan

- Not observing the zipper principle when converging traffic lanes. - Using in excess of fourteen words to describe restaurant dishes. - Grunting an accompanying sound to any tennis exertion. - Pushing jumbo baby buggies along suburban footpaths whilst checking iPhones. - Labelling every vapid wannabe songstress a ‘diva’. - Being Kyle Sandilands.

- My acceptance into Law school. - The narcoleptic effect of studying Constitutional law.

Susan Alexander - No STUVAC.

- The disturbing thought of Rhonda & Ketut getting it on.

Emma Bechara

- Carpet merchants that are not closing down. - Whatever a Kardashian is? Cameron McKenzie

- Loudly discussing fashion while wearing crocs! Mark Curry

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Justice overdue

By Kazem Elkheir

The Royal Commission into Institutional Responses to Child Sexual Abuse The current Royal Commission is aiming to address child sexual abuse in Australian institutions, an issue that has plagued our society for far too long. Kazem Elkheir investigates opinions before the Commission, its aims and progress and the potential the Commission has to make a necessary and lasting difference.

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pon undertaking this article, my knowledge of child sexual abuse was admittedly deficient. Naively, I presumed that institutional child sexual abuse was a thing of the past

and society has since progressed. However, I learnt that this is not the case and that the Royal Commission is vital if Australia is to better protect its most vulnerable children.

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The Past: opinions and findings on child sexual abuse in Australia Ronken and Johnston found that up to the 1970s, child sexual abuse was intermittent and limited only to the poor.1 However, I have difficulty in accepting this view. To believe Ronken and Johnston’s finding is to accept that the motives explaining child sexual abuse offences were contingent upon economic status. Many experts now hold the view that child sexual abuse has always occurred and is still present within all socio-economic groups,2 which I believe reflects this issue more accurately. Statistics indicate that these crimes often go unreported. A 1999 survey found that only 38% of child sexual abuse victims reported their abuse. The main reasons for this were because they wished to protect the offender and assumed they would not be believed due to their minority. A more frightening statistic from that same year is that 88% of child sexual assaults go unreported in Indigenous communities.3 Based on this information, it would appear that although harsh sentences for offenders and protections do exist, they are inadequate or ineffective.

The Present: The Royal Commission On 12 November 2012, former Prime Minister Julia Gillard announced her recommendation to the Governor General to establish a Royal Commission into institutional responses to instances and allegations of child sexual abuse in Australia. In response, Her Excellency Quentin Bryce appointed a six member Royal Commission to investigate. Following on from the glorious and controversial successions of previous Royal Commissions, the founders of this Commission will seek to address the methodology and failures of institutions in protecting children.

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JUSTICE OVERDUE With the Hon Justice Peter McClellan AM appointed

Sexual Abuse and the Church

as the chair, the Royal Commission will strive to provide

Child sexual abuse pervades all societal groups, with religious

recommendations on how to improve laws, policies and

institutions, specifically Catholic and Anglican churches, arguably

practices to prevent and better respond to child sexual

being the most controversial. More and more victims have taken

abuses in institutions. Expected to be an overhauling and

the step to voice their experience of assault at the hands of the

lengthy process, the Royal Commission must prepare an

clergies at their childhood churches.

interim report by no later than 30 June 2014. At that stage,

As a recent example, on 26 September 2013, Catholic Brother

the Commission must decide whether to prepare a final

Martin Harmata was sentenced after entering a guilty plea for

report depending on the evidence gathered and the success

sexually abusing children in the 1980s at Sydney’s Patrician Brothers’

of case hearings. If the Royal Commission opts to progress

College in Blacktown. Moreover, on 1 October 2013, a man who

with their inquiries and investigations, they then must seek to

was sexually abused when he was a student at a Canberra Catholic

submit their final report at the end of 2015.

School was awarded $135,000 in a civil court settlement. It is

The Royal Commission held a public hearing on Monday 16 September 2013 at Sydney where it investigated the

therefore apparent that child sexual abuse is disturbingly common within religious institutions.

responses of Scouts Hunter and Coastal Region and Scouts

Whether the Royal Commission’s investigation will extend to

Australia to allegations and information concerning the

church conduct is a matter yet to be determined. In so doing, it

conduct of Steve Larkins in relation to children between

would be crucial that the Royal Commission determine whether the

1997 and 2001. It also investigated the response of Hunter

Churches are to be a sued as an entity, responsible for the clergy’s

Aboriginal Children Services Corporation to information

actions, or whether individual clergymen may sued. Victims may

about Steve Larkins’ conduct in 2003 and 2010-2011.

have difficulty in achieving justice under the former option due to

Following the string of offences by Steve Larkins in the

the Ellis defence which stipulates that the Churches’ assets are held

Scouts, the Royal Commission was told that Steve Larkins

in property trusts which cannot be held liable for historic cases of

fraudulently forged documentation which had the effect

abuse.5

of allowing him to continue working with children, despite leaving the Scouts in disgrace. Jacqueline Henderson, a case

The future: hopes for the Commission

manager at the place where Steve Larkins formerly worked,

The Royal Commission is a landmark action in its examination

informed the Royal Commission that Steve Larkins used her

of the circumstances that may lead to child sexual abuses and how

“as a goddam puppet” and threatened her with defamation

members of institutions may exploit their positions to discreetly

every time she confronted Steve Larkins about the incidents.

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commit these offences. There is hope that those who had traditionally

It is clear to observe that in the particular case of Steve

been protected for their crimes by the institutions that were meant

Larkins, he had abused his position as a prominent member

to admonish them will be held accountable, and past victims may

of the Hunter Aboriginal Children Services Corporation,

therefore finally receive closure. Further, the recommendations by

which inevitably had the effect of hindering any institutional

the Commission of strategies and tactics to better protect children

response by the said corporation. As is emerging in the

will also ideally highlight inadequacies within the legal and service

reports and media surrounding this Commission, this is sadly

frameworks to prevent the exploitation of vulnerable children in

not a rare occurrence.

institutional environments.

I strongly believe that strict guidelines, which afford greater transparency and thus accountability as to the actions of those in senior positions, need to be enforced. One would hope this would limit the opportunity for exploitation.

“…although there are harsh sentences for offenders and protections do exist, they are inadequate or ineffective.”

1. 2. 3. 4.

5.

Hetty Johnston and Carol Ronken, Child Sexual Assaults: Facts and Statistics (December 2012) Bravehearts < http://www.bravehearts.org. au/files/Facts%20and%20Stats_updated141212.pdf>. Ibid. Ibid. Paul Bibby, ‘Steve Larkins used me as a puppet, case manager tells Commission’, Sydney Morning Herald, 19 September 2013, <http:// www.smh.com.au/national/steven-larkins-used-me-as-a-puppet-casemanager-tells-commission-20130919-2u0z4.htm>. Liz Hobday, ‘Lawyers say Ellis defence reduces church payouts’, 29 September 2011, ABC News, <http://www.abc.net.au/am/content/2011/s3328314.htm >.

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11


Begging for death

Mark Curry

Should consent be a criminal defence to murder?

Euthanasia, death pacts, cannibals – in all of these cases, the law currently provides that one cannot consent to being murdered. Mark Curry digs deeper into this dark area of criminal law and looks at how the law treats a person’s decision to end their own life when, for whatever reason, they involve another person.

T

he idea of a person concluding that they wish to end

a significant risk. However, it is not available for homicide,

their own life may seem absurd. Furthermore, the

especially and particularly murder. Even if the victim begs to be

idea of delegating that task is even more outlandish. As it

killed due to a terminal illness and is rendered unable to take

stands, murder is something that you cannot consent to,

their own life - the task cannot be delegated.

while if someone were to assist you in ending your life it

consent due to factors of their own, whether it be age or mental

would be considered “assisted suicide”, not murder.

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There are a class of people who are not available to provide

Section 31C of the Crimes Act 1900 (NSW) outlines

capacity, which itself can pose a lot of issues as to whether

the ramifications for assisting suicide, which may lead to a

consent was properly given. This class of people is considered,

sentence of imprisonment of 5 to 10 years. While this may

for one reason or another, to lack their full reasoning ability

appear extreme, this sentence differs signifcantly from the

and are, therefore, unfit to make certain kinds of judgments

sentence that may be imposed for murder, which carries a

about themselves. This is where issues in relation to consenting

penalty for life imprisonment or 25 years, under section 19A

to murder can come in, as logically there is no reason why

of the same Act.

someone would consent to being killed if they are of sound

Murder by definition is the unlawful intentional killing

mind.

of one human being by another. The offender must have both the mens rea (guilty mind) and actus rea (guilty act)

Murder and the medical profession

elements to constitute murder, compared to other unlawful

The act of killing a human, even upon their request, brings

homicides such as manslaughter which only comprises the

forth a plethora of moral issues. The legal reasoning behind the

actus rea element. Murder itself is considered to be one of

idea that we cannot curtail the right of a person to take their

the most serious crimes worthy of the harshest punishments.

own life is that to deny them this is to force them to live. It is fundamentally taking away their control of their own mortality.

The law of consent

If a person has a right to his own life, then it could logically be

Consent refers to the provision of agreeing to or

seen that they have the right to end that life - however our laws

permitting an action, usually after thoughtful consideration

deem that nobody has a right to end a life.

about the implications of the action. Consent can be

In the medical profession there are numerous considerations

implied, express, informed or unanimous. It is a person’s

taken into account in determining when a person is justified in

right to provide consent for a majority of things which

ending their own life, or having someone assist them in doing

impact their lives. It is available for sexual activity and even

so, and as such debates surrounding the process of euthanasia

for highly dangerous activities where you consent to taking

have raged on for quite some time.

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CONSENT TO MURDER One such push recently was Greens MP Cate Faehrmann

a lethal cocktail of drugs and alcohol. This resulted in the death of

introducing the Rights of the Terminally Ill Bill 2013 to the

Fay Savage, but not of her husband as the morphine caused him to

NSW Legislative Council on 2 May 2013.

vomit. As a gut-wrenching consequence, Neil – still terminally ill -

Ms Faerhrmann said on 23 May 2013, “If this bill fails

was sentenced to 200 hours of community service for aiding his wife’s

today terminally ill people will continue to take their own

suicide. This story highlights the extreme lengths people must go to

lives violently, if they can, some doctors will continue

in order to take their own lives, whilst placing themselves at risk of

to administer huge doses of morphine to patients in an

criminal pentalties during an arguably vulnerable time of their life.3

attempt to end their suffering, and patients will starve and dehydrate themselves to death.” However, the Bill was

The German Cannibal

debated and voted down 23 votes to 13.

In stark contrast is the case of Armin Meiwes. Armin Meiwes

The word euthanasia has its origin millennia ago in

is also known as the Rotenburg Cannibal or Der Metzgermeister

Ancient Greece, where it means literally “the good death”.

which translates to ‘The Master Butcher’. Meiwes was a German

Euthanasia can be defined as the painless killing of a

man who utilised an internet website (The Cannibal Cafe) to post

patient suffering from an incurable and painful disease or in

an advertisement which stated, “looking for a well-built 18 to 30

an irreversible coma.1 Voluntary euthanasia concerns itself

year-old to be slaughtered and then consumed”. Bernd Jürgen

with the express wish of a mentally competent person to die

Armando Brandes responded to the advertisement stating his

through the assistance of others, while assisted suicide is

interest in participating. There was video evidence of Brandes’

when someone provides an individual with the information,

consent being given and horrifically, video evidence of Brandes’

guidance, and means to take his or her own life with the

death, which included both males trying to consume Mr Brandes’

intention that they will be used for this purpose. When it is a

penis, before Mr Brandes was killed and eaten over a period of 8

doctor who helps another person to kill themself it is called

months.

“physician assisted suicide”.2

Meiwes was originally convicted of manslaughter and sentenced

For some, euthanasia is seen as a better alternative

to 8 years in prison. This decision was appealed by the prosecutors

to unbearable suffering from a terminal illness. In 1994,

and he was subsequently convicted of murder and sentenced to

it was shown by the Morgan Poll of Australia that 78% of

life imprisonment. While both parties had consented to the actions

Australians were pro-euthanasia for patients with terminal

taking place, this was not seen as legally standing consent and

diseases or those that sustained injuries beyond repair.

therefore the actions were considered to be murder. This again

One such story relating to assisted suicide is the case of Neil and Fay Savage, a married couple, who were both

highlights the fact that one cannot, by definition, consent to end their own life.

terminally ill. The couple had witnessed their own parents endure terminal illnesses and had been privy to the effect

Conclusion

of the harrowing and difficult experiences on their parents,

If there were to be provisions made where consent was a

as well as their family and friends during their parents’ final

defence to the charge of murder, then every charge of murder

months. Thus, rather than endure the terrible effects fo their

would have one extra hurdle to overcome.

illnesses, the couple attempted a suicide pact, consuming

“Even if the victim begs to be killed due to a terminal illness and is rendered unable to take their own life - the task cannot be delegated.

Whilst there are strong arguments for free-choice in relation to euthanasia, this is arguably not the same thing as “death pacts” or circumstances such as the aforementioned case of Armin Meiwes. In relation to the latter, it would be very hard to provide a reasonable explanation as to why a sane person would want to end their life at the hands of another and as such it is easy to see why the court considered the consent to be vitiated in such a case. 1. 2. 3.

OXFORD DICTIONARY (2013 OXFORD UNIVERSITY PRESS) <http://oxforddictionaries.com/definition/english/euthanasia>. Catholic Education Resource Centre (CERC) <http://catholiceducation.org/articles/euthanasia/eu0018.html> Neil and Fay Savage - The Tuscaloosa News: <http://news.google. com/newspapers?nid=1817&dat=19920328&id=IEogAAAAIBAJ&sjid=7KUEAAAAIBAJ&pg=3656,7197375>

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13


Trials on death row

By Dominic G. Smith

Searching for justice when the state seeks revenge ‘The death penalty carried out in the name of the nation’s entire population involves everyone. Everyone should be aware of what the death penalty is, how it is used, how it affects them [and] how it violates fundamental rights.’ Amnesty International, 20071

T

he execution of Ronald Ryan in 1967 was an event that severely altered the perspectives of many Australians towards capital

14

Deterrence

theory

and

its

effect

on

individuals

punishment and its effect on the administration of justice. This event

The main justification for the use of capital

marked a major change concerning public interest in criminal justice

punishment is that it deters individuals from committing

and the collective responsibility towards ensuring everyone has a right

crimes that are considered morally reprehensible and

to life.2 These core changes in public attitudes were reflected in the

evidently, contrary to public interest. Scholars have

Death Penalty Abolition Act 1973 (Cth), which ended the infliction of

argued that capital punishment alters the behaviour

capital punishment for breaches to commonwealth, state and territory

‘of potential offenders because from this view, the

laws. This standpoint on the death penalty was affirmed in 2010, where

more certain, severe, publicized, and immediate the

the government passed the Crimes Legislation Amendment (Torture

punishments, the more likely they are to produce

Prohibition and Death Penalty Abolition) Act 2010 (Cth) to prevent

deterrent effects’.4 This stance is suggested to be valid,

the death penalty or torture from being incorporated in State and

as ‘highly publicised crimes have increasingly provoked

Commonwealth legislation.3 Whilst these Acts have prevented the

demands from segments of the community to re-impose

application of death sentencing in Australian states and territories,

a death penalty’.5

Australians are still at risk of the mode of punishment if they breach the

However the current laws and research in international

laws of countries worldwide, especially for trafficking and drug related

criminal behaviour suggest that the death penalty hasn’t

offences. The cases of Van Nguyen and the Bali Nine reiterate that the

deterred the breach of laws. This is exemplified through

death sentence is a real threat to one’s right to life and is potentially

the issues regarding drug trafficking in South-East

devastating for the family, friends and community involved in the situation. Therefore it is essential to inquire into the legal and social effects of the death penalty for certain individuals and communities as well as understanding the responsibility of Australia in ensuring that the public’s interests are protected and maintained.

“The current laws and research in international criminal behaviour suggest that the death penalty hasn’t deterred the breach of laws.”

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CAPITAL PUNISHMENT

“Highly publicised crimes have increasingly provoked demands from segments of the community to re-impose a death penalty.” Asia, whereby in countries such as Singapore a drug trafficker can

the court to lawfully exercise jurisdiction over the sovereign

face a mandatory death sentence if found to be in possession or

act of” the state in question.11 The Bali 9 case exemplifies the

trafficking illicit drugs, under Section 17 of the Misuse of Drugs Act

difficulty of obtaining clemency, as two of the members can

6

1973 (Singapore). The case of Van Nguyen, an Australian who was

only achieve pardon from the death sentence, if the President

executed for drug trafficking in December 2005 highlights the rigid

grants clemency to the death sentences imposed.12 Hence the

stance held by the courts and government in Singapore, despite

dichotomy between the authority of the Australian court and

appeals of clemency from the Australian Government. Furthermore

the sovereignty of another state’s law generates a substantial

there were overwhelming appeals from the Australian community

level of ambiguity and conflict as to whether Australia can in

and various human rights organisations, attempting to sway the

fact claim clemency for its citizens who are at risk of facing the

decision and effectively pardon Van Nguyen. However, these efforts

death penalty.

were not successful. The effect of numerous death sentences of people in

Concluding matters

possession of drugs hasn’t deterred drug-related crime, but rather

Capital punishment is a penalty system that violates an

it has allowed the cost and the exportation of drugs to remain

individual’s right to life and humane treatment under the

prominent.7 Furthermore the direct consequences of such penalties

Universal Declaration of Human Rights.13 However, in both the

have included an increase in deaths of defendants who lack

Van Nguyen and Bali 9 cases, the criminal courts held that the

proper legal aid. This is illustrated by a statistic provided by Erwin

domestic law is considered more relevant than international

Chemerinsky that “of 131 individuals executed” in Texas during the

law in order to ensure the sovereignty of the nation is upheld.

period of 1995 to 2000, “43 had an attorney who had previously

These conflicts have raised the question of whether an

been disciplined by the bar for misconduct, and 40 of those who

individual’s rights under international law are more important

had been convicted had a lawyer who presented no evidence or, at

than the collective administration of sovereign laws, guidelines

most, one witness on their behalf”.8 Therefore it is vital for capital

and punishment. Therefore the ultimate question to which the

punishment to be removed, as it disregards the right to life and has

issue gives rise, is: when should the sovereignty of a state be

negative effects the diplomacy between nations, the communities

considered more important than the life of an individual? The

involved and the administration of justice.

crux of such a complex ethical dilemma is essentially a choice between two legal principles: the rule of law or everyone’s right

Pardons for clemency and legal avenues

to life.

The existence of capital punishment overseas has instigated the development of a complex legal relationship between the Australian government, the accused individual and the state in question. When an individual is faced with the death penalty overseas, the Australian government has a diplomatic right to enforce its national laws if there are considerable ‘political, economic and strategic interests at stake with the country concerned’.9 The process of granting clemency for an Australian overseas can be an extremely difficult task because the country detaining the accused may not have signed or ratified an international treaty on terms of clemency, and thus may intentionally exclude such clauses. Further, the government in question may not have ratified Article 36 of the Vienna Convention on Consular Relations.10 However, Tamberlin J in Hicks v Ruddock has held that “a clear breach to international law” is recognised as sufficient “for

Amnesty International Report, Global moratorium on executions now, Index No. IOR 41/018/2007 (22 August 2007) [1]. 2. Mike Richards, ‘The death of Ronald Ryan’, The Age (Online), 2 February 2007 <http://www.theage.com.au/news/in-depth/the-deathof-ronald-ryan/2007/02/01/1169919 473225.html?page=2>. 3. See also Natalie Klein & Lauren Knapman, ‘Australians Sentenced to Death Overseas: Promoting Bilateral Dialogues to Avoid International Law Disputes’ (2011) 37(2) Monash University Law Review 95. 4. Valerie Wright, Could Quicker Executions Deter Homicides?: The Relationship Between Celerity, Capital Punishment and Murder (LFB Scholarly Publishing LLC, 2011) 31-32. 5. Lyne Fosterlee, et. al., ‘Death Penalty Attitudes and Juror Decisions in Australia’ (1999) 34(1) Australian Psychologist 64-69. 6. Misuse of Drugs Act 1973 (Singapore, cap 185, 1973) pt. III. 7. Eric Pinkard, ‘the death penalty for drug kingpins: constitutional and international implications’ (1999) 24 Vermont Law Review 1, 7. 8. Erwin Chemerinsky, ‘Defenseless defendants and the death penalty’, Seattle Times (Online), 7 December 2005 <http://seattletimes.com/ html/opinion/2002668591_chemerinsky07.html> 9. Natalie Klein & Lauren Knapman, ‘Australians Sentenced to Death Overseas: Promoting Bilateral Dialogues to Avoid International Law Disputes’ (2011) 37(2) Monash University Law Review 95. 10. Ibid 96. 11. Marley Zelinka, ‘Hicks v Ruddock versus The United States v Hicks’ (2007) 29(3) Sydney Law Review 527. 12. Klein & Knapman, above n 6, 94-95. 13. Universal Declaration of Human Rights art 3. 1.

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15


VIOLENCE ON THE SPORTS FIELD

When athletes don’t play by the rules Should violence on the sports field be criminalised?

Violence is an accepted part of most sporting games, yet off the field such violence would otherwise constitute a criminal act. Martene Gelle explores the culture of violence associated with sporting games and questions whether such violent acts should be brought before the courts.

T 16

attack on Maroons forward Nate Myles during the first State of Origin game in which Gallen punched Myles in the face, the NRL stepped up by announcing a crackdown on violence on the field, and introduced a strict zero tolerance policy to punching. However, in defending his actions, Gallen claimed he was a voiceless victim in the face of bullying and dirty tactics, arguing that Myles had historically twisted his knee after every tackle and his only avenue was to retaliate. It appears, particularly

here is a continual onslaught of media stories illuminating

in light of this situation, that while the NRL is able to allay

the excessive brutality of players on the sporting field.

society’s objection to punching on the field by implementing a

These stories, unsurprisingly, continue to focus on the un-

zero tolerance policy, the issue stems deeper than a knee-jerk

sportsmanship conduct of players in sports such as rugby

reaction and further action is required to remove the violent and

league, rugby union and hockey.

aggressive attitude of players. It is clear that currently sports such

A recent example of this excessive brutality occurred

as NRL are faced with a cyclic nature of violence that, despite

during a rugby league game between the Manly-Warringah

threats of sin bins, continues due to the inherently aggressive

Sea Eagles and the South Sydney Rabbitohs earlier this

nature of the game.

season. The conduct of the Manly players in that game

Sadly, it seems that excessively violent conduct in sporting

galvanized significant criticism as spectators watched in

matches has become an entrenched part of the culture of sports

horror and disgust as Manly players targeted player Greg

such as rugby union and NRL. However, this entrenchment

Inglis. Sydney Morning Herald reported that Inglis was

does not mean it cannot be broken down and eradicated. The

“repeatedly struck around the head by a succession of Manly

question that then arises is: what alternative mechanism can be

players in a clear attempt to batter him into submission”.1

used to curb the recurrence of excessively violent conduct in

It has been acknowledged that violence in Australian sports is less severe and frequent than that experienced

sporting matches? One possible solution is the criminal justice system.

in other countries, especially the notoriously violent ice hockey in Canada and the United States. However, this does

Alternative action – the criminal courts

not diminish the aggression seen on the sporting fields in

Criminal courts in Australia have provided direction on this

Australia, and the rising violence on the fields leads us to

issue in the past. In the case of Pallente v Stadiums Pty Ltd (No

question whether the judiciary should step in.2

1) (1976) VR 331 (“Pallente Staduims”) the court was required to determine if a player was to be relieved from criminal liability, despite the fact he had purposely inflicted an injury upon a

Behind closed doors: token penalties Currently, violence and aggression on the field that is

sporting opponent. In this case, the court determined that a

deemed to be a breach of the sport’s code of conduct are

distinction must be drawn between a blow struck in a hostile

dealt with internally through disciplinary hearings. The

spirit with the predominant intention of inflicting substantial

effectiveness of this ‘behind closed doors’ approach has been

bodily harm and a blow struck predominantly as an exercise

brought into question where it appears that the penalties

of skill in accordance with the rules of the game, which aim to

administered to the players are minimal.

minimise the risk of serious injury. In doing so, the court identified

In July 2013, following Origin Blues skipper Paul Gallen’s

that in sporting matches players consent to assault occasioning actual bodily harm.3

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“Sadly, it seems that excessively violent conduct in sporting matches has become an entrenched part of the culture of sports such as rugby union and NRL.” The distinction drawn in the case provides a sort of

was charged with assault, and suspended for the remainder of the season

benchmark of the type of violence that is acceptable on the

by the National Hockey League. This charge arose as McSorely violently

sporting field. In this regard, the law can be seen to have

hit player Donald Brashear on the head with his stick, causing Brashear

an important role where it comes to placing restrictions

to hit his head on the ice and suffer a Grade III concussion. McSorley

on the actions of players and subsequently revamping the

was convicted of assault with a weapon and sentenced to 18 months

violence that is prevalent within sports.

probation.4 Following his criminal conviction, McSorley’s suspension was

The importance of the law in revamping the sports culture is reflected upon in the judgment of Levine J in R v

extended to one full year signaling the end of his professional career as an ice hockey player.

Stanley (unreported, NSWCCA, 7 April 1995), in which His

In light of the above and the severity of penalties that can be handed

Honour stated, “[T]he policy of the law will not permit the

down by the courts it is arguable that bringing criminal charges against

mere occasion of a…match to render innocent or otherwise

players whose actions fall outside of the benchmark provided by the court

excuse conduct which can discretely be found beyond

in Pallente Stadiums could serve as a deterrent against the use of excessive

reasonable doubt, to constitute a criminal offence”.

violence on the sports field, subsequently altering the current entrenched

The judgment of Levine J enforces the idea that the

culture of violence on the sports field.

court will only punish specific types of behaviour undertaken

As the internal dispute resolution has been ineffective, the judicial

on the playing field: those deemed to constitute a criminal

system provides an alternative mechanism within which the excessively

offence. This specific criminalisation of certain conduct is

violent and arguably criminal actions of players can be removed from the

imperative if the violent culture of sports is to be eradicated.

sporting field. Whilst there has been some utilisation of the judicial system in Australia, for more meaningful change and a revamping of the culture

A view from overseas The utilisation of the judicial system in cases of violence

of sport, it is imperative that the court is given a more prominent role. The court must become the ultimate authority. 1.

on the sports field has been more readily adopted in countries such as Canada, suggesting that this could be a viable option in Australia. In 2000 Canadian ice hockey player Marty McSorley

2. 3. 4.

Paul Sheehan, ‘Why it’s just not players who should face the judiciary’ (May 2013) Sydney Morning Herald, <http://www.smh.com.au/comment/why-itsnot-just-players-who-should-face-the-judiciary-20130501-2it4a.html>. Brian Wenn, Violence in Sport (September 1989) Australian Institute of Criminology, <http://www.aic.gov.au/documents/A/D/4/%7bAD48492F-47AA-4F2EB906-BF413C8C2A51%7dvt04.pdf>. Penny, Crofts, Criminal Law Elements, (LexisNexis Butterworths, 4th edition, 2011), 124. R v McSorley [2000] BCPC 116.

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17


MANDATORY PRE-TRIAL DEFENCE DISCLOSURE

A step in the right direction? The impact of mandatory pre-trial defence disclosure on criminal proceedings The introduction of mandatory pre-trial defence disclosure has raised a few eyebrows, and not necessarily for the right reasons. Hemant Vijaykumar explores the reasons for its introduction and whether it is likely to achieve, or hinder, its aims.

T

he recent commencement of the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013 (NSW) (‘the Bill’) is

Parliament’s response to increasing criminal trial court delays. It was passed alongside its cognate Bill, the Evidence Amendment (Evidence of Silence) Bill 2013 to amend the Criminal Procedure Amendment Act 1986 (NSW). At the heart of the Bill is implementing an advanced case management regime and enhancing criminal trial efficiency in NSW courts through

18

compulsory pre-trial disclosure by both the prosecution and defence. Whilst disclosures are practically significant, mandatory disclosure may introduce inefficiencies that may worsen trial court delays. Phillip Boutlen (President of the NSW Bar Association) states the ‘’…compulsory defence disclosure provisions were considered by the trial efficiencies working group and … the vast majority, including the DPP, are of the view that they will not create efficiencies but will cause extra delays”1. As such, is this just another kneejerk political reaction to perceived offenders escaping conviction?

Scope of the Bill An analysis from the Trial Efficiency Working Group (TEWG) report indicated an increase in the average length of Sydney District Court criminal trials from 8.3 days in 2002 to 11.62 days in 2011.2 This has imposed an undue need for resources and puts a financial burden on individuals and criminal courts. In order to overcome these hurdles, the Bill expands the matters that must be disclosed by the prosecution and defence before criminal trial of an indictable offence. Previously, only the defence had to reveal defences of alibi or substantial impairment of the mind. Following the sequence as dictated by section 141 of the Bill, the prosecution is required to provide a notice of its case to the accused, and in response the accused must then provide a notice to the prosecution. Finally, the prosecution will then respond to the defence’s notice.

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MANDATORY PRE-TRIAL DEFENCE DISCLOSURE

This process is not exhaustive since ongoing disclosure requirements are placed on both parties until an outcome or prosecution termination is reached. This widens the scope of the previous amendments and encourages parties to recognise problematic issues early so that the court is in the best position to objectively determine an outcome.

Issues The Bill introduces a new s146A in the Criminal Procedure Amendments Act 1986 (NSW) that allows an adverse inference to be drawn by the jury or judge from an accused’s failure to comply with the relevant requirements of the Bill. As stated by Greg Smith in his Second Reading speech of the Bill, this provision will aid “the breaking down of the wall of silence” which presumably acts as an incentive for compliance with the

“Whilst disclosures are practically significant, mandatory disclosure may introduce inefficiencies that may worsen trial court delays.” litigation of an accused’s rights and conception of what amounts to a fair trial in Australian law. Moreover, disclosure by the defence may assist the prosecution as it may allow an opportunity for the prosecution to re-investigate and reinforce their case theory essentially delaying court procedure.

requirements of disclosure.

both propose against the use of adverse comments. The reluctance of the UK judiciary was seen in the removal of the sanction in certain circumstances in the Criminal Justice Act 2003 (UK). Further, it opens the floodgates for appeals as debate over what ‘comments appear proper’ or what inferences can be drawn and how the jury/judge perceive them are inscrutable. The mandatory pre-trial disclosure will require more preparation time in order to comply with the statutory obligations. As such, additional expenses will be incurred by both parties to accommodate for more preparation time, training of inexperienced lawyers and costs for disclosure and settlement disputes. Thus, both parties will need greater access to judicial resources, especially an individual accused. Where limited resources exist this will augment the backlog of cases and demand strong financial commitment from the government in the long run. Ultimately, it will nullify or worsen efficiency gains as proposed by the Bill. Arguments against defence pre-trial disclosure also

Conclusion The TEWG in its 2009 report considered that the majority of cases were relatively uncomplicated

would introduce inefficiencies. The new reform is a blanket requirement. It is recommended that the government introduce legislation that empowers courts or parties with leave to the court to enforce an intensive case management scheme when it considers it is appropriate to identify issues. This was emphasised by previous discretionary disclosure requirements that recognised positive impacts in the short term. In addition, drawing adverse inferences of an accused may introduce complexities to the jury and likely lead to grounds of appeal. Thus it is hoped that Parliamentary review of the Bill will condense the compulsory requirements of the Bill in order to remove unnecessary complexity and pressure on judicial resources that will cause inefficiencies.

suggest the requirement impinges on the presumption of innocence of an accused, the right to silence and

1.

alters the burden of proof. The current approach arguably disregards the basic rights of an accused in favour of enhancing efficiency of criminal trials. This potentially could create extra delays in court concerning Robert Guzowski

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19

and application of blanket disclosure requirements

2.

Harriet Alexander, ‘Push for unpopular laws that reduce safeguards’ Sydney Morning Herald, 14 March 2013 <http://www.smh.com.au/nsw/ push-for-unpopular-laws-that-reduce-safeguards20130313-2g0t7.html>. Justice Peter McClellan et al, ‘Report of the Trial Efficiency Working Group’ (Working Paper, Criminal Law Review Division, 2009) 13-15.

Robert Guzowski

The position in Victoria and United Kingdom (UK)


Synthetic Cannabinoids; time for a broader interception Should synthetic cannabis be illegal? Carla Sheiban investigates the illusive market of synthetic cannabis and discusses some of the harmful side-effects of the artificial drug. SHE ultimately questionS whether these drugs should be illegal, or if Australia should follow New Zealand’s steps and legalise and regulate marijuana as a way to alleviate issues associated with synthetic cannabis use.

M

20

y nose bathes in the sweet and spicy aromas as the

The recent flood of products containing ersatz cannabinoids

space around me gently fills with smoke. A gleam of soft

on the Australian and international mood-enhancing markets

sunlight from a small window bounces off a glossy plastic sachet,

has caused growing concern over the potential harms

catching my attention, and I begin inspecting the potpourri-like

associated with its use. Teens, like Jim*, are drawn to synthetic

mixture of dried leaves and herbal material spilling out onto

cannabinoids (best known in Australia as ‘Kronic’, ‘K2’ or ‘Spice’)

the table. The atmosphere is calming, however the subdued

because they can experience the same psychoactive properties

energy does not transmit to me as I sit on the edge of my seat,

as marijuana but in a legal and accessible way. Because of

observing and waiting.

this, there has been a dangerous assumption that the fake

Jim* is slouched across from me on a couch, relaxing to trap

alternatives are less harmful than native cannabis.

music which has been courteously lowered for our interview.

There is continuous debate on whether synthetic drugs

He pulls a rolled cigarette out of his mouth and reaches over

should be legal, tested and regulated or whether they should

the small table directing it to me as he raises his eyebrows in a

be banned altogether.

friendly gesture, to which I politely refuse. I am anxiously waiting

Following bans on synthetic products across Australian

for any sickness to ensue, maybe all too aware of the potential

states and territories in 2011, police had the difficult task of

side-effects of these potent chemicals.

detecting and seizing products containing illegal compounds

The 19-year-old art student, who has offered to share his

of artificial cannabinoids. However, this task proved impossible

experience with me, has been substituting cannabis for a

as not long after the ban products appeared which already

synthetic alternative in an effort to “quit smoking pot everyday”.

contained new ingredients not covered by the legislation.

“I still needed a bit of a kick a few times a week, so after I

The chemical compounds sprayed to create the ‘fake weed’

got wind of what all my friends were doing I started buying fake

vary as often as possible to retain market share each time a

weed and mixing it with my tobacco. I thought that I must have

chemical is banned. For this reason, and because of increased

been the only one who didn’t realise you can smoke legally. I

online transactions, preventing the sale of products containing

was sort of shocked, but then I realised the high was too intense

synthetic compounds presents a significant challenge for

and short-lived, and I never found it as enjoyable as smoking

regulating forces and legislatures. Synthetic cannabinoid products can be bought from various

real weed. Synthetic cannabinoids consist of a blend of smoking

tobacco or herb shops, adult stores or over the internet. In fact,

herbs and spices which are sprayed with a psychoactive

just a few minutes of simple searching provided me with an

artificial compound in order to mimic the ingredient found in

expansive number of sites selling different forms of synthetic

marijuana; THC. The synthetic cannabinoid receptor agonists

drugs (not just cannabis) to Australia at very low prices. They are

bind to specific cell receptors in the brain, causing a similar

marketed under ‘herbs’, ‘aromas’ or ‘incense’ and often have

psychoactive response as THC, but the reaction can be up to

‘not for human consumption’ written on them.

four times as strong.

Although Jim* continues to smoke synthetic cannabis from

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time to time, he has increasingly lost trust in the products

research the number of those reporting negative side-effects

on the market as he noticed the brands would change each

and being admitted to emergency departments from synthetic

time he purchased them and the experience would vary

drugs is increasing since bans were introduced in 2011 and new

accordingly.

drugs emerged frequently on the market. Therefore, it is not

“I have heard of some really bad experiences from friends,

so much that media attention has increased on this issue, but

bad stories on the news, and a few times I was really sick from

that the dangerous side-effects have increased each time a ban

it but I kept using mostly because I was scared about work

is imposed and a new chemical concoction emerges which is

and being detected for weed.

usually more harmful than the last.

“When I first used it, maybe a year and a half ago, I wasn’t

A 2012 study analysed cases of patients admitted to

so much aware of the possibility it could harm me because it

Nepean Hospital, Sydney, with results showing that while

was so easy to find and buy,” he said.

use of natural cannabis was linked with psychosis, the use of

A recent study by researchers from the National Drug

synthetic cannabinoids was also linked with psychosis but with

Research Institute at Curtin University, published in the

an increased level of agitation. Other studies have reported

Drug and Alcohol Review, indicated that the reasons users

that synthetic cannabinoid intoxication is associated with

first try synthetic cannabinoids are due to curiosity, legality,

acute psychosis, worsening of previously stable psychotic

availability, effects without detection in drug testing and to

disorders, and also may have the ability to trigger a chronic 21

reduce cannabis use. Further, the study found that harms

psychotic disorder among vulnerable individuals. The lack of

were widely reported yet help-seeking was minimal.

recommended dose poses another health risk which has led

From a sample of 316 Australian synthetic cannabinoid

to instances of overdose, including just recently the case of

users, 96% of which were cannabis users, most (68%) reported

a teenager in Geelong, Victoria, who was hospitalised after

at least one side-effect during their last session of use. These

smoking a legal synthetic drug. The FDA, which maintains that

side-effects included fast or irregular heartbeat, panic attacks,

they are not approved for human consumption, suggests that

increase of blood pressure, dissociation, dizziness, paranoia

without proper ingredient labeling and measured potency, the

and psychosis. Only 4 respondents reported seeking help.

risk of overdosing is increased.

Other studies show evidence of users who have experienced

“There is a need for policy change to disrupt the cycle

inability to speak, high agitation, excessive sweating and

that we are currently in... my concern is that a new synthetic

severe hallucinations. These are symptoms known to cause

cannabinoid will come out that is really harmful and will cause

hospitalization and even death.

widespread harm across the community. A bit like a merry-go-

Further, users have also reported decreased motor co-

round that keeps going faster and faster and if it doesn’t get

ordination even though most assume it is safe to drive on the

switched off people are going to get very sick,” Mr Bright said. In June 2013, Sydney teenager, Henry Kwan, believed he

artificial drugs. Just last month it was announced that the Colorado

could fly after taking a synthetic hallucinogen and jumped off a

Department of Public Health, USA, is launching an

balcony to his death. The NSW government, with full support

investigation into an outbreak of illnesses at hospitals and

of the opposition, has since announced it was moving to ban all

the deaths of three people, believed to be tied to synthetic

synthetic drugs. Eros Association, which represents adult retailers, has called

marijuana. Stephen Bright, Psychologist and coordinator of the

for greater regulation and testing in the synthetic drug industry

Addiction Studies Program at Curtin University, who has

to ensure products are safe for use. The organisation and its

several publications on this area, believes that from his

political arm, the Australian Sex Party, support the legalisation

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of marijuana and its artificial varieties such as Kronik, as

to regulate natural cannabis which is less harmful”. He also

regulation and monitoring the age of customers will be more

suggests that if we went back to the earlier chemicals used,

effective than stopping the endless variations of drugs which

like JWH-018, and regulated that particular chemical which isn’t

will continue to be sold on the internet. They also hope to

more harmful than THC found in cannabis, it would be on par

see real cannabis taxed and regulated by the government,

with regulating cannabis. However, regulating the products as

believing this would reduce the problems occurring with

they are now is not possible as the chemicals have become far

synthetic cannabinoids.

more harmful than they were a few years ago. Further, there are

Robbie Swan, the coordinator of the adult industry lobby

many “political barriers” in going back to a chemical found in

group, believes that the money that is taxed can then be

these products a few years ago that is now illegal and legalising

used for research and educational purposes. He suggests

it.

that Australia should follow New Zealand’s ‘revolutionary’

He suggests that “even though it is madness, it is more

legislation which will force manufacturers and distributors to

politically viable to move down the path that New Zealand is

ensure their products meet the government’s standards for

taking and at least it is taking a step in the positive direction

toxicity and health.

rather than just doing ban, ban, ban and making the situation

The issue with regulating new drugs, as New Zealand’s

worse as the substances become more harmful each time.”

legislation attempts to do, is that there is less data on new

Jim* hopes to completely stop smoking synthetic cannabis

compounds, so testing may not be adequate as they have

with the intention to not return to his previous weed habit, but

not been consumed by humans before, and it will also be

feels it is safer than what he is doing now; “I don’t know what

expensive. It has been suggested that even legalising

I’m smoking this time, I’m always thinking; is it the same as what

natural cannabis is a safer option because we know what the

I was smoking last time? But I know it’s usually a new substance

chemicals are.

and I don’t feel safer than when I was smoking normal weed.”

Mr Bright argues that “if cannabis were regulated in the

22

first place, there wouldn’t be a demand for these synthetic

*Name has been changed.

substances and one solution for the problem would be

** Alcohol and Other Drugs Council of Australia

No place for kids The consequences of detention for young people Nationally, there were close to 7,000 young people under youth justice supervision on an average day in 2011-2012.1 While most young offenders were under community based supervision orders such as conditional bail, home detention, and parole, 14% were in detention on any given day, and 41% had been in detention at some point during the year.2 In response to such alarming statistics, Johanna Fisher explores the consequences of detention for young people, in light of the disparities of juvenile justice across Australia’s states and territories.

I

n Australia, juvenile justice is administered by the states and territories by way of a separate youth justice system.

Our domestic laws are also complemented by international policy, particularly the United Nations Convention on

the Rights of the Child (UNCRC).3 While, in recent years, the rate of juveniles in detention has fallen substantially,4 there are still many concerns in relation to the youth justice system which must be addressed – the disparity in the age limit in Queensland compared with other states, mandatory sentencing laws in Western Australia, and the overrepresentation of Indigenous youth, all highlight the need for a more effective juvenile justice system across Australia. The root of the problem goes deeper than this, however, with socioeconomic factors largely to blame for juvenile crime rates. Although in the lead up to the recent federal election a “tough on crime” approach was propounded by several

The Full Bench


political figures, including the coalition’s crack down on gun 5

crime, research continues to indicate that such strategies

“named and shamed”, and for the transfer of juveniles to adult prisons at the age of 17 if they have six months or

are ineffective. Several key organisations have voiced

more of their sentence remaining.10 These controversial

support for an approach that, instead, targets the underlying

measures have been slammed by legal commentators

causes of youth crime, focusing on the background and

who argue that the laws will not only stigmatise young

upbringing of youth. If this is to be the case, policy makers

offenders, but will adversely affect their chances of future

across Australia need to shift their focus from incarceration

employment and rehabilitation.11 But Queensland is not

to the reasons behind juvenile offending.

the only Australian jurisdiction incarcerating juveniles at

6

a young age.

Defining juveniles in Queensland Despite similarities among Australian state and territory

Mandatory sentencing in Western Australia

processes in dealing with young offenders, the lack of a

Western Australia is the only state which continues

uniform national approach ultimately creates disparity

to have mandatory sentencing laws for young offenders,

across Australian jurisdictions. This is particularly apparent

following the abolition of similar legislation in the

in Queensland under the Youth Justice Act 1992. The

Northern Territory in 2001. Western Australian laws require

legislation restricts the age limit for persons dealt with

that, when convicted for a third time for certain offences,

under the youth justice system to 16 years, with persons

juveniles must be sentenced to a minimum 12 months

aged 17 years or older dealt with as adults in the criminal

detention.12 These laws have been heavily criticised

justice system. This directly conflicts with Article 1 of the

as breaching the UNCRC, which outlines that the best

UNCRC, which states “Everyone under 18 years of age

interests of the child must be a primary consideration,

7

has all the rights in this Convention”. While Australia

detention may only be used as a last resort, and for a

ratified the convention in December 1990, Queensland is

short period, and the primary objective of sentencing

yet to incorporate it in their criminal laws. A 2011 report

must be rehabilitation.13 In addition, studies have shown

commissioned by the Child Rights Taskforce recommended

that mandatory sentencing dramatically increases the

that Queensland amend its laws to ensure that persons

number of people who are incarcerated, with little effect

aged 17 years are also dealt with under the youth justice

on recidivism rates, and discriminates against persons

8

system, however such a recommendation is yet to be

based on race and socioeconomic status. As a result,

implemented.

important elements including the facts of the offence, and

9

Queensland has also recently announced tougher legislation allowing repeat juvenile offenders to be publically

the offender’s personal circumstances, are overlooked.14 Western Australia already has some of the highest

The Full Bench

23


NO PLACE FOR KIDS

“This vindictive approach merely has the effect of appearing ‘tough on crime’, while disproportionately targeting disadvantaged members of the community.” youth incarceration rates, and numerous organisations,

disadvantage,

including the National Children’s and Youth Law Centre,

rehabilitation, and job training. Justice Reinvestment is also

have published reports recommending the abolition

said to be highly cost effective in the long term, as prisons

of mandatory sentencing for young offenders.

15

as

education,

healthcare,

drug

Sadly,

continue to be overcrowded. Such reinvestment programs

despite these recommendations, Western Australia has

have already been embraced in the US in Texas and

pledged to toughen current sentencing laws to impose

Kansas, where they are proving to be effective, as prison

a minimum custodial sentence of two years for juveniles

populations have been reduced, and crime rates have

over 16 years who commit three or more break and enters

declined.23 Whether such an approach will be adopted

offences, up from the current penalty of 12 months.16

in Australia is yet to be seen, however, there is no doubt

Rather than addressing socioeconomic and other factors

that an alternative to tackling youth crime is desperately

which lead to juvenile crime, this vindictive approach

needed.

merely has the effect of appearing ‘tough on crime’, while

1.

disproportionately targeting disadvantaged members of the community, particularly Indigenous Australians, who are already overrepresented in the youth justice system. Despite comprising around 2% of young Australians, Indigenous juveniles are 25 times more likely to be in

2. 3. 4.

5.

detention than non-Indigenous youth.17 Furthermore, they

24

such

are more likely to enter the justice system at a younger age, with 58% of Indigenous youth in supervision in 2010-2011 having first entered supervision between the ages of 10 to

6.

7. 8.

14 years.18 Socioeconomic factors are key motivators for the

9.

commission of crime by Indigenous youth, who are overall

10.

less educated than non-Indigenous youth in Australia, and more likely to suffer from mental illness, drug and alcohol

11.

abuse, and poverty.19 Furthermore, a higher proportion of young offenders come from rural or remote areas, which

12.

do not offer the same opportunities or support networks as their metropolitan counterparts.20 It is apparent that incarceration is ineffective as a deterrent to crime,21 and the reasons behind juvenile offending need to be targeted

13. 14. 15.

by policy makers. 16.

What should we do instead?

17.

The National Crime Prevention Framework states that

18.

strategies that address the underlying reasons for offending are far more effective than incarceration in reducing crime 22

rates across Australia.

19.

Justice Reinvestment is one such

strategy which aims to address these issues. Justice

20. 21.

Reinvestment

22.

identifies

disadvantaged

communities

and diverts funding away from incarceration, towards programs and facilities that aim to reduce socioeconomic

23.

Australian Institute of Health and Welfare, Characteristics of young people under supervision (2013) Australian Institute of Health and Welfare <http://www. aihw.gov.au/youth-justice/characteristics-young-people/> at 19 September 2013. Ibid. Convention on the Rights of a Child, opened for signature 20 November 1987, 1577 UNTS 3 (entered into force 2 September 1990). From 1981 to 2007, the overall detention rate for juveniles fell by 51%, from 65 to 32 per 100,000 (Australian Institute of Criminology, Juvenile detention statistics (2010) Australian Institute of Criminology <http://www.aic.gov.au/statistics/ criminaljustice/juveniles_detention.html> at 23 September 2013). AAP, Abbott announces gun crackdown (2013) The Australian <http://www. theaustralian.com.au/news/latest-news/abbott-to-announce-crackdown-onguns/story-fn3dxiwe-1226699603630> at 21 September 2013. Police Association of NSW, Sentencing and its effect on crime rates (2012) Police Association of NSW <http://www.pansw.org.au/sites/default/files/public/ Sentencing%20_Effects_on_Crime_Rates_ExecSummary.pdf> at 21 September 2013. Youth Justice Act 1992 (QLD). Convention on the Rights of a Child, opened for signature 20 November 1987, 1577 UNTS 3 (entered into force 2 September 1990). Child Rights Taskforce, Listen to children (2011) National Children’s and Youth Law Centre <http://www.ncylc.org.au/images/2011report.pdf> at 23 September 2013, 3. Melissa Calligeros, Queensland to name and shame young offenders, Brisbane Times (2013) <http://www.brisbanetimes.com.au/queensland/ queensland-to-name-and-shame-young-offenders-20130926-2uexk.html> at 28 September 2013. Amy Remeikis, Lawyers blast state’s “name and shame” proposal, Brisbane Times (2013) <http://www.brisbanetimes.com.au/queensland/lawyers-blaststates-name-and-shame-proposal-20130718-2q7a8.html> at 28 September 2013. Australian Human Rights Commission, Mandatory detention laws in Australia (2001) Australian Human Rights Commission <https://www.humanrights.gov. au/publications/mandatory-detention-laws-australia-2001> at 28 September 2013. Child Rights Taskforce, Listen to children (2011) National Children’s and Youth Law Centre <http://www.ncylc.org.au/images/2011report.pdf> at 23 September 2013, 32. Joint Standing Committee on Treaties, Parliament of the Commonwealth of Australia, United Nations Convention on the Rights of the Child – 17th Report (1998) 346. Child Rights Taskforce, Listen to children (2011) National Children’s and Youth Law Centre <http://www.ncylc.org.au/images/2011report.pdf> at 23 September 2013. Amnesty International, Plans to toughen mandatory sentencing in WA a step in the wrong direction (2013) Amnesty International <http://www.amnesty.org. au/news/comments/30857/> at 23 September 2013. Penny Wright, Justice Reinvestment – A four step process (2012) The Greens <http://penny-wright.greensmps.org.au/sites/default/files/justice_reinvestment_-_four_step_process.pdf> at 23 September 2013. Australian Institute of Health and Welfare, Characteristics of young people under supervision (2013) Australian Institute of Health and Welfare <http://www. aihw.gov.au/youth-justice/characteristics-young-people/> at 19 September 2013. Australian Institute of Health and Welfare, Remoteness area and socioeconomic status: 2011 –12 (2013) Australian Institute of Health and Welfare <http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129544527> at 23 September 2013. Ibid. Aboriginal Legal Service of Western Australia, ‘Proposed extension to mandatory sentencing “despicable” says ALSWA,’ (Press Release, 4 February 2013). Australian Institute of Criminology, National crime prevention framework (2012) Australian Institute of Criminology <http://www.aic.gov.au/crime_community/ crimeprevention/ncpf.html> at 19 September 2013. Penny Wright, Justice Reinvestment – A four step process (2012) The Greens <http://penny-wright.greensmps.org.au/sites/default/files/justice_reinvestment_-_four_step_process.pdf> at 23 September 2013.

The Full Bench


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MENTAL ILLNESS IN THE CRIMINAL JUSTICE SYSTEM

Mental illness: the mad and the criminal justice system misconceived The and mental illness Stefanie Costi addresses how the defence of mental illness plays out in the criminal justice system, and questions whether the doctrine of mental illness is sufficient for those truly suffering?

I

t has been accepted for a long time

If a person suffered from a mental

not have understood the difference between

that there is an endemic fear and

illness that caused them not to

right and wrong. In April 2011, was sentenced

misunderstanding about people with

understand the nature or quality of

to 32 years in prison before being eligible for

mental illnesses in the community. This

their act or to lack the understanding

parole.

widespread anxiety and misconception

that what they did was wrong, the mens

forms a basis for how mentally ill

rea essential for the criminal offence

How do you deal with mentally

offenders

may be missing.

ill people who have committed

are

treated

within

the

criminal justice system. Largely, these

26

criminal offences?

misunderstandings are reinforced by

Case in Point: R v Freeman

dramatic representations of mentally

[2011] VSC 1393

This question has been the subject of debate since the defence of insanity was

ill people in the media and a complete

In this case, Arthur Freeman threw

unawareness of legal consequences

established in 1843. This defence provides

his four-year-old daughter over the

and processes by the community. The

that an individual is not responsible for their

edge of the Westgate Bridge, plunging

defence of mental illness to a crime is

act if at the time that they committed the act,

58 metres to her death, on 29 January

considered by many to be an “easy way

they had a mental illness that caused them

2009.

not to understand the nature or quality or

out” for offenders to escape criminal

There

was

no

question

over

punishment.1 This opinion is usually

whether he did the act.

given oxygen after a dreadful crime is

the issues that were presented to the

committed which initiates discussion

jury were whether Freeman should

over the state of mind of offenders and

be found guilty of murder or whether

whether offenders are in fact “mad”

he was so mentally ill when he killed

or just “bad”.2 One significant issue

his daughter that he should not be

that is usually glossed over is how we

convicted because of mental illness.

However,

manage people who commit crimes

It was argued quite contentiously

which many of us assume would only

on behalf of Freeman that his actions

be carried out by a mentally ill person.

screamed madness, that his mental illness caused him to kill his daughter

The defence of mental illness Under Australian law, in order for a person to have committed a crime,

and that he should ultimately be treated until he was well enough to function in society.4

there are a number of criteria that

However, Freeman’s arguments fell

need to be met. It is not enough to

upon deaf ears and a jury found he had

demonstrate that the unlawful act was

not been so mentally impaired at the

committed by the person; a mental

time of his child’s death that he could

element must also be fulfilled (mens rea).

The Full Bench

to not know that they were doing something wrong.


MENTAL ILLNESS IN THE CRIMINAL JUSTICE SYSTEM This criteria is taken very seriously so it

in R v Hemsley [2004] NSWCCA 228.6

people with mental illnesses and provided

is predictable that numerous people who

These factors were: the blameworthiness

validation to labelling people with mental

try to raise this defence are ultimately

of the offender may be reduced if the

illnesses as “dangerous” and as “risks to

unsuccessful, including Freeman. Even

offender’s mental illness contributed to

society”.

though people may fail when they raise

the commission of the crime, the offender

It seems that answers to the approach

this defence, this does not mean that they

could be an “inappropriate vehicle for

posed by the NSW Court of Criminal Appeal

did not have a mental illness when they

general deterrence”,7 a custodial sentence

and High Court of Australia can only be

committed the crime. For instance, in the

may have more of an effect on a mentally ill

uncovered when we actually look at the

Freeman case, the Court acknowledged

offender than an offender without a mental

reasons why we sentence offenders and

that Freeman had a depressive illness

illness and the fact that the offender may

carefully relate them to the issues raised by

at the time of his daughter’s killing.

pose a greater risk to the community

the mental illness. This will obviously not be a

However, in the eyes of the Court, this

because of their mental illness. These

simple task as sentencing in itself is complex

depressive illness was not harsh enough

four factors were given further emphasis

and the problems of applying sentencing to

or of the “right kind” to fulfil the test for

in the NSW Court of Criminal Appeal in

the sensitive area of mental health are even

the mental illness defence.5

Director of Public Prosecutions (Cth) v De

more contentious.

The Court’s finding in the Freeman

La Rosa [2010] NSWCCA 1948 and in the

However, given that there was a study

case raised a fascinating question that

High Court of Australia in Muldrock v The

undertaken by the Schizophrenia Fellowship

has received little consideration since: if a

Queen [2011] HCA 39. 9

of NSW in 2000 that showed that 60% of people in NSW gaols have an active mental

person suffers from a mental illness when

Even with these cases in mind, how are

they committed the criminal offence,

these four contentious issues balanced?

when and how does their mental illness

When is an offender’s culpability lessened

Otherwise, the law in relation to mental

get taken into consideration when the

due to mental illness? When is an offender

illnesses is likely to be advanced in an

person is sentenced?

an “inappropriate vehicle for general

impromptu manner rather than being based

In the NSW Court of Criminal Appeal,

deterrence? Should offenders with mental

upon a foundation of regulatory doctrines

Sperling J outlined four different factors

illnesses be considered “risks” to society?

and this will prevent those offenders who

which should be taken into account when

Since the Courts have concentrated

suffer from mental illnesses from being

a person with a mental illness is sentenced

on

treated with ethics and fairness in the

offenders

with

mental

illnesses

being “risks” to society, this has again strengthened negative labels placed upon

illness, it is vital. 10

Australian criminal justice system. 1. 2.

3. 4.

5. 6. 7.

8. 9. 10.

The Full Bench

Hans, V & Slater, S (1985) ‘Plain crazy: Lay definitions of legal insanity’, International Journal of Law and Psychiatry¸vol 7, pp 105-114. Freeman, K (1998) ‘Mental Health and the Criminal Justice System’ Crime and Justice Bulletin: Contemporary Issues in Crime and Justice, Number 38. NSW Bureau of Crime Statistics and Research. R v Freeman [2011] VSC 139. Rintoul, Stuart (2011) Jury finds Arthur Freeman guilty of murdering his daughter by throwing her off bridge; March 29, 2011 – Accessed at: http://www.theaustralian.com.au/news/ nation/jury-finds-arthur-freeman-guilty-of-murdering-daughter-by-throwing-her-off-bridge/story-e6frg6nf-1226029669369 (28 September 2013) R v Freeman [2011] VSC 139, p. 43. R v Hemsley [2004] NSWCCA 228 at [34]. This was also considered in R v Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; R v Letteri (NSW CCA, 18 March 1992, unreported); R v Israil [2002] NSWCCA 225; R v Pearson [2004] NSWCCA 129 at [42]. Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at 197 per McClellan CJ at CL.. Muldrock v The Queen [2011] HCA 39; 244 CLR 120. Report on the criminal justice system in Australia, Schizophrenia Fellowship of NSW Inc February 2001.

27


War crimes and war criminals By Oliver Doraisamy

A continuing challenge for the international communitY necessity and the protection of the individual. At its

The international community is still inevitably plagued by war crimes. Oliver Doraisamy examines the debate on the appropriate international response to war crimes and speaks about why punishment of war criminals is vital, yet difficult to achieve.

R

ecent reports about the use of chemical weapons by the Assad regime against civilians in Syria have again opened up debate about appropriate

international responses to war crimes.

Numerous world leaders and

international bodies have condemned the atrocities in Syria including UN

28

Secretary-General Ban Ki-moon who has accused Assad of committing crimes against humanity.1 US President Barack Obama, declaring the attacks as crossing a ‘red-line,’ has called upon the international community for military intervention. War crimes are generally considered to be those serious violations of the rules of international humanitarian law, which, particularly since the end of WWII, have been accepted by most in the international community as criminal offences entailing individual responsibility.2 International humanitarian law (also referred to as the laws of war) has developed over several centuries and is now largely codified in the Geneva Conventions of 1949. It is a body of law that accepts armed conflict as an inevitable reality, and therefore seeks to limit the consequences of such conflict by striking a balance between military

core, it seeks to preserve human dignity and ensure that wars do not have disproportionate effects on civilians. In particular, international humanitarian law sets limits on the way in which force may be used by prohibiting both the use of certain weapons (poison gas being one example) as well as certain methods of warfare (such as indiscriminate attacks on civilians).3 In both of these respects, the recent atrocities in Syria can be considered war crimes. What is the appropriate course of action for the international community in the wake of these crimes? Is military intervention justified? And what should occur to those who are responsible for committing the crimes? Commentators have pointed out that US plans to intervene in Syria have created a conflict between competing norms of international law.4 On the one hand, the use of chemical weapons violates both treaty and customary law relating to the conduct of war. On the other hand, military intervention is only permitted when authorised by the Security Council.

“…a number of issues such as jurisdictional uncertainty and lack of political will often prevent the effective enforcement of international law and prosecution of war criminals.”

The Full Bench

Given the political and diplomatic considerations at play within the Council, such authorisation is highly unlikely. The events in Syria also raise interesting questions about the ability of the international community to prosecute war criminals. Whereas the laws of war are relatively clear in terms of setting boundaries (or ‘red-lines’) for appropriate conduct,


INTERNATIONAL WAR CRIMES

developments in respect of prosecuting individuals who cross 5

those boundaries have been less clear. It has generally been

international community, however, is very low. From a legal

accepted that serious or continued violations of the laws of war

standpoint, the US is not a party to the Rome Statute of

are a legitimate concern of the international community, and the

the International Criminal Court and has numerous bilateral

creation of the International Criminal Court in 1998 is evidence of

arrangements with other countries preventing cases being

this. However, a number of issues such as jurisdictional uncertainty

brought against US citizens. Perhaps more significantly, from

and lack of political will often prevent the effective enforcement

a political standpoint, a state would have much to lose in

of international law and prosecution of war criminals.

upsetting one of the world’s superpowers.

That there remain substantial hurdles to prosecuting war

This was made clear in 2006 when a group of international

criminals is cause for concern. Not only have war crimes been

lawyers tried to bring proceedings in Germany against former

committed on a far too frequent basis across the globe (and a

Secretary of Defence Donald Rumsfeld, former Attorney-

quick recollection of conflicts in recent decades will reveal this),

General Alberto Gonzales and other senior US officials for

but they have also been committed by developed and developing

their alleged roles in the abuses committed at Abu Ghraib

countries alike. Indeed, some of the countries that have been

and Guantanamo Bay. Although as a matter of international

most vocal in condemning the current situation in Syria can be

law there is a strong case that war crimes invoke universal

accused of war crimes in recent years.

jurisdiction, Germany’s Federal Prosecutor dismissed the

This year marks the 10 year anniversary of the invasion in Iraq

proceedings on the basis that the crimes allegedly committed

by US and Allied forces and without doubt some of the lasting

did not have a sufficient connection to Germany to warrant

images from the war are those detailing the torture and prisoner

exercise of her legal discretion.8

abuse committed by US military personnel at Abu Ghraib prison.

Because of the legal and political difficulties which come

Many of the acts committed at Abu Ghraib violated provisions

with prosecuting citizens of other states for war crimes,

of the Geneva Conventions, the Convention Against Torture

“retaliation, reprisal and self-defence [remain the] classical

and customary international law. Justifiably, these acts caused

forms of enforcement of international law obligations”9 and

widespread concern amongst the international community.

the intended intervention in Syria is evidence of this. It must

Although a number of the soldiers involved in the prison abuse

be stressed, however, that “the punishment of individuals as

were reprimanded internally for these acts, pertinent questions

war criminals remains essential for an effective enforcement of

about the potential international criminal responsibility of US

international humanitarian law.”10 It is, therefore, a continuing

officials overseeing these abuses remain.

challenge for the international community.

This is significant because many believe that the classification by US officials of detainees held at Abu Ghraib as “unlawful combatants” falling outside the scope of protections under the Geneva Conventions (a classification which has been questioned by international lawyers)6 contributed to, and even legitimised, the conduct of soldiers who carried out the abuse.

1. 2. 3. 4.

5.

In 2005, the New York Times reported: “what happened at Abu Ghraib was no aberration, but part of a widespread pattern. It showed the tragic impact of the initial decision by Mr. Bush and

6. 7. 8.

his top advisers that they were not going to follow the Geneva

9.

Conventions, or indeed American law, for prisoners taken in

10.

7

antiterrorist operations...”

Steve Rhodes

The likelihood of US officials being prosecuted by the

‘UN Confirms Chemical Weapons’, September 15 2013, Sydney Morning Herald. See, e.g. Article 8 of the ICC Statute or Solis, G. The Law of Armed Conflict: International Humanitarian Law in War, (2010), Cambridge University Press. Fleck, D., The Handbook on International Humanitarian Law, (2008), Oxford University Press, p. 13. Bazelon, E. ‘Syria is a Legal Triumph’, 11th September 2013 available at http://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/ obama_syria_and_international_law_the_russia_deal_could_be_a_legal_triumph.html. Fleck, D., The Handbook on International Humanitarian Law, (2008), Oxford University Press, p 684. See e.g. Dormann, K., ‘The legal situation of “unlawful/unprivileged combatants”’ (2003), International Review of the Red Cross, Vol 85 pp 45 - 74 ‘Patterns of Abuse’, The New York Times, 23rd May 2005. German War Crimes Complaint Against Donald Rumsfeld, et al (2006) available at http://www.ccrjustice.org/ourcases/current-cases/germanwar-crimes-complaint-against-donald-rumsfeld-et-al. Fleck, D., The Handbook on International Humanitarian Law, (2008), Oxford University Press, p. 685. Fleck, D., The Handbook on International Humanitarian Law, (2008), Oxford University Press, p. 685.

“Indeed, some of the countries that have been most vocal in condemning the current situation in Syria can be accused of war crimes in recent years.” The Full Bench

29


A Game of Oaths Criminal Justice in Game of Thrones. Crime and punishment in the fictional land of Westeros is not arbitrary, but based on a deepseated system of oaths and honour. David Hazan explains just how rigid this oath system is, and how it operates as a justice system unto itself.

T

o say fans were upset at the ending of the latest season of Game of Thrones, would be an understatement. The ninth episode of that

season of HBO hit fantasy drama, based on the popular novel series by George R. R. Martin, A Song of Ice and Fire, caused a social media uproar. The twitter handle “#redwedding”, which refers to the macabre massacre

30

that closed the episode, received close to half a million mentions that night alone.

Before reading any further:

Brace yourselves…spoilers are coming…

And with that somewhat shameless reference, I now have a clear conscience. For the uninitiated, Game of Thrones details the machinations of several feuding families in the Seven Kingdoms of the mythical, medieval land of Westeros. While the setting may appear generic, there are subtleties to Martin’s world-building which invites a unique legal reading of the text. This is especially apparent in the way Martin punishes his characters for their transgressions, whether by direct consequence or something more metaphysical.

The Full Bench

“…Game of Thrones details the Machiavellian machinations of several different feuding families in the Seven Kingdoms of the mythical, medieval land of Westeros.”


GAME OF THRONES: CRIMINAL JUSTICE

“Every cruel twist of fate in Westeros is caused by a broken oath or vow.”

repugnant characters as much as the

is perhaps the cruelest twist of fate in

and Theon Greyjoy are two of the more

comparison to the other oath breakers,

morally stunted characters in Martin’s

save Robb Stark. Eddard makes a

epic, and their terrible fates match their

promise to Robert Baratheon to install

hubris in their respective oath-breaking.

The events of the Red Wedding caused massive fan uproar, as did the beheading of Ned Stark (the protagonist apparent of the series) during the show’s first season. The Red Wedding resulted in the deaths of Ned Stark’s wife, heir, and pregnant daughterin-law. These characters represent a large proportion of Martin’s cast who possessed even a shred of honour in a land of moral decrepitude. In fact, the series has garnered a reputation for killing off seemingly central characters with alarming regularity. These characters are often the most morally guided, or close enough to redemption before they are suddenly and brutally murdered, disfigured, or otherwise punished. The Red Wedding in particular has left viewers wondering: why? If you think Martin chooses at random, well, as the wildling Ygritte never fails to mention, you know nothing, Jon Snow. Every cruel twist of fate in Westeros is caused by a broken oath or vow. In this way, Game of Thrones provides an interesting perspective on oaths and oath breaking, as these vows become central to the entirety of Martin’s fantasy

world,

defining

who

deserves

punishment. No punishment is meted out because a character is inherently bad or evil, but simply due to a broken oath or promise, whether public or personal. Further, each of these characters pays a terrible price for forsaking their vows, whether or not by direct consequence of the breach – each loses that which is dearest to them. The plight of the Stark family is perhaps the most apt illustration of this concept. Even little Bran’s broken promise to his mother to not climb the castle ramparts is met with a fall resulting in paraplegia. The decapitation of Eddard “Ned” Stark, Bran’s father, the head of the Stark family,

This rule applies to the morally

morally upstanding ones. Jaime Lannister

his son Joffrey on the throne. Lord Stark

Jaime Lannister, previously a master

knew Joffrey was not a legitimate heir,

swordsman, is seized by his enemies

and thus changed the words of the king’s

and his hand is dismembered in the

will slightly, from “my son, Joffrey” to

ultimate irony. Lannister’s broken oath

“my rightful heir”. He is later executed

was sworn to the mad king, before Jaime

by Joffrey for his attempt to depose the

put a sword through the man’s back as

boy, even when all of Joffrey’s advisors

he commented to Eddard Stark, “And

sued for mercy. In this, Lord Stark not only

later...when I watched the mad king die, I

loses his life, but also by being labeled a

remembered him laughing as your father

traitor loses his honour – the character

burned... it felt like justice.” For this, he is

trait he prized above all else.

given the name “Kingslayer”.

Robb

Stark,

Ned’s

eldest

son,

Theon

Greyjoy

gets

his

pledges to marry a daughter of Walder

comeuppance after betraying Robb

Frey to attain passage to the south.

Stark as he is tortured, beaten and flayed

Instead he marries another. This leads

alive (and even castrated), being left

Frey to seek revenge, and Frey beheads

a husk of his former self. Theon is no

Robb at the wedding, arranged to broker

longer recognisable as himself, to the

a renewed alliance between houses Stark

point where he does not remember his

and Frey in a slaughter known as the Red

own name. This is the ultimate mockery,

Wedding. In this he shares the same

considering that his oath to Robb Stark

fate as his father. Yet in a final insult to

was broken in pursuit of recognition from

the would-be boy king, the Freys sow

Balon Greyjoy, his father.

the head of his dire-wolf where his head

The satisfaction that justice has been

would have been. Robb dies having

done does not extend from Game of

neither avenged his father nor brought

Thrones as it would from generic fantasy

independence to the North. In addition

texts. There is no classical relationship

he loses his wife and unborn child, the

between wickedness and crime, nor

ultimate reason for his broken oath.

crime and punishment. So I invite you

Catelyn Stark, the Stark matriarch,

to think closely about the oaths your

also dies at the Red Wedding. After

favourite character has taken. Think

vowing to her gods to adopt her

about whether or not they have broken

husband’s bastard son, she fails to do

them, regardless of their intentions, and

so. As a result she is punished with the

the punishments this may entail…Jon

disintegration of her family. Additionally,

Snow fans, beware.

at the time of her death she believed her remaining sons to have been burned alive and her daughters captive to King Joffrey, a tyrant.

The Full Bench

31


DEBATE

Stop. Hammer time. Should the main purpose of prisons be punishment?

FOR

AGAINST

By Melissa Roberts

By Lauren Fitzpatrick

As the United Kingdom Justice Secretary, Jack Straw, recently

Punishment without rehabilitation is failure. In 2005, the

stated, the “sentences of the courts are first and foremost for

Australian Institute of Criminology found that approximately

the punishment of those who have broken the law, broken

two in every three prisoners have previously been imprisoned,

1

society’s rules”. Punishment is, and should remain, the main

one in four prisoners will be reconvicted within three months

purpose of prisons.

of being released from prison, and between 35 and 41%

The Crimes (Sentencing Procedure) Act 1999 (NSW), and

of prisoners will be reimprisoned within two years of being

cases such as R v Radich, have continued to hold that “one

released.8 Punishment is insufficient to prevent a large

of the main purposes of punishment…is to protect the public

proportion of prisoners from committing new offences after

2

from the commission of such crimes”. In cases of truly horrible

release.

3

crimes, punishment must operate by way of retribution; not

The lives of the majority who cycle in and out of prison

only so the community can be satisfied, but so that “those

are unstable at best. While punishment is hoped to decrease

who the victims have left behind also feel that justice has been

recidivism and promote public safety, substance addiction,

4

32

done”. Such justice cannot be realised if the main purpose of

housing instability, broken families, lack of adequate education

prisons is rehabilitation.

and job skills, mental illness, and health problems are part

Not only does prison punishment protect the community, it

of the day-to-day realities for a significant share of this

also acts as a deterrent to possible offenders. As the NSW Court

population. But as Edgardo Rotman says, “Each offender

of Criminal Appeal stated in Zamagias, it is trite to observe that

should have the opportunity to reintegrate into society as a

the purpose of punishment can be achieved by a sentence

useful human being”.9 Rehabilitation could turn the lives of

“designed to assist in the rehabilitation of the offender at the

prisoners around, helping them to change their behaviour to

5

expense of deterrence, retribution, and denunciation”. What

one that is nonviolent and even constructive, so that they can

would deter someone from the commission of an offence if

re-establish their lives as active members of the community

they knew the main purpose of prisons was rehabilitation?

when they return.

It is hard to justify that serial killers such as Ivan Milat and

Not only would rehabilitation benefit the prisoners

John Glover, who are serving six and seven concurrent life

themselves, but it would also aid the government. Lynne

6

sentences respectively,

are worthy of rehabilitation. They

Pizzullo, from Deloitte Access Economics, says diverting

must take responsibility for their choices to commit crimes,

offenders to rehabilitation could save governments “about

and be held accountable for their actions. As former Australian

$111,000 per prisoner in a year, for each offender who is

fugitive, Malcolm Naden, confessed, “once those walls are

diverted”.10 Pizzullo looked at the difference of costs and

broken, once you kill someone, you can’t put them back up,

other positive outcomes, such as reduced reoffending rates,

7

you’re going to kill again”. In such cases, the main purpose of

and better health outcomes, which are associated with

prisons should be punishment.

rehabilitation. This is much more attractive than the present

While we do need to provide offenders with opportunities for rehabilitation, these opportunities must not come at the

regime of sending repeat offenders to jail at a cost of $300 per prisoner per day.11

expense of justice and appropriate punishment.

Being in prison is punishment enough. For a more successful outcome for both prisoners and taxpayers, prisons

1. 2. 3. 4. 5. 6.

7.

Alan Travis, Jack Straw is right: Prison is for punishment (2008) The Telegraph <www.telegraph.co.uk/comment/telegraph-view/3563070/Jack-Straw-isright-prison-is-for-punishment.html> at 2 October 2013. Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(c); R v Radich [1954] NZLR 86, 87. R v Milat (Unreported, NSWSC, Hunt CJ at CL, 27 July 1996). Ibid. R v Zamagias [2002] NSWCCA 17, 32. John Anderson, ‘From marble to mud: The punishment of life imprisonment’ (Paper presented at the History of Crime, Policing and Punishment Conference by the Australian Institute of Criminology, in conjunction with Charles Sturt University, Canberra, 9 and 10 December 1999) 7. Paul Bibby, ‘Thank you, your honour’: Naden gets his wish for life in jail (2013) <www.smh.com.au/nsw/thank-you-your-honour-nade-gets-his-wish-for-life-injail-20130614-2o8cu.html> at 1 October 2013.

should be focusing on rehabilitation. 8.

9. 10.

11.

The Australian Institute of Criminology, Interventions for prisoners: Returning to the community (2005) The Australian Institute of Criminology <http:// www.aic.gov.au/documents/F/6/E/%7BF6E2B190-2C21-4C7D-B45F-2C7D6FA3DE45%7D2005-03-prisoners.pdf> at 21 September 2013. Edgardo Rotman, Beyond Punishment: A New View of the Rehabilitation of Criminal Offenders (1990), p 6. Bronwyn Herbert, Indigenous offenders need rehabilitation, not jail: Report (2013) ABC Online <http://www.abc.net.au/news/2013-02-04/indigenous-offenders-need-rehabilitation-not-jail-report/4500246/?site=indigenous> at 19 September 2013. Zara Dawtrey, Rehab scheme wins support (2012) The Mercury <http://prelive.themercury.com.au/article/2012/06/15/337111_tasmania-news.html> at 21 September 2013.

The Full Bench


WHAT MAKES A LAWYER WORLD CLASS?

AT CORRS, WE’RE DEVELOPING LAWYERS WHO DELIVER REAL IMPACT IN A NEW BUSINESS WORLD. TO SEE HOW VISIT CORRS.COM.AU/GRADUATES


VERBATIM: LEGAL TV SHOWS AND FILMS

Verbatim What to take away from legal TV shows and films… •

Law & Order, Detective Ed Green: “If you’re

going to lie, be creative or we’ll get bored.”

The People vs. Larry Flynt, Larry Flynt: “You don’t

want to quit me, I’m your dream client. I’m the most fun, I’m rich, and I’m always in trouble.”

Legally Blonde, Elle Woods: “I just don’t think

that Brooke could’ve done this. Exercise gives you

A Civil Action, Jan Schlictmann: “The odds

endorphins. Endorphins make you happy. Happy people

of a plaintiff’s lawyer winning in civil court are two to

just don’t shoot their husbands, they just don’t.”

one against. Think about that for a second. Your odds of surviving a game of Russian roulette are better than

Legally Blonde, Elle Woods’ father: “Law school is

winning a case at trial. Twelve times better. So why does

for people who are boring and ugly and serious.”

anyone do it? They don’t. They settle.”

Legally Blonde, Elle Woods: “I feel comfortable

using legal jargon in everyday life.”

My Cousin Vinny, Bill Gambini: “Come on, it’s

time to make your opening statement. C’mon, Vin.” Vinny Gambini: “Everything that guy just said is bullshit.

Suits, Harvey Specter: “Sometimes good guys

Thank you.”

gotta do bad things to make the bad guys pay.” •

34

Suits, Jessica Pearson: “Stop questioning his

ethics and start winning this case.”

Erin Brockovich, Ed Masry: “In a law firm you may

want to re-think your wardrobe a little.” Erin Brockovich: “Well as long as I have one ass instead of two I’ll wear what I like if that’s all right with you. You might

Suits, Harvey Specter: “Listen, being a lawyer is a

want to re-think those ties.”

lot like being a doctor.” Mike Ross: “You mean how you don’t get emotional about

Ally McBeal, Ally McBeal: “I’m trying to

a client?”

desensitise myself to murder so I can be a better lawyer.

Harvey Specter: “No, I mean you keep pressing until it

Billy Thomas: Why don’t you just watch the news?”

hurts. Then you know where to look.” • •

Suits, Harvey Specter: “I wasn’t objecting to his

question. I was objecting to his tie. I do have to look at it.” •

And the most important one of all….

Philadelphia, Joe Miller: “Forget everything you’ve seen on television and in the movies.”

Boston Legal, Denny Crane: “And if things start to

go wrong and you think you’re going to lose, just pretend you’re winning. It works for our President.”

The Full Bench


CASE CLOSED (Until next year!)


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2013 The Full Bench Ed 4  

This is the fourth edition of The Full Bench published in 2013 by the UTS Law Students' Society.

2013 The Full Bench Ed 4  

This is the fourth edition of The Full Bench published in 2013 by the UTS Law Students' Society.

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