BEHIND THE YELLOW TAPE: CRIMINAL LAW Issue 04 2013 UTS Law Studentsâ€™ Society Quarterly Academic Journal
Begging for death
What happens when someone consents to their own murder? 16
When athletes donâ€™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
What do legal TV shows and films really teach us?
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. .
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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04 06 08 09 10
No place for kids
Mental illness: the mad and the misconceived
The Royal Commission into Institutional Responses to Child Sex Abuse
Begging for death
The criminal justice system and mental illness
War crimes and war criminals
A Game of Oaths
Debate: Stop. Hammer Time.
A continuing challenge for the international community
Criminal Justice in Game of Thrones
Should consent be a defence to murder?
Trials on death row
Searching for justice when the State seeks revenge
Dominic G Smith
The consequences of detention for young people
What isn’t a crime that should be?
Should synthetic cannabis be illegal?
In 10 words or less
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?
A step in the right direction The impact of mandatory pre-trial defence disclosure on criminal law
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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
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
any aspect of the UTS LSS, please do not hesitate to contact me at
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
to grow the calibre and profile of this publication.
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Editors’ Question Should sadomasochism (S&M) be a crime in Australia?
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 , 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
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)  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.
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
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
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
freedom of sexual expression.
largely sensationalized in recent
S&M is certainly becoming more
pop-culture through characters such as E L James’ suave and
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.
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
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
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?
The Full Bench
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
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
not be tolerated
- The Australian Institute of Health and Welfare 2010
Same same, but...
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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.
- 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.
- People who don’t know the difference between “your” and “you’re”.
- 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!
- 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.
- 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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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.
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.
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 Johnstonâ€™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
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.
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.
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.
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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Begging for death
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.
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.
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
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
“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
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>
The Full Bench
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
he execution of Ronald Ryan in 1967 was an event that severely altered the perspectives of many Australians towards capital
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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“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
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
were not successful. The effect of numerous death sentences of people in
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
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) . 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.
The Full Bench
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.
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  BCPC 116.
The Full Bench
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.
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
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
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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and application of blanket disclosure requirements
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.
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.
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
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
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
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
and I don’t feel safer than when I was smoking normal weed.”
Mr Bright argues that “if cannabis were regulated in the
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.
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
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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
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,
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
system, however such a recommendation is yet to be
based on race and socioeconomic status. As a result,
important elements including the facts of the offence, and
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
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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,
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.
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
merely has the effect of appearing ‘tough on crime’, while
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.
detention than non-Indigenous youth.17 Furthermore, they
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
14 years.18 Socioeconomic factors are key motivators for the
commission of crime by Indigenous youth, who are overall
less educated than non-Indigenous youth in Australia, and more likely to suffer from mental illness, drug and alcohol
abuse, and poverty.19 Furthermore, a higher proportion of young offenders come from rural or remote areas, which
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?
The National Crime Prevention Framework states that
strategies that address the underlying reasons for offending are far more effective than incarceration in reducing crime 22
rates across Australia.
Justice Reinvestment is one such
strategy which aims to address these issues. Justice
and diverts funding away from incarceration, towards programs and facilities that aim to reduce socioeconomic
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.
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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?
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
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
may be missing.
ill people who have committed
criminal justice system. Largely, these
misunderstandings are reinforced by
Case in Point: R v Freeman
dramatic representations of mentally
 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
not to understand the nature or quality or
out” for offenders to escape criminal
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.
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).
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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  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
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
The Court’s finding in the Freeman
La Rosa  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  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
treated with ethics and fairness in the
being “risks” to society, this has again strengthened negative labels placed upon
illness, it is vital. 10
Australian criminal justice system. 1. 2.
5. 6. 7.
8. 9. 10.
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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  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  VSC 139, p. 43. R v Hemsley  NSWCCA 228 at . 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  NSWCCA 225; R v Pearson  NSWCCA 129 at . Director of Public Prosecutions (Cth) v De La Rosa  NSWCCA 194 at 197 per McClellan CJ at CL.. Muldrock v The Queen  HCA 39; 244 CLR 120. Report on the criminal justice system in Australia, Schizophrenia Fellowship of NSW Inc February 2001.
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.
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
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.”
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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.
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
Conventions, or indeed American law, for prisoners taken in
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
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.
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
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
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”.
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
Stop. Hammer time. Should the main purpose of prisons be punishment?
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,
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
from the commission of such crimes”. In cases of truly horrible
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,
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
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
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,
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.
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  NZLR 86, 87. R v Milat (Unreported, NSWSC, Hunt CJ at CL, 27 July 1996). Ibid. R v Zamagias  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.
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
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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
gotta do bad things to make the bad guys pay.” •
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
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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THE FULL BENCH
This is the fourth edition of The Full Bench published in 2013 by the UTS Law Students' Society.