New sexual assault and violence laws passed in haste just before an election may have blinded the courts to proper scrutiny of evidence, barrister Shane Gill writes. Real justice, unlike TV dramas, has to deal with a range of motives, complainants not necessarily telling the truth, and mistakes.
On law reform, police television drama and the Gungahlin Drive Extension
By Shane Gill*
In the mad September scramble within the ACT Legislative Assembly preceding caretaker mode, the ACT government** enacted a large volume of legislation to change the operation of the criminal justice system in the Territory. There was little opportunity for public scrutiny. There was little resistance within the Assembly.
In passing the legislation the government was able to produce a significant number of producibles. Many amendments were made to legislation. A number of announcables were generated that were able to be announced. Press releases were produced. Justice and community safety was assured.
Unfortunately, the changes to the law have a somewhat Gungahlin Drive Extension (GDE) flavour to them. The Extension, like the legal changes, were suggested to be a good idea. The Extension was said to be a good idea because it would make for easier access to Gungahlin (a noble objective). The legal changes were said to make it easier for witnesses and victims of crime (also noble objectives).
However, in the same way that the single lane GDE failed to take into account the broader picture of road use and so required immediate modification in order to operate competently, so too have the legal changes failed to appreciate the broader context in which they are supposed to operate. The legal changes have failed to appreciate that the most important outcome in the legal process is that there be justice.
In a nutshell, the legal changes have reduced the scrutiny of witnesses, both in relation to committal proceedings and in relation to sexual and violent crime allegations.
Since the 15th century, Justitia, the traditional representation of justice as a female figure holding the scales of justice in one hand and a sword in the other, has often also been blindfolded. The point of the blindfolding is that justice ought to be impartial, not that the court system should be prevented from placing a case under most careful scrutiny.
The recent changes in the ACT to both committal processes and sexual and violent offence cases by the government are akin to the artistic placing of a paper bag over the head of Justitia. There will be less examination of witnesses and a heavy reliance on the proposition that the police who investigate will find and produce the matters negative to their case as well as positive.
Criticism of this approach has met the answer that NSW has already adopted such changes. Such an argument has at least two fundamental flaws. Firstly, since when was NSW the guiding light in respect of the administration of justice? The administration of justice is something that NSW has struggled to master since as far back as the corrupt rum corps (who were, of course, responsible for law and order in the early settlement) and through a seemingly endless parade of Royal and other Commissions. Secondly, in a comeback familiar to many parents, just because NSW jumped off a cliff would you?
Following in the footsteps of a member of your peer group, whether it is as a 7 year old boy, or whether it is as a legislature, is only a sensible course if the footsteps are well placed. It is an odd thing for a government to justify fundamental change on the basis of “they did it first”.
The ACT Government has also justified the changes on the basis of decreasing the stress to witnesses and to complainants. It can readily be seen that severely limiting the number of times a witness or complainant may be cross examined would reduce such stress. However, the problem in adopting such an approach is that of the modern police drama.
What is central to the modern police drama is the certainty with which it is known that the right person has been got. The viewer is given either a snapshot of the offending behaviour (perhaps in a shaky camera montage), a super slo-mo of a bullet picking up a paint fragment which is only referable to one car in the whole of Miami (conveniently recently painted by the culprit), or a confession blurted out about why the “perp” had to do it.
The commonality of these dramatic techniques is that they enable the viewer to depart the show in the knowledge that justice has been truly done because there can be no doubt about who the guilty party is.
Unfortunately, real life departs from these stereotypes. A real justice system is dependant upon the examination of witnesses, including complainants who may or may not in truth be victims. A real justice system has to deal with unknown motives on the part of those who testify, along with the very real risk of honest mistakes being made.
Australian legal history is littered with examples of the wrong person being found guilty as a result of mistake. The recent use in the USA of DNA analysis has likewise found terrible examples of the wrong person being found guilty. The adoption of the system enacted by the ACT Government reduces further the ability of courts and juries to detect both honest errors and lies.
Unlike the Gungahlin Drive Extension, the government has chosen not to open these legal changes for traffic until after the election. Although enacted pre-election, the enactments were given a lengthy period before entering into force (to receive their traffic) some time after the election.
Unlike the Gungahlin Drive Extension, the problems generated by these changes will not be so readily apparent. It will not be as simple as panning the camera along a lengthy train of slow moving traffic, of interviewing drivers through their open windows as they move at a snail’s pace.
Unlike the Gungahlin Drive Extension, these changes will not annoy or provide discomfort to the many prompting a change to take place. But, unlike the Gungahlin Drive Extension, the changes here have the potential to utterly destroy lives, to send the innocent to jail and to let the guilty pass by.
* Shane Gill is an ACT barrister.
** On 18 October 2008, the ACT election produced a Legislative Assembly of 7 Labor, 6 Liberal and 4 Green.