Law and order issues for WA

The WA state election is coming up in March. While the economy seems to lurch from bad to worse, it’s not the only issue that needs urgently to be addressed before we go to the polls.

From my perspective, the law and justice arena needs to be a focal point. So what would my wish list be for the new parliament? It’s hard to know where to start, but perhaps I can narrow it down to my top eight.

Note: The 2017 Western Australian state election will be held on Saturday 11 March 2017 to elect 59 members to the Legislative Assembly and 36 members to the Legislative Council.

1. Mandatory Sentencing: This has done almost nothing to reduce the incidence of crime in any of the various areas where it has been implemented. If you must have imprisonment as a starting point (rather than a last resort) for any particular crime, then you need to give courts the power not to do it where it would be plainly unjust. Currently, they don’t have that option under mandatory sentencing laws. This needs to change as a matter of urgency.
2. Assets Confiscation: For nearly 15 years we in WA have had the most draconian laws in the nation governing the seizure of assets from persons convicted of drug offences. Apart from doing nothing to fix the drug problem, these laws have led to well-documented cases where legitimately obtained property is confiscated and innocent third parties disadvantaged.
3. Drug ‘Traffickers’: We need to reassess the deeming provisions in the Misuse of Drugs Act. At the moment, anyone who has in their possession 2g of meth at even 1% purity is deemed to be a “trafficker”. The same applies to heroin and cocaine. This Act was drawn up in 1981. In those days, no one used these drugs to anything like the same extent or at the same purity as they do today.

It was arguable back then that someone who had 2g in their possession might be a dealer. These days, 2g would be unlikely to get a serious addict through the day. A reassessment of this redundant 35-year-old law wreaking havoc in the courts should be a major priority.

4. One-punch Homicides: The so-called “one punch” homicide law was introduced in WA back in 2008 but there’s no evidence to suggest that it has had any effect on the rate at which people under the effect of drugs and alcohol attack and kill each other at pubs and nightclubs. The strict operation of the section has seen some clearly unjust outcomes where the death of the victim was never intended, foreseen or even reasonably foreseeable. The wording of the law excludes any defence of accident. It needs to be amended to allow for acquittals in cases where death is genuinely accidental.
5. Judge-alone Trials: Trial by judge alone in WA continues to be allowed only where the accused person is able to persuade a court that trial by jury would carry significant risks or is otherwise inappropriate. If an accused person wants to forego their right to trial by jury, for whatever reason, they should be able to do so. It’s cheaper and more efficient.
6. Fresh Evidence: Where fresh evidence emerges that tends to prove a person’s innocence, that person should be allowed an appeal to have their conviction overturned. In WA there is no such entitlement. Whether or not there is sufficient fresh evidence to allow the matter to go back to court should also be determined by a judge rather than the Attorney-General.
7. Costs on Acquittal: A criminal trial in WA continues to be a ruinously expensive process. Over the past few years we have seen people who have been acquitted after trial but who have suffered a massive financial cost in the process. If the prosecution decides to put you on trial, and loses, then it should pay your costs.
8. Delay: It’s an old saying that justice delayed is justice denied. The inordinate delay in matters getting to trial in the criminal courts in WA is alarming and getting worse. The next government needs to commit significant additional funding to ensure adequate numbers of judges and magistrates are appointed. Extra resources are also required by the Coroner’s Court to avoid the current two-year wait for an inquest.

The problem with any of these issues gaining traction is the proponent would inevitably (but incorrectly) be castigated as being “soft on crime”.

And while the law and justice “toughness auction” continues to triumph over common sense, I won’t be holding my breath to see any of these changes in the term of the next Government, irrespective of who wins.

Tom Percy is a Perth QC and can be heard on 6IX at 7.40am on Thursdays. This article appeared first on Perth Now.