SA Premier Michael Rann, up for re-election in March 2010, is proposing that a defendant’s personal history should be revealed to juries – before they decide guilt or innocence – so as to send more people to prison. CLA and the SACCL, plus most other knowledgeable legal observers, think Mr Rann is confusing conviction with justice.
Media release – from Civil Liberties Australia, 9 March 2010:
SA Government drops ‘Law’ from ‘Law and Order’ election platform
In the lead up to the 20 March election the South Australian Labor Government has indicated it will junk centuries old legal rights and allow a defendant’s criminal past to be presented as ‘evidence’ to juries.
“This is the worst kind of policy on the run. Policy which tramples rights for no community benefit,” said Civil Liberties Australia spokesperson Tim Vines.
“If you are tried for a crime you must be found guilty on the basis that you actually committed the crime. Evidence of past criminal acts is no evidence at all.
“A person’s criminal record is already taken into consideration by a court. But this is during the sentencing phase, not the trial. Imposing a jail sentence is different from deciding if someone is guilty or innocent,” Mr Vines said.
Civil Liberties Australia calls on the all South Australian politicians to remember that people can change; a one-time criminal can become a productive and honest member of the community.
“Mr Rann’s proposals have as much sense as phrenology – the ‘science’ of determining criminality by the size and shape of a person’s skull,” Mr Vines said.
If carried out, the measures would leave South Australia isolated from the rest of Australia, which is moving toward uniform evidence law.
Tim Vines,
CLA Director and media spokesperson
Media release: from SA Council for Civil Liberties
Press Release 9 March 2010
The South Australian Council for Civil Liberties is concerned about the comments of the Premier Mr. Rann wherein he said if re-elected he would pass legislation to enable
“Improving the court system by allowing prosecutors in appropriate cases to introduce evidence of prior offending in court, when this is relevant and in the interest of justice. For example in sex cases, where the accused has committed offences in similar circumstances and that is relevant to the current proceedings. .. The common law imposes a very high threshold for allowing such evidence.”
The Council for Civil Liberties points out that it is already the law that a jury is able in any trial, (including trials involving sex crimes) where the Judge rules it is appropriate, for the jury to be made aware of the previous convictions of an accused. This area of evidence is called disposition evidence.
In the High Court decision of Pfennig the Court ruled that the jury could hear that Mr. Pfennig had pleaded guilty some years earlier to the abduction and rape of another young boy. The matter before the Jury concerned a boy at Murray Bridge who had disappeared and whose body had not been found. There was evidence that Mr. Pfennig had spoken to the boy. Thus the jury could take into account that Mr. Pfennig had previously abducted and sexually assaulted another young man.
The Council for Civil Liberties points out that this is the law as it exists now and it ensures that those who are guilty are found guilty of crimes where there is evidence they have a disposition to commit a particular offence.
There has been no study or research that shows that the Premier’s view that The community is rightly outraged when, in some cases, an offender’s criminal past comes to light after conviction and sentencing, or worse, following an acquittal.”
The public would never have all the facts from a trial if they are outraged. Not all persons found guilty in the past are guilty of every further allegation made against them. A jury who acquits on available evidence then says it would have convicted if they had the further evidence of a person’s previous convictions would be convicting on irrelevant material.
The Council is concerned that if the law allows for the admittance of a person’s previous convictions that has no relevance or bearing on the charge before the court there is a danger that a person charged will be found guilty by a jury, not on the evidence the State has against that person, but because they are a person with previous criminal convictions. Not all persons charged previously are guilty of the crime before the court. The police can get it wrong; victims can lie; eye witnesses can be mistaken. Innocent persons have no place in our prisons.
Claire O’Connor
Chairperson
SACCL
What Mr Rann said: http://www.abc.net.au/news/stories/2010/03/08/2839904.htm