You have the right: to go to gaol!

by on 25 October, 2016

James Penny explains the opportunity cost of a divisive plebiscite, which could instead be used to uphold basic legal rights in court.

For many of us, we think we have our rights at trial. Right to silence, counsel, innocence, trial by jury and those other things we seem to think apply as a result of U.S television shows. Welcome to Australia, home of ‘she’ll be right mate’ and where your rights get taken from you. Make no mistake about it, you are living in a police state. Especially those on the Eastern States. Let us not forget the removal of rights at Commonwealth level too, such as preventative detention orders. The free Australia you thought you were living in, is well and truly gone. The other issue, coinciding with all of this, is spectacularly huge cuts to legal aid. Which is grinding our criminal justice system to a halt.

In 1992, in the case of Dietrich v The Queen the High Court of Australia found that not being able to obtain counsel, by no fault of your own amounted to a miscarriage of justice, and that the accused’s trial be stayed until counsel could be obtained. Effectively it meant that you had the right to counsel at trial. Thanks to successive cuts at State and Federal level to legal aid, those below the poverty line cannot obtain counsel. Just the other day I witnessed an unrepressed accused, attempting to bumble his way through a cross examination. What hope of a fair trial does he have? Especially against the might of the Crown, who were armed with a Queen’s Counsel and junior. For a fair and just system, legal aid needs proper funding. This is a prime example of where the money for the plebiscite could go. After all, the government are willing to spend over $15 million on an opinion poll. This would mean no extra spending, but would ensure the wheels of justice actually turn.

The lack of counsel at trial is clearly an issue, but it gets worse. Barry O’Farrell and Mike Baird decided that the right to silence had to go, in the interest of ‘justice’. So they brought in Section 89A of the Evidence Act 1995 (NSW). Meaning a jury or judge (as NSW also has judge alone trials), must draw adverse inferences from the accused opting to remain silent. The first thing that this provision does, is start eroding the concept that the prosecution must prove its case, rather than the accused/defendant must disprove it. That is at the core of the right to silence. That the accused does not have to say or do anything, and the burden of proof rests on the prosecution. This new provision, is forcing the accused to take the stand and testify. Often in circumstances when they may well not have to or want to. Now if the accused opts to remain silent, a jury must look unfavourably upon it.

Another big issue facing the New South Wales criminal justice system is defence disclosure. Again, traditionally the prosecution had to prove its case. Provide all evidence it intended to adduce at trial to the defence, and that the defence did not have to offer such a courtesy to the prosecution. Now that has all changed. The Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 (NSW) has now forced the defence to hand over all evidence it intends to adduce in support of the defence’s case, to the prosecution. Once again the traditional procedure of the crown proving their case is being eroded by the NSW Government. As Graham Thomas QC stated: “I see innocent until proven guilty as being a highly significant and important feature of our legal system.”

The biggest problem, over the whole of the Commonwealth, is the drastic cuts to legal aid funding. The High Court held in Dietrich v The Queen, that if the accused cannot obtain counsel by no fault of their own, then the trial should be stayed until counsel can be sought. Successive governments have cut funding to legal aid to a point where people who are on welfare are no longer able to get legal representation. This right is no longer being adhered to because of this. People are going before the Courts unrepresented. This is an outrageous injustice. Representation should not just be for criminal law matters; justice is more than just the criminal law. Those who go before the courts unopposed will suffer a significant unfairness as they are unable to properly present their argument to the Court. Again, this is not just criminal law matters, but land law matters such as caveats and restrictive covenants. Personal injury and the list just goes on.

So what is the solution? It seems very clear cut. Firstly, abolish these laws that jeopardize the rights of the accused. People will still be convicted if they go. The proof is in the history of Australian criminal law. Convictions occurred before the provisions were enacted. So they can go.

The money that was allocated to this divisive plebiscite, should now be allocated to properly funding legal aid.

James Penny is a 4th Year law student at ACU

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