Adelaide Criminal Defence Blog by Simon Slade

Who Cares For or About Those in Gaol?

2008-09-22T21:01:00.003+09:30

It is a pretty simple proposition - people in custody are owed a duty of care by the Government.

That has not stopped the AdelaideNow website from whipping up a story about compensation paid to prisoners injured in custody.

AdelaideNow... $230,000 paid to injured criminals

In fairness to Michael Owen, his article is quite balanced, but a different flavour is placed on it by the headline using the word "criminals" when the article is about "prisoners." Given the very high remand rates in South Australia, many of our "prisoners" have not been convicted of any charges they may face!

As can be seen in the readers' comments, this has planted the idea that somehow criminal offenders receive compensation for their crimes.

Fyodor Dostoyevsky said: "The degree of civilisation in a society is revealed by entering its prisons." Winston Churchill said that a society's attitude to its prisoners, its "criminals", is the measure of "the stored up strength of a nation".

I wonder what those men would have thought of these comments?

The point of Gaol

2008-09-09T20:35:00.002+09:30

We often read or see reports about Court cases where people are complaining that an offender should have received a longer gaol term, or should not have had the term suspended.

So often, what is not asked is the simple question: "Why?"

If the State is going to keep people in gaol, there needs to be a reason. It must be done to achieve a purpose for society.

It is often said that penalties need to be increased to reduce the incidence of crime. In fact, there is little evidence that increased penalties for crimes reduce their frequency. People in Britain still used to steal when the penalty was transportation to Australia - and that was long before this country was the destination of choice for British migrants!

Countries with much lower penalties for many crimes often have no greater crime rate than those with much higher penalties.

One often misquoted example is Singapore. Here in Australia there seems to be a view that penalties there are harsher, but that it not the case for many serious crimes. Assault for example has a maximum penalty of three months in Singapore, but in South Australia it is 2 years, or 3 years if aggravated, or 4 years if a weapon is used. And that is for assaults that cause no harm - if harm is caused, then the penalties go up even further.

Whether there is any benefit in putting someone in gaol has been the subject of some work in Britain:

Jail is no place for the average prisoner - Times Online

Louis Blom-Cooper, an icon in his own right at the Bar, has chosen to place his latest book. Launched last week, its central thesis is that 60 per cent of the prison population should not be there. The QC describes imprisonment as "an instrument of man's control over his fellow creatures" which has existed since historical records began. Its role as the "State's prime weapon of penal sanction for serious crime", is, he argues, more recent.

So why do we keep doing it? Increased penalties have done nothing to stop the so-called "Gang of 49."

All it seems to lead to is a higher crime rate, lack of rehabilitation, and an increasing cost to the Government of keeping people there.

Excuse me, Kevin Rudd would like to make an Appointment

2008-07-21T01:41:00.001+09:30

Probably largely un-noticed by the general population, there is a flurry of activity in legal circles about who will be the next Chief Justice of the High Court.

The speculation is spilling out into the mainstream media, with Chief Justice John Doyle, of the South Australian Supreme Court, rated as a 'top contender' by AdelaideNow

There is the strange anomaly that no South Australian has ever been appointed to the High Court bench, and our Chief Justice would make an excellent choice.

Of course they see things differently in the East!

This article in the Sydney Morning Herald seems to tip New South Wales Supreme Court Chief Justice Jim Spigelman.

And in Brisbane, the Courier Mail seems to thing that the best bet is Justice Patrick Keane, from the Queensland Court of Appeal.

Well, it could be worse - we could be in a country with elected Judges! Or one with no Judges at all!

Attorney General less than Ecstatic

2008-06-21T20:58:00.002+09:30

Sandra Kanck has found herself the subject of criticism yet again.

This time it is for suggesting that one solution for those Vietnam Veterans suffering with Post Traumatic Stress Disorder might be the therapeutic use of 3,4-MDMA, commonly known as Ecstacy.

Perhaps because Ecstasy is better known as an illegal drug, this has attracted a lot of criticism.

AdelaideNow... Kanck blasts Atkinson ecstasy 'no'

Mr Atkinson said the Government would "not be supporting Sandra Kanck's latest rave" and "Vietnam Veterans are not laboratory mice for a left-wing social experiment."

There has also been criticism from the RSL on the basis that it would be using Vietnam Veterans as research subjects.

What this ignores is the fact that the therapeutic use of Ecstasy has been studied, and indeed the history of the drug is that it was developed for therapeutic use.

See this List of Research Studies

Once it was made illegal, though, it seems that any suggestion of using it is ridiculed.

Many of the drugs that are abused are perfectly legal - benzodiazepines are very widely abused, as are morphine and methadone.

But somehow it is OK to give them to Vietnam Veterans, even though they provide no long-term solutions.

A New Beginning

2008-06-17T22:28:00.002+09:30

As those of you who follow my radio show would already know, my law firm has moved to new premises.

After many years of operating out of the old "Port Adelaide Providores" building in Lipson St at Port Adelaide, we have now moved to a converted cottage at 18 Market St Adelaide. This is so much easier for our clients to get to - whether they are coming by car, or using public transport.

Here is a map of where we are: Google Map

We also have a new phone number - (08) 8410-0666 and the saga about getting the phone system installed is a story in itself!

For those of you who loved the old building, there is the opportunity to buy it!! Check it out here

We are all very excited about our new beginning, and look forward to being able to do an even better job of looking after all of our clients.

Anger Mangement

2008-05-19T20:44:00.001+09:30

These days it seems that we are beset by people in a rage of one sort or another. Road rage, telephone rage, my burger is cold rage etc etc.

Well, why don't we send all these people on an Anger Management course?

It seems that they might not be effective for everyone, like Justin Boudin in Minnesota! Weird Cases: temper, temper - Times Online

But to top it all off comes this tale of Judge Rage Weird Cases: judges at war - Times Online

Makes a bit of fist shaking at the Britannia Roundabout seem positively civilised!!

DNA Evidence

2008-05-18T14:14:00.001+09:30

We are all familiar with the use of DNA evidence in Criminal cases, and it is becoming quite common.

In Dallas County, Texas, however, there have now been 17 prisoners cleared by the use of DNA evidence to look at historical convictions. They include James Woodard, who has spent 27 years in gaol after prosecutors in his case withheld evidence from the defence.

You can read more about it here at CNN.

The part of the story that really disturbed me was the suggestion that it seems to have been a regular thing for evidence to be withheld by prosecutors, and that they would resist moves to prosecute them for it! There is a whole world of difference between an honest mistake, and a deliberate withholding of evidence.

It is interesting that this also comes at a time when the UK is looking at using prosecutors who are employed, rather than members of the independant Bar, and is one of the reasons given in favour of retaining the current system. Read more in this article at The Times online

Here in South Australia, trials are usually prosecuted by employees of the Director of Public Prosecutions, with some being briefed to Barristers, depending on workload. Perhaps because the profession here is fairly small, it does not seem to be a problem - any prosecutor who withheld evidence would soon lose all credibility in the profession.

What do you think we need to safeguard this?

Mental Health System and Remand Prisoners

2008-04-21T22:13:00.002+09:30

With the news today that an inmate had escaped from the supposedly secure Brentwood unit at Glenside Hospital came the revelation that he was apparently on remand for Assault.

Assuming that "on remand," in the context of that news article, means "remanded in custody" then serious questions need to be asked about why prison inmates are being held in institutions other than prisons. The Correctional Services Act provides that prisoners should be housed in prisons.

Whilst it is important that people in prison with a mental health problem receive proper treatment and care, it is also important that proper safeguards are in place to ensure to people who are imprisoned are being kept separate from the general population of persons who might be at Glenside Hospital. Patients may be in a secure facility at that hospital for any number of reasons -- and it might not be in the best interests of the community for them to be housed together with prisoners.

Here is a link to the article at AdelaideNow, but the content of this article has already changed a couple of times today, so by the time you read it, it may be very different from the article that I read.

Plea bargaining

2008-04-03T23:59:00.002+10:30

With the recent publicity about the delays in criminal trials in the District Court, perhaps it is time for us to look at a formal system of plea bargaining.

For a general explanation of exactly what plea bargaining involves, see this article.

Whilst we do have a system of negotiation here in South Australia, this is not done with the direct assistance of the Judges.

The other main difference is that the DPP and Defence Lawyers cannot "agree" a specific sentence that is then rubber-stamped by a Judge. That of course runs a little contrary to our strongly held principals of judicial independence, and that is one of the arguments against such a system.

The one thing that an accused person often craves is certainty. The uncertainty of the sentence that might ultimately be imposed under the current system is a dis-incentive to some accused people pleading guilty to certain offences.

My clients will frequently say things like, "If you can guarantee I'll get 4 years, then I'll plead guilty," but in our current system such a guarantee is not possible.

Even the usually conservative English legal profession has been examining the possible benefits. See this article.

Plea bargaining: not perfect, but it works - Times Online

British judges, lawyers and prosecutors have spent two years hammering out the finer details of how to introduce a similar system here.

It would not be the solution to all of our problems, but it just might help.

An Anniversary To Be Ashamed Of

2008-03-19T02:53:00.002+10:30

February 2008 marked the first anniversary of the use of the City Watch House to hold remand prisoners.

The fact that there has been so little outcry about this is a sad reflection on our society.

No matter how much people might want the guilty to be punished, this is about the way we treat the innocent.

To our eternal shame. And the minister admits this may continue for several years.

When a person is first remanded in custody is precisely the time they need contact with loved ones the most, and yet there are no family visits allowed. No proper access to exercise or to education. Correctional services has even had to resort to handing out nicotine patches.

The details are covered in the 2007 Correctional Services Annual Report (2.3Mb pdf).

With the new gaols not due until 2011, and a Government that seems intent on imprisoning more people and for longer periods, something will need to be done soon.

Mental Health and Crime

2008-03-04T23:08:00.002+10:30

A recent case has highlighted some of the problems with the "Mental Impairment" provisions of the Criminal Law Consolidation Act.

The provisions provide that the period of any supervision order has to be set by reference to the crime and not to the particular person involved. (s269O)

So someone with a very serious mental health issue that poses a danger to themselves and others, who does something that is minor, only gets a short limitation period.

Someone who is no real danger, but does something more serious gets a long limitation period.

The Court has no power to extend the period of the order even where someone is not complying with the conditions of the order!

It is time for the Government to revisit these provisions.

The AFL and Attitudes to Women

2008-02-29T12:45:00.001+10:30

In the wake of so many scandals and stories about AFL players, the AFL has produced an educational DVD to help players understand that women are people too - even if they don't play footy.

Not everyone is happy. Michael Smith raises some questions in this opinion piece about the portrayal of women in the DVD. Whilst some of those concerns may be valid, the DVD does seem to include just the sort of situations that these young men, and others, find themselves in.

As a Criminal Defence Lawyer I see them all the time. Just because, in Michael Smith's ideal world, these situations are demeaning and stereotypical, does not mean that it is not what actually happens.

The DVD has even attracted international attention, with an article in The Times Online about consent in sexual offences.

Who knows, next the AFL might tell its players, "Just say no to drugs"

Mandatory Minimum Sentencing

2008-02-27T00:03:00.003+10:30

A couple of sentencing decisions in the news recently have attracted a lot of public attention. Many people are calling for longer sentences in general, and for mandatory minimum sentences. Very few of these people are actually able to articulate why they would be a positive.

At the time of writing, 89% of people responding to the AdelaideNow Poll support mandatory sentences for Aggravated Cause Death by Dangerous Driving cases. The comments on the story in question follow similar themes - a couple are reproduced verbatim here:

"Crime i sgetting worse and worse and yet these criminals are getting such pathetic sentences"

"lock these criminals up for a lengthy term, show them we will not tolerate it anymore, before things get even worse."

Many of them talk about the fact that the victim was a "good" man - and there is absolutely no doubt that he was, but is that something that should play a role in sentencing? Maybe that is a whole topic in itself.

I want the Government to work at reducing crime.

Increased penalties only serve to appease a public baying for blood. They do not reduce crime. The penalty for stealing used to be transportation to Australia, and it did not stop crime - and that is long before Australia was the migration destination of choice for Brits!

I am told Denis Hood is a reasonably intelligent man, and therefore one would assume that he has read all of the research on the topic of "general deterrence." If he has, then the only motive for this must be political.

That's not putting the Family First.

Christmas Greeting From a Law Firm

2007-12-25T01:03:00.001+10:30

From us ("the wishors") to you ("hereinafter called the wishee"):

Please accept without obligation, explicit or implicit, our best wishes for an environmentally conscious, socially responsible, politically correct, low stress, non-addictive, gender neutral, celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious persuasion or secular practice of your choice, with respect for the religious/secular persuasions and/or traditions of others, or their choice not to practice religious or secular traditions.

Please also accept, under aforesaid waiver of obligation on your part, our best wishes for a financially successful, personally fulfilling and medically uncomplicated recognition of the onset of this calendar year of the Common Era, but with due respect for the calendars of all cultures or sects, and for the race, creed, colour, age, physical ability, religious faith, choice of computer platform or dietary preference of the wishee.

By accepting this greeting you acknowledge that:

This greeting is subject to further clarification or withdrawal at the wishor's discretion.
This greeting is freely transferable provided that no alteration shall be made to the original greeting and that the proprietary rights of the wishor are acknowledged.
This greeting implies no warranty on the part of the wishors to fulfill these wishes, nor any ability of the wishors to do so, merely a beneficent hope on the part of the wishors that they in fact occur.

This greeting may not be enforceable in certain jurisdictions and/or the restrictions herein may not be binding upon certain wishees in certain jurisdictions and is revocable at the sole discretion of the wishors.

This greeting is warranted to perform as reasonably may be expected within the usual application of good tidings, for a period of one year or until the issuance of a subsequent holiday greeting, whichever comes first.

The wishor warrants this greeting only for the limited replacement of this wish or issuance of a new wish at the sole discretion of the wishor.

Any references in this greeting to "the Lord", "Father Christmas", "Our Saviour", or any other festive figures, whether actual or fictitious, dead or alive, shall not imply any endorsement by or from them in respect of this greeting, and all proprietary rights in any referenced third party names and images are hereby acknowledged.

Ben Cousins is Innocent

2007-10-28T05:24:00.001+10:30

At least for the moment.

Whilst no-one can deny that there is a problem with drugs in the AFL, it seems that Ben Cousins seems to be getting a pretty raw deal. Pulled over by the Police, and then arrested while the TV cameras film it all! Normally when someone is arrested, the TV stations pixellate their faces so as not to prejudice a fair trial. (In Cousins' case, they might have needed to pixellate the stomach too!)

Not only that, but he then faces sanctions from his club, before the case has been through the Court process.

Perhaps there have been some amendments to the law so that the right to a fair trial and the presumption of innocence no longer apply to AFL players.

Meanwhile, all the attention gets focussed on Ben Cousins, rather than the wider problem - just a bit too convenient for the AFL!

"Rehabilitation has failed," they cry

2007-10-06T15:43:00.001+09:30

With the media reporting a number of very nasty crimes over the last week, there are increasingly vocal advocates of harsher penalties, so called "three strikes" policies, and dumping any focus on rehabilitation.

You only need to follow the comments on AdelaideNow, run by "The Advertiser," to see the depth of the feelings this issue is producing.

Those who claim that rehabilitation has failed ignore the fact that rehabilitation has never really been tried in a properly funded way. They also ignore the fact that harsh punishments have been tried for centuries and have failed. Hanging did not prevent murders, and people still stole loaves of bread in England when the penalty was transportation to Australia!

Those who would like to see the "Gang of 49" locked up need to think about this; at $65,000 per prisoner, per annum, locking up 49 people will cost us - the taxpayers of SA - nearly $3.2 million EVERY YEAR, for as long as we keep them locked up.

As an added problem, little rehabilitation occurs in gaol, so those people are still likely to offend when released.

Rehabilitation is not about a bag of lollies and a pat on the head, it is about fixing the problems that lead people to offend.

A long time between posts

2007-10-06T02:30:00.000+09:30

As those of you who listen to me on 5AA on Wednesdays would be aware, I have been quite ill lately, and this blog was one of the first things to suffer.

Now that I am recovering, although not back to work, the rants should start again.

Stay tuned, and thanks to all of you who sent me messages of support.

Who watches the Watch-house?

2007-05-02T19:57:00.001+09:30

We have such a problem with overcrowding in prisons, that remand prisoners are now being held in the City Watch-house. This is a facility designed to hold people only for short terms, following their arrest, and until they go to Court.

People held there do not get family visits, and often the time they need them most is when they are first remanded in custody. For a while, it was even difficult for them to get a visit with a lawyer, but that problem seems to have been fixed after I contacted the Minister for Correctional Services, Carmel Zollo, and her staff fixed the problem fairly quickly.

A number of my clients have described their feelings of isolation and helplessness, while held here. The continued imprisonment of the innocent in these harsh conditions must stop.

System at Breaking Point

2007-03-12T21:38:00.000+10:30

Today's Advertiser article about the deplorable situation at Pt Augusta Prosecution highlights the problems with under-funding of prosecuting authorities in SA.

Leaving aside the transfers, if 2 out of 6 staff are on stress leave, then something is very wrong. Imagine if one third of your company's workers were on stress leave - wouldn't that set off some alarm bells?

Quick action is needed, or the system will grind to a halt.

The real cost of more prisons

2007-02-28T20:40:00.000+10:30

According to the government's "Major Projects" webpage, the new prisons to be built in South Australia will cost $438 million!! The prison capacity, according to that website, will increase by about 500.

The ABS puts the annual cost of keeping a prisoner at $58,000, or a massive $29 million every year to house 500 extra prisoners.

Since there appears to be no plan to increase the size of the remand centre, we also need to factor in the cost of transporting all the remand prisoners from Murray Bridge to the city for Court appearances.

If Victoria can have the lowest crime rate in Australia, and an imprisonment rate of less than three quarters that in SA, what does our Government propose to do to reduce crime?

Police Commissioner Mal Hyde Agrees with Simon Slade

2007-02-19T20:12:00.000+10:30

Sorry about the silly headline, but I could not resist. Would love to see that in The Advertiser one day.

Last Friday night, on ABC's Stateline, Commissioner Hyde made the same point that I have been making about the so-called Gang of 49: "It's not exactly a gang of 49. They're a particular targeted group of people. They're not all associated together and it's not formed like a tightly knit gang. They're just a group of associated high risk offenders."

It was also interesting to see the Commissioner's views on rehabilitation, given the different way that those views were represented in some print media.

Either we take the bull by the horns and commit to rehabilitation, or we sentence our society to a future of increased crime.

DNA tests for minor offences

2007-02-14T22:28:00.000+10:30

The government has announced plans to DNA test people charged with summary offences that do not attract an expiation notice.

There are already long delays for DNA work in criminal matters, with some cases being adjourned for months awaiting the results.

If the government is serious about this policy, there will need to be a lot more funding for the Forensic Science Centre, so they can keep up with the workload.

Changes to Rape Trials

2007-02-07T22:20:00.000+10:30

In the Advertiser today, it was reported that the government is to bring in changes to the laws about the way rape trials are conducted.

If the report in the paper is accurate, then the "changes" do not seem to be any great departure from the legal position at the moment, and seem to be just another opportunity to have a go at lawyers.

Apparently the government is concerned about the low conviction rate for these offences, and once again, it is the defence lawyers who are apparently to blame. Perhaps they should spend a little bit of time somewhere near a courtroom, before passing sentence on those of us who stand as the guardians of the rights of every citizen, particularly at the low rates that the under-funded legal aid system offers to defence lawyers.

The gang of 49

2007-02-02T23:50:00.000+10:30

Now that some of the media hype has died down, we can examine this a little more closely.

The idea that these people are a gang is a myth. There is no organised structure, and there is no one person or group that is co-ordination the activities of these people. Just a group of people, loosely connected by family relationships, who are committing crimes. The media has done little to examine why this is the case, or suggest any solutions beyond locking them up.

While people may need to be punished for committing crime, unless the root cause of the criminal behaviour is addressed, the crime will continue.

Prison Overcrowding

2007-01-28T10:20:00.000+10:30

One of the results of the current government's view that "Tough on Crime" is the same thing as "Longer Prison Sentences," and the higher rates of remands in custody in South Australia is the overcrowding of our prisons.

One of my sources at Yatala Labour Prison has told me that 60% of the inmates there are on remand. Most people think that the Adelaide Remand Centre is where all remand prisoners are housed, and that the high security Yatala is only for sentenced prisoners. This means that remand prisoners are in the same prison as some of the State's most hardened criminals, no doubt learning all the wrong lessons!

With moves to change the law to make it harder for many accused to get bail, this situation is only set to get worse.

We might even get to a situation like the UK, where the government has asked the Judges to consider only sending the worst offenders to prison.