Who Cares For or About Those in Gaol?

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

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

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

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

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

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

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

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

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

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

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

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

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.