Tuesday, December 19, 2006

Justice? - You're Joking

Several headlines in the last two days have made me think about our legal system and its relationship to justice. Some would argue there is no relationship between the legal system and justice. A cynical view, perhaps, but consider the following cases, reported in the media on 18/19 Dec 2006.

  1. "Black mark for white man's justice"
    (SMH: http://www.smh.com.au/news/national/black-mark-for-white-mans-justice
    Here was an aboriginal woman's story of domestic violence and sexual assault. It dealt with social attitudes of women and men, aboriginal and otherwise, to reporting domestic violence and rape. It covered perceptions of how Police handled the compalints: a Police Domestic Violence Officer showed the patience and understanding needed for this woman to bring her complaint of rape against her partner.

    During the trial, the defence lawyer is reported to have repeatedly suggested that she made up her injuries, inflicted grievous bodily harm on herself and provoked the defendant into hitting her. At one stage the defendant is alleged to have hit her with an iron bar.

  2. "Brethren member guilty of indecently assaulting girl, 10"
    (SMH: http://www.smh.com.au/news/national/brethren-member-guilty-of-sex-
    In this case the defence argued that the offenses were so bad, and because the accused is a member of a religious community, that the jury could not possibly believe a 10 year girl. After the guilty verdict, they also argued that there should be absolutely no reports of the case in the media. Why? To protect whom? (Hint: it wasn't to protect the child, the defence lawyers were not acting in her interests)

These two cases raise the points about our system. Ours is a system of "us versus them"; a system where it is reasonable, even encouraged, for the defence to belittle and character assassinate a victim. Ours is a system concerned not with justice, but with "what can we get away with". If they want, accused can avoid questioning in court; if questioned they can refuse to answer (it might incriminate them); they can provide last-minute alibis, (arranged between charge and court appearance?)

In both the above cases, the defendant was found guilty. The system "worked", but I'm sure those who study law could cite many cases where it didn't.

It is time we changed our system to provide a more appropriate, more just, outcome. To start with, we could look at the NSW Police Association's suggestion of reducing the effects of sudden, last-minute, in-court alibis that have not previously been provided. Those accused of criminal offences ought to answer questions in court. We should look at even better protections for victims of crime, especially those who have suffered violence and sexual assault; and we should look at compelling witnesses to answer more questions. Only then, can courts make more informed decisions: decisions that are more likely to result in justice.

The Analyst