Andrew L. Urban
The High Court’s decision last week, known as EGH19, is the latest in a string of defeats for the government over its attempts to protect the community from foreign criminals who are in this country unlawfully. The ruling in EGH19 struck down the latest regulation imposing ankle bracelets and curfews. But the seven judges produced six separate judgments that ran to 153 pages, including the two dissents.
The issue itself (foreign criminals in this country unlawfully) is outside our remit and we’re only referring to the decision to highlight how different judges can form very different opinions even in the crucial area of national security. Our starting point is the apparent anomaly that a jury of 12 must arrive at a unanimous (or at least 11:1) verdict and must not provide any reasons or comment – versus a judge or a panel of judges up to 7 (High Court) who might arrive at any majority decision and must write detailed reasons for all decisions.
In EGH 19, five judges agreed but for different reasons, while two judges disagreed. That’s the rough equivalent of 9:3 in a 12-member jury verdict. No judge would accept that result in, say, a murder trial. A split jury verdict (hung jury) triggers a retrial – but not when judges dissent. There are valid arguments for both judge alone and jury trials, but equally, there are valid arguments against both.
Juries allow ordinary citizens to participate directly in the justice system. (Whether competently or not is another matter.) Courts often describe juries as a safeguard against state power. A jury reflects the values and moral judgment of the community, not just the legal profession. But perhaps the main criticism of jury trials is that juries deliver a verdict of “guilty” or “not guilty” but do not explain why, which means appeals cannot easily identify reasoning errors. This surely goes against the crucial presumption of innocence. For example, in the case of the late Cardinal Pell, the High Court found that a “jury acting rationally” ought to have formed reasonable doubt about his guilt.
As for judge alone trials, the perceived benefits of transparency and ability to assess complex expert testimony, the presumption of judges ignoring irrelevant prejudice can be reversed when judges fall into error due to unconscious bias (or make judicial error in the application of laws).
One category of crime, however, has come to defeat both jury and judge alone trials for delivering justice: crimen exceptum. As we have reported in three cases, historical sexual abuse of minors, the nature of the alleged crime has become crimen exceptum; a crime so exceptional that the established rules of justice need not be applied to it, according to sociologists. There is no place in an evidence based criminal justice system for crimen exceptum. Studies of early modern witchcraft contain many references to witchcraft as a crimen exceptum — an exceptional crime that was not subject to regular judicial procedures or standards of proof.
It has been made possible by the changes in the law across all Australian jurisdictions, which no longer require corroboration to support such claims.
Two of the trials were by jury, the third by judge alone. Neither the juries nor the judge acted rationally. We can’t assess why in the case of the juries, but the judge alone trial was followed by an appeal running to some 500 points of criticism.
What stands out is that disagreements over verdicts between judges is accepted when the result is a guilty verdict. Are we confident that judges have such impeccable records as to lower the barriers for convictions? As we have reported here many times, a Griffith University study into contributary causes in wrongful convictions found that erroneous judicial instructions were responsible in 32% of such cases – judges being the second highest contributor, after the police.
The accused does not enjoy the benefit of the doubt in judge alone trials and appeals; in the refusal of the latter, if the three judges decide 2:1 against the applicant, the applicant loses. Given the unreliability & variability of judges’ decisions, that seems rather thin grounds on which to incarcerate a defendant, sometimes for life. If the legal system were to display moral and intellectual consistency, not to mention rationality, appeals resulting in a split decision would be declared in the appellant’s favour.
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The author investigates the circumstances that led to the trial and conviction of child welfare officer Frank Valentine on charges of historical sexual and physical abuse at the Parramatta Training School for Girls decades earlier. It is his fifth book exposing what he considers to be unsafe convictions.
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This book examines the trials and conviction of Robert Xie. After four trials there are many unanswered questions.
I applaud the author for asking the questions that need to be answered.The introduction issues the challenge “This book sets out to prove he was telling the truth.
Sadly, this is the task every accused who has been subjected to the carefully orchestrated media campaigns now faces. The golden thread our system was founded on “Innocent until proven guilty” no longer applies. Anyone with only access to media reports would have no concerns that Xie’s convictions were unsafe and unsatisfactory.
I am overwhelmed by the conclusion that Robert Xie’s convictions are unsafe and unsatisfactory and my doubt is more than reasonable; it is substantial.
Stuart Tipple
Former lawyer representing Lindy Chamberlain
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