This kind of thing makes me think that the NSW Court of Criminal Appeal has some sort of death-wish. It has overturned a conviction in a lengthy drug trial, on the grounds that the wrong person signed the indictment, although it was common ground that this had no effect on the fairness of the trial. Following a series of disastrous decisions to hold retrials in gang rape cases, which have already led to amendments to the law designed to repudiate the Court’s judgements[1], I’d have thought the judges would be cautious about playing this kind of game with technicalities.
A decision like this is bound to produce a further reaction, and probably an over-reaction, from the legislature. We could easily see changes to procedures, designed to preclude further appeals of this kind, that eliminate important safeguards against unfair trials. In their quest to protect the niceties of some imagined ideal system of law, appropriate to a world of unlimited resources and costless trials, the Court of Appeal is gravely damaging the system we actually have to live with.
fn1. For example, the Tayyab Sheikh case elicited an amendment to rules about publicity, and the recent successful appeals by the Skaf brothers have produced rules allowing retrials to be conducted on the basis of transcripts.
John Quiggin 
Well picked Pr Q! This is a typical example of the (Wet) adjudicative branch’s over-lawyering in pursuit of a perp-sensitive ideology. The ethnic crime gang angle only makes it worse.
It undermines public faith in the administration of justice, just as immigration & refugee rorts, together with the bizarre multi-culti ideologies that complemented them, undermine public faith in the administration of the settlement program.
Elitist judicative reforms are followed by populist legislative reactions.
Yeah, galling. And on the face of it the unauthorised signature was just a procedural issue.
Some smart defence lawyers have turned this oversight to their own advantage, inconveniencing everyone and costing the NSW taxpayer a pretty penny.
However, the unauthorised signature was a stupid mistake and constituted a breach of legal procedure. Since the arrival of the Rum Corps NSW has had long and bitter experience of law enforcement officials taking short-cuts motivated by laziness and corruption.
It seems every six months or so another scandal oozes up from that fetid reservoir of corrupt law enforcement. If a determined dose of pettifoggery is required to prevent further cases, then so be it.
Katz, in what sense does this signature issue deserve to be described as “motivated by … corruption” and “[a] scandal from that fetid reservoir of corrupt law enforcement”? You seem to be suffering from the same lack of a sense of proportion as the Court of Criminal Appeal.
TD,
I recognise that I can be accused of ambiguity.
I asserted that the signature issue was simply a “stupid mistake”.
Neverthelss, I did leave myself open to a charge. I should have distinguished explicitly this mistake from frequent examples of corruption.
My intention was to suggest that judicial authorities, who also know of NSW’s long history of corruption, are correct to err on the side of caution lest justice not be seen to be done.
Moreover, I’d suggest that this is a prudent policy at least until law enforcement corruption in NSW becomes a distant and quaint memory.
I hope I’ve made myself clear.
Not atypically, the less tenable reading of my comments has been interpreted as my meaning.
Jack,
How do you know the judges in question are “wet” to use one of your favoriate expressions?
why do I get the feeling that if the judges in question were shown to all be members of the Liberal Party and Liberal appointees you’d be praising them for their principled defence of civil liberties against the Stalinist incursions of the evil Labor government?
iangould — 1/3/2005 @ 1:41 pm
……….
Wet is a pejorative that crosses party lines. The LIBs, under Fraser, used to be worst offenders when they tried to grab the ethnic vote off the ALP in the late seventies. That tactic failed.
The ALP has a Wet wing alright, which looks after over-lawyers and ethnic-lobbiers. But this looks like it is drying up. I voted ALP last election, mostly on the grounds that Latham/Beazley were Hawkish enough on national security and Dryish enough on cultural identity.
The worst Wet offenders are the minor parties (DEMS, GREENS), ivory tower academics and out of touch jurists who usually knoweth not what they are doing.
Jack, what is the “ethnic crime gang angle”?
This is a very stupid decision, John, I completely agree.
And the lack of forgiveness for what does appear to be an incidental error is absurd- this could have been correctly construed as an error on the record that in fact does not alter the jury’s doecision, nor pollute it.
What the hell does this have to do with ‘wet’ or ‘dry’, pundits? This is black letter law at it’s most immovable, and more closely resembles the Barwick tax decisions than something overtly left-wing.
Indeed the primary criticism of Kirby, Mason et al is their flexing of positivist legal principles to accomodate ‘norms’.
This is an example of the need to discourage irrational legal positivism, not the other way around.
Lenient sentences, which in the case of violent criminals I share popular concern over, are a better example of ‘wet’ judges. However they are often blue-blood conservatives making such decisions, after all, you don’t have to live with the consequences of releasing some thug from Macquarie Fields or Hopper’s Crossing if you live in Rose Bay or Kew.
JQ, On the face of it, it does appear to be nit-picking but on the basis of proceedure, rules of evidence and other common law principles, Court processes sometimes invoke weighing considerations of the power and ability of the state to prosecute against the much more limited resources and potential vulnerability of a citizen to state abuse.
Before you all go off like time bombs with that statement, has anybody got an ‘unreported transcript’ of the judgement, the ‘rationes decidendi’ reasons for deciding the case? If not, I can only suggest that the CCA was making a point that to avoid potential abuse in future with for example Constable Plod signing your indictment on spurious grounds, a legal point on proceedure which the state has seemingly inadvertently abused (nitpicking notwithstanding) has been addressed by the CCA.
Our legal system has an inbuilt often obscure bias one could say, that it is better for one guilty person to go free than 10 innocent people get convicted. Proceedure is just as important an issue as the rules of evidence (confessions under duress for example ).
In summary, to gain a conviction, the state must not only prove (criminal cases) on the ‘beyond reasonable doubt” basis, but the proceedure must follow the rules and ANY deviation on that MUST be for the benefit of the defendant.
If you don’t agree with that, think back to Police verballing in NSW and how gross injustices occurred with those abuses, and work your way back to this case, and ask yourself is this another thin edge of the wedge for sloppy Police/DPP work? That I believe, and I may be wrong, is how the CCA judged the case.
I don’t buy this, Peter. There’s no fundamental principle in our legal system that says only the DPP can sign indictments. The danger, as I said, is that, in responding to this kind of thing, the legislation will sweep away justified restrictions aimed at stopping verbals and the like.
This kind of nitpicking over pleadings infested civil law in the 19th century (and reappears from time to time as in the High Courts Wakim judgement), but was swept away as being of benefit to no-one but lawyers.
Another aspect, the comments above are to me reminiscent of the criminological terminology ”moral panic” that media beatup merchants like MIranda Devine in the SMH are so fond of–if she had her way re the recent rape appeal cases in NSW, the CCA would be abolished. Personally, I have found that type of ignorance sailing very close to contempt of Court.
If somebody is to be convicted, all the ‘i’ s and the ‘t’ s must be dotted and crossed respectively for everybody’s benefit especially the alleged criminals.
Another aspect, the comments above are to me reminiscent of the criminological terminology ”moral panic” that media beatup merchants like MIranda Devine in the SMH are so fond of–if she had her way re the recent rape appeal cases in NSW, the CCA would be abolished. Personally, I have found that type of ignorance sailing very close to contempt of Court.
If somebody is to be convicted, all the ‘i’ s and the ‘t’ s must be dotted and crossed respectively for everybody’s benefit especially the alleged criminals.
JQ, I am but a lowly student of the subject, however, there must be a statutory requirement that establishes the system of DPP (or other non-indictable) prosecutions and how those prosecutions are documented and registered in a Court.
As I said a transcript would be most useful, but my legal instinct says that the state did not follow the legislation/regulation and the CCA gave the benefit of that to the defendants.
In a civil case of negligence, Hill v Van Erp, a solicitor made the mistake of allowing a signatory witness to a will whose wife was also a beneficiary of that will. The solicitor was found liable in negligence for the loss incurred as legislation prohibited a witness or a witness’s spouse from being a beneficiary. (Property all went to the son– the other beneficiary)
Legn/regulation for prosecution signatures may not follow this civil legislation exactly or at all, but the civil case is an example of the seriousness of signatories in general .
In civil contract law, where a third party’s signature was mixed up on a document between the two main parties, the common law principle of privity of contract could be applied (3rd party to a contract generally has no rights under that contract) to make that document void of relevance.
You have me stoked now to find the case and report back. Blogs are indeed the best forms of self imposed tutorials!!! ( No promises though–time is of the essence in a common law but not equitably decided contract)
Good luck in law Peter.
I have found an interesting antidote to my previous strong pro-defendant rights stance in working in a child protection related field. What the bungling fools forget when they release overtly violent individuals on irrelevant technicalities or give them ridiculous sentences is that these people then go home, bash the wife and kids, and continue cycles of violence.
I agree with doing all possible to ensure the innocent aren’t locked up. Palpably that is not what this technical decision was aimed at. With those who are clearly guilty, the system should recognise that it is responsible for the misery suffered by others when such are released prematurely.
Since trackback doesn’t seem to work, I’m just commenting to point out that Ken has a post up at Troppo agreeing with the decision:
http://troppoarmadillo.ubersportingpundit.com/archives/008628.html
In the US, much more serious cases (for example, police breaking procedural rules, not mere clerical ones) have consistently been held by the Supreme Court as “harmless errors”, where they are irrelevant to finding the guilt or non-guilt of the accused.
Part of me hopes that the judges do even more pig-headed things like this so parliaments can have an easy pretext upon which to justify their reforms.
I’m not sure that legislative “pretexts” provide better judicial outcomes than black letter pettifoggery.
As a general principle, politicians who use administration of justice as a bandwagon issue should be viewed with suspicion.
The consequences of judicial populism are there to be seen by everyone in the US, where the present prison population is close to 2,000,000, and a black male has a better chance of going to jail than completing college.
Such a justice regime is must more costly than the occasional retrial of a botched case.
Katz, the figure for US incarceration was 1.7 million in 1999 (WJ Chambliss: Power Politics and Crime) I think it is around 4.5 million now.
Thanks Peter, it’s nice to have one’s prejudices confirmed by some friendly facts.
No probs Katz but funnily enough US corporate criminality (pollution, dodgy products etc) kills I believe 10 times more than simple homicides and car accidents.
It also helps in the USA that with draconian sentencing laws judicial populism prefers, in some states, to deny effective legal representation (underpaid incompetent sometimes drunken bums for lawyers) which railroads the poor into jail. ie Plead guilty and get 2 years—result 5-10 years.
Applying US incarceration rates to OZ would give us a jail population of 250,000 and 180 from my town of 15,000–yikes!
I follow the US incarceration stats reasonably closely, and I think the 2 million figure is right. (The 4.5 million figure may include those on probation.)
This is still way too high, but it is primarily due to the war on drugs (admittedly the case being discussed here was a drugs case, also, but we have never come close to the draconian laws prevailing in the US).
The incarceration of violent criminals has been at least partially responsible for the marked drop in crime in the US.
I’m with the public outcry on this one – I agree with the US Supreme Court that procedural errors that are most unlikely to have influenced verdict or sentence should not result in said verdict or sentence being overturned. The appropriate remedy is some form of sanction on those making the errors (a reprimand? a fine? suspension of right to practice? I dunno), not the potential for delayed or denied justice that overturning could create.
Mind you, it’s completely different if there is a fair chance the error might have affected the outcome. That’s why I think those idiot jurors, not the CCA, should carry the public odium for the recent rape case retrials.
As for Peter Kemps views that procedural nit-picking is a counter to official crime, I must say it has never proved so in the past (BTW, why did you speak about verballing, etc in the past tense? Don’t you think it still happens?). And John’s point about how political reactions to the nitpicking could lead to substantive injustice is a good one.
I don’t see see how you can call this nitpicking .The barrister Traill’s authority did not extend to signing the indictment of the alleged drug trafficker.What would you want : we need someone to sign this document oh there’s a passerby get him. .To quote Justice Bell “So much may be accepted, but this cannot cure a defect that goes to the root of the trial. The indictment on which this appellant was arraigned and upon which his trial proceeded was invalid.”
What is annnoying is that this error was not picked up very early in the trial
Yeah John, trackback for your good self:
http://northcoteknob.blogspot.com/2005/03/good-judge-bad-judge.html
Note on the positive the High Court’s decision regarding two Russian-Jewish refugees, allowed to stay after being initially rejected because, being Jewish, they were entitled to go live in Israel.