NSW: the state to continuously make the criminal justice system more expensive and less just

Nice job, NSW Liberals.

Destructively and pointlessly bugger up the right to silence, and further waste court time with ludicrous requirements on defence teams which will cause great expense to everyone (particularly the taxpayer).

As if the NSW system of the police not preparing witness statements (ie the actual evidence on which their charges are supposedly based) until after the accused decides to plead not guilty wasn’t stupid enough.

The most absurd thing is that there are lawyers in the Liberal Party who’ve acted in criminal matters. How did it appear to any of them that these were good ideas?

ELSEWHERE: Fellow NSW criminal lawyer Andrew Tiedt is also annoyed – particularly on learning that not even the DPP was pushing for this travesty.

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49 responses to “NSW: the state to continuously make the criminal justice system more expensive and less just

  1. With my long comment expanded… pls delete earlier version

    ———————————-

    Ben Heslop Good policy. You SHOULD talk to police. Name me a situation where its forgivable not to.
    5 hours ago via mobile · Like

    Rafi Alam I hope thats a joke…
    5 hours ago · Like · 1

    Rafi Alam http://www.youtube.com/watch?v=6wXkI4t7nuc

    Dont Talk to Police
    http://www.youtube.com
    An law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police. 031408_DontTalktoPolice.wmv
    5 hours ago · Like · 1

    Vikas Nayak Line me up with criticisms…i’m going to be in a room with NSW Liberals tomorrow.
    about an hour ago · Unlike · 1

    Christian Jeffries “why are you guys such enormous fuckwits”
    about an hour ago via mobile · Like

    Ben Heslop Rafi that video is 48mins long (I hope u were joking that I spend it) but I watched 7mins are get the two take-home messages. 1) the police can distort an unrecorded testimony and 2) there are so many aspects to the criminal law that any testimony is likely to convict you of something.

    On 1 – the police can lie about anything, including if you refuse to speak to them. They can put words in your mouth.

    On 2 – In aggregate, I would rather risk the rare circumstance of unfair conviction than have police unable to compel evidence immediately after a crime. Society is damaged more by criminals allowed to remain silent than by an occasional ‘unfair’ conviction.

    Further to 2 – its not the fault of the police that the law is complex. Its the fault of the political and justice systems. We need the police to be able to find out information FROM CITIZENS.

    Further again – the best way to improve the legal system is for lots of rich and middle class people to go to jail for dumb reasons. THEN the laws can be changed. The situation at the moment is poor minorities are beaten by police, often horrendously, because they can’t afford fancy lawyers to pursue their attackers. Compelling them to speak will PROTECT them from attack since the police have less reason to use extra-legal violence in their frustration at people’s general lack of cooperation (even from earlier cases that day).

    Should I post a long video showing graphic evidence of police violence or is that insulting to the value of your time?

    Kieran MacGillicuddy any comment?
    58 minutes ago via mobile · Like

    Vikas Nayak “Further again – the best way to improve the legal system is for lots of rich and middle class people to go to jail for dumb reasons. ” <— as much as i wish this wasnt true… "Director's Law" is an uncomfortable truth in society.
    46 minutes ago · Like

    Ben Heslop Further to 1) – give police voice recorders as part of their uniform. Put one in their hats! Then all testimony is recorded!
    36 minutes ago via mobile · Like

    Vikas Nayak ^ love it. Actively encourage people not to talk to the po po
    33 minutes ago · Like

    Ben Heslop On looking up Directors Law I agree it can be a problem, but is not a law rather than a systemic tendency. And it gives weight to my argument. Another change to help address the balance is make all lawyers/barristers paid by the government. Then the rich get no advantage in court, and fewer lawyers will drive lambos paid for by selling society down the river to help a rich yet guilty client.
    31 minutes ago via mobile · Like

    Ben Heslop Not If they're legally compelled to! Not giving someone 24hrs or 24 days to concoct a story is excellent. And a defendant voice recording is better than any witness statement. Its how the Mafia was taken down – thru wire taps. Any witness could be silenced, but a recording can't be.
    27 minutes ago via mobile · Like

  2. The rest…

    —————————-

    Ben Heslop Hey Vikas, reckon you’ll take any of my points to the NSW Liberals tomorrow? I don’t mind if you don’t give me personal credit
    about an hour ago · Like

    Kieran MacGillicuddy Ben removing the right to silence effectively erodes the presumption of innocence on which our justice system is built. In making it easier to convict people we increase the likelihood of wrongfully convicting innocent people and given the incredible deprivation of liberty which can result it is easily better that ten guilty people are acquitted than one innocent person is convicted.
    about an hour ago · Like

    Vikas Nayak I’ll probably talk in generalities.
    about an hour ago · Like

    Ben Heslop Kieran that’s an ideological statement based on the presumption that the legal system cannot be reformed and forgetting the ‘deprivation of liberty’ imposed by criminal acts, such as PTSD or corruption.
    about an hour ago via mobile · Like

    Ben Heslop Well good Vikas, so long as u haven’t remained unswayed by my points that u have not rebutted?
    about an hour ago via mobile · Like

    Vikas Nayak Basically you’re saying that the only way to take down BAD people is to subvert protections afforded to us all.
    about an hour ago · Like

    Ben Heslop Address the exact points I make. I refute any simplying summation that allows ideological distortions to be made or inferred. I used sufficient clarity and brevity for you to rebut my points as written. Please do so.
    57 minutes ago via mobile · Like

    Vikas Nayak I dont get it, are you saying i should say why its bad to deny a person the ability to mount a defense, or the nationalisation of the legal profession or why its a good idea for the state to invade all areas in our lives just so they can catch “the bad people”?
    54 minutes ago · Like

    Vikas Nayak cause i’d consider most of the flaws in that as being self evident.
    54 minutes ago · Like

    Ben Heslop Where have I denied the ability to mount a defence? Why isn’t “nationalisation of the legal system” desirable? How do my ideas mean the police “invade all areas of our lives?”
    44 minutes ago via mobile · Like

    Vikas Nayak “Not giving someone 24hrs or 24 days to concoct a story is excellent.”

    You also insinuated “And a defendant voice recording is better than any witness statement. Its how the Mafia was taken down – thru wire taps. Any witness could be silenced, but a recording can’t be.” but you forgot the base right of any defendant to face their accuser.
    40 minutes ago · Like

    Vikas Nayak While there were a few big wins against he mafia on actual “crimes”, the most victories came from the various tax departments chasing them.
    39 minutes ago · Like

    Ben Heslop So “mounting a defence” includes lying? Wow. That’s taking the intent of the law and turning it into a social pariah.
    30 minutes ago · Like

    Ben Heslop “the base right of any defendant to face their accuser” – they did face their accuser: the government. But their own words indicted them. What’s the problem?
    29 minutes ago · Like

    Ben Heslop Well regardless of which wins came from where (I got my info from a recent tv series where FBI agents stated that wiretaps were a breakthrough) the point remains that recording one’s words NOW and then COMPARING them to a “mounted defence” is highly desirable in my worldview. Perhaps I am delusional or unappreciative of the finer points of the legal system. If so, please consider me your willing pupil…
    27 minutes ago · Like

    Vikas Nayak “So “mounting a defence” includes lying? Wow. That’s taking the intent of the law and turning it into a social pariah.” <—- Actually it can, but thats why we have perjury as an additional felony if you do. More times than not, its about concealing an…See More
    19 minutes ago · Like

    Vikas Nayak ""the base right of any defendant to face their accuser" – they did face their accuser: the government. But their own words indicted them. What's the problem?"

    Cool, how can you infer what someone said is always true? Like if i said i had knowledge that Dick Adams has the numbers to tip Julia Gillard…how do you know?

    How is this any different from allowing legal weight to Hearsay?
    17 minutes ago · Like

    Ben Heslop Well if its about murder, surely an affair will need to be exposed. Perhaps the court can be given a closed session in such cases, during this testimony. In any case, I prefer for people to not be given more ability to fool the justice system, not only because it allows criminals to walk free, but it also weights justice in favour of those who can afford good lawyers able to construct elaborate defences.
    16 minutes ago · Like

    Vikas Nayak Well regardless of which wins came from where (I got my info from a recent tv series where FBI agents stated that wiretaps were a breakthrough) the point remains that recording one's words NOW and then COMPARING them to a "mounted defence" is highly de…See More
    16 minutes ago · Like

    Vikas Nayak Well Ben, whats the saying…let a 1000 criminals go free so long as an innocent man is not jailed? This is the core belief of criminal justice.
    14 minutes ago · Like

    Ben Heslop So someone might lie when initially caught? Well they shouldn't. This is my point. If we make it normal for people to tell the police the truth, then they can do their job better and make society safer.
    14 minutes ago · Like

    Vikas Nayak Actually…the police arent interested in the truth. They're interested in wrapping up a case.
    13 minutes ago · Like

    Vikas Nayak There are also numerous psych studies that have pointed out that people lie under duress.
    13 minutes ago · Like

    Ben Heslop Tax violations are usually used to get warrents to wiretap crime lords.

    So what? That's good isn't it?
    13 minutes ago · Like

    Vikas Nayak not because they want to, but for many many many reasons.
    13 minutes ago · Like

    Vikas Nayak its one of the reasons why torture is so ineffective.
    13 minutes ago · Like

    Ben Heslop Well Ben, whats the saying…let a 1000 criminals go free so long as an innocent man is not jailed? This is the core belief of criminal justice.

    Is it? I thought it was to give criminal pause for thought? To enforce laws. A saying is not truth. Give me a link to this assertion.
    12 minutes ago · Like

    Vikas Nayak not nessesarily. Its basically asking for a bureacuratic state where if you even fail to fill out something in the maner the government wishes, you'll have your life totall open to scrutiny.
    11 minutes ago · Like

    Ben Heslop Maybe the police would be more interested in the truth if cases were EASIER to WRAP UP. With all this lying in building a defence, its no wonder they go for low hanging fruit (often meaning poor minorities).
    10 minutes ago · Like

    Vikas Nayak You thought wrong.

    Sir William Blackstones comments relate to the presumption of innocence which is at the heart of criminal justice. While the punitive measures are to deter crime, ever since the magna carta, the common law tradition ahs been to restrict the ability of the state to make apriori assumptions of guilt.
    9 minutes ago · Like

    Ben Heslop There are also numerous psych studies that have pointed out that people lie under duress.

    I'm sure a court can distinguish between lying under duress and an (inferred or actual) admission of guilt when first confronted by police, especially when it is recorded and there is no threat of physical punishment. These first confrontations are critical in police doing their job, and we do them a disservice in not facilitiating them to be evidence, or trusting police's judgement.
    8 minutes ago · Like

    Vikas Nayak Sure….it would be a lot easier to get the truth if the cops could just hold a gun to everyone's head and go "did you do it" until they found the guy who they think did it and then just pulled the trigger…but hey, its all about being efficient right?
    7 minutes ago · Like

    Ben Heslop Big difference between apriori assumptions of guilt and encouraging deceit to escape justice.
    6 minutes ago · Like

    Ben Heslop No innocent person should be afraid of scrutiny.
    6 minutes ago · Like

    Ben Heslop I said without physical threat, please do not distort my meaning.
    5 minutes ago · Like

    Vikas Nayak deceit has to be proven.
    5 minutes ago · Like

    Ben Heslop I am speaking from the POV of an omniscient social observer, where deceit is apparent and thus we can discuss it occurrence as a statistical fact, which certain approaches can increase or reduce.
    3 minutes ago · Like

    Vikas Nayak I see. How about we just give you a gun and you can run around pulling the trigger on all the guilty people.
    2 minutes ago · Like

    Vikas Nayak with a badge and everything.
    2 minutes ago · Like

    Vikas Nayak it'd be really efficient right.
    about a minute ago · Like

    Vikas Nayak and you know what deceit looks like.
    about a minute ago · Like

    Ben Heslop Seriously? That's what you're now relying on? Childish insults? Ok, well I hope you enjoy your meeting with the NSW Liberals, and use these kind of specious arguments and they see you for what you are.
    about a minute ago · Like

  3. narcoticmusing

    So much for presumption of innocence… if you really believe in presumption of innocence, why should an innocent person be subjected to these measures? That is presumption of guilt where they need to show why they aren’t rather than the prosecution proving they are.

  4. Splatterbottom

    This is barbaric. I really can’t believe it!

    This, and the recent ALP assault on press freedom, demonstrates the wisdom of the US founding fathers in entrenching such basic rights in their constitution.

  5. narcoticmusing

    It is as hypocritical to justice as the same voices that call for longer sentences also being rape apologists (I refer of course the utterly reprehensible response from the US media to the Steubenville case).

  6. narcoticmusing

    Ben Heslop So someone might lie when initially caught? Well they shouldn’t. This is my point.
    Actually Ben, they may not realise they are “lying”. There are two ways this can occur – this is due to interpretation – say one thing, mean another. This is particularly the case for a disadvantaged or young offender. For example, a person may respond with ‘I don’t know’. It is not necessarily the case that they do not know, they may merely not understand the question. They may just be frightened. There is no indication from an answer like that that is culturally simply a way of saying ‘I can’t answer that’ for whatever reason.

    Ben Heslop: … also weights justice in favour of those who can afford good lawyers able to construct elaborate defences.
    Actually the right to silence primarily helps the poorest/most disadvantaged people to enable them an opportunity to understand their rights and liabilities before saying something that may incriminate them unnecessarily. For example, it is common for a person who, say, was part of an accident to feel responsible. Should they confess? This would damn them. A person with significant resources would not even be in that position. They wouldn’t be hauled into a station and questioned in frightening circumstances.

    Summary – just because TV tells you who is advantaged in the law, doesn’t make it correct.

  7. Splatterbottom

    “Actually the right to silence primarily helps the poorest/most disadvantaged people to enable them an opportunity to understand their rights and liabilities before saying something that may incriminate them unnecessarily.”

    It is completely unreasonable to expect people to know the elements of the offense they will ultimately be charged with or the available defences or to know what is relevant or important or what to focus on getting absolutely correct under police questioning. They will be under great stress and may not even be able to recall important details or they may just say the first thing that comes into their head, or agree with a police suggestion or carefully crafted question which they don’t understand the ramifications of.

    I’ve sat with a fairly well educated friend through a police interview and the dishonesty and trickery of the police was breathtaking. In the witness box he raised important facts in his defence (which the police had known from the beginning from other witnesses) and it was put to him that he was lying as he hadn’t raised those facts in the interview. He didn’t raise them because he wasn’t asked about them in the interview, even though the police knew by that stage that those facts would be important. In fact the younger cop had started to ask him about that issue and the older one told the younger one to be quiet, it wasn’t necessary. In the witness box the prosecutor suggested he had been asked since the police at the end of the interview asked him if he had anything further to say! By that stage he was exhausted and wanted to get out of the interview. And as a nice touch, while he was being cross examined the cops were sitting in court smirking and laughing at him and upsetting his wife. Fortunately he was acquitted. He should not have even been charged, but the cops thought they could chalk up another conviction.

    The police are only interested in getting convictions and not at all in whether a person is guilty or innocent. It is a game to them. They use all available rules to their advantage. Changing the rules may lead to more convictions. But many of those will be of innocent people.

  8. Wow!!
    Did SB really write that last comment?
    Can I get some confirmation of that?

    It’s taken me about a decade to begrudgingly admit that, despite his appallingly partisan hatred of people like me, SB is a person of principles.
    I’m now wondering if I got that wrong.

    I remember How SB was always a champion for those who were seen to be upholding the rule of law.
    Those people included those that illegally invaded Iraq, those that illegally imprisoned and tortured Australian citizens and those that created fake outrages in order to gain political advantage.

    They all benefited from the munificence of SB’s approbation.
    Obviously because they never had the temerity to affect him or one of his mates.

    SB, are you Miranda Devine in reverse drag??
    Cheers.

  9. Yeah. I had high hopes for Greg Smith. I don’t think much of some of his politics generally, but as someone with actual criminal law experience he seemed a pretty sane and rational prospect for AG. And there are areas on which AFAIK he’s doing genuine good. But this, I just cannae wrap my head around.

  10. Splatterbottom

    Marek: “I remember How SB was always a champion for those who were seen to be upholding the rule of law.”

    On this issue my position is based on the rule of law, as was my opposition to Howard’s sedition laws and my support of marriage equality.

    “Those people included those that illegally invaded Iraq, those that illegally imprisoned and tortured Australian citizens and those that created fake outrages in order to gain political advantage.

    They all benefited from the munificence of SB’s approbation.”

    WTF? Had you being paying attention you would have remembered that:

    1. I did not support the invasion of Iraq. (However, once we there, I didn’t favour immediate withdrawal either. I felt that we owed it to the majority of the population who later risked their safety to get purple fingers on polling day to try to leave something behind that gave them a fighting chance.

    2. After a short and shameful aberration, I changed my mind on Guantanamo and came down on the side of rule of law.

    3. And you know that I consistently hammered Howard in strong terms, particularly in relation to children overboard (and I must say, that Gillard has many, many defects but she has not sunk that low, yet.)

    Maybe you just picked those three items to let me extol my virtues. :-)

    “his appallingly partisan hatred of people like me”

    Now that is your most hurtful comment. You know that I like you. I rarely give you both barrels, even when you say something that richly deserves that treatment which, to be fair, isn’t that often.

    I don’t know exactly what you mean by ‘people like me’. Anyway, I don’t hate anyone, at least not for more than 5 minutes while I let off a bit of steam at some comment or other.

  11. One was exactly how I felt about Iraq too, SB. It seemed hard to be able to communicate it to people.

    “I don’t support withdrawal of troops of Iraq”
    “Ah so, you’re a George W Bush loving Iraqi hating fascist!”
    “No. I opposed the invasion of Iraq and in fact marched to protest it.”
    “Oh, so you do support withdrawal of troops then?”
    “No. Having invaded and created a power vacuum, begetting horrible violence, I think we have a moral responsibility to try to help restore civil order. The deaths of Western troops does not change that one bit – especially in light of the overwhelmingly greater toll on Iraqi civilians.”

  12. Gah wordpress your HTML comments system never ceases to give me the shits. There was supposed to be a final line on that last comment:

    [.....blank stares.....]

  13. Oh Good Grief SB!!
    You were an Iraq war cheerleader. Admit it and apologise for it.
    I remember how you told the story of a family member who was part of the U.S. Military.
    I remember how you argued that Saddam was a threat and we “Leftists” were appeasers of the Jihadists (Do you remember how virulently “Islamophobic” you were back then?)
    To your credit, you never ran the WMD line.
    However, you went Nutzo when an American mercenary got his dead carcass hung from a bridge and a few folks from Daily Kos and the rest of the civilised world thought; Yeah, fair enough.

    I was at the Anti-War march in Sydney.
    I don’t recall seeing you there.
    Am I wrong?

    Cheers.

    P.S. Way too late in the evening for me to respond to your other points, but let me acknowledge that it was wrong of me to claim that you hated me, or people like me. I retract that assertion.

  14. After a short and shameful aberration, I changed my mind on Guantanamo and came down on the side of rule of law.

    Yes. Locking people up indefinitely without charge is an affront to the rule of law. Killing them with drones, not so much.

  15. Splatterbottom

    “You were an Iraq war cheerleader. Admit it and apologise for it.”

    As Jordan noted, it was logical to oppose going to war and it was also logical to oppose the (mainly foreign) jihadists, including al Queda in Iraq. Some on the left didn’t get this at all, and kept calling for immediate withdrawal which would have handed the place to the jihadis. Once
    the coalition brought down Sadam it had an obligation to put something in his place rather than to leave it to the crazies.

    For example Markos Moulitsas Zúniga aka Kos, upon learning that four Americans were mutilated, killed and strung up from a bridge with barbed wire, said “Screw them”. That comment shows the leftist/islamofascist alliance was in full effect. It was certainly instructive to see the left prefer to support the foreign jihadists swarming into Iraq than to support soldiers from their own country who were fighting to install a democracy. The Kos crowd couldn’t even bring themselves to support the Iraqis working towards democracy. The only item on the agenda of the ‘hate America’ left was anti-Americansim. They didn’t give a shit about the Iraqis.

    “I remember how you told the story of a family member who was part of the U.S. Military.”

    That was someone else.

    “Do you remember how virulently “Islamophobic” you were back then?”

    I haven’t changed much. I don’t attack Islam because it is not one thing. There are lots of islams. I do reject certain teachings advanced in the name of Islam and I’m happy to denounce those particular teachings which are murderous, misogynist, racist, homophobic or anti-democratic. If you want to call me Islamophobic for that, fine.

    I didn’t march in Sydney, although I did go to a March to condemn the Cronulla riots.

    “I retract that assertion.”

    Thank you, Marek.

  16. It was certainly instructive to see the left prefer to support the foreign jihadists swarming into Iraq than to support soldiers from their own country who were fighting to install a democracy.

    Continuing the dishonest smear: if they weren’t with us, they were with the terrorists.

    SB, how do you rationalise your claimed support for the rule of law with your support of drone killing of terrorists? Why is it not OK to sweep alleged terrorists up anywhere in the world at any time and hold them indefinitely without charge, but OK to drone bomb them to death at any time, anywhere in the world?

  17. Splatterbottom

    Buns I was judging Kos by his words. He wasn’t alone in his views. Some elements of the left were very big on claiming that the actions of foreign jihadis were some kind of local resistance. If they cared about the Iraqi people they would have been less interested in bashing the Yanks and more interested in getting rid of the jihadis so that the Coalition forces could withdraw.

    Drones are just another weapon. They can be used wisely or wickedly. I don’t see how you can suggest that they are per se evil, no matter how much fun Obama has playing with them.

  18. What the hell? SB says something useful and constructive and based on his professional experience and people hit him with “Iraq”? Jeez, play the ball, guys.

  19. Fair call, returnedman. I certainly agree 100% with SB’s comments on the subject Jeremy posted about. I also strongly doubt whether his position would be different had his friend not had the run-in with the law that he described.

  20. Drones allow a level of detachment from war that, in my opinion, creates a very dangerous dynamic. Anything that so effectively minimises the brutal reality of war for only one side of a conflict is something to be avoided.

    War should not be allowed to become ‘easy’.

  21. narcoticmusing

    My most passionate disagreements have generally been with SB (including my dislike of his additions of ‘spice’ but then, we all can be a tad too colourful at times with our expression). Nevertheless, it is simply that – a disagreement, often on ideological lines. Lately, this site has concerned me with far too many contributors only contribution being an insult. I won’t quote anyone, but an example formula seems to be: 1) quote what you disagree with, 2) mock it and 3) mock the contributor (including making significant assumptions about that persons character and vocation) 4) be sure to not leave any actual argument of your own.

    I don’t mind a little mud slung throughout an actual argument, or even the little ‘spice’ or purpose false assumptions to strengthen your point – I disagree with it but I get it. I don’t mind the tangents – I get caught in many [blush], but for the entire response to just be insults and lies built upon false presumptions is really quite tiresome and concerning for the quality of this space.

    I was attracted to this space for its strong and free debate by many from various informed states but who had otherwise given the item some thought.

    Marek – you are one such contributor who has always added a wealth of experience to any discussion. This latest tidbit is beneath you. I would, however, be interested in what you think of the NSW adjustments to the evidence laws – noting that, as any lawyer would know, that they are actually quite minor and will just make a lot more work for lawyers – it is, however the principle behind them, the undermining of the presumption of innocence that I am most concerned with (that and thanks for breaking a uniform evidence code nsw).

  22. Buns I was judging Kos by his words. He wasn’t alone in his views. Some elements of the left were very big on claiming that the actions of foreign jihadis were some kind of local resistance.

    Quoting one – or even five – people on “the left” and then using it to smear the entirety of the left is intellectually dishonest. Nobody is the appointed spokesperson for the nefarious “left” (that you are apparently very obsessed with), especially some random blogger. It might shock you to learn that people on “the left” don’t all think the same way about everything at all times. You don’t think that everyone on “the left” supports stringing up American soldiers from bridges, do you? Or even a majority of “the left”? Please. It’s like me saying the right hates Muslims because Marty Peretz and Pam Geller.

  23. narcoticmusing

    Yes, Mondo. The drones issue reminds me of the availability of assault weapons in the US. The only purpose is to kill with minimal harm to the person wielding the weapon.

    My other concern for drones is the lack of a human at the point where the final decision is made (i have this issue with all forms of remote attack). While humans make mistakes and also do horrid things, opening a door and seeing only school children is likely to make you think twice before planting explosives. A drone or other remote attack has no such luxury. It is far too dehumanising and easy to kill on mass. If we are to argue that we are the ‘good guys’, we should not be using such methods that rather than acknowledge the many dead as a result, it is celebrated.

  24. Splatterbottom

    Interesting point Mondo. The history of war has often involved one side having better technology which means that the other side suffers more ‘brutal reality’. Composite bows, chariots, pikes, long slashing swords, armoured horses, gunpowder, canon, rifles, machine guns, tanks, submarines, bombers all gave the innovators an advantage.

    In fact you could argue that the more evenly matched the protagonists are, the greater number of people who die. Which is what happened in the Civil war where over 600,000 were killed and then in both world wars where much greater numbers were killed.

    One effect of more accurate weapons is that those who deploy them can be held to a higher standard, than say in WWII where strikes on military targets were often, of necessity, badly directed and involved a lot more collateral damage.

    As to detachment, were does that begin and end – with the sniper who can kill from a mile away, or with bombers or guided missiles? A drone is not a lot different from a guided missile other than it can provide real-time confirmation of its target before discharging its payload. When ground forces call in an air strike is that not just a manned drone?

    Even if you are correct, what do you propose – no drones unless the other side has them as well? That situation is probably not too far away.

    We are probably better off trying to hold the line on WMD, mines and cluster bombs and on rules which protect civilians – no targeting them or using them as human shields or keeping munitions and fighters among them.

  25. Splatterbottom

    Buns: “Quoting one – or even five – people on “the left” and then using it to smear the entirety of the left is intellectually dishonest.”

    You did notice that I spoke of “some elements of the left” didn’t you? After all you did quote those words of mine immediately before accusing me of smearing the entirety of the left. It was actually Marek who suggested that “the rest of the civilised world” agreed with Kos on this.

  26. jordanrastrick

    *patiently waits for opportune conversational moment to plug new political party*

    Um, ahem.

  27. “This latest tidbit is beneath you.” Narcoticmusing
    You’d be surprised how low I can go!

    My initial comment was inspired by SB’s breathtaking assertion that there was something wrong with the police being “only interested in getting convictions” and not worrying about issues of guilt or innocence.

    I would have thought that the only KPI that matters to the police is getting convictions. That’s pretty much their job description.
    You know; catch criminals, collect evidence, built a case and try to get baddies locked up.
    I certainly wouldn’t want the local coppers taking too much interest in questions of guilt or innocence because, quite frankly, that’s a job for the courts.
    I’m sure that the police “use all available rules to their advantage” and so they should because you can be certain that the defence lawyers will.
    Once a decision is made to pursue a conviction, I would expect the police to build as strong a case as possible and let a judge or jury decide the rest.
    If SB has a different idea as to how policing and the criminal justice system should operate, then I’d love to hear it.

    I’ll admit that my initial comment was more ad hominem than rational discourse, but I had been reading quite a bit about the 10 year anniversary of the Iraq war and it was pissing me off that nobody has been held to account for that debacle. Then SB happened. ;-)

    As for the topic of this thread; It’s just Bazza O’Farrell trying to look tough.
    I don’t see this as an attack on the right to silence as much as a silly political maneuver which, as Jeremy said, will cost money and complicate matters.

    Cheers.

  28. Splatterbottom

    Marek: “I’m sure that the police “use all available rules to their advantage” and so they should because you can be certain that the defence lawyers will.
    Once a decision is made to pursue a conviction, I would expect the police to build as strong a case as possible and let a judge or jury decide the rest.
    If SB has a different idea as to how policing and the criminal justice system should operate, then I’d love to hear it.”

    I agree that it is the role of the police to gather evidence with a view to obtaining a conviction. Where I disagree with you is that the police should not “use all available rules to their advantage” if it means preventing exculpatory evidence being admitted in court in order to achieve a conviction.

    My point was that in discharge of their duty to decide whether or not to refer a matter for prosecution the role of the police is to ascertain all relevant facts and allow them to be put before the court, even if these facts are inconvenient to the police case.

    The example I gave was of a case where the police sought to exclude exculpatory evidence. That is a failure to properly perform their role. If there is exculpatory evidence they should use it to inform their decision and, if they believe that it does exonerate the accused, not to proceed with the matter. The police should certainly not try to engineer a circumstance where that evidence can be challenged because they have deliberately encouraged the accused not to raise it in an interview.

    The changes to the rules of evidence serve to make it more likely that the police will game the system. As I noted above it may lead to more convictions, but many of those will be of innocent people.

    There are certain basic features of the rule of law that should not be chipped away at or eroded even in the smallest degree. The right to silence is one of them.

  29. narcoticmusing

    While I certainly agree Marek that the changes will not have a significant effect beyond making more work for lawyers and delaying the process, it may have a significant impact for those most vulnerable in our system, such as self-represented litigants. This is a particular concern when you consider that the funding for legal aid is becoming more constrained and thus the criteria tighter (to the extent that it is completely sexist distribution thanks in part to Cesan , but that is a rant for another day).

    I’d also argue that rights and liberties are rarely stripped in a single move, they are usually chipped away under the guise of each change being so minor compared to the last – but as with the media laws, my concern lies in the death by a thousand cuts scenario.

  30. SB;

    … the police should not “use all available rules to their advantage” if it means preventing exculpatory evidence being admitted in court in order to achieve a conviction.

    Why not?
    As long as they don’t break the law by fabricating or destroying evidence and as long as they don’t lie, use intimidation or threats to suppress evidence, why should they go out of their way to undermine their case when they are not required to?
    Correct me if I’m wrong, but from what I understand, their is no statutory obligation for NSW Police to disclose exculpatory evidence.

    For the record, I think that’s a shitty way to run a criminal justice system.
    It encourages the American ‘whatever it takes’ attitude to obtaining convictions. However, that seems to be the system we have in place.

    Unsurprisingly, I prefer the Canadian model which assumes that all evidence discovered by the Crown is not the property of the Crown, but, in fact, public property to be used in the pursuit of justice.
    Canadian law also requires the Crown to disclose all evidence in its possession, both inculpatory and exculpatory, regardless of whether it intends to introduce that evidence at trial.
    The Crown is also required to demand from the police any other material which may be relevant to the case, even if it damages their prospects of a conviction.
    This means that when the DPP asks the investigating officer; “Is there anything else I should know?”, it is an offence for the police to answer “No” when they really should answer “Yes”.

    So, SB, I would have thought that the real issue here is not so much the bad behaviour of the police, but a pre-trial disclosure regime which is rigged to encourage such behaviour.

    Nobody wins in a situation where time and resources are wasted by a battle between police and lawyers to determine who can be the trickiest.
    Should you decide that a campaign to change this regime is required, then you can be assured of my support.

    Cheers.

  31. Groan!! Tags fail !!
    Cheers.

  32. Splatterbottom

    So what do we disagree about, Marek?

    How does this:

    My initial comment was inspired by SB’s breathtaking assertion that there was something wrong with the police being “only interested in getting convictions” and not worrying about issues of guilt or innocence.

    stand with this:

    For the record, I think that’s a shitty way to run a criminal justice system. It encourages the American ‘whatever it takes’ attitude to obtaining convictions. However, that seems to be the system we have in place.

    In particular why do you refer to my “breathtaking assertion that there was something wrong” and then turn around and say “that’s a shitty way to run a criminal justice system”. That sounds like roaring agreement to me.

  33. narcoticmusing

    Marek your description of the Canadian system is essentially the case in Vic – I can’t speak for other jurisdictions but I presumed they were fairly similar, particularly since the uniform evidence acts. The DPP’s role is to present all the facts of the case, not just those facts convenient for it. Police work for the public, not against them. As such, their role is to gather evidence, for good or bad, for their case and to not bias it/twist it.

    This is where there can be a difficult balancing act between determining ‘performance’ of say the police, DPP and the courts (and Legal Aid for that matter). It is a legitimate expectation that public funds are spent efficiently and effectively – but to determine this, one must determine what success looks like and thus measure performance on that. A very tough balancing act for policy makers, particularly when politics will want to define success very different to what the evidence may suggest it should be defined.

  34. narcoticmusing

    I should also note that the vast majority of police I have interacted with are fair and often more compassionate to the predicament of a defendant than given credit.

    That being said, many officer’s compassion understandably rests with the families around the perp and the victim (and their family) who are often voiceless (they have no representation in a criminal matter, the prosecutor is not there for the victim, rather they represent the public), invisible and ill-treated members of the criminal system.

  35. The feeling I got from your post, SB, was that you thought the police were acting improperly, were chasing convictions and not concerning themselves sufficiently with determining guilt or innocence.
    In short, you seemed to be blaming the police for what is a structural/procedural problem.
    That’s the point on which we disagree.

    It’s not grounds for divorce, but it is fundamental difference of perspective.
    Anyway, I’ll sleep in the spare room tonight and we can talk about in the morning. ;-)

    Narcoticmusing
    Yes it’s a bloody confusing situation and I don’t have much of a head for this kind of stuff.
    It’s difficult to keep track of what goes on in different jurisdictions much less identify what is a guideline, what is an underlying principle and what is a statutory obligation.
    My uncle was a lawyer and he used to say that “Justice is easy; it’s knowing the law that’s a pain in the ass!”

    Cheers.

  36. Splatterbottom

    Sleep well, Marek.

  37. So its, uh, completely off topic, but who knows when an actually relevant thread will start. So without further ado, the aforementioned new political party I’m plugging is:

    futureparty.org.au

    We’re sort of a technophile, pro-migration, economic rationalist version of the Greens. The party leader, James, will be running for the Senate in NSW.

    The site is still a bit rough around the edges as we’ve only just launched it, and have been operating with a pretty limited membership base to do the work (of both developing the public content and all the internal admin setup stuff). Hopefully some of you might be interested.

    P.S. Glad to see we all seem to be on more or less the same page on the OT, now.

  38. Oh wow, it didn’t auto hyperlink. Jeez wordpess, thanks.

    I guess I’ll just do it manually then.

  39. GAAAAH. Sorry Jeremy. Feel free to edit/delete these posts to clean them up as you see fit.

    This is the hopefully working link to the future party:

    http://futureparty.org.au

  40. narcoticmusing

    Interestingly Jordan, your party has no policy regarding health care and hospitals generally – you have some specific things, but they are all around and not part of hospitals which make up the bulk of the health budgets and are the primary block (not a value judgement btw, there are very rationale reasons for this) to funding the other matters you mention.

  41. narcoticmusing

    Sorry, WP submitted before i finished – just wanted to ad a congratulations and hope it all goes well. I’ll watch with interest from Melbourne. :)

  42. Interestingly Jordan, your party has no policy regarding health care and hospitals generally

    True, although various measures we do advocate – more funding for preventative health, redirect research funding toward cost effective treatments – should have indirect but significant impact on the operations and cost of the hospital system. We could do with consultation with an expert to formulate more specific policies regarding them.

    Sorry, WP submitted before i finished – just wanted to ad a congratulations and hope it all goes well. I’ll watch with interest from Melbourne.

    Thanks :-)

  43. Marek, I think trying to get a conviction for somebody you flat-out know to be innocent is morally outrageous . I agree with our old mate SB on this one! How many 12 year old kids have been thrown to the wolves by police over the years do you think?.Are you being deliberately obtuse?

  44. narcoticmusing

    Preventative health is hugely important in diversion of future admissions to hospital, but it doesn’t do anything about now and, like most preventative measures, can be very difficult to quantify its impacts (can’t prove what didn’t happen was due to your intervention specifically). Probably need to consider management of chronic conditions and utilisation of community based care which is both cheaper than hospitals but also more effective. Nevertheless, that doesn’t address the current waiting lists/times (for elective surgery and emergency depts/ambulance); ageing population (partly addressed with community based care but when not managed, the aged become, for lack of a better term, ‘bed blockers’); input costs (an element technophiles tend to overlook and simply want to endorse but much of the wasted cost is due to unnecessary technology and/or technology screw ups); and the big one, managing the primary cost of the health system – its workforce.

    Just some thoughts to consider as health will always be a major issue that cannot be brushed over.

  45. Handing planning, housing and development straight to the private sector is also a mistake. Docklands is not the only example of how it is very, very wrong.

  46. Handing planning, housing and development straight to the private sector is also a mistake

    We don’t plan to hand planning “straight to the private sector”. Obviously public infrastructure like roads, rail, sewerage, water, power lines, telecommunications, etc, not to mention schools, parks, hospitals and so forth, will continue to be in largely government hands, and that means government has to continue to dominant a big role in urban planning on larger scales.

    But we need less micromanagement at the level of individual buildings. And we need higher densities – indeed, this is key to achieving many better planning outcomes, by for instance enabling better public transport transit system.

    Docklands is not the only example of how it is very, very wrong.

    There are plenty of terrible developments in the world that involved minimal government involvement. And there are plenty that involved lots. Likewise there brilliant examples in both category.

  47. narcoticmusing

    Private industry in Australia at least, tends to not bother with irritations such as public space and amenities – blaming government (even in examples where providing such was part of the developers approval permit). I have no faith in private sector in Australia for infrastructure/planning because its motives are not for those living there. None of the capital is from people intending to reside there – so no consequence for them. Reminds me of the shoddy workmanship you get on units/apartments designed to be rented – no intention of the builder to ever live there so everything is at minimum cost/quality for maximum profit (using land price drivers for profit rather than quality)..

  48. G’day Phil White.

    Marek, I think trying to get a conviction for somebody you flat-out know to be innocent is morally outrageous.

    Do you also find it morally outrageous when a barrister tries to get his/her client to walk free when they flat-out know that said client is guilty?

    How many 12 year old kids have been thrown to the wolves by police over the years do you think?

    Speaking of obtuse.
    Are you suggesting a conspiracy by police officers across the nation to wrongfully imprison innocent 12 years olds?
    My general feeling is that you don’t come to the attention of the local constabulary for no reason at all.
    However, even if you do, I’m fairly certain that, in most instances, most police officers will try to keep a lid on their malevolence and not send you off to juvie for spitting on the footpath.

    Cheers.

  49. Nice use of the straw- man argument Marek.

    Cheers.
    .

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