November 21

The Queen’s Peace

The core duties of government have evolved over time, but they are essentially as they were in 1788.

These include the defence of the realm, ensuring monetary stability, and maintaining The Queen's Peace, that is, law and order.


The  Federal Government has indicated an agenda to remove the Australian Crown. But when it comes to one of its core functions, monetary stability, it has been criticised on the grounds of its competence or lack thereof.

This relates to the form of and the way it came to its recent bank guarantee decision. It is argued that this caused a run on sound mortgage funds, with a large number of Australians still unable to access their life savings.

This hopefully was an isolated incident. But clearly, Australians will have little confidence in the wisdom of a government’s proposals for fundamental constitutional change when they see the way it handles the core functions of government.

What has not been a once-off has been the failure – for years – of state and territory governments to provide that level of law and order the Australian people are entitled to expect

Not so long ago it would have been thought to be eccentric to employ the security measures that today are considered perfectly normal. A walk through the streets of our cities and towns will illustrate this.

Of course there should be proper safeguards to ensure the rights of those accused. But the pendulum has moved too far. In my view, the criminal justice system  now functions more in the interests of the criminal  than the great mass of law-abiding citizens.

It is the politicians, mainly republican, who are principally responsible.  They have failed in their duty. They  have been  aided and abetted by those in the legal establishment who have such a vested interest in the system they will punish any of their number who dare speak against the revolution that nurtures their practices.

This was best demonstrated in one infamous case where silk ( becoming a senior counsel) was refused for years to an obviously talented counsel who dared to speak out.

Politicians have different attitudes to this revolution. Some support it strongly, even wishing to push it further, believing that society rather than the delinquent is more the cause of crime.

They are not at all swayed by the fact that criminals today live in a society which has never before offered such opportunities or guaranteed so much protection from disaster. Nor do they accept that — insanity apart and strictly defined — an individual is always responsible for his or her acts.

Victorian Attorney-General Rob Hulls falls squarely into this class. His wish to get criminals out of "the revolving door" and to change the adversarial system does not however involve borrowing from the continental inquisitorial system. The revolution he is calling for is likely to be a permanent reorientation of the system even further away from punishment to the dream world of mediation and reconciliation.

The second class of politicians just want a quiet life. This means keeping preselection, and reaping the generous "retirement" benefits they have voted themselves after serving a minimum time, picking up then further rewards from a grateful party. So why concern themselves with the fact that their constituents live unnecessarily insecure lives, something which only they the politicians can change?

Then there is a small group of politicians who remain in touch with and fight for their constituents. Rudy Giuliani was such a politician. On my first visit, decades ago, to New York, I found a city in a state of criminal anarchy. Years later, after Giuliani had prevailed, it was pleasant and secure.

But in Australia, not only has the criminal justice system been deliberately oriented away from public expectations, this has been reinforced by the way in which the police have been loaded with paperwork, subjected to politically correct ordinances and policies, and starved of resources for front line work.

This treatment of the police has recently led to the near collapse of the police prosecution service in NSW.

As Miranda Devine warns: "When prosecutors can't convict, the law becomes a joke, communities clam up, people retreat behind locked doors and leave the streets to criminals and bullies who are emboldened by the knowledge that an arrest is a minor inconvenience, worth it sometimes to see the look of frustration on a cop's face as you walk free and flip the bird and punch a newspaper photographer for good measure as you leave the courthouse." (" Silk rejection a badge of honour for prosecutor who gave us faith," Sydney Morning Herald, 8 October, 2006)

…the criminal justice system….


So what is wrong with the criminal justice system?  

A trial takes too long. Too much time is spent trying to stop the jury from hearing evidence that commonsense would indicate is relevant. 

The then NSW deputy senior crown prosecutor Margaret Cunneen made the point in her famous 2005 Sir Ninian Stephen lecture that on each piece of evidence there may be argument about whether it is fair to admit it, whether it has been illegally or improperly obtained and whether its probative value outweighs the danger of unfair prejudice to the accused. It is even more complicated in joint trials.

Then, too much time and public money is set aside for appeal courts to second-guess the trial judge, who had the advantage of seeing and hearing the witnesses.

The appeals treadmill is getting worse, and that doesn't seem to worry Victorian Attorney-General Hulls. But the Victorian DPP Jeremy Rapke QC points out there are a record number of appeals to the Court of Appeal, and the time taken to get an appeal heard is unacceptably lengthy. He points out that more appeals are being allowed and many more acquittals are being entered on appeal. Five years ago 5 per cent succeeded; this has increased to 29 per cent so far this year.

Margaret Cunneen says that a retrial for very minor matters is an ordeal for the victims, witnesses and also the accused.

Rapke speaks of the heartache that he and his staff experience when confronted by a victim of crime who has been worn down by the system.

"I have heard the cries and pleas of victims and their families to put an end to prosecutions, to allow them to close that chapter in their lives and move on. They plead with me fully cognisant that if I accede to their request their tormentors will escape justice," he laments.

Margaret Cunneen suggested public confidence in the courts was being eroded by the perception that the pendulum had swung rather too far in the direction of the protection of the rights of the accused person.

The public she said had "a legitimate right to having criminal activity duly recorded, punished and the offender rehabilitated in his own interests and those of his fellow citizens".

One of her observation really upset the legal establishment. There were even complaints of professional misconduct including one by the late John Marsden.

She said: "There seems to be a fashion, among some in the criminal justice system, for a kind of misplaced altruism that it is somehow a noble thing to assist a criminal to evade conviction."

The solution, Hulls is not more of the same. Let's trust our juries, guided by the trial judge with more of the evidence. Limit the scope of the appeals. It is not so long ago that trials were over in a reasonable period and appeals were not routine.

We need a Royal Commission to examine critically the criminal justice system. The Royal Commissioner would have to be someone who lives in the real world, like Margaret Cunneen — at long last Margaret Cunneen SC.

(It would of course be QC but for that great period of legal reform under the NSW Fahey government. They also turned "solicitors" into "lawyers".)

[This is based on an opinion piece "Keep the peace:learn from Giuliani's tactics" The Australian, 31 October 2008]                


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