22 January 2014
We Could Solve The Budget Crisis By Just Getting Rid of The Courts!
Last night I watched a police drama. The squad was being investigated by a man whose estranged wife was in the squad. No conflict of interest was perceived. Then when the head of the squad refused an order to 'stand down', and the wife was shot in the ensuing car chase, the husband stripped the leader of his badge and gun and vowed to 'get him'. Again, no conflict of interest.
However, the thing I found strangest was the attitude of the warder in the jail/remand centre where the leader was sent when he was discovered continuing with his investigation. For reasons unknown, the warder sneeringly told him that there wasn't enough room for him in a safe environment so he had to go in with the general population of prisoners, who proceeded to beat him up at the first opportunity. He was released, as the other prisoners were preparing to have a second go, he still hadn't been moved to a safer place.
In fiction, Justice is so arbitary. And we think, rightly so. Bang that smartarse criminal's head against the table! That'll wipe the smug smile off his face. We're not encouraged to think about things like the fact that the warder may be asked to explain why a serving police officer was put in danger, not once, but twice. And for that matter, we were right behind the maverick squad leader as he beat the information out of the bad guys.
So, it's no surprise that when Derryn Hinch goes to jail on 'principle' to 'send a message that the judiciary was out of touch with the community on sentencing and suppression orders' that various people congratulate Hinch for standing up for up for what's right and exercising his right to free speech.
Never mind that in many of the cases where Hinch chose to name people or reveal their past convictions, that he risked aborting the trial and allowing the criminals to walk free. Suppression orders are there, not to prevent free speech, but to ensure that the trial is fair. Of course, it's easy when dealing with people who have past convictions to say look what an evil person this is, they don't deserve a fair trial.
At the time of the original sentencing the judge was concerned about Hinch's belief that somehow the rules didn't apply to him.
Justice Stephen Kaye rejected Hinch's evidence that he did not know he was breaching the suppression order saying Hinch's repeated comments on twitter showed he strongly disagreed with the non-publication order and that he deliberately set out to defy it.
(Your) conduct (was) calculated to undermine the administration of justice in this state, he said.
Orders must be obeyed regardless of whether individual person believes them or not.
Calling the breach particularly serious, Justice Kaye said it is not up to reporters to pick and choose which orders they adhere to because it would make the justice system unworkable.
Hinch was also criticised for the serious accusations he made by repeatedly claiming that he was a scapegoat and a whipping boy.
So, in Derryn Hinch we have someone who believes that people who break the law should be given tougher sentences, but, in spite of several previous convictions, he believes that his sentence is a miscarriage of justice because somehow the law shouldn’t apply to him. Hinch simply believes that he is better placed to make decisions than judges. And that's why they pick on him. They don't understand that they're out of touch because they're locked away in courts hearing evidence, whereas he's heard enough already. Who needs a trial when you have a radio personality?
Well, I agree that sometimes sentences appear too lenient. For a repeat offender like Hinch, surely the sentence could have been much harsher. But I'm not a judge, and Hinch is really not that important, apart from what he represents.
The danger to me is when we're encouraged to look at the particular to the extent that we overlook the general principle. As in the police drama, fiction encourages us to accept corruption and convenience. Bikies seem threatening, and most are criminals, aren't they? So a law that enables us to lock them up for being bikies seems like the way to go. Principles? Do you like bikies or something? As if the laws would ever be used against unions or protesters!
As for judges who don't do what they're told, well Nauru knows how to deal with them. And, as the Abbott government seems to be saying, that's surely an 'internal' matter for the Nauran government. Notwithstanding we've 'outsourced' part of the justice system to Nauru, and they'll be dealing with asylum seekers.
When David Hicks was in custody, I remember John Howard expressing the view that while the presumption of innocence was important, it didn't matter in this case, because we knew that he was guilty. Except we were also being told that he wasn't guilty of any crimes with which he could be charged, which is why he had to be held in Guantanamo Bay. That seemed to be a slight contradiction to me.
Principles are there to protect us all from the lynch mob mentality that can easily take over when we rely more on emotions than reason. If the evidence is there, the courts should be able to convict without the help of shock jocks stirring up community passion. If the evidence is lacking, people shouldn't be convicted on the basis that that we don't like them and we don't think the dingo did it!