Members Forum success

Court 3.3 was packed for this forum. Chatham House rules applied, so there won’t be any quotes or report of proceedings. But the committee noted a range of good ideas that will be developed and responses that will be made to the VLA consultation. Thank you to all who attended, including our judicial members.

For those who attended, how often should we hold such a forum? Please email a committee member and let us know.

Malaysian sedition conviction is disheartening

follow link The Criminal Bar Association is disheartened to learn of the conviction for sedition of Karpal Singh in the Kuala Lumpur High Court on 21 February.  Karpal Singh is a respected legal colleague, as well as being an opposition politician.  His crime was to express a legal opinion, as lawyers must; in Malaysia, such comment would normally be protected section 10(1)(a) of the Constitution, but Karpal Singh was prosecuted under the colonial-era Sedition Act.  This Act was to be repealed; unfortunately, it remains in use.  Karpal Singh faces imprisonment and political ruin.

It is of grave concern that senior, respected lawyers are charged for daring to suggest that local rulers’ decisions may be reviewable in court.  The rule of law is of great importance, not merely on principle, but because it underpins a rational and just society.  There are no fair markets without the rule of law.

The CBA supports Karpal Singh, and respectfully asks that political leaders consider the damage done to the rule of law when harsh prosecutions are launched.  The law comes into disrepute, and the society which relies on it suffers.

IMPORTANT … Members-only meeting (27 Feb)

Thursday, 27 February 2014 at 5pm
County Court, level 3, Room 3-3

All members are urged to attend this meeting. It will be a ‘ closed-door ‘ forum for follow url members only . (Refreshments will be provided following the meeting at a venue to be advised on the night.)

During the meeting, the Committee will update members on our response to the VLA Consultation and Options paper entitled ‘Delivering High Quality Criminal Trials’. As members know, the Paper proposes significant changes which would not necessarily include the Bar having an ongoing role of significance. We will be asserting that the Bar is the provider of the best trial representation possible.

Chief Judge Rozenes and other trial judges will attend the meeting and discuss good practice, current standards and how our role in trial advocacy can be maintained and improved.

Upcoming CPD seminars

click Monday, 24 February 2014

  • PSS Presentation – (Professional Standards Scheme)
  • Speaker(s): Gerard Meehan
  • 1 CPD point: Practice Management & Business Skills / Ethics & Professional Responsibility
  • Time: 5.15pm – 6.15pm
  • Where: Neil McPhee Room, Level 1, Owen Dixon Chambers East Thursday, 6 March 2014

  • Interlocutory Appeals
  • Speaker(s): Richard Edney
  • Interlocutory Appeals: Existing Jurisprudence and Likely Future Trends
  • 1 CPD point: Substantive Law
  • Time: 5.15pm – 6.15pm
  • Where: Neil McPhee Room, Level 1, Owen Dixon Chambers East

opzioni binarie aranzulla Tuesday, 11 March 2014

  • Aggravated Individualism: Barbaro v The Queen and Sentencing
  • Speaker(s): Professor Arie Frieberg
  • 1 CPD point: Substantive Law
  • Time: 5.15pm – 6.15pm
  • Where: Neil McPhee Room, Level 1, Owen Dixon Chambers East

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  • Hearsay Evidence: First Hand Hearsay
  • Criminal Bar Association
  • Speaker(s): Jason Harkess
  • 1 CPD point: Substantive Law
  • Time: 5.15pm – 6.15pm
  • Where: Neil McPhee Room, Level 1, Owen Dixon Chambers East

source link Thursday, 27 March 2014

  • Recent decisions in the Court of Appeal
  • Speaker(s): O P Holdenson QC
  • 1 CPD point: Substantive Law
  • Time: 5.15pm – 6.15pm
  • Where: Neil McPhee Room, Level 1, Owen Dixon Chambers East

CBA opposes mandatory minimum sentencing in all its guises

It is an election year and there is soon likely to be an auction between the parties as to who is tougher on crime – no doubt including promises of mandatory or baseline sentences.  Before this begins the CBA (which represents both prosecution and defence counsel) calls for a proper enquiry to assess the evidence demonstrating the long term benefits of such harsh and costly proposals.  Mandatory minimum sentences are harsh because they result in injustice and hardship, and costly because they divert tax dollars away from early childhood development, schools and hospitals. Unless strong evidence supports mandatory minimum sentencing, it should be abandoned.  Currently, that evidence does not exist in Victoria.  Most with experience in the criminal law agree that mandatory minimum sentencing, includaing “baseline sentencing”, should be abandoned.

First, mandatory sentencing is ineffective.  There is simply no evidence that it deters offenders, particularly the young substance-abusers against whom such laws are usually aimed.  Young male offenders seldom plan their crimes, and never expect to be caught.  But mandatory sentencing ensures the incarceration and criminalisation of those young men, even those who might have been reclaimed.

Secondly, mandatory sentencing is inefficient.  Few defendants will plead guilty if they are guaranteed four years at least.  Defendants lose their motivation to rehabilitate, or make peace with their victim.  More trials will occur, at great expense.  More young men will fester in prison, at great expense.

Thirdly, mandatory sentencing is likely to lead to unjust outcomes.  The young, the unfortunate, the disabled, the repentant – all will suffer the harsh fate reserved normally for bad cases.  The law is currently well-structured: the Sentencing Act permits heavier or lighter sentences to be imposed according to the needs of the case.  The Sentencing Act gives effect to the community’s interest, and that interest goes beyond punishment.  The appeal process in the Criminal Procedure Act protects the community against unjust sentences, light or heavy.

Finally, mandatory sentencing undermines the judiciary and the court system.  When a state legislature imposes mandatory sentencing, it demonstrates disrespect for the discretion exercised by sentencing judges.  The lesson to the community is not merely the “tough on crime” message which political leaders see as attractive: it is that the courts are weak and out of touch.  That message has implications beyond sentencing law.  Respect for the law itself is undermined.

Politicians must foster and protect the community’s institutions, especially the rule of law and the judicial system which gives effect to it.  The Court system will outlast today’s politicians.  But many political leaders now seek short-term advantage by attacking that very system.   The recent attack on defence lawyers by the Premier of Queensland reflects this predatory, advantage-seeking attitude by politicians toward the institutions of the law.   A “tough on crime” stance, if not managed with maturity and restraint, swiftly shades into a “tough on the courts” stance.   It also reflects an irresponsible, swaggering and short-term attitude to the problem of crime.

Discretion is the lifeblood of the sentencing process.  Crimes come in all shapes, as do offenders.  The crime of manslaughter, for example, results in a wide range of penalties, ranging from the almost-murder to the plain tragedy.  Experience shows that community members understand the exercise of discretion once they have any detailed knowledge of a case; mandatory sentencing, said to be “tough on crime”, generally appeals at the shallowest level.

So there is much to be said against baseline sentencing.  What is in its favour?  Unless there is evidence that it will make a genuine impact on community safety, nothing favours it but the election-year claim “This measure is tough on crime”.

The CBA urges the government to convene a sentencing enquiry.  The current debate, and the “tough on crime” initiatives which proliferate, arise against an uncertain factual background of facts.  Do heavy sentences really deter?  Do they result in reformed or debauched prisoners?  Do longer sentences assist victims to achieve happiness, “closure” or any of the promised benefits?  These questions could be addressed in a serious, evidence-based manner.  In their absence, community-changing changes are made to the law which are potentially damaging, and will certainly outlast the governments who sponsor them. Peter Morrissey SC
Criminal Bar Association of Victoria

URGENT – survey of members

Please download the CBA Survey about the VLA trial funding options.

We need your thoughts ASAP. We are drafting our response in conjunction with the Bar Council and time is short before the VLA deadline (early March).  Fill in as many options as you want and save the file and email it to THIS WEEK. If you want to print it out, do so and return it to Fiona at Foley’s List. If you want more information about the consultation process of information about making your own submissions, go to VLA consultation webpage.