Thabo Meli revisited : the pernicious effects of results-driven decisions

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

Changing provocation law could legitimise lethal acts of domestic violence

The O'Farrell government must reconsider their recommendation to retain a restricted version of the controversial partial defence of provocation. The government has released a draft exposure bill recommending reform of a partial defence that has long attracted criticism and community concern. Under the proposed reform, the defence will be significantly restricted and will be renamed the "partial defence of extreme provocation".

Policing services with mentally ill people : developing greater understanding and best practice

Although it is now well known that there is a disproportionate number of people with mental illnesses in the criminal justice system, surprising little attention has been paid to the challenges faced by policing people with mental illnesses in the community. This article provides an overview of some of the key findings from a programme of research undertaken in Victoria to further understand and develop a best practice model at this interface. The areas covered will include the prevalence of psychiatric symptoms and mental illnesses among police cell detainees; the existing knowledge base and attitudes of police towards mentally ill people; the relationship between mental illness and offending; the frequency and nature of police apprehensions of mentally ill people under the Mental Health Act; the association among mental disorder, police shootings, and other injuries to people as a result of these encounters; and police interactions with victims of crime. The work highlights the need for ongoing improvements in policing people with mental illnesses, and particularly the need for improved inter-agency practices for dealing with them.

Homicide law reform, gender and the provocation defence: a comparative perspective

 The operation of the partial defence of provocation has animated significant debate for more than two decades among scholars, legal practitioners, politicians and the community. In recognition of the injustices that result from its operation, criminal justice systems worldwide have conducted reviews of the law of provocation and have implemented divergent reforms targeted at minimizing the influence of gender bias in the law's operations. Drawing on the voices of over one hundred members of the Victorian, New South Wales and English criminal justice systems, this book provides a much-needed comparative analysis of the operation of this controversial partial defence to murder, the varied approaches taken to reforming the law of provocation and the effects of these reforms in practice.

Improving the outcomes of the South Australian mental health court: an examination of the predictors of success

 This thesis investigated the role that mental health problem-solving courts play within the Australian criminal justice system. It demonstrated that these courts can be an effective solution in the delivery of effective justice responses to vulnerable offenders, if administered in a manner that focuses on risk rather than clinical variables.

Professionals’ views on child sexual abuse attrition rates

Child sexual abuse cases often do not result in convictions; this attrition is due to factors inside and outside the control of the justice system. The aims of the current study were to: (1) establish the most important factors in contributing to the attrition of child sexual abuse; and (2) suggest ways to reduce the attrition associated with these factors. This study focused on system improvements to determine where efforts should be prioritised. The research approach consisted of in-depth interviews with 31 professionals from various disciplines (including police, judges, child welfare officers, doctors and psychologists). The interviewees represented a diverse group of professionals offering unique perspectives. Thematic analysis revealed five broad areas requiring focus for improvement and further reform: greater specialisation, facilitating the accessibility of services, making the trial process more user-friendly, overcoming misinformed beliefs and adequate representation of child sexual abuse. These areas, along with professionals’ practical recommendations, are discussed.

Proportionality in sentencing: the need to factor in community experience, not public opinion

This is the first book to address the question of what role public opinion should play in the way criminal offenders are punished.Should public opinion determine—or even influence—sentencing policy and practice? Should the punishment of criminal offenders reflect what the public regards as appropriate? These deceptively simple questions conceal complex theoretical and methodological challenges to the administration of punishment.In the West, politicians have often answered these questions in the affirmative; penal reforms have been justified with direct reference to the attitudes of the public. This is why the contention that politicians should bridge the gap between the public and criminal justice practice has widespread resonance. Criminal law scholars, for their part, have often been more reluctant to accept public input in penal practice, and some have even held that the idea of consulting public opinion constitutes a populist approach to punishment.The purpose of this book is to examine the moral significance of public opinion for penal theory and practice. For the first time in a single volume the editors, Jesper Ryberg and Julian V. Roberts, have assembled a number of respected criminologists, philosphers, and legal theorists to address the various aspects of why and how public opinion should be reflected in the way the criminal justice system deals with criminals. The chapters address the myriad complexities surrounding this issue by first weighing the justifications for incorporating public views into punishment practices and then considering the various ways this might be achieved through juries, prosecutors, restoratifve justice programs, and other means.

Sentencing offenders with mental impairment: the case of arsonists with intellectual disability

Purpose: Offenders with intellectual disability (ID) who commit arson and other acts of fire setting are over-represented in the criminal justice system in Australia, as in many other jurisdictions. The purpose of this paper is to provide insight into the judicial considerations that influence sentencing in these cases. Design/methodology/approach: Case law was utilised to locate and analyse judges’ sentencing remarks for offenders with ID found guilty of an offence of arson. These data were subject to Inductive Content Analysis to establish the major judicial considerations in sentencing. Findings: Seven common issues emerged: general deterrence, seriousness of arson, rehabilitation, sentencing options, moral culpability, protection of the community, and punishment. Judges noted that they handed down reduced sentences to persons with ID relative to the severity of their offending, that they considered people with ID to have low levels of moral culpability, and that these offenders did not provide good examples for community deterrence. Originality/value: The current study highlights the need for judges to have available a range of sentencing options, including diversion and treatment/rehabilitation programmes for persons with ID, particularly for those involved in more serious offences such as arson.

Stakeholders' perceptions of the benefit of introducing an Australian intermediary system for vulnerable witnesses

Vulnerable witnesses (e.g. children and adults with communication impairment) face many barriers to testifying and achieving justice when participating in the criminal justice system. To date, reforms have been implemented in Australia to address these, yet the barriers remain. Several other countries have implemented an intermediary scheme, whereby an independent third party assists vulnerable witnesses to understand the questions and processes encountered during interviews and trials, and helps witnesses to be understood. This study provides a qualitative analysis of stakeholders' (N = 25 professionals) perceptions regarding the potential benefits of implementing an intermediary scheme in Australia. While all participants demonstrated an open-minded attitude to new reform in this area, their perspectives did not support the introduction of an intermediary scheme at this time. Stakeholders highlighted the need for improved use and effectiveness of current measures, and expressed concern about adding further complication to the system.

Prosecutors’ perceptions of the utility of video-evidence for adult complainants of sexual assault

Playing an adult sexual complainant’s video-recorded police interview as the basis for his or her evidence-in-chief is a reform Australia could adopt to help improve criminal justice responses to these cases. This article presents a qualitative evaluation of prosecutor’s support for this reform and their views about what conditions would determine its utility. Focus groups were held with 13 prosecutors from across New Zealand (which already has this reform) and Australia. Collectively, prosecutors supported the availability of video-evidence for adult complainants. They perceived the utility of this reform depends on the following conditions: (1) the quality of the police interview; (2) how credibly the complainant presents on video; (3) contextual factors that influence the complainant’s ability to give live evidence; and (4) the degree of stakeholder support. These findings suggest that Australia should extend video-evidence to adult complainants of sexual assault guided by careful planning aroundthese four areas.

Performing desistance: how might theories of desistance from crime help us understand the possibilities of prison theatre?

Despite the ubiquity of theatre projects in prisons there has been little (published) discussion of the application of theatre to the theories of criminology or rehabilitation of offenders, and scant examination of the potential for criminological theories to inform theatre practice in criminal justice settings. This article seeks to address this deficit and argues that positioning prison theatre within the discipline of positive criminology, specifically contemporary theories of desistance from crime, provides a theoretical framework for understanding the contribution that prison theatre might be making in the correctional setting. Through a review of related literature, the article explores how prison theatre may be motivating offenders toward the construction of a more adaptive narrative identity and toward the acquisition of capabilities that might usefully assist them in the process of desisting from crime.

Victoria’s banning provisions: ‘balancing’ discretionary police powers and individual rights

This thesis examines the parliamentary passage, implementation and ongoing scrutiny of Victoria’s banning notice provisions. Underlying political assumptions and justifications are explored to reveal how banning notices exemplify a move towards police-imposed discretionary justice, which undermines individual rights and reconfigures the notion of balance in the criminal justice system.

Sober assessment of the link between substance abuse and crime-eliminating drug and alcohol use from the sentencing calculus

The relevance of drug and alcohol involvement to sentencing law and practice is one of the most perplexing and unsettled areas of sentencing law and practice.1 It is also one of the most important issues in the criminal justice system. Most crimes are committed by offenders who are substance involved, and nearly half of all crimes that are committed are done so by offenders who are intoxicated at the time of the offense. Substance involved individuals are grossly over-represented in the criminal courts. Addiction and intoxication impair sound judgment, and hence, it intuitively appears that intoxicated offenders are less culpable for their crimes. Moreover, there is often a sense that addiction and intoxication causes aberrant behavior and that curing the substance involvement will lead to more prudent (law-abiding) conduct.