Madeleine Kirgan Legal Studies Assignment Bruce Lehrmann trial aborted with jury discharged after outside material brought into jury room The entire jury in the trial of Bruce Lehrmann has been discharged after a juror was found to have brought a research paper on sexual assaults into the jury room. The ACT supreme court convened on Thursday morning and heard that Lehrmann’s trial must be aborted after a juror had conducted research outside the courtroom, something jurors are routinely told not to do. The court heard the juror brought in a research paper that attempted to quantify the number of false complaints and interrogate the reasons for making false complaints. The use of the research paper was contrary to at least 17 directions from the trial judge to jurors telling them not to conduct their own research or inquiries. The paper was discovered accidentally by a sheriff’s officer during routine tidying of the jury room. The sheriff’s officer bumped one of the juror’s plastic folders and noticed the title page of a research paper among the papers. The chief justice, Lucy McCallum, said she had no choice but to discharge one of the 12 jurors who have been deliberating since last week. She said that meant she had to discharge them all. “It has come to my attention that one of you, contrary to directions, has undertaken research in relation to issues in the case and that material has entered the jury room that ought not to have,” she told the jury. “I have heard an explanation and it may be that no harm has been done, but that is not a risk that I can take. In the circumstances, I have discharged that juror and I have to discharge you all.” A new trial date has been set down for February 2023. Outside court, Lehrmann’s barrister Steven Whybrow said everyone was “disappointed”. “Everyone is disappointed at what happened but it would be inappropriate and irresponsible to say anything at this time,” he said. Higgins made an emotional statement on Thursday thanking her supporters and saying her life had been “completely scrutinised [and] open for the world to see”. In a judgment explaining her decision, McCallum said the juror had told the court that the document had not been used or relied upon by the jury in its deliberations. “In the circumstances, it is appropriate to regard that evidence with some scepticism,” she said. “During the course of the trial on my calculation, I must have given the jury at least 17 directions not to conduct research of their own.” McCallum said that in New South Wales, such conduct may have warranted an offence. There was no such offence in the ACT, the court heard. “It is beyond question that the conduct of the juror is such as to abort the trial,” she said. “Both counsel for the prosecutor and the accused agreed with my decision in that respect. It should go without saying that this is both an unexpected and unfortunate outcome in this trial.” The sheriff officer’s actions were praised by McCallum. She said the officer showed “courage, integrity and good sense”. “The court is fortunate indeed to be so well served,” the judge said. McCallum told the media it could report the outcome of this first trial but then should “fall silent” to prevent any prejudice to the second trial in four months’ time. “I would expect that after reporting the outcome of today that reporting of the matter should fall silent so that the accused can have a fair trial and Ms Higgins can have respite from the intense glare of the media that has been pervasive throughout this trial,” she said. Lehrmann will remain on bail and must notify police of any plans to travel. The jury had been deliberating since last Wednesday and earlier this week told the court it had been “unable to reach a unanimous verdict”. McCallum asked them to continue trying to reach a unanimous decision on Tuesday and the jury has been deliberating since. It had spent another full day deliberating without result and was due to return on Thursday to continue its work. Lehrmann is accused of raping Brittany Higgins in the early hours of 23 March 2019 in Parliament House. He pleaded not guilty to one count of sexual intercourse without consent. Title Bruce Lehrmann trial aborted with jury discharged after outside material brought into jury room Source or hyperlink https://www.theguardian.com/australia-news/2022/oct /27/jury-discharged-in-bruce-lehrmann-case-after-mat erial-entered-jury-room-that-ought-not-to-have Date article was written 27/10/2022 11:38AEDT Key legal terminology - Jury Trial Discharged Juror Jury room ACT supreme court Juror Sheriff’s officer Chief justice Conduct Offence Counsel - prosecutor and accused Fair trial Bail Unanimous verdict Deliberating ‘Pleaded not guilty to one count of sexual intercourse without consent’ Stated cases and/or legislation - R v Lehrmann (No 3) [2022] ACTSC 145 - Crimes Act 1900 (Cth) s 54 - sexual intercourse without consent - ‘a person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.’ - Jury Act 1977 No 18 (NSW) Part 7A s53A Mandatory discharge of individual juror - ‘the court or coroner must discharge a juror if, in the course of any trial or coronial inquest… …the juror has engaged in misconduct in relation to the trial or coronial inquest… …[misconduct is] any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest.’ - Fair trial/procedural fairness Relationship between the media and the court in high profile legal cases Accessibility of the law - with significant Relevant themes and challenges - - amounts of stress and scrutiny from the media, especially with sexual assault cases. The need for law in the operation of society The importance of the rule of law for society specifically independence of the judiciary - Identify the legal issue/s described in the article - Explain how the article relates to syllabus ‘learn about’ dot points in The Legal System topic - Comment on how the content of this article relates to one or more of the course themes and challenges - Evaluate the effectiveness of the law in dealing with the issues raised in each article, and in achieving justice SYNOPSIS: The trial of a sexual assault case between Australian politicians Brittany Higgins and Bruce Lehrmann had to be postponed because of a juror’s misconduct. Against explicit instruction, said juror conducted outside research on the subject matter involved. He was discharged immediately under the Jury Act 1977, and because the judge was unsure of the degree to which the jury deliberation was compromised, the rest of the jury was also discharged. This article relates closely to the concept of the rule of law; the purpose of a jury in a criminal case is to remain an unbiased impartial means that focuses purely on evidence to determine the guilt of the accused. This particular juror went against instructions from the judge and in turn diminished the integrity of the case, opening the verdict to risk of potential bias and lessening the independence of the judiciary. The discharge of the juror ensured that both the complainant and the accused received a fair trial, which is necessary to keep equality under the law. Had no action been taken, the jury wouldn’t have been an unbiased and impartial legal mechanism and objectivity is a major contributor to achieving justice. The postponement of this trial, however, resulted in the abandonment of the case as a whole as it was deemed by psychologists a high risk to the mental health of Higgins. The prolonged amount of time diminished the complainant’s accessibility to the law by creating larger amounts of stress. In this case, the law failed to achieve justice, although necessary to ensure a fair trial. Lyn’s law: NSW to follow other states with ‘no body, no parole’ laws The NSW government will introduce new legislation into parliament this week to strengthen “no body, no parole” laws after former teacher Chris Dawson was convicted of murdering his wife. Dawson, 74, was late last month found guilty of murdering his first wife Lynette Dawson, 33, four decades after she vanished from Sydney’s northern beaches. Her body has never been found. Premier Dominic Perrottet said the government’s proposed bill would mean offenders must co-operate with investigators and disclose the location of remains for any chance of release on parole. “We will make it impossible for offenders who willfully and deliberately refuse to disclose information about their victim’s remains, to be granted parole,” Perrottet said. “Being unable to locate a loved one’s body is extremely distressing and traumatic for the families and friends of victims, and it denies a victim the dignity of being laid to rest appropriately. The proposed reform will mean the State Parole Authority (SPA) must not grant parole unless it concludes the offender has co-operated satisfactorily in identifying the victim’s location. Under the reforms, the SPA must rely on written advice from the Commissioner of the NSW Police Force and other relevant information to determine whether the offender has co-operated satisfactorily to identify a victim’s location. There are believed to be six convicted murderers in NSW prison who could be affected by the proposed legislation changes. The move will bring NSW into line with Queensland, Western Australia, South Australia, Victoria and the Northern Territory, where offenders can be refused parole if they do not reveal the location of a victim’s remains. A petition calling for the “no-body, no-parole” laws to be introduced in NSW was launched last week, in response to the murder conviction of former teacher and rugby league player Dawson. Lynette’s family has issued a plea to Dawson to reveal her location, with her brother Greg Simms expressing the family’s wish to “put her to rest”, following Dawson’s conviction. Justice Ian Harrison, who presided over the judge-alone trial told the NSW Supreme Court he was satisfied the mother-of-two died on or about January 8, 1982 and “did not voluntarily abandon her home”. He found Dawson guilty of murder and said his lies demonstrated a consciousness of guilt. He also found Dawson had “resolved to kill his wife”. Dawson will be sentenced at a later date. The petition for “Lyn’s law” was launched by the Dawson’s former family babysitter, known as BM for legal reasons, on September 12, reaching almost 30,000 signatures in seven days. “While justice has finally been served and Lyn’s truth has been heard there is one more puzzle left to this heart-wrenching story. Where is Lyn?” the petition reads. “Lyn’s family have battled for years to clear her name and have her truth told, but the closure they need would come from being able to put her to rest properly, and they are not alone.” Corrections Minister Geoff Lee said the reforms were modelled on laws in other jurisdictions and would apply to all current and future inmates in NSW to capture convicted offenders who have not yet been considered for parole. “Any offender in prison coming up for parole should really think hard about maintaining their refusal to co-operate with police if they want to retain their prospects of getting parole,” Lee said. Title Lyn’s Law: NSW to follow other states with ‘no body, no parole’ laws Source or hyperlink https://www.smh.com.au/politics/nsw/lyn-s-law-nsw-t o-follow-other-states-with-no-body-no-parole-laws-20 220919-p5bjbg.html Date article was written September 20, 2022 5:00am Key legal terminology - NSW government Legislation Parliament Convicted Found guilty Premier Proposed bill Offenders Investigators Release on parole/granted parole/parole Proposed reform/reform Stated cases and/or legislation - State Parole Authority (SPA) Commissioner NSW Police Force ‘Issued a plea’ Conviction Justice (personnel) Justice (concept) Judge-alone trial NSW Supreme Court Find guilty Sentence/sentenced Consciousness of guilt - mens rea Jurisdictions Convicted offenders Considered for parole - R v. Dawson [2022] NSWSC 552 Crimes Act 1900 (Cth) s18-19A - Murder and manslaughter defined, punishment for murder Crimes (Administration of Sentences) Amendment (No Body, No Parole) Bill 2022 (NSW) Criminal Procedure Act 1986 s132(1) Dawson applied to be heard in a judge-alone trial. - Relevant themes and challenges - Whether justice has been achieved fully, even after sentencing the perpetrator. Laws evolving to reflect society’s values, and keep consistency with successful legislation in other jurisdictions - ie. the development of law as a reflection of society SYNOPSIS - Identify the legal issue/s described in the article - Explain how the article relates to syllabus ‘learn about’ dot points in The Legal System topic - Comment on how the content of this article relates to one or more of the course themes and challenges - Evaluate the effectiveness of the law in dealing with the issues raised in each article, and in achieving justice After former high school teacher Chris Dawson murdered his wife Lynette and refused to cooperate with the police to provide the location of her body, the NSW government introduced and passed a ‘No Body, No Parole’ bill. This bill ensures that convicted murderers who refuse to inform the police of the whereabouts of their victim’s bodies are not eligible to be granted parole. This article heavily relates to the importance of law reform after society has formed new concepts of justice. It also highlights the role of the media as a reform agency; originally a relatively unknown and obscure case, when the Teacher’s Pet podcast came about, the public collectively became invested in the whereabouts of Lynette, clearly showing the inextricable relationship between the legal system, society, and media outlets. Chris’s refusal to cooperate with authorities effected public outrage, forcing the legal system to keep up with society’s expectations of the repercussions placed on Mr. Dawson. Justice had been achieved to an extent through the conviction of Chris, however without the ‘No Body, No Parole’ bill, closure for Lynette’s (and future murder victims’) family wouldn’t have been achieved. A potential limitation, however, is that someone in future could be wrongly convicted and wrongfully imprisoned for far longer - but trust in the legal system’s standard of proof in criminal cases is crucial. The values, ethics, and needs of society were reflected in the passing of this bill and therefore the law reform was successful in holding accountability and achieving justice for victims and their families. High Court decision on WA law that allows indefinite detention for ‘serious offenders’ shocks human rights lawyers The High Court has denied a constitutional challenge against a West Australian law that can keep people convicted of relatively minor crimes in indefinite detention. The decision, handed down in a written judgement on Wednesday, has drawn outrage from human rights lawyers who say the legislation is unconstitutional, discriminatory and disproportionately affects First Nations people. Noongar man Peter Garlett, 28, lost his appeal to the High Court against the High Risk Serious Offenders Act 2020, which broadened WA's powers to put what it called the state's "most violent criminals" behind bars indefinitely. Garlett was deemed a "serious offender" under the act and put in indefinite detention after he had served a three-and-a-half year sentence for a robbery in 2017. He pretended to be armed with a handgun during the burglary and used threats while stealing a necklace and $20 cash. It was his first offence as an adult. Garlett's appeal argued that the use of the act to detain him indefinitely was unconstitutional. Court says law is constitutional The High Court majority concluded that robbery was a serious enough offence to be included in the act and endorsed the existing process, where judges decide when it should be applied based on the risk of reoffending. "It is reasonable to assume that, by fixing a maximum penalty of life imprisonment in some circumstances, the legislature apprehended that the harm inflicted by a robbery may be very grave," the written judgement said. "It is always for the court to determine whether there is an 'unacceptable risk' that the offender will commit such an offence [again]." Roe Legal, which represented Garlett, said he was released from detention earlier this year but remained under a supervision order and curfew as a serious offender. "Roe Legal is disappointed in the result and surprised that the court has taken this approach," a spokesperson said. "It has immediate concern for the mental health and wellbeing of prisoners facing indefinite detention and urges the Department of Corrections to monitor their safety closely." The spokesperson said the matter could be referred to the United Nations Human Rights Committee. "The finding is in our view inconsistent with Australia's obligations under the International Covenant on Civil and Political Rights to protect the liberty of citizens from arbitrary detention," they said. Discriminatory element Hannah McGlade, a Noongar woman and human rights lawyer who assisted with the High Court challenge, said the judgement was shocking. "That's an erosion of fundamental human rights and civil rights and obviously prone to the risk of racial profiling," she said. Passed in 2020, the High Risk Serious Offenders Act expanded the scope of a similar law that applied only to dangerous sex offenders. The change broadened WA's powers to put the same restrictions – including indefinite and continued jail time after a person had served their sentence – on offenders who committed other offences including murder, stalking and robbery. Dr McGlade, an associate professor of law at Curtin University and an expert member of the UN Permanent Forum for Indigenous Issues, said the law went against a national commitment to reduce Indigenous incarceration in Australia. "It's very well known that Aboriginal people have a cohort for this offence related to poverty," she said. "It certainly was going to be increasing the Aboriginal incarceration rate and potential for further deaths in custody." She said the matter should now go to the UN. WA welcomes decision WA Attorney-General John Quigley said in a statement that the government welcomed the High Court's decision. "Western Australians have the right to feel safe in their communities and these laws enable courts to keep the most dangerous criminals behind bars in line with the community's expectations," Mr Quigley said. But the National Justice Project, which backed the Constitutional challenge, echoed Dr McGlade's concerns that the law unfairly discriminated against First Nations people. Principal solicitor George Newhouse said it was discriminatory because it required prior imprisonment, convictions and social disadvantage to be considered when making a decision about whether to indefinitely detain a person or put conditions on them. "Instead of weighing them down with a ball and chain, the WA government should provide people leaving the criminal justice system with the support they need to integrate back into the community," Mr Newhouse said. "Why continue to punish them if they have already done their time?" 'It gutted me' Derek "Digger" Charles Ryan was a third party in the High Court case, having also been placed under a serious offender order after serving two jail sentences amounting to more than 12 years for robbery. He has been released but is restricted under a supervision order and says he is devastated by the decision. "It gutted me," Ryan said. "That was my knight in shining armour, that was my emotional rescue — I was waiting for the order to get lifted." He said being put under a curfew as a serious offender has deeply affected his mental health and ability to thrive after being released from jail, because it essentially predicted he would commit a crime when he had already served his sentence. Ryan also believes the law has the potential to be abused. "It makes me angry, it makes me depressed," he said. "Anyone who gets released is a danger, is a risk. "They can't read minds." Title High Court decision on WA law that allows indefinite detention for ‘serious offenders’ shocks human rights lawyers Source or hyperlink https://www.abc.net.au/news/2022-09-07/high-court-d enies-challenge-to-serious-offenders-act/101416110?u tm_campaign=abc_news_web&utm_content=link&ut m_medium=content_shared&utm_source=abc_news_ web Date article was written 07/09/2022 7:45pm Key legal terminology - High court Constitutional challenge Law Convicted Minor crimes Indefinite detention Unconstitutional Discriminatory ‘Lost his appeal’ Stated cases and/or legislation - Powers Serious offender Offence High court majority Judge Maximum penalty Life imprisonment Legislature Harm inflicted Written judgement Detention Supervision order Curfew Prisoners Indefinite detention Department of Corrections Arbitrary detention Human rights lawyer High Court challenge Human rights Civil rights Passed Continued jail time Sentence Offenders Murder Stalking robbery - Garlett v. the State of Western Australia International Covenant on Civil and Political Rights - ‘the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.’ High Risk Serious Offenders Act 2020 allows for the court to indefinitely incarcerate people who commit serious offences who they deem to be of a high risk of recidivism. Crimes Act 1900 s94 - Robbery or stealing from the person - ‘whoever steals any chattel, money, or valuable security from the person of another shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years.’ - - Relevant themes and challenges - Restorative vs punitive justice - - Discrimination against First Nations people in the legal system/treatment of aboriginal and indigenous peoples. Conflicting ideas about what society’s expectations are regarding the maintenance of order in society The need for law in the operation of society The importance of the rule of law for society The relationship between different legal institutions and jurisdictions The development of law as a reflection of society Influences on the australian legal system - Identify the legal issue/s described in the article - Explain how the article relates to syllabus ‘learn about’ dot points in The Legal System topic - Comment on how the content of this article relates to one or more of the course themes and challenges - Evaluate the effectiveness of the law in dealing with the issues raised in each article, and in achieving justice SYNOPSIS The High Court of Australia has denied an appeal by convicted criminal Peter Garlett regarding a Western Australian law being unconstitutional and allowing discrimination against First Nations peoples. Currently, the state’s court is able to use its own discretion to decide if a convicted criminal has a high chance of recidivism, and sentence them to indefinite detention after their original sentence. This article relates to the need for balance between punitive and restorative justice; the law’s purpose is to maintain order in society, and with the public’s increasingly progressive values regarding rehabilitative justice, supported by various studies across the globe, the law seems to not be fully reflective of contemporary views. A challenge in the legal system is the disproportionate rates of Indigenous incarceration, which is enabled by this law. Garlett’s spokesperson points out that the decision allows for discrimination against First Nations peoples; in today’s society, the majority of Australian judges are white, financially privileged people, who may not be capable of empathising with Aboriginal struggles. It is hence inevitable that racial profiling will occur to some extent, undermining the equitability of the justice system and opposing the rule of law as not everyone is equal under the law. The High Court, however, holds their decision based on trust that the WA court will be objective in their decisions. They attempt to maintain societal order, even if it isn’t equitable in all cases. Justice has been achieved with this decision as it evidently does not create just outcomes in the community and the rule of law isn’t followed as the decision opens susceptibility to discrimination.
