The Appeals process in the Court System

Here in WA in the last 10 months we have had 2 high profile cases with one been dismissed on appeal because the accuser didnt wish to testify for a THIRD time.

http://www.parliament.wa.gov.au/hansard/hans35.nsf/(Lookup+by+Page)/20043006044607?opendocument

Sexual assault and child abuse are among the most serious crimes that can be committed and, quite rightly, always attract a great deal of community attention. Members will be acutely aware of the recent events regarding Mr Gary Narkle. Mr Narkle, a serial sex offender, was released from prison in April this year when an appeal against his conviction found that the trial judge had made a technical error in directing the jury. Understandably, the young complainant in that case felt that she was unable to give evidence again. Therefore, without a criminal conviction, Mr Narkle had to be released into the community. In my view, justice was not done in this case, or for the other women and young people who came forward to express their concerns to me based on their experiences of Mr Narkle.
These events highlighted to me that although the physical and psychological effect of being violated in this way is immeasurable, the factors that can subsequently add to that effect are well known and need to be addressed. For example, as occurred in relation to Gary Narkle, many alleged victims of sexual assault fail to pursue any charges to the conclusion of the criminal justice process because of the added trauma of having to deal with that process. Worse still, it is widely accepted that many victims fail to even report sexual assault allegations

The second one has just had its SECOND appeal dismissed and the person concerned has been jailed for a period of 4 years or more. The accused has stated he will appeal this decision forcing his accuser to face court for a third time.

http://sundayterritorian.com.au/common/story_page/0,7034,11405977%5E1702,00.html

Houghton's lawyer Joe McGrath indicated his client – a father of three – intended to appeal against his latest conviction.



Before everyone starts I agree everyone has the right to take their case as high as they can take it. What I dont agree is if the appeal is based on Legal argument and not evidence then why cant the transcripts be used by the appeal judge when making his decision on a Legal matter?

Why does the accuser need to face and recount their story again and again.

Sure I know I will be accused ( once again ) of been naive but surely we cant use the court system in that manner?

And no unlike some I havent had a great deal to do with the court system

The legal system is a far cry from what it was intended to be back in ye olde days whence it was first established. It'll only get worse in the future.

PerthCrow said:

Before everyone starts I agree everyone has the right to take their case as high as they can take it. What I dont agree is if the appeal is based on Legal argument and not evidence then why cant the transcripts be used by the appeal judge when making his decision on a Legal matter?

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Some legal person will give you a better answer but

At some stage in the appeal process for instance the high court the appeal can only be on be on an aspect of law, and you have to write a submission outlining why you wish to appeal. There is no guarantee that the High Court will here your appeal.

In NSW they are/have enacted legislation to stop this exact situation occuring.

Milne said:

The legal system is a far cry from what it was intended to be back in ye olde days whence it was first established. It'll only get worse in the future.

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Well said Milne.

I'm a firm believer in the notion that the more laws that get made the less justice is done and society as a whole becomes the poorer for it.

evo said:

Well said Milne.

I'm a firm believer in the notion that the more laws that get made the less justice is done and society as a whole becomes the poorer for it.

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agreed

the whole system needs widespread reforms, i'd even advocate removing the right to remain silent, which hinders the process of discovering the truth, which is in effect what the trial procedure is designed to do. Why should the accused be safe from telling their story? It's logical that in most cases an alibi would fall apart in the face of questioning. Also the adversarial system needs a good looking at.. its not who has the most truth, or the best arguments, its really who can hire the best lawyers and discover the best technicalities and nuances in the law that can win a case.
I think a civil law system might also work better than our common law system, which sometimes seems stupid, seeing as you can almost always find some obscure precedent to support your case.

In short, most of the procedures are archaic, designed for the 19th century, and need to be overhauled. It really appalls me when people can claim 'insanity' for a minor mental illness and get manslaughter for murder, or get a lawyer to argue them out of murder, so they serve only 3 years for murdering someone coz they can afford a clever legal team

stormee said:

the whole system needs widespread reforms, i'd even advocate removing the right to remain silent,

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Some states have considered this; Sounds like you want a European magistrate type system.

stormee said:

the whole system needs widespread reforms,

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Okay, lets look at them one by one.

stormee said:

i'd even advocate removing the right to remain silent, which hinders the process of discovering the truth, which is in effect what the trial procedure is designed to do. Why should the accused be safe from telling their story? It's logical that in most cases an alibi would fall apart in the face of questioning.

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That doesn't make much sense at all.

Imagine you've committed a crime. Is any sane individual going to shy away from lying under oath to prevent yourself from going to jail??

Now, imagine that you are innocent, but don't want to comment for whatever reason- and there are plenty- maybe the real perpetrators are threatening you, maybe you have anger management issues and your lawyer has advised against you taking the stand, whatever. The jury is going to draw their own inferences from someone not commenting, which is why most accused will tell their side of the story.

So why remove the right to remain silent? Any person who is guilty is not going to be fazed by lying under oath, so there is absolutely no benefit from requiring them to speak. There are, however, a lot of downsides- basically, requiring an accused to testify opens up the whole pandora's box of confessions under duress, and another rather nasty problem- say someone is accused, testifies as to their innocence and is eventually found guilty, does that mean they will also be guilty of contempt of court since by implication they're guilty beyond reasonable doubt of lying and saying their innocent?

stormee said:

Also the adversarial system needs a good looking at.. its not who has the most truth, or the best arguments, its really who can hire the best lawyers and discover the best technicalities and nuances in the law that can win a case.
I think a civil law system might also work better than our common law system, which sometimes seems stupid, seeing as you can almost always find some obscure precedent to support your case.

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Adversarial versus inquisitorial is often discussed, both have their merits, but I think the biggest problem with an inquisitorial system is that it allows the judge to bring out what he thinks is the 'whole story'- fine, but Judges are human and form biases just like anyone else- the questions they ask and don't ask to the accused and witnesses will have a serious effect on the outcome of the trial- far better to have the current system where either party has an advocate paid to as biased as possible in their favour, and 'tell their side of the story' to the best of their ability- the result is ideally that every possible argument emerges where in an inquisitorial system a judge is probably going to silence one set of arguments.

As for a civil law system, hang on- you're against sides being able to discover the best technicalities and nuances, but in favour of all cases being decided on the basis of legislation? The thing about case law is that whilst you can often find a case which supports your argument, if you follow the appeals structure there's nothing stopping the high court from overruling it or more likely distinguishing it in some way from the present situation because they don't think the result is fair- in the end, a case has as much weight as you'd expect it to have on the basis of the jurisdiction and time period which it came from.

By contrast, a civil law system is pretty hard for courts to weasel around if it produces an unfair result in any one instance. Furthermore, it tends to be narrow in its scope because legislators can very rarely contemplate future developments. I think the current balance of criminal codes backed up by abundant common law is pretty much right.

stormee said:

In short, most of the procedures are archaic, designed for the 19th century, and need to be overhauled. It really appalls me when people can claim 'insanity' for a minor mental illness and get manslaughter for murder, or get a lawyer to argue them out of murder, so they serve only 3 years for murdering someone coz they can afford a clever legal team

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Yes it really must have sucked.. did you have a specific instance or are you just going on what happened on law and order? Insanity isn't easy to prove- its one of the rare instances where the onus of proof actually falls on the accused rather than the prosecutor, so whilst anyone can raise the defence of insanity, convincing the court of it is pretty tough.

Its fashionable to bag the legal system in very general terms without really thinking it through, but a lot of the criticism doesn't have any real foundation.

Back to the initial point of this thread, i think its very true there are some problems with the way sexual assault cases are dealt with. In general, the idea that an accused should be allowed to confront and cross-examine their accuser is a sound one- if you're going to be put away on the basis of what someone is saying, you should be able to question their testimony.

In rape cases, its a bit trickier since assuming a victim is telling the truth its a pretty traumatic experience for them- certainly it seems logical that appeals process should be tailored to make things a lot less traumatic for a victim, using video testimony and pre-recorded statements whenever possible.

theres heaps of proof, but one case which i a bit about is the one a few years ago, 1997 i believe, in the ACT... Joe Cinque... i'm readin a book about it at the moment, thats one of the things that've got me fired up a little bit. his girlfriend murdered him by injecting him with heroin after sedating him with 10 rohypanol, and then got manslaughter because it was determined by psychiatrists hired by the defence that at the time she was not in a totally stable mental state, ie she had some type of depressive illness.
It just doesnt seem right that you can get away with murder, or nearly get away with it, because you have a slight mental illness. Murder is murder.I don't feel you cant justify it for any reason.

stormee said:

Why should the accused be safe from telling their story?

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An accused has every right to tell their story. In most cases it is prudent not to though, for the reasons you have outlined. I'm far from a bleeding heart but the right to silence must stay. If I were to be accused of a crime, it shouldn't be up to me to prove I didn't do it. You accuse me, you prove it. Without my help.

stormee said:

theres heaps of proof, but one case which i a bit about is the one a few years ago, 1997 i believe, in the ACT... Joe Cinque... i'm readin a book about it at the moment, thats one of the things that've got me fired up a little bit. his girlfriend murdered him by injecting him with heroin after sedating him with 10 rohypanol, and then got manslaughter because it was determined by psychiatrists hired by the defence that at the time she was not in a totally stable mental state, ie she had some type of depressive illness.
It just doesnt seem right that you can get away with murder, or nearly get away with it, because you have a slight mental illness. Murder is murder.I don't feel you cant justify it for any reason.

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Who are you mad at, though, the psychiatrists or the court system?

Murder is Murder, although specifically, murder is unlawfully killing someone with the intention of at least causing grievous bodily harm.

It makes perfect sense that insanity should downgrade the severity of the offence if it's established, since it messes up the intention aspect. If you're not in your right mind, its hard to conclusively argue that you definitely intended to seriously harm someone. If you didn't intend to cause serious harm, you didn't murder them, period.

Now whether the person's mental capacity is so diminished by the mental impairment that the offence should be downgraded is a question of fact for juries to decide- if they get it wrong on the basis of testimony, the problem is with the psychiatrist who made an incorrect report- judges and juries aren't qualified to decide whether or not someone was sane, all they can do is go on the evidence presented. A Judge is paid to give an opinion on how the law applies to a particular fact situation- if those facts are incorrectly presented, or the jury decides to accept one version over another that's hardly the Judge's fault.

For every anecdote where someone got off easily, there's a heck of a lot where the insanity defence is the right thing to do- I read a case a couple of years ago where a 19 year old kid from Mandurah had severe schizophrenia, and ended up killing his step father because the voices in his head told him that his step-father was raping his mother and had bitten off her nipples.

He's presumably still in a mental hospital, but minus that defence he'd probably be in a maximum security prison, and I don't think you need much imagination to know what would happen to a 19 year who doesn't know what's going on around him in prison.

Mead said:

Now whether the person's mental capacity is so diminished by the mental impairment that the offence should be downgraded is a question of fact for juries to decide.

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Yeah true, cept this was in the ACT and it was a trial without a jury- a judge was the only jury in the trial. Actually i spose this isnt a good example of the system at work is it haha, sorry.

But i sortof agree with what you're saying mead, i just think the system can lead to mistakes. I'm probably wrong though, because it seems that any mistake is sensationalised by the media, therefore in reality it probably doesnt make as many mistakes as i would think that it does, just the ones that it does make are highly publicised. I still think that it could be made more efficient though, ie. removing committal hearings. Surely you'd agree that these are a waste of court resources...

I think i just posted before for arguments sake haha, but now i cant be bothered to keep up the argument, coz ive got a stupid exam tomorrow and i need to study.

stormee said:

. I still think that it could be made more efficient though, ie. removing committal hearings. Surely you'd agree that these are a waste of court resources...

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Just on that point why are people geting so worked up over the ''hookes '' case when its only a committal.

Second point..if its a commital and all this evidence is coming out....why cant he be found guilty or not at this time?

Just to let you all have an update.

Gary Narkle has been charged with 3 counts of non consensual sex with a 16 year girl. These events happened last Friday night

Good one Mr Lawyer

Qsaint said:

Some legal person will give you a better answer but

At some stage in the appeal process for instance the high court the appeal can only be on be on an aspect of law, and you have to write a submission outlining why you wish to appeal. There is no guarantee that the High Court will here your appeal.

In NSW they are/have enacted legislation to stop this exact situation occuring.

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The transcripts are in the appeal books - it is part of the Rules of Civil Procedure

PC, this post is intended to be in answer to your original question. I have not had a chance to read the entire thread. Apologies if this has already been covered.

Also, I'm not aware of the apecifics of the cases that you cite, so I'll be talking a bit more generally.

On what you say about the first case, it sounds that a third retrial was ordered by the Court of Appeal. If that's correct, the situation arises not because the victim had to testify a third time in the appeal but in the retrial. The appeal would have been on matters of law (ie the Judge's error in summing up). The appeal would not have, in itself, been a retrial. As the Court of Appeal held that there had been an error of law, it could have done one of two things, reversed the decision at trial (acquitting the defendant, in which case the rules of double jeopardy would have prevented the defendant from ever again being tried for that alleged crime) or ordering a retrial.

As it took the second option and the Court of Appeal found that the jury's decision was impeached by the Judge's error, a new jury needed to be empannelled and all evidence had to be put again. Unfortunately for the victim, this includes their evidence. However, this is because a jury is supposed to be able to determine for itself the correct verdict after seen all the evidence for itself and following each side being able to cross-examine the witnesses. Transcripts are a poor substitute for this as you lose certain nuances from the written word.

I hope that this answers your initial question. On the debated over the merits of the adversarial v inquisitorial justice system, all I will say is that that debate has long raged amongst legal scholars. It is one that I don't feel that I have enough knowledge of all the arguments to add to.

MrMeaner said:

PC, this post is intended to be in answer to your original question. I have not had a chance to read the entire thread. Apologies if this has already been covered.

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Cheers... just frustrated at a system that KNOWS a person is guilty and NOW has allegedly committed a further act. Where if he was in jail he wouldnt have a chance