Tuesday, November 07, 2023

Why rule of law can’t be sacrificed to secure conviction

Does anything justify putting innocent people in jail? That is the big risk when we drop standards

Why do so many cases of sexual abuse fail? Many fail because they were weak cases in the first place that were pursued only for reasons of political correctness.

A case that boils down only to she says/he says should not be prosecuted but if the allegation gets publicity few prosecutors would refuse to prosecute -- lest they be accused of covering up an injustice

The Higgins/Lehrman case was an example of that, and prosecuter Drumgold was an example of a politicaly correct prosecutor. In the end, Drumgold was the only one penalized, which was justice of a sort

Improving outcomes for sexual assault victims will not be achieved by diminishing the fundamental foundations of the rule of law.

As Walter Sofronoff KC recently observed, when it comes to addressing allegations of sexual assault, there are two separate but parallel systems operating: the victim support system and the criminal justice system.

In the former, accepting without challenge what a victim asserts, using language such as “victim-survivor”, “her truth” and “believe all women” often will be necessary and appropriate in that therapeutic environment to provide the best emotional, financial and other supports needed by victims of sexual violence.

However, when an allegation of sexual assault leads to a criminal investigation or prosecution, the fundamentals of the criminal justice system must be maintained.

This includes the presumption of innocence, the obligation of the prosecution to prove a criminal allegation beyond reasonable doubt and the right of an accused to remain silent.

Much recent debate in this area has ignored the significant differences and purposes of these systems and focused on raising low conviction rates, which are often quoted as being about or below 20 per cent.

These statistics generally ignore all the allegations resolved by pleas of guilty.

Proposals have included better education (and re-education) of judges and lawyers, abandoning trial by jury and standing up specialist sexual assault courts staffed with specially trained judges and advocates where (presumably) more guilty verdicts will be returned.

Such “reforms”, even if made with good intentions, would pave the way to a drastic erosion of the rule of law in this country.

If two convictions for every 10 trials is unacceptable, what number would be deemed acceptable? Fifty per cent? Eighty per cent?

Presumably to those who subscribe to the “believe all women” philosophy in the criminal justice system as well as in the victim assist­ance space, anything less than 100 per cent would be unacceptable.

Which, then, of those three or eight people found not guilty in this sample should have been found guilty? And why? Because it is implicit in these proposals that if we are to achieve some arbitrary acceptable metric, like a 50 per cent conviction rate, then at least two or three more not guilty verdicts should’ve been guilty verdicts.

Eighteenth-century jurist William Blackstone wrote, “It is better that 10 guilty persons escape than that one innocent suffer.” The principle behind this statement finds voice in concepts such as the presumption of innocence, and guilt beyond reasonable doubt.

Do we as a liberal democratic society still subscribe to this principle? Or are we content to allow some innocent people to suffer the consequences of a wrongful conviction (and their loved ones and dependents necessarily as well)? Do we relax or abrogate the presumption of innocence or the standard of proof only in sexual assault prosecutions or across the board?

Is this visceral (and justifiable) desire to better recognise the failures of the past, to acknowledge and address the alarming levels of sexual and domestic violence and abuse in this country, justify us essentially adopting a warlike footing where collateral damage is an unfortunate but necessary consequence of winning the war? For some advocates the answer appears to be a resounding yes. Presumably though, qualified to the extent that they, or their partner, father, brother, relative, friend, colleague etc isn’t among the putative innocents to be subjected to this form of collective punishment.

Experienced criminal lawyers across this country lament that prosecutors will rarely (if ever) decline to prosecute an allegation of sexual assault. Recently the media has reported examples of sexual assault prosecutions that, on any objective assessment, were doomed to fail.

While there may be cases of juries deciding the case having relied on rape myths – such as a genuine victim would say no or fight back or complain immediately, or a genuine victim would not go out in those clothes or to those places – I suggest these are rare.

Modern juries give little credence to such ignorant and outdated propositions. Judges are now particularly vigilant to identify and direct juries from engaging in such reasoning.

There are certainly cases where police could and should have done more thorough investigation and where a failure to secure crucial evidence may well have led to an acquittal. But the most significant factor in explaining why we have such low conviction rates among sexual assault prosecutions is that prosecutors insist on running cases that have no reasonable prospect of succeeding.

“Let the court decide” is an all too familiar refrain from prosecutors around the country who are not prepared to make the difficult decision not to prosecute an allegation of sexual assault even when it is apparent there is no realistic prospect of proving the case beyond a reasonable doubt. Whether this is because of a fear of being criticised by a vocal complainant, interest group or the media is difficult to know.

Not proceeding to prosecute a particular allegation of sexual assault should not and does not have any impact on that complainant’s capacity to receive support from victims of crime services. It does not mean the prosecutor does not believe the complainant. It is simply a consequence of the obligation to prosecute only cases that have a reasonable prospect of succeeding. Even assuming there is a public interest in prosecuting every allegation of sexual assault, the overriding obligation remains not to prosecute any person on a charge unless there is a reasonable prospect of obtaining a conviction.

Every jurisdiction has some variation of the “reasonable prospects” test. In the ACT section 2.4 of the Prosecution Policy provides: “The decision to prosecute can be understood as a two-stage process. First, does the evidence offer reasonable prospects of conviction? If so, is it in the public interest to proceed with a prosecution.

In any 10 sexual assault prosecutions at least four of those 10 cases are pursued without any reasonable prospects.

Apart from imposing significant financial and emotional tolls on the accused person, the prosecution of these cases also means the complainant will go through an unnecessarily stressful and traumatic trial process.

In addition, it’s likely at least one of the remaining six cases might have been successful if police had undertaken a better investigation. On this analysis, three of the six cases that met the reasonable prospects test would have resulted in guilty verdicts – giving a conviction rate of 50 per cent. A more than doubling of the current rate without resorting to re-education camps for lawyers and judges, specialist tribunals or abolishing juries.

Higher conviction rates in sexual assault prosecutions can be achieved without entering into a Faustian-like pact with the devil; in this case a bargain in which the soul of the rule of law is sold into damnation on the promise of higher conviction rates.


Greens in Senate walkout over Albanese government’s Israel response

The Greens have accused the Albanese government of “being complicit in the massacre of innocent Palestinians” and “aiding and abetting Israel”, after the party staged a free Palestine protest in the Senate chamber.

Attempting to ratchet up pressure on the government to “show some guts” over the Middle East conflict, Greens deputy leader Mehreen Faruqi demanded Labor endorse the United Nations’ call for Israel and its allies to agree to an immediate ceasefire in Gaza and “condemn Israel for its war crimes”.

In an attack the Jewish community said showed the Greens to be the enemies of peace, Senator Faruqi said: “History will judge the Labor Party and the Labor government for staying silent, or even being complicit in the massacre that is happening in Palestine at the moment. History will remember them as warmongers, history will remember them as aiding and abetting Israel in the massacre of Palestinians. And the people will not take kindly to it.

“What we are seeing now, we have not seen for many years, the way that thousands of innocent people are being killed indiscriminately, the way that families are being blown up to bits, whole families are being blown up to bits by the bombing of Israel. That’s what we want to stop.”

Trade Minister Don Farrell, who represented Anthony Albanese in the upper house on Monday with Senate leader Penny Wong in Beijing, said innocent civilians should not pay for the horrors perpetrated by Hamas.

“Of course we have all witnessed devastating loss of innocent life in the Middle East that all started with the attack by Hamas on innocent civilians in Israel. We as a government have affirmed Israel’s right to defend themselves after that horrific attack,” Senator Farrell said.

“We also said this, I saw the Foreign Minister (Senator Wong) reiterate that this weekend, that it also matters how Israel responds to this completely unjustified attack by Hamas. This means that Israel must observe international law and the rules of war.

“Nobody wants to see innocent lives lost in this terrible set of circumstances. And it matters that innocent civilians should not pay for the horrors perpetrated by Hamas. And it also matters for Israel’s own security, which faces grave risk if this conflict spreads and I think we’ve already seen over the weekend the potential that it’s spreading in the north and in the east.”

Executive Council of Australian Jewry co-chief executive Alex Ryvchin said the Greens’ inability to condemn the mass atrocities of October 7 “without attempting to justify crimes that no decent person would ever justify, destroyed what little human rights credentials they had”.

“The Greens have shown themselves to be the enemies of peace and launderers for antisemites at home and murderous thugs abroad,” he said.

“Their continued patronage of anti-Israel rallies with their genocidal chants and incitement to violence has endangered Australian Jews and our society. They pose as pacifists but they know that a ceasefire will hand victory to Hamas and encourage more jihadism in the West.”

Greens foreign affairs spokesman Jordon Steele-John said his party had repeatedly condemned the acts of terrorism perpetrated by Hamas last month because of a “shared commitment to humanity”.

During Senate question time, Senator Faruqi made a statement about the government’s “heartless, gutless, powerless” response to what was happening to Palestinians before raising her fist and declaring: “Today, we bring the people’s protest into parliament. Free, free Palestine.”

She then left the chamber, followed by her colleagues.

The health ministry in the Hamas-run territory said at least 9770 people, mostly civilians, had been killed in more than four weeks of war, sparked by a terrorist attack in Israel on October 7 that left more than 1400 dead.

The Prime Minister has endorsed Israel’s right to defend itself while also expressing concern for Gaza civilians.

Six of Australia’s former prime ministers - every living leader except Paul Keating - co-signed a letter last week affirming their joint stance on the war, expressing their support for Israel and condemning Hamas for the October massacres.

The letter called for an end to anti-Semitic hate speech and endorsed a two-state solution as the basis for “long-term lasting peace between the Israeli and Palestinian peoples”.


Many on the Left excuse or relativise the barbaric savagery of the Hamas terrorists who run Gaza

Andrew Bolt

The war against Israel has ripped the mask off the Left. I’ve never seen such naked hatred of Israel and Jews, most of it justified by lies and the Left’s perverted new ideology.

But no wonder, when Jews and Israel tick every box for the Left’s favourite villains. Most obviously, the Jews of Israel are too white for the Left, whose identity politics says white is the colour of oppression.

They’re also too successful, because the Left’s new victim politics says the “marginalised”, like Palestinians, are hero victims, and never victims of their own toxic choices.

What’s more, the Jews of Israel are also too rich, since the Left still believes the Marxist lie that riches are what you steal, not create.

The Jews are even now damned as “colonialists” – the West’s ultimate sin in the Left’s catechism.

True, Jews were indigenous to Israel for many thousands of years before Islam was invented, but history is now what the Left invents, not records.

But one more bit of ideology seals the Left’s case against the Jews. Noticed how fiercely collectivist, or tribal, the Left is now? How quick to dismiss personal responsibility?

You see it right now. Many on the Left excuse or relativise the barbaric savagery of the Hamas terrorists who run Gaza and on October 7 butchered 1400 Jews, even mutilating parents in front of their children, raping women before executing them, beheading victims and burning babies alive.

This was something so profoundly evil that it breaks history’s chain of cause and effect, meaning this war with Hamas started on October 7, not in 1948. And it was started by Hamas.

But not to the tribal Left. What Hamas did “didn’t happen in a vacuum”, blathered Antonio Guterres, the United Nations’ idiotic secretary-general, as if the terrorists were just impersonal dominoes tipped over by history’s finger, not individuals making their own moral decisions – ones we must damn.

And that’s one more strike against the Jews. To many on the Left, they caused their own murder.

The Greens are the clearest example of this moral depravity of the Left. I don’t mean just the most extreme Greens, such as race-baiting Senator Mehreen Faruqi, wearing her Palestinian keffiyah to parliament to rant at Israel.

Worse, even the most seemingly reasonable Greens now fall for the ludicrous spin of Hamas.

Take Senator David Shoebridge, the Greens’ defence spokesman, who last Thursday savaged Israel for bombing a Hamas military compound sheltered between a mosque, clinic and school in what Hamas still calls a “refugee camp”, although it’s now another concrete suburb of Gaza City.

Shoebridge accepted Hamas figures for the dead, and raged: “Possibly up to 200 civilians, the majority of them women and children, were killed in order for the IDF to kill one identified target … one targeted terrorist.”

What an idiotic scenario. Even if Shoebridge won’t believe the Israeli Defence Forces, which claims it killed not just Ibrahim Biari, commander of Hamas’s Central Jabaliya Battalion, but “approximately 50” of his terrorists, how can he believe the Hamas version instead?

What odds that one of Hamas’s most senior terrorists in one of its biggest terrorist bases is surrounded in wartime by 200 civilians, mostly children and women, but not one fighter?

It stuns me that so many of the Left, particularly journalists, still believe Hamas’s wild claims and often inflated casualty figures. Why do they assume terrorists who gleefully burned alive families of Jews would scruple to tell a lie?

Yet even Prime Minister Anthony Albanese fell for the Hamas lie that hundreds of people at one Gaza hospital were killed by an Israeli bomb, saying he condemned any “targeting of civilian infrastructure, including hospitals”. In fact, it was a Palestinian rocket that hit not the hospital but a car park, killing not hundreds but reportedly dozens at most.

It’s now the same story, with reporters claiming Israel killed many Palestinian civilians when it hit an ambulance, with Guterres declaring himself “horrified”.

But Israel says Hamas used that ambulance to transport terrorists, as it often does. Even Mahmoud Abbas, president of the Palestinian West Bank, years ago claimed: “The Hamas leaders … fled to the Sinai (in Egypt) in ambulances, leaving their people behind to be slaughtered.”

Hamas even hides a key command base inside Gaza’s biggest hospital, Al-Shifa.

This is why I can’t rule out anti-Semitism when Leftists repeat the propaganda of these lying Hamas butchers, while sneering at the claims of Israel.

Their wilful gullibility suggests their default position is that Jews are the liars and murderers, and Hamas their truthful victims – just as the Left’s new ideology decrees.


Assault on farmers, fishers and foresters will only harm the environment

Governments across Australia are forging ahead with their attacks on farmers, fishers and foresters, with the latest blow aimed against the Murray-Darling irrigators after the federal government recently passed legislation through the lower house cutting their water allocations.

The inevitable result of such legislation will be a fall in food and fibre production. In addition, the east coast Barramundi gillnet fishery is to be phased out by 2027, and two major agricultural dams in Queensland (Hells Gate and Urannah) have been shelved as a bribe to delay UNESCO ­declaring the Great Barrier Reef endangered.

The Queensland mackerel fishery was cut by 70 per cent in July, the Victorian hardwood forestry industry is facing closure in the next few years, and the West Australian hardwood forestry industry will go next year. As for the future, there is also the push for low-emission agriculture as part of Australia’s net-zero pledge. This is targeting methane emissions from livestock and the supposed problem of nitrogen in fertiliser.

But damaging these industries perversely increases environmental harm. For example, the continuously tightening regulations on Australia’s fish catch resulted in Australia becoming a net importer of seafood in 2007, and we now import well over 60 per cent of our seafood. By importing fish from countries such as Thailand that have far less strict environmental guidelines, damage from overfishing is far more likely.

Similarly, restricting or banning hardwood forestry simply means we must import from countries where sustainable forestry, which has been practised in this country for decades, is merely a dream. There is also a major environmental and biosecurity risk with importing fish and timber from overseas. The 2016 outbreak of white-spot disease in prawns is a good example of this.

Sadly, the rationale for most of these assaults on agriculture is based on poor quality-assured science. For example, cuts in Murray-Darling irrigation water are intended in part to allow more freshwater to reach Lake Alexandrina at the mouth of the river in South Australia. It is claimed the lake needs more water or it will go saline – like an estuary. But the lake was salty until the 1930s when the dams were built at the mouth of the Murray to stop the salt coming in from the sea. So, farmers are forced to cut water consumption partly to maintain a fiction that the lake is naturally, and should always be, freshwater.

Similarly, it was claimed that the Hells Gate and Urannah dams needed to be cancelled to help the Great Barrier Reef. But, if anything, the dams will stop sediment and nutrients reaching the sea – and UNESCO and most of the science institutions have been telling us the sediment is bad for the reef. For some reason, the government and UNESCO now prefer to wash the sediment into the sea.

Equally ridiculous is the promise by federal Environment Minister Tanya Plibersek to restrict fishing in the southern Gulf of Carpentaria, supposedly to protect the Great Barrier Reef, which is 800km away on the other side of Cape York. That is farther than the distance between Sydney and Melbourne.

Plibersek claims this is to protect fish that move between the Gulf and the Great Barrier Reef through the Torres Strait. I suppose that all creatures on Earth are interlinked in some way, but there is no evidence of any problems with the Gulf fishery or of there being a significant ecological link between the Gulf and reef.

After all, for most of the one-million-year history of the Great Barrier Reef, the Torres Strait was a land bridge, so to go from the Gulf to the reef one had to take the long way around Australia. And the reef did just fine.

At least for the Murray-Darling farmers there is one thing going in their favour – rising atmospheric carbon dioxide concentration. It is beyond dispute that most food crops and trees grow much faster in an atmosphere with double the amount of the carbon dioxide – for wheat about 30 per cent faster and they need less water. And no Australian government can cut carbon dioxide concentrations because Australia’s emissions are negligible compared with those of China and India.

Other than that, politically harmful decisions have been based on poor advice from science organisations that have become ideological and hostile to the productive heart of the Australian economy. Not only does this harm the Australian economy but closing down agriculture, fisheries and forestry will simply export jobs and increase environmental costs in other countries. This is NIMBYism on a national scale.

We are witnessing a widening disconnect between the productive rural regions and the city nobility. We need a fresh start, beginning with a review of the science behind agricultural policy.


Also see my other blogs. Main ones below:

http://dissectleft.blogspot.com (DISSECTING LEFTISM -- daily)

http://antigreen.blogspot.com (GREENIE WATCH)

http://pcwatch.blogspot.com (POLITICAL CORRECTNESS WATCH)

http://edwatch.blogspot.com (EDUCATION WATCH)

http://snorphty.blogspot.com/ (TONGUE-TIED)

http://jonjayray.com/blogall.html More blogs


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