Responding to Don Dale: Coming to terms with our irresponsibility as legal practitioners for young people’s experience in detention centres

Mary Spiers Williams1

1ANU College of Law

Legal practitioners have known for some time what young people experience in detention centres. The screening nationally of images of those places and the acts that have taken place was not a revelation to us. But it reverberated in the youth justice arena, shocked us even in our fatalism and again we were confronted by a sense of futility that arises from a belief that we have no power to affect the conditions of custody or prevent children from being detained there. Despite our awareness of the dysfunction of the penal detention centre (from the considerable body of social science research, the evidence of our own perceptions of these places and the instructions of our clients), this information appears to play little part in the formal determination of youth sentencing. The reasons for this are often attributed to the limited power of the judicial arm of government relative to that of ‘Parliamentary sovereignty’.

In this paper, I interrogate this ‘irresponsibility’ and its paradoxical counterpart, the sense of futility. I then examine the cultural constraints that operate on legal practitioners, and in doing so de-fatalise them. Second, I tackle the remaining barrier to taking ‘responsibility’ as legal practitioners and demonstrate how being  responsible  is possible within the existing limits of the legal framework (including the deferral to Parliamentary sovereignty and a proper application of principles of sentencing law): in jurisdictions that have a penal detention centre like Don Dale, I demonstrate how the conditions of detention should always be taken into account as a matter of law, and argue that a court ought only in the most exceptional cases order detention.

In this presentation, I will discuss the first aspect of the full paper, that is, how legal practitioners persist in a condition of ‘irresponsibility’ regarding their role in the detention of children.

Biography

Mary Spiers Williams has diverse experience in the practice and policy of criminal law in NSW and the NT, including being Warlpiri people’s advocate. She continues to work within the legal field as a lecturer at the Australian National University, teaching in core courses of criminal law and evidence law and her  sociolegal courses. She is currently completing doctoral research that explores how the legal field understands that concept of ‘culture’. The thesis is developed using Indigenous and ‘translocal’ methodology and theoretical perspectives, using data derived from field sites in central Australia. The field sites include summary sentencing courts, and as a preliminary step to addressing the larger thesis question, the thesis reexamines sentencing law, identifying some gaps and addresses inconsistencies in sentencing law epistemology.

Redefining legal space? The tikanga of nga Koti Rangatahi

Stella Black1, Alice Mills2*, Katey Thom1, Jacquie Kidd1, Tracey McIntosh3 and Khylee Quince4

1 School of Nursing, University of Auckland
2 School of Social Sciences, University of Auckland
3 Ngā Pae o te Māramatanga, University of Auckland
4 Faculty of Law, University of Auckland

*corresponding author: a.mills@auckland.ac.nz

Māori youth 14-16 years old (rangatahi) are over-represented in police apprehension, conviction and sentencing rates in Aoteraroa New Zealand. Land and resource alienation, the breakdown of tribal and whānau (extended family) social structures, and loss of cultural and spiritual cohesion alongside the imposition of mono-cultural laws, public and social policies continue to perpetuate the poor outcomes experienced by Māori youth. Nga Kōti Rangatahi  (Māori youth courts) are a flaxroots, judicial alternative response to mainstream youth courts, which offer rangatahi the option of having their Family Group Conference plans monitored within a marae (tribal meeting place) setting. The first Kōti Rangatahi was held on Te-Poho-o-Rawiri marae, Gisborne in 2008 and there are now 14 Kōti in operation throughout Aotearoa New Zealand. Principal Youth Court judge, Judge Becroft, has described this court innovation as a way of harnessing the “power of the marae and Māori culture” to change the patterns of Māori offending (Becroft, 2011). Yet concerns have been raised about the transplantation of an adversarial court system into the marae; a culturally significant location and a place to retain and maintain pre-colonial tikanga Māori (laws, values and principles) ways of living and being.

Drawing on observations of several ngā Kōti Rangatahi, this paper aims to explore the tikanga (customary values and practices) of ngā Kōti and its role in court processes and engagement with rangatahi, and the working relationships between ngā Kōti Rangatahi professionals and stakeholders who may operate within the constraints of competing law, policy and philosophy. It will also discuss the place of ngā Kōti in the wider youth justice system in New Zealand.

Biography

Stella Black is of Tuhoe, Ngati Whakaue,Whakatohea, Te Whanau-a-Apanui descent. She is passionate about working with Maori and the complexities of Maori realities as they transect the health, criminal and social justice systems.Alice Mills is a Senior Lecturer in Criminology at the University of Auckland. Her research interests include the role of NGOs in criminal justice, stable housing and prisoner reintegration and problem-solving courts.

Katey Thom is a Senior Research Fellow, Faculty of Medical and Health Sciences. Her research interests focus on the intersection between law, mental health and addictions, including therapeutic initiatives such as New Zealand’s specialist courts.

Abolishing defensive homicide: A step towards populist punitivism at the expense of mentally impaired offenders

M. Ulbrick1*, A. Flynn2 , D. Tyson3

1 PhD Candidate, Department of Criminology, School of Social Sciences, Monash University
2 Senior Lecturer, Department of Criminology, School of Social Sciences, Monash University
3 Senior Lecturer, Department of Criminology, School of Social Sciences, Deakin University

*corresponding author: madeleine.ulbrick@monash.edu

The offence of defensive homicide was abolished in Victoria in November 2014, following a widely held perception that it was being abused by violent men. While primarily associated with battered women who killed in response to prolonged family violence — but who were unable to establish their offending as self-defence — a less publicised rationale underpinning the introduction of defensive homicide was to provide an alternative offence for offenders with a mental impairments not covered by the mental impairment (formerly the insanity) defence. Mental impairments are complex and varied in their nature and symptomatology. Offenders presenting with mental impairments therefore require an appropriate range of legal responses to capture the nuances and appropriate moral culpability of their conduct. Drawing from an analysis of the 33 cases of defensive homicide heard over its 10-year lifespan, this paper contends that the abolition of defensive homicide failed to take into consideration the potential impacts on individuals whose mental conditions are not typically covered by the restrictive mental impairment defence. We further argue that that the decision to abolish defensive homicide was driven by dominant, populist voices, without sufficient understanding of its potential to achieve the aims underpinning its enactment, including providing an alternative offence for women who kill in response to prolonged family violence.

Biography

Madeleine Ulbrick is a PhD Candidate in the Department of Criminology within the School of Social Sciences at Monash University. Her research on homicide offenders with mental impairment has been published in the Melbourne University Law Review.

Narratives of consent in rape trials in Victoria

R. Burgin

PhD Candidate, Monash University, rachael.burgin@monash.edu

The communicative model of consent is premised on the notion that consent should be expressed through actions and/or words and thus is an ongoing process, given in specific circumstances, which can be revoked at any time. This model, implied in the current law governing sexual assault in Victoria and evident in both socially and legally constructed behavioural standards across a range of jurisdictions, stands in stark contrast to historical understandings of consent based on narratives of ‘no means no’, and the assumption that consent is essentially presumed, unless and until it is taken away.

The model of communicative consent has been contentiously heralded as a legal advancement of women’s sexual autonomy, however reporting rates for sexual assault remain low, and convictions difficult to obtain. This paper presents preliminary findings from a research project that traces the ways in which this model of consent has been conceptualised and then translated in practice in legal and social policy. Drawing from a selection of Victorian rape trial transcripts, this paper examines how this standard of consent has been interpreted by legal actors in the courtroom, and the consequences of this on the key parties to the rape, namely the victim and accused.

Biography

Rachael Burgin is a PhD candidate in the Department of Criminology within the School of Social Sciences at Monash University. Her research examines the role of consent in rape trials in Victoria.

The construction of ‘therapeutic’ in the Alcohol and Other Drug Courts of New Zealand

K Thom1* & S Black1

University of Auckland

*corresponding author: k.thom@auckland.ac.nz

This paper will explore the construction of ‘therapeutic’ in the Alcohol and Other Drug Court pilots of Aotearoa New Zealand. Drawing on qualitative research that included courtroom observation, interviews with the court team professionals, and document analysis, the presentation will explore the four strands – Law, Lore, Recovery and Drug Court Best Practice – that we argue are woven together to produce a therapeutic philosophy of the AODTC. Understanding the ‘therapeutic’ as a practical accomplishment in the AODTC, we will illustrate the weaving of these strands with examples grounded in the everyday reality of professionals as they interact within the courtroom. We will then consider how the therapeutic philosophy adopted in AODTCs can be understood within the context of international conceptualisations of therapeutic jurisprudence, as well as the ways in which the AODTCs may be developing organically to reflect the unique cultural, legal, and clinical practices of Aotearoa. The presentation will conclude by considering some of the challenges faced by the professional team that have the potential to disrupt the production of the ‘therapeutic’ in the AODTC.

Evidence of intoxication in Australian criminal courts: A complex variable with multiple effects

L. McNamara

Faculty of Law, University of New South Wales, luke.mcnamara@unsw.edu.au

This paper considers how the effects of alcohol and other drugs are treated by criminal courts in Australia. It analyses appellate court decisions from all Australian jurisdictions and identifies the multiple points at which legal significance is attached to evidence that the accused, the victim or a witness was ‘intoxicated’ at the time of the alleged commission of a criminal offence. Focusing on the rules and principles endorsed by appellate courts in relation to four key ‘sites’ of criminal justice decision-making – the admissibility of police interviews, the credibility and reliability of witness testimony, adjudication on the criminal responsibility of the accused, and determination of sentence for convicted offenders – it shows that the impact of intoxication on the enforcement of the criminal law is complex. There is no single characterisation that can account for the multiple points at which intoxication may need to be assessed, and the divergent ways in which it can impact on adjudication. Depending on a range of site-specific and case-specific considerations, intoxication evidence may expand/contract the parameters of criminal responsibility, and it may yield higher or lower criminal penalties.

Biography

Dr Luke McNamara is a Professor in the Faculty of Law at the University of New South Wales. His current research examines the patterns, drivers, modalities and effects of criminalisation as a public policy and regulatory mechanism, and the criminal law’s treatment of intoxication.

Zero tolerance and drug driving laws

J. Quilter

School of Law, University of Wollongong, jquilter@uow.edu.au

All Australian States and Territories have drug-driving laws which make provision for driving under the influence of alcohol or any other drug as well as to ‘randomly’ test for the presence of ‘prescribed illicit drugs’. While ‘random’ drug road-side testing is equivalent to random breath testing (RBT), unlike RBT which tests for all forms of alcohol and demarcates whether an offence has been committed on the basis of prescribed concentrations of alcohol, drug-road side testing is for mere presence of an illicit drug and usually only for three illicit drugs: cannabis, methamphetamine and ecstasy. Fines and certain periods of license disqualification result from these offences. This paper considers whether there is an evidence-based rationale for the zero-tolerance approach reflected in such laws. This paper also considers the challenges posed for courts in determining guilt and for sentencing in drug driving cases. In a context where state governments and police forces have made major commitments to addressing drug-impaired driving it is critical that current legislative and operational flaws be addressed.

Biography

Dr Julia Quilter is an Associate Professor in the School of Law and a member of the Legal Intersections Research Centre at the University of Wollongong. Her research focuses on criminal law responses to alcohol-related violence and ‘one punch’ fatalities and the law’s treatment of alcohol and drug intoxication.

Criminal histories: Co-offending in property crime in Australia, 1861-1961

L. Vogel1*, A. Piper2

1 Griffith Criminology Institute, Griffith University
2 Griffith Criminology Institute, Griffith University

*corresponding author: l.vogel@griffith.edu.au

Perhaps one of the more robust findings in criminology research is that crime is often committed with others. As a result the phenomenon of co-offending has attracted considerable contemporary scholarly interest. Much of this research has focused on quantitatively examining the correlates or predictors of co-offending. Such research suggests, for instance, that age, gender, and offence type influence the odds of co-offending whereby co-offending is more common in female offenders, in the committal of property offences, and declines as offenders age. However, what can we learn about co-offending by exploring its past?

The Australian Research Council funded Prosecution Project offers a unique opportunity to quantitatively and qualitatively explore the evolution of co-offending in Australia. This project is digitising the historical criminal trial records from most Australian jurisdictions and linking these records to other archival material such as prison records and media reports. Such historical data offers a unique opportunity to explore population-level trends in co-offending across time in combination with micro-level trends in co-offending across the lifespan of individual criminal careers. This particular paper will outline initial exploratory results from work undertaken in data linkage between trial records, prison registers, and media reports to reconstruct the criminal careers of property offenders across 100 years. In addition to the personal characteristics of offenders and their various crime incidents, this data linkage can identify details of their lives, prosecution and prison experiences, and the way in which they were perceived by the justice system and broader society. Taking an interdisciplinary historical/criminological approach, we will explore not only the evolution of co-offending in property crime at the micro-level but also highlight the unique insights and opportunities that historical criminological research holds.

Biography

Dr. Lauren Vogel has a PhD and Bachelors degree in Psychology. She is currently a Research Fellow in the Griffith Criminology Institute, primarily working on the Prosecution Project – an ARC Laureate project exploring the history of the criminal trial in Australia, circa 1850-1960. With a diverse and multi-disciplinary background in research, teaching, and consultancy, Lauren is particularly interested in the analytical and quantitative components of the Prosecution Project.

The guilty plea and the transformation of the criminal trial

L. Durnian

Griffith University, l.durnian@griffith.edu.au

The rising rates of guilty pleas to serious criminal offences has transformed the prosecution process. While some studies link this historical development to the emergence of plea bargaining practices in nineteenth century American courts, scholars have neglected the origins of this phenomenon in the Australian legal system where there has been a reluctance to acknowledge that plea-bargaining exists. This paper addresses the issue of the guilty plea by examining prosecution practices during the twentieth century in Australian Supreme Courts. It extends previous historical plea-bargaining research, providing a more nuanced examination of the relationship between guilty pleas and particular criminal offences. This paper employs data from the Prosecution Project, an emerging database of historical criminal trials across multiple Australian jurisdictions. It analyses data from more than 7,000 criminal trials between 1901 and 1961 in the Queensland and Victorian Supreme Courts. It identifies the points in time when guilty pleas first dominated case outcomes, and explores the relationship between the accelerating proportions of guilty pleas and specific criminal offences. It provides examples of individual criminal cases to highlight the specific factors driving defendants’ pleas to these offences.

Biography

Ms Lisa Durnian joined the School of Criminology and Criminal Justice at Griffith University in 2014. She is an ARC Laureate PhD candidate with the Prosecution Project, which is investigating the history of the criminal trial in Australia. Her doctoral research explores the structural mechanisms that led to system transformation in criminal trials; that is, the shift from traditional jury trials to the current phenomena where most criminal matters end in guilty pleas. Her thesis involves mixed-methods analyses to track changes in the disposition of criminal cases over time.

Plea negotiations: Shining light on the negotiated guilty plea process in Victoria

A. Freiberg1, A. Flynn2*

1 Emeritus Professor Arie Freiberg, Faculty of Law, Monash University
2 Dr Asher Flynn, School of Social Sciences, Monash University

*corresponding author: asher.flynn@monash.edu

Across all Australian jurisdictions, the majority of criminal cases are resolved by guilty plea as opposed to running a trial. While the number of guilty pleas entered annually is generally well documented, limited information is available on the processes that facilitate such pleas. In particular, there is an absence of Australian research that examines the intricacies of plea negotiation processes, including how the practice operates and what negotiated outcomes actually entail.

This presentation will address the research gap by discussing the findings of the Negotiated Guilty Pleas: An Empirical Analysis project – the first study in any Australian State or Territory to develop a data set of plea negotiations based on a comprehensive mixed-methods analysis of legal aid case files and in-depth interviews with police and OPP prosecutors, defence practitioners and judicial officers from a mix of rural, regional and urban locations across Victoria. In reflecting on the project findings, this presentation will provide a unique analysis of the undocumented practice of plea negotiations in Victoria.

Note: The Negotiated Guilty Pleas: An Empirical Analysis project is funded by the Criminology Research Council (CRG51/13-14).

Biography

Arie Freiberg is an Emeritus Professor at Monash University, where he was Dean of the Faculty of Law from 2004-2012. He is a Fellow of the Academy of Social Sciences and the Australian Academy of Law. He is also a member of the Australian Institute of Judicial Administration and the Judicial College of Victoria. He is the Chair of both the Victorian and Tasmanian Sentencing Advisory Councils and in 2009, was made a Member of the Order of Australia for his contributions to criminology, sentencing law, legal education and academic leadership. Emeritus Professor Freiberg has over 150 publications.