HIGH COURT UNDER THE MICROSCOPE; R V BUCCA 2015 "The danger of identity assumptions"

HIGH COURT UNDER THE MICROSCOPE; R V BUCCA 2015 – AWAITING DECISION. 

The danger of identity assumptions 

The case today is a case awaiting a decision. So I thought it would be interesting examine the submissions of the appellant. Submissions are papers written by defending council that outline the issues at hand. They are interesting to read – particularly for young law students because they show the application of law to legal matters. 

 Today’s case is about the use of evidence and its implications in a court of justice. When we see evidence, we like to assume it favors one side more than the other. However, in this case, you will see the impact of circumstantial evidence. Circumstantial evidence is a two-edged sword. From one angle it will support an argument and from another, it can defeat it. Phones are strong circumstantial evidence. The courts will often refuse to take the view that the accused did not have their phone on them. They can be used to track locations, motive, messages and previous history.   

CASE FACTS 

In the supreme court of South Australia Wesley Gange was convicted of shooting an Adrian McDonald. McDonald was killed in Parafield, South Australia. The prosecution argued that Gange shot McDonald. They claimed he had hidden in the boot of a car not far from where McDonald stood. McDonald and Gange were once in a relationship.

 The relationship had broken down and caused issues between them. Both of them were involved in drugs, firearms, and violent behavior. Gange had previously sold drugs to McDonald. 

His assistant Tristan Castle was sitting in the driver’s seat. Telecommunication records were used to show the movements of Gange and Castle’s phones. Before this event, Gange had sent texts to McDonald which were derogatory and contained threats.

 There was the use of an alibi for Gange. Gange’s girlfriend ‘M’ remembered seeing him at home on that day. However, disputes arose about the veracity of the evidence. She suffered from psychosis, false beliefs, auditory hallucinations, detachment from reality, paranoia and impaired reasoning. It was appealed to the Court of Criminal Appeal. The appeal was on the basis that the judge had failed to direct the jury properly about the evidence of Gange’s involvement. 

The evidence was highly circumstantial. There is was brought to light that Gange and M used multiple phones interchangeably. It is hard to discern who made what texts and who had which phone. It became more impractical when both Gange and M admitted that because of drug use they often didn’t remember where they were or what they’d done. When the judge failed to show the holes properly in the evidence, the jury gave the circumstantial evidence too much weight. The judge should have given it little weight. The failure to do so made the conviction unjust and inevitable. 

 SUMMARY 

The court believed beyond reasonable doubt that the appellant shot the deceased. They based this belief on telephone records, motive evidence, proof of planning and a confrontation via text. The text messages recorded on the phone of the accomplice, Castle. There were documents placing Gange in a different location at the time of the shooting. 

There were also tracked movements through his phone that placed him at the crime scene. Expert evidence pointed out that phones were not a confirmation of identity. It could never be completely confirmed who was on the other end of the phone. However, the courts overlooked this and claimed the evidence was an important¬part of proof. They were allowed to be equally considered by the jury. 

 APPEAL TO HIGH COURT 

The case went to the high court for two reasons

 - Court of criminal appeal erred in holding that the learned trial judge correctly admitted evidence of the appellant’s past possession of firearms 

- The court of criminal appeal erred by not finding that the learned trial judge misdirected the jury about the weight given to each piece of evidence. 

You have to have specific legal reasons for going to the High Court. You can’t just decide that you don’t want to accept the verdict. The Court of Appeal has the right to refuse you ‘leave’ to go to the High Court. 

WHY NOT BELIEVE THE EVIDENCE? 

The evidence appears to be valid. 

However, if you examine the circumstances under which the evidence appears you will realize that it is highly circumstantial. 

 Firstly, the location of Gange’s phone was unimportant. He had left it behind in Castle’s car. They had not met up for a few days. That makes the connection between his placement and the murder further removed. 

Additionally, it was possible that his girlfriend was using the phone. M had purchased and paid for the phone. Their friends recorded that couple was close and mixed communication devices often. They shared friendship groups. 

If M had been using the phone, anything she said could not be taken into account against Gange. Her medical issues, including paranoia, hallucinations, and delusions suggest that anything she said may not be true. 

 Evidence also confirmed that while Gange used this phone, he also had an additional prepaid phone. M sometimes used this prepaid phone. Connecting a particular party to a phone is impossible. The two did not identify themselves before texting. A phone number is only associated with the phone and not its user at the time. Therefore, the courts had to assume an identity for the phone. That identity could never be guaranteed. 

It was shown that others might have been in possession of the tracked phone. Gange could not identify the exact date that he had it return to him. Some evidence suggested that it had been in possession of others during the day of the murder. 

The value of the tracked movements lessened when applied to the social habits of the accused. The shooting occurred during social hours. But because of the use of drugs neither Gange or Castle kept reasonable hours. Thus tracking whose movement was where and which may have been faked was a concern. While Gange admitted that he sometimes didn’t sleep for weeks, the courts had to apply some weight to the fact that the tracked movements reflected a pattern of someone with relatively normal waking hours.

 ISSUES

 There are many more issues connected to this case. In fact, the submissions of the appellant are 22 pages long. However, I wanted to focus on the use of circumstantial evidence in criminal law. 

When used the evidence appears to make a conflicting statement about the right to fair trial. We are all familiar with this right. Therefore, committing someone on a circumstantial case alone appears unfair. 

The Bucca Case has not yet come to trial, but it will be interesting to see the High Court’s remarks upon the extreme reliance on the assumption of identity. 

 New technologies have increased the ability for police to track charged individuals. However, it also leads to confusion and greater misunderstanding. Phone numbers are not identity codes, yet it appears the court has begun to treat them as such. It would be interesting to remove the evidence of Gange’s phone and re-run the trial. My prediction would be that without the critical assumption that a phone indicates the identity of a person, no case could be completed.

 I look forward to hearing your thoughts on this issue. Also for those who don't listen to the podcast. This week I am celebrating two years of running my studyblr and theunderagelawyer.blogspot.com. In celebration I will be releasing a 'printables' package which will be available online in the next episode.

Kodak Black and plea bargaining - is this process really okay?

Dieuson Octave, also known as Kodak Black in his career as a rapper, left the courts happy. Today he was let off a 55-year maximum sentence through a process known as plea bargaining.

A plea deal was made. The deal allowed Koda to agree to do five years of probation and a year of house arrest brought the result.  He had fans calling for his release, showing their support by wearing ‘Free Kodak’ shirts. The overwhelming support of fans was likely an influencing factor for the prosecution’s eagerness to get him out of the courthouse.

The young rapper has gathered followers through the popular video platform Youtube. Well-known rapper ‘Drake’ has even featured his song ‘Skrt’ on his YouTube channel.  However, Kodak's career is plagued with a series of legal issues including assault and drug offenses. While the rapper stereotype matches the conflict with the legal system, the impact on his career would be significant. Some sources suggest this was part of the reason why Kodak was let off.

Lawyers Allan Stephen Zamren and Gary Kollin were both very pleased with the result. Their client will appear on the international music circuit shortly.

So what exactly is a plea bargain?

The term plea bargaining comes from the United States. In Australia, the practice is used as well. It is mostly commonly involved in criminal or civil penalty charges. Usually, the defense will bargain with promises of good behavior and house arrest in exchange for the prosecution recommending a non-custodial sentence.

A plea deal is where your legal team makes an agreement with the prosecutor to accept a lesser charge. That will most likely mean that you will have to enter a plea of guilty. You will plead guilty to a lesser charge.

In Barbaro v The Queen the issue was examined carefully. There the facts are unique. Accused Pasquale Barbaro and Saverio Zirilli were charged for involvement with drugs. The defense and prosecution had negotiated away from court benches. They’d reached an agreement on a sentencing deal.

The judge refused to accept the prosecution’s request for a non-custodial sentence. The judge then lay down his own sentence, upsetting the usual practice.

The case was taken on appeal to the high court. There the prosecution was on a matter of law. The high court had to consider where a plea bargain can be used to prevent the judge from exercising his discretion. It in that the judge as the superior legal mind is capable and should is not his discretion over the case. Usually, this isn’t an issue, but when the defense has bargained away a rightly deserved custodial sentence – can the judge do anything?

It was not a material error for the judge to refuse to accept the prosecution’s submission. The judge was allowed not to take into account any sentencing ranges from the prosecution or defense. The 2014 case was significant as it overruled the previous right for the prosecution to set the bounds of the sentencing range; R v MacNeil-Brown.

Kodak Black is not an isolated case of individuals freed from crimes by plea deals. In fact, he is probably one of the few cases where plea bargaining is just a simpler litigation process. Some litigants who benefit from plea bargaining faced serious crimes
.
Then plea bargaining becomes a threat to the safety of the community as a whole.

Carl Williams was a famous underworld figure. He of with three counts of murder and one count of conspiracy to commit murder. These serious crimes are usually reserved for the most heinous of cases. We’d all like to think they’re treated with the respect they deserve. However, plea bargaining minimizes the severity of the crime. In some cases, it can feel like there was no retribution at all.
Williams’ sentence was thrown away when the Victorian Office of Public Prosecutions struck a deal with Williams’ defense team. Barbaro v The Queen was a 2014 and Williams was trialled in 2007. Then the judge felt he had to follow R v MacNeil-Brown. That meant he accepted the prosecution's submissions and Carl Williams walked away.

So what’s the issue?

Some may find themselves supporting plea bargaining. On face value, it’s a great way of minimizing expensive court costs and negotiating your way out of a devastating custodial sentence. However, the private negotiation process can either force a guilty plea on an innocent accused or realign the sentence to something less serious than what it is.

Plea bargaining is somewhat of a double edged sword. It can save or ruin lives and the foundations of society at the same time.

It is also one of the most secretive processes of the criminal law system.
It is secretive because the negotiation takes place without any official recordings. There is no legislation that can referee this bargaining process and there’s no objective review tribunal. It harbors a little bit too close to the saying ‘you get the justice you pay for.’
If you can afford to hire a good negotiator, you could avoid a drug trafficking charge with a mere use of drugs fine and rehabilitation condition.

To pinpoint what you should be concerned about – realize that this plea bargaining process is entirely anti-democratic an d undermines the foundations of the Australian constitution. There is no jury watching the process. There is no law to ensure justice. Instead, there is just two rogue lawyers and an accused in a room.

It sounds a lot like the plot line of suits, and you would be right to think so.
Some people suggest that this entire process undermines the right against self-incrimination and the right to a retrial. After all, if you accept the wrong plea bargain, there're no files there for you to appeal against.

It’s a lot like an illusory promise. For those who are not familiar with the term, this refers to a contractual promise that has no legal force behind it. It lacks payment or consideration forcing the courts to ignore it.

A plea bargain carries no weight in an appeal court. That being said American courts have treated plea bargains like contracts. That, however, does require some documentation of the bargaining process. Many Australian lawyers prefer to plea bargain through a series of subtle changes and applications to the court. This slower, costlier process has no action in contracts and can take much longer.
Overall, plea bargaining is a well-established process of the courts. However, it can legally pervert the course of justice. Judges are seldom as brave as seen in Barbaro v The Queen. Requiring that plea bargaining becomes an above the table, recorded litigation process can help to ensure justice on both sides of the bench.

How to speed read like an expert

Hello everyone and welcome to another blog post on the underage lawyer.

 One of the topics that have been coming up frequently in my conversations with others is speed reading. It’s a skill that you probably only think about when you have three days to complete an essay, and you haven’t started researching yet. However, speed reading is an important skill that can assist you in everyday life. It shouldn’t be disregarded as useless skills. 

Those who want to pursue a career in law need to know that they will spend every day of their life reading. 


Client’s files can be anything from one to forty volumes long – and it’s your job to read and study them all. Reading is also the best way to expand your vocabulary and improve your thinking capabilities.

 Think of reading as upgrading technology. The more you do it, the better it gets. The less you do it, you eventually fall behind. Here are a few ways to improve your reading speed:

 1. Read a lot

 This is a basic essential. The more you read the faster you get. The less the read the slower you will become. Some scientific studies suggest that reading things on the screen of a computer is actually different to reading on paper. I’m not entirely convinced, but just to be certain you’re actually reaping the benefits of reading make sure you read both on and off screen. To improve your reading, think of it a little like sprinting. You have to run as fast as you can regardless of whether you can maintain the speed or not. When you are first beginning training yourself to speed read, don’t worry so much about comprehension. As your retrain your eyes to move along the page at a faster rate, you’ll begin to take more in.

 2. Pick the operative words 

One fatal mistake when it comes to non-recreational reading is that we read all of it. It’s very rare that all of the text will be relevant to you. To improve your reading pace identify what it is you’re looking for. Then pick three or four words that will describe that thing. From there you can run your eyes over the text. Every time you see a relevant word stop and read a few sentences surrounding the word. If it applies, congratulations. If it doesn’t apply, then keep skimming through. This way you’ll be able to ascertain just how relevant the material is. If you don’t see any words that seem relevant then either rethink your operative words or move on to the next paper. 

3. Read the first and last line 

There’s a lot to be said for introductions and conclusions. Remember learning about topic sentences in high school? Well, this is why you use them. Academic literature uses these to highlight what they’re going to say. When you’re in a rush, don’t bother with the rest of the paragraph. Just focus on the first lines of every article. By the time you reach the end, you’ll have a general idea of what’s being said. Additionally, if you read the last line of every paragraph, you’ll have a concluding statement and a linking statement. The linking statement usually explains how the next section will connect to the first. This is important because it will show you the pace that the essay evolves at and any assumptions that you need to be aware of. 

 4. Don’t sound the words aloud in your head 

When reading a lot of readers like to ‘speak’ the words in their head. This is a waste of time. Your brain is capable of comprehending the phrase without sounding it out. The more you read, the more you will be able to do this. But to begin with, help yourself to lose the habit by reciting random words in your head as you read. I began doing this by saying ‘aeiou’ over and over again while I was reading. To do this at first, it is best, to start with relatively simple reads. Try reading opinion articles or Buzzfeed pieces. They’re much easier to comprehend than academic literature and will build your confidence. You may be surprised at how much you can understand without having to focus too much on sounding out the words. 

 5. Dot point as you go 

A critical issue with speed reading is that people are concerned they can’t read quickly and understand the text. A simple way to of getting around this is to write one word describing the paragraph. Skim read the article as fast as you can and then summarize it immediately. The use of summaries in one or two words helps to lessen the fear of not understanding. The human brain is far less reliant on the sound of the words than people think. When reading the shape of the letters is just as important.

 6. When you don’t understand keep reading 

This may sound a little counter-intuitive. However, the biggest trap for slow readers is that they are hesitant to move on before they understand something. That will slow you down. Some points are poorly explained, and it will take multiple readings to understand. You need to know that if a point is badly explained it’s likely not essential to the argument and is irrelevant to your reading. It may also be that you’ll come to understand it when you read something later in the document. Your best bet when trying to rush your way through a massive pile of information is just to keep reading. Stopping and rereading things will break the rhythm of the reading. That may also cause you to read slower.