Dr Ian Freckleton QC grilled a DPP solicitor today. The
aggressive interview was challenging a claim that the police had agreed with his decision not to oppose bail for Mr Monis.
Mr Monis was the Gunman, who was involved
heavily in the Sydney, Lindt Café siege.
His granted bail has fired up a hostile inquest from the Police about whether
or not there was a case against Mr Monis that could put him in prison. Currently the main issue featured in the inquest is that Mr Monis has been allowed bail
by the inquest. This has caught the eye of the media and in turn incensed the
opinion of the public.
The nature of the court system is one that experiences severe delays. The relevance to this case may
appear trivial but it is clear that if
there is any doubt surrounding the case the court should allow time for the
prosecution and defence to gather and build their argument. Under Dietrich every person is allowed legal
representation. Additionally that representation must be of reasonable standard.
Hence, if Mr Monis is charged by the court when he can later prove that his
legal representation was not sufficient it could delay the course of justice
for years rather than months. So while the public may be out raged by the supposed release of a
criminal, the judiciary are not negligent in their actions. The common person must understand the golden
handcuffs of law. While the law is our only objective means of justifying punishment
it can also be manipulated to delay retribution for wrongs done to society and
its members.
Additionally the court must enforce the principle of
innocence until proven guilty beyond a reasonable doubt. This principle applies
heavily to the rule of law. For those who are
not familiar with the term, the rule of law is a legal doctrine. The doctrine
notes that any person regardless of their previous history, their criminal
offence or their social status must be treated in the same manner by the law as
any reasonable person would be treated.
It sounds a lot like common sense, but an emotionally
charged case like the Sydney Lindt café is evidentially
when this principle can be discarded easily. Many
of you, as I often do, are wondering if gunmen like Mr Monis should be treated in
the same manner as we’d treat the reasonable person.
After all, he did
begin a terrorist attack on Australian territory, with clear malice of
forethought. He took his gun to our citizens without care for their future,
past or wellbeing. He did not think of their families or those who would be
forever traumatised by his actions.
However, it is when we
consider his actions and the public reaction that we realise we must uphold the rule of law. No democratic country
can be proud of itself unless it has a strong
reckoning of democratic and fair processes. These processes must remain even at
the public’s outcry. For it is not the role of the judiciary to appeal to the
public. It is the role of the magistracy to ascertain whether there is sufficient
purpose for prosecution and reason for detainment.
It becomes evident therefore that if the court at its
impartial discretion has made the decision that there is reason to provide Mr Monis with bail then he
must be allowed bail. Unlawful detainment regardless of the public opinion directly opposes the rule of law and overrides
the writ of habeas corpus. The writ of habeas corpus protects against illegal
confinement. This doctrine is a vital piece in the balancing act between the
power of the state and the freedom of the people. This circumstance could
easily be flipped on its head, in which public condemnation occurs without
reasonable doubt and creates a modern witch hunt.
Often in our society we are quick to judge however limited
the facts. I was privy to a conversation recently on Oscar Pistorius. It is a popular opinion in Australia that this man
murdered his girlfriend with malice of forethought and is unremorseful for his actions.
I was surprised to find that
those I was speaking with took
limited note of the sociocultural surroundings and his personal position in
society. While I am of course aware of the issues surrounding his story, I can
also see plausible reasoning for the accidental death of his girlfriend.
Those who know about South
Africa know of the constant risk of home invasion. It is a common story in South Africa even in gated communities. Just last week Australia
received news of a massacre inside a very safe gated community. The fact of
the matter is that Mr Pistorius is a wealthy white man living with his
girlfriend in South Africa. It is possible when
he heard the noise that he did assume it was a home invasion. Given his disability
he may have been more alert and wary of his capabilities hence his actions may
be a reflection of his fear. Moreover, with an automatic gun five
bullets, for me, creates reasonable doubt as to whether it was premeditated.
Australia these days –
indeed America and Europe as well – seem keen to judge and less so to consider.
So we must ask the question should our judges, who are currently impartial juries
of fact, adopt the emotionally charged thinking-process of the general populace
or should they continue with their pure application of the law when determining guilt and innocence?
It is clear that while the judiciary is intended to be
impartial they have great power over the type of individuals that are released into the community. Should it not
be that those in the judiciary make such decisions with the mindset of the common person in the community?
In answer I shall refer you back to what I said before, the
rule of law is the basis of our democratic society. The moment that we become overrun
by emotion our ability to examine situations objectively and provide democratic
and reasonable punishment lessens. Hence,
while I will never recommend that we restrict our conversations I encourage us
all to remain cautious about condemning those in the judiciary.
Indeed, the
legislative whom we have elected as an
element of direct democracy in Australia, must be held accountable for any
decision they make that is not in public
favour. Because the legislative and the executive are irrevocably intertwined we rely intensely on the judiciary for
our democratic values to be upheld when
public opinion cannot be trusted to be fair.
Therefore, while socially it remains acceptable to question
the decisions of the legislature we cannot condemn the application of law by
the judiciary unless there is a fault of legal application.
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