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.

The fault in our democracies

Safe to say coffee won't be going
near my laptop again!

Hello everyone, sorry for the long break in posting. It was supposed to be a short break – but following some computer problems, it quickly turned into a longer one. – Long story short I managed to spill coffee on my laptop…and didn’t that just ruin my love of coffee? 

There have been a lot of interesting things going on in my absence including but not limited to, the rise of Donald Trump, the Medicare scandal and most famously the Brexit decision. There are a lot of legal issues associated with them, but the most common thread between all of them is misinformation causing a false overall decision.

It is the general rule that you cannot intentionally misinform the public without some consequence for your mistake. We witness this most commonly through media shows like today tonight or consumer affairs, which publicly shame businesses for misinforming the public producing a false or unfair result. A couple of years ago a juice company Ribena was rebuked after its ‘black current health drink’, promoted to children and their families, was shown to be incredibly unhealthy. The drink deliberately misled parents to believe that it was safe to consume regularly when in actuality it could have harmful effects on health if regularly consumed without a healthy diet and regular exercise.

I am sure there are much more examples of penalties for companies that misinform the public. 

The law may seem boring, but it is important
for maintaining an equitable society

However, despite penalties existing for businesses, a cone of immunity surrounds the political arena and its delegates. It is fair to say that the most watched democracies; namely the USA and the UK have been the largest culprits of these political scandals. Obviously, there must be some level of inducement made by political parties to promote their message. However, surely it must stop short of behavior that would be unacceptable anywhere else, like lying or harassment. I would like to pick this topic up later as I feel there are many more sides to this argument.

This situation does bring up the question of freedom of speech. When electing politicians, you would think that you would want to give them the freedom to speak openly. However, this privilege is

clearly being abused, especially in America where the constraints on freedom of speech are so minimal that you could just about defame anyone as long as you have the money to defend yourself. Which is probably why Donald Trump has not been sued for making inappropriate and defamatory public statements such as;

‘Barack Obama’s birth certificate is a fraud.'

‘Ariana Huffington is unattractive, both inside and out.'

‘It does not matter what the media write as long as you have got a young and beautiful, piece of ass.'

‘If I were running ‘The View’ I’d fire Rosie O’Donnell. I mean, I’d look at her right in that fat, ugly face of hers, I’d say ‘Rosie, you’re fired.’”

‘The only card [Hilary Cinton] has is the woman’s card. She’s got nothing else to offer and, frankly, if Hillary Clinton were a man, I don’t think she’d get 5 percent of the vote.’

In all of these quotes, Trump either directly defames a famous person or an entire industry. If you do some research, you will find that Trump has managed to escape liability for all of these statements almost entirely.

A lot of what Trump says makes me think of
'Let them eat cake' - Marie Antoinette

I say almost because the one point at which Trump has suffered and I am sure you will all agree is his personal brand. A personal brand is a term usually referring to a person’s professional reputation and transferring it into a market value. Every person has a personal brand, and you may use it when applying for a job, writing an article or networking at a professional event. Merely mentioning ‘Trump’ can end an entire conversation. His reputation is so socially damaged that some would suggest that it was irreparable.

Terrifyingly, America has continued to support this political figure, despite multiple outrageous and inappropriate statements. Some propose that he is only popular because it is a way of people protesting against the weak leadership shown by other candidates indicating the public’s disillusionment with the overall political system. The landside backing of Barack Obama supports this theory– who, although had a high level of integrity, showed strong leadership and distinction in his policies. This can sway public opinion significantly.

It concerns me that this bears a striking similarity to the Brexit result. I will not give my opinion on the final result because I would prefer to perform an analysis of the actual events leading up to it.  The Brexit was fraught with both misinformation and public confusion. The high level of disillusion in Britain with the decisions of the European Union in the past and the lack of democratic influence that they had over Brussels led to uncertainty about the actual consequences of the decision.

Some individuals were able to inform themselves about the role of the European Union and investigated in depth the effects that the British leaving the European Union would have. Yet the majority of people relied upon the media and its coverage of politicians to determine who they would vote for. Similar as to what occurred in Australia during the Medicare Scandal of 2016, one issue led the decision because of media sensationalism.

Immigration.

Immigration is a contentious problem that has advantages and disadvantages on both sides. It would be unreasonable to suggest that migration does not come with difficulties. Every culture from Africa to Britain has its quirks and melding one culture with another will undoubtedly cause conflict. Therefore, finding cultures that are similar are imperative for positive migration with minimal conflict.

Some may suggest that the geographical location of European countries infers a cultural similarity. However, such a suggestion is outdated and ridiculous. Russians and Britains are not similar despite sharing a continent. Same as Norway and Germany are not similar despite sharing a border. Australians and Britains have a culture that is relatively similar despite a geographical distance. The same is true for Canadians and Australians.

History and culture are part of who we are
and should not be ignored when seeking a
new homeland

The history shared by the countries has created a similar culture that allows for the blending of the three of them to be as simple as possible. Therefore, thought needs to be given to the culture and habits of the country to which migrants are traveling. It is terrifying enough to move countries, and I am sure that anyone who has visited other countries knows the relief of coming to a country which bears similarity to its own. It is not racist or insensitive to suggest that the common characteristics of cultures should be matched to another country for refugee migration but a practical consideration for better immigration.

However, it does leave open the issue of diversity. Diversity encourages the development of thought and broader value appreciation. In fact, Australia has benefited from the integration of cultures like the Italian, Greek and Vietnamese. This migration did not come without issues and occurred in numbers that were carefully monitored by the Australian government.

It does not take much research to discover the racist rebuke of Australia towards the influx of migrants. It was not long ago that Australia sported a ‘white Australia’ policy, which operated to prevent the flow of undesired migrants into the country.

While the application of the policy was culturally insensitive and disappointing in reality, the theory is sound. The original idea behind it was that Australia would apply a selective process to determine the characteristics of entrants into the country that would suit the ideology of Australian culture. This process preserves the idiosyncrasies that make up a diverse culture while ensuring that there was a thread of commonality that maintained the national image of Australia.

It was the same concern that drove the disillusionment of the British people. In a belief that their national image was under threat with the influx of unknown and potentially radically different migrants a reactive protest resulted in Britain leaving the European Union.

The concern, however, is that the people of Britain did not understand the true nature or impact of their vote. A false understanding was promoted to the public at mass by political parties such as the Independence Party – with political member Boris Johnson.

The ex-Mayor of London was so confident in his false promotions that he drove around on a bright red bus proclaiming that leaving the European Union would give the NHS 350 Million pounds extra a week. Unsurprisingly, this was later denied to be true by Nigel Farage. Nigel Farage is a British Political, who is the leader of the Independence Party.

One would assume that the head of the independence party would have prevented the overzealous Boris Johnson from spreading misinformation. However, it appears that in this battle, it was more about getting votes for their party than actually informing the public.

This cruel tactic may sound familiar to Australians who recently found themselves at the mercy of the Labor party. Bill Shorten, the leader of the Labor Party, pitched a claim to the public that the Liberal Party had plans to privatize Medicare.

Researching is a serious business ;)

As a country that has prided itself on the provision of healthcare to all in need, it is understandable why the public reacted so violently to the claim. Similar to the Brexit this was not the only issue at hand, as the economic future of Australia was also important. Through media tactics, the Medicare scare quickly took hold in the minds of most Australians preventing other relevant discussions from taking place.

What is evident in all three situations is that there is fast becoming a culture of sensationalism in politics. Democracies will always run the risk of erring too closely to an ‘American Idol’ type contest, where popularity determines the winner and not political sense. It is evident that currently, the media is taking a front seat in driving politics away from an objective debate to a reality television style throw down.

It would be inappropriate to ban the media from participating in election campaigns. Freedom of speech is perpetuated by the press and should never be lost. It was a right that democracies around the globe fought for by the people. They did not fight for the right to spread misinformation and I am shocked to see this occurring around the globe.

I would love to hear your ideas about how we can prevent media sensationalism in the future so please if you enjoyed or disagree with me - please let me know! You can get in contact with me through email, twitter, instagram or tumblr.

Australia, it’s time to put justice before wealth

-          First of all, this is my longest post yet! It is very heavy in theory and focuses on the benefits of the inquisitorial system. If you’d prefer a short read, please scroll down to the conclusion. Once again I’d love to read your commentary.

In Australia as a country that uses the common law system, we utilise the adversary system in our courts.

1.       A brief overview of the adversary system

The adversary system is a means of ‘searching for truth’ amongst a complex array of fact and law. It relies upon a battle ensuing between two parties; prosecution and defence.

A)     The prosecution

In criminal cases, this is the most critical element of the trial. The prosecution carries the burden of proof or the responsibility to prove guilt. However the prosecution cannot merely point fingers at the accused, they must also utilise admissible evidence to prove that the defendant is guilty beyond a reasonable doubt.

B)      The defence

The defence party must maintain that the individual is innocent until proven guilty. This pop culture reference also refers to the most essential element of the adversary system – no one must be assumed guilty.

                                                                  

The judge in the adversary system acts as a mere guide for the jury or an impartial scale of fact and law. Unlike the inquisitorial system, in the adversary system the judge must disengage their emotional considerations to provide a more business-like determination of legal fact.

Judges only meet the case when the trial begins and must have no interaction with it at any previous stage.

The adversary system works for both criminal and civil trials but only indictable offences (ones that are severe like murder, larceny, fraud) will receive the benefit of a jury.

-          Juries

Juries are a collection of the community which are between 15-12 in number. They are selected from the electoral roll (the list of individuals who are eligible to vote and then allotted to different trials. For those interested I have summarised the jury process below.

-          The Jury Process

1.       6000 names are selected from the electoral role. All of these names will be of people aged between 18 and 75 years old.

2.       The first disqualification occurs where there is an individual who is on the electoral role but does not have an adequate physical or mental state to carry out the important task of being a juror.

3.       Next persons who have an insufficient command of the English language or other reasonable prohibitive quality, such as being a member of the judiciary, are ineligible.

4.       This usually narrows the list down to 4000 applicants in which some may be disqualified. Disqualification will occur when individuals have received a term of imprisonment, community service or detention. The table below indicates how this operates:

Sentence length	Type	Time
Life or maximum sentence was life	Imprisonment	At any time between the ages of 18 and 75
Exceeding two years	Imprisonment	At any time between the ages of 18 and 75
A term	-          Detention in institution for young offenders -          Probation -          Parole	Within ten years immediately preceding the selection
A conviction of an offence punishable by imprisonment	Imprisonment	Within five years immediately proceeding the selection
Licence disqualified for period exceeding two months	N/A	Within five years immediately proceeding the selection
Been bound by a good behaviour bond	N/A	Within five years immediately preceding the selection
Been charged with an offence punishable by imprisonment but charge is not yet determined	N/A	Within five years immediately proceeding the selection

While this measure may appear discriminative, the actual intention is to minimise any unfair biases that may have been built while the individual is in prison or form of detention.

Arguably while these members of society are biassed they remain to be valuable parts of our society as a whole. Therefore the question remains, do we have the right to reject their participation in society?

5.       Members of the armed forces will then be exempted under the Jury Exemption Act 1965 (Cth)

6.       Individuals who have membership as either a conscientious objector or member of a religious order will then be excused.

7.       Individuals who are not ineligible, disqualified or excused may write to apply for written excuse or delay for their service. They must write to the sheriff’s office who primarily controls this area. Some valid reasons for deferral include:

Ø  Pregnancy

Ø  Illness

Ø  Death of a loved one

Ø  Being self-employed

8.       Juries are then sent to the courts and are allotted in 25 member groups to different trials

9.       From there a process called empanelment begins in which names of potential jurors are pulled from a ballot box.

They can be rejected in one of two ways                 

a)      Pre-emptive challenge

A preemptory challenge is where the prosecution or defence can dispute the selection of a potential juror by calling ‘challenge.’ At this point, the individual must return to their seat quietly and cannot contest the decision.

However, these are limited to three challenges per side.

b)      Challenge for cause

These challenges are unlimited for both sides, but their effect is up to the discretion of the judge. For example, the prosecution may object to a juror because they attended the same school as the accused and would, therefore, be unfairly biassed.

The judge may choose to accept or reject this reasoning. As a general rule, challenges for cause are seldom successful.

Once the jury has been empanelled the trial can begin.

2.       The inquisitorial v adversary processes

The adversary system is greatly advantageous to the rich and taxing upon governments. Those who can afford a higher quality level of representation often fair better than they would under the inquisitorial system.

·         The inquisitorial system; defined

The inquisitorial system is used in countries that don’t rely on the common law. ­While elements of the common law system (precedents etc.) exist within the inquisitorial system, the primary difference is that legal representation is less important as the judge takes on a pivotal role in collecting evidence.

-          Pretrial

In the pre-trial stage of the adversary system, the police do the majority of the work. They investigate and arrest the suspect(s) and then collect evidence. Police must have a warrant to hold the accused for longer than four hours otherwise it infringes on civil liberties. This is taxing on the government as it primarily increases the hourly pay per policeperson due to additional responsibilities and the time pressure.

Deadlines are formed by the case management requirements and by the four-hour questioning rule. Without legal representation or knowledge, the accused may feel pressured into providing false information to satisfy police.

In the inquisitorial system, the investigation process is largely undertaken by prosecutors with the assistance of the police. There is the ability to adjust deadlines to remove time pressures, particularly when dealing with hostile persons. A judge will also oversee this investigation adding extra protection for the rights of the accused.

The judge will then review all evidence and interrogate witnesses. The input of an experienced judge in this phase means that there is the quick and efficient use of time as any doubtful evidence would quickly be found and rejected. This reduces the amount of time spent in court and clears the way for more trials.

The adversary system replaces this investigating judge with a preliminary hearing, but this is done in court and takes valuable time away from other trials. It is also not as effective as it places stress on the accused to find proper legal representation and face their accusers.

-          Trial stage

The main difference in the trial stage is that the trial in the inquisitorial system is far more focused. Witnesses are not compulsorily cross-examined in the inquisitorial system but either side will ask questions of the witness.

This is because the evidence has been made available in advance to both parties and they have disputed the evidence already; allowing the trial to be simply about an argument put forward by the trial judge.

In the adversary system, the primary intention of the trial is to dispute the evidence of both sides. Often inexperienced lawyers will lose because of their technical ability rather than the evidence itself. Witnesses are often put under pressure in the heat of the moment leaving some concerns about the veracity of proof.

Additionally, witnesses may be encouraged to reveal information that they had previously concealed because of the invasive nature of the cross examination.

Ø  Roles of the judge

In the adversary system, the judge is more like an overworked parent than an investigator. They watch the prosecution and defence to ensure their behaviour is reasonable and the evidence is admissible. Their part in the post-trial process is merely to direct the jury in how to evaluate the evidence presented and to determine an appropriate sentence through a sentencing hearing.

In the inquisitorial system the judge underpins the entire trial. For, they are the primary investigators and will interrogate witnesses during the trial. They are also required to come to a full and final conclusion at the end of the trial.

Ø  Roles of the jury

In the adversary system the costly process of forming a jury is used for every civil penalty provision and serious criminal offence trial. In Australia if the offence is a minor indictable offence or higher they have the right to trial by jury.

This process is also a poor mockery of active democracy as juries primarily consist of English speaking, middle class Australians. It is obvious in the process outlined above that the system is not supportive of language, culture or other special difference in the process. The disqualification process also rules out a portion of the community that would have the greatest insight into the motivations and reasons of accused.

The adversary jury system is far too restrictive to propose itself to be a fair cross section of the community.

In the inquisitorial system juries are saved for the most serious of cases and they work with the judge(s) to determine the decision. This advantages the trial because it prevents the jury from using inconclusive or unfair evidence to determine their decision. Judges can also be involved in the discussion to put forward their valuable experience and legal opinion.

Ø  Evidence

In the adversary system the rules of evidence are a focal point of the trial. Objections and over rulings are often characterised by American pop-culture as being a rambunctious exercise of the court room. The reality is often far blander. Yet, the evidence rules clearly protect the rights of the individual not to be unfairly discriminated against.

In this the inquisitorial system falls, there are no strict procedural rules of evidence and the trial judge –and lay judges if used – hear everything. This is greatly disadvantageous because hearsay evidence, which is infamous for inaccuracy can now be dragged through the court room too.

-          Conclusion

In reality, this article was biased – and I’m not ashamed to admit it. But it wasn’t a pointless exercise. A lot of countries that use the adversary system have a large unbalanced perspective towards the inquisitorial system.

While the adversary system has allowed common law countries to operate harmoniously for decades, it is not the only system for legal justice. The inquisitorial system is often dismissed, particularly by Australian articles and textbooks.

I’d recommend you all take on board that –while Australia may not need to overhaul the court system, the current adversary system is not perfect. It creates a sense of competition that can be disadvantageous towards the search for truth. The inquisitorial system has no such competitive mindset and in fact legal representation is far less important than in the adversary system.

The non-requirement for expensive representation equalises the dispute and puts justice before wealth, something that the adversary system often fails to do.

Given the stress on today’s courts and the often financially and emotionally fatal outcomes of the adversary system would Australia not be wise to consider becoming the first inquisitorial-adversary hybrid?

Our little country could certainly benefit from having the best of both systems.

The Underage Lawyer