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.

Working Families; An issue kept well hidden

I'm sure those of you who follow me on social media are aware that I spent the last two months overseas, two weeks of which I was privileged to spend with a charity called working families.

My desk at working families :)

Working families is a charity aimed specifically individuals who are either caring for children or other sick individuals. Their bases currently only exist in Scotland and England but their work has been monumental to climbing over the wall of difficulties that both men and women face in the work place. It is steadily becoming a symbol of workplace flexibility which multiple studies have proven increases productivity [http://www.forbes.com/sites/ccl/2011/06/29/flexibility-can-boost-employee-productivity/#75eaa5b25d04]

My initial thoughts about the charity were that they would provide legal advice to all those who called on their hotline [0300 012 0312 ] however I quickly discovered their efforts were far greater and more diverse. Within the two weeks that I spent there I helped organize networking events, think tanks, policy presentations and research compositions. It was a massive variety and I can only say that the members within the office of working families had an adept ability to switch from paper work to practical work. I found my self constantly amazed by their empathy, communication and legal knowledge. Continuously the members were grounded, practical and realistic as they dealt with the problems of the modern workplace.

Some of the general issues included:

• Helping with employer/employee relations
• Explaining rights to leave, sick leave and other benefits
• Analyzing potential discrimination cases
• Assisting individuals in continuing work place progression
• Decoding some of the work-related benefits

Those who live in any country where benefit schemes are enforced will know their complex nature. Yet Working Families manages to decode some of the broader issues of the new welfare policy Universal Credit [http://www.workingfamilies.org.uk/articles/869/]. At a policy presentation Working Families stood for the ability of low income families to have access not only to jobs but to quality child care.

Too often hard working employees are forced to turn down jobs that offer them more responsibility and pay because the jobs have less flexibility and mean that individuals lose out on benefits. This benefit loss can have the consequence of costing more than they are earning. Unfortunately research [http://www.bbc.com/news/business-35475350] shows the startling truth that Universal Credit is dropping off key benefits and losing that practical aspect of welfare.

Key reasons that families lose money is because;

• Child care is too expensive
• They lose flexibility increasing the need for extra care
• Often gain expenses like eating out and more travel

Additionally without support families may face;

• increased levels of stress
• decreased time together
• Higher levels of anxiety
• relationship/life dissatisfaction

Interestingly one of the conferences I attended with Working Families highlighted that money was not the only factor influencing a families' ability to progress up a career ladder. After several focus groups the culmination of the responses revealed that families are craving more family time. Money is no longer a driving force of work. Yes it's a relevant factor but the study revealed that if more money sacrificed time with each other- progression in terms of pay increase loses out.

A policy conference with Working Families 

This need to spend time with family should not be looked upon as a factor of 'laziness'. Families, particularly those in financial hardship, often pull close together and form strong bonds. These relationships are vital for children to build strong foundations as they move into the future and for the healing of sick relatives. Some families are also facing the potential loss of sick relatives, meaning that money is not as valuable as time.

In this modern world we are seeing an increased value upon time, particularly time that can be spent with those we love. Working Families is striving to work with both employers and employees asa vital middle man that can strike up the right balance between the two.

The universal credit scheme was invented to produce a welfare scheme that did not punish individuals for being out of work. It attempts to understand the new value of family time and the issues face the 'sandwich' generation, where families are both caring for children and sick or elderly relatives. While it attempts to ensure that nobody will live off welfare for longer than necessary it supports the often tiresome and difficult transition between welfare and work. This is beneficial because;

• Provides families with some respite when in financial trouble
• Allows families to care without bringing in external help which can be expensive
• Prevents individuals from being exploited while searching for a job
• Provides people with dignity and pride
• Allows for families to save while progressing through below minimum wage jobs and support themselves in an emergency rather than falling back to where they were

On welfare it is difficult to save money therefore giving people the opportunity to earn a little more as their welfare slowly decreases allows individuals to save some money. Savings provide financial security and comfort – which has been proven in the past to make people feel more comfortable and to stress less.

Multiple times I have discussed the impact of stress on the body. It not only causes many expansive physiological issues such as adrenal, heart and liver failure. These issues can tax already over worked families, causing child carers, sick carers or vulnerable individuals greater issues.

Stress has also been linked to psychological issues and outbursts. Anxiety, clinical depression and disorders such as schizophrenia or bi-polar are frequently connected to high stress levels. It is clear that stress can be minimized when fiscal stability is present. Although it is not the only factor in these issues.

The use of fiscal stability refers to the presence of these factors

• Ability to pay bills as and when they fall due
• The ability to afford food that is of reasonable quality
• The ability to pay for some extra curricular costs such as eat-out food, entertainment or luxury service (massage, facial)*
• To be comfortable with financial ability to prepare or repair any necessity equipment such as laundry machine, dish washing machine or light bulbs
• Some ability to save (eg. To save 10% of earning) and still pay bills

* For families with children this is especially important because young children often like to participate in extra curricular classes such as dance, basketball, surfing or martial arts. These classes can tax financially strained families, sometimes causing social awkwardness for young children. While it is understandable that there must be some cuts to extracurricular activities it's reasonable to allow every person the opportunity to relax through one non-necessity service.

It is undoubted that if England wishes to encourage progression they must inspire financial stability. Financial stability is the way to encourage individuals to aspire. Unless the general populace feels that by accepting a job with higher levels of responsibility and better pay they will not lose out but gain valuable experience and satisfaction there will never be any progression. Other countries have also witnessed higher levels of productivity when minimum wage is at a 'living' level.

The steadtler pens in the top left corner actually
became very popular around the office

I will note here that organizations have raised the alert that minimum wage is the 'average' cost of living for the entire nation. It is important to know that a single person family will be able to live of the minimum wage comfortably while a family with two children will struggle. As lawyers it's important we don't pre-judge other families expecting that they can support themselves on minimum wage. Depending on circumstances it may not always be viable.

I would encourage young aspiring lawyers and current legal professionals to explore the website [http://www.workingfamilies.org.uk/] and consider becoming a Change Maker or registered donor today. The charity is constantly expanding the areas in which it works – working as a empathetic policy union that promotes for the well being of employees and employers rather than higher pay and lesser hours. It's difficult to summarize the exact issues that Working Families deals with because they are so dynamic and do respond quickly to the changing issues within the work place.

Uniquely the charity is also recognizing the growing paternal expectations for young fathers. Some closely related organizations that Working Families has connected with researched the growth in child-minding fathers. It was found that while women are still predominantly the primary carers, males were taking a larger interest in the primary care role for children. Currently men are limited in their ability to take over this role as prejudice is beginning to turn away from women and back towards men. Although males were noted to spend more time doing 'fun' things with children while women completed more domestic tasks.

In a study by [https://aifs.gov.au/publications/family-matters/issue-37/achieving-family-supportive-workplace-and-community] it was discovered that women felt more able to disrupt their working day to tend to a sick child then men. After further investigation it was concluded that often the work place culture was the leading factor in this feeling. While corporations may present a face of gender equality the reality for many males is that when they disrupt work for a child they often feel that their work is at risk.

Working Families is still trying to explore the extent of this cultural phenomenon. I hope soon I will be able to revisit the topic and provide a more comprehensive analysis of the new work-place prejudice. Although perhaps soon with support of Working Families the picture will present more equality and less gender bias for in this day and age woman are no longer primary carers, they are merely one of the two primary carers.

Lulu Hensman