What does it mean to persevere?

There's something that I don't think I've covered nearly enough in my blog. It's something that all young lawyers need to know - what perseverance means.

Traditionally we think that perseverance means to continue working where we feel that we have a passion and a goal. Many people believe that perseverance involves doggedly working towards an aspect of our lives that we feel that we should succeed in. They believe that it's a habit of successful people and unsuccessful people lack perseverance.

sometimes the road ahead seems daunting

But is that all perseverance is?

We read about perseverance in self-help books and write that we 'persevere' in linkedin profiles. But do we truly understand the weight of the word?

In my belief the above isn't what perseverance means, it's a part of it- but perseverance really means building an internal strength. When I think of perseverance; I think of the word as it refers to a passion and a belief that succeeds all emotional and physical hurt, setbacks and other distractions in order to realize a continuing journey of maturity. It's not a mere skill or buzzword. It's a hard and painful lesson that we develop as we mature in our lives and 

It is often a painful experience because perseverance can only exist where there have been failures. You cannot persevere where you have only ever succeeded because that is merely success. To know how to continue working even during the most harrowing of situations is a level of maturity and true perseverance that all lawyers must possess.

Young lawyers especially must work to develop this as the law is a field that demands someone of strong spirit and rationale. While many jokes (particularly in Australia) are shared about lawyers and their wages we must not forget the emotional devastation that is a reality for many judges and lawyers.

It particularly struck me when meeting a chief magistrate in Australia, that the law requires great emotional strength from each legal representative. The magistrate spoke solemnly of the people he had sent to jail and those he had given a second chance. He was teary as he spoke and I could have joined him as I realized the gravity of the sentences given for many were life sentences in disguise remorsefully given.

One story explained that a homeless middle-aged man, living in the streets and raised in an abusive home, had used a bottle to knock out a service station attendee and stole $25. The small amount of money taken from the till was intended for food. Unfortunately the man was shaking so badly he couldn't walk or escape the scene of the crime. The police arrived quickly and the man was taken into custody.

His motivation for doing the crime?

'I hadn't eaten in three days...I was either going to steal something or kill myself.' The statement from any other person would seem over exaggerated, perhaps even falsified. But it was clear this was the reality for that man. His home life was described as shattering and it was clear his chances of getting a job after dropping out in year seven were few. But still the man was sent to prison for two years.

The sentence may appear minimal but prison can have a devastating effect on our vulnerable groups. Not only does it brutalize many people but it leads to difficulty in finding a job and building relationships both vital components of building a stable home life

So how can you continue to aim and strive for a just and equitable world when it is clear our system is fraught with issues?

Perseverance has taught us to take little steps, to continuously balance out our achievements with our

sometimes a hot drink is just enough to get us through

failures. Most importantly perseverance has taught us to fight through the sea of our failure to reach for our success.

For a long time I struggled with the desire to become a lawyer. Why would I want to become a part of a world where a man with no opportunity will be treated harsher than a man with many? How could I fight against a system that is so set against those who are helpless that even magistrates and judges feel powerless to fight against it? Surely as a mere under aged and beginning lawyer my contribution – any contribution – would be like offering a crumb to a group of starving elephants.

I'm no philosopher, but I have decided that I have reached a conclusion. In-eloquently put; there are many things in the world that are unbalanced. Some of these things are heartbreaking, the way that we view criminals and the disadvantaged. The way that we segregate based on religion, wealth or race. Yet, it is only when, among all of the disappointment, breakdowns and failures, that we continue to strive and persevere to effect some kind of change that we actually create change.

There are many legal greats of our time and of times past. All of them started out as people, people who felt that there was something unbalanced in this world. They all would have felt the daunting and demoralizing weight of institutions. Yet they still stood and worked. They persevered.

I'd encourage all my readers, potential lawyers or not, to continue persevering. It may have broken every belief I had in the law to read the sentences given through Australian courts but it has also helped me to rebuild them. Rebuild them with a foundation in reality and a tenacious belief that continuous perseverance and hard work will, however small, effect change.

Love,

The Underage Lawyer.

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

Has the Royal Commission been compromised? One man's personal decision creates political chaos.

Dyson Heydon has captured the fancy of Australians.

There are allegations against Justice Heydon claiming that his impartiality is compromised because he agreed to give a speech at a liberal dinner party. Despite these accusations, Heydon is refusing to stand down from his position on the Royal Commission. He is determined to remain on the commission as its head.

Heydon claims that he was not aware of the extent of the political connection that the Sir Barfield Barwick address had. It should be noted, that he has subsequently withdrawn his acceptance as he has not yet given the speech.

The belief that the Sir Barwick event was not connected to the liberal party is not unreasonable. Barwick was a QC and Chief Justice of Australia for 17 years making him the longest standing chief justice in history. Therefore, Justice Heydon as an esteemed retired judge of the High Court was a reasonable choice to appear at the address.

However, Barwick was a member of the House of Representatives and a part of the Liberal party. It is not unreasonable to suggest that a judge of Heydon’s caliber should have realized the possible compromise to his impartiality. Especially when he is involved in a delicate political matter as an acting head of a royal commission. It seems only reasonable that he should exercise great caution when interacting with any part of the political arena.

On the other hand how accountable can a speech make an individual? The act of speaking on a topic at a memorial dinner to commemorate the longest running chief justice in history has now constituted extreme bias that can compromise an entire Royal Commission. The calls for Heydon to withdraw the claim that this single event alone has completely jeopardized the impartiality of the entire commission. My concern is that speech at a respectful event, acknowledging the successes of a great legal mind, is not a pro-liberal placard. Somehow, the head of this Royal Commission who has made a life out of separating his personal life from his working life is being made out to have lost all credibility. The credibility is lost in the eyes of the media and political affiliates because in his own time he merely made an agreement to give a speech at a commemorative dinner.

This begs the question, are we interfering too much in peoples’ private lives?

In today's’ 24/7 society have we lost the ability to remove work related responsibilities and personas from a personal life?

We may argue that giving a speech as a retired justice of the high court has a sufficient connection with his work to constitute it as not his personal life but duties connected to work. However, I would reply that a speech, at whatever venue, does not indirectly or directly express support of those behind the veil of the event. If the primary intention of the event is to provide support, such as at a rally, then the speech itself would also exhibit that primary purpose. An even such as the one agreed to by Justice Heydon was an event that proposed to have the main purpose of recognizing the great legal career of Sir Barwick. It has been treated by the media as a liberal love-fest and not a mere commemorative dinner party.

It is hard to reach an objective conclusion given the nature of the media sensationalism surrounding this issue. I would hazard the suggestion, however, that the intentions of Heydon were as he claims, given that there were mixed intentions of the event that were not immediately apparent. Additionally the finding of evidence by the Royal Commission are not the sole discoveries of Heydon but a collective effort. Hence, the Commission cannot be sabotaged by his presence at dinner.

Justice Heydon, agreeing last year to give a speech on August 29^th has no significant influence on the findings or any implications of the evidence. Assuming that our legal system is not corrupt. A single person offering an oration, while he may hold great authority in the provision and presentation of the conclusions of a Royal Commission can still not suppress findings grounded in sound evidence.

As I have mentioned, I am hesitant to give any final form of an opinion. The media has been infamous for neglecting information in vital cases for years. I will instead return to my earlier comments on the value and separation of personal and work life. I am of the opinion that there are parts of an individual’s personal life that should affect the manner in which a person is regarded during their work life.

However, these actions are easily restricted to crimes of a significant nature such as sexual offenses, fraud or grievous bodily harm. A speech given to a group of officials commemorating the honorary Barwick as a retired member of the judiciary appears to be of a more domestic and personal nature than criminal. While the decision to give the speech is controversial, it is still the choice of Heydon to do so. I was unable to find whether he was paid for his time but assuming not there would be no personal benefit to Heydon.

Hence, it appears that while the judge may not have exercised the caution appropriate for the head of a Royal Commission, his right to give a speech at a commemorative event should not be removed. The speech while held at an event connected to the Liberal Party was not the primary intention of the event. Moreover, the royal commissioner has not sacrificed the integrity of the evidence found by the commission. This means that little argument can be made against the findings of the commission despite his actions.

The public are holding the judiciary accountable for not pandering to public opinion

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.