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BARRIERS TO JUSTICE - THE RIGHTS OF THE ACCUSED
T F PERCY*
It gives me great pleasure, and is indeed a privilege, to speak here today.
After agreeing to speak at this Symposium, I wondered what I (as a humble "hack" from the
Criminal Bar) could possibly say of relevance, given that I have no experience in medico-legal
matters as such.
Perception and Pressure
But the longer I thought about it the more it dawned on me that there were a number
of significant similarities between the lot of the criminal lawyer and those of the
medical profession.
The most notable is public perception.
Compared to the corporate sector we are not in the category of the mega-wealthy,
although the media delights in portraying us as such.
The popular image is one of doctors and lawyers as uncaring individuals intent on
simply feathering their own nests, to the detriment of their patients and their clients.
It is a real problem, one that we need constantly to address.
The second is pressure.
In many cases the matters we are each asked to deal with are the single most
important events in the client’s life.
The outcome of our efforts will often dictate the course of the rest of the client’s life
and that of their families. The pressure is often immense, and the feeling will be one
to which many of you here today will readily relate. It isn’t pleasant.
Western Australia’s most famous criminal defence lawyer of the 1950’s-1980’s called
Leo Wood — once said to me, when I asked his reason for not supporting hanging,
that it was “too tough on the lawyers …”.
The same might well apply to those of you involved in the upper reaches of your
trade. One small mistake and the client’s life could in a real sense be effectively over.
Whilst as a matter of government policy, they no longer execute people in most of our
countries any more - (although if some current Australian politicians get their way, it
might not be far away …), the pressure of having a person "go down" for a sentence
of life imprisonment is a harrowing experience for a lawyer, let alone the pressure of a
death sentence. Losing a patient after a marginal medical procedure, I would imagine
is at least as difficult.
But as there are for the medical practitioner who saves someone’s life or health, there
are the occasional rewards in criminal law – most of them non-financial.
Recent Events
Like doctors, particularly specialists, criminal lawyers have taken quite a battering in
recent years at the hands of the politicians, the insurers and the media.
No session of Parliament seems to go by when one or other of our professions - if not
both of us - does not "get it in the neck".
It seems that the tide of legislative “reform” these days is always for the benefit of the
perceived “victim”.
(Or in the medical arena, for “victim” read “patient”).
The recent Australian experiences for the rights of the accused have been bad.
Take for example:
• Harsher mandatory sentences,
• reverse onuses,
• strict liability offences,
• defence disclosure,
• no fault property seizure,
• reduced rights to silence,
• abolition of preliminary hearings,
and so it goes on.
In the medical area, the Australian profession has not been immune: Relaxed
concepts of professional negligence and ridiculous insurance premiums have in
recent years made life inordinately harder for the medical practitioners, not to mention
their patients.
One could well ask:
When was the last time a politician did anything which moved in the
direction of ensuring that there were fairer hearings for accused persons,
or advocated some measure which tended to reduce the risk of an
innocent person being convicted?
Or, perhaps:
When was the last time there was a Parliamentary enactment which made
anything easier for a medical practitioner to deliver his or her services to
the public?
Certainly nothing significant along these lines has happened under any of the present
State or Federal Australian governments.
Do we still adhere to the (once fondly cherished) principle that it is better that nine
guilty persons be acquitted than one innocent man be convicted; a logic that for
centuries underpinned the philosophy behind our legal system?
If we do, the politicians certainly don’t seem to….
Do we really still believe that in the absence of real and palpable negligence, one
should be immune from any professional consequences?
Again, if we do, the politicians certainly don’t appear to.
And the reason is quite clear: there are a lot more votes in victims than there are in
persons who slip through the widening cracks of the system.
Every year there are a great many victims of crime in society. There are also many
patients who assert that their medical advice or services have been deficient.
From simple burglaries or drug offences to the worst murders, there are a lot of
bereaved and aggrieved parties out there who look very favourably on any political
party upping the stakes in the punishment race, or making it easier to convict alleged
wrongdoers.
Compared to the number of persons wrongly convicted, the victims represent an
overwhelming majority. So it is no wonder there is not much interest (or many votes)
in attempting to fix a shortcoming in the system which could help prevent
miscarriages of justice.
Similarly, in the medical sphere there are (certainly) in Australia far more votes in
compensating perceived “victims” than ensuring medical professionals are protected
from frivolous complaints.
No system of justice is perfect. There will always be wrongful convictions; just as
there will always be victims of crime. There will always be disgruntled patients. Far
more than the number of medical professionals who are their targets.
The task of ensuring that the system balances both problems is one that falls to the
politicians. But the sad reality is that the real weight of votes is in the hands of the
army of perceived victims, most of whom have not the slightest interest in the
massive injustices that potentially result from each new legislative or policy measure
aimed at tightening of the screws of the system.
Until someone is prepared to address the question of fairness with the same degree
of enthusiasm as they address the question of toughness, there is unlikely to be any
appreciable improvement in the quality of Justice in our society in the foreseeable
future.
There just are not any votes in it.
Wrongful Convictions
In both of our countries there have been some glaring example of wrongful
convictions.
In the criminal area the inevitable result of the so-called “tightening up of the system”
manifests itself in wrongful convictions.
And, sadly, it is getting worse.
Anecdotally there is said to be around 1-2% of the long term prison population who
are there as a result of wrongful convictions. Not just technically innocent as a matter
of law, but objectively innocent.
Even on a prison population in a small State such as Western Australia (of around
4,000) this represents between 40 and 80 people who are genuinely wrongly
imprisoned. In States like New South Wales and Victoria this would be about treble.
There are some worrying statistics starting to emerge in this regard from the United
States of America since DNA testing became available in 1989. (There aren’t any
formal studies here but there is no reason to believe it would be any different.)
In a recent edition of the Australian Law Journali, a disturbing article refers to the
American experience where a leading University study confirmed that since 1989
there have been some 328 cases of confirmed false convictions.
A harrowing statistic when one takes into account the fact that most were murder or
rape cases.
These of course were only the ones that attracted the interest amongst those persons
prepared to fight the convictions (usually pro bono) and many (22%) involved death
row "candidates".
The authors of the study extrapolated from these figures that there is every reason to
believe that in the past 15 years there have probably been 28,500 wrongful
convictions on serious charges in the United States of America.
A chilling figure, and one which I would suggest our respective Attorneys General
should bear in mind before they bring in their next jurisprudential masterpiece like
removing preliminary hearings, reversing the onus of proof or restricting the right to
silence.
As divergent as they may seem, there is much in common between the journeyman
criminal lawyer and the coal face medical practitioner.
The trust placed in us by clients as their legal or medical practitioner is enormous.
As is their trust and sometimes blind faith in the system, however foolish or
misconceived that might be, and whilst we may sometimes become oblivious to it, we
should never lose sight of it.
Conclusion
The job of taking up the cause of the falsely accused, the badly injured, the critically ill
and the impecunious is never an easy one. It is, however, a noble one, despite often
not being seen by the public as such.
The rewards when they come, are, as I have already said, sometimes substantial, but
as I previously expressed not simply in financial terms. All of you I suspect will have
had those moments and would treasure them.
Cross-professional Associations such as this are essential to ensuring that the cause
is never lost, that genuine and deserving sick injured persons get their proper care
without extraneous legal and financial considerations must be paramount. That the
accused person gets a fair trial and right of appeal is non-negotiable, no matter how
politically inexpedient it may be.
There are, I am sure, for you, as there are for me, days when you wonder if it is all
worthwhile. Days when you wonder whether a simpler way of life might be eminently
easier.
I would, however, implore you to keep up the good fight. Despite the persistent
ignorance of the media and the politicians, the contribution you are making to the
community, is a very great one and one of which you can be justifiably proud.
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