Legal dreamland

The HCA transcript in the successful special leave application in the sleeping judge case is now online, giving us a taste of the arguments to come in this landmark case on the fundamental requirements of justice. It’s not looking terrific.

To start with, the judges mainly wanted to know about the significance of the note one of the defendants wrote to his sentencing judge – the same judge who, of course, snoozed during portions of his cross-examination – which Justice Grove thought ‘plainly acknowledges guilt’. Defence counsel Brett Walker conceded that that reading is open and the judges mused about the possibility that the note could be entered into evidence at any re-trial. Walker thought it could, unless it was excluded based on discretionary considerations. But he argued that the note made this case a great ‘vehicle’ to test the unresolved question of whether and when appeal courts will ever allow a new trial even though the defendant is obviously guilty.

Are these folks all totally nuts? Here’s the note in question:

I would like to take this opportunity to thank you for what was a very fair trial, one wherein I accept the decision made by my peers and I am today at your mercy, asking for some leniency in my sentencing.

I have spent the last 19 months in custody, this has totally changed my perspective on life in many ways. Up until about a year prior to my incarceration I had a problem with drugs. Only now that I am clean can I acknowledge the severe impact it was having not only on myself but my family and those around me. It obviously clouded my judgment. In custody I have been given the opportunity to work with alcohol and other drug counsellors and have had regular, clean urine tests whilst in custody.

My time in custody has also given me the chance to re assess my environment and my role in society. I feel I have a great deal to contribute to society and those around me and much to look forward to in the future.

Above all your Honour this experience has taught me the most important lesson in my life, that which is accepting God as our creator and Jesus Christ as our saviour. The 8th of March 2004 marks the day I was born again and it has changed every aspect of my life. Words cannot describe my feelings and how thankful I am to the Lord for blessing me as one of his children. I have undertaken studies in pastoral theology with the Christian Training Program and it has become my destiny to follow the path of a good Christian.

I sincerely hope you have taken into account the above when deciding my sentence. I once again thank you and the institution you represent for allowing me very (sic) opportunity to defend myself in a fair and just trial. In no way do I hold a grudge against any of the authorities involved, since they have given me the chance to become a new man.

I apologise to the Court, Police and the Community for having to expend their resources on me when I never should have allowed that to happen. I thank you for your consideration.

What sort of crazy system do we have where anybody – let alone senior judges and barristers who are supposedly experienced and case-hardened – takes this sort of thing with anything other than a grain of salt? What convicted defendant awaiting sentence – or planning ahead for the parole hearings – doesn’t turn into a born-again Christian? And become a ‘new man’?

I’m not saying that I think the defendant is innocent. Or guilty. What I am saying is that this note could not possibly cast a light on that either way, because it’s exactly what you’d expect a person awaiting drug offence sentencing to write, guilty or innocent. The twenty-five year maximum penalty really invites this sort of thing. Indeed, the defendant claimed at his appeal that the note was written on legal advice. Oops. The rationale for admitting evidence of admissions is that there’s no reason why someone would falsely confess to a crime. The hell there isn’t. Not when someone faces a significantly longer sentence if they don’t. Note that the defendant didn’t actually confess, but simply admitted to drug use – not exactly the same as importing parcels of E – and wasting everyone’s time. A curious omission, hey? It’s what someone would write when they want to extract the maximum sentence benefit for contrition while not quite confessing.  Alas, he became a new man a third time when the sleepy judge argument became available.

Wendy Abraham again proved a model litigant by claiming that the letter not only acknowledged the defendant’s guilt but also that the trial was fair. Gleeson quickly stamped that out as ridiculous, which of course it is. And he was quick to shoot down Abraham’s suggestion that the ‘confession’ could be used against both defendants in a future trial. She then argued that the defendants made a tactical decision not to complain about the snoring because Dodd was otherwise a good judge. Christ. I’m surprised she didn’t blame the defendant for deliberately boring the judge to sleep with his interminable bugged telephone banter and his endless cross-examination.

But then she really travelled to la-la land, with the High Court as willing fellow travellers.Abraham argued that the Court should ignore any possible effect that the judge’s snoozing and snoring might have had on the people who actually decided the question of guilt or innocence.

Your Honours, the focus of my friend’s argument today, really contrary to the submissions that have been filed, and indeed to a great degree contrary to the submissions in the court below, seem to focus on the jury and what reaction a jury may have had to this particular conduct. In my submission, there is no reason to put aside the presumption that the jury will follow the directions of the trial judge. In my submission, one gives little credence to the jury if it is suggested – and I will suggest it is pure speculation – the conclusion of Justice Basten on that point, it gives little regard to the jury and their role in the matter that it is suggested that they may well have not followed directions simply because at certain times during the trial the judge was asleep.

It’s alas true that the common law system of justice is based on the hope – and sometimes the assumption – that juries not only hear what judges say, and also understand it, but follow it as well. Not an assumption that has ever been empirically tested in Australia, mind you. Nor one that accords with common sense, at least at the extremes that Abraham is posing. It’s one thing to think that juries take judges seriously most of the time. But when they are snoring audibly?

If the court accepts that, then they’re just shutting their eyes – and more – to reality and living a dream. The treasured but totally unlikely assumptions that are the basis of the common law of evidence need a wake up call. Something like this might do it:

24(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Well, maybe. As I pointed out earlier, it’s by no means clear that the Charter would apply in this case, even if it had happened in Victoria this year.

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