Pic. courtesy Herald Sun

Victorians have every right to express concern about the current crime trends as community safety is rapidly veering towards the biggest problem facing this State, and the community mouthpiece, the media, is generally silent.

Rampant crime adversely impacts so much of our lives, not only at a personal level but in a macro sense, affecting the ability to deliver Health Services, creating budget pressure, curtailing positive Education outcomes for our children as perpetrators and victims, adding millions to the delivery of infrastructure, and most significantly, destroying many families, the cornerstone of our society.

Understandably, much of the adverse focus is on the Police; after all, the CAA and the media generally are the first to call out issues where Policing is failing, and that is a legitimate and healthy role that should not be discouraged. However, that police ‘carry the can’, so to speak, for the crime tsunami is very unfair.

In particular, the media gives the Courts a free run, generally avoiding any criticism, which is a mistake that does not serve the community well.

Until the courts accept and act on their responsibility, irrespective of how efficient or proficient police are in bringing perpetrators before the courts, crime rates will continue to soar. Paradoxically, the inaction and lack of support in a global sense for policing by the courts contribute significantly to the crime rate as perpetrators lose the important deterrent factor the courts are supposed to perform. Police end up chasing their tails.

We acknowledge that legislators also bear responsibility, but even with weakening laws, there are many ways that the judiciary could improve. One of those is through a system of robust accountability.

The current accountability is based on vague notions that fly in the face of sound jurisprudence.

Two core legal principles are crushed by the current lack of effectiveness of our legal system by the courts.

• Justice delayed is justice denied—a 19th-century proverb.

The lengthy delays in bringing perpetrators before the courts are either due to poor administration of the Court systems or inept behaviour by Jurists. Either way, before the inevitable blame is placed on budget restraints, the path to efficiency must be empirically demonstrated.

• It is better that ten guilty persons escape than that one innocent suffers.- Blackstone’s Ratio.

We read daily of inordinately long delays in delivering justice, sometimes years, translating into more crime or unjust treatment of accused persons.

• More crime.

Jurists’ propensity to repeatedly bail accused persons has a severely detrimental effect on justice delivery. Perpetrators from all court jurisdictions are let back into the community for extended periods under court-imposed conditions, which are rarely adhered to, to commit further crimes while awaiting trial. The net effect for most accused is that they are caught one day back on the streets the next.

• The accused languishes in jail on remand.

That is unjust, even for a serious crime, as the accused is innocent until proven guilty. However, jurists send accused persons to jail without a trial and without conviction for extended unacceptable periods. That the accused does time and is then not convicted is cold comfort for the prisoner and amounts to a cruel and unjust punishment.

• The Victims

Innocent Victims who have lived through crime trauma are further punished by inordinate delays often contributed to by the Legal fraternity as a tactic to maximise the benefit to their accused client, weakening the victim and witnesses’ resolve. How we can stand by and apply the punishment the legal process applies to victims is unconscionable.

An ineffective Judicial system is responsible for, in large part, the rise in crime.

Crime impinges on every aspect of our lives, so there is now more than ever an urgent need to expose Judicial failures and demand that an independent Judicial Review mechanism be established to address the issue that currently exists, whether that be the performance of the judicial system overall or the performance of individual Jurists.

The Judicial Review Authority must not be allowed to become a ‘lawyers’ picnic’ and have lay people in the panel representing the community with higher representation than the legal fraternity, which is clearly out of touch with the community. This Authority must also be accountable, which is best served by being appointed and answerable to a Parliamentary bipartisan oversight committee.

The media reports on many legal matters, and it seems that questions should be asked about the behaviour of some jurists but are not.

The legal system, as it stands, allows misconduct to go unchecked, and that is as bad for the credibility of the Courts as it is for the competent and reliable Jurists who serve the community well.

There are several examples,

• One case we are aware of involves a defendant charged with serious violent crimes who has allegedly manipulated the legal system to extend his bail for five (5) years to avoid being held to account despite appearing for thirteen (13) Bail hearings.

What is significant is that the thirteen appearances were before thirteen different Magistrates, strongly suggesting a breakdown in Court administration or Magistrates being manipulated by the defendant’s Legal counsel.

The Lawyer representing the defendant in this matter is an Officer of the Court, so any indiscretions by a lawyer in a matter before the Court are the ultimate responsibility of the Court. By due process, the judge sitting as a court in any jurisdiction is therefore accountable; hence, there is a need for a judicial review authority to ensure the judge’s accountability in this situation.

The victims, a mother and her children, are in hiding, destitute and unable to move on but continue to hide in fear. The impact on these victims taking a terrible toll on their lives and their future, an unconscionable outcome.

It is inexcusable that the Courts allow this to occur.

• The infamous Gobbo affair is an outstanding example where criminality within the legal system was exposed. The findings of the High Court of Australia were unambiguous in its condemnation of the players in this matter. Still, nobody has been held to account for all the dozen or so key players and the many more-bit players. The question is, why were these players not put before the Courts? Is there corruption at the highest levels? What consequences exist for this transgression?

• The Covid-19 pandemic exposed many failings, but the most significant was the failure to hold people to account for the over Eight Hundred people who it is alleged died as a direct result of incompetence. The opportunity existed on at least two occasions for the courts to take action. The Coronial inquiries into the deaths should have exposed the issues, as should the much-maligned and malevolent ‘I can’t remember’ Coate judicial inquiry.

• Currently, the aftermath of the motor car collision between the ex-Premier Daniel Andrews’s car and a young boy makes its way through the civil courts, raising the issue of why the matter was not processed initially through the criminal system. The whole event has a whiff of criminality, not only the crash itself but the actions of a law firm and others after the crash.

Article 26 of the Australian Human Rights Commission sets out unambiguously the rights of Australians before the law, but unfortunately, the courts trample on those rights in the examples given

A Judicial review Authority must have the power to intervene when the Judicial system appears to be in trouble or fails.

To avoid serious misconduct and matters being blocked or diverted from the courts, the Judicial Review Authority must have the power to initiate inquiries with powers similar to those of the Royal Commission. This would allow the community to be confident in the court process.

The process must allow the light in. to sanitise the process, and the community mouthpiece, the media, has a crucial role in facilitating this outcome.