Why, oh why? Juries and the reasons for their decisions

It’s easy to be an armchair judge or jury member. I must admit that I was surprised when I read that Thomas Towle was found not guilty of six counts of culpable driving causing death. Instead, the jurors found him guilty of dangerous driving causing death, which is a lesser offence carrying a lesser sentence.

In 2006, the car Towle was driving spun out of control and crashed into a group of teenagers walking home from a party, killing 6 of them and seriously injuring 4 others. After the accident, he fled the scene, leaving his four year old son and ten year old daughter in the car. The parents of the dead teenagers have been outraged and distressed by the lesser conviction, particularly after it emerged that Towle had prior driving offences about which the jury had not been told. Of course, the reports that Towle’s father blames the “sinful” teenagers rather than his son for the accident will distress the parents even further.

But I also know from my own days in practice that it’s very different sitting through an entire case than it is reading a newspaper report. Indeed, the Victorian Setencing Advisory Committee prepared a report on public perceptions of sentencing which established exactly that. In the executive summary to the report it is stated that:

• In the abstract, the public thinks that sentences are too lenient
• In the abstract, people tend to think about violent and repeat offenders when reporting that sentencing is too lenient
• People have very little accurate knowledge of crime and the criminal justice system
• The mass media is the primary source of information on crime and justice issues
• When people are given more information, their levels of punitiveness drop dramatically
• People with previous experiences of crime victimisation are no more punitive than the general community
• People with high levels of fear of crime are more likely to be punitive
• Despite apparent punitiveness, the public favours increasing the use of alternatives to imprisonment
• Despite apparent punitiveness, the public believes that the most effective way to control crime is via programs such as education and parental support, rather than via criminal justice interventions
• Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts
• Despite apparent punitiveness, the public favours rehabilitation over punishment as the primary purpose of sentencing for young offenders, first-time offenders and property offenders
• Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gesture

{emphasis added}

The report is well worth reading in full if you have a moment. Essentially, the only criminal cases about which we are told in the media are the “juicy” and shocking ones, where the result is newsworthy and sensational. Of course, media outlets like to focus on outraged victims and/or their families in these cases. Further, we only know a small proportion of the facts that come before a judge and jury, and studies have shown that when people are given more facts, their views of an appropriate response change. So I’m wary of claims that sentencing is “too lenient”. In individual cases, mistakes happen, but it is not an across-the-board phenomenon.

Back to the Towle case. The four principal charges against Towle were:

• Six counts of culpable driving causing death;
• Four counts of negligently causing serious injury;
• Six counts of dangerous driving causing death;
• Four counts of dangerous driving causing serious injury.

There were other charges, but I won’t mention them here. The first two were the more serious charges, with culpable driving carrying a penalty of up to 20 years in gaol. The second two were the alternative lesser charges, with dangerous driving carrying a penalty of up to 5 years in gaol. In order to prove that Towle was guilty of culpable driving, the prosecution had to prove that Towle was “grossly” negligent, whereas for the lesser charge of dangerous driving, the prosecution merely had to prove that Towle was negligent. In judging whether Towle’s driving was grossly negligent, or merely negligent, the jury could not be swayed by the horrific consequences of the accident or Towle’s cowardly actions afterwards. The question was to what degree the driving up to the accident was negligent?

I can’t answer that question. I don’t know all the information which the jury received. It is clear that he was speeding, with his son sitting on his lap, but I don’t know what the expert evidence was.

We also don’t know what the sentence will be yet. Justice Cummins will consider that question on Monday. However, in that context, I thought I might look at another report by the Victorian Sentencing Advisory Committee, which provides a “snapshot” of sentences for culpable driving causing death. It was interesting to note that the most common sentence of imprisonment for the more serious offence of culpable driving was four years with a non-parole period of two years. The median principal imprisonment level was 5 years. So even if Towle had been convicted of the more serious offence, according to the law of averages, he may still have been facing a sentence of around 5 years. It will be interesting to see what the sentence is. I suspect it will be at the higher end for dangerous driving, but I can’t say for sure.

The other question which has been raised in the light of this case is whether juries should explain their verdicts. Dr Mirko Bagaric and Colin Lovitt QC presented opposing points of view in The Herald Sun today. Presently, juries are not allowed to explain their verdicts to the press or anyone else. This is in contrast to the US, where juries can give interviews to the press explaining why they decided as they did. Sometimes this creates an unpleasant media circus where jury members are hounded by the press.

I think I sit somewhere between Bagaric and Lovitt. I think it’s important for juries to give an idea of why they decided as they did to maintain public confidence in the criminal justice system. As I’ve noted above, the more facts people know about a decision, the more likely they are to find it acceptable. But I think it is really important that individual jury members not be interviewed or identified by the press, and they certainly should not be hounded. I would favour an agreed written statement of reasons produced by the jury, to accompany the handing down of a verdict. Of course, the problem with this is that it may lead to more appeals in criminal cases if a potential flaw is found in the jury’s reasoning. But then, as Bagaric says, isn’t it fairer that we redress flaws than leave them hidden? And I think it’s always better to know than to be left in the dark. It may be that the jury had perfectly explicable reasons for deciding as they did in this case, and I think they should be allowed to give a statement justifying their decision.

Monkey business no laughing matter

This rather offensive picture comes from Josiah Clark Nott and George Robert Gliddon, Indigenous races of the earth (First published 1857). It illustrates scientific theories of racism in the 19th century, which continued into the early 20th century. Essentially, the theory is that Aryan “races” are superior in evolutionary terms to Black “races”, and that people of African descent are more genetically related to monkeys than Aryan races. Personally I think that Apollo Belvidere looks like a bit of freak, and I’d rather be more closely related to the chimp than him, but maybe that’s just me. Such theories were used to justify colonialism, slavery, apartheid and racial discrimination by Europeans towards other races.

Cricket has been marred recently by allegations that Indian Harbhajan Singh called Australian Andrew Symonds a “monkey” during the recent test at the SCG. Three Australian players backed up Symonds, whereas Singh denies that he said Symonds was a monkey, and Tendulkar backs him up. Oh, and an important detail: although Symonds was brought up in Australia by his adoptive parents, he is part West Indian. There was a history behind this, with Symonds being repeatedly taunted by the Indian crowd in Mumbai last year, who made monkey gestures at him. Symonds alleges that Singh also called him a monkey during that match, but he preferred to settle it “man to man”, going to Singh after the match and asking him not to do it again. Singh also denied saying such a thing on that occasion, but apologised.

In the recent incident, match referee Mike Procter accepted the allegations of the Australian team and suspended Singh for 3 matches. Indian officials then threatened to abandon the Indian cricket team’s tour of Australia, saying that the allegations against Singh were unfair. In India, effigies of the test umpires and the Australian captain, Ricky Ponting, were burned. There were calls for Ponting to be sacked as captain, in part because he “dobbed” Singh into the umpires. One of the umpires, West Indian Steve Bucknor, was made to stand down for the next test in Perth, prompting outrage from the West Indies. Brad Hogg was then accused by the Indians of calling Anil Kumble and Mahendra Dhoni “bastards”, scarcely a term of offense in Australia (more a term of affection), but much more offensive in India. The Indians now say that “monkey” is not an offensive term in India. In any case, the Test will now go ahead after the ICC acceded to the Indian team’s demands.

There’s a few things here. Both the Indian and the Australian cricket teams have at times behaved badly. Neither team are perfect. Both have complained about the other appealing too many times. Both have sledged.

In Sydney, India lost a match which it looked like it was going to win, in part because of some refereeing decisions. I think this is why the decision to ban Singh provoked such passion. It was mixed up with frustration and disappointment. Certainly, I would have been very disappointed if I was an Indian fan after the Sydney test. Australia has been the dominant force in cricket in the recent decade (very much like the West Indies during my youth), and there is a perception by the Indians that Australia thinks it can rule the roost as a result. By the same token, the Indian cricket authorities are using their economic power to get their way in a bullying fashion, but if anyone questions it, they claim Australians don’t like the thought of “brown” people controlling the game. I don’t care who controls the game, as long as whoever controls it treats everyone equally, regardless of whether they are black, brown or white, and regardless of how much money they put into the game. That’s a fundamental principle of justice – no favour should be given to race, religion or class. The adjudication should merely be on the merits.

On the merits of the matter, there are two conflicting accounts of events, both with esteemed players backing up their sides’ account, which makes it very difficult to adjudicate. I’m reluctant to come down on any particular side or the other without a full view of the evidence. What is important is the lesson to be learned about sledging and the appropriateness of “friendly” rivalry. I’ve never been a fan of sledging and taunting the other team. I really don’t think it’s very sportsmanlike, whoever does it.

The Australian team should be aware that in other countries, the term “bastard” is far more offensive than it is in Australia. I know that when I went to live in the UK, my father warned me not to use the term. But the other teams should also be aware that if an Aussie calls someone a bastard, it’s often more affectionate than nasty.

By the other token, I think that Indians should be aware that there is an entire racist discourse behind calling a person with West Indian background as a “monkey”. It may be culturally acceptable in India to call someone a monkey, but as the picture at the beginning of this post shows, to single out the only black man in a team for that name has some very unpleasant connotations. If it’s not racist, why did the Mumbai crowd single out Symonds? Why were the other (white) team members not called monkeys too? I suggest the only answer can be racism. It ill behooves a group of people who have been under the colonial yoke to adopt racist colonial stereotypes. There is a certain fallacious logic to some of the responses that “brown people can’t be racists”. Anyone can be racist. Racism is present in all societies. It so happens that in most continents, for reasons of “luck” or historical happenstance (rather than because of any intrinsic superiority), Europeans colonised and subjugated other people. But it could just as easily have been a different ethnic group if the conditions had been right.

To call a man of partial West Indian descent a “monkey” could be said to suggest, in accordance with 19th century scientific racism, that black people are somehow less than human. So it’s far worse than just an insult. It’s a justification for slavery and genocide. It’s like teasing a Jew with a swastika and saying it’s an innocent Hindu symbol – the racist subtext of the swastika makes it non-innocent. I note that in the Hindustan Times, many Indians have written justifying the use of the word “monkey” towards Symonds. Those Indians should look at the picture at the start of the post and think carefully about that claim, because there is a deep racism ingrained in that insult. In my opinion, regardless of whether or not Singh actually called Symonds a monkey, it should be made clear to all cricketers and cricketing fans that racist terms such as this are simply unacceptable, and to say it was “just a friendly term” is disingenous.

Waxing lyrical

Perhaps I’m old-fashioned, but I’ve never understood the appeal of the Brazilian wax. In fact, I’m a bit disturbed by the thought that there might be guys out there who prefer women to be hairless. Do these guys like to imagine that the woman is very young? Erk.

There is a piece in The Age today about Brazilian waxes for teens and pre-teens. The piece references a site called girl.com.au which touts itself as “Empowering girls worldwide”. The site has a feature on Brazilian waxes. I thought I’d go have a look. I was horrified. It explains the concept as follows:

Removing all hair from the vagina area, the Brazilian Wax although sadistic in nature is surprisingly not as painful as you might think, to some.

My first comment is that this is an appalling sentence. (Yes, I’m a pedant). My second comment is that I have my legs waxed and it hurts! And once my sister persuaded me to have a bikini wax…owch! Not the kind of thing you want sensitive girlish skin to undergo. I think I’ve made the right decision to avoid Brazilian waxes. The piece goes on to describe the process in ways that make it sound like some kind of torture or violation:

Brazilian waxing involves spreading hot wax your buttocks and vagina area. A cloth is patted over the wax, then pulled off. Don’t be alarmed if the waxer throws your legs over your shoulder, or asks you to moon them, this is normal and ensures there are no stray hairs. A tweezer is used for the more delicate areas (red bits).

EEEK! Doesn’t sound very empowering to me. Apparently if I wanted to become a model this would be a “must”, but fortunately, I got over that particular desire at the age of 13.

I think they have changed the most offensive part of the feature since Dubecki wrote her article. Dubecki says that the site says “Nobody really likes hair in their private regions and it has a childlike appeal”, but the site now says, “Nobody really likes hair in their private regions and this removes it.” Nonetheless, it’s still pretty full on. It suggests that “nobody” likes people who have pubic hair and that “everyone” is removing it.

I suppose it’s all about what you’re comfortable with. I can understand wanting to remove leg hair, and if my 15 year old daughter wanted to wax her legs, I’d let her, with parental supervision. However, I don’t think I’d allow it before the age of 14. Also, if my daughter wanted to shave her underarms, I’d let her. It would be hypocritical of me not to let her do these things because I do them myself.

But I draw the line at Brazilian waxing. The skin there is particularly delicate. And that area is private. It is a sexual area, in a way that legs and armpits are not. There’s no reason to undergo Brazilian waxing unless one is (a) wearing very revealing clothing or (b) exposing that area to others. I just don’t think that it’s appropriate for young teens to do either. Furthermore, I don’t want my daughter thinking that there’s something wrong with her when she hits puberty and gets pubic hair. The inference is that an adult body is somehow dirty or wrong, but girlish, thin and smooth is “sexy”. It’s just a continuation of the idea already present in the media that only girls are attractive, and that a womanly body (with curves, breasts, pubic hair) is ugly. I don’t want my daughter to believe that. And I’d encourage her never to undergo the process described above.

As I’ve said before, there are some very confusing messages out there for young girls these days. Girls’ magazines seem to assume young girls will be wearing makeup and revealing clothes before hitting their teens. Let’s not beat around the bush. Makeup, revealing clothing and waxing are all designed to make a woman more sexually attractive to men. Do we really want 8 year olds doing things which are ultimately designed to make them sexually attractive? I don’t. No wonder Jamie Lynn Spears is pregnant at the tender age of 16: to be rather crude, she looks like “gaol bait”. If we sexualise girls at a young age, we shouldn’t be surprised if they then go out and behave in a sexualised manner.

I really don’t want my daughter to go out and explore her sexuality until she’s ready. And I want her to be comfortable with her womanly body when she grows up. Now, I think that’s an idea which is truly empowering.

Who’d be a polly?

Not me, for sure. I’m far too clumsy. In fact, I am known for the stories of my clumsy adventures, although I haven’t had one in a while (touchwood). Not since I dropped my office key down the lift shaft at work over a year ago.

Therefore I felt quite sorry for Julia Gillard today given the wide press coverage of her fall onto her bottom. Bad enough if you do it in a room filled with 500 people (which I once did at a wedding – unfortunately walking past the bride and groom’s table at the time, so most of the people in the room were looking at me). How bad must it feel if you do it in front of the Australian political media? Seems like she handled it as gracefully as possible, anyway.

No wonder I cancelled my subscription to The Age

I’ve been a bit out of it lately; no time to read blogs or newspapers much. And I cancelled my subscription to The Age when we moved hoise. Why? Because they keep publishing stupid opinion pieces by authors like Catherine Deveny and Tracee Hutchison. I think the final straw was Deveny’s opinion piece about changing one’s surname after marriage. I don’t mind if someone has a different opinion to me, as long as it’s well thought out and well justified. But frankly, I’d prefer to read posts of my blogging friends, which are vastly better written and reasoned than these opinion writers. I think the blogosphere keeps a person honest. Try writing a post where you haven’t thought the issue through properly, and commenters and bloggers will point out what you have missed very quickly.

Anyway, I thought I might catch up on what I’ve missed in the blogosphere and MSM over the last two months, but I didn’t get very far before I discovered Deveny’s idiotic offering about affairs in marriage. I’m almost reluctant to talk about it, because to talk of it gives some credence to the piece, but I can’t get this irritation out of my head. I came upon it by reading Cynthia Karena’s response to Deveny’s article in The Age today. Karena puts it succinctly: “There’s no such thing as a good affair.” Well said.

Here’s an excerpt from Deveny’s piece.

Lifelong monogamy is an unrealistic expectation that makes people feel like failures. And if you don’t believe me, take one look at the divorce statistics. People are torn between their emotions and an archaic expectation that was conceived when the average life expectancy was 30. Monogamy is a wonderful way to maintain what the church and the state would call “social order” and, more importantly, to ensure paternity to hand wealth down to offspring.

Things are different now. In First World countries most people’s lives are no longer just about survival. Seeing survival’s sorted, we’re distracted by the promise of stimulation, happiness, constant change and upgrading. Eating our way up the food chain via hedonism and desire.

Yes, of course I think lifelong monogamy is a wonderful concept. And I would love to think that we would all find a mate for life and live happily ever after and be buried in the ground side by side for all eternity and never fancy another person. But it’s an unrealistic expectation. That is not to say that we shouldn’t try our best to achieve it. You can’t go into a relationship thinking: “I’ll stay till I get bored or she gets fat.” The mantra of for better or worse, richer and poorer, sickness and health is something that applies to all relationships. Not just sexual ones.

…

But what about the notion of spiritual theft? An open relationship is one thing, but what about a secret connection on the side that is filling the desire for something more breathless, more glittery, more slippery, more illusive. Something you just don’t get in a long-term relationship. Some people have confided in me that an affair has saved their relationship. We hear all the bad affair stories, but never the good affair stories. Most would say that it’s not right, but I can see that some people may feel that if no one is being hurt, that it is not totally wrong either.

This piece sounds like an apologia for cheaters, and that’s not something which sits well with me. It’s an excuse for the selfish person to cheat on his or her partner and say “Well, it was in everyone’s best interests really. I deserve it. I mean, after all, I’ve stuck with this person for 30 years. And now I can go back to my partner again.” And then they feel a happy little glow…

I disagree. If you go into a relationship which is expected to be monogamous, then you should not cheat with another person. I also disagree with the proposition that friendships are equivalent to sexual relationships. I don’t think that I have to swear to stay friends with someone, but if I’ve formally sworn that I will stay married with someone, that’s a different story. It’s no chance that in Jewish law, the bride and groom have to sign a ketubah or contract – it’s a promise. There are some friends who will be friends for life, of course, and whom I will stick with through thick and thin. And other friends drift in and out of your life, and I’m not a “cheater” if I drift apart from a friend and make new friends.

Of course cheating happens, and sometimes, there’s even a good reason for it. I have had friends who have cheated while they were in a relationship. And the circumstances were almost identical. The cheater repeatedly tried to end the relationship honourably, and the other person wouldn’t accept this and became hysterical and suicidal. So the cheater committed the ultimate unpardonable offence of cheating to finally put an end to the relationship. In both cases it worked, too. It seemed to me that the cheating was understandable in that kind of a situation.

But what about cheating on a partner who doesn’t know the relationship is in trouble or that the other person is unhappy? Or cheating on a partner just because you are “bored” and want to try something different? That just doesn’t seem appropriate to me. In the first instance, the cheater should communicate his or her dissatisfaction. In the second instance, the cheater is just a selfish bastard.  I don’t think there’s such a thing as a “good affair”. Say A is married to B and has an affair with C, but doesn’t tell B. Firstly, C might be expecting the relationship to continue, and C might be hurt. Secondly, even if B doesn’t know about the affair, it could still hurt B, and it’s certainly dishonest to B. The only one who wins is stinky old A. I would hate the idea of my partner cheating on me and not telling me. I’d rather end the relationship than keep on going with someone who lied to me and cheated with someone else. But I wouldn’t have a real choice because in the scenario above, I wouldn’t be told. And then if there’s kids involved, and they are aware that A is cheating, but can’t tell B, then they’re being hurt and betrayed too.

Perhaps it depends on what is meant by “cheating”. Speaking to another man is definitely not cheating. Looking at Brad Pitt and thinking he’s hot stuff is not cheating. In my view, nor is flirtatious conversation, as long as it’s made clear that it’s in fun only. Kissing or sleeping with someone else is definitely cheating.

There’s just no way to keep the hurt out of it. A friend of mine had ex-hippy parents with an “open relationship”. For many years, this seemed to work okay. Until he confessed he’d been sleeping with someone from work, so she told him that she had been sleeping with his best friend. Apparently just sleeping with just “someone from work” was okay, but sleeping with a “best friend” was a different story. They separated for a while. Then they decided they couldn’t live without one another, and got back together on a “non-open” basis.

I doubt that there’s many open relationships where both partners have remained unhurt, unless they are both selfish narcissists who don’t really care for one another, only for their own gratification.

People aren’t perfect, and unfortunately, cheating happens in marriage and other monogamous relationships. Some marriages or relationships may emerge stronger from the other end, with better communication between partners. But many break up, causing a great deal of pain to at least one party in the relationship. Let’s not make excuses for cheating. To cheat is to hurt the other person, and there’s no way around it.

Defamation and anonymous blogging

Has anyone else ever put comments up in online forums, or in response to newspaper stories or blog posts? If you’re reading this post, I suspect that you might have been tempted to do so. You know the drill then. You are required to enter your name in a box headed “Name”, and then you are required to enter an e-mail address. Usually, there is a disclaimer beside the box, stating “will not be published” or “for verification purposes only” or something of the sort. Perhaps you have used a psuedonym, feeling safe in the knowledge that no one will know who you are. Given a recent case in the UK, perhaps you need to mind what you say.

In Sheffield Wednesday Football Club Inc v Hargreaves [2007] EWHC 2375 (QB), a football club, Sheffield Wednesday, and members of its board of directors sued the owner and operator of a fan website, www.owlstalk.co.uk, for defamation. The plaintiffs sought to require the website to disclose the e-mail addresses of contributors to a fan chat forum whose contributions were said to be defamatory.

At the outset, taking off my lawyer’s wig and adopting a practical point of view, it seems to me that if one’s fans are already offside, then suing those who are critical of your management isn’t going to increase your popularity with the fan base… Just a thought.

In any case, the comments were made by some 11 anonymous contributors, all of whom were fans of Sheffield Wednesday. All of the comments were scathing about the way in which the plaintiff chairmen/directors and others had managed the club.

Richard Parkes QC said at the outset at [9]:

…in a case where the proposed order will result in the identification of website users who expected their identities to be kept hidden, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court.

Ultimately, his Honour decided that the defendant should be required to divulge the details of only those contributors whose comments were of the most serious nature (at [17] – [18]):

It seems to me that some of the postings…border on the trivial, and I do not think that it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive or likely to be understood as jokes. That, it seems to me, would be disproportionate and unjustifiably intrusive. …

The postings which I regard as more serious are those which may reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour on the part of the Claimants. In the case of those postings, the Claimants’ entitlement to take action to protect their right to reputation outweighs, in my judgment, the right of the authors to maintain their anonymity and their right to express themselves freely, and I take into account in this context the restrictions on the use of defamatory language which the rules of the Defendant’s bulletin board impose, restrictions which in the case of these postings appear to have been breached. I take into account also that the Defendant does not appear to have had any policy of confidentiality for the benefit of his users.

Having read the exerpts of the comments in the judgment itself, the comments in fact seemed pretty tame compared to some things I’ve read in the blogosphere. I could imagine the comments being made by disgruntled fans in the pub after the match, and indeed, I think this is very much the way in which the fans themselves saw it; except that they had put the comments in writing on a public forum, which gives the comments a very different status.

People often treat e-mail and online forum comments as if they are “verbal” rather than “written”. But what could just be a disgruntled whinge may come across as something altogether more serious when put in writing. I fell into this trap once myself with e-mail, and vowed never again to communicate problems via e-mail, as they lack “tone”, and may come over so much more harshly as a result. 

Furthermore, it’s easy to be nasty if you are just typing a comment and don’t have to look someone in the eye when you make it. I once dealt with a client who was pleasant if you saw him in person, but typed vicious and unreasonable e-mails asking you to crush the other side and give no mercy, even if the dispute was partly of his own making. My tactic was always to ring him back about the e-mail and get him to soften the instructions thereby. I’ve never found a “take-no-prisoners” approach to be effective. Softly, softly, catchee monkey…and go in for the killer punch if necessary at the end.

It’s even easier to be vicious if you are anonymous, because if you want to make up a sufficiently obscure psuedonym, even your own mother might not realise you made the comment, so you don’t have to take responsibility for it. Although I write under a psuedonym on this very blog, I always write as though I was writing under my own name. I’m sure it’s easy enough to work out my real identity if anyone really wanted to do so.

The lesson for us all is to be very careful with what we say. Would we be embarrassed to own up to it? Is what we are saying truthful? It seems that it was important in this case that (a) there was no confidentiality policy in place to protect the details of contributors and (b) there was a policy that abusive/defamatory comments should not be made. At the very least, those who run internet forums and the like will have to revise their confidentiality policies if they wish to protect the details of contributors.

Any comments, of course, will be treated STRICTLY CONFIDENTIALLY (just for the record, in case any judges out there are reading this blog).

Not so funny…

On Wednesday night, The Chaser featured a song which poked fun at Princess Di, Steve Irwin, Peter Brock, Stan Zemanek, Don Bradman, Kerry Packer and other dead celebrities. It has been widely slammed by politicians. The Herald Sun editorial says that the song “gratuitously slandered people whose memories are cherished by Australians.”

Chris Taylor, the author of the song, said “I think it makes a fair enough point that people who were flawed in life are often disproportionately hailed as saints in death.”

I’m not a fan of the hagiography surrounding dead celebrities in the media. Just to take an example from The Chaser’s list of celebrities, I must confess that I found the massive outpouring of grief at the death of Princess Diana to be bizarre. While she was alive, I didn’t have much time for her. I don’t know that I’d go as far as Germaine Greer’s biting criticism, but I always found her to be a sad person rather than a person to be admired. I am sure she did some good things, but there are others whom I admire far more. That being said, I found the nature of her death to be tragic because she was a young woman, a mother of two small boys, and it was a horrible way to die. But I certainly didn’t feel personally bereaved in any sense. 

I don’t know if I’m unusual; I don’t connect with media celebrities in the way that many other people seem to. When I was a teenager, I never had crushes on celebrity actors, and wondered if I was abnormal. I did, however, have crushes on imaginary fictional characters (eg,  Faramir in Lord of the Rings – swoon!). I think I would feel more of a sense of personal loss at the death of an esteemed judge rather than a celebrity. Perhaps that just proves I’m a nerd.

I would be interested to know about the psychology of mass outpourings of public grief. Often we are encouraged to hide our grief, but perhaps when there is a death of a much-admired celebrity, the public expression of grief becomes acceptable. Maybe people feel that they can grieve their own loved ones as well as grieving for a celebrity? And I think the very imperfections of the people mentioned in the song was part of their attraction, and the reason why people identified with them. It made people feel better about their own relationship troubles, mistakes and the like.

So, unlike the Herald Sun, I wouldn’t say that I cherished the memory of any of the people mentioned in the song. But nor would I deliberately make fun of their deaths. It just seems like bad taste. The fact remains that the people mentioned in the song still have families who are distressed by the death of loved ones. And I would not want to distress them further by making fun of those deaths. I think it was “cheap” of The Chaser to court notoriety in this fashion. I’ve never had that much time for them anyway: I don’t really like cruel humour of that type.

15 minutes of fame

“In the future, everyone will be world-famous for 15 minutes.” (Andy Warhol)

Seems like it’s my turn to have 15 minutes of fame. On Sunday, The Age had an article about legal blogs, featuring a quote from yours truly at the end. The hard copy is even better because it has a picture of the banner from the blog (with the awesome eagle picture which Iain found for me). I’ll scan it in and put it on the blog when we get set up in the new house.

Moving day is tomorrow. Telstra cut our internet off a week early, hence my lack of blogging, commenting or anything else. I’m typing this before class starts…zounds, better get to class!

Playing the race card

Last night when I was driving home, I saw a large group of boys standing on the pavement outside the Housing Commission flats. The boys were predominately of African descent. I was thinking about it when I got home. The boys had been dominating the footpath. Would I have felt nervous if I had been walking on the street and had to push past them? Yes, I would have. Was it because they were African? No, not at all. It was because they were male and blocking the footpath. Regardless of race, religion or class, as a lone woman, I would feel slightly worried about having to pass a large group of boys. I don’t think they were a gang, they were just a group of boys hanging out with nothing better to do, but that’s when boys get up to mischief. It made me think more deeply about the news of the last few days.

It was with a sinking heart that I watched the news the other night with stories of Sudanese gangs terrorising Noble Park and Dandenong. The news release dredged up the crimes committed by Sudanese refugees Taban Gany and Hakeem Hakeem. The implication seemed to be that all Sudanese refugees were lawless drunkards and rapists. Sudanese refugees had become an issue because a young Sudanese man, Liep Gony, was bashed to death at Noble Park railway station by two youths who were not of Sudanese descent. Sudanese people have been victims of crime too.

The response of the Federal government was to say that it had limited the intake of African refugees to Australia because of their difficulties in integrating. Various interest groups and Sudanese community groups then said that this was racist.

Neither response is going to resolve the problem. Just because some Sudanese refugees commit crimes does not mean that all Sudanese refugees have integration problems. On the other hand, if there are problems with a small section of the community, they should be faced and people’s concerns should not simply be dismissed as racist. That dismisses the concerns of people who may feel worried. It’s better to actually confront the concerns and see if there’s any valid points.

Sudan is a very troubled area of the world, to put it mildly. It has been involved in successive civil wars and conflicts with neighbouring countries. The conflicts have been partly on religious, ethnic and tribal grounds. Presently there is a terrible conflict in Dafur where it has been alleged that the Janjaweed militia have committed acts of genocide against rebel groups.

The 1951 Convention relating to the Status of Refugees says that a refugee is a person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country…”

Refugee and asylum law only really developed after World War II, where there was a massive number of displaced persons. The idea is that blameless civilians should be granted asylum in other countries which are safe and in which people will be free from war and violence. My attitude toward refugee law is “Do unto others as you would have them do to you.” If Australia were suddenly dragged into a civil war, and I escaped with my family, I would hope that another country would offer me refuge. Some of my dear friends came to Australia as refugees.

Clearly, there would be many Sudanese people who qualified as refugees. Many of those who arrived here would be traumatised and would have seen and suffered terrible things. Many Sudanese would have grown up in a war zone, with little or no laws. Obviously, there are going to be adjustment problems when people who are traumatised suddenly have to adapt to a totally new society. Sometimes, also, ethnic, religious and tribal conflict is also likely to have been brought across to the new country, especially if a person’s family has been killed by another group. That’s just a fact of life (I remember those Serbia-Croatia soccer matches when I was a kid – which turned into mini-civil wars in the stands). Some refugees may be both perpetrators and victims of violence. Furthermore, refugees may have grown up with little or no laws, a very different culture and a different language.

I should think that, given the above factors, it’s clear that at least some Sudanese refugees will have integration problems, and it does no one any good to deny it. It is also true that there are some “bad eggs” within the Sudanese community, as there are within every community. But does that mean the intake of African refugees should be limited? Aren’t integration problems part and parcel of taking in refugees, and to be expected? I don’t think we should exclude Sudanese or African refugees on a blanket basis. That would be unfair to those Sudanese and African people who genuinely wish to live here in peace and harmony with other Australians. It reminds me of times when teachers say “I’m going to give you all detentions because of the behaviour of one person in this class”. I really hated that. The expectation was that the group would discipline the individual as a result – but why should everyone be punished for the crimes of one or a few? I always felt angry, and as if the teacher was abrogating his or her responsibility.

It must be ensured that refugees are given proper support and counselling, as well as education in English language and Australian laws and culture. I have heard of some refugees being dumped in rural towns, with little or no support, and it is hardly surprising that problems then arise. As the UNHCR says, refugees are required to comply with the law of the country which has given them asylum. Refugees must be made aware of our laws and customs (but certainly not in the manner of that really stupid citizenship test). It must also be ensured that community leaders communicate with their members and say that ethnic violence, tribal violence and violent crime are not acceptable in this country.

Also the concerns of shopkeepers and the like in Noble Park should be addressed. They obviously perceive a problem, and while it’s easy just to write them off as “racist”, I think that this actually makes the problem worse and increases resentment. People have a right to feel safe, and there should be a swift response to crime which gives a message that it is not acceptable. I tend to think no excuses should be made on the basis that someone is a refugee.

Thinking back to that group of boys on the pavement yesterday, perhaps boys should be made aware that congregating in a large group can sometimes be intimidating and scary to others, whatever one’s ethnicity or religion. But I suspect it’s just something that naughty, bored boys do, wherever they are from and whatever their culture. And I also suspect that some boys enjoy and cultivate the intimidation factor.

It’s a problem that can’t just be fixed by one side alone. The refugee communities, the police, the government, the social workers and schools have to all work together. And there’s always going to be a few bad eggs. It is a fact of life that there will always be negative aspects to granting asylum to refugees. Some people will have difficulty adapting or will be undesirable or criminal. But there are also immense positives. I think of my dear friend, who came here as a two year old, a stateless refugee. She’s now a success story: a businesswoman with two degrees, a mother and wife, an Australian citizen, an Aussie Rules footy fan (far more than me) and an all-round great person. I couldn’t think of a better addition to Australian society. It’s not worth throwing the baby out with the bathwater. Some common sense from all sides would not go amiss.

Finally, I wish the press would show some restraint as well. Sensationalised reporting creates the sense of a crisis and inflames tension. I’m sure there are genuine problems, but sensationalising them helps nobody. Let’s look at this logically and calmly. What am I saying? It’s election time – no one can look at anything sensibly during election time… Sigh!

Portrayal of accused and the law

Dave Bath at Balneus has an interesting post comparing the court sketches of Dr Haneef, noting that the sketches in the Murdoch press make Dr Haneef look somewhat like a Neanderthal.

Now it could just be a matter of personal interpretation. I must confess that when I worked in and around the court system, I used to occasionally do sketches of people (witnesses, barristers etc). Some sketches were better than others. Some people might have been a bit offended had they seen some of my renditions. Sometimes a sketch took on the character of a parody, even when I hadn’t intended it to do so. Perhaps that’s what happened to the Court artist.

But Dave makes another interesting point in a later post – is it legal to present a defendant in a way which is unflattering and may lead members of the public to draw adverse conclusions about that person?

This area of the law is called “contempt of court by publication”, and it is a somewhat byzantine jurisdiction. There is an inherent jurisdiction in the court, and also legislative provisions preventing contempt of court. Contempt by publication covers the publication of material which might tend to adversely influence a jury before trial. There is of course a balance between freedom of speech and the right of a defendant to a fair trial. The question is also how far media representations do actually influence jury members. According to the WA Law Reform Commission Report on Contempt, a study (M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity (2001)) found:

1. Jurors often believed that newspaper coverage of their trial was inaccurate and/or inadequate.

2. Juries were equally successful in identifying the relevant issues regardless of whether the publicity was negative or positive towards the accused. Also, the quantity of negative publicity did not seem to make a difference to the proportion of verdicts that were ‘safe’.

3. In trials where the evidence was equivocal [that is, not strong in favour of guilt or clearly insufficient]…there was greater reason to believe that publicity may have affected the verdict.

As a lawyer who has seen cases that she has worked on reported in the press, I would agree that you really can’t trust press reports, and that it is quite a different thing to sit in court and watch witnesses testifying to reading about it in the paper. Also, seeing someone in the flesh is very different to seeing them in a photograph or even on television. Personally, I discounted much of what I had read or seen in the press in favour of my own first-hand impressions. But I don’t know if I was influenced subconsciously in any way.

In fact, this is not the first time issues like these have arisen in a high profile case. My mind went back to the media coverage of that terrible event, the Port Arthur massacre, perpetrated by Martin Bryant. Some of the papers, including The Australian, ran a picture where the Bryant’s eyes had apparently been digitally altered in order to emphasise the whites of his eyes, which gave him a crazed look. The then Director of Public Prosecutions, Damian Bugg, issued writs against various media outlets for contempt of court in the light of concern that the sensationalised media reporting would prejudice the defendant’s chance of getting a fair trial (and thus make Mr Bugg’s job much harder).

However, the then chair of Australian Press Council, David Flint, argued that Australian newspapers regularly ignored contempt-of-court provisions, indicating that the law needed to change, rather than the newspapers.

Clearly it’s not a straightforward question. I will be very interested to see what Dr Haneef looks like in a photo, and whether the Murdoch press’ portrayal is fair or not.