Hearsay ... the Journal of the Bar Association of Queensland
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The Case Against Releasing Criminal Histories Print E-mail

innocent_guilty_intro.jpgIn this article Darin Honchin questions the effect of proposed criminal law reforms on civil rights and individual protections.



The Chief Justice of the Queensland Supreme Court, The Honourable Mr Paul de Jersey AC, recently called for reform for both civil and criminal jurisdictions. His Honour believed that his calls for reform might engender public debate on the issues. With this I would whole heartedly agree and encourage.

One such reform to the criminal law proposed by His Honour was the release to juries of a defendant’s prior criminal history. His Honour said:

I trust the intelligence and wisdom of my fellow citizens. I do not accept a claim that made aware of prior misconduct, jurors would automatically say: he did that so he must have done this.

If a jury will adopt such a position, what then is the purpose of giving to them the criminal history. Surely on His Honour’s observation the criminal history is therefore irrelevant? Just as the socio-economic position of the person will be irrelevant, that is, whether they are a person in a low socio-economic class or a high socio economic class (knowing as we do that a higher percentage of crime is committed by persons from a lower socio-economic class), how can the person's past criminal history be relevant UNLESS its purpose is to say to a jury this person has a predisposition to commit this or other crime! There can be no other purpose.

The law already allows the admission of evidence of prior criminal or disreputable conduct which is strikingly similar, known as similar fact evidence. Its purpose is not to show a predisposition for crime, but to point to the identity of the alleged offender by the way the crime was committed – humans after all are generally creatures of habit.

If the argument is for past criminal histories, why not past criminal charges too, because as we know, it’s only because of smart lawyers and technical defences that the person gets off anyway? If a person has been charged several times for crimes but “keeps getting off”, if their past criminal convictions are so important to know surely being charged is relevant to a jury too?

Where then is our “Innocent until proven guilty” claim. One measure of a society’s maturity is its ability to recognise that its system of justice is not perfect but to refrain from knee jerk reactions for change because things don’t go the way they want. The recent not guilty verdict for Dr Patel is one example. The jury has spoken, do we the public know better and thus flippantly disregard their verdict and say well of course he’s guilty the Crown just couldn’t prove it, therefore we must make it easier for the Crown to prove guilt? Perhaps he just wasn’t guilty?

At the heart of much of the reform debate is cost and delay. How will the release of a person’s previous criminal history reduce cost and delay. One way of course is by knowing of its release and its effect upon a jury a person may choose to enter an early plea of guilty (whether guilty or not) because of the possibility of obtaining a lighter sentence. This will speed up the process and reduce the cost. But action designed to force a guilty plea does not mean that the conviction is right.

One difficulty of saying the law should be amended when an unpopular result occurs, is that there is a failure to review the reasons for the failure. One reason of course is that some people just are not guilty. Sometimes there is a failure in the way in which a prosecution is conducted or a charge defended (see Di Fingleton and Pauline Hanson). Sometimes there is a failure in the investigative process. Not all prosecutions cases are perfect and often the evidence simply is not there to convince a jury of guilt beyond reasonable doubt. It is a sad day for democracy when deficiencies in investigations or prosecutions are bandaged over by throwing a person’s previous criminal history into the mix so that a jury can be made aware of it! Indeed the failure at Court to secure a conviction never seems to result in the police seeking out the true offender because they remain confident in their investigation that they have the right person, in their view it is the Court process which fails. Similarly there is never any charge of perjury or false complaint when a sexual assault case is not successful. Again because the investigation is correct it is the trial phase that has failed. Those involved closely with the criminal processes will realise that is not always the case. If the police investigation is so perfect why do we bother with the trial process at all. These rights and protections grown up over some many centuries are designed to ensure that innocent people are not convicted.

Over 800 years of development of the criminal law in the common law jurisdictions has shown us that protecting the rights of the individual are just as important as securing an individual conviction – maybe more so. Some of the old ways had to be reformed:

- juries being locked up without light or warmth until they reached a verdict

- an accused deemed to enter a plea of guilty if they failed to enter any plea

- the Attorney-general being entitled to enter a Court room and have a private discussion with the judge

- confessions being admitted following torture

- having no right to legal representation except on points of law

- defence witnesses were not sworn

- no rights of appeal

It is the bad old days and the bad old ways which have lead us to this enlightened position and I agree advancements can always be made, but a fork can remain a useful implement for eating until too many tines are taken away and then it is just a stick. One wonders if failed prosecutions make the community realise that the system is not perfect and that some guilty people are let off and some innocent people do get convicted. If the outcome of a trial was a certain conviction then there would be more early pleas of guilty, a satisfaction that the system was nearing perfection and that one could have some confidence that all the people convicted were rightly convicted.

We might laugh at the preposterous suggestion of the Queen in Alice in Wonderland, but where are we heading?

'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first—verdict afterwards.'

'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'

'Hold your tongue!' said the Queen, turning purple.

'I won't!' said Alice.

'Off with her head!' the Queen shouted at the top of her voice. Nobody moved.

Darin Honchin 

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