On Wednesday night I was listening to the soon to retire New South Wales Director of Public Prosecutions, Nicholas Cowdery QC, being interviewed by Tony Jones on the ABC's Lateline Program. It was a fascinating interview made annoying because we lost the program in the middle through some technical fault. Now the transcript is on-line.
For the benefit of those outside NSW, Mr Cowdery has been something of a stormy petrel determined to defend the independence of his office in a state where law and order issues can dominate campaigning and where events and activities in the Sydney goldfish bowl play out in the merciless glare of publicity.
The apparent trigger for the interview was the DPP's decision to drop the manslaughter charge against Mark Wilhelm over the death of Dianne Brimble. It is now some seven years since Mrs Brimble died on a cruise ship. From her death through the inquest and then the failed trial that followed, all those involved have been subjected to a relentless glare of publicity that stripped away any privacy and embedded every detail in the public mind. In Mr Cowdery's words:
I think there's a lesson in there. I hope that there is a lesson in there for media in reporting matters of that kind in the future.
I don't want to go through the whole interview. I leave that to you. However, I do want to comment on a few points that will give you a feel for justice in NSW.
NICHOLAS COWDERY: The progressive removal of presumptions in favour of bail in particular circumstances is what I'm concerned about. When the Bail Act was brought in, it was very carefully constructed, a very measured and very moderate provision. And it was realistic.
But over time, in response to tabloid outbursts, the Attorney General, particularly the present Attorney General, has introduced legislation which has amended the act and made it much more difficult to get bail and therefore - and to have bail reviewed, and therefore has increased the remand population of the prisons enormously....
The problem is that if you whittle away presumptions in favour of bail, you do tend to interfere with the presumption of innocence and you get an increased number of people who are put into prison on remand, bail refused, who ultimately are acquitted or released or charges are not proceeded with. And we don't have a system in our jurisdiction of compensation for people in that position, as they do in some European countries.
This one pulled me up. While I disliked the constant tightening of bail provisions, I suppose that I hadn't really focused on the central issue: we are sending people to jail, sometimes for considerable periods given lags in the legal process, for crimes that they did not commit. We have made the act of being changed a crime, punishable by an undefined jail sentence.
TONY JONES: What is the impact of that kind of decision (in the Skaf case) and those kind of exemplary punishments? I mean, for example, I know that you were concerned that there'll be more murders in the cases of rape because the rapists would decide they've got more chance of getting away with it if they murdered the victim.
NICHOLAS COWDERY: Well, the danger is that if you increase the available penalties and the penalties that are being imposed unreasonably, then people who are going to commit these offences have nothing to lose by taking it the extra step.
In NSW something of a lock them up and throw away the key approach has developed. In a rather nasty rape case, the brothers Bilal and Mohammed Skaf, ended up getting extraordinarily high terms - 55 and 32 years. This was over-turned on appeal. The NSW Government has also tried for legislative powers that will allow it to keep prisoners considered to be a continuing danger to society in jail after their term has finished.
The practical effect that Mr Cowdery is referring to is that if you blur the sentencing distinctions between different types of crimes then you blur the deterrent effect.
TONY JONES: It's certainly swelled the numbers of people in prison in New South Wales, and interestingly, I think the incarceration rates in New South Wales are almost double what they are in Victoria. Is that as a result of this kind of ad hoc changes?
NICHOLAS COWDERY: It's contributing to it, yes. It's one of the enduring mysteries why Victoria has a much smaller prison population per head and why it has shorter sentences per head, but not a burgeoning crime rate.
They must be doing something right in Victoria; if only we could learn and apply the lessons here.
In fact, it appears that NSW locks up in jail four times as many young people relative to population size than Victoria. Seventy per cent of these re-offend within twelve months. In July 2009, the NSW Government commissioned a study to find out why the State jails so many.
I don't think that it requires rocket science to understand why. It is a natural outcome of the current NSW approach to criminal justice rules intended to get tough on crime. In addition, another reason lies (I think) in the increased numbers of people spending time in jail for non-payment of fines. This is another aspect of the NSW Government's overall approach to compliance issues.
I find in conversation that while people might be prepared to accept in a general sense that there are problems in current NSW approaches, conversation soon moves to specific cases or examples. As it does, attitudes toughen. It is these attitudes that NSW politicians play too, in so doing reinforcing them so that the cycle goes on.
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