The Law Report: 24 February 2004 Part Two - The WA Children's Court
[This is the print version of story http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s1050905.htm]
Damien Carrick: You're listening to the Law Report on Radio National. I'm Damien Carrick; Today loooking at Juveniles and the Justice System in West Australia.
Recently it was announced that the President of the W.A. Children’s Court, Kate O’Brien, would move back to the District Court.
Kate O’Brien has attracted a good deal of criticism over the two years that she’s been at the Children’s Court. The big gripe, that she’s been too soft when it comes to sentencing.
But Hylton Quayle, the President of the W.A. Criminal Lawyers Association, says that criticism is unfair.
Hylton Quayle: Well the4 criticism that’s been directed at Her Honour, has been mainly in relation to sentencing, and it’s come mainly from the government and from some sections of the media. She’s imposed in the two years or so that she’s been on the court, about 700 sentences, and of those, there have been six appeals to the Court of Criminal Appeal, and three of them successful. Two Crown appeals were successful and one Defence appeal was successful. The two successful Crown appeals, one was in relation to a dangerous driving, or grievous bodily harm charge where the sentence was increased from 2 years and 2 months detention, to 3 years and 6 months detention; and the other successful Crown appeal was involving aggravated sexual penetration a sentence of 2 years and 7 months detention, was increased to 6 years and 9 months. But they were the only two successful Crown appeals, which is about .004% of her decisions. Now both of those decisions attracted a fair bit of criticism in the media and also from the Attorney, but you’d have to say that they’re certainly not representative of her performance on the court.
Damien Carrick: I can certainly understand why people would say Gee, rape, aggravated burglary, these are very, very serious crimes, and I can understand why people might seriously question that kind of sentence, and why the media might say, Look, this is an important issue of public interest.
Hylton Quayle: Well it’s difficult to make that judgment, unless of course you’re in court and you know the whole circumstances. I mean children are treated very differently to adults, and that’s enshrined in our legislation, it’s why the job of a Children’s Court President is very difficult. But those are two cases out of 700, you know. No-one has any complaints about the others, and that’s why I’m saying it’s unrepresentative and it’s unfair to the court to pick out and heavily criticise a couple of decisions which subsequently proved to be wrong. The real concern is the fact that it is not just the media, I mean the media is a place for legitimate debate about decisions, but the real concern is that it is the government, more specifically the Attorney, who has criticised the court, and the President, said that her decisions are too light, and it’s not only confined to the President of the Children’s Court, these criticisms have been made of other judicial officers as well over the last year.
Damien Carrick: What do you say to the argument that Well the Attorney-General has a responsibility to ensure that the justice system is as he or she sees it, functioning effectively.
Hylton Quayle: No, look, this is in fact a very relevant debate at the moment in Australian legal circles because the role of the Attorney is more than that of just a politician who represents the executive government. The Attorney-General historically has been the defender of the judiciary, the defender of the courts, the Attorney-General has specific roles. He takes contempt proceedings on behalf of the State where the judiciary are impugned. So we’re not talking about the debate, I mean Darryl Williams, when he was Attorney-General, came out and said that he didn’t believe that in the Australian context it was the role of Attorneys to defend courts. What we have over here in Western Australia, is in fact a position which is I think, unique, in that even Darryl Williams knew, which is that the Attorney doesn’t necessarily defend the courts, is not the view, it would seem, of the Attorney over here. Here he takes it one step further, and there is regular criticism of the judiciary. So it’s more than just a failure to defend, it’s an overt criticism of the performance of the judiciary where for whatever reason the government is unhappy with something that a judge may have done. Those criticisms have been most obvious in relation to the President of the Children’s Court because they’ve occurred quite often, and the remarks, well what’s appeared in the media, has been fairly vociferous. But it’s also happened with magistrates. There was a case last year in Joondalup where a magistrate was criticised by the Attorney in relation to a sentence she imposed, and there have been also criticisms by the Attorney about bail decisions of magistrates. So it’s a big leap from a failure to defend to an overt attack.
Damien Carrick: Tell me about that decision that he criticised, that sentencing decision.
Hylton Quayle: The sentencing decision generated a lot of publicity over here. It was in relation to following really the tragic death of a young girl by the name of Jess Mann, who was riding her bicycle and rode her bicycle into traffic and was knocked over. The driver was charged with driving under the influence, and I think also failing to stop. He wasn’t charged with any offence in relation to causing the collision, or causing the death of the child, because on the police investigation she had ridden her bicycle into the traffic. When he appeared in court, he pleaded guilty to driving under the influence, I think his reading was .165 which is higher than the limit of .15 for driving under the influence. He received a $1700 fine and a two year licence suspension. Now the Attorney came out and he was vociferous in his criticism of that decision. He said that the fine did not reflect the gravity of the crime or the consequences of the offending behaviour, there’s a 10 year old girl who’s dead as a result of someone’s driving while more than three times over the limit, didn’t have a licence and was a repeat offender. This was not justice, that’s the quote. Now that generated a huge amount of public debate, the court was brought into disrepute, the perception of the court and the judiciary obviously fell in the public’s eyes, I mean here was the Attorney-General criticising vociferously a magistrate’s decision. And the fallout has been dramatic, I mean the Attorney’s come around now and said that he’s going to change the laws so this doesn’t happen again. He’s going to reverse the onus of proof in relation to dangerous driving causing death type incidents.
Damien Carrick: But isn’t it legitimate to have that kind of debate, to talk frankly about what sentences are open to judges and magistrates in the event of particular offences taking place?
Hylton Quayle: The debate is a proper debate, and it’s one that there are many people who are well qualified to comment on and talk about it in the media, the problem is when the government, through the Attorney, attacks another supposedly independent arm of government. I mean courts are not in a position to defend themselves, they give their decisions in court, traditionally judges and magistrates don’t climb into the political arena in order to justify their decisions because traditionally, it’s been the role of the Attorney-General to defend courts, not necessarily specific decisions, but to defend courts, because Judges and Magistrates can’t do that themselves without becoming political, without becoming involved in media comment. But where you’ve got an Attorney who doesn’t do that, where you’ve got Ministers of the Government, because it’s not only the Attorney, Ministers of the Government who regularly criticise the courts, it leaves the courts in a very vulnerable position, because you’ve got then a clear attack on what is supposedly an independent judiciary with a judiciary that perhaps is not comfortable with responding to the attack in the media.
Damien Carrick: Well David Malcolm, the Chief Justice of W.A. issued a press statement expressing his support for the performance of Kate O’Brien in her role as President of the Children’s Court.
Hylton Quayle: That’s right.
Damien Carrick: Was that unprecedented?
Hylton Quayle: I don’t know that it was unprecedented, but it was certainly very strongly worded and appeared to be a direct response to whatever machinations had taken place in terms of Her Honour Judge O’Brien’s return to the District Court.
Damien Carrick: In other words, a rebuttal to criticisms made by the Attorney-General?
Hylton Quayle: That’s my reading of it, yes.
Damien Carrick: Hylton Quayle, President of the W.A. Criminal Lawyers Association.
On one point he does agree with the W.A. government. He’s welcomed moves to make the position of Children’s Court President a fixed two-year term. Most judges in the job have served roughly that length of time.
And Quayle agrees that a fixed term will remove any impression that the government is removing a judge because it doesn’t like a judge’s decisions.
One direction from which you might expect some arrows aimed at the Children’s Court are from the Prosecutors. But Robert Cock, Q.C., Director of the W.A. Office of Public Prosecutions, says Kate O’Brien has performed in exactly the way you’d expect: she gave paramount consideration to the circumstances of child offenders, doing her best to ensure their rehabilitation.
Robert Cock: There’s been a couple of sentences, certainly, that she’s imposed over the last couple of years, which in our view were far too lenient. On a couple of occasions we in fact successfully made that point to the Court of Criminal Appeal and received some fairly large increases in a couple of sentences, in cases in which the court accepted our submission that her disposition was just far too lenient.
Damien Carrick: Her decisions attracted a good deal of controversy; why do you think that was?
Robert Cock: I think it’s very easy to target the President of the Children’s Court in Western Australia, because inevitably because the sentence regime imposed in that court will produce less comparative outcomes than those of the other superior courts dealing with adult offenders. Prima facie, anyone hearing of the sentence and hearing the grotesque circumstances of the commission of some of the offences, would feel some sense of injustice, and so in other words, it’s very easy for the media to explain in very broad terms, the offence that’s given rise to a sentence which compared with a sentence for adult offenders, is obviously lenient, and I think it’s really that feature which has enabled criticism to be made of her. I don’t suggest for an instant that the amount of criticism is in any way valid, but it’s because of I think, a lack of understanding in the community of the very important considerations which have to be applied in the case of juvenile offenders. And another problem which is of aligned to that inability of the media to fully canvass, even if they wished, the full circumstances and details of the offences, because that of course could possibly lead to the identification of the offenders, and of course that itself is unlawful and in any even would destroy the rehabilitation prospects of these younger people.
Damien Carrick: Robert Cock, Q.C., says over time relations between Police Prosecutors and Judge O’Brien deteriorated to a point that mid-last year, the W.A. government funded his office to conduct all trials and sentences down at the Children’s Court.
I asked why relations between the police and the court were so strained?
Robert Cock: When police prosecute any case, and I don’t now confine my comments to the Children’s Court, they’re obviously taking a pro-prosecution line, they’re aligned necessarily with investigation of the particular case, and generally the outcomes that they would like would be heavy sentences, and I don’t mean any disrespect when I suggest that, that’s obviously a very important consideration, but an independent prosecutor who in fact is not aligned to the investigation of the matter, who hasn’t invested resources in investigating the matter, can probably take a more independent assessment of what is necessarily required as an outcome, and probably on some cases, where the balance does favour the child offender, can probably more readily accept a disposition other than a long term of imprisonment. But I do think that probably because of that feature alone, the police will probably tend to be more disappointed with the outcomes, and perhaps lack the level of understanding in the outcome that a trained, experienced Prosecutor who does understand the impact of the Children’s Court action, that the desirability of ensuring that we maximise rehabilitation really as a primary consideration.
Damien Carrick: Do you think the disquiet felt amongst Police Prosecutors impacted on the media coverage which the court received?
Robert Cock: I don’t think there’s any doubt that the Police enjoy a pretty good relationship with the media, and I do think that they are well able to ensure that their point of view by and large is put to the media and often reflected in media presentations of cases. Again, I don’t mean any criticism of that, and it’s a very good thing that the media fully cover these cases, but I do think that the Police probably weren’t in a very good position when they were disappointed, to ensure that there was adequate media coverage of that particular case.
Damien Carrick: Robert Cock, Q.C., Director of the W.A. Office of Public Prosecutions.
That’s The Law Report for this week.
Next week: jails. It’s 25 years since the Nagle Royal Commission helped drag New South Wales prisons out of the Dark Ages.
Brown: A good example was the systematic flogging of all prisoners in the Bathurst jail in October 1970. That was actually led by the then Superintendent Pallot, and prison officers went round cells systematically one at a time down wings in cell blocks, four or five, six of them bursting into cells and flogging prisoners with batons and prisoners could hear the mayhem, the screams, the shouts on the way round the prison as they waited for their turn.
Damien Carrick: Prisons: how far have they come, and how far do we still have to go? That’s next week on The Law Report.
Thanks to the production team of Maria Tickle and Gary Havrillay.
Guests on this program:
Hylton Quayle
Head of the WA Criminal Lawyers Association
Robert Cock QC
WA Director of Public Prosecutions
Presenter: Damien Carrick
Producer: Maria Tickle