BARRIERS TO JUSTICE - THE RIGHTS OF THE ACCUSED
T F PERCY*
It gives me great pleasure, and is indeed a privilege, to speak here today. After agreeing to speak at this Symposium, I wondered what I (as a humble "hack" from the Criminal Bar) could possibly say of relevance, given that I have no experience in medico-legal matters as such.
Perception and Pressure
But the longer I thought about it the more it dawned on me that there were a number of significant similarities between the lot of the criminal lawyer and those of the medical profession.
The most notable is public perception.
Compared to the corporate sector we are not in the category of the mega-wealthy, although the media delights in portraying us as such.
The popular image is one of doctors and lawyers as uncaring individuals intent on simply feathering their own nests, to the detriment of their patients and their clients. It is a real problem, one that we need constantly to address. The second is pressure.
In many cases the matters we are each asked to deal with are the single most important events in the client’s life.
The outcome of our efforts will often dictate the course of the rest of the client’s life and that of their families. The pressure is often immense, and the feeling will be one to which many of you here today will readily relate. It isn’t pleasant. Western Australia’s most famous criminal defence lawyer of the 1950’s-1980’s called Leo Wood — once said to me, when I asked his reason for not supporting hanging, that it was “too tough on the lawyers …”.
The same might well apply to those of you involved in the upper reaches of your trade. One small mistake and the client’s life could in a real sense be effectively over. Whilst as a matter of government policy, they no longer execute people in most of our countries any more - (although if some current Australian politicians get their way, it might not be far away …), the pressure of having a person "go down" for a sentence of life imprisonment is a harrowing experience for a lawyer, let alone the pressure of a death sentence. Losing a patient after a marginal medical procedure, I would imagine is at least as difficult. But as there are for the medical practitioner who saves someone’s life or health, there are the occasional rewards in criminal law – most of them non-financial.
Recent Events
Like doctors, particularly specialists, criminal lawyers have taken quite a battering in recent years at the hands of the politicians, the insurers and the media. No session of Parliament seems to go by when one or other of our professions - if not both of us - does not "get it in the neck". It seems that the tide of legislative “reform” these days is always for the benefit of the perceived “victim”. (Or in the medical arena, for “victim” read “patient”). The recent Australian experiences for the rights of the accused have been bad. Take for example:
- Harsher mandatory sentences,
- reverse onuses,
- strict liability offences,
- defence disclosure,
- no fault property seizure,
- reduced rights to silence,
- abolition of preliminary hearings,
and so it goes on.
In the medical area, the Australian profession has not been immune: Relaxed concepts of professional negligence and ridiculous insurance premiums have in recent years made life inordinately harder for the medical practitioners, not to mention their patients.
One could well ask:
When was the last time a politician did anything which moved in the direction of ensuring that there were fairer hearings for accused persons, or advocated some measure which tended to reduce the risk of an innocent person being convicted?
Or, perhaps:
When was the last time there was a Parliamentary enactment which made anything easier for a medical practitioner to deliver his or her services to the public?
Certainly nothing significant along these lines has happened under any of the present State or Federal Australian governments.
Do we still adhere to the (once fondly cherished) principle that it is better that nine guilty persons be acquitted than one innocent man be convicted; a logic that for centuries underpinned the philosophy behind our legal system?
If we do, the politicians certainly don’t seem to…. Do we really still believe that in the absence of real and palpable negligence, one should be immune from any professional consequences? Again, if we do, the politicians certainly don’t appear to. And the reason is quite clear: there are a lot more votes in victims than there are in persons who slip through the widening cracks of the system. Every year there are a great many victims of crime in society. There are also many patients who assert that their medical advice or services have been deficient. From simple burglaries or drug offences to the worst murders, there are a lot of bereaved and aggrieved parties out there who look very favourably on any political party upping the stakes in the punishment race, or making it easier to convict alleged wrongdoers.
Compared to the number of persons wrongly convicted, the victims represent an overwhelming majority. So it is no wonder there is not much interest (or many votes) in attempting to fix a shortcoming in the system which could help prevent miscarriages of justice.
Similarly, in the medical sphere there are (certainly) in Australia far more votes in compensating perceived “victims” than ensuring medical professionals are protected from frivolous complaints.
No system of justice is perfect. There will always be wrongful convictions; just as there will always be victims of crime. There will always be disgruntled patients. Far more than the number of medical professionals who are their targets.
The task of ensuring that the system balances both problems is one that falls to the politicians. But the sad reality is that the real weight of votes is in the hands of the army of perceived victims, most of whom have not the slightest interest in the massive injustices that potentially result from each new legislative or policy measure aimed at tightening of the screws of the system.
Until someone is prepared to address the question of fairness with the same degree of enthusiasm as they address the question of toughness, there is unlikely to be any appreciable improvement in the quality of Justice in our society in the foreseeable future.
There just are not any votes in it.
Wrongful Convictions
In both of our countries there have been some glaring example of wrongful convictions.
In the criminal area the inevitable result of the so-called “tightening up of the system” manifests itself in wrongful convictions.
And, sadly, it is getting worse.
Anecdotally there is said to be around 1-2% of the long term prison population who are there as a result of wrongful convictions. Not just technically innocent as a matter of law, but objectively innocent.
Even on a prison population in a small State such as Western Australia (of around 4,000) this represents between 40 and 80 people who are genuinely wrongly imprisoned. In States like New South Wales and Victoria this would be about treble. There are some worrying statistics starting to emerge in this regard from the United States of America since DNA testing became available in 1989. (There aren’t any formal studies here but there is no reason to believe it would be any different.) In a recent edition of the Australian Law Journali, a disturbing article refers to the American experience where a leading University study confirmed that since 1989 there have been some 328 cases of confirmed false convictions.
A harrowing statistic when one takes into account the fact that most were murder or rape cases.
These of course were only the ones that attracted the interest amongst those persons prepared to fight the convictions (usually pro bono) and many (22%) involved death row "candidates".
The authors of the study extrapolated from these figures that there is every reason to believe that in the past 15 years there have probably been 28,500 wrongful convictions on serious charges in the United States of America.
A chilling figure, and one which I would suggest our respective Attorneys General should bear in mind before they bring in their next jurisprudential masterpiece like removing preliminary hearings, reversing the onus of proof or restricting the right to silence.
As divergent as they may seem, there is much in common between the journeyman criminal lawyer and the coal face medical practitioner.
The trust placed in us by clients as their legal or medical practitioner is enormous.
As is their trust and sometimes blind faith in the system, however foolish or misconceived that might be, and whilst we may sometimes become oblivious to it, we should never lose sight of it.
Conclusion
The job of taking up the cause of the falsely accused, the badly injured, the critically ill and the impecunious is never an easy one. It is, however, a noble one, despite often not being seen by the public as such.
The rewards when they come, are, as I have already said, sometimes substantial, but as I previously expressed not simply in financial terms. All of you I suspect will have had those moments and would treasure them.
Cross-professional Associations such as this are essential to ensuring that the cause is never lost, that genuine and deserving sick injured persons get their proper care without extraneous legal and financial considerations must be paramount. That the accused person gets a fair trial and right of appeal is non-negotiable, no matter how politically inexpedient it may be.
There are, I am sure, for you, as there are for me, days when you wonder if it is all worthwhile. Days when you wonder whether a simpler way of life might be eminently easier.
I would, however, implore you to keep up the good fight. Despite the persistent ignorance of the media and the politicians, the contribution you are making to the community, is a very great one and one of which you can be justifiably proud.
*T F PERCY, QC, Barrister-at-Law, Perth, Western Australia
Copyright 2005. Greek Legal and Medical Conference