Australians believe they ought to be ruled by laws, not by the arbitrary whims of whoever happens – by might or right – to wield power.
We believe those laws should govern the behaviour of all, whether we are a homeless derelict, a wealthy tycoon or the holder of high political office.
We respect what we call “the rule of law” and “procedural fairness” because these processes express one of the core values on which our nation was founded – that of the fundamental equality between persons.
What often goes unstated is that we both assume and expect judicial processes that are fair will deliver fair outcomes. This isn’t always the case. Evidence gathered wrongly by police can see a serial paedophile freed on what the media tends to call a “technicality”. Individuals deemed mentally unfit to stand trial might have committed extremely serious crimes they could well undertake again, should they be released into the community. Rape reporting and conviction rates are so low – about 12.5 per cent, according to one recent study – that Australian Supreme Court judge Marcia Neave recently admitted that “the vast majority of true allegations [of sexual assault] do not result in any redress through the criminal justice system”.
The truth is that our justice system prefers a fair process to a fair outcome. In an ideal world we expect the two to go hand in hand but, when push comes to shove, Australian justice prefers a guilty person to walk free than an innocent wind up in jail.
This is how it should be but I do think we need to be careful about the way we describe cases that fall between the lines.
In 1959, Sandra Willson murdered an innocent stranger – 23-year-old uni student and part-time cab driver Rodney Woodgate. Willson confessed to the killing and described it in great detail in an unpublished manuscript. But because she was deemed mentally unfit to stand trial, she was detained at the governor’s pleasure.
After being declared sane, she needed the campaigning of activist group Women Behind Bars to secure her release. These activists did great work but listening to a radio program on the case recently, I flinched at their description of Willson as a “victim” and as “not guilty”. The latter characterisation, while technically correct, seems insufficiently nuanced and insensitive to Woodgate’s family.
Those aware of disconnects between fair process and fair outcome are also obliged to speak up. This is what Justice Neave was doing when she raised concerns at the failure of changes to rape trial proceedings designed to increase their fairness to victims to also deliver fair outcomes. Instead, Neave told a conference in Sydney, both guilty pleas and conviction rates appeared to be in free-fall, increasing the risk that those guilty of sexual offences will “escape prosecution and offend against other victims”.
The answer, Justice Neave says, might be restorative justice conferences. There perpetrators admit or acknowledge guilt, hear the victim’s pain and agree to reparations like a written apology or to undertake counselling.
This might work. Surveys of those involved in pilots of such programs find that upwards of 90 per cent of both victims and perpetrators judge them to be fair and substantial majorities feel the outcomes are just.
In fairness, law reform is just what the system needs National Times