Said Marcellus ...

[old man emu]

1 hour ago, facthunter said:

I very strongly reject some of the sentiment being expressed here

Two factors are at play here, I think. A lot of people have taken a dislike to Higgins.  At the same time, a lot of people think that damage has been done to the campaign for improvement in dealing with gender-based conflicts. (I can't use 'assaults' in its widest terms because my intention to use the broad meaning does not come across in print.). Discussions on the various social media formats twist the two together to make a chocolate swirl cake.

 

[pmccarthy]

It is, and always will be, impossible to adjudicate on he says - she says cases. Without any evidence, it is impossible to convict and so it should remain. 

[facthunter]

Bit like Lindy Chamberlain Eh?   Can't have the new tourism facility at Uluru financially threatened. Higgins was given the buns rush because of an upcoming election.  Nev

[old man emu]

Getting to Shane Drumgold, if he wants to have a go at the Police here's an easy way for the Police to show that their reluctance to prosecute was reasonable.

 

The application of the law is based on precedent - what has gone before. A lot of us are into analysing data and making conclusions based on those analyses. There have been very many Trials of persons accused of sexual assault, so there is a wealth of data on what material was present when there was a finding of guilt, and at the same time lots of cases that did not reach that conclusion. All that has to be done is to go through the material and to determine the frequency of matters relied upon. Then the Higgins case material can be compared to come up with an opinion about the likelihood of a conviction.

 

It does also require the acceptance of the idea that in serious matters taken up for in-depth investigation, the Police go to great lengths to gather unimpeachable evidence to present to juries for their consideration. I know where the pressure was being applied in this case. Sexual assault in Parliament House after the Parliament itself was being chastised for gender-based misbehaviour.

[Yenn]

Could the police saying there was not enough evidence have been correct? If so they would not want to bring a case to court that failed, because we cannot try a person a second time for a crime. Once found not guilty Lehrman. Could not be charged again. Maybe the government is paying out Brittany Higgins, so that she is cashed up and will bring civil charges against him.

Whatever happens it is a real fiasco, probably on a par with the media and prince Harry, but far more damaging to the people involved. I am thinking Drumgold and Scumbag should get together.

[Jerry_Atrick]

7 minutes ago, Yenn said:

Could the police saying there was not enough evidence have been correct?

Yes.. As OME has stated, they have a lot of experience on what works and what doesn't in sexual offences.

 

9 minutes ago, Yenn said:

If so they would not want to bring a case to court that failed, because we cannot try a person a second time for a crime. Once found not guilty Lehrman. Could not be charged again.

Correc ton both counts... at l;east under Aus federal law.

 

9 minutes ago, Yenn said:

Maybe the government is paying out Brittany Higgins, so that she is cashed up and will bring civil charges against him.

Doubtful.. I think it is hush money and would not be surprised if there is a non disclosure agreement (gag order) that comes with the settlement.

10 minutes ago, Yenn said:

Whatever happens it is a real fiasco, probably on a par with the media and prince Harry, but far more damaging to the people involved. I am thinking Drumgold and Scumbag should get together.

Totally agree.

 

[facthunter]

Lehrmann has NOT been FOUND" NOT Guilty" Nor has he been found guilty. The case was abandoned due to A juryperson breaking an instruction by the Judge presiding.   The case was to have been recommenced I think in February but the Prosecutor didn't think Higgins could go through it all again. health wise. Nev 

[old man emu]

1 hour ago, facthunter said:

the Prosecutor didn't think Higgins could go through it all again.

What a convenient 'Out'! Makes the DPP look like he cares for, still at this stage, the alleged victim and at the same time saves him from the possible embarrassment of losing a high profile case.

 

Now the anti-Establishment radicals are complaining that the Defendant should have been made to get in the Box and give his side of the story. To demand that is to demand that an accused abandon the right not to say anything that could incriminate themself. The expression 'the right to silence' describes a group of rights which arise at different points in the criminal justice system. This group of rights includes a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.

 

Our criminal system has developed in such a way that those who seek punishment for the breaking of laws, must locate the evidence to prove the allegation without the forced assistance of the accused. Even a freely given confession is held to be suspect in a Trial, even if the accused makes it known to the Court that the confession was given without duress. So our system works on the system of, "If you reckon I did it, prove it." If you are going to deprive me of some attribute of Freedom (my time, or my money, or a permission) you had better have all your little duckies lined up precisely.

 

[facthunter]

In my view the "right to be silent" doesn't ring true. The question is WHY is being silent, necessary if there's nothing to hide?  IS fear of self incrimination  an  out? Nev

[Marty_d]

Someone may give, for a multitude of reasons, the wrong impression to the jury just because of the way they present or speak.  I hate public speaking and either ramble or "umm" and "ahh" a lot.  Someone might swear a lot because that's their normal way of speaking.  In that case then they're probably better off sitting there in their suit and not saying a thing, so that any decision the jury makes is based on the evidence presented to them rather than their feelings about the accused.

 

[willedoo]

1 hour ago, Marty_d said:

I hate public speaking and either ramble or "umm" and "ahh" a lot.

Marty, we'll have to get together for a yarn one day. I speak the same language.

[old man emu]

5 hours ago, facthunter said:

The question is WHY is being silent, necessary if there's nothing to hide?

Under our system, by the time a matter gets to Trial, the Prosecution case should be a 10 No Trumps bid. There should be no reasonable rebuttal  for the Defendant to have to make from his/her own mouth. Prior to the commencement of the Trial, the Defendant has a complete copy of the Prosecution Brief to have scrutinised. If that scrutiny finds a flaw, then the Defendant's legal representative can expose it in cross-examination. 

5 hours ago, Marty_d said:

Someone may give, for a multitude of reasons, the wrong impression to the jury just because of the way they present or speak. 

Unless you have had to appear as a witness in a Trial, you cannot know how stressful it is. Even after years of regular appearances in a multitude of matters, each matter is unique and the line of cross examination is unique. Even in a Local Court where the same Defenders appear, week in week out there is always something about the day's cross-examination that has not been met previously. An Informant's statement, matter after matter, might be 80% cut and paste from a previous statement, but it's in that other 20% that the Informant is put to the test.

 

So,why wouldn't a person, completely unfamiliar with the Courtroom, Courtroom procedure, and trial procedure struggle to be coherent in giving evidence? Adversarial cross-examination is meant to politely break down a person's story. It is better to keep one's mouth shut and be thought a fool, than to open it and prove it.

 

As an investigator, I welcomed the suspect who did agree to be questioned. If I conducted the interview properly it would end with the suspect taking responsibility for his actions, or raise questions about the various versions I had been given. A refusal to be interviewed resulted in more work for me, and more inconvenience for the suspect.

[facthunter]

At a police interview the POI If they chose to NOT answer ANY question is marked UN CO-OPERATIVE in the appropriate box.. The person we are talking of took her there and left her there therefore is and must be a witness. She was also unconscious and starkers.. Regardless of the rape issue separately what about the duty of care side of it.?  I agree it stinks but not from the perspective you have taken. Wouldn't having the whole Place Industrially cleaned be destroying evidence? 

[old man emu]

10 minutes ago, facthunter said:

At a police interview the POI If they chose to NOT answer ANY question is marked UN CO-OPERATIVE in the appropriate box.

Which fantasy book did you pluck that from?

Section 89 Evidence Act 1995 provides:

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a) to answer one or more questions, or

(b) to respond to a representation, put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

 

Subsection (3) means that if the law says you must give your name when legally required to, and you don't say anything, that is a proof of the offence of "Fail to supply name ..." Those strict liability requirements usually apply simple to identification, and a Court imposed penalty is more a punishment for wasting time.

[Jerry_Atrick]

Yes.. that used to be the law here, too. But that changed maybe about 10 years agoi now, where a negative inference can be taken by a defendant who persistently refuses to answer questions or appear at the witness box.

 

 

[old man emu]

10 hours ago, Jerry_Atrick said:

that used to be the law here

You'd think that having been in law enforcement, I would applaud the stripping away of that ancient right, but I won't. Maybe I'm the odd one out, but I believe that if I'm going to remove a more fundamental Right - freedom - I'd better be 100% correct. It's alright to be exercising upon others the powers and authorities Society grants you, but how would you feel when someone else uses the same on you?   "So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets" (Matthew 7:12).

[Jerry_Atrick]

2 hours ago, old man emu said:

You'd think that having been in law enforcement, I would applaud the stripping away of that ancient right, but I won't. Maybe I'm the odd one out, but I believe that if I'm going to remove a more fundamental Right - freedom - I'd better be 100% correct. It's alright to be exercising upon others the powers and authorities Society grants you, but how would you feel when someone else uses the same on you?   "So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets" (Matthew 7:12).

I was merely stating what the law has become, after a review by Lord Justice Auld  (The Auld Review: https://www.criminal-courts-review.org.uk/auldconts.htm), and not whether it was right. I was studying English/Welsh law at the time, and doing criminal law subjects when the report was releeased and the government, from memory was going to implement most of it. The press had whipped the populace into a fury after some high profile criminal cases collapsed due to technicalities which were portrayed as disproprotionately weighted in favour of the accused. It did not help that the preess did (and often still does) portray the accused as guilty while still stayiing within the remit of what can be published. By the way, the term, alleged, is not often used in the press here.

 

However (and there is always, a "but"), I am not averse to this particular reform as I am to others. The purpose of the court is to uncover the truth to seek justice. If a key party to a proceeding is afforded the benefit of not having to testify, and that person's testimony would be key to uncovering the truth, then why - whether it is criminal or civil - should that person be able to deny the opportunity to seek the truth by electing to not being subject to questioning at all - and not have any inference drawn from it. In other words, what is there to hide?

 

Of course, the world isn't black and white; one of the problerms with the adversarial system is that it depends on the two sides' representatives (barristers) to engage in interlocutory warfare (hence, the "adversarial" system) to uncover the truth. The idea is that each side will put their case and test the other's case diligently to get to the truth - or to arrive to the point where it is clear that the truth will never be clear - the other's word against yours, so to speak. It therefore depends on counsle of both sides being competent - and equally competent - and neither having a bad day.  If you're a defendant and are compelled to give evidence, lest you will have a negative inference (but not necessarily a finding of guilt), and your barrister (or solicitor in Aus) is having a bad day, if you do take the stand, you could inadvertently and inaccurately incriminate yourself. So, OME, I get your opposition to it, And, as the law would prefer a guilty man to walk free than to deny liberty (or in the old days, life) of an innocent man, then, it is a valid argument against it. In other words, while I may have nothing to hide, this duty/legal aid lawyer who looks like they're coked up is likely to stuff it up for me, so I am staying shtum.

 

As I mentioned earlier, the Auld report let to many "reforms" that pollies enacted to satisfy the blood-beying populace. One of them, which I think is a denial of natural justice, is that, and I still can't believe it, a judge may admit to evidence in the trial of the accused's previous criminal convictions in order for the jury to determine guilt. I cannot find one shred of evidence or reasoning to support this; It is designed to be brought in where the prosecution thinks they are being stiffed by technicalities, they can petition the judge to allow admission of previous convictions to support their case. Firstly, if someone can tell me what relevance a persons previous convictions are to determining if they are guilty or not of an accusation, I would welcome it. Thiink about it - someone who works in the mob as a bagman is framed for a murder. The prosecution are getting frustrated so they play the, "Oh, this fella looks like he is going to get away with murder on technicalities." The judge allows previous convictions to be admitted. The jurors who may have been uncertain (BTW, it is now 10 out of 12 jurors rather than unanimous), decide, yeah, he has done it before.. he definitely did it this time. But the other real criticism is, that if the judge assess the petition, looks at the evidence, and admits the prior convictions, it is a tacit direction to the jury  to find the defendant guilty - after all the judge thinks it is material to the case.

 

However, there was one reform, which I think did progress justice. The abolition of the double jeapordy rule (where once you have been acquitted of an offence, you can't be retried for it). Well, it isn't really abolished, but can be rebutted if new evidence comes to light that was not available and could not have been discovered at the time of the trial and it is material. And any retrial can only go over the newly acqurable evidence - i.e. it can't drag back evidence already submitted in the prior trial. This means, the evidence, by itelf , is likely to prove guilt. This is to cover technological advances, particularly in genetic evidence. And I think that is a good rule.

 

Sorry tp everyone for the above - OME cast the bait and I swallowed it.

Edited December 16, 2022 by Jerry_Atrick

[facthunter]

I can absolutely ASSURE you it happened OME. I was there. I don't make up stuff.  Nev

[old man emu]

1 hour ago, facthunter said:

I can absolutely ASSURE you it happened OME. I was there. I don't make up stuff.  Nev

I don't want you to think that I think that you made it up. But it so such a massive comment to make that I would like you to quote your source. Please.

[facthunter]

 Do I come across as absolutely stupid? Believe Me, I tried to take it further, but they all band together.  Verballing and roughing up is normal.  Sorry but it's true.  and I'm NO  crim.  Nev

[old man emu]

1 hour ago, Jerry_Atrick said:

The purpose of the court is to uncover the truth to seek justice

What a noble concept! The idea is that each side will put their case and test the other's case diligently to get to the truth - or to arrive to the point where it is clear that the truth will never be clear. It therefore depends on counsel of both sides being competent. Counsel for the Defence isn't interested in discovering the truth. They are paid to raise doubts about the evidence the Prosecution presents to cover the profs of the offence. Note that it is not to show the evicence as being wrong, but simply to cast doubt. And if doubt can be introduced, is it fair to ask a juror to make a decision with doubt in their minds?

 

 

[facthunter]

The clerk of the Court at a session my father was involved in said, You'll get NO Justice here, Only LAW.  Nev

[old man emu]

9 minutes ago, facthunter said:

Do I come across as absolutely stupid?

Whoa! I didn't know that it was a personal experience. 

 

Having said, "At a police interview the POI If they chose to NOT answer ANY question is marked UN CO-OPERATIVE in the appropriate box.. ", I have to ask, how was that notation used later? Did the piece of paper get presented in Court?

 

The notation might have been made to explain why an issued set of tapes had no recordings in it. Each set of tapes has to be accounted for to ensure that there is no malpractice. The form can also be used to record anything that might have caused timed blank spaces in the tapes. The machines will record the sound of being turned off and at the time that happened.

 

I can't comment on what you say about verballing and roughing up, but I think my explanation of the issue procedure is sufficient to indicate that such a notation would never make it in to Court.

 

The procedures for recording of interviews, in my day on recording tape, but now probably digitally, were introduced to eliminate  verballing, which was rife.

[facthunter]

I obtained copies and recordings later and spent a lot of money in court which I didn't have. I can't be more specific I just advise people stay away from Cops and Courts. It's not the only time either. No more on this.  Nev