The Ballarat search

[spacesailor]

But

If executed there is no payment to the falsely convicted. 

spacesailor

[Marty_d]

2 hours ago, old man emu said:

No, but it is better understood by twelve good persons, and true who have sat on hard benches for a week or so listening to people speak with words not generally heard outside the school gate at pick-up time, or on the sidelines on Saturday mornings.

Please explain the process of how they determine the goodness and trueness of said jurors...

[old man emu]

When this phrase was coined, around 1650, 'good' implied distinguished rank or valour. These days people aren't required to be valiant or of high rank in order to be part of a jury. They aren't even required to be men, as women have been called for jury in both the UK and USA since around 1920.

 

The phrase is contained in several poem and plays of the time, and not really coming up in actual trials.

[Jerry_Atrick]

Re convicitng for murder without the body, it is possible based on very strong cicumstantial evidence. It uis highly unlikely the missing person is alive as well.. The standard of proof is still beyiond reasonable doubt. Under English law, 10 of the 12 jurours are required to find guilt beyond reasonable dount. Reasonable doubt is not given any quantitative bar; it is the normal use of the English language that determines its meaning and it is subjective to each juror. The only direction to what reasonable amount means is ins Australian law (well between English and Australian law) in which a judge determined it is beyond balance of probabilities. Under UK law, that would be in excess of 51% sure.

 

Going back to circumstantial evidence - the judge (under English law and I recall at least under the state of Victoria's law) has the power to direct a jury to find not guilty. The judge can use this when the evidence is simply not strong enough - especially when circumstantial.

 

The miscariages of justice by utilising technology such as DNA many years after the conviction applies equally to those csaes whee the body was and was not found.

[Bruce Tuncks]

In the case of the Falconio murder, I was amazed that the murderer ( a guy called Murdoch ) was not "persuaded" to tell where the body was. He was as guilty as could be imagined, yet he ( so far ) has not told. Now I understand why, but I reckon it's wrong that he should be allowed to not tell.

 

[facthunter]

It's oft said the LAW is an ass. Justice is often not part of it and it's beyond the reach of the average poor Bastard. The Lawyers who work for the biggest criminals get rewarded the most.   Nev

[old man emu]

The problem with the legal system is that it is a trade whose techniques are not known to the rest of society. It's a bit like the general public having to deal with an IT expert. Do you know the ins and outs of how I am able to send what I am writing from my keyboard to your screen?

 

Legal eagles train in oratory. They can speechify with words that send even the most avid lexicographer to the archive to define. They have the time and resources to trawl through the precedents to find one that suits their case. They can pursue a case more intensely than a Crown prosecutor, often because their caseload in miniscule compared to the prosecutor for the Crown.  

[facthunter]

The reliance on precedent defies logic. It implies ALL historical decisions are sacrosanct and far be that from the truth,  USA proves you can BUY judges so let's not kid ourselves.   Nev

[red750]

14 minutes ago, facthunter said:

USA proves you can BUY judges

So do some decisions of our High Court.

[old man emu]

5 hours ago, facthunter said:

The reliance on precedent defies logic

Not really. The Law we have is an evolving thing. In the British system, it was obviously heavily based in the application of the Christian Commandments to the existing social rules that came from the very earliest times that people gathered in communities. In order to have a degree of consistency in the interpretation of what constituted an offence and the proofs of committing that offence, travelling judges referred to each other's interpretations. From the general acceptance of those interpretations came the Common Law. As society became more complex, the creation of the rules of operation of the society, it's laws, ceased to come from the mouth of the monarch, but were put together by representatives of the people in parliament. Those rules were written down to become the Statute Law. Statute Law clarifies and confirms the Common Law. 

 

The ‘doctrine of precedent’ is the rule that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts. A legal principle refers to a standard rule commonly used to interpret and apply the law to different circumstances. There are two kinds of precedent: binding and persuasive. A precedent is ‘binding’ on a court if the precedent was made by a superior court that is higher in the hierarchy of courts. A precedent is ‘persuasive’ if it was established by a superior court that is not higher in the hierarchy of courts. This means that the precedent should be seriously considered, but is not required to be followed.

[facthunter]

The LAW gets it wrong often enough to debunk the "reliance" thing. They used to claim the POPE was infallible too. Don't tell me plenty of high Court decisions were/are worthy of review. To ERR is Human. Judges are not GODS even though the way some behave you'd have to wonder. They are not beyond interference and corruption, either. Judge NOT lest YE be judged.  The "BEST  we have got" may not be serve the purpose. People still get wrongly Incarcerated and that's just not good enough.  Nev

Edited March 23 by facthunter
more content.

[old man emu]

But in a Trial before a jury, the Judge is simply the umpire ensuring that the rules of the game are not breached. In the address to the jury, the judge can inform the jury of what the precedent for a point is, but it is still up to the jury to determine if the offence has been proved. Also there is the Guide to Judicial Conduct, which provides principled and practical guidance to judges as to what may be an appropriate course of conduct, or matters to be considered in determining a course of conduct, in a range of circumstances.

 

https://aija.org.au/publications-introduction/guidelines/guide-to-judicial-conduct/

[ClintonB]

10 hours ago, Bruce Tuncks said:

In the case of the Falconio murder, I was amazed that the murderer ( a guy called Murdoch ) was not "persuaded" to tell where the body was. He was as guilty as could be imagined, yet he ( so far ) has not told. Now I understand why, but I reckon it's wrong that he should be allowed to not tell.

 

I have read some interesting books on this case, we need to remember that this is the same state who was sure Lindy killed her daughter, they locked up a scumbag, just might not be for the crime he was accused of. There was some fairly strong evidence that mr Falconio wanted to disappear. I find the facts of the girlfriend climbing from canopy to cab of a Nissan patrol, hiding in the bushes whimpering, tied up with cable ties, smelling of fear not being found by a dog to be dodgy.

blackfellas who were brought in 24 to 48 hrs after the crime were perplexed by no bugs were interested in the blood on the road. In his job Peter had been searching for how much blood has to be found to be determined dead, prior to coming to Australia. There was also a poor bugger who sighted him at a servo a long way from the crime scene after the fact in the company of a man, not in distress and was well and truly in shock when he seen a news story about the same man afterwards.

don’t think we will ever find out what truly happened unless he turns up on his deathbed one day and admits it.

 

[Jerry_Atrick]

4 hours ago, facthunter said:

The LAW gets it wrong often enough to debunk the "reliance" thing.

Care to provide numbers where the law (and we mean courts) got it wrong? Are we talking various branches of public law (criminal, taxation, etc) or private/civil law (tort, contract,defamation, etc). Is it the advesarial system that gets the law wrong, or is the law wrong? And, wrong in what way - your or my personal assessment or those of 12 people on the jury that hear the facts without relying on news reporting, etc, judges in non-jury cases who I would have to say are more expert and have probably seen a lot more than you or I in their field. Even if we read the court reports rather than rely on reporting, you are reading a media which does not convey the vast majority of what is involved in human communication - body language and inflection. So, where the attendees of the whole trial can make up their mind of the credibility of a witness or exhibit, it is harder to do that purely from the written word of a court report.

 

2 hours ago, old man emu said:

But in a Trial before a jury, the Judge is simply the umpire ensuring that the rules of the game are not breached.

This is correct. The other tenet of our system is the adversarial system of law.. .which means the plaintiff/prosecution and defence are like two teams fighting each other to get a winner and loser. The idea is that through this apprach, the truth will emerge - or at least who is the more believable. This is in stark contrast to the European system, which is inquisitorial and works of a general code of laws. This is known as a civil legal system after the first Rome code of law known as Corpus Juris Civilis, introduced by the Roman emperor Justinian. Most of the European code across most central and western European countries is based off the Napoleon code. In the inquisitorial or civil system of law, the judge in like the lead investigator and is supported by counsel for the plantiff/prosecution and defence. There is no jury. Although the are not bound by their previous case decisions, they often refer to them to determine the outcome. There are advantages and disadvantages in both, to be honest. I can point to cases for both legal systems were the outcome was perverse; and similary I can point to many more cases in both legal systems where the outcomes seemed perfectly logical. In my personal view, a sort of hybrid approach will get us to a better outcome inquiditorial in which the preceding cases need a good reason not to be applied, but also a jury )there is none in the inquisitorial model) that acts as a check and balance.. there have been some cases where juries have found the just outcome amidst the legal and prfessional experts leaning the wrong way. One issue with the adversarial system is, of course, it assumes representatives for both sides are of equal calibre. This is obviosuly not the case.

 

4 hours ago, facthunter said:

Don't tell me plenty of high Court decisions were/are worthy of review. To ERR is Human. Judges are not GODS even though the way some behave you'd have to wonder

I can't comment in plenty of High Court decisions, because I don't know them. Which ones in particular are you (and Peter) relating to? Of course judges get it wrong, historically, and contemporaneoulsy. But there are three checks and balances on that: 1) An appeal - utlimately to the appeals bench of the High Court. Now,, appeals generally occur if there is a good chance of an error of law, or on a procedural issue, such as being deined a fair trial because of some direction. Generally speaking, one can't bring an appeal on a question of fact. However, a point of law may be that a pevious case (or more often the case, a series of previous cases - it is rare only one case will be cited) has been incorrectly applied to the facts, or the facts are sufficiently different as to warrant a review of the applied decisions. 2) The parliament has the power to override any common law, so if it is that bad, and there is enough will, parliament can fix it. And they have in the past. The third, is a little more esoteric, but I thinnk in around 1850 or so, the law of Equity, which intorduced to offset the hard effects of early common law practice in the 16th century has been combined with the common law, so if an unreasnable outcome  would occur in applying the common law, the judge can grant equitable relief.

 

4 hours ago, facthunter said:

People still get wrongly Incarcerated and that's just not good enough.

I agree with this, but I don't think there is any system of law where this does not happen - maybe anarchy?  What are the numbers - do global civil legal systems result in less wrongful incarcerations than common law systems? I would hesitate to use one county to compare to another, because there are local cultural issues. The Royal Commission into Aboriginal Deaths in Custody points to a dire bias against Aboriginals in the justice system; many have been freed after length times in jail because of finally being proven innocent on evidence that would not normally result in a white fella's conviction. I am not sure the same holds in Canada, for example. And also, how do you prove of those who are in current incarceration are or are not there legitimately - a country's appeal system may not be effective enough to find out the truth, so it may just appear that there are not many wrong incarcerations because they never really entertain an appeal. In Japan, it is pretty well accepted that if you are charged with an offence, you are going to be convicted; the acquittal rate is extremely low - 0.1%. People reason this is because Jaspanese prosecutors will not prosecute anyone unless they are 99.9% sure they will get a conviction. That may be the case, but I would question what is the bar for getting a conviction, then. I personally know the facts and the laws that applied to  a case where the defendants were convicted and sent to jail  in Japan. Under both Australian and, at the time, European law, which is largely the same in Japan in this area, they probably would not have even been charged.

 

11 hours ago, facthunter said:

The reliance on precedent defies logic. It implies ALL historical decisions are sacrosanct and far be that from the truth,  USA proves you can BUY judges so let's not kid ourselves.   Nev

This is simply not true. Precent allows a far more dynamic evolution of the law that statute. Yes, there are "binding" precedents on the lower courts. The most obvious one in Australia that dynamically developed the law where parliament was going nowhere near is the Australian Doctrine of Native Title. The Mabo [No 2] case In 1992, the High Court held that the declaration of terra nullius, which allowed Australia to be settled rather than colonised by treaty giving regards to the rights of the indigenous population required by conquest. It overturned it based on English (and "international", or largely European) law that applied at the time, not as it is now. By making the delcaration of terra nullius illegal, which overturned centuries of common law cases (see R v Murrell (1836)), it proves that historical decisions are not held sacrosanct. Of course, now the court was faced with a bit of a dilemma - if it were to find that settlement of Australia was illegal, then theoretically, in light of there being no treaty to recognise indigenous rights, colonisation and reception of British Law into Australia would be illegal to, and the land would revert to the descendants of indigenous people. That would not be good, so they invented to common law doctrine of native title, recognising rights in what seems to be a practical way to avoid that. Then the parliament decided it was time to refine it somewhat witht he Native Titles Act. Another example is the UK case of White v White (2000). Prior to this, the common law required that in the case of a divorce, the dependent (ex) spouse was entitled to a property settlement that would keep her (as it was in those days) in teh same standard of living that she enoyed at the time of the divvorce. So, before a wealth bloke was to leave her, he would tone down the lifestyle significantly about a year earlier, and then the courts would award her a much smaller amount and the wealthy breadwinner would take a nice packet to himself, despite her working with the business or making sure everythig else was done so he could focus solely on the business. White v White changed the comon law to be equal settlement (subject to some conditions - such as taking away the value of the pre-marital assets, conduct during the marriage, whether or not there are dependents at home, etc).

 

With precedent, previous decisions oof cases with the same facts are binding on the lower couts of a jurisdiction. The courts where the decision was made are usually able to overturn the common law decision they made, and higher ones certainly can. Often courts will differentiate a case by the most marginal difference in a fact and call it material enough to alter the decision (not totally disregard previous precedent). Where it can't be and a judge has to apply binding precedent, they can apply equitable relief to that judgement. If for some reason that can't be done, the jusge will apply the unfair decision and usually grant immediate leave to appeal to the court that can review the decision. Of course, as with native title, Parliament can change something that is deemed needing change.

 

Buying judges can happen with any legal system - it is not the sole preserve of a common law system. Thsi would be more about the political and constitutional arrangements than any legal system itself. The US is a prime example - political appointees are generally not a great thing for indepdentnt justice, but this is totally separate to whether it is a common law or inquisitorial system. Note, Louisianna is an inquisitorial/.civil law state and they have the same aappointment process.

 

Often people get hung up about how something was not fair in a court trial - usually how the truth was shut down.. or how someone got off on a technicality or something. This is not the result of common law; this can happen in inquisitorial systems and often does. This is the result of procedural law - the operation of the courts, or the law of evidence. Vuirtually all of this is codified in statute these days, and only interpretive cases clarify some of the law where it is vague.

 

[Edit] The reality is there is no certain outcome in any legal system for a case, and by definition a common law and inquisitorial system are reactive - meaning the law is only delcared when a case comes to court, where is a statute is proactive - it is declared as the result of its enactment.

Edited March 23 by Jerry_Atrick

[old man emu]

13 hours ago, Jerry_Atrick said:

One issue with the adversarial system is, of course, it assumes representatives for both sides are of equal calibre. This is obviously not the case.

Consider this: If a barrister in private practice can't win cases, new ones don't come in and neither does the money. A barrister employed by the Crown is pretty much assured of a fortnightly paycheck, which might not be as much as the one in private practice, so failing to get a few convictions won't take the food off the table. Also, when the Crown fails in a prosecution, the Public believes that Justice has been served correctly. And finally, the Crown Prosecutor is simply presenting the evidence that the investigators have provided. If the prosecution fails due deficiencies in the evidence, the Prosecutor can flick pass the blame.

 

Finally, if the accused engages a barrister, the barrister will concentrate on that case which would be dealing with only type of allegation,whereas the Crown Prosecutor will be juggling several cases involving a variety of allegations against different people  which have been investigated by separate teams. It's a case of overload.

 

 

[Bruce Tuncks]

Here's a "fact" that impressed me....  most people think a sentence is too short, until they become well aware of all the facts of the case and then they think the sentence was too harsh.

But I was intimately part of the Murdoch case, to the extent of being held up a roadblock seeking the perp. All of the facts that I know of just reinforce Murdoch's guilt. 

Did you know that dna from his skin was in her cable-tie bindings? There is lots more evidence than that, and it all points to his guilt.

Personally, I find that the anecdotes about how somebody looking like falconio was seen weeks later to be unconvincing.

[facthunter]

Either Legal.  person could be in overload  and under qualified. I can't see your logic OME. The COST of representation is beyond most ordinary people and they are at a severe disadvantage in most circumstances.  Nev

[facthunter]

 There's also a reasonable assumption the DPP wouldn't proceed with out sound evidence.  WRONG.