Friday, September 28, 2012

Beaks Need Trimming

IT USED TO BE said that doctors buried their mistakes, which has not been true for some time, not with TV ads every few minutes for class action lawyers and medical malpractice suits quite common before the courts. As their insurance brokers know, medicos who make the wrong calls are going to be run through the mill, a likelihood pointing to the real smarties of our modern age. That would be the legal profession, in case you had not guessed.

Ponder this note, just received, from a professional journalist:

“I’m listening to Neil Mitchell of 3AW and Faine on 774 and they both keep saying that no one should mention a thing about [an accused killer’s long criminal record]. What they should be saying is how bad the restrictions on reporting courts are … every day we get at least a dozen suppression orders emailed to us banning mention of defendants’ names or other details.
“… last year a Melbourne magistrate banned publication of a sex attacker’s ethnicity. We could use his name but not the country he came from. Why? Well magistrates don’t have to explain; they can literally lay down their law as they please”

The correspondent goes on mention other bizarre rulings, including the decision some years ago to prohibit broadcasting the original Underbelly series in Victoria, even though it was being shown north of the Murray and readily available on the web.

And there is another thought as well, particularly on this grey Melbourne day as our city mourns the victim of a particularly vicious crime: Why do our courts believe Australians are so simple-minded they cannot be informed of defendants’ criminal records without proceedings being hopelessly prejudiced? Are Americans so much smarter than us, because no such prohibitions exist there and juries still seem to make informed decisions? Indeed, as O.J. Simpson could testify, avalanches of negative publicity, speculation and damning character profiles in the press can still result in an acquittal.

One of the few core responsibilities of government is seeing justice done while making sure that it is seen to be done. This should take place before the gaze of the public which pays significant sums for the service of judges and magistrates, the key word being “service”. Keeping the populace ignorant of matters of great public interest, and doing so for arbitrary reasons, suggests that the collective bench has lost sight of that obligation.

The legal profession has taken a lucrative delight in reminding doctors of their obligation to get it right. Physician heal thyself, as they say.


  1. Bunyip I'm sorry but your post is misguided and damaging.

    Do you understand that you are defending Australia's most powerful union with the knee-jerk assumption that doctors are being unfairly hit with malpractice claims?

    You should speak to some injuries lawyers. It is actually very hard to get a medical negligence claim up. A doctor has to be grossly negligent, and not simply make a serious mistake - even if that mistake caused a loss of life. Perforate a bowel by accident, and you will not get sued. The judiciary themselves have the same view as the public - doctor's are 'sacred' and if they are sued, the presumption is the patient is 'ungrateful'.

    As of a few years ago there were approx 1500 preventable deaths from medical treatment in Australia per year. That's 3 jumbo jets worth.

    Stop swallowing the union line and start thinking for yourself. Doctors operate under the biggest closed shop in the country. People with perfect scores in year 12 are turned away from medical schools. Specialists earn 900k a year upwards for far less work than white-collar professions.

    The medical profession has billions of dollars of public money keeping it aloft, and serious reform is badly needed as healthcare costs are going to overwhelm our state budgets in 20-30 years.

    Any attempts at reform are hit with a wall from the doctor's unions. Your post simply props up this wall.

    1. Most specialists would earn at best about half of 900k. Some big procedural specialists such as orthopedic surgeons, cardiologists and ophthalmologists might. No doubt you would be happy to be on call 24/7 and go in and do important procedures for nought.

      You don't seem to realize that the more medications and operations a patient receives, the more the complications will occur. You happy to not receive the treatment?

      Everyone makes mistakes. You also don't realize that ambulance chasing lawyers just push up the costs of healthcare for all. Doctors have to keep ordering tests lest they get sued for missing the diagnosis.

      Your rant is so bitter and twisted you must be a lawyer.

  2. I've never known a story about a court case to have been removed from a newspaper website in such circumstances. Was the story inaccurate? Was an application made today by legal counsel for the suppression of the February 2012 story in the Geelong Advertiser? Was there a hearing before a magistrate to authorise this action? People are entitled to believe they're being treated like mushrooms.

    1. It also needs to be asked: did a representative of the judiciary act unilaterally to seek suppression of a newspaper article because of its implied criticism of the judiciary? Have members of the judiciary acted in other cases to suppress dissent about the judiciary's actions?


  3. There's an element, as ever, of shoot the messenger in this. The law of contempt is mostly common law, ie judge made law, it is true. But it has developed over hundreds of years, and is now so firmly entrenched that any responsible judge would take the view that it is a matter for Parliament, ie our elected representatives, to change by legislation. To do otherwise would be a blatant exercise in judicial activism, ie just what we conservatives hate: a judge making a radical change to the common law because it's what he thinks the law ought to be.
    To be clear about it: it's not for the judges to try to change the laws of contempt, it is most definitely for Spring St.
    None of the above is intended as any kind of dissent from your basic points, prof.

    1. So if we want our freedom of speech back, that they nicked off us without our express consent, we can't get it back without their permission? Oh good luck with THAT!!!

      Americans were smart to fight a war over this and then not let any damn pollie take their god-given rights off them again.

  4. In Australia, absurdly, you can be jailed (no exaggeration) for criticising courts and tribunals. You can be held in contempt or you can be deemed to have 'brought a court into disrepute'. Yes, I am talking about Australia, not some third-world dump...although, considering what is happening to this country ...
    Like all arbitrary law, it is designed to be there as a threat in order to censor criticism of public institutions, which should be our right in a 'free' society.
    Then there is the matter of defamation laws. Again, individual judges can use defamation suits to discourage people from criticising their decisions. Just recently I heard a radio commentator criticising a judge's decision and then I heard his guest, one Andrew Bolt, saying 'but you have to look at all of the judge's decisions'. Bolt declined to criticise the judge as he had been versed on a notorious defamation case that I won't elaborate on - that's right, for fear of being persecuted under the aforementioned arbitrary law.
    There are two choices. We can have the present system where judges are appointed by politicians for political reasons and are given lifetime tenure with no means for the public to bring them to account, or, we can have them elected by the people for limited terms, subject to recall and with limited power to use defamation law to censor public criticism of their decisions.
    There is no third choice!!!
    Naturally, the Left want to keep it the way it is so that they can use the law-making powers of the courts to circumvent the parliament. And, of course, the Liberals are too cowardly to do anything about it.
    This country is finished.

    1. I agree, it's like Mark Steyn says, the right of freedom of speech is the one which saves and protects all your other rights, without it you're finished.

  5. Funny how a victim's past sexual history is admissible during a trial of an alleged rapist but any prior criminal convictions of the accused - including rape, assault, etc - aren't... What a strange legal system.

    1. It isn't admissible. Only on television.

    2. Perhaps the courts are trying to protect themselves rather than the alleged killer. Imagine the outrage if it were found that he had a long history of offending and the courts, as is so often the case, had failed to protect the community from him.

    3. A great deal of what people think about the judicial system comes from TV. The "its' a dirty job but someones' got to do it" justification for dodgy police / prosecutor tactics. When you look at the reality of it - try Western Australia's horrific history of wrong full convictions. "Over Zealousness" with it's undertones of diligence to a fault hides the reality of out right dishonesty convicting the innocent. It's worth listening to the interview Retiring Judge Antionette Kennedy gave on the ABC. No she wasn't some slap on the wrist Leftie. Quite the contrary.

  6. It's another ancient thought Prof - from whence does government derive authority...

    Once upon a time, among forebears longs since laid to rest, there existed a axiom..[ & Coke was the real thing]

    Juries are to determine facts
    Judges to ensure fair lawful process

    ....It runs to the very core of "what is a community?"

  7. I say the legal profession has done a magnificent job. It's a shame it's only for their personal benefit rather than Australia's.

    Not only do they control the legal agenda but they have inserted themselves into all levels of government decision making. Any enquiry must be headed by some ex beak or lawyer. Royal Commission anyone?

    Decisions which should take days or weeks now take months or years while they are paid on an hourly basis.

    As an example of wasting taxpayer's money, they have even maneuvered the government into paying them millions to represent asylum shoppers whose benefit to Australia is less than zero.

    They have even inserted themselves into the military with zero benefit to our combat capability. Compare the ratio of lawyers to soldiers at Gallipoli or the Kokoda Track to Afghanistan.

    And all this without any chance of being sued if they get things wrong. Well done you leeches.


  8. Prof, you ask: "Why do our courts believe Australians are so simple-minded they cannot be informed of defendants’ criminal records without proceedings being hopelessly prejudiced?"

    The reason is simply that this kind of evidence might be inadmissable on the trial, yet put at the forefront of public reporting of the matter as it rolls towards the trial. Contrary to what you say, it is quite reasonable to think that the jurors might be pre-disposed to convict the accused and in this way the burden of proof is reversed. The notion that of government must see that justice is done while making sure that it is seen to be done justifies the concern about such pre-trial publicity. The "might be" in the preceding sentence is enough to justify limiting publicity.

    Bill Thompson is writing sheer nonsense. It is no easier to get in evidence an alleged victim's past sexual history than any prior criminal convictions of an accused. And it frequently happens that priors (and more particularly the their factual substratum) are admitted against an accused.

    Now that there is an accused in custody let's leave it to the process to run its course. There is no public interest in raking over possibly prejudicial prejudicial information that outweighs the public interest in every person charged with a crime receiving a fair trial.

    1. Rafiki, I appreciate that, but, as I said, the strictures that prohibit reporting "form" do not exist in the US and their justice system seems to function at least as well as ours.

      As to you other point: How long can we lock up violent offenders? The answer to that should be "as long as possible".

      I hope you'll pardon my passion, but a good friend was subjected to a quite vicious sexual assault some decades ago. She is still confined in the chains of her memories -- anxious, wary, suspicious -- and she will most likely bear the scars to her deathbed.

      Why should she be denied the satisfaction of knowing her attacker will also know years of misery? It strikes me that vengeance is her right and that the courts are, or should be, her agent of retribution.

      Once he have the punishment out of the way, then we can invest a little time and money in rehab and deterrence, although that generally means more social workers, shrinks and bureaucratic empire building.

    2. Prof: With respect, you are correct that under the influence of a meaningful free speech guarantee, US courts allow more public discussion of a defendant's priors. But this comes at the cost and delay of trial postponements, changes of venue, and permanent stays of proceeding. The Anglo-Australian approach of deterring journos with a contempt charge has the advantage (from the alleged - and sorry I can't help using that word - victim's standpoint) of speedier trials. OTOH, the internet is changing things, and I suspect we will have to adopt the US approach. The Glennon case shows that permanent stays are on the cards in some cases (although in that case the High Court ruled 4:3 against Glennon).

      Of course I pardon your passion. All I can say is that one sentencing factor is that the more objectively serious the crime the greater should be the sentence. This is vague standard capable of an elastic application, and it takes us back to a point you made: just who are appointed as judges?

    3. I continue to fail to see how measure protecting the judiciary specifically, and the legal profession in general, from the consequences of personal/professional incompetence are in the public interest. When unable to argue the facts or the law, pounding the table should be grounds for public censure or loss of licence.


  9. Here's an interesting story from The Phage a couple of months back:

    Interesting! Interesting identikit image!

    Anyone for DNA analysis?

  10. Our "Big Brother" Government can "un-write" and "un-publish" previously written and previously published facts from the Internet, but not the dead-tree versions from hard copy archives.

    See the scan of this hard-copy article, for instance.

    1. WOW! OMG no wonder they don't want us to see that, they're covering up incompetence.

  11. "Now that there is an accused in custody let's leave it to the process to run its course."

    Because WE THE PEOPLE are just too stupid and must KNOW OUR PLACE and leave it all to the PEOPLE WHO ARE SMARTER THAN US right ????!!!

    American people on the other hand must be alot smarter (or alot less willing to BEND OVER) since they get to hear and say EVERYTHING, and yet STILL they're smart enough once on a jury to consider only the EVIDENCE, that's why OJ Simpson and Casey Anthony were acquitted.

  12. A Defendant's antecedents may be allowed to be used by the prosecution if it can be shown by the Crown that the Defendant has a particular history of similar offences that he/she is on trial for.

    A good Defence team will always move to have the Defendant's prior criminal history from being exposed and used in evidence by the Prosecutor. To defend the accused is what they are paid for to do.

    A good judge will weigh up both the defence and the prosecuting teams arguments before making what is hoped for by both sides, the right decision.

    As an ex-cop, my first thoughts on hearing of the finding of a culprit for the murder of Mrs Meagher, and the age of the accused, was that his history would be such that no defence team would wish to have it exposed in a trial, and that the prosecution would be pushing for it to be made available.

    Obviously, the accused has a criminal history that has now been exposed in the public arena, a history that also points to his guilt in what he has done to that poor woman. But the question is now; will this scumbag's antecedents be permitted to be exposed at his trial, or will he be judged on this one crime alone?

    I hope a good judge is appointed!