Now take a look at the Identikit picture of the offender sought in that St Kilda incident. Here it is:
Legal niceties be buggered! The Bailey picture is already on the Web and all over Google Images, so here it is for an easy comparison:
(Image altered: This will guarantee a fair trial)
And here is another interesting thing: In the Age story, the victim recalls how her attacker warned that a bad man was following her and that she should get into his car, where the assault took place.
Now recall the bridal shop security video, especially those seconds after the man in the blue hoodie is seen approaching Ms Meagher and telling her something. What does she do next? Looks behind her, back the way she came.
ADVISORY: The storm that was supposed to obliterate Melbourne this afternoon has turned out to be a bit of a squib. The sun is even out -- yes, this is Melbourne -- and there is time for nine quick holes. Feel free to comment, but readers' observations will not be posted until much later. And thanks to the modest reader who pointed to the Age story and its Identikit picture
WEATHER UPDATE II: No sooner did club strike ball than the sky opened and the round was abandoned
and gratitude to Tom for noting that Bayley was re-christened Arthur. Blame that on an indecent rush to reach the first tee
Prof: This modus operandi evidence may be admissible on the trial. As I note in a reply to a post below, there is however a prospect that pre-trial raking of this evidence might (one can't say for sure) lead to a permanent stay of the prosecution. It's that serious.
ReplyDeleteDoes that mean the judiciary have nothing but intellectual contempt for jurors? As weak minded children unable to separate shit from clay?
DeleteAs Prof says, the US system works just fine, time for the Australian Court system to grow up.
No doubt several of our learned legal friends will argue for that "permanent stay of the prosecution" knowing full well that means Bailey will be a free man.
DeleteIf I tried to help a felon avoid punishment, I would (quite rightly)be prosecuted. If a defence lawyer does it, he gets well paid and eventually promoted to the bench.
jupes
rafiki,
DeleteI'm with the Prof on the excessive use of gag orders of this kind.
1. His identity is not at issue: he led the Police to the body. Unless he was channelling Mafu or he was a mere accomplice, the evidence is incontrovertible.
2. The St Kilda rapist will be convicted or not on their similarity to the description and/or Identikit, the testimony of the victim, and a match with whatever DNA and other forensic evidence he left.
Ever since Al Gore invented the internet, local gag orders are impossible to enforce, and futile. This has gone global. We can access it anywhere, just as long as Finkelstein doesn't stop us or Conroy slaps an internet filer on. I know the latter has the power to make us wear red underdaks on our heads, but he is due to lose those earthly powers within a year or less (Election Now!), less perhaps now that the government has thrown Slippery Pete under the bus.
Incidentally, there's an interesting comparison in a post by
Deleteishellmay at 09-26-2012, 07:51 PM (ie the day before the arrest!) on this blog:
http://www.tobeyoung.org/showthread.php?p=733606
St Kilda boy is there along with two others. One might pass for St Kilda boy with a No1 cut but the other less so — unless he's quit the crystal meth since.
Anon at 6:13: If Bayley is convicted of the Coburg murder, then the underlying facts of the modus operandi would probably be admissible in re the St Kilda rape; (see Pfennig (HCA) and s 98 of the Evidence Act).
DeleteIf Bayley confesses to the Coburg murder, then my point above is moot. I am here also attempting to engage in discussion about the wisdom of pre-trial discussion.
In this connection, another current case deserves note. The case of Ashby v Slipper, on foot in the Federal Court, also invites consideration of the doctrine of contempt of court, in particular given reported comments of Roxon. There is very good reason to think that Roxon is in contempt.
The Australian Government Solicitor has advised the federal government that “the potential for the Government, ministers, officers and agencies to become exposed to liability for contempt of court [is enormous]”. It notes that “[t]he doctrine of contempt of court is not directed to protecting the personal reputations of judges”, and instances the putting of improper pressure to induce a litigant to settle a case, and statements that prejudge the result of proceedings. These examples appear to embrace Roxon’s statement that "[t]he case should now be dropped against Mr Slipper as well and the whole matter should be brought to a speedy conclusion in coming days."
Just who might do anything about this is another question. It is Roxon – as Attorney-General – who by tradition should institute contempt proceedings with (as a UK judge put it) “complete impartiality solely … considering the public interest of maintaining the due administration of justice in all its integrity”. Fat chance of this happening. Maybe Ashby will have a crack.
Some of you might have a good laugh at all this. It is another example of the sheer incompetence of this government.
I have probably said too much today, and it's time to make dinner.
Bunyip, Arthur Ernest Bailey died on the Western Front in 1917.
ReplyDeleteThe man recently charged with murder is Adrian Ernest Bayley.
Another picture here
ReplyDeletehttp://sphotos-f.ak.fbcdn.net/hphotos-ak-prn1/66553_3182817388372_1540477856_n.jpg
People need to realize that they have done their part by raising awareness over the past week. Your civic involvement was important and appreciated, but ends here. Thank you.
ReplyDeletehave you not watched the news? you need to take his real photo down immediately, you along with others who are posting his real photo could stop the rapist from being prosecuted as this is injustice to his privacy and is australian law.. the photo has been illegally obtained and cascaded throughout the media .. Bailey's lawyers can use this to fight the case
ReplyDeletei hope he gets the worst penalty there is.. evil pathetic man
Hold on there, matey. You want the Prof to take the photo of the alleged rapist down, but you don't recognise that this man's situation is still that of 'alleged'. Presumption of innocence applies here. You should make it.
DeleteWhoever is responsible for this very evil deed, the despicable rape and killing of a young woman, should be punished. As yet, we have no certainty as to who it was and whatever else that person may have done. Let the Courts decide that.
Yes, Prof, the identikit resemblances are strong. But identikits don't convict anyone. For instance, I must look like someone else, because an acquaintance apparently had a short conversation with me at a train station when I was on a plane flying to New York. Don't know what 'I' said either. Apparently 'I' was helpful about the train's destination. Very pleasing.
We all know that 'innocent until proven guilty' thing. You don't have to tell it to our face especially during these times when emotions run high. IT admitted to ITS crime. IT even pointed to where IT buried the dead body. The law is the law. But a lot of times, it is ridiculous - sometimes, even doesn't make sense
Delete'you need to take his real photo down immediately.'
ReplyDeleteInteresting that defence didn't seem to occur to Bryant's lawyer, the lad's face being front page in Hobart.
Also front page of The West Australian.
DeleteWith the headline 'Evil Past'.
One could suggest that the use of such postings to gain "permanent stay of the prosecution" might be considered an admission of insufficient competence on the part of the team for the defence. And that issue might be attached to this case.
ReplyDeleteCheers
Never mind about the law wankers and their bullshit ,hang the bastard ,burn the body ,throw the ashes on the tip, SaveSave money ! The stupid malicious soshalists havespent all the money.i suppose that means no pensions for Defeated pollies ,and inefficient public "servants"
ReplyDelete@Borisgodunov: U OK, BRO?
DeleteI don't suppose the publication of Bayley's photo on this blog would be a basis for an application of a permanent stay or of some other consequence for the conduct of the trial. The Prof's bloggers are by and large (although recent posts point to obvious exceptions) readers, thinkers, writers, imbibers and boulevardiers, immune from irrational thinking. But many jury members are not (think of the hapless Chamberlains), and the courts have devised rules to protect the accused by excluding relevant evidence from the jury out of concern that the jury might misuse the evidence.
ReplyDeleteEvidence of identification of the accused (such as in a line-up, a photo-board, or from a photo in the paper) as the person seen earlier in incriminating circumstances is on its face powerful evidence, but experience gained through clear examples of wrong identifications (aided by reference to the work of psychologists) has led the courts to devise rules and practices that exclude such evidence. One such case is where the identification is prompted by the witness having seen a photo of the accused in conjunction of a story that he was suspected of a similar crime. The reason is that the identifier has a tendency to transfer the image of the photo back to the face of the person seen earlier in incriminating circumstances.
We might have an example here. The Canberra Times has a story that another Brunswick woman has identified Bayley as a person who threatened her with violence and in part or whole (it's not clear from the report) that this identification is based on her having seen Bayley's photo in the media. Should Bayley be charged with an offence of assault or the like, it's very likely that this evidence would be excluded. This other case points at least to the possibility that Bayley did commit earlier offences, and their prosecution will be more difficult given the publication of his photo.
I realise that this will make some of you angry and prone to saying stupid things. I hope that some will understand a little better why some of us defend the rules.
We understand; we disagree.
DeleteWe think the jury should be properly briefed and guided by the judge IAW precedence and traditions of common law.
We think that the counsels for the defence should take responsibility for their actions and, should their machinations obtain the release of a guilty bastard, they should pay a suitable recompense including the complete jail time their client escaped.
If the counsel for the defence cannot persuade the jury, perhaps suicide might be suggested; just don't give us the above bullshit.
Cheers
Okay so how on earth do they manage to do it in the States, where the "perp walk" is a big thing and no one's identity is suppressed? Are the citizens, police, prosecutors and judges in the States just that much smarter than us?
DeleteIf we, with our draconian "You Don't Need To Know THAT" laws about keeping information away from the eyes and brains of those grubby little know-nothing commoners known as "ordinary voting, taxpaying citizens", had an almost crime-free utopia as a result, that would be one thing, but we don't. Take the numbers and types of crimes committed by and upon Australians and compare to a demographically similar cohort of Americans (ie leave out the demographics Australia isn't blessed with, African American gang-bangers and 20 million illegals), and Australia has MORE crime per capita, especially more sexual assault and more burglary, than America does.
So there is no benefit to the average citizen in these draconian laws, it doesn't result in more crims being locked away and fewer crimes out on the street anyway, so what's the point?
As for people suddenly coming forward (to the media apparently, not the police) with tales of having been victims of the latest high-profile-crim-du-jour AFTER the fact, well somehow the stupid Yanks seem to have a handle on how to manage things like that, why can't we?
I just don't believe that our justice system with all its strictures on what the public are allowed to know and allowed to see and allowed to say have given us anything LIKE a safer "more just" society than those which show a little more faith in their citizenry.
MOO.
"I hope that some will understand a little better why some of us defend the rules."
ReplyDeleteNot really.
If the rules hide the truth, then they should be discarded. The defence lawyer's job is to hide as much evidence as possible to get his or her client off.
As an example, if the police obtain evidence in a search deemed illegal, that evidence is not shown to the jury, no matter how incriminating. The guilty get off.
On the other hand the Chamberlains were convicted because prosecution lawyers submitted false evidence (with no possibility of punishment for doing so - to reinforce a point I made earlier) . The truth set them free.
jupes
according to the SMH that I looked at this morning, there is another witness who only just moved from the location, and was approached by the same man.
ReplyDeleteIf this woman is legit, and she identifies him in a line-up then nothing else really matters....
Until the trial is over we simply have to call him the accused.
Jupes - you say "if the police obtain evidence in a search deemed illegal, that evidence is not shown to the jury, no matter how incriminating". This is simply not correct - see s 138 of the Evidence Act (NSW). In the Bruce Burrell (NSW) case, evidence of this kind - which was devastating to him - was admitted.
ReplyDeleteMaggie: once she has seen him in a single photo, a line-up identification is useless.
Evidence law is a very complex area. Many of the difficulties you see arise because the judges have been concerned to ensure as far as possible a fair trial to the accused, while 'balancing' (a useless metaphor but long used) the interest of the public in the conviction of the guilty. Even so, there are many who are falsely convicted, in particular in sex crimes, a product in part of the removal (by change to the rules) of traditional protections for the accused.
"This is simply not correct"
DeleteWell, not in every case anyway...
Here is the opening para of s 138 of the Evidence Act (NSW).
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
This gives the defence lawyer an opportunity to engage in "legal argument" - a euphemism for hiding evidence. Fortunately for the people of NSW, evidence of this kind was admitted in the Bruce Burrell case. But not in every case.
jupes
Sorry, I missed Minicapt and MOO. Sorry, Minicapt, but we are in parallel universes. MOO - the USA rules are basically the same as ours; indeed, the Evidence Act (NSW, ACT, Vic, Cth, Tas) took the US federal law as a model. Their exclusion rules are a bit tougher than ours.
ReplyDeleteWhen the Special Investigations Unit went to the Ukraine to try to find evidence against the suspected war criminal, Ivan Timofeyevich Polyukhovich, aka 'the Adelaide pensioner', they took with them a 1940s photo of Polyukhovich. This was widely circulated in the Ukraine on a poster bearing the question, "Do you know this man?" As a result, it was easy for the defence to argue that the investigators had ruined their own case by polluting the evidence. The case never even got to trial. I think the point in the Meagher investigation is that there had better be corroborating evidence against Bayley, because the wide circulation and matching of his picture and the identikit picture has rendered the pictorial evidence a rather frail reed. And it's no use saying that things are different in the United States, or should be different, or may one day be different, in this country. Any trial that comes out of charges against Bayley will be held here, and under our present law.
ReplyDeleteCripes Prof! That looks like your average (a word used in more senses than 1) La Trine Uni social science/humanities/social work et al academic. And many of them travel to and fro up Bell Street from Coburg and Brunswick! True, they should all be prosecuted for dudding the hapless students, but for rape and murder? Ah well, whatever it takes ... .
ReplyDeleteCorrection! It was the case of Mikolay Berezowsky that never got to trial.
ReplyDeleteIvan Polyukhovich did face trial and that was how the defence was able to argue that the poster had polluted the evidence against him. Partly as a result, the jury cleared him on all counts after only one hour's deliberation.