Suggestions

acquittal1

Problems with the COAG

 Double Jeopardy Model

Introduction

The double jeopardy law schema: MODEL AGREED BY COAG April 2007, created from discussion papers and reports dating back to 2003, was created by a committee of the Attorneys-General of all Australian states. They were all Labor Party Attorneys-General.
Traditionally Labor, like all left wing political parties, has been soft on crime. One suspects  it comes down to their “society is to blame” mantra. “It is never the felon’s fault; something drove him to it.”
Because of public outcry over the infamous R v Carroll High Court Case of 2002 where the suspect, who two juries thought guilty of child murder, continually evaded conviction because of double jeopardy,  public pressure was put on Australian state governments to “do something”.

 Although not to the letter, the legislation of those states that have enacted change has been similar to the above COAG model. However from the outset there developed some suspicion in academic circles as to how much ‘meat’ was actually in these  “reforms”. As far back as 2007, academic and Griffith University law lecturer Michelle Edgely wrote a paper# critical of these proposed changes.

“[Latrobe University academic Dr Chris] Corns examined controversial acquittals Australia-wide and has concluded that, while no hard data exists, the number of cases likely to fall within the [double jeopardy] reforms is tiny. In the UK, [where similar reforms have been enacted] police have closed the file on 35 cases because the suspected offender was acquitted. There is nothing to suggest how many, if any, of those cases will ever come within the scope of the [double jeopardy] exceptions. The Director of Public Prosecutions in the UK told the Home Affairs Committee that ‘in a twelve month period it would be astonishing if there were more than a handful [of cases]’. The tainted acquittal provisions commenced in 1996, and as of 2004, no cases had been brought under the provisions.
Roberts argues that the benefit to the [Australian] criminal justice system of these reforms will be meagre. Claims that the reforms will increase the overall accuracy of criminal justice outcomes are challenged, in his view, by the paltry number of qualifying cases.”
Zero for Twenty-Seven

Their prescience has been proved correct to a degree greater than even they might have expected.
In the accumulated 27 years
1 from 2006 until 2014 that all six Australian states’ legislation has been law there have been, according to the Australian Bureau of Statistics2,   over 5,000 acquittals in criminal trials at higher courts in their jurisdictions. Not only have there been no convictions after acquittals, but not even a single repeat prosecution2b. Taking other factors into account, the figure could actually be in the vicinity of 137 (state) years3 without a repeat prosecution.
It appears those governments wanted to give the impression of ‘doing something’ without alienating the Labor Party’s traditional academic / legal constituencies by actually causing the previously acquitted to be tried again.
 

List of Problems with this COAG Model

 

Retrial

No Retrial

Fresh and Compelling Evidence

Judge made a serious mistake on admissibility of compelling evidence

Conviction of bribery when trial was for a serious offence

Judge makes a serious mistake on direction to jury

Conviction of perjury when trial was for a serious offence

Bribery or intimidation proven but no conviction5

Prosecutor acted quickly to retry

Prosecutor took his time before bringing charges6

-- Suspects truly will be getting off on a technicality! --

 

1) Reasons for retrial are arbitrary.

    As the above table shows, even though the evidence may be equally damming , some get retrials and some don’t.

      a) If the convicted accused can win an appeal because of a judicial error of law, then why can’t the prosecution?
      b) If there is strong evidence to show the original trial was unquestionably tainted, why should it matter if the specific person responsible is available for prosecution?
      c) If there is compelling evidence as to the suspect’s guilt, why should it matter that it is a cold case? 

2) Decision Making Unnecessarily Subjective

    a) Most Aggravated?    (section 2, COAG)

      i) In desiring to see justice after an apparently false acquittal, why should a rape victim have to depend upon two to three judges deciding whether the rape she suffered was the most aggravated type or merely aggravated rape?

      ii) When the interests of both the accused, victims and their loved ones are concerned, how can just two people give a satisfactory answer to the differentiation between most aggravated armed robbery and aggravated armed robbery? 

    b) Acted with reasonable diligence? (section 12)

      i) When a time period is not declared, how can judicial officers declare the limit of what time period between criminal act and trial is in the interests of justice? (12A)

      ii) What extra period of time changes “reasonable diligence” to “unreasonable delay”? (12B)

3) Perception of Bias

    Many lawyers, judges and academics have voiced their opposition on practical grounds to double jeopardy reform.

      a) Jury will think if retrial, then accused must be guilty
      Andrew Goode, then President of the Law Society of South Australia has stated  that the very fact that one has been brought back for retrial would be enough to convince people that the accused is guilty. The Advertiser 26/5/2003, p.18

      b) Risk that jury will unjustifiably convict will increase
      Academic Paul Roberts in Modern Law Review 398 (2002) 65 has stated that the risk of a false conviction doubles with every new trial.

    Section 11 of the COAG model states that “retrial is not in the interests of justice unless the court is satisfied that a fair retrial is likely in the circumstances”   while section 10 declares a retrial is only permissible if “in all the circumstances it is in the interests of justice for the order to be made”.
    Putting aside the possibility of some judges ruling against a retrial strictly
    due to their personal opposition to the new law, it would be too much to expect of many members of the judiciary holding these above views, to be able to declare that a retrial after acquittal per se would be in the interests of justice, even before they look at the circumstances of the particular presentment.
    This is not to say that the latter mentioned members would be acting improperly, but merely that it would be impossible for them to honestly declare any retrial would be in the interests of justice.

4) Why the Statute of Limitations?

    Apart from minor exceptions, Victoria does not have a statute of limitations on the time between an alleged criminal act and the prosecution for that act. For three reasons there seems no logic to introduce a similar defence (Section 12) with this proposed legislation:

      i) It grants a limitation for capital crimes such as murder, which has no limitations in even jurisdictions which legislate statutes of limitations.(the European Union, the USA)

      ii) It is inconsistent with the main reason for limitation periods, to wit: over time, evidence can be corrupted or disappear, memories fade, crime scenes are changed, and institutions and authorities dispose of records. However if there already has been a trial, then records, evidence and memories already have been aided by that very event.

      iii) It would create a ridiculous situation where, while a person could quite legally be prosecuted for a crime thirty or more years after the event, if in an alternative situation, he was unsuccessfully prosecuted immediately after the event, he might not then be eligible for re-prosecution ten years later because the period since the crime had been “too long”.

5) Unnecessary Restrictions on Reinvestigations

    Even when the previously acquitted does not have to be harassed or have his privacy violated, there are unnecessary restrictions on police reinvestigations.(sections 13 - 17)

6) Unfairness to Accused7

    It would be unfair, and have unwanted complications, to expect an accused to finance a second trial after completing an original, untainted first.

7) Even the alleged ‘principle’ is violated

    The alleged principle in the law of double jeopardy is that if the prosecution is given a full and fair opportunity to prove guilt, then if the jury acquits that should be the end to it. The prosecution has had its chance and must now accept the decision of the jury.
    Even though section 4 of the COAG model states that for tainted acquittals the severity of the crime deserving attention can be lowered, crimes accruing punishment of less than 15yrs incarceration are still exempt.
    So even though the prosecution didn’t get their fair and untainted opportunity in the first place, they are still denied a further trial!
     

Suggestions

 

1) Grand Jury

    Most importantly to remove the perception of bias, but also to simplify and expedite the process, place the decision making for a new trial in the hands of a grand jury of twenty-three randomly chosen Victorian citizens.

      i) A grand jury is nothing new. For centuries it has been a traditional vehicle in Anglo-American law to bring suspects to trial. It was used as recently as 1986 in Victoria and  is still used in many states of the United States today.

      • Specific logistics of operations could be decided by Parliament. Traditionally grand juries are controlled by the prosecutor and the suspect or his of her counsel are not allowed attendance during witness testimony. However variations could be legislated to accommodate the particular nature of a repeat trial. For example: allowing the suspect and counsel attendance and / or having the procedure controlled by a magistrate in case there were legal issues such as the admissibility of relevant evidence.

      ii) As, for serious crimes, judges do not have the right to summarily declare people guilty, it would be reasonable to deduce that they similarly should not have the right to declare them innocent. This is a manifestation of that legal principle that while judges rule on what is the law, it is juries who rule on the facts.

      iii) In situations where an accused, thought by many in the community to be guilty, was freed from any further prosecutions, that decision might be more readily accepted by the community if it was made by the majority of twenty three of their own, rather than as few as two judges not easily identifiable as average members of society.

      iv) Also note Appendix #3

2) Additional Criteria for Retrial

    a) Judicial Errors of Law

      As with appeals against a conviction, an acquittal most probably derived due to an error of law made by the presiding judge, such as interlocutory judgements or addresses to the jury, is an equally false verdict and thus should be allowed to be challenged.  (Although not endorsed, this is actually mentioned in Appendix 2 of the COAG model)

    b) Any Tainted Acquittal  (section 4)

      Proof of an administration of justice offence by the accused, relating to any criminal trial above summary jurisdiction, should make one eligible for retrial.

      Considering that a suspect was eligible to be prosecuted anyway, it seems incongruous that he should be excused a second trial by compounding the position he was originally in by arranging for the commission of a crime.
       

3) Modifying Criteria for Retrial

    a) Probability of an Administration of Justice Offence Sufficient (section 5)

      As similar to a prerequisite for appealing a conviction, the existence of strong evidence of an administration of justice offence should be sufficient without the necessity of an accompanying conviction, which may be impossible for practical reasons3.

    b) Severity of Crime Deserving Consideration  (section 2)

      Rather than the decision maker having to decide subjective matters such as whether the crime committed was most aggravated rather than simply aggravated, set the line of eligibility above some minimum, maximum period of incarceration, as done in Appendix 1 of the COAG Model.

    c) Length of Time Since Offence (section 12)

      Remove the time period since the alleged offence, or reasonable diligence of any police officer or prosecutor, as a factor in deciding if a retrial should occur.

4) State Financing

    With one exception, make the accused’s court costs for a further trial payable by the state irrespective of the outcome.

      The exception would be in the situation where there was a further trial because the accused had committed an administration of justice offence at the previous trial.

5) Reinvestigations

    Reinvestigations at any time should be allowed at the discretion of the police, but authority from a court must be first given before intrusions into the life of the suspect would occur. For example:

    • Phone taps
    • Surveillance of suspect’s daily activities
    • Checking bank or other private details
    • Any activity where permission of the accused is initially denied such as interviews, searches or obtaining DNA samples.

6)Finality

    Apply double jeopardy finality to further prosecution upon a Grand Jury ‘No Bill’

      [Section 18 of the COAG Model appears to contradict section 20. Nevertheless, ensure that there is always the opportunity for another repeat trial if there is sufficient reason to believe the verdict of the previous one was effected by an administration of justice offence.]

    Once a grand jury, without taint, has declared that there is no case to answer, then finality should be declared and the accused should never again be charged for the alleged crime.

      Any well resourced and manipulative criminal who would commit an administration of justice offence such as bribery or coercion at his first trial, would have no reason to refrain from similar action at a second trial if he knew immunity was only one verdict away.
      Thus any acquittal, however arrived, should always be subject to a prosecution appeal, but once a grand jury have decided against retrial the matter should be ended.

     This would not only bring to these reforms a sense of justice for victims, but also allow the law to retain an aspect of finality from the original double jeopardy principle.
     

grand jury room

Appendix # 1

Existing Period without Application of New Law
Except Queensland, the remaining states have introduced the law retrospectively, meaning that false acquittals previous to enactment can also be addressed. Considering in Victoria the 1988 Walsh Street murders are still in the public consciousness, looking back 26 years for possible repeat prosecutions is not beyond the realms of probability. (in July 2011, Chicago police charged a man with a 1957 murder, 54 years after the fact
#.) 
Thus adding 26 years each for five of the states to the 7 years since Queensland has enacted the law would give a figure of 137 accumulated years of acquittals where public prosecutors did not believe they could or were not able to succeed in gaining permission to carry out a repeat prosecution*.

# http://www.suntimes.com/6299675-417/man-charged-in-1957-sycamore-slaying-had-history-of-abuse-police.html
* In NSW and SA there have been successful prosecution appeals against judge directed acquittals. However as the ‘principle’ of double jeopardy is that once the prosecution has had its ‘one fair shot’ at a conviction then it is allowed no more, one would think that a judge directed acquittal is not even that because of the absence of jury deliberation, and thus a new trial after such would not actually come under the rubric of overturning double jeopardy, despite what might be in the fine print of the legislation. Even if the two new prosecutions are taken into account, two against the thousands of acquittals is still an infinitesimal amount.

Appendix # 2

Crimes without Convictions
To insist on a conviction before recognition of an administration of justice offence would allow some crimes to be ignored. If a friend of the accused interfered with a witness, and sufficient evidence proves this, but he then absconds overseas, there obviously can be no conviction and thus no retrial; similarly if the witness tampering is discovered 15 years later and the perpetrator has since died. What if after the trial two witnesses, who were at the time too scared to report, finally come forward and show the authorities threatening but untraceable letters received during the trial?

Appendix # 3

Quash’ the erstwhile acquittal
Some commentators have stated that before a new trial can proceed, a formal declaration of the invalidity of the previous acquittal of the accused must be made, a declaration could only be legitimised by an authority equal in standing to that of an appeals court.
However it is of question as to whether an acquittal after an original jury trial does in fact give an accused any recognizable status beyond that that is relevant to the existing double jeopardy defence to further trials.CJ Gleeson
Compared to a conviction where the jury brings in a positive finding of guilt, for an acquittal, a jury does not declare that the accused is innocent of the crime. They declare that he is not guilty beyond a reasonable doubt — a semantic yet important difference. They merely state that the prosecution has not proved its case. As then Chief Justice Gleeson and Justice Hayne of the HCA have stated,

…it is recalled that a jury's finding of guilt depends upon the jury being satisfied beyond reasonable doubt that all elements of the charged offence have been proved, whereas the jury that entertains a reasonable doubt about any one of the elements of the offence is bound to acquit. Seldom, if ever, therefore, can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial6 .

Therefore as no positive finding of innocence has been made, compared to a positive finding of guilt with a conviction, there is no status of the accused that has to be annulled by the authority of a superior court.
 

 

Endnotes

# http://www.austlii.edu.au/au/journals/QUTLJJ/2007/7.html#fn0
1 NSW October 2006, Queensland October 2007, South Australia August 2008, Tasmania October 2008, Victoria December 2011, Western Australia May 2012.
2  Extrapolating from a total figure of 1,216 acquittals for all of Australia per year and taking other factors into account .
http://www.abs.gov.au/ausstats/abs@.nsf/Products/F935359E017F8C13CA2578B900181F2D?opendocument
2b See Appendix #4
3  See Appendix#1
4  The mirror equivalent situations for the defence would all be eligible arguments for a retrial after a conviction.
5 See Appendix#2
6 If it does not exceed the statute of limitations (none for murder) then why should it matter?
7  Also whoever ends up being the decision maker, the question of the “interests of justice” will also take into account having the accused pay for another trial. If it became a pivotal point we think most Victorians taxpayers would prefer to finance the accused’s repeat trial rather than see him/her get away with the crime.
8  Gleeson CJ & Hayne J in The Queen v Carroll [2002] HCA para 31.
 

Appendix #4

Total No. of Retrials under the New Double Jeopardy Law to Date

New South Wales


5th May 2011
Dear Mr Lillingston,

This Office has not applied for a retrial after acquittal under Division 2 of Part 8 of the Crimes (Appeal and Review) Act 2001, which deals with cases involving fresh and compelling evidence and tainted acquittals. However, this Office has proceeded with an appeal against a directed verdict under s107 of that Act in the case of R v PL (2009) 199 A Crim R 199. A copy of the judgment in that case (allowing appeal) is available on www.lawlink.nsw.gov.au.

You may wish to contact the Commonwealth DPP for information about whether any such appeals have been lodged by that Office.

Regards
Office of the Director of Public Prosecutions
enquiries2@odpp.nsw.gov.au

Tasmania


In 2008 the Tasmanian Parliament passed the  Criminal Code Amendment Act 2008 (No 33 of 2008) which introduced modifications to the laws known as Double Jeopardy.

Would you be good enough to inform me, on behalf of the Crime Victims Support Association, if since that time, there has ever been:
A. a repeat and successful prosecution of a person previously
acquitted,     or
B. a successful application by your office to bring a person previously acquitted to be charged and prosecuted again for the
original crime.                                 or
C. an application by your office to bring a person previously acquitted to be charged and prosecuted again for the original crime.


27/6/2011

Dear Mr Lillingston ,
 Your email to my reception has been forwarded to me . The answer to all three of your questions is “ No “.

 Yours faithfully .
T. J. Ellis S.C.,  Director of Public Prosecutions,
15 Murray St.,  Hobart,  Tasmania 7001  (ph )(03) 62332619    ( fax)(03) 62342892


South Australia


27/6/2011
Dear Mr Lillingston,
I have responded to your questions in coloured font below.
 
Yours sincerely

Dianne Flynn
Executive Assistant to
Stephen Pallaras QC
Director of Public Prosecutions    South Australia


Office of the South Australia Director of Public Prosecutions

Dear Sir/Madam,

In 2008 the South Australian Parliament amended the  Criminal Law Consolidation Act 1935 to include Part 10 relating to modification of the laws known as Double Jeopardy.

Would you be good enough to inform me, on behalf of the Crime Victims Support Association, if since that time, there has ever been:

A. a repeat and successful prosecution of a person previously
acquitted,   
NO or
C. an application by your office to bring a person previously acquitted to be charged and prosecuted again for the original crime. 
YES.  ONCE.  JUDGEMENT PENDING.

Philip Lillingston,  CVSA
26th June 2011

 

22 Feb 2012
Dear Mr Lillingston,

In responding to your query, I wanted to ensure that you were clear about the information being provided, as Double Jeopardy can mean different things to different people.

Section 352(1)(ab) of the CLCA allows the DPP to appeal and seek a re-trial where a judge acquits in trial by judge alone or where the judge directs a jury to acquit.  The matter which the DPP appealed in June 2011 was an appeal against the judge directing the jury to acquit using this provision.  This was R v Wait.  It was the first time that the DPP had appealed against the judge's direction to the jury to acquit.  The appeal was allowed and a re-trial ordered.  I don't believe that the re-trial has taken place as yet. 

The DPP argued a similar matter later in 2011 - R v Cain.  The DPP also appealed against the judge's direction to the jury that they acquit.  The appeal was allowed and a re-trial ordered.

I believe that these matters are relevant for your query related to double jeopardy.

It should be noted however that for many people, double jeopardy means where a person is acquitted by a jury (without being directed to do so by the judge) but they are then re-tried for the same crime (perhaps because additional evidence is discovered).  This is covered by different provisions in the Act (sections 331-338 of the CLCA).  I am not aware of any applications by the DPP to the Full Court to use these provisions.  My enquiries indicate that there have not been any.  I am also not aware of any applications by SAPOL to the DPP to carry out an investigation under these provisions (section 335).

I trust this information is of assistance.

Yours Sincerely


Dianne Flynn
Executive Assistant to
Stephen Pallaras QC
Director of Public Prosecutions    South Australia

T:  + 61 8 8207 1668
M:  0427 190 386
E:   flynn.dianne@agd.sa.gov.au



-----Original Message-----
From: pl@doublejeopardyreform.org [mailto:pl@doublejeopardyreform.org]
Sent: Monday, 20 February 2012 4:30 PM
To: AGD:DPP
Subject: Re: FW: request for information re double jeopardy legislation

Dear Ms Flynn,
Thank you very much for your response back in June 2011.
We in the Crime Victims Support Association are following closely the effect of the change in the Double Jeopardy laws throughout Australia.

If I could ask a further favour, would you be as good as to let us know the result of the pending application you mentioned that was before the South Australian court back in June 2010.

Thanking You,

Philip Lillingston
 

 

Queensland

21 Feb  2012
Hi Philip,

I've done some checking and to our knowledge there have not been any
applications made.

Cheers

Adam

Adam Golebiowski
Team Leader, Media
Communication Services Branch
Department of Justice and Attorney-General
Ph: 07 3405 6976 (56976)  F: 07 3405 3766
Email: adam.golebiowski@justice.qld.gov.au
 


19th Feb 2012
Media relations <Media.relations@justice.qld.gov.au>

Hello,

Queensland introduced the Criminal Code (Double Jeopardy) Amendment Act
in 2007 which allows repeat prosecutions in certain circumstances for
someone who has been previously acquitted.
I have been informed that up until October 2010 no application by the
Queensland Prosecutor has been made under this act.
Would you be good enough to inform me if that situation is still the
same, in that as of now there has been no application for a repeat
prosecution for someone previously acquitted.

Thanking You

Philip Lillingston
Crime Victims Support Association
 


QldDirGen

“Objective, impartial and understanding…community expectations”*


“In his speech to the New York conference HCA Chief Justice Murray Gleeson referred to the “judicialisation of public policy” . Lobby groups unable to prevail in the democratic process seek a victory in the courts and sometimes judges have been willing to co-operate.”
Editorial, The Australian, 6th July, 2000


Some judges / academics who have trouble separating personal politics from the law of the land


[emphasis added on all occasions]James Wood

 

#1 James Wood
NSW Supreme Court Judge


Address to the Uniting Church Ashfield 1999
“it is my hope that there will be judges in the next century who are prepared to dare, to listen to their consciences and their faith, and to take a stand against the unjust laws and policies of the secular state.”

 


 

#2  Ruth Stephanie McColl Ruth McColl
NSW Supreme Court Judge and Appeal  Court Judge


When president of the NSW Bar Association in 1999 she wrote an article for publication titled “A solution to Mandatory Sentencing: Judicial Disobedience
In it she also praised the above Judge Wood
 

 

 

 

#3 Dr Gordon Hughes


Australian legal academic and President of the Law Council of Australia  1999-2000

In an address to the Legal and Constitutional References Committee of the Australian Senate 17th February 2000, Dr Hughes advised the government to kill the mandatory sentencing laws of the Northern Territory and Western Australia because interstate judges and lawyers like him were wiser than the people who voted for those laws.

Dr Hughes: “The government has said, ‘Here is a solution,’ and it sounds good so you embrace it, but, sitting back, maybe you need people from ‘down south’, as we are dismissively referred to, looking at the situation and casting a judgement to bring a sense of reality back to it.”

Senator Mason: So your argument would be that judges and lawyers are better placed than the community and their parliamentary representatives to make an assessment of what is just?

Dr Hughes: A judge is, by his or her nature, objective, impartial, able to compare circumstance with circumstance, has an appreciation of what is reasonable, what is not, what is proportionate, what is not, what is going on around the country, not just in that particular jurisdiction, and any judge worth his or her salt will have a very good understanding of what community expectations are as well.

#4 Michael Kirby
HCA  Judge


‘In a speech in February, HCA Justice Michael Kirby welcomed such a "human rights (agenda as an) answer to the need for a judiciary with replenished powers, able to attend to injustices that parliament had created thoughtlessly or overlooked." You may think from this that Kirby thinks law "reform" is best left to unelected judges than to "thoughtless" elected politicians. And I fear you're right. As Kirby arrogantly put it, "the mantra of democratic law-making (is) increasingly unconvincing".’
Herald Sun 14-06-2006

 

 

 


 

#5  Rose Bird
Chief Justice of the Californian Supreme Court  1977 - 1987


Rose Elizabeth Bird was the first and remains the only Chief Justice to be removed from the office of the California Supreme Court in the state’s history. California justices are selected by the governor but must be confirmed and regularly reconfirmed by the electorate; prior to Ms Bird, no California appellate judge had ever failed such a vote.
 She was removed in the November 4, 1986 election by a Rose Birdmargin of 67 to 33 percent after a high-profile campaign that referred to her apparently placing her alleged categorical opposition to the death penalty above the law.
For someone in a position that should remain politically neutral, Bird belonged to an anti-death penalty group called Death Penalty Focus which in later years awarded her a “Commitment to Justice” award.

-Zero for 64-
In her position on the bench she reviewed a total of 64 capital cases appealed to the court. In all of the 64 cases she issued a decision overturning the death penalty that had been imposed at trial. This led Bird's critics to claim that she was substituting her own opinions and ideas for the laws and precedents upon which judicial decisions are supposed to be made. She was joined in her decision to overturn by at least three other members of the court in 61 of those cases. In addition, the Bird court struck down California's "use a gun, go to jail" law that made a prison term mandatory for any crime in which the use of a gun was involved.
Some of Justice Bird’s reasons to vacate the trial court’s decision:


  • in the case of a Theodore Frank, convicted of kidnapping, raping and murdering a two-and-one-half year old girl, his death sentence was overturned when the court ruled that evidence used in his trial was seized as a result of an over broad search warrant. (Why should a judge penalize the police for an “error” a judge made?)

  • The accused was denied a fair trial because potential jurors who were philosophical opposed to the death penalty were excluded. (How do you get a unanimous guilty verdict in a capital case if you include those opposed to the death penalty?)

  • A fast food store manager was told to kneel, then shot at close range through the head by a robber. Bird did not deny the accused was the shooter, but questioned whether if one shoots someone at close range in the head there is the intention to kill. 


The enmity she, and like minded justices Cruz Reynoso and Joseph Grodin accrued was not limited to criminal law. They become known for their left wing bent in civil suits: siding with tenants against landlords, with the poor against taxpayers in suits where local government was a party, and with the injured against holders of liability insurance. As Berkeley law professor John Fleming told the California Journal, “What they are trying to do is to convert the tort system into a system of social welfare.”
In addition to Bird, Reynoso and Grodin were also voted off the seven-justice California state supreme court bench. Justice Stanley Mosk, who often joined Bird, Reynoso, and Grodin, was not challenged nor were the other three justices.


Explanation for dismissal


Apart from res ipsa loquitur, the above mentioned Justice Mosk, 12 years later, explained why he was able to stay and Bird was not:
“Rose Bird was pilloried because she generally voted to find some defect in death penalty convictions and to reverse them. I probably don't like the death penalty any more than she does. As a matter of fact, I think the death penalty is wrong, that a person has no right to kill, and the state has no right to kill. But the difference is that I took an oath to support the law as it is and not as I might prefer it to be, and therefore, I've written my share of opinions upholding capital judgments.


Significance to this issue


Despite the very public humiliation for being removed from office for not doing her duty, Rose Bird was still proclaimed in many legal circles as a hero.
1.The California Public Defender's Association established an award in her honour, as did the California Women Lawyers.
2.“Following her defeat, Bird dropped from the public scene. She volunteered at a Palo Alto legal aid office, ... She also …, taught for a short time in Australia at the University of Sydney, and lectured occasionally around the country.” - Wikipedia
3.-Good enough to address your annual dinner-
“Remarks by Rose Elizabeth Bird, Chief Justice of California, to the Women Lawyers' Association of New South Wales, Sydney, April 30, 1986.”







Bibliography

quote from #3, Dr Hughes
#1 Wood
http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_wood_141199
#2 McColl
Bolt, Andrew,“Unelected judges are not here to run the country” , Herald Sun, 23rd March 2000
#3 Hughes
http://www.aph.gov.au/hansard/senate/commttee/s763.pdf
Bolt, A, ‘Unelected Judges are not Here to Run the Country’, Herald Sun, 23rd March 2000
#4 Kirby
http://acthra.anu.edu.au/media/Judicial%20Puppeteer%20Andrew%20Bolt%2014-6-06.pdf
http://www.smh.com.au/news/National/Call-for-human-rights-to-be-protected/2006/02/21/1140284066164.html
#5 Bird
http://wlh-static.law.stanford.edu/papers/RoseBird.pdf
Knight, Robert, ‘Beyond Justice’, National Review Sept 12, 1986
http://www.worldcat.org/title/remarks-by-rose-elizabeth-bird-chief-justice-of-california-to-the-women-lawyers-association-of-new-south-wales-sydney-april-30-1986/oclc/220261706
http://law.jrank.org/pages/4764/Bird-Rose-Elizabeth.html
http://www.basicfamouspeople.com/index.php?aid=3666
http://en.wikipedia.org/wiki/Rose_Bird


 

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