Crime and Justice: A Guide to Criminology [6 ed.] 9780455244211

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Crime and Justice: A Guide to cr·minology

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Crime and Justice: A Guide to Cr1minol,o gy

Thomson Reute·r s (Professional) Australia Limited 19 Harris Stre·e t Pyrmont SW 2009 Tel: (02) 8587 7000 [email protected] http: I /legal. tJh,o msonreute·rs.com.au/ For ali cust,o mer inquiries please ring 1300 304 195

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,C rime and Justice: A Guide to Criminol,o gy

DEREK DALTON WILLEM DE LINT DARREN PALMER

S ~ XTH

EDITION

LAWBOOK CO. 2021

Pub]ished in Sydney by Thotnson Reuters (Professional) Australia Linti ted ABN 64 058 q 14 668

19 Harris Street, Pyrmont, NSW 2009 ISBI\1:9780455244211

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1

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LIBRARY OF AUSTRALIA

© 2021 Thomson Reuters (Profession.a]) Australia Limited

This publication is copyright. Other than for ·the purposes of and subject to the conditions prescribed. w 1der the Copyright A.c t, no part of it tna y many forn1 or by any 1n ,e ans (el,ectronic, n1~chanicat microcopying, p hotocopying, r,e-rord ing or oth er\v ise) be reproduced, stored in a retrieval syste.m or transmitted \Nithout prior "\J•lri tten permission. In.qui ries should be add~essed to the p ublishers. AU legis]ative material herein is rep roduced b}' peml ission but does not pur-port to be the official or authorised version. It is subjeet to Conunon\\realth of A ustra]ja copyright. The Copyright A.ct 1968 permits certain. reproduction and p ublication of Conm1on\vealth legislation. In partictdar, s 182A of the Act enab]es a complete copy to be 1nade b}r or on behalf of a particular person. For reproduction or pubUcation beyond that permitted by the Act, permission should be sought in i.vriting. Requests should be subtnitted online at ww\\r.ag.gov.au/ cca,, faxed to (02} 6250 sqgq o r tn ailed to Commonwealth Copyright Adtnirrlstration, Attorney-General's Departn1ent, Robert Carran Offices, National Circuit, Barton ACT 26CMJi. Product Dev,e]oper: Elizabeth Gandy Edited and typeset by N ewg,e n Digitalvvorks Printed by Ligare Pty Ltet Riven•. Ii• ••Ii 3 LEGA.L DEF INllT~ONS "'"' Iii ii'"., _. "' " a;; ; i"' ... ;i;.• 5 CRIME AS A SOCIAL AND POLITICAL PROCESS........................................................... 9 HU MAN RIGHTS DEFINITIONS """Ii 12 WHO ~s THE c R1MINAL? . Ii, "Iii ii , Iii , Ii, ii, .. 13 17 CONCLUS IONo1Iii1 1 ·1a. Questions .. ... ii• 1>• ii • Refe-rences .... ii'"' .. .. . ii . ""ii • • a.." . 21 Further reading ... .. ... .. .. . .. .. . .. .. .. . .. .. . .. .. . .. .. .. . .. .. . .. .. .. ... .. ... .. ... .. ... .. ... .. .. .. . .. .. . .. .. . .. .. .. . .. .. . .. .. .. . .. .. . .. .. ... .. ... 25 I ol .... II I .

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Ke.y words: crhne, pre-cr.llne, cr.llnim1al law, cri1ninalisationf h u11ian rigl1ts, social co11text, cr.i1nit1alsf theories of crime

I NTR 0DUCTION 1

[1.1 O] T.h e term critne" is ofte11 utake11-for-gra11ted" and poorly d.efined in historical and contem.p orary crin1inological research. (Hill.y ard & Ton1bs 2007: 11; Lanier & He11ry 2001a: xi). In fact, crimiI1ologists are ofte11 divided about tJ1e appropriate ways to defit1e '"'critne". T11e term con1es vvitJ1 tnany tn1derlyit1g assumptions, and tl1ere is extetlSive d ebate over ,.vhetJ1er so1ne behaviours are o.r should be classified as crime. Tl1is is because criminalising certain behaviours has tnany individt1a1. andl social consequ.ences, as it is tied to tl1e s tate's po\ve,r to investigate people and punish then1 if they are convicted of an offence. JI

Many popular filn1s and televisio11 shows foctts attet1tion on police attempting ;,cr,o oks" . co.ntex t/ ''· cr1me . ,, 1s . n1ost co1runon1y . . ,to catcl· 1 atl d imprison ·. . I n tITuts associated vvith conduct that is clearly l1armhtl to others. Mtrr'd e.r and otl1.er violent bel1avio11rs, robbery, dn1g traffickit1g and organised crime are commo11 examples depiC'ted it1 crime ne,vs, documentaries a11d television dran1as. This is because sucl1 offet1ces carry much popular intrigue as police attempt to ide11tify "whodLu1it", or the drama of a real or fictitious criminal trial lunolds. Our popular fascit1ation vvith ideas of justice is closely corn1ected. to the \Vrongft.t111ess of violent, .p redatory or exploitative hu1na11 conduct. Hovvever, a deeper series of t11eoretical a11d a.p plied debates exanli11es tl1e "problematic

4

Crlme and Ju slice: A Gu~de to C~mln ofo-gy

1

disco1u1ect bet\veen harn1 and cri1ne" that etlSltres . .,only som.e l1artns co1ne to be defit1ed as crime" while otl-ters tl1at ofte11 iI1volve powerful i11dividuals or groups te11d to ren1aii~ ''beyo:nd c011trol'' (Michalowski 2016: 182). lt1 otl1er words, tJ1e state's power to ptuiish through formal penalties st11ch as fiI1es,. i111priso11.tnent, a11d eve11 the ,d eath pe11alty in soi11e jurisdictions., is ofte11 ap·p lied selectively for certai11 bel1aviours or agai.t1st specific popt1latio11s, while other cond·u ct that causes more social or e11viro1un.et'\tal hartn is either 11ot dealt with at all, or is sul1ject to different laws. Power is a sign.ifica11t factor when defit1ing crin:1e, or w l1en app,lyit1g tl1at defitutio11 to n1divid11als or gro11ps ,d eemed to be . .'crin1i11al". However, popular opiI1io11 on wh.eth.er or wl1en co11dtllct sl1ould be treated as a criminal offence depe:nds 011 the context. For example, if a police officer uses non-lethal force to s11bdue a fleeit1g s11spect, it is 111ore likely to be deemed a11 it1ternal disciplinary issue rather than a crilninal assault. T.h e nah.tre of t11e police role and p11blic perc~ptions of the serio11s11ess of viole11t activity are key factors to be co.n sidered in n1aki1lg such a decision. Ma11y activities that can cause se.rious harn1 to i11dividuals or their' property, sucl1 as a govenlillent's delay in providing aid to flood 01· bushfire victims, are more likely to be classified as political issues rath.er tli.atl cri1nit1al offences" These at1d mru1y o tl1er actual or 11ypo tl1etical exatnples higl1light tl1a t conflic ti11g social p rocesses sliiape otrr vielvs about tl1e bel1aviotrrs or types of people considered to warra11t the label of 'criminal'r (Lynch,. Stretesky & Lo11g 2015). 1

FIGURE 1 1

Bushfire

Sou roe; t1tt ps ://commons.wlklmed Ia. org/wl1n dex. ph p?tltle=S pec lal :Search&JI Imn=20&offset= 2 O&p rol l I e=defa.u lt &s.earch=bush + f Ire&adva ncedSearch - cu rren t = % 78 % 7D&ns0= 1&ns 6=1&ns12=1&ns14=1&ns100= 1&ns106=1&searchToken=9LityBd065gso33e7qgv4y1 dcd#%2Fm edla % 2FFHe% 3ACSIRO_Solencelmag e_13.2 6_13usti_flre.jpg. 1

Th Is CSIR 0 Scien ce~mage photograph 111 ustrates how bush'ftre can cause Immense envlronm ental damage. However.i th Is type of harm m lght not be con sldered worthy of a criminal san cblon unless human llfe Is lost. 1

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Chapter 1 What Is crime and who Is the crl m lnal 1

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Il1di.vird ·u als and agencies within. tJ1e cri1ninal fustice system are also part of a co11lplex V1leb of social iI1stitutio1is that help to determiI1e vvhy son1e fortn.s of behaviottr are co11Sidered crin1es1 ·w hile others that clearly produce a variety of ltartllS are often harder to classify. U11derstanding tl1ese iI1stitutional relationships can help to explain w l1y public reactiotlS to certain forms of harmf11l behaviou.r vary betweer\ urban a11d rl1ral areas (Coverttry & Pal1ner' 2008}, across cultures (Warre11 & Palmer 2015) or tlrrough.o ttt history (Lanier & Henry 200lb}. Tl1eoretical divisions within tl1e field of criminology can produce conflicting approach.es to examining the role, focus and itnpacts of the criminal lavv·. For exan11..,le, .,1 ni.al11stream,, crimin.o logists co1111nonly '"let t11e state define their subject matter', by focusing printarily 011 legal defil1itio11s of crin1e, evei1 if this overlooks "'"the larger social forces that cal1se crime'"' (Agnevv 2011: 3). By co11trast, "'"critical criminologists" question formal legal defirtitio11s of "cri111e"', ofte11 by drawir1g on huma11 rights lavvs or it1terrogati.J1g the negative social impacts of the processes of criminalisation. Lynch, Stretesk)' a11d Long (2015: 33) suggest that because cri1ninologists have 11eglected to defit1e crime adeq11ately1 there is no agreed '"'objective a11d scie11tific kno··vvledge of this tertn. This problem is re,Tealed U1rough inconsistencies i11 the applicatio11 of tltis ter1n to the satne behaviottrs it1 different locatio115 or ti1ne periods, wluch ca11 u11der1n.it1e tl1e broader ki.10'\ivledge-base \\7ithin cri1ni11ology. Sl1cl1 divisio11s 11ighligl1t the di.fficul ties i11 identifyi11g the core cl1a racteris tics of crime, w hicl1 id ea lly shot11d be the essential S't arting poh1t for a11y critni11ological researcl1 (see Agnew 2011). 11

LEGAL DEFINITIO S Ever1 if legal rd efinitions are politically laden or uti.scie11tific (Ly11cl1, Stretesky & Long 2015), the criminal lavv is tl1e most obvious 1nethod of definit1g crin1e (Tap.pat1 1947). Legal defilution.s id entify· behaviott.rs tl1at involve son1e degree of moral blame to justify a formal investigation by police, a prosecutio11 ru1d pnnisl11nent imple111e11ted by t11e state and its institutio.n s. The law sti p ltla tes tl1iat certain bel1aviours are classified as cri1nes \V l1e11 a person inte11ds to catts.e or actually produces harm (Brow11 2009: 272) tl1at is prohibited by the crirni11al lavv (Tifft 2002: 249). If a perso11 is detected, prosectllted and convicted for an alleged offe11ce, a formal punislm1ent serves to admonish the offet1rd er1 protect the co1rununity a11d deter others fron1 engaging in U1e same or sin1ilar co11du.c t in futttre .

[1.20]

Each Australia11 State at1d Federal Parliament has e1iacted a Critnes Act or Cri1ninal Code. These laws i de11tify tl1e types of bel1aviou1r classified by tl1e state as criines, and it1clude definitions of prohibited bel1aviol1rs st1cl1 as murder, 1nanslaughter, rape and tl1eft. A ft_trther range of offet1ces involves c ondl1ct that violates tl1e rules of crin1inal procedure, sucl1 as tampering '\ivith evidence or witnesses i11volved u1 a criminal trial. Ho\'\Tever, 1nost cri1nes iI1volve behaviour that cal1ses identifiable hartn to o tlter people or tile comtnunity itl general. For example, tl1e Crirnes Act 1958 in Victoria contait1s legal definitions of the followin.g classes of offendin.g: 1

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6

Crime and Justice: A Gu~de to Cnlmln o ~ogy

• offences agai11St the state, it1clt1,di11g treas011; • offences agah1st the person.1. i11cluding assattlt, tl1reats to killF extortio11 and f e11iale genital mu tilati011; • rape and other sexual offem1ces; • tl1eft atld related offenceSF mclttding identity frautd and ffiQlley laltnderit1g; • crin1inal damage to property, mclttdi11g arson; • contan1it1ation of goods; and • co11Spiracies or plat1S to co1nmit a serious offence. Most eqtii\7alent legislation .it1 o th.e.r Al1stralia11 States and in mru1y ov·erseas jtirisdictions replicates these offe11ces. Holvever, vrhi.le there is general consistency in the con'te11t of the cri1ninal law, there is 1n uch debate regarding wl1etl1e.r various types of behaviours should be co11Sidered crimes. Many ha.rnmtl ac ts can be 1norally or legally· j11stifiedF a11d therefore i1nmune frotn for1na I cri1nil1al inves tiga tion a11d prosec u tio11, while o tl1ers of tl1e sa1ne type are selectively pttrsued (Wallerstein 2006: 21-29). Such u1consistencies reinforce arguments that qu.estion relying 011 the content of tl1e critnitlal law as tl1e sole meth,o d of defil1il1g cri1ne (Lyi1cl1, Stretesky & Lo11g 2015). Criminal la.w also specifies th.e rules go\7ernit1g police investigations and procedl1re. TI1ese lli1elp to ensure allegations of crime are dealt V1lit11 fai.rl)r. Tl1ey incl ude correct procedttres for gali1eru1g evidence, questi01lit1g witnesses and e11surn1g individ11al rights are protected, it1clud ing the right to art il1ter.p reter and tl1e .r ig,h t to legal represe11tation. These procedural require1nents are linked to the idea of "due process''. It would be extremely unfair for tl1e state to con·v ict and ptnlish a person alleged to have coni.mitted a crime \vitl1out strict .r rocedural r1tles to determine how gttilt is proved (Bronitt & McSl1erry 2001: 7). The criminal law tl1erefore sets tnany li1nits on the police a11d other jt1stice a.ge11cies to balance their formal illvestigative powers agaitl.St rights aimed at protectit1g i11dividuals acc11sed of crin1e. TI1is str11ctl1re reflects tl1e philosopl1ical foundations of tl1e Australia11 "ad versarial syste1n '' of crimil1al jttstice.

DIALOGUE BOX 1.1

[1 .30]

In theory, the c ri mi nal Iaw wshould be reserved for the most serious harms" (Des Rosiers & 8it1Je 2004: ix). However. critics such as Brown (2009) suggest inadequat e limits have been placed on the types of behaviour that shou~d be defined as crime under t he law. This has several implications for how 1he criminal la.w regulates human behaviour and highlights its inherently politica~ character. 1

Extensive research highlights how po~iti cians who claim to reflect public sentiment often automatically expand t he criminal law when an actua~ or perceived social problem emerges. This is a form of "'over-cri mina~isationu 1

Chapter 1 What Is crime and who Is the crl m lnal 1

7

(Ashworth & Zedner 2008), which according to Brereton (1996: 83), results in sweeping reforms to '~key areas of crime and justice policy'~ without adequate reference to criminological research or the harms caused by these processes. This means expanded legal definitions of crime prohibit an increasing number of less serious or harmful behaviours, which extends the stigma of a criminal conviction to encompass more peop~e. According to Des Rosiers & BitUe (2004: ix), this "reflex application of criminal law to deal with ... . compl ex social issues1 is highly pr,ob~ematic. As more people are charged, c,onvicted and sentenced to a wider range of iHegal behaviours~ it becomes harder for these people to "reintegratePJ' into society (Braithwaite 1989). The result is a "net-widening effect'~ (Walker 2005: 223) that stems from increasingrry broad definitions of cri m,e targeting behaviours that are not necessarily violem ~ harmfu I to others or commonly accepted as crimina~ activifi,es. Thes,e processes might be viewed as effective in reducing the harms caused by problematic behaviou~ but they are not necessarily an efficient use of the law, or 1he statejs policing and j ustioe resources (M rtsilegas 2014). 1

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'One example of net-widening is linked to the concept of "pl"e-cdmeu (McCuUoch & Wilson 2015; Zedner 2007). Pre-crime attempts to identify and priOhibit the ,earfy si gns of criminal behaviour to prevent a more serious criminal activity in ~uture. Pre-crime laws oft,en appear in popu~ar cuhure (McCulloch & Wilson 2015) and are commonly justified in the war on terror (McCulloch & Pickering 2009)~ by extending laws prohibiting conspiracies that often involve groups or organised crime networks, and attempts to commit crime. HistoricaHy, the criminal law was a reactive method of pro,moting social cohesion, which imposed punishments after an offence had occurred and was proven in court (Bentham 2001). Pre-crime is a polirtically appealing method of attempting to '~pre- emptu future criminality. How,ever, pre-crime laws also remove many due process protections associatted with the phrase "'innocent until proven guiltyu, such as the presumption of innooence. the ''rig ht to silence, the rig ht to a fair 1 tria~ and the presumption in favour of baW (McCuHoch & Pickering 2009: 632). Critical criminologists argue pre-crime laws can be used to unfairly target vulnerabl,e individuals, who have limited grounds to challenge the accuracy of their application. Therefore, pre-crime can reshape the very meaning of the term "crime'', because its pre-emptive focus promotes greater feelings of secu rrty or oo mmu nity safety by targ,etin g risks that "' cou ldpj, but are not necessari~y likely, to em,erge (McCulloch & Wi~son 2.015: 3). 1

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[1.40]

Tl1e counterpoit1t to over-criminalisation is "u11der-criminalisa.tion", which denotes the failtlre of tl1e crinTuinal law to define certait1 hart1lfti1 behaviours as crimes. Historically, cri1nes by busiI1esses, co111n1011ly termed 11 \vhite-co[lar cri1nes" / were rarely incor.p orated into the criminal law (SutJ1erland 1940). This is partly d11e to tl1e complexity of 1nany bLtsit1ess frau(_is, \vhicl1 are often difficltlt f,o r police to detect or investigate. However, '"'white-collar cri1ne" is a11 extremely broad ter1n e11compassing a \Vi(.ie range of busi11ess activities tJ1at can cause co11Siderable harm, yet might be tu11awfi.i1 in son1e co.nte:xts, but per1nitted in others (Tap.p an 1947: 98-'99). Histo.r ically,

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Crime and Justice: A Gu~de to Cnlmln o ~ogy

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ltnder-cri11li.t1alisation" characterised v"iole11ce in the ho.t11e., Even thoulgh. tl1e crim.it1al law has 1011g .P r,o hibited assault a11d batteryf police were rell1ctant to e11force these laws it1 cases of do111estic assattlt. This 11as produced a ra11ge of la'Vl reform and .r revetl'tion itutiatives in recent decades tliat s.p ecifically apply to domestic viole11ce (Go·v ernment of Victoria 2019; · eave, Faulkt1er & ·. ich.olso112016; Rolli11gs & Taylor 2008; World Health. Organisation 2010). 1

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Legal defiiutio115 of cyber-crime'' are also higl11y proble1natic. A range of hartnful beha,;riours can be co1runitted \Vitl1 digital techt1ologies. However, the law has been slow to recog;n.ise n1a11y as crin1es. So1ne activities, sucl1 as fraud, equate with recogi1ised crin1u1al offences ii1volvit1g deception or 'tl1eft. Tl1e o:n ly difference behivee11 a real or virtual crime in these cases is the ttse of a complrter or mobile device to corrunit the offence. Cyber-bttllying or usii1g a11 avatar to cotrunit a sexual assault in a virtual world (Warre11 & Pahner 2010), are more problematic to classify as crimes, even if such behavio·u r might cause temi'lorary sh.o ck or harm to the person con.trolling the unsttspecti11g avatar. Crimi11alisi11g various forms of cyber-btdlymg 1night also be considered evidence of the over-cri1niI1alisation of conuno11 or trivial activity that could be better regulated through otl1er meatlSf or t1"te t111der-criininalisation of more seriotis forms of cyber-ltarassment, predatory sexual behaviot_u· or image-based sexual abuse that can. cause real atl!d 011going l1arms to victims. Specifically, tu11der-criminalisatio11 allo·w s pre]t1dicial values that contribute to tllis t}rpe of l1armful behaviour to remain u11regulated (Hetuy & Powell 2015; Powell & Henry 2017). 1

DIALOGUE BOX 1.2 [1 . 50] The law of murder applies to int,e ntional or deliberate kiHings. whil e 1

the law of manslaughter applies to negligent, reckless or accidenttal conduct that leads to death. Manslaughter highlights several ,grey areas in the legal definition of crime. For example. one variation of manslaughter is culpabl e driving. which involves negligent or reckJess use of a motor vehicle that leads to d eath. 8etween June 2009 and June 2'014, 62 people were convicted of culpable driving in Victoria, with the average term of imprisonment 5.92 years (Sentencing Counci I of Victoria 2015). By contrast, there are many wel 1r,ecogn ised risks of serious injury or d eath associated wiith organised sport. For ,example, in November 2014, New South Wal es cricketer Phillip Hughes died after being struck in the head wh i ~e batting (Knox 2015). Rather t han caHing for the sport of cricket to be banned, which is a oommon response after peopl e die as a result of injuries sustained in combat sports such as boxing (Haxton 201 S)p t he cricket co1m munity and 1he popular media vi eWed this incident as an unfortunate accident. There are rare~y calls to lay manslaughter charges in cases where deaths result from sports activities. Rather, the debate tends to focus on whether the sport should be banned outright, or at the very least more heav i~y reg ulated. 1

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Chapter 1 What Is crime and who Is the crl m~nal?

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In t he United States, research indicates around "'27% of all po~ice ki llings of unarmed citizens began with a traffic stop'~, which is considered to be a symptom of t he •'overpolicing of carsn driven by people of colour (S,eo 2019: 11). However, avaHable officia~ records miss about half of all police killings in t he United States (Zimring 2017: 159}. Such defects in basic reporting can flow t hrough t 0 the lack of accountabihty for excessive use of force. This gap in accountabiHty links to t he b roader issue of whether the cri mina~ law should be applied to enhance investigations into, and lim[t the extent of, lethal force used by police, especially against minority populations in t he United States. 1

FIGURE 1.2

Car accident: State Library of Queensland, 1943

Source: https:l/commons. w1klmedla..org/V..r/1ndex. ptlp?sort=relevanoe.&seafiCh=Car+aooldent+ australla&tltle=Sp.eclaJ %3ASearch&protII e=advanced&fulltext=1&advan cedSearc h-urrent= % 78%7D&ns0=1&ns6=1&ns12= 1&ns14= 1&ns100= 1&ns106=1#/medla/FUe:Brnsbane_city_ street_aocldern_lnvolVlng_a_Hudson_Terraplane_and_a_Ford_Utlllty1_1943_(6828060482).Jpg. Hlstonlcally1 heavy steel v.ras used to make cars. This had enormous potential to cause serlous Injury or death to drivers and pedestrians. Hovuiever, road tolls today are much higher due to the Increased number of vehicles on our roads. Despite the existence of the criminal law, It remains unllkely any Australian state wlll have an annual road tou of zero. 1

CRIME AS A SOCIA AND POLITICAL PROCESS [1.60] Crilni11ologists have long recognised 11 the s tudy of crun inal la\-v a lo11e ca1mot provide all tl1e inforJ.nation ne cessary for a proper t111derstan.d it1g of t11e phet101ne11a of crime" (Radzit1owicz & Ttln1er 1945: 12). This is because 1

10

Crlme and J ustlce: .A. Gu~de to Crlmlno logy

crime is a social process tl1at influences, a:n d is influenced by, a complex series of relationships between tl1e offe11der, the victin1(s), formal justice age11cies such as the police and t11e cottrt system, and ·fue general commrn1ity. Hillyard & Tombs (2007: 12) ind.icate "u11due attention give11 to events vvhich are 1legally ~ defined as cri1nes distracts attention fro1n more seriotts harm,, that ca11 often be caused by g ovenlllle11ts or large 1nultit1atio11a1 corporatio.n s. Wh.et1 social processes are co1isidered alongside th.e legal definitions of cri1ne, it beco111es clear tl1at the criminal law and its enforceme11t is underpinned by complex po\ver relations. 1

1

Eviden.c e i11dicates lndigen.o us .A us tralians "are typically tvilo to five ti1nes'' more likely to be victi1ns of violent crime than non-filndige11o l1s Australians (Willis 2011: 1). In. most cases, the offender \vill be another lndige.notts person. These statistics reflect a complex set of social processes, dating back to colonisatio11, associated v1lith both. criminal offem1ding and high. rates of victimisation it1 At1stra]ia11 lndigen.o us comm11nities. Chris Cunn.ee11 (2001) indicates tl1ese processes are closely related to a long and problematic li.istory of police relatiotlS with. Australia11 Indigenolts people. For example, I11digenot1s wo1ne11 are highly mistrustful of police reactions once an incident of cri1ni11al violence is reported. Willis (2011: 5) demonstrates the ufailttre to act, .. . slo\V responses, disrespect, cultural inse11Sitivity or laying bian1e otl. the ,1ictin1" l1ave ail contribttted to scepticism of police by Indige11ous Australians. Moreover, if the offe11der is fron1 the san1e ltldige11ous comn1u11ity, their apprehet1sion and i1npriso11ffient cru1 be 1nore destabilising tha11 the har111 caused by the original crime. Tl1is is becau1se tl1e stigmatising effects of a crimit1al punish1ne11t on tli_e in.dividual or t11eiI conununity migl1t be far greater than tl1e coinparatively tninor harms that commonly come to police attention (Hillyard & Tornbs 2007: 12). T11e social processes associated lvitl1 criminal en.forcement atld ptmisi11ne11t can help to explail1 tl1e problem of I11dige11ous over-representation in the crimi11al justice systern. Bia gg et al (2005: 138) indicate 1na11y crimi11ai ~'la \VS are facially neutral but have an ttneven im.p acf' ·w hen enforced. Young lndigenous me11 atl d wome11 are over-re.prese11ted it1 A·u stralian crime and priso11 statistics (Allard et al 2010). Increased public \risibility mea11s that 111.inor offences committed by a11d against Indigenous people, often in. public places, are easier for, police to detect a11d formally i1rocess. This creates a spiral effect, where additiorlal forms of social control, i11cluding more rigorous policing a11,d increased penalties, target I11dige11ous people and their communities to cotnba·t 11ig11er recorded levels of offending. Tl1is becomes a form of popitlation profilit1g, where the very fact of more recorded crime generates a perceived 11eed by politicia11s and jltstice officials for tnore coercive formal responses (Harcourt 2007). Tl1is patter11 in.c reases tl1e prospect that tnore ln.dige1i:ous people will e11ter the jltstice system or receive harsher penalties for repeat offe11ces that will be easier to detect. 1

1

1

Chapter 1 What ~s c r1me and who Is the erlml nal?

11

The dis1-..,ropor tio11a te and repeat a Pl-.., lica tio1i. of strict legal defiti.itiotlS of critne in 111a11y h1digeno11s co1nn1 m1i ties is closely liti.ked to broader prob le1ns of geograpluc remoteness and political dise1npowerme11t (Curu1een 2001: 230). By e1npl1asish:1g social har1n, critical crimit1ologists (Agnew 2011) recog11ise how legal definitioJ:1lS cart incorporate both co11ventio11al notio11s ,o f crime that focus 011 a11 offender's it1.ten.tio11al actions towards a11 identifiable victi1n~ as '\ivell as systellUc i11Stit11tio:n al bias produced by the criminal jttstice system itself (Blagg et al 2005; C11n11ee.n 2006; Shaw 1966). A social defitution recogrtlses tl1e co1mectio115 betwee11 p roblen1atic historical and conten1porary for1ns of justice it1terventio11, a11d the politics of la\.v111akit1g, e11force1ne11t decision-n1aki11g a11d social policy (Matthev\ts & Kal1zlaricl1 2007). For example, ma11y Indige11011s people have exp,erienced forced re1noval from their families a11d tra·ditio11al lands, a lack of citizetLSlup and inadeqt1ate gove.mru1ce. TI1e over-zealo11s t_tse of the cri1ni.t1al la\.v:, a11d its failu.re to protect worthy victini.s of critni11al harm, 1nagtlifies the systemic political margit1alisation that has bee11 experienced by u1digertous people sit1ce colo11isation (Baldry & Ctuu1een 2014). 1

FIGURE 1.. 3

Colonial police and Indigenous people

Source: Godfrey Charles Mundy at https:t/com mon s. wlklmed la. org/wHcrt/FIl 1e~ Our_Ant Ip odes;_ or!_ Residence_and_.ramb Ies _ln_the_Austral as~an_colon Ies._With_a_g llmpse_of_the _gold_ fleld s_(1955}_(145911259S7) .jp-g . Contemporary relatlons between pollce and Indigenous people are a probfematlc legacy of Au straJ~an co Ion ~all sett lem,ent. Many vlo lent confHcts Involvlng polrce and Indigenous populatlons could be c~asslfled as state cr ~m es. 1

Crl me and J ustlce: .A. Gu~de to Crlmlno logy

12

DIALOGUE BOX 1.3 [1 .70] Critical c rimi nolog ists question the framing of crim e policy sol ely in li ght of the legal definitions of crime (Agnew 2011 ; Cunneen 2006: 344). While social harm is often difficult to precise~ identify! several authors highlight how this term can help to identify many problems with the practical application of legal d efinnions of crime. 1

1

1

1

Hillyard & Tombs (2007: 11) indicate most crimes detected by police and processed through the courts are Hminorpj or "'petty eventsu that might expose individuals or communities to some forms of harm. Som e identifiable losses are re~at ively trivial! or can be recovered th rough insurance or other forms of compensation. However! the re~ationsh i p between crime and punishm ent often stif les the development of social policies that might be more ,e ffective than the criminaJ law in reducing various physical! ·financialp emotional or cultural harms. A social process approach recogn is,es that criminal justice policy should examine not just "the conditions under wh ich criminal behaviour occurs! but the conditiions that allow for criminalisation itself1 (Cohen 1992: 27). 1

1

1

1

1

j

Critical crim inolog ists recognise that exposure to the cri minaJ j ustic,e system increases the stigma peopl e can experience fr om social deprivation and political marginalisation. As a fiesu lt! several alternatives to formal criminal prosecution for minor offending have emerged in recent d ecades. Commonly t ermed "div,ersionary programs", these initiatives reoognise adults and young people involved in "'pre-crim 1e~' or minor one-o,f f offences, are better served by a "reint egrative" strategy (Braithwaite 1989)! rat her than a formal criminal punishment. Restorative justioe programs instigated by police (Richards 2010) and drug diversion programs (Wundersirtz 2007) are two 1examp~es that aim to provide assistance to the wrongdoer to oorrect their behaviour and prevent reoffending, rather than administering a fonmal punishmentp such as a fine or term of imprisonmentp which might ~ead to the continuance of the behaviour when an offender is released. 1

1

1

1

1

1

1

Diversionary strategies are only avai labl e if the behaviour fits within a conventional legal definition of crime. Therefore, a social harms approach is lik ely to be critical of restorative or diversionary programsp due to: 1

1

... the prob lematlc way

~n wh~ch

crime Is deflnedf the h[ghlly polltlcal nature of defining harms as crimes ... the problematllc way ~n wh,lch the state creates harm by contro~~lng c tilme, and the overall~ ~neffecUveness - and potentlal harmfiulness ofi mechan~sms of soclaJ control. (Matthews & KauzJlanch 2007: 49}

HUMAN RIGHTS, D EFI N ITIONS 1

[1.80]

a11y types of criminal offen.d ing it1volve illegal activities that tra11sce11d 011e or n1ore nati.011al borders. Cyber offe11ces, terrorism,

Chapter 1 What ~s crime and who Is the erlml nal?

13

people s1nugg.ling, drug trafficking and enviro11n1en.tal degradation are promi11ent exa1nples (\¥.arren & Palmer 2015). The growing co11cer11 over tra11s11atio11al crii11e has generated a ·\vealtl1 of research a11d strategic policy respo11ses fro1n \rarious organisations established by tl1e U1lited ations (U1uted · atio11s Office on Drugs and Crime 2019), and the Euro.p ean Uruon (Colso11 & Field 2016), to promote awareness of these proble111s, and a d\rise natio11al g·oven1me11ts Oil how to develop appropriate legal and i1olicy responses (see Joseph & McBeth 2010; Office of tl1e United ati ons High. Co111missioner for HunIB11. Rights 2010; Unite,d Nations 2005; V\1eber, Fisl1v,lick & Marmo 2016). 1

1

Httman riglTts are minin1t1m stru1dards directed at goverrunei1ts and state authorities aimed at protectit1g citize11S. However, human rigl1ts are 11ot enforceable in the same way as the crinUnal law. They e11cot_trage governments atl!d government officials to comply with basic sta11dards in tl1e treatn1e11t a11d regtdati011 of h·u man behaviottr. Even if a state intends to treat people with fairness or compassion, formal policies associated with cri1ninal law and its enforcement can still potentially violate internatio11al hurna11 rigl1ts law. Ille rnait1 fomIB of human rigl1ts protected under intemati011al law include: 1

• Safety of the person, "''l1ich pro1notes equal treatment and freedon1 of n1oveme11t under tl1e law, and prohibits torture, cru.elty,.slavery, a11d racial, reli&ous or political persecution.

• Individual freedom, includit1g freedon1 of opituo11, expression., thought, religious adherence and peaceful protest, and prohibitions against religious or racial hatred.

• Fairness, including prol1ibitions agai11st arbitrary arrest, dete11tion or exile, ru1d th.e rigl1t to a fair pttblic hearing and the presumption of innocence. • Peaceful enjoyment of property and privacy (Robertson 2002.: 102-130). Many ht11nan rights laws are ir1corporated into Australian State and Federal law, or are e1nbed ded i11 the rules of cri1niI1al proced.ure. However, a social harn1 approach recogt1ises tl1ese m i11imtlm sta11dards are not al\\"ays enforced. A htuna11 rigll ts approacl1 in crin1inology also focuses attentio11. towards tl1e concept of state crin1e (Pickering 2005; Weber, Fishwick & Marn10 2016), which is a subs,ta11tial departure fru1n conventional definitions of crime that focus .P rimaiily on i11dividual wrongdoing. 1

WHO IS THE CR MINAL? [1.90] Since 1880s (Pick 1989), tl1e q.u est to identify "w.h o is the crinill1al" has involved a11 ongoing te11Sio11 'b etween mainstream studies focusi11g p.r imarily on it1dlivi.dual factors, and critical studies examining the social cat11ses of crime (Agnew 2011). Eac.h approach aitns to iden.t ify m1d prevent harn1. Howeve.r, \raryiJ1g definitions of cri1ne, a11d the focus on distinct personal, familial, social, cult11ral and enviro11me~1tal traits, .p roduces conflicting vielivs about the dominant factors tl1at 1nigll t explain w l1y a perso11 engages in certain for1ns of crilninal activity.

14

Crime and Justice: A Gu~de to CrlmlnoJogy

Research. focusing 011 the nah.tre of tl1e offe11der's behaviou.r, rather than t11e cl1aracteris tics or c 011 text of tl1e offe11ce (Ke1111y 1945) / tends to accept prevailing legal definitions of crit11e unquestio11i11gly1 or broade11s these defiI1itions to examit1e b iological a11d p sych ological fac tors tliat might co11tribute to aggressive, v iolent o.r dishonest bel1aviour. Early b~ological th eories of cr.i111e \Vere heavily infll1e11ced by Charles Darwin's theory of evoltttio11. These a pproacl1es examined aber.rations it1 tile facial structure, l1ead sh ape or physical stature of co11victed crimi11als, and conclttded that cri1ni11als liVere biological!y inferior to ~ norn1al n.1an". As such p ltysical traits \·\lere considered i1u1ate, or sornetl1ing a personlwas bon1 \'\rith, it "'as believed a con victed critninal could 11ever be rel1abilitated. T.he only way to preve1Tt crin1e was to '.-eliminate th.e l111assinillable"" from the law-abidi11g pop1ilation, eitJ1er ''by impris01une11t for life but by deatl1 if need be" (Ke1111y 1945: 5). 1

FIGURE 1.4

Cesare Lombroso's photos for criminal classification 11

1'2

M l.l!TI "' ....,.

RITRATTI D I CREMINALl T DESC'.Hl E 1 ITAT.J A

i.

Chapter 1 What ~s crime and who Is the erlml nal?

15

Source: The VVeUcome Images CoUectlon at https:l/commons.virlklmedla.org/vJ/lndex.php?tltle= Spec~ al;Searc h&lIm lt=20&off set=Gr0&profl le=defaun&search =I om b roso&adva.nced Search current={}&nsO= 1&ns6=1 &ns·12=1&ns14= 1&ns1 00=1&ns·106=1 -#/med~a/Fl le:Cesare_Lombroso~_ r uomo_Dellnquente _18S9_VveJrcome_L0030Q61 .Jpg. 1

Cesa.re Lombrooo used early photograph ~c technolog fes to classlify d lflierent types of c rlm~nal based on phys~c-al appearance. These r'portra~ts of cnlmlnology" ~ publlshed In 1889,, deptct In d~vtdu als conviJcted and Imp rlsoned for varlou s crimes 111 Italy and Germany, In eluding theft, robbery and murder~ Lombroso sought to examine whet her peop1e convtct ed of certa~n types of crime shared slmHar fac~all features or eoufd be vlslbl'y d~stl ngu~shed from non-offenders. Later varlat11ons of th~s approachj referred to as ~'soma.totyplngu ~ attempted to match d lfterent body· shapes to parucular forms of er~me. Contemporary biometric and taclal reeogn lUon tech no1og~es Involve slml~ar for ms of physlca~ profillng but are dep~oyed ma~n ly for secu111lty purposes (Hu 201 7~ Sm~tt\ Mann & Urbas .2rCU8). 1

Co11te1nporary variants of these theories it1,1esti,g ate psycl1.o logical traits o1Jiserved in convicted criminals or people display.it1g tl1e early signs of anti-social and aggressive 'behavio11.r (Rose 2010). These theories also 'tend to u11critically accept legal rather than social or human rights definitions of crime. Psycl1ological theories situate deviant behaviotir in the mir1d, and exarnir1e 'vhy some i11,d i,riduals might have problems controlling their rnood, temper or self-gratifyit1g i1npulses. Other approacl1es argue tl1at exposure to n1altreatment as a cl1ild cai1 stifle learru11g and emotio11al or neu.robiologicaJl develop1ne11t (Lee & Hoaken 2007). Psycl1ological theories atternpt to ider1tify and treat tl1e caltses of a:nti-social and viole11.t behavio·u r Huougl1 medication or psychotl1erapy·, ideally before a perso11 has com1nitted a seriotts crime (Volk.mar 2019). In extretne cases, if a person prese11ts ru1 obviotts danger to tl1e cotrununity or is 11ot responsive to treatn1e11t, tl1e only cl1oice is .rer111ane11.t co11fiI1en1ent it1 pris011 or a psycl1iatric facility. Social, ecor101nic and envirotlillental theories exa1nine ho'v formal decisiot1S by la'livmakers, the po.lice,. courts and the correctional syste1n affect certait1 individ11als or groups in society. Research demo11strates people ex.perie11cing econonuc deprivatio11, lack of educatio11al opportu11ity, 11eigl1tened public visibility or a lack of political povi.7 er are more likely to be exposed to tl1e critnitial justice system or labelled as actual and potetltial crin1inals (Gibbs 2010; Lea & Yow1g 1993). This does not 11.ecessarily 1nea11 legal defil1itions of crline are irrelevant or iI1adequate in co1n bating \rarious forms of social llar1n. Rat11er, these approaches empl1asise tile need to ''take crin1e seriously", by holistically examit1.it1g tl1e sociaJl context behind various forms of criminal offe11dit1g_f including the circttn1Stances of the offe11der, the in1pact of critne on. actual or potential victi11i.s, the effects of polici11g a11d legal strategies aimed at preventing crini.e, at"l!d tl1e broader social reactions to eacl1 of tl1ese factors. 1

This tradition of research. i11dicates 1nost offences re.p otted to or detected by police are co1nmitted by ru1d against people of sitnilar social standit1g. However, the te11.dency for the criminal law, police and the media to focus on lugl1ly visible street crimes can skevi.7 tl1e equal operation of tile cr'inillial lavi.7• Fo.r exatnple, evide11ce s11ggests tl1at police tei1d to devote disproportionate attention. to mit1or for1115 of street offendi11g 'b y targeting 1

Crlme and J ustlce: .A. Gu~de to Crlmlno logy

16

publicly visible groups irtcluding yollllg ~">eople, ethnic 1ni11orities or drug ttsers., Etlm.ic minorities are more relttctant than the ge11eral popttlation to report crimi1tal victimisation t 0 .P olice, or are often dissatisfied wit11 tl1e official response when a report is ina,d e (Makkai & Taylor 2009). However, evidence also iI1dicates that l1ew iin1nigra11t populatiot1S initiaUy display lo\v rates of c.rinlli1al offendi11g_, wl1ich grad ually increase with their lei1gth of stay .it1 a host tlatio11 (Hazlehurst 1987; Lea & ~oun.g 1'993). Th.is co11trasts tnarkedly 1\Vith. domin.a nt media depictiotlS of ethnicity and crime, '\ivl1ich tend to tu1dlerplay the in1pacts of racially motivated victimisation, c1tlt11ral disf'1lacen1entJ' ·u nemploymentJ' relative povertyJ' geograpl1ic isolation or boredotn that are likely to co11tribute to visible yet fairly minor forn1s of street offei1ding. 1

11

Realists" in ves tiga te the broad er s trltctural, political and ec,o nontlc factors tllat restilt in the crin1it1al jltstice system targetit1g some populations or behaviours instead of others. Such. tl1eories are lik ely to reconstruct prevaili11g legal, social and htunan rights ,d efinitions related to crime in. a11 atte1npt to overcome the s tructural and political margi.rtalisation associated with upre-crin1e'', over_,criminalisation" or the m1derret-'1orting of crime .it1 certain commurrities. At the same tin1e, th ese approacl1es often question the limited impact of tl1e criminal law in combatit1g serious for111s of social harm, includit1g Uthe co11trol of pollution, it1dustrial safety, (and) traffic co11trol" (Lea & Yormg 1993: 272). Realisn1 emphasises the importance of th.e social context behind most forms of crin1inal offei1ding, rather than focusit1g solely on .it1dividual factors ·w hen i11vestigati11g .r vvl10 is the crin1inal'' (Wright & Bouffard 2016). ¥'

1

DIALOGUE BOX 1.4 [1.100]

The capacity to accurately p redict who might be· criminal is increasingly ,examining genetic fact ors (Morley & Hall 2003). How,ever, neurological, psychological and genetic studies also recognise individual ,explanat ions for crime need to incorporate social~ economic and spatia~ fact ors. Australian research examining anti-social behaviours, including '~setti ng fires, t ruancy, stealing, run ning away from home and hurting others'~ (McGee ,et a~ 201 1: 2) suggests "'maladapt ive tu nction ing ,of the chiId u 01r signif icant "disruption of t he parent ing processn are the major predictors of anti-social behaviour (McGee et al 2011 : 5). However, t his does not necessarily mean tha1 t eenagers experiencing t hese trai'ls wiU engage in criminal behaviour as ad ults. 1

1

Attempts at using biological, psychological, psycho-social or genetic modelling to predict "who is criminal'' can be subject to j'false posirtives 11 that might target law-abiding people who display various "pre-crimejj or anti-social behavioural t rajts. This is common t o any st udy t hat attempts t o pre-empt criminal activity using a logic of predict ion or profiling (Hairoourt 2007). Rose (2'010: 8 6) suggests back ground factors such as "housing, employment marital status, substance 1

1

1

Chapter 1 What ~s crime and who Is the erlmlnal?

17

misuse and the like'' vary immensely "across time and spaoej'. This means not all people experiencing these life stressors ar,e likely to offend, or w ill do so in the saJrne ways. Rose also cautions that the growing emphasis on preventing the "'risku of crime through "'pre-crim,e'' laws or ~'over-criminal isation]' places mol'ie pressure on legislators and criminologists to deve~op methods of predicting "who is the criminalu. This can lead to "threshold-loweringu, where assessm ents of a personjs risk of offending or reoffending are based on relaxed psychological and legal criteria, or "net-widening'~, which opens up the prospect more people are capt ured by broader risk classifications (Rose 2010: 88). 1

1

1

1

Many people diagnosed with developmental conditions, such as autism spectrum disorder (ASD), can simultaneously "be highly int,elligent yet display significant developmental delays in other ar,eas'' (Attwood, Henault & Dubin 2014: 134). This is espec i al~y problematic if people with ASD misinterpret social cues relating t o intimacy and sexuality, or are unabl e to fully appreciat,e the consequences of their actions. While the social stigma associated with sexual offending would suggest crimina~ prosecution and incarceration is desirable to pmt,e ct the community, this can also have potemially damaging i m p ~ications for people with ASD, i nc~uding greater risk of viol,e nt vic1imismion and suicide. This raises several comp~ex issues regarding the appropriat,e leve~s of support to identify, prevent and manage these risks in the broader commun irty, while Iimiting the potential risks of imp rise nment for peopl e with ASD (AJlely, Kennedy & Warren 2019). 1

1

1

CONCLUSION [1.11 O] Tius chapter· ill11s tra tes several tensiotlS associated vvi tl1 defining crin1e. A strict legal d efinition ca11 acc11rately .ide11tify tl1e types of behaviour prohibited utl!der the criminal lav1l,. but provides limited scope for exarnirdng hovv such definitions are applied by for1nal jttstice agencies. Greater understandlt1g of V1lhy crin1e occurs and h ow it it1tersects ¥vitl1 notions of harm an.d hu1nan rigl1ts .requiretnents is developed throl1gh 11 critical criminology'', which examit1es the social processes associated ¥vith crim.it1al law making, enforce1ne11t and p1mishn1ent Each of tl1ese issues has important political dimensi0Jl1s that involve clear te11sio11:S belviteen those advocating for the expansion or co11tractio11 of the critnn1al law. Cri1nit1ology strives to 11ndlersta11d these tensio115 by 11sit1g research to inform the ongoing development of justice policy. It also seeks to d evelop 11ew vva ys of identifying and combati11g crime that are sensitive to p.r otectit1g tl1e com.p eting rights of critne suspects,. victitns atl.d the broader community. TI1e social and political importa11ce of U1ese issues et1st_ures tl1at ap.p ropriate defi11itions of c.ritne, or theories ai1ned at identifying "'wl10 is the crim.i.t1al'1 ,. will always be open to debate. How tl1ese differences are recon.c iled across the broad .range of behaviours tl1at ni.ight ca.11se harn1 or be considered as crimes remait1s ru1 on.g oing nlission for Australian crinunology. 1

18

Crlme and J ustlce: .A. Gu~de to Crlmlno logy

QUESTIONS Legal definitions - - - - - - - - - - - - - - - - - - - - - - -

!. Li.st five beliaviours you consider to be serious crimes. Wl1at types of precrime activity might be associated vvith these bel1aviou.rs? Why migl1t it be unfair to crinlinalise tl1e pre-crime factors you have identified? 2. According to 'Brovvn (2009: 273), H1e follo\ving were defit1ed as crimes it1 many parts of the United States during the 19tl1 ce11h.1r~l: • Travelling or vvorking rnmecessarily 011 Sundays. • Unen1ployment. • "StroHing vvithout la1¥vful ptupose". • Using wood ratl1e.r tl1an brick to construct buildings. Make a list of tlte socia] conditions that 1night justify classifying t11ese bel1aviours as critnes? Wotlld it be fair to defi11e t11ese behaviours as crit11es t,o day? Would these be appropriate laws for conten1porary police to enforce? 3. The Jack-Roller: A Delinquent Boy's Oivn Story (Shavv 1930, 1966) is 011e co1npone11t of a11 extetl.Sive st11dy of the p .r ocesses of crimit1alisation .it1 t11e US city of Chicago from the 1920s to tl1e 1940s. This book doc11111er1ts the life story of Sta1iley, wl10 first ca11te to tile formal attention of police for nili1or #truancy and petty steali11g' at the age of six, and was later convicted of n1ore serio11s delit1"q·ue1111cy· and burglary offences during adolescence. Shaw's objective vvas to doc11ment: 1

(1) the point of view of the delinquent; (2) the social and cultural situation to which the delinquent is respons ive; and (3) the seque nce of pas t experien ces and situations in the life of the d elinquent. (Shaw 1966: 1q)

T11e first of 38 offen.c es it1 Stanley's official police record bet\-veen the ages of6 and 16(Sha\.v1966: 41-45) is: 1.

Six years, six n1on ths of age:

Found sleeping iu1der a doorstep late at night several blocks away fro1n his home. He \.Yas in the cotn.p any of an older boy, and had been a\vay fro1n home tvvo days. Reh1med to his home by the police. (Shaw 1()66: 41)

As an adult, Stanley attiibuted the causes o.f his early deliI1quency and exposure to crime to lus step1nother ¥;Jwho nagged me, beat me, ms11lted me, and dro·v e n1e out of n1y own 11011te" (Shaw 1966: 70). Ho\.vever, tl1e la\v at tl1e tin1e required police to retur11 StanJey home after his flrst vagrancy offence.

What does tl1e case of Startley say about: a. tl1e limits of f'onnal legal definitio.n s of critne a11d ·\.vho these can target; b. the actl1al or potential difficulties tl1at pre-crime laws, suc11 as vagrancy, ca1\ prodt1ce for yotu1.g peoplei c. tl1e problems of ensurit1g appropriate interventio11 by the police under th.e criminal lawf it1 ligl1t of t11e pote11tial risks of futttre offending?

Chapter 1 What ~s crime and who Is the erlml nal?

19

4. List til e fact,o rs that should be co11sidered whei1 deter11u11.it1g wl1eth.e r c11lpable driving that causes death, deatl1 durit1g different sporting a c ti vi ties or tl1e use of le tlial force by police, sho1J.1d be classified as crimes. \¥l1at distinguishes th.ese examples from other socially important yet risky a c ti vi ties that coult.i lea{.i to accidlental o.r reckless death., a11d possible 11-iatlSlaughter charges, s11ch as: a. tryiJ1g to resuscitate a perso11 who has collapsed in the street; b. a corporation releasmg a drug to relieve 11eadaches tllat ca·u ses wlit1tetl.ded conseqttences, sucl1 as heart failure; c. a government policy to it"tStall energy efficient teclu1ologies in. all Australian .homes, w·h ich. provides inadequate itlStructions to trades peopl.e on holv to avoid the risks of electrocution? 5. Wl1at factors are likely to be co11sidered i11 detenniturtg vvhetl1er a11 ordiriary i11di,1idual, a corporate director, a corporation, a go·v er1unent official or a gover11Illent as a whole is more likely to be in\restigated or prosecl1ted for ru1y of the sce11arios above?' What does yol1r response indicate about tl1e li1nits of applyit1g for111al legal defu1itions of "cri1ne ? 11

6. Drtig trafficki11g is not listed as a crime in the Cri1nes Act 195.8 (Vic) b·u t a.p pears in t~1e Drugs, Poisans and Controlled Subst,ances Act 1981 (Vic). Does tl1is variation in the legal defitliti011 1neat1 drug trafficking is not a critne? In yo·u r view, what nIBkes diug traffic.kit1g a crime regardless of \'\l hich la \'\l deals with ti-US prob le1n? Human rig ~d~in~ons ~~~~~~~~~~~~~~~~~~~~­

!. Humat1 rigll ts are defined by interm1ational law. Does this mea11 t11at H1e term "]l.wna11 rights" might be sl1bject to the sa1ne defi1uti011al problems as tl1e term crime''? /1

2. T11e Bomer Force Act prohibits gover1m'"\e11t officials and subco11tractors, includit1g doctorsf fron1 revealin.g details about the conditions it1Australian immigratio11 dete11tio11 centres. In Ja11ua.ry 2016, after visitit1g an offshore detention cetl.tre on tl1e island of Nal1ru, Professor ·o avid Isaacs openly defied the la"Yv a11d p11blicly stated his concerns abot_tt tl1e conditions at Nattrtt, claiming he had atl overridit1g 1noral duty to treat tJ1ose affected and infrorm the public abot1t possible 11uma11 rights violations associated l-vith Australia"·s im1nigration detention policy {Scott & Robi11son 2016). What does tl1is example sl10\v abottt tl1e relationship bet\veen legal defitutio1is of crime at1d tl1e problenl.S of humai1 rights e11force1ne11t whe11 the l1arm a.p pears to be directly cal1sed by official govertunent .P olicy? 3. h1 2007, the Australian Federal governme11t introduced the · orthern Territory Intervention to combat the "sttpposed endemic proble1n of child sexual abuse itl. remote Aborigit1al cotnmunities'' (Hameiri 2009: 563). T11e policy involved a five-year progra111 tl1at it1clu,d ed "bans on alcohol and pornograpl1y consttm.p tion'"', a11d strict controls on how vvelfare payinents vvere to be spent (Hameiri 2009: 563-564). T11is policy, and its n1ore recent legacies, co11tit1t1e to be criticised by the U11ited · ations Special Rap.p orteur on the Rights of Indige11ous Peoples for nIBg,lifying

20

Crlme and J ustlce: .A. Gu~de to Crlmlno logy

1

the already high levels of social d.isadv·a11tage it1 Australia s re1note lndige1lous co1n1nuni ties ( ·. nited Nations Ge11eral Asse1nbl y 2017). U such govertlment policies produce n1ore crin1e u1 disad\rantaged con1111ltnities, o.r sl1ift problematic behaviour to other neigl1bouring conununities, ca11 o.r should a state be prosecuted? What for1n of pt1nish1ne11t would be appropriate i11 s11cl1 cases and to whom wotil d it logically be d.irected? 4.

·oo

la\.vs targeting pre-crime appear to breach the 11urnan rights require111ent for fair· legal p.roceedings? If so, a. Ho\'\7 can pre-cri1n.e laws be j lts tified, at"l!d b. Wll a 't does t11e gro\vth of pre-critne lavvs say about the enforcement of itl ternatiotlal huma11 rights la\vs?

Pro,filing - - - - - - - - - - - - - - - - - - - - - - - - -

1. h1 cases involving alleged racist \rio le11ce, s l1o·u ld crhnitlologis ts examit1e possible biological factors that might explai11 why certain people 1nig11t be targets of racial ab use_, or th.e social factors it1vo Iving s 11ch targetit1g? Wh.y 1night tl1e two b·e confused it1 popular 1nedia ,d epictions or .P olice responses to sucl1 incide1lts (see Coventry et al 2015; Victoria11 Hrn11an Rights and Eqtial Opportutl.ity Co11i.n1ission 2008)?

2. fils the psych ological profile of a person vvho engages in corporate fraud likely to be sinlilar to that of a p erso11 who engages irt street violence? Wl1at distiI1ct social or e11viro1un ental factors associated \Vith tl1ese different forms of offe11dit1g are likely see tl1e v iolent offe11!der beiI1g viewed as 1nore of a risk to t11e commtuuty tl1an the corporate cri1nit1al? Wl1y 1night this disti11ct10111 be jt_tstified or qtiestionable in light of tl1e comparative hanns that can be attributed to eacl1 form of crime? 1n lig11t of your .resi-..,01lSe to this question.,. whicl1 type of crime should be policed o.r reg11lated n1ore heavily? 3. labelling theory (Becker 19 63) indicates that n1ost ~..,eople at son1e point il1 their lives will lrnve a11 encow1ter w i tl1 ~1e police or the crinlinal justice system. Hovvever, those w J10 have a secot1d or subsequ.ent encotu1ter, eve11 if the allegation it1volves a 1niI1.or offe11ce, are likely to emb,r ace or live tip to the la'b el of ·''cri.tnit1al". Ho\v nught this tl1eory be used to critiqlte curre11t _j ~ • • fl..,. Wha ' tre.tlU!; 111 pre-crrme or over...,cr1nuna lis· ation · tsortso·f soc1'al polic1es COllk.i }1elp to mini.tnise the stigmatising impacts of t11e criJnina} justice system 011 those 'vl10 are likely to be labelled or ,d isproportionately targeted as crimit1al' or "'pre-criminal'"' by police, t1}1e legal syste1n or l11e in edlia? 1

l/.

•

fl

I.I

'

•

1

11

1

4. Many juvenile offenders d o 11ot reoffend as ad11lts (Richards 2011). 111 light of these fi11dii1gs, should tl1e juvenile justice syste11i. ha.\re d ifferent objectives to the ad ult cri1nirtal jt1s tice sys tern? 5. Lombroso used photographs to profile convicted critn.inals based on their p11) 7Sical ap_p earance. How 1night co11te1n.p o.r ary digital techt1ologies be used, o.r 1nisu1sed, to create criminal profiles applied to certain it1dividtials o.r groups? Wl1at are the risks of using these teclu1iques in light of the i1roblems associated vvith '' p re-en1ptio1l " and th e objective of applying

Chapter 1 What ~s crime and who Is the erlml nal?

21

the crimmal law fairly and equally to all men1bers of society? Wl1at risks can you ide11tify i11 ttsing tl1e crin1iI1al lavv to target or pre-empt tl1e pote11tially risky bel1aviot1r of some social groups, but not oth.ers?

REFERENCES Agnew R. 2011 Toward a UnJfled Crlminology: integraUng Assumptions about Crlme~ People, 1

and Society (New York Un lverslty P ressf New York). AJlard Tf Stevi1art A, c hrzanowsk~ A, Og Ilvle J , Birks D & U1rUe s .201 o, " Ponce D~verslon of Young Offenders and In dlgenous OVer-RepresentaUonn t Trends and Jssu.es Jn 1 Crlme and Criminal Justice, no 390 (AustraHan Institute of C rlm~nologyf Canberra}. AJlely CSf Kennedy S &

Wa~en

12019, 'r,A. Legal Anallysls of Australlan

Crlm~na~

Cases

lnvolvlng Defendants with .A utism Spectrum Disorder Charged with Onllne Sexual 10ffeneesllJ~ Jntematlonal Journal of Law and Psychfatry ~ vol 66, p 1014S6. Ashworth A & Zed ner L 2009, ~ Def ending the Crimin all Law.: RefIect Ions on the Chang Ing Character of Crime t Procedure and Sanctlonsn f Crlm~·nal Law and Phllosophyf vol 3,

pp 21-51. A ttwood T,. Henault~ & Dubin N 2014.,, The Auttsm Spectrum, Sexuality and the Law: What Evel}' Paren:t and Pro.ressional Needs to Know (Jess~ca Kling sley Publlshersi London). Bafdry E & Cunneen

c 2014 , '"~mprlsoned ~ndlgenous Women and the Shadow of Colon~all

Patrlarchy" , The Aus:tnHfan' and New Zealand Journal of Criminology, vo~ 4 7 t pp 2716 -299. Beck.er HS 1963, Outsiders: Bentham J 2001 f

studl~s

In the Soc/olo.g y of Devfance (Macmmanf london).

on UttJltarlanlsm and Government (Words.worth

Waref Herts).

Blagg H, Morgan N, Cunneen C & Ferrante A 2005,. Systemic Racism as a Factor In the Over1

Represen tation ot Aboriginal People Jn the Victorian Criminal Justice System f Report to the Equal 10pportun~ty Commlsslo n and Aborlg Inal J ustlce Forum (Melbourne) at https:/lwMrui. h umanrig htscom m lsslon. vlc.gov.au/home/ou r~resources-and-pu bHcatlons/reports/ltemlf1391 systemlc-rac lsm-as-a-factor-ln-tihe-over-repre-sentatlon-of-alb orlg~nal-people-ln-the-vlctor~an­ cr1m~nal-Justloe-system-sep-2005.

B ralthwallte J 1989, Crime, Shame and Reintegration (Cambrrdge U nlvers lty P resst New York}. Brereton D 1996, ~' Does Crilmlnology Matter? Crtlme, Pollt lcs and the lswes In Criminal Justice, vol st pp 82-S B.

Pol~cy Process"~

Current

Bron ltt s & Mcsherry B 2001 PrlnclpJes of Criminal Law (1st ed LBC Informauon Serv1cesi j

t

Pyrmont NSW). Brown D 2009,

~' Hlstory3s

Challlenge to Crlm~nal Law Theoryl:I t Criminal Law and Philosophy,.

vol 3t pp 271-2S7. Cohen S ·1 992, Against Crtmlnology (Transaction PubHshers, New Bru nswlck).

or

R & F~eJd s (eds) 2016f EU Criminal Justice and the Challenge DJverslty: LegaJ cuuures In :the Area FreedomJ. Secutity and Justtce r(Cambr1dge Unliverslty Pres.sf Cambrfdge). Co~so n

or

Coventry G & Palmer D 200.B "Toward Constituting a CrilUcal Crlm~nology. for RuraJI In Anthony T & Sydney}.

Austrana~ t

c un neen c (eds)f r-ne Critical Criminology Companion (Hawkl ns Press

f

22

Crlme and J ustlce: .A. Gu~de to Crlmlno logy

Coventry G, Dawes G, Moston S & Palmer D 2015, " Sudanese Refugees" Experiences 1vlth :the Queensland Crlmln'a l Justice System t Report to 11he c r1mJnology Research Advisory CounclI ~ Grant: CRG 38/iOS-09 1 June at httipi/wwv.r.crg .alc.gov.au/reports/1415/36-0809-FlnalReport pdf. Crtmes Act 1958 (V~c}.

Cunneen c 2()01 , Cordi/ct, Politics and Crtme: A boriginal Communities and the Police Unwln, Sydney).

(A~fen

&

Cu nneeri c 2006, '~Rac~sm, DlscrtmlMtlon and the Over- Representatlo n of lndlgenou s Peop~e In the Cnlmlnal Justice System: Some Conceptual and Explanat ory Issues", Current ls-sues fn Crtm#'naJ Justice, vol 17 1, pp 329-346. Des Roslers N & 18 lttle S 2004, "Introduction,,:! In Law Comm~ssl on of Canada (ed) ~ What Is a Crtme? Defining Criminal Condr.1ct In Contemporary Society (U BC Pressr VancouJVer).

Drugs, Poisons and ControJJed Substances Act 1981 (Vic). GIbbs J C 2010:1 "looking at Terrorilsm through Left Real1st lenses l'J ~ Changesvol 54~ pp 171 - 1S5.

Crtme~

Law and Social

Government of Victoria 20'19 t Annual Progr:ess Reports - Royal Commission Into Family Violence (Government of Vlctorla 1 Melbourne) at https://www.v1c.gov. au/ ann ual-prog ress-reports-royal-commlss~on-f am l~y-vlolenc e. Hamelrt S 2009,. '~Governing Disorder: The Australlan Federall Pollce and Australla 1s New Reg ~o nal f ronUer" , The Pactttc Review t vol 22 1 pp 549-5 74. Harcourt B 20017 ~ Against Prediction: Proflllngj Policing and Pun,shlng Jn an Actuarial Age (U nlversfty of Ch lcago Press f Ch lea.go). Haxton N 2015, ·'Death of Queensland Boxer Braydon smnh Sparks CaJIs to Ban or Reg u~ate Sport", ABC News Online ~ 1 7 March 2015 at httpi/www.abc.net.au/news/2015-03- 17/amawants-box lng-to-be-banned-aner-death-of-b raydo n-smlth/632595£. 1

Hazlehurst KM 1987, Mlgra.tlonJ, Ethnicity and Crime ~'n Australian Soclety {Au straHan ~ nst lt ute of Crilmlnofogy, Canberra) at htt ps://afc .gov.au/publllcat lons/arch Ive/ mtg ration-ethnic lty-and-crlme-ln-austra~ lam-society. Henry N & Powe 11 A 2015, ' Beyond the ~sext' : Technotogy- FaclIlll:ated Sexual Vlolence and Harassment aga~rnst Adult Womenn, The Australian and New Zealand Jo.umaJ ot Crlmlnology, vol 4Si pp 1 04- 118. 1

Hiiiyard P & Tombs s 200 7~ "From 'Crime' to Soc~all 49~ pp 9-25.

Harm?~ f

Crime, Law & Social Change, voJ

Hu M 2017, ~ B~ometr~e Su rvelIlance and Btg Data Governanoe'f, In Gray D & Henderson SE (eds), The Cambridge .Handbook of St1rv:eillance Law (Gambrldge Un~versJty Press, Cambrfdge). Joseph s & McBeth A (eds) 201oi R.esearch Handbook on tntemat,onaJ Human Rights Law (Edward Efgar~ Cheltenham 1• UK). Kenny C 1945i ~Tlhe ltallan Tlheory of Crime~ Cesare Lombroso1' ~ in Radzlnov11lcz L & Turner JWC {eds) f The Modem Approach to CrJmlnal La111 (Department of cr~m Inal Sctence, Facu lty of Law, Un werslty of Cam brildge, Cam brldge}. 1

Knox M 2015J "Phll llp Hughes Death; One Year 0n, Ho\•.r Has Cricket Changed?", Sydney Morn,ng Herald, 21 November 2015 at http;//W\VW.smh .com .au/sport/cr~ckeVphllllp--hughes­ 1

death-one-year-on-how-has-cr~cket-changed-201 5'1 1 20-g~3yOa.html.

Lan ler M & Henry S 2001a, r' Introducttonu~ ~n Henry S & Lari ler MM (eds), What ls Crime? Controv.ersles over the Nature of crrme and What to Do about It {Rowman and Llttlefleld Pu b~~shera ~ Lan ham).

Chapter 1 What ~s crime and who Is the erlmlnal?

23

Lanier M & Henry S 2001 b, 1'Crlme In Context: Tlhe Scope of the Problemn ~ hi Henry S & Lan ler MM (eds), What Is Crime? Contro vers/es over the Naturce or Crtme and What to Dn about rt {Rowman and Uttlef leld Pu b~~shers ~ Lan ham). Lea J & Young J 1993, What Js to Be Done a.bout Law and Order? Crisis ln the Nineties (Pluto Press~ London). 1

Lee V & Hoaken PNS 2007 t ' Cognltlon~ Emotion and Neiurob~ofog[cal Deve~opment MedlaUng the RelaUon between M alltreatment and Ag g resslon", Ch/Id Maltreatmen tJ vol 12, pp 2S1-29S. Lyn ch M, Stretesky P & Long M 2015 t Defining Crlme: A CrlUque of the Concept and Its rmpllcatton {P.a~g rave Mac mllllan, Bas~ngstoke)1. 1

Makkal T & Tay~or N .2009, "~mmlgrants as Vlctlms o,f cr~me~ The Australlan Socfology of Crime, Law and Deviance, vo l 13~ pp 95- 105.

Expertence~ ,

Matthews RA & Kauz~arlch D 2007, r'Smte Crlmes and State Harms: A Ta~e of Two Deflnltlonal Frameworks'f, Crime, Law & Soc/al Change r vol 48, pp .43-55. 1

1

McCulloch J & Pickering s 2009 , ·1'Pre-Crlme and Crlml'noJogy r vol 49J pp 62B-S45.

Counter-Terror~sm ~ t

Brltfsh Journal of

McCulloch J & Wiison D 2015 , Pre- Crlme: Pre-Emp.tton~ .Precaution and the FLJture (RouUedge, London). 1

McGee TR, Wickes R ~ Corcoran J ~ Bor W & NaJman J 201 1 r,; Antllsoclal Behavlour: An Exam~natlon of l nd Wl dua~~ fam liy and Netghlb ourhood Factors"' ~ Trends and Issues In Crime and Criminal Justice r no 41 0 (AustralIan In sUtute ol Cr~m Ino logy, Canberra). j

Mlchalowskl RJ 2 01 6,

~'What

Is Crlme?", Critical Crfmlnologyj vol 24, pp 191-199 1

1 •

MltsUegas V 201 4, uFrom Overcr~m Ina~~satlon to Decrtmlnallsatlo n.: The Many Faces of Effectiveness ~ n European C rlmlnal Law" t New Journal of European Crlmfnal Law~ vol 5 t pp

416-424. Morley Kl & Hall WD 2003, ~ 1 s There a Genetic Susoept lbmity to Enga.g e In Crlmlnal Acts?" ~ Trends and Issues In Crime and Cn'mlnal Justice, no 263 (AustralIan lnstltUte of Crim InoJogy Canberra). 1

Neave M, Fau~ kner P & Nlcho~son T 2016, Royal Commlss.Jon Into Family Violence: Summary and Recommenda'flons (Government Prlnter, Victoria) vols 1-7 at http://WNW. rcfv~ com. au/ Report- Recommendat lons. 1

Office of the United Nations Hlgh Commlssfoner tor Human Rlghts 201 O, The Rights. of Non-Citizens {United N atllons, New· York) at http:/Jwwv~. ohch r.o rg/Documents/Publ lcatllons/ non citizen sen. pdf. Pick D 1989 , .Faces of Degeneration: A European Dlsorde1; c 1.8'48- c 191 B {Cambridge Un lversny Press, Cam br1ldge}. 1

Plckerlng

s 2005 ~ Re.flJgees & State Crime (Federat Ion Press~

Sydney).

Pow,eH A & Henry N 2017 , Sexual Violence In a DlgJtal Age (Pa.lg rave Macrnlllan f London}. Radzlnowlcz L & Turner JWC 1945t '7he Meaning and Scope of CrilrnlnaJI Sclenceni In Radzlnowlez L & Turner JWC {eds}~ The Modem Approach to Crlmlnal Law (Department ol Crlm~nal Science, Fa.cu lty of La.vii unJverslty of Cambrtdge t Cambridge). Richards K. 2O1 0 , ~' Polloe-Ref erred Restorative Justice for J uvenlles In Australla", Trends and Issues In Cn'me and Crlmlnal Justice, no 39S r(Austral~an Institute of Crlmlno logy~ Canberra}. Richards K. 2o1 1, ~'What Makes J UJven Ile Offend era Dlrtterent from Ad uIt attenders? " t Trends and /S-osues In Crime and Criminal Just/iee , no 409 (Austral~an Institute of Crlmlno1ogyi Canberra).

Crlme and J ustlce: .A. Gu~de to Crlmlno logy

24.

Robertson G 2002j Crimes against Humantty: The Struggle for Global JusfJce (Penguin Books, London). Romngs K & Tay~or N 200B, ·" Measurin g Po11ce Perfonmance ~n Domestlc and Famlly v 1oienc e1' Tr.ends and Issues In CrJme and CrlmlnaJ Justice t no· 36 7 j

(Australl~an

Instlltute of

Crlmlnology, Canlb erra). Rose N 201 o, ~~ screen and Intervene' : Governing Risky Brains" , H,story of the Human Sciences,

vo~

2 3, pp 79-1 05.

Scotts & R.o blnson N 2016, "' Lead~ng Australlan Doctor Challenges Malcolm Turnbull, Bm Shorten over ~Tortu re-Llke Co ndnlons! at Det ention Centresl'J t AB C News 10 nl/ne, 26 January 1

1

2016 at https:/ /wwv.r.abc. net.au/nev1s12016-01-.2 6/doctor-challenges-pm-over- lnimfg ratlonidetentllon-centres/711 39,6 6. Cou nc~~ of Vlcto rla 201 5~ Baseline Median: Culpable Driving causing Dea.th~ 2009-1 O to 2013- 14 at https.://\!VV~w.senten c~ng cou ncH.v lc. g ov.au/sltes/def au llt/fHes/ 20'19-091 Sentenc~ng

Snapshot_1 73__.:G u Ipa.ble _Drlv lng_ May·_2O15. pdf. Seo SA.20·19 ~ PollcJng fhe Open Road: How Cars Transformed American Freedom (Harvard Un lverslty Press, Cam b~ldge} . Shaw

c 1930, 1966, The Jack-Roller: A Delinquent Boy ~ Own Story (Unlverstty of Chicago

Press~

Ch Ica.go).

Smith M, Mann M & Urbas G 201 S, Blomefrlcs1 Crime and Security (Routledg e/G~asshouse, London). Sutherland

EH 194.0 t 'Whlt e Co~~ar C rlm lnallty" ~American Soclologfical Review, vol 5, pp 1- 12 .

Tappan PW 1B47 i ''Who Is tlhe Crlm Inal? "i American Soclologlcal Review, vo~ 12i pp 96-102. T~m

LL 2 O02 , ~'Crime and Peace : A. Wallk v.rlth Ric hard Quin neyl'J, Crime & Delinquency, vo1 4S ~

pp 243- 262. Un lt ed Nations 2005i Jn Larger Freedom: To111ards Development, Security and Human Rights

for All (New York) at https.://undocs.org/N59/2005. Unit ed Nations General Assembly 2017,, Report of the Specla·JRapporteur on the Rights or

Indigenous Peoples on Her Vis.If to Australia (New York} at a/h rc/ 316/46/add .2.

https.://undocs.org/pdf?symbo~=enl

V ictor fan Human Rlghts and Equal Opportu nlty Commlsslo n 200S , Rights of Passage: The Experiences of Australian-Sudanese Young People (Melbourne).. Volkmar FR (ed) 2019 , Autism· and Pervasive Developmenfa.I DJsorders 1(3,rd ed , Cambridge Un lve~ty Pr ess, Gam b~ldge}. 1

Walker S 2005i Sense ,a nd Non-Sense about Crime and .Drugs (Thomson Wadsworthi

Belmont). WaHersteln I 2006i European UnfversaJlsm: The Rhetoric of Power (The New Press t

New York}. Warren I & Pa lmer D 20·10,. '~Crime Risks 1o f

Three- Dlmensfona~

Virtual

Bnv~ronments'' ,

Trends and Issues In Crime and CrlmlrraJ Justice , no 3BS (Aust ralIan In stltute o f Crim Ino logyi Canberra). Warren I & Palmer D 2015 1, Global Crlmlnology (Thomson Reuters/Law Book Company~ 1

Pymiont). Weber

~

Fl shwlck IE & Mar mo M (eds) 2016, The RoutleQge lntematlonaJ Handbook of

Criminology and Human Rights (Routledge, London).

Chapter 1 What ~s crime and who Is the erlml nal?

25

Wmls M 2011 ~ "Non-Dlsclosure ofJ Vfolence ~n AustralIan Indigenous Communltlesl'J t Ttends and Issues In Crime and cn·m-·na1 Justice , no 405 (AustralIan Institute of CrlmlnoJogyi Canberra). World Heallth Organlsatilon .2 01ot Preventing Intimate Partner and Sexual vtotence against Women: Taking Action and Generating Evidence (VVorld Health OrganlsaUon, Geneva) at htt1psi/wwv.r. wh10. Intlvlolence_ln Jury_preventlon/pu bncatlons/vlolence/97892415,640 07_en g. pdfJ?Ua=1. Wright KA. & Bouffard LA 2016, ~captulil ng Crilme: The Qualltatlve Ana'Ysls ofi ~ nd lvld ual Cases for Advancing Crim Inologlca.I Knowledge'', lntema11onal Journal of Offender Therapy and Comparative Criminology t vol 60, pp 123-145. 1

Wunderslltz J 2007 1 '' Cr~mlnal Justice Responses to DNg and Drugf-Related Offending~ Are They Wo rkllng? t Austral/an lnstrtu.te of Crlmlnolog~ Technical and Background Paper, no 25 (AustraHan Government and Australian ~ nstltute of Cnl m~no~ogy, Canberra) at https://a~c .gov. a.u/pu blIcaUonsltbp/tbp025. l'J

Zedner L 2007, "Pre-Crlme and Post-Crlm lno~ogyfJ, Theoretical Crlmlno·logy. vol 11, pp 281-291 . 1

ZImrlng FE 2017 When Pol/.c.e Kiii (Harvard Unlverslty Press, Cambridge).

FURTHER READING Anthony T & Cunneen C (eds) 2008j The Critical CrlmlnoJogy Companion (HawkJ1ns Sydney}.

Press~

Bosworth M & Hoyle C (eds) 2011 What Is Crlmlnology? (Oxfiord Un lverslty Press, Oxford). j

Mu ncle J 2001 , ~'The Construction and Deconstruction of Cr~me'r ! In Munc~e J & Mclaug hlln E (eds), me Problem of Crime {Sagej London). Warren I & Palmer D .2015 1, Global Crlmlnolo.g y (Thomson Reuters/law Book ,Company~ Pyrmont). 1

Weber ~ Flshwlck E & Marmo M (eds} 2016, The Routledge lntemafJonal Handbook of Criminology and Human Rlghts (Routledge, London).

er 2

The distribution of crime over populations, spa,ce and time Frank Morgan University of Western Australia

Josep h Clare 1

1

University of Western Australia

[2 .1 O]

I NlRODUCTION .. .. . .. .. . .. .. . .. .... . .. .. . .. .. .. ... .. ... .. ... .. ... .. .. . .. .... . .. .. . .. .. . .. .. .. . .. .. . .. .. .. . .. .. . .. .. ... .. ... 27

Origins and current silatus of official statistics in Australia afld internationally........... ................................................................................ Police recorded crimie statistics and their interpretation. ................................ Criticisms of official crime statistics and responses to them.... ...................... Other sou roes of informeti on eb:out crime . .. .... . .. .. . .. .. . .. .. .. . .. .. . .... .. . .. .. ... .. ... .. ... The non-random distribution of crime across space and time .......................

[2.20] [2.30] [2.40] [2.50] [2.120] [2 .170]

CONCLUSION.................................................................................................................

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Key words: classicism, positivis111, strain theory, conflict theory, LabeHing t11eory, left rea lisrn, feminist crimiI1ology, intersec tionality, c11lt11ral crimirlology

INTRODUCTION [4.1 O] T.h e causes of offensive and ham1ft.tl behaviou.r, and the fon11lilation of effecti\re \vays to prevent it, have been topics of endttring c011cern for h11nran beit1gs since ' ve have lived in orga11ised societies. Why do people act irt \vays that h11rt or offend otl1ers? How and ·w hy do pea.p ie decide tl1at some behaviours are acceptable, ru1d others n.o t? Perhaps most itnportantly, wl1at are the itnp.lications of variotts responses to tb.ese kinds of behaviours? Tl1ese key ql1esti01lS preoccttpy crin1inologists ai1,d have a In)rriad of possible answe.r s, each underscored by a basic philosophy of.hu1nan bel1aviours t11at it1 tur11 are influenced by a 'vide range of individual, social and political factors. Expla11ations, or tl1eories, of critne are formed ·Vr.rithit1 quite differe11t, ru1d at times, contradictory perspectives 011 \.vhy individ11als, groups, cor.p orations, ins ti tlt tio.n s or the state ina y e11gage in critni11al heh.a viot1r. Most tl1eories dra·w on a combit1atio11 of disci.pli11es, i11cluding n1edicine, psychology, sociology, la\·v, politics, history and econ.o mics h1 their explanations of cri1ne. Importantly, each also emerges .frotn its particular time and social context (Wl1ite, Haines & Asqt1ith 2002). Tl1is h el.p s e:xplait1 why criminology, as a discipline, is s uch a " broad churcl1'', 'livhere tl1ere is ' lirtually no universal

82

Crlme and J ustlce: .A. Gu~de to Crlmlno logy

agree1nent abo·u t the key drivers of critninal bel1aviour. This chapter is desig11ed to .p rovide a brief il1trodl1ctio11 to the more pron1i11e11t of tl1e major perspecti\res developed to 11elp explain crime. It addresses theoretical pers.p ectives il1 crimit1ology f.roin their early folllldations to tl1e second decade of the 21st cenh1ry. It details t11e development of crimll1ological thinkit1g and is intended to support critical thin.ki11g ab,o ut criminal justice policy and practice. Cri1nit1ologists' work l1as developed. significantly sit1ce fotu1di11g tl1eorists first published tl1eir tholtghts a11d ideas about crime and ho\v to co11trol it. But before more 1noder11 criminological ql1estio11S sucll as how to prevent crime (lli1owever it mailifests) could be exammed, a core set of understa11dit1gs or beliefs aboltt the t'lature of cri11le a1ld "the crin1.inal" had to be establisl1ed. Tl1e origit1 of criminology is traced back to several key t11inkers from tl1e E1ilighten1ne11.t era who questioned the statLts quo ati.,d theorised about the best ways to govern people an.d their apparently unruly desires. Tl1ese E1ilightenme11.t philosophers focttsed tli.eir atte1ltion 011. ma11y aspects of ht1man behaviour and social life. Their work bega11 the sea1la.r analysis of crline that continues today. Earlier 11nderstandings were in1bued witl1 the mystica], the supernatural and the religiotis. For rnstance, early Christian societies savv crime as a manifestation.of evil, a product of the fla\ved nature of l1uman.k ind. Tllis \Vas 1i.ot a state of being specific to some, but a 1natter of temptatio11 and faith experienced by all. Historically, crime has bee11 broadly defined and harshly plmished \Vitl1 corporea] (or bodily) punishments co1nmon. But froin tl1e lmd-l8tl1 century onwards, classical ar1d positivist thinkers began to reaso11 a'b out the proble1n of deviance fro1n more eartl1ly perspectives" Tlleories inspired by t11ese pe.rspectives form the focus of this chapter, which provides insigl1t il1to understa11di11gs of it1 Westen1 cultures. Readers n1ay note the telling absence of \Vo1nen an1ong the early lun1inaries of cri1nino1ogy in tllis account. This is partly tl1e result of fewer \Vome11 beit1g present it1 acaden1ia in 't he f')ast btit also related to the pro1ni11e11ce of 1ne11 as offenders i11 many categories of crime. Female deviance \Vas poorly u11derstood, difficult to theorise (in the absence of any ltsefttl data) and appears to have bee11 of little n1terest to early crunit1ologists. However~ this situation is 11.0\.'\7 beit1g .r igllted with. a growing diversity of perspectives ob,s ervable in the acade1nic hal]s., T11e role of gender in explain.it1g crime l1as now fom1d promine11ce witl-ili1 the discipline, a111d fe1nale deviance has bee11 more tl10.roughly theorised as this cJ1apter vvill discuss. 1

Tllis chapter presents the f11ndan1e11tals of critninoiogj.cal theories ii1 a l1roadly chro11ological fashion., outlining how thinking abo11t the subject of crime has 11nfolded over ti1ne. It high1igl1ts importa11t philosophical ,d ivergences and their infl11ence on various t1ndersta11,d ings crime and how best to ad,d ress it. In reality, of cottrse, scholars ofte11 V1lorked c011temporru1eously, and theoretica] app,roaches ha\re frequently "cross-germinated 111aking any precise cl1ronol.ogy in1possible. 1

1

11

Chapter 4 Explanations of c~lme

83

Explaining crime: Some fundamental ,d ebates [4.20] Explaining d evian.c y vviU always rest 011 core philoso.p hical beliefs about the key drivers of l1uman behaviour ~vvhich te11d to centre on five perenn.ial d ebates: • free will. or d eterminism? • natltre or nurtture? • nortnal or pat11ological? • drivit1g or restraining forces? • perso11 or si ttta tion?

All tl1eories of bel1aviour 1n ake basic asst1mptio11 about tl1ese factors. Debate about them was p ro11otu1ced during tl1e foundit1g years of n1odern crimit1ology, d uring a period termed the Enligl1te1unent. Thi:ee figures aie pronu11e11t it1 n1ost acco1mts of th e origins of crimitlology; Cesare Beccaria (1738-1794), Jere1ny Bentl1am (1748-1832) a11d Cesare Lom broso (1835~ 1909) (Carrabi11e e t al 2014). Crimino1ogy.fs tv1,ro major tl1.eoretical bra11cl1es can be traced back to their work . Beccaria and BenthanY's pl1ilosophical arg11ments generated an influential sch.c ol of thought novv referred to as classicism vvhile Loinbroso's vvork spurred a httge body of cri11ill1ological researc~1 that took a scientific or etnpirical a.p proach ki1ow11 as positivisrn. It is t1seftd to note tl1at history has a habit of l1ighlighting U1e acl1ieve1ne11ts of some wl1ile ignoring others,. and tl1ere are d oubtless 1n any others wl10 also contrib,uted to early t1nd ersta11diI1gs of crime and its co11tr,o l. Fo.r our p11rposes tl1oug11, it is most important to understa11d tJ1e basic tenets of these hvo fou1i:datio11al sch.o ols frotn \vlucl1 tl1e disciplit1e d eveloped. 111ese are explained in [4.30] ru1d [4.40J.

Classicism [4.30] T11e classical scl1ool of criminology sees critn e as a fl1nctio11 of free will,. dep ende11t 011 an it1div idual s ra tio11al p urs11i t of p leasure a11d a voidru1ce of pait1, so1neti1nes tern1ed the Hpleastire pait1 princi.p le''. It rep,resented a divergei1ce from .p revious spiritual conce.p tions of cri1ni11ality a11d argued H1at la\v mu.st be proport~onate at1d predictable rather than severe a11d arbitrary. Italian jurist Cesare Beccaria's \Vork in the n1id-1700s, a heavy infl11ence on the Englisl1 s,ocial refor111er Jeremy Benthan1,. drew particttlarly on. the political _p hilosophies of Tl1omas Hobbes (1588-1679) wl1ose fanlous work Leviat1u1n iI1troduced th e notion.of tl1e social c011tract Here, Hobbes had argued tl1at \\ritllout goven1n1ent and la\v to orga11ise society, people's lives would be alttl!ost w .h olly llllpleasru.1t. For tllis reaso11, by their citizensh ip, people et1tered u1to a11. unspok e11 coriitract w ith a sovereig11 polver in vvh icl1 certain .freedomtS are given up in retu.rn for protection agai11St violence and tl1e potentially brutisll nature of o ther citizet1S. This 1nutual exchange oonferred power and respo11sibility on tl1e state to b,o th p rotect at1d regulate its citizens. Beccaria built on this idea il1 the late 1760s in an influential essay On C-rirnes nnd Punislrment. H ere, l1e argued that state power must be limited by t11e exte11t to \vluch its exercise afforded the greatest happiI1ess to the J!

1

S4.

Crlme and J ustlce: .A. Gu~de to Crlmlno logy

greatest 11umber of people. Bentha1n later coi11ed the tern1 "utilitariarrism" to describe tl1is philosoph:y of law. Enlightet1.ffient theorists argued for tl1e in1portance of .r ationality in public policy especially wl1e11 respondit1g to critne. Tl1eir critiques occt1rred it1 the context of arbitrary· at1l.i ofte:n very bloodthirsty punish1ne11ts beit1g l.iealt o·u t by governing authorities, '\tvith capital pmlish1ne11t being relatively com111on for infractions t11at \vould .n ow be considered quite miI1or ( ewbltrn 2013: 3.5). Classical theorists criticised the status quo directly at1d were regarded as radical atld reformist it1 tl1eir time. TI1eir ideas took ti1ne to impact practices but once they took hold, llad a notable and lastitl.g influetl ce 011 crimil1al jtistice practices. Classical tenets directly itifluenced tl1e Napoleonic Code, wluch replaced traditional feudal law \Vith rationally informed legal prit1ci.p les that '"'ere accessibly articulated so as to be better 11nderstood by "",co1nmo11. .P eo.p le'' . This Code iI1 tt1r11 influ.e nced the developt1lent of legal systems across Europe and beyo11d. 1

1

Classical thinki11g re1naiI1s e\ride11t u1 western de1nocracies. It led to practices such as proportionate sentencing, still considered a cornerstone of due process ru1d also tl1e 11otio11 of deterrence, \vl1icl1 re1nait1s firmly at tl1e 11eart of n1a11y cri1ninal justice practices. The plillosopl1y that crime can be deterred tluough certait1ty of detection is reflected iI1inany111oder11. cri1ne preve11tio11 strategies. Tl1ese developrne11ts e1nbed t11e classical assumption that httn1ans are ratirnial ben1gs., capable of n1aking reaso11ed choices w·h o will maximise 'tl1eir pleasure and mi11i1nise t11eir pain. This 1neans well-publicised and predictable p111tisht11ents for certai11 acts ca11 be assutned to inflt1ence rational choices aboltt bel1aviour. 111 this view, l1arsh pet-ialties sl1ould deter people from com11l.ilting critnes such as mttrder'. Regarl.iing pl1nishmet1t, classical tl1eorists held that pe11alties could 01tly be effective insofar as they could be c01isidered proportio11.ate to t11e har1n cat1sed by the offence. Bet'lt11a1n can1paigt1.e d against the death peria]ty in particttlar because 11e considered it an ineffective deterre11t, ineq·u itable and also l1ecause it vvas irreversible should a n1.istake or injustice occur (Bedlatt 1983). The h1fluence of ra'ti011al cl1oice as a key driver of crime is still e\ri,de.t1t it1 tnodern neoclassical tl1eories of crime sucl1 as co11trol theories (explaiI1ed furtl1er it1 [4.110]), which point to lo\-v self-co11trol and poor cl1oices 011 tl1e part of t11e individual as a key driver of crinlinality (Ackers 1991; Tibbets & Gibson 2002). 1

1

Positivism [4.40] T11e second key historical brancl1 of crin1i11ological tl1eory is positivism" This "school" takes its name from the term coined by Attguste Co1nte (1798-1857) to describe a f-"laradig1n that takes a rational, scientific approach. to urltderstandn1g tl1e world, challe11ging prior, more s piritt1al interpretations of llmna11 behavio11r. He saw H1is sli.ift in th.itikingasa positive stage in t11e developn1ent of ktlowledge and inst--.,ired scores of ea.rly scie11tists to begi11 the enormous task of unde rstandit1g hu.ma11 s ociety, behavio·u r' at"l!d i11teraction through this "'' positivist" len s: a co.n tit1uing traditio11 tl1at ol»serves and measures society according to scientific tnetllods. Positivism,

Chapter 4 Explanations of c~lme

85

as a general approach, has flot1risl1ed anrd still donill1ates many strau1s of crim.it1ological tl1eory. First biological, tl1e11 sociological positivisn1 emer ged, with psychological theories based .it1 Hlis tradition. also rising .it1 promi11ence in t11e t11eoretical vi.rorld of crimu1ology. All these ''scientific'' approaches sit ttn d er the broad umbrella of positivism, b ut each has .P r,o vided a d iffere11t em.p hasis and focus i11 attempting to explain crime. Biological positivism

[4.50] Cesare Lo1nbroso founded the scientific analysis of crm1e, ru1d like tl1e early classicists, left a sigtuficant legacy 011 the stud y of cri1ne. His ,v·o rk, and 'tllat of others sucl1 as Fra112 Joseph Gall (1758-1828), brought a very differe:nt app roacl.1 to explait1.irtg criminali ty to that of the classicists. Gall bega11 tl1e new "''scie11ceu of phrenolo gy, w l1icl1 held that the contours of a person's hea{_i (particularly the p alpable iltmp s and blUl1ps on tl1e skitll) .reflected brain abnor111alities and cot1ld be used to id e11tify particular character traits, including disl1011esty and criminality. While Gall's work was enormously popular at the time, it mercifully left :n o lasting influence on mod ern crimit1ological theory. It did 11owever influe11ce Lombroso sigt1ificantly, as did tl1e vvork of Cl1arles Danvit1. (1809-1882) a11d l1is th eory of evolutio11. 1

lombroso, a inedical doctor and eventually a professor at the Urnversity of Turit1, began llis -Yvork with a sciei1tific con1Lparison of t11e p hysical traits of Italia11 priso11e.rs a11d soldiers. H e accessed research subjects tl1ro·u gl1 l1is early work in the arn1y and 11ospita1s for the insane (Bro·w n, Esbensen & Geis 2015). He went on to examine cadavers of executed criminals (Siegel 2016). Based on. n1arked pl1ysical features fotu1,d it1 his subjects, Lo1nbroso argtted tl1at criminals "\.Yere atavistic or biological thro\vbacks. H e s11ggested that crin1e Vlas not a result of poor cl1oices, but ai1 irulate instit1ct of under-evolved hun1a11s. l.01nbroso's work d iscussed the range of features tha t distit1gt1isl1ed "the criminal" fron1 olJ1e.rs. For exa111p le, l1aving at1 overly large or small skuill or ears, a11 asy1n1netrical face, thin or flesl1y lips or tattoos all signified a pote11tiai cri1ninal. Lombroso also wrote about female crimit1als, seeing them. as eve11 less evol\red tl1an their male counterparts (Brow11, Esbensen & Geis 2015). 1

Of cot1rse, there "\Vere seriotts 1net11,o dologica1 flaws in Lombroso's "''scie11tific" approach, especially beca11se his sample ·w as neither rai1domnor represe11tative. He also took a very linear view of .\\,.hat types of behaviour cotistiruted crime (as Chapter 1 explan1s, this is quite problematic fron1 a11i:odem crln1inologicai perspective). In contemporary crimit1ology1 Lombroso's "crimit1al at1thropologyu is dismissed as racist, sexist and misinformed but it is in1portant to recognise H1e legacy of his "scientificn approach it1 1nodem responses to criminality. Some researcl1ers co11tin11e to searcl1 for physical aspects of a person t11at cat1 be show11 to contribute to criminal behaviour (Anders011 2007; Ellis 2005). The search fo.r the "crim.it1al gei1e" persists. Other areas urrrei1tly being researched n1clude bran1cl1e1nistry, 11or1nones, chro1n .o somal abnormalities as weU as the effect of diet and acqtlired b.rait1 injtuy. The ¥vork of early biological positiv is ts i11spired by scie11ce brougl1t a funda1n ental theoretical split it1 atte1n pts to explain d eviant bel1av1ours

Crlme and J ustlce: .A. Gu~de to Crlmlno logy

B6

and identify l1ow best to respond to them. For exa1nple, if cri1ninality is detenn.ined by biological f}a,.vs, a11d is an i1i.11erited or other\vise biological trait_, tl1em1 the m1plicatio11s for preventing crime are sig~1ifica11t a11d carry profotmd ethical co11siderations. Biological positivism foc11ses critnu1ological effort o.n treating flawed it1divit.i11als through medicine a11d science .rather than. trying to itifluence vario11s co11ceptio11s of, or' policy responses to_, crime. In direct opposition to classical theory, Lombroso felt H1at the best tl1ing to ,d o about the crilne .r roblem vvas to ide11tify potential crim.itials and try to treat t11em son1eho\.v. From this poin.t of vie\v, no ineasure of pt_mishn1ent \.ti.7 ould deter a crimi11al actor. Instead_, they n11tst be treated and cured or failing that, banisl1ed or eradicated. lt1 this view_, criminality becotnes son1et11it1g tl1-at couJd be ''bred out'' (see Dialogue box 4.1).

DIALOGUE BOX 4.1 [4.60]

~'A

Register of Fitter Families and Better 8abiesH - Headline from The Milwaukee Sentinel, 1929

In 192.0s America~ the state of Kansas established a Social Register of "fitter families int,ended to help ensure that only people with ~'good genesu reproduced. Acoording to a newspaper of the tim e, the register was intend ed to be: 1

1 '

1

1

1

1

1

the beginning, on a small and voJuntary scale1 of what Js hoped some day wlll become a naUonal and compu ~sory reglstraUon of every ~nhabltant of the country. When th is h as been donef there w111 no longer be any excuse for respectable parents to wr~ng their hands ~n despaJlr and wonder why some or all of their chlldren have turned out to be no good. They wlll be warned before marrilage that such wm pmbab ly be their fate and be noUfled that they have no right to add to the feeble-mlnded 1 vicious or lazy population of a world that may perhaps even forbid them (The MI lwaukee SenUnel1 May 261 192 9). 1

This policy was based on ",eugenics", named by its founder Francis GaJton (1822-191 1) who was actually a cousin of Charl,es Darwin's. Eugenics found widespread support in mainstream academia, particularly in the United States, so that by the late 1920s it was included in the curriculum of over 370 university courses. In the Un ned States. eugenics was popularised at ~ocal agricultural fair.s where such things as Fitter Families oomests where applicant fami lies, deemed by a range of medical practitioners as "fittesr' biologically and psychologically, were awarded prizes. Human br,eeding was equat,ed with that of farm animals since it was widely understood that breeding from the best stock made for higher quality beasts. In this context, applying the sam,e ideas to human beings appear,ed quite logical. Thus, The Milwaukee Sentinel reports: 1

It Is the cardIn aJ p~nc Ipie of democracy that a.II men are created free and equal!. Evesyone admits that they ought to be and everyone can see that they are not. Some aire bom stunted, stupid, SJJckly and doomed to ~we at the expense of others

Chapter 4 ExpJanatJon s of c~me

through crime or charlty. Eugenrcs clalms for every human baby the rrgtit to be as \Vell-born as a pig or chicken and the only way for a. ch iId to be well-born Is to have pa.rents who themselves \Vere \Vel I-born. Kan sasi berng an a.g rlcu ltural state v.rtiere a pig of poor stock ~s a disgrace to a farm , recogn ized the justloe of this claim earller than many other parts of the country (May 26th, 1929).

The development of the Social Register in Kansas. occurr,ed in an environment, where state-sanctioned steri~isation had been practiced after Indiana passed the world ls fi rst legis Iatio n ordering steri ~isation of "confirmed c ri mi na~s, idiots, i m beci~es and rapistsj~ in 1907. This law was not repealed until 1'974. The view that the practioe of eugenics po Iicy was unco nst itut io nal eventuaHy prevailed ~n Amedcan law, but the process was slow. In 1942, Just ice Wil~iam Douglas re cog n ~sed t he ~n equity of leg Es~at ing steri Iisation far petty thieves, wh ii e exc Iud in g embezzlers or other fraudsters from t he practice (Lorn bardo 2 008). This ruling foreshadowed ongo~ng criminolog~cal concerns about how crime is defined, who is cast as a crim~nal and for what kinds of acts. Meanwhile, Nazi Germany enthusiastica~~y embraced the principles of eugenics ~n its quest to establish t he Aryan race. The ultimate tmpact on people deemed t 0 be firom ~nferior ethniciU es. is well-documented. History has demonstrated the potentially sinister consequenoes. of bio~ogical positivism when taken to extremes. However, the legacy of t his kind of t hinking remains present in the continued search for genetic Iin ks to criminality and in endeavours to predict dangerousness (see Seldon 2005). 1

1

FIGURE 4.1

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I

Source: https :Jlwww.crlmestats.atc.gov.au/facts_figures/2_offeriders/133/.

[5.190] In .2016-2017, fe1nale and n1a1e jttveniles had the highest offending rates for theft and acts intended to cattse injury (AICI), altl1ottgl1 rates were lo\ver for fe1nales than males (see Dialogt1e box 5.5). Fen1ale yollllg offe11ders committed n1ore thefts than. a:n y other offe11ce at a rate of 632 per 100,000 population, while AICI ranked second in offences com.tnitted by yoltng fe1nales witl1 a rate of 267.5 .P er 100,000 population. Male yottng offenders also co1nmitted theft more than any other offence, though at a rate of 1011.4 per 100,000 popttlation (see Dialogue box 5.6). And vvhile AICI also ranked seco11d in offences co11l.mitted by yot_tng males, tl1e rate was l1igl1er tl1an that of fen1ales con1mitting tl1e offence, at a ra te of 482 per 100,000 population.

For yoltng females, public o.rder ru1d illicit drug offences ranked tlllid and fourtl1 offences committed respectively, w·ith rates for pt1blic orde.r offences at 131.l per 100,000 populatio11 an.d rates for illicit drug offences at 110.8 per 100,000 population. Yo11ng male offending rates for public order a11d illicit drug offences were ge11erally three tin1es tl1e female rate of offendi11g .f or 1

Ch apter 5 Youth and cr~me

123

'tll!ose offe11ces, though, f:o r .m:nales, illicit dr11g offences ra11ked tl1ird (witl1 a rate of 378 .p er 100,000 population) and pltblic order offences ra1i.ked fourth (witJ1 a rate 0f 318.6 per 100,000 population). n lawfu} entry with intent follo'Vled close behind the public order offe11ces committed by yow1g tnales with a rate of 314.5per100,000 pop1tlation, vi.rhile for young female offer1ders the rate for that offence vvas lower at 70.9 per 100,000 populatior1, altholtgh that offence also ranked fifth for females. 1

DIALOGUE BOX 5.5 [5.200] FIGURE 5.4 Young and adult female offenders and principal offence 2016-20 17 (rate per 100,000) 1

1

Homicide

-

-

Acts inrendedl to cauS:e in.itJry Sexual assaull Dan~ous/negJigent

-

-

-

ac:rs Abc:tuctionJharassmenl •

~ ._

8.. Q"J

~ o

1

Robl:!erylexlorticm UnlawmuJ en!ry wilh intent Thefr Fraurlfdecep.Uon

-

;;;i

-~

IDicit drug offences PrOhlbitedl'regutat.ed weapons

-

Propierty damage Public order offeAces

-

-

Misc:ellanecius offeAces -

Oflences a.gaiMI justice

. •

.::::J

-

-

0

e

100

200

300

Young ofleru:lers (10-17 years)

400

500

600

Adulf ottencrers (18 years and over)

Source: https :J/www.crlmestats.atc.gov.au/facts_flgures/2_offenders/821.

700

124

Crime and Justice~ A Gulde to Crlmlno~ogy

DIALOGUE BOX 5 .6

[5.210] FIGURE 5.5 Young and aduH male offenders and principal offence 2016-2017 (rate per 100,000) Hom.dde Acts in ended lo cause injury SeJrual assault

~

i

,.,,,

~

p

-= Dangerol.!IS/negligen• acts ~ Abduct:Jornnarassment ~ Robberyle1itort:lon UnlaYliu~ entty with in ent

-

-= Theft -

g)

&.

-

FraudldeceptJon I icit drug offence-s

-~

Property damage -

Pro bttedlregulated weapons

PtJblic order offences Offences agfill'lst jllSlice Mis.cellaneous olfence-s

-

-

-

--

_L_

0

100

-

I

I 200

300

500

4{10

600

700

BOO

QOO

1,000

1, 1...

Ra e per 100.000

e

Young offenders ( 10-17 years}

A.dull offel'lders (1e yeaJS and over)

Source: htt ps :Jlwww.crlmestats.atc.gov.au/facts _figu res/2_offenders/821.

Indigenous youth j ustice

[5.220] As witl1 the adt1lt Indige11ous popltlation,. there is overrepresentatio11 of I11digenous yorn1g people in the crin1inal justice system (see Ctn111ee:n 2006). [t has been suggested tl1at over-represe11tatio11 may be redu1ced by increased use of d iversionary processes tl1at ain1 to prevent yol111g people from e1Ttering or contit1uh--ig it1 the forn1al crin1inal justice syste111, including pre-court processes sttch as police cautioning and co1tlerencing (Allard et al .2010: 1). To Cunneetl (2008: 46), ditlere11.tia.1 policing oflndigen.o us you.n.g people, including that "Aboriginal youn,g people do not receive the benefit of a police caution to tl1e same exte11t as 11011-Aboriginal yol1th", is a key factor contributing to the over-representation of Indige11.o us yolmg people in j11verule detention facilities. Indeed, while youtl1. incarceration rates in Australia have generally remained steady, or ,d eclined across some jLtris dictions, CLtm1ee11 (2008) shovvs hov1l positive develop1n.e11ts i11 juvenile jttstice d.esigned to counteract traditiortal retrib11tive me tl1ods involvi11g punisl11nent - suc11 as ;'res torative jttsticen 1neasures aimed at repairi11g social 11ar1111 - have tended to bypass h1dige11ous yotu1g people. 1

1

1

Ch apter 5 Youth and cr~me

125

Lucy S11ov1lball (2008) has i11vestigated wh.ether there is disparity itl tl1e way diversio11 is used it1 relatio11 to Indigenous a11d n011-l.t1digenotts you11g offe11ders it1 ·. ew Soutll WalesF Soutl1 Australia and Western A.u.stralia, fit1ding Indige11ous yollllg people are less likely to be diverted. It is not surprising therefore that Indigenous you.m1g people are inore likely than non-Indige11ous young .People to have re~ontact vvitl1 tl1e syste1n (see Allard et al 2010: 2). A study by Allard et al (2010) explored tl1e disparity i11 the use of police diversion and considered whether tl1e i1npact of tl1at diversion on re-c,o ntact with tl1e system varies according to Indige11ous status. The study confirn1ed tll.at Indige11ous you11g people are over-represented in the cri1nit1al justice syste1n. Even. though two-thirds of h1digenous males a11d one-quarter of Indigenous females 11ad been in contact with the juvenile justice syste1n, tl1e proportio11 of non-Indigen.o us young people wl10 l1ad was a lot lower (Allard et al 2010: 4). Allar,d et al argtte t11ese .r esults suggest tl1e 11eed .f or early intervention programs as a sv1rift and economically effective m.e th.o d of preventil1g It1.dige11ous yottn.g people havi11g itritial contact with the system. Moreo,rer, they sho\'\T ho·w it1 sp ite of ilie fact that h1digei1ot1s yom1g people in tl1e ge11eral populatio11 are 4.5 times 111ore likely to 11ave co11tact ·\.vitJ1 tl1e crirn.itlal justice system tl1a11 1i:on-It1digenotts yomlg peopleF tl1ey are 2.9 times less likely to be cautio11ed than they are to appear in cottrt, two ti1nes less likely to have a police confere11ce tllatl appear in court, and 1.5 ti1nes less likely to be cautioned than atten.d a conference for their first contact lvitl1 t11e syste1n (Allard et al 2010). Allard et al argue these fitldings it1.d icate that for Indige11011s yotu1g people preve11ting initial contact is m.o re important for uclosmg the gap than addressing the iss11e of disparity in tl1e 11se of diversionary methods . The conclusions of Allard et al are confirn1ed by Richards (2010: 6) who fo11nd 11 I11digenous luverliles are not being diverted via restorative measures to the same extent as their no11-Indigenous counterparts-", which, she thought, migi1t be explained by redttced access in Indigenous conlmunities to restorati\re justice processes. 1

11

While tl1ere are many reasons for tl1e over-representation of Indige11ous yotulg .r eople in the criminal justice syste11lF Laura Brown (2012) argttes the attitudes of police a11d the it11.positio11 of bail conditions are two key factors. Dra\.ving on material froin New South Wales, she says the crin1it1al justice system it1 that stateF 11l1as acted as a de facto ·\rvelfare system for yotu1g people, imposmg multiple ru1d onerous bail co11ditio11S tl1at seek to resolve 11ousing and parenting issues tlrrough the use of ctirfe,vs and reqt1iren1ents to live at partictdar places'"' (Brow112012: '9). Alack of cultltral aware11ess on the f""lart of police and courts means Indige11ous yotu1g people are frequently· subject to bail conditions they fit1 d impossible to meet. AndF o.f course, breach of bail means the police with take the yolmg people it1 question into custody. Bro\.\Tn (2012: 9) provides wJ1at she regards a not tn1typical example of a 13-year-old Indigenou.s young 1n a11 vv-110 was subject to a p11blic distt1rbance charge witl1 a group of other Indige11ous yotm.g people1' some of whom were l1is cousins: 1

1

1

Crime and Just ice~ A Gulde to Crlmlno~ogy

126

he police decided to impose nL1merous conditions, includi n g that he reside ltvith his mother_, obey a curfew_. eop le. For example, young peop le are consiste11tly tn ore lik ely victitns of pll)'Sical assault than ad11lts (see Dialog11e box 5.8). Yrou.ng people are also 1nore lik ely to be v ictin"ts of sexual assault (see Dialogue box 5.9). ·w hile 1nales aged 0-9 years are m ore likely to be victims of sexual assault tl11Lan fe1n ales of that age group, that trei1d is reversed in. the age ra11ge 15-1'9, '"'ith.. females bei11g 1n ore likely victims of sexual assa1tlt. ltl the age grottp 10-14 years, botll fe1n ales and 1n ales have roughly tl1e same rate of victimisation a t 19.2cYo and 20.1o/o resp ectively.

Ch apter 5 Youth and cr~me

129

DIALOGUE BOX 5.8

[5.250] FIGURE 5.6 Victims of physical assault by age 2011-2012 to 2016-2017 (0/o) 1

2011-12

20112-13

2013-14

2014-15

2015-16

2016-17

Year

I• 15-24 o 25-34 •

35-44

o 45-54

• 55-64

o

6-5+

Source: htt ps :J/VNJw.crlmestats.atc .gov.au/facts _flgu res/1 _vlctlms/C2J.

I

Crime and Justice~ A Gulde to Crl mlno~ogy

130

DIALOGUE BOX 5.9 [5.260] FIGURE 5.7 Victims of sexual assault by age group and sex 2017 2017 55+

S5+

415-M

46-54

35--44

i

"tj

25-34

25-34 ~

20-24

20-24

Vorks. Slttherland \i\!as con.v inced that regtdators treat busit1ess offet1ders differe11tly. This stateme11t 11as some trtith, but it is 'b ased 011 a distributional (or possessive) vie\v of power. Here ir1dividuals or grotllf"lS that are a ble to get U1eir \vay have considerable po\ver whereas o thers possess little or 11.0 power. It may be better to take a relation-Ill vieliv. lhis view of p owe.r e1nphasises how irifluence is exerted tl1rou1gh it1terd epe11de11cies behveen individ11als, organisations and itlStitLttiotlS. Tl1e relational vie\v would argue that it is 1nisgtlided to see legal systems as basically fair, but able to be influenced atl!d distorted by some individuals an.d groups ·w l10 use power and resources to get special treahnent. Ratl1er, it suggests that tl1e factors that l1elp V•llhitecollar offe11ders gain. at1d entre11ch ec 0111omic .P ower are the very· sa1-ne that give tl1em power' it1 the legal system,, 1

1

For tl1is reason, calls to iI1crease prosecutions 1nay have a limited impact 011 corporate beha\7iour, and tl1ey may generate lobbying by co1npa11ies wanting at1 end to \vhat tl1ey see as over-regulatio11. 'W llile fe\-v people like corporate hartn, pul1lic attitudes are affected by tl1e roles that companies p lay il1 tl1e broader society.

200

Crime and

Just ice~

A Gulde to

Crl mlno~ogy

DIALOGUE BOX 8.8

Rana Plaza building collapse [8.150]

0n 24 April 2013, t he ei ght storey Rana Plaza building in Savar, Bangladesh ooHapsed, ki lling 1, 134 workers and injuring many more. The building was poorly constructed, a major probl em found in factories across the industrialising world. This building housed five garment factori,es t hat made ,g arments for well-known international fast fashi,o n brands including Pri mark, Zara, Benetton and Mango. Though not legally liable for t he harms of Rana Plaza's coUapse3 a global cam paign has resulted in a number of the brands implicated paying direct and ind irect oompensation3 with a us. $300 million ~und set up to provide ongoing support to victims (see http://www.ranaplazaarrangement.org/j. An agreement has aJso been signed between brands and t rade unions, known as t he Accord on Fire and Build ing Safety in Bangladesh, designed to improve conditions in the facto des (see http://bang1ladeshaccord. org/). In Bangladesh, 41 individuals were charged with murder in December 2015, including the b uilding js owner Sohel Rana, who is currently incarcerated ,on separate c harrg es of i Ilegal earni ngs. The case has yet to come to t rial. 1

1

1

1

RESPONDING TO WHITE-COLLAR CRIME [8.160] Some criminologists argue that p rosecufu1g white-collar offenders, particularly high-p laced sei1.i.or ma11agers a11d di rectors, is Hkely to have a salutary effect Put simply, indivi,d uals of higl1er wealth ai1d stants have a lot to lose and are more likely to be deterred by tl1e threat of a criminal sanction than are street offenders (Friedrichs 2010; H opki11s 1995; Pearce & Ton:lbs 1990). There is some evid ence for tlris (Si111p so11 2013). Further, the crit1li.t1al lav1l can be imf"lOrta11t symbolically - it sends a n1essage that all, regardless of wealt11, are subject to the sam e s ta11dard s it1

la'"'·

·s ut there are significa11t chal let1ges. The track record of tl1e criminal law

in co11trolling crin1e (whetller vvhite-collar or other,vise) is not impressive (Laufer 2006). Mour1tit1g crilninal prosecutions in w lu te-collar cases is expensive, stretchit1g the limited b 11d gets of regtdatory authorities. If prosecutions do go forward, they are more likely to be of sn1a1Jer firms or weaker, less compete11t actors. Targetll:1g corporate managers for prosecution. n1ay simply allow a companj' to scaf"legoat an individt1al for a systetn-lvide problem. Gover1m1ents today are ofte11 as concerned ·\ivitl1 maintaining the conditions for business invesbnent as they are \\ritll preventing ivh.ite-collar crime. Tl1ey are unlikely to e11dorse sustained prosecution of 11igh-profile com.pa11ies because of its chilling effect on it1veshnei1t. 1

Crim.inalisa tion alo11e will 11ot solve th e problern of w lute-collar crime. Regulatory initiatives are also importai1t it1 reducit1g corporate harms ru1d opportunities for powerfttl indiv·iduals to abuse their positiotlS. These it1clude civil .r ei1alties ai1d it1jtu1ctions, iI1 wluch co11rts req1tire companies to behave in a certain 'iVay

Chapter B Whllte-coHar and corporate cr~me

201

or rd esist .&om beha,ring lll a. certait1 way, and publicity n1easures, in vvhich con1pa:nies are required to disclose illegal or 1mdesirable behaviottr. l.t1 som e cases, regulators can denlat1d th at individu als or bttsinesses are licensed before they are allo\ved to .n m a I-Ugh-risk busit1ess (financial advisors 111ust be licet1Sed , for example, and so must some hazardotts cl1e1nical plants ai1d oil refineries, businesses tl1a t ca11 kill many people or \-vhlch l tse chemicals tl1a t are highly toxic to tl1e ei1vironment). Losing such a licence is a form of '~capital pwlislun ent'' on a business tl1at can p revent an it1di,rid ,u al or con1par1y contintll.ng their operations. hlfonnal social pressures,.such as ~hose placed ttpon the bran.d s linked to Rana Plaza (see Dialogtte box 8.8) can. also ser ve to effectively influet1ce buts messes to engage in. stronger self-regttlation. The tenn corporate social responsibility relates to a form o.f self-regulation engaged ill by businesses it1 order to 11ueet external expectations for socially consciotts behaviour. Den1at1d fr01n pttblic activist g~oups is t11erefore valuable for l1oldiI1g aorporatio11S acao1mtable a1td encouraging socially respo11sible b ehaviottr beyond regtdatory demands. John Braithvvaite {1993) argues .for 11sin.g itlfor1nal and formal approaches, including bot11 civil and. criininal p enalties, to curb white-colla.r crime (see Figttre 8.2). Regulators should begi11 with p ersuasion (at tl1e base of the pyra111id) and 011.ly escalate to more p unitive, intrusive n1ea.s11res vvhen pe.rsua.sio1l. and civil reo1edies fail. He argttes that strategies of pers11asio11 build trust bet"\veen the regulator and regulated V1lhicl1, in h.urt, enge11ders co1npliance. Resorting premah.rrely to a heavy-l1anded approacl1 vvill a]ienate companies and lead to no11-cooperation and non-compliance., As Fig11re 8.2 ilh.1strates, regulators vvill conce11trate a t the bottotn of the pyrrunid. Only in case o.f a11 inadequate respo1TuSe will regulators escalate to the l1ext level. T11e a.mou11t of space a t eacl1 level of the pyrantld represe11ts tl1e pro.p o.rtio11 of enforce1nen t activity at tl1a t level (Braith\vaite 1993: 87). FIGURE

8~ 2

e,r aithwaite"s (1993) enfor-cement pyramid 1

·C tiimlrnal penalty.

,c lvlI penalty

WarnJng letter

Persuasion

202

Crime and

Justice~

A Gulde to

Crlmlno~ogy

No11etheless, tryit1g to use lav1rs atld regu1atio11s to extinguisl1 .ha.rtnfu1 business activity that is e1nbedded i11 economic ru1d legal i11stit11tions can. be like tryin.g to drow11 a fish in water. Business is perfectly ade.p t at tltrning r1tles to its ow11 advat1tage. Ft_trther, Braitl1"\i\taite s asstu1lptio111 that most bltsinesses are vi.lell-intended can be viewed vvith scepticisn1. Tl1ere is plei1ty of evi,d en.c e tl-iat many businesses are far fro1n virtuous. Capitalis111 thrives precisely because it is based. on self-interested be.h aviour. Thtts, it 1nay be better to analyse bttsi11esses capacities to act lawfuHy (or not) in ligl1t of specific industry or econo1nic contexts. A b11siness will comply with, a11d son1etitnes even surpass, reg11latory requirements wl1en the broader eco11.o mic and regulatory context gt1ara11tees t11at it w ill su.cceed U1.rol1gh exen1plary be.h aviour rat11er Ulan. by ct1tting cor11ers. Ho\vever, mobilising Utls bttsim1ess logic requires activist regulators. Governments may 11eed to interve11e directly or i.t1directly in the co1nn1ercial en\rirotlillent (eg_, by excludit1g certain types of con1petitors from nlarkets or allowit1g accredited professionals to monopolise so1ne activities) to a mucl1 greater extent than ct1rrer1t econo1nic policies allovv·, if tJ1ey are to provide the 1notiv·ation for companies to redt1ce t11eir pollution, take care of their \'\1orkers alld act '\ivith fina11cial integrity. 1

1

CONCLUSION [8.170] Sutl1erland v,.7 as the first perso11 to dra'"' criminology's atte11tio11 to abui.ses of .PO"\i\!er by con1panies and respectable people, ru1d to tlame them vvhite-collar crimes. He invited crimit1ologists to describe and explain the ille,g alities of businesspeople and corporatio1151 not just poor and disadvantaged il1dividl1als. W11ite-collar crime is 110\v a standard 't erm in cri1ni1lology and popttlar cttlture, but it remains ru1 elusive a11d evocative concept, not easily def.it1ed. Such anlbiguity is inevitable: n"lakmg a clear dis tine tio11 betw·e en practices tl1a t are crimi.11a l a11d 11on-crimit1al is not possible. Harms perpetrated by bt1sinesses and busit1esspeople are interhvit1ed witl1, and e1nbedded it1, tl1e broader eco11omic and .r olitical syste1n in two ·v,.7 ays. First, powerful co1npanies and individuals influe11ce lav1r a11d resist accoWltability by ensurit1g regulation is framed it1 ways tl1at n1ake their ha.rrnful behaviours accepted atl!d normal. Secotl!d, \Vh.ite-collar offe11ders can so embed harmfu.l activity m .mainstream legal atl!d eco1101nic systems t11at elimi11allilg such co11du1c t wot_tld .i n1pose too great a b11rden. 011 the entire business sector. The key to tulderstan,d ing white-collar crime is to develop or build on theories that ex.p lain the political, economic ai1d social en.v ironments .it1 w hicl1 it flot1risl1es. 1

1

1

To reduce white-collar crime, regulators must apply a ra11ge of respotl.Ses tllat inclttde, but are not lli11ited to, prosecution. t_n1der critninal law. Contrary to popt_tlar sentime11t, these liarrns cannot be eliminated si1nply by ~gettmg tottgh 011 pol·ver.fttl cri1ni11als'' . Nor can th.e y be reduced solely by h.n provmg regulatory approaches. Research a11.d policies that focus entirely 011 these aspects ignore ai1other arena requiring chatlge: tl1e strttct11re and values of U1e b11siness and political envirotm1ent. 1

Chapter B Whllte-coHar and corporate cr~me

203

QUESTIONS 1. Ho\v does Suth.e.rland"s idea of \Vl1ite-collar crime change crimll1ology? Wl1at conunon. conceptions of crin1e and what critni11ological theories are cl1alle11ged by tile concept of white-collar crime? 2. Compare and co.n t.rast the sociological an.cl the typological approach to u11dersta11ding and analysing white-collar crime. Wl1at are the strengths and lin1its of each approacl1.?

3. mt see1ns 01uy fair that white-collar cri1nu1als slli1otllld be stllbject to tl1e full force of the crimir~al law if tl1ey commit crimes. Wl1at are the advantages and disadva11tages of 1-tsing the criminal la\v to co11rrol wlute-collar offe11du1g?

4. How is white-collar crime e1nbedded it1 norn1al b11sit1ess activitv? What are the implications of this e1nbed,d edness fo.r the control of \-'\l li.ite-collar crime? .J.

5. Look Ltp "Ponzi" 011 the IJ1ten1et. Find out wl1at tl1is scheme e11tai1s. How does it illustrate tl1e possibilities of the corpo.ra·t ion as a 'Jc.rune machine''? 6. According to Ada1n Smith.'s fa1nous dictum on capitalism, "It is 11ot fron1 the benevolence of the butcl1er, the brevi.ler or tl1e baker t11at we expect our dinner}' but fron1 their regard to their own interest. We a d dress ourselves, not to t11eir hu.n1arrity bu.t to U1eir self-love, and never talk to them of our O\Vn necessities but of their a dvan.tages_,, (Y\lealth of- Nations [1776] 1982: 119). Wl1at are tile implications for white-colla.r critne of an eco11omic system so deeply depe11de11t on indivi,d ual self-it1terest? 1

7. Ber11ard Madoff ·w as se11te11ced to 150 yea.rs ir1 Jail. Wl1at do you think explains tl1is long se11t~1ce a se11tence he cannot possibly complete? ·o ·o es it indicate that society is gettu1g to11gl1er 011 white-collar crime? Ho\v n1igl1t l1e be co11sidered a 11 scapegoat" for the broader econo111ic systen1? 8. White-collar crime is now global not local. In what ways are the cattses of \vhlte-collar crime found h1 tl1e it1ternational co11text? Wl1at are the itnplications of tliis for tl1e co11trol of white-collar crime?

REFERENCES Aubert V 1952, ~'Wh lte-ColIar Cr1me and Soc lal StNcture'f:1 American Journal of Soc/ology:i vol 58:1 no 3, pp 263-271. 1

BralthwaJlte J 1993,

'~Responsive

Bus!lness Reg ulatory lnstrrtutlonsl'J, In Coady CAJ & Samptord

CJG (eds), Business, Ethics and the Law {federatl1on Press:! Sydney). Clln ard M & Qu~n ney R 197 3:1 ",C orporate G rlmlnal Behavlour" i ln c~~nard M & Qu ~nney R (eds):i Criminal Behaviour Systems: A Typology (2nd ed:i Holt Reinhart & Wlnton, New· York). Cllnard M & Yeager P 19\80:1 Corporate Crime (Free Press, New York} . 1

Dukes G:i Braithwaite J & Mall oney JP, PhannaceuUcaJs, Corporate Crime and Public Health' (Edward Efgar~ Cheltenham).

Crime and Justice~ A Gu lde to Crlmlnology

204 Eren

c F' 2017, Bernie Madoff and the Crls,s.~ The Public Trial of Caplta.Usm (Stanford U n~verslty

Press~

Stantord}.

Frledrtch s D 2010, Ttusted Criminals: White Collar Crlme In Contemporary Society (4th ed ~ Cengage Wadsworth Pulb llshlng, Be~morit, Calff orri~a}. 1

1

Gunn Ingham N, Kagan R & Thornton Di 2003i Shades of Green: Business, Regulation and Environment {Stantord Un lverslty Press, Stanford). Haines F 1997 , Corporate Regu,atlon: Beyond «Punish Oxford).

or Persuade '

1

(C lareridon Press t

Haines F .2(l1 1 , Paradox of Regulation: What Regulation Can Achieve and What It' Cannot (Edward Efgar~ Ch elterilham t UK}. Horton R 2004i riov~oxxJ the I mpl os Ion of Merck, and Aftershocks at the FDA l'.I, The Lancet, vol 364, pp 1995- 1996. 1

Hopkins A 1995, Making Safety Work: Getting Management Commttment to occupatlonal Health and Sate~y (AHen aind Unvll~n, Sydney.)1. JackalI R 19SS I Mo ral Mazes: The World New York). 1

or Corporate Managers {Oxford University Pressi

Klndleberger c & Allber R 2005i Man/as. Panics~ and Crashesi tmh edltJ1on wnh by So~ow R (ed) (John WHey & Sonsj New Jersey).

a ne\v forv.rard

Kramer RC M ~chalowskl RJ & Kauzlar~ch D 2002 r "The Orig Ins and Deve1lopment of the Concept and Theory of State-Corporate Crlmen, Crlme & Dellnquencyj vol 4B, no 2 , 1

pp 263-262. Laut er WS 2 006, Corporate Bodies and Gullty Minds: The Failure of ,corporate Crlmlnal Liability (Unlverslty of Ch lcago Press~ Ch lcago). Ne1ken D 2012, 'Whlte-Co1 lar Cr~me'r, In Maguire M, Morgan R & Rel ner R (eds), The Oxford Handbook of Criminology (5th ed, c larendon Press ~ Oxfora,. Nico le W 2o13, ~'CAFOs and Environmental J ustlce: The Gase of North Caronna'"', Environmental Health Perspectives , vol 121 f no 6, pp 1S2-190. Parker c 2012 ~ "Economfc Ration aJltles of ,G overnance and Arnblgu lty In the of Cartelsn~ Brltlsh Journal of Crlmlnology, vol 52 ~ rio 5, pp 97 4-996.

Cr1m~naflzatlon

Ponten Hlj Black W & Ge~s G .2 014, "Too Blg to Fall, Too Powertull to Ja~~? On the Absence of Crilmlnal ProsecuUons after the 2009 F~na.nc lal Meltdown fl, Crime~ Law & Soc,al Changei vol 61 i no 1, pp 1- 13. Pearce f & Tombs s 1990~ ' ldeology~ Hegemony and Emp~rlclsm : Compllance Tneonles of Reg u~atlon'"', British Joomal of Crlml:nologyi vo,I 30, no 4 ~ pp 423-443. 1

Re~chman

N 1998, f-' Moving Backstage: Uncover~ng the Role of Compllance Practllces lri Shaping Regulatory PoHcles" t In Ba~dv~ln Rj Scott C & Hood C (eds), A Reader on R,egula.tion (Oxford Unlversllty Pressf Oxford). Rhelnsteln M (ed) Nev.r York).

1 954 ~

Max Weber on Law In Economy and Society {Simon & Schuster,

Rlvil ln G 2013, f'Wall Street Fires Backni Nation, vol 296:1 no 20t pp 11-22. 1

Smith A

1 982~

Wealth of Nations (Pengu lri , Harmondsworth).

Simpson s 2 013 , "'Whne-Co Ilar Crime,: A Revlev11 of Recent Developments and Promlsln g Dlrectlons fo r Future Research ' ~ Annual Revte~v of Soclology:I vol 39i, no 1 ~pp 309-331. 1

1

Chapter B Whllte-coHar and corporate cr~me

205

Streeck W 2011, r'Ta!~ng Capltallsm Serlously: Towards an ~nstltutlonallst Approach to Contemporary Polltlcal Econo mt,~ SocJo'-Econom/c Revtew, vol 9, no 1 r pp 137 -167. Sutherland E 19B3 , Whtie-Collar Crlme: The Uncut Version {Yale University' Press, New Haven). Sutton A & Wi id R 1988., '"Small Business: Whlte-Col~ar Vllla~ns or Vtctlms'?", In F ~nd lay· M & Hogg R {eds} t Understanding Crime and Criminal Justice {Law Book Companyt Sydney}. Tomasic R 1994 1, "Corporate CrlmeFJ, In Chappell D & Wiison P (eds), The Austratlan Criminal Justice System: The Mid 1990s Q3utterworths, Sydney). Tombs s & Whyte D 201 5~ Tne Corporate Crlmlnal: Why Corporations Must Be Abollshed (Key Ideas In c rimlnology ~ Rout ledge~ Ablngdo n). Whyte D 2014i ~ Regimes of Permission and State-Corporate Crlme'r~ State Crlme Journal, vol 3t no 2~ pp .237- 246. 1

1

FURTHER READI NG Bernat I & Whyte D 2017, ~'State-Corporate Crilme and tti e Process of Capital Accumufa.tlon: Map p~ng a G~oba I Regime of Permlsslon from Gal lc~a to Morecambe Bay " J CrftJc.al Crlmlnofogy ~ vo~ 25:1 no 1, pp 71-Sfi. 1

1

Drahos P (ed} 2017, Regulatory Theory: Foundations and Applications {ANU at https~//press.anu. ed u. aulpubllcaUons/reg ulatory-theory.

Press~

canberm}

Glasbeek H 2ooe:1 Wea'Jfh' by Stealth: Corporate Crime, Corporate Law and the Perversion ot Democracy {Between tihe Unes, Toronto). 1

Green P & Ward T 2004, Stau~ Crlme: London).

Governments~

Violence and Corruption

{P~ uto

Press,

Haines F 201.4, ' Co~orate Fraud as Mlsplaced Confidence? Exploring Amblgufty In the Accuracy of Accounts and the Materiallty of Money "~ T1looretfcal Crlmfnology, vo I 1s, no 1~ pp 20-37. KJlrsch s 2014, Mining Capitalism: The Relationship between Corporations and Their Crftfics (U nlverslty of Cal lforn la Preast Oakland). Rostaln T & Regan MC 2i014, Confidence Games: Lawyers, Accountants and the Tax Shelter Industry (The MIT Press Cambrfdge ~ Massachusetts). f

Rothe D & f ried richs D 2015:1 Crimes of Globalfzatlon (New York~ Routledge). Sutton A 19S9:1 ['The Bottom of ttie Harbour Tax Evasion Schemes", In Grabosky P & Sutton A (eds),, Stains on a White-Collar {Federation Presst Sydney}.

USEFUL WEBSITES ASl C, http://aslc.gov.. au/ 1

AustraHan Securities. and Investments fu nctlons In reg ulatlng f Inanclal crime.

Commlss~on

(ASIC) \PLtebslte ~ which

ouU~nes

It s

Entry website for all government: departments, Federal, State and Territory~ http lwW\V. gov.au 1: /

LI nk to the State or Territory you want to exp lore. f or healt h and safety, folIO\Pil the lln ks on business or employment from th-e State entry page. For env~ro nment~ follow the 11 nks on

206

Crime and

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environment Because governments change their URL addresses follow the 11 nks from a c1E9ntral site ~s. ess.entlal.

regu~arlly, ~earn ing

how to

Background Brlefl ng ~ http://www.abc.net aullrad lo naUonaVprog ramslbackgrou nd b~letlng/ Baekgro un d Brfeflng

a rad rio program me of ABC Rad lo NaUonal. This website contains lts Invest lgaUons Into White-collar c~rne, and transcripts are avaUable a.t the s li e. ~s

Human right s. abuse by mulUnatlonal b u:sl nesses, http://buslness-human nlghts .org/ Webstte that catalogues human rights abuse by mulUnatlonal bus~nesses. It brings together reports and lnvestlgatlons undertaken by non-governmentaJI organlsaUons and tracks the responses of bus~nesses to these reports.

VISUAL MATERIALS Tlte Corporation Documentary flIm on the hlsto ry and current pracUces of the CO'lfJ-Oratlon. The flIm do cu men ts the benefits. of corporations, but also how theJr purs.ullt of economic and soclal beneftt results In catastro ph le harm both to human beings and the envlron ment. A BC Four Corners

InvesUgatllve documentary program that otten covers lnvestlgatlons Into wh ne-co Ilar crime. Programs are avallab~e on the ABC website at http~//WV!lw.abc .net.au/ 4corner.s/ or on ABC rv1ew. Programs are aval lable for a Hmlted Ume after Inltlal broad cast

er 9

Environmental crime Brendan Grigg Flinders University

[9 .1 O]

INTRODUCTION ........................................................................................................... [9 .20]

Part 1 : En vi ro11mentcd crime and environmental harm: Is there a difference? 208 Part 2: The characteri sties of en~ronmental law in A1Jstralia ..... .. . .. .. . .. .. ... .. . .2 14 Ii I II ti.& iO I • I .I .... II I II Ii .. Iii I II I . . . . . II I

[9.70]

[9 .150]

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CONCLUSION...............................................................................................................

Questions . ...

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References ..... • •Ii .I Iii, . ........ ........ ...... . Ii,. ," .226 Further reading ... .. ... .. .. . .. .. . .. .. .. . .. .. . .. .. . .. .. .. . .... . .... ... ... .. ... .. ... .. ... .. .. . .. .. ... . .. ... . .. .. . .. .. .. . .. .. . ..... ... ... .. ... .. ... .. . 228 Ii . . . i II I i . I . i Iii . . . . . . . . Ii ...... I Ii i .. 11 .1 11

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Key -ivords: e11virorunent, environn1en.tal crime, ecologically stistainable develop1ne11t-' pollu tionl' enforcen1e11.tl' regtila ti on, adnlli1is tra ti ve pe11a] ty, civii .p ertalty, wild law, illegal cleara11ce of native vege ta tio11-' water lavv

I NTR 0DUCTION 1

[9.1 O] When you thiI1k of the term enviro11me11tal crime., events such as tl1e 1986 Cher11obyl · uclear Plant accident and the 1989 Exxo11 Valdez oil s.p ill in Alaska w ill co1ne readily to mind. Thinkin,g of more .rece11t eve11ts, 011e inigll t refer to the 2010 Deeplva ter Horizo11 oil rig explosiotl a11d oil spill n1 tl1e G1tlf of Mexico and the 2009 Montara oil \veil spill it1 the Tin1or Sea or tl1e 2015 collapse of a da1n storin.g iro11 ore tailings associated \vit11 an ir011 ore mll1e 11ear the Brazilian tow11 of Betl'to Rodrigues. Son1e nught argue t11at the developme1Tt of geneticaUy modified crops-' the demolition of buil,dit1gs -..vitl1 notable h~eritage or other arcllitectural features-' the fracturing of w1dergrotmd geological f or1nations to extract coal seam gas or the removal of 11eigl1bourhood trees are examples of enviro1m1e11tal crin1es. It1 the light of sciet1.tific advice abotit tJ1e links bernreet1 carbon enussion s and global vvarming, you nught also consider environn1e11tal critnes to it1clude the en1issio11 of carbo11 dioxide into the ahnosph ere by passe11ger vehicles e11gaged .it1 daily commutit1g. Similarly, an ttnderstanding of this lin.k 1night also suggest that the ap.p roval of new· coal mines, such as those proposed in recent years to be located .it1 areas .it1 Qt1eenslat1d ai1d Ne\-v Soutl1 Wales, is an envirotl.tnental crime. 1

You tnigll't also add to th.e list tl1e tnassive changes tl1at European colon.isatio11 and, it1 partictllar-' agricttltural land use practices have brougl1t about in Australia. Tl1e ltse of land for grazing and for cropping, vvhile higltly

208

Crime and

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Crlmlno~ogy

eco11onlicaJ1y productive, contribtttes to tlte loss of native habitat a11d 0f strrface soil, raises soil salinity levels and poses threats to water quality (Beeto11 et al 2006: 69). Livestock grazing of 11ative \regetatio11 is tl1e do1nina11t land use in Australia, comprising the ttse to which 44.9~Yo of the continent is pt1t and a further 9.2o/o of the Australian content is used by graziI1g activities in relation to m odified pastures (Metcalfe & Bui 2016: 48). Dryland cropping a.ccOllllts for 3.6'Yo of Australia's lai1d area, while less than 2o/o of tlle A11stralian contin.ent is d evoted to forestry, inte11sive agricult11re, urban and rural residential land uses, mining an.cl tl1e storage of \~aste ( · etcalfe & Bui 2016: 48). The rate of Ian,d clearing in Attstralia in. areas characterised by h1tens.ive agriculh.tral pr,o ductio11 averaged around 1 nilllion hectares .r er year bet\veen 2000 and .2010 (Hatto11 et al 2011: 12). The 2016 State of the Envir01unent Report n1dicates 'tllat a p proximately 44ryo of A.ttstralian forests and V1loodla11ds ha\re been cleared since E11ropeat1 settlement (Metcalfe & Btri 2016: 16). 1

1

1

But are these and th.e other examples listed above all environn1ental crimes? If n.o t, shotdd they be? How shot11.d we approacll t11e issue of determining whether somethitl g is or is not an environmental crime? 1

Tllis cl1apter it1vestigates, in P'a rt 1, '\Alhat constitutes an e11viro.n.mental crime. In doing so, it notes the i1n11ortance of who defines that co11cept and what that mea11s for tl1e e11viron1n e11t. [t draws on exa1nples from Australia an.cl internationally. TI1e ter11l "e11.vironme11.ta1 cri1ne" as it is 11sed in e11viro1un ental legislation in .A ttstralia is ofter1 n1uch narrov1ler it1 sco1")e 'tl1an. migl1t be expected. : oting the narro·w ness of tl1e defitutio11 of an. etl vironmen.tal crime, Part 2 of this chaf")ter cotlSiders how ct1rre11t Australian en.v irorune11tal laws are s truct11red, what they pltrp ort to do and f1ow they are enfrorced by H1e criminal law. It also considers so1ne of the criticisms of this approach a11d the ci,ril law al ternatives tl1at have bee11 developed to overcome these criticisms. This chapter highlights the joit1t role that the criminal law and the civil la\v play in e11forcing envirotlffietl tal lav·l. In co11ch1sion, this chap ter argues 't hat altJ1ougl1 there have bee11 reforn1s tl1at 11ave aimed to it1crease the effectiveness of these e11force1nent tools, unless tl1e concept of enviro1i.mental crline matcl1es the concept of e11viron1ne11tal harn1, the protection tl1at tl1ese lavvs grant \\"ill never be as good as it should be.

Part 1: Environmental crime and environmental harm: Is there a difference? [9.20]

Like tl1e co11cept of social l1ar1n tnore generall)r, th.e concept of en.v irorunental har1n has bee11 tl1.e subject of debate. Sotne scholars focus pttrely ort the legal d efinlti011 of harm provided by the state through its laws (Halsey & '\.Vli.ite 1'998: 345). Comme11ta.tors vvho take this so-called legalprocedltral approach vvould, th.erefore, agree with.Situ and Emmons (2000: 3) \-'V ho d ef.it1e an environmental crin1e as: 1

1

1

an tu1autl1orised act or omission that violates the law and is the·refore st1bject to criminal prosecu tion and critnin al sanction s.

Chapter 9 Env~ ronmental cr~me

209

According to tl1is .legal-procedural approach, a judgment about the nature at1!d exte11t of harm to the e1lviron1ne11t is required before tl1e legislative process creates a law that crimi11alises activities that cause tllat harn1. By implication, this defiiutio11 excludes fro1n the scope of the crimit1al law other' for1ns of harm that are dee1ned by Parliame11t as 11o t hartnfttl. ]ndeed, as White points out, so1netitnes tile harm is ~simply part of tl1e 11.o rmal way' of doing thin.g s" (White 2009: 1). 1

1

The need for a judgment aboltt the 11ah.ure and extent of 11artn before a harmful act is criminalised pemuts, or perha.r s eve11 facilitates, the e11.actment of laws tl1at are 1nost conducive to eco.n omic interests, at the expense of tl1e 1011g-term security of social a11d ecological syste1ns (Halsey & Wl1ite 1998: 350) . Tl1is pr,o cess retlects an anthropoce11tric view of tl1e relati onslup behveen huma11s a11d non-human 1iature (Halsey & Wl1ite 1998: 349). i\11 art thropoce11tric vie\v o.f that relationsltlp ele,rates l1t_t1na11 life above no11-h,u 1nan nature - the val11e of hu1nan. life is paramount. mt sees non-l1u111an nature as something tl1at is to be J:I appropriated, p.r ocessed, constuned and disposed of in a way that best st1its tl1e im1nediate interests o.f 11uman beings" (Halsey & White 1998: 349). 1

DIALOGUE BOX 9. 1

Ecologically sustainable development (ESD) [9.30] The concerted developmen1 of the concept of eoologically sustainabl e 1

development (ESD) can be traced to the 1972 !United Nations Conference on the Human Environment held in Stockholm and the Declaration that resu lted. Princ iple 2 of the Declaration contains the essence of Es,o. It states: The natural resources of the earth! Inc Iudtlng the aJr, water1 land! flora and fauna and especlally representaUve samples of natural ecosystems 1 mu st be safeguarded for the benefit of present and future generaUons through careful p lann~ng or management , as appropriate.

Accord ing to Our Common Future, t he 1987 Report of 1he Wodd Commission on Environment and Developm ent (known more commonly as t he Brundtland Report aft,e r its Chair) explained t hat ESD is ~'development t hat meets 1he needs of the pr,e sent w ithout compromising the ability of ~urture generations 1o meet their own needs ~j (World Commission on Environment and Developmen1 1

1

1

1987: 87). The 1992 Earth Summit in Rio d e Janeiro shed ·f urther light on t he ooncept of ESD in the Rio Declaration, 2 which sets out guiding principles on how ESD might be achiev,ed. including th e fol Iowing: 1

•

The right to development mu,s t be fulfilled so as to equita,bly meet developmental and environmental needs of present and future generations. (Principle 3)

210

crime and Just Ice~ A Gu Ide to Crl m lno~ogy

•

In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. (Principle 4)

•

To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. (Principle 8)

•

In order to protect the environment, the pr:ecautionary· approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damageJ! lack of full scientific certainty shall not be used as a reason for postponing cost_,effective measures to prevent environmental degradation. (Principle 15)

•

National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments~ taking into account the approach that the polluter shouldJ! in principleJ! bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. (Principle 16)

Halsey and White (1998: 350) note that ESD, the cornerstone principle of modern environmemal law and pol i cy~ is t he "'favoured envirunmental strategy of anthropocentrism". It is one of the cornerstone principles of environmental ~aw both intern ationaJ ly and in Australia, where its princi p Iles are em bodied in the majority of Australian env iro nmenta~ statutes. 1

EXERCISE BOX 9.1 1. What~ if anything, distinguishes ESD firom unrestrained exploitation of the environment 's natural resouroes? 2. Is ESD premised upon the idea t hat the environment has not been affected and is in a pristine state before development occurs? 1

3. What is the·place of humans in ESD? Is the concept of ESD anthropocentric or ecocentric? 4. Do you agree with Halsey and White f199.a: 35·1) when they state that '' [s]u stain able development in essence tran s~ates into a ·f,o rm of 'green capita l ism~ tJ?

[9.40] Tl1e influe11ce of the pl1ilosophy of antl1ropoce11trisn1 on human activity and 011 tl1e enviro111nent is far reaching. There are countless examples of environ1nentally harmfttl, or .P otentially e11viron1nei1tally harmful, activities that are carried out with the full sanction of environmental la\ivs. Halsey highligl1ts, for example, the use of dioxin.s i11 the tnanufacture of

Chapter 9 Env~ ronmental cr~me

211

paper and the i11jection of che111icals in to til e ea.rt11 d uri.t1g min.in.g operations (Halsey 1997: 221). To t11e list could be added the follo,rVit1g Attstralia11 exan1ples, all of ·w hich_ are fuHy sanctioned accor,d iI1g to the laws of tl1e releva11 t jt1risdict.ion: • tl1e extraction of coal seatn gas tl1rough tl1e 11se of processes that have tl1e capacity to damage and deplete 11nderground aqt1ife.rs; • tl1e clearance of nati\re vegetation to pernlit agricultural activities; and • tl1e grant of rights to extra.ct water fro111 the 'vatervv:ays of the Mt1rrayDarling Basin in Quee1isla11d, New South Wales, Victoria and Soutl1 Australia. Tl1e legal sa11ctio11 a11d en.d orsernent of tl1ese activities legiti.111ises them. Tl1is, it1 tt1r11, legitin1ises the profits and other benefits that 11umans derive frotn tl1at ex.p loitation and har1n (Halsey & White 1998: 351). The pervasive and co11tit1ued prese11ce of such legitintlsing lavvs su.ggests that states a.re particularly vu1ln.erable to the pressure exerted by ·t hose (ofte11 large corporations) vvho tmdertake these activi ties. It is it'l the interests of people or corporations sttch as tl1ese to ensure t.l1at tl1.e capital that they have invested it1 t11ese areas a11d the profits tl1ey deri\re from tl1at in.vestn1e1lt are not jeopardised by la\vs, vvhich might ren1ove t11at legal sa11ctio11. Capitalism and anthro.poce11.t.risn1 are mutually reit1forcit1g philosophies. In rece11t years, the Eartl1 Jurisprl1dence moveme11t has developed in a direct response to the anthropocentric view of the httman.- natt1re relationsl1ip. TI1e move1ne11 t" s aim is to de,v elop theory a11d law ('~vi.rild. la¥v '') that is s ui tab Iy adapted to ai1 ecocentric ·viev.7 of the hu1nat.1-nature relationship (Burdon 2010: 64). AccordiJ1g to this view, ecology plays a fundame11tal r ole iI1 informiJ1g us about our "i11terconnectedness with the 11atural \vorld" and sucl1 kno¥vledge enables u s to trartscet1d tl1e id ea of a11ecological1-Uerarchy that I-"' laces h.uma11 ben1g at the apex and 1nove tts tov.ra.rds a "comprehe11.Sive Earth Corntnunity" (Burdo11 2010: 63). An ecoce11tric p hiloso1-i:l1 y "vievils humankllld as Fi:art of a global ecosystem and st1bject to ecological laws ... wlrich coti.strain huma11 action, particularly tl1rougl1 im.p osing limits to econon1ic a11d popl1lation gro\vth.'' (Pepper 1993: 33). As part of a global ecosysten1, h11man life is neitl1er above nor below 1lo n -l1un1ai1 life. 1

1

1

011e of the \vays that has been proposed to entret1ch st1cll a phll osophy and U1ereby overcon1e an anth.ropocen,tric ecological hierarchy is to co~1fer u.p on every beu1g legally recog11ised r.igl1ts. Such an approacl1 nhas the potential to place duties on hu1nan beit1gs a11d establish ~relatio1iship' as the context for iI1teractionu (Burdon 2010: 64). This approach \Vas adopted in Ecuador, wl1ere its 2008 Co11s tib.1tion became the first in tl1e \'\rorld to codify nature's rights (see Dialogtlle box 9.2). 1

1

212

crime and Just Ice~ A Gu Ide to Crlm lno~ogy

DIALOGUE BOX 9.2

Earth Jurisprudence and wild law in practice: Ecuador and Aotearoa New Zealand [9.50] The Constitution ,of Ecuador, adopted in

2008~

expressly rejected a completely anthropooentric approach when it reoognised the inhefient rights of nature. Article 72 of t he 2 008 Constitution of Ecuad or3 p rovid es t hat: 1

Nature or Pachamam~ where Ilfe Is reproduced and eXJls.ts, has the nght to ex~sti perslst, malntaln and regenerate Its vltal cyc~es1 st ruetu re 1 funcUons and ~ts precesses In evolution. Every person1 people1 community or natilonall lty, w lll be abJe to demand the recognit ions of rights f'or nature before the pub llc organisms. The appllcaUon and lnte~retatlon of these rlgh1 t s wm follow the related prlnclples established In the Constitution. (See Linzey T & Campbell A 2009,, '~Be the Changes: How to Get What You Want In Your Community", p 133, cited ~n Burdon 20·1O: 64.)

Burdon notes candidly that socioeconomic realities in 6cuador may pose considerable challenges to t he r,eaJisaiion of these goals (Burdon 20'10: 64); however, wi~d law philosophers have committed themselves to t he challenge of re,m oving the anthropocentrism of our ~egal systems. The concluding dec~a ration adopted by d elegates to the first Wild Law conference held in Adelaid e in 2009 describes t heir objectives c~early: 1

1

1

We t he participants of' Wiid Law, dec~are that the perceived separatllon between nature and human beings Is a fundamentaJ cause of the current environmental c~sJs.

Our ~aw reflects th Is In treatilng nature as property and by. restrlct11ng nghts to human subjects. We assert that law needs to transition from an exclus11ve focus on human be~ngs and recogn ise that we exist as part of a broader earth community.

We recogn lse that the universe ~s composed of subJects to be communed with, not objects to be used. Each component member of the universe Is capable of havjng nights.

we comm it to evolvJng law so that Jt protects t he natural works from destruction and culUrva.tlng W iid Laws that are consistent with the ph ilosophy. of Earth J urlsprudence (Burdon 201 O: 62}.

A legal revolution contained in legislation passed in 2014 by the Parl iam,e nt in Aot,earoa New z,ealand, also Ulust rates w ild law in p ractice. The Te Urewera Act 2014 conferred legal personality upon an afiea of land, known as fe Urewera3 on the North Island of Aotearoa New Zealand, that had, since the ear1y 1950s3 been managed as a national park. Section 3 of the Te Urewera Act 2014 sets out the history t o this groundbreaking legislative development, which turned Cr,own land into land that was its ,o wn legal being. It states:

Chapter 9 Env~ ronmental cr~me

213

3 Background to this Act Te Urewera

(1) Te urewera Is ancJent and endurl ng1 a fortress of nature, alive with scenery Is abundant with mystery, adventure, and remote beauty.

h~story;

Its

(2)

Te Urewera Is a place of splrntual value 1with Its own mana and maurl.

(3)

Te Urewera has an Identity In and of ltself f Inspiring people to commit to Its care.

Te Urewera and Tuhoe (4)

ForTuhoe, Te Urewera Is Te Manawa o te ~ka a Mau~~ It ~s the heart of the great fish of Maul, Its name being derived from Murakareke, the son of the ancestor Tuhoe.

(5)

For Tu hoe, Te Urewera Is their ewe whenua, their p~ace of origin and return, theJr homeland.

(6)

Te Urewera expresses and gives meaning to Tuhoe culture, language, customs1 and Id entity. There T uhoe hold mana b y ahlk a ro~ they are tangata whenua and kaltlal~I of Te U rewera. 1

1

Te Urewera and all New ZeaJlanders

(7)

Te Urewera Is prized by other lwl and hapii who have acknowledged special assoctlatlons with, and customary Interests In, parts of Te Urewera.

(B)

Te Urewera Is also prized by all New Zealanders as a place of outstand~ng natlonaJI value and lntrlnslc worth; It Is treasured by all for the d ~stlnctive natural values of Its vast and rugged primeval forest, and for the Integrlty of those values; for Its Indigenous ecologlcal systems and biodiversity, Its hlstorncaJI and cultural heriltage, Its sclentmc ~mportance, and as a place for outdoor recreation and splrltual refIecuon.

Tuhoe and the crown: shared views and Intentions (9)

Tuhoe and the crown share the view that Te urewera shoulld have ~egal recognltJon ~n Its own rlght 1 with the responslbllltles for Its care and conservation set out In the law of New ZealaJnd. To this end 1 Tiihoe anrd the Crown have together taken a unique approach, as set out In this Act! to protecting Te Urewera In a way that reflects New ZeaJland 's culture and values.

(1 O)

The Crown and Tuhoe Intend this Act to contribute to resolving the gnef of Tuhoe and to strengthen ing and maintaining the connection between Tuhoe and Te Urewera.

[9.60] Tl1is develop1nent was follov1led iil 2017 'Vvitl1 the enactme11t by the New Zeala11d Parlia1nent of the Te Awa Tupua (Whanganui River Claims SettleJnent) Act 2017 (NZ), s 14 of whicl1 conferred legal personality ltpo11 the Wl1anganui River wluch it described as "an it1divisible an.cl livitlg '\iv-hole". Th.is provision gives the Wliangantti River U1e sa111e righ'ts, povvers, duties atl!d liabilities as any other legal person. These rights, duties atl.d po\vers are to be exercised at1d perforn1ed, and responsibility for liabilities 1ntllst be taken, by Te Polt Tuptta, establisl1ed by the Act, on behalf of tl1e Wl1ru1gant1i River. In Victoria, the Yarra River Protection (Wilip-gin Birrarung 1\1urron) Act \-Vas also .p assed it1 2017. While it stops short of explicitly conferrit1g legal personality 011 tl1e Yarra River, s l(a) of that legislation states that one of its

crime and Just Ice~ A Gu Ide to Crl m lno~ogy

214

1nain purposes is to establisl1 a regim.e to protect the Yarra River ru1d certain la11d it1 the riverrs vicituty 11 as one livi11g and integrated natural entity". The adoption of a truly ecocentric philosophy requires tis to aban.d on the legal-procedural approach to the d.efu1ition of er1v·iro11rnental crime, winch, as described above, focuses solely on a 11arrow state-controlled defi11itio11. In its place, a definition tl1at focuses 011 ei1vironme11tal harn1 as the criterio11 for the concept of envir01lffiental cri111e is needed. This approach clearly reflects the fact that from tl1e .p erspective of the environme11t1 tl1e legality or o ther\vise of the 11ar1nfu.l activity is entirely irrelevant (Halsey 199 7: 2). A ha.rt1t-based defu1ition ,o f t11e co11.cep t of ai1 en vironn1en.tai c.ri11le releases it from tl1e limitations imposed by state-con.trolled definitions. This is ob1vtottsly to the advantage of tl1e envirrni.ment when 011e considers tl1at natio1i.al boundaries ai1d tl1e jurisdictions th.at they deli1nit are irrelevant to envirorune11tal hartn vv·hic}1 ca11 exte11d beyond borders . 1

Part 2: Th,e characteristics of environmental law in Australia 1

[9.70]

Descriptions of envirotlillental degradation irt At1stralia, contained in the statistics discussed at the beginning of this chapter in [9.10.] , illustrate t11e prevailit1g view of \vhat cot1Stitutes an en.v ironmental crime in Australia. It is sin1ply that \vhich is contai11ed in. tl1e lavvs pron1ulgated by the state. A study of environmental crime req11ires us to co11sider the current state of laws designed to protect the enviro1unen't1 though the fact tliat these laws aie premised 011 a narrow a11thro1..,oce11tric basis n1ust be borne in mind . 111 this regard , ru1 tn1dersta11diI1g of the strt.1ctt_tre ru1d nature of envirrni.n1ental la'"' in A tls tra lia is first necessary and useful.

According to Bates, tl1e p ltrpose of lavi.7 is to .u protect the social values enshri11ed it1 society and give legal effect to t11e policies of governrne11tn (Bates 2016: .219). If this is so, it \vill 11o t b e a surprise to 11'.ote that tl1e princi.P les of ES0 (see Dialogue box 9 .1) play a funda1ne11tal role it1 A us tralia11 e11virorune11tal lalv. Ind eed , Godden et al state that sustaiiiable develop11tent is "tl1e dominar1t meta-principle tJiat 1111d er.p ins n1ost enviro1i.n1entai la\v it1 At1stralia and it1terna.ti011ally'' (God de11 e t al 2019: 57). 1

1

1

Altho11gh ma11y environ1n ental statutes .h ave been e11acted thro11ghout Australia, tl1eir fundarne11tal stru.ctu.re and contenf'' is ''very similarn (Bates 2019: 45). B roa,d l y speaking, e11viro11.ffie11tal statutes p ro hi bit cer tai11 activities \\thich have been d etern1it1ed to 11ar1n the enviro1une11t and wlu ch. nuay l1ave been. permitted by tl1e com1non law a11d 't hen establish a11 ad111.iti.is tra ti ve scl1eme for the licensil1g a11d regulation of those ac ti vi ties (Bates 2019: 45). 11

For exarnple, inost modern enviro1une11tal s tatutes include provisions tl1at create .P ublic at1thorities that are 1nandated with the responsibility to protect the en\rirot1illent and regttlate the use of natural resources. Such au thorities are given various le,g islative povi.rers, includit1g the requirement for licences,

Chapter 9 Env~ ronmental cr~me

215

pernilissio115 or approvals to be obtai11ed before certait1 acts affecb11g tl1e e11vironme11t 1nay be u11dertaken (Bates 2019: 45). In addition to the use of tile criminal law to enforce compliance w itl1 the relevant la\vs, environmental statutes a lso ty.p ically co1lier t1po11 reg11lators the ability to use a range of admit1istrati,re sanctions a11d civil remedies (Bates 2019: 46). T11e relatiortship behveen critninal and civil (a11d administrative) enviro11mental la'\ivs is i1nporta11t and constittttes a key cl1aracteristic of enviro11me11tal lavv in Australia (Bates 2019: 723-724). The illegal cleara11ce of native vegetation case study in Dialogue box 9 .3 sl1ows 110\¥ cri11lit1al penalty schemes work han.d -in-l1a11d lvitl1 civil remedy scl1e1nes to deter ru1d punish environmental cri1ne a11d ensure tl1at whe11 it occ11rs, it is ren1ediated.

Civil remedies use the civil, rather tl"\a.11 the cri1nitlal, jt1xisdiction of tl1e oourts. Unlike criminal proceedit1gs tl1at are a response to a breach of the lav1l tl1at l1as already occu1rred, civil proceed it1gs can (but ,d o no t l1ave to) be comm.et1ced before a breacl1 has occttrred, thus preventing e11vironmental hartn. Civil remed y sche1nes c011fer a flexibility upon an e11vironmental regulator that is absent fr,o m tl1e criminal la\-v remedies. For exa1nple, civil remedies provisions generally enable cotrrts to order that certain beha\riou1.r be disco11tinued, tl1at steps be take11 to remedy a b reach a11d / or tl1at co1npensatio:n for losses atl:d datnages be inarde. 1

Administrative remedies ,d o 11ot require regltlators to invoke tl1e jurisd iction of a court, tu1like criini1tal pe11al ties, civil remedies or civil pe11alties (discussed in de tail at [9 .130]). A regulator's ability to act in t11is ·w ay depe11ds e11 tirel y on the relevant legislatio.n but, in tl1e mai11, these mechanisms enable regttlatory officers to respond quickly to actual or threatened enviro11mental hartn by issuil1g_, for exa1n plef statutory or{_iers. Depe11di11g on the tertns of tl1e legi.slatio.n that authorises su1cl1. admiti.istrative action these orders can close dow11 i1re1nises, require illegal activities to s to:p or req 1-tire etl vir01i.men.tai harn1 to be re1nedied (Bates 2019: 719). 1

DIALOGUE BOX 9.3

Cas,e study: Illegal clearance of native veg,e tation in South Aus,t ralia [9 .. 80] In 2005, a farmer removed some 271 native trees from two farming properti,es in the South !East of South Australia to enable the inst aHation of centre-pivot irrigat ion infrastructure. Onoe installed, the land was to be used for carrot fa rm in g. The farmer had not, however~ obtained approval to clear t he nativ,e vegetation under the relevant South Australian legis~ation (the Native

crime and Just Ice~ A Gu Ide to Crl m lno~ogy

216

Vegetation Act 7997 (SA)}. Following detection of the unauthorised cl earanoes3 the farmer and his oompany were charged with criminal off,e nces against the Native Vegetation Act 1991 (SA). The farmer and his company pleaded guilty in t he South Austral ian Magistrates Court. They were convicted for this illega~ c learing and fined $68~000 and $51,000, respective~y. 1

The farmer and the company appealed t he severity of the fi ne to the South Australian Supreme Court. Among the arguments challenging t he severity of the f ines was the argument that the magistrate failed to give proper regard to two other sets of court proceedings that needed to be f inalised in relation to the clearance. 1

1

This argument was based first on the fact t hat civil proceedings had been commenced against the farmer and his company in the Federal Court of Australia. This was because t he c learanoe of t he nat ive vegetation had also b reached provisions of the Environment Protection and Biodiversity ,Conservation Act 1999 (Cth) (the EPBC Act). The eucalyptus that w,ere cleared in one farming area were within the nesting range of t he South Eastern Redtai led Black Cockatoo (Calyptorhynchus banksit). This speci,e s is listed as an endangered species under the EPBC Act. It is an offenoe under that legislation to take action that has or wm have or is likely to have a significant impact on a Usted endangered species. 1

The other set of c ivi I proceedings referred to were in the South AustraJ ian Environm,ent Resources and Development Court (ERD Court). Where there has been a conviction for iUegal c learancef the relevant South AustraHan nativ,e vegetation protection legislation requires the regulator (the South Australian Native Vegetation Council) to commence civil proceedings in the ERD Court for orders that riequ ire the ii Iegal c Iearance to be remed iated. This first set of civi ~ proceedings had not been oommenced at the time 1he Magistratesj Court fines were imposed. 1

1

1

In relation to the appeal against the penalty for the criminal conviction 3 the South Australian Supreme Court held t hat the Ii kely, but unknown, f inancial im p~ications of the impending civil prooeedings in the ERD C ourt were not relevant to d eterm in ing cri min aJ penalties. Likewise it held t hat the ongoing c ivil penalty prooeedings in t he Federal Court w ere not relevant to that determination. The South Australian Supr,e me Court dismissed the appeal and upheld the fines imposed by the Magistrates ~ Court. 1

1

1

1

1

1

The Fed eraI Gou rt proceedings against t he farmer were discontinued. How,e v,er, the Fed,eral Court ordered t he company to pay $220,000 as a civil penalty for the contrav,ention. (See Lamattina v Gould (2009) 103 SASR 587 and Minister for Environment Heritage and the Aris v Rocky Lamattina & Sons (2009) 258 ALA 107.)

Chapter 9 Env~ ronmental cr~me

217

EXERCISE BOX 9.2 1. Do the airguments raised during t he appeal against the penalty imposed by the Magistrates Court suggest an attempt to trivialise 1hes,e offences? (See 8at,es 2019: 729-730.) 1

2. Do the multiple State and Federal environmental laws and the various civ iI and cri mi naJ processes that apply in a situation sue h as this en hanoe the incen1ive to com ply with 1he law or make that task m ol"e difficult or confusing? (See Bates 2019: 45-50.) 1

3. The Commonwealth Minister could have commenced a criminal prosecution 1

instead of civil penalty proceedings in relation to t he illeg1al eff,ect on the listed species. Do you t hink t hat it was ~ppropriat1e that the Commonwealth Minister used the civB penalty mechanism available under t he EPB C Act rather thain commence a criminal prosecution? 1

4. What role might deterfience, both specific and general, play here? Do you think t hat the penalbes impos,ed her,e afie sufficiently hi gh enough to constitute an effective d eterrent 1o others? 1

1

Criminal remedies

[9.90] Wh.ile tl1e criminal law is clearly not t~1e only means of regttlating actions that are harniful to t11e ptllblic interest it1 tl1e protectio11 of tl1e enviroJ.lffient, the threat of a cri1nit1al p.rosecution has been described as 11 tl1e backbone of legal enforce1nent of e11viron1ne11tal laws'' (Bates 2019: 729). E11vironmental legislation routinely creates offe11ces for a failure to comply with most, if 11ot alt legjslative requireme11ts. For example,. it is an offe11ce u11der s 361(2) of tl1e Ql1eensland Environrnental Protectlon Act 1994 to fail to co1nply· V1litl1 an. environn1ental protection order, which. n1ay be served u_po11 a person wl10 is failing to con1ply witl1a111twnbe.r of obligati:ons imposed bJ' 'tllat Act. Tl1ere are, 110\vever, many difficulties associated with the use of criminal remedies i11 enviro111net1tal tnatters. Ll1nited budgets and resoltrces place constrait1ts ort en·viro1une11tal regttlators. Tlhis 1neans that despite the fact that criminal offences feature so regularly it1 e11vironme11tal statutes, the crimit1al law is ,1e~y often used as the last resort (Bates 2019: 733). Australiru1 regu.latory agencies tend to take a n1ore '~staged approach to co1nplia11ce a11d e11forcement [compared to age11cies~ in 1nore a,d versarial jurisdictions'" a11d ttse a 1nix of the tools available to H1em to secure con1.pliam1ce and to deter no11-con1pHance (Godden et al 2019: 321). This mix of approaches mirrors Ayers and 'B raithwaite's fi11dings tl1at environme11tal regulation in Australia confor1ns to their infltte11tial 1992 enforcement pyran1id model which is re.p roduced in Cl1apter 8 "Wl1ite-collar a11d corporate crline" at Figttre 8.,2. This model describes how reg1.tlators use

21 S

Crime and Just Ice~ A Gu Ide to Crl m lno~ogy

escalating for1ns o.f regttlatory i.J1tervet1tion. t11at are take11 in response to oontll1ual refusal to meet regt.1latory dema11ds (Ayers & Braith\vaite 1992: 20). 1

At the base of the pyramid in Ayers and Braithwaite's modelf \vhere 1nost regt.ula tory action occurs, lies t11e reg111la tor's ability to persuade. Wl1e11 tl1a t fails, the next step is t11e formal writte11 warning. Tl1e next phase, before tl1e imposition of critninal penal ties Hes civil perialties. At the p eak of Ayers and Braithwaite's e11force1n en t pyramid lies the possibility· of f orci11g a te1n porary suspertsion of 11on-compliant operatio11s followed, as the last option, by a permanent re\rocati011 of an operatit1g lice11ce. Ayers and BraitJ1vvaite (1992: 35-36) argue tl1at the n1odel is specifically applicable to e11viro11me11tal regula tio11. T11e case st11dy set out iI1 ·o ialog11e box 9.4 illustrates so1n e of the issues t11at face regulat·o rs it1 1!.mdertaking t11eir duties. The Ayers a11d BraitJ1\vaite enforcement pyra1n.id (see Figu.re 8.2) may .p rovide a useft..tl tool for atlalysing the regl1latory and legislati,1e respom1se to this environme11tal incident. 1

DIALOGUE BOX 9 .4

Case stu«ly: Water "theft" 1in the Barwon-Dar1ing [9 . 100] 0n its face, the decision of the Land and Environment Court of New 1

South Wales in NSW v Barlow [20191 NSWLEC 30 (22 March 2019}. (Barlow) is an uncontroversial court d ecision that sets out the Court's reasons for setting the fine imposed upon a person who plead ed guilty to charges of breaching various p rovisions of the Water Management' Act' 2000 (NSW). It is, however, part of a much larger story about compliance and enforcement in env i ronmenta~ matters. 1

1

1

1

Barlow concerned t he prosecutiian of a farmer who ran an agricultural property located on the banks of the Barwon River in northern New South WaJ es, for breaches of the Water Management Act 2000 (NSW). The· property was used for grazing, dry land cropping and growing cot.ton irrigated by water extracted from the Barwon River. The farmer pleaded guilty to charges that (1) he had breached provisions of the Water Management Act 2000 (NSW) that t emporarily prohibited him from extracting water from the Barwon River, 4 and, w hen doing so, using a pump meter that was not properly functioning 5 and (2) t hat. on another occasion after the temporary prohibition ended, he had lawfully extracted water wit h a pump meter t hat was not properly tunctioning. 1

1

1

The farmer's parents owned the property and held the appropriate approvals tia extract water and t o use water m et eri ng devices; however, the first charg e concerned water extraction t hat took plaoe during a period of t ime when the Minister had imposed a temporary prohibition on extraction in order to protect the downstream supply of drinking water for t he town of Broken Hill. 6 The requirem ent to use properly functioning meters applied at all t imes. 1

1

1

1

1

Chapter 9 Env~ ronmental cr~me

219

In his sentencing remarks, Chief Justice Preston sought to impose a sentence that was p roportionate to both the objective seriousness of the offences and the farmers subjective circumstances. t In re~ation to the former, His Honour considered that t he farmer~s actions - the improperly met,ered taking during the temporary prohibition,8 and1he improperly metered taking after it ended9 had undermined the Act's regulatory scheme and t hus increased the objectiv,e seriousness of the offences. 10 1

His Honour took into account the farmer's subjective circumst ances such as his lack of prior oonvictions,11 prior good character, 12 guilty plea13 and his demonstration of genuine remorse.14 He imposed a to1al penalty of $135,351 for the improperly metered ext1raction during t he temporary prohibition and $54,140 for t he ot her improperly metered, but ~awful, extrac1ion. 15 1

The events t hat led to t he convict ions in Barlow, together with a rang,e of other s i mi~ar events in the area, were the subj ec1 of the controversial broadcast caUed "Pumped: Who Is 8enefitting trom t he Bil ~io ns Spent on the Murray-Darl i ng ~~, 6 by the ABC 's Four Corners programme. The programme made allegations of w idespread non-compliance with New South Wales water laws, in particular, in the 8arwon-Darling Riv,e r syst,em in northern New South Wales. 1

1

1

1

The programme led to a number of investigations and inquiries: there wer;e referrals to t he New South Wales Independent Commissioner Against Corruption; the New South Wa~es Ombudsman undertook s,everal ramme was broadcast the investigations; and only two days after the prog1 New South Wal,es Minister for Regional Water commissioned a respected form er Commonweallth public servant, Mr Ken Matthews AO, to undertake an independent investiga1ion into the issues raised by the programme. The key findings of the Matthews investigation, presented in two reports, were tha1: 17 1

1

1

1

• the overall standard of New South Wales compliance and enforcement work was poor, 1

•

arrangements for metering, monitoring and measurement of water extractions, especiaUy in t he Barwon- Darling system, are not at the standard requir,ed for sound water management and did not meet community expectations;

•

certain individual cases of non-compliance had remained unresolved for too long; and

•

the arrangements for the regulation of water in New South Wales w ere not transparent to members of the public and this ~ack of transparency extended to the compliance and enforcement arrang ements which underpin public oo nfidence. 1

1

The Matthews recommendations led to the enactment of the Natural Resour;oes Access Regulator Act 2017 (NSW) (the N.R AR Act), which established a Natural Resources Aocess Regulator, independent of government. It is now r;esponsible for the enforcement and water law in New South Wales. Section 10 of the NRAR Act sets out the principal objectives of the Regulator. In an 1

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A Gulde to

Crlmlno~ogy

obvious response to the concerns raised in the Matthews reports, it states tha1: the principal objectives of the NRAR Act are to: 1

• ensure effective, efficient, transparent and acoountable oompliance and enforcement measures for the natural resources management legislation; and 1

1

1

•

1

maintain public confidence in the enforce m,ent of the natural resou ~ces management legislation.

Since ns creation, the Natural Resouroes Access Regulator has commenced a number of prosecutions concerning other allegations raised in the ABC's Four Carners programme. The Environmental Defenders Office has also commenced other proceedings, including civil enforoement prooeedings. in relation to breaches of New Sou1:h Wa~es water laws. At 1he time of writ ing, these matters are yet to be fi na~ised. 1

EXERCISE BOX 9.3 1. Use the compliance and enfo~cement pyramid to explain what giving the Natural Resources Aocess Regulator the task of enforcing NSW water ~aws was most likely designed to achieve. 1

2. In Iight of at least one conviction arising from the events described in the Four Comers programme, the term water ut hefttJ may be applicable. How cou ~d you argue that the abiIi1y to Iegal ly extract water f ram a water resource such as the 8arwon-Darling be considered an environmental crime? 3. To what extent does public oonfidence in compliance and enforoement underpin effective envirunmental regulation?

The (in.Je,f fectiveness of the criminal law 1

[9.110]

For 1na11y years, criticism of tl1e criminal law· as a t1\ea11s of enforcing envir0t1.lllental sta1i:daxds l1as not been linuted to co11cerns about the compliance-based reluctance of regulators to use it. Conune11tators ha\re also noted tl1at the requirement for the prosecution to prove a case to the crini.i.t1al sta11dard of proof, namely, beyond .reasonable doubt, ill1poses a complex ru1d.costly frorensic burde11 in.environn1ental tnatte.rs (Grigg 2017: 142). Other criticism has suggested that the use of strict lial1ility offences, \V hich are coni.mon to 111am1y envirorune11 tal statutes,. cru1, wl1ere at1 offence is proven b·u t \Yl1ere critnit1al it1ter1t is genuinely lackrng, lead to: indignation on the p art of b usin esses " 'l1ich are found "g'ltil ty" of o.ffenc es vvithou t having a real sense of moral fault, or an inclination to treat such offences akin to a business overh ead because guilt is applied automatically. (VVoods & Macrory 2003~

9)

Chapter 9 Env~ ronmental cr~me

221

Other criticism has focused on tl1e 11istoric lack of seriottS fina11cial penalties for breaches of e11viron1ne11tal laws. li1 this regard, Bates has Sltggested tl1at c ot1rts l1ave historically bee11111ore accustomed to sentencing offen.ces against tl1e person ra tl1er tha11 a,gai.tlS t t11e e11viron1nei1t a11d, the refore, ge11erally have placed a greater etnphasis on preve11ti11g the recurre11ce of the offence rather tha11 011 ptuushirtg the offence itself (Bates 2019: 729). 1

In tl1e past, the fines imposed upotl con.v iction l1ave generally been regarded as being lo\v and, as a resttlt, \iVere considered to have failed '~to stin1ulate extensive and sig11ifica11t enviro1une11tal h.nprove1ne11ts to operatio11 and production improvements" (Hain & Cocklin 2001: 332; see also Abbott 2005: 170) . Lo·w levels of fines oftet1 do not reflect tl1e seriottS1ness of en.v ironmental damage (Hai11 & C ocklin. 2001: 332), even assmning that st1cl1 damage ca11 be truly quantified. This is illustrated by the case study in. Dialog11e box 9.5 of the 2006 ,decisi011 of the Supreme Cotrrt of Tasmania tl1at overt11rned the penalty t11at a magistrates court imposed upon the Glenorchy City Council beca11se the penalty did tl:ot reflect the serio11s11ess of the offe11ce nor could it have deterred. o tl1ers frotn similar offendit1g . Indeed, lov11 fines are able to be treated by so1ne offe11ders, 11ot as a deterre11t, but as analogous to lice11ce fees, wluch are si1nply factored it1to tl1e busit1essr accoWlts (Smith 1995: 12). Otl1er factors st1cl1 as the cos ts of .reparations and lost J-"'rod uc tio11, 'tl1e com1cer11S of sl1areholders a11d other investors and adverse .p ublicity are, in t11e nlit1d of a corporatio11, ju.st as, if not more i1nportant tl1an the risk of prosectlltion (Smith 1995: 12). 1

1

1

Criti.cis1ns stich as tl1ese, have ge11erated refor1ns both it1 Australia a11d abroad (see Cole 2008; Hain & Cocklu1 2001; Li.p1na11 & Roots 1995). In response, tl1ere have bee11 legislative efforts in Australia to it1crease the tnaxilntun se11te1l.ces that cotirts ca11 impose for et1vironme11tal crimes (Bates 2019: 730-731). Indeed, Cole l1as noted t11at bet\ivee11 tl1e late 1990s a11d 2008 "the penalties i1nposed by tl1e courts ha[d] increased s11bstantially" (Cole 2008: 14). Other 11otable legislative reforms ha\7e achtally aba11doned tl1e crini.il1ai lav1l altogetl1er it1 fa,rour of other mea115 tl1at are arguably more flexible at"l!d creative i11 securit1g environme11ta l coinp lia11.ce and ren1edia tion. w 11e11 complia11ce has failed. For example, the EPBC Act, tli.e Protectinn of the Environ'fnent 0peratinns Act 1997 (NSW) a11d the Environwlent P rotection Act 1970 (Vic) all allo"\v regul ators to enter in·t o a form of agreen1ent, called an e11forceable tn1dertaking '4vitl1 'tl1ose w~10 are iI1 breach of those Laws . Baird (2011: 8) l1as noted, ~1owever, tl1at U1is 1nechanism has typically been u.sedl where the enviro11.n1ental harm cattsed has not beet1 sigtillicai1t and not caused \vilfully. 1

1

Agreements s·u ch as these are able to be enforced w l1en t11e offet1ding party has failed to cotnply. Bates (2019: 729) 11otes tl1at the benefit here is that this regu1atory tool frees up reso11rces without con1promisit1g the e11vironmen.tal outco1ne . 1

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DIALOGUE BOX 9.5

Jones v Glenorchy City Council (2006) 145 LGERA 76 [9.120]

The decision of the Suprem,e Court of Tasmania in .J ones v GJenorchy City ,C ouncil (2006) 145 LGERA 76, concerned a penalty imposed by a magistrate upon the Glenorchy City Council for the accidental discharge in March 2004 of approximately 3 m illion lirtres of untreated sew,e rage from the City Council's pipelines into the Derwent Rwer in Hobart•s north. The overflow was caused by tree roots that had blocked the relevant sewerage pipe. Uncharacteristically of s,e werage pipes in the area, the overflow caused by the blockage did not flow out of an inspection and maintenance hole at street level but, rather, flowed into stormwater pipes that we re located underneath the sew,e rage pipes. The Crty Council was unaware of the existence of these pipes as they were not indicated on its sewer mapping syst,e m. After the inc ident the City Council undertook a significant audit of storm wat er pipes that had connections with sewers and undertook appropriate works to eirther remov,e the connections or to install alarm syst,ems. There was no evidence that human health was affected or that there were any adverse effects to flora and fauna. 1

1

1

The City Council was charged with, and pleaded guilty to! br,e aching s 51A(2) of the Environmental Management and Pollution Control Act' 1994 (fas) . .section 51A(2) provided that it was an offence to: deposit a pollutant, or cause or aJIJow a. pollutant to be deposJtedi In a. place or position where It cou ld reasonably be expected to cause materlall environmental harm. The Environmental Manag·e ment and Pollution ,C ontrol Act 1994 (Tas) defines various degrees of environmental harm ranging from environmental nuisance to serious environmental harm. The Act provides that environmental harm is to be treated as material envi1ronmental harm if : 1

(~)

it consists ,o f an ,environmental nuisance of a high impact or on a wid e sca~e; or 1

(ii) it involves an actual adv,erse effect on the health or saf,e ty of human beings that is not negligible; or (iii) it involves an actual adv,erse effect on the environment that is not negligible; or (iv) it results in actual loss or property damage of an amount, or amounts in aggregate~ exceeding the threshold amount. The maximum penalty for a body corporate for breaching s 51A(2) of the Ac1 was a fine not exceeding $120,000. The penalty imposed by the magistrat,e was approximately 2% of that maximum: $2,500. The Tasmanian Director of Public Prosecutions appealed the penalty. It argued that the magistrate had given insufficient w eight t o t he cu lpabi Irtty of the City 1

Chapter 9 Env~ ronmental cr~ me

223

Counci l~ the need for

the sentence to reflect the seriousness of the offence and the need for both personal and g,eneral deterrenoe and that too much weight had been accorded to penalties awarded in other cases. The Supreme Court acoep1ed these arguments and also added 1hat it appeared that the magistrat,e had also taken into account the fact that no actual environmental harm had occurred, despite the fact that 1he offence with which the Girty Counci ~ was charg,ed did not require actual environmental harm. The Supreme Court considered that the offence was seriousi that the City Council had admitted to not taking reas,onable measures to prevent the spill and thatthe works that the Girty Council undertook after the incident could have been tak,en before it. The Supreme Court a~so considered thai the reaso ns for no1: doing so were purely budgetary and it concluded that the penalty needed to act as a deterrent both to the Girty Council and to others and that the $2,500 fine imposed could not have had such an effect. 1

Enviro11me11ta I civil penalties 1

[9.130] At1other sig~iificant exa1np.le of sl1cl1 reforn1 is the use of environme11tal civil penalties. Matnl (1992: 1799) has described civil pe11alties as a ''l1ybrid form of sanctio11 that lies it1 behNeen the cri1nir1al la\'\' ai1d civil lavv and ·w l1ich can address l1arms to society~ th.o ugh beitlg sinular in otl1er respects to fi11es". Put simply, ci vH peti,al ties are pe1ial ties itnposed for contraventions of the la\\1; however, the contravention 11eed only to be proven to H1e civil standard ,o f proof: 011 the ba]a11ce of probabilities. 1

1

Civil pe11alty schemes have long been a feature of A11stralian cl1sto1ns a11d excise regulations and are also used n1 trade practices (Bea to11-Wells 2006) a:nd corporations legislatio11 (Welsh 2009). TI1e EPB C Act also co11tain.s a civil pe11alty scl1en1e. (See Dialogue box 9.3 for an exa111ple of tl1e impleme11tatio11 of this civil penalty scl1eme.) 1

E11viron1ne11tal civil penalties scl1emes are, tutlike the penalties able to be imposed by tile critninal law· process, designed to enable creative and flexible pe11alty packages. They provide tl1e regulato.r \¥ith th.e ability to recover tl1e tn1e costs of envirorune11ta1. damage, and tl1e financial be11efits accri.ied as a result of any breacl1, while at t11e same titne, re1no,,i11g the often onerous forensic burde11 that arises du.e to tJ1e 11eed to prove offences to the criminal sta11dard of proof (Woods & Macrory 2003: .4). 1

Tl1ese reasons are reflected in the decision to introduce a11 e11viro1l.mental civiJ penalty schen1e into the Soutl1 Australia11 Environn1ent Protection Act 1993 (SA). The second readit1g speech for the 'Bill that introdt1ced the scheme into Pal'liame11t indicated that tJ1e scl1eme \Vas motivated by tl1e successful use of enviro.n.me11tal civil penalties i11 the U1rite d States for over 25 years. It \Vas thottght that tl1e reduced burden of proof a11d the ability to .n egotiate at1 agreed civil penalty out of co11rt V1lould create "'1 a more effective and efficient e11vironn1ent protectio11 enforcement systen1 Ifor SoutJ1 A.ltstralia]u.

224

Crime and Justice~ A Gulde to Crlmlno~ogy

Its i11troductio11 was also .it1tended to aligi1 the So,u th A11stralia11 E11vironment Protection Authority's (EPA) regtdatory a11d entorceme11t po,vers \Atith 11 conunWlit)l expectatio11 fo.r ,p rom,p t p l1nislune11t of 1e11viromnental] offenders". It was also co11Sidered that tl1e '~immediacy of th.e pt_mishment to the contravention [\\7ou1d] create an it1creased d eterrent to polluters in South Australia", a :n d that it wot_dd th us be a ..., more efficient option.for enforcemei1t" (South Australia, House of Assem.b ly, Hansard, 22 Septe1nber 2004, p 199). Gillooly a r1d Wa.llace-Bruce"s srunmary (1994: 270-271) of argltments botl1 for ai1d agait1st the u se of civil penalties re,1eals the stro11g tensio11s tl1at exist behvee11 the competi.J1g goals of pm1islliune11t ar1.d suppression of antisocial behaviour 011 the 011e l1and art,d the level of fair11ess that is to be accorded to U1e person accused of such behaviour. Tl1ose vvho advocate civil pe11alties argue tl1at they offer greater deterrent because the civil standard of p roof is a11 easier proced11ralhurdle for regulators to overcome. Those who support civil penal ty schemes also argtie that t11ey do not result in a cortviction and, therefore, the offender is 11ot stigmatised by a cri1ninal co11viction., Accordi11gly1 the p rotectio11 of th e criminal sta11dard of proof is unnecessary. It is also argued tl1at civil pe11al~y sche1nes can increase the protections that would otherwise apply in 11orn1.al civil coltrt p roceedings so as to a cki1owled ge and take into a ccount tl1e seriousness of a findi11g by tl1e Co11rt tl1a t there l1as been a co11tra v·en tio11. Ot1 the otl1er hand, it is argued , for ex.a1n ple, that it is not simply a conviction t11at stigmatises: t11at the seriottsness of the misconduct and adverse publicity stigtnatise an.cl that these factors need to be taken into acco1mt Contrastingly, and referring specifically to en,riro11mental critnes, Lip1nru.1 (2010: 104) has war11ed that civil pe11al ties 1nay actually fail to stig1n atise enol1gl1 and has arg11ed that exem.p lary damages are warranted in environ1ne11tal civil petlalty schemes. Ho"\\7 ever, it has also been argued tJ1at no ame11d1nent to rules of civil procedltre will match the .p rotectiotlS afforded by crilninal procedure, sucl1 as the presu1n,p tion of ii111ocence and the criminal s tandard of proof. Thus, it is argued tl1at if one innocent person is lvro11g1y pe11alised, tl1e11 tl1e efficie11cy gains of t11e civil ,p enalty sche1ne are acl1ieved at ...,too high a price'' (Gillooly & \Nallace-B.r uce 1994: 271). 1

DIALOGUE BOX 9.6

Environmental crime in practice Notwithstanding t he diffi cu ltiies~ noted in [9 .20], in defining the concept of environmental crime. on a practical ~evel Bricknell (2010) has developed a list of key areas that are •'recogn ~sed in Austral ia as ,envirunmental crimes" (Bricknell 2.0 10: xi). These are:

[9.140]

1

Chapter 9 Env~ ronmental cr~me

225

• pollution or contamination of air, land and water; •

illegaJ discharge and dumping of! or trade in, hazardous and other regulated waste;

•

illegaJ t rade in ozone-depleting substances;

•

illegaJ! unregulat ed and unreported fishing;

•

illegal trad e in (protected) flora and fauna and harms to biodiversity;

•

illegal logging and Umber trade;

•

i11egal native veg,etatio n c Iearance; and

•

water theft.

1

EXERCISE BOX 9.4 1. Which jurisdictions, federal or stat e or federal and state! p lay a rol e in enforcing t he environmental standards in re lation to the abovemenUoned env i mnmenta~ crimes? 1

2. Do aH forms of pollution or contamination of air! land and water oonstitut,e environmental crimes in your jurisdiction? Locate and consider the role of the EPA (or similarly named authority or environm,ental regulator) in your jurisdiction.

CONCLUSION [9.150] nus chapter has devoted much of its consideration to modem Australian envirot1ffiental legislation it1 its endeavour to explain l1ow the concept o.f e11vironn1ental crime features as a part of those la\vs.

This cl1apter l1as noted that while the use of the crin1inal lavv is a fundatn ental compo11ent of n1odern e11viro1unental law in At1stralia_, it is not the 011ly i1lStrume11t available to environmental regulato.rs. Tlris chapter has ide11tified other in1porta11t tools t11at rely t1ot 011 the criminal lalv but on the civi] lavv. These tools are complementary rather than mutually exclusiv·e alternatives,. .1:~dministrative at1d civil ren1edies can be used .r roactively and flexibly in comparison. to th e cri11m1al lav•l, w h icl1 is u sed to react to a breach of the lavv. It has also described it1 detail the 11se of another regulator}' tool: e11virot"Ullental civil pe11altiessuch as tl1e scl1e1ne co11tained1 for example, in the Commonwealth'·s EPBC Act and ir1 the legislati on ad1ni11.istered by tl1e SA EPA. This chapter l1as also exa1ni11ed some of the proble1ns as.so-eiated wit-11 the use of tl1e criminal law as a n1ea11s of e11forceme11t of enviro11111ental s tandards. Tl1ese problems are not only .r elated to tl1e regulator's reluctat1ce to use the crii_n.itlal la\v to prosecute offend ers. T11e complexities of provit1g a b.reacl1

226

Crime and Justice~ A Gulde to Crlmlno~ogy

to tl1e exactit1,g cri1ni11al stan.d.ard of proof a11d the difficulties inhere11t in setting appropriate penalties by coltrts are examples that 11ave been 11oted. P'r oblen1s Sltch as these iI1dicate that the criminal law a11d tl1e criminal justice system itself tnay be at1 ilnpedi1nent to the effective use of tl1e criminal law in ei1viron1nental 1natters. Reforms that overcome such difficulties ai1d that enhance a regu.lator's ability to deter e11viron1ne11tal crime are \velcome. An increase in t11e use by regulators o.f all the available regulatory tools, iI1clt1ding the criminal lav1l, is also '\¥elcome. Hovvever, as Part 1 of this chapter has explait1ed, our liberal capitalist society ru1d economy have a11 anthropocentric 11otio11 of wl1at co11Stitutes an ei1viro111ne11taJ crirne. La\v reforms that take place solely witl1m tl1is ru1thropocentric para digtn \Vill fa il to deliver com1"">rel1ensive protecti011 for the environme11t. Instead, the environn1ent iI1 Australia and it1 other colmtries, where enviro11mei1tal laws a.re framed iI1 a similar way, will contit1ue to s11ffer .it1 tlte \vay that was identified at the outset of th.is chapter. 1

QUESTIONS 1. Can yo11 identify ru1 environmental crime that is currertUy occurrn1g or

has rece11tly occttrred in Austral ia? \Nhy is it an "environme11tal crh.ne''? At1alyse the response (if at1y} of tl1e relevant environmental regttlator Is. 1

2. Wl1at '~social values'' and "government policies,, (Bates 2016: 21'9) does environme11tal law in Atustralia prote ct and give effect to?

3. :D oes the developme11t of ilmovative enforceme11t mecl1anisn1s tl1at use civil law i11s tead of the c.ri1ninal la \V indicate tl1a t tl1e crin1inal la \V has failed to .p rotect the e11vironment?

4. Do you agree with Lip111an. (2010: 104) tj1at tl1e use of civil penalties rnay fail to s tigmatise enough and ·t hat, as a res11lt exemplary damages are warranted in environme11tal civil penalty schen1es?' 1

5. Obtain a copy of the compliance and enforcement policy of a11 e1l viromne1l tal .regulator it1 the jurisdiction in ·w hich you live. Wl1at a.p proach to co1npliance and enforcement d oes it reveal? 1

REFERENCES Abbott

c 2005

00

Regu~ato ry

Entoroement of PolILJtlon Control Laws: The AustralIan Exper~en ce~ 1, Jot1rna/ or Environmental Law i vo,I 17i no 2 1, p 1 61.

Ayers I & 8 ralt h\'Ltalte J 1992, Resprisorun ent and dete11tio11 related han115 in Libya is clearly the 011goit1g conflict in the cotmtry. Conflict a:n d war, a11d partiC"ularly tl1e so-called \Var against terrorism, l1ave also fig11red pro1ni11e11tly over t11e last two decades in the .r epurposu1g of tl1e prison for war- and terror-related "work''. Judith Butler (2004: 53) has terJlned this configuration of po\'\re.r "the ~1ew war prison", vv"ith the S"s Gttantanaino Bay s tandit1g as tl1e ap otl1eosis of tl1is type of it1stitution. Tluee things sl1011ld attract 011r notice here. First, \vhi1e p risoners of war have alv1,rays been detait11Led "Yv·i1en cap tured, an d in tl1e .r ost-WWIJ era tl1eir treahnent has been governed by iriternational la\v under t11e Geneva Conventions, tl1e 11ew \->Var p riso11 marks out a very special tttrn. Guantanamo Bay emerged in the im11lediate after1nath of the 9/11 terror attacks as at1 un usttal and special measure 1111der cond itions of 1en1ergency Perl1aps tl1e d efini11g feat11re of 11 Gihno'"', as it has come to be called1 is that the . S gover11Dlet1t defu1.e s it as a legally exceptional space: territorially outside the US, at1d thtts n.o t sttblect either to do1n estic us lavv~ or to constitutio11al p rotections, at1d as a prison .f or so-called "illegal enemy con1batants'', not sttblect to tl1e Geneva ConvenJions eiU1er. Giorgio .t.\ga1nbe11 (2005: 1) l1as influentially 1des~ribed this process as creatit1g a .r'state of e:xceptio11 \vh erein prisoners are placed beyond la\v's protective reach a11d thus cease to live as political subjects. Red11ced instead to \vl1at l1e terins a kind of "baxe life" - corporeally living but politically d ead Agambe11 argues H1at we axe "Yvitnessing the emergen~ce of a ''Jn e\v p aradi gtn of government" (p 1). Its novelty notwitl1Standi11g 1 tl1is lessotl in gover nru1ce is certainly 011e that the Attstralian gover1111le11t 11as sought to replicate "Yvitl1 its offshore migration d eter1tio11 ce11tres, places defined by exactly this kind of political lim bo and sl1edding of lon.g -held legal protectio11S. 11

.1

•

1

1

11

Ch apter 21 Imprisonment and detentlon

555

Second, we can notice that this removal of .legal protections, wl1ich itnportantly inclt1de external o·v ersig11t and f"lublic nl01litoriI1g, creates the co11.d.itio11S for wl1at Michael We.lcl1 (2017: 729) 11as e\rocatively described as 11{.ioing special tlungs to special .P eople .it1 special .P laces": in other w·o rds, tortltre. Thus, as the Gitmo 111odel came to be replicated ii1 otl1er places, such as Abt_t Ghraib Prison in. Iraq, so too did. tl1e abttsej' degradation a11d torture of i1risone.rs follovv. The .A bu Ghraib pl1otos sho,ving detainees ch.ained to vv·allsj' subject to n:1ock executions, harassed by vicious military dogs and degraded by naked11ess or forced sexual simulations all reveal the very dark sid e of closed total institutions. As 011e priso11 guard a t Abu Ghraib p11t it: .r'that place turned me into a tnonster". For another}' th.ere \Vas the fear o.f v.rhat his participation in tl1e abuse and torh.tre of priso11e.r s vvould do to his own me11.tal state: 1

it "~ as a door that I was afraid to \~ alk through. If you \Valk through it, at w hich point do yolt say ifs enough? \i\fhat's cruel enough, holv do you go back .fro1n that? And I vvas afraid that I just \-vouldn t cu1ne back ... that I would just get lost. {[G hosts of Abu [G hraib 2007) 1

At1otl1er feat11re of tl1e new war prison is tl1erefore its re1noval of tl1e carefully established protections agait1st tl1e dark side of i1npriso11mei1t, protections what is n1ore, tl1at v1ile know from experience at the · orthern Territory's Don Dale Juve11ile Detention Centre (Royal Com1nission. 2016) a11d t11e failure .. to protect agaitlSt torture in the Attstralian migration system (UN 2015) are alv1lays fragile and at risk of erosion. Fitl.allyj' we inay also notice that the ne\v \var prison borrows 11eavily front t11e dotnestic prison. Ilot only in forn1 but also via specialis't recruit1nent of domestic prison staff to ensurre it really works like a prison. Fo.r rY1icl1elle Brown (2005: 983) w l10 has tried to go behind tl1e ;'fascination and relentless public speculation concerning how ave.rage America11s rcame] to be private, now pub.lie, torturers" in Abu Ghraibj' it is precisely the Army's recruitment of low-level domestic pris,o n staff that prov1des a key to 1u1dersta11!ding tl1e torture progran1 t11ere. Elsewl1ere, at what a.re now 'videly known as '.# d ark sites,~ - tl1a t is, secret war prisons vv here terror stis.p ects are take11 specifically for "''e1ma11ced it1terrogation" - it is only recen.tly that \Ve have lear11ed n1ore of the role of .se11ior priso11 experts. For exa1nple, at the notoriotts Salt Pit prison outside Kabul. in Afgha11istan, Federal B11reau of Priso11S officers \Vere flown in from tl1e . nited States t 0 provide training and help establish tJ1e facility's protocols. Informatio11 filtering ottt \ria Senate Intelligence Comn1ittee investigati.011s and a 2016 civil liberties law suit .reveals a startli11g level of collttsion betvvee11 the CIA a11d do1nestic priso11 adn1inistrators, ill11strati.I1g just l10\11l 1n·u ch cross fertilisatio11\Vas111ecessary for establishing the 11e\iv 'Vl/ar pris,o n (ACLU 2016; International Critnit1al Court 2019). 1

CONCLUSION [21.220] This cl1apter has p laced imprisot1Illent alo11gside other for1ns of involuntary detention to stim11late tl1mking about tl1eir similarities and differet1ces. Typically, in criminology, in1prisonn1ent is dealt w itl1 on its o\-vn ¥vl1i]e phe11ome11a like imnugrati011 detention are relegated as side-bar

556

Crime and Justice~ A Gulde to Crl mlno~ogy

issues i1nplying, perhaps, their' lesser crimmological importru1ce. Holiveve.r, for critical criini11ologists, i1nprisonme11t is just 011e form of .ll1voll1ntary detention. It is regttlated by certait1 rttles: it tn ust be .r receded by an offence ru1d a criminal trial co11ducted under l1igh procedural a11.d evide111tiary stat1{.iards, and it cannot be u.sed for lengtl1y .r eriods to detait1 a person 11ot yet co11victed. It is therefore interest.ll1g and i111portan.t to ask V1lhy the State def.it1es other forms of detention (s11cl1 as that of asylrn11 seekers) as "11on11en.al ,, and therefore 11ot gover11ed by tl1ese rt_des and protec tio11s. Tl1e cha.p ter has also encomaged a genealogical approach to studying detentio11, linki11g curre11t for111s of co11fme1nent ·w ith tl1eir historical at1tecedents and traci.J1g the assttn1.ptio11s and anxieties u11derlying conten1porary .P olicies and p ractices. Just as ex-,detait1ees carry the psychological scars of imprisot1Illent, so our present-day n1odes of penalty carry sl1ado·w s and imprints of the past. Con.temporary Australiru1 anxieties about asylum seekers have clear 11istorical roots i11 notio11s of ene1ny alien.s and quarantit1e statio11S,; 11owever, the devalt_ted status accorded such .r eople also has some co1l.ti11uity a11d affitlity with IDndigen.o us Australians' treatment. Prison is tised as a tool in the governance of h1digenous people, as revealed by t11eir massive o·ver-representation in.prison: Ind ige11ous male ini.prisonn1e11t peaks at a rate of 7I103 per lOOIOOO, co111pared Vrlith 565 per 100,000 for sameaged 110JD1-I11digenous males. Think of the differences in life experie11ces and opport1nuties these fig11res represe11t. 1

Tl1e cl1apter looked at three well-kno\vn approaches to explainit1g i11lprisonme11t. Each represents wl1at is termed a "general theoryfl of imprisotlment, meanit1g t11at it seeks to explain the wl1oie practice of impri.so11Dlent. But is it possible to do so? Eacll. approach seems to co11tait1 ele1ne11ts t11at are t1seftd for hel pi11g us rmders tand ce.rtai11 a spec ts of i1nprisonmen t. Wac,q t_tru1 t' s Vilor k, for' exa1np'1e, was particularly focused 011 the relatio11ship behN'ee11 neoliberalis1n, poverty a11d the replacemer1t of \velfare \lilith vi.lorkfare, 'vlrich l1as important resona11ces for Indigenous itnprison1ne11t in Australia,, At tl1e same ti1ne, though, America is a differe.t1t coil.text to Atistralia. Otrr appreciation of southern criminologies points to the need for tl1eory fro1n the soutl1, as lvell as tl1e global north. Perhaps settler colo1ualf.post-colonial cri1ninology offers a inore povv·erful lei1s for tu1derstanding tl1e over-impriso11ill.e.t1t of colonised peoples around tl1e vvorld,, But if Vile are meaningfully goit1g to brit1g in1priso1unent a11d dete11tio11 together, do ·w e 11eed a vvider theoretical frame? Or does the proble1n of e11compassing everything - frotn "ord.it1ary', domestic itnprisonnleJn t m Au.stralia to the "extraordinary', detentio11 of trafficked wo1nen a11d children in Libya - stram t11e idea of a single theoretical model? It ren1ait1s for tts as critical criminologists to attempt su1ch an exte11sio11. It is time to replace tl1e wor11-out inodel of cr.llninology as an admittlstrative scietl.ce of .P olice.-. courts atl!d prisons vvith something that will pro·v ide a more ge11eral explru1atio11 of the rise of variou.s forms of involtn1tary detentio11 it1 our society and tl1e contiI1uing and enduritlg appeal of p.r isons a11d prison-like places as tl1e

Chapter 2 1 Imprisonment and detentlon

557

solution to social problems. Furtl1er, our discussion of tl1e ,d ifficulties of refor1n - no ting that "itnprovil1g" refor111s tend only to furtl1er legitimize pris,o ns - su.ggests we rteed to confro11t head-on. th.e politics of confinen1ent. We kno'\Al the same kinds of people are being targeted: the .r oor, the powerless, Indigenous people, tl1ose seeking sa11ctuary. We inust now· work a critical politics il1to our so-called critical criminology.

QUESTIONS 1. (a) What are the relationslups behveen. ptmislunet1.t, inlprisorune11t ai1d detei1tio11? (b) When is a priso11 not a

~'priso11''?

2. Look at Figltre 21.1 Australiru1 :· ational Impriso11m.ent Rates 1970-2019. How can you 1e xplain the rise it1 priso11 ttse? 3. Wl1at do you thiti.k makes impriso111nent so attracti,re to politicians, policy inakers a11d the public that they apply it to reftigees a11d asyiun1s seekers \Vh.o have committed t1:o crin1e?

4. Thitlk aboltt the harn1s of im11risonme11t at1.d dete11tio11. - which is tl1e inost significant, i11 yotrr viev1l? \¥hat cot1ld .h elp redt1ce it?

5. What do we mean when we refer to tl1e dark side of imprisonment, and \Vh.at do you thiJ1k it is about closed pe11a1 spaces that allows abuses and harn1s to be perpetrated there?

A.C KNOWLEDGMENTS Research for the first edition of tl1is chapter Vilas supported. by an Aushra1ia11 Research Cou11cil Discovery Project Grant ·o P0877331. We are grateful for Ui.e assistance of )0110 Stephens and Vivi.an Mercadal with imprisonme11t statistics. Material on. Austral ian iinprison1nent is available from the abovefunded Australian Prisons Project "\iVebsite at cypp.unsw.edu.au.

Af-Kateb v Godwin [2004] HCA 37 Chu Khang Lim v Minister for Immigration Local 1 G ovemment & Ethnic Affairs [19921 176CLR 1 PlaJntltt M7612013 v Minister for lmmlgratton and Citlzensh·l p [2013] HCA 53 PlaJntltt M4 712018 v Minister for Home A/fairs [2019] HCA 17

REFERENCES Au stranan Bureau of Statlstlcs {ABS) 2019a 1 Correc.tlve Services~ Aus.traJ/a, June Quarler 2019, cat no 4512.0 1(ABS~ Canberra). 1

558

Crime and Justice~ A Gulde to Crlmlno~ogy

AustraHan Bu ireau of Statistics r(A8S) 2019b, Prisoners In Australia', 2019, cat no 4517.0 {ABS, Canberra). Amerlcan C~v~~ U berUes Un Ion (AC lU) 201 6~ Declaratlon ACLU v DOJ BOP at http5://\rurww. documentclo ud .org/documents/3222662-DeclaratlonACLUvDOJ -BOP.html#documenVp11 J a32S818. 2017 ~ Libya 1s Dark Web of 1 Coltuslon: Abuses against Europe-Bound Retugees and Mlgran ts {Amnesty lnternaUona~, lon don).

Amnesty

lntemauona~

Agarnben G 20 05, State of Exception (U nlverslty of Chlcago

Press ~

Ch lea.go and London).

Austranan Human Alights Comm lsslon (AH RC) 2015. ~ The Forgotten Children: National Inquiry fnto Children In Immigration Detention 2014 (Report to the AustraHan Human R~ghts Comm lsslon}. AustraHan Human Alights Comm lsslon r(AH RC) 2016 ~ The Health and Well-Being of Children In Immigration Detention {Report to the Au stranan Human Rights Comm lsslon}. AtJ5,traHan Institute of Health and We1fare (Al HW) 201Bi Youth DetenUon Poptdatton In Austra1'a 2018, b ulleUn no 145, cat no J UV ·12a (AlHW, Canberra). .AustraHan Law Refomi Comm lsslon (ALRC) 2017 i Pathways to Justice - An Inquiry Into the Incarceration Rate of Aborlg~·na1 and Torres Strait Islander Peoples (AustraHan Governmentp Canberra).

Anthony T & Ba~dry E 2017 ~ '1FactCheck Q&A: Are Indigenous Australl ans the Most ~ncarcerated People on Earth? '1, The Conversation, 6 June 2017. 1

Ant hony T & Cunneen An nan dale). Arch~bald

c (eds) 2008, The CrltlcaJ Criminology Companion {Hawkins Pressi

L 2006 DecolonlzaUon and Healing: Indigenous Experiences In the United Sta:tes1 New Zealand, Austral/a and Greenland {Tne Abor~g ~na~ HealIng FoundaUon, Ottawa). J

Arrigo BA & M~ lovanov1c D 2009, Revolution In Penology: Reth~"nklng the Society of Captives (Rowman & lltUeflefdi Maryland}. Atabay T 2009 ~ Handboo,k on Prisoners with Special Needs (UN ODC, V~enria) . Bafdawl s et al 2011, rliQ~der Prilsoners: A Challenge tor AustralIan Correctilons", Trends & Jswes In Crime and Crlmlnal Justice, no 426 (Austral~an Institute of Crimino logy~ Canberra}. BBC News 2019, ~'Agelng PPilson 22 October 2019

Popu~atlon

'Sees

Offlcit~rs Work~ng

as Carers'"~ BBC News,

1 •

Blagg H & Anthony T 2019, Decofonlslrrg Crlmlnology lma.glnlng Justice In a Post colonial World (Pa~grave M a.cmJ IIan, London). Brown M 2005i 'SettIng the Co ndlUons~ for Abu American Quarterly~ vol 57 ~no 3i 973-997. fJj

1

Ghra~b~

The Prison NaUon Abroadni

Brown M 2011 Preventilve DetentJJon and the Control of Sex Crlme: Receding Vlsforis of Justice ~n Australlan Case LavJ' Alternative Law Jotirnalt no 36 , pp 10-15.. i

fJj

1

,

Butler J 2004, Precarfous Life: The Powers of Mourning and Violence (Versot London & New York). J & Burton M 201Bi F-' Factors Assoc lated with Breaches of Home Detention arid Returns to Custody Post-Home Detention In South Australla"j Curren:t Issues In Criminal Justlcei no 30 ~ pp 35-56. Ca~e

Cal 11nan I 2013j Review of the Parole System In Victoria (Department of Justice - Correctllons Vlctorf~ Victoria}. Car~en

P 2012 f "Women's Imprisonment: An

Crltica Penal y Poder, no 3 ~ pp 14B-157.

~ntroducUon

to the Bangkok Rules"i Revlsta

Ch apter 21 Imprisonment and detentlon

Carlton B & Russel ~ E 2 101

559

e., '~Entrench1lng Women's Im p nlsonment An AnU-Carcera~

Critique of R lghts Based Advocacy and Reio rm'1 , ~n Stanley E (ed) t Human ~ghts and

Incarceration: Critical Explorations (Palgrave Macm lllan , London) pp 181 -205. Clemmer D 1940, The Prison Commun11y (Christopher PubJ lshlng, Boston). Commission tor Ch lldren and Young Peop~e (CCYP) and AborlglnaJ and Torres Strait Islander Advisory Board (ATSIAB) 2001 i Discussion Paper on the Impact on Aboriginal and Torres

Strait Islander Ch#dren When Their Fathers Are lncarcer:a:ted (Queensland). Cunneen C .201B, ' Sentenclng t Pun~shm 1ent and Indigenous Peopre In Australlla'1 , Journal of Global Jndlgenelty r VO~ 3 t no 1i pp 1-22. 1

Cunneen C 1 Baldry E, Brown Dt !B rown M , Schwartz M & Stee~ A 2013, Penal Culture and

HyperfncarceraUon: The Revtvat of the Prison (Ashgate Pu blIshlng, A ldershot). De Giorgi A 2 006, Rethlnk~'ng the Po!ftlcal Economy of Pun~'shment: Perspectives on

Post-Fordlsm and PenaJ Pollt1cs (Ash gate P ub1 lshln g, A~dershot). DeK.e seredy W & Draglewlcz M (eds) 201B, Routledge Handbook·of CrlUcaJ Crlmlnol-0gy 1

(RouUedge, London). Doessel D 20091 "A H~storlcal Perspectl!ve on Mental Health Services ~n Austral~a: 1 SB3-S4 to 2{)03,....!03", AustraJJa.n Economic History Review~ no 49 , pp 173- 197. Equal Opportunlty Commission V lctor"a 2006, Women Prisoners In ~·ctorta ~ocv, Me1bourn e). Foucau lt M 1977 , Disc!p#ne and Punish: The Birth of the Prls.-0,n (A Hen Lane, Lonn on). Garland D 2019, ·" Read ing Foucault : Ari Ongoing Engagemen t " ,. .Journal of Law and Society n,()r

46, pp 640'-6£1.

George A 2006 t 'Women and Home Detention : Home ~s Where th-e Prlls.on Is'', current Jssues

In CrlmlnaJ Justice~ no 1 B, pp 79-91 . 1

Georg~ou

P 2-00B, Inquiry Into lm,mlgra.tlon Detention In Australia t DIssenUng Report (House of

Representatrrves, Can berra). 1

Ghosts of Abu Ghralb 2007 , HBO Documentaries. G 11 more RW & Kilgore J 2019 t "The Case for Prison Abolttlo n'F ~ The Marshall Project 19 June 2-0. 1 Si at https:/Avww. th emarsha~~proJect.org/20 1 9/06/1 9/th e-case-f'or-ab olIUon. Goffman E 19s·1, AsyJums: Essays on the Socia.I Situation of Mental Patients and Other

Inmates

(Pen gu~n

Booksj Harmondsworth}.

Green JP & Ea.gar K 201

o, ·"The H ea.Ith of People ~n Australlan Immlgratilon Detentlo n

Cen tres", Medical Journal of Ausfralla 1 vol 192 t no 2i pp 65-70. Grewcock M 201 o, Border Crimes: Australia~ War on Jlltcit Mfgrants (lnstJtute of C rlm~nology Presst Sydney). Grant A 19991,

~'Eld er~y

In mates.: ~ssues for Austral la", Trends & Issues In Crlme and cn·m1na1 1

Jus:ttce, no 115 (AustraHan Institute of Haney

c rlmlno1ogyi Canberra).

c 2003, "The Psycho,logh~al Impact ol Incarceration: lmpJtlcat lons tor Postpr~son

AdJu stment" i In Travls J & Waul M {eds) t Prisoners Once Removed: The Impact of

Incarceration and Reentry on

CfJ'/ldren~

Fammes, and Communrttes (Urban lnsUtute Press 1

Was hlngton DC) pp 33-66. Haney C .2 009, "A Culture of Harm : Tam Ing the Dynam lcs of Cruelty In

Criminal Justice and Behaviour, vol 35 no t

Human Rights Law Centre r{HRLC) 2016i

8~

s uperrnax Pr~sons "i

pp 956-984 .

~Aborlglnal

Justice Agency Seeks High Court Appea~

to Set Safeguards around PoUce Powers", HRLC News, 31 March 2016.

Crime and Justice~ A Gu lde to Crl mlno~ogy

560

Human Ri ghts Law Centre (HR LC) 2017 , 0ver-Represented and Overlooked: TtJe Crisis of 1

AborlgJnal and T-orres Strait Islander Women's Growing Over-Jmpn"so,nme.nt (HR LC, & change the Recordi Sydney).

Me~bou rne

lnternatlonal Crl m~nal Court 2019i Victim' Representaflon: Afghanistan. Annex II, ~CC-02/1738-Anxl I 10-06-2019 2/61 EC PT OA2. Johns D 201 ,s ~ " Confronti ng the

D~sab~~ng

Effects of· lmpr~sonment Toward Prehabmtatlon",

Socfal Jusflce, vol 45, no 1~ pp 27-54. Keyzer P 2013 t Preventive Detention: Asklng the Fulldame.ntal Questions (lntersentla, Caimbrfdge). Lacey N, Sosklce D & Hope D 201B, " Understand~ng the Cu~ture~

Determ~nants

of

Pena~

Polley: cr~me,

and Comparative PolllUcaJ Economy"~ Annual Review of Crlmlnologyt no 1 ~ pp 175-217.

Ll eb1lng A & Maruna s (eds) 2005 t The E«ects of lmprtsonment' (Wlllan ~

cu~ lompton).

McCoy B 200B, Holdlng Men: Kanylmlnpa and the Health of AoonglnaJ M'e.n

{Albor~glnal

Silldles Press, Canberra). NSW law Refomn Commlsston 2015, Report 142: Parole (Law Reform Comm ission~ Sydney).

NSW Paril lament .2 001 ~ New South Wales Select' Committee. on the lncr:e.ase In Prisoner Populaflon: Final Report {Sydney). Og Ilvle E & Van Zyl A 2001 ,, 'rvoung Ind lgeno us M aJles, Custody and the Rit es of Passage" t Trends and Issues In Crlme and Crimi nal Justice No 204 {Au strallan ~ nstlltute of c~mln ofogyt Canberra). 1

Pratt J 2011 :1 ['The Internatil onal Dlff usJJon of P unit Ive Penalllty ~ or:I Penal Exceptlo nal Ism In t he

Un lted States? Wacquant v Wh ltrnan" Austral/an and New Zealand Journal or Crtmfnology, t

no 44, pp 116,_12B. Reeve K 2017,

~Wellfar1e

Cond lUonallty.:1 Benefit Sancti ons and Hlomelessness

~n

the

UK: Endln g t he 'Someth Ing for Nothin g1Culture' or Punish Ing tlhe Poor?u~ JoumaJof Poverty 1

and Soc/al Jus:ttce, no 25:1 pp 65-7B. Rikard R & Rosenbeirg E 2007, "Aging Inmates: A Convergence of Trends In the Amerlcan Crl m~na~ Justlce System 3•, Jouma1·of Correcttonal Health' Ca'fe, vol 13 t no 3:1 1

pp 15 0-162. 1

Royal Commlsslo n 2O16, 1

Report of the Royal Commission and Board of Inquiry fn:to, the

Protec:tfon and Deten:tfo.n or Children In the Northern T-enftory {Government ofi Au stralla). Rusohe G & Klrch helmer o 1939/2003 t Punishment and Social structurie (Transaction Pu bllshera t New Brun swlc k, New J ersey). Stan~ey

E & Mlhaere R 2018:1 " C ha.IIeng Ing Maori Imprlsonment and Hu man Rights Rltuallsm'"', In Stanfey E (ed)! Human Rights B.nd ,ncarceratloo: Or:ltlcal ExplorafJons (Palgrave Ma.cm IIIan, London} pp 79i- 1oe. 1

Steel Z~ SUove D, Brooks Ri M omartln S ~ Allzuh aJr~ B & Susljlk I 2006i r' Impact of lmmfg ration Det enUon and Temporary Protecti on on the Mental Health of Refugees", Bn"tlsh Journal of Psych,atry ~ vol 1BB, no 1i pp 5.S-64. Sotronoff W 2016, Queensfand Parole system Revtew: Final R~port {Queensland Serv~ces,

co rrectlve

Brlsbane) .

Tubex H, Brown D, Fre~berg A~ Ge~b K & Sarre R 2015, '" Penal Dlversl~y Within AustraHa"i

Punishment and Society, no 1 7 ~ pp 345-3 73 . Un lted Nations (UN} 1 ~J.BB, Body of Prlnctples for the Pro tectlon of All Persons under Any

Form of Detention or Imprisonment~ AIR ES/ 43/173~ 76tJh p lenary meetl ngi 9 December 19SS .

Ch apter 21 Imprisonment and detentlon

561

United Nations (UN} 19.S9, Convention on the Rl.ghts of the ChUd, AIRES/44/25 ~ UN Genera~ Assembly, 20 No,v em ber 19S9 (New York). Un lted Nations (UN} 2O14, Report of the Secretary-General on the United Nations Support Mission In LJbya, uNSC S/2014/653. Un lted Nation s (UN} 2o15, Report of the Special Rapporteur on Torlure and other ,CnJeJJ,

Inhuman or Degrading Treatment or Punishment, Juan E. Mendez~ NHRC/2S/6B/Add.1. Un lted Nations Support M lssl on In Libya {UNSMI l ) and the U n~ted NaUons Ottlce of the High Commlssloner for Human R.lghts 201B, Desperate and Dangerous: Report on the Numan Rights Situation of Migrants rJ'n d Refugees In Libya (Geneva). Vlctor~ari

Ombud sman 2015, Jnvestlgatlon Into the R,ehabllftatlon and Re.Integration or

Prisoners In Victoria (Victoria). Wacquant L 2002i ''The Curio us Eel ~pse of

P~lson

Ethnography In the Age of Mass

Incarceratlon'f, Ethnography, vol 3, no 4 1 pp 371 -397. Wacquant L 2009 1

Punlsh~'ng

the Poor: The Neollbeml Govern,men:f' of Social' Insecurity (Duke

Un lverslty Press, Durham). Wal ms]ey R 2018 t World Prison Population List (12th ed , In stltute for C~l mlnaJI Polley Research, Lon don). We1ch M 2o17, " Do~ng Speclal Things to Speclal Peopre In

s pee lal P~aoes: Psychologlsts In

the CIA Torture Program 11 , The Prison Joumat, no 97i pp 729-749.

FURTHER READING V 201a ~ Nordic NatJonaJJsm arrd PertaJ Order: Walling the we1rare State (Abl ngdonJ Routledge). Ba~er

Blagg H & Anthony T 2019, F-' Borders Are Strange P~aces: Borders of the State to Boundaries of the Prlson'r, In Decolonlslng Crlmlnology: Imagining Justice In a Postcotonlal World (Palgrave M acm~ IIan, London) pp 97- 132. Cunneen Ci Baldry E, Brown Dt Brown M , Schwartz M & Stee~ A 2013, Penat Culture and Hyperlncarceratlon: The Revival of the Prison (Ashgatei London). D~kotter

F & Brown I (eds) 2007 t Cultures

or Confinement: A History of the Prison In Africa,

AsJal and Latin America (CornelI U nlverslty Press, Nevi York}. Khallm L 2012 t Time In the Shadows: Confinement In Counterinsurgencies (Stanford Un~verslty Press~

Stantord}.

Morris N & Rothman D {eds) 1999., The Oxford History of the Prison: The Practice of

Punishment In western Society (O.x ford Unliverslty Pressi New York). Phll Hps J & Spinks H 2013i lmmlgratkln Detention In Australia~ Parliamentary Library Backgroi1nd Note (Parllament of Australla, Canberra). Reiter K & Koen Ig1A (eds) 2015 1 Extreme Punishment: Comparative Studies In Detention,

Jncarcera.tlon and Solftary Confinement {Pa.lg rave Macmlllan ~ N ev1 Yom).

USEFUL WEBSITES ArUc les on prisons and prison

~ssues,

hUps:/ /theconversatllon..comli'au/top lcs/p rlson-5421

ArUcles on Ind lgenou s IncaroeratJoni https://theconversatron .co m/au/topl cs/ In d~genous-~ricarceratlo n-26620

562

Crime and Just ice~ A Gulde to Crlmlno~ogy

about prison abo1ltlon t nttps "Jlwww.th emarshalIproJect.org/recordsJ 4 766-pr~so n-abollt lon

Art~c~es

PenaJ1 Reforrn Iriternatllonal t http:/lvitww. penalreform .org Research and resources on 1Jhe harms of mass about.html

~ricarceraUori f

https://www.prlsonpollcy.org/

The GllobaJ Deten111on Project (GDP) promotes the rights of peop le deta~ned as htlps://v1wv1. g IobaJdetentlonproject.org/ 1

non-cttllzens~

Research on global ren ditlon and secret detentlio ni https.:l/WVLtw.therendl tlo nproject.o rg .uk/ 1

UN Human R~ghts Worlklng Group on ArbJtrary detentlonlpages/wgad Iridiex. aspx

DetenUon ~

https:/twww.ohchr.org/en/lssues/

NOTES, ·1 We use '1Aborlglnall" here to l nc~ude Aborlglrial and Torres Strait Islander peoples In Australla, v.rh~ch we allso use l nterchangeab~y w ith "Indigenous" peopJe/s. 2 The Natl'onaJ and Cftlzenshlp Ac:t 1948 gave cltllzensJhlp to all Aus.tra~~ans previously deemed Brltlsh sub]ects., lncludlng Alborlglnal people. In Western Australla., c it izenship had been given throu g1h the Na:t1ves (Citizenship Righ·ts) Act 1944. However~ It v.ras on~y after the 1967 Referendum that AfborlglnaJ people \ruiere counted In the c ensus and th1ereby granted fu ll citizen sh lp. 3 NAAJA stands for the North AustralIan Abo rlgln al Ju stlce Agency. 4 See Johns .201 B for a summ ary of the vlo~ence of the 1

pr~son.

Chapter 22

Victims, ,criminal justice and victimology Celia Mo odie 1

Victim S1 u pport Service

Willem de Lint Flinders University

[22.10]

INTRODUCTION

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[22.170)

VICTIMS AIGHTS AND THE ADVERSARIAL lRIAL ... .. .... . .... . ..... ...... ..... ..... .. ... .. ... .. ... .. . [22 .1 50) Victims as vulnerable witnesses.................................................................... [22 . 160) Giving eviid enoe and cross-examination . ... .. .... . ..... .... . ...... ..... ..... ..... .. ... .. ... .. . THE ROLE 0 F THE VICTIM IN SENTENCING . .. ... ..... .. .... . ..... ..... ...... ..... ..... .. ... ... .. .. ... .. . [22 . 170) Victim impact statements.... ...................................................................... ..... . [22. 180) AppeaJs ......................................................................................................... [22. 19 OJ Injured parties: Restitution, reparation aind compensation .... ..... .. ... ..... .. ... .. . [22 .230) Non-govem ment organisations......................................................................

[22:.240]

CORRECTIONS AN D J US11CE..... I . .. ... . .... . .... . . . ... . . ... . . . .. ... . .... ' ... .... ... ........ ..... . . ..... .... ... I.. [22.240) Victims l Jnits . ii' 'ii Ii' iii ' .. .. t' t [22 .250) V1c 1ms reg1s ers ...... .... il, ........ , .. , ...... .. , ....... , ..... I iii Ii.II .. I iii I . . . . . .

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Keywords: victin1ology, vie timi ty, v i c tim c 01nmissio11er, victitn coinpe11sa ti on, victim impact statements, trattma-informed, victin1 rights cl1arters, recovery, vulnerable \Vitness 1

564

Crime and Justice~ A Gulde to Crlmlno~ogy

I NTR 0DUCTION 1

[22.10] "Criminal lustice~' de11otes that an alleged cr.i111.inal act meets ¥vith the response of a set of pr.it1ciples and renledies. As a ''systen1", cruninal justice i11volves many officials it1 tl1e deterinmation of the character of the act, respo11se and remed y. Essential or 11ecessary to a deterrninatio11 of a crime is the prese11ce of a victi1n. A victim is the object of criminal p reda tio11 and 1nay be ru1 individual or group. The ·victin1 is a necessary feature of crimil1al justice, btit that does 11ot 1nea11 that victit11s are always treated with digt1ity or res.p ect or that their opit1ions or it1terests determine 110\\7 tl1e #system"' produces "Justice" . For so111e observers, U1e criminal justice system has n.o t al\vays resol\red to create jtts tice for crime vieti1ns. h1 this chapter, we will pro 7id e a brief contextualisation of tl1e place of the victim in the criminal justice p rocess historically and in tl1e current At1Stralian experience. In Cl1apter 4 "1 Explanatio1is of crime"', yotu \-viii recall that tl1ere l1ave bee11 1nany changes over the cent11ries regardit1g how crime a11d '\vl1at is to be d o11e about it is u11derstood . This is importa11t t 0 co11Sider as 'vve place the victin:l in context. Critne and .respo11ses to crime d epen,d u.p on a11 tu1derstanding of actors and actions a11d this unde.rstandirtg is by people includit1g criminal justice officials " "ho o.p erate in a dynan1ic, that is to say, cha11ging, social ar\d cultural context. Today there are 1nany views of how to respond to critne it1 addition. to \.Yllat is legislated or authorised by the state. So1ne advocates for ren1ed.i es to cri1ninoa l \\"rongdoing wisl1 to involve tl1e lay (non-expert) co1nmunity and tl1e victim nl!ore .r rominet1tly. 1 \

1

1

lli1 tl1is regard, there is \\l hat is referred to as a "'law· and ord er"' plank in political platfor1ns that seeks to assert harsh er p e11alties and less due .r rocess rights for offenders. Public opituon is ofte11 persuad.e d by cam.paigtlS it1 which sympathy or e1npathy for victims of crime is connected to a n1ore retribl1tive response to t11e offender. Catnpaigners ofte11 seek higl1 profile \ri.cti1ns or victin1 groups w ith \vho1n to link perspectives . So1ne of tl1ese can1paigns have led to \vhat is \videly regard ed to as good public policy, as fo.r insta11ce Vi.7 here th.e advocacy gro11p Mothers Agait1s t Drunk Driving (MA.D D), resulted in the possibility of prison terms for inebriated 1notorists invol\red in crashes causing death or serious it1jury.

However, there is a concern. expressed by many penologists tl1at bri1lging th e victim too far back into centrality in the critninal p rocess \vill p rod·u ce an unruly, dis~retionary a11d even un.just ve.rsio.n of remedy. Consider tl1at despite \.vhat some cot1Servative politicians a11d advocacy gr oups may· itife.r, victin1s are no't a hon1ogenotis grou.p whose attitude and i.t1terests in justice may be stipulated and represented by them. On tl1e contrary, son1e crime victims may seek a less retribtlltive remedy than what au,d ietlces of tabloid news are led to believe. T11at is not to say that victim advocacy has 11ot provided a corrective to a system tl1at has sometimes appeared neglectful of victim's rigll ts and dig11ity. Many changes to crimi11al justice proced11re over tl1e past half-cent11ry or so have been initiat ed on behalf of victi1ns or victims' advocacy grou.p s. Son1e of

Chapter 22 VlcUlms~ crlm~ nal ~ustllce and vtctlmo~ogy

565

H1ese inclltde victim compensatio11 schemes (fi11ancial support to soll:ne critne vie ti1ns), victi1n i1np act sta ten1en ts (VISs) (i11 se11tenciI1g and proba tio11 or parole hearit1gs), victim Slt.p port services (counselling at1d a dvocacy services for crime vie tllns) an.d res tora ti,le justice or vie titn-offender reparation or mediation scl1emes (1nakit1g the victitn a central actor iI1 t11e restittttion a11d rehab,i litation of the offende.r). 1

1

Tllis chapter \'\lill examit1e how victi1115 il1teract wi tl1 all levels of tl1e cri1nit1al justice process,, froll:n notification and reportit1g to it1vestigatio11 at1!d prosecution to court and sente11cing. Decisions to report, .p articipate as a con1plaina:nt or wib1ess an.d tl1en to be i.I1\rol"\red in Jl:llaking state1ne11ts or represen.tatio11S regardit1g se11tetlcing are so1ne of tl1e most difficult a11d conseqt1ential, particularly where t11e offender is kt1own to tl1e victim" The vie tim is often a rel uc latlt participa11t or a par tici p a11t vv ho re1nains 1n1satisfied \v l1a lever th.e o·u tcon1e"

Victims in social and institutional conte,x t [22.20]

TI1e victim and victimology are fu11damental to crimit1al l11stice. Tl1e \ricti1n is both an object of mjustice or cri1ninal .r redation and also ru1 actor \¥itl1 relative power 0r powerless11ess" As a subject of injustice, it is tl1e loss of dignity, rights, a11d son1etirnes ever1 liealth, vvealth or life itself tl1at is at stake. As an actor in the cri1ninal justice process a11!d systen11 riglTts and dignity are ofte11 challenged as tl1e victim is a complait1a1lt vvho is objectified or made an instrument by other actors 'l o sttit objectives \\ itllin tl1e justice process" This is the cotltext in winch victims nl.ay also be "re-victiinised", or st1bject to secondary v-ictimi~ation, as police, .r rosecutors, defence barristers or corrections officials seek to dralAt the victim it1to alignmei1t witl1 their O\Vtl aims (see Cl1apter 1.5). 1

7

This is not to say tl1at objectificatio11 or iti.stnunentalisation is Vilrong syste1ns atld Sltbsystems are com11rised of functional roles - b11t to point out that tl1e victin1 in being pivotal cat1 also be poorly treated itl the process as a person of dignity. Tl1at process is ntost ofte11 it1stigated by an official or agen.c y actor,, a11d that represen.tatio11 is not first and fore111ost concerned with the dig;nity of the person but ratl1er ·l ivith managing or ilnposing the collective response to a crimiI1al act, an act of reckless or wilf1tl indifference or harmf1tl predation to be s11re, but an act that is reviewed in the 1neasure of tl1e se11te11ce as an appropria te societal reaction against the offend.er. Fron1 the poitlt of viev1,r of adversarial process, tl1e .r ole or fttnction of th,e victitn is as a complainant, a complait1a11t who is useful in terms of her reliability and . innocence.

Victi mology [22.30]

Victimology 1nay be defined as the stt1dy of the victim inclusive of t11e relatio11s witl1 crirni11al j11stice a11d other social or· ii1stitutional a clors. There has bee11 a conventional assttmption tl1at victin1s, wit11out '\tv.hon1 many argtte there can be no crime, are an after-tllought of tl1e crini.inal jttstice system. The strnct11re of justice1' it is true, demands that victims are 1

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Crime and Justice~ A Gulde to Crl mlno~ogy

recast as complainai1ts and witnesses. It is as complaiilants that they trigger t11e cri1ninal process a11d as \Vi h1esses tl1a t t~1ey support the state in tl1e prosectllti011 of the offender. After the d etern1inatio11. of g11ilt the victlin is pe.r11tltted to speak to tl1e court in making a victim itnpact state1nent, and .it1 consid eratio11 of probation a11d parole she or he may be heard from agai11. 1

1

1

Histo.ricall:y·, there is no doubt that the role was more it1volving. Prini.itive peoples regarded 11atural disasters as punisl11nents tl1at the gods served up for Vt.rro.n gs that people did on eart11. To preve11t such disasters, people invented ritt1als includiI1g huma11 sacrifices to appease the gods. People \Vere punished indi\ridually in order not to attract tl1e population or grotllp level pw1isrune11t from the gods. By tl1e Middle Ages ii1 Europe, cri1nes agaitist persons Vt.rere aLso provocat1ons to clans or families, so they were resol\red .it1 retributions against any members of tl1e opposing clan. These 'blood feuds"' cottld last for' decades and whole families could be exti1tguished. Feudal lords sought to displace tllese bloody private vengeances it1 011e finite common'' ri tl1al renled y, ar"ld trial b,y battle and trial by ,o r,d eal were two s uc.h ri tl1al events. Altl1ougl1 these perfor1ned to termitlate so111e blood feuds, they also permitted warr1ors to fair better at trial t11an those less skilled with t11e arts of violen.ce. Trial by or,d eals were o.f ten unsatisfactory as it seei11ed tl1at divine jttstice \Vas too mysterious in its discretion, it depended 11pon otherworldly powers to accorn1t for the emergence of \'\7 rongdoit1g. T11e pope condenmed trial by ordeal in 1215 at aroutl.d the time of the Ma,g na Carta. At this time, a systen1 called con1purgation replaced it, a systen1 in wl1icli 12 re.p11table people wotild s\vear the pers011i1u1ocent 011 the idea that it was unlikely tl1at 12 people would lie 11nder oath. 1

11

By the time of 16tll an,d 17th centu.ries, in vvritings by Descartes, Hobbes atl!d otl1ers, l-vriters developed a more 11aturalistic empl1asis to explait1 a11d respond to i11justices. odernisatio11 \Vas a transition to a system of ju1s tice that was administered in tl1e interests of t11e collective as this was represented by tl1e various brai1ches tjudiciary·, legislative, executive) of a state structure. The adversarial system that de,reloped as proxy for belief in divi11e justice (eg, trial by ordeal or battle) re1n ained as an organisiI1g asswnption. Moder11 metl1ods of justice itl.corporated U1e jury, and also reforms of tl1e oourt a11d judiciary as defeJn der of tl1e rltle of law. The i11oder11 natio11-state a{.irnitlisteredl tl1e adversarial battle tmder the rule of la \V~ not d ivine justice. As i.t1d1istriaH.satio.n an.d urbai1i.sati.011 p roduced societies of strangers, 1nore certainty \Vas de1nanded., A 1noden1 professional police a11.d prosecutio11 service as well as a11 ordered, ia-..v-botn1d or measured application of reined)' in corrective punislunei1t en1erged somewl1at independently over several centuries in Britait1 and have remait1ed Largely itl. their current form since tl1e begiruill1g of tl1e 1800s. Tllroughout U1is series of trarisitions into the moder11 ad1ninistratio11 of justice, the victim, 011ce rep.rese11ti.t1g him or herself in front of au thorities rul!d peers or co1nmunity, was gradltally reinoved fro1n centrality. To 1nake this admi11istratio11 less prone to be overtaken by tl1e heat of emotio11 and arbitrariness, jurists develo11ed devices, including rules of evidence and

Chapter 22 VlcUlms~ crlm~ nal ~ustllce and vtctlmo~ogy

567

releva11ce, to parse the victinl.'s accotn1t and experie.n ce. It was only it1 tl1e last half of tl1e 20tJ1 ce11h.1ry that the interest re-e1nerged i.J1 the relative stat11s and conbribution of tl1e \rictim in the administration and unders tandit1g of crime. Criminologists a11d victimologists have developed differe11t perspectives on the cattses a11d conseque11ces of victimisation. Tl1e pioneer wo.rks of crlinit1ologists iI1 this area include Hans von Hentig (1941), Be11jam.it1 Me11delsohn (1956; 1976) and Robert Elias (1986). The earliest researchers, includit1g von Hentig a11d Me11delsohn, were it1terested in how· the victin1 played a role it1 a dy11a1nic e\le11t a1l.d ¥vhat factors 1night be predicted to be prese11t \vitl1 victin1isation. A positivist, vo11 He11tig produced a victim typology based on prope1IBity for victin1isatio11. On top of tl1e list of 13, he identified "the young", ''the fe11Lale'', "1 tl1e oldn, "the mentally defective", ''itnmig,ants", "minorities" and "dull 11ormals (von Hentig 1948: 404-438). Tllis listit1g reflected some of tl1e prejltdices of tlte time, wllich subjected those at the top of t11e list to more vu.1t1erability a11d predation. He t_tsed the term agent provocateur to sttggest h.o w victi1ns played a role}' even. by ascribed statlts. Me11delsohn also took tl1is tack and developed a six-step legal classification attributing levels of victim blru11e. Similarly, in a study of homicides it1 Philadelphia behveen 1948 and 1952, Marvin V\7olfgang (1'958) fotn1d that 264Yo of all cases illcluded \i\7hat 11e tern1ed victim precipitation}' by which he n1eant tl1at the v"icti1n was .it1 some meastire respotl.Sible for l1er \ricti1nisation. This treatment of H1e victim by early to mid-20tl1 century crimit1ologists continued it1to the 1970s, particularly \\tith tl1e \\"ork of Me11ahe1n A1nir (1971), vvho reported that 19°/o of rapes were precipitated by t11e vie tim. 1

11

1

Victimology repudiated these controversial asst_unptions after a confere11ce in Bellagio, Ita]y ill 1975 at the inaugural meeti11g of the h1ternational Conference of Victimology. At this 1neet.it1g, the focus shifted. fronl the fixation 011. tl1e crin1e and criminal to tl1e experience of the victim and. tl1e 1neans necessary to lift up that experience a11d recognise and validate it tl1rough tl1e cri1nit1al justice .r rocess. Also i11 the late 1970s ai1d 1980s, critical vie ti n'iology em.e rged as branch of research tl1at placed the v ictim in pow·e r (particttlarly class) relatiotis. Critical victitnologists it1clttdi11g Robert Elias (1986) focused Oil critnes of tl1e povverf11l, particltlarl)r t11ose engaged it1 ge11oc~de and \.Var critnes, l1u1nan slavery ai1d the use of teclmologies inclt1dit1g cl1emicals ¥vith disregaid for hltman or ecological healtl1. The relative powerless1ness of the victi1n is a co11cern for radical and cr itical as vvell as feminist victin1ology. Accordingly, it is the victim'·s version of events, credibility, status and same11ess with other actors in the crin1inal justice syste1n (police, prosecutors, judges, juiies) tl1at will impact 011 findings and detern1inatio11s regardit1g tl1e crime, .it1cluding the guilt of the alleged perpetrator a11d the severit~,r of tl1e sei1tence. 1

Currently, 1nany criminologists take the view that to Wlderstand the perso11 \-·vho is the un.forb111ate object of crime depends upo11 re-subjectifying them, or situating the1n in a complex set of power relations that n-iay 11ave preceded the crime. Researcl1ers also take tl!ote of hovv not 011.ly the cri1nit1al justice

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Crime and Justice~ A Gulde to Crlmlno~ogy

actors b11t also acadeni.ics atld supporters itl the therapetitic commt_u1ity more or less enable or impede recovery (de Li11t et al 2018). They do so ofte11 by typecasting victi1ns or survivors 011 ideal pathways ratl1er tllan revie\v"ing eacl1 person ill their uniqueness (de Lit1t & Marmo 2018). 1

No victim, no crime? [22.40] On.e way to think ab,o ut the con.text of the victim and victimology, by wh ich. vve n1ea11 the stttdy of victims, is to consider the problenl of justice where no har111 is beu1g done to a perso11 or valuable social good. Cail tl1ere be crime \Vitl1out a victim? If you pause 'to reflect on this, yot1 n1ay l1ave come up ·w ith an exan1ple wl1ere it is difficult to identify a v ictim, but it is also not completely true to say there is no crime. There are crin1es against the public good wh.ere the commu11ity or tl1e public at large is named as harmed; most of these do carry a criminal prollibition. Others, like personal drug usit\& gamblit1g and the conm1ercia1 sale of sexttal services are among transactiotlS tl1at .h ave bee11. referred to as 11 vicrnnless crimes'' a11d some of these have been ren10\red from crini.inal legisla ti on. h1 tlris type of critne, criminal justice reforn1ers have argtied tl1at the conm1unity is harmed, an.cl this justifies criminal penalty. Others l1ave argued that criminalisation produces offen.d ers o.r 1nakes cri1ne where a n1ajority l"lelieves there should be no such legislation,. Still, others have argued U1at where governments permit or eve11 dravv tax revenue from sucl1 transactions there is victimisation. This may support the seco11dary it1dustries that may prey on t11e vtilnerable it1 sex trafficking, dn1g dependency ru1d gam.blli1g addictior1. There are other categories of crime that may tlo t have atl it1div.i.'d ual named or iden.tifia ble victim, but the state or governmetlt 11ames it.self lll this r ole. Many terroris1n prosecutions in Australia are inchoate ac ts, or i11con1.p lete, not 11aving resulted in harm to a perso11 or a property. T11ese are ne\rerth.eless keenly prosecuted as ve.ry significant crin1es. T11ey are also grot111d.e d Oil the vielv tl1a t society as a "''hole is tJ1e in.ten.d ed victim and is harmed by the threat of such acts. 1

As we see here, sometimes an.action .tnay be deemed to harm. the co.lnmt_mity or "m1a tio1ial security". Wl"lere t11e state is more proactive in tlte regltla tio11 of social conduct and wh.ere there is n111ch tension about stan.d ards of good conduct, tl\e state may push itself .it1to tl1e places of conse11sttal private transactiot"lS. Dttrit1g the Covid-19 pandemic, s tates passed e.lnergency quaranti.t1e measures that forced people to stay it"l U1eir hon1es. But such measures, lvhich rely ·u pon a fairly docile citizenry, are n1ost harsh 011 the homeless, th e aged and on people vvho may be sharing a residence wit11 an. abusive partner. Critical victin1ologists view inany of the state's it"ltrusions l-vith scepticism; tl1ey will applaud it \v.h en tlte intrusion supports v11b1erable subordi11ate groups and cl1astise it \vl1e11 the ii1trusion makes things Y\rorse for tl1ose g)roups. 1

Chapter 22 VlcUlms~ crlm~ nal ~ustllce and vtctlmo~ogy

589

Jhe victim and the criminal proce,s s [22.50] TI1e notio11 of the rights of the victim iI'l the criminal trial process is far inore complex tl1a11 might be ge11erally appreciated. lt1 the 111odern adversarial trial, a co11test behvee11 the state and the acctised, the victim of crline plays only a peripl1eral role. T11e rigl1ts of tl1e accused are vievved as the co.n1erst011e of the criminal justice syste1n, but tl1e legal rights of ,1ictims to be treated \·v ith respect, courtesy and dignity, for agencies to be responsi\7e to their needs c.=u1d to be pro,rided with infor1nation abou.t proceedit1gs - are generally n.o t enforceable. They are ufragme11ted, ll1.Complete and at ti1nes inoonsistei1t against existing polvers a11.dl processes" (Kirche11gast 2016c). Wl1ile co1nplai11ts mecha11is1ns outside the crim.irtal justice syste:tn exist, i't is argued tl1at the rigl1ts of victims would be better served if enforced ·w ithir1 tl1e S)'S tern (Hall 2009). Further' to this lack of e~1forceability, there may be an irnpleme11tation gap between "Yvrittert law· and procedure and practice irt relation to these rigl1ts (ALRC 2010). P'r actices will ideaHy promote transparency and accot_n1tability il1 prosecutorial decision-1naking, givi11g effect to victi1ns' rights, t11rougho·u t tl1e trial process. ]t l1as bee11 frequently observedl that if these rigll ts a.re to be applied, the11 such provisions must be enforceable (O'Co1mell 2015).

Victims' rights typologi,e s [22.60] Kircl1e11gast (2016b) has 11,o ted ilie i1111Lportance of typologies of victi1ns' rigl1ts, in order to determine V\7 hicl1 .r ights are sl1bstantive, as distit1gt1isl1ed froin those tha t are non-enforceable. Broadly, the rights afforded to victims it1 criminal proceedir1gs may be classified into tlrree typologies: service level rigl1ts1 .P rocedural rights (\i\llucll may u1clude participatory rigl1ts) and substanti\7e or enforceable rights. A11 example is the VIS, a rig.h t that may be procedural in some jurisdictio11s and substantive in o thers depending on whether the co11te11t "Yvill be taken into acco1111t by a sei1te11cing cottrt 1

Relatively recetl.tly in the context of criminal justice, various victims' rights instrl11nents across Austxalia11 jurisdictio11S l1ave emerged tl1at provide li1nited .r artici.p atory rights to victims of cri1111Le. Eacl1 state has p.rovisions, in tile fortn of charters or legislation. Across all j urisdictiotl.S, t11ere ai e various commissio11er a11.d coordit1ator roles, each of whicll l1as legislative responsibilities that relate to services, supports a11d complaint 11a11.dlmg for victims of crime, "Yvl1ich vary across ea.cl1 state and territory. To d.ate, tl1ere is no Australia11 jtrrisdiction that penalises nom1-compliance l-vith victimsr .r ights. In Soutl1 Atistralia, ·. evv Soutl1 Wales a11d Qtteensland, \rictims' rigl1ts legislatio11 expressly prol1ibits the attacl1.met1t of criminal or civii liability to breacl1es of their respective charters or dee Iara tiom1s. 111e abse11ce of enforceability has been described as re11derit1g victims rights 11 illusory" (Bel oof 2005). 1

570

Crime and Justice~ A Gulde to Crl mlno~ogy

Participatory rights in Australia [22.70] Participatory rights vary in states and territories, \vitJ1 some creatit1g substantive rights aii:d others bein.g less clear. Over recent years, tl1e states a11d territories have tu1d.ertaken vario11s reviews of victin1 a11d l1wnan rights cl1arters, declaratio11s and legislation a11d are i1nplerne11ting improved rights and services for victims of crime. Table 22.1 Victims, participatory rights, in·c luding vulnerable witnesses across Australia Australian Capital Territorv (ACT) J

In the ..A..ustrali.an Capita1Territory, victin1s of crime ...have inherent rights pmsuant to the Vlctims of Crifne Act 1994 (.ACT) and the Hum.an Rights Act 2004 (ACT).

11

In 2017, the ACT held a consultation regarding 1the introduction of a Clrnrter of Rights far Victh1Js of CJ;-irne. The consultation sought to address the provision of inJonnation to vktims d ming the crinuna] justice process, partici pad on of victims of crime in the justice process and th e mane gemen t of con1 plaints, as " 1ell as oversight and :remedial mecharusm s. In 2018, the A CT govenunent conm1enced a pilot intermediL ry scheme to support the fun participation of vu]nerable \!Vit.nesses, such as chUd ren and people w ith disability, in crimina] justice proceedings. The schem,e, assists victims of crime 'to con1munica te eHecti vely d ur.ing po1i.ce interviews and in cou rt hearings1- to reduce re-·traun1atisation risk. In 20191 the ..A..CT government committed 5.8 nliUion to the scheme, ste1nming from the Recommendations of the Royt1l Com111ission iuto Institu tiona' Responses to Child Se-xt~af

Abuse.

Iri. 2019, neVLr guidelines \Vere i1nplemented that provide a forn1a] right of revievv for victims of key 00PP decisions, such as not to proceed VLiith a prosecution (ACT Governn1ent 2018). 1

Northern Territorv (NT) J

In the Nor them Territory, the rig.hts of vi,ctinns of crilne are established by the Victims of C17nie Rights and Services ii\ct 2006 ( · T) and the Charter of Victirns

Rights. 1112017, the

T Cr.one··v ictims Advisorv Committ,e e reviewed the Charter and followin.g broad consultation in 2018, a ne,w Chart,e r vva.s issued in 201 q (NT Goverrunent 2018). .!

The new Charter requires a greater focus on p articular victilns needs and indudes a provision for victinis to have their r ights exp]ained to them in a maru1,e·r and language they understand. Furthe·r rights indude clear provision a bout the availability of .financial assistance for victims of violent cr.imes and greater access to infom1a lion and service fior those ]isted in the Victilns Registe.r, ind ud ing the right ·to b e informed a bout release or escape from custody of an offender. A review of ·the vulnerable witness protections \\ras undertaken in 2011, r,e sulting in a se·r i,e s of recommendations. Rights for 1il ulnerable witnesses .ar.e articulated in ·the ,C harter. The Charter also provides inforn1ation about action that can be taken vvhere there is a br,e ach of the· provisions. Nevil South Wales ( ·· S\tV)

In New South VVa les, the Victims' Support Schern.e is go\remed by the Victinls' Rights r1nd Si~ppar~ Act 2013 ( ·SW) and the re]ated Victin,s ' Rights and Support Regult?tion 201 3 (NS \i\f) . The Act lays out c CharteJ;- of Victfrns ' Rights.

Chapter 22 VlcUlms~ crlm~ nal ~ustllce and vtctlmo~ogy

571

Thils Charter requires agenciles and courts to provide victims fair treatment and respect, and also extends to victi1ns a right to be· provided \Nith information, such as their offender's release or escape from custod. ~ or change in s-ecurity classinration \V here the offende·r is eligible ior unescorted absence fron1 CUSt00}'·

The legis]ation a1so created the Victims Advisory Board. The role of the ·victinIB i\dvisor}' Board is to coitsrnt victims of crim e, colllffiunit}r victim support groups and government age·n cies regarding issues re'levant to victims of crime, and ·to c ct as a liaison betv•leen such g;roups and the relevant min.ister. study conducted in NSW p:r ovides a discussion oi the b:roc d rights th.at exist in that jurisdiction c nd concluded that Jew victims had kno"rledge of th eir r ights and co urt p rocesses, oth er than the·ir right to be infor1ned and to better treatment, lt\ri th the exception oi those supported by nongovernm ent organisations (NGOs) or groups (Kirchengast 2014). This stud y has implications fo r other jurisdictions as to ho"' victims ac,cess info rtnc ti on, the support and ad vocacy ·t hat they receive, and how· they ran best access and utilise their ri.gh.ts. J.~ 2014

The first of its kind in Australia, NSW mtrod uced witness intern1ediaries c s sup port for chUd ren in ,e arly 2016 \Vil-th the Crinlilrnl Procedi~re AJ11e11dme11~ (Child Sexual Ojfet1ce Et.ridence Pilot) Act 2015 (NSW). Ainendinents, in ]ate 2018, to the Crim frwl Procedure Act 1986 (NSW), have extended the sche1n e to include sexual assault com p]a inan ts lA' ho are also v ulnerable persons to indude the cognitively in1paired. Queensland (Qld)

Queensland has a Charter of Victims' Rfghts that sits V1lithiJn the Victin1s of Crirne Assistm1ce Act 2009 (Qld}. The legislation requires that vicrinIB of crime be given timely iniormation on relevant services avaUable to 't hem, induding welfar,e·, heaJ~h, counse]]ing, legal help and financial assistance. There are rights ior vu]nerable witnesses articulated in the current Q ,] d Police Vulnerab1e Persons PoUcy. 1

In 2014, the Qld go\r,e rnment 1u.ndertook a revievv of the Victinw of Crinle Assistance Act 2009, focusing on the effectiveness of the financial assistance scheme, the effectiveness of recovering grants of assistance from off.enders, and m ore broadly the· effectiveness of the (,e-gislation, th e rol,e of the· Victitns' Services Coordinator and NGOs in supporting victims of crime. In 2017, t he Qld legislature· enac~ed the Victi.111s of Crime Assistance and Other Legislation Amer1dn1e-11' Act 2017 (Qld) as part of an.,e ifort to increase support to victims of crime. The legislation was introd uced in 2016, in response to the recommendations of the Final Report of the review. Most recently, mJanuary 2020, Qld introduced th e Hurn.an Rights Act 2019 (Q,ld}. The legislation has been cri1ticised as elevating the righ1ts of the acc1L1Sed over those of victims, and iJ1t is observed th at it 1n ay ilnpact the introduction of victim-sensitive ]egisla,tion . VV01nen 's Legal Service Qld have called for specific amendments regard ing victin1s' rights, such as the· need for safety, interpreters and co1nn1unication intern1ediaries and interpreters, as \lile11 as improved access to information a bo ut the criminal process. Sou 1th Australia (SA)

The VicUrns of Crln1e Act 2001 (S..~) contains a declaration of principles thatt provides for ..'some uniq.ue· rights con1pared to other AustraUan jurisdicriol"ls" (VLRC 2015}. In the criminal justice context, v ictims of serious offences possess a non-eniorceable right to be ,consu1 ted in relation to decisions to charge·, c mend a charge or not to proceed with a charge. All victims have a non-enforceable r ight 'to request th£ t ,the prosecution consider an appeal

572

Crime and Just ice~ A Gulde to Crlmlno~ogy

Beyond the declaration,.South ..A.. ustraban victims can exercise rights that they ha v,e at law through an appoint,e d representative, such as a LaV¥rye·r or the Conunissioner for Victiins 1 Rights. This may be funded via a discretionary fund administered by the Conunissioner for Victin1s 1 Rights. Section 32A of the Vicffrns of Crime Act 2001 (SA) aU0Vi.1s the victim to appoint a representative to exercise those rights. The C omn1ilss.ioner for Viet] tns' Rights. in Sou th '"~ ustrali a has also provide·d victims V1lith assis tance in obtaining intervention ord ers, app] icc dons for r,es titution and in relation to subpoenas. ]n tenns of le.g al rep resentation during crin1ina.l proceedi ngs,. this assistance has be·en provided for various pu rp os.e s., inc]ud ing challenging the suppression of certain information and seeking adj ournments to obtain support and adv ice (0 1 ConneU 2011). Since 2016, vulnerable witnesses in SA may be supported by a comm uniration partner, defined in the St.atutes Anlend"1en t (Vul r~erable Witnesses) Act 2015 (SA), or able to receive conl.tnunica tion assistance through the use· of c device or from a. person app roved b y an intervie·\~er, ¥V hen interacting Vi.Ti th the criminal justice syste.m. Tasmani:c (fas)

The Tasmanian victims of critne assis·tance· s.che·m e is gov,e rned by the VicHnls of Crinu~ Assistancr:.. Act 1976 (Tas). Victtilns are c ble· to receive in.fom1adon on th e progress of cases through court incl uding the· outcorn,e ,expla11a.tion of processes within the· justice syst,e m induding, court processes1 p rison system, parole board acti v i·ties, dass.ification board, ]eave app lications inc]uding types of leave, terminology used, as \11l,eU as a.c cess to infortnation and s.e·r vices available to victinlS of crime. In 2017, the Tasm anian Law Reform lnstitute (TLRI) drafted a report and reconllTI.e ndations on ·t he in1 plelnentation of a w itness i11'tertnediary scheme similar to those· in other jurisdictions (TLRI 2016). Subsequendri the Evidence (ChHd ren and Sp-eda] \'Vitnesses) Amend ment Bi]] 2020 (Tas) \"ilas dratted c nd is currently under consu1tarion. The Tasmanian Victim Suppor-t Service provides for various forms of assistance, indud mg the· EUgible Persons Register, applications for Victims of Crime Assls.tance, Court Support & Liaison Service for victims of famH y· vinlence1 VISs to the court and paro]e board.

Victoria (Vic)

Victorian victims of crin1e schemes are gov,e rned by th.e Victims dw1~ter Acf 2006 (\'i,c).

La'"'

In 2016, the Victorian Reform Co:mm.is.5ion (VI.RC) n1ade a series of recommendations about the interests of victims of crim,e· in the criminal justice process. Since 2018,. the f t~stlce Leg-islatio11 A1ne11dJ1-ie-n t Ad 2018 (Vic) provides. for the r,e rommenda1tions of the \ TLRC report " rhich ]n.c]udes the introd uction of an intermediary rol,e in ·the court process to support 1ill1lnerable w]1tnesses, as \Vell as Ground Rules Hearings.. Further an1endments. include the ftistice Legis1at1orz lvfiscellaneo11s Amendn1ents Acf 2018 (Vic) and the VkH1ns .an~t Other Legisfotion Anu~nd1nent Aci· 2018 (Vic). These amending provisions provide that courts disallow ilnproper questioning·of witnesses, and various other righ·t s to infonnation about proc~ed i.ngs and to 1nake complaints.

i\t the same tim,e·, Victoria's Human Rights Charter does not currently provide for the· rights of victims. in criminal proceedings.; ho"rev,e·r, there has. been a push to revie\\1 the VictinlS Charter with the Human Rights Charter.

Chapter 22 VlcUlms~ crlm~ nal ~ustllce and vtctlmo~ogy

573

The Brett Young Review, Fro111 Con111iH111ent to Con1µUa11ce: The 2015 Rec.1iew of the Cliar-te-r of Ht~mnn Rights and Responsibilities Act 2006, recomn1encled that '' an individ ua] \\rho c]ain1s that a decision of a pub Uc authority is inco1n p a tible ·wi th human rights, or has been made· without proper consideration of h uman rights, be exp licitly permitted to seek judicial rev ie\\1 of that de-cision.... (VLR C 2!0]6). This ~commendation for r.ev]e\\F is cu rrent]v unde·r consideration by the 'V ictorian govern1nent 1

.I

Weste·:rn Australia (Vi/A)

Relevant legislation in Vl/l\ includes the Victims of C 11'i J1ie Act 1994 (\iVA), V•i hi,c h provides 12 guidelmes to support victims of crhne. Sin1ilar to the other jurisdictions, Vi/A provides .rights that include the right to be treat,e d \Vith courtesy·, compassion and respect, access to supports, protection f:ron1 violence, the provision of infornY tion about the tri£- ] process,. sentencing and ap pea1s, as \VeU as information about offender release or escape w here such information is requested . 1

In 2018, WA undertook a revievv of its own Cr-intinal Injuries Scheme, considering the various schemes of other jurisdictions. Also m20181 the Office of the·Director of Public Prosecutions p ub]ished new Polic}r and G uidelines for Victi.rns of Cri.m e. These include guideline on hovv vi,crin1s should be treated, as well as mandatory restraining ·o rders and app1irations in VISs, not required in other jurisdictions. As with other j urisd]dions there are guidelines for supporting vulnerab]e \\ri.tnesses,. available only to chUdren with no limitation on \Vho ran perform intennediary taslks the type of proceedings.

A significant co11cer11 for victims of critne and tJ1eir advocates across all j11risdictions is the lack of e11forceability of victims-' rights. The tangible e ffect of these participato ry rights in. proceedit1gs is that they 1nay res11lt in som e st1bstantive rights, at least durn1g tl1e pre-trial or se11te11cing phases, in 1nost Australian jurisd ictiotl.S.

The context .it1 whicl1 th.ese right s are relevant to tl1e victim e xperien.c e of tl1e crin1.i1ial jus tice system as set out belo\v.

VICTIMS AND POLICE [22.80] Earlier it '\Vas pointed out t11at the modern state a11d particularly its insti tlt tio11s of jus tice admirristra tion disp laced the victiin. h1 t11e last 200 years, police }1aVe beetl endO\'\led \Vi tl1statutory poV1lers SO that they J1a Ve bee11 capable of bringing an offei1der to justice in lie11 of the vicli111. Police are generally not req11ired to cons11lt with the victit11 ovet' the chargit1g of a suspect, a11d w 11.ile H1ere are te11Sio1is betvveen. the duty of tl1e police to apprehertd a s u s.p ect a11d H1e rig~1ts of the victim to participate in the process, it has beer1 observed that alU1ough a ' 1icti1n has a right to be l1eard, there is no right to f/ determine tl1e substance of the charge" (Welling 1998, cited in Kirchei1ga st 2016c). 1

1

For a victim, t11e process of engaging wit-11poHce1nay be their first experie11ce of the criminal ju s tice sys ten1. Research sho·\.vs that tl1ere is sigm1ifican t satisfaction '\Vith police intervention (79°/o) that falls away sharply at later s tages it1 tl1e cri1nit1al jtts lice systern (Holder 2015). Research also sl1ovv·s tl1a t the initial police respo11ses t,o the reporti11g of crime is funda1ne11tal to tl1e

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Crime and Justice~ A Gulde to Crlmlno~ogy

victi1n's \ve[lbei1lg. For victinIB of sex11al offe11ces, there is a risk of secondary victi1nisation wl1ere a victiJ11 experiences victim-blaming, is n.ot believed, or does 11ot receive tl1e services H1.ey need (AluetlS 2006l. "Such \rictin1isation is likely to exacerbate existing psych.o logical distress and delay recovery fro111 the initial trauma" (Crun.p bell & Raja 1999, cited it1 Astbttry 2006). It 11as been fou11d that \rictims Jlself-medicate" or use prescription and tlort-p .r escription drugs and alcoll:ol to dull or di1ninish tl1e hrau111a tll ey experiei1ce (de Lint et al 2017; de Lint & Marmo 2018). h1mai1y j urisdictio11S, there are Victim Con tact Officers (V.C Os), specialist office.rs who lvork 'i\lith ·v ictims artd their fanrilies. Across Australian jurisdictions., police ha\re introdttced liais.011 positio11S to \Vork specifically ru1d. proactively '"'ith various conununities a11d this co11titl tles to be an area of focus for access a11d incll1sio11. However, this may not be the case for all victitns. Tratu11a associated \vith. ,d ealing with_police for conuntmities such. as Aboriginal and 'Jorres Strait Islander, cu1t1rrally ai1d lit1guistically diverse and LGBTIQA+, is lu1derstood to create barriers to access dtte to historical injustices and violence. Police are expected to co1nply 'vitll vicfuns' rights provisio11S, which not only reqt_rires that victin15 are treated vvith di~ity and con11passion, infom1ation and access to services, but also that their rights to certain in.formation are fulfill.ed ai1d that they receive infonnatio111 about the it1vestigati011 of a crit111e, unless disclos11res rnigh t jeopardise at1 it1vestigation. These 1na.y take t11e form of duties, '.-to consult ... [011]'the status of the victim in bail decisions, pre-trial discovery of rnaterials sensitive to the victim, the duty to c011sult with the victim when chargjng or when making a .Plea deal''. (Kirche11gast 2016a). Sometimes tl1ere n1ay be 110 cl1a11ge u1 tl1e progress of an it1vestigation, but it will still be i111.por tai1t for the police to cl1eck in. vvi th. victims. 1

1

lli1 the do1nain of LGBTIQA+, the NSWP were criticised for a long record of indiffere11ce or .n egligence regarding the i11vest.igati011 of homicides involvi11g gay me11 ( SW Standing Cotru11ittee on Social [ssues 2019), police 1nay reflect conservative social values a11d it is lvort1111otit1g t}1at social attitudes a11d ltnders tandit1gs of sexuality has changed sig,illicai1tly over tl1e past 11alfcentl1ry. Man.y commm1ity tnembers ex.p ect police to upl1old n1ajoritaria11 [co11servative?~ val ues regar,d ing sexual cotl!dtict ru.1d police are 11ot likely to be amo11g tl1e first to adopt progressive vievvs. If Ns·w society as a vvh.o le was a.rgual-,ly ho1nophobic iI1 the 1970s and 1980s, so too were tl1e ·. SWP: For gay victims ,o f crime, this w·ou..ld ha,1e disadvantaged thenl were they \Vishing to see justice do11e. TI1at said, the evidence that NS\IVP deliberately disregarded evidence of gay homicides has yet to be fotmd (de 'L int & Dalton. 2020). For ' rictin1s of domestic or .f amily violence (DFV), the.re may be difficulties in establislung that the cotl:duct '"'~1ich is complai.t1ed of reaches the evidentiary thresl1old for a criminal offence. In cases of DFV a11d abttSe, there tu1ay be difficttl ties with rea ch.it1.g tl1e standard of pro of tl1a t w·oul{_i result in a cl1arge I prosecu.tio.n a11d t11erefore there may be a reluctance to report. While reporting in t11is context is it1creasing, DFV re11iains largely underreported. The .i ssue for policy n11akers ren11aitlS determining the .r ole of police. Th.ere is a bala11cing act betvveen a modern comtnlu1ity I proactive policing model and

Chapter 22 VlcUlms~ crlm~ nal ~ustllce and vtctlmo~ogy

575

traditional lavv e11forcemen.t tl1at has implicatiotlS for victin1's experie11ce. Royal Cort1.mission into ln.stituti-on~l Responses to Child Sexual Abuse n1ade various reco1nmendations about policiI1g.... i11cluded bttildung better relationships with vuh1erable groups.

VICT M PARTICIPATION IN COURT PROCESSES AND PROCEEDINGS [22.90] Unlike other actors in the adversary criminal process, victims are lay or non-professional, no11-expert it1terested participants. As Sltch. . tJ1ey \-vill n1ost often not be iI1 a position to directly maximise w·h atever it1fluence and they may have. As it is on police and prosecutio111 the itlfltience they may exert on the court process is deliberately restricted. As we noted earlier, this is because crimi1ial procedt_tre tnust strive to maxi11lise objective justice values. As interested parties i11 the process, victims b ring tu1iqute or ideographic factors; these 1nay be very persuasive 011 juries. . it1 particttlar; ]uries and some jltdges may be differentially emotionaUy en1pathetic or respoJn si\re to some victi1ns (based on appearance, class, etlmicity~ for example), a11d tl1is introdtices non-]usticiable factors into the adjudicatio.n. 11

11

1

1

As la)7 participa11ts m pre-trial. . trial or plea-bargam proceedit1gs . . victims are forced into unfamiliar situations. The trial process can be very difficult, partictdarly during evidence il1 cluef. . '"rhich is likely to be testi1nony of often. traumatic experiences. Tl1is subjects tJ1e v ictim to cross-exatnitlation, placing t11em at risk of secondary victimisation. [n a practical sense. . awaiting trial is often a sig,1ifica11t issue for victi1ns, who 1nay be subject to delays d11e to adjour1une11ts. They may 11ave to take leave from etnployment to attend hearings. . only to experience further delays. Across all jurisdictiotlS, support services are available to victims during court proceedings. These include services st1cl1 as \Vitness assistance services. . child \Vitness and court sup.p ort services, services for v1th1erable wib1esses such as com1nunication part11ers for people \Vith. a cog,utive disability such as the Criminal Jttstice Support 11etw·o rk in ·.SW, and specialist court services. . in 't11e context of DF'V, for example. . i.t1 Victoria. TI1ere is criticism that 1na11y of t11ese services are offered 011 an ad l1oc basis a11d that victin1s of non-violent offences may 11ot receive tl1e assista11ce they 11eed, for exa1nple, in tl1e con.text of property a11d cybercrimes (VLRC 2015).

Prie-trial participation 1

[22.100] The pre-trial .P hase occ11rs separately fro1n the trial a11d allovvs greater scope for victin1S rigl1ts to be accommodated. Pre-trial victlins'· rigl1ts intersect w i t11 various legal c011sidera tions and are 11.ot always straigi1 tfor\¥arrti. Hovvever, victims are it1creasit1gly beit1g invited to participate during the pretrial phases. . it1.clt~ding cotl.Sultation a11d negotiation \Vith prosecttto.r s and the state. VictinlS may risk re-tra111natisatio11. if they a.re not itlvolved in. . or not provided adequate explatl.ation of, processes and decis~ons tl1at are made in p.rogressitlg a n1atter to trial, s11cl1 as a decision not to prosecltte or during 1

Crime and Justice~ A Gulde to Crlmlno~ogy

576

plea bargait1ing. Whil.e victims l1ave the rig.h t to be kept i1lior111ed tl1roughout tllis pl1ase, t11ey a.re able to opt out of receivit1g in.formation or participatit1g. Tl1ey 1nay have a ~'corollary right" to private co1111sel (Kirchengast 2016a). At the .r re-trial stage, the right of the victim to receive legal representatio11 has been found not to comprontlse the rights of the accused perso11 and as such. is 11ot co11Sidered problematic in t11e adversarial trial context. h1 South Australia, tl1e right to private cotu1sel is a broader right tl1at can be accessed tluough tl1e Coni.rn.issioner for Victi1ns Rights. 1

Si11ce tJ1e 1990s, all ~.\us tralia11 jttrisdictions have e11acted legisla tio11 to li1nit tl1e subpoe11a a11d disclosttre of comm1ulicatio11s made in. the context of 001u1sellit1g for sexual assaltl t. A.ustralia11 j urisdic tior1s provide that access to, and ttse of, records of communicatio11 tnade it1 confidence by a \rictitn to a medical i1ractitioner or counsellor is a .P rivileged conununicatio11. Sucl1 la\vs exist it1 recognition o.f low reportit1g rates of sexual offences, and the risk th.~t victims \vill 11ot seek therape11tlc support to aid their recovery. Tasmania pvovides the most cotnprehensive 1")rotection for victi1ns in this context, with. a blati.ket pro.hibitio11 on disclos11re of c01ifidential iti.forniatiotl,. sparitlg \ 7 ictll.ns' intimate personal n"tatters being raised it1 court In2010, SW enacted reforms establishh1g victims, or their la.Vl!Jers1 i1ave tJ1e abiliry to asse.rt commturications privilege itl court. For tl1e first titne it1 A us tralia., victi1ns were represented it1 court a.rgun1e11ts about subpoe11as. Victims are now ernpowered in NSW to participate i11decisio11S affecting the confidentiality of tl1eir co11nsellit1g records. Follovving these ame11runents, it1 2012, SW Legal Aid was f1111ded to provide t11e Sex11al Assault Comm11nications Privilege (SACP) Service. That service pro,1ides legal advice and represe11tatio11 to sexual assau.lt con1plail1ants and othe.r "protected confiders", to i1rotect the co11fidei1tiality of colu1Selli11g i1otes or C0t1Sent to releasit1g docu1nents to cotrrt. 1

1

There is curre11tly 110 communicatio11s pri\rilege (right to be consulted) .f or fa11illy violence victims. Services tl1at support victin1s of DFV obser\re tl1at U1e risk of ben1g cross-examined on this itlforn1ation tnay deter victims from reporting a matter to :p olice, seeking t11erapeutic counsellit1g and disclosing all forms of violetlce.

Victims and prosecution, bail and plea ,decisions [22.11 O] Some victi1n aid\rocates argLte that victims shoul d be provided vvith t11e opf1'0rtunity to provide advice a11d input itlto the decisio11 to prosecute; ho,vever, the primary duty of the prosecutor is to th.e court and t11e public interest. The decision to prosecute and the it1terests of victin1 may n.o t alvvays be aligned. Nevert11eless, where tl1ere is a decision to disco11tit1ue a prosecutio11, "\rarious instr11ments require that a victinl be informed as sootl as practicable. For exa1nple, in Sou.th Australia., victims of serious of.feilces l1ave a non-enforceable right to be consulted prior to a decision wl1etl1er or not to charge an offet1d.er' with a particular offence or to amend a charge. A victi1n also has the right to request the prosecution consider at1 appeal .if that victim is not satisfied \vitl1l a determination that is n1ade dtiring criminal proceedit1gs. Tl1e prosec11tlon

Chapter 22 VlcUlms~ crlm~ nal ~ustllce and vtctlmo~ogy

577

is requLired to give cl.l ie consideratiOll to Sl1cl1 req ltests. Grovitit1g a \.Vareness 0f in ter1ia tional instnunen ts rul:d proced trres along \Vi t11 the existing fra1nev1lork of rights that provide for legal counsel and extra-curial rigl1ts to \rictims 111ay lead to better it1teg)."a.tion of ·victi1n participation in .P rosecutio11 decisio11-makll1g. 1

Bail proceedings 1

Victin1s of crime l1a,1e an obviolts il1terest in bei11g kept infor1111ed regarding any bail decisi,o n, includi11g the conditions a11d 11.o w these might affect their safety a11d vvellbeing. The right to be inforn1ed varies across j t1risdictio1is, set o·u t belovv.

[22.120]

Stale· or t,e rritory AC .

~·

ature of information provided

Applicalion for bail

Outcon1e

The safety and v iews of victims can be taken into consideration mbail hearin gs.

The current governing principles do n ot discuss notifying victim of decisions m regard s to bail and are· cu.rrentl y the subject of a n Options Pape r.

Conditi ons

N

A v icti1n has the righ t to be infor1ned as to \ Y hether bail has been granted.

A victim h as the righ t to be in forn"led o f any bail conditions relating to protectin g \Vi messes.

NS\'V

A v icfu11 has the righ t to be inforn1ed of the outcome of a bail application if the accused h as b een charged with sexu al assault or other serious personal violence offences.

Tl1e - SW Charter o f Victill1S Rights o u tlin.es that a victitn '1.-vill be informed o f any special bail conditions designed to p rotect the victim or the victi1ns' f atnily~

QLD

In Qld, victin1s' rights in relation to bail are not specifically covered , bl1 t there is a general requ irement tha t a v ictiln b e consulted \t\rith regard to ba il hearings.

1

578

Crime and Just ice~ A Gulde to Crlmlno~ogy

State· or territory

'

ature of information provid·e d

TAS

A vicfun has the right to "have l1is I her need or perceived need for physical protection put by the prosecutor before a bail a uthority which is determinin g and application for bail by the accused person .

A victim \-V ill have the right to be ad vised upon request of the ou tcotne of all bail applica tio11s and be infortned of any conditions of bail which are desig ned to protect the victi1n from the acct1sed.

A v icti1n has a righ t, ltvhere it is requested, to be told about tl1e outcome of any bail application.

A victim has the righ t to be in fonned of any special conditions of bail which are in tended to protect that person or their fa111.il y 111enibers.

If a n application for bail is made by the alleged offender the victin1 has a right to be informed of the o u tcon1e of tl1e application.

If a police officer

. .

\VA

II

Any bail application made by the accused person.

V]C

SA

A v ictitn has a right to be inforrned of bail applications and re lated iI1for1na tion, on request.

or a person representing the Crown in bail proceedings is 1nade aware that the victim feels a need for protection from the alleged offender(a) the police officer or other person must ensitre tl1a t the perceived need for protection is brought to the attention of the bail au thority; and

Chapter 22 VlcUlms~ crlm~ nal ~ustllce and vtctlmo~ogy

State· or territory

'

579

ature of information provid·e d (b) reasonable efforts mu.st be made to notify the victim of the outcome of tl1e bail proceeidmgs a nd,m particular, any co11di tion imposed to protect the victim from th.e alleged offender (u11less tile \rictim in di.ca tes that he or she does not wish to be so informed).

In SA, a centralised database allolvs for itn.p roved ittlor111ation sllaring benveen. agei1cies as well as case tracki11g, intended to res ltlt .it1 better notification of protectio11 a11d bail ,o rders. Plea bargaii ning

[22.1 30] Dlte to t.l1e length and cost of trials, prosecutors often seek to make a p lea bargain "\Vitll atl accused .p erson. Given the adversarial 1iat11re of tJ1e trial process, a11y decisio11. to accept or reject a p lea offer that is n1ade ultitnately rests \vith the prosecutor. Ho\vever, during the process of cl1argit1g, \vh ere a guilty p lea is offered to an alternative a11d lesser offen ce, t11ere t1\ay be a negative itn pact on a victi1n, who may 11ot have a11 opportunity to s.p eak to the harms arising from their victimisation. Givet1 that tl1e victim will also no"\v not l1ave ai1 opport11nity to provide evide11ce of the harms, n.o r to deHver a statem ent as to the effec t of the crin1e., this can lead to re-tral1n1atisa't ion. Such hearmgs often require 011.ly a brief statement fron1 the prosecutor vvl-rile t11e accused provid es a lengtJ1y argu1ne11t abo11t 1ni'tigatio11 by the defence. filt has been. observed that a ''victi1n 111ay not have th e opportu1uty to challenge tl1e 111itigati011, which may blame tl1e victi.tn for the offe11ce or i1np11gn tl1e \ricti1n's character, or to pro\ride evird ence of .related harms arising from tl1e offence'' (Fairclough & Jones 2018). With tl1is .it1 mit1d, th e NSW Co11rt Certification Sch.e me reqltires that prosecutors file a certificate with the court, confir111it1g cot1Sttltation vvith

590

Crime and Justice~ A Gulde to Crlmlno~ogy

H1e victim about plea l1egotiatio11s. ·w hile the views of the victim are n.o t bit1ding 011 the prosec11tors, it s till provides tl1e reqtlire1ne11t tl1at -..vl1ere a victim disagreesf that mu.st be h.eard by a Senior Officer (NSW Departnlent of Justice 2015). Si1nilar reqt1ireme11ts exist in WA at1d Qld, w·l1ere victit11 c onsttltation is required to be considered and recor,d ed before there is a11y decision :tnade abotrt continuation of proceeditlgs. Prosect1tion guidelli1es in the NT require tl1e preparat~on of a disco.n tinua11ce report that it1clt1des tile \rie\vs of the it1vestigating police officer a11d the victi1n . ACT OPP prosecution policy states ti-tat a plea of guilty may be accepted follovving consideration of a range of matters u1cluding "the views of the victim, where those views are available and if it is appropriate to take those vie\"VS into accom1t" . The gover11ing prit1.c iples of t11e leg;islatio11 require tl1at "a victim should be told about any decision co11cer11ing the accused to accept a plea of gttilty to a lesser charge or a guilty p lea i11 returm1 for a reco1n1ne1l!datio11 of leniency iI1 sei1te11cing". h1 SA, ir1 acoor,dai1ce ·witJ1 tl1e V1"cti1'11s of- Crirne Act 2001 (SA), prior to decidit1g to accept a plea o_ffer or proposal the DPP' has ru1 obligation to inform and cons11lt vvit11 a nltmber of persons it1clud ing victitns of serious offences. 1

V CTIMS RIGHTS AND THE ADVERSARIAL TRIAL [22.140] At trialf the rights of victin1s are vveighed against tl1e right of the accused to a fair trial. D11ri.I1g this process, tJ1ere are greater complexities tliat arise it1 considering the rights of victims, b11t over rece11t years there have been 1neasures i1nplemented to provide some le\rel of protection from retraumatisation, albeit llil1ited it1 mai1y cases.

Victims as vulnerable witnesses [22.150] The term "vuh1lerable witness" generally describes a persotl or group "rith f"Jarticular needs i11 accessit1g the crinli.11al justice system, vvho are considered to be more vttl11erable to tl1e impacts of that syste1n. For those who experience additional barriers as \rictims of crin1e,. they may reqttire special cot1Sideration in ternlS of 110-..v tl1ey are req·u ired to engage \Vith. the cot1rt, to enstrre they receive procedural fairness, and a.re 11ot subjected to further tra t11na. Certai11 vuln.e.rable wih1esses tnay be eligible to access 1neast1res that aim to protect them fron1 re--tratm1atisatio11 \vl1e11 giving evidertce. Rece11t refor1ns to lalv across all jtirisdictiotis variously it1clude video conferencin.g and CCTV, .r re-trial hear.it1gs for cl1ild wih1.e sses b.1 sex11al offence hearit1gsf o.r it1 son1e jurisdictions on application 11lade by a11 a d ult victim a11d closed cottrts for sexual offences 011 applicatio11. 1

Followu1g on from the final .report of tl1e Royal Com1nission into Institutional Responses to Child Sexual Abuse,.improve1n ents to justice response to vulnerable \ricti1ns have been conte1nplated. Across jt1risdictions 11nd ertakit1g reform, the introdttction of intern1ediaries for childre.n artd people \Vith a cognitive

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disabilil)7 a11d other therapeutic options in co11rt rootns has been variously introdttced. These i1lclude C0t1rt com.p anion and t11erapy d ogs or co1npanio11 atu.tnals, in.creasit1gly accepted as a tl1erapeutic optio.n. 1

1

Giving evi dence and cross-,examination 1

[22.160] Provision of evide11ce by the victim, it1 both examination in chief atl!d cross-exarnination, are both very importa1Tt parts of the crinunal trial process. Hov\lever, t11ere can be no doubt tl1at process fo.r a victim-v\Tib1ess ca11 be a very trau.matic experie11ce. Perhaps tl1e n1ost retra11matising as.p ect of the criminal trial is crossexani.inatio11 of the victin1 as a witness in their o\·vn ni.atter. This .r rocess often involves in.tense, .robust a11d often harsh questioning of a victin11 often overextended houIS or days, tl1at is likely to be emotional ai1d exhaustii1g. A sig,lificant question in this context, often not addressed in the rights discussio.n , is 110\-v to condt1ct cross-exa1ninatio11 ·w ith,o ut compotn1ding that traurna experie11ced by victims of crime. For victims of sex11al assaldt cases, \\1here their credibility is often in issue at trial, tl1ere is 11igh risk of re\rictirnisation and seco11dary trauma caused by tl1e process. In some jttrisdictions, legislation has bee11 introduced to limit the crossexanunatio11 of a \ 7ictln.1 to matters of evidentiary value, placing lin1itations 011. peri1..,heral issues such as tl1e f1'ast sex11al conduct of the victim. Reforms aimed at reducing the 1111n1ber of times victitns are subjected to crossexamination have been i11trodl1ced. For example, n1 Victoria, t11ere is a requ.ireinent tl1at the accused apply for leave to cross-exami.t1e vvitnesses, includii1g victi1ns of crime. However, it 11as bee11 observed tl1at in practice often these ha\7 e not been refused by Magistrates, raising qltestions about the effecti,reness of such ref,o rin where there is no representation of the legal interests, views and v ulnera bili ties of tl1e vie tirns.

Following the reconm1e11dations of the Royal Cocmmission into Institutional Responses to Child Sexiwl Abuse abou.t th.e intro-duction of inter.t11ediaries to all Australian jurisdictions, they have been introdt1ced it1to various jtirisdictions. The ·wit11ess iii.termediary is an accredited :professional vvith specialist trainll.1g who assesses the prosecution witness' com.t111111icatio11 needs, advisil1g the Court 011 the best¥vays to com1nunicate \vith that \.vitness wl1en they are giviI1g evidence at tl1e pre-recorded heariI1g. 1

These developments in court processes 11ave the effect of improving procedltral fairness for victirns. Ho\vever, it is 11oted that there is still a great deal to be done to m1prove the cultltre of the COttrts in this context. Prese11tl}' most Courts provide trai11.it1g for prosecutors about examit1ation of victims, st1ch as .is p ro\7ided by the A tis tra lia11 Advocacy lnstitute' s Vl1h1era b le Witness program, vvhich is also a\7ailable to d efence barristers. While c11ltural change is irnportant, enforceability re1nai11s at issue a11d it is suggested that the.re is a need fo.r improved mecha11.isms for enforcement where a victim is subjected to a lack of .r rocedural fairness through i111pro.p er cross-exa1nination.

592

Crime and Justice~ A Gulde to Crlmlno~ogy

THE ROLE OF THE VICTI M IN SENTENCING Victim impact statements [22.170] VISs are a way for ,1ictims to make the j11d.ge ru1d tl1e offender aware of tl1e '\ivays in \-vhich the cri1ne 11as impacted on t11em. These inay take the form of a 'vritten report, but have variottsly been provided as p,o etry, art and other forms of expression. It may also include 1nedical reports and assessme11ts provided by co11nsellors, social \Vorkers or psychologists. Victims may present the VIS t11ernselves or a represe11tative 011 behalf of 'tl1e victim may read it. The impact of tl1e cri1ne on tl1e victin1 vvill be takerlt into acco1111t ·w hen tl1e jttrd ge un.p oses the se11'tence. As 'rVe 11oted earlier, hartll. fron1 crin1e is not alv.tays experienced by the indoivi,d ual alone, a11d to institutionalise this it1to remedy, there is n.o w also iI1 so1ne jurisdictions commtu1ity in1pact state1n ents (CIS). These are staten1ents tl1at d etail tl1e impact of crime on a particular communiry. 1

P'r ior to the introducti on of VIS, v ictims of crime 11ad Httle recottrse to the process of se11te11cing it1 Australia. TI1e introduction of the VIS reflects this changing vie\v o.f tl1e role of the victim in the cri1ninal justice process. VIS sche1n es are gen.e rally similar across Australia11 jurisdictio11 at1d operate .it1 si1nilar ways. Victll_11s ca11 participate iI1 sentencing· hearit1gs by preparing at"l!d presentitlg a VIS. Ho\vever, altl1011gl1 all victims of sexttal and 0th.er' serious viole11ce offe11ces may subtnit a VIS to the Co11rt_, t1:ot all victitns of critne are eligible a11d tl1ere are limitatiotlS linposed on their pre.p aration, including ""ho can prepare th.e m ai1d what offences warrant a VIS sext1al viole11.ce. There are rules abotrt \vhat can be included in a statement and \vl1at is relevant to ilnposing a se11tei1ce. Wh.o niay provide a VIS varies across Australia11 jurisdict~ons. In Tasmatlia,. VIS n1ay only be provided .fo.r indictable offe11ces. In SW and SA1 \ TJSs ca11 onl.y b e .r rovided for offences that have resltlted in h omicide or serious pl1ysical mjuryl rOr \Vhich it1volved violence iI1.c luding sexual violence. Across SA. a11d Victoria,. the Court has interpreted broadly Vt.7ho m ay be a victin1 for the p11rpose of .P rovidin.g a VIS (Bootl1 2016) and in Victoria1 they can be provided in relation to a11y offe11ce. In SA and T1 victims ca11 use them to express a view as to wl1ether se11te11ciI1g is appropriate. Tl1ese pro·v isions are sigrrifican.tly different/ d istinct from otl1er jurisdictions_, \vh.ich prohibit \rictims fron1 comme11ting on tl1e sentencing of offenders. Sup.p orters of VISs argue that they enl1.a nce th e overall fair11ess of the criminal trial by .r rovidit1g a11 op.portu11i ty for t11e \ric ti1n to speak to tl1e 11a t11re a11d extent of the h.a rms that hav·e been s uffered as a resul t of victin1isatio11 (Booth 2015). VISs have proved not 011.ly valuable for p.rovidi.t1g information about the seriousness of the offei1ding .for the purposes of sente11cin.g bttt enhance the proced11ra.l fairness for victims ,o f critll.e1 providing therapetttic benefit for 1na11y victi1ns and havi11g a restorative effect (Boo'tl12016). Ho\vever, their introdttction 11as not been vvithout c.r iticism., Whe11 they ·w ere i11troduced, t11ere ' vere co11cerns t11at it was ~'antitl1etical to H1e adversarial 11ature of legal

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583

11

proceedings a11d irrelevant to the plrrpose of se11tencing. Ftirtl1ermore, some op,po11ents argued that it vvas both detrin1ental to the interests of atl accused .r erson a11d potentially 11armful to the wellbeit1g of \rictims, l¥l1ere tl1eir expectations could 11ot be met (Booth 2016) . 1

There remain li1nitatio115 011 tl1e use of VIS. Currently, a VIS is not able to be provided '1vi1ere t11ere is a gttilty plea. T11ere are also constraints 011 vvhe11 during the CJS process a victitn ca11 prepare the VIS, and whether they sl1011ld have to wait m1til after g11ilt has been deternu11ed. These can l1ave a negative i11lpact on ·v ictims where tl1ey feel tlleir rights are cttrtailed. VISs n1ay be used to assess eligibility for compensation or restit11tion., discussed belo'\iv.

Appeals [22.180]

h1 most j urisdic tio11s, victims do not have a role in the appeals

process. Notably in SA, a victi1n does have the no11-e11for'Ceable rigl1t to reqttest a11 appeal, but tl1e discretio11 to proceed resides vvith the prosectitor. Sltch a reqttest mtist be made withit1. 10 days of a11y court determit1ation a11d 1nu.st be g).ve11 due co11s1deration by the prosectttor. 1

Wl1ile the breach tnay not give rise to any enforceable right to comme11ce legal proceedings, the Co111n1issio11er for Victims Rights in. SA. is able to s upport victi1ns in dealit1.g ·v1lit11 prosecutors in this context at1d is able to require tl1e prosecui. tor to co11sult \v·i th fue Conlllissioner in order to further the interests of the victitn. The broader power of s 32A. of t11e Victi·m s of Cri1ne Act 2001 (SA) st1ggests tl1at the Commissio11er could reqltest that tl1e prosecutor cotl.Sider atl ap.p eal, a11d to ll1tervene 011 a vie tirn 'S behalf if necessary. 1

1

1

1

1

Injured parties: R estitution, reparation and compensation 1

[22.190]

oney as recompense for crime is vaiiously described as n1akmg \ricti1ns vvl1ole, restorit1g them to tJ1eir pre-victimisation status, recog,lising the harm done and facilitatit1g clos t1re and healli1g. ViC'tims of crime 1nay be financiall~l compensated for the harms they l1ave st1ffered. This may be awarded itl any of three 1nait1 ·way-s: • ar1 order U1a t an. offe11der pay res ti tu ti.on or reparation to the ,1ic tim , as part of tl1e offe11der 's sen.tence; • a clain1 to a statutory cotnpensation s~heme in lvhicl1 awards are assessed ru1d pfild by tl1e govertlillent; and/ or • con1pensation in H1e civil courts, typically throt1gh a clain1 tl1at a tort has bee11 coinmitted" Across all sche1nes and legislative provisions, it is generaUy l1eld that tl1e offender should be respo11sible for covering tl1e costs of t11e victin11 as part of t11Le sente11ce that is in1posed by tl1e Court.

594

Crime and Justice~ A Gulde to Crlmlno~ogy

There tnay also be otl1er ways to receive compe11sation tor loss or it1jury, includit1g persoital and housel101d itis11rance_, 1notor vehicle accident con1pensation and ·w orkplace compensation schemes. 1

Claim during crimin al proceedings 1

In Sout11 Australia, a sentencing court may deternline restitutio11 fron1 the offender as part of the sentencing process_, but tl1e purpose is 11ot finan.c ial reparation to tlte ' 'ictim (Kircl1engast 2017) . Similarly, Queensland and the Altstralian Ca.pital Territory, restituti.011 and compensatio11 orders are sente11cit1g orders (and not merely orders ancillary to tl1e sentence)_, but fi.t1a11cial repara't ion is not a pttrpose of sente11cing in any of those jurisdictio11s. Nevv South Wales, Tasma11ia. atvd t11e Nortl1er11 Territory, restitutio11 and compensation orders are 1nade in ad,d ition to a sentence. Northern Territory and Tasmania enforce restitt1tion and compensation or,d ers in the same manner as fines. [22.200]

1

All Altstralian jurisdictions, except for Western Australia_, provid e for a11 order to be 1nade as a sentencing o.p tion that an offender pay compe11Satio11 for loss, injury or damage arising frotn.a violent offe11ce. Ir1.. Western Australia, the povver to order compeiisatio11 is restric ted to property damage or property offe11ces (.ALRC 2010). A victin1 is required to advise the Court if they wisl1 to receive restitution_, so that it can be ordered durit1g sente11cing . Each of tl1ese jurisdictio11s has different approacl1es towards the consid eratio11 of a11 offe11der's financial resources, a victim's views on sei1te11ce, n1ecl1anisms for enforcement and the possibility of imprison1nen.t as a consequence of defaldt on. payment of an order. lt1 practice, restitution orders are rarely enforced due to the complexity ru1d trautn.a for victi1ns_, ·\ivl10 are already fatigued from the criminal trial process (Victorian Se11tencing Advisory Cou11cil 2018). 1

There is tl1e possibility of 1nediatio11 between an offender and a victim in son1e jurisdictions for·so1ne types of offe11ces tl1at 1nay result in eion1pe11Sa.tion to a victitn in son1e Jurisdictions. State-bas ed victims, schemes (recogniti on p ayments, compensatory s chemes .a nd victims, support packages) 1

Increasit1gly_, traditional models of state-based compe11Sation have come under b11dgetary p.resstires, a11d on.e -off payni.ents a.re ge11era11y critiqued as lllSttfficiently targeted to the needs of victinlS arisi11g froni. critne and a.btlSe. FttrU1er to this, tl1e la11guage of the sche1nes is in1portant as it is noted that the a1no1u1ts available cannot com.p ensate for losses arisit1.g from ' crunes. [22.21 O]

There are three .A us tralian jurisdlc tions ¥vi th financial assistance schemes tl1a t have a capped recognition payment, tiered by offence_, in New So11th Wales, Queensland., Victoria a11d the Australian Capital Territory. Foltr jurisdictio.n s, South AttsrraHa, Tasmania, Western Australia a11d the Nortl1ern Territory, retain the la11gl1age of compensation.

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585

All eigl1t schemes use ,d ifferent criteria and levels of proof to establish tl1at injttries arose from a violent crinlli1al offe11ce (WA Gover11n1e11t 2018). Seve11 of the eigl1t jt1risdictions require a report of the i11cident(s) to the police for most victims, but there a.re .provisio11S it1 three schemes tl1at do 11ot reqt1ire certain victims to report the it1cident(s) to the police. 1

A recent stt_1dy suggests that '~ tl1e recogtution pay1ne11t sl1ouJ d be explicitly linked to the offence (or the w:ro11g) itself - as opposed to tl1e 11arm or injury ... W11en focused on tl1e offence, survivors are able to see the recog.1:1itio11 payn1ent as reflectit1g a societal-based assess111ent of 'seriot_1s11ess' co1u1ected to the nature of the wrong as a violatio11. This is in. co11trast to a payn1ent Hi.at varies de.pe11ding on the degree of e1notional or otl1er harrn tl1at is experie11ced by an individual" (Daly et al 2019a, 2019b). Tl1e language used to describe tl1e scheines is sig~lificai1t fror victil1i.s of crime. Sorne j11risdictions do not refer to co1npe11sating the har111s aris.it1g frorn tl1e cr·i me, but rather paid u1 recognitio11 of them, or to provide assista11ce ¥vith the costs arisil1g from tl1ose harms. In Queensla11d, t11e payment is caHed special assistance or a recognition paymetlt; irt · evv Sotl th Wales ai1d tl1.e ACT, a recognition pay1nent; a11d .it1 Victoria, special fit1a11cial assistance. By co1nparis011, folrr other Australia11 jttrisdi.ctions (Westen1 Australia, South Australia, Nortl1ern Territory and Tas1na11ia) have retairted tl1e la11guage a11d approacl1 of co1npensation (ie, to determine a payn1ent for ecoilomic and no11-eco11omic loss). Tl1e purpose o.f state scl1en1es is a policy· isstte that should be ''practically g)'"olmded and responsive to the reality of victi1ns' 11eeds1 botl1 day-to-day and over the 1011ger term'' (Holder & Daly 2017}. lt1 lieu of tllis realisation., governments are i11creas.it1gly offeri11g different services a11d supports, 'livl1ich include programs tl1at deliver therapeutic colmsellit1g, legal and court-based supports and rnater.ial assista1'\ce, by way of l1ome sectuity upgrades, .h elp \'\Tith medical an.d dental costs. Civil c.l aim s 1

[22.220] A civil clai1n for a victi1n 1nay be awarded ir1 recog~utio11 of a tort t11at has been suffered, st_tch that a plaintiff n1 that matter may be entitled to be pl1t in tl1e positi,o n they \ivo·u ld have been. in., but for the tort t11at was co1nmitted. These claims are n1ostly covered by the co1runon law, a11d are generally not an easy n1ethod of obtaini.ng red:ress f:o r V\ rongs to victims of critne, for a number of reasorts. Tl1ese include litigatio11 .fatigtte and the risk that legal costs n1ay be awarded agaitlSt the victin1 where a claim is not st1ccessflt1 or where the costs o.f proceedings exceed the award of da1nages. Such ot_ttcomes may re-victimise a person and for these reasotl.S are often. avoided. 1

7

1

Kirchengast (2008) has observed that, "To expect criminal la\--v to be tl1e chief vel1icle of social control of an. increasingly diverse and 1nulti-valued society, in which the i11dividual is able to be substantially w .r onged by

596

Crime and Justice~ A Gulde to Crlmlno~ogy

large i11ternatio.nal corporations, 1nay restllt .it1 t11e complete exclusion of partictdarised victim issues fron1 the co1mnon lavv·. The fact tl1at offensive conduct can take several forms means tl1at O'Ur legal system.sholtld be able to impose differe11t pu11itive ter1ns, to meet the particular needs of the ' ' ictim".

Non-government organisations 1

[22.230] Victims' support services are essential to providitlg support to a victim of cri1ne. Parallel to t11e crilni11a] Justice response, services tend to be victi1n-ce11tred1 ·vvith a focus 011 safety, e111power1nent, recovery and advocacy. uVictim lobby grottps it1 Australia have become increasingly incorporated it1to tl1e provisio11 of professio.nal victin1 st1p.p ort in t11e 11.011gover11me11t sector. This has effective depoliticised victim support a11d has taken m11ch of U1e fundit1g for services av1lay f.ro1n grass roots organisations liI1ked with activistn" (Mess11er 2016). Depoliticised victims support grou.p s '""have flourished \·v ith support from State a11d Federal gover1une11ts, to support adt_tlt survivors of child sexual abuse, survivors of don1estic and family viole11.ce and victims of \rioler1t crimes a11d sex11al assault" (Booth & Ca.rringtort 2018). Victims' services are ' 'ariously modeUed across Australia11 states and territories. Some may be targeted a t certain types of offe11ces such as sexl1al offences or homicide, while otl1ers may be targeted to partict1lar col1orts, sucl1. as childre11, people vvith disability, LGBTIQ commtnuties a1l.d c11lt11ral and li11gtlistic diversity. While it is entirely appropriate that fuere be a broad range of services in. terms of accessibility, so1ne li1nitations are observed to arise wllen services are ti:ot appr'o.pria.tely linked, or able to share .itliormation. Across services .it1 all jurisdictions, there has been increasit1g a\varet1ess of the i1nporta11ce of collaboratio11 .it1 ser\rices betwee11. agencies and .GO services. Atl exa1nple of this co-operation is the Family Safery Framework (FSF) in South Australia, \vl1ich provides for i11formation shar.it1g between various services, \Vith an. objective of keepin.g V1lon1e11 and chHdren \vl10 are identified as being a t seriouJS risk of l1ar1n safe fro111 ,riolence and ab11se.

As tl1e vt.d11erability of victln1s it1 the co11text of it1tersec tionali ty is increasit1gl}' ttnderstood, the.re may be a need for 1no.r e cohesive service d elivery 1nod els. For example, hovv a perso11. with disability n1ay be margit1alised \iVl1ere victimised by family violence. Further stltdies on the effectiveness of victims' se.r1rice rnodels \vould be helpful in this context. Directio.n of victims to ongoing supports other tha11 con1pe11satio11, sucl1 as 'tl1erapeutic counselling and practical s·u pports reflects another developnle11t t11at is intended to assist victi.tns of crin1e a11d abt.tse. As opposed to \.Yaiting for settle1ne11t o.f clain1s or awards o.f compensation, tl1ese services are available to assist with immediate needs arisitlg from victin1isation. These are often provided by NGOs, through service agreen1ents vv·ith state and territo.ry governme11ts and age11cies. Trau1na-in£or111ed service delivery is it1creasil1gly ide11tified as essential, wile.re a service can address n1ultiple areas of 11eed. This is increasin.g ly

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587

recogi1ised .in. the context of fa1nily violence, \Vhere complex trau1n a 1nu.st be 1u1derstood i11 ord er to respo11d ap propriately to tl1e needs of a victim, wl10 may also 11ave been \rictimised as a chiild , and 1nay disclose furtl1er \rictimisation in the context of sext1al and other violent offences or abltse.

CORRECTIONS AND JUSTICE 1

Victims units [22.240] Victi1ns ml.its i11 various jurisd iction.s p rovide information to \ricti1ns of crime and ma.it1tain a register tl1at allovvs victims, if tll.ey cl1oose, to be p rovid ed with ittlom1ation about an offer1der's location. They 1nay also p.r ovide victims w ith details regardi11g offender it1carceratio11, i11clttding classificat~on, parole ru1d scheduled h earit1gs of the parole board as \ve.ll as poten tial release tim es., TI1ere are victiins' units .it1 Sol1th Australia, Tasmania etc. 1

Victims registers [22.250] FolloVilin g senteti.cit1gc1 or a custodial or co1nm1mity-based orde.r, victims n1ay register 011 the victims regis ter. Whet1 sente.n.c e details are changed fo.r m1 offe11,d er, registe.red victin.1s are 11otified . It has been observed tha t the 11um'b er of registered victims remait1S lo\v cotn paratively vi. it11 the nunl.ber of p ote11tial regis tered victi1n s (0 Co1u1ell & Fletcl1er 2018) wh ich n1ay be attrib uted, among o ther things, to the failure of ptllblic officials to advise victims about th e registratio11 process, as well as cases predating tl1e for1n al victims register. It is also widely recogi1ised tl1at trattnl.atised victims may experience difficulty iI1.engaging ·vvith tl1e process of registration or may not wish to receive any furtl1eJr infor1nation abou1t tl1e offet1der post-trial 7

1

1

This o p t-i11 system has been largely criticised, particularly in cases of family \riolence. Tl1ere is a risk that victirn s n1ay asst1me tl1ey are it1cluded in tl1e register but are not, give11 the SW research w hicl1 higlllights a lack of victim kt1owledge and participatio11 in th is co11text (Kircl1engast 2014).

Parole [22.260] Specific laws have been enacted in all jurisdictions to aUow victims 'to participate in th.e parole 11rocess, altho11gh the p recise terms vary. All Austrruia11 jltr.isdictions that itnpose a statutory obligation to i1tlo.r111 victirns of an ttpcoming parole hearit1g first require those victims to register th eir d etails. A submission by a victi1n to a parole hearing assists iI1 cases vvhere victims provide detail of their experie11ces and expectations. Vi ctim st1bmissions may provide coil.textual information about tl1e offendit1g it1 addition to outlinit1g victims 1 wisl1es. Sul,,missions may lead to non-contact clauses ati:d parole co.n ditio115 such as excludir1g offend ers from certa.it1 areas. h1 maki11g a determination about parole, parole boards cotisider a large ra11ge of inforn1ation in determining whethe.r a prisoner p resents a risk of harm to 1

Crime and Justice~ A Gulde to Crlmlno~ogy

598

H1e co1n1n unity before deciding ¥vhether they should be released. As such victi1ns do not have the 01uy say about an offender'·s parole. Ad,rocates for victims argue that while it n1ay be perceived that there is a tl1erapeutic benefit in tern1s of be.it1g l1eard a11d respected., '"'here a ' li ctim reqltests an offen.d er co11tit1ue to be imprisoned and person is released im1to tl1e community, t11e victim may feel further victit11ised if those expectat1o.n s have been n1isma1taged. 1

1

Victim-offender relations an d restorative justi ce 1

1

[22.270] The adversarial process has it1Stitutionalised or firmed up the interests and ittlluences of the ' ' icti1n as a matter of official justice. .As we have seer1, much Ii.as bee11 do11e to carve ottt represe11tations of the victi1n despite that it is the crown that is addressed and addresses the jttdge in the crun.it1al court. In tl1is section, we "rill offer a few comments on restorative justice and sotne alternati,le revievv-s of victi1n-offender· relations. The pathway of victi1ns to\Alar'ds a restorati011 of justice may J:1ot i11\rolve cri1ninal justice or may not it1volve it iI1 its 1n ost adversarial c01i.stella tion. For lna11y victit11s, there will be 110 reportn1g or reoordit1g of the event that tllay, upo11 prosecl1tio11, be deeined a crin1e. As noted ir1 Cl1apter 2, we k.t1ow from victitnisatio11 sl1rveys that n1ai1y categories of crime have lo¥v reporrn1g ru1d recording 111Ltt mbers. Tlus tneans that tl1e \ricti1n l1as n.o t come forvvard or if she or Ile has come forward, has l1ot been able or sufficien.t]y st1pported in persis ti11g to have tl1e matter recorded or ll.1 vesliga ted or prosecuted as a crime. 1

It is a.lso argued by critical victimologists that the exte11t of victirnity will be related to the relative status of the persotl or group beir1g ha.rtned. Royal Cotnmissions into aged care, itlStittttional abuse and bankit1g and finance have 11eard testimony frotn people ¥vho have been systematicaHy defrauded or sexually or pI1ysically abused b ltt V1lhose voices would 11ot have been heard. witholtt the supportive resources of t11ese inquiries. In each case, it is tl1e relative po·vver of tl1ose who 11ave drawn profit or other resources fron1 the vulnerable that, for some, is 11otable. As the victimology literature tells us, ' ' ltlnerable peoples and people in positions of relative ,d ependence or .P owerlessness are more likely to be victims and less likely to be able to restore justice for themselves a11d society. 1

1

With respect to restorative justice, this is a long-standit1g idea tl1at is i.t1 part a respo1ise to tl1e lack of efficacy of the adversarial systetn. In it, the victi1n is central, a11d it pivots 011 the prior adinission of responsibility by tI1e offet1der. In tnost jurisdictiotlS in Australia, youths ·vi.rho com.nut relatively mit1or' critne who admit to their wro11gdoing tn ay be co11fronted by H1.e victim .it1 a fatnily grou.r confere11ce or victi.tn_,offe11der 1nediation, where son1e fortn of reparation or restitution \Vill be sought as a consenstts remedy. Such. forums may be ,o f im1nense value to victims, precisely because they place that iJ1dividual w ith the povv.er and respo11sibility of justice as \Veil remedy. 1

The current syste1n is offe11der- rather tha11 victim-centric. h1 being offe11dercentric, as offender a dvocates 11ave argued, it does not revolve arot_u1d tl1e 1

Chapter 22 VlcUlms~ crlm~ nal ~ustllce and vtctlmo~ogy

589

holistic needs of the offender, butt co11centrates 011 risks and rigl1ts. Restorative jtis tice enco1n passes obligations to conl.m t111i ties, vie tin1s and fan1ilies and places a relatively lesser emphasis on t11e state as a11 aggrieved or interested party. A victim-centric a.p proacl1 w·ould encourage nl:ore involvement by the victim, ideally it1 the resolution of the crime i11 brokered .restitution or restoration. Since not all victims are prepared to engage in tl1is process and victi1ns 1na.y be 1nore or less retributive in their outlook, it is easy to see th.at there \vould be relatively less certait1ty or consisteitcy in outco1nes where \rictim it1terests and desires play a more ce11tral role. 1

CONCLUSION [22.280]

h1 tl1is cha.p ter, \Ve have discussed l1ovv tl1e victim it1teracts ¥vith t11e crim.iital justice syste1n. Crin1e depends Ltpon some vers~on of harm, and hartn is experie11ced by a perso11 or by a group, where sometimes tl1e group may be society as a w·h ole. TI1ere are a few points to take av.7 ay frotn this . synopsis. At eacl1 stage of t11e justice process, the harn1ed perso11 or \rictim n1ay be more or less influential in determi1m1g outcomes. Perhaps the biggest hurdle for 1nany harrned persons is to alert a11 official it1 the first insta11ce. P'a rtictllarly for it1terperso11al family violence cases, the first hurdle is too higl1. If police are calledf there 11eeds to be decisio11 1nade regardit1g the reliability of availability of evide11ce i11cltlldi11g the credibility of tl1e V!.ritJ1ess accou11t. Getting police to respo11d to an actio11 as a crin1e is tl1e second hurdle. Follovvit1g this, tl1e victim may t1eed to represent t11e 11ar1n she or l1e l1as experie1l.ced to officials, possibly at trial. T.h is is a furt11er httrdle tl1at many victiJns retreat from_, altl1ough there are 11o·v.7 devices it1. place to l1elp protect the victim from character-assassinatit1g cross-examit'latio11. Finally,. the last hurdle is the re1nedy. 011ce g11ilt is dete.n nin.ed or ackt10\vledged, the victitn 1nay have an. opportu11ity to engage in a process of restorative jttstice. Tlus opportunity 1nay not come at tl1e most ideal tit11e in the victin1's recovery pathV!.ray and can be confrontit1g to many victims recovering from brau1na.

QUESTIONS 1. What is meant by "secondary victin1isation"'?

2. Wl1at is trauma-informed service deliverv? ..J

3. Ide11tify one or hNo negative outcotnes where crin1inal justice is 11tore victim-centred? 4. Consider the concept of offenders as victims_, how do vve respo11d to this duality? 5. Hovv 1night a VIS be a double-edged sword? 6. filf victim's riglTts are 11ot eiliorcea.ble nuay vicfuns t11e11 rely upon. 11uma11 rights charters?

Crime and Justice~ A Gulde to Crlmlno~ogy

590

REFERENCES Legislation and 'Victims Charters/Declarations Victims of Crlme Act 1994 (ACT)

ACT Govem lrig prlriclples for the treatment of v1ctlms of cr~me 1

Victims Rights and SupfJOrl Act 2013 (NSW}

NSW Charter of V~ctlms !

R~g his

Victims of Crime Rights and Services Act 2014 (Nl)

NT Your rights after a crime Victims of Crime Assistance A.c t 2009 (Qfd)

QtD DeelaraUori of Fu ndamentaJ

Prlric~ples

of Ju stlce

Victims of Crime Act 2001 (SA)

SA DeclaraUori of Prlnc~ples Governing ~eat merit of Vieti ms Victims of Crime Assistance Act 1976 (las}

TAS Non-leg lsJlated ,charter of Rights for vlctlms of crlme Victims Charter Act 2006 (Vic) Victims of Crime Act 1994 ~A}

WA Gu~deHnes to protect arid support vfctl ms

ARTICLES, CHAPTERS AND TEXTS ACT ,Government 201a ~ Cha,rter of Rights for Victims of Crime: Options Paper (J ustllce and Com mun lty Safety DJrectorate~ Canberra). Ahrens c 2006i " BeJng SHenced: Tlhe lmpac.t of Negative .Soc~al Reactions on the D lsc~osure of Rape" i American Journal of Community Psychology~ vo~ 38 rio 3-4, pp 263-27 4. Ahrens C E & Campbell R 2000, r'Asslstilng Rape Victims as They Reoover from Rape: The Impact on Fr1lerids1' ~ Journal of Interpersonal Violence, vol 15t no 9~ pp 959-99 6. 1

Amir M 1971, Patterns In Forclble Rape (University of Ch~cago Pressi Chicago). Astbury J 20 06, Services for vtctlm/Survtvors or Sexual Assatilt: Identifying Needs, Jnterventtons and Provision of Serv~'res In Aus:tr~dla (Australlan Centre tor the Study of Sexual Ass au Its lssu es Paper No 6). Austranan Law Reform Commission (ALRC) 201o, Family Violence: A. National Legal Response (AlR,C , Fin al Report .Sydney). Befoot DE 2005i "'The Third Wave of Crilme Vtctlms' Rlghts.: Stand~ng , Brigham Young Untversffy Law R,e vlew v01 1, no 2, pp 255-365. i

Remedy~

and Revte\'ll'J,

1

Booth T 2015, "Vlct lm Impact Statements, Sente nc~ rig arid contemporary Standards of Fairness In the Courtroom", [2 015] UTSlRS 26 In Wiison D & Ross. s (eds}, CrlmeJ Victims and Polley: International Cont,exts and Local Exper/,ences (Palgrave Macmman, New York).

Booth T 2 016t "Introduction ", (2016] UTSlRS 33 In Accommodating ,Justice: Victim Impact Statements In the Sentencing Process (Federatlo n Press). 1

Chapter 22 VlcUlms~ crl m~ nal ~ustllce and vtct l mo~ogy

591

Booth T & Carrlngton K 2018, ~'Victim Support ~n PoHcy and Legal Process ~n Austral la - stlll an AmbJvalent and Contested Space" , ~n Walk late s (ed)! Handbook of Victims and ~·c11mology (2nd edi Tay~or and Frarncls~ London) p p 293-307. 1

Campbell R & R~a

s 1999, ~second ary Victim lzauon of Rape VIctlms~ lns~g hts from Ment al

Health P rot esslonals Who Treat Survllvors of Vlolence'"', Violence and Victims, vo I 14 , no 3i pp 261-275. Daly Ki Holder R .& Meyer V 2019a, The FAVE Profeet, Financial AssJs:tance and Victims '

Experiences Techn-'caJ Report No. 5:

Contexts~ Data~

and Decisions by Victim Assist

Queens/.and for Sexual Offenc.es (School of C~ln1lno~ogy and Crim Inail J ust lce, G rlfftth Crlmlnology lnstltJute, Grilttlth Unwers.lty, Brisbane). Daly Ki Ho lder R & Meyer V 2019b r The FAVE

Project~

FlnancJal A ssistance and Vlctims ·r

Experiences Technical Report No. 7: Victims' Experiences Seeking Rna.nclal Assistance for

SexuaJ O«ences {Schoo~ of

Cr1m~noJogy

and Crlmlnal Just ice~ Grltflth1 Crlmlnolo gy ~nstltute t

G rtmth

un lvers~ty, B rlsbane) . de Unt w & Dalton D, 'iAnatomy of a Moral Pan~c: The ~L~st of S8

3

and Runaway

Construct!on~sm", Critical Cr~"mlno!ogy t In press. de Unt W & Marmo M 201B, Narrating Injustice Survival: Self-Medlcatton by VlctJms of Crlme (Palgrave). ~ Knowl edge

de Unt W, Manmo M, Groves A. & Laughton V 2018

Exchange: Co~~aboratlve

Reflex lvlty on SeU-Medlcated Victims of Crime'"', Current Issues In Criminal Justice , vo~ 30, no 1 i p 19. de Unt W, Marmo M, Groves A. & Pocrn~c A .2 017 , ' Crime VlcUmsf Self-M ed~catlon;

F~nd l ngs

from a Study ~n South A ust ralla", lntematJonaJ Review of Vlctimnlogyi vol 23, no 2 ~ pp 159- 177. Ellas R 1986, Th·e PoJltJcs or ~ctlm1lsa:t1on: Victims~ Vtctlmology and Human Rights (Oxford Unlvers!Jty Press, New Yiork). FaJrelou g h

s & Jones I 2018i "The Vtctlm In Co urtu

i

In Walklate

s {ed}.

t

Handbook of Victims

and Vlc:tlmotogy {2nd ed ,. Taylor and Franc is, l ondon) pp 211-228. HalI M 2 009, Victims of ,Crime: PoJlcy and Practice In Crtmlnai Just/ice (Wman Pub Ils hln g, Cull ompton). Ho~der

R 2015,

~'SaUsfled ?

Explotilng1Victims' Justice

J ud g ments~,

In ~ Ison D & Ross

s

(eds), Crime~ Victims and PoUcy (Pa~grave Stud les In Vlc~ms and Vlctlmo~ogyt Pa~grave Macm lllan, London). Ho~der

R & Daly K 2017j " Reco-gnltlo nt Reconnectlloni and Renewal : The Mea.nlng of Money

to Sexual Assault Surv~vors", Internati onal Review Orf Vlctlmology, vo124 , no 1i p 25. Kennedy J & Eastea~ P 2011 , "Shades of Grey.: lndeterm Inacy and Sexua~ Assault Law Refomisr i Fttncters Law Journal~ vol 13, pp 49-77 . Kll rchengast T 200-S t "The Purrrtlcatlon of Torts~ the Consolld at lon of Crlmlnal Law and the 1

Dec 11 ne of VIct lm Power"~ Unfverslty of Notre Dame Austratta Law Review~ vo I 1

o, pp 83- 114.

Kllrchengast T 2014 t Participation of Victims of Crime In New South Wales Court Processes: A Study Commissioned by Victims Serv1ces (Flnal Report~ NSV!J). Kllrchengast T .20·1 sa, ·" Vlc-tilms' Rights and th e Right to Review: A

Coro1~ary

of the Vlctlm 's

Pre-Trla l Rights to JlusUcel'J t International Journal for Crime, Justice a·n d SoclaJ Democracyt vol

5, no 4 , pp 103 -1 15. Klrchengast T 2016b, " Bnforceable Rights for

V~etl ms

of C1nlme ~n

de Vlcttmolog!a J Journal of Vlctlmology, vol 3, p p 11- 4.2.

Adversar~al

Just1ce'1 , Re.vista

Crime and Justice~ A Gulde to Crlmlno~ogy

592

Kllrchengast T 2016c, Victims and the Criminal Trial (P·a~grave Macmlllan, Houndsmms). Kllrchengast T 20·17 Vlcflmology and Vlcflm Rights: lntemedionaJ Compara.ttve Perspectfves (RouUedge, axon). t

1

Mendelsohn B 1 956 ~ "The VlcUmology 'j Etudes tntematlonales de psycho-soclologle crlmJneJJe ,, vo~ 3 ~ pp 2 5-26. 1

Messner MA 2016, ~ forks In the Road of Men's Gender Polmes: Men's Rights vs Fem lnlst AJlles.1' t lnternatlonal Journal tor Cr/meJ Justice and Social Democracy,, vol st no 2, pp 6,..20. 1

NSW Department of JusUce 2015j NS w·Code or Practice: Charter of Victims ' Rights. NSW Stand~ng Committee on Soc.lal Issues 2019, NSW Gay and Transgender Hate Crimes between 1970 and 2·010 (Report No 52~ NSW Government, Sydney). 1

NT Government .20·1H~ Discussion Paper: Vlcflms Attorney Genera~ and J usUce, Darw~ n).

o 'Con neH M 2011

j

or Crtme Reform' (Department of the

Vlcttms' R'ghts: Integrating Vfcttms In Criminal Proceedings (Commissioner

for V~ctl ms f Rlghtsj South Austra~~a).

o 'ConneH M 201 5~ "The Evolutlon of V!lctlms' R~g hts and Serv Ices ~n Australia", In Wll Ison D & R.oss s {eds) Crime, VlcUms and Polley: International Contexts an·d Local Experiences t

(Pa~grave

M acm~ IIan, New York} pp 240-277.

O'ConneH M & Fletcher S 201 8~ r',G ~vlng VlctJJms a Vofce ~n Parole Hear1ngs: South Australla's Experten cel'J" Journal or VlcflmoJo.gy and Victim Justice ~ vol 1~ no 1, pp 42-62. 1

Tasman Ian Lavi Reform In sttbute {TLRI} 2o16, FacllJtattng Equal Access to Justice: An lntermed1ary!Commun/icatlon Assistant Scheme tor Tasmania.? {Issues Paper No 22, Tasman Ian Law Reform In sttMe, Hobart}. V~ctor~an

law Reform Commission (VLRC) .2014 " The Role of Victims In the Criminal Tnal Process (Consulltatlon Paper, VlRC, Melbourne). V~ctor~an

law Refonn Commission (VLR.C) 2015" .lntorrnafion Paper 4

Vlctor~an

(VLRC~

Melbourne).

law Reform Commission (VLRC) 2016 1, Victims of Crlme 1n the CrlmJnal TrlaJ Process: Re,port ~lRC, Melb.ou rne). 1

Senteno1ng Adv~so ry Counc 11 2018, r' Resti1tuUon and Compensatl on Orders Repo rtllJ ~ at https://www.sentenclngcounc 11 .vlc.gov.awpu bl fcaUons/ resUtutllon-and-compensatlon-orders-report. Vlctor~an

von Hentlg H 194S, The Crlmlna.I & His Victim: studies tn the SoclobJ-0/ogy of Crime (Shoe Str~ng Press Inc}. We11 Ing s 199S "Victims In ttle Cr~m Inal Process; A u tmtanlan An aJysls of V~ctlm PartlclpaUon In the Charg ~ng Dec~sl on"~ Arizona Law Review, vol 30 ~ no 1, pp 95-117. t

Western Australla f'JVA) Government 201 S ~ Review or Criminal Injuries Scheme In Western Austral/a: Discussion Paper (Department of J ustllce WA Govemment). f

WoHgang ME 1958, "An Analysis of· Homlc~de-Sulc~de "j Journal of CllnlcaJ and Experimental Psychopathology, vol 1 9 ~ no 3j pp 20S-21S.

USEFUL WEBSITES World Soc~ety of Vlctlmofogy, uNaUonal Soctetles of VlcUmo~ogy WebsUes f, at http:/Jwww. worldsoc letyotvlctlmo logy. orgllresou rcesll Inks/. 1

3

Austranan ColIege of Appl~ed Psychologyj "VlcUms of Crlme", at https.: /111 bguldes.navltas. comic. ph p?g-285(l20&!p=189S625.

Chapter 23

Experts, lay people and forensics Jenny Wise University of New England

[23.10] [23.20] [23.90]

[23.150) [23.290) [23.36Q) Questions

INTRODUCTION

593 FORENSrc EV~DENC E IN THE COURTROOM ............................................................. 594 [23.40] Determining t he reliability of forensic evidence............................................. 595 CREAT~NG NEW STANDAROS FOR FORENSIC TESTS .. ..... ..... ...... ..... ..... .. ... .. ... .. ... .. . 597 [23.120) Ensure t hat legisla1tion is foHowed . ... .. ... .. .. . .. ..... ..... .... . ...... ..... ..... .. ... .. ... .. ... .. . 600 DETERMINING EXPERTS AND EXPERT EVIDENCE.................................... ................ 601 [23.200) Celebrity experts .......................................... ,............................................... . 608 JURIES 1 FORENSIC EVIDENCE AN D EXPERT WITNESSES ...................................... . 608 I ol .... II I .

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Key lv,o rds: forensic evidence, CSI effect, \'\rhite coat effect, rogue's ga]lery effect, displace1ner1t effect, expert, jury

I NTR0DUCTION 1

[23.1 OJ

Forensic science is n.o w an i11tegral part of many cri11tit1al justice systems around the world. It is rot1tinely used in crirnit1al n1vestigations, prosect1tions and exonerations it1 .A ustralia, the Uni ted Kingdom and the · nited States of .America.. Generally speaking, forensic sciertce is .."''tl1e a1-.,.plicatio11 of science to tl1ose criminal and civil lavvs tlla.t are enforced by police agencies i11 a criminal justice system'' (Saferstein 2015: 22). Currently, forensic scie11ce is being used to:

1. inform lalv enforcement agencies abot1t the t1.at11re of crimes; and 2. assist it1 tlte detection and prosect1tion of known offe11ders. The in.creased availability of a diverse ra11ge of forensic evidence has assisted the criminal j·u stice process. There have bee11 cou11tless cases where the use of forensic scierice has 1nea11t tile differe11.ce between a case being solved a11d prosecuted, and a case beit1g lost (Fraser & Willian1.S 2009). As a result, many forensic science providers now see tl1emsel.ves as an "integral part of the

594

Crime and Justice~ A Gulde to Crlmlno~ogy

crimi11al justice system" (McCarh1ey 2006: x) and have becon1e key players in the col1rt process as expert witnesses.

This cl1apter focuses on tl1e ttse of forensic e\7idence in crin1inal trials. 111e courts h.a ve an im.po.rta11t role i11 deterrnit1it1g the reliab.i1ity and ard tnissibili ty of forensic evidence; creatn1g ne\.Y sta11dards for f:orei1sic testing; and ensuring tl1at tl1e existii1g legislation is bei11g follovved. Experts, and expert evidence, play a large role in determining vvl1at forensic evidence is ad11utted into col1rt. As such, this chapter also exa1ni11es tl1e rule of tl1e expert wib1ess in presentit1g forensic evidence to t11e court, and the problems tl1at ca11 arise fron1 th.is. For exan1ple, there 11ave bee11 cases where experts have mar.1ipt1lated t11e evide11ce tl1at is presented at court to u11fairly im.p licate an accused vvith guilt. In additio11, a.s forensic science is beco1ning it1creasing po1-,ular to the ge11eral .r u.blic (Embar-Seddon & Pass .2009: 3-4), it has bee11 argued tllat laypeople within t11e court process are beit1g affected by tl1e presentation of fore11Sic evidence and expert testimo11.y. For exanl.ple, tl1.e increase in dra1natised crime scene it1lvestigatio11 sli.ovvs such as CSI and Law and Order 11as apparently led to cl1anges it1 jt1r:y patterns, w l1ich. "'Till be discu.ssed later in this cl1apter (DiFonno & Stern 2007; Dowler et al 2006; Shel to11 e t al 2006). 1

FORENSIC EVIDENCE IN THE COURTROOM Forensic science is used in criminal trials to detern1it1e tl1e legal guilt or im1oce11ce of a defenda11.t. ForetlSic evidence s11ch as finger.p rint or deox)rribon11cleic acid (DNA) evide111ce (see Dialogue box .23.1 at [23.30] for a brief discuss.ion of DNA evid ence), and fore11sic expert testimony, is often a vital part of a cri1nit1al trial as it ca11 assist the judge or jttry in making a decision about gtrilt or innocence (McCartney 2006: 76). While foret1Sic evidence has a lot to offer the critnit1a l trial i1rocess, the crimi11al trial is also vital for ensuring tl1e on.g oitlg integ)rity of forensic evid ence tecl1niques . By allo\ving tl1e judge to rule certain evidet1ce ina,d nlissible, courts can exclude tulSafe evidence, enstire that police follow the legislatio11 and can even create new standards ·wi'tllit1 the scientific community before s uch evid ence is admissible again. As such, the adn1issibility of fore11sic evide11ce depei1ds 011. a m11unber of factors, such as the reHabili.ty of the evide11ce; U1e nl.anner in which the evidence was obtait1ed; the .i11terest of fa ir11ess to the accltsed; and in rela tio11 to pt1blic it1teres t (McCartney 2006: 74).

[23.20]

1

DllALOGUE B0X 23.1 1

Forensic DNA evidence: Sci,e nc·e , technology and key issru es [23.30] DNA p rovides law enforcement officials wnh the ability to u niq ue~y identify an offender through

bio~og ical

material deposited at a crime scene.

595

Chapter 23 Experts, lay people and fiorenslcs

Repetitive sections of DNA (short tandem repeats or STIRs) vary betw,een individuals and this is what is tested to create a forensic DNA profile. As only non-coding secUons of the genome are tested! a ~' match between a DNA profi ~e from a crime scene sample and a DNA profil,e from a suspect sampl e provides probabilistic support for inferring that the samples are from t he sam,e person" (S.mith & Mann 2015: 2). This is why probabilities are used during court cases rather than stating that ~ is an exact match. DNA evidenoe relies upon the quality and number of STRs that can be analysed. For ,e xample! if a DNA sampl e is d 1egraded~ less markers wiH be tested! which may mean t hat only a partial profile can be produced. This means that the likelihood that t he sampl e matches one specific person decreases. 1

1

1

1

1

1

1

1

Determining the reliability of forensic evidence 1

[23.40] Otte to tl1e fact tl1a t forensic evidence a11d fore11sic testi1no~1 y ca11 be ltnreH.able, nlisleadit1g a11d inaccurate (these issues will be d iscussed iI1 the follo'\ivil1g secti011), one of the roles of the courts is to keep out scie11tifi.c evidence that has not been ;'proven'' or "accepted as valid,, by tl1e ge11eral scie11tific field. Tl1e United States led tl1e \vay with detern1ining wl1at consti'tltted reliable scientific evide11ce liVitl1 the Frye standard it1 1923 (Frye v tlnited States (1923)), and th.e11 the Daubert s·t andard in 1993 (D aubert v Merrell Dmv Phar1naceu.ticais (1993)). 1

Un.d er Frye, the courts detennit1ed tl1at evide11ce that had n gained acceptance in tl1e partict_tlar field in winch. it belongs" wotild be admitted at trial. Tl1e Daub,e-rt standard introduced a th ree-pr011ged approach that increased tl1e role of the judge i11 ad1nitfu1g reliable evide1l.ce. Scie11tists prese11.ting expert evidence now needed to show tl1at tl1e evidence:

1. had been peer reviewed a11d Vilas generally accepted by the scie11tifi.c com111lmity; 2. \Vas of so11nd 1nethod ologyi and 3. had a known error ra te (Cole 2001: 284) . Wl1ile Australian courts have .uresisted tl1e temptation to specify formal ad1nissibi1ity criteria" (Edmo11d et al .2016: .5), such as those outl ined in Daul1ert1 th ere have been several instances \vhere Australian judicial officers l1ave referred to these America11 standards wl1en deten1ilitln.g the admissibility of evid ence. Courts can also have the respo11sibili~ of determini.t1g hovv mu1ch emphasis sl1ould be placed on fore115ic evidence and forensic tesrnno11y. lt1 early 2010, concerns ·vi.rere raised it1 Au.stra.lia over tl1e validity of adtnitting 0 NA e\ridence as the sole piece of evidence it1 critninal cases. The case i1l Dialogue box 23·.2 at [23.50] .d emonstrates th.e role that courts have i1l constantly reviewi11g the reliability of .fore11Sic evidence in cri1ninal cases . 1

Crime and Just ice~ A Gulde to Crlmlno~ogy

596

DIALOGUE B 0 X .23._2 1

Challeng1e s t o t he use of DNA evidenc·e as t he sole pi ece of evidence at t1r1ial 1

[23.50]

In eady 2010, the High Court of Australia agreed to hear an appeal by Benjamin James Forbes ov,er his conviction on a charg,e of unlawful sexual intercourse without consent in the AustraHan C~p ital Territory (ACT). His appeal was based on the argument that ''DNA evidence cannot, by itseH, be used to convict people on criminal charges because it cannot show conclusively that two samples of g enetic material are flrom the same person" (Merritt 2010). As DINA evidence can only show a degree of probability that a crime scene sample matches an accused person, Fo1rbesj appeal rested on the argument that DNA ,evid,e nce alone cannot prove guilt beyond reasonabl e doubt. The High Court of Australia dismissed the appeal on t he basis that the DNA evidence was strong and that it was open to the jury to convict Forbes on DNA evidence alone if t hey beli,eved that it proved his guilt beyond reasonable doubt (ABC News 2010). As such, the court reaffirmed the reliability of forensic DNA evi dence and set a preced,e nt for DNA evid ence to be the sole piece of evid,e nce at trial. 1

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[23.60] Sit1ce this case, there have been further appeals in tl1e Higl1 Court agait1st the i1se of DNA evidence a1011e to convict a11offender. 111 tl1e more recent case co\rered in Dialogue box 23.3 at [23.701, the court fotind in. fav our of the defendant a11d quashed a co11viction based solely 011 D . A evide nce. 1

Challenges t o DNA evidence: Fitzgerald v The Queen [2014 HCA 28 [23. 70] 0n the 19 June 2011, a group of men attacked two

peop~e

in their home in South Australia w ith a gardening fork and a pole. One victim died within four days of the attack and the second sustained serious brain injuries. The prosecution presented evidence that the group of men intend,ed on inflicting ,grievous bodily harm to the persons in the house; however, the prosecution d id not have dir7ect evidence that Fitzgera~d inflicted harm on either of the two victims. Rather, the prosecution presented circumstantial DNA ,evidence that was ~'obtained from a sample taken from a didgeridoo found at the crime 1

597

Chapter 23 Experts, lay people and fiorenslcs

scene to establish the· appellam 1s involvement in the attack'~ (High Couirt of Australia 2014a). The prosecurtio n airgued th at th is DNA sam pie was transferred to the didgeridoo at ·the time of the attack and, therefore, provided evidence that Fitzgerald was one of the attackers. However, Fitzgerald arg1ued 1hat his DNA had been transferred to 1he crime scene by one of the other attackers~ w ith whom he had shaken hands with the night before the attack. The High Court of Australia set aside the convic1ion arguing that the prosecution had not proven t he case beyond a reasonable doubt. In particular, the coU1rt argued that the evidence presented did not Hraise any inference about t he time when or circumstances in which the DINAjj was actuaUy deposited at the crim e scene, and that this constituted reasonable doubt and that 1he evidence uwas not capable of supporting the appellant's convictionu (High Court of Australia 2014a). 1

[23.80] More recentlyf however, tl1e High Court of At_tstralia has bee11 criticised by acade1nics, legal practitio11ers and jour11alists for its decisi.011 itl INIM v The Queen 12016] HCA 14, 'V1lh.ere it has bee11 argued tllat the ruling i11 this case "h.as tneant that ludges can11ot stop evide11ce fron1 beitlg sho\vn t,o the jury O'' er co11cerns of reliability,, (Mannix 201'9a). ·o espi'te IMM v The Queen 11ot beit1g concen1.e d \l\lith scie11tific evide11.ce tl1e ramificatio11 of the rtiling n1eans that ''issues of reliability an.d credibility should play 110 part in the trial jttdge'"s assess1nent of probative val11e" (Et.imon.d 2017: 110). A.ccording to the Uniform ElJidence Act 1995 definition, probative value refers to "tl'le extent to wl1icl1 evide11ce could ratio11aJ]y affect tl1e assesstnent of the p.robability o.f the existe11ce of a fact in issue-"". As such, t11is ruling it1evitably in1pacts Ltpon tl1e ard tnissibility of forensic evide11ce and essentiaUy n1eans that juries are now required to evalt1ate the reliability a11d credibility of such evidence, which is problematic for a numb,e.r of reaso11s. As Hamer (2017: 726) higluigl1ts, t11is ruling 11as the potential to a!lov'l vveak evide11ce to tu1duly sway tl1e jury and, therefore, disad va11tage the acctlSed. 1

1

CREATING NEW STANDARDS FOR FORENSIC TESTS [23.90] Whe11 we tl1ink of forensic science, ·live often thi.tik that it is reliable atl!d .free .fro1n hlnnan error. However, 11ot all forensic scie11.c e teclmiques have been. closely scrutinised by tl1e scientific com1nt1nity or th.e criminal jt1stice system . TI1e result is an absence of scientific s tandards associated \Vitl1 many forensic identi.ficat~on 'tecl11uq.tctes., According to the Natio11al Researcl1 Council (2009: 107-108): 1

1

· uch fo.r e.n sic evid ence - including, for examp le, bite n1arks and firearm and toolmark ideutifications - is introduced in cri1nina l trials without any 1neaningful scienti.fie validation, determina lion of error rates, or reliability testing to exp lain the limits of the discip line.

598

Crime and Justice~ A Gulde to Crlmlno~ogy

This means that courts ru1d juries are relying on evider1ce that has 11.o t been validated or rigorously tested, and .it1 ma11y cases ;'111atchesf: are 1nade on a st1bjective basis. The problem lies h1 the fact that it is prese11ted as reliable at1d sciet1tific evidence iI1 cottrt when it is clearly 11ot. Eve11 e,1idence that has previously bee11 validated can become 11nreliable if the technology adva11ces to the point that it is producin.g res11lts that have 11.ot been tested. For exan1ple, as Dialogue box 23.4 at [23.100) li.igJ1lights, advartces in DNA. techt1ologies meant that cottrts in Victoria '.Yere admittit'lg DNA statistical evidence 't hat relied upon. new standa.rds t11at l1ad not been. validated by the scientific comm11ni ty. 1

DllALOGUE B0 X 23.4 1

DNA evidence banned from Victorian court cases Evidence that has previously been accepted as admissib~e in court still requ ires constant re-,eval uation~ especiaHy when the technology used to analyse and oompare statistical matches is constantly being improved and updated. Problems can then occur when new syst,e ms are adopt,e d without t esting the reliability and validity of the new techniques. An example of this occurred in Victoria at the end of 2009.

[23.100]

1

In December 2009, the Victorian Chief' Commissioner Simon Overland ordered a ban on the use of DNA analysis results in Victorian court cases. Overland to ld the media that the "discrepancies between technological advances and t heir mathematical interpretation had meant t hat the system need ed to be reviewed;J and that any DNA evidence produced under this new system shou~d not be used as evid,ence until the new system had been vaHdated by the scientirfic community (Buttler 2009). 0vedand maintained that the science behind DNA evidence was •'rock solid" but that the science had outstripped the mathematica~ model (Buttler 2009}. At the end of .2009, it was expected tha1 the ban on DNA t estimony would affect six criminal cases in the magistrates and county courts and lead to appeals of trials that had been heard sinc,e September when the new system was implemented (Rout&. Wallace 2009). In Januairy 2010, the ban was lifted ·from Victorian courts, but the 0ffice of Pub~ic Prosecutions was asked to oon1inue reviewing cases that may have been affected by the new technology (!Flower 2010). The Victorian Director of Pub ~ic Prosec urtio ns also issued a d irective shortly a ft,e r this " requ iring that al I cases wholly or principally dependent upon DNA evidence are to be referred to him for considerationj' (Vincent 2010: 56). 1

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[23.11 O] In another example, fit1gerprint identificatio11s ha\re historically been vie\ved as being infallible despite a lack of empirical evidet1ce to assess

Chapt er 23 Experts, lay people and fiorenslcs

599

its error rate (PCAST 2016: 9). Since tl1e time of its introduction i11to coltrts it has been claimed that finger.p rint frictio11 ridlge ru1alysis has a zero error rate, which is not actually possible, a11d tJ1ere has been little researcl1 c011dttcted on the statistics used and the prevalence of different ridge flows a11d crease patterns ( ational Res.ear'Ch Coumcil 2009: 144). In essence, t11e presence of fingerp.rin.t testimony has bee11 ta.ken as tl1e positive identificatio11 of a suspect "'to Hl.e exclusion of all ot11ers' (Edn1ond et al 20t9: 13). Follo"living the 2009 National Research Cou11cil re.p o.rt, vvhich questiorted H1e fallibility of fingerprit1ts, the Federal Bureau of Investigations began assessit1g H1e validity a11d reliabUity of fingerprin·t exan1iner's decisions (PCAST 2016). 'B ased on this researchf' the false-posi ti ve (false-match) rate of latent fingerprint analysis has been estimated as being as higl1 as one error it1 306 cases, althou.gh. other studies have estnnated a more alarmn1g figure of one error for every 18 cases (PCAST 2016: 9-10). Future \\rork is needed to correctly estimate error rates for latent prints L~of varyit1g ,q uality a11d co1npiete11ess" (PCAST 2016: 10). 1

Historically·, the lack of sta1'\dards surrow1dit1.g fiI1gerprint evidence was hidden to a certait1 extent by the behaviour of fingerpri11t experts. ntil rece11tlyf' it "\ivas difficult to find a fingerprit1t expert who would chaUe11ge t11e evide11ce of another fingerprint expert. For exa1l.1ple, Cole (2001: 265) has 11oted that d11ring t11e 1980s, tl1ere \Vere cases .i.t1 America \vl1ere defe11ce experts n1erely 'jrubber-stamped" the opit1ions of the state's experts \vitl1out revievving the evidence carefully. 111 addition, British fit1gerpri11t exa1niners of th.e sa1ne time period were co11cer11ed abo,u t maintaining U1e assertion tl1at errors i11 declariI1g fingerpriI1t matches \Ve.re itnpossible, except iI1 the case of fabricatio11 or 1nisc01i.duct ·Botl1 American a11d. ·British exa1nit1ers \Vere devoted to e11sttrit1g tliat courts vie\ved fi11ger.p rint evide11.c e as a .r obust ru1d error-free teclmique. 1

As a co11sequence of rising concertts over t}1e u~se of forensic experts and evidence in court, Victoria11 courts have taken a 11uni.ber of s teps to i1n.p ro,re tl1e reliability of all fore11sic evidence presented at trial. ln regards to fingerprints, exa1nll1ers are llO\rV rot1tineiy requested to provide error rates to the jtiry (Mannix 2019b) de1nonstrating a shift in tn1.d erstan.ding that fi11gerprint evidence is no lon.g er con.side.red iii.fallible. Fttxtl1er, in January 2017, Hle Supre1ne Court of Victoria updated their Practice Notes 011 expert evidence in cri111i11al trials to specifically ot1tli11e a11 expertfs duty to the court and \·vl1at tl1e expert report should cover (including limitations to tl1e n1etllods or da ta relie d upo11). As sucl1, this represents two "\ivays in which the Victoria11 courts l1ave increased the standards of forensic evidence. Dr Litizi Wilson-Wilde,. direc tor of the Attstralia11 National filnstit11te of Forensic Science, has also bee11 quoted in Hi.e media as sayi11g '~ haix andl bite mark foren sics v\rere 110 longer u.sed it1 Australia"' as a co11seq11ence of the 2016 Preside11t"s Co11nci1 of A.dvisors on Science and Technology (PCAST) report (~la1ui.ix 2019b). ·o espite these c}1anges, there are ongoing co11cerns and challenges over the ge11eral use of forensic evide11ce i11 Australia11 co11rts. 1

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G r1me and Just Ice~ A Gu Ide to Crlm~no~ogy

FIGURE 23.1

Example of a f ing erprint 1

Source: hUps:/J\f\f~. plxabay.com/en/fingerprlnt-detectlve-crlm lnal-1 46242.

Ensure that legislati on is foll owed 1

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[23.120]

Courts cru1 exclude expert testimo11y on forensic evide11ce if it is fou11d that the evidence was collected .i.t1 co11travet1tio11 to a p articular piece of legislatio11. f ,o r example, in Nevlf South Wales, the police are requi red to follo\v the Crimes (Fo~·ensic Procedures) Act w 11en collecting evidence from crime scenes, suspects, victin1s ai1d vol11nteers. Where officers co11trave11.e tl1ese procedures, the coltrt has the authority to exclud e the evidence. Ho\i\lever, there have bee11 11umerotts circun1stances \\there such evidence has been held admissible on th.e basis of p11blic interest (see Dialogue box 23.5 at [23.130]).

DIALOGUE BO,X 23.5

R v Claren1c e Herman White [2005] NSWSC 60 [23,. 130]

~n

R v Clarence Herman White, the prosecution presented DNA evidence, which the defence claimed was collected in contravention of the New Sourth Wales Crimes (Forensic Procedures) Act. In t his case~ the police

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Chapter 23 Experts, lay people and fiorenslcs

suspected that White was responsible ·f or the murder of PhyUis Jean 0 'Brien at Katoomba in 2003. However, rather than directly requesting a DNA sampl e from White, and thus alerting him to the fact that 1hey werie in1erest:ed in him as a suspect for a murder case, the po~ice ainrested Whne on dirfferent charg,es. During his arrest, he was granted permission to smoke a cig1airette; howeve1; the police forced White to smoke in the van dock of the police station. He was then directed to discard the butt in a clear spaoe in the corner of the dock, with the intention of coUecting it and submitting n for anallysis. In this case, 1he police used their discretion to force the suspect to try and make his sample public property by depositing it: on the ground. 1

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The judicial offioer found that, in t his case, the police van dock did not constitute a public space, and the DNA sampl e was. therefore, obtained in contravention to 1he New South Wales Crimes (Forensic Procedures) Act. H owev,er, the judicial offioer ruled that the ev idance was sti II admissible on 1he ,g rounds that t he desirability of admitting the DNA evidence outw,eighed the undesirability of admitting1the evidence. 1

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[23.140] 111 relatio11 to D . A evidence, Gans (2007: 606) argues tl1at Australia11 judges routiI1ely decline to exclude illegally obtained DNA samples on the ground that the police's error was .it1advertent atld do11e V1litl1 'tl1e best of .it1tentions for the \vider commtu1ity".

11

DETERMINING EXPERTS AND EXPERT EVIDE CE [23.150] 'Becattse experts are presentit1g evidet1ce that is usually complicated or based it1 science, all Atctstralian jurisdictions have rliles that gover11 wli:o can prese11t expert evide11ce (see Dialogue box 23.6 at (23.160] for a11 example of the legislation it1 · e\v Soutl1 Wales). Most States '\!Vithit1 Australia, including NSW, Victoria, Tasmania, the ACT, the ort11er11 Territory 1.=n1d tile Federal Co·u rt of Australia, have legislat~on based on the U11ifor1n Ev:ide11ce Law, or Unifor1n Evidence Acts, which allov1ls consiste11cy across tl1e different jurisdictions. 1

Evidence Act 1995 (NSW) [23.160] In New South Wales, the presentation of expert evid ence is 1

1

regulated by the Evidence Act 1995 (NSW}. Like Daubert, the Evidence Act provides judges with the ability to exclud e or accept evidence on the basis of it being relevant to the facts of issue (Pt 3. 1), and experts can only testify on factual evidence or opinion-based evidence if the expert has surfficient specialised training in a particu~ar area (s 76}. Using the Evidence Act, judicial ,o fficers have discretionary powers to exclud e evidence when there are 1

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Crime and

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A Gulde to

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challenges against the reliabil ity of the evidence, the relevance of 1he evidence in relation 1o probative valuei or concerns relating to expert opinion evidenoe (Edmond 2008). However, Edmond and San Roque (2014: 324) have argued that there are serious problems with t he Evidence Act 1995 (and! t herefore! the Uniform Evidence Acts), which are aHowing judges to admit unreliabl e ,evidence. For example! Edmond and San Roque (2014: 344) comment that: 1

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none of the admlsslbU lty rules or .. . exclusfons re~evant to expert opinion evidence requ~res the trlal Judge to consfder whether the technique worksi whether the analyst ~s protic lenti or whether an incrlm lnaUng op Inion Is actually probative.

Edmond (200S) has also previously raised concerns about numerous cases where judicial officers in New South Wales have ove~ridden legitimat,e challenges to forensic evidence on the basis that it is deemed to be of a high probative value· (Edmond 2008}, as highlighted by Dialogue box 23.5 a1 [23., 30]. 1

[23.170]

In order to present expert eviden ce a t court, a11 expe.rt needs to be:

1. Qua,l itied to p .r esenf evidence 1

[23.180] Historically, there have been 11u1nerous cases w·h ere courts have relied tllpon expert testimon y frotll people who did not h old qt1alifications for the type of evidence Hiat tl1ey· were .rrese11tiI1g on. During tl1e 20tl1 cem1tury, courts arotm.d the w·orld began to institute changes tl1at req uired experts to be specialists in their field of stud y. Experts are now req·u ired to provide th.e co11rt with evidei1ce of th.eir fomi.al qttalifications, their practical experie11ce \Vith analysing the type of evidence H1ey are p resentu1g on, ati:d to sho\v evidence that they have direct knowledge of the case at 11a11d. Soni.e jtrrisdictions 11ow also require experts to complete a training course on provid ing expert testimo11.y, and to be registered before tl1ey ca11 present evidence at court. 2. lndepen dent of either the prosecution or defence 1

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[23.190] Experts are required to present unbiased , factual information to tl1e cou.r t. Des.p ile this, t11ere have been claims tl1at experts "rho consiste1i.tly prese11t evidence for the prosecutio11 are more likely to be l)iased and find results tl1at are sy1npathetic to the prosec11tion case by either manipttla ting H1e results to incl11d e the defenda11t, or by: fi11di.t1g it1co11clusive resttits tl1at fail to exclude the defendant (Aronso112007; Wise 2009: 192). These cases a re very rare, li.oV\rever, there have been .il1Sta11ces in tl1e . nited States where this has been fottnd to happe11. For exan1ple, in 1998, a 16-year-old Ho11st011 (US) boy \Vas arres ted ai1d co11victed for kidna.p ping and raping a local lvoman. 01u y after having been impriso!l1ed for over four years was it d iscovered that tl1e laboratory 11ad deliberatel)r take11 D . A test results tl1at clearly exo11erated Sutto.n , tnanipulatitl g tl1em so that it appeared as thougl1 he was 01le of the rapis ts (Arons011 2007: 203). Many experts are Il.OW meni.'b ers of 1

Chapter 23 Experts, lay people and fiorenslcs

603

societies that have their own professional codes that outline obligatio11s of expert vvitnesses. For exa1nple, · embers of U1e Australian an.d. ·. ew Zealand Forensic Science Society (ANZFSS) are botlndl by a Code of Professional P'r actice. This .p articular code ol1tlit1es that "forensic practitioners n1l1st act with ho11esty, inte,grity, fairness ... 1a11d ~ must act truthf11lly a11d. objectively,, (ANZFSS 2014: 1-2). Tl1ese cod.e s seek to ensure tl1at experts retnain i11de.p en.d ent, have sufficie11.t qttalifications and ,d o not prese11t o.pinio11 evidence. 3. Capable of presenting complicated sci entific material to the layperson

[23.200] As experts are presenting evidence to judicial officers and jury men1bers who ofte11have110 ki1owledge of the scientific or teclmical principles behind fore11sic testing_, th.ey 11eed to be able to explain th.eir evidence to tl1e jt1ry in a straightforward and easy to ttndlersta11.dl maru1er. This is especially the case where there are several experts who disagree with 0 1ne another's testimo11.y. This topic will be covered it1 more detail later i11 this chapter. 4. Waty of presentjn g ' 1opinion» evidence 1

[23.21 O] E~xperts should ,o nly presei1t evide11ce that they 11ave specialised kt1olvledge in. Despite this_, experts may testify outside of tl1eir boundarJ' of kt1owledge (see Dialogue box 23.7 at [23..220]) and such evide11ce is often accepted by courts because tl1ere a.re a lack of standards st1rrol1nding 11ow to establish n specialised kno,.v ledge and differe11tia te it froJn op.lllion evidence. According to Edrno11"'-i (2017: 108), no Australiru1 cot1rt requires experts that are .P resenting opit1io11 evider1ce to provide ''e,ridet1ce of tl1e underlying procedure's validity (ie, that it actually \Vorks)_, its level of error, or the proficie11cy of the 'expert'". As already discussed_, t11e JM.M v The Queen Hig.h Co·u rt ruli11g may f11rt11er inhibit th.e adequa te assessment of specialised kno·w ledge as ''it raises tl1e questio11. of 11ow a trial judge sl1ould deter1ni11e tl1e probati\re value of such o.pit1ions witl1out lo1owing abo11t tl1e reliability (o.r trust\·v orthin.ess) of the evidence'' (Ed1no1i:d 2017: 114). II

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DllALOGUE B0X 23.7 1

lnadmiss,ibility of facial mapping and body mapping evidence: R v Hien Puoc Tang [2006] NSWCCA 167 [23.220]

Hien Puoc Tang was convict ed of armed robbery in the NSW Distric1 Court based on expert evidence analysing closed-circurt 1elevision (CCTV) footage. The p rosecution used expert testimony from Dr Meiya Sutisno in order to link Tang to the crime scene using facia~ and body mapping techniques. Although the original tidal jud ge admitted t hat t he ori,ginal photograph was '1oo blurry; the facial feat ures are qu irte hard to see; it i.s not possible to see if the 1

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Crime and Justice~ A Gulde to Crl mlno~ogy

person is of any particular racia~ compositi onjj and the jury wou~df therefore, be unable to determine who was in the photo; his Honour did find that Dr ,s utisno was an expert in the field of forensic an a1omy and had a particu Iar speciaH:y in facial identificat ion (R v Tang [2006]). According to Edmond (2008: 5): 1

~'Fac~al

mapplngf.I Involves the ldenUtlcatlon of a person of Interest using anthropometric and/or morpho~oglcal analysfs of the face. n usuaHy entalls, respectlvelyf quantitative and/or qualltatlve comparisons of security and CCTV ~mages of an unknown person w~th Images of a known person. "Body mapplngH Involves a s~mnar set of processes focused on the body, posture and movement.

Dr Sutisno testifi,ed that Tang was involved in the robbery based upon her comparison of the security images to a se1 of high-quality police images of Tang: A. The results of the analysis lends support to positive fdentnlcaUon. Given my experience ~n looklng at 'faces and analysing them, matching them, etcetera and bulld~ ng them up as weH1 I formed the oplnlon that g rrven that number of matches 1'm of the opinion that they·'re of the same 1 one and the same. Q. One and the same person?

A. Yes. (R v Tang}

In reviewing the admissibilirtty of this evidence, the Court of Cri minal Appeal concluded that although there is a body of expertise based on facial identification, there is no similar foundation for admissibility of body mapping. In addition, questions were raised over Dr Su1isnojs expertise: The t hree opinions of Dr sutlsno In the present case do not,, In my vJewf go beyond a ~bare lpse dtxlr1 (Latin translation "he hlmself saild lt1' cited In Edmond 2008: 5]. Dr Sutlsno did not Identify ttle terms of the "strlct protocor' that she purported to have applied,, nor did she set out the basis on which the "protocol" was developed (R v Tang}.

In additi on, the Court raiis,e d concerns about the lack of quantification of probabilities in regards to facial mapping. In particular, the Court discussed the ,g,eneral probl em that imaging and mapping experts face in lacking ~'a naUonal database of facial characteristics or any accepted mathematical formula ... from which conclusions as to the probability or occurrenoe of particular facial characteristics .. . can be drawnu (R v Tang (2006D. The Court ruled that the reasoning process was inadequat,ely exp~ained and that as a result both the facial and body mapping were incapable of supporting ''specialised knowledgeu opinions about id,e ntity (Edmond ,2008: 5). During this case, his Honour drew "a distinction between evidence of points of similarity in facial anatomy and evidence of id,entityH (Honeysett v The Queen (2013]). In the ru ling, his Honour reco1mmended 1hat Dr Sutisno should be allowed to testify about simiilariti,es between 1he two sets of photographs, but 1hat she should not be ab~e to identify the accus,ed as a result of this evidence. 1

1

[23.230] In R v Tang, the Court decided not to investigate tl1e lack of reliability associated vvith facial and body mappit1g, despite linking tl1e

Chapter 23 Experts, lay people and fiorenslcs

605

evidence back to cases that had q·uestio11ed problems sucJ1 as a lack of a matl1ematical fo.rtnula or a qt1an.tifiable database. l11Stead, tl1e Col1rt focused on. tl1e isstte of "specialised kno,vledge"" In doing so, this case 11ighlights tl1e tendency for courts to allolv problematic eviden.c e into tl1e cotutroo111 and as Edmon.cl (2008: 7)1argt-tes a general "disinterest in reliability'' . This is trol1blli1g because, as ma11y j11dicial officers atl!d lawyers have limited kn.o wledge of scie11ce they are ttn,q ualified to detect ·" vhen an expert is n1aking a factual statement, an educated g·uess o.r at1 opinio11. ln so1ne cases, opinions are treated as facts by judges a11d juries creating do·u bts about the safety of a verdict, and it1 son1e cases convictions l"tave been t.Juashed as a resttlt of tl1ese problen1s (see Dialogue box 23.8 at [23.240] for an exam.p ie of this) . 1

DllALOGUE B0X 23.8 1

Inadmissibility of' opinion evidence: Honeysett v The Queen [2014] HCA 29 [23.240]

In 2011 , the Di.strict Court of New South Wal,es C onvicted Mr Honeysett of armed robbery ,o f a hotel employee. The main pi ece of ,evidenoe at trial was CCTV footag,e. The prosecution present,ed expert testimony from an anatomist, Professor Henneberg, on anatomical characteristics that w ere common to Mr Honeysett and Offender 0 ne. This analysis was based on Prof,essor Henneberg watching the CCTV footag,e and images of Mr Honeysett while in po~ice custody. During 1he original 1rial and appeal. t he prosecution argued t ha1 Professor Henneberg's testimony was uadmissible because it was evidence of an opinion that was whoUy or substantiaUy based on his ~specialised knowledg1e' within the meaning of s 79(1) of the Evidence Act 1995 (Nswrj (High Court of Austtralia 2014b). In admitting t he evidence, both Court's accepted that Professor Henneberg d id hav,e specialised knowledge in anatomy and had experi,e nce in viewing CCTV footage. However, upon appeal to the High Court, the prosecution admitt,e d that they relied upon Professor Hennebergjs 1estimony becaus,e of his k nowledge of anatomy, rather than his experienoe of viewing CCTV footage. As such, the High Court held that •'Professor Henneberg's opinion was 11ot based whoHy or substanUaHy on his knowledge of anatomy: his 0pinion regard ing each of the characteristics of 0ftender One was based on his subjective impression of what he saw when he looked a1 the imagesu (High Court of Australia 20'14b). As such, this evidence fel~ outside t he ,e xception of s 79(1) and should not have been admitted to the original trial. Mr Honeysetrs conviction was quashed and a new trial ordered. 1

1

1

1

1

1

1

1

[23.250]

1

There have also been cases vvhere experts have created their own experiments to try to recreate crime scenes, and, as a c0115eque11ce, have created cotnpelling evide11ce for j11ries. However, in so1ne cases, tl1ese experiments ha,le been found to be otttside tl1e area of specialised knolvledge

606

Crime and Justice~ A Gulde to Crl mlno~ogy

and have, as s·ucl1, allowed successful. appeals of convictiotlS. For example, ·o ialog11e box 23.9 at [23.260] exa11lli1es tl1e s11spected 1nurder case of Carolit1e 'Byr11e it1 1995, where . ni\rersity of Syill1ey's physicist Associate Professor Rod Cross cond·u cted an experi111e11t that was designed to calctilate wl1etl1er Carolii1e was tl1rown off tl1e ''Gap" it1 Sydney or w l1ether sl1e j111nped.

Expert "experim,ent'' testimony outside area of "specialised knowledge": Wood v The Queen [2012] NSWCCA21 [23.260] The testimony of Cross was a key piece of evidence which was used to convict t he victim 's then boyfriend, Gordon Woods, of her murder in November 2008. Associate Professor Cross's ,experimentt consisted of four different male police officers throwing a 61 kg female volunt,eer into the Goulburn Police Academy swimming poo~ using a variety ,o f dirfferent t hrowing t echniques (Cross 2006: 96). In addition, a number of female subjects also ran ~ jumped and dove to assess w hether it was possible that Caroline had committ,e d suicide. Using the results of these tests, Cross testified that Caroline oould not have '~jumped or div,e d at sufficient speed to land where she d id'' (Cross 2006: 99). This evidence later caime under considerabl,e scrutiny when the Appeal Court argued that the experiments: 1

1

1

. .. were not soph1lstJca.ted and I have considerable reservatJons about the assistance they can provide. He set up experiments In which cooperatrrve fem ales were thrown by strong men Into a swlmm Ing pool. . . . His exper~ment:s were based upon the assum ptlon th at the person who threw Ms Byrne was able to take some forwiard steps before ~aunch l ng her; that Ms Byrne was conscious,, not struggllng and, furthermore, did not attempt to grab hold of the thrower or free herseJf from his or her grasp. Apart from the poS-slbmty that Ms Byrne was consclous1 I do not belleve that any of these assumptions are reasonable. (Wood v The Queen [2012ID1

The Court of Criminal Appeal quashed the murder conviction based on Cross s ~ac k of e.xperti s,e in bio mechanics and ruled that he testifi,e d outsid,e his area of "specialised knowledge" (id,ent ified as basic physics). Associat,e Prof,e ssor Cross (.2014: 368) has since argued that his li'scientific evidenoe was valid but that it was misinterpreted by the appeal court". In 2017 , Gordon Wood sued t he state of NSW for malicious prosecution. During this case, Wood js barrister 8iruce McClin1ock, SC, accused Cross of •'deviousness of the hi ghest ord er" and argued that he was motivated to convict Wood so that his book Evidence for Murder: How Physics Convicted a Killer would be pub~ished (and earn sales) (Gardiner 2017). Associate Prof,e ssor Cross denied these accusations. 1

1

1

Chapter 23 Experts, lay people and forensics

FIGURE 23.2

607

The "Gap" at Watsons Bay

Sou rc,e: https ://comm,ons. wlkl medla.orglwl kJ/FHe:Watson s.Bay0131.J PG.

[23.270] Fore11sic evid ence is ofte11 presen ted as a scientific hero" tl1a t is capable of solvi1lg crin1es a11.d preventi11g miscarriages of justice (V\'ise 2009). U11fortunately, tl1is is rtot a]ways the case. \i\'hile in 1nost cases the ttse of forensic evide11ce in a crin1i11al case assists the criminal justice systern to correctly id entify the offet1,d erJ' th ere have been cases where the it1acc11rate presentatio11 or interpretation of forerisic e\7id ence by experts has led to significant 1niscarria.ges of justice. LI

Experts ca11 provide in1proper forensic testimo11y to the co11rts \'\1hen they testif)l 011 evidence that does ll Ot meet appropriate S°Ciet1tific s tandards. For example, in order to reliably ai1alyse inany fore11Sic s an1p'1es, the irutial sample 11.e eds to be of suffici ent quality to be able to 111ake a match. It1 the case of fingerprints, where th e p ri11t is substantially smudged an expert n1ay be m1able to provide conclusive, o.r co1n1..,elling expert testin1ony that lit1ks a st1spect to a crime scene. Tl1ere are a 11umber of mechanisms applied by tl1e cot1rts iI1 an effort to e11sure forensic e\ridet1ce is reliable and accurate. These 1nechanisms include e11suring experts meet professio11al a11d ethical obligations; p rovidi11g tl1e opp orh.111.ity for the cross-exam.itlatio11 or rebuttal of expert wih1esses a11d

608

Crime and

Justice~

A Gulde to

Crlmlno~ogy

war11ings fro1n judicial officers 'to tl1e jury abo,u t forensic evide11ce. Hovvreve.r, as Ed1nond (2013: 86) notes, if these mecl1anisms a.re ttnable to add.ress tl1e 11 dangers and effects of u11relia b le expert opinion . . . tl1e11 tl1e ad1nissio11 of st1ch evide11ce may be mtlairly preju1dicial to the accused and may result in th e conv1ctio11 o"f an uu1oce11t perso11 . o

I

o

1f

o

Celebrity experts [23.280] During the late 1890s and early 1900s courts in E11gland bega11 to 11a,re a greater reliance 011 forensic a11d 1nedical evidence (Duff et al 2007: 48). Duri11g this period, a body of Crovvn forensic experts started 'to attai11 a level of celebrity statlts through their involveme11t in. notable criminal trials during the late 19th century (Duff et al 2007: 49). More rece11tly, fan1ous expert vv·i t1lesses s11ch as ·o r Heirry Lee, from tl1e U1lited States, cru1 sometimes appear in court. According to Dr Lee's Facebook (2019) profile blt_trb: Over th e past several decades Dr Lee has assisted iI1 the investigations of more than 8,000 crnniI1al cases, in cluding the OJ Si1npson case, the review of the John F Kennedy assassination a nd the death of Jo11Benet Ramsey .. . In addition, he has served as a forensic ex.pert for all 50 states a11d 42 countries ... and testified more than ] ,000 tilne-.s mcou rt. 1

Questio11s are i1ov1,r being raised about lvha't in1pact celebrity wih1.esses could be havit1g on juries a11d the trial process. For exan1ple, Ramsland (2004) has comtnenteid that lvl1en a fa1nou s forensic expert takes the stand, there is a uwo·vrl factor" wl1ich raises excitement in tJ1e 1nedia. and also raises tl1e potential for a jury to defer 'to tl1at exper't over someone l-vl10 is unkno·w n to the jt1ry. In co11trast, one A1nericru1 defence attorney argu1ed that the use of a celebrity vvih1ess cot1ld acttially be detrime11tal to the case if the local jury perceives the celebrity ex.p ert to be ubeati11g up 011 a local 'iV i bless" (Do\'\< d ie cited in Ra msla11d 2004). Tl1e use of celebrity expert witnesses can also lead to g reater publicity of a case a11d heighten.ed scrutit1y of the testi11101'1y provided tl1.rougl1011t tl1eir career. For example, itl October 2018, n1edia articles it1 An1erica focused t1pon Dr Henry Lee al.1d the possibility that he }"">rovided it1correct testimo11y. Examples of sucl1 headlines include: "'Iti.correc't' Testi1nony of Famous Fore11Sic Scientist Hel1ry Lee at Heart of Supre.tne Court Hearit1g" (Al'titnari 2018); and 11 How · a11y Murder Cases Did Celeb Forensic Scientist Henry Lee Botch?" (O' : eill 2019). The ttse of celebrity experts co1tl d be an i11creasing concern for c.rimiital trials, especially w l1en tl1ere are n11merous problems \Vitl1 jtrries rmderstanding forensic evide11ce and expert \·vih1esses as d iscussed itl the follo\ving section. 1

1

JUR ES FORENSIC EVIDENCE AND EXPERT WITNESSES 1 ,

1

[23.290] Since tl1e la'te 1980s and the early l 990s there 11as bee11 it1creasing research on tl1e prob le1ns vvi tJ1 usit1g fore11sic science in a criminal 'trial. One of the n1ain issues that courts arolllld the world face is the proble1n of jttries, or lay .r eople, tu1dersta11ding the forensic e\1idence that is presented 1

Chapter 23 Experts, lay people and fiorenslcs

609

Huougl1011t a trial. For example, i11 a11 enquiry into the Lindy Chatnberlain case, tl1e Altstralian MorliI1g Report (1987: 320-321) identified U1e follo"\!ving issues \vith using forerIBic science in crin1inal prosecutions: Juries inay attach g~at v1.-reigl1t to the opinio11s of experts o n tnatters outside the competence of the laytnan to understand. ]tis essential that everything possible be done to ens ure that opinions expressed by experts, especially Crovvn experts, be soltndlv bas~d and correct. J

While this re.p ort was give11 in 1987, there are still co11cer11s about the presentation of forensic evidence it1 courts across the vvo.rl d, and tl1e ability of lay people (or jurors) to co1nprel1end complex scientific evidence. Nt1merol1s studies 11ave been co11dl1cted 'iyorldwide to determine the exact in1pact tl1at fore11sic evidence and expert testimony has on. tl1e ]ttry. Most of this research indicates tl1at juries are itlfluenced by fo.re1isic evidence (Smith & Bull 2012), tl1at tl1ey ~struggle to u11derstan.d a11d app ly the statistical it1formation co11veyed. by forensic experts11 (Goodman-Delahln1ty & He\.vson .2010: 1), and tl"'tat jurors are 1nore likely to co11vict where tll.ere is s tro11g sciei1tific evidence, and in particular'[) ·. A evidence (Briody 2004; Findlay 2008i Goodma11-Delal11111.ty & Tait 2006; Wl1eate 2007)., Since the early 2000s, it has also bee11. argued that jurors are more likely to be svvayed by .fore11sic evidence as a result of the alleged CSJ effect (see Dialogue box 23.10 at [23.300]). 1

1

CSI effect [23.300]

In 2002, Robin Franzen was t he fi rst journalist to use the term CSI effect to describe the '~d istrict attorneys increasing worry that the shows fCSI: Crime Scene .I nvestigation] taint the jury pool with im possib~ high ,e xpectations of how easily and conclusively criminal cases can be solved using DNA analysis and other forensic science" . Academics have sinoe defined the term CSI effect as: 1

. .. the po pu Iamity of CSIJ Crtm#'nal M,nds, Crossing J'ordan ~ and other programs that portray scientific and forensJc evJdence-gathertng prooedures to catch cmlmln aJs; the "effecr' Is the rise ~n ex peetat Ions of real- lite crime vtctlms and Jury members. Prosecutors lament the fact that they have to supply more forensfc evidence because jurors expect this type of evldence1 having seen It on telev~sfon. (Dow~er et al 2006; 93B} ... a term that legaJ authorities and the mass media have coined to describe a supposed ~nfil uence that watching the teJevlslon show CS/: Cn'me Scene Investigation has on juror behaviour. Some have c lalmed that Jurors who see the hlg h--"quallty f orenslc evidence presented on CSI raJse their standards In reaJ trlals, ~n which actual evld ence Is typically more flawed and uncerta~n. As a result f these CSl-affected ~urors are alleged to acq uIt defendants more freq uently. (Tyjer 2006: 1050)

Crime and Just ice~ A Gulde t o Crlmlno~ogy

610

The d~mcu~ty some members of the general pub lie may find ~n separatl ng the deplcUon of real life from reallty glrves rise to the concept of the "'CS~ Effect" and Its possible d~sruptlve Influence on the cnlmlnaJI Justice system. (Cofe & Porter 2018: 113)

As the first two quotations suggest, the aUeged CSI effect has had two d ifferent impacts on criminal jury tria l outcomes. First , it has been argued that the jury is more likely to convi1c t wher,e ·f orensic evidence is present because ju ru rs believe th at it is rel iab~e and conclusive. This l eads to t he second alleged im pac1 of t he CSI eff,e ct, where prosecurtors have argued that the jury wm 1

acquit where ther,e is no forensic evidence. This argument is based on the idea that jurors are expecting to see the '1echnical w izardry'' that appears in CS/ in t he courtroom, and when the prosecution fail to produce infallible forensic evidence, many "'jurors find themselves disappointed when they encounter the reaJ world o f law and order' (Roane 2005). 1

In recent years, there have been numerous studies across Australia, America, Ma~aysia, Canada and Austria to determine whether t he CSI effect exists,

and whether it is impact in g on t he decision-making process of juries, ~egal practir1:ioners and even off,e nders (in terms of helping t hem to commit c rim,es, ,o r at least help them to evade identification). While there are a large number of journalists who support t he t heory of t he CSI effect, very few acad emics have 1

found evidence to conclusively state th at there· is a C SI e·f fect. For exam pie, SheHon et aJ (2006) and Podlas (2006) both found t hat the CSI effect d id not ,e xist, and t hat frequent vi,e w ers of CS/ wer,e influenced by the same factors 1

1

1

as non-~requent viewers, or by a larger "tech effect'~ associated with the advancement of t echnology (Shelton et al 2006). In contrast, Ghoshray (2007) and Schweitzer and Saks (2007) have argued, and used juror studies to prove, 1

that the CS I effect does exist. Whet her or not t he CSI effect exists, there is evidence to sug,g est t hat the increased interest in forensic science is having an effect on crim inal trials (Wise 2010) and changing juror verdi ct patterns, which is why it is important for experts to provide s impl e and reliabl e information to the jury. 1

1

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[23.31 O]

'DiFot1Zo atld Ster11 (2007: 507) contend, "The tnost significru1t problem posedl by the CSI effect is th.e misleadit1g preser1tation of foretisic evidence in the guise of scientific trut11". The tmderlying argtun ent made by 'DiF011zo and Stern (2007: 507) is that fore11sic teclmiciatlS are not 11eld to the same sta11daid s as otl1er ex.p erts in the courtroom; rather U1eir evidence is vie\ved as a "'"scientific bltllet for solving crimeu. As sucl1., experts in tl1ese areas are 11ot asked to prove tl1e science behit1dl th eir techniques and the tern1inology used by these experts ofte11 goes u11challet1ged. 1

Similar to the CSI effect,. there has been research to suggest tl1at tl1e white ooat effect or wlute coat sytldrome also impacts 011 the way jttries receive

Chapter 23 Experts, lay people and fiorenslcs

611

and understand expert evide11ce in court. Accordit1g to Dow11s ru1d Svvie11ton (2012: 319), the white coat sy11drome occurs whe11 '"'overly i1npressed jtirors overestimate th.e probative vallte of scie11tific evidence". Part of this sy11drome it1cludes U1e issues t11at DiFonzo and Sten1 (2007) raised whe11 discussing ho·w forensic evidence is acttially prese11ted it1 a co11rtroom. h1 2014, ABC Radio ·. ational reporter, Damie11 Carrick asked the questio11, '~filf a professor describes someone in a CCTV itnage as 'ectomorphic' (that's a fa11cy \.Yord for skit111y) or 'd,o lichocephalic' (tl11Lat's 11arruv1l-headed to you and n1e), is this Ulsefttl opinion based 0il expert knowledge or just the white coat effect?" (ABC Ra,d io · atio11al 2014). Dialogue box 23.11 explores 110\v the Higll Cot1rt of Australia has dealt \Vitl1 expert evidence that can create the white coat effect. However, Good1nan-Delahu11ty a11d Waka.bayasl-ri (2012) fotn1d that l:vhere adversarial experts ·w ere prese11ted to mock-jltrors, there was 110 evidence of a white coat effect. 1

1

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White coat effect in Honeysett v Th·e Queen [2014] HCA 29 [23.320] Returning to t he Honeysett case, during the original trial! Professor Henneberg was accused of using ~anguag 1e t hat created a white coat effect for the jury. s pecifical ~y! the High COU rt ru Ied: 1

1

Professor Henneberg rs evfdence gave the unwarranted appearance of scJence to the prosecuUon case that the appellant and Offender One share a number of phystcal characterlsUcs. Among other th~ngs , the use of technlcaJ terms to describe those characterls.Ucs - 0 ffender One and the appellant are both ectomorphlc - was apt to suggest the ex~stence of more telllng s~m llarlty than to observe that each appeared to be skinny. (H lg h Court of Austrana. 2014c) 1

Associate Prof,essor Katherine Biber has argued t hat essentially~ the High Court was "'concerned that by caHing a professor ,o f· anatomy to describe in anatomical language things that are visible to the naked eye of a layperson they were perhaps creating what some people call the white coat ,effect~ and that the jury may have given undue probat ive value to the evidence because of this scientific language (A8C Radio NationaJ 2014). 1

[23.330] While tl1e CSI and white coat effects are fairly vece11t co11cerns for colurts and juries; courts have historically grappled with admitting evidence that will have a11 u11fair f"'rejttdicial effect on the jury. Two otl1er "'' effects" that are examined it1. Dialogue box 23.12 relate to what is termed tl1e 11 .rogue's gallery effect' (debated as early as 1914 it1 English coiLtrts) and tl1e 1 "' displacen1e11t effect" a11d relate to picture ide111Ltif.ication evidence. 1

612

Crime and Just ice~ A Gulde to Crl mlno~ogy

DIALOGUE B0X 23.12 1

Pictur,e identif ication evidence: "Rogues' gall,e ry effect" and the ''displacement effect " [23.340]

Picture identification ,evidence refers to "ident ificat ion made wholly or part~y by . . . examining pictures kept for the use of po lice officersi' (s 115(1) ,o f the Uniform Evidence Act 1995). While Australian courts hav,e tended to agree that evidence of identification through photographs is legally admissible and relevant in particular circumstances, questions remain about whether such evidence should be exclud,ed on the basis that its Hprejudicial effect is out of proportion to its true evidential value. or on general grounds of 'unfairness• tJ (Alexander v The Queen [1981]: 12), or under s 137 of the Uniform Evidence Act 1995. 1

In particula~ claims have been made that picture identification evidence creates the Hrogues' gallery effectu and "disp~aoement effect''. The "rogues' galIery effectj:! ref,ers t o: 1

poJlce ... photographs of the accused may often strongly suggest to a jury that the accused has a crlmlnal record~ perhaps even a propensity t o commit a crime ... wh ich may then be highly preJudlcJal to an accused. (Stephen, Alexander v The Ql.Jeen [1s.a·1] HCA 1 7~ secUon 2 at page 27)i

The "displacement effectj' is aneged to oocur when witnesses rem,ember the imag e of the person iin t he photograph rather than t heir original sighting of the suspect/offender (ALRC 2010). 1

These issues remain current and ar,e stm being debat,e d in courts, with The ,Queen v Dickman [2017] HCA 24 oonsid ering the issue of t he ~'rogues gallery ,e ffecttJ (the court found that unfair prejudice was minimal and aHowed the ,evidence) and R v Blundell ~201 9] SASCFC 84 dealing with the "~displac,e ment ,e ffectu (in this case, a trial was r,e-ordered on the basis t hat the d irections given to t he jury about the d isplacem,ent ,effect wer,e insuffici ent). 1

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[23.350]

While s 137 of tl1e Evidence Act 1995 .r ermits the rejectio.n of

preju.dicial evid ence, in mai1y instai1ces such evidet1ce is s till ad1nitted as Dialogue box 23.12 de111onstrates. As such, there is a need to adopt alter11ative soltlltions to mitllinise the likelihood that jurors ¥vi11 sitnp1y associate forensic evi,d ence w ith. g11ilt. For exan1ple, Goodn1an-Dela11unty and H evvsom (2010: 5) found that if jui:ors were give11 clear' i1i.for1natio11, then they \Vere able to give the appropriate \Veigl1t to the forensic DNA.evide1l.ce. Eastwood and Caldwell (2015) have also fou11d tl1at defence expert witnesses are able to successfully edt1cate jurors regarding limitati,o ns in itutial expert's conclusion. This meru1s tl1at co1nplex forensic evidence sh otdd be used iI1 cottr t, bti t .fore11sic exper ts 11eed to adopt di ffere11 t strategies to ed ucate tl1e jtiry a11d inde.p endent defence experts should be used where th e evide11ce 1

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Chapter 23 Experts, lay people and fiorenslcs

1nay have a different it1 terpreta tio11. Ho\.vever, evidet1ce that is based on opinion evide11ce_, rather tha11. based Oil identifiable a specialised k.t10\Vledge" sl1ould be excluded (Edn1ond 2015: 127).

CONCLUSION [23.360] This ch.apter has provided a brief introduction to forensic science and ll:ow it is used it1 cou.rts. The use of forensic evidence l1as changed the process invol,red \''llith a criminal trial. ]t has 1neant that scientists 110\.\7 11ave a g,reater role in U1e cri1ninal process, as forensic e·\ridence and forensic expert testimon.y has become a vital part of the criminal trial., Howev·er, because of the problen1s ·\.\ritl1 forensic scie11ce and expert testimon.y (improper fore1isic testimo11y atl:d forensic misconduct), tl1e courts and ex.p erts themselves 11ave an ilnporta11t role i11 actu1g as gatekeepers of u11reliable evidence. Cot1rts sl1011ld only allow experts to testify on evidence that they have .r elevant kt1owledge and experie11ce "\rv.·ith and 011 evidence that is based on fact alone. 1

As fore11Sic science becomes more poptdar, and is used more frequently in criminal trials to provide evide11ce, tl1e role of the expert witt1ess is beco1ni11g more and n1ore important. TI1ere is evidet1ce to sttggest that juries are affected by the presentation of forensic evidence, a11d tJ1at tl1ey often fail to understand the complex scie11tific principles be}1ind the evidence. It is esse11tial tl1at experts present their evidence in a manner in \Vhich lay people can iu1derstand1 because if tl1e CSI effect ,d oes exis t, the11 juries inay be co11victing suspects on u11reliable evidence. In addition, as there hav e been cases of fraudule11t a11d ntisleading expert testin1011y1 it is vital that tl1e layperson does n.o t place too n1ucl1 emphasis on forensic evidence.

QUESTIONS 1. What do courts need to take into consideratio11 before allov1ling forensic

evidence to be h.eld adn1issible? 2. Wh.y is it importa1i.t f:o r courts to ensure that forensic testi1nony is reliable?

foren~sic

evidence and

3. Sholtld a jury or a judge deter1nit1e the reliability and credibilit y of forensic evidence?

4. Explain what tl1e CSI effect is and l1ov1l it is itnpactit1g on courtroom practices. 5. How valid is the CSI effect theory? 6. Wl1at strategies would yotl su.ggest for e11Suring that jurors understood the s"Cientific evide11ce presented to them?

7. In what circums ta11ces, sh.o ltld one piece of forensic evi den.c e be tts ed to convict so1neone? 1

8. Wl1at impact could a celebrity expe rt ·" ritness have on the outcome of a trial?

614

Crime and Justice~ A Gu lde to Crlmlno~ogy

Alexander v The Queen

[19,~J1]

HCA. 17

Daubert v Merrell ,D ow ,Pharmaceuf/cals, Jnc 113 s Ct 27 86 ( 1993)

Fitzgerald v The Queen [2014] H CA 29 1

Frye

v United Sta,tes 293 F 1013 (DC C~r) {1923)

Honeysett v The Queen [2o13] NSWCCA 135 Honeyse:t t v The Queen [2o14] HCA 29 IMM v The Queen [2016] HCA 14 R v Blundell [2019] SASCFC 94 R v Clarence Nerman White [2005] NSWSC 60 R v Hien Puoc Tang [2006] NSWCCA 1 67 1

R v White [2005] NSWSC 60 The Queen v Dickman [2017] HCA 24 Wood V' Tne Queen [2012] NSWCCA 21

REFERENCES ABC News 201 rO ~ "HIgh Cou rt Dlsm Isses DNA ChaHenge1' ~ A.B C News, 1S May 201 O at http:// www·.abc .net.au/news/storles/2010105/1812902903. htm. ABC Radio Natlo nal 2014:1 r'The Whrrte Coat Effect

Law Report~ 19 August 2014 at

~n 1Crlm~na~

Tr1alsn:1 ABC Radio Naf!onal

http~J/v.rww.abc.net.aulradlonatl onal/programsJ~a,.vreport/

katherlne- blber.15677 480 . Altlmarl D 201 a:l "In correct TesUmony of Famous Forensic Scientist Henry lee at Heart of Supreme Court Hearing l'J t Hartford Courant, 10 October 201.S at httpsJ/WWW.co urant cont/ 1

news/connect! cut/hc -n ews-sup rem e-cou rt-hen ry-lee-201a1o1 0-story. htm~. Aron son J D 2007 t Genet~·c LMtness: Science~ Law, and Controversy In the Making of DNA Protmng (Rutgers Un lverslty Press, New Brunsw lck}. Austranan and New Zealand foren slc Sc lenc e Society (ANZfSS) 2014t Code of ProfessJonal

Practice for Members of the ANZFSS (11 August 2014.) at httpj/anzfss.org/wp-content/ u p~oads/2012/05/ANZFSS-Code-of-Professlonal-Practl ce-F~nat pdf. AustraHan Law Reform Commission (ALRC) 2010 t rii p 1ctu re l dentlfl caUon"~ Untform Evidence Law ,Report 102, December 2005 (Southwood Press, Sydney). 1

B rlody M 2004 1 ~'The Effects of DNA. Evidence on Hom~cJde Cases In Court", The AustraJlan and New Zealand Journal orcrtmlnologyt no 37, pp 231-252. 1

1

ButUer M 2009t " DNA EVildence Banned f rom Vtctorlan Court Cases'1 , The Australian (9 December 2009). Co~e

S 2001 , Suspect Identities {Harvard Un lvera~ty Press, Camb ridge).

Co~e

S & Porter G 201S, '"lh e CSI Effect",

~n

Tne RoLJttedge In tematlonal Handbook of

Forensic Intelligence and Cr~'mlnology (RouUedge, London). Cross R 2006, ~'Fatal Falls from a Height: Two Case vol 51 t no 1, pp 93-9i9.

studies"~

Journal of Forensic Science,

Chapter 23 Experts, lay people and fiorenslcs

615

Cross R 2014, 4'Mlslnterpretatlon of Expert Evldence ln Wood v RFJ, Aus:traUan Journal of Forensic Sctence, vol 48 ~ no 4, pp 36B-3S2. D~Fo nzo

J H & stern RC 2 007, ~' Devi~ In a Wh~te Coat: The Temptatlo n of Fo renstc Evldence In the Age of CSI ~ New England Law Review! vol 41 no 3~ pp 503-532. t

t

Dowler KJ Flem~ng T & M uzzattll SL 2006 ~ '1 Co nstructll ng Clf11me: Moo t~ Clf11me, and Popu ~ar Culture" t Canadian Journal of Crlmlnorogy and Criminal Jusflce~ vo I 48, no 6 ~ pp S37-85"0. Downs JC U & Swlenton AR 2o12, Ethics Jn Forens1'c Science r(Elsevl er, 0 xford). 1

Duff RAt Farmer LJ Marshal ~ s & Tadros V 2007, The Trial Pub~~shlngJ United Kingdom).

on Trial: Volume 3 {Bloomsbury

Eastwood J & Galdwell J 2015, "Ed uca111 ng Jurors about Forensic Evldenoe~ Uslng an Expert Witness and Judlclal lnstrucUons to Mitigate the Impact of lnvallld Forensic Scien ce Testlmon~/' 1 Journal of Forensic Sciences , vol 60,. no SJ pp 1523-1528. 1

Edmond G 2oos, ~'Speclall&ed KnowledgeJ the Exc~usJonary DJrecttons and R.e Haibl l lty~ Reassessing In crlm Inatlng Expert Op~n Ion Ev~dence " i UNS W Law Journal~ vol 31 no 1 , pp 1-54. 1

Edmond G 2o13, u Just Truth? CarefuHy App~ylng H lstory1 Phnosophy and Soclo~ogy ofi Sc~ence to the Forens le Use of CCTV Images" Studies In History and Ph'llosophy of BJologJcaJ and Biomedical Sc-'e nres ! vol 44 r pp S0-91 . 1

Edmond G 2015, uForenslc Sctlence Ev~dence and RaUonal (Jury) Evaluatlon'', Melb'fJume Untverslty Law Review1 vol 39i, pp 77 -12 7. Edmond G 2o17, ~' I carus and the Evidence Act: Sect Ion 137, Probatllve Value and Takllng Forensic Science Evldence 'at Its Hlghest' ir JMelbot1rne University La·w Review~ vo ~ 41 J pp 106-154. Edmond G & San Roque M 2014:1 "Beto re 11he High Court: Ho neysett v The Queen~ Forenstc Science t 'Spee lallsed Knowledger and the u nrrrorm Ev~dence Law'll, Sydney Law Review, vol 36f pp 323-344 . Edmond G, Cu n~lffe E, Martire K & San Roque M 2i0'19 '~F orenslc Sc lence Evld en ce and the Limits of Cross-Exam l naUon ~ ,. Melbourne Un1Verslty Law Review, vol 42 ~ no 3 {advance access). f

Edmond G, Found B, Martll re Kt Ballantyne KJ Hamer D,, Searston Rt Thompson Mt Cun Ilftie E, Kemp R, San Roque M, Tang en J , D~oso-Vrn la R Llgertwood A Hibbert D, White D Ribeiro G, Porter G:i Towler A & Roberts A 2016 t "Mode I Forens~c Sctence'1 , Australian Journal of Forensic Sctencest vol 4B, no 5, pp 496-537. 1

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Embar-Seddon A & Pass AD 2009JForensics! (Pearson, Un lted States). Facebook 201 B, ~'Henry c Leelll, at ?refi=page_Internat

https~//MVwJacebook.com/pglDr. HenryC Lee/about/

Flndiay M 200S t '~Juror Comprehenslon and the Hard Case - MakJ1ng Forens~c Ev1dence Slmpler'1 , ln:temaflonal J is acted u_p on rather tha11 acting: Example: Research o n crime is conducted by crlininologis ts.

Passive co11Structions ttse more Vi.7 o.rds, are less direct a11d are weaker tha11 active verbs. We often slip it1to tl1e .p assive tense to give ottr \-Vriting 1nore authority. Yet, using the active voice is much clearer. u ·sing the active voice often requires us to fi11d ev~de11ce (ie, a referei1ce) to support livhat \Ve are sayii1g. For example: Passive·: The data \Vere examined and it \Vas concluded the rates \.Vere too high.

Active: Th.e Nationa l Crune Office (2011) examined tl1e· data and concludecd that the rates were too high. 1

You ca11 see tJ1at the active ser\te11ce is n1ucl1 more persuasive. Get int0 the habit of \Vritit1g in the active voice to it11prove yo11r \Vritit1g. 1

Edit thoroughly: Writing is r,ewrirting [27.390] You might in1agine tl1at good writers sit down at tl1e computer and instai1tly rype polished se11te11ces that are eloquent a11d clear. The reality is quite tl1e op.p osi te.. Good ·\.vri ters kno'\Al that writing is revvri tit1g. rvtan y stud ents r-usl1 to write an assignn1e11t a11d only b riefly revise t11eir \.York prior to submissio.n. 111is approach. leaves no roo1n to .i.Jnprove tl1e writing and stre11gthen the argun1ent and strltcture of an assigr1ment. A first draft is only the begi1um1g atl!d sho1tld be thoroltghly revised . Acknowled ging tl1at a first d raft \vill not be perfect also helps you overcome perfectioni sn1 at1d procrastination (see Dialog11e box 27.5). 1

Editil1g is a:n esser1tial part of writit1g and you si1ould revise a piece of \vork at least three ti1nes for content, structure and lvriting style. VVl1en editing a piece of work:

1. E1isure that tl1e content is accurate; tl1at the argument makes setlSe and is \vell sup.p orted, and that all information supplied is relevant to the topic.

2. Check the structure of the assigtlille11t; that the \vriting flo\vs well and tl1at the arg11ment has bee11 logically developed. 3. Look at the overall c.1.Jriting style; ensure that there are no spelling and grammatical errors or typos, and che ck for those types of errors we discussed ear lier it1 this sec ti on.. Read yotllr essay with t11e vie\iV' to identify 1nissit1g text or sections tl1at 11eed either revisi011, clarification or im11rove1n ent. You 1nust be ca.refttl not to rep eat quotations and sentences.

Chapter 27 Study ski Ils fior crlmlnology

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Wl1e11 it cotnes to proof rea,d ing your essay, do 11ot simply rely on Microsoft Word to pick up gra1n1nar, spelling a11d pltncluation errors using the tu1derli11e fu11ction. Microsoft Word will not identify typographical errors which have bee11 spelt correctly. For it1stance, it is not t_lncorrunon for markers to see misspellin.g s of "trial" .it1 stt.1,d ent assign1ne11ts, s11cl1 as: "the lr'a il has been a vitally importa11t process of ,d etermining g11ilt it1 tl1e crilni11al justice syste111 sit1ce tl1e l 8tl1 century''. Tl1ese errors catl easily be missed without carefti1 i1roof reading. 111 addi.tiort, spell check vvill not help to i de11tify a'\ivkv1,rard expressio11 that is grammatically correct but not very clear. 1

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DllALOGUE B0X 27.5 1

Procrastination and writer's block [27.400] It is

8 pm and your essay is due tomorrow. As you sit at your

computer and stare at the ,e mpty page panic spreads through you. Your mind remains stubbornly blank. You decid,e to take a break, check Facebook, respond to some emails, get up to go to the toilet, then 1o get a glass of water while you wait for inspiration to strike. It's now 9 p1 m. You decide to read one more article before you begin wrirting. Now it's 10 pm. You teH yourself, ul canjt work in this messy room. I have to re-organise my desk!". Now ifs 11 pm. You have made no progress and the f eeling of dread grows and paralysis sets in .... 1

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A version of this situation is familiar to anyone who has sat down to write. No one is immune to feelings of fear or inadequacy and acts of procrastina1:ion when faced w ..h a chaHenging piece of work (indeed, Pve just eaten my lunch, looked at photos of my dog, replied to some ,emails. Googled bathroom designs and mad e myself coffee befor,e writing this dialog1ue box!). Procrastination can take many forms. Ev,en tasks that seem like legitimate work (reading another article or responding to emails) can be a way of procrastinating on larg,er, mor,e d ifficu H1asks. 1

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Here are a f,e w t ips you can use to tackle procrastination and writers block: Listen to the stories ·y our mind is telling y·o u: Often we procrastinat,e because of underlying fears and anxiety. For example, our subconscious may be temng us that we are not good enough 0r smart enough to achieve the grade we are after. We may unknowing~ be scared of failure or be averse 1o spending t ime on an assignm,ent for fear of being disappointed by the resu lt. Here, procrastination beoom,es a form of sett-sabotage as it gives us an excuse for not achieving a high mark or a pass grade. Sy leaving an assignment 1o the last minute we can tell ourselves, .,I would have done better if I had mor,e time". It pays to be mindful of these 1houghtsp our fears and our negativ,e assumptions. Have reaJistic expectations of yourself - you ar,e learning how to write assignm,ents and succeed a1 univ,ersity and this takes time and effort. 1

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720

Crime and Just ice~ A Gulde to Crl m lno~ogy

Break the task down into smaller parts or ilibite-siized'1 pieces: It is daun1ing to sit down and write a large or complex research essay. As we have shown you throughout this chapter there are many different components to completing an assign ment. Instead of simply adding "write research essayj' to your 1o-dolist, b~eak the essay down into a seri es of small, bite-sized tasks. This may include: finding references to read; reading through journal articl,es; breaking down the essay question and formulating a central argument; drafting an ,essay plan; writing one paragraph ,on situational crime prevention; or ed ni ng the first draft. These tasks can be completed in several hours and do not seem as i nsu rmou ntab le as wrrting an entire essay. 1

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Begin early and write as you go: The previous strategy requ ires you to start work on your assignments early. Do not leav,e writing your assignm ent or studying for an exam until 8 pm the night before. Once you have iden1ified smalI tasks, beg in these tasks early on. AJ so, do not fall into the trap of spending too much time on reading and finding references and then forgetting all the information over time. Find ways to acUvely engage wi1h the information you take in, such as: Cl"eating mind maps; taking notes; summarising what you have read; or w rirting your understanding of the key ideas and theories. 1

Write what you know: Sometimes you need to just start writing, but rt can feel impossible. One technique to help g et you started is "free writi ng'~ - giving yourself a set period of t ime 1o just write down whatever comes to your head. If your mind is really blank, write limy mind is blank'j and oon1inue to put down your thoughts. Write what,ev,e r you know about a given subject. Fl"om here you will oft,en start to loosen up and get mol"e basic words on the page. This work w i11 need to be revised, but it is better than a blank page. 1

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Realise that writing a polished piece of work takes several drafts: Nothing1 is perfect, and many pieces of writing are nonsensica~ in first draft form. Remembertha1 writing is a cumulative process linked to revision. Se aware of perfectionism. 11 is very ral"e 1o achieve a perf,ec1 grade. It is important 1o get work finished and expec1ations of perfection ar,e not sus1ainab!e at univ,ersity ,o r 1he workplace. Build in a reward: Set an amount of focused t ime to write or a word oount 1o rea.c h. Tum off your email and social media. get yourserrt prepared (water, t ic ks snacks, tick! empty bla.dd 1e~ t ick} and do not Ieave your desk until your se1 time. Onoe you have done 1 or 2 hours of focused writing! you wrn be amazed at how much you have achieved. Reward yourself with a coffee! or some t ime on Facebook and feel proud! 1

Do not let procrastination gel you down: We all do it and when you lapse it's okay. Guilt is a counterproductive emotion 1hat leads to more procrastination and a downward spiral. It is important that you recognise when you are procrastinating and that you take steps to counteract it. If you have put off this assi,gnment do what you can 1o riemedy the problem and salvage the assignment, then move onto your next task. 1

Chapter 27 Study skiIls fior crlmlnology

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UNDERSTANDIN G AND USING FEEDBACK 1

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[27.410] Once you have st1bmitted y·our assigtllllent, you n10\re 011to tl1e next one and 11ever think aboutt it agan1, right? Maybe you 1night give a C11..lrso.ry gla11ce to the feedback from the 1nar.ker, bt1t that is abot1t it Either \--vay, moving Oil witho1rt taki11g time to read and m1,d erstand the feedback yott are give11 can reail y slo\-'\l your progress at university. Stl1dents vi. ho make the biggest improve1ne11ts in tl1eir studies take feedback on board. They keep a11 open1nit1d "\iVl1e11 reading feedback, they do not take feedback personally and they seek vvays to improve their learning at'ld ·\.vritit1g based on gt1idai1ce frorn inarkers a111d teachers. 7

The final step it1 i1nprovit1g y·our study skills is to learn. to approad1 feedback with a positive an.d open mindset, ttsing it as a11 opportunity to seek areas for consta1lt in1proveme11t. If you do 11ot understru1d the cornme11ts, or if t11ere, is mini1nal feedback, approach the marker to seek clarity and fl1rther expla11ation of you.r g.rade ru1d where y ou can h.n prove., Most ofte11 markers at1d teachers are happy to ltelp stude.nts \'\l}10 sl1ovi.7 that they are eager to build their sk ills. Belo¥v is a list of some common feedback comments tl1at you tnay encounter and pointers for the sections o.f tlli.s chapter to revisit in order to improve your skills i11 that particular area., 1

Feedback: You are too descri.ptivel11ot analytical eno11gh .. Tips for improvement: Critical at1alysis is an important skill to develop. Re-read [27.200] and conside.r 11.o w you can move towards evaluta ting a11d critiq11ing material. Another strategy is to foc11s on really takitlg the time to plan your res potl.Se and develop an argume11t that is sup.p orted by a strong structtrre. If you tl1ink tl1rot1gl1 a11d pla11 your respoti.se a11,d develop a key argume11t you \viii naturally take a :tnore at-ialytical slant as yot1 are usi11g the material to 1nake a point rather than si1nply describing diffe.rent facts. See [27.,60) and [27.220] for furtl1er information.

Feedback: ¥011 did not add.riess tl1e question/assessment requi.tl'!nientsi, .H ow is tl1is relevant? How does this relate or Cro nnect back to the overall research q11estionltopirc ? Tips for im p rovement: This is wl1e.re initial pla1u1it1g and structuring of yottr assigrunent can really help. Take the ti1ne to break a.p art tl1e researcl1 questio11 or topic, understand the different points you need to include and braiI1stor1n .h ow you w ill respond to a11d tie each point back to yo11r overall questio11 or topic. Work 011t ho\v eacl1 of these poi11ts vi.7ill be arranged so th.at 'tl1ey are clear atl!d appear coherent lvl1e11 read togetl1er. Re-read [27.20] and 11se tl1e pl.aiming V1lorksl1eet at tl1e ei1d of this chapter to help yoti create a strong fo11ndatirn1 for your assigrunent. Also read [27.220] for tailored advice on. how to stn1cture you.r response and create greater connection betwee11 each of tl1e different aspects of your argttme11t.

Fe edback: Your al'g-ument is not suppot~ed by evide.nce·i You need to reference., ·You m11st shozv t11e sou-rices you have used. You need to be mindft1l of acad'e niic pl'agia1is1n., ¥our points ivere i1.ns11.bstantiated . 1

722

Crime and Justice~ A Gulde to Crlmlno~ogy

Tips for feed'b ack : You 1nust slli1ow lvhere yo11 fo11nd this key piece of inforn1atio.n. If a poiI1t is not oon1n1.ol1J1 kt1owledge1 you shotild demonstrate wl1ere you fou11d it by it1cltllding a reference. Re-read [27.100J. Also, .revielv tl1e relevant referencit1g ,g uide for the refere11ci11g style y·ou are ltsing to ensltre you are meetin.g the conventions of that style. 1

Feedback:. Yo-iir ~vriting is difficult to 11nderst1a11d.. Your points 1,vere not cl'eari 'You tieed to U"ork on y ,o ur writteti expressioti.1 Your work contained a lot of grammatical errorsii

Tips for im pro·v em e nt: Sometimes students interp.ret com111ents about spellit1g and grammar to just mean tl1ey tnade a couple of typographic errors and they cannot tu1derstat1d ·w hy they would lose tnarks for this. A cot1ple of errors are tuilikely to significant~y lower you.r grade. However, many typographical errors often shovv l1aphazard or r11sl1ed work and reflect an overall poor qu.ality of work. Wlhat will l ovver yottr n1ark tnore st1bstantially tha11this, 11oweve.r, is a'V1lkv,lard a11d imclear· expression. If you do not express your p,oiJ.1ts clearly, a mark er caru1ot determit1e that yolt have a good kt1o·w ledge of the subject Your argu1ne11t "\viii also be less persuasive if it is difficult to read" Focusing on your \vritten expression is, therefore, very i111portari1Lt. Re-read [27.300] and [27.350] for further i11Structions. Do not be asl1amed to seek out further l1elp and .resources on writit1g (such as Tredit11uck's The .Little Red 1v\'riting Book) to itnprove your \Vritit1g skills. ln1prov·e1nent is an ongoing process. 1

1

CONCLUSION [27.420] Thro11ghout this chapter, \Ve l1ave given you guida11ce 011 hoVt. to build the skills you .n eed to sttcceed at u:n iversity. TI1e pro,c ess of perfecting U1ese skills is co11tinuous. With each assig~ment, topic, semester a11d year that yoti complete at tu1iversify you \vill ho11e your critical thin.king, "\rVriting a11d srndy skills. Be receptive to co11Structive feedback and seek out tl1e help of your tlttors, lecturers, librariat1S and any otl1er sup.p ort people t11at exist in yo11r u11iversity. T.h ese people are there to help you learn and develop yottr skills. Your fellovv students may also be able to offer yol1 advice and st1pport. It is importa11t to be ope11 to contit1l1ously lear11i11g and co1n11tltted to improviI1g if yo·u wa11t to succeed. Wl1en you reach the em1d of yo·u r degree you will realise that you have lear11ed 1i:ot onJy a large arnol111t about crime at"l!d justice, but also that you l1ave developed skills that allo\v yoti to approacl1 the vi.lorld i11 a more critical a11d analytical way. 7

QUESTIONS 1. Reflect on the skills ,d iscttssed t11ro,u gho11t this chapter. Identify t\vo or three specific areas that you coul d work on to improve yotir assignmei1ts (eg, refere11ci11g, writing 1nore clearly or' de\reloping a stro11ger reference list). Wl1at small steps could yot1 take to improve these areas it1 your next assignment?

Chapter 27 Study skiIls fior crlmlnology

723

2. Wl1at biases may be holdit1g yot1 back and limiting your ability to think critically about a research qltestion or topic? How n1ight you overcome these biases? Discuss with respect to a research question or topic for 011e of your assignments itl a ctrrre11t crimit1ology topic. 3. Try 1\Vriting a11 essay plan using· the template provided at the end of this cl1apter. 4. Hovv can so1ne of the skills yot1 have lear11ed in this cl1a.p ter be api--,Hed to different types of assess1ne11t, such as an oral prese11tation? Deter1nit1e \vluch of tl1ese skills a.re tra11.Sferrable to othe.r types of assessment. 5. Try .reading and n1arking someone else,.s assignme.11t. Svi.7 ap a draft of yottr assi.gnn1ent vi.7ith a friend or classtnate and try mark the assi.gt11nent based on the ge11eral 1narking criteria outlined at [27.20J:.

REFERENCES Baker JR ~ Br1zee A & Vel.azq iuez A 2 016 , "Wrltlng a Researoh Paper"~ The Wrlflng Lab & T1le OWL at Purdue & Purdue UnW.erslfy at http5~//owl. purdue. edu/ow,Jgeneral_wrltlngvcommon_ wrttJI ng_asslgn ments/researc'.h_papers/ln dex.html. 1

Bllllng M .2 013, Learn to Wrtt.e .BadJy: How to Succeed In the SocJ'al Sciences (Cambridge Un lversUy Press, New Viork). Burns l" & s~ nfleld s 2008~ EssentlaJ Study Sk1'Js: The Complete GlJJde to Success at University {Sage Pub1 lcatlonsi London). CoUreJ~

s 2013, T!J·e Study Skills Handbook {4th ed, Pa~grave Macmmani Baslngstoke}.

Donne Ily N & Poynton S :2O19 The Effec:t of Lockout and Last Drinks Laws on Non -Domestic Assaults In Sydney: An Update to March 2019 (Bureau Brief No 142, NSW Bureau of Crl me Statls'Tilcs and Research Sydney}. 1 ,

t

Hay ~ , Bochner D & Dungey c 2006 t Making the Grade: A Gulde to Successful 1

Communication and study (3rd ed t 0 xfo rd Un lvera lty Press, Ne·w York). 1

Hay ~, Bochner D & Dungey C .2 012 t Making the Grade: A Gulcfe. to Successful 1

Communication and Study (4th ed, 0l