? Lex Rex Mr Fyemee · @R3x68
5th Feb 2013 from Twitlonger
#auslaw #ausmedia #auspol #Thomson Thank you => @opendna @FrancieJones @Peter_Fox59 I finally found that article I was after for ages. I should say it was found by @opendna for me to whom I am greatly indebted.
All these Royal Commissions and Public Trials by Media do nothing but damage our legal system. Our legal system may not be perfect but it has been developed over many centuries in order to achieve fairness for all people, not just the accused. Ian Barker QC wrote a great article about Public Hearings and the dangers they contain, the main stream media have no respect for our legal system and the only thing that keeps those jackals at bay are criminal sanctions.
Civil sanctions don't worry them because of their deep pockets. I will reproduce what Ian Barker wrote almost 20 years ago for your attention. The Wood Royal Commission caused the death of several innocent people due to depression and suicide. Thomson is being hounded far more than most of those people who committed suicide back in the 90's.
Whether Thomson is guilty or not is up to our Judicial system not the public, and especially NOT the vicious Media that are only concerned with dollars. The Thomson affair affects many people not just the accused but also his friends and family. He has a young family, he may or may not be guilty it is not for me or anybody else in the media or public to say.
It will be up to a properly convened Tribunal of Fact to determine his guilt or innocence. Not us. What people like Barry O'farrell and Tony Abbott et al have done with the help of the Media is despicable, and morally reprehensible. They are the lowest of the low, they are a disgrace and in breach of their Oath when taking up positions in their respective Parliaments. Without further adue here is that article.
THE AUSTRALIAN
March 26, 1996, Tuesday
Beware public hearings that prejudice fair trials
BYLINE: IAN BARKER
LENGTH: 1211 words
ROYAL commissions are not uniquely Australian, but the frequency with which we have them seems to bespeak a continuing desire for communal purging and flagellation, a national trait that is surely curious, if not unique.
Governments in Australia do not have the power to direct people to do anything unless appropriate authority is conferred by Parliament; hence the various royal commission Acts. Proceedings of royal commissions have a superficial resemblance to the proceedings of courts, but there the similarity stops. They are not part of the judicial arm of government; they are a direct exercise of executive power with the backing of statutory authority. Unlike courts of law, their function is to investigate and report.
Invariably, there must be conflict between the powers of royal commissioners and the rights people ordinarily take for granted, such as the right not to be arbitrarily summoned or ordered about by agents of government and the right not to be subject to compulsory inquisition. It follows that there must also be tension from time to time between the activities of such commissions and the proceedings of courts of law.
The Wood commission has been given extensive powers indeed, both by the Royal Commissions Act of 1923 and the Royal Commission (Police Service) Act of 1994.
For example, the commissioner can compel the attendance of any person to give evidence under oath or affirmation and to produce documents.
He also can require answers to questions and can request the Supreme Court to deal with witnesses alleged by him to be in contempt of his commission. He can enter public premises to inspect documents, issue warrants for arrest and search warrants, and apply for warrants to record electronically private conversations. The Commonwealth Parliament gave him the power to apply for warrants to intercept and record private telephone conversations.
The commissioner's powers are circumscribed by his obligation to confine the inquiry to matters relevant to his terms of reference. Essentially, the terms focus upon corruption within the NSW Police Service. The terms of the present hugely publicised inquiry require him to examine the conduct and procedures of police and other public officials in relation to the investigation and prosecution of offences involving paedophilia and pederast activity.
The commission is not empowered to investigate generally the incidence of paedophilia in society (whatever is comprehended by the word) except to the extent that it may be relevant to acts or omissions by the police and other officials. However, royal commissioners tend to take an expansive view of what is relevant, as Kerry Packer found to his cost during the Costigan inquiry. It is usually a waste of effort to try to persuade a royal commissioner that a line of inquiry is outside the commission's terms of reference.
Royal commissions generally, and the present inquiry in particular, have the potential to destroy reputations and to prejudice the fair trial of people accused or to be accused of criminal offences; the damage may afflict both the just and the unjust.
Counsel assisting such inquiries are not restricted by the tactical restraints ordinarily imposed on barristers. Their interrogation of witnesses can venture far and wide, with no fear of an unexpected answer damaging a client; it is rather like shooting fish in a barrel. Some such witnesses may say anything about anyone, and if the evidence is given in public it will become known as widely as journalists choose to publish it.
And the witness may be required to destroy publicly his or her own reputation. The process may or may not be deserved.
In the inquiry into David Combe and Valery Ivanov, the commissioner, urged on by the Australian Secret Intelligence Organisation, was much attracted to private hearings.
He developed an exceedingly wide view of what should remain secret in the interests of national security.
The NSW Police Service royal commission hearings are quite the reverse, the commissioner holding the view that the public interest requires public hearings and that the resultant publicity may attract potential witnesses.
He can hold private hearings, but the issue is one for his discretion. For example, he directed that evidence from Louis Bayeh should be given in public, even though Bayeh is facing trial for criminal offences about which he was likely to be questioned at a public commission hearing. The Supreme Court declined to intervene, holding that the commissioner even had the power to refuse a private hearing notwithstanding that publicity may result in prejudice to the fair trial of a witness.
O N the other hand, the commissioner extends anonymity to some witnesses, many of whom are informers. The process is far from even-handed, but within the commissioner's statutory discretion.
Royal commissions come and go; courts go on forever. In the view of many, including me, where a public hearing will involve a serious risk of damage to the reputation of people who may be innocent of serious wrongdoing, or to the integrity of a fair trial of anyone, the balance should fall on the side of privacy.
The paedophile inquiry got off with a sort of a bang, with the publication of a silly video involving two men and various schoolboys doing nothing much. It may have been evil; it showed no illegality. The commissioner invited the press to look at pornographic photographs, in the belief, one may assume, that their effect would be widely publicised, the images themselves being too explicit for public consumption. He was right.
Duly compliant, the press went into a positive frenzy of denunciation. One writer, under the heading "The Passing Parade of Real Monsters", spoke breathlessly of sex scenes "as vile as a human mind can conceive". Robert Joseph Dunn was named as a player, a person guilty of "lewd awful and abominable behaviour" who deserved a niche in hell "that even the devil will not enter". It is, one might say, strong language. It may be justified. It may be that Dunn should be locked up.
Whether a fair trial of him could now ever be possible is quite another question. If the attitude of many journalists is any guide, a trial would not be necessary; a lynching would be quite adequate.
In my view Commissioner Wood is insisting on publicity at too high a price. He will in due course finish his inquiry. People will be left to pick up the pieces of their lives and the system of criminal justice will have to cope as best it can. It will have considerable difficulty; that will be one of the commission's legacies.
There is an awful irony in it all. If successive governments of NSW had been a little more vigilant, we would not have needed the inquiry. The police had ample power, resources and time to clean up their own act, and keep it clean. But so shameful was the betrayal of ordinary people by those in power in this State that the public guardians were able to join the criminals. The hunters are now the hunted. A resultant danger is that the royal commission will itself become an instrument of oppression.
Ian Barker QC is a leading criminal barrister and chairman of the Criminal Law Committee, NSW Bar Association.