The safety of taxis and the media beat-up

The Director of Public Transport has recently had his latest loss in the long-running battle to stop the anonymised XFJ from obtaining a taxi licence. The Court of Appeal handed down its decision last week and, like the two previous decisions, found that the Director could not use concerns over public confidence as a basis for refusing a taxi licence to a person who, 18 years ago, was found not guilty of murder due to insanity. The Court of Appeal has included a good summary of the history of the matter and its decision at the start of its judgment, which substantially reduces what I need to say about the case. My interest, instead, is on the media reaction to the decision.

The privileged position of journalists

At the end of March, the Federal Parliament finally passed amendments to the Commonwealth Evidence Act to create what have often been called journalist shield laws. This may, however, be a misleading description if the privilege, as it arguably exists to protect sources and promote the flow of information rather than to protect journalists.

As readers would be well aware, the Commonwealth amendments will only apply in proceedings under the Commonwealth evidence laws. So far, I haven't heard whether New South Wales or Tasmania plan to follow suit. However, last Friday, The Australian ran a story that Victoria will not adopt the same provisions, and will instead adopt slightly different shield laws.

Setting the law back to the 1800s

First off, I want to congratulate the Human Rights Law Resource Centre for its excellent coverage of the Momcilovic appeal over twitter. In the coming days, I'll sit down with the transcript and give my thoughts on which way the wind was blowing at the hearing. In the meantime, I recommend you all get on Twitter, do a search for #momcilovic, and read the HRLRC's summaries. It's a credit to them that they managed to compress the gist of several party's arguments into the Twitter character limit.

I now want to turn to a brief article I saw in the MX on the way home, which is reproduced in most of the Herald Sun's companion papers. The article warns that "UNDERAGE girls in NSW could be charged with being an accessory to their own rape due to a legal loophole" (link here)

The article goes on to state:

Harsh and outdated language

Last Friday, the Herald Sun and associated News Limited outlets run a story with this opening:

Appeal judge Justice Geoff Nettle said the sentence handed down to Brett Janson, 40, was so inadequate it would "shock the public consciousness".
By a 2-1 majority the court held that the sentence was "manifestly inadequate" and they re-sentenced him to a total of four years with a two-year minimum.

Over the weekend, Alan Howe, sentencing expert in chief at the Herald Sun (or so it seems), wrote an opinion piece with this opening line:

Perhaps she is a delicate petal, County Court judge Felicity Hampel. But it seems she might be among our worst judges.

The case itself, DPP v Janson [2011] VSCA 19, only became available on Austlii today.

The endangered charter

With the election of the Ballieu liberal government at the recent state election, the Charter of Human Rights and Responsibilities Act 2006 would seem to have entered the endangered species list. Before and during the campaign, then-shadow Attorney General Robert Clark stated that the Charter needed to be repealed or radically altered. In The Australian's legeal affairs section yesterday, we saw a tag-team effort by Peter Faris and Mirko Bagaric to support the repeal of the Charter.

The human cost of appeals and the limits of judicial review

Last week, Justice Ross handed down his decision in Priest v West, the first Victorian Supreme Court decision reviewing a coroner's decision on the application of s57 of the Coroners Act 2008. That provision, which is closely modelled on s128 of the Uniform Evidence Act, preserves the privilege against self-incrimination in coronial inquests, but allows coroners to override the privilege while providing the witness with a certificate that guarantees use immunity and derivative use immunity to the evidence.

The media and the law

The Australian's Chris Merrit has had a good week reporting on Chief Justice Marilyn Warren's Richard Searby oration. By my count, there have been at least three separate reports and the oration has prompted one editorial in the Australian. The Sydney Morning Herald and the Age have also gotten in on the act, publishing edited extracts of the speech and on Friday the Herald Sun joined the chorus.

Though while scorekeeping can be an interesting game in itself, the more interesting part concerns the particular responses of the media.

Public punitiveness and judicial minimalism

WCB v R is an interesting example of the judiciary's willingness to engage in the public debate concerning sentencing standards (summary of reasons available here).

The bulk of the judgment concerns the following ground of appeal:

The learned sentencing judge erred in sentencing the appellant on the basis that ‘The community would expect you to be imprisoned for a lengthy period.

Statements of this nature are quite common in sentencing remarks. As the judgment records at [36], courts have often spoken of the community's justifiable concern about sexual abuse of children, and the need to respond to such concern with appropriately severe penalties.

Despite this straightforward point, the court spends 15 pages responding to one reasonable simple ground of appeal. The analysis includes: