Tag Archives: Victorian Law

19 September 2012 · 5:42 pm

Life in Crime: The Elusive World of the Defence Lawyer

In my first year at law school I remember agonising over what electives I should take over the coming years. By way of career guidance, I was invited to chat with the many graduates who flooded our corridors with giant banners of their respective top-tier firms. Sadly, the only practical advice I took away about a career in criminal law was that I would be destined to a life of pauperism. The hackneyed phrase of ‘crime doesn’t pay’, according to my Armani-suit-wearing peers, evidently also applied to lawyers.

For the past eight months I have been employed as a criminal para-legal and I’ve had the pleasure of shadowing brilliant defence advocates at all levels of the criminal justice process – from pre-interview advice, bail applications, pleas, all the way through to jury empanelments, trials, and appeals. And I feel I should share my preliminary understandings of the elusive defence advocate role so that unlike myself, junior criminal law aficionados can make an informed decision about the electives they would like to pursue.

Humanising the Dehumanised:

The first realisation a defence apprentice encounters is the profound course of dehumanisation an accused person receives from the moment of contact with the criminal justice system. Within my first week at the Magistrates’ Court, a police informant approached us at a bail hearing and boldly asked, ‘are you guys representing my crook?’. That’s right, ‘my crook’. Our client had been branded as a criminal even prior to standing trial and had ostensibly become the officer’s personal chattel.

My induction into the courts taught me that the defence advocate is not only charged with the duty of holding prosecution to its burden of proving criminality beyond reasonable doubt, but equally, if not more importantly, the duty of presenting the individual behind the thick stain of criminality to the court. In other words, humanising the dehumanised.

Objectivity:

Many people have queried me about the morality, or rather the perceived immorality of defending those who have committed particularly heinous crimes – with murder, rape, and paedophilia topping the abhorrence scale. I’m often asked ‘how can you not feel for the victim?’. There’s a common public misconception that defence advocacy somehow dictates an empathic disconnect from the victim. But what the public doesn’t understand is that any person who has the interpersonal capacity to empathise with a defendant, by necessary implication, also cannot help but position themselves in the shoes of the victim.

What I’ve come to understand and respect is that it is a fundamental tenet of criminal law that the assessment of guilt or innocence of the accused remains with the court – not the advocate. As expounded in the joint judgement of Duffy CJ, Dixon, Evatt and McTiernan JJ, in the High Court back in 1934:

‘Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.’[1]

Thus, the defence advocate undertakes the moral position of ensuring that the conviction of the accused is secured by due process, and not on the evidence of mere suspicion or guesswork by the police or prosecutors. In doing so, the defence advocate not only preserves the protection of the defendant’s rights, but the rights of the unsuspecting public who, dare I say, may also find themselves in the shoes of the accused.

Following Your Passion:

I had the privilege of talking to an esteemed former judge of the Victorian Court of Appeal, Justice Frank Vincent, after he delivered a moving presentation to us at work about the perils of Centrelink’s Income Management scheme. Justice Vincent, who currently sits as a board member of the Victorian Law Reform Commission, had represented over 200 defendants in murder trials before his appointment to the Supreme Court bench in 1985.

I asked Justice Vincent about what he attributed his successful career in law to, and his response was that he always followed his passion for criminal law. He explained that a career in law was incredibly demanding, and his only source of motivation was that he genuinely loved his work as a criminal solicitor, barrister, and judge.

Justice Vincent taught me that a successful career in law was in fact a by-product of a genuine desire and passion for a specific field of law. And this is the advice I ought to have received from my graduate peers at law school.

Ali Besiroglu

If there are any criminal lawyers who want to share their experiences, please do so below.

[1] Tuckiar v R (1934) 52 CLR 335 at 346.

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29 April 2012 · 1:37 pm

The ‘Income Management’ Disgrace: Confessions of a Welfare Dependent

Brace yourselves fellow law school colleagues. It might come as a shock to some of you when I proudly confess that I have been, and always will be, welfare dependent.

I was raised by a single mother of three in the Collingwood Commission high-rise apartments. Our brave mother, who migrated from Turkey when she was 18, made ends meet by working two jobs – a part-time teacher at our local kindergarten by day, and a cleaner at the same kindergarten by night. Mum also assumed the responsibility of full-time caretaker of our grandmother after she fell critically ill. The years of laborious exertion of transporting gran and hauling a heavy backpack-style vacuum cleaner eventually took its toll on her lower-back, and after gran succumbed to her illness, mum transformed from an employed caretaker to an unemployed patient.

Throughout our high school years, our family unit relied on a Disability Pension and ‘government handouts’ became our only means of survival.

Years later, whilst sitting in my Taxation Law elective, I was astonished to discover that I would continue to obtain the benefit of ‘government handouts’ throughout my professional legal career. These government handouts, however, were carefully guised by the corporate world as tax deductions, offsets, and subsidies. I could, for example, utilise Mr Lindsay Fox’s genius government handout idea of opening my collection of exquisite Ferrari’s and Porsche’s to public view for one day a fortnight and call it Ali’s Classic Car Collection to obtain a 100% tax write-off. I learnt that the government would also not differentiate in providing me a handout for flying First Class to the next Human Rights Conference at Geneva whilst sipping my complimentary Comtes de Champagne for a whopping $9,500 each way, instead of the $2,000 which I would otherwise pay in Economy Class.

These lavish handouts were usurped from my mother when she literally broke her back to support our family. But to add insult to her injury, the Commonwealth Government would now like to subject my mother’s weekly payments of $300 to a demeaning ‘Commonwealth Income Management’ regime over the coming years.

Initially developed in 2007 as a part of the Northern Territory Emergency Response, the Greater Shepparton region in Victoria is one of five national jurisdictions earmarked for a five-year trial of the Income Management regime.[1] Starting in July this year, the Income Management scheme will apply to all ‘vulnerable welfare recipients’[2] and parents with dependents involved in the DHS child protection system.[3] Recipients on the regime will have 50-70% of their welfare payments quarantined, forcing them to shop at selected retail outlets on a ‘Basics Card’ in lieu of their welfare payments – currently limited to Coles, Target, Kmart and Bi-Lo. Recipients will not be permitted to use their Basics Card to purchase alcoholic beverages, tobacco products, pornographic material, home brew concentrates/kits, or gambling services.

Evidence provided to the Senate Inquiry Committee distressingly divulged that Northern Territory recipients were made to line up in separate queues in major shopping centres after all checkout registers did not cater for the Basics Card.[4] The scheme also impeded on the recipient’s freedom to shop at the local fruit shop, deli, butcher, or other major food stores such as Aldi, where food could be purchased at a considerably cheaper price.

The obvious revolt against the regime is that it blatantly treats welfare recipients as second-class citizens by fostering discrimination, limiting freedom of movement, and contravening the recipients right to privacy and protection of reputation – all of which are fundamental rights supposedly enshrined in our Victorian Charter of Rights.[5] The regime emulates the dreadful ‘food voucher’ scheme in the US, where welfare recipients are currently scorned by shop staff for using their Basics Card to make ‘extravagant purchases’ such as, ‘steak, lobsters, and birthday cakes’.[6] I implore you to read the deplorable sentiment of a US Walmart checkout girl in the link at the end of this post and think hard about whether this is what Australian’s aspire to be.

Growing up in the fringes of our society, I know too well that certain welfare recipients require professional assistance in managing finances, substance addictions, gambling addictions, and raising families. However, I also know that these are not isolated attributes of the indigent class. All societal echelons face the same social difficulties, but it’s evidently the marginalised who are profiled by government authorities and socially deprived of the dignity to correct their ways. Forcing welfare recipients to wear a WWII Gold Star in the shape of a Basics Card is but a perfect example. It’s outrageous and offensive.

George Orwell once wrote that ‘ALL ANIMALS ARE EQUAL, BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’, and it’s an absolute disgrace that the more I experience life, the more this statement holds true!

Ali Besiroglu

Walmart staff member shares her views on US welfare reform: click here

Want to take action? Join the fight against Income Management on Twitter and Facebook.

[1] The regime is implemented via convoluted federal legislation, namely, the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth), Pt 3B.
[2] Decided by Centrelink social workers, recipients will include those who are facing financial hardship, financial exploitation, lack of reasonable self-care, or risk of homelessness.
[3] DHS criteria has not been published, but the decision will be left to the discretion of child protection officers. However, if we employ the Northern Territory’s Family Responsibilities Commission model ‘there are four triggers’ which can activate intervention – namely, a ‘court conviction, a breach of a tenancy agreement, a child safety notification, and a failure of a child to attend school for three days in one term’.
[4] Carol Carter, the Deputy Chairperson of the Bankstown Aboriginal and Torres Strait Islander Advisory Committee, evidenced this to the Senate Inquiry Committee.
[5] See Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 8, 12, 13.
[6] Christine Rousselle, ‘My Time at Walmart: Why We Need Serious Welfare Reform’ The College Conservative Blog [online]. 

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29 December 2011 · 8:42 am

‘Sexting’ Laws in Victoria: Distinguishing Child Pornography from High-Tech Flirtation

Back when I was in primary school, our lunchtimes occasionally consisted of playing ‘kiss chasey’ – a game of tag by mode of kissing. I was never the popular kid in the schoolyard and on the rare occasion where I had been kissed or selected to start the game I remember most girls would run for dear life. In hindsight, it dawned on me whilst wearing my criminal law hat that any child over nine years of age playing kiss chasey could in theory warrant a charge of indecent assault where consent to the kissing had been revoked.[1]

Similarly, we’ve all heard about the game of ‘truth or dare’ where some teenager had been dared to engage in a ‘nudie run’- and actually did it. Well if the act was to occur in a public place the teenager could theoretically receive a term of imprisonment for obscene exposure.[2]

Fortunately for us, prosecutorial guidelines require public demand before prosecution is pursued,[3] and no one in their right mind would want to criminalise innocent childhood curiosity and flirtation. Right? Apparently not.

Sexting involves ‘creating, sharing, sending or posting of sexually explicit messages or images via the Internet, mobile phones, or other electronic devices by people’ under 18 years of age.[4] An online survey conducted by Monash University’s Just Leadership program affirmed international trends that almost a third (28.4 per cent) of its participants had sent a sext of themselves to another, and 40.5 per cent had received a sext from another via mobile phone.[5] Thus, with the advent of the now ubiquitous camera phone, it appears sexting has become the new high-tech platform of childhood flirtation and sexual curiosity. In fact children as young as nine years of age are reported to have engaged in the sexting trend in Victoria.[6]

In the eyes of the black letter law sexting is illegal, but unlike the aforementioned crimes of indecent assault and obscene exposure, sexting is increasingly prosecuted under child pornography legislation.[7] This has resulted in decimating life consequences for teenagers and young adults who produce and possess sexts.[8] In one Victorian case, an 18 year old male unknowingly downloaded sexts onto his computer from his phone which were initially sent to him by his female friend.[9] The police found the images whilst investigating an unrelated matter and despite the offender admittedly posing no threat to the community, the Magistrate was forced to register him on the Sex Offenders Register for eight years under Victoria’s mandatory registration requirement.[10]

There is no denying that sexting imports a greater element of danger than the supposed innocuous kiss chasey and truth or dare. Indeed, those who forward sexts onto others without the consent of the person in the image deserve to be punished by law for the distress and humiliation caused to the non-consenting victim. However, simultaneously punishing the victim for producing child pornography fails to consider the consensual, non-exploitative circumstances of sexting.

Legislators must embrace the technological evolution of childhood sexual exploration and distinguish the production of child pornography from consenting, non-exploitative sexting. The Judiciary must also be afforded the discretion to not place an offender on the Sex Offenders Register if he or she does not pose a threat to the community. Only then will the Sex Offenders Register move away from its current distorted objective of fostering a generation of sexually repressed neurotic adults, and move towards its original purpose identified by Mr Haermeyer in his second reading speech as, ‘Victoria’s commitment to lead the fight against the insidious activities of paedophiles and other serious sex offenders’.[11]

What do you think?

Ali Besiroglu

[1] Crimes Act 1958 (Vic) s 39.
[2] Summary Offences Act 1966 (Vic) s 19.
[3] Richard Fox, Victorian Criminal Procedure (2005) p 56.
[4] Parliament of Victoria – Law Reform Committee, Terms of Reference – Inquiry into Sexting (2011) <online>.
[5] Sam Pang (Ed.) ‘Sexting and the Sex Offender Register: Review and Recommendations’ (2011) Monash University, Just Leadership Program, p 28 <online>.
[6] Elissa Doherty ‘Children as Young as Nine Now Engaging in the Trend of Sexting in Victoria’ Herald Sun (Victoria), 11 February 2010 <online>.
[7] See Crimes Act 1958 (Vic) ss 68, 69, 70.
[8] Ibid.
[9] See Nicole Brady, ‘Sexting Youths Placed on Sex Offenders Register’, The Age (Victoria), 24 July 2011 <online>.
[10] Sex Offenders Registration Act 2004 (Vic) s 7.
[11] Victoria, Parliamentary Debates, Legislative Assembly, 3 June 2004, p 1851 (Andre Haermeyer) <online>.

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