Tag Archives: featured

Falconio case – DPP “coaching” appeal withdrawn

News from Australia this week that Bradley Murdoch has withdrawn his appeal against conviction for the murder of Peter Falconio. The case received international attention in 2001 when British tourist Joanna Lees was picked up on the Stuart Highway just outside Barrow Creek in the Northern Territory and described how she and her boyfriend, Falconio, had been stopped by a passing driver who shot Falconio and tied Ms Lees up. She managed to escape and was found some hours later. Evidence was circumstantial as Falconio’s body was never found. Ms Lees has been the subject of terrible press, largely because she wore a pink T shirt which had been supplied to her after her clothes were taken by the police. I became particularly interested in this case when I broke down in the same location and met Les, the Barrow Creek owner who was witness number 5 in the trial [http://www.criminallawandjustice.co.uk/blog/Barrister-Breaks-Down-near-B…).

Bradley John Murdoch was convicted for the murder of Peter Falconio in 2005 and has appealed before in relation to DNA evidence and other issues. This time he was alleging that Ms Lees had been coached by prosecution counsel. Interestingly, pursuing such a suggestion would have made the opinion of other witnesses as to her reaction on being found admissible – Les, the lorry drivers who found her and so on – long before she ever met prosecution counsel.

Herald Sun reported “Murdoch believed a News Corp interview with prosecutor Rex Wild QC showed that the prosecution felt Joanne Lees, Mr Falconio’s girlfriend and the key witness in the case, was so unlikable that she might have endangered their case, and so groomed her “secretly, deliberately and improperly” to improve her behaviour in order to obtain a conviction from the jury”. It seems like a pretty wild allegation in all the circumstances. The Herald Sun continued:

“Mr Wild said he was happy to hear the appeal had been withdrawn.
“Relieved isn’t the word for that; I’m pleased,” he told AAP.

All decisions on submitting and withdrawing appeals had come from Murdoch himself, a spokesman for his lawyers said. He denied that Murdoch had withdrawn his appeal due to having a weak case.

The same spokesman apparently also said: “It’s certainly not over yet. There’s more to come.” The likelihood of finding Mr Falconio’s body in the outback is pretty remote given the size of the location, the old mines and goodness knows what else but time will tell. In the meantime, the suggestion that Mr Falconio was never killed seems to be well rebutted by the passage of time and his lack of reappearance.

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Pistorius Trial: What’s the charge and is there a defence?

International news is filled with the trial of Oscar Pistorius who is accused of the murder of his girlfriend Reeva Steenkamp in South Africa on Valentine’s Day in 2013.

The prosecution case is that Ms Steenkamp was shot whilst behind a closed toilet door. There is no dispute that Mr Pistorius pulled the trigger more than once. The bullets were designed to expand on impact and each would probably have been fatal. This is a short summary of reports of evidence relating to the cause of death, which was not broadcast as part of the trial. Otherwise, the evidence is being live streamed across the world. It is a really good showcase for court TV and how it can work to inform people about what actually goes on in a criminal trial.

Continue reading Pistorius Trial: What’s the charge and is there a defence?

Contemporary Challenges in International Environmental Law

*Posted on behalf of Ros Vickers

The UN-REDD Programme is the United Nations collaborative initiative on Reducing Emissions from Deforestation and forest Degradation (REDD) in developing countries. It is intended to promote “the informed and meaningful involvement of all stakeholders, including Indigenous Peoples and other forest-dependent communities, in national and international REDD+ implementation”. The stated ideals of the programme are ‘to (i) direct support to the design and implementation of UN-REDD National Programmes; and (ii) complementary support to national REDD+ action through common approaches, analyses, methodologies, tools, data and best practices developed through the UN-REDD Global Programme.” Reducing Emissions from Deforestation and Degradation is a scheme that was first presented to the Conference of Parties in 2005, and adopted in 2007.  It seeks to protect large forested areas in developing countries.  It is a scheme that has been developed by the United Nations Framework Convention on Climate Change and has received widespread support for the theories connected to the scheme from parties generally, however the finer details and are yet to be determined.  Included in the finer details are issues of indigenous peoples’ human rights and other safeguards.  Discussions and agreements have largely focused on technical scientific and economic mechanisms to implement REDD.

To achieve true success,  such a scheme will depend on the application of the legal rights contained in the United Nations Declaration on the Rights of Indigenous Peoples in the context of the United Nations Framework Convention on Climate Change (UNFCC). Ros Vickers will be attending the Conference on Contemporary Challenges in International Environmental Law in Slovenia in June 2014 where she will be presenting a paper on Climate Change programmes and Indigenous Human Rights.  The conference will  discuss REDD projects, and whether the REDD projects can in fact achieve justice and equity for indigenous peoples in accordance with the Declaration.  Ros’s  paper will focus on these aspects and also compare the expected outcomes the Declaration and what justice and equity means in the context of human rights and contrast them with the UNFCCC and REDD projects, ultimately concluding that the different areas of international law have vastly different goals however together it could be possible achieve a type of justice and equity for indigenous peoples that engage in REDD projects.  Ros’ s paper will be published as part of a conference booklet. To register for the conference click here

Environmental Law Seminar Series coming to Darwin in 2014

The CDU Law School, together with the Environment Defenders Office NT and the NT Law Society will be running an Environmental Law Seminar Series throughout 2014 for the Darwin legal profession and students.  Topics that will be covered in the seminars include: General Introduction to NT Environmental Law, Water Management in the NT, The Carbon Economy, Regulation of mining in the NT and Protection of biodiversity in the NT.  There is a wide range of speakers from CDU, EDONT, NT EPA, private law firms and the NLC will present and participate as panel members.

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Culture is no excuse for abuse

The 8th of March 2014 was International Women’s Day and I was proud to present the opening remarks at the Darwin screening of the Honour Diaries movie. Approximately 100 men and women came together in the theatrette at the NT Museum and Art Gallery and united in solidarity to combat violence against women and girls (VAWG). Although I’m not sure they expected to hold hands and chant the word vagina, in the context of such an important and emotive topic, everyone took the opportunity to join in and be inspired to take their own role in the diverse Darwin community.

Continue reading Culture is no excuse for abuse

Ukraine, Russia and the elusive grundnorm

I don’t pretend to understand the detail of the current situation between Russia and Ukraine, but it seems entirely reasonable to fear that this may well be the most significant threat to world peace since the Berlin Wall Crisis and Cuban Missile Crisis of the early 1960s.

Even if the situation does not spiral into open warfare (which thankfully still currently seems unlikely), it already poses a significant threat to the entire international order of stable national sovereignty and territorial integrity that has developed under the auspices of the United Nations in the wake of World War II. Situations where a nation invades a neighbour for the purpose of territorial aggrandisement are now so rare as to be almost unheard of, at least in the First World. We tend to forget that “might is right” was pretty much the international behavioural norm for the whole of human history up until that time. Indeed the entire phenomenon of European colonialism was based on a combination of the “might is right” philosophy and the inherently racist assumption of the manifest inferiority of non-white races.

It may well be that Russia has a plausible relatively recent historical claim that Crimea was once part of its territory, and its desire to secure ongoing access to the port city of Sevastopol for its navy fleet is at least understandable in geopolitical terms. Nevertheless, Russia’s apparent invasion of Crimea over the last few days is undeniably totally contrary to modern international law. If allowed to stand completely unchallenged, the modern system of national sovereignty underpinned by the United Nations may be imperilled. For example, one could imagine China using this precedent to justify a later invasion of Taiwan, to which it has historical territorial claims at least as plausible as Russia’s claims to Crimea.

No doubt that is why the United States is beginning to respond to the crisis in increasingly strident and bellicose terms, although European nations seem so far to be exhibiting a greater degree of diplomatic restraint.

However, what is to be done?

Perhaps part of the answer lies in sophisticated analysis and application of international constitutional doctrine as considered in the 2001 decision of the Court of Appeal of Fiji in Republic of Fiji v Prasad (‘Prasad’).  As UWS academic Michael Head explains:

The Court of Appeal of Fiji declared that the military-appointed Interim Government failed to establish that it was the legal government. It ruled that the Constitution Amendment Act 1997 (Fiji Islands) (‘1997 Constitution’) remained the supreme law of the country and had not been lawfully abrogated by the military commander, Commodore Frank Bainimarama, when he effectively took power on 29 May 2000, ten days after businessman George Speight’s seizure of Parliament.

Remarkably, Speight and Bainimarama actually obeyed the Court’s decision and surrendered power to the previous duly elected government. Sadly (depending on one’s viewpoint), the story did not end there. Bainimarama learned the despot’s lesson from the Prasad decision and staged a subsequent coup in which one of his first acts was to abolish the Court of Appeal and appoint his own hand-picked judges in its place. Indeed that coup was so successful that Bainimarama remains in control of Fiji today, despite somewhat ineffectual economic sanctions imposed on the country by Australia and New Zealand. Moreover Australia’s new Prime Minister Tony Abbott has just announced that sanctions will probably now be lifted and Fiji restored as a full member of the international community in good standing.

Nevertheless, the Court’s reasoning in the Prasad decision and subsequent academic analysis of it may hold important clues about how the current stand-off between Russia and Ukraine might productively be managed in a manner that is consistent with maintenance of the international rule of law.

The Court of Appeal considered the application of the international law doctrines of “successful revolution” and “necessity” as ways of assessing the legality of a post-revolutionary government regime. In particular, the Court considered the contribution of European jurisprudential scholar Hans Kelsen, who added to those doctrines his own notion of “effectiveness” to assess the legality in international law of a post-revolutionary regime.

Kelsen was a modern legal positivist scholar who sought among other things to propound an objective “pure theory of law” to provide a rationalist (if somewhat amoral) underpinning of international law doctrine relating to national sovereignty and related issues. His notion of the “grundnorm” is a significant part of his pure theory of law, with which this author has been known to torture CDU constitutional law students.  Kelsen’s interest in post-revolutionary constitutional legitimacy is understandable in the context of his lifelong commitment to positivist legal theory and also given that he was writing in the immediate aftermath of World War II and the breakdown of the European colonial system, when lots of new revolutionary regimes were establishing themselves, often by violent means and against the will of their former colonial masters. What criteria should other nation states apply in deciding whether to recognise a new post-revolutionary regime as lawful or legitimate? Should it merely be the new regime’s de facto possession of durable if despotic control at the barrel of a gun? Or should something more be required? Michael Head describes and critiques the Fiji Court of Appeal’s discussion of these issues in the Prasad decision:

In Prasad, the five Court of Appeal judges applied doctrines that British and American courts have fashioned over several centuries to determine whether to uphold the imposition of dictatorial measures (‘necessity’), or the outright seizure of power by the military or other authorities (‘successful revolution’). …

In most post-World War II cases on coups d’état, the courts made reference to the ‘principle of effectiveness’ enunciated by Austrian legal philosopher Hans Kelsen in his work General Theory of Law and State. Not to put too fine a point on it, Kelsen’s theory justified the seizure of power by force. Quoting his writings, judges ruled that coups did not need to command ‘universal adherence’, simply ‘a minimum of support’. …

In Prasad the judges expressed concern that Kelsen’s ‘principle of effectiveness’ might too readily reward a usurping regime. The judgment also spoke of a new regime having to prove that its rule was based on ‘popular acceptance and support’ as distinct from ‘tacit submission to coercion or fear of force’.  The holding of elections would be ‘powerful evidence of efficacy’.

It would be rash, however, to interpret this emphasis as evidence of a more democratic approach. It is, we should recall, in line with the Western powers’ demands for earlier elections in order to establish a more reliable regime that can command popular respect.

Far from laying down any new principle of democracy, the Court disagreed with a passage in the 1986 Grenada case that listed as one criterion for a successful revolution that ‘it must not appear that the regime was oppressive and undemocratic’. The Court stated that this condition ‘went too far’, without offering any explanation except to cite F M Brookfield’s view that the condition goes ‘to the legitimacy of a regime rather than its legality’.

This distinction is unconvincing. As many commentators have pointed out, it is, in reality, impossible to separate legality from legitimacy. …

Implicitly, Head asserts that international law ought to require some reasonable minimum level of democratic legitimacy or popular acquiescence as an essential condition for international recognition of the lawfulness of a new post-revolutionary government.

However, although international law on post-revolutionary regimes has not yet developed to the point Head implicitly argues (and I agree) is appropriate, application of these principles with the addition of a democratic element might well provide a principled way of resolving the current stand-off between Russia and Ukraine in a manner that upholds and even extends the rule of law.

The transitional regime now installed in Ukraine following the ousted pro-Russian former President Viktor Yanukovych fleeing the country, has clearly staged a “successful revolution” across most of the country. Moreover, it appears to command widespread if not universal voluntary adherence of most of the population. Perhaps even more importantly, it would pass almost any reasonable test of democratic legitimacy. Its accession to power was approved by the Ukraine Parliament, and it has pledged to hold early democratic elections. Accordingly, it merits international recognition not only on the criteria laid down by the Fiji Court of Appeal in Prasad, but also on the more rigorous principles that Michael Head appears to favour.

On the other hand, the Ukraine transitional regime would almost certainly not pass any of these tests in relation to the culturally Russian region of Crimea. For a start, it has not achieved effective de facto control of that region, although perhaps in part because its achievement of such control has been pre-empted by the manifestly illegal Russian invasion. However, and again perhaps more importantly, it is a fair bet that the majority Russian-speaking population of Crimea in no sense accepts the legitimacy or authority of the transitional regime and is unlikely to do so in the foreseeable future.

These diametrically opposing practical outcomes in the two parts of Ukraine may potentially provide the basis for a workable, peaceful and even principled solution. Perhaps America and Europe should aim at brokering a solution whereby Russia agrees to accept the lawfulness and legitimacy of the new Ukraine transitional regime across all of Ukraine except the Crimea region. Moreover, Russia would also agree to withdraw its forces from Crimea in return for the new Ukraine regime agreeing that an internationally-supervised democratic act of self-determination will occur in Crimea, with UN peacekeeping troops occupying that region until this act of self-determination occurs.

It might well be that such a solution could win the acceptance of both sides. The new Ukraine regime really wouldn’t have much practical choice, because it has no way of retaking Crimea by its own efforts given the overwhelming superiority of Russian military forces. As far as Russia is concerned, it could be very confident that the Russian-speaking majority in Crimea would vote either for full union with Russia or at the very least creation of an autonomous but strongly Russian-aligned new nation of Crimea.  It would attain its territorial and strategic ambitions while remaining a law-abiding member of the international community.

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Violence ‘R’ Us

A letter to the editor of the local Northern Territory News yesterday caused me to make one of my fairly infrequent checks of crime statistics. Correspondent Chris Rogers, fairly clearly a Labor supporter, had this to say:

Recent crime statistics painted a bleak picture of our personal safety in the Territory. Statistics in the NT News report on local crime (March 1, 2014) indicate that people in the NT are three times more likely to get attacked than someone living down south.

The data also show that assaults, domestic violence assaults and alcohol-related assaults in Darwin, Palmerston and Alice Springs all increased last year.

It seems to me that the figures point to the CLP’s policy of relaxing alcohol supplies to the wrong people being the main problem…

In fact the most recent crime statistics show that violent crime rates for the Northern Territory as a whole increased by 10.8% in 2013. In Darwin the increase was 9.7%, in Palmerston a very small 2.5% and in Alice Springs 7%.

Now on first blush that might appear to support Chris Rogers’ argument. However, when we examine crime statistics for the preceding five years 2006-2011, when the Martin/Henderson Labor government was in power, we find that the rate of annual increase is hardly any lower.  Violent crime increased by a total of 38% in the Territory as a whole over that period i.e. an average of just under 8% per year.

Far from showing, as Chris Rogers asserts, that the current rate of increase in violent crime is a result of “the CLP’s policy of relaxing alcohol supplies to the wrong people” (presumably he means Aborigines), analysis of the statistics over the last decade suggests that neither the ALP’s anti-alcohol policies nor the new CLP government’s replacement policies have had any measurable effect on the seemingly inexorable rise in violent crime in the Northern Territory.

When viewing crime statistics, it always pays to keep in mind that changes in reporting patterns can have a dramatic effect on the overall figures, especially in a very small jurisdiction like the Northern Territory. Moreover, quite a high proportion of total violent crime is constituted by domestic violence offences, a category where reporting rates notoriously may vary widely over time for a range of reasons. Nevertheless, the fact that there have been steady and quite large increases in violent crime basically every year for the last decade or more suggests that there are real and very serious social problems that are not being effectively addressed.

This increasing trend is rendered even more disturbing by the fact that violent crime in the rest of Australia has actually been falling steadily over the last decade.

One might regard it as remarkable that we don’t see greater and more serious attention paid to this problem. Instead we just get politicians on both sides grandstanding with ill-considered “tough on crime” announcements seemingly designed purely for short-term electoral gain, along with blatantly partisan letter writers like Chris Rogers whose sole interest appears to be to pin the blame on one side of politics or the other.

Violent crime has drastic effects on our community, both socially and economically.  It is much worse here than in the rest of Australia, and its effects are by no means confined to the Aboriginal community (although Aboriginal people are drastically overrepresented in the ranks of both victims and perpetrators). It is well beyond time for us to start seriously analysing its causes and seriously looking for more effective responses. A good start would be to fund the establishment of a local Northern Territory equivalent of the Australian Institute of Criminology.

Of course, the Territory has a much younger population than the national average, a much higher proportion of Aboriginal people, and much higher levels of alcohol consumption than the rest of Australia, in both the Aboriginal and non-Aboriginal community. All those demographic factors are associated with higher crime rates, and so it is very likely that the Northern Territory will continue to exhibit higher crime rates than other parts of Australia whatever responses governments implement. Nevertheless, surely we can do better than has been the case over the last decade or so. At the very least we need to find out why violent crime here is getting worse not better.

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