Raping justice

Yesterday’s decision by the NSW Court of Criminal Appeal to order a retrial of Tayyab Sheikh, one of the notorious (alleged) participants in the Bilal Skaf pack rape crimes committed in south-western Sydney, will inevitably put the (“alleged”) rape victim through a huge amount of unnecessary trauma. She will be forced to relive her horrific ordeal in the witness box yet again, or the accused offender will walk free.

It’s a dilemma with which which my own family is very familiar. My daughter Rebecca was the only eye witness to the murder of her grandmother by a next-door neighbour in 1995. Fortunately, the lawyers for the accused man elected to allow Rebecca’s sworn deposition to be admitted into evidence without her needing to give evidence orally or submit to cross-examination. They didn’t make that concession out of deep compassion for Rebecca’s psychic welfare, but because they calculated that forcing a 7 year old child to give such graphic evidence in person would be very likely to inflame the jury against their client and make it more likely that jurors would bring in a murder conviction.

However, our family’s dilemma continued for a further 4 years after that, until the murderer’s final appeal was eventually rejected by the High Court in 1999. Until that moment, there was a very real prospect that, if the killer’s appeal had succeeded, Rebecca would have been forced to give oral evidence in any retrial. Jenny and I had already decided that we would refuse to allow Rebecca to give evidence in that situation, even though we knew the result (assuming the DPP didn’t try to insist) would be that the killer would either walk free or be convicted only of manslaughter. We had concluded that traumatising our daughter by making her relive the events, just when she’d begun to heal, was a worse consequence than allowing the killer to escape justice.

Of course, Tayyab Sheikh’s (“alleged”) victim was an 18 year old young adult not a 7 year old child, but does that make a huge difference? The trauma of being forced to relive the events might if anything be even worse than for Rebecca: young children are amazingly resilient even in the face of quite appalling events, as long as they don’t involve betrayal by a loved adult authority figure. I wonder whether the Court of Criminal Appeal majority, Justices Keith Mason and James Wood, have any real understanding of the suffering they’ve inflicted on a rape victim by ordering a retrial. Was Tayyab Sheikh really denied a fair hearing by having his trial take place in the immediate aftermath of the Bilal Skaf trial, with all the public controversy it generated? Would any jury have failed to draw the connection with the Skaf case, even if Tayyab Sheikh’s trial had taken place a year or more later? Jurors mostly aren’t stupid, and it would be almost impossible (not to mention arguably unjust) to censor the evidence to prevent jurors from making that connection.

In fact, yesterday’s decision highlights a quite central contradiction in the attitude of British-based justice systems to criminal juries. The mindset could almost be described as schizophrenic. On the one hand, the jury is seen as a central bulwark of the freedom of the citizen, with the sturdy commonsense of jurors supposedly ensuring both that citizens accused of crimes get a fair trial and that the justice system broadly reflects community standards and attitudes towards particular crimes. On the other hand, the legal system is simultaneously imbued with a deep distrust of jurors and a scepticism bordering on contempt for their capacity to bring an unbiased commonsense mind to the adjudication of a particular case. Thus, the Court of Criminal Appeal ordered a retrial in the Tayyab Sheikh case because:

The four other men – Skaf, his brother Mohammed Skaf, Mohamed Ghanem and Mahmoud Chami – were found guilty at a separate trial a few days after Sheikh’s case had started.

The president of the court, Justice Keith Mason, and Justice James Wood said coverage of that case ensured “feelings of anger, revulsion and general hostility to young Lebanese men” would linger at Sheikh’s trial.

They said the decision to order back-to-back trials was unnecessary and ruled that Judge Michael Finnane should have discharged the jury. …

The judges said the media had provided graphic details of the later assaults with which Sheikh was not involved and coverage of an earlier gang rape at Greenacre involving the Skaf brothers. There was also strident condemnation of the convicted men, with repeated references to their ethnicity.

“What was reported about the basic facts of the earlier trial would have readily brought home to a juror that the appellant was part of the group of Lebanese young men who, on the jury’s verdict in the earlier trial, had lured the complainant from the train to the car park and assaulted her in turns in the toilet there.”

They said directions by Judge Finnane would have confirmed the link with the earlier trial “in terms which put beyond any doubt the guilt of the others who were charged with sexual assaults in the car park toilet”.

Yet, if we really do believe that the criminal jury is the best way of deciding guilt or innocence, why should we assume that jurors will be any less able than judges to disregard information that they’ve learnt prior to being sworn in as jurors in a particular case? And why should we imagine that the effluxion of time will make it easier for juries to disregard that sort of extrinsic knowledge? If a case is sufficiently high profile as to imprint itself on the general public consciousness in the first place, it’s highly unlikely that this effect wil have faded within a few months or even a year or more.

The logical result of accepting the legitimacy of the arguments advanced by Sheikh’s counsel is that no co-accused in a high visibility criminal matter could ever be tried until long after the trials of the principal defendants had occurred. In turn, that will necessarily mean that the trauma inflicted on the victim by the legal system itself will be extended over a period of years. This approach gives primacy to fairness to the accused criminal to the complete exclusion of the rights and interests of the victim. Surely a more balanced approach to deciding these questions, one which affords more than lip service to the “sturdy commonsense” of the jury, would be preferable.

This example is just one of many contradictions in the legal system’s attitude towards juries. Evan Whitton, bete noire of the legal profession and author of The Cartel: Lawyers and Their Nine Magic Tricks, made this point in an address to Murdoch Law School in Perth back in 1998:

I touch briefly on fatal flaws in the three elements of the game. The adversary system allows lawyers to cross-examine and thus obscure the truth. The basic technique is to shift the goalposts, often from accused to victim.

The flaw in taking control of trials away from judges was that it put it in the hands of people who are necessarily more interested in winning than in truth and justice. Lawyers decide what witnesses will be heard and what evidence they will give, including “expert” witnesses known in the US as “saxophones”, with the lawyer playing the tune. Hence Spencer and Flin’s remark about the “deeply-corrupting effect” of the adversary system. The surprise is not that the cartel organised this system, but that they have got away with it for 200 years.

The judges of course still had the status and control of the court, but two of their major tasks were now to look judicial and stay awake: Lady Coleridge sat on the bench and kicked His Lordship when he went to sleep; Lord Reading wrote letters; Lord Thankerton took up knitting.

Judge Rothwax notes the flaw in concealing relevant evidence. He says: “Suppressing evidence is suppressing truth … Without truth there can be no justice.” Evidence was not concealed before the cartel’s revolution, judges chatted informally with jurors to see how they were thinking, and put them straight if they were going wrong, perhaps on weight.

But when lawyers got control of trials, the cartel decided that jurors were so deficient in intelligence and sense of fairness that it would be fairer to subtract certain relevant evidence rather than let them weigh it. Whatever Mr Littlemore may think, this makes it easy to get the guilty off.

The rules seem as irrational as much of the English system. The right of silence protects the guilty only, and was successfully exercised by Justice Lionel Murphy and the dingo. The rule against similar facts conceals patterns of crime, and is particularly helpful to lawyers for rapists and organised criminals. The rule against hearsay hides the evidence of dead victims, e.g the former wife of O.J. Simpson, but not that of dead judges. The Christie discretion allows the suppression of virtually all evidence tending to prove guilt. The discretion to conceal evidence improperly gained punishes the victim and the community rather than erring authorities.

I don’t agree with everything Whitton says about the legal system. He has a tendency to overreach and exaggerate, and fails to recognise that there are sometimes quite sound and just reasons for particular legal/evidentiary rules that have nothing to do with advantaging lawyers themselves or their criminal clients. However, I mostly agree with the points Whitton makes about juries. We need a much more open, critical public debate about these sorts of issues, one which rejects lawyers’ self-serving claims to unchallengeable expertise about rules of evidence and other practices that may sometimes serve to conceal truth and defeat justice.
Update – here’s a link to the Court of Criminal Appeal judgment in the Tayyab Sheikh case.

Update 2 – Dave Ricardo points out that Richard Ackland also wrote about this decision in his SMH column this morning. I generally agree with Ackland as well.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Dave Ricardo
Dave Ricardo
2022 years ago

First, a quibble. Why is this woman an “alleged” rape victim. The convictions of all the other men who raped her still stand, so this makes an actual rape victim, in my book.

Richard Ackland has an an excellent column in today’s SMH on the appeal court decision. He says they got it wrong.

The problem with Evan Whitton’s line of argument is that he compares the adversarial system we have, which is inevitably full of flaws, with a theoretical inquisitorial system that works perfectly at uncovering the truth in every case. I’d like to know how this kind of system works in practice. But you’ve got to compare apples and apples. Take a country like France, with its investigating magistrates and so on, and where all the problems that Whitton finds in our system, supposedly don’t apply.

Does the system of criminal justice work better there than in an English style system? I’m not saying it does or it doesn’t; I’d really like to know.

Ken Parish
Ken Parish
2022 years ago

Dave,

I agree completely with your comment about the deficiencies of Whitton’s broad argument. I’m not an expert on civil law systems in general or France in particular. However, my general understanding is that, contrary to Whitton’s assumptions, civil law systems contain variations on quite a few of the same evidentiary rules that he identifies as tending to conceal truth. As my main post observes, at least some of these rules serve legitimate purposes, a conclusion reinforced by the fact that the French/Europeans have adopted somewhat similar practices.

peggy sue
peggy sue
2022 years ago

Back in the olden days, there was trial by combat.
The accused fought it out on the field, under the eye of Mother Church.
Naturally, God ensured that the victory was to the innocent party.

However, it was a bit difficult for women, children, the aged, the infirm, &c to fight, so they were allowed to hire a champion to fight for them.

Wagner buffs will recall Else’s innocence being proved by Lohengrin’s defeating her accuser.

Our adversarial system is essentially trial by combat, where the lawyers are the champions in the fight, and the jury decides which champion has won.

John
John
2022 years ago

A particularly cogent point made by Ackland is that the Court of Appeal had created the problem in the first place by insisting on separate trials.

Looking at the series of decisions in the Skaf case (with the obvious exception of Finnane’s), I’m beginning to lean to the view that it’s some sort of elaborate plot to encourage the tightening of the criminal law across the board.

By making stupid pro-criminal decisions in high-profile cases where there’s little doubt about the actual facts [as opposed to those admissible in evidence], the courts seem to be daring the government to create new crimes, raise the sentencing tariffs, change the laws of evidence, and so on. So far it’s worked a treat.

bargarz
2022 years ago

What a great precedent.

So we can look forward to the same sort of appeals from the defendants in the Bodies in the Barrel case, the Sian Kingi case, the Anita Cobby case etc?

(although admittedly I’m not sure how many of these cases were held seperately for the various defendants)

Mork
Mork
2022 years ago

Ken – great post – I agree with every word (except your implication that Evan Whitton’s comments on the legal system should be taken seriously).

The thing that struck me reading the judgment (apart from the points you have noted) is this: apparently, the only evidence the Court of Appeal needed about the prejdicial effect of media coverage was the transcript of the various media statements themselves.

The judges were able to conclude merely from reading the transcipts of these statements not only that they would generate “feelings of anger, revulsion and general hostility to young Lebanese men”, but that these “feelings” “would have lingered heavily in the atmosphere of the appellant’s trial”.

My question: how the hell would they know?

If they are going to base their judgment on the “feelings” that these broadcasts created, shouldn’t they require some direct evidence of what those feelings were, if any? As far as I can tell, they had no direct evidence that the broadcasts created any reaction, either in the community at large, or, more to the point, among the members of this particular jury.

I suspect that the truth is, as you imply, that these judges think that everyone but them is an idiot whose feelings can be whipped into a frenzy by any dime store demagogue on 2GB.

Geoff Honnor
Geoff Honnor
2022 years ago

At the time the trials were being conducted, there was a veritable blizzard of fury about the explicit linkage of the defendants’ ethnicity with the crimes that they were alleged to have committed. The NSW Anti-Discrimination Board chose this less-than-optimum moment to demand that media commentators should be “re-educated” about the perils of linking culture to criminal intent.
It was quite possibly the most fatuous and selective observation that the ADB had ever made. For instance, for the last two weeks, Sydney has been awash in culture linkage alllegation between wealthy, young, callow, rugby league players and group sex with a young woman or women. About which, the ADB has been utterly, completely, terminally, silent on the fearful perils of culture linkage.

David Fickling, the Guardian’s Sydney-based correspondent, was reduced to pathetically arguing in a recent column that the Bulldogs allegations could have nothing to do with Rugby League per se because, clearly, the Skaf trials could have had nothing to do with a specific Lebanese-centric culture in Western Sydney.

In the Skaf trials, the prosecution convincingly argued that the the defendants themselves had boasted of ethnically-based motivation, heavily underscored by the families and supporters of same who incessantly shrieked insults and imprecations about the sexual proclivities of witnesses and prosecutors, thoughout the trial.

I agree with Mork. From the elegantly appointed surrounds of their eastern suburbs residences, Judges Mason and Wood can only have concluded that the rest of us are drooling idiots who wouldn’t know justice if we fell over her statue in their architect-designed, spotlit, courtyard water features.

TJW
TJW
2022 years ago

Professor Bunyip seems to have put their (work?) numbers on his site. I don’t think thats too constructive.

Geoff Hoonor
Geoff Hoonor
2022 years ago

I agree TJW. Neither justice – nor their Honours – are likely to be positively influenced by their work phone/fax numbers being placed within easy reach of the easily disregarded opinions of the obviously uninformed.

mark
2022 years ago

peggy sue, well done. Now can I have my first-year Law textbook back please? Sure, I’m not using it this Semester, but it might fetch a decent price second-hand, y’never know…

peggy sue
peggy sue
2022 years ago

Your point, Mark?

Dave Ricardo
Dave Ricardo
2022 years ago

Just wondering, any chance of an appeal to the High Court on this one?

Des Mason
Des Mason
2022 years ago

NO KNOWN CAUSE OF DEATH’
by
Karen J. Tonkin
Wrongly Convicted Australian Lifer

Excerpt:

“Sit down Karen. You’re being charged with Murder.”
Whaa…aat? I hadn’t murdered anyone. What were they talking about?
I fell to meet the rising floor and landed in an unconscious heap on the floor. As I began to regain consciousness I heard the older of one of the two plain clothes Detectives bellow, “Well don’t just stand there! DCo something!”
“Er…wha..t?”
“Pick her up! Grab a chair and…slide it under her!”
I could smell something warm and familiar. As the blurr cleared and I began to focus I realised that my nose was paralell with the Detective’s large tan-colored leather lace-up shoe. Regaining consciousness on the way up I was wrenched away from the comfortable smell of boot polish and dumped like a sack of spuds on a small wooden chair that matched the bare floor boards beneath me.
Myhead spun. The shocking reality was that I hadnot murdered anyone. I had Faith enough to believe that the turth was an inevtiable outcome and that my accusers would realise their error.
Not so.
Thirty years later as I continued to struggle against the odds to maintain my sanity in hope of one day being exonerated I was faced with the crashing realization of the gravity of such a Miscarriage of Justice. I had lost my entire family…along with every conceivable opportunity for human wellbing. Relationships employment children ..and more.
How can I ever being to convey the reality of the terro of injustice to you, the reader, without biasing your opion or persuading you to believe in my guilt or innocence? Ho can I step back from the setting and present you with an expression of the ineffibility of experience that has all-but torn my pitiful life away from me? I will do my best to present you with the facts beyond the misrepresentation that is a huge epistemic break that is my life in the margins.

Dedicated to You the Reader.
Karen J. Tonkin

2. I raise the question: ‘What happens to an innocent man(person) condemned’? Drawing your attention to Australia’s former Most Wanted and wrongly convicted woman Karen Tonkin who spent 18 years in prison as a result of a grave Miscarriage of Justice and a further 12.00 years on parole having been sentenced to Life. Can we imagine the terror of waking daily and knowing that ‘I don’t believe it! This could happen to me(you).’ Don’t think it cannot – it can. The accompanying adversity to the horror of injustice was a life behind bars where she was subject daily over a period of many years to drug and thump therapy, psychological mental and emotional abuse and other deprivations of liberty including sexual assault, rapes and attempts on her life. However, the Criminal Justice System has been keen to conceal Tonkin’s treatment and the initial miscarriage, with everything from court orders and securely archived materials that could be used for DNA and clear Tonkin of the crime for which she has suffered in silence, Further Tonkin has been silenced by the courts, the State, the Church and the media. Don’t tell me we really DO live in a free Democratic society where the basic human rights of people are acknowledged and addressed? Of course we know this is nothing more than a smoke screen. Why ‘talk’ Justice if you cannot actively make a stand. What happens to an innocent man condemned? Ask Tonkin who has not only survived but succeeded in overcoming unbelievable obstacles: Against The Odds. “What price human life?” Tonkin’s moral and educational position has been reinforced at a cost none of would willingly agree to pay!
Asked why there has not been an effort to investigate her case Tonkin replies, “The last excuse was ‘It was too long ago!’ Then of course the ‘evidence’ disappeared. All the xhibits- the archived proof that would have proved that it was not my blood on the jeans.. They called me ‘Scissor Killer for so long. The media made horrific headlines that influenced countless persons…when in reality there was and is no stab wound in or on the body. Amazingly, there is still no cause of death. Thirty years later it remains inconclusive and I am the scapegoat. I haven’t killed anyone and I have yet to meet someone who is genuinely concerned with what is just and right. I have meant countless people from all walks of life over the last thirty years but I have yet to meet one just person. It is not important that I, a human have been wronged. But it will cost me lilfe. I have already lost thirty years out of my life. Do you have any idea as to what that is like? Can you imagine what it is like to be called SCISSOR KILLER by the media when infact no-one was ever stabbed!?”

1950- Born in Western Victoria, Australia
1973- Wrongly convicted and sentenced to Life Imprisonment, Queensland, Australia.
1989- Escapes: Australia’s Most Wanted
1991- Re-captured New South Wales, Australia. Released on parole, Queensland, Australia.
2001- Nominated International Poet of the Year 2001
2002- Nominated International Poet of the Year 2002
2002- Admitted to the Degree of Bachelor of Arts (B.A.) with Double Major.
2002- Commences Post Graduate Degree: Master of Social Science (Criminology).
2003- Nominated International Poet of the Year 2003.
2004- Commences Post Graduate Degree: Master of Letters

In more recent years Tonkin’s research focus has switched to Cesare Lombroso’s ‘L’Uomo Delinquentes’ or Criminal Man (the Born Criminal, Labelling and Social Learning Theory and Crime Prevention through Environmental Design and Education.

How then can the complexity of such reports, and in particular, complex interpretations that include carefully woven and inconclusive guesswork, be accurately considered by jury members drawn from every day life. How can such complex scientific reports as provided by so-called ‘specialist’ sources ever hope to be understood by the everyday person called to jury service? It cannot be understood by the ordinary untrained mind. The man on the street doesnot have insights into such complexity and being uninformed in matters of a scientific nature cannot deliver judgement based on Hearsay and Circumstantial Evidence that provide no substantial or conclusive evidence. Further, as stated by a doctor, “They couldnot make fully informed decisions as they did in your case without having all the information, that is without being full informed. It was wrong. They made decisions they were in position to make.” Furthermore, the socalled specialist information given to the jury to help shape Tonkin’s case was evidence drawn from Dr Parkers old if not deceased clients. Ino order to pursuade the jury into believing Tonkin was smitten by a rare and unusual instance of epilepsy which se maintains was not the case at all, the material Dr Parker presented in support of Tonkins illness was not of her medical state at all. ”

Indeed, it was the medical condition of a remote client believed by the jury to be the medical condition of Tonkin herself. Just as the stabbing didnot take place, so too was the medical evidence provided as being mine, not mine. It cannot be argued that your mental condition was the cause of any crime committed by me. In this case not committed by me. Even if there were similarities in our heart or mental conditions this doesnot generically specify that your condition will cause you to react in the same way as my condition causes me to react. Similarlyyour blood cannot be substituted for the blood of someone else. Just as my blood on my jeans was presented to the jury as being ‘the blood of the deceased. In fact the article of clothing and the blood stains on the article of clothing were never at the crime scene. It was not until 3 days later that I woret his article of clothing and the blodd is my own. No wonder all the evidence has mysteriously disappeared. This was one of the most corrupt events in the most corrupt state in Australia at that time prior to the new Labor Government when the Bjelke-Petersen Government thrived on every suppresion of human rights and dictated that only the corrupt and evil ruled as is evidenced by later representations found to be determining the ill of my fate by State Cabinet itself. I will see my case re-examined thoroughly. To not do so would only re-inforce the fact the corruption still exists in Queensland as we do know it does elsewhere. Similarly, the socalled notion of freedom and in particular the very right to certain freddoms in a Democratic society such as one’s right to speak…I have been denied a voice through the media for more than three decades. Even recently when I called a radio station they were reluctant to allow me to speak. Rather than tell you ‘No.’ They ask ‘Is there a number on which we can call you back?’ This means you are being refused a voice and that it is the denial of justice in the long run. It is a breach of Human Rights and Criminal Law deisgned to serve self-interest.’
More than thirty years after the crime in which I was involved I am now experiencing police targeting as I have never before experienced in my entire life. For some reason which I have yet to investigate, police are bullying me and making my life very uncomfortable. It is threatening. This began four years ago. A very different relationship from what I have known in the past. Somebody is obviously doing something somewhere- it seems as if they are in the process of trying to ‘create’ a history on me for the future when infact I am far removed from all illegal activity – not that I need to justify myself to anyone. I don’t. Only yesterday a police cruised slowly past my place. I am the stage now where I am having to note down timesa nd dates. Prior to that a police officer entered my home and said one of the neighbours had reported that I threatened to kill her. Prior to this my ex husband sent the local police officer onto my property as his ‘message boy’ to use force against me. Prior to his the local copper suggested it would be better if I didnot live in the town in which I lived and moved to the city. I am sick of it and intend having my name cleared. I am not a killer. The public needs to know this and to stop the abuse.’
This is a dangerous area in which I for one have been subject to corruption at the highest levels including the Coroner’s Office and have been subject to one of the gravest Miscarriages of Justice in the [Australia] land. In addtion to wrongful arrest and imprisonment, unbelievable acts of brutality including drug and thump therapy assault and sexual assault rape and continued attempts of murder on my life, I continue to be subject to the emotional psychological and mental trauma of being wrongly accused and treated accordingly. That this continues to go unattended and I continue to be silenced by the media and government is in itself an horrific crime against humanity on par with the suffering of those in the Bali Bombing the Holocaust and other crimes.
Forgiving my perpetrators was easy until I realised that they continue to deliberately suppress my Voice and my right to access what is just and right.
Pauline Hanson was recently reported as being ‘Australia’s First Political Prisoner’. However she is not. Karen Janette Tonkin is Australia’s First Political Prisoner. It is a well-known fact that Tonkin was a long-term political prisoner under the Bjelke-Peterson Government- a most corrupt and artificial Government of Self-Interest that denied people the very right to basic democratic rights as is evident in the suppression of the voice of protestors largely comprising the Catholic Workers from Dorothy Day house in West End Brisbane.
As Psychiatrist Dr Eddie Young points out, “I have always believed that you are innocent. That you didnot do it. The truth will come out – it is inevitable- my only concern is that you may not be here to see it.”

sue
sue
2022 years ago

i have a couple of things to say how can u judge some one yo dont know? how can you say that tayyab shiekh was involved in a gang rape when you havnt got all the facts? how do you know what type of person this boy is? then you have to ask yourself why would her? and how do you know he did? maybe if you were not so caught up in bullshit you would have a clear perception of what may of happened other then thinking negatively in my opinion tayyab shiekh isnt guilty or anything except trying to be a young boy who wants to have a life and get over something he did not do and was not involved in!