By Finchley Atticus
Who are you? Who, who, who, who?
So opens each episode of CSI: Crime Scene Investigation, the erstwhile American TV forensic drama. The classic rock song “Who are you?” by British group The Who will for many TV viewers be associated with CSI. An apt theme than any, as expounded by communications expert and law graduate Lauren M. Hug. “Who are you?” is asked by the CSI team to construct the victim’s identity, what happened to them, and how the world perceived the victim in often vicious circumstances.
Tragically it didn’t take long for us to learn about and mourn for Jill Meagher, the former ABC employee who in 2012, walking to her Brunswick home on that fateful night, suffered unimaginable cruelty at the hands of her rapist and murderer Adrian Bayley, subsequently sentenced to life imprisonment. The community became further outraged as we learned more about Adrian Bayley, his violent past as a multiple-rapist prior to Jill Meagher’s death – revealed through his new rape trials in 2014 and 2015. Adding to the horror was the revelation that Bayley raped two of his victims just months prior to the rape and murder of Jill Meagher, and he was on parole at the time after serving a sentence for a series of rapes in the 2000s. No surprise that the Victorian Adult Parole Board apologised to Jill Meagher’s husband, Tom, for its failure to cancel Bayley’s parole after he pleaded guilty to assault in 2012, several months before the horror inflicted on Jill Meagher.
I really wanna know, who are you? Who, who, who who?
Amidst the disgust and outrage, the public looked in a certain direction to ask “who are you?” One letter writer to the Sydney Morning Herald wondered why the names of the Parole Board were unavailable on their website. Noel McNamara, President of the Crime Victims Support Association wondered “With the parole board…no one knows who is really on there.”
Tell me, who are you? Who, who, who, who?
I should stress it’s not uncommon for government authority websites to omit their membership listing. VCAT no less doesn’t list its members on its website. Same with the ACT Civil and Administrative Tribunal. For the record, the Adult Parole Board’s membership is available in its annual reports which can be downloaded.
Cause I really wanna know, who are you? Who, who, who, who?
I suspect a major public misconception about murder trials is that evidence must be presented explaining why the deed was committed. No doubt thanks to legal dramas with the words “murder” or “death” (looking at you Murder She Wrote, Death in Paradise and Midsomer Murders), the public demands to know why, not just who. And I think the questions abounding about who are the Parole Board members – which are legitimate questions after all, as it is a taxpayer-funded authority – somehow seek to provide a window into why the Board made its fateful decision in the Matter of Adrian Bayley. If we don’t even know who they are, how can we even look into their eyes to examine their soul? Who? Why? How about what if? What if the Parole Board had revoked Bayley’s parole months prior to Jill Meagher’s death, which would have been in tune with community expectations. But surely it’s pure fantasy for the courts or tribunals to skew its independence to the will of the hoi polloi?
Reagan-Bush revisited (1981 – 1993)
I’ve never embraced the popularity of fantasy sports but I can understand the democratic appeal to dedicated sports fans who put themselves in the selector’s seat by handpicking their sports warriors to do justice, something which those well-intentioned but weak-minded real-life selectors just cannot get a grip on. For some it’s the ultimate wish-fulfilment to make wrongs right.
The TV and movie industry embodies a kind of democracy of ideals and wish-fulfilment, creating a fantasy world and entertaining no less, for public consumption. Legal drama screenwriters are no exception. The world through the creative lens of some screenwriters represents – in an entertaining way designed with a keen eye on box office dollars or TV ratings – the way they think (or the way the public should think) judges should get a grip on achieving justice for innocent folk in a broken legal system that fails the hoi polloi. Consider these screenwriters Your Ombudsman who exercise imaginative and creative authority to restore justice.
When I graduated from Monash Law School, the 12-year conservative Republican Reagan-Bush era had wound down thanks to the American voters electing Democratic candidate Bill Clinton to the White House. Some may remember the Reagan-Bush years as embodying the “tough on street crime” philosophy – although curiously many moneyed denizens of Wall Street appeared to be exempt from this hard-line approach to law and order thank you very much. This tough attitude arose from the view (rightly or wrongly) that well-meaning judges who stuck by the rule book were restrained from throwing the book at the criminals because Their Honours were frustratingly outplayed by smart and sneaky lawyers who deviously got their violent clients off the hook due to some obscure and dusty legal technicality, aided by some liberal-leaning law professors who have never seen the inside of the court room and always found time to serve pro bono on marijuana advocacy groups.
It seems that pre-Reagan era of movies from the 70s featuring everyday vigilantes frustrated with a broken legal system – cue Charles Bronson’s Death Wish saga and any film fronted by Clint Eastwood – ushered in judicial vigilantes a decade later. So how were judges – often unfairly perceived as ratifiers of a broken legal system – co-opted by screenwriters as robed vigilantes? For one thing judges have a higher public profile in the USA. Supreme Court nominees steel themselves for prime time, having every aspect of their judicial and private lives combed through by senators and the media as they prepare for televised and gladiatorial confirmation hearings. Many judges are at the mercy of the electorate at the ballot box, and in some instances have been turfed out of chambers by voters seeking to balance the scales of justice.
The Star Chamber (1983)
The Star Chamber is one movie borne of Reagan-Bush that personified judges more concerned with seeking to right wrongs perpetrated by violent criminals who gleefully escape conviction thanks to their first class attorneys and a second rate legal system. Michael Douglas plays Los Angeles Judge Steven R Hardin – we know that because of the shiny gold nameplate on the bench –who is frustrated at having to reject evidence gathered from a garbage truck sans search warrant, despite the accused confessing to multiple murders. Soon afterwards Judge Hardin is bound to throw out key evidence against two men arrested for the murder of a 10 year old boy, with the boy’s father pleading to Hardin, “That is my little boy, not a point of law.” Hardin’s had enough and finds himself inducted to The Star Chamber, a group of judges meeting secretly in a smoke-filled room (being the 80s, most of them smoked) to pass sentence on the garbage who have slipped through the legal cracks. To ensure they are at arms-length they engage an anonymous assassin to execute the sentence forthwith. The fact these judges exercise unorthodox and extra-judicial authority to restore justice is not definitely ultra vires in this fantasy world. Whether you like The Star Chamber or not, three words can be associated with it: explosions, gunfire and violence.
Dark Justice (1991 – 1993)
As a cop I lost my collars to legal loopholes…but I believed in the system.
As a DA I lost my cases to crooked lawyers…but I believed in the system.
As a judge my hands were bound by the letter of the law…but I believed in the system.
Until it took my life away…and then I stopped believing in the system, and started believing in justice.
So intones Judge Nicholas Marshall (portrayed by Ramy Zada in the first season, then Bruce Abbott for the remainder of its run) at each episode opener. The TV series Dark Justice wrapped up the Reagan-Bush years, and in each episode Judge Marshall convened a Star Chamber backed by The Night Watchmen (dubbed by an inquisitive journalist), some of whom were reformed criminals, seeking to bring criminals to justice – all within 45 minutes excluding commercials. His Honour’s ominous catchphrase to criminals let off the hook due to legal technicalities is “Justice may be blind…but it can see in the dark.” Again: explosions, violence and gunfire.
Of course it would be pure fantasy (except in the eyes of a talented screenwriter) if a member of the Victorian Adult Parole Board was to set up a Star Chamber to restore justice for victims short-changed by a legal system blind to their concerns. Really, it’s not as though someone aggrieved at being banned by the Chief Commissioner of Police from a casino can seek legal advice from the Chairman of the Parole Board on how to appeal the ban. Oh really?