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From the Courts

Alan Parish remarked in an earlier column that maybe it is okay to leave things to the actors rather than the props in maintaining the status of that venerable institution, the Magistrate's Court. This has certain risks, from the fragments of speeches of counsel one picks up. Many are characterized by poorly developed logic and inadequte briefing.

"It should be noted that this was not a deliberate breach of the law," said one counsel cheerfully. Then, remembering a little of his legal education: "Of course this is no excuse for the offence, but . . er . . nonetheless it should . . er . . be considered."

The arguments of counsel are often surprisingly similar to those one would expect to be put forward by a ten-year-old. "If the complainant had not intervened in the matter, he would not have have found himself in that predicament." Echoes of "He started it!"

Defence lawyers seem thoroughly rapt in the booze society mentality that someone who is drunk is not answerable for his action — a refinement, it seems, of the law on the mentally unfit. Counsel will stress that "the next thing he remembers" after committing the offence was "falling over the wall . ." The implication always is that he did some thing rather silly whilst doing as thousands of others do and getting drunk on Saturday night. His actions, as such, are not stupid, irresponsible and dangerous; they are: "sheer bravado", or some other innocuous phrase.

Those first-year law students currently struggling with this business of "issue-finding" will doubtless be pleased to know that it appears to be possible to be admitted to the bar and start practising in the Magistrate's Court without having mastered this basic art. So frequently does the Magistrate ask the questions on vital facts that one wonders if it would make much difference to M.C. justice if we adopted an inquisitorial system (where the Magistrate would be responsible for establishing the facts and making a decision accordingly) rather than the present adversary one. It should not have to be the Magistrate who points out to the police that, if it is vital to their case that the paint on bumper A matches that on car B, they should have sent samples to the D.S.I.R. and had it confirmed. Surely this is good ground for the rawest defence lawyer.

Especially on mornings where cases are being run through fairly fast, it is not uncommon for the defendant to be stood down because his lawyer is not present. When they do turn up it eventuates that they previously went to the wrong courtroom, or mislaid the papers, or some such silly thing. Doubtless they would all scream "overwork" at these comments, but there are limits to the tolerance one can grant this excuse. Some of their poor preparation and organization is more likely due to inefficiency, muddle-headedness, and a high golf-playing propensity. This is all very human of them but has not so-frivolous implications for the execution of summary justice.

As one conciliatory gesture I will admit that I have not yet seen enough Court cases to know whether the above criticisms apply to most Magistrate's Court lawyers or just some — but some is sufficient to be of concern.

One of the more time-consuming types of case that come before the Magistrate's Court are shoplifting offences (time-consuing, compared with the one case per ten minutes on traffic mornings). Two that I have seen were defended with the assertion that the shopper had forgotten to present the goods at the checkout counter, and, on being confronted, was amazed, repentant etc., offering to pay for the goods, apologizing and so forth. Both women charged were acquitted, on grounds that deserve some examination.

Motive: the Magistrate could see no possible reason why a woman with eighty dollars in her purse would shoplift. This is fair enough, except United States research has shown that financial motivation frequently does not exist among shoplifters. They may just steal because it is a rather adventurous thing to do, because they like something but don't think it's a worthwhile price, or for assorted obscure reasons (this is U.S. research I'm citing) like a grudge against a shop employee. However, while Magistrates aren't experts on every social phenomenon, neither are American researchers, so the point is of limited validity.

Character evidence: Great stuff this. "It is just inconceivable to me that she would be guilty of such an offence." It must be a puzzle for magistrates to decide how much weight to give to the opinion of the friendly neighbourhood cleric or trusting employer. They are not in contact with the facts of the case — they don't alter the "did she or didn't she?" aspect. They give their view on the likelihood based on their experience of her which may not be a very accurate representation of her true personality. Despite these limitations, the social appearance of someone who will be deemed a criminal if found guilty must be of concern to the Magistrate.

There seems to be very little point in taking defended shoplifting actions against suburban-housewife type women. The defendant, if acquitted, will lose a lot of sleep and probably as much in lawyer's fees as she would ever have paid in fines. If convicted, she may for her misadventure lose what stable social status she has and imperil future job-hunting endeavours. Magistrates are understandably unwilling to convict a woman with no previous form of a trivial but shameful offence. On top of this the supermarket loses in giving its employees time off work to go and give evidence. The Court schedule, already loaded with a six to eight month delay, has another hour or more slotted into it per case. It seems to me that while the general principle that people should be tried if suspected of an offence is sound, in the sort of shoplifting case above it turns into a futile and unnecessary waste of resources.