News & Insights

Source: The Herald Sun

Political correctness and concern for crooks is everywhere. And it’s pervading our courts.

Don’t worry, this is not a rant about lenient sentences. I’ll leave that for another day because there is too much to say on that topic.

No, this is about the adoption by the Supreme Court of Victoria of protocols for managing children in the Supreme Court.

The protocols make court for those under 18 not like court at all. The protocols make court a friendlier environment for those under 18. An environment which is less confronting and intimidating. And in my view, that’s not positive. It’s a problem.

We can safely assume that if the children — people under 18 — are in the Supreme Court and not the Children’s Court, they’re probably charged with a serious offence.

Whether those children are innocent or not, I want and expect our courts to be trying to scare the living daylights out of them so when they walk out the door — either to go home or to juvenile detention — the last thing they want to do is walk back in.

But the court’s new protocols appear to be designed with the almost sole and opposite intention. To make it a friendly place. And maybe even worse, it appears the protocols might make it easier for the court to limit or even avoid media scrutiny of such cases.

The protocols require the Supreme Court to adopt procedures including:

HAVING all participants (presumably including the judge) at or near the same level;

NO handcuffs;

THE child is permitted to sit near their families or friends and not in the dock;

BARRISTERS and judges don’t wear robes;

SECURITY staff not to be in uniform;

NO recognisable police presence;

BARRISTERS speak from a seated position; and

THE child is referred to by their name and not “the prisoner”.

Only people who are needed in the proceeding should be present — which might possibly be used to avoid having the media present.

So, almost every factor in a normal court hearing that has an impact on those attending — witnesses, defendants or observers — and is likely to intimidate, will be taken away for those under 18 appearing in our Supreme Court.

It’s worth noting that this is fairly standard in the Children’s Court. While I don’t agree with these measures in the Children’s Court, the arguments against such measures are even stronger for the Supreme Court because the offences those under 18 will face there will be more serious.

Let’s try to put this into perspective. Imagine — heaven forbid — one of your loved ones is seriously assaulted. The police swiftly find the person they believe is responsible. That person is a 17-year-old — just days from his 18th birthday. His name is James.

A long wait ensues before you get to court to see the person who badly hurt your loved one. But when you attend, you see him sitting with family and friends. None of the lawyers stand when they’re speaking and there are no visible security staff in the court. Everyone — including the judge — keeps referring to him as James, or Jimmy. Imagine how you’d feel.

Of course, victims’ feelings aren’t my main issue here. I’m concerned about the impact — or lack of it — on the boy charged.

Imagine now you’re the boy charged with the offence. You were 17 before the crime occurred, but it’s now a year or so later and as you sit in the court with your family and friends, and you’re referred to by your first name, none of it seems as serious as you’d first thought.

You don’t have a great day, but not that bad. The penalty you cop might deter you from ending up back in court — but the treatment you received in court certainly won’t. And that’s a concern.

I’m sure for young kids charged with serious offences a normal Supreme Court proceeding, with its intimidating procedures, would be a harrowing experience. It might leave a lasting impact. But that’s the point. It should.

The new protocols are just too crook-friendly. The protocols also provide that “the number of people in attendance is restricted to only those with an immediate interest in the outcome of the proceeding”.

If that is ever used to exclude journalists, then these protocols are even worse and more dangerous than I first feared.

The Supreme Court says they are not designed for that purpose. But I bet it won’t be long before a smart barrister relies on them to get the media kicked out of a case.

I hope I’m wrong.

I’m sure there must be some reason for the protocols. There’s probably a psychologist’s report that says court can have a detrimental impact on the “child”.

Well, frankly, bad luck. What about the “child’s” victims? What about the “child’s” future victims?

Whether the child is innocent or not, court should be intimidating. Let’s make it the sort of experience that makes victims feel better, and creates fewer victims in future.

This article was written by Justin Quill, Principal Lawyer – Litigation and Dispute Resolution | Media