Page 4385 - Week 14 - Tuesday, 22 November 2005
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found guilty perjure themselves in their own defence. To some extent our system almost accepts and acknowledges that, at the end of the day, when a defendant who pleads innocent says, “I was not even there” and it is subsequently proven that they were there all the time—perhaps through the use of DNA evidence, fingerprints or security cameras—they are proven to have lied in their defence and perjured themselves.
Mr Stefaniak—or the opposition—suggests that, if you go along, plead innocent and create a defence which is a fiction and you are then convicted on the basis that there is other evidence adduced by the prosecution which proves that you are lying and you are found guilty and then sentenced for the offence, the court should say, “You lied in defending yourself; that is another offence; we will just load that on top of this other offence you have committed and which we have found you guilty of.” I think the whole system of justice proceeds on the basis of the agitation of the prosecution and the defence cases. Taking the fact that a person in defending themselves commits perjury—in other words tells a lie—as a relevant consideration in the sentence that should be handed down goes very close to the prohibition we continue to maintain around double jeopardy which, in other words, is the suggestion that no-one should be tried and punished again for an offence for which they have been finally convicted or acquitted according to the law.
There is a provision within the Human Rights Act that encapsulates article 14 of the International Covenant on Civil and Political Rights that one not be punished twice for the same offence. I think that if the suggestion of taking into account the nature or truthfulness of a defence mounted by an offender being prosecuted does not infringe the proposition that you not be tried or punished twice for the same offence, it goes very close to infringing it. In other words, a person mounts a defence which the court finds lacking and completely fabricated—it is perhaps wholly dishonest; not a case of a mistaken position, view or viewpoint. I am sure we all know how often that happens but it is part of a system that we accept. In the context of how criminal justice has traditionally operated and in relation to our attitude to double jeopardy or double punishment, it is not appropriate that, all of a sudden, we begin to believe that the truthfulness of a defence mounted in a prosecution can be taken into account in determining the quantum of a sentence imposed by a court.
I take a similar position in relation to paragraph (e)—that the court should, in deciding on a sentence, have regard for the offender’s behaviour in court. I think we would all be aware—and Mr Stefaniak points to this—that not infrequently in our criminal courts the behaviour of offenders is quite appalling and simply insupportable. It is a quantum leap to jump from acknowledging that some offenders, in the pressure cooker of a criminal court where they are potentially facing life imprisonment, do not maintain a level of decorum or do not behave in a way that we would perhaps wish all human beings to behave. I think some account should be taken of the enormous trauma, pressure and stress a person facing, say, a sentence of life imprisonment is under. I think we should have some regard for the pressures that motivate or induce some of the behaviour that we all know to be unacceptable but which we can nevertheless, I believe, seek to understand.
In the context of that sort of behaviour I believe our judicial officers have a capacity, through their experience and understanding of their roles and responsibilities, not to take into account the behaviour of a person in court as a relevant consideration in determining the length of a sentence. If a magistrate or judge could say, “I was going to sentence you
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