Justice is an elusive concept.
What it means might be very different, depending on who you ask. Some people might use the word when they really mean vengeance, or retribution. But those things are not the same.
True justice is blind. It casts off your race, your wealth, your age, your sex. It seeks out the facts and the circumstances. It applies the law free from emotion.
It is virtually impossible to ever really find.
The system we have in Australia is designed to try and achieve it. Sometimes, it falls short.
But the difficult truth behind judgements we don’t like is that while we don’t like THOSE particular results, we do want a system based on the principle that everyone deserves fair and equal access to the law. No matter what we think of that person.
This week we’ve seen a few examples of just how messy our justice system can be.
Two men – who are both not very much loved by the general public – have had significant legal victories.
Robert Xie, tried three times for the murder of his brother-in-law Min “Norman” Lin and four members of Mr Lin’s family, has been in jail for four years and seven months without conviction.
His first and second trials were aborted early, and the jury was unable to return a verdict in the third.
He will be released on bail sometime this week, while he waits for a fourth trial.
For many people, the reaction to this news is disgust. “What do judges in their ivory towers know of justice?” They may ask. Charged with killing his family and after hearing a great deal of evidence against him in the previous court cases, we are clearly ready to convict.
But while you may think Robert Xie deserves a life in prison, no court has convicted him. And so, in the eyes of the law he still deserves the same treatment as you or me. The same treatment you or I would want if we had been accused of something and wanted to defend those charges.
We do know however that Gerard Baden-Clay killed his wife.
The legal matter in question however was how? A jury found he had murdered her. But the Queensland Court of Appeal disagreed. They found that the prosecution had not satisfied a key element of the charge of murder. They had not proved beyond a reasonable doubt that Baden-Clay had intended to kill her. They accepted that it might have been an accident.
So the court determined that Baden-Clay was not guilty of murder but guilty of manslaughter. It is a crime that in Queensland carries exactly the same maximum sentence as murder: life in jail.
It was understandable that in the wake of this decision there was outrage and high emotion.
But the fact remains that whatever you may think of Baden-Clay (and we suspect your views are in line with ours), he has the same legal rights as any other person. We cannot call for the erosion of his rights, because that is an erosion of all our rights.
Whether or not the Queensland government decides to appeal the judges’ decision, Baden-Clay will stay in jail. His new sentence will be determined in January.
Baden-Clay’s conviction was overturned on Monday morning:
There has been speculation he could be released as early as next year, but we do not know what the outcome will be. The prosecution will surely put forward a strong argument for a sentence with a similar weight to the last, and that is something Queensland law allows for. We can only hope the result of that is the right one.
The anger that surfaced this week stemmed from two understandable sources. Firstly – we did not get the result we wanted. Secondly – this verdict is unfair to Allison Baden-Clay and her family.
The second is the hardest to swallow. Victims of crime deserve justice and for the magnitude of the crime and its impact to be properly weighted in any punishment. Unfortunately the law is imperfect, and developed over centuries by lawmakers and politicians who until very recently paid scant regard to domestic violence and the many forms it takes.
Australian of the year Rosie Batty said in response to the decision: “It absolutely sends the same message that we undermine, disregard, disrespect a victim in a violent relationship.”
I agree. There’s a lot about this decision that makes me uncomfortable. It certainly highlights the gap between what the law says and what the public want. But if we want to close that gap we do have to seek redress through changes to our laws, not an expectation that judges will ignore the law.
The final case to draw attention this week was that of Maggie Kirkpatrick, star of iconic Australian 1980s soap opera Prisoner, who had her conviction for sex offences overturned.
Kirkpatrick was originally found guilty of two counts of indecent assault and one count of gross indecency against a 14-year-old girl in 1984.
But this week a Victorian County Court judge set aside the conviction, saying the charges had not been proved beyond reasonable doubt.
In this case, there was no public outcry, no call for law reform. The system, the assumption appears to have been, had worked.
Kirkpatrick, who has steadfastly maintained her innocence, was thrilled. The accuser reportedly collapsed at the court.
Three cases. Three imperfect outcomes. Someone unsatisfied in every instance.
It is an old cliche to say “I’d rather 100 guilty men walk free than one innocent man go to jail”, but I do believe that, and it is worth remembering when thinking about imperfect justice.
Public opinion is no substitute for due process.
There is often an argument made that the sentencing choices of judges do not reflect public opinion, but the research simply doesn’t support that claim.
Studies have shown that juries agree with the sentences handed down by judges, and that given the same information as a judge, members of the public would choose similar penalties.
Our outrage diminishes as our knowledge increases.
It is important to ensure the law is always moving towards a level playing field one where gender, wealth, race, religion and sexuality are irrelevant. The Baden-Clay case reminds us we are not there yet.
But we should be glad for where we are. It is far better than the alternative.