Police Shooting of a Mentally Ill Man

A second ambulance officer has cast doubts on police accounts of the fatal shooting of a mentally ill Sydney man.
The Police Integrity Commission (PIC) is examining the shooting of Adam Salter in the kitchen of his family’s Lakemba home in November 2009. Two internal police investigations accepted that Mr Salter had been ready to knife an officer when he was shot by Sergeant Shiree Bissett.
But paramedic Karl Johnstone told a hearing this morning that he saw no verbal or physical threat from Mr Salter to anyone but himself. Mr Johnstone was one of four ambulance officers there that day to be questioned at the hearing; the three who saw Mr Salter shot in the back contradicting police evidence that an officer had hold of him at the time.
Full story here.

Mahmoud Mariam Laughs as he is Sent to Gaol

The man convicted of killing Canberra truck driver Bob Knight has laughed after being sentenced to at least five years and nine months in jail. Mr Knight was shot dead while he was in his truck waiting at traffic lights at Milperra in Sydney’s south-west in 2009. He was hit by a stray bullet from a gunfight between rival family groups in a restaurant carpark.
Mahmoud Mariam was found guilty of Mr Knight’s manslaughter after firing off several shots from his pistol during the fight. In the NSW Supreme Court today, Mariam was sentenced to a minimum of five years and nine months jail but will be eligible for release in April 2016. In sentencing, the judge said the 28-year-old wore his contempt for the law like a badge of honour.
Full story here.

Morning Coffee

It doesn’t have to be morning, in fact it’s often lunch, afternoon, evening or midnight, but coffee meetings are a way to reset the thinking mode you might find yourself locked into at a desk. A change of function, a conversion into deeper thought caused by a momentary step back from the action of the day, allows a new perspective to gently enter into what you’re doing.

I just got back from coffee with a barrister. In that short fifteen minutes we canvassed issues concerning three upcoming trials and discussed two of the recent legal developments affecting criminal law litigation.

I am in meetings like that pretty much every day. The best part about it, it reminds me just how valuable face-to-face communication is – it’s faster because it’s more efficient, it assists to ensure a relationship built on confidence and clarity and it avoids endless phone or email tag.

Aaron Kernaghan 

Fundamental Right ABOLISHED by the NSW Government

You’re right to silence is gone. This from the Sydney Morning Herald:

“The right to silence will be watered down under changes announced today by the O’Farrell government as part of its response to bikie gang violence. People will be warned that they may risk harming their defence in court if they refuse to give police information about a crime under proposed new laws. It’s been too easy to say: ‘I have nothing to say’. Jurors are smart enough to know if there is something suspicious about evidence which suddenly appears at a trial and is designed to get the accused off.
The caution police now give is: “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”
This will be changed to:
“You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?”
No doubt the infirm, the mentally unwell, children and persons who are in a state of shock or otherwise disadvantaged will be able to fully understand a caution such as this. And in NSW where you have no right to have a lawyer appointed to represent you (you better hope you can afford one), you’re effectively on your own.

This is a disgraceful and shameful attack on the rights of private citizens. Now you MUST talk to Police otherwise a jury might think you made something up when you try to explain yourself to them. While this may be couched in the language of euphoric common sense espoused by the usually sensible Attorney General be under no mistake – this will force the hand of everyone – speak now or forever hold your piece.

This puts the Police in the role of the jury and its a disgrace. Explain yourself to us or we will charge you. Of course, many of us practising in criminal defence can readily recall stories where Police have offered precisely that approach to a “witness” who ends up being charged and having those very same words used against them. An opportunity to explain your side of the story is rarely that – its usually the first version you will try to give to explain yourself against charges.

This is a dreadful change in the law, bringing it into the same area of law as England where this has been the case for some time.

Silence is golden, for a simple reason – commenting on questions put by Police in circumstances where they do not tell you all the relevant details, is like yelling into the dark- could be harmless, could be dangerous. Saying something innocently may be interpreted very differently by those with all the facts (the Police). 
The day this is formalized as law will be a dreadful day for the law. Dreadful day for anyone who comes into contact with Police.

This is more power for the Police – At least every other time the Police have been given a new thing to play with, they have been entirely reliable and sensible with it – take tazers as an example.

More here.

Comments?

Aaron Kernaghan.

Prisoner Abuse

A US Army private charged in a massive leak of government secrets claims his harsh pretrial treatment during nine months in a military prison was directed from high up the chain of command and warrants dismissal of the entire case, according to documents his civilian lawyer has released.

The 110-page motion alleges Private Bradley Manning developed a rash from being forced to sleep beneath a stiff, suicide-prevention blanket and suffered an anxiety attack due to harassment by guards.

It repeats well-publicised claims that Manning was forced for several days to surrender all his clothing at night and stand naked in his cell for roll call. For several days in January 2011, he was forbidden to wear his eyeglasses and forced to strip down to his underwear during the day, the motion contends.

More here.

Hacked

The perils of modern dependence on internet-linked gadgets and digitally-stored memories is a hot topic in the wake of a hack who wiped clean a Wired reporter’s devices.  

Mat Honan has laid out at wired.com in gripping detail how his “digital life was destroyed” right down to irreplaceable photos of his baby daughter. Honan next week is to share his quest to repair the damage.

“The take-away from his bad experience is that people need to be careful with using an online service, especially a backup service,” Lookout Mobile Security engineer Tim Strazzere told AFP on Friday. “The main part is to mitigate risk; he lost a lot of personal information.”

Basic hacker skills were combined with “social engineering,” the art of sweet-talking someone like a customer service rep into bending rules during a phone call, to compromise Honan’s Google, Twitter, and AppleID accounts. Honan told of his @mat Twitter handle apparently being the coveted prize for hackers who deleted his Gmail account and erased the data from his iPhone, iPad and MacBook laptop computer to hide their trail.

The data-wiping feature was created by Apple to let people protect digital information if devices are lost or stolen. He said his Twitter account was used to fire off offensive messages. “In many ways, this was all my fault,” Honan wrote. “My accounts were daisy-chained together.

“But what happened to me exposes vital security flaws in several customer service systems, most notably Apple’s and Amazon’s.” Hackers were able to get bits of information from Apple and Amazon tech support that helped them achieve their mission, according to Honan.

Apple did not respond to an AFP request for comment, but reportedly gave Honan a statement saying his data was “compromised by a person who had acquired personal information about the customer. “In addition, we found that our own internal policies were not followed completely.

More here.

Crime on the Street

From news.com.au:

A WOMAN has been repeatedly stabbed in the face with a pair of scissors by a man in southwestern NSW. The 30-year-old woman is in hospital after an argument with a 35-year-old man at a home in the Riverina in the early hours of Saturday morning.  

Police said a “vicious attack” followed, with the man allegedly dragging the woman through the house by her hair and biting her. She was then stabbed repeatedly in the face with scissors, police said. The attack continued after the woman fled the home, with the man chasing her and allegedly smashing her head on a footpath. Several people came to the woman’s aid and she was taken to Batlow Hospital. She is expected to require surgery for her injuries. The man was arrested and would be charged over the attack on Saturday, police said.

What Penalties Can a Court Impose?

The range of sentencing options available to a court is wide and principally governed by the Crimes (Sentence Procedure) Act.

Recording No Conviction At All
Section 10 of the Act allows a Court to record no criminal record. The court can still require that you be subject to a good behavior bond for a period of time and any breach of such a bond can result in further action. The main benefit of a section 10 approach to sentencing is that it allows, in rare cases, for a person to be dealt with by the court without getting a criminal conviction entered on their record. However, simply because you receive no conviction does not mean that the result is not formally recorded by the Court and by Police and even a section 10 result can still come up on records checks of certain kind. We have experience dealing with cases where people have received a section 10 outcome only to have that matter come up in a working-with-children check for employment and occasionally for visa applications and international travel.  

Fines
Fines are often imposed (especially for traffic related offenses) however they are often combined with a good behavior bond for a period of time or a disqualification period (if the matter involves licenses, driving or similar offenses).  

Good Behavior Bonds
Good behavior bonds can be imposed to require that you complete a period of time in which you must commit further offenses or fail to comply with any direction that the court sets as a condition for the bond. Upon the satisfactory completion of the bond period, the matter is finalized.  

Community Service Orders
Community service orders can be imposed by a court. Such orders require that you complete a certain number of hours of work in the community (often for charities or good works in maintaining the community). In addition, a portion of the hours ordered can be ordered to be spent in attending special courses that are conducted (such as a Sober Driver Course) for certain types of offenses. The availability of work in the area you live in (or can get to) together with your own ability to meet any time or physical capacity requirements play a significant role in the court’s consideration of whether or not you are suitable for such an order. Not all persons who come before the court are considered suitable and so not always will a CSO be available.  

Suspended Sentence
Suspended sentences can be imposed pursuant to section 12 of the act. Where this is done, the court sentences you to a period of imprisonment but suspends that sentence from being executed on the condition that you successfully complete a bond to be of good behavior. If you fail to abide by the bond (a breach) the court has very limited options and ordinarily the suspended gaol sentence will be imposed.  

Intensive Correction Orders
Intensive correction orders (also known as an “I.C.O.” or “Icko”) can be a way for the court to require you to complete a number of conditions for a period of time. The ICO has a number of flexible conditions but will frequently involve an order that you live in a certain location, be subject to supervision and random checks, attend for medical treatment or counseling and otherwise engage in community service. This sentencing option replaced and greatly extended Period Detention which is no longer available in NSW.  

Home Detention
A court can order that you be confined to your house for a period of time (essentially, home arrest), save in certain circumstances. This order is frequently unavailable because of insufficient places in the program or geographical isolation reasons.

There are many more sentencing options available (such as in Commonwealth Offenses and under various other pieces of legislation). Each of these have their own sets of rules. Mostly, the above options are the main ones seen in NSW Courts.