NSW Director of Public Prosecutions

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The NSW DPP Logo – note that the scales are evenly balanced.

The DPP, as it’s commonly known, is the leading prosecuting authority in the state of New South Wales. It has in its care the prosecutions of serious criminal conduct in the state. Most offences are prosecuted in the Local Courts, usually by Prosecutors employed by the NSW Police and who answer to the Commissioner of Police.

DPP Lawyers, on the other hand, answer to the independent Director who is free from political interference or interest. Successive DPPs have upheld that tradition – with Reg Blanche and Nicholas Cowdery leading a fiercely independent office that guarded its adherence to principle over convenient answers to the popular press.

Something of a new style has been experienced in recent years with an approach as different to the past conventions as it is seemingly hostile toward defendants. Superficially, having the lead prosecutor of a state having intensive focus and vigorous pursuit of its prosecutions are good things. But they are not enough. All power must be tempered by discretion, as much in the legal system as it is anywhere else (including in politics, law enforcement, education and health). Wherever people have a position of power, leading the way with staunch authority untempered by restraint and individualised approaches runs the risk of appearing or being authoritarian.

History is stained by examples of authoritarian prosecution. It’s surely enough to refer to that history to have people see the need for a careful approach to the work of prosecution.

It’s not only I that would say as much. The law has often had to comment on the fact that it has never been the case that all cases proceed no matter what. Sometimes cases cannot proceed because the evidence is not there, is not available or because to proceed would bring the law into disrepute.

The reason we have principles like those is that it is necessary for some clarity to be given to the public as to what it is that motivates the decisions of a prosecutor who is otherwise cloaked in professional privilege and largely inaccessible to an ordinary citizen. The ordinary man or woman on the street is no slight issue because if the criminal justice system is to work, it has to be able to work for any person who choses to represent themselves.

When talking with young lawyers recently, I was asked, “why on earth would anyone ever decide to represent themselves?” The answer is obvious – because they have no money, no means to pay for representation by another, they can’t qualify to get Legal Aid or perhaps because they don’t have the strength to involve themselves in a process that is both terrifying and (mercifully) entirely foreign to most citizens.

But the question asked, by a practising lawyer, is more revealing and significant. It shows that even among lawyers, there is a misconception as to citizen’s rights in this state. In Australia, you don’t have a right to a lawyer. You can get one if you want, but there is no promise or right to have one provided for you. The United States we are not.

So for the system to work, it has to operate in the most efficient and prejudice-free manner for people who have no access to a lawyer. How do such people avail themselves of the process of negotiation with the DPP? How do they seek that the Director use his discretion to terminate a prosecution that has no evidence or insufficient evidence or where there is something else wrong that means it can’t proceed? How indeed.

The PR suggests that the DPP operates at a level of transparency. It doesn’t reveal its decision making process (or at least, rarely does so) but it has publicly-stated principles that everyone can know that the DPP will take into account when deciding how it proceeds to do the work of the leading prosecutor for the state of NSW.

Except saying that something is so, doesn’t mean that it is. A principle is a statement, it is not necessarily an answer that explains the prosecution of an individual. At times, the manner of prosecution can seem completely bereft of adherence to stated policy, in which case it falls to the individual defendant to attempt to wrangle with the significant independence of the DPP.

I say “significant” independence because it is more than just a government department that doesn’t have to answer (notionally) to Government or other external influences. It is an organisation in which people who have been granted senior status within the legal system of NSW have the power to make decisions that are largely un-reviewable.

Of course, every prosecution that goes to court ends up being heard by a judge or a jury where it can be judged as we would all expect and hope. But that doesn’t resolve the need for transparency as to what it is that motivates the Director and his/her deputies. It doesn’t attend to the requirement that, for the system to maintain a powerful and independent prosecutor, it must be seen to be objective and rigorous – not interested in the outcomes it achieves (save for the preservation of justice).

The High Court of Australia has had occasion to remind practitioners that it isn’t for a prosecutor to tell the court what a sentence should be. Yet that continues to happen, daily, in the courts of NSW. Magistrates frequently ask both Police and DPP prosecutors what they think of a defendant’s plea submissions and listen intently to submissions that suggest another outcome is not appropriate and that another is preferred. It is hard for the average citizen sitting and listening to such submissions and the judgement that flows, not to conclude that the urging of the prosecutor has had some role in the decision handed down. That is to be avoided.

We are moving into a time when the role of the prosecutor will become ever more significant and central to the operation of the criminal justice system. Our prosecutors are not elected and they are not necessarily representative of the community. Yet they are entrusted with the power to prosecute any member of the community and can seemingly do so without too much in the nature of having to answer to that community.

If only there was a way to ensure that prosecutors did their job right. Costs used to be an available remedy for a prosecution that was egregious. But the reality is that costs are either not available at all in trials or they are not able to be obtained by a court system that seems reluctant to impose costs orders against the prosecution or with a parliament that has made the test for getting costs so high as to be impractical. Costs orders used to serve as a disincentive for proceeding at all costs. They could still so operate, but for the most part, prosecutions continue in this state, over the course of months or years, with little apparent regard for the financial realities involved.

Moreover, recent events have harmed our system of justice. The Lindt Cafe siege victimised in the most traumatic way a group of our fellow citizens. Its effects will continue to resonate through our community history for years to come. One way in which it will continue to have an impact is by the spectre it presents in every judicial and prosecutorial decision being made today, tomorrow and for years to come. No one wants to be the magistrate who gave someone bail who then went on to murder citizens. No one wants to be responsible for terminating a prosecution of someone who turns out to be bad. No-one wants to confront the possibility that decisions we make today may haunt us in the future.

But if we are to live freely and within a system that allows for investigation and prosecution of individuals by the enormously resourced state, we must be sure to make our decisions in the here-and-now the most rigorous and honest we can. Our bona fides today are in fact our best guard against a dark future. But in the present, there seems to be a real risk that we make bad decisions today so as to try to fortify against badness in the future.

The justice system requires justice now, not deferred in the hope that it will be achieved in the long run. Decisions, both prosecutorial, judicial and discretionary must be fearlessly made, focussed over the integrity of the decision in the present moment. It is the present situation that we can hope to know most about and thereby be most informed in our decision making. The future will be what it may. The past is unchanging. The present is all we have – so lets hope the legacy of the Director of Public Prosecutions will be not a tower of babbling inaction but one of fearless, merciful and adroit promotion of the interests of justice for all.

Aaron Kernaghan

Aaron Kernaghan is the Principal Lawyer at Kernaghan & Associates Lawyers and has worked as a criminal defence lawyer, a prosecutor at the NSW DPP, and in various government policy roles. He is a special counsel at Kernaghan & Associates, working as a trial lawyer and as counsel at Royal Commission, Special Inquiries and coronial hearings. He is a co-founding member of the Royal Commissions and Inquiries Law Group.

Science Proves Everything: Negativity and the Need for an Adjustment in your Life

12009802_10154270478662222_1898233758239847607_nSo  having negativity in your life will only breed further negativity for you.

So much is the conclusion of a sixteen thousand year study conducted by the Human Race and the Institute of Divine Interventions. In the study, human participants (it isn’t clear if they were voluntary) were housed in a garden in which every thing they required was made available. The environment, named Eden, ensured maximum positivity and happiness.

As the experiment continued, the controllers introduced regulatory regimes in which random objects that ordinarily would have been available to the human participants, became the subject of close scrutiny or prohibitions on use. In one experiment, an apple was designated as being unavailable for use or there would be serious repercussion.

The presence of that apple, began a process of gradually disenchantment and discontent that resulted in its use, in violation of the experiment rules. The result – the human participant was expelled from the experiment with her family unit, who proceeded to kill one another. Coronial inquiries are still going on at a theological level in relation to that but charges are not expected to be laid.

Does creating a negative experience in a positive life impact that life in such a way as to begin a process of gradually overwhelming the life? Possibly. The experiment continues…

In other news, the word shower has come to be used to describe all manner of weather condition, even though the correct terminology is “rain shower”. Alas.

Honestly, ask a lawyer first, then make sure they listen to you.

askasolicitor-campaign-2012-download-250x250  The amount of times in any one day that help is needed to fix advice that was flawed or faulty is incredible. People seek out help with good intentions and a lot of very high hopes, but often that is dashed by quick talking and a lot of dismissive commentary.

A lawyer listens. That’s their primary job. We listen to what you say, what you want and where you are up to. Then we take action. You don’t have to understand the action, a lot of lawyers will explain it to you in great detail. The important thing is to make sure your lawyer understands you and not the other way around.

solicitors-pageA lawyer who understands their client will be the lawyer who can achieve a result. It’s no good talking about how this and that will be done. Sure, a surgeon can tell you how he will use his scalpel but is it as important as being clear that a procedure will be done to achieve a healthy outcome? Lawyers who want to tell you about the process may not necessarily be the ones for your needs. The process is what a lawyer specialises in, it’s the unique skill-set. But the outcome is the focus of any client and it’s that which must be the centre of the lawyer-client relationship.

solicitor_1492452cIn Australia today, there as many young lawyers getting a start in the profession as there are experienced practitioners. The question is who has the answers? Experience counts, so does vision, but most importantly, seek out the lawyer who listens. That’s the art under which lies a great deal of science. See how often your lawyer actually listens to you. Is their firm capable of being a listening firm? Or are they a speaking firm? One that tells you what is happening, how you’ll be managed and what to do?

It’s up to you which one is best…

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Our principal lawyer, Aaron Kernaghan on his feet at the Royal Commission into Institutional Responses to Child Sex Abuse at the Rockhampton hearings, earlier this year. Here seen in cross examination of the Special Counsel for the Queensland Director of Prosecutions.

TROUBLEMAKERS UNITE

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Being a troublemaker is not something we necessarily associate with highly sensitive people, those gentle souls who are loath to hurt others.

The label, troublemaker, is not something that we usually generate for ourselves either. It is usually conferred by others when they encounter something uncomfortable in themselves courtesy of another person.

Highly Sensitive And A Troublemaker?

Highly sensitive people are usually very conscientious, cautious, perceptive and empathetic.

Highly sensitive people often see what others cannot because they operate from an atypical perceptual reality. When people think differently, many assume that is is an ideological difference that is being expressed. In the case of HSPs, however, what is being expressed is a biological difference.

Highly sensitive people have nervous systems that absorb all the stimulus and energy around them. Their nervous systems are like sponges, which makes them uncomfortable and other people as well. Highly sensitive people notice when someone is uncomfortable, sad or angry no matter how much someone attempts to hide their feelings. They notice when something is not working very well, differences in perception and reality, mistakes of judgment and an other energetic event.

Highly sensitive people necessarily have values that support their sensitive natures including kindness and fairness. They are able to see the pitfalls in a competitive social structure and are unlikely to support the destructive aspects of it.

People who do not understand the highly sensitive nature may feel uncomfortable around HSPs and even think of them as troublemakers.

Characteristics Of Troublemakers

Why would anyone be labeled a troublemaker? Aren’t we all in this together?

The label suggests that there is something to protect against. It suggests that the group is dependent on the existence of certain behaviors, beliefs and ideas to sustain it. It also suggests that we each of us have the job of protecting the group, that protecting the group is one price of membership.

Troublemaker is a social label. Who gets the label?

  • people who belong to another social group
  • people who look different
  • people with different customs and social habits

Those are just superficial reasons for labeling someone a troublemaker or potential problem.

There are deeper ones:

  • people who think differently
  • people with different values
  • someone kind and empathetic in a culture that is not
  • someone who notices disconnects
  • someone who notices that which is overlooked, devalued and deferred
  • someone who notices imbalances and inequities
  • someone who notices a need for change

When Awareness Is A Liability

When we are young we take in everything around us. We may not understand it, but we take it in nonetheless. In particular we take in what is supported and what is not. We usually then adopt the supported behaviors and reject unsupported ones. This is how we survive. In fact we have to. When people wonder why prejudice survives this is why: each generation learns the accepted attitudes of their social group and rejects the unaccepted ones including the prejudices towards different kinds of people.

For highly sensitive people, the situation is not so easy. Our perceptual system is different so we cannot help but think and feel differently. We will also notice that our perceptions are often not supported and that will leave us with a quandary about what to do and think. It may increase self-doubt, cause depression and leave us feeling lonely. We will feel our conflict with our social group and not know what to do:

  • Do we speak our truth?
  • Do we say nothing when we know something is wrong?
  • How can we live in our authenticity when we are so at odds with others around us?

When we go along with the group we may compromise our integrity. When we live our truth we may be labeled a troublemaker.

It requires a lot of learning to know when to speak and when not to, how to support healthy change without being alienating, and how to b respectful and also disagree.

These are important challenges for highly sensitive people whose wisdom the world needs and needs to be able to accept. We may be labeled troublemakers sometimes but we are far from it.

Source: http://www.hsphealth.com/embrace-inner-troublemaker/

Autistic Boy Kept in Cage in CANBERRA

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Think Australia doesn’t have some serious problems? Wonder where made concepts of the nanny state leads? It leads to people thinking that it’s a good idea to put an autistic child in a cage so as to sort out his behavioural problems.

The article on new.com.au today reveals that a ten year old autistic boy was put in a cage in his classroom.The school principal has been suspended pending an investigation which is now underway.

The investigation will look at how the Canberra school allowed the structure, a 2m by 2m cage made from pool fencing, to be used as a “withdrawal space” for the child. The metal cage was erected inside the boy’s classroom on March 10 and removed when ordered to do so by the ACT Education Department, after the boy’s parents made a complaint about it to the Human Rights Commission.

Is this Australia? Yes. Should it be condemned? Utterly. Will the people responsible be subject to criminal justice? Highly unlikely. Why? Because we excuse those who act with the power of the nanny state – “they’re trying to do their best in tough circumstances” is the frequent explanation. Every interaction begins with a grasp of the rights of each individual. Everything starts there and should be guided from that concept. What next? Shall we segregate all indigenous students? Perhaps students in wheelchairs should be made to sit in designated “disabled” spaces. Perhaps children with red hair can sit in the back of the class room while students whose parents are same-sex might be put in a different room altogether (for their safety of course).

Whoever is actually responsible (assuming someone is) for this shameful assault upon the dignity of a child should be sacked and banned from teaching children ever. They should be placed on a child abuse register. They should be bought to justice. ‘Will they?’ is the question that goes begging here. Let’s see for how long.

More information here: http://www.news.com.au/lifestyle/parenting/canberra-principal-suspended-after-cage-built-for-autistic-student/story-fngqim8m-1227289978454

Aaron Kernaghan

Solicitor

#autism #autismawareness #AutismDay2015 #Canberra #Boy #Cage #Australia #Education #HumanRights #abuse

A Helping Hand for an Amazing Young Woman

Cassidy Richardson receiving an IPad from Aaron Kernaghan, Principal Solicitor at Kernaghan & Associates.
Cassidy Richardson receiving an IPad from Aaron Kernaghan, Principal Solicitor at Kernaghan & Associates.

Kernaghan and Associates and its staff through our patronage, support and participation of musical theatre and the arts have come to know many individuals in the community over many years. Sometimes it’s great to be able to highly one very strong, and inspiring individual and today we send a shout out to Cassidy Richardson.

Cassidy is a year 12 student this year and is currently in a bit of a battle to get the sort of help and equipment she needs to finish her schooling and make good on her potential. See, Cassidy has some special requirements because she has Tourettes. She is an amazing spokesperson and has played an important role making people aware of the special challenges that go with having such a special condition. Here is a TV interview that she did a few years back: https://www.youtube.com/watch?v=fjo_TVOFHSc

We met Cassidy through our support and involvement with local community work. She has been doing a tremendous amount of work in musical theatre and performance – she is a terrific and accomplished dancer and actor. Hailing from a family of incredibly talented people (they’re all performing artists!), Cassidy has support for both her condition and her unique and special way of trying to deal with it. She has been in many shows and performances in the Illawarra for years now and is an inspiration. Cassidy suffers from severe Tourettes and has times of great troubles, especially with schooling and the writing component. The hardest part has been getting people to understand the great challenges of simple tasks.

Some local friends pulled together a Facebook group to raise funds to buy an IPad for Cassidy and a whole heap of amazing things that will help her to express herself, get the writing done and achieve amazing things. When Kernaghan and Associates found out about this, we thought we would get on board and so Aaron Kernaghan, the Principal of the firm bought her an iPad Air 2.

In addition to this, a Facebook fundraiser was put together by Louise Hamilton and Hannah Garbo, putting it all together under the ever-watchful eye of Cassidy’s big brother and super-hero guardian, Tyler Richardson. Many people showed their support and have put in to help Cassidy.

All of us here at Kernaghan and Associates want to shout out our support for Cassidy and wish her the best. And we’d also like to shout out to everyone who joined in helping her out. It’s great to be a part of a community that achieves something so quickly (it all came together in literally, less than half a day). With the money that was raised, many accessories and assistive devices were purchased for use with Cassidy’s iPad.

Best wishes to a great member of our little community and all the best for your HSC! Cassidy, you are a true inspiration to young people everywhere.

http://www.kernaghanandassociates.com.au

Aaron Kernaghan Comments: Bad Santa?

Aaron Kernaghan- Principal Lawyer
Kernaghan & Associates Lawyers
Every December I’m asked questions along the lines of, “what sort of crimes come up over the holiday period?” Surprisingly the answer seems less to do with the season and more to do with the weather. 

Ask any lawyer, they tend to give the same observations about Christmas. There is often an increase in domestic abuse, alcohol fuelled public disorder, burglary and sexual assault. But there were also more incidents of harassment and stalking, due to people trying to rekindle old relationships. Advertising tells us there is a lot of drink driving and drink-fuelled assaults. But not far underneath the surface is a lot of theft.
There is always the tales of Christmas trees being well-lit beacons for easy pickings for thieves and burglars (something that has been increasingly met by security cameras, devices and increase Police presence in the streets). 
But the true tale of the season lies in the message that whenever a lot of humans come together for a large amount of celebration and feasting, there is going to be an increase in some of the dramas that have the time to unfold when people aren’t hemmed in by work and other commitments on their time. Dramas lead to confusion and people can end up misinterpreting the best of intentions.

Whatever the fun and games of Christmas, one thing is true – hot weather equals increased thirst. In many parts of the world, that means increased alcohol consumption. As countless studies tell us, that’s a recipe for increased crime, particularly among family. 
But the real story this Christmas will lie in the efforts of NSW Police as they patrol the roads and highways, making it a little easier for Santa’s sleigh to navigate the holiday traffic. 
When I first started practicing law, a very wise senior lawyer gave me a tip about Christmas, Santa obeys all the road rules but even he carries his lawyers business card with him. “Why is that?” I asked and the response was sage advice –
“Because at this time of the year, no matter how hard you might try to do the right thing by everyone, other people can still get the wrong end of the stick. In which case a law-abiding Santa becomes a bearded suspected Motorcycle Gang member wearing loud club colour, cruelly tethering a bunch of Arctic-habitat, non-domesticated animals to an unregistered and uninsured, highly-modified vehicle while attempting to burgle houses by entering them through unsecured chimneys in a brazen act of wilful home-invasion.”
Even Santa has his lawyer on stand-by.

Too Pretty for Work? YOU’RE FIRED!

Are you a beautiful man or woman at work? Do your work colleagues stare at you with wonder in their eyes at your astounding beauty? Are you, quite simply, “hot”? Then perhaps you need to be fired…

CNN) — Melissa Nelson lost her bid Friday to have Iowa’s top court reverse its ruling that held the former dental assistant did not suffer gender bias when she was fired for being “irresistible.”

The Iowa Supreme Court stood by its December finding that Dr. James Knight was legally able to fire the assistant after his wife became concerned about the relationship between the two.

Knight’s conduct was not sex discrimination in violation of the Iowa Civil Rights Act, the court said.

The all-male court had previously ruled against Nelson, finding that employees who are seen as an “irresistible attraction” by their employers can be fired in such circumstances.

Full story here.