Open justice ends when the criminal justice system bungles

"It is not merely of some importance, but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

The statement by Lord Hewart, back in 1924, is one that is still quoted with approval, when the principle of open justice is discussed.

Now consider a slightly different statement, also in support of the open justice principle: "If the criminal justice system messes things up, it should also be manifestly seen to have messed things up."

I'm not sure what Lord Hewart would have thought of the latter proposition, but if he was anything like present-day Victorian justice system bureaucrats, I suspect he would not have agreed. But read the following story, and make up your own mind whether or not you agree.

A concerning case of culpable driving

As an internet user, with a non-professional interest in the law, I frequently visit the web site for the Victorian Supreme Court's Court of Criminal Appeal (VSCA). One judgment that I found was particularly concerning. That case, and my attempts to follow it up, are the focus of this essay. I shall not identify participants by name, as their names are not relevant to my purpose.

In 2005, a driver was found guilty by a Victorian County Court jury of (i) culpable driving causing death, and of (ii) negligently causing serious injury, and was sentenced to imprisonment for five years, with a minimum term of two years and three months.

On appeal, almost a year later, the VSCA ruled that the driver had no case to answer.

It found that "... a jury ... could not be satisfied, beyond reasonable doubt, that there was such a great falling short of the standard which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving ... merited criminal punishment". In plain language, the matter should never even have gone to a jury for deliberation and verdict. The VSCA accordingly ordered an acquittal.

The VSCA described the circumstances of the collision that caused the death and serious injury as follows.

"(The driver's) motor car was neither exceeding the limit, nor being driven at a speed that was inappropriate in the circumstances. (The driver) was not affected by drink, drugs or tiredness. (The driver) was not driving aggressively or erratically. (The driver) made an error of judgement in a situation of sudden crisis."

These are the Supreme Court justices' words, not mine! An obvious question, beyond the scope of this essay, is why the Office of Public Prosecutions (OPP) charged the driver with culpable driving in the first place. Maybe they simply thought it had a chance of getting up (and they were right, of course).

My reaction

"There but for fortune go you and I ..." Phil Ochs, 1966.