Q+A: Greg Boyed Interviews Greg King
 
Top defence lawyer defends judges following Christie Marceau case, saying they’re not being too lenient and need their discretion protected from politics.
 
“The list called in the district court is like the A & E ward in a hospital. You’ve got people coming in. You’ve got multiple decisions. Maybe 100 different cases in a year, all of which involve judicial decisions having to be made on the hop.”
 
“The danger with accountability is the judges will fall into line of being pressured, making populist decisions, instead of the right decisions”.
 
Christie’s Law proposals “ sophisticated,… thought-through… not as Draconian as perhaps a lot of people thought they may be”.
 
But a risk assessment tool to judge judges “sounds like costly gobbledegook”.
 
King backs changes to the bail law that currently means a strong presumption of bail for those under 20 and says it would have made a difference in Marceau case.
 
 
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Q+A
 
GREG BOYED INTERVIEWS GREG KING
 
GREG BOYED
                        Greg, thanks for joining us. Are judges too lenient?
 
GREG KING  - Defence Lawyer
No, I don’t think they are. I think we have a very sophisticated bail regime in place now. There’s always room for improvement, but we’re never going to change the basic fact that there a tension between somebody who is charged, who is presumed by law to be innocent, and may in fact be innocent, and protecting the public from a risk that they may present. So it’s always going to be difficult.
 
BOYED           In the case of Christie Marceau, though, it was very clearly defined. What happened before, the pleading by Christie Marceau to the court, to the judge to not let this man out was really, really clear. Had the law been different, would Christie Marceau still be alive?
 
KING               Yeah, I think especially as regards the age presumptions, as our law presently stands, a person who is aged under 20 years has a relatively strong presumption of being released on bail. So if that was changed, then obviously that would have a difference. As far as that case is concerned, though, let’s not lose sight of the fact that the judge is forced to make numerous decisions in a day under pressure. The list called in the district court is like the A & E ward in a hospital. You’ve got people coming in. You’ve got multiple decisions. Maybe 100 different cases in a year, all of which involve judicial decisions having to be made on the hop. And so having that information in front of the judge so the judge can make the most informed decision possible is obviously what it’s about. But a lot of that, I think, involves reducing the stresses, pressures and time constraints on the judge making those decisions.
 
BOYED           Staying with the A & E analogy, if a doctor were to make a mistake that resulted in a death, there would be accountability. They’d be held to account very much so. Should judges be held to the same level of accountability?
 
KING               Well, once again, it involves a tension, because on the one level, it’s central and constitutional that our judiciary is independent, is free of political pressure and free of populist, public pressure. So they have to make decisions that are the right decisions to make, not the popular decisions to make. And the danger with accountability is the judges will fall into line of being pressured, making populist decisions, instead of the right decisions. So, again, it’s a tension.
 
BOYED           Greg, let’s talk about the onus of proof. At the moment, the new bill will see people charged with murder or kidnapping have to prove they’re safe before being granted bail. Shouldn’t that be the way it is, rather than the way it is now?
 
KING               Well, I think the Bail Amendment Bill actually has some considerable refinements of the reverse onus provisions, where a person has to prove they should be granted bail, rather than the police have to prove that they shouldn’t be. So our present act already has that in some circumstances, and they’re quite well defined. The Bail Amendment Bill looks at extending that. The so-called Christie’s Law proposes extending it further. And, listen, what I would like to say, Greg, about the Christie’s Law proposals is they are sophisticated, they are thought-through, they are not as Draconian as perhaps a lot of people thought they may be, and so I congratulate the proponents of that for highlighting those issues. But what I do say is that a judge making a bail decision will take into account all of the circumstances that they can, that they have in front of them, and a lot of what is put forward in the proposals are factors that are already routinely taken into account by judges.
 
BOYED           But let’s go back to the specifics of this case, though. What happened with Christie Marceau - she was kidnapped, she was tied up, she was threatened with her life. And he was still allowed out on bail afterwards.
 
KING               Yeah, and, look, that’s- How can anybody argue against the huge personal injustice that occurred in that case? But we can’t let emotion rule logic. The judge was faced with making an assessment of future behaviour and placing that within our current statutory regime that creates such a strong presumption of bail for people aged under 20. So did the judge do the right thing? By law, he did. Has the judge lost sleep over that? Has the judge questioned everything? Of course he has. It’s just a terrible situation to be in.
 
BOYED           Greg, just finally, Christie’s Law, what hope do you have for it or parts of it becoming law?
 
KING               Look, as I say, I think parts of it are actually quite sensible and quite reasonable - reducing the age presumption. But other aspects of it are not so favourable - wanting to introduce a risk-assessment tool to be used. I mean, that sounds like costly gobbledegook. And, again, trying to face the same problem with future behaviour. We can’t do it very well.
 
BOYED           All right, Greg. Thank you for your time. Defence lawyer Greg King, thank you very much.

ENDS

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