This is an excerpt of an article on criminal justice by Hector Lung in the Northern Territory from The Northern Myth blog.
On Monday July 9 2018, in the Alice Springs Supreme Court, Bayden Flash pleaded not guilty to the murder of his wife. By early afternoon of Friday July 13, a jury of 12 had returned a verdict of guilty. A relatively straightforward murder trial by territory standards both in terms of the tragic facts and the outcome.
Flash, a 34 year old Indigenous man, beat his 33 year old wife to death with a brick in a house in Tennant Creek in January of 2017.
Flash was sentenced by the presiding judge this week to life imprisonment, the mandatory sentence under NT law, with a mandatory minimum non-parole period of 20 years. The three children of the relationship are effectively orphaned. The eldest of these children was the child subject to the heavily criticised remarks by Judge Borchers in the Tennant Creek Youth Court only a couple of months after his mother’s murder.
Mandatory life imprisonment? Minimum non-parole period of 20 years? The charge of murder is the most serious in the Criminal Code and the attendant punishments the most severe. If you are charged with murder you want that lawyer Tex Perkins sang about, you know, the good one, “the reeeaaaal good one”.
Flash was represented by the Central Australian Aboriginal Legal Aid Service (CAALAS) upon being charged in January 2017. CAALAS lawyers often acted for people charged with murder and swung into doing the work demanded of them by the adversarial system. The CAALAS template for defending a client charged with murder was to ensure the DPP made full disclosure of the evidence amassed against their client with a view to briefing a senior barrister (often a QC or SC) experienced in defending accused in murder trials.
The barrister would sometimes appear at the committal proceedings or at least guide the CAALAS lawyers how to best run the committal proceedings with a view to maximising the defence case to be run at the eventual jury trial. The barrister would then lead the defence team at the trial, giving the accused the best possible opportunity to obtain an acquittal or a reduction of the charge from murder to manslaughter. A conviction for manslaughter does not attract life imprisonment and there is no set minimum non-parole period (although the non-parole period cannot be less than 50% of the head sentence). Typically a person found guilty of manslaughter receives a head sentence in the range of eight to 12 years and non-parole periods in the range of five to nine years.
CAALAS did not get the opportunity to give Flash the defence he was entitled to. And I repeat entitled to. In a nation as affluent as ours, a nation committed to a properly functioning adversarial criminal justice system, Flash was entitled to an experienced murder trial advocate to defend him. The Crown always wheels out its most competent and experienced prosecutors in murder trials as it must, to ensure the interests of the community are best represented. To ensure the adversarial system works as well as it can, the accused must have counsel at least on par with that of the Crown. Mismatches of lawyers at trial is the stuff of Deep South murder trials in the USA. There, some accused, unable to afford sufficiently experienced lawyers in an environment of little or token legal aid, can be represented by law students or destitute lawyers willing to appear for all-in fees of a thousand bucks to defend an alleged killer heading to the electric chair.
Hector Lung is a legal commentator. Read the rest on The Northern Myth blog on the Crikey website.