Judges, juries and prejudicial publicity: Lessons from empirical legal scholarship – by Rebecca McEwen; John Eldridge
In April 2014, former ‘Hey Dad!’ star Robert Hughes stood trial in the NSW District Court charged with the commission of serious sexual offences. After the jury delivered a guilty verdict, Greg Walsh, Hughes’ lawyer, remarked that ‘having regard to the enormous extent and prejudicial nature of the publicity it was virtually impossible to get a fair trial’. Judge Zhara, who presided over the trial, refused an application by Hughes to have the jury discharged on the basis of this publicity.
Eye Movement Desensitisation and Reprocessing and Memory: A Dilemma for the Criminal Justice System – Greg Walsh OAM
The function of memory in the judicial system is a vital one and in recent years experts have sought to turn the science of memory “on its head”, causing it to become as malleable a concept as these experts seek to make it. This article draws specific attention to the role of Eye Movement Desensitisation and Reprocessing therapy (EMDR) in the justice system, its impact on the operation of memory and the potential problems this creates for the legal system. In doing so, reference will be made to the procedural manual of EMDR therapy, as well as scientific literature and legal commentary on the process and its effect on patients. In drawing this material together, it will be concluded that the occurrence of false memories in treatment settings has been wholly underestimated. This, it is argued, must be urgently addressed in order to prevent miscarriages of justice.
Greg Walsh OAM[1]
Presented as part of a Community Conference
Toongabbie Legal Centre
28 November 2020
As one of our greatest Jurists, Michael Kirby said “the protection of our liberties does not ultimately depend on Parliaments or even the Courts, it depends on the love of the people for liberty.”
INTRODUCTION
Police play a very important role in our community especially in the context of protecting citizens from harm. They are afforded extensive powers to fulfil such objects. This paper seeks to address the importance of citizens rights in the context of Police Powers.
Greg Walsh OAM[1]
Presented as part of the Criminal Law CLE Conference
Toongabbie Legal Centre
28 September 2019
One of our greatest Jurists, Michael Kirby said “the protection of our liberties does not ultimately depend on Parliaments or even the Courts, it depends on the love of the people for liberty.”
INTRODUCTION
“It is a basic obligation of a police officer to be fully aware of limitations on his power to arrest, since the citizens’ right to personal liberty under the law is “the most elementary and important of all common law rights””.[2]
Greg Walsh OAM[1]
23 January 2017
This is a strange time, Mister. No man may longer doubt the powers of the dark are gathered in monstrous attack upon this village. There is too much evidence now to deny it. You will agree, sir?
Reverend Hale in Arthur Miller’s The Crucible
Introduction
Allegations of sexual assault polarise people like no other issue. This applies equally to members of the Judiciary and the Legal Profession.
There are those who readily assume that any person against whom an allegation of sexual assault is made must be guilty. There are others who understand the fundamental importance of the presumption of innocence.
The 1980’s and 90’s heralded an enormous interest and focus in respect of issues of sexual assault. This lead to a number of legislative changes in each of the States of Australia. The essential basis for the plethora of reports and legislative changes have been that the criminal law, does not protect persons from sexual assault and that there is an overriding need to obtain greater protection for victims and to have higher conviction rates.
There is no doubting that in terms of pure politics this approach is one of enormous attraction to Governments. The perception is that there is overriding public support for being seen to be active in protecting alleged victims of sexual assault. Further, it is always good politics to be seen to be being hard in respect of criminals.
These trends have seen a major shift away from a “due-process” model to a “crime control” Criminal Justice System. The latter places particular emphasis upon an almost “therapeutic” approach in cases of this nature.
This paper, though dealing with the issue of repressed memory, nevertheless seeks to alert those who work within the Criminal Justice System of the significant danger that a Child Sexual Abuse Industry is very much in operation within Australia and that there needs to be a critical appraisal of whether the momentum has swung too far. The paper will seek to address such issues that may arise involving the trial of persons charged with Sexual Assault. This material will hopefully be of assistance in gaining a greater understanding of human memory and the way in which these types of cases can arise and are investigated.
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