Papers and Presentations

Police Powers and Citizen’s Rights

Greg Walsh OAM^[1]

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Presented as part of the Criminal Law CLE Conference

Toongabbie Legal Centre

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28 September 2019

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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.”

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INTRODUCTION

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1. As Justice Kearney of the Northern Territory Supreme Court observed:

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   “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].

2. As His Honour observed, a citizen’s right to personal liberty is at the cornerstone of all common law rights. Deane J in Donaldson v Broomby (1992) 60 FLR 124; 40 ALR 525; 50 Crim R 160 said:“Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny”.
3. This paper seeks to address the importance of citizens’ rights in the context of police powers.

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Repressed Memories: A Current Perspective

Greg Walsh OAM^[1]

23 January 2017

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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?

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Reverend Hale in Arthur Miller’s The Crucible

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Introduction

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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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