Brumby calls for tough sentences

COURTS should give tougher sentences to offenders convicted of rape, premeditated assault or other serious personal violence, Premier John Brumby said yesterday.
He said that aggravated assaults were on the rise worldwide, and that he had always had a strong view on the need for tough sentences for rape.
“The courts should lean on the side of being more punitive and not less punitive and that means stronger sentences,” he said in a radio interview.
He said the Government would also look at controversial suggestions for criminal trials without juries, night courts and the gagging of barristers in trials. The proposals were made on Monday by the director of public prosecutions, Jeremy Rapke, QC, as possible solutions to long delays in the courts.
“We’ll have a look at all of the suggestions Jeremy Rapke has made because we want this system to work better, and we don’t want delays in the justice system,” Mr Brumby said.
Attorney-General Rob Hulls yesterday confirmed that he also wanted the proposals examined.
But criminal barrister Greg Barns attacked the ideas. “Who is Rapke kidding? Things have never been so good for prosecutors. The criminal law system is weighted in favour of prosecutors and police today because of the rightward shift of government policies.
“These include increased sentences for nearly all criminal offences; the use of mandatory jail terms for second offences such as drug and drink-related offences; the toughening of the parole system; and the introduction of dangerous offender laws, which allow individuals to be kept locked away after they have served their sentence.”
Criminal barrister Geoffrey Steward accused Mr Rapke of patronising judges and said his remarks were “populist and partisan”. He denied that verbosity by lawyers was a significant cause of delays and said that sometimes long cross-examinations were necessary.
Mr Steward said justice delays crushed alleged offenders as well as victims, with some pleading guilty, despite having viable defences, just to get their cases resolved.
Barrister Stephen Shirrefs, SC, said the main reason for delays was not what Mr Hulls called “the epic advocacy … of duelling barristers at dawn” but a lack of judges and courts. Mr Shirrefs said it currently took up to 15months for a case to move from committal to trial in the County Court.
The chairman of the Bar Council of Victoria, John Digby, QC, also denied that barristers talked too much and said a statutory limit on addresses would be too inflexible.
But he said the bar was willing to discuss some of Mr Rapke’s other proposals. “The bottom line is that the bar would stand ready to work through potential initiatives with the Attorney (General) and the courts.”
KEY POINTS
Government to examine top prosecutor’s proposals on night courts and jury trials.
Barristers point to shortage of courts, not their alleged verbosity, as real problem.

First published in The Age.

Gag lawyers, ditch juries: prosecutor

JUDGES should gag lawyers who go on for too long and courts should sit at night to help reduce “extraordinary” legal backlogs, the director of public prosecutions, Jeremy Rapke, QC, said yesterday.
He also suggested that some long, complex criminal trials might be better tried by judge alone than by juries.
The current criminal justice system “simply cannot cope with today’s demands”, he said, with the number of pleas and trials waiting to be heard at an all-time high.
Mr Rapke said the days of lawyers being permitted to run their cases with minimal intervention by judges must pass: “Unrestrained cross-examination must be stopped. Inordinately lengthy opening and closing addresses should be interrupted and halted. Interminable and pointless legal submissions should be curtailed …
“If we don’t solve this problem, we will see more sudoku-distracted juries, and more verdicts open to challenge because of the length and complexity of the cases.”
Mr Rapke was speaking last night at a gala dinner attended by legal and political figures at State Parliament House to celebrate the 25th anniversary of the Director of Public Prosecutions.
He said that in cases that were legally or factually complex, a system where it was open to both sides to agree to trial by judge alone would probably “be quicker and cheaper and less prone to error than if heard by a jury”.
He said the court system should also sit outside the standard six hours a day: “Outside of these hours, millions of dollars of courts are sitting idle.”
He suggested a day shift that would run between 9am and 3pm and an evening shift that would sit between 3.30 and 9.30pm: “Court usage would instantly double.”
Mr Rapke said reasons for the delays included more cases coming before the courts, the law becoming more complex and a record number of appeals.
Acquittals on appeal had risen from 5% of appeals five years ago to 29% so far this year: “Clearly something very serious is amiss with the manner in which criminal trials are being conducted.
“The number of retrials that run not only drains resources but also creates enormous burdens for victims and witnesses and accused persons – not to mention the courts. The cost and length of trials has increased almost exponentially in the last decade.”
Mr Rapke said the first DPP in 1983 had a budget of $5.5 million and a staff of 45 legal officers who handled 6000 matters. “Today, I have 300 staff, which includes 190 lawyers, a budget of over $50 million and, in the last financial year, the OPP handled 72,633 matters.”
He said he and his staff suffered “heartache” when confronted by victims of crime who had been worn down by delays.
“I have heard the cries and pleas of victims and their families to put an end to prosecutions to allow them to close that chapter in their lives and move on. They plead with me (knowing full well) that if I accede to their request, their tormenters will escape justice.”
Attorney-General Rob Hulls told the gathering that Government action to clarify the law and reduce delay included committals reform, a sentence indication scheme and an unprecedented $198.3 million in this year’s budget targeted directly at easing delay.

First published in The Age.

Bringing back the dead

ENCOUNTER WITH LUIS FONDEBRIDER
By identifying the victims of political violence, this Argentinian helps families ‘close the circles of anguish’.
HE WAS a young kid who played soccer and went to university to study anthropology – societies and their customs – because he thought it would be intellect-ually engaging. He was interested in the way people lived, not the way they died.
Then, one day in 1984, a friend in Buenos Aires came to him with a strange request: “There is a gringo asking for someone to exhume graves.”
Luis Fondebrider smiles and gives a Latin shrug as he recalls the moment, a mute comment on the craziness that is only to be expected of gringos.
But it turned out not to be so crazy. The request came from an American forensic anthropologist who had come to Argentina to help track down the remains of some of the 30,000 leftists and dissidents who vanished after being abducted by security forces during Argentina’s military dictatorship from 1976 to 1983.
He had been brought over by the Grandmothers of the Plaza del Mayo, a group of women demanding action over 500 children who had also, Fondebrider says, disappeared in those years. Their mothers were abducted while pregnant, gave birth in illegal detention centres and were often killed. The children were given to families friendly to the regime.
Fondebrider was active in human rights politics but he was only a student and had no forensic experience. He was asked to help only because the American scientist had been refused by qualified locals.
Fondebrider says: “The official forensic authorities were part of the system. Some of them, by complicity, signed fake death certificates – when something was execution, they put ‘confrontation’.”
So he and seven fellow students agreed to help. “It was something totally new for us. We had experienced archaeology as very old remains, so to arrive at a cemetery (where the bodies were buried as ‘John Doe’) surrounded by the police, with families crying, opening a grave with people who were wearing the same clothes like us, was shocking.”
It was also frightening. The shadow of the dictatorship still loomed large, and Fondebrider and others worried that there would be political repercussions over what they were doing.
“But we felt, after that exhumation, that it was something important.”
Fondebrider did not know that this would be a turning point in his life. He has now spent two decades working with thousands of grieving families all over the world whose loved ones have disappeared or been killed in political violence. Instead of pursuing a life of the mind, he scrabbles in dirt to unearth the truth about death.
The expertise he and his Argentine Forensic Anthropology Team of 45 have built up has turned them into internationally renowned scientists. Their work has also helped expose what would otherwise be closed chapters of recent history.
He says: “We are scientists and we are working with bones but we never forget they were human beings with dreams, with families, expectations. Those bones that we recover have stories.”
Fondebrider was in Melbourne this week as a key speaker at a conference entitled Domestic Crime to International Terror: Forensic Science Perspectives.
He looks younger than his 44 years – maybe it is his small ponytail – and talks with quiet charm but high-speed intensity, even in a language that is not his own.
He has a gentle air rather than the hard edge one might expect in someone whose work is so confronting – no wonder grieving relatives spend hours pouring him coffee and telling him the tales no one else wants to hear.
“Because we touch the remains of the people, to the families that is very special,” he says. “They invite us to their ceremonies. In some places we eat all together. The bond – it is amazing.”
Fondebrider says victim identification following political slaughter is very different to the work after a natural disaster that kills many people, such as the Asian tsunami in 2004. With a natural disaster, there is an outpouring of sympathy from the rest of society. Governments instantly offer help, there is wide media coverage and families who have lost loved ones are supported. Political deaths are shrouded in silence. The main perpetrator is likely to be the state. The bodies are hidden and the relatives isolated, perhaps even threatened. Families cannot let go of their grief but cannot share it either.
“It’s a very perverse mechanism, the disappearances,” he says. “The person is not alive, not dead. There is not a body … You come to a house and you will be shown the room of their daughter, which is in exactly the same condition as when she left the house or was kidnapped from the house. For the family, it is very stressful and most of the time nobody cares about the family.”
In such cases, identification of bodies is not possible till many years later, usually following a profound political shift that results in a new regime setting up a truth commission of some kind to discover what happened.
“Since 1974, more than 30 truth commissions have been created around the world,” Fondebrider says.
This is in addition to other structures, such as tribunals, special prosecutors and ombudsman, set up to inquire into illegal detentions, torture and killings.
It has been argued that this kind of work is central to preventing future political violence. Dr Thomas Parsons has been director of forensic sciences with the International Commission for Missing Persons since 2006. He told this week’s conference that “ethnic cleansing” in the Balkans in the 1990s was rooted in lingering bitterness over widespread killing at the end of World War II that was not investigated and for which perpetrators were never brought to justice.
“Based on the experiences we have had in the former Yugoslavia, to allow those very raw wounds to continue to fester – without society saying to these people, ‘This happened, you are victims, you have rights and we will tell the truth and bring your loved ones back’ – would be extremely destabilising in the long term.”
Fondebrider agrees on the significance of the task. But he also points out there is a great crevasse between the developed and developing worlds when it comes to the physical and political autopsies needed after mass slayings. He says millions of dollars have been spent on identifying the lost in the Balkans but little on the victims of ethnic massacres in countries such as Rwanda.
“Bosnia is in Europe. It is one hour’s flight from London, from Paris. Because it’s in the centre of Europe, the geopolitics is more important than Africa. Congo, Somalia, Burundi – it’s like a double standard.”
Fondebrider has worked in India, Chile, Uruguay, Brazil, Venezuela, Colombia, Guatemala, El Salvador, Haiti, Bosnia, Croatia, Kosovo, South Africa, Zimbabwe, Namibia, Congo, Kenya, Indonesia, Iraq, Cyprus and Georgia. Next week he will visit East Timor, where he is working with the Victorian Institute of Forensic Medicine trying to find and identify victims of the Santa Cruz massacre in 1991.
Fondebrider has often noticed the human need to see the dead. He says many families of missing people insist that they be present for exhumations and upon seeing whatever is left of their loved ones.
“It’s the first time they see something, after years of disappearance, years of nothing. It’s the only thing they have. Sometimes families say, ‘I had a beautiful daughter, full of life, and now I have just these bones. But still, they are the bones of my daughter.’ It is the only way to say, ‘OK, it is done. I have a grave in a cemetery with a name. I can go every time I want to go, put a flower, a picture.”‘
One of his photographs, from the Philippines, shows a human rights worker with a candle beside two tables on which brown-boned skeletons are assembled for a wake. Another shows brightly dressed Guatemalan women crowding around the skeleton from an exhumed grave.
Is the desire to look death in the eye partly about believing that it has happened? “Yes, partly. It is also that the family used to be, for a long time, out of the picture. Nobody includes them – the politicians, the judiciary, the forensic experts. For us, it is the other way. The families are like the stars in the movie. We are just the secondary actors. So, before the exhumation is done, we meet the families and answer all the questions. We say we are going to do the exhumation and we invite them if they want to to see it. For many families, they have a feeling of guilt that they did not do enough, so to be present is a very important moment for them.”
The relatives are later invited to the laboratory to see the remains and the scientists explain how they have been identified as their loved ones (or not). “We try to apply the model that science is at the same level as the people. We are not gods. Very often scientists don’t want to get too involved with the relatives. It is the opposite with us. When you get involved with the relatives, your work makes sense. You see your work in terms of the bigger picture.”
At the same time, he agrees that he has seen the worst of human nature. Fonde-brider knows what people can do to each other, and how the authorities that they should be able to trust can kill and lie without compunction.
He says calmly: “We are the worst species in the world. This perfect machine that is a human being can be destroyed in just seconds by someone else.”
There are two things he finds very hard to rationalise: the killing of children, and the apparent normality of those who orchestrate slaughter. He remembers a project in Guatemala. The army had arrived in a village in 1981. When the men fled, the soldiers took the children, smashed their heads on a wall and threw them into a well. In 1994-95, the bodies of 150 children were exhumed.
“Working with children is the worst thing. Really, it is very difficult to rationalise when you are in a grave full of children. I don’t know – how is this possible?
“And those things are planned by people sitting at a table in an office. One of the worst moments was a long time ago, when the trials began in Argentina. In one of the corridors, we met one of the main perpetrators, and this man was dressed very nice, he was wearing clothes like mine … and this man tortured. So the most difficult thing to accept is that the perpetrators … are part of our society.”
But although he has seen a lot of death, what Fondebrider remembers most vividly is what he has seen of the loving human spirit. “I have seen a lot of people full of life – keeping alive the stories, fighting for life, for memory, for justice. In many places you see, it is mostly the women, because women are stronger.
“When it is related to fighting for their loved ones, they don’t care about the army, the police. In many countries, women without any education go into the streets carrying pictures of their loved ones, clamouring for truth, for justice. From Colombia to Indonesia – everywhere. Always are the women. And that’s why we say our work is not related with the death, it is related with the life.
“That is why the work give to us a lot of satisfaction. Frustration, too, because you are on the side of the truth and the justice, and it rarely happens. But often we are able to indicate what happened with the body, how the person was killed, and … it is for the families the possibility of closing a circle of anguish.”
Karen Kissane is law and justice editor.
LUIS FONDEBRIDER CV
BORN 1963, Buenos Aires, Argentina.
FAMILY Younger of two brothers. Father a dentist, mother a pharmacist.
EDUCATED Master’s degree in anthropology from the University of Buenos Aires.
CAREER HIGHLIGHT Identifying the remains of revolutionary leader Che Guevara in Bolivia in 1997.
HOBBIES Soccer and fine wine.

First published in The Age.