I don’t know why, perhaps
it is something to do with age, but for some reason I am continually
disappointed by what I see as a declining standard of proper investigative
journalism in newspapers.
The Sydney Morning Herald recently ran a piece
entitled, “Corby May Have to Come Clean to Get Parole” (Stuff 15/03/13).
The thrust of the story is
that “Schapelle Corby may need to
admit for the first time ever that she is a drug smuggler, and then show
remorse for her crime, before she can be granted parole under tough new laws
passed in Indonesia.” What the entire column fails to examine or even comment
upon, is whether the fact of confession under such circumstances – that is that
to obtain release from a hellish prison environment, you must confess your
guilt, in fact makes the confession reliable as a statement of what actually
occurred.
Whilst all applicants for Parole have the
right to maintain their innocence, the price they are forced to pay is often
too high. As a result of the desire to be released many compromise themselves
and enter into what Naughton (2005) refers to as the ‘Parole Deal’:
This emphasises the problem that is commonly referred to as the
‘parole deal’, which is very much akin to a ‘plea bargain’ for it attempts to
make innocent prisoners acknowledge guilt for crimes that they did not, in fact
commit. For
Peter Hill (2001), significantly, both offer the same essential ‘deal’ in an
attempt to obtain judicial finality in cases: ‘We say you are guilty. Admit it
and you get something in return’. The rationale behind the ‘parole deal’ is
connected to a range of ‘cognitive skills’, ‘thinking skills’ … and various
other ‘offending behaviour’ programmes and courses that have come to dominate
regimes in England and Wales over the last decade. These courses are almost
universally based on the work of psychologists in the Correctional service of
Canada and work from the premise that as offenders think differently to law
abiding citizens, once their ‘cognitive distortions’ are corrected they can be
released with a reduced risk of re-offending (Wilson 2001). The effect is that whilst the Prison
Services officially acknowledges that it is unlawful to refuse to recommend
release solely on the ground that a prisoner continues to deny guilt, it tends
to work under the simultaneous assumption that denial of offending is a good
indicator of a prisoners continuing risk.
[Bold Added]
This issue was also addressed in Varney
v Parole Board of Western Australia [2000] WASCA 393 (15 December 2000)
dealing with an inmate who denied his offending and as such was deemed not
suitable for a SOTP (sex offenders) course. In the course of the decision the
following observations were made:
76. In my opinion, by stating that "prisoner needs to address
offending behaviour (SOTP) before Board will review again", the Board was
saying that it would not again review its decision relating to the applicant's
entitlement to parole until he participates in an SOTP.
77. As participation in a SOTP is dependent on admission of guilt, it
follows that the Board, in effect, decided not to review its decision until the
applicant admitted his guilt. That is to say, by its decision of 29 June 2000, the Board decided that the applicant would
never be entitled to be released on parole until he admitted his guilt.
78. In Suresh
v The Queen (1998) 72 ALJR 769 Kirby J (at
781) commented:
"Enforced
admissions of guilt, as the effective price of liberty, are not normally a
feature of criminal justice in Australia.
Whilst an acknowledgment of
wrongdoing in the undertaking of such courses may be useful in particular
cases, the extraction of admissions by the prospect of early release from
custody will often lack integrity and may affront the dignity of the conscience
even of a convicted person. A better
means of encouraging participation in the treatment course should, in my view,
be considered. A discretion to
accommodate the exercise of legal rights and also cases of conscientious
objection … would be highly desirable, if not legally required."
79. Apart from the compelling force of these sentiments, the Board has
erroneously regarded the denial of guilt and the non-participation in the SOTP
as being conclusive of the question whether parole should be granted. I have
pointed out, however, that - while these are relevant matters - there are other
factors to which the Board is duty bound to have regard. In the case of the applicant, it is obvious
that, in the passage of time, age and illness on their own may reduce the risk
of offending to a bare minimum.
80. As a matter of law, the discretion vested in the Board must be
exercised by reference to all relevant material. By deciding not to review its decision until the applicant admits guilt
and participates in an SOTP, the Board has invalidly fettered its discretion. In my view, the Board erred in this respect.
81. In the circumstances, I consider that the applicant is entitled to
have the order nisi for a writ of certiorari relating to the Board's decision of 25 June 2000 made absolute to
the extent that it relates to the Board's decision not to review its refusal of
parole until the applicant addresses his offending behaviour by participating
in an SOTP. I do not think that it is
necessary for a writ of mandamus to issue in respect of this decision, as once the decision is
quashed and the Board receives a new application by the applicant, it will be required
to decide the question afresh.
[Bold Added]
It is recognised that there are a variety of
reasons that an offender may maintain his innocence, even after conviction.
This was recognised by the English High Court in Secretary of State
for Home Department Ex parte Hepworth, Fenton-Palmer and Baldonzy and R v. Parole Board Ex parte Winfield, R v. [1997] EWHC Admin 324 (25th
March, 1997), at paragraph 37 citing Ex p. Zulfikar (July 1995, unreported) :
But there may be a variety of reasons why a prisoner
will not accept his guilt. He may genuinely have been wrongly convicted.
Although inwardly he may know he is guilty, he may be unwilling to accept that
he has lied in the past or confront loss of face in accepting what he has
hitherto denied. Where, for example, the offence is one of specific intent, he
may genuinely have persuaded himself that he did not have the necessary intent.
Such a man may in all other respects be
a model prisoner. He may have behaved impeccably in prison, occupied his time
constructively and shown himself trustworthy and reliable with a settled
background to which to return.
Inmates must have the right to maintain their
innocence in respect of the offences they have been convicted of. It is wrong
in law and in principle for the Parole Board to refuse to grant release on parole on the basis that an inmate denies guilt.
In New Zealand for a number of offenders one
of the ways they can increase the chances of release is be “confessing guilt”,
suddenly because they have confessed, the Department’s psychologists can begin
treating them. Often with sex offenders (to take one category of inmate as an example), they will remain without any
rehabilitative input from the Department until they confess. This creates a regime that can be expressed
thus: to the Department of Corrections (denial
= no treatment) and the Parole Board (no
treatment = increased risk = no parole). This serves to place undue weight
on the denial of guilt. This approach is wrong in law and in principle as it
effectively results in denial = high
risk = no parole.
While a denial of guilt and failure to show
remorse are factors to be taken into account when assessing risk, the policy
must have some sound scientific evidence from which it is based.
Otherwise the policy of denial = no treatment = high risk = no parole becomes an arbitrary
and unprincipled fetter of the Parole Board’s discretion and the continued
detention of the Applicant will be arbitrary and in breach of his or her rights
under the New Zealand Bill of Rights Act 1990 (if applied here) and the
International Covenant on Civil and Political Rights.
Now in relation to the
Corby case, I don't have all the evidence. But she was either set up or was
very stupid. As a matter of principle though I do not believe that release on
parole should ever be linked to the inmate agreeing the state "got it
right." Say in the David Dougherty abduction and rape case, if the DNA
exonerating him was discovered after he had to agree that he was guilty to
obtain parole. This would see the state saying there is no need to quash his
conviction as he has confessed. This would mean the actual perpetrator would
remain untroubled by a state that sits back smug in the false comfort of a
compelled confession.
The first matter of business will be how the newly sworn judges will deal with the problem of their having presided over days of proceedings and numerous procedural rulings. Senior Counsel for the appellant Tony Ellis (pictured) is expected to motion the court accept the record from the improperly constituted court proceedings as newly made.