A View
A View
By Paul Donley
There are stages to an indictment and conviction on criminal charges. These stages are in place to prevent false accusations and protect the system from prosecuting the innocent.
The stages are:
If taken in sequence, many safeguards exist in this process.
Complaints:
A false Complaint can often be dismissed with a preliminary investigation. Since a Complaint is supposedly a sworn statement, the false complainant is subject to perjury or obstruction of justice charges (“perverting the course of justice” in Australia.)
Ideally, any time someone is willing to swear out a Complaint, at least some effort should be taken to investigate.
Investigation:
The Investigation phase may be long if the charges are significant and evidence continues to be exposed. This evidence is supposed to be collected by police officers who are sworn to uphold the integrity of the evidence.
Hearsay evidence, such as a person shouting to a policemen: “They stole my radio!”, may be enough to initiate a preliminary investigation. In all cases of hearsay evidence, the validity must be suspect without further substantiation.
Two members of the same group, such as a family or gang, accusing someone of a crime is not considered substantiation in and of itself in western culture. There has to be a stolen radio, for example. (This is the concept of Habeus Corpus.)
Hearsay evidence which may seem on the face of it to be valid is often proven irrational or invalid when all the facts are in evidence. The accused person may have a receipt for the radio, for example, and the shopkeeper may have been using the police to harass someone they didn’t like.
Indictment:
Once sufficient evidence has been uncovered, the police turn the evidence over to the Prosecutors – who may be specially trained police or prosecuting attorneys, depending on the crimes involved.
The Prosecutors take the evidence before the court to obtain an indictment on the charges. Some charges may be adjusted or not prosecuted because of lack of evidence.
One and Indictment is returned, at trial date is set. According to internationally accepted rules, the earliest trial date acceptable to both the Prosecution and Defense is set.
Prosecution:
The Prosecution phase may expose more evidence. There is a step called “Discovery” before a trial where Prosecutors and Defenders reveal their evidence and witnesses.
Conviction or Exoneration:
If there is insufficient evidence to support the charges, the charges are vacated and the person is exonerated. If the charges are proven to the satisfaction of the judge or jury, the person is sent for Punishment.
Punishment:
Punishment is set based on the charges that have been proven, which may have set minimum and maximum fines or prison terms. The convicted person may be forced to surrender property or income.
Other special circumstances may exist that require the judge to limit the person’s movements or actions.
A convicted child molester, for example, may be prevented from seeing his children or ordered to stay more than 200 meters from his home or anywhere children may gather, such as a school or playground.
Because a Conviction may require the state to take away some important civil and human rights, -- such as the right to property, freedom of movement and association, freedom of speech, and the right to a fair trial – the presentation and quality of evidence is always in contention. Most countries have clearly described Rules of Evidence that govern the conduct of police, judges, and other officials with regards to evidence.
These statements apply to criminal charges, of course. The process of a civil trial is much simpler, although it can result in more substantial judgments in terms of property, civil matters cannot commit someone to imprisonment.
There may be punishments worse than imprisonment, however, such as denying a parent access to his or her children.
Intervention Orders and CSA
Intervention Orders (or AVOs) are the core of the Child Services in Australia. The Intervention Order process seeks to assign the role of Abuser.
8 out of 9 times (87%) this role is assigned to the male in the relationship. This statistic is taught in law schools, to police officers in training, certification courses for social workers and volunteers, and cited repeatedly by professionals who have a vested interest in their careers.
This statistic is reflected in the fact that the Family Courts in Australia assign custody to the mother 95% of the time.
The Intervention Order process neatly skirts the process of criminal prosecution to place the male in a position of committing a criminal offense.
Intervention Orders turn the process of criminal prosecution on its head: punishment and penalties are assessed first. The man is essentially penalized -- by having his rights removed or curtailed – then convicted if he tries to resist such irrational circumstances.
One desk sergeant at the local police station (I have his name, rank and the date.) stated this flatly to me. He told me on the phone that the complainants could do anything they pleased to me, including bashing me, and if I did anything to resist, he would send police out to arrest me.
Discrimination
The Intervention Order process is highly politicized. All you have to do is read the platform statements of the major parties to see that one line is given to protecting the civil liberties and rights of all Australians, while nearly 40 lines speak to discrimination in favour of the rights of women.
Nowhere are the rights of men given such treatment.
In the rest of the western world, the fact that both men and women are abusive is accepted as fact. Numerous studies have produced statistics to support a 50-50 split. Usually, the role of Abuser is assigned to the man approximately 55% of the time.
Only in Australia has a prejudiced system produced a statistic that says 87% of the men in relationships are abusive.
How could that have happened?
Rules of Evidence
The Intervention Order process produces a criminal conviction without being subject to the level of scrutiny in the criminal prosecution process. An Intervention Order does not require a sworn statement, and at no point is the hearsay evidence required to be supported by hard evidence – not even a history of police complaints.
A man can be removed from his home and denied access to his property, even his children, without any burden of proof.
Very simply, from the first pamphlets found in numerous offices across the country, the man is told to just do what he is told. His options to respond are severely limited. The prevalent attitude reflected in the statistics show that even if the man has the funds for legal counsel, he will still be labelled the Abuser.
I do not say these things lightly. If I had heard someone saying something like this without experiencing it myself, I would quietly question what was being said. Unfortunately, I have experienced it myself and have spent more than a year researching.
The Rules of Evidence in Australia are an inconsequential morass of state and federal charters. Essentially it is up to the sitting magistrate to accept or reject any evidence presented. The only recourse is to seek another magistrate who will accept different evidence; or worse, a magistrate with a different bias or prejudice.
There are many stories in the courthouse about magistrates who ruled very liberally towards criminal offences until a crime was committed towards one of their immediate family; then the rulings tended to the other extreme.
Implementation
The United Nations does an annual review of all the nations of the Earth to assess the standards of human and civil rights in the country.
Having a strong Constitution that promises civil and human rights and laws that apparently protect those rights is not enough. Nor is it enough to have a long legal tradition of respect for those rights.
Year after year, Australia is reported as having no guarantees of civil and human rights but appears to be in accord based on the implementation of the laws.
In the American South, negroes were excluded from voting by a practical law that required the person show they were literate. There were two tests: one for whites, one for negroes. The negro test asked in university-level terms obscure questions about history or science. The white test asked questions about local events.
On the face of it, these laws were practical and reasonable. An illiterate person would not be aware of the issues involved and could be easily swayed to vote for anything or anyone.
In practice, however, the tests excluded even highly educated negroes from voting. It was shown that even whites with university degrees could not pass the negro test. Indeed, most members of Congress in the 1960s could not pass it.
The people responsible for implementing the law did not believe in the concept of equal before the law, and there was no oversight.
The implementation of Intervention Orders is a matter of practicality.
Hearsay evidence is not required to be substantiated for an Order to be filed. There is not even a preliminary investigation to hear the other side of the story. The Order simply orders the parties to appear for a trial date. In the meantime, the requirements of the Order are in effect, and any breech will result in a criminal conviction.
There is no criminal prosecution process to protect the accused. He is already convicted.
Indeed, in Victoria, police are encouraged to file Intervention Orders on the spot without any investigation, and then pressure the accused to sign off on the Order – essentially admitting his guilt.
I cannot believe that those who came up with the idea of Intervention Orders intended them to be handed out so lightly. There must have been an assumption that the magistrates or courts would take very seriously denying people the right to their children, homes, and possessions.
In the current climate in Australia, Intervention Orders are handed out like popcorn. The only filtering is the prejudice of the clerks at the courthouse or the social pressures – both tending to deny men equal protection under the law.
Magistrates’ Courts
It is just practicality. An Intervention Order is so easy to obtain that the courts are overwhelmed with the case load. Each major suburb of Melbourne sets aside at least one day a week to hear Intervention Order cases. Most magistrates in the suburbs face 40-60 cases on the day.
In Melbourne, there are two days each week set aside. Over 2000 cases pass before the magistrates on those days each week.
It is irrational to expect the magistrates to take the time to analyse the substance of the complaints, or to even hear both sides of the story. Hard evidence is simply ignored and the cases resolved on hearsay evidence.
Even the terminology of the paperwork is prejudiced. The man is called, “the Accused” and the complainant(s) the “Aggrieved Family members.”
The purpose of the process is to assign the Abuser. The Abuser is the man in 87% of the cases. He may as well be a cardboard cut-out labelled, “The Abuser.”
A Little Play on Words
At one point, I suggested that the paperwork be changed to save the state millions of dollars in court time. Why call the man, “the Accused”? Why not just call him, “the Abuser.”
After all the accusers are called “the Aggrieved Family members.”
In my experience, a more suitable wording would be “the Egregious Family members”, since this prejudiced system is more likely to be used for extortion than protection or justice.
Social Support and Legal Aid
The concepts common to western jurisprudence such as equal before the law and innocent until proven guilty are foreign to these agencies. Once a man has an Intervention Order filed against him, he is assumed guilty of a host of actions that may not even have been alleged.
Again, this is not said lightly. It is my own experience.
Just a glance at the commonly distributed pamphlets on Intervention Orders reveals that intrinsic prejudice in the system. Inside the back cover, there are agencies listed for ‘How to respond..” and ‘How to file..’ an Order.
There are three agencies, including two Legal Aid offices, inside the Response pamphlet. Inside the ‘How to file..” pamphlet, there are 13 with a promise of more to come. All of those agencies are government funded and, presumably, are open to both men and women. The names of the agencies often indicate they are for women only.
They coach the woman’s testimony, often to the point of outright perjury.
There is no effective oversight. Many profitable careers are being made by those who have learned that there is no penalty for perjury in the Intervention Order process.
The financial rewards are expansive, however, for both the agencies and the women who listen to them.
Legal Aid offices are not adequately funded to defend men against Intervention Orders. A woman will find numerous sources of financial support from a host of agencies, however, including Legal Aid. What funding there is for barristers and legal advice is funnelled by prejudice to women, not men.
Many of those agencies are there – by title and function – only for the woman.
Again, there is no effective oversight despite the fact that these agencies receive government funding.
The sad part is that this produces a recognized fact within the Intervention Order process, which can be confirmed by court officers and clerks, and the attorneys who deal with Intervention Orders: perjury is considered “warranted and necessary”, in the words of one of the recognized legal experts in Intervention Orders.
Even local legal aid offices are prejudiced and assume the Abuser is the male.
My local legal aid office supervising lawyer informed me that she would not even file a request for funding since she did not see that “important rights” were involved. It had taken me two days to get in to see her. I had to endure the scowling looks from everyone – all female – in the office to do it.
Finally, after documenting two incidents of obvious intimidation and threats from those who were supposedly protected by the Intervention Orders, she rushed to assign me an incompetent barrister who did not even bother to review the facts.
Perjury
At all levels in the social and legal structure that defines the Intervention Order process, perjury is given a wink and a nod. Attorneys and magistrates dealing in these proceedings acknowledge openly that perjury is “warranted and necessary” in the system.
Women are encouraged, coached and instructed to produce “evidence” even if it is wholly fanciful. The courts and police accept such “evidence” without question. The fact that there is no penalty for perjury is an open secret.
Summary
The resulting system is simply a railroad that confirms its own prejudices. A fair judgment in such a system is an accident.
Paul Donley
By Paul Donley
There are stages to an indictment and conviction on criminal charges. These stages are in place to prevent false accusations and protect the system from prosecuting the innocent.
The stages are:
- Complaint
- Investigation
- Indictment
- Prosecution
- Conviction or Exoneration
- Punishment
If taken in sequence, many safeguards exist in this process.
Complaints:
A false Complaint can often be dismissed with a preliminary investigation. Since a Complaint is supposedly a sworn statement, the false complainant is subject to perjury or obstruction of justice charges (“perverting the course of justice” in Australia.)
Ideally, any time someone is willing to swear out a Complaint, at least some effort should be taken to investigate.
Investigation:
The Investigation phase may be long if the charges are significant and evidence continues to be exposed. This evidence is supposed to be collected by police officers who are sworn to uphold the integrity of the evidence.
Hearsay evidence, such as a person shouting to a policemen: “They stole my radio!”, may be enough to initiate a preliminary investigation. In all cases of hearsay evidence, the validity must be suspect without further substantiation.
Two members of the same group, such as a family or gang, accusing someone of a crime is not considered substantiation in and of itself in western culture. There has to be a stolen radio, for example. (This is the concept of Habeus Corpus.)
Hearsay evidence which may seem on the face of it to be valid is often proven irrational or invalid when all the facts are in evidence. The accused person may have a receipt for the radio, for example, and the shopkeeper may have been using the police to harass someone they didn’t like.
Indictment:
Once sufficient evidence has been uncovered, the police turn the evidence over to the Prosecutors – who may be specially trained police or prosecuting attorneys, depending on the crimes involved.
The Prosecutors take the evidence before the court to obtain an indictment on the charges. Some charges may be adjusted or not prosecuted because of lack of evidence.
One and Indictment is returned, at trial date is set. According to internationally accepted rules, the earliest trial date acceptable to both the Prosecution and Defense is set.
Prosecution:
The Prosecution phase may expose more evidence. There is a step called “Discovery” before a trial where Prosecutors and Defenders reveal their evidence and witnesses.
Conviction or Exoneration:
If there is insufficient evidence to support the charges, the charges are vacated and the person is exonerated. If the charges are proven to the satisfaction of the judge or jury, the person is sent for Punishment.
Punishment:
Punishment is set based on the charges that have been proven, which may have set minimum and maximum fines or prison terms. The convicted person may be forced to surrender property or income.
Other special circumstances may exist that require the judge to limit the person’s movements or actions.
A convicted child molester, for example, may be prevented from seeing his children or ordered to stay more than 200 meters from his home or anywhere children may gather, such as a school or playground.
Because a Conviction may require the state to take away some important civil and human rights, -- such as the right to property, freedom of movement and association, freedom of speech, and the right to a fair trial – the presentation and quality of evidence is always in contention. Most countries have clearly described Rules of Evidence that govern the conduct of police, judges, and other officials with regards to evidence.
These statements apply to criminal charges, of course. The process of a civil trial is much simpler, although it can result in more substantial judgments in terms of property, civil matters cannot commit someone to imprisonment.
There may be punishments worse than imprisonment, however, such as denying a parent access to his or her children.
Intervention Orders and CSA
Intervention Orders (or AVOs) are the core of the Child Services in Australia. The Intervention Order process seeks to assign the role of Abuser.
8 out of 9 times (87%) this role is assigned to the male in the relationship. This statistic is taught in law schools, to police officers in training, certification courses for social workers and volunteers, and cited repeatedly by professionals who have a vested interest in their careers.
This statistic is reflected in the fact that the Family Courts in Australia assign custody to the mother 95% of the time.
The Intervention Order process neatly skirts the process of criminal prosecution to place the male in a position of committing a criminal offense.
Intervention Orders turn the process of criminal prosecution on its head: punishment and penalties are assessed first. The man is essentially penalized -- by having his rights removed or curtailed – then convicted if he tries to resist such irrational circumstances.
One desk sergeant at the local police station (I have his name, rank and the date.) stated this flatly to me. He told me on the phone that the complainants could do anything they pleased to me, including bashing me, and if I did anything to resist, he would send police out to arrest me.
Discrimination
The Intervention Order process is highly politicized. All you have to do is read the platform statements of the major parties to see that one line is given to protecting the civil liberties and rights of all Australians, while nearly 40 lines speak to discrimination in favour of the rights of women.
Nowhere are the rights of men given such treatment.
In the rest of the western world, the fact that both men and women are abusive is accepted as fact. Numerous studies have produced statistics to support a 50-50 split. Usually, the role of Abuser is assigned to the man approximately 55% of the time.
Only in Australia has a prejudiced system produced a statistic that says 87% of the men in relationships are abusive.
How could that have happened?
Rules of Evidence
The Intervention Order process produces a criminal conviction without being subject to the level of scrutiny in the criminal prosecution process. An Intervention Order does not require a sworn statement, and at no point is the hearsay evidence required to be supported by hard evidence – not even a history of police complaints.
A man can be removed from his home and denied access to his property, even his children, without any burden of proof.
Very simply, from the first pamphlets found in numerous offices across the country, the man is told to just do what he is told. His options to respond are severely limited. The prevalent attitude reflected in the statistics show that even if the man has the funds for legal counsel, he will still be labelled the Abuser.
I do not say these things lightly. If I had heard someone saying something like this without experiencing it myself, I would quietly question what was being said. Unfortunately, I have experienced it myself and have spent more than a year researching.
The Rules of Evidence in Australia are an inconsequential morass of state and federal charters. Essentially it is up to the sitting magistrate to accept or reject any evidence presented. The only recourse is to seek another magistrate who will accept different evidence; or worse, a magistrate with a different bias or prejudice.
There are many stories in the courthouse about magistrates who ruled very liberally towards criminal offences until a crime was committed towards one of their immediate family; then the rulings tended to the other extreme.
Implementation
The United Nations does an annual review of all the nations of the Earth to assess the standards of human and civil rights in the country.
Having a strong Constitution that promises civil and human rights and laws that apparently protect those rights is not enough. Nor is it enough to have a long legal tradition of respect for those rights.
Year after year, Australia is reported as having no guarantees of civil and human rights but appears to be in accord based on the implementation of the laws.
In the American South, negroes were excluded from voting by a practical law that required the person show they were literate. There were two tests: one for whites, one for negroes. The negro test asked in university-level terms obscure questions about history or science. The white test asked questions about local events.
On the face of it, these laws were practical and reasonable. An illiterate person would not be aware of the issues involved and could be easily swayed to vote for anything or anyone.
In practice, however, the tests excluded even highly educated negroes from voting. It was shown that even whites with university degrees could not pass the negro test. Indeed, most members of Congress in the 1960s could not pass it.
The people responsible for implementing the law did not believe in the concept of equal before the law, and there was no oversight.
The implementation of Intervention Orders is a matter of practicality.
Hearsay evidence is not required to be substantiated for an Order to be filed. There is not even a preliminary investigation to hear the other side of the story. The Order simply orders the parties to appear for a trial date. In the meantime, the requirements of the Order are in effect, and any breech will result in a criminal conviction.
There is no criminal prosecution process to protect the accused. He is already convicted.
Indeed, in Victoria, police are encouraged to file Intervention Orders on the spot without any investigation, and then pressure the accused to sign off on the Order – essentially admitting his guilt.
I cannot believe that those who came up with the idea of Intervention Orders intended them to be handed out so lightly. There must have been an assumption that the magistrates or courts would take very seriously denying people the right to their children, homes, and possessions.
In the current climate in Australia, Intervention Orders are handed out like popcorn. The only filtering is the prejudice of the clerks at the courthouse or the social pressures – both tending to deny men equal protection under the law.
Magistrates’ Courts
It is just practicality. An Intervention Order is so easy to obtain that the courts are overwhelmed with the case load. Each major suburb of Melbourne sets aside at least one day a week to hear Intervention Order cases. Most magistrates in the suburbs face 40-60 cases on the day.
In Melbourne, there are two days each week set aside. Over 2000 cases pass before the magistrates on those days each week.
It is irrational to expect the magistrates to take the time to analyse the substance of the complaints, or to even hear both sides of the story. Hard evidence is simply ignored and the cases resolved on hearsay evidence.
Even the terminology of the paperwork is prejudiced. The man is called, “the Accused” and the complainant(s) the “Aggrieved Family members.”
The purpose of the process is to assign the Abuser. The Abuser is the man in 87% of the cases. He may as well be a cardboard cut-out labelled, “The Abuser.”
A Little Play on Words
At one point, I suggested that the paperwork be changed to save the state millions of dollars in court time. Why call the man, “the Accused”? Why not just call him, “the Abuser.”
After all the accusers are called “the Aggrieved Family members.”
In my experience, a more suitable wording would be “the Egregious Family members”, since this prejudiced system is more likely to be used for extortion than protection or justice.
Social Support and Legal Aid
The concepts common to western jurisprudence such as equal before the law and innocent until proven guilty are foreign to these agencies. Once a man has an Intervention Order filed against him, he is assumed guilty of a host of actions that may not even have been alleged.
Again, this is not said lightly. It is my own experience.
Just a glance at the commonly distributed pamphlets on Intervention Orders reveals that intrinsic prejudice in the system. Inside the back cover, there are agencies listed for ‘How to respond..” and ‘How to file..’ an Order.
There are three agencies, including two Legal Aid offices, inside the Response pamphlet. Inside the ‘How to file..” pamphlet, there are 13 with a promise of more to come. All of those agencies are government funded and, presumably, are open to both men and women. The names of the agencies often indicate they are for women only.
They coach the woman’s testimony, often to the point of outright perjury.
There is no effective oversight. Many profitable careers are being made by those who have learned that there is no penalty for perjury in the Intervention Order process.
The financial rewards are expansive, however, for both the agencies and the women who listen to them.
Legal Aid offices are not adequately funded to defend men against Intervention Orders. A woman will find numerous sources of financial support from a host of agencies, however, including Legal Aid. What funding there is for barristers and legal advice is funnelled by prejudice to women, not men.
Many of those agencies are there – by title and function – only for the woman.
Again, there is no effective oversight despite the fact that these agencies receive government funding.
The sad part is that this produces a recognized fact within the Intervention Order process, which can be confirmed by court officers and clerks, and the attorneys who deal with Intervention Orders: perjury is considered “warranted and necessary”, in the words of one of the recognized legal experts in Intervention Orders.
Even local legal aid offices are prejudiced and assume the Abuser is the male.
My local legal aid office supervising lawyer informed me that she would not even file a request for funding since she did not see that “important rights” were involved. It had taken me two days to get in to see her. I had to endure the scowling looks from everyone – all female – in the office to do it.
Finally, after documenting two incidents of obvious intimidation and threats from those who were supposedly protected by the Intervention Orders, she rushed to assign me an incompetent barrister who did not even bother to review the facts.
Perjury
At all levels in the social and legal structure that defines the Intervention Order process, perjury is given a wink and a nod. Attorneys and magistrates dealing in these proceedings acknowledge openly that perjury is “warranted and necessary” in the system.
Women are encouraged, coached and instructed to produce “evidence” even if it is wholly fanciful. The courts and police accept such “evidence” without question. The fact that there is no penalty for perjury is an open secret.
Summary
The resulting system is simply a railroad that confirms its own prejudices. A fair judgment in such a system is an accident.
Paul Donley
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