An act of injustice

An act of injustice From the Independent Weekly June
30-July06 2007.
The state government's fight against bikie gangs is tough
talk and its walk is a popular swagger. But are its laws brutal and unfair, as its critics claim? HENDRIK GOUT explains how you could get caught up in a fight you have no chance of winning.
Lawyers
Catherine Hicks and David Edwardson believe the criminal
assets law is flawed It was a dark and stormy night.
High in the wooly Scottish hills, with the moon scudding across
clouds, English excise men armed with torches, iron hammers,
and bad tempers smashed their way into a crofter's hut. Just as their informer promised, hidden in- a backroom, was the illegal pot-still and a score of bottles of precious uisge beata - the spirit, whisky.
Triumphant agents dragged the screaming crofter away in
chains without sympathy or mercy and torched his hut. The government had outlawed home-made whisky-making and was determined to end the centuries-old Scottish tradition by unreasonable force. McTavish's pot-still, along with as many as 400 other illegal stills in a single year, was smashed to smithereens.
It was the 1700s, and the law was chaos.
The Law Lords of Westminster didn't use the same words as
the Parliament of SA, but in seizing the pot-still the British government did
what the South Australian government would do 300 years later. The British used excise men almost as lawless as the crofters themselves - South Australia would use the Criminal Assets Confiscation
Act, proclaimed last year.
"$17.7 million in criminal assets frozen,"
triumphed the headline in Premier Rann's media release on April 22 this year.
The list of assets seized under the Act included houses, the
Premier boasted.
And on a dark and stormy night in the Adelaide Hills,
without sympathy or mercy, the law closed in to evict a woman from her own house.
Sylvia Kramer doesn't work any more. After a long life in
the public service (see box, page 7) she hit retirement age and, living alone, took a redundancy package. She decided that if she lived modestly she could manage on her life-long superannuation.
She went to the occasional Adelaide Symphony Orchestra
performance, visited her just-married daughter every week, walked the dog, and tended her garden. Wherein she grew a few dope plants.
Four plants, specifically The police raided that moonless
rainy night. She confessed immediately to growing them for herself and friends. She showed the plants to police. She was charged. She pleaded guilty in the magistrates' court. She was convicted, fined, and remonstrated.
That would have been the end of the matter, except for the
Criminal Assets Confiscation Act.
In marched the office of the director of public prosecutions, Act in one hand and cudgel in the other. And in the swirl that followed, good laws became bad justice, parliament failed its people, and rhetoric ruled reason.
Attorney-General Mick Atkinson introduced the Criminal
Assets Confiscation Act on November 10, 2004, and it came into force last year. The government was showing its chest hairs to bikie gangs and promised to seize their drug profits.
"This legislation undermines the ability of organised crime gangs, such as outlaw bikies, to re-invest dirty money and build empires," Rann said in his April review of the Act's operations.
The Act does many things. It is a brand new law. Under this brand new law, Sylvia Kramer and a thousand other South Australians, maybe
more, will become crofters in the 21st century "On one level the law makes sense," says Adelaide lawyer Catherine Hicks.
"It's perfectly reasonable that people shouldn't profit from crime. Confiscating property, whether cars or houses, which have been
acquired through crime is one thing. But this law-the Criminal Assets
Confiscation Act - is quite another. "There is a constitutional argu-ment. It's certainly out of step with laws in other states."
"This woman grew four cannabis plants," says Sophie Downey, another Adelaide lawyer involved in such cases.
"She had no criminal history When the police arrived she admitted the facts. She didn't know the system-she wasn't represented by a
lawyer and she didn't exercise her right to silence. She pleaded guilty in the
magistrates' court. Now, what would be an appropriate punishment? Under the Act, she'll lose the house she's saved for her life which she
acquired perfectly honestly" "It's unjust enrichment by state," says an enraged Adelaide David Edward son. "People can do something relatively minor and an asset worth hundreds of thousands of dollars. The Crown is getting windfall of massive proportions. unjust, unfair."
The legislation was supported across the major parties in parliament "The government's clear intention was to crack down on bikes
and organised crime and that's perfectly justified," Ms Downey said this
week. in both the House of Assembly and in the Legislative Council, Liberal and Labor MPs spoke of "bringing SA into line with other states". Yet the
Bill did something very, very different. "There's a question," Ms Hicks said. "How many MPs actually understood the Bill? It's 111 pages long with 230
clauses."
One of the few MPs uncomfortable with the new law was the
member for Mitchell, Kris Hanna. "We are not talking about the rights of
criminals, but the rights of innocent people caught up in the police and the
criminal justice system," he argued.
"It is unacceptable that people who could not be found
guilty in court are subject to the confiscation of their property"
Hanna was talking about a fundamental change to the
administration of justice. In criminal cases the judge or jury bases their
verdict on a certain standard of proof: beyond reasonable doubt.
In civil cases the standard is lower: on the balance of
probability. Now take the case of 48 year-old Justin Bragg, who since his
divorce rented out a room in his Ingle Farm home to a work colleague. The
colleague began selling dope from Bragg's house, and he was caught, charged, and convicted. Bragg was also charged but told the court the drugs were his colleague's, not his, and he was I found not guilty.
But the state could still kick Bragg out of his own home -
quite legally. Bragg has to pay the mortgage during the sale process while he financially supports his former wife and two children. Why? Because while there was reasonable doubt that Bragg was completely innocent, on the balance of probability he could have been involved.
The house he and his wife had worked for most of their
lives, and .which was worth $288,000, was seized by the state because it was an 'instrument' in a crime for which Bragg was never convicted.
"There's a further big difference between here and the commonwealth or other states," Hicks said."In Sylvia Kramer's case, the most she stood to profit by was about $30,000. Her equity in her house was close to half a million dollars.
"It is a complete injustice. There is no justice in someone losing $500,000 for a crime which might have profited them by less than a tenth of that amount. For real justice, the penalty should fit the crime."
in the District Court on Victoria Square this week, in an unrelated case, four senior lawyers - two of them QCs - were on their feet before His Honour Judge Sidney Tilmouth. Tilmouth had two or three words to say
about the Criminal Assets Confiscation Act, and none of them suggested praise.
As it turns out, once someone has been convicted of using
their house as an 'instrument' in a crime, and this could be anything from
growing a few dope plants to distilling some uisge beata, the house is
forfeited within 15 months. The director of public prosecutions can slap a
restraining order over the home. It can't then be sold by the defendant. Its value can't be used to pay for the accused's own defence.
Judge Tilmouth told his court that the 15-month time frame seemed very short. The lawyers, even the prosecutor, heartily agreed.
"It can take a minimum of 12 months even to get a hearing
in the District Court," QC David Edwardson said with exasperation.
"Theoretically we could still be arguing aspects of the
case when the 'instrument', the house, has already gone to the state.
"There are other aspects," Hicks emphasised.
"This Act has provisions for automatic forfeiture. That means it removes
the discretionary ability of the court - that is, the court's discretion to
protect its citizens from unfairness, from disproportionate punishment."
Mark Brindal, a Liberal maverick when the law went through
parliament, called it at the time 'unjust and immoral'.
"I do not know how this attorney is sitting in this
place trying to pass off this hypocritical rubbish as acceptable law to be
passed by the parliament of South Australia,"
Brindall fumed.
Following the hearing in the District Court this week, the
DPP's office has given Judge Tilmouth an assurance that it will talk about the effects of this law with the Attorney-General.
But public memory is short. The day after grabbing the
headlines on bikies assets crime the government had a new story-of-the day - Rann announced a deal to set up a local campus of Carnegie Mellon American university Within a week, Attorney-General and muiti-cultural affairs minister Atkinson was answering a Dorothy Dixer about the Christmas pageant. To which Atkinson was pleased to reply that the pageant is "argu-ably the largest parade of its kind in the Southern Hemisphere". The assets law was yesterday's yarn. Posh unis and parades
were the new news. So an elderly woman losing her house over four marijuana plants is completely passe, even if it happened last Tuesday.
"It is the spirit and not the form of law that keeps
justice alive," once wrote the chief of the US Supreme Court, Earl Warren.
A smouldering crofter's cottage and the spirit of uisge
beata in Scotland
are not really separated from state seizure and eviction in the Adelaide Hills
by 300 years. It's just a form of law. And that's as relevant today, as it will
be tomorrow

Workcover treat injured workers in much the same way. Stopping their weekly income payments, making them engage in massive legal battles that endure for years, and eventuially bankrupting them.
There are plenty of injured workers that have been sent bankrupt because of them.