Due process a problem for bikie laws

bikie-220212Even as a lightning rod for new legislation aimed at countering outlaw motorcycle gangs (OMCG), Vincent Focarelli cuts a controversial figure, according to two Flinders University law academics.

Mr Focarelli earlier this month was arrested in Adelaide after a week in hospital, having survived the fourth attempt against his life since 2006.

Professor Willem de Lint and Dr Marinella Marmo from Flinders Law School said a good deal of the reported recent violence in Adelaide attributed to a “bikie war” was, in fact, located around the comings and goings of Mr Focarelli between various motorcycles gangs.

Since his prison release in 2006, Mr Focarelli has reportedly been an in-and-out member of two motorcycle gangs (Hell’s Angels and Comancheros), has founded a new gang (The New Boys) and apparently has relinquished the key of his tattoo parlour to the Finks.

“The South Australian Attorney-General now proposes legislation to finally break through the code of silence of organised gang members, and to protect witnesses and members of the public by sealing their evidence from defence attorneys,” Dr Marmo said.

“To avoid an unpleasant déjà vu – with crucial parts of South Australia and New South Wales legislations being declared invalid by the High Court – the SA Attorney-General should  have a long look at other nations with similar, if not worse, organised crime problems,” she said.

Like Canada, Great Britain, the United States, Austria, the Netherlands and Italy, Australia has introduced expansive laws against organised crime and serious offending. Australia has also been a leader, with the SA law declared “the world’s toughest” by the then SA Premier Mike Rann.

“However, in both NSW and SA, law bodies have expressed ‘shock’ and ‘serious concern’ at the speed at which new measures against OCMGs have passed through parliaments,” Professor de Lint said.

“Following suit, the High Court of Australia struck a blow by invalidating parts of the SA law in 2010 and NSW law in 2011, namely their restrictions on judicial impartiality. It was actions that were judicial but sidestepped the judiciary that rightly offended the High Court (and lower courts),” he said.

“At the same time, the High Court has provided sufficient room with its judgment to accommodate much of what states have wished to legislate.”

In particular, Professor de Lint and Dr Marmo add, the High Court has not prohibited the use of what is called “criminal intelligence” – secret evidence that is given to selected adjudicators to protect sources and methods.

If criminal intelligence is firmly entrenched into new legislation, as is expected, then it would be a randomly selected judge who will be adjudicating on this evidence as an impartial umpire.

“The protection of secret information in the prosecution of organised crime has been a major problem in Italy since the events that followed the gruesome Mafia killing of judges Falcone and Borsellino in 1992,” Dr Marmo said.

“One could legitimately ask how the Italian police and prosecution succeeded in the following years in presenting criminal intelligence as evidence before an adversarial judge without incurring in breaches of national and European human rights Charters and Courts,” she said.

In 1992, two laws (and related amendments) were introduced, touching key points such as admissibility of evidence, right of cross-examination and identification of sources of evidence.

“Further, two elements complement the Italian legislation aimed at prohibiting membership of organised criminal associations: first, court-authorised electronic surveillance and wiretapping; and second, accounts from pentiti, criminal insiders turned supergrass,” Dr Marmo said.

“This latter element has offered major inside knowledge to Mafia affairs, and has effectively addressed that sense of impunity and code of silence,” she said.

“All are points no doubt being considered right now in South Australia, and yet all are problematic for due process.”

“As for Vincent Focarelli? Can this feared and charismatic figure, who seems until recently to have attracted more heat from the bikies than the police, endure changes to due process rights for accused?

“He has been charged with offences without the luxury of new laws. Perhaps he has served the OMCGs by rekindling legislative action,” Professor de Lint said.

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