Justice denied ?

Tony Mokbel is a notorious criminal and he has just had an application to change his plea from " Guilty " to " Not Guilty " rejected  in a Victorian court.   Most people will be surprised to learn that such a change requires permission.   If the circumstances of the case change, then surely the defendant is permitted a change of mind ?

Over recent decades there have been changes in the way the law system operates.  In the old days any prisoner was presented to a judge and jury and the case proceeded to verdict.   If that verdict was " guilty ", then the presiding judge had the sole discretion of award the punishment.

Not so today.   Before the case goes anywhere near a court, the prosecutor and the defence sit down and " plea bargain ".     This is mostly a discounting of the term to be served in exchange for a guilty plea, and as a consequence the judge has a strictly limited role in awarding punishment for the crime.    The legal fraternity claims that this speeds up the court system by removing many long and costly sitting days when a prisoner enters a " not guilty " plea despite overwhelming evidence - in the faint hope that somehow a " miracle " will decide the verdict in his or her favour.

The unusual factor in the Mokbel case that is causing public disquiet - is the claim that that the evidence to be presented to the trial is now considered legally  not admissible - and that was the reason for the prisoner entering a "guilty " plea at an earlier hearing.    An investigation revealed that the search warrants used by the police to gain evidence were not properly sworn, and therefore the evidence gained can not be used to in court.  On this basis - Mokbel has a hugely better chance of being acquitted, but now the appeals court is refusing to allow him a plea change.

The basis of the law is " that justice shall be done - and be seen to be done ".   If a person charged with a crime is locked into a guilty plea when the evidence against him is tainted by " police misconduct " and unable to be used to gain a conviction, then that definition of the law is not true.

This looks like heading into what is often called a " lawyer's picnic ".    The fact that retrospective legislation is being used to circumvent a plea change will ensure that legions of top silks will battle it out in ever increasing appeals courts - and the issue will probably be finally decided in Australia's High court.

And while all this is happening, the unfortunate prisoner will languish in a gaol cell.