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Doubt Sydney University Law Society Social Justice Journal 2013 Dissent Doubt Sydney University Law Society Social Justice Journal 2013 issent. DDoubt SYDNEY UNIVERSITY LAW SOCIETY SOCIAL JUSTICE JOURNAL 2013 Dissent Doubt Sydney University Law Society Social Justice Journal 2013 ISSN 1839-1508 Editor-in-Chief Melissa Chen Editorial Board Lucinda Bradshaw Joanna Connolly Nathan Hauser Aden Knaap Nina Newcombe Justin Pen Greta Ulbrick Mala Wadhera Design Judy Zhu Nina Newcombe Melissa Chen Artwork Nina Newcombe With special thanks to Gilbert + Tobin, Sponsor Mark Tedeschi AM QC, Guest Speaker Joellen Riley, Dean James Higgins, SULS Vice-President (Social Justice) Judy Zhu, SULS Design Officer Printing Kopystop Pty Ltd Disclaimer: This journal is published under the auspices of the Sydney University Law Society (SULS). The views expressed in the articles are those of the authors, not the editors. Contents iv Editor-in-Chief’s Foreword v Dean’s Foreword 1 Opening Submission Kate Farrell 2 Doubting DNA Laura Precup-Pop 8 Navigating the Memory Labyrinth Virat Nehru 12 Broken Promises Samuel Murray 17 “That Secret Court Took My Kids Away” Anonymous 25 Doubting Adoption Legislation Dr Catherine Lynch 27 Infamy Jo Seto and Angelica McCall 32 Trial by Media Isabella Kang 36 Trust Me, I’m a Journo David Blight 41 Future or Fad? Catherine Dawson 47 Photographic Essay Raihana Haidary 50 The Plentiful Paradox Connie Ye 57 The Ghost that Keeps on Giving Lewis Hamilton 62 Social Diversity and Social Justice Ellen O’Brien 67 The Privatisation of the Human Genome Christina White 73 Privacy as a Human “Premium” Jo Seto 79 Activism or Slacktivism? John-Ernest Dinamarca 85 Social Justice Snobbery Georgina Meikle 88 Good Intentions James Clifford 93 Closing Submission Kate Farrell 94 Reference List DISSENT iv Editor-in-Chief’s Foreword Doubt confronts us at every turn. From the mundane (Should I have dyed my hair white blonde? Did I submit a good clerkship application?) to the more serious (Do I really love the person who I’m married to? Is there a God?), it is that constant feeling of doubt that keeps us questioning, keeps us hungry for self-improvement and betterment. Unless it overwhelms us absolutely – and this, may I suggest, is all too often a genuine possibility – doubt can be a positive catalyst for change. This is why the Editorial Board chose ‘doubt’ as the theme for this year’s edition of Dissent. The Sydney University Law Society (SULS) social justice portfolio has a rich history of providing students with opportunities to tackle some of the most pressing social justice issues of the day. Dissent, the annual social justice journal, is one forum in which to do so. We wanted to provide contributors with a stimulus to think and write critically about the efficacy of social justice works, the darkened crooks and crannies of doubt within the legal system, or how doubt can be cornered and overcome (or alternatively, how it may be impossible to vanquish). With the submissions this year - ranging from academic articles to opinion pieces, poems, interviews and photographic essays – our desire for a critical analysis of the law, social justice and ‘doubt’ was met with gutso. The journal is structured in such a way as to lead readers through a progression of different themes, starting with doubt and legal process and continuing on with doubt and the media, communities, and new frontiers. Finally, the journal ends with an exploration of doubt and social justice advocacy, suggesting the value of doubt and doubting in assisting us to improve existing methods and programs within the social justice arena. Without such doubt – without such a catalyst for change – we are in danger of falling into the trap of complacency. I would like to thank Gilbert + Tobin, who have sponsored this journal for the last few years, and without whose support this journal would not be possible. I would also like to express my appreciation towards the Dean of Sydney Law School, Joellen Riley, for writing the Dean’s foreword and more generally, for demonstrating her ongoing encouragement of student endeavours. From SULS, Vice- President (Social Justice) James Higgins and Design Officer Judy Zhu have worked tirelessly to assist with the creation of the journal this year, as have the contributors themselves and of course, the Editorial Board who have sweated through countless volunteer hours on the lookout for rogue em- dashes vis-à-vis hyphens. I am grateful to you all. And with that I present to you, the reader, this year’s edition of Dissent. Melissa Chen Editor-in-Chief, Dissent v DISSENT Dean’s Foreword For the well-trained lawyer, ‘doubt’ is an essential professional tool. The legally-trained mind is tuned to question, and to test evidence thoroughly before accepting a conclusion or adopting a position. This edition of Dissent is a testimony to the fine skills in critical, lawyerly analysis of many Sydney Law School student authors. All have turned those skills towards examining some aspect of, or role for, doubt in our legal system, and all maintain a commitment to pursuing socially just outcomes. Some of the pieces examine the institution of doubt in our criminal justice system. In the broader community (among the greater population untrained to doubt as lawyers are) the principle that an accused person is innocent until proven guilty ‘beyond reasonable doubt’ is by no means intuitive. Media reports on famous crimes frequently provoke snap judgments of guilt: think of the media trial (and retrial) of Lindy Chamberlain. Or the show trial of OJ Simpson. And today, how many people are giving Jimmy Savile, alleged serial paedophile, the benefit of any reasonable doubt? Once the media has demonized an alleged perpetrator, the community can be quick to convict, often on the strength of little more than a headline and a few paragraphs of yet to be proven ‘facts’. How are facts proven? Must law defer to science in this age of high tech forensic analysis? Laura Precip- Pop looks, dubiously, at DNA evidence. Virat Nehru questions the reliability of witness memory in an intriguing examination of ‘false memory’ cases. Populist governments often seek to appeal to our natural tendency to assume that any smoke of rumour indicates a fire of guilt, by launching ‘law and order’ campaigns. These promises of crackdowns on crime may comfort the fearful, but (as Samuel Murray’s article examines) they risk infringing civil liberties. People often forget that the innocent can easily be swept up in the nets set to trap the guilty. Even the guilty have a right to due process. Without it, who can distinguish the guilty from the innocent with any confidence, ‘beyond reasonable doubt’? A number of the articles embrace the theme of ‘doubt’ more broadly, and use it to challenge prevailing views on a range of social justice issues: human genome patenting, social media activism (or ‘slacktivism’); indigenous communities’ relationships with mining interests. Catherine Dawson provides a fascinatingly skeptical analysis of the experience of the Grameen Bank and microfinance more generally as an attempt to alleviate poverty in the developing world. In all, this is an intriguing issue. Read it . critically. Accept no conclusions until you have tested the authors’ evidence thoroughly, and are satisfied yourself, beyond any reasonable doubt. Joellen Riley Dean, Sydney Law School DISSENT vi Opening submission Kate Farrell LL.B. V Poem The defendant sits high in the stand, lowest of all. Waves of doubt wash slowly into the dock soaking the public-sector-coloured carpet. The judge’s new shoes are safe. The bench is dry as droughtbone ground to dust by dint of savannah sun. And counsel charges across the floor talking and passing papers and parting the sea, wearing a periwig like a feeble grey half-mane, lionised. Yet fluid fear runs faster in the murky shallows, tided memory slaps the stand and the family huddled on the back row dunes. On another continent the judge considers the deepening ocean the cold squirming fish. DISSENT 1 DOUBT → LEGAL PROCESS Doubting DNA Scientific evidence and the adjudgment of guilt or innocence Laura Precup-Pop J.D. II Article 2 DISSENT Introduction remarkably small given the fact that it had been obtained in the context of a penile-vaginal rape, When confronted with scientific evidence in with only one intact sperm and fifteen heads the courtroom, jurors often face two competing being observed. No other traces of Jama’s DNA sources of authority: science and the law. were found either within the high vagina or on Although research suggests that juries do engage the clothing of M. It was on the sole basis of this in sound fact-finding, there is doubt as to whether DNA evidence that the prosecution decided to the lay juror can comprehend complex scientific proceed to trial notwithstanding the numerous evidence, and much depends upon the way in inadequacies of the case. which the prosecution or defence has presented it. The common perception that DNA allows for The deficiencies of the prosecution’s case were a conclusive determination of guilt can taint the indeed remarkable. First, investigators found no fairness of a trial and can ultimately produce life- link between Jama and the over-28’s nightclub; shattering consequences for the accused. This he was not identified by any of the 800 patrons, article utilises the tragic case of R v Jama1 as a M had no recollection of seeing or speaking lens through which the use of DNA in jury trials to ‘any black men’4 that night and he was not may be analysed, and questions whether jurors spotted by any nightclub security guard. It would are capable of properly interpreting scientific be quite extraordinary if a 19-year-old student of evidence in the courtroom.
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