Justice at risk in climate of fear

THE federal Government's approach to counter-terrorism laws and the way terrorism trials are conducted in Australia are denying suspects their right to "normal, everyday justice", according to a leading Sydney barrister.

THE federal Government's approach to counter-terrorism laws and the way terrorism trials are conducted in Australia are denying suspects their right to "normal, everyday justice", according to a leading Sydney barrister.

Phillip Boulten SC told a legal conference in Sydney yesterday that the "climate of fear" surrounding terrorism made it very difficult for terror suspects to get a fair trial.

Mr Boulten last year represented Faheem Lodhi, who was convicted on three terror charges related to a plot to blow up the national electricity grid.

While declining to make any comment in relation to the Lodhi prosecution, Mr Boulten observed generally: "When an accused is arrested in a blaze of publicity, and his detention is depicted as an illustration of government competence, the conditions for a fair trial - involving a jury that is capable of acting free of prejudice and bias - are not very favourable.

"The potential for adding to the miscarriage of justice is high and it's necessary for all participants in these extraordinary proceedings to be exceedingly careful to avoid adding to the climate of fear that exists outside the courtroom," he said.

The way in which the federal Government was employing the National Security Information Act, introduced in 2004, was also leading to "unbalanced" criminal trials, he said.

The Government seemed to have taken a "pro-active" approach to the criminal trials of those allegedly involved in terrorism offences, he said.

"The commonwealth has extended this battleground, as it were, to the courtrooms of Australia by ... introducing the NSI," Mr Boulten said.

Several factors that could affect the fairness of a trial included: enforcing security clearances for defence lawyers, and threatening to withdraw legal aid funding for lawyers who objected; the admission of evidence or confessions that had been extracted under duress; numerous suppression orders; and the closed-court testimonies from ASIO agents.

"The jury are quick to perceive the nature of the struggle, when the state is waging a war on terror in the courtroom. The temptation is for the jury to close their minds to the issues of the case."

Mr Boulten's comments are in contrast to views expressed last week by a US judge at a conference of Australian judges and barristers in Chicago.

Richard Posner, considered a liberal-leaning jurist, took many of the delegates by surprise when he said traditional concepts of criminal justice were inadequate to deal with the terrorist threat and that the US had "over-invested" in them.