Reference critics show ignorance of law: experts

Some of Melbourne’s best legal minds have ­defended the rights of individuals to provide character references for criminals.

Former PM John Howard. Picture: Kym Smith

Some of Melbourne’s most ­respected legal minds have ­defended the rights of individuals to provide character references for convicted criminals in the wake of spiteful political attacks on former prime minister John Howard over the references he wrote for ­Cardinal George Pell.

Politicians including Opposition Leader Bill Shorten, Greens leader Richard Di Natale and senator Derryn Hinch were yesterday joined by former race discrimination commissioner Tim Soutphommasane and an array of media commentators in slamming those who provided references, questioning their judgment.

But according to legal figures, the criticism displayed an ignorance of the sentencing process.

Former judge Richard Maidment QC said the purpose of such references was to give the sentencing judge some idea of other ­aspects of the offender’s character that weren’t demonstrated by ­evidence relevant to the offence.

“Character goes much deeper than committing a particular ­offence,” Mr Maidment said, adding that it was a process for judges to assess each reference and determine what weight should be ­attached.

“Judges don’t just look at a character reference and give great weight to everything in it.”

Deakin University associate law professor Theo Alexander agreed the sniping at Pell’s referees displayed an ignorance of the sentencing process.

“It fails to understand the role that character references and character referees play in the sentencing process,” the sentencing law lecturer said.

Dr Alexander said references were an attestation to the ­offender’s character based on the experience of the referee.

“A character referee is giving written or oral evidence to a court about their experiences with the prisoner,” he said.

“(The referee) is not being called upon to make an assessment about the crime or the qualities that the crime might suggest.”

Michael Tovey QC said people should not be attacked for providing references to people convicted of serious crimes.

“These people are giving no more than their own honest views in circumstances where they knew they’re putting their own reputation at risk by doing it, particularly in high-profile cases,” he said.

Mr Shorten yesterday described Mr Howard’s decision to provide a character reference, which described the high-profile clergyman as a person of “exemplary character” as an “error of judgment”.

Prime Minister Scott Morrison defended Mr Howard, declaring the former prime minister had the right to express his view.