OFF THE WIRE
THE proposed anti-bikie legislation may be problematic, write Willem de Lint and Marinella Marm.
EVEN as a lightning rod for new legislation aimed at countering outlaw motorcycle gxxgs, Vince Focarelli cuts a controversial figure.
Mr Focarelli was arrested recently in Adelaide following a week in hospital, having survived the fourth attempt against his life since 2006.
A good deal of recent violence in Adelaide, attributed to a "bikie war", is really located around the comings and goings of Mr Focarelli between various motorcycle gxxgs.
Since his prison release in 2006, Mr Focarelli has been an in-and-out member of two motorcycle gxxgs (Hells Angels and Comancheros), 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, John Rau, now proposes legislation to finally break through the code of silence of organised gxxg members, and protect witnesses and members of the public by sealing their evidence from defence attorneys.
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.
Like Canada, Great Britain, the United States, Austria, the Netherlands and Italy, Australia has introduced expansive law against organised crime and serious offending.
Australia has also been a leader, with the South Australian law proudly proclaimed as "the world's toughest" by the then SA premier Mike Rann.
However, in both New South Wales and South Australia, law bodies have expressed "shock" and "serious concern" at the speed at which new measures against OCMGs have passed through parliaments.
Following suit, the High Court of Australia struck a blow by invalidating parts of the South Australian law in 2010 and New South Wales 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).
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, 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.
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 breaches of national and European human rights charters and courts.
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.
This latter element has offered major inside knowledge to Mafia affairs, and has effectively addressed that sense of impunity and code of silence.
All points no doubt being considered right now in SA, and yet all problematic for due process.
As for Vince Focarelli?
Can this feared and charismatic figure, who seems until recently to have attracted more heat from the bikies than the police, sustain changes to due process rights for accused?
He has been charged with offences without the luxury of new laws.
Perhaps he has served the gxxgs by serving them up.
Professor Willem de Lint and Dr Marinella Marmo are attached to the Law School at Flinders University.
http://www.adelaidenow.com.au/ipad/new-anti-bikie-laws-lack-due-process/story-fn6br25t-1226279959474
