Restrained Dissent; Restrained Repression: Political Offenders and the Victorian Criminal Courts*
| Author | Roger Douglas |
| DOI | 10.1177/000486588902200404 |
| Published date | 01 December 1989 |
| Date | 01 December 1989 |
| Subject Matter | Original Article |
AUST &
NZ
JOURNAL
OF
CRIMINOLOGY (December
1989)
22
(237-258)
237
RESTRAINED DISSENT; RESTRAINED REPRESSION:
POLITICAL OFFENDERS
AND
THE VICTORIAN CRIMINAL
COURTS*
Roger Douglast
Abstract
This article examines the conduct of political trials in Victoria between 1966-1989.
Using adefinition
of
political trial which classes trials as "political" if they relate to
offences arising out
of
some form of political activity, the article discusses the
problems faced by prosecutors, defendants and magistrates and judges in
determining an optimal response to the problems and opportunities created by
political trials. It examines prosecution strategies (the decision to withdraw
charges); defence strategies (plea, type of defence, use of lawyers, types
of
plea in
mitigation, decisions on whether to pay fines); and court strategies (response to
contests, use of the contempt power, sentencing). Changing patterns over time are
also explored. Marked differences are found to emerge between political and
non-political cases, and between early and late cases.
Introduction
Political trials create opportunities and risks. They can represent occasions for
conflictover competing views ofpolitical rightness; they can constitute occasions for
raising the costs associated with particular forms of political behaviour. For
dissidents the trial can be used
as
ameans to appeal to avariety
of
audiences: to
history; to the general public; to the jury (if there
is
one); and even to the judge
or
magistrate. It can involve an opportunity for dissidents to impose costs on the state:
by challenging the taken-for-granted norms which underlie the smooth operation
of
state institutions, by tying-up police and court time; by embarrassing the agents
of
order and, in certain circumstances, by clogging the prison system. Dissidents are
virtually the only defendants capable of putting defendant-hood to good advantage.
But it
is
not only defendants who can use the political trial to their advantage. The
state too may be appealing to avariety of audiences
as
it uses the trial to convey
its
message. Moreover, trials can impose costs on political dissent and on political
defendants. Adefence will involve costs in terms
of
time, energy and resources.
Moreover, sanctions too involve costs, and costs which defendants may find difficult
to bear. Fines (if paid) may prove amajor drain on the resources of impecunious
defendants and, for that matter, indigent political organisations. Prison may have
its psychological (Gross, 1977) and political (Cohn, 1966:6) attractions, but it can
also be extremely unpleasant. Even the fact ofhaving been convicted
is
not without
its costs, and these may be both political (if they incapacitate an activist from certain
forms
of
politics) and personal (in so far
as
they disqualify the defendants from
certain civil roles). Moreover, while sanctions may be accepted by highly committed
activists, they may discourage the less committed from engaging in the relevant
activities.
*This article
is
arevised version of apaper presented to the Fifth Annual Criminology Conference,
Sydney
1989.
tDepartment of Legal Studies, La Trobe University, Bundoora, Victoria.
238
RDOUGLAS (1989)
22
ANZJ
Crim
Further
complications flow from
the
fact
that
political trials may
be
differently
regarded
by different state officials. Judges may see
the
trial as an
opportunity
to
demonstrate
the
capacity
of
the
law to handle difficult cases in acivilised
and
impartial
manner;
prosecutors may
be
concerned with maximising
the
political
pay-off
(or
minimising
the
political costs)
of
atrial; police
may
be anxious to
ensure
that
those whom they have
arrested
be
punished.
Decisions
on
how to behave in apolitical trial
are
likely to
be
complex, involving
the
balancing
of
strategic
and
tactical considerations;
of
the
political
and
the
personal;
of
the requirements
of
role and
the
temptations
given personal
idiosyncracies.
rhey
are
likely to be based
on
imperfect information, especially
where rhetoric and intent (be they
of
dissidents
or
state
agents)
are
at variance,
and
especially in novel situations.
And
both
these conditions
are
likely
to
be
satisfied:
maximisation
of
support
not
infrequently involves avariety
of
rhetorics,
some
of
which
are
bound
to
reach
the
wrong audiences.
And
given
that
political dissidents
might reasonably
be
expected
to
explore the possibility for creating novel situations,
one
might expect
that
the
course
of
political trials will
often
prove
hard
to
predict.
However,
this said,
there
may also be circumstances
where
political trials will
come
to exhibit certain relatively stable patterns. Different actors may become
better
informed
about
each
other's
intentions and about
the
consequences
of
alternative
courses
of
action, and this may ensure
that
such trials develop into aform
of
positive
sum
game,
with some positive outcomes for all concerned.
There
is alarge literature
on
political trials,
but
this literature
is
overwhelmingly
concerned with "great trials": trials which last for weeks, command international
attention,
and
which
enter
the
annals
of
the
folk history
of
the
relevant.movements
and
indeed
the
history
of
our
culture (see, eg, Kirchheimer, 1961;
Bannan
and
Bannan,
1974; Sternberg, 1972; Christenson, 1983). Such trials are, by
their
very
nature,
apt
to
be one-off affairs, unique
rather
than
routine. People
learn
from
them,
but
they may well
learn
from them because such trials
are
unusual
and
therefore
highlight the implications
of
newly developed strategies.
Routine
political
trials have rarely been examined.
There
have
been
several accounts
of
the
processing
of
defendants
arrested
in the course
of
urban
riots (eg,
National
Advisory Commission, 1968; ch 13; Dobrovir, 1969),
and
some
exploration
of
the
processirig
of
black civil rights demonstrators (see, eg,
Barkan,
1985). Locally,
Brennan
(1983: ch 6) has provided auseful account
of
the
court processing
of
defendants
arrested
in
the
1977-78 Brisbane right-to-march demonstrations.
However,
on
the
whole, little is known
about
the trials
of
typical political arrestees.
Indeed,
even
the
suggestion
that
these trials are routine may prove an
unwarranted
assumption.
Yet,
in understanding political justice,
these
may be every bit as
important
as
the
"great
trials".
It
is
they that will
be
responsible for most
of
the
sanctioning
of
political offenders.
It
will be they which will reflect such routinisation
as takes place. It
is
they
that
form
the
subject
of
this article. .
This article is concerned with political trials in Victoria betw,een 1966
and
1989.
Such concern obviously involves some idea
of
what makes atri'Jl apolitical trial
and
this itself involves venturing into what
is
potentially ac<inceptual minefield.
Arguments
about
what makes atrial a"political" trial
are
bedevilled by
the
assumption
that
nice countries
don't
have political trials
and
nasty
ones
do.
Accordingly,
one
finds
that
supporters
of
aparticular regime
are
at pains
to
adopt
an extremely narrow definition
of
what constitutes apolitical trial, adopting a
definition which more
or
less confines "political trials"
to
those which involve a
person who has
been
charged with apolitical offence, apolitical offence being
an
offence which arises from alaw which forbids an act because
of
its political
content.
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