Innocence not compensation enough
- From: "MCP" <gf010w5035@xxxxxxxxxxxxxxxx>
- Date: Sat, 13 May 2006 07:40:10 GMT
http://www.onlineopinion.com.au/view.asp?article=4273
A recent high profile rape trial in Ipswich, Queensland, has focussed
attention on little-publicised flaws in the state's justice system.
Defendants facing criminal charges have no right to seek reimbursement for
their costs if they are found innocent. And if the complainant is a child,
tough restrictions on cross-examination effectively hobble the defence and
favour the prosecution.
As a criminal defence lawyer, I think it is fundamentally wrong to deny
acquitted defendants any recompense for their costs.
Defendants acquitted of a criminal offence should have their full costs
reimbursed. It is grossly unfair that people can face expense defending
themselves against criminal charges, yet have no right to be reimbursed for
their costs.
The issue was brought into sharp focus recently after a jury in the Ipswich
District Court rejected nine charges against an Ipswich father, accused of
raping his 14-year-old daughter.
The story played out for more than a year, with elements that made it
resemble a "Jerry Springer Show" episode. There were rape allegations, a
family torn apart, a father in custody, a mother charged with being a party
to the offences, and a 14-year-old girl running off to live with a man twice
her age.
The media lapped up the scandal but what they did not see was the father
incarcerated in custody for three months, or the anguish of parents who knew
they had done nothing wrong, but because of their daughter's allegations,
were forced to put their lives and jobs on hold while they fought these
accusations.
At the end of the day, after the man, and his wife, who had earlier faced
charges related to the case but which were dropped, had been to hell and
back, the jury found him not guilty nine times, yet financially he's
entitled to nothing.
District Court and Supreme Court trials cost many tens of thousands, if not
hundreds of thousands of dollars. Whether a client funds the trial from
their pocket by selling their house, or borrowing from friends and family,
or whether Legal Aid (Queensland) must foot the bill, the result is the
same - an acquitted person (or Legal Aid) is out of pocket and cannot
recover their costs.
The situation is, of course, most crippling for those who must personally
fund their trial. What further tips the balance away from an accused is that
upon conviction a complainant can make an application for compensation.
In my view people acquitted of a criminal charge should be put back into the
same position, at least financially, to before the court process began. The
pendulum of the criminal law system has swung too far and there is an
imbalance for people whose names have been cleared by the courts.
The Ipswich case made headlines after the 35-year-old Ipswich father was
arrested and held in custody for three months, facing charges of rape
against his 14-year-old daughter. Applications for bail had been refused,
despite the man's wife saying their daughter made false allegations to
remove her father from the home, so she could have a relationship with their
28-year-old neighbour.
Her father strongly opposed the relationship. The moment her father was
charged with rape and taken into custody, his daughter moved in next door
with the neighbour.
The teenage complainant refused any medical tests, and the case came down to
her word against her father's. Her mother subsequently reported the teenager
as a runaway. Then, almost three months after the case began, police
suddenly charged the mother with being a party to the alleged offences.
These proceedings were subsequently discontinued, but throughout this sad
story, it has been an ordeal for both parents.
They are the real victims here and as their defence lawyer we had a very
strong defence case from the outset. But they have had to live with this
ordeal since October 2004.
The story was made all the more bizarre because of Queensland's tough new
laws to protect child complainants from cross examination. Queensland's
evidence laws effectively mean a child complainant's statement, which forms
the crux of the case, is accepted without any attempt in the preliminary
court stages of determining whether the child is telling the truth.
Consequently, the girl's claims could not be challenged in court at a
preliminary hearing.
Because of the restrictions in the evidence laws, cases are going to trial
which should have been stopped in their tracks much earlier. Laws intended
to protect children are in fact prolonging some cases, and lock defendants
behind bars on remand for months on end.
As children cannot be cross examined at a committal hearing, it effectively
consigns the defendant to an expensive trial, and incidentally makes more
work for the courts. Lawyers now have to seek a magistrate's permission to
cross-examine a child at a committal hearing.
As a Queensland criminal defence lawyer trying to navigate this legal
obstacle course, I believe changes to the Evidence Act to protect children
from cross-examination have gone too far and need an urgent overhaul.
The state's lawmakers are out of step with the real world. A law intended to
protect small children from any trauma in the courtroom also applies to
teenagers as well. All parents of teenagers know there are times when
teenagers put personal benefit ahead of all other considerations. And the
Ipswich rape allegations illustrated this point clearly.
We need a law to protect children, yet be flexible enough to reflect
situations where an older child's claims need to be tested in court to
determine whether they are genuine. In the Ipswich rape claim case the
teenage complainant had refused any medical tests, and the case came down to
her word against her father's.
It's easy for young people to make serious claims of offences against them
but it's harder for them to face their parents in court and be
cross-examined on their claims. This is where the court can see at first
hand just how genuine the complaint is, yet because of the evidence laws
now, the court automatically presumes the child is telling the truth.
The law also erodes the presumption of innocence for the defendant and sets
up a system to deprive defendants of a fair trial. Right from the outset the
court effectively believes the complainant over the defendant. This is not
right and it's not a basis for a fair system of justice.
Some safeguards are needed against badgering but the reality is criminal
defence lawyers don't behave like this in Queensland. The image of the
unrelenting lawyer browbeating the witness before a packed court room is a
staple of Hollywood drama, but in our real world, it is a fiction.
Above all, magistrates have the power to stop a line of questioning. The
safeguards are already there to protect child witnesses and complainants.
Other measures to protect children giving evidence include using closed
circuit TV or pre-recording of evidence with video played to a jury. Before
the law was changed, children could be cross-examined live in court through
either closed circuit TV or behind a screen.
The key thing is a child's allegations could be tested at the committal
hearing, but not now, which means their complaint is unchallenged. It
effectively ensures some cases go to trial which could and should be stopped
long before that time.
The Ipswich case went to trial and the jury conclusively rejected the
allegations, finding the father not guilty nine times to each charge he
faced.
Although the accused has been acquitted, the story does not end yet. The
conduct of various prosecution witnesses during the course of the trial is
now the subject of formal investigation.
In theory, justice has been done and been seen to be done. A family has
fractured, and the trauma faced by mother and father could take years to
heal, if it ever heals. And at the end of the day the system says the
defendant is entitled to not a cent back for lost income, expenses and
costs.
This is wrong.
Tim Meehan is Managing Partner of the Ipswich and Toowoomba, Queensland,
offices of national criminal defence law firm Ryan and Bosscher Lawyers.
.
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