Balancing the scales of justice

We must remember that some people who purport to be victims are simply liars. False and malicious complaints are made. Accused people can be victims too. No criminal lawyer, regardless of which side of the bar table they sit, no magistrate, nor justice could dispute that statement. The bench book has a direction to the effect that false complaints are made and that the motivation for them can often be unmasked.

As definitively as there are genuine victims of crime, equally definitively there are liars. In those cases there are still genuine victims but they sit in the dock, not in the witness box. As strenuously as the genuine victims of crime need to be protected equal measure must be given to protect an accused person throughout the criminal process.

If a person commits an act against another that is unlawful then punishment will follow. Take the example of a 25-year-old man, working as a cleaner at a supermarket. He drags a female checkout assistant from the lunch room into the stairwell and then rapes her, he is then convicted. He will spend a significant number of years as a guest of Her Majesty and appropriately so.

Society extracts its retribution, it may try and provide a modicum of rehabilitation and the victim sees the offender punished. The balance seems reasonable.

What about this example though? The same cleaner and the same checkout operator go into the stairwell and have consensual sex, they return to the lunch room and sitting there is the young lady’s fiancé, tucking into his ham and cheese sandwich. After the inevitable argument that follows she alleges rape and a false complaint is made. The matter proceeds to trial, a hung jury occurs and the day before the re-trial an admission is made by the complainant to a member of the law enforcement regime that the complaint was false.

Case closed? Accused exonerated with no blemish on his character?

We overlook the fact the young cleaner has sold his home to pay for his defence, the company he works for, which was owned and built by his father has lost its contracts with the National Supermarket to clean all of their stores.

That is Damien’s story. He feels like a victim, his offender suffers no loss or punishment. Damien is entitled to think the balance is wrong. The pendulum has swung too far and the balance is way off. So what do we do? Do we take away all the advances that have occurred on the one side to make the process so much more civilised and fair to the genuine victim?

Nobody would seriously advocate this approach but it does not change the fact, however, that the balance is still wrong. What we need to do is add some more weight to the other side of the scales. We need to put in place measures that do not dilute the changes that have occurred but simply redress the balance in the entire process. I see three practical suggestions to achieve the necessary balance.

First, let’s adopt another of the practices of our New South Wales counterparts. Give back to an accused person the right of last address in all trials, regardless of whether of not the defence goes into evidence. Let’s remove the agony that an accused person goes through, in nearly every trial, on the question of whether or not to give evidence in their own defence and give away that right of last address.

Why should an accused person be forced to give up something in order to maintain that practical, and real, advantage? The right to have the final say to a jury against accusations that are made against you should not be something that is traded: it should not be something that is subject to a tactical consideration.

We should allow an accused person to be able to speak to a jury, to tell their story, to be cross-examined, without being penalised and without having to give up the right to have the final statement to the accusations made against them. That would go some way to realigning the balance.