Innocence not compensation enough

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.