Innocence not compensation enough

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.