Wrongly accused

Three years ago, Sydney engineer, let's call him Simon, was accused of a home invasion - "aggravated break and enter with intent to commit a serious indictable offence." His intent was rape, according to police. He'd never even met the woman who accused him, and police showed no interest in his irrefutable evidence that he couldn't have done it.

They tried to put him away for 20 years. He self-represented through 20 court appearances, won twice in the District Court - with costs against the Crown - and then again when the DPP's appeal failed, achieving another costs order, in a case significant enough to make the NSW Law Reports. Remarkable, for an unrepresented litigant.

As he said in his first letter to me, these wins prove the case was unfounded - "[the cases] prove I am innocent apparently." But, he added, "I don't feel innocent."

The toll has been enormous:

"I am not sure what broke me in the end. Standing in court, shaking, facing a 20-year jail sentence, representing myself? Standing in front of 3 x judges in the NSW Court of Appeal? The weight of 3.5 years of unrelenting litigation? The hospitalisation due to stress? Running out of money and no longer being able to work? Uncontrollably crying for 2 days after I was found innocent? Living in my car for 12 months just to be able to represent myself in appellate courts?"

"I think I lost different parts of me along the journey and now no longer recognise the skydiving, international jet-setting playboy I used to be, because that man no longer exists."

This is the story we never hear - the tremendous cost to innocent men fighting false rape allegations, even when they're ultimately vindicated. The public narrative is entirely captured by persistent complaints about the justice system's treatment of rape victims. There's little tolerance for muddying the waters by looking at what the same system does to wrongly accused men.

Last year, a two-year inquiry run by the Australian Law Reform Commission (ALRC) found that the system "is not supporting those who have experienced sexual violence to seek justice, nor holding those who use sexual violence to account."

The reforms are already rolling out - new services, new powers, new pressure on every state to fall in line. All of it aimed at supporting survivors. None of it asking what it costs the men standing in the dock, whose right to a fair trial is quietly being worn away in the name of getting more convictions.

What no one talks about is the fact that our justice system is already failing accused men - and taxpayers are footing the bill. The proof is in the frequency of what are called costs certificates.

When a judge grants a costs certificate, it means one thing: a court has found that, on the evidence available at the time, the prosecution should never have gone ahead. The accused person's legal costs are then reimbursed - out of the public purse. Each certificate is an official admission that a man was put through the ordeal of a sexual assault trial the Crown should never have brought.

The latest available NSW figures, from 2022/23, show that a staggering 67% of all costs certificates in assault cases are now due to sexual assault matters. That's more than double just three years earlier, in 2019/20, when sex crimes accounted for a mere 28% of the total.

Costs certificates for assault matters are becoming rarer overall - prosecutors, it seems, are getting better at not bringing weak cases. Sexual offence matters are the exception.