Balancing the scales of justice

Has the pendulum of criminal law swung too far in favour of victims? In my view it has and the balance is now out of kilter.

There have been serious erosions in the position of a defendant in criminal proceeding - erosions in the scope of a cross-examination that is allowed, the ability to strenuously test issues of credibility, and to be able to lay a strong foundation in a committal proceeding.

Queensland is slowly following some of the roads travelled by other jurisdictions such as New South Wales and South Australia in adopting some of the limits that those states placed on a defendant in the criminal process.

While we are embracing some of these restrictions we are not taking the opportunity to grasp the safeguards that go with them. We are slowly letting the balance tilt too far. One of the most recent and dramatic examples of this is the limit placed upon an accused person to cross-examine certain classes of witnesses at a committal proceeding.

It is hard to seriously challenge a philosophy that seeks to protect particularly vulnerable individuals who have potentially been the victims of horrendous activity.

All rules generally need to have exceptions. The laws in other states, particularly New South Wales and South Australia, provide sufficient and adequate provisions for cross-examination, or at least a restrictive cross-examination, where in the circumstances of the relevant offence, it is warranted. These jurisdictions protect their vulnerable classes of witness but leave appropriate avenues available to protect the rights of an accused person to a fair process and ultimately to a fair trial. The balance has not been maintained in Queensland.

We have taken the restrictive elements of these jurisdictions but we have not captured the philosophy of the balance that is required. The exceptions to these restrictions limiting a cross-examination of a vulnerable witness enacted in our statutes are significantly more limited than those in other states, not only in their form but also in their practical application.

This may simply be a case of the relevant tribunals feeling their way through a new, and philosophically different, statutory regime, but it also has the effect of shifting the balance away from an accused person. A balance out of alignment in this way can only go towards the further watering down of an already diluted principle - the presumption of innocence.

In the past five years, we have taken significant legislative steps which have had the effect of making the criminal trial process more difficult, and more likely to result in an adverse result for an accused person. The powers of law enforcement authorities to search and seize have been dramatically widened:

• The application of the hearsay rule, particularly in sexual offences, has been diminished and diluted;
• the right to trial by jury becomes more limited every time Parliament sits;
• the ability of an accused to test the evidence of a complainant through cross-examination has become far more limited;
• the members of various classes that are “protected” or “special witnesses” have grown enormously; and
• the availability of a number of defences has become more limited and their application far more restrictively applied.

The majority of the changes that have occurred are based on politically popular principles.

Few want to extend or aggravate the suffering of a genuine victim and nobody genuinely wants to add to the damage that may have already taken place. The prevention of an accused personally cross-examining a complainant in a sexual offence seems sensible to most of us, a notion that a child should generally only be subject to cross-examination once is, in the ordinary courses of events, a reasonable one. However, even good and altruistic statutes can affect that balance of the process.

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.

Second, we have taken numerous steps in recent times to limit the ability of an accused person to attack the credit and character of a complainant or of other witnesses giving evidence in the process. Let’s balance that by allowing an accused person to call evidence of good character without the artificial restrictions that are currently imposed. If on the one hand we are going to limit, and some believe appropriately, an attack on character then we should balance that by allowing an accused person to lead evidence of good character in an unfettered way.

Third, we should reimburse the costs of a person acquitted of a criminal offence.

Explaining to a client the whole “social contract” theory after they have been acquitted, and why they cannot recover their costs, if not their reputation, and often their relationships, is the most hollow speech in the world. To them it just seems the ultimate insult and grossly unfair. They have done nothing wrong and have been dreadfully punished. Often the expenses they have been forced to incur have been ruinous, and they should be put back into the same position, at least financially, before the process started.

These are just three practical examples of things that could be done to go someway to realign the balance.

A victim is entitled to feel that they are being treated with dignity, respect and compassion. Many of the legislative changes that have occurred have gone someway to assist in this process. An accused person should also be in a position where they feel that they are being treated with dignity, respect and fairness.

We do not need to diminish those steps that have been taken to assist the victims of crime, what we do need to do is take positive and proactive steps to realign the balance.

The scales of justice illustrate my point. It’s all about the balance.