Victims Of The Law

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On Wednesday, the High Court of Australia handed down its judgment in the case of Roseanne Beckett v NSW.

It held that a person does not need to first prove their innocence – an irrelevant and onerous reversal of the burden of proof – before being able to sue the state for malicious prosecution.

The claim that innocence had to be established always looked like grasping at straws. The state had raised the 1924 case of Davis v Gell  which had involved two neighbouring farmers, one of whom accused the other of poisoning maize which was fed to cattle. A prosecution against the alleged poisoner was halted by the crown. The alleged poisoner then sued his neighbour for the malicious prosecution which he claimed he had endured.

Those familiar with the law would appreciate that precedents (unlike wine) seldom improve with age. Beckett’s case was far distant from that of Davis in both time and issues involved. The High Court was very clear in its rejection of it. It not only said that Davis was an inappropriate precedent, it went further, and formally overruled it.

Beckett can now return to the task of trying to hold people to account for her wrongful conviction and imprisonment for the best part of 10 years.

It doesn’t need to be so difficult. This particular odyssey has taken around three years to resolve. Beckett’s struggle with the legal system has been going on for the better part of 25 years.

The underlying issue is that the Court of Appeal, in overturning Beckett’s convictions, accepted that an investigator involved in the case had engaged in improper use of office, abuse of power, had pressured witnesses into giving perjured evidence and was motivated by malice. The case was initially referred to the Court of Appeal in 2001 and it issued its findings in 2005. The factual and legal issues are set out in the Petition of Roseanne Beckett available here.

Unfortunately, the appeal court overturned six of the eight convictions and left a further two convictions standing. This involved a misapplication of the relevant legal principles and has yet to be corrected. Where fundamental error has occurred at trial, all of the convictions should be set aside, and then there can be a retrial where it is thought there is sufficient evidence for it.

However, error at trial and on appeal in New South Wales is not as uncommon as we would like to think. This current appeal by Beckett to the High Court shows that the trial court and the appeal court in her action for compensation also failed to apply the law correctly.

In the recent case of Gordon Wood, the appeal court judgment found that error at trial had occurred in virtually every aspect of it. Wood had been found guilty of murder by throwing his fiancée off The Gap in Sydney. The appeal court judgment is available here.

Evidence by police and other witnesses was found to be sometimes false and sometimes unreliable (just as it had in the Beckett case). An expert witness had given extensive “scientific” evidence about how the crime may have occurred. But the Court of Appeal held that it was not relevant to the circumstances of Wood’s case (just as the Davis v Gell case was not relevant to the Beckett case). All of the experiments had been conducted with compliant police cadets. As the Court of Appeal said, if someone was about to be thrown off a cliff, they would not be compliant.

In Wood’s case, the Court of Appeal judge spent a good deal of time setting out the duties of a prosecutor. These principles are well established across all common law jurisdictions but seem to have been neglected in these cases in NSW. The prosecutor must act as a “minister of justice”; not going “all out” to secure a conviction, but presenting the evidence in a fair and balanced manner.

The judge also pointed out in Wood's case that there had been basic failures in this duty (just as there had in the Beckett case). The Wood prosecutor had “reversed the onus of proof”. He did this by asking a series of more than 50 questions, and suggesting to the jury that if they did not get satisfactory answers to them then it might reflect poorly on Wood’s defence. The judge said, on many occasions, that the prosecution case should be based upon proper evidence, and not upon speculation by the prosecutor.

When it comes to the question of compensation, it appears that Wood might well face a similar merry-go-round to that being experienced by Beckett. Already the Legal Services Commission in NSW has presented Wood with a request for $100,000 for partial reimbursement of the cost of his appeal. They did this because they thought that he might gain some income from television interviews.

We must bear in mind that the High Court in Beckett has just said that a prosecution ending in acquittal creates an irrebuttable presumption of innocence. In law, Wood was acquitted, which means that he is and always was innocent of any murder.

It is also clear, according to the appeal court judge, that the police, prosecution, expert witness, and judge had each failed in some respect in their conduct at Wood’s trial. This should give rise to a presumption that he is entitled to compensation for his wrongful conviction and imprisonment.

Regrettably, in Australia, there are no proper procedures by which this can be achieved. One either has to seek an ex-gratia payment (a type of voluntary “apology” payment from the government) — or one has to do what Beckett is doing and sue for it.

What is clear is that the cases of Beckett and Wood have both exposed serious and systemic error in the prosecutions and appeals systems in New South Wales.

That Wood should have to reimburse the state of New South Wales for the expenses which it has incurred in identifying serious errors in his case is not consistent with their model litigant policies.

In New South Wales the policy states:

The Model Litigant Policy is designed to provide guidelines for best practice for government agencies in civil litigation matters. It is founded upon the concepts of behaving ethically, fairly and honestly to model best practice in litigation. Under the policy, government agencies are required to:

  • Deal with claims promptly
  • Not take advantage of a claimant who lacks the resources to litigate a legitimate claim
  • Pay legitimate claims
  • Avoid litigation
  • Keep costs to a minimum, and
  • Apologise where the State has acted inappropriately.

It would, of course, be an abuse of process if the state of NSW was trying to ensure that Wood remained impecunious so that he could not afford to sue for compensation.

The honourable course of action would be to enter into meaningful discussions with both Beckett and Wood to resolve the question of compensation without further litigation. There should then be an inquiry conducted by a person who is not a judge in NSW to determine how the systemic errors which have arisen are to be dealt with. Without that they are destined to be repeated and continue to inflict untold and unwarranted damage upon innocent citizens of New South Wales.

New Matilda

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