The Sexual Assault Reform Strategy report for the Department of Justice reflects that there has been a failure to grapple with some hard issues about sexual offending. This has resulted in the decline in success of prosecutions.
Peter Munro writes about this in his article featured in The Age on Sunday 17th April 2011.
The report states that, according to the Office of Public Prosecutions, sexual assault cases resulting in a guilty outcome, either through a guilty plea or conviction, fell to 64% in 2009-10, after a peak of 78% during the period of 2006-7. The report also evaluates that although a higher proportion of cases are progressing to the County Court compared to ten years ago, and presently a jury is more likely to convict, the actual amount of guilty pleas has declined and a higher proportion of these cases actually result in the prosecution withdrawing.
There has been an enormous amount of change in prosecution of sex cases and many defence lawyers discussed the above as being fairly inevitable.
From a defence perspective, some major themes still keep arising;
1. The applauding of conviction rates
The aim is not to convict everyone. The system does not work better if more people are convicted. The presumption of innocence seems to be flying out the window with sex cases and there seems instead to be a presumption that a charge is evidence enough that something happened.
Those of us who are experienced in practising in this area do not believe a witness simply because they have told the Police something happened. We have all seen complainants tell untruths or just get things completely wrong. Anyone who participates in the justice system who does not admit that is dishonest.
2. No longer worrying about the innocent person being gaoled.
It is a very long time since I have heard anyone say that it is better that 9 guilty people go free if it means an innocent person is not convicted. From my view the pendulum has swung to the point that most seem willing to sacrifice the occasional innocent person.
There has been an erosion of the rights of defendants because of a perception that complainants are being victimised by the system. Clearly more innocent people get locked up than used to.
One example: Prior to changes to access to complainant’s psychological files, we had a case where there was a notation that the complainant “was not sure whether the incident had actually happened”. This was 5 days after it happened in a fairly normal setting. She had been adamant when giving evidence that she had no doubt. Should we allow a person to be convicted without access to that evidence?
Now, in all likelihood we would not be able to get within a mile of that material under the legislative changes that have taken place. Is that fair to the defendant? Should we lock the defendant up because we are worried someone else might misuse the right to subpoena documents?
3. Prosecuting unmeritorious cases
The Office of Public Prosecutions shows little to no discretion in prosecuting cases. The discretion seems to have declined in recent years as the media have continued populist campaigns about increasing sentences and conviction rates.
Matters are being prosecuted which would not have been 5 years ago. We all know it is true.
Take a case where there is evidence of the following;
1. a written retraction with the witness having apologised for having made a false accusation. Saying that she did not know how to stop what she had started.
2. the witness goes to the Police Station and signs a statement that they do not want the case to go ahead.
3. the parties have re-commenced a sexual relationship.
However in that, real, situation should the matter be going before a jury? Definitely not, it does not help anyone.
4. Baying for blood – longer sentences
Longer sentences mean more contested jury trials. Historic sex trials that carry gaol terms definitely mean more contested jury trials.
There are two underlying problem with long sentences. The first is that I have never seen anything that shows that they work.
If a person is guilty of a sex offence they are often a very troubled person. Put them in the brutalizing environment of prison for a long time and they are released in no better condition to rejoin society.
My great despair with those who advocate longer sentences if that I do not believe we are protecting the community by the way we deal with sex offenders. They are not improved by prison – no one even pretends that anymore. Saying there was a serious attempt at rehabilitation in prison is something that would get most of a room full of lawyers laughing in disbelief.
The second problem with long sentences is they discourage people settling their cases.
It is easy to understand why clients would say “Why bother if I am going to goal for 7 years?”
Even in matters that happen 40 years ago when the defendant was a teenager may well carry gaol. You would be brave to telll your client otherwise.
5. The sex offender registry
Mandatory inclusion on the sex offenders register is a similar issue. A person who is not going to get prison for some relatively minor offending that occurred 30 years ago is going to be less likely to plead guilty because of the register. If they will have say 15 years or life on the sex register they will fight the charges simply to avoid that outcome.
When the Courts have no discretion to decide how long someone should be listed, common sense flies out the window.
There are people who should be on the Register. But the Register is a blunt tool that is serving noone well.
6. Restorative practises
We are all members of the community and are aware of the horror of sexual crimes, particularly against children.
I have spoken with a lot of victims and have discussed this with many Police Officers; what the complainant often wants is simply a public acknowledgement that wrong has been done and an acceptance of that by the offender. It might be a case where an uncle touchs his niece on the breast 20 years ago. The niece does not want to have a jury trial on the issue. The uncle certainly doesn’t. But the system does not encompass a way of dealing with these sorts of cases outside the Court system.
The politicians need to have a look at ways of dealing with cases outside of the judicial system. There need to be discussions about turning the tide on punitive sentencing.
The victim deserves better treatment than they are getting but it is hard to imagine politicians being willing to grasp that the way to decrease crime and make a better community involves reducing sentencing practises.
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