Andrew L. Urban
There should be an equivalent of the first principle of the doctors’ Hippocratic Oath for lawyers and judges – the entire legal system in fact: ‘first, do no harm.’ But there isn’t. For example, in the case of R v RB, NSW District Court judge Sean Grant explained that section 293 of the Criminal Procedure Act prevented a jury from being told that a complainant in a sexual assault prosecution was a compulsive liar.
“It prevents the accused from placing before the jury relevant evidence (her past fabrications) which is capable of going directly to an issue in the trial, namely the honesty and reliability of the complainant. It prevents the accused from showing the complainant to be a compulsive false accuser of sexual misconduct on the part of others,” his judgment says.
Given that the credibility of such a complainant is the only thing that stands between guilty and not guilty, that section of the Act certainly does harm. “The statute occasions significant unfairness to the accused. The unfairness is real and not illusory,” the judge wrote. Indeed, accusations of sexual assault can become dangerous weapons …
Optimists may hope that the Australian Law Reform Commission’s forthcoming report, due to be handed to Attorney General Mark Dreyfus on January 22, 2025, will correct that sort of legal idiocy.
“The case for reform in the way the justice system deals with sexual assault has never been greater. In a perfect world, the commission’s report would provide a string of ideas on how to restore public confidence in the fairness and rigour of this body of law after years of scandal,” writes Chris Merritt, Vice President of the Rule of Law Institute.
During Cardinal Pell’s successful appeal to the High Court, it became public knowledge that Victorian law had prevented Pell’s lawyers from obtaining records outlining the complainant’s psychological problems. The flawed conviction of the late cardinal had turned entirely on the supposed credibility of the complainant.
The commission has an opportunity, remarks Merritt, to begin the process of restoring public confidence in the way the justice system deals with these matters.
“For that to happen, it will need to follow the lead of the judges and adopt an even-handed approach adhering to the ideal that the courts are there to deliver justice for all, defendants as well as complainants. This inquiry, however, has a much narrower focus. Its terms of reference instruct the commission to “seek to promote and consider just outcomes for people who have experienced sexual violence, including minimising re-traumatisation”.
This does not augur well for harm minimisation by the law.
The commission’s report,” says Merritt, “will be judged a success if it provides a credible path for reform – not by whether it rigs the scales of justice.”
Totally agree with you Andrew. A former magistrate has been lingering in a South Australian prison since 2001, found guilty of historic sexual abuse charges against young boys. What the jury (and the public) were not told is the fact that his main accuser was a career criminal. His record of offenses were eight pages long. He was especially flown from an interstate prison to testify against the magistrate. (While out of jail for his short time of freedom, he stole a $17 000 motor car).
The jury knew none of this, nor were they allowed to see a document, where the same accuser had some years earlier stated that he had had a normal childhood and had never been abused as a child. Aged 19, he suddenly remembered the abuse …?
To add insult to injury, the media placed a black ban on that case (nothing about his fate since 2019 and a former South South Australian Attorney General managed to
pass a law to keep the magistrate behind bars for good.
Justice is begging!
Hi Andrew. Best wishes to you and your staff for 2025.
Interesting point you raise about “ The Criminal Procedures Act” and section 293 in NSW, more-so about the forthcoming review but you know what-the legal system in Australia may be best served whenever the “Australian Law Reform Commission” decides that to restore public confidence in the law it determines that State and Territory laws reflect similar rights for every citizen of Australia, not just which State or Territory you reside or are convicted in.
The same goes for the Australian Education system and various other pieces of legislature that divides us as a nation.
Okay if you’re a bureaucratic ‘nerd’ but even then, some of those become unstuck when they or their peers come up against unjust laws and systems, some of them their own doing!
It is often said the law is asinine and in the point you make about withholding crucial evidence from a jury it would appear that seeking justice is the asinine thing to do.
One country, one set of laws and let’s dismantle complicated boundary differences A.G.
Everyone seems to miss the point ., it seems to me, that the court is determined to maintain convictions ! That is supported by the fact that leave to appeal has a different outcome in different courts. The high court purports that it is only there to discover legal errors or perhaps new evidence. The Pell case tells you that’s not true. . Under pressure they reviewed the evidence. ! Funny that , ! Pv
Andrew . Is it fair comment that if Cardinal Pell was Derrick Bromley he’d do 40 years ?
Well Well. ! Guess what Andrew , my Qc went to the high court and was refused leave to appeal as he said there was an illegal use of tendency evidence against me. That was David Jackson Qc . As you know the problems with my case as submitted to the AG for a review ., filled some 140 pages of anomalies and distortions by my accuser ,But , we too were not permitted to see a medical file which at a
minimum proved that she was in hospital with severe psychological issues, which file would have assisted her if records showed that I was the reason for her mental problems. Fighting tooth and nail to deny us access to the file surely is a statement , that whatever was in her medical file , would have won the case for me . The second matter which was not raised was that at school my accuser was referred to as the big fibber by fellow students. None of whom were called. Undoing a wrongful conviction with so much to prove that the accusation was false should not be so hard. Exemplary damages of $100m and not one or two $million might just give Justice the boost it needs. A jury in the US gave $100m for accountable damages and a further $400m to make an example of a false accuser with the capacity to pay. The Nsw police and DPP and the state of Nsw have such capacity and responsibility . Pv