Phelps, Greg --- "President's page: When the accused becomes the victim" [2015] PrecedentAULA 55; (2015) 130 Precedent 3

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WHEN THE ACCUSED BECOMES THE VICTIM

By Greg Phelps

This edition of Precedent covers the subject of intentional torts. Recently in NSW, Justice Ian Harrison awarded Roseanne Beckett $2.3m plus costs following a long and protracted history in the criminal system including Ms Beckett spending ten years in jail. The intentional tort claimed in her case was that of malicious prosecution. Falsely accused of trying to poison her husband in 1989, she had endured a prolonged prosecution by a particular police officer with a chequered record.

As she stood on the steps of the court and thanked the good judge, Ms Beckett did not appear or act like a winner. It had been exactly 26 years since the day she was (wrongfully) arrested. It was apparent that the accused was very much the victim. Ms Beckett was arrested at 42 years of age and, as a 68 year old on the day of the award of damages, spoke of separation from her home and family, lost liberty, troubled sleep and a nightmare that had engulfed more than half her adult life. The NSW DPP had not covered itself in glory and had fought Ms Beckett all the way to the High Court.

It is an unavoidable fact of our criminal law system that, at times, citizens are falsely accused and wrongfully prosecuted. Not all – in fact, not many – such cases have a day of clear redemption in the way of Ms Beckett. Her case demonstrates both how tragic the results may be, and that an ultimate solution by a claim in tort may be available.

While modern measures improving the rights of victims of crime are warranted and should go further, the rights of the accused must also be maintained and enhanced. New laws protecting the victim’s identity and right to compensation (albeit still a pittance in many cases) are welcome, but we must be on guard for their impact on the rights of the accused, particularly those who are innocent and subjected to unfair process. There is a heightened responsibility for the Crown to serve the interests of justice.

I recently represented a client in the Northern Territory who was falsely accused of interfering with children. The jury trial showed that the complainants lied, the police interview was defective and the investigation lacked rigour. After a seven-day trial, the jury took less than 20 minutes to acquit. The accused simply did not deserve to be the subject of prosecution; he had done nothing; he is a man of good character. The defence made representations to the Crown throughout but it seems policy (of not withdrawing such charges) won out over DPP guidelines and the trial went on.

Was justice served? On discharge by the judge – a year after his arrest including two days on remand – the accused had lost weight to the point of looking ill, he had spent a house-deposit on his defence, he had lost contracts in his small business, his reputation was trashed and his family had suffered enormously. There are no prospects for costs on indictment in the NT or generally. The hurdles for a claim of malicious prosecution are arguably too high in this instance and, in any event, personal and financial resources are exhausted. Throughout his saga, it was apparent the only true victim in this matter was the accused. His life has been irrevocably changed. He is fortunate to be supported by good friends – others do not have even that.

Occasionally, entirely innocent people face criminal charges. The cost and the strain can cause life-changing hardship. It seems a continuation of the injustice that, as in the case of Ms Beckett, a protracted civil suit is required in addition to all else to extract a measure of restitution. There rests with the Crown an obligation to get it right. Costs regimes need to be addressed in our criminal law system. The injustice of an unfair prosecution could happen to any of us.

Victim protection is required for the falsely accused. There is a gross defect in a criminal law process that creates victims and it takes a protracted civil claim in intentional torts to claw back only a partial but hard-fought remedy.

Greg Phelps is a Partner with Ward Keller in Darwin. EMAIL [e-mail].