There’s no right to a speedy trial in Australia. Nevertheless, if you were an honest complainant in a rape matter, or an accused wrongly charged, how would you feel about your life being put on hold for two years? HUGH SELBY says there are better, faster ways of handling sexual assault claims. 

BEFORE reading this piece, let Bob Dylan set the mood with his “The Times They Are A-Changin’”. Follow that with John Nemeth singing “If it Ain’t Broke, Don’t Fix It”  . Put them on repeat and be grateful for their uplifting contribution to your day.

Why? Because if this column doesn’t cause you to wonder about certain things being broke in our criminal law, and how they might be fixed, then, maybe, just maybe, their lyrics and their music will succeed where these words have failed.

The numbers don’t lie

We start with a few numbers, nothing complicated, but worrisome, that you need to chew on – to get them embedded in your reasoning before you react to what follows.

These are the numbers that tell us what happened in the NSW District Courts for the financial year 2022/2023. Why NSW and not ACT? Two reasons: first, because the bigger population and larger numbers of fellow Australians better shows the pressures on the criminal justice system and those caught within it, be that as complainant, defendant, lawyer, juror or judge. Second, because if there are up to date ACT figures, they are well hidden. 

I am drawing figures from the statistics presented by the highly regarded NSW Bureau of Crime Statistics and Research for the financial year 2022/23.

You can find their tables, covering each year from 2018 here. The NSW District Court which handles most serious criminal matters (but not murder or terrorism) had 694 defended matters before either juries or judge sitting alone. For the acquittals, the time from arrest to “you can go home” was about 22 months. The acquittal rate is around 40 per cent . For those found guilty at trial and then being sentenced, the time was around 2 years and 4 months. (See tables 3a and 6)

For sexual assault there were 815 persons charged, of whom 501, about 61 per cent , were convicted. (See table 2)

In the ACT, the Justice and Community Safety people publish the “Criminal Justice Statistical Profile”. The stated purpose is: “The profile provides government, community agencies and the public data on varying levels of crime in the ACT and criminal justice system response to crime”. That’s marvellous. I’d like to share the figures with you. I can’t. The website says it is compiled twice a year but the most recent one listed on the website is June 2019 (sic).

In quiet desperation I looked for other data sources. The ACT Supreme Court’s Annual review for 2020/21 – that being the latest on the Court’s website – includes the following data for not completed criminal matters in that court: 76 per cent  had then taken less than one year (what numbers then spilled over into a second year is unknown); 21 per cent were between 1 and 2 years; 3 per cent were over two years. No reason for joy in those figures, either.

For the purposes of this article, what’s important is that for both honest complainants and those acquitted this waiting period is a protracted, lived nightmare. It forces both groups (and those close to them) to live tormented lives, month after month for around two years. They cannot move on with their lives because the trial outcome dictates their future. Everything is “suspended”.

There is no right to a speedy trial in Australia. Nevertheless, if you were an honest complainant in a rape matter, or an accused wrongly charged, how would you feel about your life being put on hold for two years? Job retention, promotion, moving jobs, keeping friends and relationships, starting relationships are all adversely affected. How would you feel if it was your friend or relative in either of those groups?

We all know that such long waits are unacceptable. The excuses don’t change the reality: this is an unjust system. 

Let’s rethink what outcomes are desirable

If the time between charge and trial was a maximum of six months then we could think the process was “just”.

However, apart from the delays, the criminal prosecution approach has other problems that adversely affect both the honest complainant alleging a sexual assault and the community:

• The burden of proof is the criminal standard of “beyond reasonable doubt” and the accused has a right to say nothing; 
• The financial costs to us of the criminal trial and appeal process is high, as are the costs paid by us for any sentence given to a convicted bad actor; and,
• The complainant can hope only for delayed vindication, possibly revenge if the “bad actor” is convicted, and a small amount of state-paid criminal injuries compensation. 

Given those obstacles, why do we maintain an approach that entails that honest complainants and innocent accused are subjected to unnecessary stress, delays, and cost?

We might also ask how the prison terms of many of those convicted beneficially affect their victims, the prisoners’ families, the community, and the prisoner? Is this justice? Apart from punishment, where is the evidence that incarceration deters others or rehabilitates?

Recognising that there are sexual assaults for which there must be a criminal sanction approach (as to which see below), is there a response that is quicker, easier to prove, making the bad actor shoulder responsibility, satisfying to the complainant and cheaper to the community, for many of those matters that now clog prosecution offices and the courts?

Share the gain and the pain

Would a therapeutic and compensatory model be better in many cases than the state-managed punishment model we now impose on all cases? 

In such a model:

• The bad actor pays their victim; 
• Behavioural change learning can take place in a community setting;
• The bad actor can be employed. If so, they contribute to the community and compensate the victim, instead of being a cost burden as a prisoner for which we pay; 
• Complainants are better and sooner heard, and have more chance of success with the standard of proof being the lower “balance of probabilities”; and,
• Complainants are giving their evidence in a less formal setting than a criminal trial courtroom;

Civil claims, seeking money compensation for sexual assault exist, but are rarely noted. An example is where one or more complainants allege that they were sexually harassed by the defendant. These allegations could lead to criminal charges. Instead, they are resolved by civil claims that are settled on terms not to be disclosed.

To change the stock-standard response to allegations of unwanted sex, a statutory compensation scheme is needed. Such a scheme will make the default response to many alleged rapes a civil claim for monetary compensation, but set out when a criminal prosecution is the appropriate path.

For example, when there is a public safety issue as happens with: repeated bad conduct (such as grooming, or more than one victim); gang assault; physical injury; or, associated with another crime – such as abduction.

The elements of the claim are that: 

• the defendant engaged in sexual intercourse with the claimant;
• when the claimant by words and/or conduct had indicated to the defendant that they did not, or could not, agree to sexual intercourse.

This is simpler, cheaper and quicker than the claims that have, and are being made, in the courts against various institutions found to have breached their duty of care by permitting their clergy, teachers, coaches, carers to rape those in their care.

There should be a short time period within which a claim can be made: for example, in the case of adults, within one year of the claimed event. For claims arising during minority then before the 19th birthday. 

These claims should be possible after any criminal cases are finalised. The fact of the conviction should be conclusive as to liability. The only task then before the hearing body is how much is to be paid to the claimant.

Where the criminal case ends in an acquittal or no result then the complainant’s audio visual recorded evidence can be their evidence for the claim, supplemented as necessary.

The hearing body will have a discretion, when shown reasonable reasons for the delay, such as recovery from compromised physical or mental health, coercion to stay silent, to permit applications outside the usual, short period.

The specialist sexual assault police investigation units will need some training, easily within their grasp, to direct cases to the civil scheme or criminal path.

The scheme, and other legislation dealing with evidence retention, will need to ensure that any police force has access to the case files, so that if a bad actor does it again, with a new complainant, and possibly in another part of Australia, that all the materials from the civil case and prior police inquiry will be available to the later investigation.

Where should these civil cases be handled? A tribunal, such as the ACAT (which already deals with motor accident injury claims) is appropriate. Appeals can be within ACAT, with only questions of law being referred to the Supreme Court’s Court of Appeal. 

Experts such as forensic medical staff, mental health specialists, rehabilitation specialists can give their primary evidence by way of a written report, with any questioning to be done on audio visual. There can be a panel of accredited experts called on by the Tribunal.

What amounts should be awarded? Any indicative amounts should reflect wide community consultation, following the community being given useful background information to guide them. 

The scheme should facilitate payment of any award by providing for payroll deductions, how an award is to be prioritised as a payment if the payer has family assets divided in a relationship breakdown, superannuation, or goes bankrupt. 

These payment issues raise matters of Commonwealth law. Given that the attorney general has given a reference to the Australian Law Reform Commission on sexual assault, there seems to be a willingness for the Commonwealth to work co-operatively with the states and territories.

In some places, if a public servant is sentenced to imprisonment for a criminal offence, then the government contributions to their superannuation plan are forfeit. A similar approach could be taken to these compensation awards: that the amount awarded or some portion of it can be taken from the accumulated superannuation account of the bad actor.

Criminal injuries compensation should not be paid if the claim is successful. If it has been paid before a successful claim being paid, then the criminal injuries compensation payment should be refunded to the state revenue.

What about the legal costs of the parties? Unlike the common arrangements in the courts where the loser pays around 60 per cent  of the winner’s legal costs, and in tribunal cases where typically each party pays its own legal costs, it may be appropriate in these cases that the loser pays at the indemnity rate (that is, close to 100 per cent of the winner’s legal costs) both to encourage quick settlement of sound claims and to discourage false claims.

It’s broke! Let’s fix it

Devising and piloting a better approach to the aftermath of unwanted sex is an issue where the ACT could lead the nation. Your insightful, considered comments are welcome. They may lead to this article being republished, improved with the benefits of your insights. Who knows, our elected members of the Legislative Assembly might then want to fix it, cos it’s broke.

If they don’t, some other politicians will – because the times, they are a-changin’.

Hugh Selby is a former barrister. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.