“Prosecutors are accountable to no one for their decision to prosecute or not prosecute. They do not give reasons. They cannot be compelled to explain. That is the settled law. It needs to change,” writes legal columnist HUGH SELBY. 

THIS is not “A Tale of Two Cities”, but it is a cautionary tale about the dangers of too readily following cacophonous hysteria rather than the path of incremental reform.

Madame Defarge and her hissing sisters are mightily pissed off, as there was no tumbril after the first trial, and none is waiting in the wings.

Alas, the sisterhood’s court has lost its vociferous star witness to a quiet, caring hospital.

The “once-upon-a-time” accused – he whose head they wanted on a pike as a warning to all menfolk – retains his innocence.

The much seen and heard prosecutor has declaimed the complainant’s courage, steadfastness, sincerity – done all that he could, and more, to encourage the faithful to believe that justice has not been done – but that it was not his fault, not the complainant’s fault, but just an overlooked glitch in the law.

Phooey!

This was never a case with “reasonable” prospects of success. It was “word against word”, with a complainant that failed to go to the sexual assault centre, less than 10 minutes from Parliament House, with no forensic evidence to support her claims, a lot of delay on her part and a strong denial on his part.

Fact finders in our criminal justice system work with facts proved by the prosecution, not with the notion that if a woman shouts rape that the onus is on the male accused to disprove it.

The glaring problem in this case (already known to many experienced defence counsel) is that prosecutors are accountable to no one for their decision to prosecute or not prosecute. They do not give reasons. They cannot be compelled to explain. That is the settled law. It needs to change.

Our prosecutor presumably explained his decision not to proceed at Friday’s secret hearing. Why was it secret? What was done beyond advising the court that the case would not go ahead?

Given the lead up to Friday’s announcement, along with the prosecutor’s gushing support for the complainant, we can assume that if the prosecution had been able to keep the complainant away from further questioning, then there would have been a second trial, and then another one if required. Ah, you didn’t know that there can be a series of retrials? Well, now you know. Absent an acquittal, the prosecution train drives forward until it secures a conviction (that survives any appeal) or derails – as has happened in this case.

The present problem of the complainant’s illness is not, of itself, a reason to have no trial. It is a reason not to have a trial now, or for some months, or even a year or so.

The compelling reason not to have a trial now, or in the future, is that because the complainant would have to give evidence again, she would be cross-examined a second time. It didn’t go well the first time (we know that because one or more jurors, possibly 11 of them, refused to convict) and the second time would do a lot more damage to the prosecution case.

Since these claims of rape were publicised, the hapless accused has been ensnared in nasty rumours about his dealings with women. 

One of the changes to criminal law practice this past decade has been the ease with which prosecutors can bring before the fact finder “allegations” of past conduct by an accused that bolster the argument that the accused has a tendency to behave in a particular manner. The “tendency” to permit these allegations has expanded in sync with the mood of “correct thinking”.

Who am I to oppose it? After all, I am aware of a tendency in this shining prosecutor to avoid dispassionately assessing “reasonable prospects of success”. His response to a Supreme Court judge’s admonition “Don’t come back” for a retrial in another matter was to quickly trumpet that there would be a retrial.

When he was made aware, between the end of that trial and the retrial, of compelling evidence that the complainant selectively deleted texts on her phone (that she volunteered to police), those texts showing her complaint to be a fabrication, his response was to oppose that complainant being recalled for cross-examination at the retrial. 

The victim in that saga – acquitted at the retrial – was the accused and his family, not the complainant.

The law has to change. It isn’t fit for purpose. If complainants (be they saints or frauds) are only going to give evidence once, then the ability to have them recalled, even for limited purposes, must be increased.

More generally, because it applies to all cases, the decision to go to trial or not must be made as reviewable as other administrative decisions. 

If the courts don’t want to determine such applications, then let the administrative tribunal do it: a bench of three made up of a presidential member, a nominee of the Bar Association and the Law Society, and a community member randomly selected from a panel list. 

Because it’s near Christmas, a time for healing, let us rejoice that “that complainant” and “that accused” are free.

Hugh Selby is a recently retired barrister who enjoyed appearing in criminal jury trials and teaching about them.

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