Banjo,

1 There is no complainant in a criminal trial. It is the state vs the defendant.

Secondly, if it was on an equal basis, a not guilty verdict would send the complainant to jail.

2 In both criminal and civil courts you cannot compel anyone to testify in a manner that can incriminate themselves. Again, it would have made bugger all difference in this case.

Equality in the eyes of the law would then have this applied to all criminal cases.

3 It would have certainly followed as night follows day.

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Dear Shadow Minister,

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You wrote :

1. « There is no complainant in a criminal trial. It is the state vs the defendant »

It is, indeed, “the state vs the defendant”, Shadow Minister, but there are a number of other people who play an active role in a criminal trial, such as the judge and jury, the complainant (also known as the “prosecuting witness” or the “accuser”), as well as the various lawyers and several others.

The Aust Encyclopedia of Law indicates the following definition of “complainant” :

« A person who begins a legal prosecution. For example, a person seeking a Peace & Good Behaviour Order, or a person making a complaint about criminal behaviour towards them. For example, a victim of assault »

If you care to read the transcript of Cardinal Pell’s appeal to the Victorian Supreme court, you will see that “choir boy A” (the accuser) is designated as the “complainant”. He was the key prosecuting witness in the jury trial on whose sole testimony Cardinal Pell was convicted.

He was far more active than Cardinal Pell (the defendant), himself – who did not utter a single word throughout the trial – to such an extent that it appeared that it was the complainant (choir boy A) who was on trial and not the defendant (Cardinal Pell).
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2. « if it was on an equal basis, a not guilty verdict would send the complainant to jail »

Not at all, Shadow Minister. A “not guilty” verdict simply means that the prosecution has not proven “beyond a reasonable doubt” (at least 95% certainty) that the accused is guilty as charged. It does not mean that he has been proven innocent. He is acquitted because he has not been proven guilty.

It cannot be inferred from his acquittal, as you state, that the complainant must be imprisoned because complainant and defendant must be treated on an equal footing. That simply does not make sense.

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(Continued …)

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(Continued …)

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3. « In both criminal and civil courts, you cannot compel anyone to testify in a manner that can incriminate themselves. Again, it would have made bugger all difference in this case »

The problem, Shadow Minister, is that our justice system is ineffective in dealing with sex crimes. It needs to be adapted to the specific nature of these “crimes against the person”, which are some of the most serious crimes in our criminal law.

For complainant and defendant to be treated on an equal footing and for justice to have any chance at all of elucidating the truth, there can be no “right to silence” for either party during the trial.

Prior to the trial, both parties should be required to cooperate with the police investigation. It should be left to the discretion of the judge, during the trial, to decide if it is appropriate that he instruct the jury of any adverse inference to be drawn from lack of cooperation of either of the parties.
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4. « Equality in the eyes of the law would then have this applied to all criminal cases »

I see no reason to apply these modifications to all criminal cases, as you suggest., Shadow Minister. Their justification resides solely in the unique, intimate nature of sex crimes, characterised by the severe psychological damage they cause to victims (often young children and other vulnerable people), the inevitably long reporting delays, the lack of material evidence and eye-witnesses, and the difficulty proving lack of consent.

Under the present justice system, sex offenders operate in quasi-legal impunity. The scales of justice are far too heavily weighted in their favour. The corrective measures I advocate are not aimed at inverting the current ingrown injustice but in weeding out the malignant factors that fuel it.

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So Banjo,

You are happy to send the complainant to rot in jail for 6 years for a not guilty verdict, being equal etc?

What I find truly bizarre is that someone can advocate that the very basis of criminal law as practised in most of the world can be ditched for one particular crime. It is ludicrous to the point of lunacy.

Banjo, the complainant makes a complaint to the police, who then lays charges against the defendant. The complainant may or may not be called as a witness for the prosecution or even for the defense.

In criminal trials it is the state against the defendant. Whereas in civil case the trial is between the complainant and the defendant with the state providing judgement on the merit of the cases..

In a civil case the onus is still on the complainant to prove his case against the defendant and if he fails to do so he is liable for all the costs of the defendant which can amount to $ms.

In a criminal trial, a complainant bears no risk unless he commits perjury and it can be proven and a guilty verdict often spells a cash bonanza in a following civil case. The defendant however, bears all the risk, ruin and jail time if he loses the case and a massive legal bill whether he loses or wins.

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Dear Shadow Minister,

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I think we have exhausted our arguments on this one. We are now turning in circles.

Thanks for your input, Shadow Minister.

Perhaps we shall have the opportunity of discussing some other topic of common interest here on OLO in the not too distant future.

All the best.

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