Difficulties of delivering justice
28.03.2008
(The actual publication date of this article written by me was in 1999. It is put at the head of this section to demonstrate how nothing has changed....Tony Koch.)
IN A judgment awarding compensation to a multiple rape victim on September 1, 1999, Supreme Court Justice Des Derrington made some rather strange comments _ strange in the context of hearing so much about the judiciary being ``in touch'' with the community.
In October, 1987, Derrington presided over the trial of five Aboriginal youths charged with the rape of a 21-year-old girl at Hopevale community, north of Cooktown. Three were convicted and Derrington commented in sentencing that the youths had not shown any signs of remorse.
Derrington sentenced one of the accused to seven years in jail, to be considered for parole after 2 1/2 years. The other two were sentenced to seven years to serve two, and five to serve two. In the intervening years, no one told this victim of her rights to compensation _ money which could help her escape the community if she so desired.
Evidence given to the compensation hearing was that she suffered distress and isolation because other community members resented her having been, as they perceived it, responsible for the men being sent to jail. It is not uncommon in such cases for indigenous women victims to be continually assaulted and forced, eventually, to flee the community.
As well, she was the victim of the Aboriginal and Torres Strait Island Legal Service policy of not funding any actions which pitted ``black against black''. Therefore no one represented her, until Brisbane solicitor Tony Bailey took up her case.
The woman was examined by leading Brisbane psychiatrist Dr Ian Curtis who wrote that she presented as a broken, inarticulate person who appeared to understand English, but preferred to use an interpreter. She spoke the local Guguyinmithirr language.
Derrington, in awarding a total $35,000 compensation, observed that the victim's affidavit ``is plainly not in the words of the applicant herself. The language used is that of the solicitor and totally incompatible with the description of the lady as revealed in the report by Dr Curtis.''
He then went on to speak of the ``concern'' of the court that the woman's precise language was not quoted, and repeated his criticism of solicitor Bailey, saying the claim the affidavit was as near as possible to what the woman said was ``manifestly untrue''.
One must wonder what planet Derrington comes from. What was his experience working among indigenous victims in remote parts of the state? Was he really saying the woman's statement should have been reprinted verbatim in Guguyinmithirr? Would he have better understood her real pain and suffering had that been the case?
Criticism is increasingly being levelled at the very few solicitors like Bailey who take on this work, representing the most underprivileged people in this country. The law does not allow courts to award costs in compensation matters, so they have to take a fee from the eventual award. That seems to be a matter of concern to some people _ including the judiciary _ who perhaps would prefer that Bailey and his ilk worked for nothing.
What nonsense. The situation regarding lack of representation of indigenous women and children was so serious last year that the Carpentaria Land Council entered into a contract with Bailey to represent the victims in that region _ on a no win/no fee basis. The council, headed by Murrandoo Yanner, put up $50,000 to get the ball rolling, with that figure to be repaid as each case was settled. The result has been that victims of crime on remote communities have now been able to access justice. But legal and welfare representatives continue to criticise a system that just looks like it might work.
Criticism of the type levelled by Derrington displays an appalling lack of understanding of the difficulties faced by all people in the delivery of justice in regions which do not boast the comforts of the city. Perhaps the answer to satisfy judicial pedantry would be to insist that all victims appear in court and give evidence. But who would pay the cost of flying this woman, for instance, from Hopevale to Brisbane? Of course it would be her solicitor, and eventually the cost would have to come from the miserable amount she was awarded.
One wonders why much supporting evidence is needed at all in such straightforward cases. At the original trial, medical evidence was presented, the victim gave evidence of the vicious assault and multiple rape, and the conviction was recorded. It is, of course, necessary to provide evidence of subsequent trauma, stress and mental anguish. Would any victim of a multiple rape not exhibit such symptoms?
It is a flawed system that does not allow courts to award reasonable costs in compensation matters.
However, that does not address the ``concerns'' expressed by Derrington regarding affidavits. Perhaps, to ensure that nothing was left to chance, when a victim was brought down to give evidence, she could be accompanied by an interpreter.
One day _ I hope it is soon _ someone will examine the issue of the delivery of justice on indigenous communities.
The study will reveal the ``deals'' done by the prosecution and defence to get an accused to plead guilty _ the wholesale plea-bargaining that ensures judges, police, lawyers and court staff are not kept for any longer than is absolutely necessary in these unwelcoming and uncomfortable places.
In the meantime, it is left to the Tony Baileys of the world to ensure that what little justice is available is actually delivered to those most deserving.
