FORMALITIES TRUMP JUSTICE IN RAPE CASE

The judge who threw out the verdict on the basis of a technicality is the one most in need of censure. He acted like a robot instead of showing proper judicial balance. But the prospect of rich fees for his fellow lawyers is obvious. No wonder the lawyers want to put the victim through it all again. Decency is lost where sharks are concerned.

The gang rape case unravelled after it was revealed two rogue jurors had made an unauthorised visit to a Sydney park. Sitting on the gang rape trial of Bilal and Mohammed Skaf, the foreman and another juror wanted to check lighting conditions at Greenacre's Gosling Park, where the brothers allegedly raped a 16-year-old girl in August 2000. But jurors are banned from making independent investigations and their visit - the evening before the jury delivered its guilty verdict - eventually resulted in the brothers' convictions being overturned on appeal.

Bilal Skaf, now 23, was jailed for a record 55 years for a string of rapes, including that of the 16-year-old, known as Ms D. Mohammed Skaf, 21, was jailed for up to 32 years. But nine years and eight years were shaved off their respective overall sentences after their convictions for the Gosling Park rape were scrapped. Sentences for other rapes were not affected. The Skafs were to face a retrial later this month, but it was abandoned on Thursday because Ms D was too traumatised to endure another court ordeal.

The Director of Public Prosecutions, Nicholas Cowdery, said there was no hope of obtaining a conviction without her evidence and there was "potential for serious psychological harm" if she were forced to testify again.

But the NSW government is adamant the case will not end there. It is planning legislative changes that could allow the Skafs to be retried. Under current law, transcripts can be used in court if a witness has died, was overseas or was too ill to attend. The government wants to expand the legislation to allow the use of transcript evidence in retrials for sexual assault, in cases where a witness is too psychologically traumatised to give evidence again. Premier Bob Carr denies the planned changes are a knee-jerk reaction to the Skaf case, although the new laws could be applied to it. But even without a retrial, he said: "The Skafs are going nowhere". "They're still facing 46 and 24 years respectively in tough prison conditions," Mr Carr said.

However, the proposed changes have been criticised by civil libertarians and lawyers. NSW Council for Civil Liberties president, Cameron Murphy, said the amendments were "likely to result in yet another unfair trial". "If you're going to have a fresh trial, it needs to be a fresh trial, not a trial where you're using the same evidence as in the past trial," he said. The changes could turn proceedings into a "circus", he said, with a further round of appeals and quashed convictions. "It may well be that the government is just setting up the process for this (case) to fail again," Mr Murphy said.

NSW Law Society president, John McIntyre, said the proposed use of written transcripts in retrials was "fraught with danger and could have the unintended consequence of actually hampering a successful prosecution". Transcripts did not effectively convey the emotional impact of evidence, he said. On the other hand, transcripts could also disadvantage the defence, as the accused was entitled to have witnesses' credibility assessed by the jury. "Ideally, when you're on trial for such a serious crime as sexual assault and you're liable to life imprisonment, the accused is entitled to the fairest trial," Mr McIntyre said. "The fairest trial obviously involves, unfortunately, the victim giving evidence ... in person, in front of the jury." Mr McIntyre said it was inappropriate to use written transcripts and suggested evidence in sexual assault trials could be videotaped to avoid future problems.

But NSW Rape Crisis Centre manager Karen Willis said she failed to see why a retrial was necessary in the Skaf case. The alleged victim's evidence had already been tested in court, she said. "I don't see why the whole lot has to be thrown out and started again ... you throw the baby out with the bath water." It was understandable Ms D did not feel able to give evidence again, Ms Willis said. "She's quite young, and reliving that experience (of assault) in such phenomenal detail in that court environment is always really difficult," she said. "Five years after the event she may feel like she's starting to get her life back on track. "To then be put back through all of that again, she'd just be saying, 'There's too much pain involved and I can't do it.'"

(From here)


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