The judgement is now out on the controversial decision of Queensland District Court judge Hugh Bottling to stop the coming trial of ‘Australian child sex offender’ (as his Wikipedia entry puts it) Dennis Ferguson for child sex offences. The fact that Ferguson is a prior offender is, of course, the problem for everyone.
For the court, the problem was that, given some extraordinary media coverage, public commentary and internet articles, the jury would inevitably know what Ferguson was and that at least some jurors would be unable ‘to bring the dispassionate judgment which the law requires to a consideration of the evidence.’ In Charter terms, if Ferguson was tried in Victoria, he would be denied this right:
24(1) A person charged with a criminal offence… has the right to have the charge… decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
But not having a trial is a problem for much of the Queensland public, who never thought Ferguson should have been released for his original sex offences in the first place, despite the small matter that his sentence for those offences had expired.
Legislation designed to deal with just this situation, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (which the High Court uncourageously upheld in Fardon v Attorney-General (Qld)  HCA 46), only applies to people who are still serving a sentence (presumably due to the Queensland government’s fear that allowing a person to be re-imprisoned wouldn’t have looked so good in the High Court, though I’m not sure they needed to worry.) But, alas, Ferguson’s release in January 2003 preceded (and, indeed caused) the passage of the new Act, which commenced in June 2003. Hence the convenience of the current charges against Ferguson for offences allegedly committed on November 2005, which have kept him inside on remand for two-and-a-half years. And the inconvenience of Bottling DCJ’s order, which not only prevented the trial from actually happening, but, more importantly, meant that Ferguson was back on the outside. The charges related to relatively mild conduct – touching the outside of two young girls’ clothes in their groin region – so, Ferguson would probably not have been sentenced to a prison for much longer than the time he had spent on remand. But even one day as a prisoner serving a sentence would be enough to bring him within the reach of the Dangerous Prisoners Act.
It’s against this unhappy background that Bottling DCJ’s judgement raises a big debate in Australian law (and, in particular, in some high profile current prosecutions, such as the coming trials of Jayant Patel and Tony Mokbel): is it ever appropriate to not try someone in the absence of misconduct by police, prosecutors or courts, or some other procedural defect like the absence of legal representation? The Australian common law rule is that a permanent stay of prosecution is only to be granted if other mechanisms – suppression, delay and directions – can’t do the trick. Crucially, the High Court has held that this means that a stay can only be given in ‘exceptional circumstances’. This is a funny kind of test, as irreparable unfairness is not necessarily something that is exceptional; the kind of widespread public knowledge of someone’s priors that occured in this case could – if the right website experiences one of those massive waves of popularity that characterises the internet – become quite common in rape cases. And it might also be a standard situation in other categories of high profile crimes, such as serial killing, terrorism or organised crime. Behind all the fear-mongering about Ferguson is the prospect that entire categories of crime could be unprosecutable. Are the problems of fighting these sorts of a crimes (and the specific costs to individuals of never having a trial) enough to justify a law that limits Charter s. 24(1)? I’ll pause here while most of the legal community screams abuse at the screen for a moment…
This post isn’t the occasion for a treatise on this tricky question, but I’ve long felt that this debate is obscured by repeated references to the absoluteness of the right to a fair trial. That’s because fairness is not an absolute question, but a relative one. Some trials are fairer than others. And a corollary of that is that the right to a fair trial can consist of at least two quite different things: a right to the fairest trial that the law can give you; and a right to a minimum standard of fairness. That latter issue is the one raised by Ferguson (and perhaps the other high profile cases, like Patel and Mokbel.) In my view, the crucial point is that there’s a question of judgment in relation to both standards, but particularly the second one, and there’s nothing magic or fundamental about where you draw each line. I’d like to think that avoiding miscarriages of justice is the crucial factor, but I don’t think it’s the only one: there’s also the questions of resources and the need to avoid the prospect that categories of crime are rendered unprosecutable. The familiar practice of appeal courts declaring that a trial below was either fair or unfair obscures this line-drawing and exercise of discretion and, I suspect, is behind the common statements of lawyers that fairness is something you can somehow measure in an absolute way.
Justice Bottling’s judgment, I think, correctly views the test as one that involves reference to concatenation of factors:
Bearing in mind the extraordinary nature of the public comment in this case, the fact that it is virtually entirely adverse to the accused, that it varies between rational statements and vitriolic attacks, that the press publicity has been compounded by film shown on television, and that the Crown case is so very weak, I have formed the view that the accused cannot receive a fair trial and that were the trial to proceed there would be a real prospect of a miscarriage of justice.
To me, it’s the last factor that is the stand-out one, though in my view it isn’t weakness as such that is the problem, but rather the nature of the reasoning that the jury would have to use to convict Ferguson. Here is some of Bottling DCJ’s summary of the evidence against Ferguson:
The only evidence which directly implicates the accused in the commission of an offence against K on the 9th of November, 2005 is the evidence of K. This is comprised of what she said in an interview with a Police Officer, Hayes, that interview having been recorded and tendered in the now familiar way, and her prerecorded evidence given before this court on the 1st of November, 2007. I was told that K was born on the 2nd of May 2000. She was thus about five and a half years old when the offence is alleged to have been committed.
So, a single witness case (although it also appears that another convicted sex offender, also apparently present at the scene, is also a witness, perhaps in relation to the other count. As an alleged accomplice, his account alone presumably could not sustain Ferguson’s conviction.) But that alone isn’t a problem. Rather, the problem is the nature of her evidence:
During the interview the child alleges that the accused did “something to me right here in my little bum” and points to her waist. She alleges (contrary to the Crown case) that she was in a room with a bed and a cot when she was dealt with. She says it was the accused’s friend who read to her, and later says that she was touched whilst being read to. She does not clarify, as it seems to me, how she was touched. K was not able in any satisfactory way to identify the accused when shown a photoboard containing his photograph along with others.
And that’s the evidence. Worse still, in her trial evidence, she said that it was the crown’s witness who touched her. And, according to Bottling DCJ, a lot of what K says in the police interview tape is too indistinct to make out, even though it appears to matter.
So, a tenuous case indeed and one that, I suspect, would never have been pressed but for the desire to lock away Ferguson. Judge Bottling might have made the whole affair easier by no-casing, but – doubtless worried about the precedent for many other child sexual abuse cases – he didn’t do that. Instead, he relied upon the combination of the inevitable impartiality of some jury members and what he called the weakness fo the Crown case. In this regard, I think he’s spot on. What’s crucial here is that a jury could only convict if they take a leap of faith about the trustworthiness of K’s claims. I’m quite comfortable with jurors being invited to take such a leap (appropriately instructed) in a trial where there’s no particular source of prejudice. But I don’t believe for a second that any juror – let alone all of them – would limit themselves to the question of the significance of the child’s testimony when they know about Ferguson’s past. Instead, they would surely just draw a conclusion from the mere fact that he was allegedly alone in a room with two five year-olds and a fellow sex offender. So, the issue really comes down to whether you think that mere fact is sufficient reason to convict someone of a criminal offence. I know what most people would say, of course, but I’m not with them on this one. I would, however, be willing to treat this fact as sufficient evidence to justify civil orders against Ferguson, if they had been available.
Anyway, the broader point I’m making here is that the crucial issue in stay cases is not just the external factors (like publicity) but the internal ones: the kind of reasoning jurors would have to do to convict. And that’s why I am outraged by the fact that Kathleen Folbigg is still convicted (given the coincidence reasoning the jury had to use, combined with the prejudicial information they had about there) but and outraged in the other direction by the view that watching a TV show can render a jury incapable of judging the validity of Evan Goussis’s alibi. ‘Prejudice’, that catch-all piece of lawyer jargon that contains little anlaysis but a lot of its own prejudice on debate, ought to be understood in terms of the particular sorts of reasoning a jury will need to engage in in order to satisfy the burden of proof. While Justice Bottling didn’t say that in so many words, the essence of his judgment is that jurors who know of Ferguson’s priors couldn’t reason dispationately about the vaguaries of a child’s confused evidence about a fairly vague offence. I think that’s the correct call.
[And, I should add, one that doesn’t rule out future prosecutions of Ferguson where the evidence is more straight-forward; indeed, although it might attract an abuse of process application, Ferguson may well still be able to be prosecuted for the current allegations if more evidence emerged, not that that seems likely.]