Australia: Ass of a law means the rights of rapists override those of their victims

Skillful playing on Western sensitivity about "racism": "We did not commit this crime. The crime was committed against us. The police set us up because we are Muslims, your honour." From the Sydney Morning Herald, with thanks to Ali Dashti:

'F---ing dickhead." When these words were interjected from the public gallery in the NSW Supreme Court on Thursday, April 22, there was a long moment of pregnant silence. Then the proceedings continued as if nothing had happened. It was as if there were a tacit agreement among most of those present that this was the truest observation made during the entire trial.

Justice Brian Sully had just sentenced four defendants, all brothers from Pakistan, to jail terms ranging from 10 to 22 years for gang rape, prompting the ringleader, known as MAK, to exclaim from the dock: "We did not commit this crime. The crime was committed against us. The police set us up because we are Muslims, your honour."

Which prompted "f---ing dickhead" from the public gallery. Fair comment. Throughout their trial, two of the brothers had spent much of their time laughing, gesticulating, holding up notes, mocking police, and brazenly trying to flirt with a young woman reporter covering the trial.

They had also conducted their own defence, waiving their right to counsel, claiming Australian lawyers were biased against Muslims.

This circus isn't over. It will resume this morning in the Court of Criminal Appeal when the two brothers, MAK and MSK, seek to have their conviction quashed. Given the track record of the NSW Criminal Court of Appeal this year, and its willingness to throw rape victim after rape victim to the wolves on flimsy technicalities, this odious appeal by these odious convicted rapists has a good chance.

The conduct of Justice Sully may ensure that the appeal succeeds, just as his conduct ensured that the two gang-rape victims had to endure two trials - when it was patently obvious that only one was required. Because the two victims have said they are unlikely to submit themselves to a third trial, if the appeal succeeds these convicted rapists could walk free.

God help us if that happens. It should come as no surprise then, that there will be demonstrators outside the court this morning in Queens Square. A couple of them will be state MPs. Another will be Karen Willis, the manager of NSW Rape Crisis Centre, who has become sickened at the treatment of rape victims by the legal system. "I think the way the criminal justice system treats women who make complaints of sexual assault is appalling," she told me. "The system intimidates, degrades and mistreats women who are brave enough to come forward. In fact it seems to me that it protects perpetrators."...

Today, MAK and MSK will seek to have their trial overturned. To quote from their handwritten application: "The trial miscarried by virtue of the fact that the appellant was deprived of his absolute common law right, namely the ... right of 'cross examination' of both complainants 'LS' and 'HG' as entrenched in the antecedent law over centuries ... [and] by the enactment of section '294-A' of the Criminal Procedure Act ..."

Which brings us to the ugly core of this ugly saga. The amendment to the Criminal Procedure Act known as section 294A was passed by the NSW Parliament last year expressly to prevent accused rapists from cross-examining their alleged victims. While the amendment is clumsy, it only applies to litigants who refuse to take legal counsel. In this case, MAK and MSK were not only offered counsel, they were offered the services of a silk. Instead, they chose to represent themselves for patently absurd reasons. Now they want to be rewarded for their decision, and for their antics throughout the trial.

Equally disquieting is the behaviour of Justice Sully. In his judgement, he railed against section 294A, saying it had forced him to conduct two trials instead of one. This is arrant nonsense. He made this decision over the strenuous objections of the prosecutors, who had read the same law and wanted to conduct a joint trial for all four brothers. Two of the brothers had legal counsel, thus all four brothers would have had the benefit of the defence's cross-examination of the victims.

It gets worse: Sully railed against the temerity of Parliament for daring to intervene: "I propose ... the repeal of s294A before it really does become an entrenched vehicle for the wrongful depriving of accused persons of what are, in truth, not merely basic legal rights, but basic human rights as well."

Since when was the right of accused rapists to interrogate their victims a basic human right?

Posted by Robert at September 6, 2004 10:08 AM
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