My fellow Australians - a slippery slope?

[reprise]

Geoff Clark to face civil trial for rape (http://news.com.au/common/story_page/0,4057,6399399%255E13780,00.html)

I know that to those living in the US, it's going to seem odd to raise the question of whether using the civil courts to effectively get a "second bite at the cherry" in criminal cases is an appropriate use of the legal system, but I find Judge Duckett's decision to allow this case to proceed in the civil courts very scary.

It is not the role of our civil courts to determine innocence or guilt in criminal matters, only to determine the level of compensation to which the plaintiff is entitled when guilt has been established in our criminal court system.

It horrifies that our courts are effectively willing to throw out the double jeopardy rule (not to mention the statute of limitations) by allowing what amounts to a retrial in a court which has a lower burden of proof.

FWIW, I suspect that Geoff Clark is probably guilty as hell but if allowed to stand this precedent will one day be used to destroy the life of someone who is not guilty.

[schplurg]

Interesting story. I'm not at all familiar with that case, but it sounds like everyone but the courts have convicted him. Looks like he stepped in some deep doo-doo. I agree on the points you bring up about civil cases. Hell this Clark guy never even went to trial on the charges! The one that stands out to me is the O.J. Simpson trial in which he was found innocent in criminal court, but found guilty and forced to pay millions in the civil courts. The vast majority of people believe he was guilty (right?) so nobody really cared. Not that it would make a difference if they did care.

Although the O.J. civil case was perfectly legal, I disagree with the general idea of how he was found innocent, yet forced to pay up anyways. Is he innocent or not? I'm obviously no legal expert, but it doesn't seem right or fair. Perhaps someone here can explain how it is, not by law but in principle.

On a side note, after reading that article and seeing the mention of "Indigenous" people, I did some searching and read some articles about the Australia Day celebrations and the controversy of the indigenous community being included (and the controversy of Australia Day in general). Sounds familiar.

[reprise]

I should probably remind people of the most famous case of someone being found not to have any case to answer, only to subsequently be hounded by our legal system until the people got the verdict they demanded.

"Most people" believed Lindy Chamberlain guilty of having murdered her baby - I cringe to think how much more that woman would have had to endure if this same kind of legal side-stepping had been allowed in her case.

And yes, schplurg, there is considerable controversy about the appropriateness of celebrating Australia Day. Kudos to you for researching something which you picked up as an aside to the main article.

[heath]

I was under the impression this was being raised as a civil case because the statute of limitations had expired for a criminal case to be raised. Or am I confusing the other allegation from 1971 (or it expired for both?).

The Lindy Chamberlain case is a difficult one. I remember following it as a kid when it was in the courts. It seemed like a case of forcing a prosecution without sufficient evidence, rather than her really being innocent (if you know what I mean).

Another interesting case is the Mickelberg gold swindle in Western Australia. A family of crooks robbed the Perth Mint of some gold bars and got stitched-up by the police for it when they couldn't find enough evidence to prove it. I have it on (*cough*) "good authority" that they actually did it but will still get a payout in the millions (random guess) of Australian dollars for wrongful imprisonment.

The questions these sorts of cases raise about due process and time limitations are difficult. I'm a bit of a fence sitter but I personally think (as a moral, law abiding citizen who believes freedom or rights are a societal luxury rather than a "natural right") that the odd wrongful prosecution is a small price to pay if less people get away with serious crime. Exactly which shade of grey looks best on this is debatable, of course.

[reprise]

A criminal case of rape against Mr Clark was thrown out in 2000, when a magistrate found there was insufficient evidence to commit him to trial. Ms McGuinness is now seeking damages for physical injuries and long- term mental trauma. A civil case will involve a lower burden of proof.

Criminal proceedings were certainly launched against Geoff Clark in this case. As the statute of limitations for launching civil action in this case has now expired, special leave had to be sought from the court for an extension to granted in order that the claim for damages might proceed.

While Lindy Chamberlain was certainly convicted on appallingly shoddy forensic evidence (the "foetal blood" which was the primary piece of forensic evidence on which she was convicted turned out to be anti-rust proofer routinely applied by the car manufacturer), it was ultimately forensic evidence which exonerated her and led to her being released from prison in the middle of the night, pardoned, and awarded compensation. It's incredibly scary that the forensic scientist whose evidence was responsible for the original conviction (she failed to test the re-agents, and also destroyed the samples) is STILL working as a forensic scientist.

In criminal matters, I'm more inclined towards trying to ensure that innocent people don't suffer at the hands of our justice system, even if that means that occasional serious offenders are wrongly found not guilty.

My objection to the Clark case (and others which are similar) is that they set a precendent whereby people whose criminal cases have already been heard can be harassed through the civil courts for years (civil cases are extremely expensive to defend) and be ruined professionally and financially even if the court ultimately finds in their favour.

[heath]

Originally posted by reprise


Criminal proceedings were certainly launched against Geoff Clark in this case. As the statute of limitations for launching civil action in this case has now expired, special leave had to be sought from the court for an extension to granted in order that the claim for damages might proceed.



Ah. Thanks for the clarification. I remembered reading something about the statute of limitations in regard to this case, obviously confused the context.