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  • Writer's pictureJarrod Carter

The Costly Injustice of Not Guilty

What does it mean to be found to be “Not-Guilty” at the conclusion of a criminal trial? In legal terms, it means that the State has failed to convince a jury, judge or magistrate of that person’s guilt beyond a reasonable doubt. However, this doesn’t exactly prove someone to be innocent. Unless there is undeniable exculpatory evidence to the contrary, many people speculate that the accused must have “got away with it.” The indelible stain of the allegation remains. People tend to err on the side of caution. No one is hiring a babysitter who was once found not-guilty of indecently assaulting a child.

Most people in Perth would know the name Lloyd Rayney. He was the high profile prosecutor and barrister who was accused of, and charged with, the murder of his wife, Corryn. She was killed in August 2007 and the following month, Rayney was publicly named by police as “the prime and only suspect”. In the harsh court of public opinion, many Perth locals speculated as to whether he was guilty, which torpedoed his career as a barrister practicing in the criminal law arena. Essentially, who wants a lawyer who the police believe to be a murderer?

In December 2010, Rayney was formally charged with the murder of his wife. Because of the media circus around the allegation, it was agreed that a jury trial would not be appropriate because it would be difficult to separate media speculation from admissible evidence. Due to the risk of a miscarriage of justice, it was ordered that the trial be determined by a judge sitting alone. While Mr Rayney was found to be not guilty by an experienced and highly regarded Supreme Court Judge, many speculators had their doubts about his innocence.

For months after the verdict, family and friends would ask me if I believed whether or not he did it. As a lawyer, they wanted my personal verdict. My answer would be: it was a three month trial, and I wasn’t involved in it so I have no idea. Invariably, the gossipy friend would venture their case theory about why he was innocent, or guilty. Eventually, I started telling people that there must be a reasonable doubt as to his guilt, because the presiding judge is a much smarter man than I. In response they would ask: why would the police charge him if he is innocent? To which I would answer: Anyone accused of a crime is innocent until proven guilty. Mr Rayney is therefore innocent.

Due to the reputational cost experienced by Mr Rayney, he successfully sued the State for defamation. On 20 December 2017, he was awarded $2,623,416 for lost earnings. However, ultimately in 2020, he was struck off the roll of legal practitioners in Western Australia as he was found to have secretly recorded his wife’s conversations and gave false evidence about it in court. Ultimately, the ordeal cost him pretty much everything.

Not everyone has the resources, or lawyer mates, of Lloyd Rayney. If the police accuse and charge someone with a horrible crime, they generally can’t be sued after the accused is found not-guilty. Simply charging someone does not constitute defamation even though it is universally understood that the charge implies that the police believe that their evidence establishes guilt. Rumor of a charge can disseminate through the community at the speed of Facebook sharing. There are no injunctions on witnesses to not discuss the case until guilt has been proven in a Court of Law. Defamation is about publishing and broadcasting. It doesn’t extend to the rumor mill.

Imagine you own a childcare center and you are wrongly charged with an offence against a child, such as an assault by “smacking”. This could easily destroy your business. You would think that the presumption of innocence would shield an accused from the adverse impacts of the police allegation, but there is nothing in place to even attempt to protect the reputational and financial costs of a police allegation.

Even when you are found not-guilty your life can be completely destroyed with legal costs. If the State failed to prove your guilt beyond a reasonable doubt it means that the prosecution failed to see the weakness in their case. Someone who is presumed innocent has gone through hell, often including imprisonment, failed marriages and financial ruin. In the 1990 case of Latoudis v Casey, the High Court stated:

“in ordinary circumstances it would not be just and reasonable to deprive a defendant who had secured the dismissal of a criminal charge brought against him or her of an order of costs”.

This means that if the State fails to establish their case, you should not have to bear the legal fees you have incurred to fight off the faulty charge. However, in Western Australia, this right to financial justice after a finding of not-guilty depends on how serious your charge was.

If you are found not-guilty of a charge in the Magistrates’ Court of Western Australia, you are automatically entitled to have your reasonable legal costs paid for by the police. You can’t get costs for lost earnings, only lawyers fees. This applies to simple offences, and either way offences, which are prosecuted by the Police.

The Official Prosecutions (Accused’s Costs) Act 1973 at section 5 states:

“Where an accused is successful by reason of a decision of the summary court only, the summary court shall make an order as to the amount of his costs therein”

If you are charged under an indictment of a serious offence, the matter is prosecuted by the Office of the Department of Public Prosecutions. These more serious offences are heard in the Supreme or District Court, and not a summary court. If you are then found not-guilty under an indictment you are NOT entitled to legal costs. You may have lost your house (paying for lawyers), your spouse, the respect of your family and friends, your reputation, your career, or your business. The only thing you get to leave Court with is your freedom, and the shirt on your back.

In the 1760’s, the great English jurist William Blackstone advised, all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape than that one innocent suffer.

Isn’t it time to actually believe in the presumption of innocence as a fundamental pillar of civilization? There is an inbuilt indifference towards those found to be not-guilty because once accused you can never fully regain your innocence, and seemingly, the legitimacy of your voice. You disappear because no one cares. You’re just some criminal who got away with it, so be grateful. Perhaps those of us who do have a voice should stand up and ask for a change in the law. Regardless of the charge or the court, an accused person should be entitled to a costs order if found to be not-guilty, because just like everyone else, they are still presumed innocent.

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