Due Process as Punishment: When the Legal System Becomes the Penalty in Australia, By Ian Wilson LL. B
In the Australian legal system, the principle of due process is sacrosanct, a cornerstone of justice that guarantees every individual the right to a fair trial and the presumption of innocence. Yet, for many accused of crimes, particularly in sensitive cases like sexual assault, the process itself can morph into a form of punishment, regardless of the trial's outcome. This phenomenon, famously articulated by Berkeley law professor Malcolm Feeley in his seminal work The Process is the Punishment, resonates deeply in Australia, where the burdens of navigating the criminal justice system can leave lasting scars on those who are, by law, presumed innocent. A recent case in New South Wales, where a young man named Paul* was acquitted of rape in a trial deemed "doomed to fail" by the judge, lays bare the troubling reality: the legal process can sometimes be wielded as a weapon, inflicting financial, emotional, and social damage even when a jury delivers a not guilty verdict.
Paul's story is a stark illustration of how the legal process can become punitive. Accused of sexual assault by a woman he had been dating for five months, Paul endured a trial that unravelled quickly. The jury took less time than an episode of Seinfeld to find him not guilty, a reflection of the prosecution's flimsy case. District Court Judge Craig Everson SC went further, labelling the case a "dog" and criticising the New South Wales Director of Public Prosecutions (DPP) for pursuing a prosecution with "significant weaknesses" that should have been obvious from the outset. The judge pointed to glaring inconsistencies in the complainant's account, including discrepancies between what she claimed to have told others and their actual statements, as well as her admission to engaging in consensual sex with Paul twice after the alleged assault and sending him intimate photos days later. In a rare move, the judge ordered the Crown to cover Paul's legal costs, which exceeded $100,000, a crushing sum for a young tradesman. Yet, the DPP, rather than accepting the acquittal and moving on, chose to appeal the costs order, dragging Paul back into the legal fray. This decision, backed by the state's vast resources, risks impoverishing a man who prosecutors must now accept is innocent. It begs the question: at what point does the process itself become a form of punishment?
The burdens of the legal process begin long before a trial. For Paul, and countless others in Australia, the journey starts with the shock of being charged and questioned by police, often under intense public scrutiny. In cases involving sexual assault, amplified by the #MeToo movement's spotlight, the accused can face immediate social condemnation, regardless of evidence. Bail conditions, particularly for serious charges, can be stringent, restricting personal freedom, disrupting employment, and isolating individuals from their communities. The financial toll is equally daunting. Legal representation in Australia is expensive, and for someone like Paul, the $100,000-plus in legal fees represents a life-altering debt. Even if acquitted, the accused often face months or years of court appearances, with delays in the Australian judicial system stretching out the ordeal. Each hearing, each adjournment, chips away at the accused's emotional and financial reserves, forcing them to put their lives on hold.
The trial itself brings further challenges. For Paul, giving evidence and enduring cross-examination meant reliving a deeply personal and contested moment under the harsh glare of the courtroom. The public nature of such trials, especially in the age of social media, can amplify reputational damage, with the accused often judged guilty in the court of public opinion long before a jury deliberates. The #MeToo movement, while rightly advocating for complainants' rights, has created a climate where acquittals in sexual assault cases are sometimes misinterpreted as a failure of justice rather than a reflection of insufficient evidence. This misperception compounds the stigma faced by those like Paul, who are found not guilty, leaving them to navigate a society that may still view them with suspicion.
What makes Paul's case particularly troubling is the DPP's decision to appeal the costs order. This move suggests a reluctance to accept judicial criticism of a prosecution that was, in the judge's words, pursued "without, or in spite of, proper professional advertence" to its likelihood of success. By leveraging the state's resources to challenge the costs award, the DPP risks prolonging Paul's ordeal, forcing him to incur further legal expenses and emotional strain. This raises uncomfortable questions about prosecutorial motives. Is the DPP's appeal a defensive reaction to losing a case, or does it reflect a broader pattern of pursuing weak cases with reckless disregard for the consequences? Are prosecutors, emboldened by public pressure to secure convictions in sexual assault cases, allowing the process to become a secondary form of punishment for the accused?
Malcolm Feeley's work provides a framework for understanding this dynamic. He argued that the true penalty in many criminal cases lies not in the verdict but in the process itself, pre-trial detention, financial burdens, emotional toll, and disruptions to daily life. In Australia, this rings true. The accused, presumed innocent under the law, must navigate a system that can feel stacked against them. The state, with its vast resources, can afford to pursue cases with minimal risk, while defendants like Paul face existential consequences. Even when acquitted, the absence of compensation for lost income, legal fees, or emotional distress means the process leaves lasting damage. In Paul's case, the DPP's appeal against the costs order underscores this imbalance, suggesting that the state can extend the punishment long after a not guilty verdict.
The #MeToo movement has undeniably advanced the cause of justice for sexual assault complainants, ensuring their voices are heard and their experiences taken seriously. In Australia, this has led to a robust framework of support, from specialised police units to judicial training programs aimed at improving the complainant's experience in court. These efforts are laudable, as lodging a complaint, giving evidence, and enduring cross-examination are undeniably traumatic. However, the pendulum must not swing so far that it undermines the rights of the accused. The criminal justice system must balance the needs of complainants with the principle that an accused person is presumed innocent. When prosecutors pursue cases with flimsy evidence, as seen in Paul's case, they risk abusing this principle, turning the process into a tool of punishment rather than a pursuit of justice.
Judicial criticism of meritless prosecutions is not new in Australia. Judges across the country have increasingly voiced concerns about cases brought to court with little chance of success, causing harm to both complainants and defendants. In Paul's case, Judge Everson's scathing rebuke of the DPP highlights a systemic issue: the failure to adequately assess the prospects of conviction before proceeding. This not only wastes judicial resources but also inflicts unnecessary suffering on the accused, who may lose jobs, relationships, and mental health in the process. The DPP's appeal against the costs order further suggests a potential conflict between prosecutors and judges, with defendants like Paul caught in the crossfire.
To address this, reforms are needed. First, the DPP must adhere to stricter guidelines, ensuring only cases with reasonable prospects of conviction proceed to trial. This would reduce the number of meritless prosecutions that burden defendants and clog the courts. Second, cost awards for acquitted defendants should be standardised, and compensation for process-related harm should be considered. The financial and emotional toll of a trial, as seen in Paul's $100,000 legal bill, can be devastating, and the state should bear some responsibility when its prosecutions fail. Third, reducing trial delays through streamlined court processes would minimise disruptions to defendants' lives. Finally, public education is crucial to combat the stigma faced by those acquitted, particularly in sexual assault cases, where acquittals are often misunderstood as a failure of the #MeToo movement rather than a reflection of evidence.
Paul's case is a sobering reminder that the legal process in Australia can punish even those found not guilty. The presumption of innocence, a bedrock of the common law system, must be more than a legal technicality, it must be a lived reality. When prosecutors pursue weak cases or appeal costs orders to prolong the ordeal, they risk turning due process into a form of state-sanctioned punishment. For Paul, the swift not guilty verdict was not the end of his struggle but the beginning of a new battle against a system that seems determined to make him pay, in every sense of the word. As a society, we must ask: when has enough damage been done to an innocent person? And how can we ensure that the pursuit of justice does not itself become an injustice?
"The jury took less time than an episode of Seinfeld to find Paul* not guilty of rape.
The judge said it was a dog of a case. Doomed to fail, were his exact words.
He used his judicial discretion to tell prosecutors to pay the man's legal costs.
Yet the NSW Director of Public Prosecutions wants to go another round over legal fees with a man not just presumed innocent but found to be not guilty.
At what point does the process become punishment?
Remember that the DPP is not appealing the verdict – only the costs order.
Its decision, accessing the state's enormous resources, risks impoverishing a young tradesman facing a legal bill for more than $100,000, who even prosecutors must accept is innocent. That's on top of more emotional damage to the man.
No one likes to lose a case, not even a prosecutor.
However, it's not unreasonable to wonder whether the prosecution of meritless cases is becoming deliberately, or at least recklessly, punitive.
In other words, is the NSW Office of the DPP, by its pursuit of cases with flimsy evidence, delivering a secondary form of penalty even when juries and judges won't?
A month after the jury's swift not guilty verdict in May, District Court judge Craig Everson SC ordered that the crown pay Paul's legal costs because there were "significant weaknesses in the crown case that the crown must have been aware of at the outset".
Quite apart from the "she said-he said" contested versions of the alleged sexual assault, the judge said the weaknesses included "glaring differences between what the complainant asserted she told her mother and friends about the alleged sexual assault and what those complaint witnesses stated they had been told by the complainant".
There were other major discrepancies between what the woman claimed when giving evidence in chief versus what was elicited from her during cross-examination.
The alleged sexual assault took place while the two lovers were on holidays at Yellow Rock in the Blue Mountains.
They had been dating for some five months. The woman said after the alleged assault the rest of the holiday was "cold and tense". Under cross-examination, the complainant admitted she had sex with Paul twice again on the holiday – on the same day after the alleged assault and the next day.
The complainant also admitted that she sent "intimate photos" to Paul four days later while they were still at Yellow Rock.
When awarding Paul costs, the judge said that while the community undoubtedly had a legitimate interest in serious crimes being prosecuted by the DPP, that did not make it reasonable for the crown to prosecute a case "in the face of significant weaknesses in the crown case of which the crown acting reasonably, ought to have been aware".
In a scathing rebuke of the crown's prosecution of Paul, the judge said: "To be clear, I am of the opinion that this prosecution of (Paul) was instituted, and maintained, either without, or in spite of, proper professional advertence as to whether there existed reasonable prospects of securing a conviction."
Prosecutors will be familiar with the concept of the process becoming the punishment.
In his influential work The Process is the Punishment, former Berkeley law professor Malcolm Feeley challenged conventional views of criminal justice.
He argued that, especially in lower courts where most criminal cases were handled, the true burden on defendants lay not in the formal trial outcome but in the trial process itself.
Feeley explored how pre-trial detention, the financial and emotional toll of repeated court appearances, the length of time between charged and going to trial, the challenges of securing bail, and the loss of income due to missed work collectively imposed severe penalties on the accused.
These burdens, he argued, were often more punitive than any eventual legal sanction, effectively shifting "the locus of sanctioning away from the formal stages of adjudication and sentencing on to the process".
Feeley's reframing of punishment away from the actual verdict highlights how navigating the criminal justice system for an accused can constitute a significant penalty in its own right.
As this newspaper has reported, this is not the first such case where a judge has raised concerns about meritless cases coming to court.
Many others judges have criticised prosecutors for running prosecutions with no reasonable prospect of success, causing untold damage to both complainants and defendants.
The #MeToo movement has done many good things for complainants.
There is now a vast state-sponsored apparatus spanning academia, governments state and federal, bureaus of crime statistics, legal professional bodies, the National Judicial College of Australia, individual judges, all thundering in one direction – to secure more guilty verdicts and to improve the experience of complainants in rape trials.
Much of this is laudable.
Going to police, making an allegation of sexual assault, lodging a formal complaint, giving evidence, being cross-examined, these are terribly difficult for a complainant.
There is, however, an important balancing act for society.
The criminal justice system is onerous for an accused too. If he is guilty, we will say so what. But an accused is presumed to be innocent.
Being charged, questioned by police, finding a lawyer, giving evidence if that is what they choose to do, being cross-examined, putting their life on hold, losing a job, income, friends – these are all terribly hard for an accused who is, to repeat, presumed to be innocent and facing the mighty power of the well-resourced prosecuting state.
It's popular among some misguided people to suggest that when a jury finds an accused person not guilty of sexual assault, it's a wretched sign that the #MeToo movement is in retreat.
In fact, a not-guilty verdict is a sign that the evidence did not support a guilty verdict and almost certain imprisonment.
What do the #MeToo zealots want? That a jury deliver a guilty verdict despite insufficient evidence? A lower standard of proof to send more men to jail?
The DPP's decision to appeal Paul's costs award raises uncomfortable questions.
We ask, again, when has enough damage been done to an accused found not guilty? And is something bigger afoot here?
Is the NSW DPP at war with judges who are critical of prosecutors who bring weak cases to court? If so, Paul must endure the extra pain of being collateral damage in a war not of his making.
In this day and age, those accused of sexual crimes do not get a lot of public sympathy, even if acquitted.
But here is a plea to prosecutors.
If you are going to use the justice process to roll the dice, pursuing men over highly contestable allegations, at least be prepared to pay their legal costs if they are found not guilty.
Perhaps even think about compensation."
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