When Not Guilty is still a Loss (3 July 2014)

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Published on: August 4, 2014

My client was recently acquitted in a large drug haul case involving 36kg of the importation of methyl amphetamine.  This was one of the largest hauls of the drug in Western Australia and had an estimated street value of $30 million.


36kg of methyl amphetamine were packed in tiles


After 18 months and a trial lasting 9 weeks you would think that my client would be happy; well Yes and No.  Yes because she was acquitted, but No due to the 18 months of being involved in this caper costing her in the real world.  Her defense was funded by Legal Aid, so tax payers are out of pocket and importantly the funds of Legal Aid are stretched out even further.  When a person is charged with offences of this nature their assets are frozen or restrained under Proceeds of Crime legislation.  This exists on a State and Commonwealth level.

The charge meant that, with assets frozen, my client was unable to access funds to pay for a lawyer and it does mean that legal counsel is hamstrung to a degree in assisting.  This leads to a handicap in her ability to defend herself and goes against the notion that someone is ‘innocent until proven guilty’.  Worse than this, are the repercussions from having assets frozen and no care from the Government or any other authorities of the irreparable damage this causes.

Most people’s assets are subject to encumbrances such as mortgages and loans.  When assets become frozen not only do you lose the ability to deal with those assets but also with any income stream (e.g. rent for a frozen property).  This can mean that you cannot service the loans and the bank will foreclose on the property or accrue interest and penalties at exorbitant rates.  When this property is held jointly, this causes even more complications as third parties are involved and are also out of pocket through no fault of anyone.

So when you are acquitted what happens next? A person must wait, under Commonwealth Proceeds of Crime Act legislation, for the restraining order to lapse 28 days after the verdict.  This is done to allow the CDPP time to lodge an appeal if necessary or seek the property be restrained for another reason.  After that time the property should return to the owner, if the bank or other third party have not already moved in on it.

There is no recourse for any form of compensation for the loss of time, money, incidental losses or damage to reputation suffered as a result of the wrongful charge.  You are allowed to go home though (better than the 15-20 years imprisonment of the co-accused).

I believe changes should be made to allow an accused to recover costs in the superior courts just as they can in the Magistrates Court.  This will make the Government departments accountable to the loss suffered by individuals through no fault of their own.  The argument that prosecutors should not have to consider financial interests when assessing to charge or not is a poor argument, for there is always the public interest consideration, and the client is part of that process where harm is done and nothing is done to fix it.

Changes would mean a prosecutor must properly assess the brief and believe there is a reasonable prospect of success and that it is in the public interest to proceed.  Costs recoverable would also mean costs could be recovered by Legal Aid, injecting much needed funds into an important agency that has considerable resources wasted on the whim of prosecutors unwilling to concede they have a poor case.  There is no real cost to the DPP/CDPP, police or investigators when no conviction is recorded, other than egg on their face.  Real world consequences for clients should be shared by those bringing the charges if they are wrong.

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