A copyrighted response to: Sex and the Reasonable Man
I am truly tired of every self-styled expert on law having their views published and concluding in a personal attack on me. If I’m not accused of picking on one person because he was prominent or for some other spurious reason, I am accused of covering up some Very Important People who are on a “list ” (which doesn’t, and never has, existed. I don’t know how many times I have to say this).
This little pile of confused thinking and showing off of some half-baked learning by Ms Williams manages to do both.
That decisions might be made without improper motive and honestly based on experience, judgment and evidence doesn’t seem to occur to these experts and conspiracy theorists as they push their various agendas.
I don’t know Ms Williams . I don’t know how many criminal jury trials she has defended or prosecuted, and so I don’t know how she is so accomplished and what is her claim to expertise as to be able to say “With a bit of effort, it seems those seven men could have been successfully prosecuted under s 124(1).”
Let me take a few of her arguments. She starts with a showing–off discussion about the ” reasonable man” – which she seems to appropriate from tort law as the construct of the reasonable man is not applied in criminal law – and then says ” it may be argued ” that the circumstances in which the relevant perception was formed need not be taken into account in considering reasonableness.
It “might” be argued, but it wouldn’t be argued successfully, at least not in this country until the High Court changes its mind. The so – called ” normative standard” which is different to what is “reasonable in the circumstances” is not one recognised by law. Apparently I should proceed on what Ms Williams mistakenly thinks is, or should be, the law rather than what it actually is.
Then she peddles the by now well worn lie of “The legal advice released by the DPP explaining the decision to prosecute only one of approximately 100 men.”
There was no such decision because there were not one hundred men liable to be prosecuted. To say otherwise implies – and is meant to imply – that the names and involvement of 100 men was known to me, that there was evidence against them fit to put them on trial, but I made a decision they wouldn’t be put on trial.
When this was said on radio by Liz Little I called it a lie. It is a lie as said now by Ms Williams, and she knows it to be.Why then does her argument need to resort to lies?
Then she says “Much has been made of the role played by ambient lighting in distinguishing the Martin case.”
Who has made “much” of this? The published advice mentions it as a factor. Is that “making much ” of it? Perhaps Ms Williams might care to explain this:
Mr Martin had had sex with the girl previously. He was not charged with that, for mainly the same reasons others who had made admissible admissions weren’t. She thereafter came to his house. They had a spa together. Then he performed a form of sex on her for about 50 minutes which formed the basis of the first charge. The jury which heard and saw all the evidence (an advantage not enjoyed by the various experts) did not convict him of that charge . A reasonable interpretation of that is the jury (or at least a majority of 10 or more) were only persuaded that Mr Martin ought to have known the girl was under 17 years of age when the next point in this encounter was reached – a point about an hour in, and after previous intercourse in the days prior. Does Ms Williams offer another interpretation of this? No , she simply “conveniently” ignores it.
Then another “expert”, Liz Little, is cited about “her advice” of what some others had contended. Some who were traced as having attended at the flat or the motel for sex claimed to have not had it . That is clear from my published advice. Some of those claimed to have turned away. How reliable was that? It was uncorroborated. In any event, how would those assertions have been admissible in a trial? Ms Williams might care to tell us her authority for suggesting on what basis evidence of what others have thought on another occasion would be admissible in a prosecution case, absent some concession or similar attempt by the defence.
By the way , citing Liz Little as authority for the argument might tend to betray its weakness too. Last year Ms Little in this same case was publicly “calling o ” me to charge people with statutory rape, a charge which does not exist in Tasmania. A couple of weeks ago on ABC radio she was bemoaning how her calls for law reform had been ignored, and one in particular she stressed was the prior videotaping of a child’s evidence, and allowing that to be played as the child’s evidence in chief . That was possible in Victoria, she said, but not here as we are so backward. In fact, it has been the law here since 2001, and is used frequently in the Courts.
Finally Ms Williams claims – correctly – that convictions are not required for there to be claims for compensation. The position is not quite as straightforward as she seems to think but indeed multiple claims for criminal injuries compensation might be made IF there was no other worthwhile civil remedy to pursue (a matter Ms Williams appears to overlook). But unless I’m supposed to be unaware that a conviction is not required for compensation, how does the possibility of multiple compensation claims mean that I am not prosecuting certain people in order to “protect” the public purse?
It is completely illogical, unless Ms Williams believes that only someone as expert as herself knows this. In fact I am at loss to understand how Ms Williams thinks a negligence claim (that is a common law claim in tort) might be “chucked in” with a claim or claims under the Victims of Crime Assistance Act, but perhaps her apparently superior learning and experience will enable her to explain that.
I won’t be contributing to this “debate” again. Perhaps those who want to can go over to the Mercury where a couple more experts are keeping a thread alive opining that it is the law that all that is required for a successful prosecution of a sex crime is the production of a statement. After all, everyone’s an expert. Don’t forget to impute improper and corrupt motives to me and Police. And by all means pretend you’re really on this girl’s side, and keep this going even if she doesn’t want to. She should have been called to trial for years on end too, of course. That’s what the experts want.
Don’t forget that you all know better, you all know what the ” true story ” is.
Tim Ellis
PS other media take note: I retain copyright in this except as to publication in the Tasmanian Times and you do not have permission to reproduce any part.
T. J. Ellis S.C.
Director of Public Prosecutions,
15 Murray St.,
Hobart,
Tasmania 7001
First published: 2011-12-07 06:35 PM
