They are at it again.
It seems the DPP is not satisfied having ran a case that was 'beset by improbabilities and uncertainties'; a case that saw millions of dollars of taxpayers money wasted on a rouse; a case that saw a man now found to be not guilty doggedly pursued for five long years; a case which exposed WA police as acting 'inappropriately' and 'reprehensibly'.
No, that's not enough. The State of Western Australia will now spend more of its taxpayers money to appeal the Not Guilty verdict. It seems that the appeal is doomed to fail and anyone who knows anything about the legal process seems gob smacked by the audacity of the DPP in this case. (See: Lawyers Staggered at Rayney Appeal)
Remember that Mr Rayney did not narrowly scrape through with a victory on the grounds of reasonable doubt (a privilege he is entitled to as an accused). No, he won this case decisively. That is to say that the judge’s comments that "the case for the State is beset by improbabilities and uncertainties" would seem to indicate that it is more likely than not that Mr Rayney did not murder Mrs Rayney. It is with this in mind that Mr Rayney recommenced his defamation case in a court that will judge the evidence on the balance of probability.
In his judgment, Justice Martin stated:
“Crucial evidence is lacking and the absence of evidence tells strongly against the State. Endeavours by the State to fill critical gaps and explain away improbabilities are primarily no more than speculation without foundation in the evidence.”
Those are not the words of a judge making a decision on the ground of reasonable doubt. Those are the words of a judge who has no confidence whatsoever in the case put before him.
While the prosecution has a right of appeal under Section 24 Criminals Appeals Act, such a right is rarely enforced. To launch an appeal, the state must be convinced that a substantial error affected the verdict; that there are reasonable prospects that the appeal will be allowed; that on a retrial, there are reasonable prospects of conviction; and that it is in the public interest to continue the prosecution. (DPP Prosecution Guidelines)
It is highly unlikely that any reasonable person having regard to the lengthy, meticulous and scathing judgment of Justice Martin would believe that there are reasonable prospects of conviction in a retrial, such that even if the DPP foolishly believe that Justice Martin erred in law and that they have grounds for appeal, such an appeal ought not be pursued.
Other than wasting taxpayers money, what makes this most unfair is the additional costs impost on Mr Rayney.
Mr Rayney, who like so many other wrongly accused persons in the Wild West, has had to fork out exorbitant sums for the lengthy trial he endured. At the end of that process, he is not entitled to one single cent back. That is because in WA, a wrongly accused person is only entitled to their costs in summary offences. So, if one is falsely charged of an indictable offence (and presumably has suffered a far greater loss than the one charged with a summary offence), he or she is not entitled to their costs.
The same holds true for an unsuccessful appeal by the state, since "the Court of Appeal cannot order a party to an appeal under this Part to pay another party’s costs of or relating to the appeal" (Criminal Appeals Act)
The only way we could put checks and balances on a DPP and preventing them from going out and prosecuting innocent people is by making them pay the bill if they fail. There is no better counterweight than a bag full of money.
Indeed it was the then State’s Crown Solicitor who conceded 30 years ago in his submission to the Law Reform Commission that “where an entirely innocent man has been the victim of unfortunate circumstances resulting in his being wrongly charged with an offence, or where the Police have acted negligently or injudicially in the initiation of charges against an innocent person ... the community owes it to the acquitted person to bear the burden of his legal costs”.
There is little doubt he was talking about Mr Rayney or the likes of him.
It is high time the WA legislators institute in full the recommendations of the 1972 Law Reform Commission which concluded that "the successful defendant should be entitled to costs and the court should be required to order costs"
Maybe then, we would see a DPP acting with a degree of sensibility and restraint. Maybe then would not see a case found to be 'beset by improbabilities and uncertainties' go on to appeal.
Rather than wasting its money on frivolous appeals, the state ought to be saving its pennies and offering them to Mr Rayney and other victims of wrongful prosecution.
Email lrcwa@justice.wa.gov.au to push for judicial reform in this area.