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[This edited version of the report has been prepared by Dr Robert N Moles]

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On 7 May 2008 By Tom Percy QC wrote in the Sunday Times “What happens after an acquittal?”

He said, the jury's verdict comes in: not guilty. Popular perception has it that the courtroom erupts in hugs, tears and cheers. The accused, his family and his legal team adjourn to a fashionable riverside restaurant to drink French champagne. Next day life resumes as per usual, and in due course comes full reimbursement of the legal costs, and a generous compensation cheque for the inconvenience of the past two or three years awaiting trial.

The perception is a far cry from the reality. The true situation involves little courtroom euphoria, just tears, and a sense of relief akin to waking up from a nightmare. There is no slap-up celebration, no champagne. The accused gathers up his meagre belongings from the security officers and trudges off to resurrect his life. There is no apology from the system, the prosecution or the police. The entire costs of the two years it has taken to clear your name you wear yourself. There is no compensation for anything. This is justice 2008, WA-style.

The one thing an acquitted person could take home with them was the certainty that it was all over. There was no appeal against a jury’s verdict. That is, not until now. New WA laws give the prosecution the right to go behind jury verdicts and have them set aside. No fresh evidence is required, just a perceived mistake of fact or law by the trial judge. A prosecutor takes objection to the trial judge’s summing up, lodges an appeal – and the nightmare begins all over again.

For generations anyone acquitted by a jury has enjoyed the total protection of the law, and could rest safe in the knowledge that it couldn’t happen again. So why change things? The answer is pretty simple – and purely political. Acquittals are unpopular. There are inordinately more victims in the community than there are innocent people wrongly charged with committing a crime. The votes are in the victims’ corner, and the politicians have woken up to it. That’s probably also the reason the system provides no mechanism to refund the costs of defending yourself against it, even when it goes dreadfully wrong, as it sometimes does. Just ask someone like Andrew Mallard.

There is the odd case where a modest ex gratia payment is made for the years spent in prison, but there is certainly no legal entitlement to it.

What then does the system hold for you if you are genuinely (rather than technically or fancifully) not guilty of a serious charge? There’s not much light at the end of the tunnel. Settle in for a couple of years where your reputation and your business are trashed and your sanity hangs by a thread. Sell or mortgage your house (if you have one), cash in your super to fund your defence, knowing that win, lose or draw you’ll get nothing back. Then pray a jury will get it right – the notion of another year or so pursuing an appeal being too terrifying to contemplate. It’s all pretty grim. And, as of now, it just got grimmer. We hear a lot about victims’ rights these days. The new double-jeopardy laws in WA are likely to spawn a whole new class of victim.

Tom Percy can be heard on 6PR 882 at 7.30am on Thursdays.

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