The Wigs

In this episode, the wigs discuss a new decision of the district court of NSW Reeves v State of NSW 2023 NSWDC 196. 

The Plaintiff, Mr. Reeves, sued the state of NSW for malicious prosecution and false imprisonment following the dismissal of a stalking charge against him. 

While he failed to prove the prosecution was malicious or that his arrest had been unlawful, he did succeed with a relatively novel claim of false imprisonment. 

Judge Abadee found that the actions of the police in transferring him into a police interview room, in circumstances where he had expressly declined to be interviewed, led to false imprisonment for the period of the unwanted interview. 

The wigs draw on their experience in litigating issues of unlawful arrest, false imprisonment, and unwanted police interviews to analyse the case and related issues. 

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In this episode the Wigs look at a fairly recent case of Jackmain (a pseudonym) v R [2020] NSWCCA 150 which raises the issue of what happens when a sexual assault complainant has a history of making false sexual assault claims. Currently in NSW such false allegations can't be used by an accused to defend themselves at trial. For decades the law has maintained that a jury simply cannot be told the complainant has previously made similar false allegations because of a provision introduced to protect sexual assault complainants from humiliating and improper cross examination about their sexual history. 

In Jackmain, the accused faced a number of sexual assault charges which he said were fabricated by the complainant against him. 

The NSW Court of Criminal Appeal confirmed that the law in NSW prevented him from using the complainant’s tendency to fabricate sexual assault allegations in his defence but did hold that a trial court in such a case has a power to stay the proceedings as an abuse of process. 

The Wigs discuss the practical, policy and human rights implications of this law and examine the case for legislative reform.

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This week’s episode is on BA v The King [2023] HCA 14, a High Court judgement on whether a person who breaks into a house and assaults their domestic partner is guilty of the offence of break and enter under NSW law, in circumstances where they had moved out, but are still on the lease.  In the context of the case, the Wigs have a broader discussion about domestic violence offences.

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This week on The Wigs we bring you a special episode, the inaugural speech of the Honourable Stephen Lawrence MLC, elected at the recent NSW State election to the upper house, or Legislative Council. Stephen was the first of all newly elected Upper House members to make an inaugural speech. Until such time as they make their first speech, new members cannot speak on any business of the house. Stephen has been using his freedom to talk in the house since regularly, - on a range of matters from Kathleen Folbigg, to Israel and Palestine, the Aboriginal and Torres Strait Islander Voice to Parliament, the ACT inquiry into the criminal justice system, crime in western NSW and a range of other topical NSW political issues. The Legislative Council was packed for the occasion of Stephen's inaugural speech with visitors from far and wide - his very proud parents, siblings and their families, his partner and son as well as many other friends from Dubbo and the far west, friends Matthew Batsiua, a former member of the Nauru Parliament and former Foreign Affairs and Justice Minister for Nauru, and Luci Dabwido, the widow of Sprent Dabwido, a former President of Nauru. 

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In this episode, the wigs examine a controversial situation impacting some of the state's potentially most vulnerable women which requires reform. 

It is common in the criminal justice system for women who allege domestic violence against their partner to later withdraw the allegation and in some cases claim the allegations were in fact lies. 

Most experts and criminal lawyers are aware that many of these retractions are not a genuine indication of the falsity of the original allegation, but rather can be motivated by fear, love or just a concern to keep a family together and supported. 

In some such cases, NSW Police have been charging such women with making a false accusation, relying alone on the woman's retraction. 

Many such women have pleaded guilty and in some cases been jailed. 

The Wigs are concerned that this practice has led to miscarriages of justice, with genuine victims of domestic violence being re-victimised, discredited and jailed. 

In this episode the wigs examine the issue, discuss case studies and propose a way to ensure any such prosecutions are properly considered and only launched when the original allegation can be proved beyond a reasonable doubt to in fact be false, by evidence other than the retraction itself.

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Today the wigs look at an important threshold question in the criminal justice system; what is the test or legal requirement for bringing a prosecution. 

The issue has been highlighted recently in the ongoing ACT inquiry into the criminal justice system. 

P.S

Listeners can access Shane Drumgolds witness statement and evidence in full on the ACT inquiry website which is online. 

In short, Mr. Drumgold says that section 26 of the Magistrates Court Act creates a test of mere suspicion for police to file a criminal charge and that subsequent to that - the DPP applies a reasonable prospect of conviction test. 

He makes no mention in his statement of the reasonable and probable cause test. 

The wigs note that an absence of reasonable and probable cause is part of the test for malicious prosecution in the ACT. 

See ANDREI VATARESCU v THE COMMONWEALTH OF AUSTRALIA and THE AUSTRALIAN CAPITAL TERRITORY [2012] ACTSC 96 (15 June 2012). 

The Wigs view is that section 26 is to be read subject to the common law and that when invoked by a police officer — reasonable and probable cause is required to charge. 

Because charging begins the prosecution process. 

In any event, it seems baffling that the DPP himself is unaware of the threshold at which a prosecution in the ACT becomes malicious.

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Kathleen Folbigg has spent two decades locked up over the deaths of her four children, in maximum security prisons, largely confined to a cell for her own safety, and regarded as a result of her convictions as one of Australia’s most heinous serial killers.  Ms Folbigg has always maintained her innocence. The case could well be one of the gravest miscarriages of justice this country has seen - a mother not only facing the tragedy of losing her four children, but being wrongly punished for their deaths. 

Her latest petition for pardon has been signed by scores of prominent scientists and medical professionals, who have concluded that “the scientific and medical evidence … creates a strong presumption that the Folbigg children died of natural causes”.

In this episode the Wigs discuss the case with special guest Dr Robert Cavanagh, Ms Folbigg’s barrister.

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While the wigs continue their short break, our one-on-one interview series 'Unwigged' - which is all about the wigs themselves - who they are, what drives them and their advocacy, and more importantly - what led them to live a life dedicated to the pursuit of Justice - rolls on.

This week is Felicity Graham.

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While the wigs are on a short break, we continue with our one on one interview series with the barristers themselves. Next up is the one and only Emmanuel Kerkyasharian.

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In the lead-up to the NSW state election, the podcast is rounding out Season 4 by showcasing a series of interviews with the core trio of wigs to discover exactly who they are and what drives them professionally.

First off the cab is Wig Stephen Lawrence.

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