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No “justice” for all: A flawed criminal justice system

New South Wales in Australia boasts a beautiful harbour, a vivid nightlife and a tattered criminal justice system. The innocent are often refused bail and left to fade in a jail cell. Their grievances, due to ambiguous ex gratia payments, are rarely compensated. Milly Stilinovic reports.

15 May 2011

“The big one is called Lucky and the one biting your fingers is called F.S.B.” Momcilo Kuzmanovic refers to the sulphur-crested cockatoo and the pink galah vying for attention in the makeshift cage. “F.S.B. It stands for stupid bird!” Watching him tend to the birds would never lead you to suspect Kuzmanovic was a man once charged with murder.

Charged and imprisoned in 2003, Kuzmanovic spent two years juggling between Silverwater, Park Lea and Goulburn jails never letting a day pass without asking “How long are you going to keep me rotting in here?”

He was declared innocent in 2005 and is now seeking compensation, in way of ex gratia payment, for his grievances. Although payment would assist in repairing the financial ruin he was left with after selling his house to fund his defence lawyers during trial, he realises no amount of money will repair the damage the wrongful arrest and wrongful charge had on his life.

Kuzmanovic is a symbol of New South Wales’ (NSW) chaotic bail act and lacklustre attitude towards ex gratia payments. He is not the first, nor will he be the last, victim of miscarried justice present in our open courts.

Wrongful arrest

Although statistics are not available, a legal advisor for Kuzmanovic believes there is a significant amount of the innocent behind bars. He claims this is due to arrests being made on the basis of suspicion in an informant’s mind. “A suspicion that is not always supported by a solid factual foundation; a prerequisite for any arrest,” the advisor told The Scavenger.

The legal advisor believes that detectives should place further emphasis on a broader range of investigative procedures before making an arrest. “An arrest ought to be justified and devoid of malice. A defendant’s right to liberty should be paramount,” they said.

The Innocence Project WA is an organisation that attempts to bring justice to those who have been wrongfully convicted. Its chairman, John Button, co-founded the organisation after being wrongfully convicted of murdering his girlfriend, Rosemary Anderson, in 1963.

“I believe that a very large proportion of inmates are innocent. My reasons for this start with my own personal experience,” he said. Button believes the main reason for such a high statistic is lack of proper police investigation. “They have slackened off, reverted to intimidation, moving, or falsifying evidence and manipulation of the jury system,” he says.

Button was also a victim of miscarried justice. “They moved [Rosemary?s] blood to a position that fitted with the confession that they typed out for me to sign. I was innocent,” he says.

On questions relating to wrongful arrest, a spokesperson for the former NSW Minister of Police, Michael Daley, said; “The powers relating to arrest are spelt out in part eight of the Law Enforcement Powers and Responsibilities Act 2002”.

Part eight relates to the many circumstances power of arrest is permitted, including arrests made with or without a warrant, or by a person other than a police officer.

In relation to the detainment of a suspect they add, “Part nine provides for the lawful detention of a person after arrest for the purpose of investigating that person?s involvement in the commission of the offence for which he/she was arrested.”

Brett Collins is the coordinator for Justice Action Australia, a volunteer association based in NSW, whose main objective is to assist those who have suffered from abuses of the system. Collins, who has been active within the organisation for over 30 years, has heard continual reports of abuse of the powers of arrest.

“A life has been devastated following a charge based almost upon no evidence. It is an abuse of power and an abuse of the process,” he says.

Chaotic bail laws

Sitting at a table, within Kuzmanovic?s red brick house, F.S.B squawks from the makeshift cage, “Tito screws his partizans!” Kuzmanovic’s curtains are red, blue and white to match the colours of the Serbian flag, as are his lounges, dining chairs, and carpet.

There have only been four cases of politically motivated executions in Australia. Such rare and premeditated cases are refused bail. Although details of his former trial cannot be revealed, due to the sub judice status of the current case, it was the adamant refusal of bail and a politically motivated allegation which previously left Kuzmanovic jailed for 23 months.

A former NSW magistrate claims many innocent defendants are behind bars due to chaotic bail laws. “There?s too many people refused bail. There?s too many people on conditional bail, reporting to police stations when they shouldn?t be,” he says.

According to the NSW Parliament, the number of prisoners on remand has more than tripled in the last decade. The NSW Bail Act has undergone 16 major amendments in 25 years.

Last year a spokesman for the then NSW Attorney General, John Hatzistergos, stipulated that new draft bail laws were released to further ensure communities are protected, that interference with the course of justice is prevented, and that defendants turn up to court.

“It is important to recognise that bail is a keystone of our criminal justice system. It must balance a defendant?s right to be presumed innocent while securing their attendance at court,” he said.

The former magistrate, however, maintains that there is an unjustifiable fear of repeat offences and of the defendant not turning up for court appearances. “All these people turn up. The only people that don’t turn up are major drug dealers who keep getting bail and never turn up,” he says.

Justice Action’s Brett Collins strongly defends a victim’s right to compensation after they have spent lengthy periods in jail due to a denial of bail. According to Collins, NSW bail laws reflect inefficiencies in our justice system created by lack of government recourses and government decisions.

“The fact that this (process) is not done efficiently, certainly shouldn?t cause any damage to the person, and the responsibility should be accepted by the state,” he says.

“By favour”

The Innocence Project WA has received over 100 applications from prisoners claiming to have been wrongfully imprisoned. Button was one of the few successful cases to receive ex gratia payment and believes only a handful will ever see compensation for their grievances.

“There is no avenue for compensation, it does not exist. The paperwork that accompanies the payment states that it is only symbolic in nature,” he says.

Button claims the payment given, if any at all, is the minimum possible to keep the voters happy. “They do not take into account any of the costs or trauma associated with your case. It is not an apology, it is purely a gift from the goodness of the heart just to acknowledge that you ‘might’ have suffered,” he says.

According to Lawlink there is no formal, or mandatory, criterion for ex gratia payment in NSW. Collins states that Justice Action Australia does not encourage people to seek compensation. Their experience has been that the majority of cases have been unsuccessful.

“There seems to be an attitude that people who walk free from a justice system should just be pleased to walk away. Any question about an obligation to compensate them for their innocence has not been accepted,” he says.

Makeshift cages

“Ask them to dance.” The birds whistle and bob their heads on command.

“Me and my mate once saw this bird walking down the street. I called out to it and it came sidling up to me. I placed it in the cage, it never complained. I can open the door and it won?t leave. That?s how he got the name F.S.B, “ Kuzmanovic said.

Kuzmanovic pets the bright colours that adorn the neck of the pink galah. “These guys know all too well what it is like to be in a cage. Just like me,” he said.

The compensation claim of Kuzmanovic is yet to be resolved.

Milly Stilinovic is the editor-in-chief of an Australian B2B magazine and a freelance writer for several of Australia’s leading news portals. This article is the result of immersing herself into the criminal justice system by following her subject for a three-month period.

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