Weighing price of justice
Illustration: Greg Newington.
Late last month marked the first anniversary of the acquittal of Gabe Watson for the murder of his wife of 11 days, Tina Thomas. The decision to acquit Watson provided a controversial ending to a quest for justice that began in October 2003 on Queensland's Great Barrier Reef and ended in Alabama's Jefferson County Courthouse on February 23, 2012. It was an almost nine-year quest that struggled through the resource-poor environments that are increasingly limiting the attainment of justice in legal systems around the globe.
Over the past few weeks, the implications of the increasing price of justice and the impoverished environments within which our courts operate have been demonstrated by the comments of leading judges, politicians and media reports. In the Victoria Supreme Court, a judge responded to the recent multimillion-dollar cuts to Victoria Legal Aid funding, which resulted in the removal of a provision of two lawyers - a barrister and instructing solicitor - to represent accused persons at criminal trials, by advocating that ''something has to be done about this … [it] is highly unsatisfactory''. The Law Institute of Victoria president, Reynah Tang similarly claimed that the cuts ''have a detrimental impact on the administration of justice''.
The serious underfunding of Legal Aid has been well documented in the Community Law Australia campaign Unfathomable and Out of Reach. On Wednesday, February 27, Greens senator Penny Wright's motion for an inquiry into the impact of higher Federal Court fees on a person's ability to access justice was unanimously passed. In describing her motivations for pursuing the motion, Senator Wright explained that ''increasingly, ordinary Australians are being priced out of the court system because they cannot afford legal representation and court fees''. Yet, these concerning situations are just two recent examples of how resources are problematically controlling people's access to justice in Australia.
In this respect, the Gabe Watson ''Honeymoon Killer'' case provides another example of how justice is increasingly being disrupted and curtailed by a lack of money. The Watson case spans back to October 22, 2003, when five days into her honeymoon, US citizen Tina Thomas died while scuba diving with her husband, Gabe Watson. Initially, Tina's death was considered a tragic accident. However, over the next five years, the police investigation that began in Townsville spread to the US and became a multi-agency investigation that resulted in Watson facing two criminal prosecutions.
The first prosecution occurred in Queensland in June 2009, and ended somewhat contentiously through a plea deal whereby the murder charge was withdrawn in exchange for a guilty plea to manslaughter by criminal negligence. A 12-month sentence of imprisonment was imposed; this was later increased to 18 months on appeal. In a largely unprecedented move, following his release from prison in Australia, Watson faced a second prosecution in Alabama in February 2012, where he was tried for capital murder by pecuniary gain. This trial ended abruptly after 6½ court days, with the case thrown out by the judge after the prosecution rested and before the defence had even begun to present its case. Over the six years (2003-09) that the Watson case was handled in Queensland, the extent of court delays and a lack of available resources were immense. In fact, at the time of the plea deal, the court in which Watson was set to be tried was failing to meet any of the indicators used to assess the effectiveness and efficiency of Australian courts: backlogs, clearance rates and costs spent per prosecution.
The impact of this was arguably most evident in the Queensland Office of the Department of Public Prosecution's (ODPP) decision not to proceed with a murder charge against Watson, and to accept a guilty plea to the much less culpable charge of manslaughter by criminal negligence; an outcome that was considered very favourable to Watson, not only in regards to the conviction recorded but also the sentence imposed. The decision to accept the plea deal can also be understood with reference to the increasing pressures on Queensland prosecutors at the time of the Watson case. These internal pressures were fuelled by the limited resources available to them directly, a factor that appears to be looming on the Victorian horizon in light of recent cuts to the Legal Aid budget. In 2009, the ODPP reported an almost $265,000 deficit, while a confidential report released in 2008 described the ODPP as under-resourced and the prosecutors as ''overworked and underpaid''. The report showed that, on average, prosecutors had $11,000 less available to them per case, and individually handled 52 more matters annually, than prosecutors in other Australian states.
It is difficult to accurately state how long Watson's murder trial would have lasted in Queensland, as the duration of such trials has increased from days, to weeks and now months. A similarly complex Queensland manslaughter trial run in 2009 lasted 58 days. On average, running a trial in an Australian superior court is believed to cost about $10,000 per day and an analysis of the Victorian court systems in 2008 estimated that the facilities of a Supreme Court cost about $645 per hour (a figure that does not include the prosecution's preparation costs or the accused's legal expenses). These are significant costs in a resource-starved environment, and may provide an undue motivation for ''bargaining'' with criminal matters to avoid running a trial, potentially at the expense of what might be considered a traditionally fair or just outcome.
Twenty years prior to Tina Thomas' tragic death, Professor Jerold Auerbach stated that ''in the 20th century it is justice, the secular equivalent of salvation, that is sold for a fee … How much justice can you afford?'' Ultimately in the Watson case, the price of justice impacted significantly on the capacities of the legal systems involved to provide justice. The current state of our resource-starved legal systems across Australia, alongside the restrictions and cuts being made to justice budgets and Legal Aid across the board, means that the controversial decisions made in the Watson case, the inquiry into Federal Court fees and the staying of two criminal cases in Victoria in the past two weeks will become increasingly regular. Getting justice is becoming reliant on what the prosecution, defence and the state can afford - not what might be the ''just'' outcome. Accordingly, the price of justice appears to increasingly become the determining factor in the outcome of cases in Australian courts.
Dr Asher Flynn is a lecturer in the Department of Criminology at Monash University and Dr Kate Fitz-Gibbon is a lecturer from the School of Humanities and Social Sciences at Deakin University. They are the co-authors of A Second Chance for Justice: The Prosecutions of Gabe Watson for the Death of Tina Thomas (Cambridge Scholars Publishing)