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DPP answers critics

Updated October 04, 2010 09:19:00

The Director of Public Prosecutions defends his decision not to lay charges against 100 men who had sex with a 12 year old girl.

Source: 7.30 Tasmania | Duration: 12min 28sec

Topics: sexual-offences, child-abuse, judges-and-legal-profession, laws, tas


AIRLIE WARD: Tasmania's Director of Public Prosecutions Tim Ellis has come under fire this week for his decision NOT to lay charges against men who paid to have sex with a 12 year old girl.

The girl's mother and a man have been convicted for selling the young girl for sex to more than 100 men... they're each serving ten years in jail.

After initially keeping quiet over the furore, yesterday the Attorney General Lara Giddings said she had asked for the criminal code to be reviewed.

In his only interview on the matter Tim Ellis has strongly defended his decision.

AIRLIE WARD: Tim Ellis, welcome.

Police have announced this week that based on your advice there'll be no further charges laid against the men who paid for sex with the 12 year old girl. Why?

TIM ELLIS, DIRECTOR OF PUBLIC PROSECUTIONS: Because Airlie there wasn't enough admissible evidence in respect of those, not 100 but I think about 12 men who were identified as having had sex with the young girl.

Of the seven I think in respect of which there was admissible evidence, in that they were recorded on video tape after a caution by police, all of them convincingly explained how they mistook her for over the age of 17.

The factors which led to that mistake of course is that she was advertised as being over 18, that she appeared so, that their encounters with her were necessarily brief and that in all respects they were not aware.

Now they gave on video interview a very convincing account of that. We don't have any evidence to contradict that and therefore we decided, when I say we, it was people with combined criminal trial experience of over 1,500 criminal trials conducted between us, decided that there was not a reasonable prospect of conviction.

AIRLIE WARD: I will come to a couple of the points that you made shortly but can we just get a few things clarified? Is it right that over 200 people contacted the girl? And is it known exactly how many men paid to have sex with her? It came out in the trials of course regarding the pimp and her mother over 100?

TIM ELLIS: Not sure where the 200 figure came from. The 100 was somewhat of an estimate; the figure might be somewhere between those two.

In terms of contact, really all there was, was an estimate and some telephone numbers on mainly Devine's (?) telephone, which were traced back.

AIRLIE WARD: So can we clarify there then as well, was there a list of clients?

TIM ELLIS: No. There was no list at all. There was no diary of any forensic use. There were some scribblings and some times and so but absolutely no list of clients with names or anything like that.

AIRLIE WARD: A number of clients gave statutory declarations to police to help gather evidence.


AIRLIE WARD: Against the pimp and the girl's mother. Is it those statutory declarations that would not be admissible in court?

TIM ELLIS: Yes, that's right. Of about 12 identified, five made statutory declarations, which were not cautioned in the sense of being warned that they might be used against them and were not recorded on video tape and so they're not admissible in a criminal trial.

AIRLIE WARD: Are they in addition to the seven who did give video interviews?

TIM ELLIS: Yes, that's right.

AIRLIE WARD: Why not prosecute in terms of certainly public interest; there's been so much outrage about this case?

TIM ELLIS: There's a difference between an interest that the public has in a case and the public interest. The public interest is a bit more deep concept than just things that interest people. It's to do with not putting people on trial where there's no point, where there's no reasonable prospect of conviction. It is not in the wider public interest just to parade people round in order that they might be acquitted but having been acquitted are still being named and shamed.

AIRLIE WARD: If belief that the girl was age of consent is an adequate defence, does that turn on its head many other normal proceedings before the court that ignorance is no defence?

TIM ELLIS: That's misunderstood often. What's said is ignorance of the law is no defence. But mistake as to fact is generally a defence to a criminal charge. In fact the Prosecution usually have to negative mistake, to show that the person wasn't acting under a mistake. In section 124 of the Criminal Code it's different; that the accused person has to prove the circumstances by which he believed the person, the young person to be over 17. He has to prove that on the balance of possibilities. In the end we have to prove his guilt beyond reasonable doubt.

AIRLIE WARD: And on the balance of possibilities, those seven who gave the interview?

TIM ELLIS: It was the judgment based on experience, knowledge of how trials work and an expectation that a reasonable jury, not a lynch mob, would pay careful attention of the evidence and fulfil their oath to deliver a true verdict.

AIRLIE WARD: Does the Criminal Code in your view need to be reviewed?

TIM ELLIS: I don't really think so.

Now the law that I reckon needs looking at is the one that should have been... someone should have had the courage to change when Liz Little was Judy Jackon's adviser or consultant as she styled herself; and the laws regulating or not regulating the sex industry were looked at. We've got an unregulated sex industry, where this sort of thing can happen.

AIRLIE WARD: Nevertheless it's been referred or Lara Giddings has asked the Law Reform Commission to look at it. Would you welcome its examination at any rate?

TIM ELLIS: Oh it never hurts to look at the law, no.

Some of the provisions have been around for a long time. They don't necessarily keep track with community expectations; it doesn't hurt at all to look at the law.

AIRLIE WARD: Professor Caroline Taylor from Edith Cowan University says that the case in Tasmania does illustrate gaping holes in the law and she says the laws do more to protect perpetrators in sex offences, rather than most the most vulnerable, which is children. As Tasmania's chief prosecutor do you agree with that?

TIM ELLIS: No. I don't know what she bases that on. I know it's not on the basis of looking at the evidence, because she's not seen it; she's seen some sensationalised misreporting and misinformation and pure exaggeration and I think wicked exaggeration for the point of view of pushing particular barrows, she's probably paid attention to that. But if she's seen the evidence I'd be very, very much surprised.

AIRLIE WARD: What about the girl and the girl's father? Has your office spoken to them and have they expressed any desire to testify?

TIM ELLIS: No. No desire at all. I can really only wonder what this sort of controversy is doing to her. She was traumatised by what happened to her and to have people running round, people in responsible positions suggesting that she should be put up to give evidence in 100 consecutive criminal cases, I honestly wonder what effect that has on her. It can't be good.

AIRLIE WARD: If the trauma of calling to the girl to give evidence many times over clearly would traumatise her, is that an acknowledgement then that the legal system traumatises children?

TIM ELLIS: I think it's the fact that she would have to remember the events and go over them in ways, when you're talking about consecutive trials they'd have to be spaced and so this you know like never going away for probably years on end for her.

Yes, the system can retraumatise, we do as much as we can but eventually a criminal justice system has to depends on evidence.

AIRLIE WARD: In terms of weighing up the decision, was the trauma the possible trauma to be caused additional trauma caused to the girl the lack of admissible evidence; which was it that was the tipping?

TIM ELLIS: It was the lack of the prospect of conviction.

The way we went about it was to look first at the admissibility of the evidence and the viability of the case as one that would bring conviction and then to look at the alternative that even if it might be established; is it in the public interest to bring these prosecutions, given that this was an innocent child, basically, manipulated by two quite evil people, who are each serving 10 years imprisonment.

To keep her going just to satisfy a blood lust lynch mob mentality that's being stirred up by people with certain agendas, I don't think is in the public interest.

AIRLIE WARD: The sexual assault support services Liz Little says you should consider statutory rape charges.

TIM ELLIS: It's disappointing that someone in Liz Little's position should say such a thing. Clearly her legal expertise must come from watching American television shows because there is no such charge as statutory rape in Tasmania.

AIRLIE WARD: Is there an equivalent?


AIRLIE WARD: The Children's Commissioner Paul Mason says the trials should proceed as a deterrent to any future prostitution of children; do you agree with him.

TIM ELLIS: That is ridiculous.


TIM ELLIS: Because the purpose of a criminal trial is to bring a perpetrator of a crime to trial in which hopefully a conviction can be achieved.

Paul Mason's saying that it sufficient deterrent simply to bring someone to trial. I don't follow that. Bring them to trial on no evidence; what does that deter?

AIRLIE WARD: The former Attorney General, Sir Max Bingham says your decision should be sent for external review by the Attorney General.

TIM ELLIS: Well I would expect no better of course from Max Bingham, since 1973 when he was the last Attorney General to be able exercise political control over prosecutions, it being no coincidence that after him the first independent prosecuting agency was established; a move that he bitterly opposed. He's perpetually saying that any decision he doesn't agree with should be reviewed again.

Max Bingham has not seen the evidence. It is not his function to make the judgment and I mentioned combined experience of criminal jury trials of 1,500. Has Max Bingham done a jury trial since the mid '60s? I don't know.

AIRLIE WARD: Can we just go back to the seven who did admit in video evidence of their paying for sex with the girl. If they did go to court, they admitted it in video evidence or if they went to trial, what kind of sentences would be or could be expected for those men?

TIM ELLIS: The sentences for unlawful sexual intercourse with a young person as it's called; about 60 per cent are non custodial, that means that they do not involve actual imprisonment or suspended imprisonment.

AIRLIE WARD: Just finally, there is somebody still before the courts in relation to this matter.

TIM ELLIS: It's not actually this matter. It's a related matter.

AIRLIE WARD: In a related matter. Is that case, that action still likely to go ahead?

TIM ELLIS: I won't say much about that except to say that the circumstances and facts to be alleged in that case when it comes to trial are very, very much different than the ones we're discussing here with the men who go to the Mid City hotel or a unit in a street in Glenorchy. That's all I'll say about it. That case will proceed. These have nothing to do with that really.

AIRLIE WARD: Tim Ellis thanks very much for your time.

TIM ELLIS: Thank you Airlie.

AIRLIE WARD: Late today, Attorney General Lara Giddings said she and the Solicitor General were both satisfied with the DPP's conclusion.

However, she has asked the Law Reform Institute if any other issues of law raised by this case require reform.