an autodidact meets a dilettante…

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Posts Tagged ‘law

the secret world of DCSI’s Screening Unit unrevealed

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the black box that keeps the Screening Unit’s processes hidden from the public

Jacinta: Ok so let’s do a deep dive into the screening unit, the processes involved, the law that’s being followed, the staffing, the numbers of people being processed, time frames, consequences, pushback, serious possibilities of redress, anything else we can think of.

Canto: So here’s the situation as it stands. I received the letter from the DCSI screening unit on October 30 last year claiming that I ‘pose a risk to the safety of children’. I filed an application for a review of this decision on October 31, and the review is registered as having been commenced on that day. As a result of that DCSI decision, I was suspended from my teaching position, without pay, on November 10, the day my five-week contract was completed. I’ve been working from contract to contract, like most of the teaching staff where I work, or worked, though I was given ‘priority’ as a teacher about two years ago.

Jacinta: So you’ll get your job back if the DCSI’s decision is overturned.

Canto: I don’t know if there’s any guarantee of that. I was told, too, by a lawyer from the Legal Services Commission (I’ve called the LSC three times so far about all this) that I should have a right to some pay even as a casual, but I’m feeling cowardly about making any demands upon my employer, because I really really don’t want to lose my job.

Jacinta: So today is March 6, and it’s been well over 4 months since your appeal was lodged.

Canto: Yes and I’ve written two emails of complaint to the screening unit, and I’ve made an official complaint to the Ombudsman’s office. A rep from the Ombudsman has emailed me twice since, and now my review has been given ‘priority’. Last week a woman from the screening unit rang me, asking me to resend information that I’d already supplied. She explained that attached materials often got lost in the to and fro of emails within the screening unit – which didn’t inspire me with confidence. She also assured me that, once I’d resent the materials, she would quickly shunt me along the line to the next assessor in the process, because I was now a ‘priority case’. This, after four months! I’d hate to think of the wait for those who aren’t given priority. Six months, a year, two years? It’s a very destructive and demoralising process.

Jacinta: For the innocent, which of course you are. So while you’re waiting, I suppose you’ll want to find out more about this screening process. It has become more rigorous, it seems. What triggered this more rigorous screening process, and when was it established? Has the screening unit been bolstered, in terms of resources and staffing, to deal with this more rigorous and time-consuming screening process?

Canto: Yes I’ll try to find out more about this online, because again I’m again a little cowardly about approaching DCSI directly. They’ll think I’m a trouble-making nuisance.

Jacinta: Good god Canto, you’re an innocent man who’s been dealt pretty shabbily, first by the police, than the DPP and now the DCSI, and you’re worried about raising a fuss?

Canto: Well, also, to be honest, I don’t think DCSI will be very co-operative.

Jacinta: There’s really nothing online about this. Nobody appears to be protesting apart from yourself, not online at any rate. There’s nothing negative at all about the Screening Unit, The ‘Me Too’ movement is featured strongly, and there’s a lot of irritation online that false allegations are given a lot of attention when under-reporting of real cases of sexual abuse, harassment and so forth, is more of a problem. So it’s not a good environment for bringing all this up. I suppose at least it wasn’t a female that falsely accused you. Females are considered more reliable.

Canto: Well, I’ve received an update from the Ombudsman’s office. Here’s the most important part of it:

As you are aware I have been assessing the processing of your application for a child related screening clearance. I have been provided with updates from the department and your application is still with the Assessment Team. I understand your initial application took 7 months to process. In the department’s  assessment you would be aware that the department is considering such information as your disclosable court outcomes from 2006 offences. The department should have advised you that your review is being managed by a team of people who process your application independently from the initial application  process. I would anticipate given the current backlog of applications the department is processing that your application may still take some weeks to finalise. This office has met with Screening Unit Officers and the Ombudsman has also met with the Chief Executive of DCSI, Mr Tony Harrison, about the delays in the processing of more complex applications. The department is considering strategies to counter the delay and our office will be advised of their progress. At this stage I do not think it is reasonable for this office to continue to monitor your individual application and I will now close your file. I understand that you are anxious to have your application finalised and invite you to recontact our office in approximately four to six weeks if your application is not finalised.

I’ve put the expression ‘2006 offences’ in bold because the expression was offensive to me, they were of course alleged offences, which were never even tested or explored in court let alone proven. But I don’t think the woman meant to offend me, it was inadvertent.

Jacinta: But wording matters hugely to the innocent, I understand. Anyway the letter provides useful information – you now know that the CEO of DCSI is Tony Harrison, and you learned previously that Kelly Tattersall is the director of the Screening Unit. Above all you’ve learned that there is in fact a backlog of applications and that they’re ‘considering strategies’ to counter the delay. It’s a very slight glimpse through the opacity of the Unit’s workings…

Canto: Another quibble I have – and you’re right, wording matters hugely to the innocent – is the reference to my case as ‘complex’. I don’t see it as complex at all, it’s extremely straightforward, but it was made complex by the behaviour of the police and the DPP.

Jacinta: I’ve found Tattersall on Linked-in. She’s been director of the Screening Unit since May 2013, so she would definitely know something you want to know – whether this ‘rigorous’ screening has been going on for the whole of her period in office, or whether it’s new, and exactly how new it is. She would also know, of course, just how many of these ‘complex cases’ there are. It’s so effing difficult to get any information.

Canto: Another person, who would know, of course, is this Tony Harrison. Just searching on him leads me to the ‘about us’ section of DCSI online. The department is overseen by the state minister Zoe Bettison. The website lists the Screening Unit as one of its assets, but I’m blocked from accessing it. It’s quite literally a black box!

Jacinta: Well I can understand the need for privacy of course, but the lack of public access to its general processes is a problem, to put it mildly. Sunlight is the best…. you know.

Canto: For what it’s worth, I’ve downloaded ta copy of the state’s Children’s Protection Act 1993, updated only last month, and we might look more deeply into that next time.

 

Written by stewart henderson

March 12, 2018 at 9:47 am

my battle for justice – contacting the DPP, among other things

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good question

The prosecution invokes nolle prosequi or dismissal when it has decided to discontinue a prosecution or part of it. Lawyers and judges refer to the charges “nol prossed” or dismissed. The prosecution may nol pross all charges against the defendant or only some.

Micah Schwartzbach, US Attorney

Today has been another of those down days, brooding and empty. But reading just the first couple of pages of Robert Sapolsky’s book Behave has somehow heartened me, by making me aware that I’m one of the lucky ones. Okay, I’ve lost my job, temporarily but probably permanently, and the injustice I’m suffering under is hardly life-threatening, and there are compensations, such as time to read and write, and being a lot more comfortably off then many others in many other countries. The damage to my reputation is minimal, since I don’t have much of a reputation or public profile, I’m just an obscure dilettante whose reclusive personality has made me a failure in friendship, in love, and in all the things that matter to the worldly world. But I miss my job and my students terribly.

Today is March 1, the first official day of autumn, and it’s coming up for 18 weeks since I lodged an appeal to have the decision of the DCSI* reviewed. No decision has yet been reached. I’ve contacted the Office of the Ombudsman, which has been on the case and has since sent me two emails, the last one today informing me that my ‘application is still being actively worked on’. I’m left to wonder what this activity entails. Are they looking at documents I don’t have access to, are they in contact with the DPP*, are they poring over the relevant Act*, are they in discussion or dispute over the danger of setting precedents, are they worrying about flouting directives from higher-ups?

I’ve also contacted the Legal Services Commission, for the third time, and they were very sympathetic and helpful, as always, and offered to send a letter to DCSI on their letterhead to help move things along. They also suggested I write to the DPP about the matter. I wrote to the DPP today, but I’m not particularly happy with my letter.

I need to write, and think, like a lawyer.

In the course of today’s activity I looked again at some of the documents I’ve collected, and they repay closer legal and analytic scrutiny. For example, here is the last paragraph of a letter sent to me on November 24 last year by the director of the DCSI Screening Unit, Kelly Tattersall:

… the Screening Unit noted the vulnerability of the child and whilst there appears to be some concern around the credibility of the allegations, the Screening Unit considered, that in undertaking a risk assessment where there are strong factors of concern, decision-makers should err on the side of caution. Further, that the Screening Unit’s paramount consideration(s)  are the rights, interests and wellbeing of children and their protection from harm.

There are three points I will make here.

First, the ‘vulnerability of the child’, was noted. What does this mean? Yes, the child was vulnerable – that’s why I took the role of his foster-carer. All of the kids in my care were vulnerable. So were all the under-eighteens I taught at college. This boy was no more, or less, vulnerable than any of the others. What point is being made here? Surely the point at issue here is the veracity of the boy’s story, not his vulnerability.

Second – ‘there appears to be some concern around the credibility of the allegations’. This made me perk up. Of course there was a great deal of concern about the boy’s credibility – I knew he was lying, I’m pretty sure my lawyer knew he was lying, and I’m very sure that the Anglicare social worker who was monitoring the placement knew he was lying, because she knew him, and she knew me. However, there was nothing in writing, as far as I knew, that cast doubt on his credibility, so how did DCSI know about this concern about his credibility (apart from my own commentary about the case)? Did they have documents from the police, for example, to that effect? If so, I want them.

Third, ‘where there are strong factors of concern, decision-makers should err on the side of caution’. The ‘strong factor of concern’ arises only on the assumption that the allegation is true, and again the reaction here is to the extraordinarily serious nature of the allegation, not to its veracity. And that is disastrous to any system of justice. As to erring on the side of caution, no no no. To err means to commit an error, to get it wrong. What decision-makers should be striving to do is to get it right. You shouldn’t be erring on any side.

I don’t know if that’s a brilliant legal analysis or not, but it definitely makes me feel better.

Another important point should be noted here. The screening unit may well argue that it isn’t expected that they be as rigorous as the law; that this isn’t their job. They might argue that it’s their job only to make recommendations based on possibility, or plausible possibility of harm to children. Organisations and employers are not obliged to follow those recommendations. But this would be disingenuous, in my view. Virtually all large employers apply the screening unit’s findings as a matter of policy, and DCSI is well aware of this. Furthermore, these screenings have a wider application than ever before, and an adverse finding will preclude the recipients from a very wide range of employment options, including most voluntary positions, for example in Community Centres, Parks and Recreation facilities, any place where children are likely to be present. These screening decisions are treated as law, for better or worse, and so need to be made with as much rigour as legal decisions. To do less would be unjust.

Another legal issue I need to clarify is the matter of nolle prosequi. When I’ve talked to the Legal Services Commission about this finding, they don’t seem to distinguish between nolle prosequi and dismissal. This is clearly a central issue. This is what the Screening Unit Director wrote in the above-mentioned letter:

The Screening Unit noted the matter was referred to a higher court, thus the magistrates court found a case to answer. Ultimately, despite notations indicating ‘serious concerns’ regarding the veracity of the allegations by the DPP, the matter resulted in a nolle prosequi outcome, which is not indicative of innocence or guilt, however the Screening Unit noted the matter was not dismissed or acquitted.

So here’s where the Screening Unit got the idea of ‘serious concerns’, though I don’t have that in any of my paperwork. But clearly the fact that it went to a higher court was an issue for the Unit. As well as the nolle prosequi finding, though I’ve read somewhere – and I might be wrong – that once it goes to a higher court, nolle prosequi is the best outcome a defendant can hope for (apart from acquittal, which was out of the question given the cost, the elaborate court proceedings etc).

So if this is true, the DPP must be blamed for allowing this matter to reach a higher court without having gathered evidence or even checking out the boy’s story. I might also blame the magistrate for saying I had a case to answer, though it appears he was directed entirely by the DPP.

So now to the boy’s story, or stories. I’ve gone through this before, but there’s some new material I hadn’t noticed before, which bears on the case.

According to a police statement written at about the time of my arrest, the boy ‘states at about 3.30 pm on Thursday 23rd September 2004, returned home from school..’ and it then goes on to describe how I raped him in the toilet of my home. It’s interesting to note that an exact date is given, though the boy didn’t tell his story until six months later. Further in the statement comes this: ‘Accused left toilet and victim went into bedroom and locked door’. As I’ve noted before, the phrase ‘locked door’, indicating that there was a lock on the bedroom door, were the only words in the whole statement that could be independently verified police. However the police made no attempt to verify this claim until after my case was taken to a higher court. Verification of this claim should have been a prerequisite for taking the case to a higher court. Let me make this clear: it doesn’t require anyone to be AN EFFING SHERLOCK HOLMES. It simply requires due diligence.

There were no locks on the boy’s bedroom door or any other bedroom doors. The boy didn’t notice this because he never felt unsafe. So he guessed, and lied. The police eventually came to my house, checked the doors, and the case was dismissed: nolle prosequi.

I should point out that, in a court appearance of 27 February 2006, this brief charge was made: that I, ‘between the 1st day of September 2004 and the 30th day of September 2004… had anal sexual intercourse with… without his consent.’ The charge was rape. And then in another court appearance dated May 3 2006, again the time period is 1-30 September, but this time I’m apparently charged with 2 counts of rape. Apparently the boy doubled down on his story, perhaps under pressure, apparently learning or guessing that the more horrific his tale, the more likely it would be believed. But it should also be noted that the claim that he was raped twice over a month makes it even more unlikely that he wouldn’t notice that there was no lock on his bedroom door. And there’s also ththee question  – since there was no lock on the door, why would I choose to attack him in the toilet? A fondness for the sordid and unclean?

Anyway, enough of this unpleasantness. The case against me is ridiculous. There are bigger fish to fry. Why exactly is this ‘rigourous’ screening being instituted? There doesn’t seem to be an increase in child abuse, so who’s driving this? And who’s suffering, beside myself? This is a can of worms that needs to be opened up. Sunlight is always the best disinfectant. We need to shine some of this light on the DCSI, and the government that’s driving this grand attempt to protect children, as male teachers leave the profession in droves.

I also want to focus on foster carers, those largely unsung heroes, and the lack of protection they get from jittery religious organisations, who have cornered this market. There’s more than one scandal going on here.

 

 

Written by stewart henderson

March 1, 2018 at 10:43 pm

the latest summary of my battle for justice

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SA’s Supreme Court, a possible destination

I’ve written five posts recently on what I call ‘the big lie’ (see links below), and I might end up turning it into a book. It looks like I’ll have plenty of time on my hands to do so. My last post was on January 20, and since then there’s been no word from DCSI (SA’s Department for Communities and Social Inclusion) on the review of the decision, which officially commenced on October 31 2017 – 105 days ago. On the website for the Screening Unit of DCSI (or DCSE in my case), we’re told that a review will take 6-8 weeks or longer. Of course they don’t say how long longer is.

105 days is of course exactly 15 weeks. I have been suspended from work without pay since November 10. I’d been in my job as an educator in English for Academic Purposes for only four years. It was mostly part-time, and TESOL is probably the most lowly-paid job in teaching, which is already well-recognised as an under-paid profession. However it’s the best job I’ve ever had, and I miss my students – a lot.

I point all this out because I want to make it clear that I lack the financial resources to hire a lawyer to help me clear my name in a civil or criminal court, even if there were any avenue for me to do so, and at this stage it appears not.

However, if I can find an avenue, I will represent myself.

So, two weeks ago I wrote an email to the people responsible for my review. I used the same email address they gave me for sending any further information that might assist my case – personal/professional references or any other documents I might have unearthed. My email was essentially a begging letter about the personal and financial stress I was going through due to their delayed decision. I received no response, so last week I wrote a letter of complaint to DCSI about the delay. I received no response from that either, so yesterday I filed an official complaint about the matter to the SA Ombudsman, whose office looks into official complaints about state government departments, inter alia. After managing finally to fill out correctly their not-so-user-friendly form, I was told they would respond within a fortnight.

So that’s where things stand at present, but I worry that the longer it takes for the Screening Unit to decide for or against me, the less likely it will be that I’ll be reinstated in my job, whatever the outcome.

Meanwhile, as well as trying to turn my mind to other things, and to blog about them, I’ve been looking online for possibilities for clearing my name, taking action against wrongful arrest or wrongful prosecution, and so forth. And I’ve come up pretty well empty. DCSI provided me with a pamphlet on Procedural Fairness as part of their request for further information back in April last year. Under ‘further avenues of appeal’ it states: ‘You may also seek a judicial review of  an administrative decision in the Supreme Court’. If the decision is against me, I will do that, but that won’t be enough, though it may be that the Supreme Court, in reviewing the case, will accept that a nolle prosequi decision was unfair in light of the complete absence of evidence presented. In which case, the DPP and SAPOL may have a case to answer, a case that I would be keen to pursue.

The problem with this, though, is that first and foremost I want my job back, and I’m getting on for 62 years of age. How long would all this take? And it’s also clear that seeking redress for false accusations, and even for unjust convictions leading to deprivation of liberty, is no easy matter in Australia. My online research on this stuff just leaves me feeling depressed. It should be said that the case of Roseanne Beckett, linked to above, ended well for her after 26 years (and the injustice she suffered completely dwarfs my own, to put it mildly).

My concern in fighting this case is:

First, to find out if the accuser is still sticking by his accusation.

Second, to determine how the police can justify not visiting the so-called scene of the crime until after the case had been transferred to a higher court (thus necessitating the production of evidence, or at least verification of the boy’s story).

Third, how can the police justify arresting me without evidence? Their own justification is stated tersely on their charge sheet:

‘Accused arrested to ensure appearance and due to the serious nature of the offence’.

So, two reasons are given. To take the second one first – due to the serious nature of the offence. Is it fair to arrest someone solely on the basis of a claim being serious or extreme? Think of the term used in science: extraordinary claims require extraordinary evidence. Prima facie, I can’t see how you can justify arresting someone for a crime as serious as rape, with all the opprobrium understandably attached to it, and the damage to the accused’s reputation, without any evidence whatever beyond the story of the accuser. To do so would, IMHO, lack due diligence to an extreme degree. So now to the first reason – to ensure my appearance – that is, to ensure I wouldn’t ‘do a runner’. However, this makes no sense. For many weeks before my arrest I was aware that a serious allegation had been made against me. I also made the police aware of this because, after weeks of being kept in the dark, I made an official complaint to the Police Complaints Authority about my situation. It was Anglicare who informed me, by phone, that a serious allegation had been made, immediately after they had manoeuvred my new foster-kid out of the house on a false pretext. Clearly, the police had contacted Anglicare about the allegation against me, and they (the police) would have ensured that no other minor was in my care until this matter was investigated. So the police knew that I knew something was afoot, and they would have known, or should have known, from the Police Complaints Authority matter, that I wasn’t going anywhere. In short, neither of the reasons given by the police for my arrest bear close scrutiny.

Fourth, how the DPP can justify proceeding, when their mission statement is clear that no case will be prosecuted unless there is a reasonable chance of conviction.

But at first glance there seems no avenue for fighting the whole case, so I would have to begin by fighting the DCSI’s decision. This fight would mean questioning why the screening unit looks upon nolle prosequi so negatively. But here I must say that my researches have uncovered something which I may have written about before, forgive me. That is, that there are three possible way in which the prosecution could be unsuccessful, not two, as I’d previously thought.  They are: a finding of not guilty (i.e. acquittal), which would entail an expensive full trial, which was never going to happen; a dismissal before arraignment, in which the DPP recognises it doesn’t have a case; and a nolle prosequi dismissal after arraignment, because the DPP has somehow convinced the magistrate that the defendant has a case to answer. It is because the case was sent to a higher court at arraignment (or did the arraignment actually take place in the higher court? I’m not sure) that I’m in the position I’m now in, without a police clearance, and in danger of never being able to teach again, even in a voluntary capacity, at least not in a community centre, where these more stringent police clearances are now mandatory.

In any case, it’s time now to act, I can’t keep waiting, stuck like a rabbit in the headlights. I’ve been too passive in this case. I need to take it to the Supreme Court, if possible – regardless of the eventual decision of DCSI.

https://ussromantics.com/2017/11/11/the-battle-for-justice-part-1-some-background-to-the-case/

https://ussromantics.com/2017/11/13/the-battle-for-justice-part-2-the-problem-with-nolle-prosequi/

https://ussromantics.com/2017/11/14/the-battle-for-justice-part-3-is-there-any-way-to-clear-your-name/

https://ussromantics.com/2017/11/21/the-battle-for-justice-an-update-the-problem-with-documents/

https://ussromantics.com/2018/01/20/police-procedures-the-dpp-and-subtle-corruption/

 

Trump downfall update. The latest indictments of Russians obviously undercuts Trump’s claims about the ‘Russian hoax’ as well as the ‘tattered FBI’ and might have an affect on the Trumpets. They should have an undermining effect on the Congress Trumpets in particular – Nunes, Collins, Cotton and co. If, after this, the GOP Congress continues to deny or do nothing about Russian conspiracy to influence elections, including the coming mid-terms, isn’t this obstruction of some sort? Or some sort of passive collusion? It certainly is an outrage. Pressure should next be brought to bear on sanctions, and that would mean more pressure on Trump.

Written by stewart henderson

February 17, 2018 at 11:32 am

the battle for justice part 3 – is there any way to clear your name?

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A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.

from ‘The decision to prosecute’, in ‘Statement of prosecution policy and guidelines’, Director of Public Prosecutions, South Australia, October 2014

shit, please don’t tell me the other 24

I’ve argued that it’s pretty well impossible to clear your name, once you’re arrested and charged with a serious crime, due to the nolle prosequi conundrum. And if the charge has to do with a child, you’re unlikely to get work which may involve children, even if no evidence whatsoever has been presented against you, as in my case. But surely there must be some way to clear your name. It can’t be all doom and gloom. Can it?

  1. Approach the former plaintiff

A number of people who know about the case have asked me – what about the boy who accused you? He’s a young man now, maybe he regrets it all and has changed his tune. If he could be prevailed upon to admit it was all a lie..?

To be honest, I have no inclination whatsoever to go looking for him, and it would probably look bad if I did. And if he changed his story after encountering me, or someone acting in my name, how reliable would his new story be? So I’m very reluctant to go down that path, though it might be a last resort.

2. Approach the DPP

More promising, perhaps, would be to go to the DPP. Why did they abandon the case? My guess has always been that the boy’s story was full of contradictions and kept changing, but it’s also possible that, under pressure, he admitted it was all made up. Way back then. As one of my quotes on nolle prosequi, from my previous post, states: Normally the DPP doesn’t give a reason for such a decision. I’m in the process of requesting all the court documents from the case, and maybe a reason for the decision will appear there, but again I’m very doubtful. And approaching the DPP for a reason now would surely be like trying to get blood out of a stone. Still, such a request might be worth a try.

3. Take it up with the ombudsman/human rights commission

Assuming my appeal fails – and it probably will – the DCSI website kindly suggests that I could take the matter up with these other organisations. The obvious problem with this is that it would be a long-term process, and I’m 61 years old, poor, and desperate to be reinstated in the job I love now. So, yes, I do feel it’s a human rights issue, and I would like to take it up, regardless, with the HRC, though I can hardly imagine it being a priority for them. It’s not a serious option for my immediate situation.

4. Appeal to consistency of character

This is the one that screams at me (and at others) as my best defence. We’ve all heard of criminal profiling, where the police or criminologists seek to predict future offending and victims based on past behaviour, but I have no criminal profile. When I was accused by this boy I was forty-nine years old, with no history, and never any accusations, of violence or sexual abuse of any kind. I’d fostered two young boys before this lad, and I fostered another three after him, with no complaints. I’m proud of what I did as a foster carer, and I’m particularly proud of my work as a teacher in recent years, with mostly young adults but a sprinkling of under eighteens in each class – scores  of them overall. And never a hint of a complaint. On the contrary…

And this is what really hurts. When the police arrested me for rape, they had never so much as seen me before. They knew nothing about me, they wouldn’t know me from a bar of soap. They arrested me purely due to the seriousness of the allegation. When the DPP took up the case, passing it from lawyer to lawyer for about a year, none of them knew me from a bar of soap. I was no more than a name. Similarly, when the DCSI began screening me 11 years later, they didn’t know me from a bar of soap. I was just one of the presumably thousands of individuals they had to screen. And they didn’t investigate me, in the way the Dunedin Study studied particular individuals longitudinally – profiling them, essentially. They investigated documents. The documents of the police and the DPP. The documents relating to that one, isolated allegation. Nothing else mattered. Nothing.

So an appeal to consistency of character won’t work when character isn’t being looked at at any point down the line. The DCSI appears to look at documents, not at character. The DPP also looks at documents, police documents, and the police don’t seem to look at anything much. The DCSI has stated that an adverse finding isn’t binding. Employers can make up their own minds. But it’s no surprise that employers, especially large-scale impersonal employers, given the current state of moral concern or panic over sexual abuse, will have a policy of accepting the DCSI finding. Thus in this case, they’ll rely on DCSI documents, which rely on court documents, which rely on police documents, which rely on, in this case, nothing much. I think they call this ‘procedural fairness’. Let’s not let our human, personal biases get in the way of effective decision-making.

The Dunedin longitudinal study, and every other study of its kind, give strong scientific credibility to the insight that the best guide to future behaviour is past behaviour. My life-time record of civilised, tolerant, non-violent and caring behaviour, however, was never taken into account by the police when they asked me to sit down at the Port Adelaide police station, not knowing me from a bar of soap, and promptly charged me with rape. And everything that I suffered over the next year, and everything that the DCSI is putting me through now, results from that event.

I had a chat with my semi-former boss today (I’ve been sort of suspended from work pending the outcome of my appeal). I told her I held little hope of my appeal being successful, because ‘I had nothing more to declare but my innocence’. I didn’t actually say that, just thought of it now, but that was the gist of it. But interestingly I feel more confident now as I go through the processes. That’s the usual way when you’re under this kind of cloud, your thoughts oscillate, often extremely, from pessimism to optimism and back again.

My hope, ridiculous as it is, is that when organisations like DCSI have their noses rubbed into the basic injustice of taking the most extreme, conservative view of nolle prosequi, thus destroying the careers of good people, they will see reason. And they might also be persuaded of the obvious truth that everyone else is taking the most extreme, conservative view of their findings.

I’ll no doubt survive, deprived of my vocation. I’ll go into retirement earlier, I’ll be more pressed for funds. I’ll most certainly miss my students, more than anything. But I won’t give up the fight. I don’t want any of these people to feel complacently that they’re making this world safer for children and young people. In this case, they’re most definitely not. And it’s not good enough to shrug and think that some collateral damage is necessary when you’re doing the ‘right thing’. It isn’t.

Written by stewart henderson

November 14, 2017 at 11:32 am

The battle for justice part 2: the problem with nolle prosequi

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A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.

from ‘The decision to prosecute’, in ‘Statement of prosecution policy and guidelines’, Director of Public Prosecutions, South Australia, October 2014

Continuing from last post, the case against me was dropped a short while after the arraignment, but not before the police made a visit to my home, the soi-disant scene of the crime. They’d never visited my home or made any contact with me since the arrest, many months before, but it seems the arraignment had spurred them, or forced them, into action.

This was something I’ve never really got. Like many of us I’ve watched my share of crime shows and whodunits. Typically, the arrest comes as the final scene, after weeks and months of painstaking sleuthing. Yet my arrest seemed to have come at the start (though I did have to wait for a while), before any questioning. And then, after the arraignment, the police suddenly showed up at the putative crime-scene to do their sleuthing at last.

I knew what they’d come for, too. Long before, my lawyer had told me some of the details of the boy’s claim. I had apparently raped him in the toilet, after which he’d gotten away and locked himself in the bedroom. I was able to tell the lawyer that none of the bedrooms in my house were lockable, so that part of his story was demonstrably false, so at long last they’d come to check. And then, almost the next day, I was told the case was over.

I don’t remember being sent any paperwork to that effect but I suppose I must have. I was just relieved it was all over, that sanity had prevailed, etc. But this year, more than 11 years on, I came to realise, thanks to a screening process by the DCSI (the South Australian government’s Department of Communities and Social Inclusion), that it wasn’t over, and that it would never be over. This was because of the little matter of ‘Nolle Prosequi’:

The entering of a nolle prosequi by the Director of Public Prosecutions means that he is not pursuing the prosecution at this stage. Theoretically he may pursue the prosecution at a later stage, but this rarely, if ever, happens. Normally the DPP does not give a reason for such a decision, but it is usually based on a problem with the evidence he has assembled. In the course of assembling it, or after it has been assembled in a book of evidence, a problem may arise with a witness or a crucial part of it, that would make it difficult to proceed. Difficulties of this nature usually undermine the whole basis for the trial. Even if new evidence is discovered, the problems with the old evidence remain. If a nolle prosequi is entered, and then registered by the court, the accused is discharged and free to go. He or she enjoys the presumption of innocence that all accused people enjoy until they are convicted of a crime beyond all reasonable doubt. (Carole Coulter, Irish Times, April 2006)

 

Nolle prosequi... is a legal term of art and a Latin legal phrase meaning “be unwilling to pursue”, a phrase amounting to “do not prosecute”. It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor’s decision to voluntarily discontinue criminal charges either before trial or before a verdict is rendered. It contrasts with an involuntary dismissal. Legal effect [in the USA]: The entry of a nolle prosequi is not an acquittal, and the principle of double jeopardy therefore does not apply. The defendant may later be re-indicted on the same charge. Effect on future employment [in the USA] Federal agencies, especially the military, view nolle prosequi as an unfavorable judgement. This has the effect of requiring a waiver submission for service, or the outright denial of employment (WIKIPEDIA).

Nolle prosequi was the ‘finding’ in my case.

As indicated in the quotes above, nolle prosequi can be interpreted as anything from ‘presumed innocent’ to ‘still pretty suss’, and it seems any department, any arm of government, is at liberty to interpret it as they wish (and given the current environment, they’re more than likely to err on the side of the child/accuser). But here’s the kicker, as the yanks say. And it’s an extremely important and fundamental kicker for my argument. Once arrested (for sexual abuse or rape, say) nolle prosequi is essentially the best any accused can hope for!! This is the dirty little secret your lawyer is most unlikely to tell you about.

Let me explain. When you go and seek legal aid to defend yourself against a false charge [please, if only for hypothetical reasons, assume the accusation is false], it means you’ve already been arrested, and the DPP has already instituted proceedings against you. And once a prosecution is instituted, your lawyer will try to get it thrown out, i.e nolle prosequi. The other alternative is acquittal – but acquittal can only come after a full criminal trial. I quoted in my last post that an arraignment is the first stage of an 11-stage criminal trial in Australia. That should give an indication of just how humungous a criminal trial actually is – involving lawyers, witnesses and experts for both sides, the presentation of different types of evidence, examinations and cross-examinations, a jury presumably, and all in all a process that will tie up a courtroom for some time, with much expenditure of money and energy. So your lawyer is actually trying her best to make sure you don’t have your day in court. So nolle prosequi is the lawyer’s victory, but if organisations like DCSI interpret nolle prosequi as ‘still pretty suss’, that means you’re stuffed – for the rest of your life! If not longer.

Now, notice the statement from the DPP at the top of this post. It sounds impressive – they won’t go ahead with a case unless they have a reasonable prospect of succeeding (and this would surely mean having sufficient, or at least some, evidence). Now, let me tell you that during the whole 13 or 14 months that my case was ongoing, I was in a state of sleepless agony, and occasional rage, with the mantra ‘no evidence, no evidence’ echoing in my head, and on the day after I heard that my case was dismissed, I took to my computer and typed a terse paragraph to the DPP (yes I’m sometimes capable of terseness), accusing them of incompetence in my case, not only for seeming to pass the buck from lawyer to lawyer, but for going against their prosecution policy as stated on their website, which I quoted back to them (the policy was, I believe, worded a little differently in 2006 from the 2014 version quoted above, and I think then it actually mentioned evidence). Not surprisingly they didn’t respond, but I met my lawyer, purely by accident, a few months later and he told me my letter had caused quite a stir – which thrilled me as throughout the case I always felt like Mr Nobody or The Invisible Man. I asked him why, with no evidence at all, the case had lasted as long as it did. His response was that I was one of the lucky ones. Many people in his experience had gone through this process and been destroyed, based on no more evidence than they had against me. No more than someone’s story.

But I’ve had another insight since taking aim at the DPP all those years ago. Yes, I still think the DPP contravened their own policy by taking on my case, but I was forgetting, in my utmost naivety, the role of the police. Yes, the DPP say they won’t prosecute a case unless they have a reasonable chance of success, but when the police arrest a person and charge him with rape, the DPP obviously don’t know a thing about it. They only find out later, from the police. In other words, the DPP has cases ‘dumped’ on it by the police, and has to make the best of them. Their ‘reasonable prospect of conviction’ is based entirely on the word of the police that they have sufficient evidence. You can see here how a world of tension and acrimony might open up between the police and the DPP.

So it looks as if my anger against the DPP might’ve been misplaced. My anger should have been directed at the police. But of course if I’d written to the police about their lack of evidence, where would it have got me?

 

Written by stewart henderson

November 13, 2017 at 2:53 pm

Posted in argument, work

Tagged with , , , , ,

The battle for justice, part 1: some background to the case

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A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.

from ‘The decision to prosecute’, in ‘Statement of prosecution policy and guidelines’, Director of Public Prosecutions, South Australia, October 2014

not this movie, unfortunately

I rarely focus on myself on this blog, but now I feel I have to. Today I lost my job because of something that happened to me about 12 years ago. So the next I don’t know how many posts will be devoted to my battle for justice, in the hope that it may help others in a similar situation. Of course I also find that writing is my best solace, as well as my best weapon. I have no financial resources to speak of, all I have is a certain amount of nous.

Between 2003-4 and 2010 I was a foster carer, under the aegis of Anglicare. Over that period I fostered six boys, with naturally varying success.

So why did I become a foster carer? I simply saw an ad on a volunteering website. I was being pushed to do some work, which I’ve always been reluctant to do, being basically a reclusive bookworm who loves to read history, science, everything that helps to understand what humans are, where they came from, where they’re going. And I hate when work interferes with that! But having come from what for me was a rather toxic family background, trying to shut myself from screaming fights between parents, and being accused by my mother, the dominant parent, of being a sneak and a liar, and ‘just like your father’ (her worst insult), and being physically and mentally abused by both parents (though never sexually), and having run away from home regularly in my teen years, I imagined that, as a survivor, I could offer something which might work for at least some of these kids  – a hands-off, non-bullying environment which would be more equal in terms of power than many foster-care situations. Call me naive…

Mostly, this approach worked. I did have to get heavy now and then of course, but not for long, so I always managed to stay on good terms with my foster-kids, as I have more recently with my students. This was even the case with the lad who accused me of raping him.

Let me describe the case as briefly as possible. A fifteen-year old boy was in my care in September 2005. He was much more of a handful than the previous two boys I’d looked after, and when I lost my temper with him during a school holiday trip in Victor Harbour, he took it out on me by claiming to his mother, with whom he spent his weekends, that I’d punched him on the back of the head. This was false, but his mother took the matter to the police, and the boy was immediately taken out of my care.

After an internal review conducted by Anglicare I was cleared of any wrongdoing, to their satisfaction at least, and another boy was placed in my care. Then, sometime in early 2006, this boy was secretly whisked out of my care, and I was informed by Anglicare that a serious allegation had been made against me. I was in shock, naturally thinking this new boy had also accused me of some kind of violence, but I was finally informed by the Anglicare social worker who’d been overseeing my placements that ‘it isn’t your new foster – kid’. The penny dropped more or less immediately that it was the same boy who’d accused me of hitting him. This boy, as far as I was aware, was now living happily with his mum.

I was left in limbo for some time, but eventually I received a message from the police to go to the Port Adelaide police station. There I was asked to sit down in an office with two police officers, and informed that I was under arrest for rape.

I was somewhat taken aback haha, and I don’t recall much of the conversation after that, but I think it went on for a long time. I do remember one key question: if the boy’s lying, why would he make such an allegation? I had no answer: I was unable to think clearly, given the situation. But later that night, after my release on bail, an answer came to me, which might just be the right one. When the boy was in my care, the plan was to reconcile him with his mother, who put him in care in the first place because she couldn’t cope with him. I knew his mother, as I met her every weekend for handover. She was highly strung and nervous, and it seemed likely she was again having trouble coping with full-time care. Quite plausibly, she was threatening to return him to foster care, which he wouldn’t have wanted. She allowed him to smoke, she allowed him to hang out with his mates, and her environment was familiar to him. To him, I would’ve seemed boringly bookish and unadventurous. What’s more, his claim that I’d hit him had worked perfectly for him, getting him exactly where he wanted. Why not shut the door on foster care forever, by making the most extreme claim?

I don’t really know if this sounds preposterous to an impartial reader, but this answer to the riddle struck me as in keeping with what I knew of the boy’s thinking, and it was backed up by a remark he made to me, which soon came back to haunt me. He said ‘my mum’s friend told me that all foster carers are child molesters…’. It was the kind of offhand remark he’d often make, but it was particularly striking in light of something I was told later by my lawyer. Apparently, the boy didn’t tell his mother directly that I’d raped him, he’d told a friend of his mother, who’d then told her.

So, after the sleepless night following my arrest, I felt confident that I knew the answer to the key police question. I typed it up and took it forthwith to the Port Adelaide station (I didn’t trust the mail). How utterly naive of me to think they’d be grateful, or interested! I received no response.

So I obtained a lawyer through legal aid, or the Legal Services Commission. At the time I was dirt poor: I’d received a stipend as a foster carer, but that had stopped. Otherwise I worked occasionally as a community worker or English language teacher, mostly in a voluntary role. From the moment I was charged I spent many a sleepless night imagining my days in court, heroically representing myself of course, exposing contradictions and confabulations, citing my spotless record, my abhorrence of violence of all kinds, etc, etc. So I was a bit miffed when my lawyer told me to sit tight and do nothing, say nothing, and to leave everything to him. Standard procedure, presumably. The case passed from hearing to hearing (I don’t know if that’s the word – at least there were several court appearances), over a period of more than a year, and every time I expected it to be dismissed, since I knew there was no evidence. It had to be dismissed, there could be no other possibility. The only reason it had become a court matter in the first place, it seemed to me, was the absolute enormity of the allegation. But how could this possibly be justified? But I had to admit, the boy had, more or less accidentally, stumbled on the perfect crime to accuse me of – a crime committed months before, where there could be no visible evidence one way or another… It was all very nerve-wracking. And I was very annoyed at the fact that the DPP (the Office of the Director of Public Prosecutions) seemed to have different lawyers representing it at every court appearance, and mostly they behaved as if they’d only been handed the brief minutes before.

Finally I arrived at the lowest point so far – an arraignment. I didn’t know this (my last) appearance would be an arraignment and I didn’t know what that was. I just expected yet another appearance with a handful of yawning court officials and lawyers in attendance. Instead I found a packed courtroom.

Arraignment is a formal reading of a criminal charging document in the presence of the defendant to inform the defendant of the charges against him or her. In response to arraignment, the accused is expected to enter a plea.

In Australia, arraignment is the first of eleven stages in a criminal trial, and involves the clerk of the court reading out the indictment. (WIKIPEDIA)

The reason the courtroom was packed is that several arraignments are processed in the same courtroom on the same day, so there were several accused there with their friends and families. Unfortunately, I was solo. On my turn, I was taken out to the holding cells and brought in – some kind of ceremonial – to the dock. The charge was read out (I’d already been given the ‘details’ by the lawyer, so I barely listened to it) and I was asked to plead, and the judge told the court, to my utter amazement, that I was adjudged to have a case to answer.

So it was perhaps even more amazing that, a week or two after that appearance, the case was dropped.

 


 

Written by stewart henderson

November 11, 2017 at 7:34 pm

women in science, solutions, and why nobody reads my blog, among other things

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img_0417

Okay I’ve written facetiously about getting rid of men, or seriously (but facetiously) reducing their proportion of the populace, but in future I want to look at real solutions to a problem that I think is already being addressed but far too patchily and slowly – the problem of male power and dominance. The general solution, of course, is the ascent of woman, to paraphrase Jacob Bronowski via Darwin, and how to promote and quicken it. (Incidentally I’ve just discovered that ‘The Ascent of Woman’ is a four part documentary on women’s history, recently produced for the BBC by Dr Amanda Foreman – look forward to watching it).

However, before continuing I want to issue a plea for help. My blog, which I’ve been writing for many years now, has never had much of a readership, due probably to my inability to network, or even communicate much with others (I’d rather not think it’s anything to do with my writing skills). However, last month even that minuscule readership virtually collapsed, as I recorded my lowest number of hits since my first month of blogging. I’ve soldiered on, but now at the end of September I find this month’s numbers even worse. I feel I need to make a decision about the blog’s future – How do I increase the numbers? Does the blog need a makeover? Can I blame the attention-span of others? I find if I write short pieces, they don’t really cover anything in depth, but I know also that the in-depth pieces, the ones I work on hardest, often get the least attention. Should I just give up and go back to journal writing? At least that way I won’t be faced with the world’s indifference…

Anyway, enough about me – it’s interesting that when you start focusing on an issue, you hear about it everywhere, everybody seems to be talking about it. Today, listening to a podcast of the ABC Science Show, I heard that teenagers are our biggest killers, worldwide, predominantly through motor vehicle accidents. And of course we’re talking largely of male teenagers. The researcher announcing this was female, and, typical female, she was complaining about us tackling this old problem (this has been the global situation for some sixty years) in the same old piecemeal way, rather than though global collaboration in researching and trying to figure out workable solutions to what is clearly a global problem. It was clear from this passionate speaker (and mother of teenage children) that with more females leading research in this and other fields, we’ll get more collaboration and quicker and more effective solutions. And when Robyn Williams, our honourable Science Show anchor, asked the researcher a double-barrelled question – is this teenage problem a male one, and should teenage boys be banned from driving? – her honourable response was ‘yes, and yes’.

The question is – would a law specifically targeting boys/young men as drivers ever be implemented? Of course, many males would describe it as discriminatory. And of course it does discriminate, because the statistics are clear. But why, a young male might ask, should I be treated as a statistic? I’m not like other young men.

It’s a valid point, and I can’t see an obvious way of screening out the potentially safe young men from the potentially dangerous ones. So all we could acceptably do is raise the driving age for all, preferably globally, which would effectively discriminate against the statistically safer drivers, the females. Still, I like the idea of a push, led in the main by women, for a discriminatory driving age policy backed by science. It would raise the profile of the issue, bring women together in an excellent cause, potentially save lives, and feature as another small episode in the ascent of women.

Of course it wouldn’t solve the terrible wee problem of young kids stealing cars and killing and maiming others and themselves for pumped-up kicks…

Written by stewart henderson

October 1, 2016 at 8:39 am