It sounds like the Jerry Springer Show — rape allegations, a family torn apart, a father in custody, a mother charged with being a party to the offences, a teenager running off to live with a man twice her age.
And it happened here in Queensland. Here's the scenario. A 14-year-old girl wants to move in with the 28-year-old neighbour in the caravan park. Her father opposes her wish. Suddenly the daughter claims her father has raped her. He is arrested and taken into custody. The girl promptly moves in with the older man next door.
What makes this story all the more bizarre is the fact that because of Queensland's tough new laws to protect child complainants from cross-examination, the girl's claims cannot be challenged in court at a preliminary hearing. Consequently, cases are going to trial which should have been stopped in their tracks much earlier.
The laws intended to protect children are, in fact, prolonging some cases, and lock defendants behind bars on remand for months on end.
Changes to the law introduced in January last year effectively mean a child complainant's statement, which forms the crux of the case, is accepted without any attempt in the preliminary court stages to determine whether the child is telling the truth.
As children cannot be cross-examined at a committal hearing, it effectively consigns the defendant to an expensive trial, and incidentally makes more work for the courts. Lawyers now have to seek a magistrate's permission to cross-examine a child at a committal hearing, but until last month no applications were ever approved, which effectively ensured that any committal hearing would be guaranteed to lead to a full trial.
As a Queensland criminal defence lawyer trying to navigate this legal obstacle course, I believe changes to the Evidence Act to protect children from cross-examination have gone too far and need an urgent overhaul. The state's lawmakers are out of step with the real world.
A law intended to protect small children from any trauma in the courtroom also applies to teenagers as well. All parents of teenagers know there are times when teenagers put personal benefit ahead of all other considerations.
The child evidence law restrictions directly impact on a 35-year-old Ipswich man who has been in custody for almost three months facing charges of rape against his 14-year-old daughter.
Applications for bail have been refused, despite the man's wife saying their daughter made false allegations to remove her father from the home, so she could have a relationship with their neighbour.
Her father strongly opposed the relationship. The moment her father was charged with rape and taken into custody, his daughter moved in next door with the neighbour. Her mother reported the teenager as a runaway.
What happened next is even more bizarre. Almost three months after the case began, police suddenly charged the mother with being a party to the alleged offences.
This case highlights the need for the law to protect children yet be flexible to reflect situations in which an older child's claims need to be tested in court to determine whether they are genuine.
In the Ipswich rape claim case, the teenage complainant had refused any medical tests, and the case comes down to her word against her father's.
It has become easy for young people to make serious claims of offences against them but it's harder for them to face their parents in court and be cross-examined on their claims.
This is where the court can see at first hand just how genuine the complaint is, yet because of the evidence laws now, the court automatically presumes the child is telling the truth.
The law also erodes the presumption of innocence for the defendant and sets up a system to deprive defendants of a fair trial. Right from the outset the court effectively believes the complainant over the defendant.
This is not right and it's not a basis for a fair system of justice. Some safeguards are needed against badgering but the reality is that criminal defence lawyers don't behave like this in Queensland. Above all, magistrates have the power to stop a line of questioning.
The safeguards already are there to protect child witnesses and complainants. Other measures to protect children giving evidence include using closed-circuit TV or pre-recording of evidence with video played to a jury.
Before the law was changed, children could be cross-examined live in court through either closed-circuit TV or behind a screen. The key is that a child's allegations could be tested at the committal hearing but not now, which means their complaint is unchallenged.
It effectively ensures some cases go to trial which could and should be stopped long before that time.
Meanwhile, the defendant languishes behind bars, because we are not allowed to get to the truth of the allegations against them and the seriousness of the charge means they are denied bail.
The Ipswich father spent Christmas and New Year behind bars. He is still in custody.
The law is wrong, it is eroding our concept of justice and cuts to the core of our confidence in the judicial system.
The evidence law needs to be changed as a matter of urgency.