Victorian gay man Thomas McCosker, who was acquitted of sodomy charges in August by Fiji’s High Court, is facing a new trial after the South Pacific nation’s Department of Public Prosecutions launched an appeal late last month.
McCosker’s Fiji-based lawyer, Natasha Khan, said she would know within a month if a fresh trial date would be set, though it was not likely to be held until early to mid-2006.
Khan said McCosker’s acquittal would only be overturned if the current push by conservative religious groups, such as the Fijian Methodist Church, succeeded in changing the nation’s constitution to allow discrimination on the basis of sexuality.
Church leaders were angered by the High Court’s decision in the McCosker case, which they saw as condoning homosexuality.
They will argue the High Court’s ruling was wrong because the society’s majority on issues such as this is more important than an individual’s freedom, Khan said.
High Court Justice Gerard Winter found Fiji’s 1997 constitutional amendment, which protects privacy and equality, overruled the country’s anti-sodomy laws because the act was consensual and in private.
The constitution states: A person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her: actual or supposed personal characteristics of circumstances, including sexual orientation.
Khan said the DPP had threatened to attempt to extradite McCosker to Fiji to face the appeals court. If his acquittal is overturned he could face 14 years in jail.
But Khan was confident her client would remain free.
We are not even 100 percent sure the DPP will pursue the case, she said.
I can’t see why the Court of Appeal would overrule the High Court decision.
McCosker was convicted of sodomy in Fiji after consensual sex with Fijian national Dhirendra Nadan, 23, in a hotel room. He was arrested, charged and convicted within 48 hours without legal representation and sentenced to two years in jail.
The pair were later released ahead of their ultimately successful High Court appeal.
McCosker, 55, returned to his home town of Warrnambool in August with his partner of 25 years after the High Court ruling.
The chief executive of Victorian gay organisation The ALSO Foundation,Adam Pickvance, is organising a fundraising benefit for McCosker to cover the $70,000 already spent on legal fees and expenses and any future legal costs.