OVERVIEW
1.1 This discussion paper addresses the questioning of complainants in sexual assault trials. It raises the issue of whether or not the accused should be allowed to cross-examine the complainant in person, and if not, what alternatives are available.
BACKGROUND
1.2 A person standing trial for a criminal offence has the right to appear and to test the evidence tendered in the prosecution case by cross-examining witnesses. If the accused is represented by a lawyer, the defence case, including cross-examination, must be conducted by that lawyer. Accused persons may however be unrepresented in court, either because they are ineligible for legal aid, or choose not to engage a lawyer.
1.3 An unrepresented accused who is charged with a sexual offence must, like any other unrepresented accused, be permitted to conduct his or her case, including the cross-examination of prosecution witnesses. This may cause extreme distress to complainants, who are asserting that they have already suffered a terrible ordeal. There is also the risk that the quality and accuracy of the complainant’s evidence will be compromised because of any distress, intimidation or humiliation caused by the accused’s questions. Further, a jury may feel undue sympathy for the complainant and anger towards the accused. These emotions could affect the jury’s perception of the accused’s case, a case which may, in fact, have merit. In either case, the due administration of justice may be compromised.
1.4 There is a growing trend in the common law world to recognise the distress that may be caused to all complainants in sexual offence cases. In several jurisdictions attempts have been made to reduce this distress where possible, without compromising the accused’s right to a fair trial. This includes limitations on questioning of complainants by an unrepresented accused. In undertaking this review, the Commission will examine the existing legislative restrictions on such questioning, and consider whether these restrictions are adequate.
PURPOSE OF THE PAPER
1.5 This paper aims to provide a basis for consulting interested members of the community on the questioning of complainants by an unrepresented accused in sexual assault trials. It gives a general overview of the area as a starting point for more detailed discussion following community consultation. The paper asks a number of questions, appearing in Chapter 4. These questions are designed to direct attention to what the Commission considers to be the main issues concerning questioning of complainants by unrepresented accused. You are invited to respond to these questions, or to make comments about other issues of concern. For details on how to make a submission and the closing date for submissions, see pages vi-vii. Following a period of consultation, the Commission will prepare a report on questioning of complainants by unrepresented accused, including recommendations for reform to this area if, based on our consultations, we consider this to be necessary or desirable.
STRUCTURE OF THE PAPER
1.6 This paper is divided into four chapters. The first chapter provides an introduction to the subject. The second chapter gives a brief overview of the current legal framework in New South Wales, and in other jurisdictions around Australia and abroad. The third chapter looks at future directions and the fourth raises a number of questions for discussion.
