• Implications for the accused
• Implications for the witness
• Extent of the restriction
• Implications for court-appointed legal representatives
• Practical considerations

3.1 Our legal system assumes that parties normally have legal representation. The High Court has stated that “it is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious.”^*1 However, a significant number of people have no legal representation at trial. District Court statistics indicate that in 2000, at least 6.9 per cent of those accused of sexual assault had no legal representation.^*2 While this figure is much lower than some other courts,^*3 it is still significant – in at least 20 cases out of the 289 heard, the accused was unrepresented.

3.2 New South Wales already recognises that personal questioning by an unrepresented accused is undesirable in the case of child witnesses, and imposes restrictions on such questioning. It may be argued that similar restrictions should be imposed in questioning adult complainants in sexual offence cases. Obviously, there needs to be careful consideration of the nature and extent of such restrictions in order to ensure that the fair trial of the accused is not compromised. It should be possible, however, to achieve a balance between the interests of the unrepresented accused and the interests of the complainant.

IMPLICATIONS FOR THE ACCUSED

3.3 Empowering a court to appoint an intermediary to cross-examine adult complainants in sexual offence cases raises important questions of civil rights. It is fundamentally important that a person charged with a criminal offence is presumed innocent until proved guilty, and is not convicted otherwise than after a fair trial.^*4 The main objection to the use of an intermediary for the purposes of cross-examination is that it denies the accused these basic rights.

3.4 In New South Wales law, there is no exhaustive list of the attributes of a fair trial.^*5 The precise content of the right to a fair trial is difficult to identify because it is more accurately expressed in negative terms, as the right not to be tried unfairly, or an immunity against conviction otherwise than after a fair trial.^*6 However, the right to a fair trial is generally recognised, and has been described as “a central pillar of our criminal justice system.”^*7 Denying a fair trial has undesirable consequences, not only for the accused, but for the general administration of justice. It may lead to a permanent stay of proceedings, or an appeal against the conviction.

3.5 The following issues need to be considered before any legislative restriction is placed on the questioning of witnesses by an unrepresented accused.

Right to answer the charge

3.6 The due administration of justice requires that accused persons know of the case against them and are given sufficient opportunity to answer it. In sexual assault trials, the complainant has made a very serious accusation, which must be tested in an open forum. The accused has the right to present a defence and, consequently, has the right to test the evidence by questioning witnesses called by the prosecution. It is dangerous to convict an accused who has not been given the full opportunity to test the evidence in this way. For this reason, any restriction on cross-examination in person must preserve the accused’s right to test unfavourable evidence.

3.7 The nature of sexual assault allegations also makes it imperative to protect the accused’s right to mount a defence. The role of consent in sexual assault makes proceedings different from other types of crime. Behaviour which is otherwise perfectly legal becomes illegal in the absence of consent. Where the alleged assault occurs in private, it will be the word of the complainant against the word of the accused. Any limitation on the right of the accused to question the key (and often the only) witness to the alleged assault must be carefully framed so as not to impinge upon the accused’s right to answer the charge.

3.8 The right to confrontation is enshrined in the United States Constitution.^*8 Although Australia does not go this far, the right to confront one’s accuser is fundamental to a fair trial. The question is whether the right to answer the charge extends to the right to personal confrontation, or merely the right to confront the complainant’s accusations. The latter may still be satisfied where the accused’s questions are directed through an intermediary.

Right to legal counsel

3.9 Accused persons have a right to legal counsel, in that they cannot be forced to go to trial unrepresented. However, the right to a fair trial does not extend to a right to be provided with legal counsel at public expense.^*9 It may be inappropriate, when legal aid has already been refused, to require a lawyer to conduct the cross-examination.

Right to represent oneself

3.10 The accused may be unrepresented through choice. It is arguable that the right to represent oneself is inviolable. Where accused persons elect to represent themselves, it may be inappropriate to impose legal representation upon them.

Difficulty faced by the unrepresented accused

3.11 In McInnes v The Queen, Justice Murphy emphasised the difficulties faced by accused persons who conduct their own defence:

When an accused is unrepresented, he is disadvantaged, not merely because almost always he lacks the knowledge and skills of a professional advocate but also because there is a profound difference between the conduct of a case by an accused and its conduct by an advocate. It appears in the cross-examination of a witness whose version of the events conflicts with that of the accused. It is also manifest in the address to the jury: an accused cannot really assume the role of a dispassionate advocate who may compare the various parts of the evidence, including the accused’s, put alternative conflicting propositions, and advance arguments that, although on the evidence the accused is probably guilty, he is not guilty beyond reasonable doubt. In practice, this can not be done by the accused who is forced simply to maintain his innocence, otherwise he risks destroying his credibility.^*10

Impact on the quality of evidence

3.13 Arguably, direct confrontation between the accused and the accuser may increase the likelihood of the witness telling the truth. Special measures aimed to reduce the witness’ contact with the accused may make the witness’ credibility more difficult to assess.

Problems with a neutral intermediary

3.14 In some jurisdictions, the accused provides a neutral intermediary with a list of questions, which the intermediary then puts to the witness. The intermediary may be the judge or associate, or some other person appointed by the court. This approach is unfair to the accused. Effective cross-examination requires responsive questioning, where the line of questioning is moulded to the witness’ previous answers. Having to rely on a prepared list of questions means the necessary flexibility is lost, and the accused’s right to confront the prosecution witness is denied.^*11 For this reason, it may be inappropriate for a third party who is not legally trained to conduct the cross-examination.

3.15 Further, appointing a neutral intermediary may not adequately shield the witness from inappropriate questioning. Where the intermediary simply acts as a mouthpiece for the accused, there is nothing stopping the accused from having offensive or intimidating questions put to the witness. The judge can direct the witness not to answer improper questions, but the effect on the witness may be the same.

3.16 This procedure is also quite artificial. The dynamics of cross-examination are impeded where a third person relays the questions to the witness. The process is stilted and the impact of the evidence is altered. Further, where each question is asked first by the accused and then repeated by the intermediary, the complainant would have time to deliberate before answering the questions. This may put the accused at a disadvantage.

The role of the judge

3.17 The cross-examination of complainants is already limited by the court’s inherent control over proceedings and by the restrictions on improper questions imposed by the Evidence Act 1995 (NSW).^*12 Arguably, inappropriate questioning in sexual assault cases could be addressed simply by clarifying the role of the judge and tightening judicial control over questioning.

3.18 There are potentially serious implications for the accused if the trial judge is to act as an intermediary. As a general rule, it is for the parties to question witnesses, and the judge asks questions only to remove apparent ambiguities.^*13 It may be inappropriate for questions to be asked by or directed through the judge. This was pointed out in Dietrich v The Queen:

[The proposition that] in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a ‘helping hand’ to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems.^*14

3.20 Similarly, the Home Office report on vulnerable witnesses stated that “the judge’s role is an impartial one, to ensure that there is a fair trial and essentially to ‘hold the ring’ between the prosecution and defence.”^*16 The report did not recommend the judge step down from this role and “enter the affray”. It recommended that where the accused is prevented from questioning the complainant directly, the court should have the power to appoint a person to undertake this task.^*17 The recommendation against the judge acting as intermediary was followed.^*18

Effect on the jury

3.21 It is a fundamental principle of the common law that a person is presumed innocent until found guilty beyond reasonable doubt. Arguably, where the arrangements for giving evidence are not standard, the jury may infer that special measures are required due to the personal characteristics of the accused. For example, the use of screens or closed circuit television may imply that the accused is menacing or violent. However, prejudice against the accused could be overcome by issuing an appropriate warning to the jury, for example that such procedures are routine and that no adverse inference should be drawn.^*19

Arbitrary criteria for class of witnesses protected

3.22 Sexual assault covers a very diverse range of behaviour. For example, it includes both unwanted touching and gang rape. Whether a ban on cross-examination in person is justified may depend on the gravity of the alleged offence. A mandatory ban would create a broad and potentially large class of witnesses receiving automatic protection.

3.23 It may be arbitrary to single out complainants in sexual assault proceedings for protection. Alleged victims of other types of crime may face similar obstacles when giving evidence. For example, the Home Office included sexual offences, domestic violence, racially motivated crime and hate crimes against sexual minorities as “special offences” requiring protection.^*20 The New Zealand Law Commission included sexual offences, domestic violence and harassment.^*21

3.24 In its report on vulnerable witnesses, the Home Office warned that “by drawing attention to particular offences the real source of the witness’s vulnerability may be obscured. Vulnerability may not stem simply from the qualities of the offence itself.”^*22 Vulnerability may stem from the personal characteristics of the witness, for example where a witness is very young, very old, from a different cultural background or intellectually disabled. Alternatively, vulnerability may stem from the relationship between the witness and the accused, especially where there is a power imbalance. It may be better to target witnesses who, taking into account all the circumstances of the case, require alternative arrangements for giving evidence, rather than impose a restriction on cross-examination based purely on the category of offence.

3.25 Further, where fear or intimidation is the obstacle to giving evidence, it may be arbitrary for the prohibition to be limited to the questioning of complainants. There are likely to be witnesses other than alleged victims who will be reluctant to give evidence knowing the accused may cross-examine them.

Inappropriate analogy with child witnesses

3.26 The basic proposal to extend the current limitations on cross-examination by an unrepresented accused draws an analogy between child witnesses and adult complainants in sexual assault cases. Providing alternative measures for adults raises very different issues than providing special measures for children. Children may not understand the role of cross-examination, and often find it confusing and upsetting. They find it particularly distressing that the adult asking the questions is accusing them of lying.^*23 Arguably, the problems faced by adult complainants in sexual assault trials may not be addressed simply by extending the current measures available for child witnesses.

IMPLICATIONS FOR THE WITNESS

3.27 Historically, many victims of sexual assault have considered themselves disadvantaged by the criminal justice system.^*24 Complainants have felt that responsibility for the alleged crime is inverted, where trials have focused on the blameworthiness of the complainant rather than the accused.^*25 Evidence of previous sexual experience was deemed relevant not only to the issue of consent, but to the complainant’s character and credibility. The criminal law protected only certain victims, typically “respectable women who had physically resisted their attackers and promptly complained of their abuse.”^*26 Those who did not conform to this stereotype were less likely to receive protection. These problems were compounded by a belief that women were inherently unreliable witnesses. As one judge commented,

In cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all.^*27

3.29 A restriction on cross-examination by an unrepresented accused in sexual assault trials would have the following implications for witnesses.

Barriers to giving evidence overcome

3.30 Placing a restriction on cross-examination by an unrepresented accused may be necessary for the due administration of justice. Where the witness makes allegations of sexual assault, fear or intimidation may make it difficult, if not impossible, for that witness to give evidence. Where the witness is hectored or harassed, the quality of evidence may also be affected.

3.31 The rationale for allowing an alleged victim of sexual assault to use a special arrangement to give evidence is that it is necessary to enable that witness to give evidence effectively. The use of the special arrangement is intended to overcome the barriers to giving evidence faced by that particular witness. It aims to put the witness in the same position as witnesses generally, not in a more favourable position.^*30 Moreover, the court or jury would not have to deal with the emotional atmosphere inevitably created by a personal confrontation of this kind.

Distress minimised

3.32 Because of the nature of the proceedings, complainants in sexual offence cases are likely to suffer extreme distress and trauma in court. The witness has to recount the details of the ordeal in public, and has to answer direct questions on a very personal and difficult subject. The complainant’s motives for making the complaint are often called into question. Indeed, having to testify at trial can be almost as traumatic for the complainant as the actual assault.^*31 The criminal justice system should do its best to reduce such trauma.

3.33 It is important that any new measure is, realistically, capable of achieving its end. Alternative arrangements, such as the use of screens or closed circuit television, physically separate the complainant from the accused and may effectively reduce the complainant’s distress and embarrassment. Similarly the presence of a support person may be worthwhile. However, such arrangements may not be enough, if the accused still confronts the complainant in person.

3.34 Relaying the questions through an intermediary may also be inadequate, as the complainant would still see and hear the accused ask the questions before the intermediary repeats or rephrases them. The complainant may also have to listen to the accused and intermediary discussing the distressing subject matter before the agreed question is put to the complainant. Appointing a legal representative would avoid this and may be the most effective solution.

3.35 A restriction on cross-examination to minimise distress would be consistent with previous reform to the law of sexual assault. For example, evidence relating to sexual experience which would otherwise be admissible under one of the exceptions in the legislation is excluded where the complainant’s distress, humiliation or embarrassment outweighs or is equal to its probative value.^*32

Double victimisation avoided

3.36 In a sexual assault trial, the complainant is likely to find it difficult to give evidence first, because the questions are of such a personal nature, and second, because it is the alleged perpetrator who is asking them. Aggressive or humiliating cross-examination may exacerbate the impact of the original assault, leading to further victimisation.

Victims encouraged to report and proceed with the matter

3.37 Sexual assault is notoriously under-reported. The Australian Bureau of Statistics estimated that only one in ten women who were sexually assaulted had reported the most recent incident to the police, a rate much lower than for other types of assault.^*33 Victims may choose not to report the incident for a variety of reasons. They may prefer to deal with the incident themselves, or may not consider it to be a serious offence. They may not report the incident because they are ashamed or embarrassed, or may fear that they will not be believed. Reporting the offence may appear futile if the victim doubts the ability of the system to bring the perpetrator to justice.

3.38 Sexual assault proceedings also have a very high rate of attrition. This means that only a small number of incidents that are reported to the police actually result in conviction. Charges may be dropped because of a perceived lack of evidence, particularly if the victim sustains no physical injuries.^*34 Where there is a prior relationship between the accused and complainant, the latter may for various reasons decide to retract the allegation.^*35

3.39 Where the victim is apprehensive about the trial process, a restriction on cross-examination by the accused in person may provide an incentive to report or proceed with the matter. Again, this would be consistent with previous reform to the law of sexual assault. The exclusion of evidence relating to sexual experience encourages victims to report the offence by reassuring them that they will not be subject to humiliating and irrelevant questioning in the courtroom.^*36

Special nature of sexual assault trials recognised

3.40 As discussed above, sexual assault trials are distinctive because they tend to turn on the issue of consent. If the alleged assault occurred in private, the complainant’s words, character and motive will be closely examined. For this reason cross-examination may be more time consuming than in other trials. Where it is one person’s word against another’s, the accused simply has to raise a reasonable doubt in order to avoid conviction. In trying to discredit complainants’ evidence, complainants may feel it is they who are on trial. Given the difficult nature of sexual assault trials, alternative measures may be necessary to put the complainant in the same position as witnesses generally.

Loss of ability to answer accused’s questions in court

3.41 It must be recognised that a mandatory rule prohibiting cross-examination in person by an unrepresented accused deprives witnesses of the opportunity of answering questions put to them by the accused. Witnesses who would value such an opportunity may regard such a mandatory rule as unreasonable.

EXTENT OF THE RESTRICTION

3.42 A restriction on cross-examination in person by an unrepresented accused could be mandatory, presumptive or discretionary. A mandatory prohibition would afford the greatest protection to witnesses, but may impinge upon the rights of the accused in problem cases. Conversely a discretionary prohibition would safeguard the rights of the accused but may not effectively enable witnesses to give evidence.

3.43 The legislation excluding evidence relating to sexual experience adopts a rules-based approach. The mandatory exclusion, with exceptions, has proved more effective in protecting complainants against distressing questioning than similar legislation in other jurisdictions because it does not contain a judicial discretion to admit the evidence. However, it has also been criticised for being too restrictive, as it may in problem cases mandate the exclusion of evidence which is directly relevant to determining the guilt or innocence of the accused.^*37

3.44 The current legislation dealing with the questioning of child witnesses adopts a presumptive bar on cross-examination in person by an unrepresented accused. It provides that a child witness is to be cross-examined by a person appointed by the court instead of by the accused, but the court may choose not to appoint such a person if it considers that it is not in the interests of justice to do so.^*38

3.45 In considering the extent of any restriction on cross-examination, it is important to note that the matter is not whether the rights of the accused or the rights of the complainant are more important. The matter is whether, in the public interest, the trial is fair. A balance must be struck so the complainant is able to overcome obstacles to giving evidence, without preventing the accused from presenting a full and fair defence.

3.46 One view is that in all sexual offence trials, a court appointed legal representative should conduct cross-examination after receiving instructions from the accused. If the accused refused to give instructions, no cross-examination would take place. Those who have a genuine defence can instruct counsel accordingly. This may be the fairest approach for all parties.

3.47 An alternative view is that there should be a presumption against cross-examination in person by an unrepresented accused. The judge would have a discretion to permit cross-examination in person only if it is appropriate in the circumstances of the case.

IMPLICATIONS FOR COURT-APPOINTED LEGAL REPRESENTATIVES

3.48 If a legal representative is appointed for the purpose of cross-examination, it is important to consider how this arrangement would actually operate. The role of the lawyer would raise both practical and ethical issues.

3.49 Lawyers have a duty to act in the best interests of their clients. However, where legal representation is imposed, the normal lawyer-client relationship is displaced. There may be communication problems between the accused and the legal representative. The accused may be uncooperative, and may refuse to give instructions. Litigants can normally dismiss counsel if such problems arise, but an accused who is prevented from questioning the complainant in person would be forced to retain the court-appointed representative.

3.50 It may be unrealistic to expect legal representatives to conduct cross-examination effectively where they have only limited participation in the trial. Injecting a lawyer into a potentially lengthy trial specifically for the purpose of cross-examination of the main witness poses serious problems. Effective cross-examination requires a broad understanding of the issues raised by all the evidence at trial, not just the evidence of the complainant. However, it is a regular practice in other areas of law to brief counsel to conduct only part of a case. Appointing counsel for the purpose of cross-examination only may in fact be workable.

3.51 Limiting the role of representatives to cross-examination of the complainant only may put them in a practical and ethical dilemma. The representative is not merely a mouthpiece, but has a positive duty to act in the client’s interests. Representatives are not able to cross-examine the other witnesses in order to lay the foundations of a good defence, if one is available, but are limited to the line of argument the accused has already begun. They may have to ask questions they know are not in the client’s interest to ask. The procedure may be prejudicial to the accused, where the defence lawyer is appointed specifically in the interest of the main prosecution witness. If lawyers were appointed to conduct whole cases, they could take instructions and prepare a proper defence. This would be less ethically compromising.

3.52 In the United Kingdom, a court-appointed legal representative is not responsible to the accused.^*39 This protects the immunity of court-appointed legal representatives, and recognises that, given a barrister’s professional duty to put the case on behalf of the client, there may be difficulties for counsel who conduct cross-examination only.^*40 In Australia, advocates are immune from liability in negligence at common law.^*41 This immunity would probably extend to a court-appointed legal representative. In any case, any legislative reform should clarify the legal, professional and ethical obligations of a court-appointed representative.

PRACTICAL CONSIDERATIONS

3.53 The use of an alternative procedure for cross-examination is likely to delay proceedings. Where the questions are relayed through an intermediary, the process will take longer. Delays may also be caused where a legal representative or other third party has to be appointed.

3.54 The cost of legal representation must also be considered. Where the accused is unrepresented for financial reasons, it would be unreasonable to expect that person to bear the cost of compulsory legal representation. However, where legal aid has already been refused, it may be inappropriate to expect representation to be provided at public expense.

^*1. Dietrich v The Queen (1992) 177 CLR 292 at 300 (Mason CJ and McHugh J). See also McInnis v The Queen (1979) 143 CLR 575 at 579 (Barwick CJ), at 582 (Mason J) and at 586-588 (Murphy J).

^*2. Information supplied by V Korabelnikoff, New South Wales Bureau of Crime Statistics and Research (2 May 2002). Note that for 19.7% of cases, it was not known whether the accused had legal representation or not, so the actual proportion of unrepresented accused persons could be significantly higher.

^*3. The Australian Law Reform Commission recently reported that 41% of cases in the Family Court involved one or more unrepresented party: Review of the Federal Civil Justice System (Discussion Paper 62, 1999) at para 9.50. In the NSW Local Court, 50.8% of people had legal representation in 2000: New South Wales Bureau of Crime Statistics and Research, “Summary statistics for the NSW Local Court, 1996-2000” (as at 6 August 2002) «www.lawlink.nsw.gov.au/bocsar1.nsf/pages/lc_stats9600».

^*4. See Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23; Dietrich v The Queen (1992) 177 CLR 292. It has been held, however, that the right to a fair trial may be curtailed by statute. The courts have no power to stay criminal proceedings on the basis that legislation operates to cause injustice to the accused: see R v PJE (NSW, Court of Criminal Appeal, No 60216/95, 9 October 1995, unreported).

^*5. Although the International Covenant on Civil and Political Rights (1966) identifies and lists the rights of the accused in a fair trial: Art 14.

^*6. Jago v District Court (NSW) (1989) 168 CLR 23 at 56-57 (Deane J).

^*7. Dietrich v The Queen (1992) 177 CLR 292 at 298 (Mason CJ and McHugh J).

^*8. In all criminal prosecutions, the accused has the right “to be confronted with the witnesses against him”: Constitution (USA) Amendment VI.

^*9. Dietrich v The Queen (1992) 177 CLR 292.

^*10. McInnes v The Queen (1979) 143 CLR 575 at 590.

^*11. Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: the Evidence of Children (Report 55, 2000) at 292.

^*12. Evidence Act 1995 (NSW) s 41. See para 2.4-2.2.7.

^*13. R v Damic [1982] 2 NSWLR 750 at 762-763 (Street CJ); Galea v Galea (1990) 19 NSWLR 263 at 280-282 (Kirby ACJ).

^*14. Dietrich v The Queen (1992) 177 CLR 292 at 302 (Mason CJ and McHugh J).

15. Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: the Evidence of Children (Report 55, 2000) at 291-292.

^*16. United Kingdom, Speaking Up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (Home Office, 1998) at para 9.50 (“Speaking Up for Justice Report”).

^*17. Speaking Up for Justice Report at Recommendation 62.

^*18. Where the court decides it is necessary in the interests of justice for the witness to be cross-examined, the court must appoint a qualified legal representative, chosen by the court, to cross-examine the witness in the interests of the accused: Youth Justice and Criminal Evidence Act 1999 (UK) s 38(4).

^*19. For example, see the Evidence (Children) Act 1997 (NSW) s 25; Criminal Law Amendment Act 2000 (Qld) s 21R; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 5(2); Evidence Act 1939 (NT) s 21A(3); Evidence Act 1906 (WA) s 106P and Youth Justice and Criminal Evidence Act 1999 (UK) s 39.

^*20. Speaking Up for Justice Report at 151.

^*21. New Zealand Law Commission, Evidence (Report 55, 1999) Vol 1 at para 418.

^*22. Speaking Up for Justice Report at 151.

^*23. C Eastwood and W Patton, The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System (Queensland University of Technology, 2002) at 123.

^*24. See P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (The Federation Press, Sydney, 1998).

^*25. P van de Zandt, “Heroines of Fortitude”, in Easteal (ed) at 134; see also the Law Reform Commission of Victoria, Rape: Reform of Law and Procedure (Appendices to Interim Report 42, 1991) at 127-128 and 147-170.

^*26. See T Henning and S Bronitt, “Rape victims on trial: regulating the use and abuse of sexual history evidence”, in Easteal (ed) at 76.

^*27. Henry; Manning (1969) 53 Cr App R 150 at 153 (Salmon LJ).

^*28. Criminal Procedure Act 1986 (NSW) s 105. This section replaced the former s 409B of the Crimes Act 1900 (NSW).

^*29. Evidence Act 1995 (NSW) s 164. However, the judge’s discretion to warn the jury about unreliable evidence is preserved: s 165.

^*30. See also New South Wales Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (Report 80, 1996) at para 7.15.

^*31. See Law Reform Commission of Victoria, Rape: Reform of Law and Procedure (Appendices to Interim Report 42, 1991) at 125-132 and 149-152.

^*32. Criminal Procedure Act 1986 (NSW) s 105(4).

^*33. “Violence Against Women”, Year Book Australia (Australian Bureau of Statistics, 1998). See also Crime and Safety Australia (Australian Bureau of Statistics, 1999).

^*34. See L Russo, “Date Rape: A Hidden Crime”, Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice, No 157, 2000 at 4.

^*35. See I Freckelton, “Sexual offence prosecutions: a barrister’s perspective”, in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (The Federation Press, Sydney, 1998) at 148.

^*36. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981, Mr Wran, Premier, Second Reading Speech at 4761.

^*37. See New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW) (Report 87, 1998) at ch 4. Note that the prohibition of evidence relating to sexual experience is now found in s 105 of the Criminal Procedure Act 1986 (NSW).

^*38. Evidence (Children) Act 1997 (NSW) s 28.

^*39. Youth Justice and Criminal Evidence Act 1999 (UK) s 38(5).

^*40. Speaking Up for Justice Report at para 9.45.