BACKGROUND TO THE REFERENCE
Terms of reference
1.1 In a letter to the Commission dated 27 March 2002, the Attorney General, the Hon RJDebus MP, referred the following matter for inquiry:
Whether an unrepresented accused in a sexual offence trial should be permitted to cross-examine a complainant. Specifically, whether courts should have the power to appoint a person other than an unrepresented accused to cross-examine complainants in sexual offence cases whether or not the accused consents.
1.2 The terms of reference refer to “sexual offence” cases. For the purposes of this Report, “sexual offence” means a prescribed sexual offence as defined by section 3 of the Criminal Procedure Act 1986 (NSW). This includes sexual assault and a range of other offences of a sexual nature.1
Issues Paper 22
1.3 In August 2002 the Commission published Issues Paper 22, Questioning of Complainants by Unrepresented Accused in Sexual Assault Trials. The purpose of the Issues Paper was to outline the current operation of the law; suggest possible options for reform; and provoke comment about these options.
1.4 The Issues Paper was circulated to a large number of people identified as being potentially interested in the subject, including sexual assault services, court assistance schemes, practitioners, judges and legal academics. The Commission received 19 submissions from various organisations and individuals in the community. A list of the submissions appears in AppendixA of this Report.
Recent consideration of the issue by the Government
1.5 On 17 March 2003, the Premier of New South Wales, the HonRJCarrMP, announced plans to prohibit cross-examination of complainants by an unrepresented accused in sexual assault trials, on the grounds that cross-examination in person can be a tactical move to intimidate the complainant.2 He pointed out that cross-examination by the accused in person is “very, very distressing for a victim and just knowing it could happen is a disincentive to the victim to come forward”.3 Cross-examination would instead be undertaken by the judge or by a lawyer.4
1.6 The Commission has continued its independent review of the issue. This Report recommends abolishing the right of an unrepresented accused personally to cross-examine a complainant in a sexual offence trial. It also makes recommendations concerning the scope of the proposed prohibition and the procedure for its implementation.
THE ISSUES
1.7 It is a fundamental rule of natural justice that people on trial for criminal offences have the right to test the evidence against them. This is usually done by the accused’s lawyer cross-examining witnesses for the prosecution. However, in some cases, the accused will not have legal representation and undertakes the defence case in person. Thus, the alleged victim (“the complainant”) is liable to be, and almost invariably is, cross-examined by the very person charged with attacking her or him. “Many complainants are very likely to find this highly distressing, perhaps to the point where the quality of the evidence is undermined. If the accused is guilty, this confrontation may fairly be regarded as inconsistent with one purpose of the criminal law, namely, the protection of victims.
1.8 This Report considers whether an accused should be allowed to cross-examine a complainant in person and, if not, how the right to test the prosecution’s case can be maintained. The issues central to this consideration are:
- whether or not current law strikes an acceptable balance between, on the one hand, the accused’s right to test all relevant evidence and, on the other hand, the need to reduce the potential distress and humiliation to complainants from being cross-examined by an unrepresented accused; and
- if not, how that balance ought to be struck without undermining the accused’s right not to be tried unfairly.5
1.9 Some of the most important, often conflicting, factors relevant to locating the appropriate balance in sexual offence cases are these:
- The fundamental right of the accused to test all relevant evidence and, generally, to defend himself or herself either in person or through legal assistance;6
- The fact that, whether the accused is represented or not, complainants in sexual assault cases are likely to suffer distress simply from having to appear in court; from seeing the accused; from giving evidence; and, especially, from being cross-examined on their evidence;7
- Victims of crime must always be treated with compassion and respect.8 The difficulty is, of course, that whether a complainant is a victim can only be known at the end of the trial, not at the outset. And then, a complainant may be a victim even if the defendant is acquitted. “An acquittal indicates not that the accused is innocent, but that the prosecution has failed to prove guilt beyond reasonable doubt.
- Current law allows the judge to control proceedings, including the power to disallow improper questions put to witnesses in cross-examination.9
Extent of the problem
1.10 This Report is limited to the question whether an unrepresented accused’s right to cross-examine a complainant in person should be limited in sexual offence cases. The issue arises only in cases in which there is a trial. Statistics for 2001 reveal that 64.8% of appearances in NSW Local Courts of persons charged on at least one count of sexual assault or related offence, did not proceed to trial; while in the District and Supreme Courts 59.6% of cases that included at least one such offence did not result in a trial. A guilty plea to the charges accounted for this in 25.3% of cases in the Local Courts and “in 32.7% in the higher courts.10
1.11 There are no statistics to indicate the extent of self-representation for the cases that do go to trial. Anecdotal information available to the Commission is that the situation arises in a relatively small, but not insignificant, number of cases in New South Wales each year. In a recent discussion paper, the Victorian Law Reform Commission was unaware of any case in Victoria in which a person accused of a sexual offence had cross-examined the complainant.11 Since publication of the paper, however, an accused charged with a number of sexual offences has personally cross-examined two complainants in the County Court of Victoria.12
1.12 While there is some evidence of an increasing trend towards self-representation in common law countries, especially in civil litigation,13 the Commission has no reason to believe that the extent of self-representation in sexual offence trials will increase in the future. The Commission is, however, of the view that the problem should be addressed even if the number of sexual offence cases in which the accused is unrepresented is small. Not only is it important that every victim should be protected from further victimisation, but also that any risk of further victimisation be diminished in order to increase the readiness of victims to report offences.
Reasons for self-representation
1.13 An accused may be unrepresented either because legal aid is not available or by choice.
Legal aid unavailable
1.14 All accused persons are entitled to seek financial aid through the Legal Aid Commission for the purpose of obtaining legal representation. Although the Legal Aid Commission does not solicit casework, the general availability of its services is widely known in the community. As a matter of policy, legal aid is available for all criminal law matters where there is a possibility of imprisonment, including indictable matters that are dealt with summarily in the local courts, committal proceedings, and indictable offences and criminal appeals in the District and Supreme Courts.
1.15 To be eligible for legal aid, applicants must satisfy a means test.14 “The applicants’ income and assets are assessed, as well as the means of any people who give them financial support. Applicants in court for sexual offences will satisfy the means test if their net weekly income is less than $190 a week.15
1.16 Over the three year period from 2000 to 2002, the number of persons accused of sexual offences who were denied legal aid for any reason was 11.7%. Of these, 6.2% (or just over half) were refused legal aid on the basis that they failed to satisfy the means test.16 It is unknown how many persons denied legal aid are later unrepresented at trial. It is likely that a number of persons accused of sexual offences fail to apply for legal aid since they realise that they will fail the means test (which, in view of its low limit, is very stringent). Most people without legal aid do have legal representation at trial, even where its cost entails considerable financial hardship.
Unrepresented by choice
1.17 Accused persons may choose to be unrepresented for a number of reasons. They may have an aversion to lawyers, or may simply have a strong desire to defend themselves. However, they may wish to use the opportunity to intimidate or overbear the complainant in court, in the hope of obtaining an acquittal.
The structure of this Report
1.18 This Report consists of six chapters.
Chapter 1 sets out the course of this reference and the issues to which it gives rise.
Chapter 2 addresses the impact of sexual offence proceedings on complainants and the reform of the law relating to sexual offence proceedings.
Chapter 3 sets out the legal process of, and the current limitations on, cross-examination. It discusses the advantages and disadvantages of prohibiting cross-examination in person by an unrepresented accused. It concludes with the Commission’s view and recommendation.
Chapter 4 discusses the scope of the recommended prohibition. It considers whether the court should retain a discretion to allow cross-examination in person by an unrepresented accused. It then discusses whether the prohibition should apply to complainants in sexual offence proceedings only or more broadly, and makes recommendations.
Chapter 5 makes recommendations concerning the procedure for testing the complainant’s evidence in the light of the suggested prohibition.
Chapter 6 discusses alternative arrangements for giving evidence, including the use of closed circuit television and screens.
Footnotes
1. Under s 3 of the Criminal Procedure Act 1986 (NSW) (as amended by the Crimes Amendment (Sexual Offences) Act 2003 (NSW)) “prescribed sexual offence” means:
“(a)an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 65A, 66A, 66B, 66C, 66D, 66F or 80A of the Crimes Act 1900, or
(b)an offence that includes the commission, or an intention to commit, an offence referred to in paragraph (a), or
(c)an offence that, at the time it was committed, was a prescribed sexual offence for the purposes of this Act or the Crimes Act 1900, or
an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).”
See further para 4.30-4.32.
2. Premier of New South Wales, “Labor announces sweeping reforms to tackle sexual assault and domestic violence” (News Release, 17 March 2003).
3. N O’Malley, “Grilling of sexual assault victims to end: Carr”, Sydney Morning Herald (18 March 2003) at 12.
4. Premier of New South Wales, “Labor announces sweeping reforms to tackle sexual assault and domestic violence” (News Release, 17 March 2003).
5. See Dietrich v The Queen (1992) 177 CLR 292.
6. See Chapter 3.
7. See Chapter 2.
8. See para 3.22.
9. See para 3.14-3.20.
10. Statistics provided by the NSW Bureau of Crime Statistics and Research: “see Appendix B.
11. Victorian Law Reform Commission, Sexual offences: law and procedure (Discussion Paper, 2001).
12. R v Kerbatich (County Court of Victoria, DugganJ, 17 February 2003, unreported). The Commission thanks the Victorian Law Reform Commission for this reference.
13. The effect of this trend on the justice system, particularly (with the decreasing availability of legal aid) on the civil justice system, has attracted a great deal of attention in recent years. see, for example, Law Reform Commission of Western Australia, Review of the criminal and civil justice system (Final Report, 1999) ch18; Australian Law Reform Commission, sManaging justice: a review of the federal civil justice system (ALRC 89, 2000) ch5. See also G Appelby, “The growth of litigants in person in English civil proceedings” (1997) 16 Civil Justice Quarterly 127; Justice Dean Mildren, “Don’t give me any LIP – the problem of the unrepresented litigant in criminal trials” (1999) 19 Australian Bar Review 30; L Byrne and C J Leggalt, “Litigants in person – procedural and ethical issues for barristers” (1999) 19 Australian Bar Review 41; Chief Justice Murray Gleeson, “The state of the judicature” (2000) 74 Australian Law Journal 147 at 155-156; CCameron and EKelly, “Litigants in person in civil proceedings: part I” (2002) 32 Hong Kong Law Journal 313; C R Glube, “The impact of self-represented litigants on judges and court staff”, paper presented at the 13th Commonwealth Law Conference (Melbourne, April 2003).
14. For criminal appeals, the applicant must also satisfy a merit test, based on the likelihood of the case’s success. Before approving an application for a grant of legal aid, the Legal Aid Commission asks whether, in all the circumstances, such a grant would be reasonable. The merit test is not applied where applicants request legal representation for committal proceedings or first instance hearings.
15. That is, $190 per week after allowable deductions, which include such expenses as a housing allowance of up to $230 a week if applicants live in Sydney, or up to $135 if they live elsewhere. Information supplied by B Donnellan, NSW Legal Aid Commission (7 February 2003).
16. Statistics provided by the NSW Legal Aid Commission: see Appendix C.
