2.1 This chapter discusses the impact of sexual offence proceedings on complainants. It discusses the distinctive nature of sexual offence trials and why they are particularly distressing for complainants, a topic addressed at length in a number of inquiries and studies in New South Wales and elsewhere.1 The chapter also considers the legislative response to the modern understanding of the distinctive nature of sexual offences, including legislative interventions to restrict the cross-examination in person by an unrepresented accused in sexual offence cases.
THE DISTINCTIVE NATURE OF SEXUAL OFFENCE TRIALS
2.2 There are at least three factors that make sexual offence trials particularly distressing for complainants:
- the nature of the crime;
- the role of consent with its focus on the credibility of the complainant; and
- the likelihood that the accused and complainant knew each other before the alleged assault occurred.
Nature of the crime
2.3 Sexual offences involve the exercise of power by one person over another.2 A victim of a sexual offence is likely to respond differently to, for example, a victim of a property offence or even a non-sexual assault. In 1993, the New South Wales Legislative Council Standing Committee on Social Issues wrote:3
The crime experienced by sexual violence victims is more than an assault. The sexual nature of the act adds an additional and highly complex dimension … The sexual violence victim is often confronted with a range of additional feelings resulting from the social stigma and physical invasiveness of the incident. These feelings can include shame, guilt, embarrassment, confusion, feeling dirty and used. Feelings of self-blame and self-recrimination are particularly common among sexual violence victims.
2.4 The New South Wales Sexual Assault Committee found that 97% of those who participated in a phonein in 1992 reported ongoing emotional harm as a result of the assault. Others reported physical harm, ongoing problems sin their interpersonal relationships, disruption to their normal daily life, disruption to their education or employment and financial harm.4 The findings from the PhoneIn “powerfully illustrate the fact that sexual assault is not just another form of physical assault. It is an assault on a person’s body, senses, emotions and whole self”.5
2.5 The trial process is particularly difficult for complainants in a number of ways.6 First, the vast majority of complainants identify seeing the accused as one of the worst features of having to attend court.7 Complainants have commented that “we should not have to face the accused in court”.8 Secondly, in order to establish the elements of the particular offence, complainants are usually required to recount the sexual violence against them in explicit detail, either in examination-in-chief or in cross-examination, and many complainants find this humiliating and distressing.9 Having to give details of a sexually intimate nature can be especially distressing for women who are from cultural backgrounds in which such matters are not conventionally discussed in front of men.10
2.6 The treatment of such matters in cross-examination, where complainants are likely to be cross-examined for a longer period of time than victims of other types of assault,11 is a particular focus of concern.12 One of the most common appeals of complainants is for greater control on cross-examination so as to make the process less stressful.13
Focus on complainant’s credibility
2.7 The role of consent makes adult sexual offence trials different from most other criminal proceedings. Behaviour which is ordinarily legal becomes illegal in the absence of consent. Where the alleged offence occurs in private, it often comes down to the word of the complainant against the word of the accused. Even where supporting evidence is available, sexual offence trials often turn on the credibility of the complainant.
2.8 Submissions observed that the role of consent gives sexual offence trials a distinctive dynamic.14 This is also documented in the literature on sexual assault. The Sexual Assault PhoneIn Report pobserved that “the fact that consent is the central issue in most adult sexual assault cases means that the victim’s character is put on trial in ways that are unparalleled in other areas of the law”.15 The New South Wales Legislative Council Standing Committee on Social Issues has similarly commented that “many victims feel they have to prove their innocence. It is not uncommon for victims to “feel that they are the focus of the trial, and it is their actions, not those of the alleged offender, that are dissected and debated”.16 A Victorian study “found that:
Almost all the barristers, judges and magistrates interviewed thought that rape complainants have a significantly different experience as witnesses than victims of other forms of personal violence. Some attributed this to the nature of the offence and consequently the intimate character of the evidence rape complainants must give in front of strangers. Others thought that rape complainants were attacked on their motives for lying, and were generally treated more “savagely” or “thoroughly” “by defence counsel than other witnesses.17
2.9 Given the inherent nature of the trial process, it will be necessary for the defence to use cross-examination to attack the credibility of the complainant if any significant fact is disputed. It is vital to bear in mind that accusations of sexual offences can be unreliable and that guilt cannot be assumed. But where the accused is guilty (whatever the verdict), the effect of the trial will be to victimise the complainant further and to aggravate the humiliation and distress already inflicted by the accused.
Relationship between complainant and accused
2.10 Unlike some other types of crime, it is very likely that the complainant and accused knew each other before the offence occurred,18 and that repeat victimisation has or will occur.19 This is one reason why trials are concerned with consent rather than with the identity of the assailant. A pre-existing relationship between the complainant and the accused “adds a complicating factor as there is the additional burden of having been betrayed by someone once trusted”.20
2.11 Some submissions observed that, where the accused is unrepresented, the fact that the complainant already knew the accused is likely to compound the difficulties and distress experienced by the complainant when undergoing cross-examination.21
RESPONDING TO THE DISTINCTIVE NATURE OF “SEXUAL OFFENCE TRIALS
General reforms
2.12 Not surprisingly, many complainants in sexual offence proceedings have considered themselves disadvantaged by the criminal justice process,22 arising from the emphasis on the rights of the accused at the cost of the privacy, feelings or emotional welfare of the complainant. At common law, a complainant could be cross-examined about previous sexual experience. “This was thought relevant to the issue whether the complainant consented to the sexual conduct in question and to the complainant’s credibility as a witness. The evidence of complainants in sexual offence cases also required corroboration, or the jury was warned that their evidence must be approached with considerable caution.23 Lengthy, hostile cross-examination exploring intimate sexual conduct and attacking honesty and reliability, as well as motive, are a feature of these trials.
2.13 Since the 1970s, a better understanding of the distinctive nature of sexual offences has led to widespread reform to sexual offence laws, both internationally and in Australia. In New South Wales, the substantive law was amended in order to reflect the gravity of the crime and the violent nature of sexual assault.24 There have also been major changes to the way sexual offences are prosecuted. For example, evidence relating to the complainant’s sexual experience is now generally inadmissible,25 and corroboration requirements have been abolished.26 Complainants no longer have to give evidence at committal hearings unless there are special reasons why, in the interest of justice, they should be called to give evidence.27 Increased awareness of the impact of proceedings on complainants has also led to measures such as police training in how to deal with sexual offences, increased services for victims and the presence of support persons in court.
2.14 Notwithstanding these changes, many complainants in sexual offence proceedings are still likely to be injured by the criminal justice process. Because the events giving rise to the charge will often have occurred in private, and because consent often plays such a pivotal role, the trial will turn on the credibility of the complainant. The accused will almost invariably seek to show the complainant’s testimony is fabricated in one way or another, or at least unreliable, in order to raise a reasonable doubt as to the accused’s guilt. The accused may also allege that the complainant has unworthy motives for making the complaint. Even though such allegations are very likely to cause distress, if they represent the defence case, they must be put and the complainant given the opportunity to refute them. The question is whether or not the accused’s right to cross-examine the complainant about these matters directly without the interposition of a lawyer or another person should be limited in order to obviate the risk that the accused will use the opportunity of cross-examination to aggravate the humiliation and distress already suffered by the complainant.
Cross-examination in person by an unrepresented accused
2.15 Legislative provisions exist in a number of jurisdictions addressing the right of an unrepresented accused to cross-examine a complainant in person in sexual offence proceedings. The provisions vary in their coverage. Some are not limited to sexual offence proceedings but apply more broadly. Others apply a prohibition on cross-examination to witnesses generally, rather than only to the complainant. Yet others place limitations only on the cross-examination of children.
2.16 The issue is currently under active consideration in Victoria and “New Zealand. The Victorian Law Reform Commission has been asked, in the context of a general review of the law relating to sexual offences, to consider whether or not Victoria should adopt legislation prohibiting a person who is on trial for a sexual offence from personally cross-examining the complainant and, if so, whether the court should be required to appoint a legal practitioner to cross-examine the complainant in lieu of the accused.28 “The Commission is expected to indicate its position in an Interim Report to be published later this year.29
2.17 The New Zealand Law Commission addressed the issue in its 1996 preliminary paper, The Evidence of Children and Other Vulnerable Witnesses: A Discussion Paper30 and again in its 1999 report, Evidence.31 “It recommended that the existing prohibition on personal cross-examination of child sexual offence complainants by the accused32 be extended to apply to all sexual offence trials, and also to cases concerning domestic violence or harassment, regardless of the complainant’s age. It considered that prohibiting the accused from personally cross-examining the complainant would reduce the stress suffered by the complainant, and therefore improve the quality of the evidence. This recommendation formed part of a draft Evidence Code, which is yet to be implemented. The Ministry of Justice expects to send a paper to Cabinet some time in 2003 seeking approval for the introduction of a Bill based on the Law Commission’s Evidence Code.33 If passed in its current form, the legislation would prohibit the cross-examination of the complainant by an unrepresented accused in all sexual assault trials throughout New Zealand.
New South Wales
2.18 Unless the interests of justice demand otherwise,34 the Evidence (Children) Act 1997 (NSW) requires that, in any criminal proceeding or civil proceeding arising from the commission of a personal assault offence,35 “a child witness (other than the accused or defendant) must be examined in chief, cross-examined or re-examined by a person appointed by the court (rather than by the accused or the defendant).36 The court appointed person can only put to the child the questions requested by the accused or defendant37 and cannot give the accused or defendant any legal or other advice.38
Commonwealth
2.19 In the Commonwealth jurisdiction, an unrepresented accused may not cross-examine a child complainant in person39 in a sexual offence proceeding.40 Rather, a person appointed by the court asks the child such questions as the accused requests be put to the child.41 An unrepresented accused is also prohibited from cross-examining a child witness in such proceedings without the leave of the court,42 which will only be given where the court is satisfied that the child’s ability to testify will not be adversely affected by such cross-examination,43 having regard to the trauma that it would cause to the witness.44 If the court refuses leave, a person appointed by the court must ask the child witness any questions that the defendant requests the person to ask the child.45
Queensland
2.20 In Queensland, the accused is prohibited from cross-examining a “protected witness” in person.46 “Protected witness” includes alleged victims of sexual offences and serious offences of violence, child witnesses and witnesses who are intellectually impaired. It also includes, in the court’s discretion, alleged victims of less serious offences (involving assaults or threats), in which case the court must be satisfied that the witness would be disadvantaged as a witness or likely to suffer severe emotional trauma if cross-examined by the accused.47 Where the prohibition applies, the Court arranges for a lawyer, funded by Legal Aid, to conduct the cross-examination.48 The lawyer is the accused’s legal representative for the purposes only of cross-examination.49
2.21 The legislation was passed following a report of the Queensland Law Reform Commission50 (which had made recommendations restricting the cross-examination of children or witnesses with an intellectual disabililty), and the Report of the Taskforce on Women and the Criminal Code51 (which had overwhelmingly favoured an absolute prohibition on the cross-examination of victims of sexual or violent crime by the accused in person).52
Northern Territory
2.22 In the Northern Territory, a complainant in a sexual offence case53 cannot be cross-examined directly by an unrepresented accused.54 Rather the unrepresented defendant must put any question to the complainant by stating the question to the Justice, Judge or another person approved by the Court, who must then repeat the question accurately to the complainant.55 “A similar (but discretionary) regime applies in domestic violence proceedings to the direct cross-examination by the defendant of a person with whom the defendant is in a domestic relationship.56 There is also a presumption against cross-examination in person in restraining order proceedings.57 Alternative arrangements, including the use of screens and closed circuit television, are available for “vulnerable witnesses”. This includes alleged victims of sexual assault, child witnesses, witnesses who have an intellectual disability and witnesses who are under a special disability because of the circumstances of the case or of the witness.58
Western Australia
2.23 In Western Australia, only child witnesses are specifically protected against cross-examination in person by an unrepresented accused.59 However, the court may declare a person to be a “special witness”, in which case alternative arrangements are available to assist the witness to give evidence. A “special witness” is one who, by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject matter of the evidence or any other relevant factor, would be likely to suffer severe emotional trauma, or would be so intimidated or distressed as to be unable to give evidence satisfactorily. It also includes a witness who, “by reason of physical disability or mental impairment, would be unable to give evidence satisfactorily. Alternative arrangements include the use of screens, giving evidence via video link, video taping evidence prior to the trial at a special hearing and having a support person present in court.60
England
2.24 In England, an unrepresented accused is prohibited from cross-examining an alleged victim of rape or other prescribed sexual offence. “In other cases, the court has a discretion to disallow cross-examination in person by an unrepresented accused. In such cases, the court must be satisfied that this would improve the quality of the witness’ evidence and would not be contrary to the interests of justice. The court must consider any views expressed by the witness, the nature of the questions likely to be asked, the accused’s behaviour during proceedings and any relationship between the witness and accused.61 Special measures are also available on a discretionary basis for vulnerable and intimidated witnesses, including witnesses with a physical or intellectual disability, and witnesses whose evidence is likely to be affected by reason of fear or distress. The court takes into account the nature and circumstances of the offence, the behaviour of the accused and the witness’ age, cultural background, employment, religious beliefs and political opinions.62
2.25 The legislation responds to the 1998 Home Office report, Speaking Up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System, which recommended a mandatory prohibition on unrepresented defendants personally cross-examining the complainant in cases of rape and serious sexual assault,63 recognising that, while giving evidence may be stressful for any witness, it is particularly traumatic for complainants in sexual offence trials. The report found that the trauma suffered by sexual offence complainants who give evidence at trial where the accused is unrepresented is uniformly greater than that of complainants in trials where the accused is represented, for, although the court has inherent power to prevent a self-represented accused from abusing court process, the English Court of Appeal has held that that power is to be exercised sparingly so as not to impinge on the accused’s ability to conduct his or her defence.64
2.26 The Home Office report itself was published following two prominent sexual assault cases in which the defendants (who were both later convicted), used the opportunity of cross-examination in person to humiliate and intimidate their victims. In one case, the accused cross-examined the complainant over a period of 6 days and wore the same clothes in court that he had worn throughout the repeated sexual attacks on the victim.65 In the second case, the trial judge expressed his frustration at being unable to control the manner in which the accused cross-examined the complainant, saying:
It is a highly regrettable and extremely sad aspect of this case that despite my repeated efforts during the first two days of your trial you insisted on dispensing with the services of highly competent leading and junior counsel and solicitors, the third set you had been allocated at public expense, thereafter subjecting your victims to merciless cross-examination clearly designed only to intimidate and humiliate them … Although I took what steps I could to minimise that ordeal by repeated efforts to prevent repetitious and irrelevant questioning, nevertheless the whole experience must for those women have been horrifying and it is highly regrettable in my view, and a matter of understandable public concern, that the law as it stands permits a situation where an unrepresented defendant in a sexual assault case has a virtually unfettered right personally to question his victim in such needlessly extended and agonising detail for the obvious purpose of intimidation and humiliation.66
2.27 On appeal, the Lord Chief Justice emphasised the need to strike a balance between the rights of the accused and the interests of the other parties:
The trial judge is … obliged to have regard not only to the need to ensure a fair trial for the defendant but also to the reasonable interests of other parties to the court process, in particular witnesses, and among witnesses particularly those who are obliged to re-live by describing in the witness box an ordeal to which they say they have been subject. It is the clear duty of the trial judge to do everything he can, consistently with giving the defendant a fair trial, to minimise the trauma suffered by other participants. Furthermore, a trial is not fair if a defendant, by choosing to represent himself, gains the advantage he would not have had if represented of abusing the rules in relation to relevance and repetition which apply when witnesses are questioned.67
Scotland
2.28 In 2001, the Scottish Executive published its report Redressing the Balance: Cross-examination in Rape and Sexual Offence Trials, Report on Responses to Consultation. This led to the enactment of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (UK), which requires a person accused of certain sexual offences, including rape, to be legally represented throughout the trial. The legislation came into force on 1 November 2002.
Footnotes
1. See NSW Sexual Assault Committee, Sexual assault phone-in report, Ministry for the Status and Advancement of Women (Sydney, 1993); Parliament of NSW, Legislative Council, Standing Committee on Social Issues, Sexual violence, the hidden crime: inquiry into the incidence of sexual offences in NSW: part 1 (Report 6, 1993); Parliament of NSW, Legislative Council, Standing Committee on Social Issues, Sexual violence, addressing the crime: inquiry into the incidence of sexual offences in NSW: part 2 (Report 9, 1996); NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996); NSW Department for Women, Heroines of fortitude: the experiences of women in court as victims of sexual assault (Gender Bias and the Law Project, Sydney, 1996); NSW Law Reform Commission, Review of section 409B of the Crimes Act 1900 (NSW) (Report 87, 1998); Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002); Queensland, Department of the Premier and Cabinet, Office for Women, Report of the taskforce on women and the criminal code (2000); Queensland Law Reform Commission, The receipt of evidence by Queensland courts: the evidence of children (Report 55, 2000); Victorian Law Reform Commission, Rape: reform of law and procedure (Appendices to Interim Report 42, 1991); M Heenan and HMcKelvie, eThe Crimes (Rape) Act 1991: an evaluation report (Rape Law Reform Evaluation Project, Report 2, Victorian Attorney General’s Department, Legislation and Policy, Department of Justice, 1996); United Kingdom, Home Office, 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); New Zealand, Law Commission, Evidence (Report55, 1999) vol 1; New Zealand, Law Commission, The evidence of children and other vulnerable witnesses: a discussion paper (Preliminary Paper26, 1996).
2. See Westmead Sexual Assault Service, Submission at 1.
3. Parliament of NSW, Legislative Council, Standing Committee on Social Issues, Sexual violence, the hidden crime: inquiry into the incidence of sexual offences in NSW: part 1 (Report 6, 1993) at para 1.1.1-1.1.2.
4. NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) “at 23-25.
5. NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) at 25.
6. NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) at 39.
7. NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996) at 32. See also NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) at 43; Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002) at 11-15.
8. NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996) at 44.
9. NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) at 39.
10. Australian Law Reform Commission, Equality before the law: justice for women (Report 69, Part II, 1994) at para 7.28.
11. D Brereton, “How different are rape trials? A comparison of the cross-examination of complainants in rape and assault trials” (1997) 37 British Journal of Criminology 242 at 257-258.
12. For example, Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002) at 11-15.
13. NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996) at 54; NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) at 45.
14. “Sexual assault trials still turn on the credibility of the complainant because, in the great majority of cases, the alleged conduct occurs in private, consent plays a pivotal role, and the only prosecution evidence in relation to the issue of consent is the evidence of the complainant”: NSW Legal Aid Commission, Submission at 1-2. The NSW Department for Women made a similar comment, that “because the sexual activity itself is often not contested by the accused, particularly where forensic evidence is available, the main point at issue tends to be the consent of the victim. Since the complainant is generally the only witness, the main thrust of the defence usually rests on attempts to cast doubt on the credibility of the complainant as a reliable witness”: NSW Department for Women, Submission at 1.
15. NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) at 39.
16. Palriament of NSW, Legislative Council, Standing Committee on Social Issues, Sexual violence, the hidden crime: inquiry into the incidence of sexual offences in NSW: part 1 (Report 6, 1993) at para 1.1.9. See also NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996) at 38; Australian Law Reform Commission, Equality before the law: justice for women (Report 69, Part II, 1994) at para 7.28; Queensland, Department of the Premier and Cabinet, Office for Women, Report of the taskforce on women and the criminal code (2000) at 311: “Some victims report feeling as if they are on trial, that the court process is humiliating and worse than the rape. Some describe it as ‘secondary rape’”.
17. M Heenan and H McKelvie, The Crimes (Rape) Act 1991: an evaluation report (Rape Law Reform Evaluation Project, Report 2, Victorian Attorney General’s Department, Legislation and Policy, Department of Justice, 1996) at 244.
18. Results of the 1998 Crime and Safety Survey showed that about 83% of females aged 18 years and over who indicated that they had been a victim of sexual assault were assaulted by someone they knew: Australian Bureau of Statistics, “ABS report shows how crime affects Australians”, Media Release, 25 August 1999. Similarly, in the 1996 NSW Bureau of Crime Statistics and Research Survey, 78% of complainants knew the accused before the alleged offence took place: NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996) at 15. In the vast majority of cases (90%) in the Heroines of fortitude study, the complainant knew the accused in some way before the alleged offence took place: NSW Department for Women, Heroines of fortitude: the experiences of women in court as victims “of sexual assault (Gender Bias and the Law Project, Sydney, 1996) “at 57. Only 14% of all the sexual assaults reported to the 1993 phone-in involved a stranger: NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) at 20.
19. NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996) at iii.
20. Parliament of NSW, Legislative Council, Standing Committee on Social Issues, Sexual violence, the hidden crime: inquiry into the incidence of sexual offences in NSW: part 1 (Report 6, 1993) at para 1.1.7.
21. NSW Director of Public Prosecutions (N Cowdery), Submission at 1; NSW Department for Women, Submission at 2.
22. See P Easteal (ed), Balancing the scales: rape, law reform and Australian culture (The Federation Press, Sydney, 1998); JBargen and E Fishwick, Sexual assault law reform: a national perspective (Office of the Status of Women, 1995); Australian Law Reform Commission, Equality before the law: justice for women (Report 69, 1994); Commonwealth of Australia, Senate Standing Committee on Legal and Constitutional Affairs, Gender bias in the judiciary (Report, 1994).
23. For example, Henry; Manning (1969) 53 Cr App R 150 at 153 (Salmon LJ). “See also Australian Law Reform Commission, Equality before the law: justice for women (Report 69, Part II, 1994) at para 2.17.
24. See Crimes (Sexual Assault) Amendment Act 1981 (NSW); Crimes (Amendment) Act 1989 (NSW) and Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001 (NSW). The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) fixes standard minimum non-parole periods for the following offences: sexual assault (7 years), aggravated sexual assault (10 years), aggravated sexual assault in company (15 years) and aggravated indecent assault (5 years).
25. Criminal Procedure Act 1986 (NSW) s 105. The Commission has previously addressed the need for the exclusion of evidence relating to sexual experience: NSW Law Reform Commission, Review of section 409B of the Crimes Act 1900 (NSW) (Report 87, 1998) at para 3.17.
26. Evidence Act 1995 (NSW) s 164. However, the judge’s discretion to warn the jury about unreliable evidence is preserved: s 165.
27. Justices Act 1902 (NSW) s 48AA, 48E. This legislation will be repealed by Sch1 of the aJustices Legislation Repeal and Amendment Act 2001 (NSW) which is expected to commence in July 2003. Information supplied by Legislation and Policy Division, NSW Attorney General’s Department (13 June 2003).
28. See Victorian Law Reform Commission, Sexual offences: law and procedure (Discussion Paper, 2001) at para 8.29-8.43. The Victorian Drugs and Crime Prevention Committee, in a 1996 report, described cross-examination in person by an unrepresented accused as a significant problem. It noted that because accused persons have a right to self-representation, they have direct access to complainants during cross-examination. It recommended that, where a complainant is overly distressed, the court should appoint an independent intermediary for the purposes of cross-examination: Parliament of Victoria, Drugs and Crime Prevention Committee, Combating sexual assault against adult men and women (Report, 1996).
29. Information supplied by M Heenan, Legal Officer, Victorian Law Reform Commission (5 May 2003).
30. New Zealand, Law Commission, The Evidence of children and other vulnerable witnesses: a discussion paper (Preliminary Paper 26, 1996).
31. New Zealand, Law Commission, Evidence (Report 55, 1999) vol 1, at 414-419.
32. Section 23F of the Evidence Act 1908 (NZ) prohibits an unrepresented accused from cross-examining in person a child complainant or a mentally disabled complainant of any age (see s 23C) who gives evidence in a sexual offence trial. It provides that cross-examination is to be conducted by an intermediary who is to act as the mouthpiece for the unrepresented accused.
33. New Zealand, Ministry of Justice, Justice matters, issue 13 (Report, 2003). Additional information supplied by KBelt, New Zealand Ministry of Justice “(1 August 2002; 5 May 2003).
34. Evidence (Children) Act 1997 (NSW) s28(4).
35. Evidence (Children) Act 1997 (NSW) s28(1).
36. Evidence (Children) Act 1997 (NSW) s28(2).
37. Evidence (Children) Act 1997 (NSW) s28(3).
38. Evidence (Children) Act 1997 (NSW) s28(3A).
39. Crimes Act 1914 (Cth) s15YF(1).
40. As defined in Crimes Act 1914 (Cth) s15Y.
41. Crimes Act 1914 (Cth) s15YF(2).
42. Crimes Act 1914 (Cth) s15YG(1).
43. Crimes Act 1914 (Cth) s15YF(2).
44. Crimes Act 1914 (Cth) s15YF(3). Further, a represented accused may only cross-examine a child witness through counsel: s15YH.
45. Crimes Act 1914 (Cth) s15YF(5).
46. Evidence Act 1977 (Qld) s 21N.
47. Evidence Act 1977 (Qld) s 21M.
48. Evidence Act 1977 (Qld) s 21O.
49. Evidence Act 1977 (Qld) s 21P.
50. See Queensland Law Reform Commission, The receipt of evidence by Queensland courts: the evidence of children (Report 55, Part 2, 2000) Recommendation 14.1.
51. Queensland, Department of the Premier and Cabinet, Office for Women, Report of the taskforce on women and the criminal code (2000). See also CEastwood and WPatton, ÿ_The experiences of child complainants of sexual abuse in the criminal justice system (Queensland University of Technology, 2002).
52. Queensland, Department of the Premier and Cabinet, Office for Women, Report of the taskforce on women and the criminal code (2000) at 327 and Recommendation 75.
53. As defined in the Sexual Offences (Evidence and Procedure) Act 1983 (NT) s3.
54. Sexual Offences (Evidence and Procedure) Act 1983 (NT) s5(1)(a).
55. Sexual Offences (Evidence and Procedure) Act 1983 (NT) s5(1)(b).
56. Domestic Violence Act 1992 (NT) s 20AD.
57. Domestic Violence Amendment Act 2001 (NT) s 10.
58. Evidence Act 1939 (NT) s 21A.
59. Evidence Act 1906 (WA) s 106G.
60. Evidence Act 1906 (WA) s 106R.
61. Youth Justice and Criminal Evidence Act 1999 (UK) s 34, 36.
62. Youth Justice and Criminal Evidence Act 1999 (UK) s 16, 17.
63. United Kingdom, Home Office, Speaking up for justice: report of the interdepartmental working group on the treatment of vulnerable or intimidated witnesses in the criminal justice system (1998), Recommendation 58.
64. R v Morley [1988] QB 601, 87 Cr App R 218. The report noted the tendency of trial judges to allow greater latitude in cross-examination in cases where the accused is self-represented so as to decrease the likelihood of a successful appeal on the grounds that the defendant was not afforded the opportunity to defend him or herself adequately: United Kingdom Home Office, Speaking up for justice: report of the interdepartmental working group on the treatment of vulnerable or intimidated witnesses in the criminal justice system (1998) at para 9.32.
65. R v Edwards (England, Central Criminal Court, Goddard J, 22 August 1996, unreported). At trial the accused was convicted of two offences of rape and was sentenced on 9 October 1996 to life imprisonment. His appeal against the duration of the sentence was dismissed in R v Edwards [1997] EWCA Crim 1679.
66. Quoted on appeal, see R v Brown [1998] 2 Cr App R 364 at 368-369 (Bingham LCJ).
67. R v Brown [1998] 2 Cr App R 364 at 371 (Bingham LCJ).
