• The trial process
• The requirements of a fair trial
• The arguments for and against prohibition
• The Commission's view
• Minority views

3.1 This chapter describes the legal process of trying a person charged with a sexual offence and the current limitations on cross-examination of complainants generally. It discusses the adequacy of these limitations as well as the advantages and disadvantages of prohibiting cross-examination in person by an unrepresented accused, including the impact of any such prohibition on the fairness of the trial.

THE TRIAL PROCESS

The various proceedings

3.2 When a complainant reports an alleged sexual offence, the police will take a detailed statement and determine whether or not to lay a charge. “The criminal process distinguishes between summary and indictable offences. A summary offence is heard in a Local Court by a single magistrate. An indictable offence, which is more serious, is heard in the District or Supreme Court, usually by both judge and jury.¹ Sexual assault is an indictable offence, but some sexual offences may be heard summarily.² “The District Court determines the bulk of sexual offence cases, hearing appeals from the Local Court as well as its own first instance casework.

Committal hearing

3.3 The first stage of proceedings for an indictable offence is the committal hearing. Committals are heard in a Local Court. The purpose of the hearing is to determine whether there is enough evidence for the case to proceed to trial. If the accused pleads not guilty (or does not enter a plea), and the magistrate decides there is a reasonable prospect of conviction, the accused is committed for trial in the District or Supreme Court. The prosecution does not have to prove that the accused is guilty, only that there is sufficient evidence to justify a trial. An accused who pleads guilty will be committed for sentence.

3.4 A complainant cannot be called to give oral evidence or be cross-examined at the committal hearing unless the magistrate decides that there are special reasons why, in the interests of justice, the witness should be called to give evidence.³ If the prosecution witnesses do not give oral evidence, the committal hearing will be dealt with as a “paper committal”. The restriction on calling witnesses to give oral evidence means that most committals for sexual offences are paper committals. Where the magistrate permits a complainant to be called, the court may limit the issues to be subject to cross-examination. Apart from this qualification, the procedural considerations applying to an unrepresented accused at trial also apply to committal proceedings.

Trial

3.5 At trial, the prosecution is the first party to presents its case. The Crown prosecutor begins the proceedings by giving an opening address. The witnesses for the prosecution are then called to give evidence. The Crown will lead the complainant’s evidence-in-chief, after which the complainant is almost invariably cross-examined by the defence. Cross-examination is conducted by defence counsel unless the accused is self-represented, in which case cross-examination will be conducted by the accused in person. The complainant will then be re-examined by the Crown prosecutor. After the Crown has presented its case, the defence presents its evidence. The accused may choose to give evidence, in which case the Crown will cross-examine him or her.

3.6 After all the evidence is heard, the judge summarises the evidence and issues any appropriate warnings to the jury. The jury retires to consider its verdict. If the jury returns a verdict of guilty, the offender will be sentenced at a further hearing. If found not guilty, the accused is acquitted of the charge.

Appeal

3.7 Any person convicted of a crime has the right to appeal against either or both of the conviction and the sentence. An appeal after a trial on indictment is not a retrial; its purpose is to redress any error that occurred at trial. Unless the circumstances are exceptional, the court will not substitute its own findings of fact for those of the trial judge. Appeals against Supreme and District Court verdicts on indictment are heard in the Court of Criminal Appeal. Appeals against Local Court decisions, which are retrials on the written record of evidence, are heard in the District Court.⁴

3.8 It is rare for oral evidence to be led in an appeal to the Court of Criminal Appeal or the District Court. The Court of Criminal Appeal will only hear fresh evidence where it was unavailable at the time of trial and is of such a quality that, in combination with the evidence given at trial, there is a significant possibility that the jury, acting reasonably, would have acquitted the accused or (in an alternative formulation) that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it.⁵ The Commission is unaware of any instance in which a complainant has been called to give evidence on appeal. The District Court has power to grant leave to receive fresh evidence if it is in the interests of justice to do so.⁶ Whether the evidence is fresh or not, the District Court may call the complainant to give evidence if the court is satisfied that there are special reasons why, in the interests of justice, he or she should attend and give evidence.⁷

The role of cross-examination

3.9 Cross on Evidence describes the object of cross-examination as:

First, to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross-examination is conducted, and, secondly, to cast doubt upon the accuracy of the evidence in chief given against such a party.⁸

3.10 Notwithstanding the views of some commentators,¹¹ cross-examination is still the principal, and often the only, means by which the accused can test the prosecution’s case. There is little doubt that in some cases it can be very effective in exposing weaknesses or errors in a witness’ testimony, or in obtaining information indicating innocence. Where the accused also gives evidence, the jury will be in a relatively good position to evaluate the comparative truthfulness and reliability of the opposing evidence.

3.11 It is vital that a complainant who gives evidence in sexual offence proceedings undergoes cross-examination. The complainant is making a very serious accusation. The accused faces the prospect of imprisonment if convicted, and in the meantime must bear the stigma of being an alleged sex offender. It is imperative in the interests of justice that the accused has a full opportunity to test the complainant’s evidence in an open forum. This is especially so if the complainant is the only witness to the alleged offence.

3.12 As a matter of policy, the complainant should generally undergo cross-examination once during the criminal process. Legislation limits cross-examination at the committal stage and on appeal to ensure that victims of crime are not cross-examined on more than one occasion unless there are good reasons for doing so.¹²

Limitations on questioning

3.13 An accused (or his or her lawyer) does not have free rein when questioning a complainant. Cross-examination is limited by the following:

The court’s inherent power to control proceedings

3.14 The right to question a witness is subject to the inherent power of the court to control its proceedings.¹³ In particular, the court may make such orders as it considers just in relation to the way in which witnesses are questioned, and the presence and behaviour of any person in connection with the questioning of witnesses.¹⁴ This power can be used to protect complainants from unnecessary distress.

The court’s power to disallow improper questions

3.15 Section 41 of the Evidence Act 1995 (NSW) provides that the court may disallow a question put to the witness in cross-examination, or inform the witness that it need not be answered, if the question is misleading, or “unduly annoying, harassing, intimidating, offensive, oppressive or repetitive”.¹⁵ The court must take into account “any relevant condition or characteristic of the witness, including age, personality and education”, and “any mental, intellectual or physical disability to which the witness is or appears to be subject”.¹⁶

Exclusion of irrelevant evidence

3.16 Section 56(2) of the Evidence Act 1995 (NSW) provides that “evidence that is not relevant in the proceeding is not admissible”. Relevant evidence is defined as evidence that “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.¹⁷ Questions put in cross-examination must, therefore, be relevant to the issues raised, or, so far as they go to credit and involve matters collateral to facts in issue, must tend “rationally and logically to weaken confidence in the witness’s veracity or trustworthiness as a witness of truth”.¹⁸

Exclusion of evidence of sexual experience

3.17 In sexual offence proceedings, witnesses cannot be questioned on their sexual history. Evidence relating to the complainant’s sexual reputation or experience is generally inadmissible.¹⁹ However, evidence of sexual experience is admissible if the alleged activity occurred at or about the time the offence occurred, and it forms part of a connected set of circumstances, or if it relates to a recent relationship between the accused and the complainant. Certain evidence is admissible if the accused denies that the alleged sexual intercourse took place. Where the prosecution adduces evidence of the complainant’s sexual experience, cross-examination on the evidence is allowed if the accused would be unfairly prejudiced if cross-examination were prohibited. Importantly, evidence relating to sexual experience is only admissible where its probative value outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.²⁰

3.18 The accused cannot question the complainant on sexual experience unless the court has previously decided that the evidence would, if given, be admissible.²¹ This provision prevents the accused from asking distressing or humiliating questions despite the fact that the answers would be inadmissible as evidence.

3.19 The general exclusion of evidence of complainants’ sexual reputation or experience recognises the special issues surrounding sexual assault cases, and the need for witnesses in such proceedings to be protected from unnecessary distress, humiliation or embarrassment. The restriction was reviewed by the Commission in its Review of Section 409B of the Crimes Act 1900 (NSW).²²

Prohibition of cross-examination of child witnesses in person

3.20 As already noted,²³ section 28 of the Evidence (Children) Act 1997 (NSW) sets out a presumptive prohibition on an unrepresented accused questioning a child witness. It applies to an unrepresented accused in any criminal proceedings and an unrepresented defendant in civil proceedings arising from a personal assault offence. It requires a witness who is under the age of 16 years to be cross-examined by a person appointed by the court instead of by the accused. If the court appoints such a person, that person is to ask the child any questions that the accused requests be put to the child, provided that the question is not “unduly annoying, harassing, intimidating, offensive, oppressive or repetitive”.²⁴ However, 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.

3.21 A recent amendment to the Act clarifies the role of the court-appointed intermediary.²⁵ The person is appointed merely to ask questions on behalf of the accused, and is not to give any legal or other advice. The intermediary is a mere mouthpiece and is not to influence the course of cross-examination in any way.²⁶

Charter of Victims Rights

3.22 The Charter of Victims Rights provides that “a victim should be treated with courtesy, compassion and respect for the victim’s rights and dignity”²⁷ and that “a victim should be protected from unnecessary contact with the accused and defence witnesses during the course of proceedings”.²⁸ However, the Charter is a statement of principle only, and creates no legal rights. “It does not affect the validity of any judicial act or omission.²⁹

THE REQUIREMENTS OF A FAIR TRIAL

The notion of a fair trial

3.23 The right of an accused to receive a fair trial has been described as a “central pillar” and “fundamental element” of our criminal justice system,³⁰ one that inheres in every civilized system of law.³¹ Not surprisingly, it is clearly established that an accused person has a right to receive a fair trial,³² though this is more accurately expressed as “a right not to be tried unfairly” or “an immunity against conviction otherwise than after a fair trial”.³³ It is impossible to give a comprehensive statement of the attributes of a fair trial.³⁴ Fairness depends on the interests of justice³⁵ in the light of all relevant circumstances surrounding the trial.³⁶ It accommodates the interests of both parties (that is, the Crown and the accused; the complainant is not a party).³⁷ It requires no more than that the trial is as fair as the courts can make it.³⁸ The loss of some advantage normally available to the accused (such as the availability of committal proceedings) will not necessarily undermine the fairness of a trial.³⁹

3.24 A trial judge who believes that the fairness of a trial is in question, may exercise his or her powers:

• to control proceedings and to give forthright directions to the jury.⁴⁰ “This power, which is inherently flexible, includes moulding the procedures of the trial to avoid, or at least, minimise prejudice to either party;⁴¹
• to stay the proceedings to prevent an abuse of process. The judge will exercise this power where he or she is unable, in the circumstances, to ensure a fair trial to the accused.⁴² Proceedings may be stayed either until the unfairness can be overcome or permanently.⁴³ However, a trial may not be stayed because of unfairness that arises from the operation of a constitutionally valid statutory provision prohibiting certain evidence from being given.⁴⁴

3.26 By its very nature, and all other things being equal, the standard adversarial trial with its reliance on cross-examination as a tool for discovering the truth provides a classic model of a fair trial for a number of reasons. The starting point of all criminal trials is that the accused is presumed innocent until proved guilty beyond reasonable doubt. The defence is given the opportunity to cross-examine prosecution witnesses in order to challenge their credibility and expose any unreliability or untruthfulness in their evidence. Although this may be difficult for certain witnesses, it is essential that their evidence be tested in an open forum. It follows that, if the accused cannot test the evidence personally, someone else must.

3.27 At least at first glance, any restriction on cross-examination upsets the classical model of the criminal trial and runs the risk of interfering with the accused’s right not to be tried unfairly. Not surprisingly, many submissions emphasised that a restriction on cross-examination in person must not detract from the accused’s right to a fair trial,⁴⁶ arguing that “it is a drastic step to reduce the legal rights of an accused simply because the accused is unrepresented”.⁴⁷ There are at least two reasons why restricting the ability of an unrepresented accused to cross-examine the complainant in person can be seen as interfering with the accused’s right not to be treated unfairly:

• the accused is denied the ability to present his or her case personally; and
• even if other arrangements can be made, the accused is denied the “ability to test the complainant’s evidence in cross-examination in the “normal” way.

Self-representation

3.28 Persons accused of a criminal offence are entitled to defend themselves in court either personally or through legal representation of their choice.⁴⁸ “If accused persons want to represent themselves, they cannot be prevented from doing so as the law presently stands. Thus, accused persons may generally dismiss their legal representatives and take over their case in person.⁴⁹ Further, there is authority for the proposition that persons charged with a criminal offence cannot have counsel forced upon them against their will. In R v Woodward,⁵⁰ the appellant appealed against his conviction for larceny and receiving stolen goods on the ground that he had been represented by counsel against his wishes. At trial he stated that he would prefer to conduct his own defence as he had not been given an opportunity to see his counsel prior to the trial. The English Court of Criminal Appeal quashed the conviction, stating that, in the circumstances, it was an injustice to the accused not to let him conduct his own defence.⁵¹

3.29 That injustice arose because an unwanted counsel was forced on the accused. There is no authority in the common law of Australia or the statutory law of New South Wales for the broader propositions that there is an absolute right to self-representation or that a denial of self-representation necessarily results in an unfair trial. Dicta assume the contrary,⁵² though the issue has not been expressly considered. The leading cases deal rather with the question of whether or not an accused without legal representation has, in the circumstances, been denied a fair trial.⁵³

3.30 In international law, Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (which are aimed at guaranteeing fair and public hearings by independent tribunals in both civil and criminal cases),⁵⁴ provide that anyone charged with a criminal offence is entitled, as one of a number of minimum guarantees, to defend himself or herself in person or through legal assistance of his or her own choosing.⁵⁵ “The right of self-representation is not, however, absolute. The European Court of Human Rights has held that a State law obliging a court to appoint, where the interests of justice so require, legal counsel to defend an accused person (even against that person’s wishes), does not offend the provisions of Article6.e⁵⁶

Cross-examination

3.31 The High Court has stated that “confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial”.⁵⁷ An accused has a basic right to test the evidence against him or her,⁵⁸ and this normally extends to a facility to cross-examine prosecution witnesses.⁵⁹ However, the court’s unquestionable power to regulate cross-examination⁶⁰ has been recognised from early times,⁶¹ and there is no doubt that Parliament can restrict cross-examination of victims in order to strike an appropriate balance between the rights of an accused person and the need to reduce the trauma that court proceedings impose on the victims of crime.⁶² This means that the general liability of witnesses to cross-examination is subject to the overriding discretion of the court to control its own processes and ensure that the trial is fair.⁶³

3.32 The position in Australian law reflects that in international law. “Both Article 14(3)(e) of the International Covenant on Civil and Political Rights and Article 6(3)(d) of the European Convention guarantee to accused persons the entitlement to examine, or have examined, the witnesses who testify against them — an entitlement that applies regardless of the trial procedure (principally adversarial or inquisitorial) of the jurisdiction in question. A prohibition on cross-examination in person by an unrepresented accused would not breach the express words of these articles, provided that the accused retained the opportunity to have the witnesses against him or her effectively examined by someone else. That said, the articles do not expressly require the interests of witnesses generally, or those of victims called upon to testify, to be taken into account at trial. However, the European Court of Human Rights has held that Article 8 of the European Convention (dealing essentially with the right to respect for private and family life, home and correspondence)⁶⁴ imposes a concurrent obligation on contracting States to protect the life, liberty or security of witnesses.⁶⁵ Accordingly, the law and trial procedure must balance the rights of the accused against the interests of witnesses or victims called upon to testify.⁶⁶ In this respect the European Court has acknowledged that the prosecution of sexual offences, particularly those involving minors, may justify protections being put in place to ensure the wellbeing of complainant witnesses. In one case it noted:

The Court has had regard to the special features of criminal proceedings concerning sexual offences. Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In the assessment of the question whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the private life of the perceived victim. Therefore, the Court accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence.⁶⁷ “In securing the rights of the defence, the judicial authorities may be required to take measures which counterbalance the handicaps under which the defence labours.⁶⁸

3.34 The most dramatic example of a defendant’s right to cross-examine the prosecution’s witnesses occurs in the United States, where a right to confront hostile witnesses is enshrined in the Constitution.⁷³ The Supreme Court has expressed the opinion that confrontation in court between the accused and the complainant is essential to uncover the truth of the matter between the parties:

[T]here is something deep in human nature that regards face-to-face confrontation between accused and accuser as essential to a fair trial in a criminal prosecution … It is always more difficult to tell a lie about a person “to his face” than “behind his back” … That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult.⁷⁴

THE ARGUMENTS FOR AND AGAINST PROHIBITION

The case against prohibition

3.36 The various arguments against the introduction of a prohibition of cross-examination of the complainant witness by an unrepresented accused in sexual offence trials include that such a measure:

• runs the risk of undermining the fairness of the trial;
• is unnecessary in view of existing controls on cross-examination;
• involves solutions that are unwieldy;
• would make an adverse impression on the jury; and
• would be of no real benefit to complainants.

Fairness of the trial under threat

3.38 One submission argued that prohibiting an unrepresented accused from cross-examining a complainant would undermine the fairness of the trial.⁸¹

3.39 First, the due administration of justice requires that accused persons know of the case against them and are given sufficient opportunity to answer it. Sexual offence trials involve the complainant making 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. While a complainant may find the experience unpleasant, the whole purpose of cross-examination is to challenge the credibility of the witness, and expose inconsistencies in his or her evidence. Vigorous cross-examination is arguably more important in instances where the complainant is the only witness to the alleged assault. The presumption of innocence cannot be displaced merely because evidence is scarce and prosecution difficult.

3.40 Secondly, it may be argued that the right to self-representation is inviolable and that it is quite inappropriate to impose legal representation upon people who represent themselves by choice.⁸²

Prohibition is unnecessary

3.41 Two submissions argued that judges have sufficient power to protect complainants from unwarranted questioning.⁸³ An unrepresented accused is not given free rein when questioning a complainant. Improper questioning is already covered by section 41 of the Evidence Act 1995 (NSW).⁸⁴ Both the prosecution and the judge have the opportunity to prevent abusive or inappropriate questioning and no further protection is necessary.

Proposed solutions are unwieldy

3.42 One submission argued that appointing a person on behalf of an unrepresented accused to cross-examine complainants in sexual offence cases “introduces more problems than it solves”, and that such a procedure ““is likely to render proceedings chaotic, ill-directed and liable to challenge on appeal”.⁸⁵

Adverse impression on the jury

3.43 Where the arrangements for giving evidence are not standard, the jury may infer that the accused is guilty. While prejudice to the accused could possibly 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 – prohibiting an accused from cross-examining a complainant in person may create an unfavourable impression on the jury, even where an appropriate warning is issued by the judge.⁸⁶

No real benefit to complainants

3.44 Having to appear in court and give evidence is likely to be distressing for complainants in sexual offence cases, regardless of whether the accused is represented or not. Numerous reports on sexual assault document how distressing sexual assault trials are for complainants, without even considering the issue of self-representation.⁸⁷ Appointing a third party to conduct cross-examination on behalf of an unrepresented accused does nothing to address these concerns.

3.45 Further, as one submission pointed out, a complainant may actually find cross-examination by a barrister more distressing than cross-examination by the accused.

It should be recognised that cross-examination of a complainant in a sexual assault trial always has the potential of being a harrowing experience for the complainant, because the aim of cross-examination is to challenge and cast a reasonable doubt on the evidence of the prosecution. Indeed this potential can be greater where there is effective cross-examination by counsel as opposed to questions by an unrepresented accused.⁸⁸

3.47 The literature on sexual assault consistently identifies cross-examination by defence counsel as one of the most distressing aspects of the trial. Complainants surveyed in a report by the New South Wales Bureau of Crime Statistics and Research identified the attempt by defence counsel to embarrass them as being the worst part of cross-examination.⁹⁰ The report Sexual Violence, Addressing the Crime: Inquiry into the Incidence of Sexual Offences in NSW found that cross-examination by defence counsel is “especially harrowing” for many complainants because “the style of questioning used by many defence counsel may cause the victim/survivor witness to feel under attack”.⁹¹ The report criticised “the unnecessarily invasive nature of the substance of certain cross-examinations and, just as significantly, the failure of many judges to curb the excesses of defence counsel in relation to their style of cross-examination”.⁹²

3.48 In some cases however, a complainant may want to confront the offender directly, and afterwards may find it helpful to have done so. In cases where an accused is unrepresented, preventing cross-examination by the accused in person may actually conflict with the complainant’s wishes.

The case for prohibition

3.49 The arguments in favour of prohibiting an unrepresented accused in a sexual offence trial from cross-examining the complainant in person are that:

• current measures for controlling cross-examination are inadequate;
• prohibition would reduce unnecessary distress to the complainant;
• prohibition would enable complainants to give evidence more accurately;
• prohibition is consistent with other reforms to sexual assault law in New South Wales and elsewhere; and
• prohibition would encourage reporting of sexual offences.

Inadequacy of current measures

3.51 Most submissions were of the view that the current measures for controlling cross-examination are ineffective. First, no amount of judicial intervention can protect the complainant where the very fact of cross-examination in person (rather than the manner or form of the questions) is distressing.⁹⁴ Secondly, although mechanisms exist to enable judges to control intimidating or offensive cross-examination, judicial control is widely perceived as inadequate. Trial judges already have adequate powers to control cross-examination, but some complainants are still subjected to what is felt to be aggressive, offensive or intimidating cross-examination because these safeguards are not used appropriately. Many argued that judicial control is inconsistent, and cannot guarantee systematic protection for complainants.⁹⁵

3.52 The adversarial nature of proceedings makes it difficult in practice for a judge to protect complainants from some distress or intimidation.⁹⁶ In some instances, it may be difficult to draw the line between robust cross-examination, which is legitimate, and one which is improperly aggressive. Some judges may be reluctant to intervene because it could create a perception of bias, and may give rise to an appeal.⁹⁷

3.53 Some submissions pointed out that the judge may not be aware that questioning is, in the circumstances, intimidating or offensive. Intimidation may not be obvious to others in the courtroom where the questions relate specifically to the relationship between the complainant and the accused. The nature of the questions, tone of voice, physical gestures and body language may impact considerably on the complainant.⁹⁸ Seemingly innocent mannerisms, actions, words or phrases may be similar to those used in the assault.⁹⁹ In the nature of things, these are difficult to control. It should also be remembered that the occasion is likely to be very stressful for the accused.

3.54 A number of submissions also argued that judges are less strict in disallowing inappropriate questioning where an accused is unrepresented. The Director of Public Prosecutions commented that “there is a great deal of accommodating the so-called disadvantaged position of the unrepresented accused to ensure fairness”.¹⁰⁰ Others argued that unrepresented defendants are given greater leeway to harass complainants, as it is seen as ignorance of the rules rather than a specific tactic to confuse or intimidate the witness.¹⁰¹

3.55 The inadequacy of judicial intervention is a recurring theme in the literature on sexual assault. In 1996, the Legislative Council’s Standing Committee on Social Issues highlighted the failure of many judges to prevent unnecessarily invasive cross-examination,¹⁰² noting that the existing powers to restrict inappropriate cross-examination were invoked very rarely.103 “It also reported inappropriate attitudes towards sexual offences in some sectors of the judiciary.¹⁰⁴ In 1994, a report by the Senate Standing Committee on Legal and Constitutional Affairs which focused on sexual violence against women argued that it is not an adequate response to hold individual judges responsible given that “a problem exists that is wider than a handful of isolated incidents”.¹⁰⁵

3.56 The literature on child sexual offences also questions the ability of judicial control to prevent inappropriate cross-examination. The authors of The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System were of the opinion that judges are generally unwilling to “enter the arena”,¹⁰⁶ and that many would not recognise oppressive or intimidating questioning. They also point out that, even where judges try to control aggressive cross-examination, and direct the witness that he or she need not answer a particular question, the mode of questioning can still have the effect desired by the person conducting cross-examination.¹⁰⁷ The recent Report on Child Sexual Assault Prosecutions by the New South Wales Legislative Council Standing Committee on Law and Justice similarly concluded that judges “appear disinclined to curtail harsh or confusing cross-examination”.¹⁰⁸

3.57 While some of these criticisms may be overstated in the sense that they suggest, on subjective evidence, shortcomings in the attitudes of judicial officers, their substance must be accepted. The most important cause of these problems is the inherent character of the trial itself. This involves rigorous testing in public of the evidence presented.

Reduce unnecessary distress

3.58 Submissions observed that, regardless of whether the accused is represented or not, complainants in sexual offence trials experience significant distress and humiliation when giving evidence.¹⁰⁹ The process of cross-examination in itself is traumatic and is usually identified as the worst part of the trial for the complainant.¹¹⁰ Where an accused cross-examines a complainant in person, the personal confrontation between complainant and accused is likely to be an additional or underlying cause of distress.¹¹¹ “This will be aggravated where an accused uses the opportunity of cross-examination to intimidate or humiliate the complainant.¹¹²

Enable complainants to give evidence accurately

3.59 Many submissions argued that the evidence of an angry, distressed or confused witness is less likely to be accurate,¹¹³ and that cross-examination in person by an unrepresented accused is likely to upset the witness.

If the relationship is characterised by a power imbalance in favour of the accused, as is likely in cases where a sexual assault has been alleged, this may operate to intimidate the complainant to such a degree that the quality and/or accuracy of the complainant’s evidence is seriously or completely compromised.¹¹⁴

3.60 A submission from one sexual assault service¹¹⁶ reported that many victims of sexual violence view the assault as a life threatening event, and that proximity to the accused commonly triggers a range of trauma responses. The service helps complainants to develop strategies to contain their fear of seeing the accused in court so they do not “freeze” while giving evidence. The submission argued that the prospect of facing cross-examination by an unrepresented accused reduces a complainant’s ability to give evidence as accurately and coherently as possible.¹¹⁷

Consistency with other reforms

3.61 Some submissions supported a prohibition in adult sexual offence cases as an appropriate extension of the existing laws that protect child witnesses.¹¹⁸ Other submissions supported a prohibition on the basis that it would bring New South Wales into line with other jurisdictions which protect complainants in this way.¹¹⁹ Cross-examination by an unrepresented accused is now variously prohibited in Queensland¹²⁰ and the Northern Territory,¹²¹ as well as in other common law jurisdictions including England,¹²² Scotland¹²³ and (to a limited extent) New Zealand.¹²⁴

Encourage reporting

3.62 Another argument for prohibiting an unrepresented accused from cross-examining a complainant in person is that it would encourage victims to report sexual offences.¹²⁵ Sexual assault is notoriously underreported.¹²⁶ Sexual assault victims’ anxiety about the court process is a likely contributing factor to the apparently low reporting rates of sexual offences.¹²⁷

Prohibition or alternative arrangements?

3.63 One of the questions raised in Issues Paper 22 was whether alternative arrangements should be available for complainants when giving evidence in sexual offence proceedings.¹²⁸ For example, if a complainant is apprehensive about seeing the accused in court, a screen can be placed to obscure the accused from the complainant’s sight. However, this places an unrepresented accused who is cross-examining a complainant at a marked disadvantage and may, therefore, be inappropriate in the circumstances. Where the facilities are available, a complainant can give evidence from outside the courtroom, and have the evidence transmitted to the courtroom by closed circuit television. Previous studies have found that such arrangements can reduce distress and enable a complainant to give evidence more accurately.¹²⁹

3.64 Some submissions expressed a preference for making alternative arrangements rather than prohibiting cross-examination in person by an unrepresented accused.¹³⁰ Arguably, such arrangements could minimise a complainant’s distress without detracting from the accused’s right to self-representation. It is, however, doubtful that arrangements such as closed circuit television or screens will be effective in reducing a complainant’s distress, where it is the very fact that the accused is asking the questions that complainants find so distressing.

THE COMMISSION’S VIEW

3.65 The central issue in this reference is whether or not current law strikes an appropriate balance between, on the one hand, the accused’s entitlement to test all relevant evidence by questioning a complainant and, on the other hand, the need to reduce the potential distress and humiliation to complainants from being personally cross-examined by an unrepresented accused. The majority of the Commission is of the view that it does not – given a right to cross-examination by a legal practitioner.

3.66 First, the Commission approaches the issue from the perspective of what is demanded by a fair trial. The Commission accepts that the first and overwhelming element of the public interest in the administration of justice is that the accused is fairly tried. This does not mean, however, that the interests of the accused take priority over all other interests that may be affected by the proceedings. There is a public interest in the protection of these other interests — for example, in preventing certain kinds of confidential information from being exposed (such as the identities of informers or matters covered by legal professional privilege). Thus, although hectoring or insult may serve the interests of the accused, limits on cross-examination are imposed, not only in sexual assault cases, to protect witnesses from unnecessary offence or distress.¹³¹ These rules are unaffected by the accused’s guilt or innocence. Indeed, he or she is presumed to be innocent. There is a substantial public interest in ensuring that witnesses are not subjected to procedures that might be oppressive or humiliating although they must answer all questions that fairly test their evidence. This is not only to ensure, as far as possible, that potential witnesses are not discouraged from coming forward and that actual witnesses are not bullied into giving untrue or inaccurate evidence, but also because such conduct must undermine public confidence in the administration of justice. Without these protections for witnesses, the court would be an instrument of injustice rather than an instrument of justice. The crucial question therefore is not whether the interests of the accused might be prejudiced but whether the fairness of the trial might be called into question if an unrepresented accused is prohibited from cross-examining a complainant in person.

3.67 Secondly, the Commission takes the view that the nature of the questions that must be put to the complainant in sexual assault proceedings makes it inherently offensive to the proper administration of justice that those questions should be put personally by an alleged attacker (whether he or she is guilty or not), even where those questions are put with objective propriety. Those questions deal with matters of considerable intimacy, relating to sexual approach, sexual caresses, details of intercourse and the aftermath. This is certainly true of “consent cases”, that is, cases in which intercourse between the complainant and the accused is admitted but the accused alleges that the complainant consented, and where the focus of the trial is on the issue of consent. It is also true in most “denial cases”, that is, cases (often involving children) in which the accused denies that intercourse took place at all, and where the defence is aimed at suggesting that intercourse could not have physically occurred, or at questioning the veracity of the account of the incident given by the complainant in the witness box by pointing to the complainant’s different account of the incident on some other occasion.

3.68 It is true that evidence of detailed intimacy is not as prominent in “identification cases”, that is, cases where it is admitted that the complainant is the victim of a sexual assault but the accused denies that he or she was the perpetrator. However, personal confrontation must also cause great distress to the complainant in these cases, especially where the accused is in a family or other relationship with the complainant. In such cases, whether the accused is guilty or not, it is also inappropriate that he or she should be able to gain any advantage out of the relationship that may be conferred by personal confrontation.

3.69 The likelihood that the questions necessarily put to the complainant in sexual assault proceedings are of such a nature as to cause the complainant to feel demeaned or humiliated, underlines and reinforces the Commission’s view that it is inherently unsatisfactory for the accused to put those questions personally. Since the Commission considers that appropriate testing of the complainant’s evidence can be undertaken by a legal representative appointed by the court,¹³² the fairness of the trial, from the accused’s point of view is not, in its judgment, significantly compromised by prohibiting the accused from conducting the cross-examination in person.¹³³

3.70 Thirdly, to accommodate the accused’s wish to cross-examine the complainant personally is to confer an inappropriate advantage on the accused. Leaving aside those cases in which the accused is refused legal aid and cannot otherwise afford legal representation, the most likely motive for refusing representation is the desire to obtain an advantage by virtue of the intense character of direct personal confrontation. This advantage has never been part of the function of a trial or an element of fairness. It results in an oppression that should not be permitted unless there is a real, as distinct from fanciful, risk of prejudicing a fair trial. This is not to say that all accused persons who are unrepresented by choice have an improper motive. However, in the Commission’s view, other motives are likely to be rare. “In any event, motives cannot be allowed to convert the proceedings into a trial that is unnecessarily and inappropriately oppressive to the complainant.

3.71 In sum, the Commission’s view is that provided there are other ways in which the complainant’s evidence can effectively be tested (as the Commission believes there are),¹³⁴ there can be no justifiable reason for subjecting the complainant to cross-examination by the accused. Confrontation with the accused and cross-examination are distressful enough without adding the element of direct personal (verbal) attack. Judicial control of cross-examination cannot provide systematic protection because of the inherent nature of the proceedings and the need for judges to remain neutral. And, even where judicial discretion is exercised to prevent abusive or improper questioning, it cannot protect the complainant from the effects of direct confrontation with the alleged offender who wishes to cross-examine personally.

3.72 Accused persons who are prevented from cross-examining complainants in person will not be unfairly disadvantaged. They will still be given the opportunity to present their case and test the evidence against them. “By contrast, preventing cross-examination in person by unrepresented accused would be of significant benefit to both the wellbeing and testimony of complainants, and to the perceived fairness of the trial process. If complainants are able to give their evidence more effectively, the prohibition is in the interests of justice. It is the view of the Commission that the benefit to complainants and to the community in general outweighs any perceived detriment to accused persons. This view essentially stems from the conclusion that, if cross-examination can be provided by a legal practitioner, the potential or perceived advantage of personal confrontation sought by an accused who chooses to be unrepresented is neither a necessary nor a desirable element of the administration of justice.

RECOMMENDATION 1

An unrepresented accused should be prohibited from personally cross-examining a complainant in a sexual offence proceeding.

MINORITY VIEWS

3.73 Two members of this Division of the Commission, Justice Greg James and Justice Ruth McColl, dissent from Recommendation 1. Their view is that it is undesirable that there should be a blanket prohibition on cross-examination of a complainant by an unrepresented accused in sexual offence trials. Such a prohibition effectively compromises the fairness of the trial.

3.74 It cannot always be assumed that an accused person who cross-examines a complainant in person is obtaining an inappropriate advantage rather than merely participating personally in the trial process. It has long been accepted in our adversarial system that persons charged with criminal offences are entitled to defend themselves in court either personally or through legal representation of their choice. Indeed, it can be argued that the “right of confrontation”, although rarely referred to as such outside the United States, is an essential feature of the common law adversarial process and reflects the notion of self-representation. It also accounts, amongst other reasons, for the rule that an accused must be personally present at a jury trial. A prohibition on the right of an accused to cross-examine the complainant in person is inconsistent with the right to self-representation and potentially undermines the cross-examination itself. This is not cured by imposing an unwanted counsel on the accused. As R v Woodward¹³⁵ makes clear, an accused person has a right to put his or her own defence to the jury rather than having it made by counsel.

3.75 A radical assault on the traditional trial process could only be justified if there were evidence to show that complainants are so distressed by subjection to cross-examination in person by an unrepresented accused that the fairness of the trial is called into question. There is no evidence to support such a conclusion. The evidence assembled in the various inquiries considered in Chapter 2 of this Report establishes only that, generally, cross-examination is distressing (often very distressing), for complainants in sexual assault trials. It does not address the particular question faced in this Report, namely, whether cross-examination is any more distressing than usual where the accused is self-represented and conducts the cross-examination in person. The conclusion also overlooks the evidence of those with practical experience in this area of law that some complainants in sexual offence trials may in fact welcome the opportunity to confront the accused in person in court. This is referred to elsewhere in this Report.¹³⁶ The implementation of Recommendation 1 will preclude them from doing so.

3.76 Justices Greg James and Ruth McColl are of the view that adequate provisions already exist in the law to minimise the distress caused to complainants in cross-examination in sexual offence cases, whether that cross-examination is undertaken by counsel or by the accused in person.¹³⁷ The issues highlighted in the submissions and in the majority view can be acknowledged and accommodated, in their view, by:

• a statutory extension of the trial judge’s discretion to restrict or prohibit cross-examination; and
• empowering the trial judge to order the provision of counsel for the purposes of cross-examination in a particular case;¹³⁸ and
• giving effect to the suggestion of the Law Society¹³⁹ and the Legal Aid Commission¹⁴⁰ that provisions such as these could be strengthened through judicial education.

3.78 Justice McColl, however, is of the view that if the accused is required to be represented, then that representation should be for the entire trial. “She accepts the Law Society’s submission¹⁴¹ that the legal representative will be unable to represent an accused adequately unless fully acquainted with all the trial issues. The risk of appointing legal representation for only a limited portion of the trial is that the accused’s right to a fair trial will be prejudiced. If the radical step of removing the accused’s right to control how the trial is to be conducted is to be removed, that should not be at the price of potentially jeopardising a fair trial. Appointing legal representation for the whole trial would not affect the victim’s rights issues addressed elsewhere in this Report.

3.79 Finally, Justices Greg James and Ruth McColl express a concern that the use of alternative arrangements advocated in Chapter 6, together with the restriction on self-representation, may, in their cumulative effect, render a particular trial unfair; and that the unfairness might not, in the circumstances, be cured by directions to the jury that seek to overcome the prejudice.

1. Criminal proceedings in the Supreme or District Courts are tried by jury, unless the accused elects to be tried by judge alone. Trial by judge alone requires the consent of the Director of Public Prosecutions: Criminal Procedure Act 1986 (NSW) s15, 16.

2. All offences are treated as indictable offences in the absence of statutory provision to the contrary. Most sexual offences are indictable offences. However, the Criminal Procedure Act 1986 (NSW) s 20 provides that some sexual offences may be tried summarily unless the prosecuting authority or the accused elects otherwise.

3. Justices Act 1902 (NSW) s 48AA, 48E. See Kant v DPP (1994) 73 ACrimR481.

4. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s17, 18. The Act is not yet in force, but will, upon commencement, replace s 132 and s 133 of the BJustices Act 1902 (NSW), which are substantially similar. The Act is expected to commence in July 2003: information supplied by Legislation and Policy Division, NSW Attorney General’s Department (13 June 2003).

5. Mickelberg v The Queen (1989) 167 CLR 259 at 273 (Mason CJ), 275 (BrennanJ), 288 (DeaneJ), 301 (Toohey and GaudronJJ).

6. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s18(2). See also s17. And see note 4 above.

7. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 19(1)(a). See note 4 above.

8. DByrne and JDHeydon, o rCross on evidence (Loose leaf edition, Butterworths, 1996) vol 1 at [17430].

9. J H Wigmore, A treatise on the Anglo-American system of evidence in trials at common law (3rd edition, 1940) vol V, §1367 at 29.

10. See Maryland v Craig (1990) 497 US 836.

11. For example, C Eastwood and W Patton, The experiences of child complainants of sexual abuse in the criminal justice system (Queensland University of Technology, 2002) at 4-5: “The purpose of cross-examination has very little, “if anything to do with accuracy or truth. Rather the purpose of cross-examination is more a process of manipulating the witness through suggestive questioning, avoiding unfavourable disclosures and obtaining jury sympathy. Cross-examination techniques are specifically designed to damage the effectiveness of the testimony and mute the voice of the complainant”.

12. See NSW, Parliamentary Debates (Hansard) Legislative Council, 17 September 1998, the HonJShaw, Attorney General, at 7596.

13. Evidence Act 1995 (NSW) s11. See also Barton v The Queen (1980) 147 CLR 75 at 96: “There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial” (Gibbs ACJ and Mason J).

14. Evidence Act 1995 (NSW) s 26(a), 26(d).

15. Evidence Act 1995 (NSW) s 41(1).

16. Evidence Act 1995 (NSW) s 41(2).

17. Evidence Act 1995 (NSW) s 55(1).

18. Cross on evidence at [17510]. For a recent example, see R v Slack [2003] NSWCCA 93.

19. Criminal Procedure Act 1986 (NSW) s 105. This section replaces the former s409B of the _Crimes Act 1900 (NSW).

20. Criminal Procedure Act 1986 (NSW) s 105(4).

21. Criminal Procedure Act 1986 (NSW) s 105(5).

22. NSW Law Reform Commission, Review of section 409B of the Crimes Act 1900 (NSW) (Report 87, 1998).

23. See para 2.18.

24. Evidence Act 1995 (NSW) s 41.

25. See Evidence (Children) Act 1997 (NSW) s 28(3A), introduced by the Evidence Legislation Amendment Act 2001 (NSW) Sch2 cl2, which came into force on 26July 2002.

26. NSW, Parliamentary Debates (Hansard) Legislative Council, 11 December 2001, the Hon J Hatzistergos, Second Reading Speech, at 19903. See Evidence (Children) Act 1997 (NSW) s28(3A).

27. Victims Rights Act 1996 (NSW) s 6.1.

28. Victims Rights Act 1996 (NSW) s 6.7.

29. Victims Rights Act 1996 (NSW) s 8.

30. Dietrich v The Queen (1992) 177 CLR 292 at 298-299 (Mason CJ and McHughJ).

31. R v Macfarlane; Ex parte O’Flanagan (1923) 32 CLR 518 at 541 (Isaacs J).

32. Dietrich v The Queen (1992) 177 CLR 292 at 299 and 311 (Mason CJ and McHugh J), 325 (Brennan J, dissenting), 326 (Deane J), 350 (Toohey J). See also Jago v The District Court of NSW (1989) 168 CLR 23 at 29 (Mason CJ), “56 (Deane J), 72 (Toohey J), 75 (Gaudron J).

33. Jago v District Court of NSW at 57 (DeaneJ). See also Dietrich v The Queen “at 299 (Mason CJ and McHugh JJ).

34. Dietrich v The Queen at 300 (Mason CJ and McHugh J), 353 (Toohey J); Jago v The District Court of NSW at 57 (Deane J).

35. See Barton v The Queen (1980) 147 CLR 75 at 101 (Gibbs ACJ and Mason J).

36. Especially Dietrich v The Queen at 311 (Mason CJ and McHughJ), 324 (BrennanJ“, dissenting), 350 (TooheyJ).

37. Clearly put by DawsonJ in his dissenting judgment in McKinney v The Queen (1991) 171 CLR 468 at 488. See also Barton v The Queen at 101 (Gibbs ACJ and Mason J); Jago v The District Court of NSW at 33 (Mason CJ), 50 (BrennanJ), 72 (Toohey J).

38. Dietrich v The Queen at 324 (Brennan J, dissenting), 350 (Dawson J, dissenting), 365 (Gaudron J).

39. Barton v The Queen at 114 (Wilson J). See also Varley v The Queen (1976) 51 ALJR 242 (no miscarriage of justice in the circumstances of the case where Solicitor General departed from the Crown’s traditional practice – a practice not now followed in NSW – not to address the jury where an accused is unrepresented).

40. Especially, Jago v The District Court of NSW at 49 (BrennanJ).

41. Jago v The District Court of NSW at 47-48 (BrennanJ).

42. Especially, Barton v The Queen.

43. Though a permanent stay of proceedings will be rare, since “to justify a permanent stay of proceedings, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Jago v The District Court of NSW (1989) 168 CLR 23 at 34 (Mason CJ).

44. R v PJE (NSWCCA, No 60216/95, 9 October 1995, unreported).

45. For example, Whitehorn v The Queen (1983) 152 CLR 657, especially at 665 (DeaneJ).

46. NSW Legal Aid Commission, Submission at 2; NSW Department for Women, Submission at 3; Law Society of NSW, Submission at 1; NSW Attorney General's Department Violence Against Women Specialist Unit, Submission at 3; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 1.

47. NSW Legal Aid Commission, Submission at 2.

48. However, generally the court will not receive parallel and conflicting submissions from both the accused’s counsel and the accused himself or herself: see R v Wati [1993] 3 NZLR 475.

49. R v Varley [1973] 2 NSWLR 427 at 429 (CCA); affirmed by the High Court in Varley v The Queen (1976) 51 ALJR 243.

50. R v Woodward [1944] 1 KB 118.

51. R v Woodward [1944] 1 KB 118 at 120 (Viscount Caldecote CJ).

52. Dietrich v The Queen (1992) 177 CLR 292 at 335-336 (Deane J), 365 (GaudronJ);l Attorney General (NSW) v Milat (1995) 37 NSWLR 370 at 374.

53. McInnes v The Queen (1979) 143 CLR 575; Dietrich v The Queen (1992) 177 CLR 292.

54. See, among other authorities, Artico v Italy (1980) (AppNo 6694/74, 13 May 1980,Q Ser A/37) at 15, §32; Delta v France (AppNo 11444/85, 19 December 1990, SerA/191-A) at 15, § 34; Vacher v France (AppNo 64/95, 17December 1996, Reports 1996-VI) at2147, § 22; Melin v France (AppNo 12914/87, 22 June 1993, Ser A/261-A) at 11, §21; ˙PFoucher v France (AppNo 22209/93, 18 March 1997, Reports 1997-II) at 464, § 30; _Asch v Austria (AppNo 12398/86, 26 April 1991, Ser A/203) at 10, § 25; Vidal v Belgium (AppNo 12351/86, 22 April 1992, “Ser A/235-B) at 32-33, § 33; Doorson v the Netherlands (AppNo 20524/92, “26 March 1996, Reports 1996-II) at 470, § 67; nVan Mechelen v the Netherlands (AppNo 21363/93, 23 April 1997, Reports 1997-III) at 711, § 50.

55. International Covenant on Civil and Political Rights, opened for signature 19December 1966, 999 UNTS 171 (entered into force 23 March 1976) art14(3)(d); European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 1 September 1953) art 6(3)(c). See generally, R Clayton and HTomlinson, The law of human rights (OUP, 2000) at para 11.245-11.251.

56. Croissant v Germany (AppNo 13611/88, 25 September 1992, Ser A/237-B) especially at § 29. See also Morris v the United Kingdom (AppNo38784/97, 26February 2002) (representation of complainant at court martial by a defending army officer and not an independent legal practitioner did not violate the right to legal representation of complainant’s choosing); Meftah v France (AppNo 32911/96, 26 July 2002); Lagerblom v Sweden (AppNo 26891/95, 14January 2003Bl) at § 54.

57. Lee v The Queen (1998) 195 CLR 594 at 602.

58. See Whitehorn v The Queen (1983) 152 CLR 657 at 661 (Murphy J); Kant v DPP (1994) 73 A Crim R 481; Astill v The Queen (1992) 63 A Crim R 157. See also GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 17 (Young J) (civil proceedings).

59. GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 17 (Young J). See also D Byrne and J D Heydon, Cross on evidence (Loose leaf edition, Butterworths, 1996) vol 1 at [17475].

60. See para 3.14-3.21.

61. For example, R v Chubb (1863) 2 SCR (NSW) 282 at 284, 287; R v O’Brien (1878) 1 SCR (NSW) 146.

62. Kant v DPP (1994) 73 A Crim R 481 at 488 (Gleeson CJ).

63. R v McLennan [1999] 2 Qd R 297 at 303 (DaviesJ).

64. See also International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art17.

65. Doorson v the Netherlands (AppNo 20524/92, 26 March 1996, Reports 1996-II); Van Mechelen v the Netherlands (AppNo 21363/93, 23 April 1997, Reports 1997-III).

66. See Doorson v the Netherlands (AppNo 20524/92, 26 March 1996, Reports 1996-II);A Van Mechelen v the Netherlands (AppNo 21363/93, 23 April 1997, Reports 1997-III); Lüdi v Switzerland (AppNo 12433/86, 15 June 1992, SerA/238); ˙_PS v Germany (AppNo 33900/96, 20 December 2001).

67. Baegen v The Netherlands (AppNo 16696/90, 27 October 1995, Ser A/327-B) “at 44, § 77.

68. Doorson v the Netherlands (AppNo 20524/92, 26 March 1996, Reports 1996-II) _at 471, § 72. See also PS v Germany (AppNo 33900/96, 20 December 2001) at § 23.

69. SN v Sweden (AppNo 34209/96, 2 July 2002) at § 52.

70. SN v Sweden (AppNo 34209/96, 2 July 2002).

71. SN v Sweden (AppNo 34209/96, 2 July 2002) at § 46.

72. PS v Germany (AppNo 33900/96, 20 December 2001).

73. Constitution (USA) Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him”.

74. Coy v Iowa (1988) 487 US 1012 at 1017-1020. In this case, placing a screen between a child witness and the accused was found to breach the accused’s right to confrontation, even though cross-examination was not otherwise limited.

75. Maryland v Craig (1990) 497 US 836.

76. Maryland v Craig (1990) 497 US 836 at 851-852.

77. Maryland v Craig (1990) 497 US 836 at 852-855.

78. NSW Legal Aid Commission, Submission at 2; NSW Public Defenders (P Zahra and C Loukas), Submission at 2; Law Society of NSW, Submission at 2.

79. NSW Legal Aid Commission, Submission at 2; Law Society of NSW, Submission at 1.

80. NSW Legal Aid Commission, Submission at 2; NSW Public Defenders (P Zahra and C Loukas), Submission at 2.

81. NSW Public Defenders (P Zahra and C Loukas), Submission at 2.

82. NSW Public Defenders (P Zahra and C Loukas), Submission at 3.

83. NSW Public Defenders (P Zahra and C Loukas), Submission at 2; Law Society of NSW, Submission at 1.

84. See para 3.15.

85. NSW Public Defenders (P Zahra and C Loukas), Submission at 1-2.

86. NSW Legal Aid Commission, Submission at 5; Law Society of NSW, Submission at 4.

87. See para 2.2-2.11.

88. NSW Legal Aid Commission, Submission at 1.

89. NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern NSW), Submission.

90. NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996) at 37.

91. 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 Standing Committee on Social Issues (Report 9)”) at 152.

92. NSW Standing Committee on Social Issues (Report 9) at 153.

93. NSW Legal Aid Commission, Submission at 1; NSW Director of Public Prosecutions (N Cowdery), Submission at 2; Law and Justice Foundation of NSW, Submission at 1; NSW Department for Women, Submission at 3; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 3; C Vernon, Submission at 2; Women’s Legal Resources Centre, Submission at 2; Westmead Sexual Assault Service, Submission at 2; Illawarra Area Health Service, Submission at 1; Central Coast Health, Submission at 2; Macquarie Area Health Service, Submission at 2; Hawkesbury Nepean Community Legal Centre, Submission at 1; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at2; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern NSW), _Submission.

94. Westmead Sexual Assault Service, Submission at 2. The Law and Justice Foundation similarly argued that the existing limitations are inadequate because they take the form and substance of the questions into account without addressing the risks to the welfare of the complainant: Law and Justice Foundation of NSW, Submission at 1.

95. Women’s Legal Resources Centre, Submission at 2; NSW Director of Public Prosecutions (N Cowdery), Submission at 2; NSW Department for Women, Submission at 4; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 4; Law and Justice Foundation of NSW, Submission at 1; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at2; Hawkesbury Nepean Community Legal Centre, Submission at 2; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern NSW), Submission; Westmead Sexual Assault Service, Submission at 2; D Purcell, Submission at 2.

96. NSW Department for Women, Submission at 3; NSW Director of Public Prosecutions (N Cowdery), Submission at 2.

97. NSW Standing Committee on Social Issues (Report 9) at 153.

98. NSW Director of Public Prosecutions (N Cowdery), Submission at 2-3; Westmead Sexual Assault Service, Submission at 2.

99. Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at1. _

100. NSW Director of Public Prosecutions (N Cowdery), Submission at 2.

101. NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 4 and Illawarra Area Health Service, Submission at 2. See also para 2.25 note 64.

102. NSW Standing Committee on Social Issues (Report 9) at 153.

103. NSW Standing Committee on Social Issues (Report 9) at 154.

104. NSW Standing Committee on Social Issues (Report 9) at 125-127.

105. Commonwealth Parliament, Senate Standing Committee on Legal and Constitutional Affairs, Gender bias and the judiciary (Canberra, 1994) at “para 4.52.

106. C Eastwood and W Patton, The experiences of child complainants of sexual abuse in the criminal justice system (Queensland University of Technology, 2002) at 126.

107. Eastwood and Patton at 126.

108. Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002) at xiv.

109. NSW Legal Aid Commission, Submission at 1; NSW Director of Public Prosecutions (N Cowdery), Submission at 1; NSW Department for Women, Submission at 1-2; Women’s Legal Resources Centre, Submission at 2; DPurcell, Submission at 2.

110. Illawarra Area Health Service, Submission at 1; NSW Department for Women, Submission at 2.

111. NSW Legal Aid Commission, Submission at 1.

112. NSW Legal Aid Commission, Submission at 1; NSW Department for Women, Submission at 2; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 3.

113. For example, Central Coast Health, Submission at 2. Cross on evidence notes that the principles underlying the prohibition on improper questioning “are that truth will out more readily from the lips of a calm witness, or one who has been calmly induced to assert inconsistent propositions, than from one in a state of justifiable terror or rage, or fatigue”: DByrne and JDHeydon, “Cross on evidence (Loose leaf edition, Butterworths, 1996) vol 1 at [17510].

114. NSW Department for Women, Submission at 2. Similar comments were made by the NSW Legal Aid Commission, Submission at 1; Women’s Legal Resources Centre, Submission at 2; Illawarra Area Health Service, Submission at 1; Central Coast Health, Submission at 2.

115. NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 3.

116. Westmead Sexual Assault Service, Submission at 1 (citing J Herman, Trauma and recovery (Harper Collins, 1992) at 33).

117. Westmead Sexual Assault Service, Submission at 1.

118. NSW Director of Public Prosecutions (N Cowdery), Submission at 2; NSW Department for Women, Submission at 4; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 4; Law and Justice Foundation of NSW, Submission at 2; Hawkesbury Nepean Community Legal Centre, Submission at 2; Central Coast Health, Submission at 3.

119. NSW Department for Women, Submission at 4; Women’s Legal Resources Centre, Submission at 1; Hawkesbury Nepean Community Legal Centre, Submission at 2; Illawarra Area Health Service, Submission at 1; Central Coast Health, Submission at 3.

120. See para 2.20.

121. See para 2.21.

122. See para 2.24.

123. See para 2.28.

124. See para 2.17.

125. NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 9.

126. Sexual assault is the least likely of all criminal offences to be reported to the police: NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996) at 1. Two thirds of the people who participated in the 1993 Sexual Assault phone-in had not reported the assault to the police: NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) at 7.

127. NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996) at 4.

128. NSW Law Reform Commission, Questioning of complainants by unrepresented accused in sexual assault trials (Issues Paper 22, 2002), Issues 13 and 14.

129. The use of alternative arrangements is reviewed in Chapter 6 of this Report.

130. NSW Public Defenders (P Zahra and C Loukas), Submission at 4; Law Society of NSW; Submission at 2.

131. See para 3.12-3.21.

132. See Recommendation 6.

133. See para 5.26-5.27.

134. See Chapter 5.

135. R v Woodward [1944] 1 KB 118.

136. See para 3.48.

137. See para 3.14-3.21.

138. The majority expands its view in favour of a blanket prohibition with no discretion in paras 4.14-4.15.

139. Law Society of NSW, Submission at 1.

140. NSW Legal Aid Commission, Submission at 2.

141. Law Society of NSW, Submission at 4.