4.1 This chapter considers the scope of the prohibition in Recommendation 1. It discusses whether the court should retain a discretion to allow cross-examination in person by an unrepresented accused. It examines whether the prohibition should apply only to complainants in sexual offence proceedings or to prosecution witnesses in general. It then identifies the proceedings to which the prohibition should apply.
A DISCRETION TO ALLOW CROSS-EXAMINATION IN PERSON
4.2 Submissions expressed a range of views as to whether, assuming a general prohibition on the cross-examination of complainants by unrepresented accused in sexual offence trials, the court should nevertheless retain a discretion to allow cross-examination in person by an unrepresented accused.1
Arguments in favour of a discretion
4.3 Some submissions argued that the court should retain a discretion to allow cross-examination in person by an unrepresented accused.2 The Legal Aid Commission submitted that:
While it is clear that limits should be applied where unrepresented accused use cross-examination as an abusive tool, a reduction of the rights of an accused simply because the accused is unrepresented should not of itself be sufficient justification without consideration of the circumstances of the particular case.3
4.4 In the view of the Legal Aid Commission, prohibition should depend on the gravity of the alleged offence since sexual offence proceedings cover such a wide range of behaviour. A mandatory limitation would create a broad and potentially large class of witnesses to whom the limitation would apply, in many cases unnecessarily. Extending the prohibition to witnesses unnecessarily would impose a significant cost on the criminal justice system, and result in longer trials.4
4.5 A discretion to allow cross-examination in person would also be advantageous where a complainant would rather be cross-examined by the accused than by defence counsel, for example, because the accused is not legally trained and lacks the skills and experience to conduct an effective cross-examination. A mandatory prohibition may force complainants to undergo cross-examination by defence counsel against their wishes.
4.6 A prohibition against cross-examination in person with a discretion to allow it in certain circumstances would effectively create a presumption against cross-examination in person. In practice, the complainant would automatically be protected against it and would lose this protection only if evidence was led to show that he or she did not require such protection. “This is what currently happens in the case of child witnesses – an unrepresented accused is prohibited from cross-examining a child witness in person, unless the prohibition is not in the interests of justice.5
Arguments against a discretion
4.7 A number of submissions argued against a discretion to allow cross-examination in person by an unrepresented accused.6 A mandatory prohibition is uniform and fair.7 It would ensure systematic protection, and would avoid court time being spent on applications by accused persons for the right to cross-examine the complainant in person. Victims of sexual offences could be certain that they would be protected against this type of harassment when deciding whether to press charges, which may encourage reporting.8
4.8 Many submissions maintained that the effectiveness of a discretion depends on the individual judge.9 The current limitations on cross-examination are discretionary, and there is widespread concern that these do not afford effective protection against inappropriate questioning.10
4.9 One sexual assault service argued that a discretion to allow cross-examination in person would create an unreasonable level of uncertainty for complainants. The period leading up to the trial is highly stressful for complainants. An absolute prohibition would give them certainty about the trial process and may help to reduce their stress.11
4.10 A discretion to allow cross-examination may also be impractical. “The court will have to exercise its discretion before an accused commences cross-examination of the complainant, but at this stage it is not known how the accused will behave during cross-examination.12
4.11 Other jurisdictions in which special measures for giving evidence are available on a discretionary basis have found this to be ineffective. For example, the Queensland legislation was recently strengthened because, in practice, discretionary provisions protecting special witnesses were rarely used.13 “Now there is a mandatory prohibition on cross-examination in person by an unrepresented accused.14 Similarly, the discretionary use of alternative arrangements for child witnesses has been criticised. In one study, the use of arrangements designed to make it easier for child witnesses to give evidence in sexual offence proceedings was compared across three jurisdictions, Queensland, New South Wales and Western Australia.15 It found that use of alternative arrangements was “sporadic and inconsistent” where left to judicial discretion. The decision was usually made just prior to the child giving evidence, which added to the complainant’s stress. By contrast, alternative arrangements were much more effective where their use was standard.16
4.12 In New South Wales, there is a presumption in favour of child witnesses giving evidence via closed circuit television. The child is denied the use of closed circuit television only where the court is satisfied that its use is not in the interests of justice, or that the urgency of the matter makes its use inappropriate.17
4.13 However, a recent report of the Legislative Council’s Standing Committee on Law and Justice reported that:18
Orders for the non-use of CCTV appear to be relatively frequent … Courts have been overly restrictive in their interpretation of the interests of justice and have over-emphasised the likely prejudice to the accused.
The report concluded that the statutory right to give evidence by alternative arrangements has failed to give children uniform protection, and recommended curbing the current discretion.19
The Commission’s view
4.14 The Commission’s objection to the cross-examination of a complainant by an unrepresented accused in sexual offence proceedings is based on the view that, provided the complainant is cross-examined by a legal practitioner, the fairness of the trial is compromised if the accused (whether guilty or not) is able to obtain an advantage by personally cross-examining an accused on matters of the most intimate kind, in view of the distressing effect that such cross-examination is likely to have on the complainant.20 “The qualification of the Commission’s recommendation that such cross-examination be prohibited by a judicial discretion to allow cross-examination, would simply fail to meet these policy considerations. In any event, it would be practically impossible in most cases to obtain an adequate evidentiary basis for exercising any such discretion. A mandatory prohibition has the benefits of consistency, certainty and simplicity. It is also less prejudicial to accused persons because the procedure is routine.
4.15 The Commission acknowledges that a blanket prohibition fails to take all the circumstances of every possible case into account. However, the Commission is of the view that the prohibition does not unfairly or inappropriately disadvantage the accused, and sees no reason why it should not apply in every case.21 The advantages of prohibition outweigh the problem of preventing cross-examination in person in the few cases where a complainant does not, in the circumstances, require it.
TO WHOM SHOULD THE PROHIBITION APPLY?
4.16 The prohibition could apply to complainants in sexual offence proceedings only. Alternatively, it could apply more broadly, to other types of proceedings and other types of witnesses.
Sexual offence complainants only
4.17 Some submissions, recognising the distinctive impact of sexual offence trials on complainants,22 argued that cross-examination of complainants by an unrepresented accused should be prohibited in sexual offence proceedings only. The Legal Aid Commission submitted:
Sexual assault trials are distinctive … A major aim of law reform has been to reduce the distress of the complainant inherent in sexual assault trials. Given the reduction in legal rights and serious implications for a fair trial arising from a limitation on cross-examination by an unrepresented person, there does not appear to be sufficient justification for extending the limitation to a broader category of offences.23
4.18 Arguably the nature of a sexual offence makes cross-examination in person a more distressing ordeal for complainant witnesses than for witnesses generally. One sexual assault service24 maintained that because sexual violence “is so intrusive upon the victim’s own body and sense of personal integrity” it “has a special status unlike any other crime”. It argued that cross-examination in person “does not fit with the purpose of the proceedings, that is, to establish the guilt … of the accused”. Rather, it gives the accused further opportunity to humiliate the victim, and for this reason has the character of a “secondary act of trauma”, or a continuation of the original assault.25
A broader application
4.19 Alternatively, the prohibition could apply to witnesses in circumstances other than sexual offence proceedings. The scope of the prohibition could depend on the type of offence, the personal characteristics of the witness or a combination of both.
4.20 Several submissions were in favour of a mandatory prohibition in sexual offence proceedings and a discretionary limitation in other types of proceedings26 or for other kinds of witnesses.27
Type of offence
4.21 The legislation currently prohibiting the cross-examination of child witnesses in person is quite broad. It applies to criminal proceedings in any court, as well as civil proceedings arising from the commission of a personal assault offence.28
4.22 A number of submissions urged that the prohibition on cross-examination in person by an unrepresented accused be extended beyond sexual offence trials to include proceedings such as domestic violence matters.29 Many pointed to parallels between sexual offences and domestic violence, including the power imbalance between the parties, the likelihood that the perpetrator and victim knew each other before the alleged assault occurred and the potential for the accused to use cross-examination in person to humiliate the witness further. Arguably, all witnesses who are vulnerable due to the nature and seriousness of the alleged offence should be protected against cross-examination in person by an unrepresented accused.
4.23 Some submissions also argued that the prohibition should apply in civil proceedings in matters involving personal violence.30 Some proposed that cross-examination in person be prohibited in applications for Apprehended Violence Orders.31 The Director of Public Prosecutions noted that these proceedings are often related to criminal proceedings, and witnesses can be required to give evidence in both.32
4.24 Other submissions were of the view that the prohibition should apply in criminal proceedings only.33 The Legal Aid Commission argued that there is insufficient justification for extending the prohibition to civil proceedings, where the implications of an adverse result are not, at least potentially, as serious for the defendant as they can be in a criminal case.34 The Law and Justice Foundation pointed out that a prohibition is resource intensive and may not be justified in civil proceedings.35
Characteristics of the witness
4.25 Some submissions argued that cross-examination of all vulnerable witnesses by the accused in person should be prohibited regardless of the type of proceedings, especially where a witness’ vulnerability stems from personal characteristics such as age, intellectual disability or the relationship between the witness and the accused.36
4.26 A number of submissions argued that witnesses other than alleged victims should be protected against cross-examination in person by an unrepresented accused. For example, the Department for Women pointed out that in families affected by domestic violence, the power exerted by the perpetrator often extends to other members of the family. Other witnesses may be intimidated by the accused in court if they are testifying for the complainant.37 A submission from an area health service suggested that mothers of children who have been sexually assaulted should not be cross-examined in person by an unrepresented accused.38
A combined approach
4.27 A number of jurisdictions take account of both the type of offence and characteristics of the witness in the determining the scope of prohibitions “on the ability of self-representend persons to cross-examine in person. “These include Queensland, the Northern Territory, Western Australia, England and New Zealand.39 The Director of Public Prosecutions expressed a preference for a combined approach where all “vulnerable witnesses” are protected against cross-examination in person by an unrepresented accused.40 Whether a person qualifies as a “vulnerable witness” would depend on the nature and gravity of the alleged offence and any relevant personal characteristics, including the witness’ age, cultural background and any disability (including any physical or intellectual disability, mental illness or communication difficulty). It could also take into account any relationship between the witness and accused, and any power imbalance between them. “It should also take into account the fact that the accused has chosen to be self-represented and does not want a third party to cross-examine the complainant on his or her behalf. In contrast, another submission argued that, as it is difficult to know in advance what factors make a witness vulnerable, extending the prohibition to all vulnerable witnesses is impractical.41
The Commission’s view
4.28 The Commission is of the view that the prohibition should apply in sexual offence cases. A number of factors make sexual offence trials particularly distressing for complainants, including the nature of the crime; the role of consent and consequential focus on the complainant’s credibility; and the likelihood that the accused and complainant knew each other before the alleged assault occurred. Sexual offence trials are characterised by an unavoidably distinctive dynamic which makes cross-examination in person by an unrepresented accused particularly inappropriate.42
4.29 The Commission accepts that cross-examination may also be very distressing for other witnesses who are questioned by the accused in person, for example in proceedings for domestic violence offences. However, any consideration of the extension of the prohibition in Recommendation 1 is beyond the terms of this reference and requires further analysis and consultation. That analysis would have to take account of the consideration that accused persons are generally entitled to conduct their own defence and that prohibiting cross-examination by an unrepresented accused in any category of case is exceptional and requires distinct justification. It would also need to examine the likelihood that a broad, discretionary prohibition – for example, one applicable to “vulnerable witnesses” generally – may be applied inconsistently.
PROCEEDINGS COVERED BY THE PROHIBITION
Which offences?
4.30 Section 3 of the Criminal Procedure Act 1986 (NSW)43 defines “prescribed sexual offence” as:
(a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 65A, 66A, 66B, 66C, 66D, 66F or 80A of the Crimes Act 1900, or
(b) an offence that includes the commission, or an intention to commit, an offence referred to in paragraph (a), or
(c) an offence that, at the time it was committed, was a prescribed sexual offence for the purposes of this Act or the Crimes Act 1900, or
(d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).
4.31 The Commission is of the view that cross-examination of complainants by an unrepresented accused should be prohibited in proceedings for a “prescribed sexual offence”, as defined by section 3 of the Criminal Procedure Act 1986 (NSW). This would cover any criminal proceedings in which the accused is charged with:
- sexual assault (s 61I)
- aggravated sexual assault (61J)
- aggravated sexual assault in company (61JA)
- assault with intent to have sexual intercourse (61K)
- indecent assault (61L)
- aggravated indecent assault (61M)
- act of indecency (61N)
- aggravated act of indecency (61O)
- sexual intercourse procured by intimidation, coercion and other non-violent threats (65A)
- sexual intercourse with a child under 10 (66A)
- attempting, or assaulting with intent, to have sexual intercourse with a child under 10 (66B)
- sexual intercourse with a child between 10 and 16 (66C)44
- attempting, or assaulting with intent, to have sexual intercourse with a child between 10 and 16 (66D)
- sexual intercourse with a person with an intellectual disability (66F)
- sexual assault by forced self-manipulation (80A)
4.32 The prohibition would also cover an offence of attempting, or of conspiracy or incitement, to commit any of the above offences, and would also cover an offence that, at the time it was committed, was a prescribed sexual offence for the purpose of the Criminal Procedure Act 1986 (NSW) or the Crimes Act 1900 (NSW).
RECOMMENDATION 2
“Sexual offence proceeding” should refer to a prescribed sexual offence as defined in section 3 of the Criminal Procedure Act 1986 (NSW).
Sexual offence proceedings involving children
4.33 Some of the offences listed in Recommendation 2 deal with child sexual offences.45 Although accused persons are already prohibited from cross-examining child witnesses in person, this only applies in relation to evidence given by a child who is under the age of 16 years at the time the evidence is given.46 The Commission intends that the recommendations in this Report should apply in all proceedings involving child sexual offences. An important difference between the recommendations in this Report and the regime currently in place for child complainants47 is that our recommendations require (with no discretion in the court) that the person appointed by the court for the purpose of cross-examination be a legal practitioner48 and that the normal client-practitioner relationship should apply in this situation.49 To avoid the application of the maxim that the general does not detract from the particular,50 and generally to avoid doubt, the Commission recommends that the legislative implementation of the recommendations in this Report should make it clear that they apply to sexual offences involving children.
RECOMMENDATION 3
Notwithstanding section 28 of the Evidence (Children) Act 1997 (NSW), the recommendations in this Report should be applied in all sexual offence proceedings involving children.
Which stages of the criminal process?
4.34 The Commission is of the view that cross-examination of complainants by an unrepresented accused should be prohibited at all stages of the criminal process, that is, at committal hearings, at trial and on appeal.51 “The Commission can see no reason for the prohibition contained in Recommendation 1 of this Report to be confined to any particular stage of the criminal process. Complainants should be protected from unnecessary distress at all stages of the criminal process.
Footnotes
1. The Commission discussed the role of judicial discretion in the context of sexual offence trials in NSW Law Reform Commission, Review of section 409B of the Crimes Act 1900 (NSW) (Report 87, 1998) at para 6.35-6.63.
2. NSW Legal Aid Commission, Submission at 2; NSW Public Defenders (P Zahra and C Loukas), Submission at 2; Law Society of NSW, Submission at 1; Macquarie Area Health Service, Submission at 2.
3. NSW Legal Aid Commission, Submission at 2.
4. NSW Legal Aid Commission, Submission at 2-3.
5. Evidence (Children) Act 1997 (NSW) s 28(4). See para 2.18.
6. 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 3; Law and Justice Foundation of NSW, Submission at 1; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 2; Women’s Legal Resources Centre, Submission at 2; Hawkesbury Nepean Community Legal Centre, Submission at 2; Central Coast Health, Submission at 3; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission; Westmead Sexual Assault Service, Submission at 2; DPurcell, hSubmission at 2; Illawarra Area Health Service, Submission at 2.
7. D Purcell, Submission at 2.
8. Illawarra Area Health Service, Submission at 1.
9. NSW Department for Women, Submission at 3; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 5; Women’s Legal Resources Centre, Submission at 2; Illawarra Area Health Service, Submission at 1.
10. NSW Director of Public Prosecutions (N Cowdery), Submission at 2; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 4; Women’s Legal Resources Centre, Submission at 2; Hawkesbury Nepean Community Legal Centre, Submission at 2; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission.
11. Westmead Sexual Assault Service, Submission at 3.
12. See the Scottish Parliament Information Centre, Sexual Offences (Procedure and Evidence) (Scotland) Bill (Research Paper01/10, 2001) at 9.
13. Queensland, Department of the Premier and Cabinet, Office for Women, Report of the taskforce on women and the criminal code (2000) at 304.
14. Evidence Act 1977 (Qld) s 21N. See para 2.20.
15. C Eastwood and W Patton, The experiences of child complainants of sexual abuse in the criminal justice system (Queensland University of Technology, 2002).
16. Eastwood and Patton at 118-121.
17. Evidence (Children) Act 1997 (NSW) s 18(4).
18. Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002) at para 6.67 and 6.89.
19. Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002), Recommendation 33.
20. See para 3.65-3.72.
21. By contrast, the mandatory exclusion of evidence relating to sexual experience may unfairly disadvantage an accused where relevant evidence is not admitted and the accused is subsequently convicted. Prohibiting cross-examination in person does not change the course of the trial as the evidence is still admitted and tested; it just removes the opportunity for the accused to question the complainant in person.
22. See para 2.2-2.11.
23. NSW Legal Aid Commission, Submission at 3-4.
24. See Westmead Sexual Assault Service, Submission.
25. Westmead Sexual Assault Service, Submission at 1-2. The NSW Attorney General’s Department Violence Against Women Specialist Unit made a similar point: Submission at 3.
26. NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 6; Women’s Legal Resources Centre, Submission at 2; Law and Justice Foundation of NSW, Submission at 2; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission.
27. Law and Justice Foundation of NSW, Submission at 2; NSW Department for Women, Submission at 5.
28. Evidence (Children) Act 1997 (NSW) s 28(1).
29. Law and Justice Foundation of NSW, Submission at 1; NSW Department for Women, Submission at 5; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 6; Westmead Sexual Assault Service, Submission at 3; Macquarie Area Health Service, Submission at 1; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 2; Hawkesbury Nepean Community Legal Centre, Submission “at 2; Central Coast Health, Submission at 3; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission; D Purcell, Submission at 3.
30. Illawarra Area Health Service, Submission at 2; Macquarie Area Health Service, Submission at 1; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 3; Hawkesbury Nepean Community Legal Centre, Submission at 2; DPurcell, Submission at 3.
31. NSW Director of Public Prosecutions (N Cowdery), Submission at 3; NSW Department for Women, Submission at 6; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 6.
32. NSW Director of Public Prosecutions (N Cowdery), Submission at 3.
33. NSW Legal Aid Commission, Submission at 4, Law and Justice Foundation of NSW, Submission at 2; Women’s Legal Resources Centre, Submission at 3.
34. NSW Legal Aid Commission, Submission at 4.
35. Law and Justice Foundation of NSW, Submission at 2.
36. NSW Director of Public Prosecutions (N Cowdery), Submission at 3; NSW Legal Aid Commission, Submission at 4; Law and Justice Foundation of NSW, Submission at 2; NSW Department for Women, Submission at 5; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission “at 6; Women’s Legal Resources Centre, Submission at 2; Illawarra Area Health Service, Submission at 2; Macquarie Area Health Service, Submission at 1; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 2-3; Hawkesbury Nepean Community Legal Centre, Submission at 2; D Purcell, Submission at 3.
37. NSW Department for Women, Submission at 5.
38. Illawarra Area Health Service, Submission at 2.
39. See para 2.15-2.28.
40. NSW Director of Public Prosecutions (N Cowdery), Submission at 3.
41. NSW Public Defenders (P Zahra and C Loukas), Submission at 2.
42. See Chapter 2.
43. As amended by the Crimes Amendment (Sexual Offences) Act 2003 (NSW), which received Assent on 5 June 2003. Amendments effected by the new Act that are relevant to this Report include the repeal of s 78K and s 78L of the Crimes Act 1900 (NSW) by s3 and Sch 1,cl 18; and the repeal of the reference in s3(a) of the Criminal Procedure Act 1986 (NSW) to s 78H, 78I, 78K, 78L of the Crimes Act 1900 (NSW) by s4 and Sch2,cl2.1(1) of the new Act. The former s78H and 78I, which related to the offences of homosexual intercourse with a male under 10 and attempt, or assault with intent thereof, were repealed by the _Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) s 3 and Sch 2,cl 3.
44. As amended by s 3 and Sch1,cl9 of the Crimes Amendment (Sexual Offences) Act 2003 (NSW). Upon the repeal of s78K and s78L of the Crimes Act 1900 (NSW) by s 4 and Sch2cl2.1(1) of the _Crimes Amendment (Sexual Offences) Act 2003 (NSW), the age of consent of for both males and females is 16.
45. Offences under s 66A, 66B, 66C, 66D of the Crimes Act 1900 (NSW).
46. Evidence (Children) Act 1997 (NSW) s 6.
47. See para 2.18.
48. See Recommendation 4.
49. See Recommendation 7.
50. Generalia specialibus non derogant: see FBennion, Statutory interpretation: a code (4th edition, Butterworths, London, 2002) at 255-256.
51. See paras 3.2-3.8.
