• Testing the complainant's evidence
• The role of the legal practitioner
• Impact of the recommendations

5.1 This chapter makes recommendations concerning the procedure to be followed where an unrepresented accused is prevented from cross-examining a complainant in person.

TESTING THE COMPLAINANT’S EVIDENCE

Must the evidence be tested?

5.2 If an accused is prevented from cross-examining a complainant in person, either the court must arrange an alternative means of questioning the complainant, or that person’s evidence simply remains untested.

5.3 It is, of course, axiomatic that the accused must always be given an opportunity to test the complainant’s evidence, a proposition overwhelmingly supported in submissions to the Commission. It is generally considered inappropriate to require the trial judge to decide on a case by case basis whether or not it is necessary in the interests of justice that the evidence be tested. Providing an alternative means of questioning the witness is thus considered essential to ensuring a fair trial and reducing the likelihood of an appeal.¹

Who should ask the questions?

5.4 The questions could be asked by:

• a legal practitioner;
• the trial judge; or
• a neutral intermediary.

5.5 Submissions expressed a range of views as to whether the person asking the questions on behalf of the accused should be a legal practitioner.

5.6 Some submissions argued that it is not necessary for the person asking the questions to be a legal practitioner.² The accused has, for whatever reason, already decided against legal representation.³ The court could appoint a person to ask questions on behalf of the accused, who would not give legal advice or influence cross-examination in any way. This would mirror the provisions of the Evidence (Children) Act 1997 (NSW).⁴

5.7 Other submissions argued that there are good reasons why the person asking the questions should be a legal practitioner.⁵ A legal practitioner has a professional duty both to the court, and to the client.⁶ As well as possessing the necessary skills that a layperson is very unlikely to have, a legal practitioner would bring knowledge of the rules against improper questioning contained in the Evidence Act 1995 (NSW) and the rules of evidence, including those excluding evidence of sexual experience contained in the Criminal Procedure Act 1986 (NSW).⁷ The provision of a legal practitioner would be consistent with the legislation prohibiting cross-examination in person by an unrepresented accused in Queensland,⁸ England,⁹ Scotland¹⁰ and Canada.¹¹

5.8 Arguably, an experienced criminal advocate is in the best position to protect the interests of the accused as well as the public interest in ensuring that the evidence is appropriately tested.¹² If cross-examination was to be conducted by someone other than a legal practitioner, the complainant’s evidence is unlikely to be tested effectively.¹³

5.9 Having a legal practitioner question the complainant is, of course, consistent with the general practice of parties to both criminal and civil proceedings being represented by counsel. The desirability of this general practice, as opposed to self-representation or representation by a person who is not a legal practitioner, cannot be gainsaid.¹⁴ Put simply, the complicated and sometimes obscure rules of criminal law, evidence and procedure, are best handled by experts in the area.¹⁵ Further, an unrepresented accused will usually be unable dispassionately to assess and present his or her case in the same manner as a legal practitioner, especially in cross-examination and in an address to the jury.¹⁶ Identifying relevant facts and marshalling them in a sensible and useful fashion is often difficult to do even for the experienced legal practitioner. It is obviously very difficult for the layperson, especially where the facts are not simple; and simple cases are rare.

5.10 The almost inevitable imbalance in the quality of the case presented by an unrepresented accused and the Crown means that it is generally in the best interests of the administration of justice that an accused be represented. In Dietrich v The Queen, Justice Brennan said that: “[i]t cannot be doubted that a criminal trial is most fairly conducted when both prosecution and defence are represented by competent counsel”.¹⁷ And Justice Dawson said: “if trials were to move closer to the attainment of perfect justice, every accused would be represented by competent counsel”.¹⁸

The trial judge

5.11 In several jurisdictions, the questions are put to the complainant by the trial judge.¹⁹ Submissions to the Commission were overwhelmingly of the view that the questions should not be asked by the trial judge.²⁰ Judges who ask questions on behalf of an accused run the risk of compromising their neutrality;²¹ indeed, they may be perceived as being biased.²² The judge would have no factual foundation for asking questions, and it is inappropriate for a judge to adopt such a role.²³ The Queensland Law Reform Commission,²⁴ the English Home Office²⁵ and the Scottish Executive²⁶ have expressed similar views.

5.12 It is the fundamental role of a judge to ensure the propriety and fairness of the trial and to instruct the jury in the relevant law.²⁷ As a general rule, this means that it is for the parties to question witnesses, the judge asking questions only to remove apparent ambiguities.²⁸ Recent decades have seen an increase in judicial intervention in criminal trials. One factor contributing to this is the increasing number of unrepresented defendants.²⁹ In MacPherson v The Queen, the High Court held that a trial judge has a positive duty to “give an unrepresented accused such information as is necessary to enable him to have a fair trial”.³⁰ However, this does not extend to an obligation to advise accused persons how to exercise their rights. “In Dietrich v The Queen, the High Court stressed that it is no part of the function of the trial judge to advise an accused about possible defences or about the possible consequences of cross-examination, nor to advise on the conduct of the case for the defence at trial.³¹ As Chief Justice Mason and Justice McHugh said:

[The proposition that] in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a ‘helping hand’ to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems.³²

5.13 A neutral intermediary could ask the questions. This is what currently happens with child witnesses. The Evidence (Children) Act 1997 (NSW) requires that, subject to the interests of justice,³³ a child witness be cross-examined by a person appointed by the court instead of by an unrepresented accused.³⁴ The intermediary is to ask the child only the questions that the accused requests the intermediary to put to the child,³⁵ and must not give the accused legal or other advice.³⁶ The intermediary is a mere mouthpiece and is not to influence the course of cross-examination in any way.³⁷

5.14 Some submissions supported the appointment of a neutral intermediary to question adult complainants on behalf of unrepresented accused. Suggestions of neutral intermediaries included the judicial officer’s assistant or associate; a person employed by the Attorney General’s Department; a friend of the court; or a specially trained court officer. It was generally acknowledged that it would be inappropriate to allow certain people, for example friends or relatives of the accused, to ask the questions.³⁸

5.15 Other submissions opposed the appointment of a neutral intermediary.³⁹ Even where the intermediary is a mere mouthpiece for the accused rather than an advocate, the accused may be seriously disadvantaged as the procedure is quite artificial. Effective cross-examination requires responsive questioning, the line of questioning being moulded to the witness’ previous answers. Having to rely on a prepared list of questions means that the necessary flexibility is lost and the accused’s right to confront the prosecution witness compromised.⁴⁰ Moreover, the dynamics of cross-examination are impeded where a third person relays the questions to the witness. The process is stilted and the impact of the evidence is altered. Where each question is asked first by the accused and then repeated by the intermediary, the complainant would have time to deliberate before answering the questions. The element of surprise may be destroyed, making it more difficult to assess the veracity of the complainant’s testimony.⁴¹

5.16 The Legal Aid Commission argued that, if the person asking the questions is not legally trained, and simply acts as a mouthpiece for the accused, the witness might not be adequately shielded from inappropriate questioning. There is nothing to stop the accused from putting offensive or intimidating questions to the complainant through the intermediary.⁴² “The New South Wales Law Society was critical of the procedures adopted for child witnesses, which “merely separate the child by one degree from direct questioning by the accused”,⁴³ arguing that the provisions do little to minimise the witness’ trauma. In contrast, retaining a legal practitioner creates a desirable level of distance between the complainant and the accused.⁴⁴

5.17 The New South Wales Court of Appeal has recently pointed to the undesirability of lay advocates presenting cases on behalf of persons who are not legally represented. In Damjanovic v Maley,⁴⁵ a lay advocate was refused leave to appear on behalf of the appellant. The appellant had indicated that he could afford legal representation, but did not trust lawyers. He did not wish to be self-represented because of his poor command of English. “The court stated that, as a general rule, the public interest in the effective, efficient and expeditious disposal of litigation in the courts requires the representation of parties by qualified lawyers.⁴⁶ It pointed out that advocacy is a difficult skill to acquire without qualifications, training and practice.⁴⁷ Lay advocates are unqualified, unaccredited and uninsured, and place the client at a distinct disadvantage. Further, in the absence of a disciplinary code and duty to the court, it is generally inappropriate to permit unqualified people to appear before the court.⁴⁸ The Commission also points out that it is essential that the person putting the questions be able to advise the accused about the nature of the questions to be asked; the line of questioning; “the issues as legally defined at trial; the admissibility of evidence; and the duty of practitioners to the court.

The Commission’s view

5.18 The accused must be permitted to test the evidence if he or she wishes to challenge it in some way. A restriction on the accused’s ability to cross-examine a complainant in person is only acceptable where the complainant’s evidence may be effectively tested in some other way.

5.19 The Commission is of the view that a legal practitioner should cross-examine the complainant. This is not only in the interests of the accused, but also of the administration of justice, particularly since sexual offences are such serious charges. A legal practitioner brings the necessary skills, knowledge and experience to enable the complainant’s evidence to be tested effectively. He or she is also bound by the rules of professional probity. “The legal practitioner will be able to raise issues such as consent or belief in consent in cross-examination in a way that is most fair to the witness. Attacks on the complainant’s credibility will be professional. The cross-examination will reduce the likelihood of the accused subsequently raising in address matters not raised in evidence.⁴⁹

5.20 The appointment of a legal representative for the purposes of cross-examination only impacts in the least intrusive way on current practices in order to prevent abuse and harassment. Although it involves imposing counsel on the accused, the view of the Commission is that the benefit to complainants, and to the administration of justice generally, outweighs any potential disadvantage to the accused.

5.21 It is inappropriate for questions to be directed through the trial judge. This will compromise the judge’s neutrality and create a perception of bias. An adequate cross-examination by the judge is, in any event, wellnigh impossible. Appointing a neutral intermediary to ask the questions on behalf of the accused is undesirable, whether the person acts as an advocate or mere mouthpiece for the accused. Just as with the judge, the intermediary will not have any factual foundation for the questioning, and the effectiveness of the process will be seriously compromised by inexperience. Moreover, such cross-examination will be perceived as significantly unfair to the accused; it will make it more difficult for juries to be confident about their assessment of a complainant’s credibility; and it is too great a distortion of the trial process. It also highlights the situation of the complainant and renders him or her an obviously special class of witness.

RECOMMENDATION 4

A legal practitioner must cross-examine the complainant in sexual offence proceedings where the accused is unrepresented.

Where the accused arranges legal representation

5.22 Accused persons who are prohibited from questioning complainants in person should be encouraged to arrange their own legal representation, either through the Legal Aid Commission or by retaining a lawyer of their choice.⁵⁰

5.23 In Scotland, accused persons are formally encouraged to arrange their own representation prior to the trial. Upon arrest, a person charged with a sexual offence is warned that legal representation will be necessary at the trial, that it is in the accused’s interest to seek the assistance of a legal practitioner, and that unless the accused arranges representation, the court will appoint a legal representative. This warning is given at other occasions in the process. If an accused is in custody, the warning is given on the first occasion that the accused appears in court. If the accused has not been remanded in custody, the warning is included in the other papers served on the accused with the indictment.⁵¹ This aims to maximise the opportunity for accused persons to arrange their own representation.⁵²

5.24 The Commission considers that this procedure should be adopted in New South Wales. Accused persons should be warned that they will not be allowed to cross-examine complainants in person, so they should arrange for legal representation, either privately or through legal aid. The Commission believes that if the prohibition is made sufficiently clear to accused persons at an early stage in the proceedings, most will arrange for legal representation in the conventional way. This is especially true if the accused only wants to be self-represented in order to intimidate or overbear the complainant in court, in the hope of obtaining an acquittal.

5.25 In practice, the Commission expects that a legal practitioner will ordinarily be retained for the duration of the trial. However, if an accused genuinely wishes to run the defence case in person, representation should be confined to cross-examination of the complainant. This would pose no particular problem. Although it is uncommon, counsel are retained from time to time to test particular evidence or to cross-examine particular witnesses.⁵³

RECOMMENDATION 5

The accused must be advised, at the earliest possible time after arrest and no later than the commencement of proceedings, that legal representation is necessary in sexual offence proceedings if he or she wishes the complainant to be cross-examined. The accused must be invited to make arrangements for representation and be given the opportunity to do so.

Where the accused is unwilling to provide legal representation

5.26 There is no right to be provided with legal assistance at public expense.⁵⁴ A person charged with a sexual offence may apply for legal aid, but grants are means tested, and may be refused.⁵⁵ If an accused is prohibited from cross-examining a complainant in person and is not eligible for legal aid, he or she must pay for private counsel or forego the opportunity to have the complainant cross-examined. The Commission is of the view that, to ensure testing of the complainant’s evidence, the court should appoint a legal representative who, at public expense, will cross-examine the complainant. This situation will arise very rarely, as persons charged with a sexual offence are seldom refused legal aid.⁵⁶

5.27 The Commission’s recommendation mirrors similar regimes in Queensland⁵⁷ and England.⁵⁸

Scope of appointment

5.28 The Commission’s proposal is that where an accused cannot arrange his own representation but wishes the complainant to be cross-examined, the court should appoint a lawyer solely for the purpose of cross-examining the complainant.⁵⁹ The purpose of the court-appointed legal practitioner would be to prevent the accused from questioning the witness in person, not to provide general legal advice or conduct the defence case. The practitioner would, however, be able to advise the accused about the nature of the questions that should be put; the line of questioning in cross-examination; the issues as legally defined at trial so far as they affect that cross examination; the admissibility of evidence; and the duty of the practitioner to the court.

5.29 Some submissions received by the Commission question the suitability of such a recommendation. The Law Society argued that injecting a lawyer into a potentially lengthy trial specifically for the purpose of cross-examination of the primary witness is undesirable, and that if an accused is not allowed to question a complainant in person, he or she should be legally represented for the duration of the trial.⁶⁰ Effective cross-examination requires a broad understanding of the issues raised by all the evidence at trial, not just the evidence of the complainant. It may be unrealistic to expect legal representatives to conduct cross-examination effectively where they have only limited participation in the trial. Limited participation means that the lawyer may not be able effectively to build upon, or repair damage already done to the case by, the complainant’s testimony; alternatively, it may mean that the accused lacks the skill to build upon the case for which the lawyer may have laid a foundation in cross-examination.⁶¹ By contrast, appointing counsel for the duration of the trial would enable the legal representative to exercise his or her judgment as to how the defence case should be presented, without being restricted by the accused’s line of argument. It would also minimise any adverse impression on the jury, as the trial would follow the usual trial procedure.⁶²

5.30 After careful consideration, the Commission has rejected the suggestion that counsel should be appointed to conduct the entire trial for the following reasons:

• First, appointing counsel to conduct the entire trial would be a greater invasion of the accused’s right to self-representation than is strictly necessary. On general principles, the accused would be bound by the way in which the appointed legal representative conducts the trial.⁶³ “The solution would go further than is required to achieve the objective of protecting the complainant from undue distress.⁶⁴
• Secondly, the experience of some members of the Commission is that, where counsel has been briefed to conduct only part of a case, this has generally worked satisfactorily; it is certainly not inherently unfair.
• Thirdly, that experience is supported by evidence from Queensland, where unrepresented accused are prohibited from cross-examining complainants in sexual offence proceedings and counsel is imposed for the purpose of cross-examination only.⁶⁵ The matter is brought on for mention prior to the trial and counsel funded by legal aid is organised to appear for the purpose of cross-examining the protected witness. The Queensland Office of the Director of Public Prosecutions has informed the Commission that, in its opinion, the procedure works well in practice.⁶⁶
• Fourthly, and in any event, once faced with the compulsory appointment of counsel, the overwhelming likelihood is that the accused would seek representation for the entire trial.

5.31 The Commission is of the view that an accused who is prohibited by law from questioning a witness should not have to bear the burden of paying the costs of a court-appointed representative. If that were the case, the accused would be forced not only to accept legal representation against his or her wishes, but to pay for it as well. Otherwise, the accused would have to forego the opportunity to have the complainant cross-examined. Submissions addressing this issue generally argued that legal aid should automatically be available for an accused prohibited from questioning a complainant in person.⁶⁷ This is the policy in Queensland⁶⁸ and in Scotland.⁶⁹

5.32 On the other hand, if legal aid were automatically available, there is arguably less incentive for accused persons to arrange their own legal representation. Some submissions raised the concern that making legal aid available for all unrepresented accused in sexual offence trials would undermine the stringent means test used for assessing grants of legal aid: “It would soon become known that if a person is refused legal aid for defending [a sexual offence charge], they should then opt to self-represent because this would trigger an automatic grant of legal aid”.⁷⁰ It would place an unreasonable burden on the Legal Aid Commission to require funding for accused persons who would otherwise be ineligible for legal aid.⁷¹ However, given the relatively few unrepresented accused in sexual offence trials, the costs of providing representation to those who would not otherwise be eligible for legal aid would not be significant. Moreover, legal aid (where the accused was not otherwise qualified to obtain a grant) would only be granted for cross-examination of the complainant.

RECOMMENDATION 6

Where the accused is unwilling to make arrangements for representation because legal aid is unavailable in the circumstances, the court must direct the Legal Aid Commission to provide the accused with legal assistance for the purpose of cross-examining the complainant only.

The client-practitioner relationship

5.33 A legal practitioner has a positive duty to act in a client’s best interests in accordance with the law.⁷² The lawyer presents the case in the best interests of the client in accordance with, and after consideration of, the client’s instructions and those of the instructing solicitor (if any). However, the lawyer is not the mouthpiece of the client or the instructing solicitor.⁷³ “The client is bound by the conduct of the practitioner, including the forensic judgments that he or she makes in the presentation of the case. An accused has no right of appeal merely because an advocate acts differently from or even contrary to the instructions of the accused, especially in relation to the method adopted by the advocate to advance the client’s case. Appellate intervention is only warranted if there has been a miscarriage of justice.⁷⁴

5.34 Where an accused is prevented from cross-examining a complainant in person and the court appoints a lawyer because the accused is ineligible for legal aid and has decided not to retain a private lawyer, the ordinary client-practitioner relationship is displaced given that the practitioner is neither appointed nor retained by the client. Submissions demonstrated a lack of consensus on the role of court-appointed legal representatives in these circumstances and highlighted a lack of clarity in the ethical obligations of a court-appointed legal practitioner.⁷⁵ Submissions voiced two main concerns.

5.35 First, there is the question of whether or not it is appropriate to apply the ethics and duties of the ordinary client-practitioner relationship where that relationship does not originate in a consensual arrangement between the client and the practitioner. The Commission sees no reason in principle why the ordinary rules cannot apply. Indeed, the Commission points out that in an ordinary criminal trial, an accused who has been granted legal aid does not usually have a right to a lawyer of his or her choice. Rather, he or she is practically obliged to accept a Public Defender if one is assigned to his or her defence. Similarly, under the procedure recommended by the Commission, the accused is obliged to accept the lawyer appointed by the court, or otherwise forego the opportunity to have the complainant cross-examined.

5.36 Secondly, there is the question of whether it is practically possible to apply the ethics and duties of the ordinary client-practitioner relationship to a non-consensual arrangement. The Commission acknowledges that court-appointed legal representatives may have difficulty fulfilling the ordinary duty they owe to clients. There may be communication problems between the accused and the legal representative. The accused may be uncooperative, and may refuse to give instructions. Litigants can normally dismiss counsel if such problems arise, but an accused who is prevented from questioning the complainant in person would be required to retain the court-appointed representative for cross-examination to occur.

5.37 For this reason, some submissions argued that the representative should only put questions prepared by the accused to the complainant, and should give no further assistance or legal advice to the accused.⁷⁶ “They argued that court-appointed representatives should not be instructed by the accused; nor should they be responsible to them.⁷⁷ This is the position in England.⁷⁸ This protects the immunity of court-appointed legal representatives, and recognises that in light of a barrister’s professional duty to put the case on behalf of the client, there may be difficulties for counsel who conduct cross-examination only.⁷⁹

5.38 The Commission rejects the English approach. Rather, we agree with those submissions that have argued that the terms of engagement should be, as far as possible, those governing the ordinary lawyer-client relationship, thereby preserving (as far as possible) the practitioner’s legal, professional and ethical obligations to both the client and to the court.⁸⁰ In our view, the court-appointed legal representative should, in the first instance, take instructions from, and (as far as possible) be responsible to, the accused. This would place the court-appointed legal representatives in the best position to fulfil their obligations both to the client and to the court. Where the accused gives no instructions, or inadequate or perverse instructions, the court-appointed representative should simply strive to act in the best interests of the accused,⁸¹ as he or she would if there were a conventional retainer. The advocate is never at liberty to invent a defence case and is bound by instructions as to facts. Some testing of the evidence can be undertaken in the absence of instructions about events⁸² but if the accused declines to give such instructions, the possibly inadequate cross-examination is the result of the accused’s decision. This is not unfair. In all other respects, the court-appointed representative should have the same obligations and authority as if engaged by the accused.83

RECOMMENDATION 7

The court-appointed legal representative has the same obligations and authority as if he or she were engaged by the accused. In particular, the legal representative has a duty to ascertain, advise concerning and act upon the accused’s instructions. Where the accused gives no instructions, or where the instructions given are inadequate or perverse, the duty of the legal representative is to act in the best interests of the accused in the same way as if there were a conventional retainer.

IMPACT OF THE RECOMMENDATIONS

5.39 The above recommendations are capable of impacting on:

• The fairness of the trial where the accused refuses to accept legal representation;
• The rule in Browne v Dunn;⁸⁴ and
• The jury’s perception of the case.

5.40 It is possible that an unrepresented accused who is prohibited from cross-examining a complainant in person will refuse to accept court-appointed legal representation, or refuse to give adequate or appropriate instructions. The consequence of such a refusal is that the accused would not be allowed to test, or test completely, the complainant’s evidence.

5.41 The Commission is of the view that a trial in which an accused is prohibited from questioning a complainant in person, but refuses to take advantage of available legal representation will not be unfair.⁸⁵ There are two reasons for this.

5.42 First, in the leading case of Dietrich v The Queen,⁸⁶ the High Court established that a trial may be unfair where a person charged with a serious offence is unrepresented through no fault of his or her own. But, as Justices Dean⁸⁷ and Gaudron⁸⁸ pointed out (obiter), an accused who desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation that is available can hardly turn around and argue that the trial is unfair. Thus, “[t]here is nothing in Dietrich to suggest that an indigent accused can frustrate attempts to bring the accused to trial simply by rejecting offers of legal aid or other assistance”.⁸⁹

5.43 Secondly, the prohibition on cross-examination of complainants by an unrepresented accused in a sexual offence trial will be imposed by statute. “In R v PJE,⁹⁰ the Court of Criminal Appeal held that a trial cannot be stayed simply because of any unfairness arising from the operation of a constitutionally valid statutory provision prohibiting certain evidence from being given.

The rule in Browne V Dunn

What is the rule?

5.44 In Browne v Dunn,⁹¹ the House of Lords held that a party wishing to adduce evidence inconsistent with that given by a witness for the opposing party must give that witness an opportunity during cross-examination to comment on the contradictory evidence to be led. The rule has two distinct limbs. First, the cross-examining party must put to a witness as much of its case as concerns that witness. Secondly, where an allegation is to be made against the evidence adduced by the witness, or a discrepancy identified in it, that challenge must be put to the witness during cross-examination.

5.45 The central purpose of the rule in Browne v Dunn is “to secure fairness in the conduct of adversary proceedings”.⁹² The rule is necessary to give the witness an opportunity to deal with that other evidence (or the inferences to be drawn from it), and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.⁹³ The rule is essential to the adversarial process, as it ensures that contradictory bodies of evidence are brought into conflict rather than being allowed to “serenely pass one another by like two trains in the night”. ⁹⁴

5.46 In criminal proceedings, the procedural fairness dictated by the rule operates in favour of the Crown.⁹⁵

Reconciling the recommendations with the rule

5.47 The operation of the rule in Browne v Dunn might mean that, where an accused is prohibited from cross-examining a complainant in person but refuses court-appointed representation, the accused would be prevented from adducing any evidence that is inconsistent with that given by the complainant. This might have serious implications for the fairness of the trial. Given that the accused and the complainant are often the only witnesses to the alleged offence, it is vital that the accused be given the opportunity to present his or her version of events. Denying the accused that opportunity would keep relevant evidence from the court and would frustrate the adversarial process.

5.48 The Commission is of the view that the recommendations in this report can be reconciled with the rule in Browne v Dunn. As Chief Justice Gleeson explained in R v Birks, there is a need for flexibility in the application of the rule:

The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created.⁹⁶

• allowing the contradictory evidence to be admitted so long as the witness whose evidence has been disputed is recalled;⁹⁹
• excluding the evidence adduced by the breaching party;¹⁰⁰
• limiting the use of the evidence to specific purposes;
• accepting the evidence, although drawing an adverse inference regarding its reliability in light of the breach;¹⁰¹
• preventing the party in breach of the rule from contradicting the witness’ evidence in closing address; or
• commenting on the breach of the rule to the jury, something which is not uncommonly done by the Crown Prosecutor in address and the trial judge in summing-up.

An accused at a criminal trial may be unrepresented, and it would ordinarily be quite inappropriate to expect such a person to be bound by, and suffer the consequence of a breach of, what was originally described in the House of Lords as “a rule of professional practice” … It is quite common for an accused person at a criminal trial, whether represented or unrepresented, and whether in evidence or an unsworn statement, to come out with a version of the facts that has not been put to the Crown witnesses.

The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:

(a) it contradicts evidence about the matter given by the witness in examination in chief, or

(b) the witness could have given evidence about the matter in examination in chief.¹⁰⁴

5.53 However, it will not always be appropriate for leave to be granted under s46. One such situation is where, before the close of its case, the Crown knows of the case that the accused is likely to put (for example, because the accused revealed that case in a statement to the police), or ought reasonably to have inferred the nature of the accused’s case from the circumstances. Here, unless the circumstances are exceptional, there is generally no basis for recalling a witness who has already testified since the details and issues surrounding the accused’s case and the refuting evidence ought to have been put in chief.¹⁰⁵ Another situation where the court may exercise its power not to recall the complainant is where, in the circumstances, the evidence that the complainant will give will have an inflated importance on the jury since it is the last piece of evidence that the jury will hear and it may tilt the scales unfairly in the prosecution’s favour.¹⁰⁶

5.54 The operation of the rule in Browne v Dunn is complex, discretionary and fact-specific, and the procedures for dealing with its breach are wide. The Commission is of the view that an unrepresented accused should be warned, at least in general terms, about its potential application in the case at the same time as the consequences of not retaining legal representation are explained.

RECOMMENDATION 8

An unrepresented accused should be warned, in general terms, about the potential application in the proceedings of the rule in Browne v Dunn at the same time as the consequences of not retaining legal representation are explained.

Effect on the jury

5.55 It is a fundamental principle of the common law that a person is presumed innocent until found guilty beyond a reasonable doubt. Arguably, where the arrangements for giving evidence are not standard, the jury may infer that special measures are required due to the personal characteristics of the accused. Prohibiting an accused from cross-examining a complainant in person may imply that the accused is menacing, violent or even guilty. As such, it may be said that appointing a legal representative to cross-examine the primary witness “carries an unfortunate implication of assumed guilt”.¹⁰⁷

5.56 Any adverse impression created by the recommended procedure could be overcome by issuing an appropriate warning to the jury. Warnings are routinely given to facilitate the avoidance of unsafe convictions. The general law requires a warning to be given whenever necessary in order to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.¹⁰⁸

5.57 Several submissions argued that where an accused is prevented from cross-examining a complainant in person, the judge should be required to issue an appropriate warning to the jury.¹⁰⁹ This would be consistent with the practice in other jurisdictions.¹¹⁰ It would also be consistent with the New South Wales legislation dealing with cross-examination of child witnesses. Section 25 of the Evidence (Children) Act 1997 (NSW) provides that, where a court-appointed intermediary conducts cross-examination of the child complainant on behalf of the unrepresented accused, the judge must:

(a) inform the jury that it is standard procedure in such cases for alternative arrangements to be used when children give evidence, and

(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those alternative arrangements.¹¹¹

RECOMMENDATION 9

The court must inform the jury that an accused is not permitted personally to cross-examine the complainant. Where a complainant is cross-examined by a court-appointed legal representative, the court must warn the jury that:

(a) it is standard procedure in such cases for the court to appoint a legal practitioner to conduct the cross-examination;

(b) no adverse inferences are to be drawn against the accused person by reason of the procedure; and

(c) the evidence of the complainant is not to be given any greater or lesser weight because of the use of the procedure.

1. NSW Legal Aid Commission, Submission at 4-5; NSW Director of Public Prosecutions (N Cowdery), Submission at 3-4; NSW Public Defenders (P Zahra and C Loukas), Submission at 3; Law and Justice Foundation of NSW, Submission at 2; NSW Department for Women, Submission at 6; Women’s Legal Resources Centre, Submission at 3; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 3; Hawkesbury Nepean Community Legal Centre, Submission at 3.

2. NSW Director of Public Prosecutions (N Cowdery), Submission at 4; NSW Department for Women, Submission at 6; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 7; Illawarra Area Health Service, Submission at 2; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 3; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission; D Purcell, Submission at 4.

3. NSW Department for Women, Submission at 6.

4. NSW Director of Public Prosecutions (N Cowdery), Submission at 4; NSW Department for Women, Submission at 6.

5. NSW Legal Aid Commission, Submission at 5; Law Society of NSW, Submission at 2; Law and Justice Foundation of NSW, Submission at 2; Women’s Legal Resources Centre, Submission at 3; J Tippett, Submission at 1; Westmead Sexual Assault Service, Submission at 4; Macquarie Area Health Service, Submission at 2; Central Coast Health, Submission at 2. NSW Public Defenders (P Zahra and C Loukas) argued that it is inappropriate to force legal representation upon accused persons but, if an accused person is to be prohibited from cross-examining a complainant in person, the person appointed to question the complainant must be a legal practitioner: Submission at 3.

6. See NSW Bar Association, The New South Wales Barristers’ Rules, Preamble and Rules 16, 17, 17A, 17B (made under s57A of the PLegal Profession Act 1987 (NSW), consolidated April 2001 by gazettal in the NSW Government Gazette, No67 (12 April 2001) at 1880). Also see, Law Society of NSW, The Revised Professional Conduct and Practice Rules 1995 r1-16 (duty to client), r17-24 (duty to court) (made pursuant to s 57B of the Legal Profession Act 1987 (NSW)).

7. NSW Legal Aid Commission, Submission at 5; Law and Justice Foundation of NSW, Submission at 2; Macquarie Area Health Service, Submission at 2.

8. See para 2.20.

9. See para 2.24.

10. See para 2.28.

11. In Canada, a person charged with a sexual offence or offence of violence cannot cross-examine a child witness in person, unless, in the opinion of the court, the proper administration of justice requires it. Where the accused is prohibited from conducting the cross-examination in person, the court appoints counsel for the purpose of cross-examination: Criminal Code, RS 1985, s 486 (2.3). Note that the prohibition applies with respect to child witnesses only.

12. Law and Justice Foundation of NSW, Submission at 2; Women’s Legal Resources Centre, Submission at 3.

13. NSW Legal Aid Commission, Submission at 5; Law Society of NSW, Submission at 3.

14. Especially Dietrich v The Queen (1992) 177 CLR 292 at 302 (Mason CJ and McHugh J), 334 (DeaneJ), 344 (DawsonJ, dissenting), 353-354 (TooheyJ), “372-373 (GaudronJ). See also A M Gleeson, “Current issues for the Australian judiciary”, speech given to_ the Supreme Court of Japan (Tokyo, 17 January 2000), available at «http://www.hcourt.gov.au/speeches/cj/cj_Japanj.htm».

15. Especially McInnes v The Queen (1979) 143 CLR 575 at 590 (MurphyJ); cDietrich v The Queen at 302 (Mason CJ and McHugh J).

16. McInnes v The Queen at 590 (MurphyJ).s

17. Dietrich v The Queen at 316 (dissenting).

18. Dietrich v The Queen at 345 (dissenting).

19. In the Northern Territory, the unrepresented party puts the question to the judge or other approved person, who then repeats the question accurately to the complainant: Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 5(1). Western Australia adopts the same model for the cross-examination of child witnesses: Evidence Act 1906 (WA) s 106G. Under the model recommended by the New Zealand Law Commission, unrepresented defendants who are prevented from cross-examining a witness in person would have their questions put to the witness by the judge, or a person appointed by the judge for the purpose: Evidence Code and Commentary (NZ?) s 95(5). This is the model currently in place in New Zealand for the questioning of child witnesses by an unrepresented accused: Evidence Act 1908 (NZ) s 23F.

20. NSW Legal Aid Commission, Submission at 7; Law and Justice Foundation of NSW, Submission at 2; NSW Department for Women, Submission at 7; Women’s Legal Resources Centre, Submission at 3; J Tippett, Submission at 1; Illawarra Area Health Service, Submission at 3; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 3; Hawkesbury Nepean Community Legal Centre, Submission at 3; D Purcell, Submission at 4. The NSW Attorney General’s Department Violence Against Women Specialist Unit submitted that the judge should ask the questions only where a more appropriate third party is not available: Submission at 8.

21. NSW Department for Women, Submission at 7; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 8; Women’s Legal Resources Centre, Submission at 3, Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 3; Illawarra Area Health Service, Submission at 3.

22. Law and Justice Foundation of NSW, Submission at 2.

23. NSW Legal Aid Commission, Submission at 7.

24. Queensland Law Reform Commission, The receipt of evidence by Queensland courts: the evidence of children (Report 55, 2000) at 291-292.

25. United Kingdom Home Office, Speaking up for justice: report of the interdepartmental working group on the treatment of vulnerable or intimidated witnesses in the criminal justice system (Home Office, 1998) at para 9.50.

26. Scottish Executive, Redressing the balance: cross-examination in rape and sexual offence trials: a pre-legislative consultation document (Scottish Executive, 2000) at para 52.

27. Ratten v The Queen (1974) 131 CLR 510 at 517 (Barwick CJ). See also Jones v National Coal Board [1957] 2 QB 55; Yuill v Yuill [1945] 1 All ER 193.

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

29. See D Ipp, “Judicial intervention in the trial process” (1995) 69 Australian Law Journal 365.

30. MacPherson v The Queen (1981) 147 CLR 512 at 524 (Gibbs CJ and Wilson J). See also R v Gidley [1984] 3 NSWLR 168 at 180-181 (Hunt J).

31. Dietrich v The Queen (1992) 177 CLR 292 at 302 (Mason CJ and McHughJ), “335 (Deane J), 354 (TooheyJ)._

32. Dietrich v The Queen at 302 (Mason CJ and McHugh J).

33. Evidence (Children) Act 1997 (NSW) s 28(4).

34. Evidence (Children) Act 1997 (NSW) s 28(2).

35. Evidence (Children) Act 1997 (NSW) s 28(3).

36. Evidence (Children) Act 1997 (NSW) s 28(3A).

37. Evidence (Children) Act 1997 (NSW) s 28. See NSW, Parliamentary Debates (Hansard) Legislative Council, 11 December 2001, the Hon J Hatzistergos, Second Reading Speech, at 19903.

38. NSW Legal Aid Commission, Submission at 7; NSW Director of Public Prosecutions (N Cowdery), Submission at 4; Law and Justice Foundation of NSW, Submission at 2; NSW Department for Women, Submission at 7; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 7; Women’s Legal Resources Centre, Submission at 3; Illawarra Area Health Service, Submission at 3; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 3; Hawkesbury Nepean Community Legal Centre, Submission at 3, NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission; D Purcell, Submission at 5.

39. NSW Legal Aid Commission, Submission at 6; Law Society of NSW, Submission at 2.

40. Queensland Law Reform Commission, The receipt of evidence by Queensland courts: the evidence of children (Report 55, 2000) at 292.

41. J Tippett, Submission at 1.

42. NSW Legal Aid Commission, Submission at 5.

43. Law Society of NSW, Submission at 4.

44. Law and Justice Foundation of NSW, Submission at 2.

45. Damjanovic v Maley [2002] NSWCA 230.

46. Damjanovic v Maley at para 83 (Stein JA, Mason P and Sheller JA agreeing).

47. Damjanovic v Maley at para 86 (Stein JA, Mason P and Sheller JA agreeing).

48. Damjanovic v Maley at para 77-78 (Stein JA, Mason P and Sheller JA agreeing).

49. See para 5.44-5.54.

50. NSW Legal Aid Commission, Submission at 5; Law Society of NSW, Submission at 3.

51. Scottish Executive, Redressing the balance: cross-examination in rape and sexual offence trials: a pre-legislative consultation document (Scottish Executive, 2000) at para 59-63.

52. Scottish Executive, Redressing the balance: cross-examination in rape and sexual offence trials: a pre-legislative consultation document (Scottish Executive, 2000) at para 67.

53. See para 5.29-5.30.

54. Dietrich v The Queen (1992) 177 CLR 292.

55. See para 1.14-1.16.

56. See para 1.16.

57. Evidence Act 1977 (Qld) s 21O, 21P.

58. Youth and Criminal Evidence Act 1999 (Eng) s 34.

59. NSW Legal Aid Commission, Submission at 6; Law and Justice Foundation of NSW, Submission at 2; Women’s Legal Resources Centre, Submission at 3; Illawarra Area Health Service, Submission at 3; Central Coast Health, Submission at 3.

60. Law Society of NSW, Submission at 4.

61. See Scottish Executive, Redressing the balance: cross-examination in rape and sexual offence trials: a pre-legislative consultation document (Scottish Executive, 2000) at para 39. In Scotland, where an accused is prohibited from questioning a complainant in person, the court appoints a legal representative for the duration of the trial. The Scottish Executive was of the view that significant procedural differences in the way in which trials are conducted in Scotland (as compared with England) make the appointment of a legal representative for the purpose of cross-examination only less suitable in the Scottish context: see para 34.

62. Scottish Executive, Redressing the balance: cross-examination in rape and sexual offence trials: a pre-legislative consultation document (Scottish Executive, 2000) at para 46.

63. R v Birks (1990) 19 NSWLR 677 at 683, 685 (Gleeson CJ). See also R v Lawson [2000] NSWCCA 214; R v Ignjatic (1993) 68 A Crim R 333; Hunter v The Queen [1999] NSWCCA 5; R v Sandford (1994) 72 A Crim R 160.

64. See Scottish Parliament Information Centre, Sexual Offences (Procedure and Evidence) (Scotland) Bill (Research Paper01/10, 2001) at 9.

65. Evidence Act 1977 (Qld) s 21O, 21P.

66. Information supplied by L Logan, Qld Department of Justice (23 May 2002).

67. NSW Public Defenders (P Zahra and C Loukas), Submission at 3; Law Society of NSW, Submission at 5; Illawarra Area Health Service, Submission at 3; Hawkesbury Nepean Community Legal Centre, Submission at 3.

68. Evidence Act 1977 (Qld) s 21O, 21P.

69. See Sexual Offences (Procedure and Evidence) (Scotland) Act 2002.

70. Women’s Legal Resources Centre, Submission at 3. The Law and Justice Foundation of NSW made a similar point: see Submission at 2.

71. See NSW Legal Aid Commission, Submission at 6.

72. NSW Bar Association, The New South Wales Barristers’ Rules, Advocacy Rule16, (made under s57A of the Legal Profession Act 1987 (NSW), consolidated April 2001 by gazettal in the NSW Government Gazette, No 67 (12April 2001) at 1880).

73. NSW Bar Association, The New South Wales Barristers’ Rules, Advocacy Rule18, (made under s57A of the Legal Profession Act 1987 (NSW), consolidated April 2001 by gazettal in the NSW Government Gazette, No 67 (12April 2001) at 1880).

74. R v Birks (1990) 19 NSWLR 677. See also R v Lawson [2000] NSWCCA 214; R v Ignjatic (1993) 68 A Crim R 333; Hunter v The Queen [1999] NSWCCA 5; R v Sandford (1994) 72 A Crim R 160.

75. NSW Public Defenders (P Zahra and C Loukas), Submission at 2; NSW Legal Aid Commission, Submission at 6; Law Society of NSW, Submission at 4-5.

76. Women’s Legal Resources Centre, Submission at 3.

77. The NSW Legal Aid Commission submitted that court-appointed practitioners should not be instructed by accused persons, nor be responsible to them, but that they should still, so far as possible, be required to act in the best interests of the accused: Submission at 6.

78. Youth Justice and Criminal Evidence Act 1999 (UK) s 38.

79. United Kingdom, Home Office, Speaking up for justice: report of the interdepartmental working group on the treatment of vulnerable or intimidated witnesses in the criminal justice system (Home Office, 1998) at para 9.45.

80. Law Society of NSW, Submission at 3. The Public Defenders submitted that any “halfway position where a lawyer appears in anything less than an advocate’s proper role, with professional discretion to frame questions as he or she deems fit, consistent with instructions and advocate’s rules of conduct”, would be impractical: NSW Public Defenders (P Zahra and C Loukas), Submission at 4.

81. Consider Criminal Procedure (Scotland) Act 1995 s 288D(4).

82. This may occur where, for example, the accused has lost his or her memory of relevant events or some aspects of them.

83. Consider Criminal Procedure (Scotland) Act 1995 s 288D(5). There is, perhaps, a real danger that a court-appointed lawyer will fail to act in the best interests of the accused as did the lawyer in Tuckiar v The King (1934) 52 CLR 335 who was severely criticised in the High Court for his grave misconduct.

84. Browne v Dunn (1894) 6 R 67.

85. A minority of the Commission considers, however, that there should not be a blanket prohibition on cross-examination but a determination on a case by case basis of whether such a prohibition is necessary: see para 3.73-3.76.

86. Dietrich v The Queen (1992) 177 CLR 292.

87. Dietrich v The Queen at 335-336 (Deane J).

88. Dietrich v The Queen at 365 (Gaudron J).

89. Attorney General (NSW) v Milat (1995) 37 NSWLR 370 at 374 (the Court).

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

91. Browne v Dunn (1894) 6 R 67.

92. R v Birks (1990) 19 NSWLR 677 at 688 (Gleeson CJ).

93. Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) “1 NSWLR 1 at 16 (Hunt J).

94. Reid v Kerr (1974) 9 SASR 367 at 374 (Wells J).

95. Eastman v The Queen (1997) 76 FCR 9 at 94 (von Doussa, O’Loughlin and Cooper JJ). See also Rv Hines -(1991) 24 NSWLR 737 at 743; R v Howson (1981) 74 Cr App R172 at 179; _Rv McHardie )[1983] 2 NSWLR 733 at 745; Rv Schneidas (No2) (1981) 4 A Crim R101 at 110.

96. R v Birks (1990) 19 NSWLR 677 at 688 (Gleeson CJ).

97. See G Roberts, “Browne v Dunn revisited” (1998) 72 Law Institute Journal 54 at 55.

98. See Australian Law Reform Commission, Evidence (Interim Report 26, 1985) “at para 635.

99. As provided by the Evidence Act 1995 (NSW) s 46.

100. This course was taken by the Full Court of the Federal Court in Eastman v The Queen (1997) 76 FCR 9 even though the accused was unrepresented. In NSW, the courts have seen fit to exclude evidence led in breach of the rule in civil cases: see Ghazal v GIO (1992) 29 NSWLR 336, but not in criminal cases: see R v Zorad (1990) 19 NSWLR 91. However, such a move has been suggested: see R v Schneidas (No 2) (1981) 4 A Crim R 101.

101. However, the court has previously warned against drawing adverse inference from a failure to cross-examine, as there may be other explanations for that omission: R v Manunta (1989) 54 SASR 17 at 23 (King CJ). Alternate explanations for the failure to cross-examine might include a misunderstanding by counsel of the witness’ response, less than full cooperation by the witness and innocent oversight.

102. R v Birks (1990) 19 NSWLR 677 at 688 (Gleeson CJ). See also McInnis v The Queen (1979) 143 CLR 575.

103. R v Birks (1990) 19 NSWLR 677 at 692 (Gleeson CJ).

104. Evidence Act 1995 (NSW) s 46.

105. See generally Shaw v The Queen (1952) 85 CLR 365.

106. See especially Killick v The Queen (1981) 147 CLR 565 at 568.

107. NSW Public Defenders (P Zahra and C Loukas), Submission at 1.

108. Longman v The Queen (1989) 168 CLR 79 at 86 (Brennan, Dawson and TooheyJJ). See also Evidence Act 1995 (NSW) s165..

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

110. For example, see Evidence Act 1977 (Qld) s 21R; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 5(2); Evidence Act 1939 (NT) s 21A(3); Evidence Act 1906 (WA) s 106P; Youth Justice and Criminal Evidence Act 1999 (UK) s 39.

111. Evidence (Children) Act 1997 (NSW) s 25(4).