Recommendation 1

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

Recommendation 2

“Sexual offence proceeding” should refer to a prescribed sexual offence as defined in section 3 of the Criminal Procedure Act 1986 (NSW).

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.

Recommendation 4

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

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.

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.

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.

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.

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.

Recommendation 10

• A complainant who gives evidence in proceedings for a sexual offence should be entitled to give evidence by means of closed circuit television unless the court orders that such means not be used. The court should only make such an order if it is satisfied that it is not in the interests of justice for the complainant’s evidence to be given by such means.
• If a court is not equipped with closed circuit television facilities, the court should be able to adjourn the proceedings or any part of the proceedings to a place that is equipped with such facilities so the complainant’s evidence may be given by such means.
• If the complainant does not give evidence by means of closed circuit television, the court may, if the interests of justice so require, make alternative arrangements for the giving of evidence by the complainant in order to restrict contact (including visual contact) between the complainant and the accused. Such arrangements may include the use of screens, planned seating arrangements or the adjournment of the proceedings or any part of the proceedings to other premises.
• A complainant may choose not to use any alternative arrangements, including closed circuit television.
• Where a complainant gives evidence using alternative arrangements, the judge should inform the jury that it is standard procedure for complainants’ evidence in such cases to be given by those means, and 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 the arrangements.