Peter Kemp, a legal practitioner in NSW, sent me this link, noting that it has significant implications on the right to a fair trial and that there are many points of view to be considered.
BARRISTERS will be refused permission to cross-examine children and sexual assault victims under an Australian-first law to be brought in by the NSW Government.
Changes to the Evidence Act will mean the most vulnerable crime victims and witnesses will be able to give their evidence uninterrupted, in story form.
The changes come after Attorney-General John Hatzistergos last month urged the NSW Bar Association to ban the asking of embarrassing, harassing or intimidating questions, even if their clients tell them to.
Premier Morris Iemma said he was determined to protect children and victims of sexual assault from harassment and predatory cross-examination in court.
“This is about protecting victims – especially children – who come forward and deserve the right to not be harassed in providing evidence,” he said.
Judges will have the authority to declare a victim a no-go zone for barristers, who have caused community outrage by attacking victims in the witness box.
Victims can now apply to tell their story without interruption but the changes will streamline the process and mean victims and witnesses will only be able to be cross-examined if the judge allows it.
Peter’s concerns are with the balance between the rights of victims and accused.
We already have in NSW’s Criminal Procedure Act (s. 93) restrictions to cross examine in COMMITTALS ie an application to cross examine is subject to “special reasons” in committal proceedings. […] The context for committals is legislation about a year ago in NSW, which took the consent of defence and DPP for cross examination away and placed the ultimate decision in the hands of Local Court Magistrates. (I’m referring to strictly indictable offenses where committal in the Local Court sends the case up to the District Court) Further context is the legislation which tries to avoid (second reading speech when the original legislation was made for committals) the alleged victim being “put on trial twice”, at committal and the trial proper.
Most of the legal profession (including myself) will come out strongly against this as the fundamental principle of a fair trial is for the accused to have the right to confront the accuser and test the evidence. This of course is a long held principle of our British legal heritage.
He also raises a very pertinent question:
The question arises as to why will this law will be restricted to sexual assaults and not , for example, to victims of horrific assault occasioning bodily harm/attempted murder by knife of gunshot where arguably, the victim is equally traumatised.
My ability to penetrate the dense legal jargon of criminal jurisprudence is limited, so hopefully Peter and other legal practitioners will weigh in with some plain language elucidation in discussion.
At first glance, of course my sympathies are with sexual assault victims being confronted by “predatory cross-examination”. Peter argues that other crimes traumatise victims as well, which of course is true, but there is a special stigma on rape that blames the victim both overtly and covertly, which does make the victim experience in cases of sexual assault especially difficult, and mean that certain harassing questions are far more likely to be asked in the case of sexual assault than in other cases. This largely comes down to an assumption that in all other cases of bodily harm, no-one would agree to be bashed/stabbed/shot even if they agreed to the behaviour that led to the bodily harm, an assumption which largely goes out the window in cases of sexual assault (how many assault cases where someone agreed to sex but is harmed against their will during that sex ever even go ahead to court?). An attempt to redress the balance of social prejudice regarding sexual assault in favour of alleged victims seems entirely reasonable, but any accused still deserves a fair trial.
Generally, I’m not a fan of our strictly adversarial court system, and would favour a move to a more inquisitorial style of addressing justice. The way in which advocates have traditionally used “embarrassing, harassing or intimidating questions” to the detriment of straightforward testimony is, in my opinion, a blot upon the whole system. Allowing all alleged victims of any crime, and indeed all witnesses, to give their initial evidence in a narrative form (rather than as a constant stream of yes/no answers to deliberately obfuscatory and/or prejudicial questions from lawyers) strikes me generally as a great step forward. Yet, the idea of no cross-examination at all does make me uneasy: I know that if I were accused of any crime I certainly would want to be able to (via my legal advocate) confront my accuser and test their evidence.
So, while a move to encouraging more narrative testimony seems a step forward in principle, I agree with Peter that the issue needs more public examination.
1. Why confine this narrative testimony initiative only to cases of sexual assault?
2. Why not still allow cross-examination, subject to the existing Local Court Magistrates control over out-of-bounds questions, after the narrative testimony has been given to the court?