25 August 2004
- Better education and training for police, lawyers and judges.
- Improved police responses to all complainants, but particularly Indigenous and NESB people, children, and people with cognitive impairment.
- Reducing delays in trials involving children and people with cognitive impairment.
- Introducing a specialist list for cases involving offences against children in the Magistrates’ Court to improve the speed and sensitivity of the process.
- Reducing the number of times children and people with a cognitive impairment must give their evidence and be cross-examined on it.
- Tightening judges’ control of cross-examination and barring the accused from personally questioning the complainant or other vulnerable witnesses.
- Making testimony by closed circuit television routine for all complainants.
- Allowing testimony of children and people with a cognitive impairment to be recorded before trial to reduce delay and trauma.
- Further restricting access to the complainant’s counselling records.
- Widening the evidence that juries can hear and who can give it.
- Making it illegal for people to “groom” young people for future sexual acts, including through internet contact.
- The establishment of a working party to improve responses to young sexual offenders.
- Widening the offences which protect people with a cognitive impairment against sexual abuse.
25 August 2005
- A 1999 Department of Justice survey found only 17% of adult sexual assault victims reported to police. (p80)
- The vast majority of rape reports do not result in prosecution. (p80)
- Of the 357 defendants who were prosecuted for rape in 1997–99, 24% were convicted of rape. (p80)
- Conviction rates for rape have fallen since 1988–89 when 46% of people prosecuted for rape were convicted. (p80)
- Overall, approximately 7% of reported rapes result in a rape conviction of the attacker. (Discussion Paper p43)
- Less than one in seven reported cases of sexual penetration of a child and incest result in prosecution. (p80)
- Of the 258 defendants prosecuted for penetrative offences other than rape (eg incest and sexual penetration of a child) in 1997–99, 44.9% were convicted. Of the 223 accused who were tried for these offences, 52% pleaded guilty or were found guilty of a penetrative offence. (p80)
- The Commission followed 27 cases involving sexual penetration of a child aged under 18 between July 1997 and June 1999 to gain an understanding of the delays involved in getting to trial. The delay between the charge and the committal averaged 116 days and between the committal and trial about 200 days. Overall, the delay between the charge and the trial was averaged at 317 days, however the longest wait was 641 days. Focus groups involving police said the delays in regional areas were considerable. (p159)
- The Commission examined all sex offence cases in the Melbourne Magistrates’ Court for four months in 2003, a total of 40 cases, to determine the rates of cross-examination at committal hearings. In 39 of these cases the defence made a request to cross-examine the complainant, which was granted in all but one case. Fourteen of the cases involved child complainants and all were cross-examined at the committal hearing. The magistrate is supposed to consider a range of issues before allowing cross-examination at committal, but as the Commission’s research shows it is almost always allowed. (p155)
25 August 2005
As far as the Commission is aware, there are only two occasions in Victoria in the past 16 years when the accused has cross-examined a complainant in the County Court. However, a larger number of complainants may have been cross-examined by the accused in the Magistrates’ Court.
In Re Cremmen (unreported, County Court of Victoria, 1987), the accused cross-examined the complainant over four days until the judge ordered him to stop.
In R v Kerbatieh (unreported, County Court of Victoria, Duggan J, 17 February 2003), a man charged with sexual offences personally cross-examined two complainants. One complainant gave evidence by CCTV and the other chose to give evidence in court. Victoria Legal Aid had previously provided legal representation for the accused, but the first barrister was unable to follow his instructions and the accused refused to instruct a second barrister.
The Age(23/6/2000) reported on a civil action in which a young woman was cross-examined by her stepfather who had been convicted of repeatedly raping her. She was asked about numerous incidents of alleged rape in a great deal of detail. She was reported to be extremely distressed, despite the fact that she was cross-examined using an audio-visual link.
The UK now prohibits the accused cross-examining a witness after a couple of cases in the 1990s where the complainants were intimidated by the accused.
In the 1996 trial of Ralston Edwards the accused cross-examined his victim for six days wearing the same clothes in court as he had worn during the rape.
In another case, R v Milton Brown (1998), the accused was convicted of the rape of two women and cross-examined them himself at trial. The judge had this to say about the trial:
“It is a highly regrettable and extremely sad aspect of this case that despite my repeated efforts during the first two days of your trial you insisted on dispensing with the services of highly competent leading and junior counsel and solicitors, the third set you had been allocated at public expense, thereafter subjecting your victims to merciless cross-examination clearly designed to intimidate and humiliate them. In the course of your questioning you made outrageous and repulsive suggestions to both witnesses … although I took what steps I could to minimise that ordeal by repeated efforts to prevent repetitious and irrelevant questioning, nevertheless the whole experience must for those women have been horrifying and it is highly regrettable in my view, and a matter of understandable public concern, that the law as it stands permits a situation where an unrepresented defendant in a sexual assault case has a virtually unfettered right to personally question his victim in such needlessly extended and agonising detail for the obvious purpose of intimidation and humiliation.”
The Victorian Law Reform Commission recommends changing the law so that in a sexual offence trial an accused cannot cross-examine the complainant or a ‘protected witness’ personally. A ‘protected witness’ is a child, any other victim of the accused, and a person with cognitive impairment. The court can also declare family members of the complainant or the accused to be ‘protected witnesses’ if the court thinks they would suffer distress, humiliation or intimidation if cross-examined by the accused personally.
The Commission recommends the court tell the accused they cannot cross-examine the complainant or a protected witness themself, and must organise a lawyer to do it for them. If the accused refuses to get a lawyer, the court must direct Victoria Legal Aid to provide a lawyer to conduct the cross-examination. If the accused refuses to accept that assistance, he will be taken as having given up his right to cross-examine the complainant or protected witness.
Improvements for child witnesses
25 August 2005
In Victoria, only a small proportion of child sexual assault matters reported to police result in a prosecution.
In some cases, prosecution doesn’t occur because the child or his or her family is reluctant for the child to give evidence, or because the police or the prosecution don’t think the child will be able to withstand harassing cross-examination in court.
Many child complainants find it very difficult to participate in the criminal justice system and to give evidence against the accused.
What happens now:
- Children are usually interviewed at length on several occasions by different police officers and lawyers.
- Although police usually videotape a child’s statement, the tape is rarely shown in court.
- There are usually long delays at each stage of the process.
- To decide whether a child can give evidence, judges often ask them confusing and sometimes discriminatory questions about whether they believe in God.
- Children nearly always have to give evidence first at a committal proceeding and then at a trial, several months or even years later.
- The child may be allowed to give evidence from another room by closed-circuit TV, but not always.
- The questions asked in cross-examination will often be complicated, hard to understand and repetitive. The defence barrister will often suggest the child is lying.
What we recommend:
- Allowing a child complainant’s evidence to be pre-recorded before the trial at a special hearing in front of a judge, and for that evidence to be shown at trial so the child does not have to attend court.
- Speeding up the process to shorten delays before trial.
- Changes to competency rules to make it easier for a judge to decide whether a child is competent to give evidence.
- Not allowing defence counsel to call child complainants to give evidence at committal proceedings.
- Making sure all child witnesses can give evidence by closed-circuit TV.
- Imposing a duty on judges to protect children from confusing and distressing cross-examination.
- Giving judges more discretion to allow into evidence someone’s hearsay account of a child’s disclosure of sexual assault.
- Improving expert support for child witnesses to help them and their families understand the process.
These fact sheets were produced when the Commission published the Sexual offences: Final report in August 2004.