‘Legal profession must accept responsibility’: Witness exposes justice system for mistreatment of sexual assault victims

By Naomi Neilson|18 November 2020
Witness exposes justice system for mistreatment of sexual assault victims

REVIEW: The devastating and destructive faults in the criminal justice system’s approach to sexual assault victim-survivors who must brave the courtrooms have been exposed in a new book that examines the way defence counsel, Crown prosecutors, magistrates and the system itself works against the witnesses who come forward.

Louise Milligan, the Four Corners journalist behind that Christian Porter allegation, has spoken to Lawyers Weekly about her new book Witness, her second after Cardinal, to show readers what the criminal justice system does to victim-survivors. Drawing on 20 years of investigative experience, her own time on the witness stand and insights from victim-survivors, Ms Milligan tears apart the system with gripping honesty. 

First book Cardinal saw Ms Milligan sit down with a victim-survivor who alleged George Pell had sexually abused him as a child – an allegation shut down by the High Court – just before the first trial. As Ms Milligan was the first he had told, police were interested in lining up the evidence he gave the both of them for what would become an arduous, lengthy court trial that is still haunting the people involved to this day. 

Ms Milligan was called to give evidence at the trial following allegations aired on ABC’s 7.30 program. The experience she would go on to have on the witness stand – attacked (or cross-examined) by Robert Richter QC – left her exhausted, traumatised and, more importantly, sympathetic of the victim-survivors who brave the system. After being part of it, she felt it important to put it all down into words and show what needed changing. 

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“By the time I was actually called to give evidence, I had spoken to hundreds of victims in research for my book and in my work as a journalist and had really got to know what a terrible toll these sorts of crimes have on people – particularly when it happens when they’re children,” Ms Milligan told Lawyers Weekly. “You pretty much never get over it and it can have all sorts of terrible impacts on their lives and life trajectory.”

Ms Milligan said that when she got to the witness stand, she did so without the typical, trauma consequences that victim-survivors carry with them into the courtrooms – such as PTSD, substance abuse and a hollowness where the promise of life has been taken from them. Ms Milligan also went in with the benefit of a supportive organisation behind her and a strong legal team. Despite this, she said it was “profoundly traumatic”. 

“I have seen the way courts operate and I am an articulate person and am capable of answering a question before blurting out an answer, but even still it was highly stressful and the whole time I was worried about letting down the people who had come forward as a complainant because I knew how difficult it was for them,” she said. 

Many issues stood out to her while she was a witness – including the grilling by highly respected barrister Mr Ritcher which she breaks down in her book. When talking about it with me, she reflected on how rife bullying is in courtrooms against witnesses – most of whom are reflecting on the “worst moments of their lives”  under the guise of cross-examinations and defence counsel who are, more or less, just “doing their jobs”. 

“We should not be subjecting [witnesses] to unnecessary bullying,” Ms Milligan said – adamant about this getting through to the legal profession. “It’s not necessary to bully a witness in order to achieve a purpose; I have seen barristers who do it in other ways. What you’re trying to do is elicit reasonable doubt in the jury. You can find the needed inconsistencies in the witnesses’ evidence without treating them like vermin.” 

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In theory, magistrates and Crown prosecutors should be intervening when these cross-examinations become too tense and cross from respectful examination to bullying. It’s a whole different story in practice. Why? Ms Milligan said Crown prosecutors often wish to have a “low-profile” game where they sit back and let the witness be “beaten down” a bit so as to create a situation for the jury to sympathise with. From either side, victim-survivors are subjected to a system that is designed to work against them.

As for magistrates, if they interrupt a defence counsel “too much”, they could run a risk of looking like they are favouring the Crown. Ms Milligan said she saw this herself when she was a witness: “The magistrate did intervene, but she could have interrupted after every second question because the tone never changed. It just complicates things too much; they don’t want to seem like they are favouring the Crown.”

Whatever the reasons behind the bullying, Ms Milligan wants to get one important thing across in her book and to lawyers reading this interview: “The profession really needs to take some responsibility for how it is treating these people.”

What needs to change for the system to work

When it comes to mitigating bullying during cross-examination – and this goes for tone, rather than simply substance – Ms Milligan said it would be incredibly useful for victim-survivors to have their own lawyer in the courtroom with them. While some obtain their advice behind the scenes, they do not have a lawyer vouching for them in the room. 

“[Being bullied] is difficult for a complainant who is there explaining the worst thing that has happened to them in their lives and is just trying to get through this experience,” Ms Milligan said. “A lawyer could intervene in those moments and say it’s too much.” 

Then the problem is with the barristers themselves. While it is easy to blame the issue on the “old, white guy” problem that the profession has, Ms Milligan said it goes beyond this and is more of a reflection of the time they graduated into the Bar’s ranks. For one, she said the time they came through was a period of “guns blazing” where they could question a witness about anything. Often, it’s “irrelevant, slut-shaming questions”. 

“I spoke to barristers who are of this vintage and they said, ‘it’s all gone, that’s finished, we don’t do that anymore’, but I can’t help but think that if that’s the time they came through, it’s going to leave a bit of residue. You can’t really escape that,” she said. 

Ms Milligan said they also carry with them a perception that complainants are “running around” crying wolf. When she asked them for examples of fake complaints – confused as to why anyone would put themselves through the cruel system for a lie – she said they often responded with faults and complaints that were “lame”. 

One told her about two complainants who had been “beaten senseless” by a stepfather but had “big holes” in the story of one of them being raped: “So, he was accepting that he was a psychopath and had beaten them senseless but was saying that one of the girls hadn’t been raped. I thought, that’s your example? That’s your false complaint?” 

Ms Milligan is concerned that the system does not consider trauma in the way that the courts should and often uses a person’s reaction against them. For example, if victim-survivor say one thing right after the assault, it’s in a frame of mind of shock or fear – it’s also very likely to be different over the years once they have had time to process. Bottom line, victim-survivors aren’t going into these traumas preparing to remember the small details they will be questioned on during the actual attack. 

“It’s almost impossible that [historical cases] get up to beyond reasonable doubt as it’s often so easy to find a reasonable doubt with something that happened 20, 30 or even 40 years ago. All this stuff about ‘what colour speedos was he in’ or ‘what parts of the room was it in’ play with time. Reasonable doubt is a very high bar to achieve,” she said. 

Onus should be firmly on the bar associations and law societies to change the system, and to not – as Ms Milligan put it – claim that “the system isn’t perfect but it’s the best one we’ve got”. She said it was “nonsense” for the legal profession to give up on small and needed changes because they are afraid of bigger, “wholesale” changes. 

Why letting victim-survivors speak is good for the system

Speaking of those changes, many of them have come as a result of campaigning from victim-survivors who were brave enough to go through the system and experience the wrongness of it first-hand. For Saxon Mullins – who Ms Milligan talked to extensively – her case ended in legal limbo, but she was responsible for major law reforms. 

NSW Attorney-General Mark Speakman referred the state’s consent laws to the Law Reform Commission. Ms Mullins started work with criminologists and advocates in her work to develop minimum standards in rape laws to better define consent. 

Bri Lee, a victim-survivor and author of Egg Shell skull, similarly achieved major reform in Queensland after bringing to light the way the laws played against them. 

When I asked how important it was for her interviewees to have a platform to be open about their experiences, Ms Milligan said it was “incredibly important” and that nothing should stand in the way of these victim-survivors telling their own story. 

“It looks like Saxon will have changed the law for other young women coming forward, and that is an amazing thing because she went through a court ordeal and managed to change the world in a major way. She is an extraordinary young woman and I’m so impressed with her. It’s why these people should be able to come forward,” she said.

Read more of Lawyers Weekly’s reviews here:

A grim reality: The justice system and sexual assault cases with Bri Lee

Lawyer X and Paul Dale: The story of dirty tricks, cover-ups and corruption with Paul Dale, former Victoria Police detective

‘Nightmare of serious errors’: How Australia’s miscarriages of justice and wrongful convictions are crippling the criminal justice system with criminologist Dr Xanthe Mallett

‘The truth hurts’: The fault lines in the criminal justice system with barrister Andrew Boe

‘Legal profession must accept responsibility’: Witness exposes justice system for mistreatment of sexual assault victims
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