PROPOSED AMENDMENTS to the NSW Evidence Act preventing barristers from cross-examining vulnerable witnesses have been criticised as “unworkable” and “left-field” by rape reform groups as well as the NSW Bar.
Looking to prohibit improper questioning in civil and criminal trials as well as allowing evidence to be heard in narrative form, the amendments are regarded as likely to hinder a fair trial process and leave vulnerable victims more likely to face the prospect of an appeal.
Anne Cossins, an academic from the University of New South Wales, said defendants must have the right to cross-examine witnesses. “It seems to me that trial judges, would be very reluctant to not grant the defendant the right to cross-examine the claimant … I can’t imagine a judge in this state refusing to do so.”
Karen Willis, manager at the NSW Rape Crisis Centre said the problem of cross-examination will not be solved by allowing witnesses to escape from questioning. She said that this proposal pays lip service to the real problem of trauma in sexual assault cases, and tries to ameliorate pressure from reform groups rather than actively engage in relieving witnesses from overzealous cross-examination.
“Certainly defendants have the right to mount a defence and question evidence, that’s a very clear basic justice process … but in that process we don’t accept that lawyers have the right to humiliate, degrade, intimidate, bully and undermine,” she said.
In the wake of calls for judges’ courtroom performances to be reviewed, the proposal brings the actions of judges and barristers back into the spotlight. “The problem with cross-examination is even if you re-educate judges, judges have their own minds and will decide to what extent they are going to be re-educated,” said Cossins.
Cossins described the changes as “a bit left-field” given that they were not discussed by the recent Criminal Justice Sexual Offence Taskforce in 2006.
“One of the things that we talked at the taskforce about was different ways of controlling cross-examination by defence counsel. They tend not to be controllable because they have a particular aim and strategy in mind when it comes to the complainant.”
Cossins argued that one way that you can break the cycle of abuse that tends to happen on cross-examination is to use an intermediary to put the questions to the complainant, which is the case in South Africa and the UK.
“If you can limit the number of questions that can be asked, limit repetitive questions”, you can remove the “accusatory, humiliating, badgering” of complainants, she said.
According to Cossins, the practical problems within the proposal lie in monitoring its effectiveness and application. “How do any of us know that it’s working unless you monitor each and every trial?,” she asked.
Karen Willis believes a change must come from altering the obfuscatory nature of the trial process: “It’s not about bricks and mortar. It’s about culture within the court.”
Willis was convinced that the first time a trial judge refused cross-examination of the complainant — and the defendant was subsequently convicted — there would be an appeal.
Michael Slattery QC, president of the New South Wales Bar Association said that he understood that the government may not proceed with changes to the laws of evidence which would displace or prevent cross-examination of vulnerable witnesses.
He was nevertheless, “immensely sympathetic to the experience that many victims of sexual assault have to go through in giving their evidence … [And] would strongly oppose any such change if it is ever seriously proposed”. Slattery added that “any exercise of a judicial discretion to curtail cross-examination would inevitably result in appeals, which would greatly prolong the ordeal of vulnerable witnesses in the courts”.
Meanwhile, Cossins remained adamant that the government had a “chance to make some concrete changes that will actually have an effect as opposed to a proposal that probably won’t … there is rhetoric and then there are practical changes”.
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