Media Release - Questioning of complainants by unrepresented accused in sexual offence trials (17 July 2003)
Today the New South Wales Law Reform Commission released recommendations on the questioning of complainants by unrepresented accused in sexual offence trials. The Report, in response to a reference from the Attorney-General in March 2002, follows extensive consultation and evaluates the law and practice in other jurisdictions.
The right to a fair trial is a fundamental element of the criminal justice system. This includes testing, by cross-examination, the prosecution's evidence. Normally, the accused's lawyer will conduct the cross-examination. But where the accused does not have a lawyer, the accused is entitled to cross-examine witnesses in person, including the complainant. In a sexual assault trial, this means that alleged attackers could cross-examine their alleged victims and cause them great distress.
The Commission recommends that:
- accused persons should not be able to cross-examine complainants in sexual offence trials in person;
- a legal practitioner must cross-examine the complainant where the accused is unrepresented; and
- where the accused fails to provide for a lawyer, the court can order the Legal Aid Commission to provide assistance.
'A trial will be fair from the defendant's point of view if the complainant is competently cross-examined by a properly qualified lawyer and there is no reason to take the risk of inflicting greater humiliation and distress than is strictly necessary on the alleged victim by permitting the defendant to question him or her personally' said Justice Michael Adams, the Chairperson of the Commission. He commented: 'Lawyers can be better controlled by the judge or magistrate and are governed by rules of professional ethics, but it is very difficult to control defendants who act for themselves.'
The Commission further recommends that all complainants in sexual assault trials should be able to give evidence by means of closed circuit television.
Justice Adams commented that 'the Commission's recommendations extend to adults, and generally improve, the restrictions on cross-examining child complainants in sexual assault cases. In doing so, they mirror international standards and reflect a world-wide trend to minimize distress that may be caused to witnesses in sexual offence trials'.
Copies of the Report are available from the Commission (
http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r101toc).