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Our legal system needs to evolve

27 August 2011 743 views No Comment

IN the 2000 Boyer Lectures, then chief justice of Australia Murray Gleeson QC said: “The essential purpose of the criminal law is to keep the peace, so people can lead their lives, and go about their affairs, in reasonable security.”

If that is so, then is it not the case that, in so far as children and other vulnerable people (such as those who are cognitively impaired) are concerned, the aim of the criminal law should be to ensure that their security is absolute?

Yet these people are often the least protected of all. Children who have been the victims of sexual abuse and other forms of violence are often left with the perpetrator not prosecuted because, for instance, the child is so young that the responsible authority decides the child’s evidence will not stand up to scrutiny or with the perpetrator being acquitted through the efforts of experienced legal counsel.

Why is this?

Well, for a start, the very nature of our adversarial system makes it so. Some would say the present system enables truth to become permeable, malleable and corrupted. Cross-examination of children and other vulnerable people is a skill that requires little practice. While techniques may vary, from the angry and imperious to the gentle and persuasive, the outcome is often the same. Keep a child under cross-examination for any lengthy period and a defence lawyer will almost invariably get the answer they are looking for. But this process may not necessarily uncover the truth.

Admittedly, the law has progressed to some degree. In NSW, legislation provides for a vulnerable person’s evidence in chief to be prerecorded. Usually this is done in a non-threatening environment, such as a playroom or other suitably comfortable surroundings.

Furthermore, their evidence is given from another location so that the witness does not have to appear in court. This is meant to relieve the child or vulnerable person from the anxiety that may result from having to confront the accused in person.

There are drawbacks with both of these concessions. In regard to the prerecording of evidence, that applies only to the evidence that would otherwise have been led by the prosecution. However, the witnesses’ evidence is open to the same scrutiny through cross-examination as any other Crown witness. Unlike adults, who can fend for themselves, children and other vulnerable witnesses can be intimidated and easily led into saying things that are untrue or are misleading. Hence, in their important book, Strange Language: Child Victims under Cross Examination, Mark and Roslin Brennan refer to a magistrate who described cross-examination of children as simple: “It’s easy to confuse them and make out they’re lying.”

In their 2005 evaluation of the NSW Child Sexual Assault Specialist Jurisdiction pilot scheme, Judy Cashmore and Lily Trimboli looked at the challenges faced by children in 21 trials in 2004, involving allegations of child sexual assault.

The key focus of their study was to determine whether a specialist jurisdiction that had been earlier recommended by a parliamentary standing committee was feasible to improve the experiences of child witnesses.

In their conclusions, the authors aptly noted: “It is often difficult for those who are very familiar and comfortable with legal proceedings to realise that they are foreign to non-lawyers, let alone to children.” This is precisely the issue here. A vulnerable person can be interviewed in comfortable and non-clinical surroundings by specialists who can obtain information in a non-threatening manner, so a prosecution can be launched. Why then should cross-examination not be conducted in a similar manner? This seems especially necessary because, at present, there appears to be a fundamental irreconcilability between the adversarial system of justice and the dynamics of sexual assault, especially child sexual assault.

The use of video links in court proceedings for certain offences is now well-established practice. However, there are shortcomings there too. As long ago as 1992, English legal academic Lucia Zedner pointed out that the video link did “little to modify either the manner or tone in which cross-examination is conducted”. She went on to suggest that, in using such a device, “the child may be spared the physical proximity to the defendant or to an aggressive counsel, but questioning may be no less intimidating. The child has to cope, instead, with the additional strain of speaking on camera and responding to demands of a disembodied voice.”

This leads me to ask, when a child or vulnerable person is giving evidence, as the complainant in a criminal trial for sexual abuse or violence, why shouldn’t all the questions to be put by both sides be done in an informal manner?

Defence counsel and their clients would still have their day, the only difference being that they would no longer be working in the threatening environment of a courtroom. Presumably they would also need to be subject to certain procedural rules that could be worked out.

There are arguments against this proposal. Traditionally judges have wanted to be satisfied as to the competency of the witness to give evidence. Increasingly, judges rely on the questions and answers that the interviewer asks and receives in the taped interview to establish this.

Another negative argument may be that defence cannot know the entire Crown case until right before the trial begins. There are even cases where evidence that was not previously served on defence arises in the course of the trial. But this could easily be overcome by making orders, during the course of the trial, that would accommodate defence needs; for example, by allowing further cross-examination but only in a non-threatening environment similar to that already mentioned.

When I began to write this column, I was thinking of concluding with a suggestion that the whole adversarial process be scrapped where children and vulnerable people were allegedly sexually or physically abused. I was thinking that community demands for truth in such an important area of our criminal justice system would outweigh the ancient rights of an accused person to engage a champion to cross-examine their accuser. The suggestion with which I had been toying was along the lines of an inquisitorial process. Another thought would be to introduce panels of expert judges to try questions of fact whenever an allegation is made that a child or other vulnerable person has been sexually assaulted.

But given the glacial slowness of law reform in Australia, I realise that, at the moment, these ideas may well be untenable.

However, my suggestion of prerecorded cross-examination for all vulnerable people now would appear to be achievable.

Emeritus professor of history and politics at Griffith University, Ross Fitzgerald is the author of 34 books

The Weekend Australian, August 27-8, 2011