The upper echelons of Canberra’s criminal bar are on a collision course with Chief Justice Lucy McCallum over the conduct of sexual-assault trials in the ACT.
Senior barristers with long pedigrees in both defence and prosecution are agitating for the Territory’s Bar Association to publicly challenge recent comments of the Chief Justice, suggesting the direction she has outlined could lead to more people being wrongly convicted and imprisoned.
The Bar Association has been told by a senior member that several of the Chief Justice’s reported comments are “quite concerning in terms of foundational precepts of the criminal-justice system in this country, in particular the presumption of innocence, the right to silence and the right to test and call evidence and the other hallmarks of a fair trial”.
Of McCallum’s comment about “exactly what we’re up against with some juries” in sexual-assault trials, one says, “Who precisely the ‘we’ is that are up against some barrier is not entirely clear but is unfortunately expressed in a way (at least at one level) indicative of a view that in some cases juries in sexual-assault cases are inappropriately returning Not Guilty verdicts.”
The CJ’s quote – “There’s an intractable problem in that our overriding task and function is to ensure an accused person has a fair trial” – caused particular concern, as did her view that the presumption of innocence afforded to an accused person meant that sex-assault complainant’s heard, “We are entitled to think you might be lying until you prove that you’re not. That’s not quite how the system works but that’s the messaging.”
One written submission to the Bar declares: “Leaving aside Her Honour apparently describing the overriding obligation to ensure an accused person gets a fair trial as an ‘intractable problem’, I would welcome someone explaining to me how the presumption of innocence – a presumption that remains up to and until the prosecution discharges its onus to prove an offence beyond a reasonable doubt, does not as both a logical and legal necessity mean that a jury IS entitled to think a complainant MIGHT be lying – at least until the presumption of innocence has been rebutted.”
The judge spoke of the statutory duty to disallow cross-examination questions that were, “misleading, confusing, offensive, annoying, harassing, humiliating or repetitive”.
“So why aren’t we doing that?” the judge reportedly asked. “Because we’re all scared of not giving an accused a fair trial. We need to recognise there’s an imbalance and be more proactive in encouraging barristers to perform their function of testing the evidence in a way that is not breaching the Evidence Act.”
Discussion before the Bar Association includes this call to fellow members: “As you all well appreciate, it is almost invariably a fundamental aspect of being able to properly test the evidence to be able to ask questions of a complainant that may suggest they are mistaken or lying.
“Such questions and the putting of such propositions will from a complainant’s perspective inevitably be regarded as annoying, offensive, harassing and/or humiliating. That fact cannot be the basis of rejecting cross-examination.
“In my experience, cross-examiners in this jurisdiction do not often ask ‘improper questions’ (per s41 of the Evidence Act) … to be an improper question it has to be unduly misleading, confusing offensive, annoying, harassing humiliating or repetitive – not simply have that character or capacity. The word ‘unduly’ has a lot of work to do in Section 41 and if there is to be debate about the proper application of this section it should be properly informed debate.”
Another submission mirrors the above comments.
“There now seems to be some emerging ‘prevailing wisdom’ that if a complainant in a sex-offence proceeding gives a different version of events each time they recount what they say happened to them, this can be readily dismissed as some kind of ‘trauma response’ and should not be taken to suggest that they are either lying or unreliable in their account,” it says. “It needs to be remembered that the Uniform Evidence Acts are premised on the general proposition that when a person makes a ‘prior consistent statement’, it tends to suggest that they are telling the truth. Conversely, when someone makes a ‘prior inconsistent statement’, it tends to suggest that their evidence is not reliable …
“This new ‘prevailing wisdom’ where we are supposed to just ignore the significance of a complainant being fundamentally unable to get their story straight is impossible to reconcile with key propositions and assumptions underpinning the Uniform Evidence Acts.”
This submission challenged also the notion of defence barristers peddling “rape myths”.
“What victims’ advocates call ‘rape myths’ aren’t necessarily myths at all – rather, they are generalisations, based on human experience, which may or may not be true in any given case. To call something a ‘myth’ denotes that it is untrue in all circumstances. For example, it is increasingly being suggested that a delay in making a complaint of sexual offending is not probative of anything and is some kind of ‘myth’,” it said. “I would suggest that it is not necessarily a myth at all. Depending on the circumstances of the case, a delay in making complaint may be highly probative, particularly when the alleged offending involves strangers or people who are barely acquainted, or when the complainant was presented with multiple opportunities to make a complainant to a relevant person in a position of authority, but declined to do so.”
This submission concluded most forcefully, squarely raising the real possibility of a miscarriage of justice.
“By its very nature, cross-examination is inherently confrontational and it will inevitably cause distress to a complainant. So much is an inescapable aspect of an adversarial system. But that can never be a basis on which to curtail cross-examination.
“There will be a direct correlation between limits on cross-examination and an inability to properly probe a complainant’s evidence and get to the truth of the matter. Going to prison for a rape one never committed because the evidence could not be properly tested is also offensive, harassing and humiliating…”
Andrew Fraser is the principal of Fraser Criminal Law and has worked in criminal law in the Canberra region for more than 15 years. Before beginning legal practice, Andrew was a journalist for close to 30 years with the Canberra Times and the Sydney Morning Herald, including stints in the Federal Parliamentary Press Gallery. He is also a former news editor, chief of staff and political correspondent of the Canberra Times.
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