Page 3507 - Week 09 - Thursday, 21 August 2008
I have seen a learned opinion by my old colleague Ken Archer, which Dr Foskey might refer to and which is probably relevant in some of the amendments. It did become very much a game. It certainly concerned me to see the extensive cross-examination of sexual assault victims—more than would occur for other prosecution witnesses in other matters. It greatly concerned me to see that the situation probably got worse in the ACT. A victim of sexual assault could give evidence three or maybe four or sometimes five times.
One of the problems in our system was highlighted recently by a decision by Justice Gray, who seemed concerned that he was unable to accept evidence by the complainant which both the prosecution and the defence, by consent, wanted admitted in a case. That would have saved the complainant giving evidence and going back to court on about a fourth occasion.
Sexual assaults, especially very serious sexual assaults, are some of the most heinous crimes that can be committed. The complainants are usually very vulnerable. There is shame. There are all sorts of problems just in terms of coming forth to complain to the police. The success rate is incredibly small—it is something like three or four per cent—which is very different from other offences that go before the court.
It is crucially important to recognise that this is an area of the law that does need amending. The ACT has lagged behind other states. Other states have introduced sensible reforms that, whilst recognising the legitimate rights of the accused, make things easier and far more victim-sympathetic in terms of the giving of evidence by people who are complainants before the court.
For about the last 20 years now, we have had the ability for video evidence to be given. This is especially important in relation to offences involving children—children are often the victims of sexual assaults—but it is equally important in relation to a complainant who is a victim of a sexual assault and who has to relive the horrors of what occurred to her. It is usually a her; sometimes it is a male but usually it is a female.
It is unreasonable to expect a complainant to have to go through giving evidence in detail; to be cross-examined for days on end, which I have seen at times; and to maybe have to come back for further cross-examination on two, three or four occasions, depending on whether it is just a straight committal in the Supreme Court and the case is dealt with—that is two times to give evidence—or whether there is an appeal or a retrial, in which case it is three or four occasions.
I have been involved in a number of cases, one involving girls aged between nine and 18. It was a tragedy that the judge did not combine all the trials; we might have got a couple of convictions that way. The committal went for 2½ years—19 days a hearing. Then we split the trials—three different trials. I have the greatest respect for those girls; the oldest was 18 at the time of the offence, the youngest nine. They gave evidence. Whilst probably not at the highest scale of sexual assault, it was pretty nasty stuff. It involved a family neighbour, a neighbour where they lived, in the neighbourhood. One trial had a hung jury. We had a retrial and that was unsuccessful. Those girls had to give evidence at least two times, and in many instances three or four times.