The most stressful trials that any of us conduct are cases involving allegations of sexual offending against children and murder trials. In the latter you are often appearing for ordinary people who find themselves facing life imprisonment for extraordinary events, never having been in trouble with the law previously. In the former you appear for people accused of conduct involving an allegation of an offence, that ruins lives if convicted, where you have to cross-examine a complainant who is vulnerable, without taking advantage of that vulnerability, whilst restricted by rules that don’t apply to most criminal trials. If the client is convicted they face almost inevitable imprisonment under the most difficult conditions, with personal and financial ruin, marked for life as being unworthy of the trust of the community. These trials are about to become even more difficult with the advent of the Federal Royal Commission and the undoubted publicity that will accompany it.
Sexual assault trials really comprise two distinct but related types of offences:
(a) Allegations of sexual abuse of children — there is no consent in issue;
(b) Sexual assault of adults — consent may be, and often is, an issue.
Each of the types of trials has different rules of evidence, although there is some overlap.
Gathering Evidence and Material
Usually in these types of cases (except where the allegations are of assault by a stranger), the pre-existing relationship between the complainant and the accused will be a matter of some evidentiary consequence. At an early stage it is important to seek the following from your client as matters which may or may not go to the state of a pre-existing relationship:
(1) Photographs, letters and cards, together with any envelopes relating thereto;
(2) Emails between the accused and the complainant or by the complainant about the accused;
(3) Depending on the age of the complainant, any material which can be obtained from social media sites.
At an early stage, try to identify times and places when things were said to have occurred or must have occurred, even when the matters are old, as they may be the source of an alibi, or alibi like evidence. Often it is only possible to fix the time or place of a single allegation out of a number said to have occurred, but it can be used to highlight the danger of accepting the evidence of the complainant. At an early stage, perhaps by seeking of particulars or alternatively cross-examination at a committal, identify dates and places when or where offences were said to have occurred.
At an early stage try to establish whether or not there is any basis for a committal cross-examination of the complainant or of any of the witnesses who give support to the complainant, including evidence of preliminary complaint.
Part of the effectiveness of cross-examination is based on the collection of evidence to be used to discredit the complainant’s evidence. This means the gathering of as much material as is available, going in particular to the relationship between the complainant and the accused, if in fact such a relationship exists. In sexual offence cases, putting aside the “stranger cases” where there is no prior relationship, it is important to look for evidence to show inconsistency between the reality of a pre-existing relationship and the one in which the complainant now presents it.
When looking at social media, one is looking for prior statements which are inconsistent with the present testimony of a complainant or supporting witness or which create a view inconsistent with the truth of the complainant’s claim. Here, in addition to social media sites, one should look closely at police notes of conversations with the complainant and other witnesses, check with the Crown re: conferences had with the witness, since the witness either last gave evidence or last gave a statement, including notes of those conferences. This primarily will be done by Instructing Solicitors, but counsel should have real input into this if possible. It is wise to have an early conference with the client so that this sort of material can be sought at an early stage.
Limits on Cross-Examination
There are two types of limitations imposed on cross-examination, particularly of children. One of the limitations is as to the circumstances of, and the opportunity for, cross-examination, the other is as to content. With regard to child witnesses, s.9E of the Evidence Act which sets out principles for dealing with child witnesses, sets the basic ground rules for their cross-examination, although to a significant degree they represent no more than an application of common sense and the requirement to treat the child with the degree of dignity and respect that an adult witness would be entitled to expect.
Part 2, Divisions 4 (Special witnesses) and 4A (Affected children) are the principal sources of requirements limiting the opportunity to cross-examine special witnesses and in particular child witnesses. Division 4 controls the physical circumstances in which a person declared to be a special witness is to give evidence, as does 4A with respect to children.
Division 4A is far more proscriptive in respect of children than is Division 4 in respect of special witnesses. A “special witness” is defined in s.21A(1). A “child” for the purposes of the legislation is defined in s.21AD. Division 4A deals in some detail with the giving of evidence by a child witness in committal proceedings and in trials. In s.21A(8) and s.21AW(2), instructions to be given to the jury about the way in which the evidence is given are identified. In each case the instruction must be given by the trial judge and the history of these matters in the appellate court is that a failure to do so is almost inevitably fatal to a conviction that has been obtained.
In my view, whenever preparing for a trial involving sexual offences, especially a trial involving a child complainant, it is critical to have regard to the provisions of Division 4A of Part 2 of the Evidence Act.
Limitations on Cross-Examination of Complainants
ÂThese limitations are principally found in the Criminal Law Sexual Offences Act 1978 and in particular s.4. This is an Act that, in the interests of encouraging complaints has severely restricted one aspect of cross-examination. In many cases such restriction is justified — for example one extreme — a complainant who is kidnapped off the street and raped — where cross-examination as to prior sexual conduct is impossible to justify, both as a responsible practitioner and as a sensible advocate. On the other hand where a complainant is raped in circumstances where consent is a live issue, there are many circumstances where these limitations can create unfairness to the accused.
Section 4 identifies the type of evidence and cross-examination which is:
(a) Inadmissible in any circumstances; and
(b) Admissible only with the leave of the Court.
It identifies the circumstances required to justify the granting of leave. It is a requirement that the Court be satisfied that the evidence sought to be elicited or to be led has substantial relevance of the facts in issue or is a proper matter for cross-examination as to credit. Although there are now a significant number of appellate decisions on rulings made at trial pursuant to s.4, there is no decision that I am aware of that identifies a path to be followed to reaching a decision. This is probably to be welcomed, given that the circumstances of these trials are so varied that it is impossible to contemplate a set of rules that in some way narrows the considerations required to be given by a trial judge pursuant to this section.
A couple of things however need to be said:
1. When making an application to cross-examine, it is wise to do so in the absence of the complainant. Section 4(6) provides that the complainant can be required to leave the Court at the request of the accused.
2. When making an application to cross-examine, it is important to identify in some detail, both the nature of the issues sought to be put to the complainant and, if evidence is to be called, as to the evidence to be called, as well as explaining with some precision, why it is that leave is sought. This is important, not only to assist the trial judge, but also if a refusal becomes the subject of an appeal – R. v Muller (1996) 1 Qd R 74 at 75 lines 20 — 31.
The variety of circumstances which can be thrown up by this provision is to be seen by reference to a number of the decisions, for example, R. v MAG [2004] QCA 397; R. v Tribe [2001] QCA 206; Bull v The Queen [2000] 171 ALR 13; R v Willersdorf [2001] QCA 183; R. v Starkey (1988) 2 Qd R 294; R v Richardson (1989) 1 Qd R 583; R. v Kochnieff (1983) 33 A Crim R 1.
In circumstances where it will be necessary to make such an application, it’s a good idea to read through at least the factual basis and the Court’s analysis in reaching the decisions that it does. In some of these cases the appeals are successful, in others they are unsuccessful. But a review of the thinking of the Court is often helpful in the approach one takes to making a successful application under this provision.
There is one further limitation on cross-examination in these sorts of offences and that is the practical limitation that one needs to impose on oneself. In this sort of trial, a jury is, by and large, likely to be at least initially sympathetic to a complainant, especially a child, giving evidence of sexual mistreatment, particularly where that involves an allegation of violence or where the child is very young and vulnerable. The day when such witnesses could be aggressively (and even offensively) cross-examined are long gone. Either a judge will stop such cross-examination (probably the best outcome) or you will irretrievably lose the jury. Concessions or other good points in favour of your client will simply be lost on the jury as being no more than the product of bullying. Remember, you are not there to beat up a witness to make your client feel better — you are there to give your client every proper opportunity to be acquitted.
Limitations on Producing Evidence of Previous Sexual Experience
The limitations here are those that apply with respect to the cross-examination of complainants in these sorts of cases.
The Effects of a Re-Trial
As with all offences, re-trials are generally more difficult than the original trial.
1. You have disclosed your trial strategy in detail, and such witnesses as you may have called are now exposed to cross-examination on the previous evidence given in the first trial.
2. One of the things you should always consider is whether the same counsel should conduct the re-trial. In my view, usually trial counsel should remain the same, as the first trial counsel usually has a feel for the witnesses and can better evaluate any contemplated changes of strategy. However, look also to whether the first trial counsel had significant difficulty with a particular witness and whether perhaps a different style by a different counsel may produce a different result. Again, counsel should contribute to any discussion in this regard.
3. One thing that won’t change in trials where the evidence has been pre-recorded is that the pre-recorded recording will generally be replayed at the subsequent trial.
4. One advantage of a re-trial, in some cases, is that errors that crept into the first trial may be avoided on a re-trial.
Finally, it is important in preparing for these trials to make a list of the sorts of directions and warnings that you would seek to have a trial judge give to the jury at the time of the summing up. In this regard I always find it useful to go through the required directions identified in the Bench Book — it is easy to overlook a direction that may well be extremely beneficial to your client. There are also statutory warnings that must be given, for example the warning about the way in which a jury should treat the evidence of a special witness or a child witness. However, when asking for these directions, whilst it’s helpful to be able to refer the judge to the particular passage from the Bench Book, it is also wise to attempt to at least suggest some formulation of the direction appropriate to the particular case. The Bench Book is a guide and cannot possibly formulate the precise direction necessary in every case. You will do your client a great service by considering the form in which you say particular directions should be given to assist the trial Judge to formulate a direction that is helpful to your client’s position. It also helps the trial Judge (but of course will be difficult to challenge on appeal).
A. J. Glynn S.C.
