There are many rules dictating how barristers can deal with witnesses.

There are many rules dictating how barristers can deal with witnesses. Photo: Viki Lascaris

In recent days, various members of our community have heralded a great breakthrough in the prosecution of sexual assault cases in the ACT.

The alleged breakthrough relates to certain expert opinion evidence recently led in a successful prosecution for what was once called rape but is now given the somewhat more compendious and apparently less abrasive description of "unlawful sexual intercourse".

It should be noted that "sexual intercourse" is given a very wide definition by our criminal law to include penile or digital penetration as well as oral sex of one sort and another.

There is a common misconception in some parts of the community that someone who complains that they are the victim of a sexual assault will ultimately be subjected to the most harrowing cross-examination involving a minute examination and dissection of their prior sexual history (if any) as well as the reported details of the alleged offending. 

The truth is there are many limitations placed upon the cross-examination of alleged victims of sexual assault, most of which are found in the evidence legislation of this territory. 

Nobody should be surprised that a serious allegation of criminal conduct will attract cross-examination and testing, probably by a highly skilled and experienced barrister.  What many people do not understand, however, is that cross-examination is not an occasion to ask any question that pops into a barrister’s head and to chase every conceivable rabbit down every identifiable hole.

In truth, any barrister has to comply with strict codes of conduct as well as rules of evidence and only relevant questions will be entertained.

In addition, any barrister asking a question in cross-examination of any witness must have a proper foundation for the question, either based upon instructions given by their client, available documentary material, other admissible evidence or concessions made by the witness under earlier cross-examination.

For a long time, alleged victims of sexual crimes have had the protection of giving evidence from a place outside the courtroom by video facility and, in some instances, that evidence is recorded months before the trial and simply played to a jury as the evidence and cross-examination of the complainant.

There are stringent safeguards built into the availability of so-called "protected confidences" (effectively, things said to counsellors, doctors and others in confidential circumstances) as material for cross-examination.

Further, it is only in exceptional circumstances that any defence counsel is entitled to ask questions about earlier sexual conduct that the alleged victim may have engaged in, either with an accused person or persons or with others.

The law recognises that just because an alleged victim agreed to have sexual intercourse with someone on Friday night and with someone else on Saturday night does not mean that he or she was likely to have consented to have sexual intercourse with an accused person on Sunday night.

On top of all of that, a trial judge has absolute control over the procedures in his or her court and the power to prohibit unduly annoying, repetitive or insulting questioning and an absolute obligation to reject questioning that is simply irrelevant.

Judges are required by statute to warn juries, in appropriate cases, that any delay in making a complaint does not necessarily indicate that the alleged offence did not occur and that there may be good reasons why an alleged victim may not make, or delay in making, a complaint.

It is against that background that I read with a degree of bemusement and incredulity the report by Michael Inman ("Change to consent rule in rape cases'', April 7, p1) and the commentary by lawyer Katrina Marson ("Finally, rape 'freeze fright' has its day in court'', Times2, April 7).

Both articles concerned an alleged breakthrough in the law relating to rape and the prosecution of people accused of rape.

The breakthrough was said to be constituted by expert evidence that up to 50 per cent of rape victims suffer partial or full paralysis to such an extent as to offer no resistance to the sexual act in question.

The opinion piece by Marson was particularly inaccurate and misleading in certain respects.

Among other things, Marson asserted that "for a long time, the law and the public consciousness had failed to recognise that submission is not consent".

The truth is that submission can be consent and no words whatsoever need be exchanged between the parties to a sexual act to signify consent.

What I suspect Marson was seeking to refer to is embodied in section 72 of the Evidence (Miscellaneous Provisions) Act 1991, which requires a judge in a relevant case to direct a jury that a person is not to be regarded as having consented to a sexual act just because the person did not say or do anything to indicate that they were not consenting or that they did not protest or physically resist or did not sustain a physical injury.

That has been the law in the ACT for a very long time and accords with commonsense and everyday human experience.

The converse is not, however, true.

Marson’s piece was written, it would seem, from a minority feminist viewpoint complaining that the courtroom "is an institution which has long been guilty of excluding the female experience from its understanding of human behaviour" – whatever that might really mean.

The accompanying news report quoted at length the opinions of the Canberra Rape Crisis Centre chief executive Chrystina Stanford who, it seems, made the startling suggestion that the burden of proof should somehow be reversed in relation to allegations of rape, thus requiring an accused to prove his innocence.

In my experience of the criminal law, which extends over 35 years and very many sexual assault trials, many false or exaggerated claims of rape or sexual assault find their way to trial.

The government’s abolition of committal hearings has only compounded the problem.  There once was a time when allegations of sexual criminality were tested at a preliminary and administrative hearing designed to determine whether there was sufficient evidence to justify a Supreme Court trial. In my extensive experience of those processes, seldom, if ever, did the details of the original complaint to police accord entirely with the evidence when given and tested at committal. Often the disparity was significant and, in appropriate instances, the Director of Public Prosecutions or his predecessor would decline to take the matter to trial or would sometimes substitute the original complaints with complaints of a lesser criminality more closely aligned to the reality of the case as demonstrated by cross-examination.

The government’s scramble to avoid the cost of committal hearings and to protect alleged victims has resulted in many cases going to trial (not just sexual cases) that should never, in the interests of the community and the proper administration of criminal justice, have been prosecuted.

The reported views of Stanford are dangerously subversive of our system of criminal justice, which proceeds on the fundamental assumption that anyone accused of a criminal offence is presumed to be innocent unless proven beyond a reasonable doubt to be guilty.

The comment by Canberra University legal academic Patricia Easteal that defence counsel use "a lack of fight or physical resistance as a 'dirty trick' to discredit victims" is not only misleading and insulting but positively wrong in my experience.

Section 72 of the Evidence (Miscellaneous Provisions) Act 1991 makes it clear why any such attack would be counterproductive.

Easteal, described by The Canberra Times as a rape law expert, is quoted as referring to "a 'huge gap' between the black letter of the law of the reform and how it was actually implemented and practised in the courtroom".

The professor’s standing to make such comments with any authority might be thought to be tied to her courtroom experience. Unfortunately, in more than 35 years of practice in the courts, I have never once encountered Easteal.

If there exists relevant expert opinion evidence about a victim freezing and being unable to respond to a sexual assault, the evidence laws of this country allow that expert opinion evidence to be given.

That is nothing new nor novel, nor is it a precedent. 

Such evidence, like any other, would be assessed by a jury and given the weight the jury considers appropriate in regard to any cross-examination or testing of the evidence.

Often, in my experience, expert opinion evidence is not determinative of the outcome of a court case and particularly not if the expert opinion is not based upon facts otherwise established by evidence to the requisite standard in civil or criminal proceedings.

Both the opinion piece and the news article were written from a highly prejudiced viewpoint and failed to take into account or make mention of the numerous evidentiary reforms that have been made over a long period of time to afford alleged victims of sexual crimes additional rights in the criminal justice system.

Countervailing opinion should have been sought from someone actively involved as defence counsel in such matters.

The readers of The Canberra Times deserve a balanced account of alleged developments in the law.

Jack Pappas is a Canberra barrister.