Cross-examination

28.100 Cross-examination is a feature of the adversarial process and is designed, among other things, to allow the defence to confront and undermine the prosecution’s case by exposing deficiencies in a witness’ testimony, including the complainant’s testimony. Under the common law, the uniform Evidence Acts and other legislation, limitations have been placed on inappropriate and offensive questioning under cross-examination. It has been argued, however, that the effect of these provisions in practice has not provided a sufficient degree of protection for complainants in sexual assault proceedings. The following section:

  • briefly discusses the cross-examination of children and other vulnerable witnesses in sexual assault cases; and

  • examines issues concerning cross-examination where the defendant is not represented by a lawyer.

Cross-examination of children and vulnerable witnesses

28.101 Cossins has documented inquiries relating to the prosecution of child sex offences, and children as witnesses within the criminal justice system over the last 14 years.[163] She found that cross-examination is one of the most difficult parts of testifying for children; children are subject to complex, developmentally inappropriate and repetitive questioning and questioning deliberately designed to confuse and create inconsistencies; and the powers of judicial officers to intervene to prevent improper questioning are either ‘exercised sparingly’ or sometimes have no effect on defence counsel questioning.[164]

28.102 Unless they have a cognitive impairment, adults are much less vulnerable than children during cross-examination. Nonetheless, they can be subject to the same types of leading, repetitive, aggressive, intimidating and humiliating questions as children. There is, however, much less information available about the impact of cross-examination on adult sexual assault complainants, particularly recent information. Because of the extent of juror misconceptions about how women and children respond to sexual assault, cross-examination is likely to play a central role in confirming the pre-existing attitudes and beliefs of jurors.[165]

Improper questioning

28.103 The Commonwealth, NSW and ACT uniform Evidence Acts impose a positive duty on the court to intervene to disallow improper (‘disallowable’) questions.[166] Under this provision a court ‘must’ disallow a question that:

  • is misleading or confusing; or

  • is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or

  • is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

  • has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age, or mental, intellectual or physical disability).[167]

28.104 When recommending, in ALRC Report 102, that such a duty should be enacted, the ALRC, the NSWLRC and the VLRC considered the duty was necessary to: protect vulnerable witnesses from improper questioning; ensure ‘the best evidence is received by the court’; and overcome judges’ long standing reluctance to intervene in cross-examination.[168]

28.105 The Commonwealth, NSW and ACT provisions apply to all witnesses, not just vulnerable ones.[169] The equivalent provision in Victoria is specific to vulnerable witnesses, defined to include persons: under the age of 18 years; who have a cognitive impairment or an intellectual disability; or whom the court considers to be vulnerable, having regard to the characteristics of the witness and the context in which the questions are put.[170]

28.106 Apart from South Australia,[171] no other Australian jurisdiction places a positive duty on the court to disallow improper questions.[172]

Further reform

28.107 Perceived problems with the reluctance of judicial officers to intervene to protect witnesses in criminal trials and to control cross-examination have led to proposals for reform. For example, Cossins and the National Child Sexual Assault Reform Committee have set out a range of recommendations aimed at enabling children to give their best evidence in sexual assault trials. These include recommendations to:

  • prohibit suggestive questions or statements that are designed to persuade the child to agree with the proposition or suggestion put to them;

  • prohibit asking the same question or making the same statement more than once;

  • prohibit questions or statements made by the defence that directly accuse the child of lying or being a liar;

  • place restrictions on the use of prior inconsistent statements by the defence; and

  • introduce court-appointed intermediaries (social workers, psychologists or other relevant professionals) trained in child cognition, language and development to assess defence questions during the cross-examination of a child complainant.[173]

28.108 Such matters, as with duties to disallow improper questioning, are aspects of vulnerable witness protection. The Standing Committee of Attorneys-General (SCAG) is developing, through the National Working Group on Evidence, proposed amendments to the uniform Evidence Acts dealing with vulnerable witness provisions. Model provisions are expected to be drafted later in 2010.

28.109 The Terms of Reference instruct the ALRC, in undertaking this Inquiry, to be ‘careful not to duplicate … the work being undertaken through SCAG on the harmonisation of uniform evidence laws, in particular the development of model … vulnerable witness protections’. For this reason, the Commissions do not make any proposals for reform of these aspects of vulnerable witness protection.

Unrepresented defendants

28.110 Every Australian jurisdiction, with the exception of Tasmania, has enacted legislation to place restrictions on the cross-examination of complainants in sexual offence proceedings by unrepresented defendants.[174]

28.111 In some jurisdictions this protection is only afforded to child complainants and child witnesses.[175] In other jurisdictions it has application beyond sexual offences, and applies to a broader range of legal proceedings or wider class of witness. In Western Australia, the court’s power to prohibit personal cross-examination by the defendant is discretionary (albeit for a wider class of witness across a range of criminal proceedings).[176]

28.112 The NSWLRC explored the issue of cross-examination by an unrepresented accused in detail.[177] It canvassed the competing interests of the rights of the accused to a fair trial—the critical consideration being the ability to test the evidence against them—and the rights of the complainant (that is, the need to reduce the potential distress and humiliation to complainants caused by personal cross-examination).

28.113 In regard to this last area, the NSWLRC drew attention to the particular nature of sexual offences, the nature of the evidence that needs to be elicited from the complainant, the length of cross-examination, and its focus on issues of credibility and consent. To be personally cross-examined by the defendant was seen as having a negative impact on the complainant’s ability to answer questions, thus affecting the quality and nature of the evidence received. This is likely to be amplified in those cases where the complainant and the defendant have, or have had, an intimate or family relationship.[178] The VLRC and QLRC, who dealt with this issue as part of broader inquiries, also emphasised the negative effect of personal cross-examination on child complainants and child witnesses.[179]

28.114 In order to ‘strike a balance’ between the rights of the accused to test the evidence against them, and the importance of limiting the traumatic experience of complainants in sexual offence proceedings, most jurisdictions prohibit personal cross-examination. However, jurisdictions differ as to:

  • whether this protection applies to witnesses other than sexual assault complainants or alleged victims and whether it applies in other legal proceedings; and

  • who asks the questions on behalf of the unrepresented defendant and whether that person has any role or responsibility in providing advice to the defendant.

Which witnesses are protected?

28.115 In some jurisdictions, protection from cross-examination by an unrepresented defendant is limited to the cross-examination of a complainant in sexual offence proceedings,[180] or to child complainants and child witnesses in sexual offence proceedings,[181] while in others it applies to a wider range of proceedings and witnesses:

  • In Victoria, the protection applies to ‘protected witnesses’ in sexual offence proceedings and offences that would amount to family violence within the meaning of the Family Violence Protection Act 2008 (Vic).[182]

  • In Queensland, the protection applies to witnesses under 16 years of age, witnesses with an ‘impairment of the mind’ and alleged victims in a ‘prescribed special offence’ (this covers rape and sexual assault along with a range of other offences) or, subject to conditions, victims of a ‘prescribed offence’.[183]

  • In the ACT, the protection applies to the complainant or a ‘similar act witness’ in a sexual offence proceeding, a serious violent offence proceeding, and to a less serious violent offence proceeding where the witness and the accused have been in an intimate relationship[184] or the court considers that the witness has some particular vulnerability.[185]

  • In South Australia, the protection applies to children or witnesses who are the alleged victims of a ‘serious offence’, or an offence of contravening or failing to comply with a domestic violence restraining order or a restraining order.[186]

  • The provision in Western Australia is discretionary, but it is open to the court to ‘forbid’ such personal cross-examination for any witness in a criminal proceeding.[187]

Who asks the questions?

28.116 In the Commonwealth, NSW and ACT jurisdictions, the defendant’s cross-examination questions are to be asked on their behalf by ‘a person appointed by the court’. The role of the appointed person is simply to ask the questions. In NSW and the ACT it is made clear that this appointed person ‘must not independently give the accused person legal or other advice’.[188]

28.117 In Western Australia, South Australia and the NT, the defendant’s cross-examination questions are either put by the court or a person appointed by the court.[189] In Western Australia and the NT the questions must be ‘repeated accurately’ by the judge or other appointed person.[190] In South Australia, however, the legislation makes it clear that only those questions ‘determined by the judge to be allowable’ will be asked of the witness.[191]

28.118 In Victoria[192] and Queensland,[193] the person who asks the questions must be a legal practitioner and has a more active legal role in asking the questions. In Victoria the court ‘must order Victoria Legal Aid to provide legal representation’ to the accused for the purpose of cross-examining the protected witness.[194] The legal practitioner provided by Victoria Legal Aid ‘must act in the best interests of the accused person if the accused person does not give any instructions to that legal practitioner’.[195] In Queensland, the lawyer appointed to ask the questions on behalf of the accused is ‘the person’s legal representative for the purposes only of the cross-examination’.[196]

28.119 In all the jurisdictions where this alternative mode of cross-examination is conducted, the judge is required to explain to the jury that this is a ‘standard’ or ‘routine’ procedure, and that they are not to draw any adverse inferences from this practice, nor are they to give the witness’ evidence any greater or lesser weight.[197]

28.120 A key difference of approach in the jurisdictions—and in the literature on this issue—is whether the person appointed to ask the cross-examination questions on behalf of the accused should be legally trained and in a position to provide the accused with legal advice in the context of the cross-examination only.

28.121 The NSWLRC’s report on this issue canvassed whether it was necessary for the person to be a legal practitioner. Reasons for not having a legal practitioner included the fact that the person has ‘already decided against legal representation’ and that it is not a necessary requirement.[198] Ultimately, the NSWLRC concluded that a legal practitioner should cross-examine the complainant as ‘this is not only in the interests of the accused, but also of the administration of justice, particularly since sexual offences are such serious charges’.[199]

28.122 The approach in NSW, which involves the appointment of a person who is not necessarily legally trained and is specifically not to provide legal advice, has been held to be valid.[200] It has, however, been criticised, including by judicial officers.[201] The NSWLRC and the VLRC both recommended that the appointed representative should be legally trained and in a position to provide legal advice for the purposes of cross examination. This is the approach that has been enacted in Victoria.[202]

Submissions and consultations

28.123 In the Consultation Paper, the Commissions proposed that federal, state and territory legislation should: prohibit an unrepresented defendant from personally cross-examining any complainant or other witness in sexual assault proceedings; and provide that any person conducting such cross-examination is a legal practitioner representing the interests of the defendant.[203]There was no objection to the proposal that restrictions on the cross-examination of complainants in sexual offence proceedings by unrepresented defendants should apply in all Australian jurisdictions. The Commissioner for Children (Tas), for example, submitted further that Tasmania should legislate to prohibit ‘personal cross-examination of child witnesses by an unrepresented accused in all cases, not just those of a sexual nature’.[204]

28.124 Stakeholders expressed different views, however, on who should ask questions on the defendant’s behalf. While some stakeholders agreed that the person asking the questions should be a legal practitioner,[205] most stakeholders who responded to the second aspect of the proposal opposed the requirement that the questioner be a legal practitioner or expressly supported the NSW model, under which questions may be asked by any person appointed by the court.[206]

28.125 The Law Society of NSW, for example, observed that ‘it is not appropriate for a legal practitioner to undertake the role of questioner’ in NSW because a person appointed by the court is limited to asking the complainant only the questions that the accused person requests,[207] and is therefore ‘acting merely as a mouthpiece’ for the defendant.

The limited terms of engagement impact on a practitioner’s ability to act in the client’s interests, and to prepare and conduct a full interrogation of the witness. Acting in such a capacity conflicts with a practitioner’s legal, professional and ethical obligations to the client and the court.[208]

28.126 The Law Council of Australia agreed that the person conducting a cross-examination should be a person appointed by the court to act as the defendant’s ‘mouthpiece’ and ‘not representing his or her interests of the defendant’.[209]

Commissions’ views

28.127 The Commissions recommend that federal, state and territory legislation prohibit an unrepresented defendant from personally cross-examining any complainant, child witness or other vulnerable witness in any sexual assault proceeding.

28.128 The widely accepted rationale for prohibiting an unrepresented defendant from personally cross-examining any complainant in sexual assault proceedings is to avoid causing unnecessary distress or humiliation to complainants.[210] Only Tasmania currently has no express restrictions on cross-examination of complainants by unrepresented defendants in sexual assault proceedings. As discussed above, existing prohibitions vary in relation to the categories of witness covered. In the Commissions’ view, it is also important to protect child witnesses and other witnesses defined as vulnerable.

28.129 The Commissions consider that it is inappropriate to have the judicial officer ask questions on behalf of the accused. Such an approach (which exists in the NT and Western Australia) places a judicial officer in a difficult position in determining the admissibility of the questions and may raise perceptions of bias.[211]

28.130 There are differences of opinion about who should ask questions on behalf of the defendant and the extent to which legal representation should be provided. On one hand, the critical advantages of legal practitioner involvement include: benefits associated with the professional duty the lawyer owes to the court and the client; the skills that lawyers bring to this work in terms of understanding the rules of evidence; the public interest in testing the evidence presented by the witness, and in addressing the imbalance between the prosecution and the unrepresented defendant.[212]

28.131 On the other hand, there are practical problems in requiring legal representation to be provided by legal aid commissions or otherwise and, in effect, forcing legal representation for these purposes onto a defendant. There may also be ethical problems for legal practitioners required to ask questions on behalf of a defendant. For these reasons, the Commissions do not recommend that legislation require any person conducting cross-examination on behalf of an unrepresented defendant to be a legal practitioner.

28.132 In the Commissions’ view, an unrepresented defendant in sexual assault proceedings should be permitted to examine the complainant through a person appointed by the court to ask questions on behalf of the defendant. Such a person need not be a legal practitioner and should not independently give the defendant legal or other advice.

28.133 As discussed above, SCAG is developing, through the National Working Group on Evidence, proposed amendments to the uniform Evidence Acts dealing with vulnerable witness provisions. Model provisions are expected to be drafted later in 2010 and may deal with aspects of this issue.[213]

Recommendation 28–5 Federal, state and territory legislation should:

(a) prohibit an unrepresented defendant from personally cross-examining any complainant, child witness or other vulnerable witness in sexual assault proceedings; and

(b) provide that an unrepresented defendant be permitted to cross-examine the complainant through a person appointed by the court to ask questions on behalf of the defendant.

[163] A Cossins, ‘Cross-Examination in Child Sexual Assault Trials: Evidentiary Safeguard or an Opportunity to Confuse?’ (2009) 33 Melbourne University Law Review 68, 73.

[164] Ibid, 73–74; quoting Victorian Law Reform Commission, Sexual Offences: Final Report (2004), 314. See also C Eastwood and W Patton, The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System (2002).

[165] The Heroines of Fortitude report highlighted the experience of Indigenous women under cross-examination in sexual offence proceedings: J Bargen, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault, Gender Bias and the Law Project (1996), 99–103.

[166] Uniform Evidence Acts, s 41. Such provisions were previously enacted under Criminal Procedure Act 1986 (NSW) s 275A, which also imposed a positive duty on the court ‘to intervene in relation to a range of improper questions, irrespective of whether or not the other party raised an objection’: See A Cossins, ‘Cross-Examination in Child Sexual Assault Trials: Evidentiary Safeguard or an Opportunity to Confuse?’ (2009) 33 Melbourne University Law Review 68, 93.

[167] Evidence Act 1995 (Cth) s 41(1); Evidence Act 1995 (NSW) s 41(1).

[168] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [5.114].

[169] The VLRC did not agree that s 41 should apply to all witnesses. Rather, it concluded that ‘a specific duty in relation to vulnerable witnesses offers the best prospect of changing the culture of judicial non-intervention’: Ibid, [5.123].

[170] Evidence Act 2008 (Vic) s 41(4). The Victorian and Tasmanian Acts provide a discretion to disallow improper questions put to any witness in cross-examination: Evidence Act 2008 (Vic) s 41(1). See also Evidence Act 2001 (Tas) s 41. See also Crimes Act 1914 (Cth) s 15YE in relation to cross-examination of children in proceedings for sexual offences.

[171] Evidence Act 1929 (SA) s 25(4).

[172] See Evidence Act 1977 (Qld) s 21(2); Evidence Act 1906 (WA) s 26(3); Evidence Act 2001 (Tas) s 41(2); Evidence Act 1939 (NT) s 16(2).

[173] A Cossins, ‘Cross-Examination in Child Sexual Assault Trials: Evidentiary Safeguard or an Opportunity to Confuse?’ (2009) 33 Melbourne University Law Review 68, 99–101.

[174] Crimes Act 1914 (Cth) ss 15YF–15YG; Criminal Procedure Act 1986 (NSW) s 294A; Criminal Procedure Act 2009 (Vic) s 356; Evidence Act 1977 (Qld) ss 21N–21S; Evidence Act 1906 (WA) s 25A; Evidence Act 1929 (SA) s 13B; Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 38D; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 5.

[175] See Crimes Act 1914 (Cth) ss 15YF–15YG.

[176] Evidence Act 1906 (WA) s 25A(1).

[177] New South Wales Law Reform Commission, Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials, Report No 101 (2003).

[178] Raised in submissions to Ibid, [2.11].

[179] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.122]. See also Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: The Evidence of Children, Report 55 (Part 2) (2000), 272–273.

[180] Criminal Procedure Act 1986 (NSW) s 294A prohibits personal cross-examination by an unrepresented accused in ‘prescribed sexual offence proceedings’ which are defined in s 3; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 5.

[181] Crimes Act 1914 (Cth) s 15YF prohibits the cross-examination of a child complainant (that is the child who is alleged to be the victim of the offence) and s 15YG prohibits the cross-examination of a child witness (other than the child complainant) unless the court grants leave to do so. Both of these sections apply to sexual offence proceedings as specified in s 15Y. These protections apply to committal proceedings and other proceedings related to the prosecution of the prescribed offences: s 15Y(2).

[182] Criminal Procedure Act 2009 (Vic) s 354. ‘Protected witness’ is defined broadly and includes the complainant, a family member of the complainant, a family member of the accused person, and any other witness that the court declares protected.

[183] ‘Prescribed special offence’ and ‘prescribed offence’ are defined in Evidence Act 1977 (Qld) s 21M(3).

[184] ‘Intimate relationship’ is defined in Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 38B(2)–(4).

[185] Ibid s 38D(1). The protection also applies to a child or person with a disability who is giving evidence in a sexual or violent offence proceeding (i.e. where they are not the complainant who is already protected): Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 38D(2).

[186] Evidence Act 1929 (SA) s 13B(5).

[187] Evidence Act 1906 (WA) s 25A.

[188] Criminal Procedure Act 1986 (NSW) s 294A(4); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 38D(5). The NSW legislation does not accord with the conclusion of the NSWLRC which had recommended that the person appointed to conduct the cross-examination should be the legal representative for the accused for the purposes of that cross-examination: see New South Wales Law Reform Commission, Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials, Report No 101 (2003), [5.38], Rec 7.

[189] Evidence Act 1906 (WA) s 25A(1)(c); Evidence Act 1929 (SA) s 13B(2)(b); Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 5(1)(b).

[190] Evidence Act 1906 (WA) s 25A(1)(c); Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 5(1)(b).

[191] Evidence Act 1929 (SA) s 13B(2)(b).

[192] Criminal Procedure Act 2009 (Vic) s 357.

[193] Evidence Act 1977 (Qld) s 21O(2)(b).

[194] Criminal Procedure Act 2009 (Vic) s 357(2).

[195] Ibid s 357(4). Where an accused refuses this representation, the court must warn them that they will not be allowed to adduce evidence from another witness that contradicts the evidence of the protected witness where the protected witness has not been given the opportunity to respond to that contradictory evidence: Criminal Procedure Act 2009 (Vic) s 357(5). The ACT also makes this explicit in its legislation: Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 38D(4)(b). This is known as the rule in Browne v Dunn: Browne v Dunn (1893) 6 R 67.

[196] Evidence Act 1977 (Qld) s 21P.

[197] Criminal Procedure Act 1986 (NSW) s 294A(7); Criminal Procedure Act 2009 (Vic) s 358; Evidence Act 1977 (Qld) s 21R; Evidence Act 1929 (SA) s 13B(4); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 38D(7); Evidence Act 1939 (NT) s 21A(3).

[198] New South Wales Law Reform Commission, Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials, Report No 101 (2003), [5.6].

[199] See Ibid [5.19]–[5.20].

[200] See Clark v The Queen (2008) 185 A Crim R 1; R v MSK (2004) 61 NSWLR 204.

[201] For example, by the trial judge (Sully J) in R v MSK (2004) 61 NSWLR 204.

[202] Criminal Procedure Act 2009 (Vic) s 357.

[203] Consultation Paper, Proposal 18–14.

[204] Commissioner for Children (Tas), Submission FV 62, 1 June 2010.

[205] National Legal Aid, Submission FV 232, 15 July 2010; Barrister, Consultation, Sydney, 10 June 2010.

[206] Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010.

[207] Criminal Procedure Act 1986 (NSW) s 294A(3).

[208] Law Society of New South Wales, Submission FV 205, 30 June 2010.

[209] Law Council of Australia, Submission FV 180, 25 June 2010.

[210] N Friedman and M Jones, Children Giving Evidence of Sexual Offences in Criminal Proceedings: Special Measures in Australian States and Territories (2005), 168.

[211] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.141]; New South Wales Law Reform Commission, Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials, Report No 101 (2003), [5.11]–[5.12], [5.21]; Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: The Evidence of Children, Report 55 (Part 2) (2000), 291–292.

[212] See New South Wales Law Reform Commission, Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials, Report No 101 (2003), [5.7]–[5.10].

[213] Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.