View from the Inside: Have the Aims of the Act been Achieved?

Aim: Reducing the trauma for sexual assault victim witnesses

The new subsection 90AA of the Magistrates Court Act 1930 introduced the idea of a “paper committal” for sexual offence prosecutions, aiming to reduce the number of times victim witnesses have to give evidence.

Victim support workers described the committal process (of the past) as often scary, repetitive, unnecessary, stressful, overwhelming, elongated, frustrating, traumatic, discouraging and unfair.^[134] It was reported that these hearings “brought all of the negative thoughts up and was not good for their wellbeing”.^[135] Generally speaking, the process was detrimental to the victim witness’s wellbeing.^[136]

Therefore, by removing committals for all victims of sexual assault, victims are no longer exposed to retrauma at that preliminary stage. However, the main aim of the reforms was to alleviate the trauma of all sexual assault proceedings for all victims of sexual assault. Has this occurred?

The two victim witnesses described their experience as a witness in the trial as scary, overwhelming, intense,^[137] hopeless, angering, long, enduring, complex and confusing.^[138] One talked about the feelings of hopelessness while being cross-examined:

The process was hopeless. I felt that it was a joke because it felt like it wasn’t going anywhere and wasn’t achieving what I had hoped it would achieve. They continued to go over the same questions and I felt that it didn’t matter what they said, it wasn’t going to change what happened — I knew the truth (and so did he). They were going to make what they wanted of it.^[139]

The victims also identified some negative health impacts:

[The trial] made everyday life more difficult and challenging.

[As a result of the trial I] was not sleeping, lost a lot of friends. I had nightmares, depression, lots of anger, and moodiness. [However] the process of talking to people about it and being heard was very validating because I got to tell my story and people — the police and DPP — understood and believed me.^[141]

The victim support personnel surveyed confirmed that these may be the experiences of most victims both before and after the amendments. They described the process as scary, unnecessary, overwhelming,^[142] frightening, stressful, long, confusing, painful,^[143] traumatic, discouraging, debilitating and abusive.^[144] One support person stated that “people are very fearful of giving evidence... they have to repeat themselves over and over... they have already given a statement and have to give evidence at trial as well. people often have sleepless nights. it is a very new experience for them”.^[145] Another highlighted other negative aspects of the process for victims: “[it is] confusing. with both sides arguing on points of law and requesting adjournments [and] painful. [the] bringing up of painful memories”.^[146]

However in their responses to the question of whether the aim of extracting better evidence had been achieved (see below), the support people inferred that the trials post-amendment have been less traumatic or at least less fear-provoking for victim witnesses.

There were mixed responses from legal practitioner participants as to whether this legislative aim has been fulfilled, although many noted that the changes have not been in place long enough to make full comment.

Not able to say — some witnesses appear more comfortable but that is a very subjective impression.^[147]

I had conducted two sexual assault trials before 1/6/09. In both cases the complainants gave evidence by audio-visual link from a remote witness room. I have not yet presided over a trial under the new provisions in which either pre-trial evidence or a police interview was admitted instead of evidence given during the trial, so I'm not in a position to assess trauma levels under new and old schemes, but in my limited experience every complainant reacts differently and it would require one to hear a lot of such cases before generalisations could be made, which would be in the nature of whether people seem more or less distressed at eg a police interview than they used to be at the time of the trial.^[148]

The primary theme that arose from the question about the effect of the legislation was that the reforms have the potential to be effective:

I think that witnesses often have a real fear of being in the same room as the accused. This has now improved. They appear to feel safer in giving the evidence from a distance.^[149]

... the change to paper committal proceedings removes the need for complainants to give evidence both at committal and trial, which is a significant improvement. The ability for sexual assault witnesses to give pre-recorded evidence also helps to alleviate the trauma associated with lengthy delays, although the need to establish trauma or distress as a criterion places a limitation on the utility of this provision.^[150]

Many more people are entitled to CCTV and pre-trial hearings which make people much more comfortable about giving evidence. Some people have stated they would not have given evidence if they didn’t have CCTV.^[151]

Victims are more willing to engage in the Criminal Justice System knowing that special provisions are now made for them.^[152]

However, prosecutorial and judicial discretion may mean that special provisions are not used enough for adult, non-disabled victims:

Pre-recording is a real positive, if only it could be utilised more often.

This means that although more victims might feel encouraged to engage with the system, and are no longer discouraged by their committal experiences, a substantial proportion of adult, non-disabled victims are not experiencing the significant benefits of some of the special provisions.

Whilst not prejudicing accused's right to a fair trial

It must be noted too that although the amending legislation aimed to reduce the trauma of a trial for victims of sexual assault, this was to be done without prejudicing the accused’s “right” to a fair trial. The judicial officers surveyed were confident that this right had been maintained despite the changes, although, again, they were careful to explain that there have not been many trials to test it:

An accused has a right to a fair trial. The changes have not derogated from that right.^[154]

I haven’t observed any threat to this right, but as indicated have only conducted a handful of relevant trials.^[155]

The legal practitioners were less confident. Interestingly, all defence practitioners surveyed indicated that the accused’s right to a fair trial had been eroded to some extent:

I think it has eroded some aspects of the fair trial. A jury should be able to see the witness completely and not via TV. Most cases are word on word and body language is so important to assess credibility.^[156]

It’s early days, but I am concerned that the testing of a young complainant’s testimony has been compromised when (as is in practice usually) there is a long delay between police interview and defence counsels opportunity to cross-examine.^[157]

There is a distinct disadvantage to the accused in the complainant giving evidence other than before the court.

There is a significant danger that treating the evidence of the accuser in this way will be unfair as there is a danger of a perception arising that the accused is guilty — it flies in the face of the presumption of innocence.^[159]

The opinion of the one legal practitioner who worked as a prosecutor was in line with those of the judicial officers surveyed: that the accused’s rights were maintained despite the changes.

Aim: Extracting best evidence possible

Yet another aim of the legislation was to “extract the ‘best’ evidence possible from witnesses who may otherwise suffer a disadvantage”.^[160] The overall response from judicial officers and legal practitioners to the question of whether this aim had been fulfilled was negative:

No — [it is the] same evidence — just taken differently.^[161]

It’s too early to say. However I doubt it.^[162]

No. The changes allow less effective challenge to a complainant and thereby degrades the overall quality of the evidence before the court. Diminishing the testing of evidence diminishes its quality.^[163]

No — it is much harder to appear “real” on a TV.^[164]

However, again, the legal practitioner responses differed between those who worked as defence counsel and those who worked for the DPP. The one participant from the DPP stated:

The changes have not been in place long enough to make full comment in relation to this. Certainly, the ability for witnesses to give evidence early is likely to improve the quality of evidence as it is given closer in time to the offence than might otherwise be the case.^[165]

The victim support personnel surveyed all agreed that the changes made to the legislation did improve the quality of the victims’ evidence as victims are (potentially) able to give evidence sooner and are less fearful when they do have to give evidence:

[The evidence is improved] in relation to people recalling their evidence so far after the event.^[166]

...

. the addition of the off-site room means victims are less fearful prior to giving evidence as they no longer have the fear of facing the offender or his supporters in the court precinct.^[168]

One judge though believed that the view of a witness in the courtroom appearing stronger than a witness on a television screen continues to exist, despite research that suggests that the presence (or not) of the witness appears to have no effect on conviction rates.^[169]

Conclusion

The Evidence Amendment Act 2008 (Cth) came into force at around the same time as the Sexual and Violent Offences Legislation Amendment Act, and amended the Commonwealth Evidence Act. This Act also aimed to reduce the trauma of a trial for victim witnesses by amending the Evidence Act 1995 (Cth), with section 41, which now makes it mandatory for judicial officers to intervene where they are of the opinion that a question put to the victim witness is “improper”.^[170] The amending Act also broadened the definition of improper questions, and now includes questions that are “misleading or confusing... unduly annoying, harassing, intimidating, offensive, humiliating or repetitive. belittling, insulting or otherwise inappropriate”.^[171]

All judicial officers surveyed stated that the changes to the wording of section 41 have not resulted in them disallowing more questions. One judicial officer provided an interesting explanation for the lack of change on his behalf: “I am always a little conscious that the Appeal Court is not necessarily composed of judges who understand the need to protect witnesses”.^[172] One legal practitioner stated: section “41 does provide a useful mechanism to challenge inappropriate questions, and I do rely upon it when necessary”.^[173] However, all legal practitioners surveyed confirmed the view that more questions are not being disallowed as a result of the changes.

It is therefore fair to assume that any reduction in trauma for victims of sexual assault in the ACT can be attributed to the changes made by the Sexual and Violent Offences Legislation Amendment Act.

Our findings show that although some of the provisions such as CCTV and support people are strictly applied and working well, a number of the provisions for adult victims of sexual assault who are not intellectually impaired are very indeterminate and are being interpreted differently by different judicial officers and prosecutorial personnel. Further, these victims are required to demonstrate vulnerability or distress in order to be eligible for some of the protections. The prosecutor must perceive the victim as vulnerable before informing them and making an application, and then introducing further hurdles such as obtaining expert reports for the trial in order to convince the judicial officer.

Although judicial officers said that they would make an equal assessment of victim and offender rights when determining whether to close the court, lawyers reported that these orders are rarely sought and rarely made, despite our findings that victim witnesses would nearly always prefer it. The provisions providing for the use of screens in court are also reportedly rarely used in practice, despite the reported benefit to victims, and in one case, screens were not available even though the victim asking specifically for them. It is unclear from our study why these provisions are not being used, but as a result, they are not having their intended effect of protecting victims from further trauma.

Our findings suggest that the pre-trial hearing process also provides many benefits for victims of sexual assault. However, there appear to be some issues with the process before this. These issues are resulting in the section not being utilised as often as it could be. Both victim witnesses in our research were not able to experience the benefits of a pre-trial hearing because they were either not informed that it was an option, or were convinced that giving evidence in court would be better for “their case”. Perhaps these issues are just “teething problems” and will be overcome with time. However, there is evidence in these findings that societal views about vulnerability and the manner in which evidence is given are affecting the implementation of this section. This means that victims who do not conform to the societal view of normal or “real” rape may not be perceived as especially vulnerable and therefore slip through the gaps and be left unprotected by the legislation.