JUDGES, magistrates and the legal profession need to consider whether cross examination of vulnerable sexual assault victims involving “a form of harassment” is acceptable in contemporary Australia, the child sexual abuse royal commission chairman has said in a major speech.
“Defence counsel are in a position of control and power and have the capacity to confuse, intimidate and manipulate vulnerable witnesses. As a community, we must ask whether this situation remains acceptable,” Justice McClellan told the Judicial College of Victoria in a speech on Friday.
“In many cases, and we have all observed it, rather than concerned with uncovering the truth cross-examination becomes an attempt to confuse the witness, amplify any peripheral errors they make and deter them from maintaining truthful testimony.”
A criminal justice system viewed by the public as a “sophisticated lawyers’ game” can act as a “positive discouragement” for survivors of child sexual abuse or sexual assault victims, he said.
“If the system does not have truth as its fundamental objective, but is seen as a sophisticated lawyers’ game, they (abuse survivors) want no part of it,” Justice McClellan said after more than three years of interviewing child sexual abuse survivors and conducting public hearings across the country.
The speech, delivered between two Newcastle public hearings into how the Anglican and Catholic churches responded to allegations of child sexual abuse in the Hunter region over decades, challenged accepted legal views of the adversarial system and cross examination.
Justice McClellan quoted a legal text stating that “Effective cross-examination may involve a form of harassment. It may cause embarrassment. However, it may be justifiable nonetheless.”
“It is incumbent on all of us to reflect on these words in the context of a trial involving an immature or traumatised, or otherwise vulnerable complainant,” Justice McClellan said.
“Reasonable minds may differ on what constitutes harassment, embarrassment or even what is considered justifiable.”
He quoted retired NSW Chief Justice Jim Spigelman, who viewed the adversarial system as “one of the greatest mechanisms for identification of truth” in courts while still a barrister, but who changed his mind after years as a judge.
“The public will never accept that ‘justice’ can be attained by a forensic game. The public require a system dedicated to the search for truth, subject only to the fairness of the process,” Justice Spigelman said.
The royal commission is examining ways to help sexual abuse complainants in the criminal justice system.