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- 5 December 2002
Child Sexual Assault Prosecutions
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Page: 7957
The Hon. RON DYER [2.50 p.m.]: I take this opportunity to make some brief remarks regarding the Standing Committee on Law and Justice report on child sexual assault prosecutions. These prosecutions have markedly lower success rates than other criminal offences. Conviction rates for child sexual assault where the accused pleads not guilty and contests the trial stand at approximately 20 per cent. The committee's inquiry set out to investigate the causes of the low conviction rates for child sexual assault, and to determine what factors were increasing the stress and anxiety experienced by complainants. The committee sought to identify means of improving success rates for prosecutions and removing the causes of distress.
According to studies, child sexual assault victims consider seeing or being seen by the perpetrator in the court room as the most disturbing aspect of pursuing a complaint. Children are particularly distressed when a lack of alternative waiting areas requires them to wait in close proximity to and in view of the defendant. Two of the committee's recommendations aim to eliminate the possibility of the child and defendant crossing paths in the course of the prosecution, that is, with pre-trial recording of evidence and the pilot project for a specialist court.
The use of intimidating and confusing questioning of child sexual assault complainants is another cause of stress. While the mechanism exists to enable judicial officers to intervene in unfair, intimidating or confusing questioning, such intervention rarely occurs. This highlighted a need for the training of judicial officers to increase their understanding of children's development, language and memory, and so overcome the disinclination to intervene to prevent harsh or confusing cross-examination of children. Such training would be a vital part of the trial specialist court. The committee also advocates a new provision of the Evidence Act that would make clear the role of judicial officers in controlling inappropriate questioning of children.
Court delays were uniformly seen as a significant source of distress for child sexual assault complainants. Court delays can also have an impact on the success of the trial, since a long delay can result in the diminishing of the complainant's memory of the details of the offence. This situation can be exploited by the defence during cross-examination, so the delay often contributes to prosecution failures. A provision to admit pre-recorded evidence of child complainants, as recommended by the committee, would be an effective means of overcoming the disadvantages created by court delays.
It was disturbing to hear that, despite their value in reducing the anxiety of child witnesses, special measures such as closed circuit television [CCTV] are not universally employed in child sexual assault trials in New South Wales. For example, in committal hearings some two-thirds of children required to appear were denied the use of CCTV. For cases that went to trial, 43 per cent of children were refused the use of CCTV. The reasons for not using special measures are unsatisfactory and include faulty equipment, court staff being unable to operate the equipment, double-booking of equipment, and judicial officers being unaware of the provisions relating to the use of special measures. The introduction of a specialist court, with judicial officer and court staff training and high-quality electronic facilities, would overcome a great deal of the identified problems.
A final obstacle to conviction that I wish to mention is the provision of judicial warnings. Several specific jury warnings are particularly relevant in child sexual assault trials: the Crofts warning, relating to the credibility of delayed complaints of sexual assault; the Longman warning, focusing on the difficulties for the accused in cases of delayed, uncorroborated complaints; the Murray warning, concerning uncorroborated evidence; and the warning under section 165B (2) (a) of the Evidence Act, relating to the reliability of child witnesses. These were the subject of criticism during the inquiry, largely because they do not reflect current research about typical responses to child sexual assault and the reliability of child witnesses.
The committee recommends a number of changes to the jury warnings that may be given in child sexual assault trials. These changes seek to ensure that warnings are based on current scientific knowledge, rather than on the misconceptions and prejudices that have been the basis of jury warnings in the past. It is the committee's belief that the reforms to the criminal justice system recommended by the committee in this report can be implemented without undermining the legitimate rights of the accused. I thank Ms Tanya Bosch, the committee director, for her outstanding legal research and drafting of this technical and detailed report. I wish her every success in her future career.
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