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Cross-examination and Sexual Offence Complainants

Cross-examination and Sexual Offence Complainants

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 18/2003 by Talina Drabsch
The cross-examination of complainants of sexual offences is a contentious issue. In one sense, it may be characterised as a conflict between the rights of a person accused of a serious crime with the rights of an alleged victim who may have already survived an extremely traumatic experience. Alternatively, the issue may be viewed as a question of balance, with the needs of both defendants and witnesses to be taken into account, rather than a zero sum game.

This paper considers the debate surrounding the right of a person accused of a sexual offence to cross-examine the complainant. It considers the various rights of the accused and discusses the experience of complainants in court. It contemplates whether the experience of sexual assault complainants is unique and thus if special protection is required. However, whilst this paper does consider the issues surrounding cross-examination in general, particular attention is given to the situation where the defendant is not represented.

The various offences that are encompassed by the term ‘sexual offences’ are outlined in section 2 (pp 2-4). An overview of cross-examination is provided in section 3 (pp 4-5) followed by consideration of the arguments that have been advanced in support of the idea that the sexual assault complainant’s experience of cross-examination is unique (section 4: pp 5-9). The rights of a victim of crime are briefly considered in section 5 (p 9).

Section 6 examines the relevant laws as they currently stand in New South Wales (pp 9-12). An overview of the law in each Australian jurisdiction (section 7: pp 12-16), as well as a sample of the situation outside Australia (section 8: pp 17-19), is provided to aid comparison.

Three case studies are explored in section 9 (pp 19-21). These are intended to facilitate consideration of some of the dangers inherent in a defendant being entitled to cross-examine the complainant of a sexual offence in person.

The arguments for and against an unrepresented defendant being able to directly cross-examine a sexual offence complainant are canvassed in sections 10 (pp 21-23) and 11 (pp 23-26) respectively.

Section 12 outlines six options for how the law in this area could be reformed (pp 26-29). Finally, the proposed Criminal Procedure Amendment (Sexual Offence Evidence) Bill 2003 is discussed in section 13 (pp 30-31). A copy of the proposed Bill is attached as Appendix A.

Some of the recommendations made by the New South Wales Law Reform Commission in their report, Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials , June 2003, are discussed throughout, with the full text of the recommendations included as Appendix B.