Closing the Justice Gap for Adult and Child Sexual Assault by Anne Cossins

Author:Anne Cossins
Language: eng
Format: epub
ISBN: 9781137320513
Publisher: Palgrave Macmillan UK

6.2 The Position in Australia

Compared to E&W, Australia is a federal system, comprised of states and territories, with a Federal Government elected under the Australian Constitution to deal with Federal issues. Unlike E&W, Australia, does not have a Federal Bill of Rights so that Article 6 of the ECHR is not part of Federal law. Only three jurisdictions, Victoria, the Australian Capital Territory (ACT) and Queensland, have enacted Bills of Rights (Charter of Human Rights and Responsibilities Act 2006 [Vic]; Human Rights Act 2004 [ACT]; Human Rights Act 2019 [Qld]). All three contain wording that is similar to Article 6 of the ECHR.

For example, under s 25(2)(g) of the Victorian Act, a defendant in criminal proceedings has the right ‘to examine, or have examined, witnesses against him or her, unless otherwise provided for by law’, which amounts to a qualified right to examine prosecution witnesses but does not stipulate how that examination can be conducted.

Similarly, under s 22(2)(g) of the ACT Act, a defendant has a right ‘to examine prosecution witnesses, or have them examined’, although this right is not similarly qualified. While this provision also does not stipulate how that examination can be conducted, unrepresented defendants are not permitted to personally cross-examine a sexual assault complainant in the ACT, as discussed further below.

Despite the lack of a Federal Bill of Rights, it is clear from Australian common law that the rights of an accused under the fair trial principle are not absolute and are subject to ‘the interests of the Crown acting on behalf of the community’.32 Indeed, the concept of fairness is not fixed and immutable and ‘may vary with changing social standards and circumstances’,33 such that it is inextricably ‘bound up with prevailing social values’.34 The concept of fairness can take into account the interests of the victim,35 including the desirable goal of encouraging victims to report sexual offences to the police, as well as minimising the re-traumatisation experienced by sexual assault complainants during the trial process and achieving best evidence. Thus, protecting complainants from re-traumatisation does not necessarily result in a reduction in the rights of an accused, rather the introduction of a fairer system of justice for all concerned, which is ‘more conducive to eliciting the truth’ (Hoyano, 2015: 107).

In recent times, parliaments and other bodies have begun to accept that the right to cross-examination by the defendant is not an absolute right. For example, since September 2000 in E&W, s 34 of the YJCE Act has prohibited a defendant charged with a sexual offence from personally cross-examining a complainant.36 Similarly, s 35 prohibits a defendant charged with certain sexual offences, kidnapping, false imprisonment, abduction, slavery, human trafficking or child cruelty from personally cross-examining a child witness. In fact, the inroads into personal cross-examination by a defendant can be extended by a court in relation to other witnesses who might be affected by personal cross-examination under s 36 of the YJCE Act. Instead of personal cross-examination, s 38 allows the court to appoint a representative

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.