Fair trial concerns about Government proposals to ease trauma on sexual violence victims

Parliamentary Under-Secretary for Justice Jan Logie has outlined a series of proposals to ease the trauma that the justice system can have on victims of sexual violence. Photo / Lewis Gardner

The Government will change the law to allow victims of sexual violence to avoid being cross-examined in front of a jury and make it harder for their sexual tendencies and fantasies to be used as trial evidence.

The changes are aimed to prevent victims being retraumatised by the trial process, but they have raised concerns from the legal profession, particularly from defence lawyers, that they would impact fair trial rights and unfairly hinder the legal defence team.

Justice Under-secretary Jan Logie announced today that a Government bill to implement the changes would be introduced later this year.

The bill would also clarify when judges can intervene in an unfair line of questioning, provide more help for witnesses to understand and answer questions, and allow evidence to be recorded to allow it to be used at any subsequent trials, thereby sparing the victim from having to give evidence again.

"Everyone who has been harmed by sexual violence deserves to have justice delivered without going through more, avoidable, trauma," Logie said in a statement.

"We know fear and anxiety about appearing in court and going through cross-examination prevents many people from reporting what has happened to them."

A recent report from the Safe and Effective Justice group found that the criminal justice system often increased distress on victims, who felt "unheard, misunderstood and revictimised".

Different ways of giving evidence, such as by pre-recorded cross-examination or via audiovisual link, would mean that witnesses could avoid being in front of the accused or the jury.

But the Cabinet paper on the reforms noted that the legal profession "expressed strong concerns" around pre-recorded cross-examinations.

Issues included the risk to a fair trial, as defendants would have to "show their hand" prior to trial and lose the ability to tailor questions to the jury's reaction.

New evidence emerging after the pre-record may also require a victim to give further evidence at trial.

Logie said it would be a significant change from the status quo, but the potential to reduce victim trauma warranted the change, and the risks could be managed in designing how it would work.

"They will make a significant difference for victims and survivors of sexual violence while ensuring trials are a fair and robust process," Logie said.

The changes would also mean a complainant's sexual history and sexual disposition - including information about sexual tendencies or preferences, or fantasies in a diary entry - would not be allowed at trial unless a judge decided it was in the interests of justice.

The relevance of such details would be tested, rather than assumed.

Any sexual history between the complainant and the accused would still be subject to normal admissibility rules.

Budget 2019 provided $32.8 million, plus $5 million in capital, to support these changes.

The reforms are in part a response to Law Commission recommendations.