Page 3526 - Week 09 - Thursday, 21 August 2008
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In their submission regarding this bill, the ACT Human Rights Commission states:
The Commission accepts that criminal proceedings involving sexual offences justify a restriction on the rights of the accused to defend themselves to the extent they are prevented from cross-examining the complainant directly. This is because there is extensive research that documents the extent of psychological and emotional harm that is caused to the complainant from cross-examination by the accused … To extend the provisions to “violent offences”, however, may not constitute a reasonable restriction on the human rights of accused.
I agree with that. In some circumstances the damage that could be done to a complainant, in both sexual and non-sexual assault hearings, if cross-examined by the defendant warrants such a restriction. However, this is not the case in all proceedings of this nature, which is why my amendment gives the court the discretion to decide if a defendant defending themselves should be allowed to cross-examine the complainant. The Human Rights Commission has noted:
Western Australia gives the court a discretion (rather than mandates it) to make various orders in relation to the manner and form of an accused’s cross-examination of a witness, including, if necessary, the power to direct any questions to be passed to the witness via the judge or other approved person.
This is what my amendment echoes. The prime thing is to allow the court to make a decision based on each particular case. I hope that members note that it does not mean the accused necessarily cross-examines directly the witness, which I am sure was at the heart of the government’s concern.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services) (8.47): The bill currently prohibits absolutely a self-represented accused from personally cross-examining vulnerable witnesses in sexual assault or violent offence proceedings. The prohibition maintains the right of the accused to cross-examine these witnesses through legal representation. Dr Foskey’s amendment No 2 would remove the absolute prohibition and provide the court with the discretion to determine whether the self-represented accused would be entitled to cross-examine a witness directly or not. The government remains committed to removing the potential for an accused to use cross-examination to re-traumatise their victims and other vulnerable witnesses. The importance of the prohibition in relation to sexual offence proceedings is widely recognised in most common law jurisdictions, including the other states and territory.
The unique nature of sexual offence proceedings is such that questions dealing with matters of considerable intimacy relating to sexual approaches, details of sexual acts and the aftermath may have to be put to an alleged victim. As these questions are likely to cause the alleged victim to feel demeaned or humiliated, requiring or allowing for the accused to put these questions personally offends the proper administration of justice in ensuring everyone enjoys the rights and obligations recognised by law. Sparing victims this ordeal not only will ensure that victims are treated with the respect and dignity they deserve; it would also potentially increase the accuracy of evidence they give during cross-examination.
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