Page 3527 - Week 09 - Thursday, 21 August 2008
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Complainants in violent offences suffer from the same vulnerabilities commonly recognised as unique to sexual offences. Violent offences invariably involve a power imbalance between the two parties in favour of the alleged offender. For example, in offences such as torture or abduction the offender often obtains a degree of power or dominance over the victim, leaving the victim fearful or intimidated and often feeling ashamed or embarrassed. In the government’s view it is inappropriate that an accused should be able to gain any advantage out of this relationship that may be conferred by personal confrontation and personal cross-examination.
Experience has shown that the powers which the courts have to control their courtroom in relation to forbidding or disallowing questions which appear to be intended to insult, harass, intimidate or annoy are used sparingly. In cases where an accused is self-represented the courts may be reluctant to control cross-examination because of the need to be, and be seen to be, fair to an accused person who is unfamiliar with legal procedure. It may also be difficult for the court to detect words, gestures or body language which were a feature of the relationship between the complainant and the accused which could be used by the accused to intimidate the complainant during cross-examination.
For these reasons, the government is determined to ensure that the accused is not provided with the opportunity to gain an advantage over a complainant or other vulnerable witnesses, and we will not be supporting these amendments.
MR STEFANIAK (Ginninderra) (8.50): Nor will the opposition, although it is a rather vexed issue which Dr Foskey rightly raises. Historically, it was probably about 150 years ago that we started having defence counsel representing the accused. The practical facts of the matter are pretty much as the attorney stated. He made the good point that the courts do—and rightly so—bend over backwards to assist unrepresented people with their case. They will give them a lot a more latitude than is given to a legal practitioner. In terms of violent crimes, and especially sexual crimes, that could be a problem.
The other practical thing here is that I cannot recall—I have probably been out of it for about 13 years—in the last 30 years someone representing themselves in a serious sexual assault case. Invariably, they are represented, often by legal aid or often by the private profession. I am really scratching my head to think of anyone who has represented themselves in such cases. Having appeared in a lot of cases—and I still go to court and watch cases when I can—I know that you do get the odd self-represented defendant in areas, but it does not tend to be in this area. So it may not be quite the same practical problem.
I express a word of warning here. This is an area that we do need to watch and see how it goes. Historically, a person does have the right, no matter how bad they are, to represent themselves. With other checks and balances, maybe there is a way that you can do it. I can think of some horrendous cases where it would be just unconscionable to allow an accused who has absolutely monstered some poor victim to put the victim through further trauma by cross-examining them. Certainly, there have been instances where self-represented defendants have attempted to monster people when representing themselves in other types of matters. I think the attorney raises some
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