Proposed new sexual assault law takes away a 400-year-old right to defend yourself in person in court, introduces secret trials, and is farcical in relation to some ill-thought-through provisions. It needs major review, partly because many problems it aims to fix are actually caused by poor police and prosecution briefs of evidence. Details are in CLA’s letter to the ACT Attorney-General

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6 July 2008

 

 

Simon Corbell MLA

Attorney General

ACT
Legislative Assembly
GPO Box 1020
CANBERRA ACT 2601

 

 

Dear
Attorney-General

 

I write to you in relation to the Sexual
and Violent Offences Legislation Amendment Bill 2008
(the Bill) which you
tabled in the ACT Legislative Assembly on 3 July 2008.  As you are aware, Civil Liberties Australia
(CLA) has had a strong interest in this piece of legislation since its
development was first foreshadowed some time ago.

 

 

As you will recall, myself and director Mr Lance Williamson,
accompanied by member Ms Jennifer Saunders, met with you on 28 February 2008 to
discuss the Sexual Assault Reform Report. 
At the time we were concerned at the imbalance in the reference group
consultation process with virtually all of the 60 odd consultations being with
the victims of crime, or law enforcement — clearly a distorted and one-sided
engagement.  We sought to provide some
balance in the drafting process for the Bill to overcome the imbalances that
would invariably be incorporated into a one-sided consultation process.

 

Clearly, in tabling the Bill, the opportunity has been taken to polarise
the debate in support of the Bill’s content. 
This is unfortunate, given the bias process that underpinned its
development.  As such, we consider it
necessary to now engage more broadly in the debate about the Bill even though
we have had little time to consider its broader consequences and you have yet
to write to us on it as promised.  Also,
there appear to be some elements within the draft Bill that could be designed to
distract debate from the main issues incorporated into the Bill.

 

I now turn to the substantive provisions of the Bill.  While Civil Liberties Australia has not yet
had an opportunity to fully digest the Bill, the following represents our
preliminary comments:

 

Right to conduct a defence in person

Section 38C of the Bill will impose a mandatory prohibition on a
defendant from cross-examining a witness in relation to the prosecution of a
number of minor crimes, including common assault and minor indecency
offences. 

 

This provision clearly contravenes the right to defend oneself in
person, and its corollary, the right to resist the imposition of unwanted
counsel in the conduct of a criminal trial. 
The right to defend oneself in person was first enshrined in the Treason Act 1695 (UK), some 400 years
ago, as a response to the injustices of the notorious “Star Chamber”
inquisitions.  It is recognised as a
fundamental right, embedded in common law, and enshrined in a number of notable
human rights instruments including the International Covenant on Civil and
Political Rights, the American Convention on Human Rights, the European
Convention on Civil and Political Rights and the Bill of Rights to the United
States Constitution.  It is also
recognised in section 22(2)(d) and (g) of the ACT Human Rights Act 2004. In recent times the United States Supreme
Court, the United Nation Human Rights Committee and the United Nations
International Criminal Court have all upheld the importance of the right to
defend oneself in person and be free from the imposition of unwanted counsel.[1]

 

Civil Liberties Australia recognise that rights are not absolute, and
that it would be reasonable to limit a defendant’s ability to cross-examine a
rape victim or the victim of a kidnapping or brutal assault given the trauma,
intimidation and humiliation that such an examination might entail. 

 

However, there is simply no good reason why a defendant’s right to
cross-examine a witness in a minor common assault matter, where the victim
would not be traumatised by cross-examination by the defendant, is being
overthrown.  For example, if a female
protester engaging in peaceful civil-disobedience was to slap a male police
officer’s hand out of the way in an effort to resist arrest, that protester
would likely have committed a common assault and would not be able to
cross-examine that police officer in court. 
Are you seriously suggesting that the police officer is so vulnerable
and prone to intimidation by that protester in the circumstances described that
it would be necessary to abrogate that protestor’s 400-year old right to
represent herself in person?

 

Similarly, consider the hypothetical case of a number of law students
at a university who, whilst intoxicated as part of campus festivities, run
naked through the campus.  They would be
liable to be prosecuted for an act of indecency without consent, and if they
chose to defend themselves in person (as a law student may well do for such a
minor offence), section 38C of the Bill would prevent them from questioning
anyone who may be called as a witness who saw them running naked.  Again, the Bill has determined absolutely
that the witness is so vulnerable and prone to trauma in the circumstances
described that it would be necessary to deny the law students of their right
under section 22(2) of the Human Rights
Act. 
Such a limitation on the
defendant’s rights would clearly be absurd and unnecessary in those
circumstances.

 

In applying section 38C to minor offences such as common assault or
minor acts of indecency, the Bill goes further than any equivalent provision in
any other Australian jurisdiction, or indeed, as far as I am aware, any other
country with a comparable legal system. 
In its current form, section 38C could be fairly described as being
extreme and “legislative overkill”. 

 

In order to make it reasonable and justifiable under section 28 of the Human Rights Act (which clearly it
currently is not), Civil Liberties Australia asks that you either amend it to
only apply to the most serious of offences in which a victim would be in
genuine need of protection (such as rape, kidnapping or a serious assault), or
alternatively, amend it to provide that a Magistrate or Judge has a discretion
to prevent a defendant from cross-examining a witness when it appears that the
witness is vulnerable and in need of special protection.

 

 

Video Evidence

As discussed at our meeting on 28 February 2008, CLA supports processes
that reduce the anguish on alleged victims through electronic recording of the
complaint which can be made available to all parties through the committal
process. While supporting the video conferencing of evidence provisions in the
Bill, we have concerns about how that conference is conducted which we
discussed at our meeting.  We would like
to reiterate our view that it is important for the jury to see the full
demeanour, body-language and mannerisms of a witness who gives evidence via
electronic means

this can play an important role in how a jury assesses a witness’s reliability
and credibility, and are characteristics that will be observed when the
defendant gives his or her evidence.  We
ask that you make appropriate amendments to the Bill to ensure that this occurs
when video evidence is taken.

 

Similarly, we support the use of well trained child communicators.

 

Police and Prosecutorial Practices

The Bill has a clear focus on the court process with no acknowledgement
that a significant weakness in the current processes is the often poor standard
of police and prosecution briefs of evidence. 
Until this is addressed, no amount of legislative amendment will
overcome the current systemic problems in the successful prosecution of sexual
offences.  Your advice is sought on what
the Government is doing to redress these issues?

 

Open Justice

The Bill will amend section 39 of the Evidence (Miscellaneous Provisions) Act 1991 to allow the court to
be closed to the public for sexual or
violent
offence proceedings.  Civil
Liberties Australia cannot see the need for this provision.  We accept that for sexual offences there is a
need to protect the privacy of victims so as to encourage them to come
forward.  But this is already effectively
achieved through section 40 of the Act which makes it an offence for a person
to make a victim’s name or any identifying information public.  In light of this section, the media (or any
other person) is prevented from publicising a victim’s name or intimate
details.

 

In order that justice is done, justice must also be seen to be
done.   A free and vibrant press is
crucial to any democracy.  To allow
secret trials, as this amendment envisages, will give rise to suspicion and
undermine public confidence in the justice system. Closed courts and secret
trials are the hallmark of dictatorships and totalitarian regimes, and not open
and transparent democracies.  There is no
reason why the media should not be allowed to report on a sexual proceeding
provided that they do not disclose a victim’s identifying information.  There is certainly no reason whatsoever why
this provision should extend to ordinary violence offences such as common
assault, as the Bill in its current form provides for. 

 

We note that recent amendments to juvenile justice laws in the Children and Young People Act 2008 will
give the press an explicit statutory right to attend and report on juvenile
proceedings, provided that they do not disclose any information which might
identify a party to the proceeding.  I
urge you to adopt the same approach your Government has adopted with respect to
juvenile proceedings with respect to sexual assault proceedings, and amend the
Bill to provide that where the general public are to be excluded, the press has
a statutory right to attend.  This, of
course, will be subject to the offence of publishing identifying information in
section 40 of the Act.

 

I will be in contact with your office shortly to make an appointment
with you to discuss the issues raised above, and any other aspects of the Bill
which may be a cause for concern, when we have had a reasonable time to
consider the draft Bill.  In the meantime,
your advice is also sought on:

  • the process you now envisage with the
    progression of the Bill given your undertaking to “…introduce the Bill in the Legislative Assembly and leave it lie on
    the table to give organisations like your own a period of time to comment
    on the substance of the Bill.”
    ; and

what other bodies you also intend to consult with in the period the
Bill lies on the table?

I have also copied
this letter to other interested parties for their information.

 

Yours sincerely

 

 

 

Dr Kristine Klugman

President

 

Cc:       Mr John Stanhope MLA –
Chief Minster

            Mr Zed Seselja MLA –
Leader of the Opposition

            Dr Deb Foskey MLA –
Member for Molonglo (ACT Greens)

Mr Richard Mulcahy MLA – Member for Molonglo
(independent)

            Mr Rod Barnett –
President ACT Law Society

            Mr John Harris SC –
President ACT Bar Association

            Ms Jennifer Saunders –
Barrister

 

 

            Ms Megan Doherty,
Canberra Times

            Mr Victor Violante,
Canberra Times

            Mr Crispin Hull,
Canberra Times

            Mr Jack Waterford,
Canberra Times

            Mr Ross Sully, ABC
Radio

            Ms Janene Manwaring, WIN
Television

 

[1] Wheat v. United States, 486
U.S. 153, 159 (1988);
Faretta v
California,
422 U.S. 806 (1975); Prosecutor
v Milosevic
Case No. IT-02-54, 4 April 2003.

 

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