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According to merit : Stop fishing around

Every Issue

Cite as: (2003) 77(8) LIJ, p.90

An urgent review of committal proceedings in sexual assault cases is needed.

In an attempt to protect victims of sexual assault from unfair treatment within the criminal justice system, the law has undergone many changes. Despite these moves, “many victims of sexual assault do not believe that the legal system will treat them justly” and it is this fear that “contributes to low reporting rates for sexual assault”.[1]

The committal proceeding is just another example of this unjust treatment.

The purpose of a committal proceeding is to determine whether the prosecution has evidence of sufficient weight to support a conviction for the indictable offence(s) with which the defendant has been charged. It proceeds by way of a hand-up brief which contains the statements of witnesses, the record of interview, medical reports and photographs. The defence must seek leave to cross-examine any of the witnesses (including the victim) whose statements are contained in the hand-up brief.

The prosecution can oppose an application to cross-examine the victim but this, in my opinion, does not happen frequently enough.

It is at this point that the committal proceedings are, in some cases, being abused, especially when the defendant has been charged with a sexual offence. Often the reasons given by the defence for seeking to cross-examine the victim (usually female) are that her behaviour before, during and after the assault and any consumption of alcohol or drugs are relevant as her evidence on these topics may conflict with the events described by the accused or by other witnesses.

Under sub-ss13(4) and (5) of Schedule 5 of the Magistrates’ Court Act 1989, leave may be granted if the Court finds that the evidence sought by the proposed questioning has substantial relevance to the facts in issue and that the case for the prosecution has not been adequately disclosed, the issues adequately defined, or both. The relevant terms here are “adequately” and “substantial”. There is no obligation on the prosecution to reveal every minutia of evidence to the defence.

Many lawyers gasp when it is suggested that committal proceedings should be done away with. They are quick to reply that the accused should have the right to face his accuser. But that is why there is a trial.

The purpose of the committal is to adequately disclose and define the issues. It ought not to be used as an opportunity to try and trick the victim into making errors that are designed to destroy her at trial. A traumatised victim with no courtroom experience is an easy target for a well-seasoned advocate. Also, the added trauma of having to relive the sexual assault can create uncertainty in a victim’s mind and dissuade her from wanting to give evidence at trial.

The committal process often provides the defendant with an opportunity to manipulate the system in a way that was not intended, resulting in the further abuse of the victim.

The hand-up brief contains the prosecution’s version of events at its highest. It should simply be a matter of a magistrate reading the hand-up brief and making a determination as to whether there is enough evidence to support a conviction.

Let us stop pretending that a committal is to determine whether there is sufficient evidence to support a conviction and let us call it what it is – a fishing expedition.

Victorian Law Reform Commission chair Professor Marcia Neve was quoted as saying that “some lawyers say if a friend or child of theirs was sexually assaulted, they wouldn’t report the crime because they understand how the system works”.[2] What does this say about the system currently in place? It says it is not working.

Given that there is no need for a committal in most instances as the hand-up brief is sufficient, why proceed with it? This compounded abuse of the victim must stop. The only way of clearly illustrating the genuineness of the law in protecting victims from unfair treatment is to largely do away with committal proceedings and refuse to allow the cross-examination of victims, except perhaps for when identity is at issue.


SUSAN BORG is a barrister and a sessional member of the Victorian Civil and Administrative Tribunal.

merit@liv.asn.au


[1] See Victorian Law Reform Commission, Sexual Offences: Interim report, 9 May 2003, p148.

[2] Jeremy Kelly, “Call for sex court” Herald Sun, 5 June 2003, p13.

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