In sexual assault trials, victims are often re-traumatised by the cross-examination received at the hands of defence barristers. This issue has been brought to the fore by Tanya, the woman who endured assault at the hands of disgraced One Nation adviser Sean Black, who waived her right to anonymity, in order to speak out about her gruelling experience in her ex-husband’s trial. [1]
Although Black was successfully convicted, Tanya said the trial was, in many ways, as traumatic as the crimes she endured, with Tanya facing over 12 hours of cross-examination. During this time, she suffered panic attacks and was forced to rush from the witness stand to vomit. [2]
Tanya, coming forward about her traumatising court experience, has renewed calls for legal reforms to protect the victim in such trials. Lawyer Julie Sarkozi from the Queensland Women’s Legal Service has argued that the experience of victim such as Tanya should be “the foundation of legal reforms”, with “Tanya’s experience [showing] the need” to introduce expert witnesses and lawyers to represent victims in court. [3] Sarkozi also suggested that there should be time limits on cross examination, as well as the use of a ‘victim’s advocate’ to support the victim. [4]
As Annie Cossins, a Faculty of Law Professor at the University of New South Wales, has written, it is common for juries to rely on a range of misconceptions based on “gender stereotypes” when determining the “credibility of sexual complainants and rendering verdicts”. [5] These “misconceptions” are likely to, at least in part, account for the “high attrition and low conviction rates in sexual assault trials”. [6] Expert witnesses could be used to overcome some of these misconceptions, being able to explain to a jury the psychological effects of trauma, thereby contextualising the victim’s response to questioning. [7] Because juries will be aware of the strict requirements for somebody to be classified as an expert witness, any jury doubts about the “reliability” of expert evidence regarding the psychological effects will be mitigated. [8]
At present, the Australian common law applies strict limits on when expert opinion evidence will be admissible in sexual assault trials, with it being “generally inadmissible on the grounds that the behaviour of victims is within the common knowledge of jurors”. [9] Thus, in order for expert witness evidence to be able to be adduced in court for the protection of victims of sexual assault, sweeping reforms in the Australian legal system will be required.
References:
[1] Josh Robertson, Ex-wife of former One Nation adviser says being grilled over her rape ‘re-traumatised’ her (17 July 2018) ABC News, <http://www.abc.net.au/news/2018-07-17/ex-wife-of-former-one-nation-adviser-shares-rape-trial-trauma/9994238>
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Cossins, Annie (01/01/2013). “Expert Witness Evidence in Sexual Assault Trials: Questions, Answers and Law Reform in Australia and England”. The international journal of evidence & proof (1365-7127), 17 (1), p. 74.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid, 100