Should defendants be allowed to directly question complainants?

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Almost every state and territory in Australia has laws which prevent an unrepresented defendant charged with sexual assault from directly examining the complainant; although in some jurisdictions it only applies to child complainants and witnesses.

Tasmania is the only state that does not have any such restrictions on the questioning of complainants by an unrepresented defendant.

Does this hinder a defendant’s right to a fair trial?

The reasoning behind preventing defendants from questioning complainants is to protect the latter from undue stress or humiliation.

It is argued that a defendant’s choice to personally cross-examine the complainant is sometimes a deliberate tactic designed to intimidate them, and concerns have been raised that the possibility of having to confront their accused attacker may deter complainants from reporting offences in the first place or showing up to court.

But of course, not all defendants choose to be unrepresented – in fact, there are a significant number of people who cannot afford to pay a private lawyer but aren’t eligible for legal aid. And the constant cuts to legal aid are making it harder and harder for those with limited incomes to get legal help.

Those who find themselves in this ‘gap’ may be left to represent themselves against a well-resourced prosecution.

There are indeed a portion of people who, for whatever reason, feel that they can protect their own interests better than a criminal defence lawyer. They may have had bad experiences with lawyers or simply do not trust them to fight hard for their freedom. They may well be innocent and may even get a sense that their lawyer does not believe them.

In any event, there is an argument that taking away a defendant’s right to question witnesses amounts to denying them a fair trial.

NSW law:

The law preventing defendants from personally questioning complainants came into force in 2003.

Section 294A of the Criminal Procedure Act 1986 NSW prohibits an unrepresented defendant from examining a complainant. Instead, this can only be done by a “person appointed by the court”.

This person who can only ask the questions that the defendant wants them to ask, and they cannot give the accused person any legal advice.

The legislation aims to create a balance between sparing a complainant from being questioned by the accused, while at the same time allowing the defendant to test the evidence of the complainant, albeit through a third party.

However, it has been argued that the procedure is cumbersome and does not allow for effective cross-examination because, for one thing, the complainant will have lot more time to consider and answer the questions. The style will be broken and sporadic, and there may be miscommunications between the defendant and their mouthpiece.

All of this can not only be frustrating, but more importantly can make it a lot more difficult to mount a successful cross-examination; and a weak cross-examination of the complainant can mean the difference between a ‘guilty’ and a ‘not guilty’ verdict.

Beyond sexual assault?

In several Australian jurisdictions, prohibiting defendants from questioning witnesses and complainants extends beyond sexual offences.

In Queensland, unrepresented defendants are not allowed to interview ‘protected persons’. This category includes children under 16, people with a mental impairment, and any complainant in a case involving wounding, assault, kidnapping and burglary.

The prohibition in Western Australia is wider still. Under the Evidence Act WA, judges have the discretion to prevent an unrepresented defendant in a criminal trial from asking questions directly to any witness, regardless of the offence that is charged.

When makings the decision, the WA judge must consider the nature of the charge, the wishes of the witness and the availability of any necessary facilities and equipment; such as video-link facilities in another room.

While all of this may be good news for complainants, it is certainly not for innocent defendants who are trying to fight for their freedom.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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