Media briefing: Barristers' Rules and cross examination in sexual assault trials


President Michael Slattery QC�appeared on�three radio programmes yesterday,�in response�to the NSW Government’s request to change the Barristers' Rules regarding sexual assault trials. These�included ABC 702 Breakfast�at�07:11am and�2UE Breakfast�at 07:20am.�

The following is an extract from an interview with Sandi Aloisi on ABC Newsradio.

MICHAEL SLATTERY: All members of the Bar Association are immensely sympathetic to the ordeal that many victims of rape have to go through in giving their evidence.� It's a very difficult thing to do.�On the other hand there's�a fundamental problem: the court system�[has] to sort out those who are genuine victims from those who are not.

It's done by a process of testing evidence�and the reality is that sometimes it can be very difficult. Barristers try to do it responsibly, but it is a process where, if they have instructions to say that these events did not happen, the jury is the one�which has to decide upon a contest of evidence.�

SANDI ALOISI:�Yes, would it be right to say though that some barristers have been guilty of intimidating rape victims in the court room?

MICHAEL SLATTERY:�Well, can I put it this way?� We have a very open complaint system, and the legal services commissioner also supervises the Bar Association through an open complaint system authorised under the Legal Profession Act.� And there are very, very few complaints. The direct hard evidence of�complaints against the Bar is very, very low, actually.

But, that being said, we're still happy to look at this because all improvement is good.� But you've got to understand that the contest has to take place.� Many of the sexual assault trials, for example, involve children, or people who were children when the assaults are alleged to have occurred.�They may have taken place 20 or more years ago.�Sometimes sexual assault allegations are made in the course of a family breakup or separation.�There are all sorts of motivational issues that arise there.

The court system and juries and judges have got to sort that out.� And they can only do it�[by] testing of the evidence.� It's got to be done sensitively.�

A�few of the proposals that are being put up have got practical problems attached to them.� They're very hard to implement, and that's our concern.� We're having a talk with the attorney, but let me give you an example.

One of the suggestions is that counsel should refuse instructions if that would involve harassment of the witness.� Now, pure harassment is currently improper and judges should rule it out now, and no responsible barrister would engage in it.� But sometimes, if the instructions are that events didn't take place the way the alleged victim says they did, then, that's got to be tested, and that can be distressing.�Frankly, if the person is lying it's a humiliating process to be exposed as a liar.

Someone has to sort out the genuine cases from the ones that aren't.� And the reality is not every allegation is true.

Let's�focus on two things.� The rights and dignity of genuine victims, and the rights of a fair trial for the accused.� They're the two things that have got to be balanced.� And we welcome the ideas, but it's important to make them workable, and there's still a bit of discussion to take place on that.

For further information regarding the president's on air comments, contact the Bar Association's **director of law reform and public affairs, Alastair McConnachie.**

27 September 2007

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