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

27/09/2007

President Michael Slattery QCï¿½appeared onï¿½three radio programmes yesterday,ï¿½in responseï¿½to the NSW Governmentâs request to change the Barristers' Rules regarding sexual assault trials. Theseï¿½included ABC 702 Breakfastï¿½atï¿½07:11am andï¿½2UE Breakfastï¿½at 07:20am.ï¿½

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.ï¿½ It's a very difficult thing to do.ï¿½On the other hand there'sï¿½a fundamental problem: the court systemï¿½[has] to sort out those who are genuine victims from those who are not.

It's done by a process of testing evidenceï¿½and 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 oneï¿½which has to decide upon a contest of evidence.ï¿½

SANDI ALOISI:ï¿½Yes, would it be right to say though that some barristers have been guilty of intimidating rape victims in the court room?

MICHAEL SLATTERY:ï¿½Well, can I put it this way?ï¿½ 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.ï¿½ And there are very, very few complaints. The direct hard evidence ofï¿½complaints 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.ï¿½ But you've got to understand that the contest has to take place.ï¿½ Many of the sexual assault trials, for example, involve children, or people who were children when the assaults are alleged to have occurred.ï¿½They may have taken place 20 or more years ago.ï¿½Sometimes sexual assault allegations are made in the course of a family breakup or separation.ï¿½There are all sorts of motivational issues that arise there.

The court system and juries and judges have got to sort that out.ï¿½ And they can only do itï¿½[by] testing of the evidence.ï¿½ It's got to be done sensitively.ï¿½

Aï¿½few of the proposals that are being put up have got practical problems attached to them.ï¿½ They're very hard to implement, and that's our concern.ï¿½ 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.ï¿½ Now, pure harassment is currently improper and judges should rule it out now, and no responsible barrister would engage in it.ï¿½ 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.ï¿½Frankly, 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.ï¿½ And the reality is not every allegation is true.

Let'sï¿½focus on two things.ï¿½ The rights and dignity of genuine victims, and the rights of a fair trial for the accused.ï¿½ They're the two things that have got to be balanced.ï¿½ 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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