“The latest awful idea to ‘improve’ our legal system is to use the recorded interview by police of adult sexual assault complainants as the evidence-in-chief at a later trial. Even worse is the call to get rid of cross-examination of these complainants.” Legal columnist HUGH SELBY explains the problems.

A scammer sent a text message, claiming to be my son who had lost his phone and now had a new phone number.

It’s an old scam, recycled because it works often enough as step one to trick the gullible into giving savings to a thief.

Scamming isn’t limited to money-making fraud. It encompasses those who sell false messages of hope. Their target can be individuals or communities.

Examples include those who sell useless food supplements, promise to make Australia great (but call a real hero a traitor), induce punters to bet on the never never, and promote so called improvements to our legal system which, sadly, will bring less, not more, justice.

The latest awful idea (which apparently is supported by the NSW attorney-general) is to use the recorded interview by police of adult sexual assault complainants as the evidence-in-chief at a later trial.

Even worse is the call to get rid of cross-examination of these complainants.

The proponents of these schemes have a strong belief that complainants tell the truth and only the truth. An essential corollary is that the claimed transgressors are therefore guilty, that any claim to the sex being consensual or the complainant lying about their age is an evil lie.

The secondary argument is that because trials are traumatic, the complainant, being so truthful, should be spared the trauma.

Most of those who work in criminal justice – as investigators, as advocates and judges – learn that people tell porkies for many reasons. These include protecting themselves and others, gaining a benefit, and harming others because they are put up to it, or because this is a good way to get revenge for a real or imagined injury. 

Many such liars are easily caught out, but some have the skills to deceive all around them for a long time. 

The reality is that among complainants, those they accuse, and the witnesses each side brings to a court hearing, there is no shortage of liars.

One of life’s lessons as an advocate is to listen and watch as a seemingly good witness is destroyed by an effective cross-examination: shown to be at least unreliable, and at worst a malevolent spewer of untruths.

Any trial must be a serious matter

The high standard of proof – beyond reasonable doubt – in criminal trials is there for good reason. We want to avoid wrong convictions.

Well-intentioned, but poorly conceived, plans to circumvent real witness accountability at trials undermine that standard of proof.

Criminal trials are inherently traumatic because they have to be. The focus upon making it easier for complainants ignores that the accused too is experiencing trauma – and for much longer during the trial than the complainant.

Being found guilty of a criminal offence, particularly a sexual offence, has lifelong consequences that extend well beyond the punishment imposed by the court.

The outcomes of criminal sexual offence trials are close to 50:50 guilty and innocent. This means that half of those accused who go to trial have endured significant undeserved trauma.

Some of those found guilty then successfully appeal. So they have the trauma exacerbated.

But their trauma doesn’t mean, and I’m not aware that anyone has seriously suggested, that an adult accused should be able to give pre-recorded evidence and not be cross-examined.

There are other ways

The NSW attorney-general is reported (see above article) to have said, “We want to help [complainants] give their best evidence by ensuring they do not need to tell their story multiple times and deterring inappropriate and irrelevant questioning in court.”

His prior work experience seems to have focused on civil, especially corporate law. Good for him, but he is not equipped to comment on criminal trial courtroom advocacy or a trial judge’s management of trials.

Good prosecutors and trial judges come down hard on improper questioning of complainants. No further deterrent is necessary.

It is also wrong for him to claim that complainants must tell their story “multiple times”. They tell it to the police. They go over it with the prosecutor who ensures admissible evidence. They tell the jury and the judge via questioning. They are tested on their story and their believability – as they must be.

If there is a retrial the jury gets the audiovisual of their evidence at the first trial. The judge’s leave is required for any additional cross-examination at a retrial.

There are people for whom conviction and jail is necessary: to protect us. They must be prosecuted.

But there are too many for whom the pursuit of criminal sanctions with its highest standard of proof is the wrong path for complainants, defendants, and us. 

It brings complainants no compensation. Victory is empty.

Far better, in many cases, to let complainants choose to sue for compensation in the civil courts: lower standard of proof, lots of pre-trial settlements, money in hand.

For the defendants it costs (as it should), but it’s not a life-long branding.

For us, it’s so much cheaper than the criminal path.

What would you choose?

Former barrister Hugh Selby is the CityNews legal affairs columnist. His podcast series, “Advocacy in court – preparation and performance” is available free on the best known podcast sites.

News all day, every day at CityNewsQBN.com.au.