Has the pendulum of criminal law swung too far in favour of victims? In my view it has and the balance is now out of kilter.
There have been serious erosions in the position of a defendant in criminal proceeding - erosions in the scope of a cross-examination that is allowed, the ability to strenuously test issues of credibility, and to be able to lay a strong foundation in a committal proceeding.
Queensland is slowly following some of the roads travelled by other jurisdictions such as New South Wales and South Australia in adopting some of the limits that those states placed on a defendant in the criminal process.
While we are embracing some of these restrictions we are not taking the opportunity to grasp the safeguards that go with them. We are slowly letting the balance tilt too far. One of the most recent and dramatic examples of this is the limit placed upon an accused person to cross-examine certain classes of witnesses at a committal proceeding.
It is hard to seriously challenge a philosophy that seeks to protect particularly vulnerable individuals who have potentially been the victims of horrendous activity.
All rules generally need to have exceptions. The laws in other states, particularly New South Wales and South Australia, provide sufficient and adequate provisions for cross-examination, or at least a restrictive cross-examination, where in the circumstances of the relevant offence, it is warranted. These jurisdictions protect their vulnerable classes of witness but leave appropriate avenues available to protect the rights of an accused person to a fair process and ultimately to a fair trial. The balance has not been maintained in Queensland.
We have taken the restrictive elements of these jurisdictions but we have not captured the philosophy of the balance that is required. The exceptions to these restrictions limiting a cross-examination of a vulnerable witness enacted in our statutes are significantly more limited than those in other states, not only in their form but also in their practical application.
This may simply be a case of the relevant tribunals feeling their way through a new, and philosophically different, statutory regime, but it also has the effect of shifting the balance away from an accused person. A balance out of alignment in this way can only go towards the further watering down of an already diluted principle - the presumption of innocence.
In the past five years, we have taken significant legislative steps which have had the effect of making the criminal trial process more difficult, and more likely to result in an adverse result for an accused person. The powers of law enforcement authorities to search and seize have been dramatically widened:
- The application of the hearsay rule, particularly in sexual offences, has been diminished and diluted;
- the right to trial by jury becomes more limited every time Parliament sits;
- the ability of an accused to test the evidence of a complainant through cross-examination has become far more limited;
- the members of various classes that are “protected” or “special witnesses” have grown enormously; and
- the availability of a number of defences has become more limited and their application far more restrictively applied.
The majority of the changes that have occurred are based on politically popular principles.
Few want to extend or aggravate the suffering of a genuine victim and nobody genuinely wants to add to the damage that may have already taken place. The prevention of an accused personally cross-examining a complainant in a sexual offence seems sensible to most of us, a notion that a child should generally only be subject to cross-examination once is, in the ordinary courses of events, a reasonable one. However, even good and altruistic statutes can affect that balance of the process.
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