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GPO Box 158 CANBERRA ACT 2601Website:
Simon Corbell
Attorney General
ACT Legislative Assembly
GPO Box 1020
CANBERRA ACT 2601
Dear Mr Corbell,
Sexual and Violent Offences Legislation Amendment Bill 2008
On 21 May 2008, the ACT Human Rights Commission (‘the Commission’) submitted a response to the Draft Cabinet Submission on the Sexual Assault Reform Legislation Amendment Bill 2008. In that response, the Commission acknowledged that despite the lack of reference to relevant human rights jurisprudence, the proposals that dealt with changes to the way in which complainants in sexual assault proceedings were to give evidence were broadly supported by international human rights case law. In particular, the Commission’s response referred to commentary by Stefan Trechsel in his text, Human Rights in Criminal Proceedings,[1]which demonstrated how the rights of the victim could be balanced with the rights of the accused. The Commission notes that the reference in Trechsel’s text was to the decision in SN v Sweden [2]in which the complainant was an 11 year old boy who had been sexually assaulted by the accused.
The Commission recognises that the Sexual and Violent Offences Legislation Amendment Bill 2008 (‘the new Bill’) is significantly different to the Sexual Assault Reform Legislation Amendment Bill 2008 previously commented upon. Specifically, the new Bill significantly expands its application beyond sexual offences to ‘violent offences’. The meaning of a ‘violent offence’ is taken from the Victims of Crime (Financial Assistance) Act 1983 (ACT)which defines ‘violent offences’ as including common assault, assault occasioning actual bodily harm, wounding, acts endangering life or health, demands with threats, murder, manslaughter, robbery and aggravated robbery.
Noting the increased breadth of the new Bill, the Commission is concerned about the proposed introduction of section 38C – which automatically precludes a defendant from personally cross-examining a complainant or similar act witness in proceedings involving
violent offences.[3] Restricting or removing the rights of an accused to cross-examine witnesses conflicts with the rights of an accused to defend himself or herself personally and to examine prosecution witnesses – both of which are contained in ss. 22(2)(d) and (g) of the Human Rights Act 2004 (ACT) (‘HR Act’) respectively. These rights can, however, be subjected to reasonable limits through Territory legislation pursuant to s. 28 of the HR Act. In the view of the Commission, however, the proposed s. 38C as it relates to violent offences does not amount to a reasonable limit on these two fair trial rights in criminal proceedings.
The rights contained in s. 22 of the HR Act stem from corresponding rights contained in Article 14 of the International Covenant on Civil and Political Rights (‘ICCPR’). It is recognised that there is competing jurisprudence on how this set of rights are expressed in practice – and whether or not they are absolute and in what circumstances limitations on them are reasonable. Nowak’s interpretation concludes that Article 6 of the European Convention on Human Rights (‘ECHR’), the equivalent provision to Article 14 of the ICCPR, has the effect that; “All persons charged with a criminal offence have a primary, unrestricted right to be present at the trial and to defend themselves.”[4] He then describes limitations only when waived by the accused in situations where they elect to retain counsel. This position differs to that taken by Trechsel who concludes that the right to defend oneself is ‘relatively absolute’ and that there are situations in which a defence is not carried out by the accused. The only example of this exception given by Trechsel is in sexual assault offences.[5]
Clayton and Tomlinson essentially take the same approach as Trechsel: “The right … to be effectively defended by a lawyer, assigned officially if need be is one of the fundamental features of a fair trial. This provision does not provide an absolute right to choose between defending oneself and obtaining legal counsel but it does preclude a state from forcing a person to defend himself in person. The law of some states precludes the person from acting on his own behalf, requiring that a lawyer assist him with his defence at the trial stage or an appeal. This is not incompatible with Article 6(3)(c) [the equivalent of Article 14 of the ICCPR and s. 22 of the HR Act].”[6] The example relied upon by Clayton and Tomlinson to demonstrate that a law that requires a lawyer to act on behalf of an accused is not a breach of the right to defend oneself is the decision in Croissant v Germany which related to a situation where the accused retained two lawyers and then hired a further three.[7] The Court appointed a fourth lawyer to which the accused objected. The Court concluded that court-appointed lawyers were not contrary to the ECHR if they were to prevent interruptions or adjournments or to ensure that a defendant was adequately represented throughout the trial. This case was not concerned with a situation where the accused was forced to accept legal assistance in defiance of his decision to represent himself.
The Commission accepts that criminal proceedings involving sexual offences justify a restriction on the rights of the accused to defend themselves to the extent that they are prevented from cross-examining the complainant directly. This is because there is extensive research that documents the extent of psychological and emotional harm that is caused to the complainant by cross-examination by the accused. This view accords with the conclusion of Trechsel and the application of the corresponding provisions of the ICCPR and ECHR. To extend the provision to ‘violent offences’, however, may not constitute a reasonable restriction on the human rights of accused. (See paragraph later on s. 28 of the HR Act).
Another concern relating to the proposed s. 38C are the practical consequences that flow. If an accused does not have legal representation, but is compelled to obtain representation by the court for the purposes of cross-examining the complainant, the accused has two options: to obtain funding from Legal Aid ACT, or to pay for a private legal practitioner. The legislation does not provide for a court-appointed lawyer to act on behalf of the accused. The Commission is not in a position to comment on the impact this legislation may have on the resources of Legal Aid ACT. However, the Commission is concerned that the effect of the legislation will be to disadvantage those members of the community who do not fall within the strict criteria to be granted legal aid, but also do not have sufficient financial means to make other private arrangements i.e. vulnerable groups within the ACT community such as older people, children and people with a disability.
The Commission suggests that further specific consideration be given to the criteria contained in s. 28 of HR Act which sets out the relevant factors for considering whether or not a limit on a human right, such as that proposed by s. 38C, is reasonable. In relation to whether there are any less restrictive means available to achieve the purpose sought by the limitation proposed by s. 38C, the Commission notes that there are already statutory safeguards designed to protect the interests of witnesses in proceedings (including proceedings for ‘violent offences’):
-S. 26 of the Evidence Act 1995 (Cth) (‘EA Act’) allows the court to make such orders as it considers just in relation to, for example, the way in which witnesses are to be questioned, and the presence and behaviour of any person in connection with the questioning of witnesses; and
-S. 41 of the EA Act gives the court power to disallow a question put in cross-examination, or to direct a witness against answering it if it is found to be unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.
The Commission also notes that the ACT is the second Australian jurisdiction to propose very broad restrictions on the rights of an accused to represent themselves and/or cross-examine witnesses. New South Wales, the Northern Territory and Victoria preclude the cross-examination of witnesses by the accused in sexual offences, but not in relation to other offences.[8] Western Australia gives the court a discretion (rather than mandates it) to make various orders in relation to the manner and form of an accused’s cross-examination of a witness, including, if necessary, the power to direct any questions to be passed to the
witness via the judge or other approved person.[9] Tasmania and South Australia do not have any provisions that restrict the right of the accused to cross-examine a witness in criminal proceedings.
Queensland does restrict the rights of accused to cross-examine witnesses involved in a variety of offences including non-sexual offences. However there are three important points to note about the Queensland legislation:[10] firstly, it does not automatically apply to all specified offences (sexual and otherwise) but requires (notably for the less serious violent offences, such as assault) that the relevant witness be found to be disadvantaged or would suffer emotional trauma unless such an order was made; secondly, it specifically provides for the court to direct Legal Aid to assist the accused (at no cost to the accused) if they cannot cross-examine the protected witness directly; and thirdly, Queensland does not have a statutory bill of human rights. The Commission’s view is that the Queensland model cannot be transplanted to the ACT without significant amendment in light of the HR Act, and particularly, s. 28. There is a real risk that the ACT Supreme Court would issue a declaration of incompatibility under s. 32 of the HR Act, in respect of the proposed s. 38C in proceedings involving its application.
Yours sincerely,
Dr Helen WatchirsLinda Crebbin
Human Rights and DiscriminationChildren & Young People Commissioner
CommissionerDisability & Community Services Commissioner
21 July 2008
[1] Stefan Trechsel, Human Rights in Criminal Law Proceedings, Oxford University Press, 2006
[2]SN v Sweden (2004) 39 EHRR 13
[3]The provision also precludes the defendant from personally cross-examining a child or witness with a disability however the Commission primarily directs its response to those situations where the complainant or similar act witness is the subject of the bar on cross-examination by the accused.
[4] Manfred Nowak, U.N Covenant on Civil and Political Rights CCPR Commentary, 2nd Edition, NP Engel, 2005, at 339
[5] Note 1 at 250
[6] Richard Clayton and Hugh Tomlinson, The Law of Human Rights, Oxford University Press, 2000
[7]Croissant v Germany (1992) 16 EHRR 135
[8] Section 294A, Criminal Procedure Act 1986 (New South Wales); Section 5, Sexual Offences (Evidence and Procedure) Act (Northern Territory); Section 37CA, Evidence Act 1958 (Victoria).
[9] Section 25A, Evidence Act 1906 (WA)
[10] Sections 21M, 21N and 21O, Evidence Act 1977 (Queensland)