Children Pay For Justice: Two Wrongs [Legal tactics
used on child victims of rape]
Saturday, July 24, 1999
The Crime Commission is considering radical
change. Michael Ware reports
UNTIL just a month ago he was an accused child
molester. Now he walks the streets a free man.
But he hasn't been cleared, or found not guilty. And
the 11-year-old girl, who claimed he had interfered
with her, has not admitted fabricating the story. The
man has simply walked away, scot-free.
A jury will never have the opportunity to determine
his guilt or innocence and an unanswered black mark
hangs over his head.
When she came forward, some time ago, the police
investigated the girl's claims. The more they looked,
the more her story appeared to ring true. Charges of
indecently dealing with a child under the age of 14
The allegations could not be dismissed lightly and
the man's committal hearing in a Brisbane Magistrates
Court took place in late February. It was a torrid
When her time came, the young girl braced herself to
take the stand: her chest pounding, her heart full of
trepidation. At first she stood her ground, taking
the hand-fed questions from the prosecutor. That part
But then things changed. The defence barrister rose
from his seat, looked up from his notes and drew a
breath. From the moment he first spoke, the child
began to quiver. The barrister's booming voice filled
the room. She thought he must be screaming. Question
after question. Unrelenting. Unwavering. So personal,
so intrusive. Her body began to shake uncontrollably,
tears blossomed in her eyes. Her strength dissolved
before his eyes.
Her distress was evident and the barrister was asked
to lower his voice. You're frightening the witness,
he was told. More than three times he had to be
stopped, so the child could regain her composure. But
the ordeal was rapidly tearing her apart.
Before too long she had lost it. Rocking back and
forth in her chair, the questions rolling on, her
tiny hand held a handkerchief to her mouth. Her timid
responses became virtually inaudible. To those who
were there, she seemed scared out of her mind.
"Why are you being so mean to me?" she implored. "I
just want my Mum."
But what was it all for? Despite being committed to
the District Court, the man will never stand trial.
That was the first, and last, time the girl would
give evidence. Her mother refused to expose her to
more. Once was enough. Left with no other choice, the
office of Director of Public Prosecutions Royce
Miller, QC, withdrew the indictment.
"That's not an isolated incident," Miller said this
week. "It's not that uncommon, I'm afraid."
According to the Australian Law Reform Commission,
he's right. For some barristers, particularly at
committal stage, it's a stated tactic to intimidate
the child; muscle them out of the game.
"The absence of a jury at committal can leave defence
counsel free to pursue aggressive and intimidating
tactics," a 1997 ALRC report on children in the legal
process found. "Many defence counsel seem to proceed
on the basis that the more intimidating and
terrifying the committal is for a child witness, the
less likely it is that a child witness will be
willing or able to give evidence at trial."
Another mother remembered: "When my 14-year-old
daughter was put up to be cross-examined, she was up
for five hours . . . When cross-examining her (the
defence barrister) accused her of doing this for gain
of money. He told her he thought she reacted like she
did because she was sleeping around. Mind you, at the
time of the assault, she was nine years old... In two
sentences he ruined my daughter. She came out of
court, she was sick, she could not stop vomiting."
Other stories abound. In April, a Brisbane committal
fails apparently because a 16-year-old, allegedly
abused from the age of 11, asks for a volunteer
supporter to sit next to her in court. Mum or Dad
weren't there. She had to face That Man. But the
magistrate refused, even in the absence of a jury.
And the same month, in the District Court, two girls
tell of alleged abuse by a man. Both in their early
teens, an almost all-male jury (10 to 2), and again
not a family member in sight. Can a volunteer
supporter be with us as we testify? Again, refused.
It would be prejudicial to the jury, they're told.
Their evidence was adversely affected and they feel
the man was acquitted as a result.
All this despite the ALRC recommendation: "Children
should be allowed to choose at least one person who
may come into the courtroom with them while giving
evidence. This person should be permitted to sit next
to the child while the child gives evidence."
The issue of how we protect (or, rather, neglect) our
children when they're forced to take the stand has
flared hotly this week. A gripping audio tape of a
seven-year-old boy's brutal, five-hour
cross-examination at a Brisbane committal brought it
home to national television viewers on the ABC's Four
Corners this week. "Have you ever seen this (oral
sex) done before?" the defence barrister grilled.
"Have you ever been in the house when your mother's
YOU must be lying about your rape, the boy was told.
The boy and his then five-year-old sister haven't
been the same since, their desperate mother says.
Their alleged rapist walked free, a jury later
acquitting him at trial, despite rips in the little
girl's anal canal and semen on the back of the
seven-year-old boy's underpants (boys that age do not
A Crown prosecutor later summed it up: "The verdict
in this trial was a crushing disappointment ... in my
opinion, contrary to the weight of the evidence. This
case provides a perfect example of the inability of
the criminal justice system to protect our most
vulnerable ... The children had been traumatised by
the committal process and that affected them
thereafter." For some people, this is the way,
regrettably, it must be. Even with a child. A
person's liberty could be at stake and, make no
mistake, false allegations are made.
"I can see no evidence of a problem for children
giving evidence," criminal lawyer and Australian
Council for Civil Liberties president Terry O'Gorman
said. More than 90 percent of accusations of child
sex abuse taken to court resulted in a plea of
"There are institutional checks in place where, if
you plead guilty, and save the child the
cross-examination, you get a reduced sentence," he
"But the difficulty with this debate is that there
are simply no figures for the rate of unsuccessful
prosecutions. You can't have a debate without
"And these people and their studies that show all
this traumatising: on what basis do they make these
findings? All everyone is basing their conclusions on
is simply what the complainants told them, as opposed
to ordinary legal research where you go to the
transcript, you make an objective assessment. But
that's not happening here.
"And when people complain that closed-circuit
television is not used to help the child give
evidence ... they blame the defence. But it's the
prosecution who choose, for reasons of tactics, to
have children sit before a jury.
"I, like any defence lawyer who has any feeling, grit
my teeth when I have to cross-examine a child," he
said. "But I swore an oath of office to defend people
without fear or favour."
Indeed, barristers are required to listen to their
clients' instructions -- no matter what their
personal view of them may be. But experienced counsel
say it's not a matter of battering away at the
child's story to do it successfully.
"It's more like a commando raid," one said. "You slip
in, get what you want, and get out as quickly as
possible. In front of a jury or not, you do not want
to make the child cry, for any reason."
Crime Commissioner Tim Carmody, who is due to release
a discussion paper next month on child sex offenders,
said if the balance must be tipped, put it back the
other way. "The world is full of injustice," he said.
"If it is to fall anywhere, it shouldn't fall on the
shoulders of children.
"Perhaps we need to be asking ourselves: what do we
want to achieve here? Maybe it's a matter of offering
more options, like a diversionary system, a
treatment-oriented approach. Or is there some other
option instead of the current dilemma -- make a
complaint or not; be institutionally victimised or
not? There has to be some middle road.
"The criminal justice system at the moment is a
proven failure in child sex abuse cases. And we have
to confront that really hard question: is our system
serving our children well?
"With all the submissions, Project Axis (the Crime
Commission's upcoming paper) raises the question of
moving from an adversarial system, where the child's
interests oppose that of the accused, towards an
inquisitorial system where we seek the truth. Perhaps
instead of a judge we should have a tribunal of
experts hearing these cases. These are some of things
we will be raising."
APART from hardcore defence lawyers and extremist
groups, it is widely conceded children are being
unduly re-abused within the justice system. So where
to from here? Do we tinker with the old, or do we
search for a greater, more holistic answer (although
such a move will be opposed by a largely static and
conservative legal profession)?
"You don't want dramatic changes," former DPP, and
author of a groundbreaking 1986 report on child abuse
issues, Des Sturgess, said. "I'm a conservative at
heart -- use the current system and modify it. Trial
without jury, that'll take them another 10 years to
get around to that one."
Much of what Sturgess recommended -- such as use of
video recordings of a child's entire evidence, both
examination-in-chief and cross-examination, played
before the jury -- is now on the table again.
And with 1216 children giving evidence in Queensland
from 1994 to 1996 in proceedings involving sexual
assault charges, it's time changes were made.
It appears real change is actually in the wind,
because Queensland has been moving towards reform
since the most recent Coalition government initiated
a Queensland Law Reform Commission review. Former
Attorney-General Denver Beanland doesn't want a
politically charged debate leading to a knee-jerk
response. And current Attorney-General Matt Foley
says he's approaching the issue with an open mind,
even refusing to rule out radical change.
But most of the legislative protections are already
in place, such as the use of screens to shield
children from the accused in court, use of
closed-circuit TV and the removal of the need to warn
juries against accepting children's inherently
"unreliable" evidence (because research has shown
it's no more unreliable than adults') at face value.
Yet the old practices persist, suggesting it may be
necessary to enshrine these protections into law as
the first option, rather than the possible
alternative, available at the judge's discretion.
Perhaps the onus should be the other way round, with
the discretion to rule them out rather than in.
Or should we adopt the West Australian model, where
video evidence means no child under 12 enters a
witness box? Either way, the legal and, after this
week, political winds of change are blowing.