Contents

Chapter 4
The court experience of complainants

Summary of the issues

4.3The most problematic features of the pre-trial and trial process, from the complainant’s perspective, appear to be the following:

1. The time between filing of charge and trial: once charges have been filed, the period of waiting for the case to be set down for trial and waiting for the trial itself may impact a complainant’s personal circumstances, given that a high incidence of sexual violence occurs in a family or intimate relationship context. Lengthy waiting periods may also affect a complainant’s psychological recovery. Complainants of sexual violence are required to remember the facts of the incident for recall at trial – and the extent to which they are able to do so may bear on their credibility as a witness.

2. The cross-examination of complainants: complainants may be cross-examined on their evidence at length by defence counsel. Cross-examination requires “putting the witness to proof” on matters such as consent or belief in consent, which often involves challenging a complainant’s credibility and reliability as a witness. The experience of giving evidence at trial is sometimes described by complainants as being akin to a second assault.

3. Availability of information and support for complainants: throughout the trial process, complainants will be required to interact with a number of different people fulfilling various roles, which may be confusing to someone unfamiliar with the court process. The diffusion of responsibility between various people for keeping the complainant informed makes it difficult to ensure complainants are receiving adequate information and support.

4. Court facilities and physical environment: in a criminal case the courtroom is designed to permit a defendant to be put “on trial” in a place that is open to the public in the interests of transparent justice. But the physical design of the courtroom is an extremely poor fit for complainants who must give intimate evidence of an alleged incident of sexual violence. The design of the court building may require complainants, defendants and jurors to occupy shared waiting areas and use the same facilities.

4.4Although the High Court hears a much smaller number of sexual violence cases than the District Courts, we understand that the issues faced by a complainant in the High Court are likely to resemble those faced by a complainant in the District Courts. On this point McDonald and Tinsley commented in written correspondence to us that:230

…it is difficult to know exactly which cases are retained in the High Court and why, but from our reading of the case reports it seems that … it is not the situation that only the more serious or multi-complainant cases are heard in the High Court. Therefore … we emphasise that consideration should be given to how any reform proposals would or should apply to cases heard in the High Court.

4.5All of the reform proposals in this chapter are, unless otherwise stated, intended to apply to sexual violence trials in both the High Court and District Courts.

230Letter from Elisabeth McDonald and Yvette Tinsley to Law Commission regarding the alternative trial process reference (2 October 2015) at 3.