"Victims should be at centre of domestic violence measures 2 JUL 2014
I have been involved in trials, where as a result of cross examination of a complainant, a new line of defence emerges in the process of trial. To transfer the right for the defence to cross examine a complainant because the charge is one of rape, to the judge, who vets the questions and asks them, means the defence effectively loses the right to silence and has to telegraph its defence in advance.
I have also been involved in sexual violation trials, where it emerges that the complainant has been untruthful. It is sad, but true, that it is not only accused persons who may lie, sometimes complainants do as well. Sometimes a complainant may have been violated as they claim, are convinced that X did the deed, but in fact it was someone else (for example in the David Dougherty case). Sometimes, the Police take short cuts and have just got the wrong person. Further, sometimes over time the complainant makes mistakes and memories become inaccurate. This is especially so in cases involving delay. Delay is often involved in many of the sexual violation cases that come before our Courts. In cases where there is delay one can see the need for the robust protections of our criminal law most clearly. The usual or ‘presumptive’ results of long delay are the possibility of honest unreliability on the part of the complainants, including possible unconscious substitution of an imagined reality for what actually occurred, the fading and loss of recollection of pertinent details by an innocent accused and the loss of legitimate opportunities to test the detail of allegations and marshal evidence pointing to innocence. McHugh J (in remarks later approved in Crampton v the Queen (2000) 206 CLR 161 by Gaudron, Gummow and Callinan JJ, said in Longman v R (1989) 168 CLR 79 at 107:
Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be.... By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant’s testimony.’
- Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to... the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.