Helping Victims Should Not Come At The Expense Of Fair Trial Rights

Last week Labour's Justice Spokesperson issued a press release, which I believe signals a fundamental erosion of two basic foundations of criminal law. In fairness I should point out that the Government's Minister of Justice mooted proposals that were worse and that Labour's Justice Spokesperson acknowledges the importance of preserving fair trial rights. However, notwithstanding that concern, the announcement appears to involve an erosion of those very rights. For completeness I have copied the press release:
"Victims should be at centre of domestic violence measures    2 JUL 2014

Serious measures to stem our appalling record of domestic violence are overdue but creating another Ministry of Justice adviser and abolishing fair trial rights for alleged offenders will make little difference, Labour's Justice spokesperson Andrew Little says.

The Government today announced a number of measures to address domestic violence including creating a chief victims adviser and allowing courts to draw a negative conclusion if an alleged offender doesn't personally give evidence in a trial.

"The people who most need advice are the victims themselves, not the Minister who has access to an army of public servants to advise her every day.

"It is the victim who needs help navigating a police investigation and a criminal justice system that often overlooks that they are even there.

"Victims need a court-based advocate so they know what is going on, what they can do, how they can have a say and what their rights are as a witness in any trial.

"As for trials of sexual offences, the reason why many victims either don't lay a complaint or don't go through with one is fear of the court process and the likelihood of humiliation and re-victimisation.

"Allowing an adverse inference to be drawn if an alleged offender doesn't give evidence is an open invitation for defence counsel to be even more aggressive in their cross-examination.

"A better measure would be to hand control of all examination of a victim to the judge with lawyers for both sides notifying the court which issues they want dealt with, along with shifting the burden of proof on the issue of consent to the defence.

"This approach does not contradict the fundamental principle that a defendant is innocent until proven guilty - the basic facts of the case still have to be made out - but it does mean the prosecution doesn't need to prove a negative, namely that there was no consent.

"Judith Collins’ approach is as good as the defendant being regarded as guilty until proven innocent, something she says she is opposed to,” Andrew Little said.

Labour's policy on dealing with domestic violence will be announced on Friday."

 What causes me deep concern over that statement is the emboldened sentence above. I can find no logic for eroding the right to silence, or shifting the burden of proof, just because a trial is one that involves an allegation of rape. It is fundamentally repugnant to justice, that just because the charge is one of rape, that the burden of proof shifts to an accused person. To assert that the burden must shift to an accused, because the charge is rape, effectively involves an erosion of the presumption of innocence, no matter how you try and spin it. The state would be effectively saying, that unlike other crimes, when there is a claim of rape, the complainant is somehow, more truthful, so much so, that the burden of proof shifts to an accused.

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:

‘The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented.  The longer the period between an “event” and its recall, the greater the margin for error.  interference with a person’s ability to “remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling.  recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine:  …

No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complainant and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. …

 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.’

The reality of human nature and long trial experience, point out the need to maintain robust fair trial protections. The move to shift the burden of proof and erode the right to silence, albeit for noble intentions, marks a major weakening of the Golden Thread that runs throughout our justice system.  The term "Golden Thread" comes from the decision in Woolmington v DPP  [1935] UKHL 1, a famous House of Lords case in English law, where the presumption of innocence was said to be first articulated in the Commonwealth. In articulating the ruling, Viscount Sankey made his famous "Golden thread" speech:

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.

We all agree that rape is a horrid crime that involves cruelty and an abuse of power. Once properly convicted offenders should be punished and victims should be given as much assistance as practically possible. However, eroding basic protections of our criminal law should never be a solution.