In less than three weeks, the Australian Law Reform Commission is due to hand Attorney-General Mark Dreyfus a report on one of the most fraught issues confronting the justice system: sexual assault.
The failure of the Bruce Lehrmann rape trial in the ACT was merely the most prominent of a series of disasters that have eroded public confidence in this vital part of the justice system.
There is no sign of peace in the war between judges and prosecutors in NSW over sexual assault matters that some judges believe should never have been prosecuted because of weak evidence.
In the ACT, there are no signs of restoring the option of judge-alone trials in high-profile sexual assault cases. Had that option been available for ACT judges – as it is for judges in most other jurisdictions – Lehrmann’s criminal trial might never have been aborted because of juror misconduct.
One way or another, criminal justice would have drawn a line under the interminable argument about what happened in Parliament House between Lehrmann and Brittany Higgins.
The case for reform in the way the justice system deals with sexual assault has never been greater. In a perfect world, the commission’s report would provide a string of ideas on how to restore public confidence in the fairness and rigour of this body of law after years of scandal.
It’s remarkable, for example, that NSW has done nothing to address judicial criticism of a core provision of that state’s Criminal Procedure Act that was made five years ago.
In a case known as R v RB, District Court judge Sean Grant explained that section 293 of the Criminal Procedure Act prevented a jury from being told that a complainant in a sexual assault prosecution was a compulsive liar.
“The statute occasions significant unfairness to the accused. The unfairness is real and not illusory,” the judge wrote.
“It prevents the accused from placing before the jury relevant evidence (her past fabrications) which is capable of going directly to an issue in the trial, namely the honesty and reliability of the complainant. It prevents the accused from showing the complainant to be a compulsive false accuser of sexual misconduct on the part of others,” his judgment says.
That decision has been publicly available since August 2019. Since then, section 293 has been renumbered and now appears in the Criminal Procedure Act as section 294CB. While successive NSW parliaments have left this skewed provision in place, Grant’s criticism was noticed by Mark Weinberg, one of the greatest criminal lawyers to sit on the Victorian Court of Appeal.
Weinberg, it will be recalled, was the only judge on that court who would have thrown out the flawed conviction of the late Cardinal George Pell.
Weinberg’s dissent in that case refers in a footnote to Grant’s ruling in NSW and makes the point that a “not dissimilar” provision in Victoria prevented the complainant in the Pell case from being cross-examined about his past treatment by a counsellor.
During Pell’s successful appeal to the High Court, it became public knowledge that Victorian law had prevented Pell’s lawyers from obtaining records outlining the complainant’s psychological problems. The flawed conviction of the late cardinal had turned entirely on the supposed credibility of the complainant.
If the ALRC’s report is to become a blueprint for reform, these are the issues that need to be addressed.
When judges like Weinberg and Grant make it clear important evidence is being suppressed, they should not be ignored.
The commission has an opportunity to begin the process of restoring public confidence in the way the justice system deals with these matters.
For that to happen, it will need to follow the lead of the judges and adopt an even-handed approach adhering to the ideal that the courts are there to deliver justice for all, defendants as well as complainants. This inquiry, however, has a much narrower focus. Its terms of reference instruct the commission to “seek to promote and consider just outcomes for people who have experienced sexual violence, including minimising re-traumatisation”.
The commission has also been instructed to have regard to “alternatives to, or transformative approaches to, criminal prosecutions” such as civil claims and specialist courts.
To understand what sort of transformations might be on the cards, keep in mind that Dreyfus required the commission to consider the outcome of a meeting he convened in 2023 of politicians, lawyers and community advocates, including Grace Tame.
The report of that meeting shows just how difficult it might be for the commission to embrace the ideas from that meeting while still producing a report that will be taken seriously.
The proposals included women-only police stations, establishing a civil organisation to second-guess police under a power to “reinterrogate investigations conducted by police”, banning good character references for defendants, establishing an alternative court system for sexual assault cases including “the use of a tribunal model comprising one member of the public, one judge and one person with specialist training in the area”.
Instead, ALRC president Mordecai Bromberg might be better advised to take account of the concerns of the Law Council, the legal profession’s peak national body.
The Law Council warned that any dilution of the core principles of criminal justice would result in the community losing confidence that the criminal justice system can provide a fair trial.
The commission’s report, due on January 22, will be judged a success if it provides a credible path for reform – not by whether it rigs the scales of justice.
