Victims of sexual assault, stalking and family violence in Victoria will be spared from being repeatedly grilled by defence lawyers during the court process, as part of an overhaul of pre-trial hearings.
In a move welcomed by advocates as a way to limit “fishing expeditions” to find weaknesses in testimony, the justice legislation amendment (committals) bill 2024 will guarantee that victims and witnesses of particularly traumatic cases will not be cross-examined by defence lawyers during committal hearings.
The attorney general, Jaclyn Symes, said the bill, to be introduced to parliament on Tuesday, would see victims only undergo cross-examination when their case goes to trial. They could still give evidence and be questioned on it by prosecutors during committals, however.
She said for sexual assault victims, cross-examination was regarded as the “one of the most challenging parts of the criminal trial process”.
“There is no doubt cross examination is an important process at a trial, but it is the most stressful for a victim and a witness. If we’re if we can avoid them having to do that twice, I think this is called for,” Symes told reporters.
Committal hearings are used to test the evidence in a case to determine whether it is sufficient enough to send an accused to trial in a higher court.
About 3,000 are conducted every year, according to a 2020 review by the Victorian Law Reform Commission, which recommended the hearings be scrapped entirely and replaced with a streamlined process.
The VLRC review heard from victims’ rights advocates, who argued cross-examination during committal proceedings could sometimes be “worse than at the trial” for witnesses, as they were not generally given an opportunity to tell their side of the story.
Defence counsel are also “not constrained by the presence of a jury” and may therefore be “more oppressive or intimidating”, the VLRC heard.
The move to scrap committals at the time was supported by Victoria police, the Victims of Crime Commissioner and Domestic Violence Victoria.
Victims’ rights advocate, Michael O’Connell, on Tuesday welcomed the reform, saying it will bring Victoria into line with other states where committal process are largely procedural and do not require oral evidence.
“There’s no evidence to suggest that in those places where the committal is either done this way – in what is called a paper-based committal – or been abolished completely, that there’s any greater injustice done to people who are presumed to be innocent,” O’Connell said.
“It also denies the defence another opportunity to challenge the credibility of the victim or do what we used to flippantly call a ‘fishing expedition’, to search for opportunities to then later exploit the victim in front of a jury.”
O’Connell, a former police officer and victims’ right’s commissioner in South Australia, said experiences of committal hearings could also deter victims from being a witness at trial.
“It seems to me ludicrous that the defendant should be given an opportunity to have, effectively, two opportunities to subject a victim to cross examination. It’s not just, it’s not fair.” he said.
The proposed Victorian laws would also prevent child victims, witnesses and those with cognitive impairment from having to testify multiple times in family violence cases by allowing them to give pre-recorded video evidence, as is already done in sexual offence proceedings.
Audiovisual link appearances would become default position in committal proceedings for adult accused, while homicide matters would be fast-tracked to the supreme court.
If passed, the bill will take 12 months to come into effect and will subject to a statutory review to monitor its impact.
The opposition leader, John Pesutto, said there was “merit” in the government’s proposal.
“[Committal hearings] are an added administrative burden in the system and we’ve long had the view that there are gains that can be achieved by removing committals from the system altogether,” he said.
• Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). In the UK, Rape Crisis offers support on 0808 500 2222. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
