Advocates are urging the ACT Government to consider legislation reform to support sexual assault complainants. Photo: Michelle Kroll.
CONTENT WARNING: This article refers to sexual assault.
While advocates say allowing a sexual assault complainant to pre-record their evidence before testifying in a trial will help avoid re-traumatising them during the legal process, lawyers are concerned such a move could delay trials.
Pre-recorded testimony involves an alleged victim, know as a complainant, giving their evidence on film early in the proceedings. The recording is then played to jurors during the trial.
This means the complainant doesn’t give their main allegations – evidence-in-chief – nor is cross-examined or re-examined in court during the trial.
“So rather than victim-survivors or complainants having to wait years for the trial to give evidence, they can give the evidence quite early on,” Fair Agenda campaign manager Jacinta Masters said.
Fair Agenda, an independent campaign movement, is calling for the ACT Government to allow all sexual assault complainants to pre-record all their evidence.
Ms Masters said the legislative reform was backed by research that found positive impacts on the wellbeing and mental health of complainants.
“It should be expanded because of the anticipatory anxiety and re-traumatisation that victim-survivors have to go through by being subjective to a trial process,” Ms Masters said.
“This gives them years back of their life where they don’t have to wait to be cross-examined.”
In the ACT, adult sexual assault complainants can pre-record their evidence-in-chief with police, but must still be cross-examined and re-examined during a trial.
The Territory does allow vulnerable complainants, such as children and people with intellectual disabilities, to have all their evidence pre-recorded.
Acting Victims of Crime Commissioner Margie Rowe (left) speaks with Women’s Legal Centre ACT CEO Elena Rosenman and former ACT Attorney-General Shane Rattenbury. Photo: Supplied.
The ACT Acting Victims of Crime Commissioner, Margie Rowe, said the benefits of pre-recorded evidence included reducing the stress and trauma of waiting to give evidence, the adversarial nature of the trial, and the number of times a victim needed to speak about their experience.
She said it also improved the quality of evidence by capturing a more contemporaneous account and enabling it to be given in a less stressful environment.
An ACT Government spokesperson said the government had already made significant progress in several areas highlighted by the Australian Law Reform Commission’s Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence report, which made 64 recommendations to improve the justice system’s response to sexual violence.
“While pre-recorded evidence hearings could reduce the potential for re-traumatisation for complainants during the trial process, there are risks it could create further delays and inefficiencies in the trial process if not implemented correctly, reducing the impact of a complainant’s evidence and creating additional barriers to the communication of evidence,” the spokesperson said.
“These issues need to be carefully considered in addressing this recommendation to avoid any unintended consequences in the ACT.”
Himangi Ticku of Andrew Byrnes Law Group says pre-recorded testimony can possibly create delays at court. Photo: Michelle Kroll.
Himangi Ticku, junior partner at Andrew Byrnes Law Group, said the harsh reality of the justice system was that the complainant in a sexual assault allegation must, as a matter of procedural fairness to an accused facing serious charges involving the possibility of jail, be cross-examined by the accused’s lawyers.
“I worry a complainant and an accused may find the introduction of pre-recorded evidence means the complainant’s evidence is taken earlier, then admissibility edits need to be made to the transcripts, which could result in the matter taking longer to get to trial if it is not managed carefully by the Territory,” she said.
“In light of the strain the ACT Supreme Court is already under and given the current rate of prosecutions being brought by the Office of the Director of Public Prosecutions, the worry I have for both accused and complainants is that a well-intentioned plan could result in a finding at trial taking much longer.”
Chair of the ACT Law Society’s Criminal Law Committee, Michael Kukulies-Smith, said the law society acknowledged the potential benefits of allowing complainants of sexual assault to pre-record their evidence, particularly in mitigating trauma and improving access to justice.
“However, the society is concerned these benefits are often diminished in practice due to the significant strain placed on courts and legal practitioners,” he said.
“Without substantial additional investment in court resources, increased delays and procedural complexity risk undermining the very advantages this model seeks to deliver.”
If this story has raised concerns for you, 1800RESPECT, the national 24-hour sexual assault, family and domestic violence counselling line, can be contacted on 1800 737 732. Help and support are also available through the Canberra Rape Crisis Centre on (02) 6247 2525, the Domestic Violence Crisis Service ACT on (02) 6280 0900, the Sexual Violence Legal Services on (02) 6257 4377 and Lifeline on 13 11 14. In an emergency, call triple zero.
