President Michael Slattery QCï¿½appeared onï¿½three radio programmes yesterday,ï¿½in responseï¿½to the NSW Governmentâs request to change the Barristers' Rules regarding sexual assault trials. Theseï¿½included ABC 702 Breakfastï¿½atï¿½07:11am andï¿½2UE Breakfastï¿½at 07:20am.ï¿½
The following is an extract from an interview with Sandi Aloisi on ABC Newsradio.
MICHAEL SLATTERY: All members of the Bar Association are immensely sympathetic to the ordeal that many victims of rape have to go through in giving their evidence.ï¿½ It's a very difficult thing to do.ï¿½On the other hand there'sï¿½a fundamental problem: the court systemï¿½[has] to sort out those who are genuine victims from those who are not.
It's done by a process of testing evidenceï¿½and the reality is that sometimes it can be very difficult. Barristers try to do it responsibly, but it is a process where, if they have instructions to say that these events did not happen, the jury is the oneï¿½which has to decide upon a contest of evidence.ï¿½
SANDI ALOISI:ï¿½Yes, would it be right to say though that some barristers have been guilty of intimidating rape victims in the court room?
MICHAEL SLATTERY:ï¿½Well, can I put it this way?ï¿½ We have a very open complaint system, and the legal services commissioner also supervises the Bar Association through an open complaint system authorised under the Legal Profession Act.ï¿½ And there are very, very few complaints. The direct hard evidence ofï¿½complaints against the Bar is very, very low, actually.
But, that being said, we're still happy to look at this because all improvement is good.ï¿½ But you've got to understand that the contest has to take place.ï¿½ Many of the sexual assault trials, for example, involve children, or people who were children when the assaults are alleged to have occurred.ï¿½They may have taken place 20 or more years ago.ï¿½Sometimes sexual assault allegations are made in the course of a family breakup or separation.ï¿½There are all sorts of motivational issues that arise there.
The court system and juries and judges have got to sort that out.ï¿½ And they can only do itï¿½[by] testing of the evidence.ï¿½ It's got to be done sensitively.ï¿½
Aï¿½few of the proposals that are being put up have got practical problems attached to them.ï¿½ They're very hard to implement, and that's our concern.ï¿½ We're having a talk with the attorney, but let me give you an example.
One of the suggestions is that counsel should refuse instructions if that would involve harassment of the witness.ï¿½ Now, pure harassment is currently improper and judges should rule it out now, and no responsible barrister would engage in it.ï¿½ But sometimes, if the instructions are that events didn't take place the way the alleged victim says they did, then, that's got to be tested, and that can be distressing.ï¿½Frankly, if the person is lying it's a humiliating process to be exposed as a liar.
Someone has to sort out the genuine cases from the ones that aren't.ï¿½ And the reality is not every allegation is true.
Let'sï¿½focus on two things.ï¿½ The rights and dignity of genuine victims, and the rights of a fair trial for the accused.ï¿½ They're the two things that have got to be balanced.ï¿½ And we welcome the ideas, but it's important to make them workable, and there's still a bit of discussion to take place on that.
For further information regarding the president's on air comments, contact the Bar Association's director of law reform and public affairs, Alastair McConnachie.
27 September 2007