‘Civil approach’ to rape trials would set ‘dangerous precedent’

Some experts question the ‘civil’ alternative where a defendant would be compelled to give evidence and the standard of proof would be lowered to the balance of probabilities.

Criminal lawyers say any suggestion that the standard of proof be lowered for sexual assault trials should be rejected.

Lawyers say any suggestion that the standard of proof be lowered in sexual assault cases should be rejected, after some members of an advisory group set up by ­Attorney-General Mark Dreyfus urged the federal government to consider a “civil” alternative to criminal rape trials.

In a submission to the Australian Law Reform Commission’s wide-ranging inquiry into how the justice system handles sexual ­violence, the group urged the federal government to consider the “civil” alternative where a defendant would be compelled to give evidence and the standard of proof would be lowered to the balance of probabilities.

Queensland law lecturer and sexual abuse victim Amanda-Jane George, who is compiling the submission along with some other members of Mr Dreyfus’s lived-experience expert advisory group, said they were also calling for the government to crack down on ­“inappropriate” defence counsel questioning in rape trials and ­introduce specialist sexual assault courts. But Australian Lawyers Alliance national criminal justice spokesman Greg Barns SC said “any suggestion that the standard of proof be reduced ought to be ­rejected”.

Greg Barns SC. Picture: Chris Kidd

“The fact that a rape conviction in criminal law has serious consequences, such as the loss of liberty of the accused person, means it should the have highest standard (of proof),” he said. “We don’t lower the standard simply to ­increase convictions.

“It would be a very, very dangerous precedent, because if we use it in these cases, then why not use it in burglaries, for ­example.”

Mr Barns also questioned an initiative that would remove the right to silence. “Our system of justice for centuries has said it’s for the prosecution to prove its case, and the defendant can’t be compelled, for good reason. The right to silence is sacrosanct in our democracy,” he said.

Sydney criminal solicitor Paul Blake took umbrage with calls for “ground rules hearings” to be ­implemented across Australia, where parties would meet before a trial to discuss how defence counsel should question a witness.

“Forcing defence lawyers to ­reveal their cross-examination ­beforehand gives the game away here,” he said.

“Requiring one side only to roundtable their tactical approach with an opponent in a case adjudicating serious allegations is laughably unfair. Which is also a way to describe this whole plan.

“The ostensible and laudable purpose here is to spare trauma to complainants, but the real impact will be prosecution/plaintiffs ­fixing up witnesses once they know what the defence is planning. New statements would be drafted, ­explanations for discrepancies found, and all cleaned up in ­advance of the final hearing, ­rather than being exposed on the spot.”

Grounds rules hearings ­already operate in Victoria. A criminal silk, who did not want to be named, agreed, saying it was “impossible to plan a cross-examination because it cannot be foretold what answers will be given and where such topics may lead.”