Explainer: Justice reforms to committal hearings

What is changing?

The Victorian Government is introducing justice system reforms which mean that complainants in sexual offence, family violence and stalking matters will no longer need to be cross-examined at committal hearings. These reforms mean that complainants in these matters will only need to be cross-examined by a defence barrister once, during the trial. As part of these reforms, committal ‘case conferences’ will, in effect, replace committal ‘hearings’ in these matters and prosecutors will be required to disclose material that might reasonably be expected to undermine the prosecution case. These changes have been recommended by the Victorian Law Reform Commission across multiple reports.

Are these reforms welcome?

Yes.

While there is much work to be done to improve justice system responses to victim survivors of sexual and family violence and stalking, these are good reforms that will make a difference to complainants, while, importantly, preserving an accused person’s right to a fair trial. In addition to removing duplicate cross-examination of victim survivors, these changes will also reduce system delay and improve efficiency, to the betterment of both parties.

Has there been backlash?

Yes, from some.

We read, with a collective sigh, the article recently published in the Australian, Objection, victims get an unfair advantage: silks criticise rape law shift (14/11/24). This article presents the perspectives of a number of Australian barristers on these reforms.

Among other matters, concerns were expressed by barristers that the move away from cross examining complainants in sexual violence, family violence and stalking matters at committal hearings would remove the opportunity to identify matters where complainants were “sort of making it up” or were “mistaken” about their perspective of an alleged sexual assault or rape committed against them. This would, in turn, jeopardize an accused’s right to a fair trial and cause damage to victims, some of whom will be “dragged through a trial only to have an unsatisfactory verdict that could have been ascertained at the committal process”.

Are these valid concerns?

No.

It is frustrating but not surprising to us to hear rape myths be stated so baldly. Let’s start with victim survivors of sexual assault and rape. We know, through years of data and studies, that the vast majority of victim survivors of sexual violence will not report to police, due to the profound, life shifting sense of shame that can come with being sexually assaulted or abused and the strong sense that they will not be believed. We respectfully suggest that the comments of Mr Dunning KC, noted above, reflect and contribute to the broader culture of shame and non-believing that our society continues to project on to victim survivors of sexual violence. Decades of work has gone into undoing these myths and this work continues, including through our response here.

While it is unclear to us whether Mr Dunning’s comments were equally intended for complainants in family violence and stalking matters, we will make the following points. Victim survivors of family violence often need to weigh whether reporting to police will put them and their children at greater risk of harm or death. They do not report lightly. The actual issue, is that when women do seek support from police, the police response is often inadequate, for a range of complex systemic and cultural reasons. There is thus little chance of “made up” cases making it all the way through to a committal process.  

Similarly, women who are being stalked are often desperate for, but often do not receive, an appropriate police response. They are often in deep states of fear. Celest Manno’s death at the hands of a stalker and the subsequent legislative reforms to stalking laws advocated for so bravely by her mother, demonstrate that the system is so far behind affording protection to stalking victims that there is almost no chance of a “mistaken” case ever making it to the prosecution stage

Now turning to well established concerns about cross-examination in sexual offence matters. The article cites top barristers who suggest there is already a “robust legislative framework” preventing defence counsel from asking traumatic questions of vulnerable witnesses. We simply state here that this suggestion comes easily undone upon reading cross-examination transcripts in many rape matters. But we also have the benefit of multiple studies that demonstrate the ineffectiveness of these procedural rules at preventing disallowable and improper questioning.

The most robust legislative measures do not overcome all the pressures arising in the heat of the moment of an adversarial process, where judges need to weigh whether their intervention will create an appearance of bias and furnish grounds for appeal. We also make the point that, even cross-examination questioning that falls within the rules, is designed to undermine the credibility of a complainant and to seed doubt about their account of what happened: two factors which are the known antithesis to a person’s recovery journey, regardless of whether an accused is found legally guilty beyond a reasonable doubt or not. This fact alone makes it overwhelmingly appropriate that complainants only go through cross examination once, rather than twice.

What does the new process mean for the accused?

We now share our perspective on what the new committal processes mean for an accused’s right to a fair trial. At the end of the day, the changes mean very little in this regard. In his second reading speech to the Bill, Minister Carbines made the point that “the threshold for committal is low and discharge rates in the [Magistrates Court of Victoria] are negligible”. What he means by this, is that the vast majority of cases that go through a committal, end up going to trial. Very few are “filtered” out.

The Minister also made the point that the committals system emerged before we had independent police forces and prosecution agencies, where it was left to magistrates to filter out private prosecutions without merit. Today, we respect the hard work and heavy load of police and prosecution departments, but the main issue we face today is that, given sexual violence cases often involve no other witnesses, and, in an adversarial system, rely on the word of a complainant vs an accused, too many cases are already being “filtered out” at the investigation stage, to the harsh, emotional detriment of victim survivors. Prosecutors are very cautious in determining which sexual offence allegations can be charged and tried.

So, what does this all mean?

We close by saying, that a committal is not a trial (although, it has felt like that to many victim survivors). The trial is the trial. Complainants will still be cross-examined during the trial. Thus, there is still a fair trial.