Sexual Assault Trials Handbook — Child sexual abuse and the criminal law

M Powell et al, An evaluation of how evidence is elicited from complainants of child sexual abuse, Research Report, Royal Commission into Institutional Responses to Child Sexual Abuse, 2016.

This study examined whether, and to what extent, judges and lawyers are intervening during complainant questioning through analysing court transcripts. Results show that while judges are intervening in cross-examination, interventions regarding the substance of questions made up less than 1% of all interventions: see pp 232–239. This is somewhat alarming considering there is evidence that defence lawyers continue to ask questions rooted in stereotypes.

With reference to recording evidence and evidentiary issues in child sexual abuse cases, the study analysed transcripts of evidence from 63 complainants of child sexual abuse in NSW, Victoria and WA: pp 187–195. Central issues include the length of questions posed to child witnesses, use of complex, leading questions, the significance attached to the witness’s age, and the effect of questions asked on the complainant’s response. The study concluded that “the length and complexity of questioning is clearly not being tailored to the age of the complainant, and leading questions are frequent, particularly among defence lawyers”: p 195.

The study also analysed 120 transcripts of complainant evidence from 94 child sexual abuse cases heard in three Australian jurisdictions (NSW, Victoria and WA): see pp 204–218. It found that, in order to improve the fairness of cross-examination, it is essential to “critically evaluate the actual nature and prevalence of the tactics that defence lawyers use when questioning the complainant”: p 205.