The NSW government is unveiling a suite of changes to adult sexual assault trials aimed at avoiding re-traumatising complainants and curbing inappropriate lines of questioning.
Under reforms to be introduced in Parliament on Tuesday, recorded police interviews with adult complainants will be able to be used as their evidence-in-chief in court, in line with existing arrangements for children under 16 and cognitively impaired people.
“Ground rules” hearings – a pre-trial process used in child sexual assault proceedings to set parameters about how a complainant will be questioned – will also be piloted from next year.
Attorney-General Michael Daley said the changes would “go a long way towards making it less traumatising for sexual assault complainants to seek justice”.
“We want to help them give their best evidence by ensuring they do not need to tell their story multiple times, and deterring inappropriate and irrelevant questioning in court,” Daley said.
Recorded evidence
The evidence-in-chief is a complainant’s first evidence in the trial and is followed by cross-examination by the defence and any re-examination by the prosecution.
The government said allowing recorded evidence at this first step would help minimise distress and trauma for complainants because the evidence would only need to be given once, including in the event of a retrial.
Adult complainants would still be required to appear in court for cross-examination and re-examination. However, a review next year of the provisions relating to children will consider the feasibility of adults pre-recording all their evidence.
The jury is played the recording rather than observing the evidence as it is given.
Ground rules
The pilot of ground rules hearings will run at Parramatta, Wollongong and Dubbo District Courts from 2027 until 2030.
The court can provide directions about the duration and manner of questioning, the topics that may be canvassed by counsel, and any supports the complainant requires.
The complainants’ needs are assessed via questionnaire with the support of a Witness Assistance Service Officer, who works within the Office of the Director of Public Prosecutions.
Rape myths persist
Professors Julia Quilter and Luke McNamara, criminal law experts at the University of Wollongong and UNSW respectively, analysed transcripts from 75 sexual offence trials in the NSW District Court between 2014 and 2020 in a report published in 2023.
They found complainants were “still routinely questioned in ways that place them at the centre of intense scrutiny and judgment that is underpinned by rape myths” and assumptions about what constitutes “a real rape”.
Rape myths are misconceptions about how victim-survivors might behave during and after a sexual assault.
In their report, Quilter and McNamara said mandatory ground rules hearings for all sexual offence trials should be considered. They said their findings “support a robust exercise, including scrutiny of proposed cross-examination questions for relevance and reliance on rape myths”.
‘The government is listening’
Responding to the reforms, Quilter said that “victim-survivors consistently report being retraumatised by engaging with the criminal justice system” and the proposed changes “show the NSW government is listening to those experiences”.
Piloting ground rules hearings was an important initiative, she said.
“It will allow the court to make a pre-trial assessment of how complainants are questioned and the topics on which they are questioned,” Quilter said.
“This has the capacity to shift questioning away from topics that are not in dispute but are still distressing, and to reduce questions that draw on rape myths about how a complainant ‘should’ have behaved.”
Quilter said allowing pre-recording of the complainant’s examination-in-chief was also “a step in the right direction”.
“Recording this evidence closer in time to when the complainant has first reported can facilitate recollection,” she said. “Police officer training in conducting these interviews for trial will be essential.”
Further consideration should be given to allowing pre-recording of the complainant’s cross-examination, Quilter said.
“Giving evidence, particularly cross-examination, is known to be the most difficult part of the process.”
Counselling records
The state government has faced repeated calls to stop defence lawyers accessing a complainant’s confidential counselling records to use in the trial. It will introduce some modest measures while leaving the door open to broader reforms.
Defence teams may get access in some cases to a complainant’s counselling files by issuing a subpoena. But an existing protection, known as the sexual assault communications privilege, means the court must approve that step.
The court cannot grant leave unless it is satisfied of a number of factors, including that the evidence has “substantial probative value” and the public interest in preserving the confidentiality of the material is “substantially outweighed” by the public interest in admitting it into evidence.
Government-commissioned research by the University of Sydney is examining how the existing protections are working and potential changes. The university is due to report by June 2027.
In the interim, criminal procedure laws will be “amended to ensure courts can only consider complainants’ communications records when it is necessary, as opposed to inspecting materials automatically or out of an abundance of caution”, the government said.
“Other changes will codify in law the requirement to seek leave to access records that have been produced in court.”
A complainant can consent to their counselling records being produced in court, allowing them to be viewed by both parties.
Minister for Women Jodie Harrison said the government was “taking action to make sure the trial process doesn’t re-traumatise victim-survivors, and they can give their best evidence”.
Women’s Safety Commissioner Dr Hannah Tonkin said: “Allowing complainants’ pre-recorded evidence-in-chief to be used during sexual assault trials will enable them to give their account much earlier, in a safe setting, and to start rebuilding their lives sooner.”
Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800RESPECT (1800 737 732) or the Men’s Referral Service on 1300 766 491.
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