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Barry Lane
28 November, 2006  
Case concepts for sex trials

Hostile grump Peter Faris was right to steer away from defending rapists, according to Barry Lane. The Victorian Court of Appeal has breathed life into the record of interview with police and the unsworn statement. Sexual assault victims can still be trashed by defence counsel

imageActive legal blogger and hostile grump, Peter Faris (pic), has declared in dispatches that he no longer defends in rape cases. He explained:

“About 30 years ago, when I was a busy young criminal defence barrister in Melbourne, I was briefed in a rape case. My client was said to have forced a 16-year-old girl (a virgin) out of a party, into his car, where allegedly he had s-x without her consent. The defence was consent, that is, intercourse was admitted.

I did my job, which is to say I destroyed the girl during cross-examination. As she was leaving court after finishing her evidence, and the door to the courtroom had not quite shut, she gave a howl which sounded like a mortally wounded animal. The jury subsequently acquitted my client.”

The howl stayed with him for years. He didn’t like the “frightening” power he had over “this girl” in cross-examination and he no longer wants to “destroy” witnesses in cases such as these.

Anyway, he insists he’s never defended another rape case, even though things have changed since the 1970s.

His missive in full can be read here.

He’s right – there have been some changes. Amendments to the Evidence Act 1958 beginning in 1976 (Rape Offences (Proceedings) Act 1976) and 1993 (Evidence (Unsworn Evidence) Act 1993) supposedly abolished two of the foundations upon which accused in sex cases could usually obtain an acquittal – the unrestrained ability to trash a complainant’s character by trawling through her sexual history and resort to the “unsworn statement” by way of putting an accused’s innocent explanation before the jury.

As Faris says, cross-examination by a good barrister was normally enough to secure an acquittal.

Are things any better for complainants today? In my view – NO. Lawyers have got round the formal loss of their clients’ previous advantages by making a virtue of necessity, i.e. turning the previously reviled “record of interview” with the police into an asset, rather than a liability.

Previously, defence counsel would do anything to have their client’s record of interview excluded from consideration by the jury. Either it contained a never-ending series of “no comment” answers (on the advice of their lawyers) which don’t go down well with juries, or it contained something which could colourably pass as an admission.

Now, the properly advised accused uses the opportunity made available by a record of interview to make both an unsworn statement and lay the foundation for traducing the complainant’s character, without any risk to himself.

Far from doing everything to exclude all or most of their client’s record of interview, nowadays defence counsel insist that it be played in full, provided that the client took sensible advice before singing into a police tape recorder.

In that endeavour, defendants and their briefs have been ably assisted by the Court of Appeal.

In R v Yusef [2005] VSCA 69, (Winneke P with “Soapy” Stephen Charles and Alexi Chernov) the complainant said she was forcibly undressed and had intercourse against her will. The accused applicant said there was consensual sex and the complainant only became threatening after she demanded a substantial amount of money, which he refused to pay. Winneke said …

“the facts in issue in this case … did not necessarily arise during the course of the cross-examination of the complainant, but rather were raised in the evidence tendered by the prosecution to the court. That evidence included the evidence-in-chief of the complainant and the record of interview between the police and the applicant which became evidence at the trial. Statements made by an accused to police officers which are tendered as evidence in the trial become evidence of the facts in issue whether they are inculpatory (in the form of admissions) or are self-serving exculpatory statements made by the accused. The whole statement goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict, and they can give whatever weight they wish to different parts of the statement. No doubt the failure of the accused to give evidence may influence the jury’s attitude to the self-serving answers, but those answers remain part of the evidence in the trial upon which it is open to the jury to act.”

In Yusef, the accused did not give evidence and called no evidence, but his “unsworn statement” was put before the jury in all its unchallenged splendour.

By the end of the trial, the complainant had taken the bible on at least two occasions (I assume once at committal and once before the jury) and been cross-examined twice.

To add insult to injury, s.399(3) of the Crimes Act, 1958 prohibits either the prosecutor or the presiding judge from making any comment to the jury on the accused’s election not to give sworn evidence at trial.

Can’t say fairer than that, can you?

The Yusef trial went awry because the trial judge failed to properly summarise the accused’s exculpatory version of events in his “very long” record of interview.

Yusef was recently followed in R v Zilm [2006] VSCA 72 where Justice Eames on behalf of the court (Callaway and Ashley concurring) said that the trial judge did did attempt to relate the law to the facts in issue. He went on:

“The critical issues had to be more precisely identified in the course of the directions on law, and had to be highlighted by referring to the competing contentions, and the evidence relevant to resolution of those issues. When the directions of law were given there needed to be reference to the evidence of the complainant relevant to the critical issues (including the suggested concessions made by her in her evidence), as to what she had said and done (or might have) at the time when the applicant performed the sexual acts. Most importantly, the issues of fact and law had to then be related to the evidence of the applicant (as contained in the record of interview) as to his state of mind, and the factors that influenced it. That evidence had to then be related to the ultimate issue of whether it had been established beyond reasonable doubt that he had the necessary belief as to the absence of consent.”

imageAs you might expect, the trial judge got it wrong in Zilm for a variety of infractions, not the least of which was that she did not adequately summarise the accused’s unsworn self-serving version of events in his record of interview.

I must say that Faris’ missive in Crikey is the first time I’ve seen an insider publicly tell it like it is on this issue.

He should be given a cigar for his candour although, I suspect, he won’t win any friends at the criminal bar for being frank.

He probably doesn’t care all that much given that these days, according to The Age, he appears to be the grumpiest man in Melbourne.


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