Criminal justice in Australia: the madness in the method
By Greg Spearritt
You might think that our criminal justice system aims to unearth the truth. You’d be wrong.
Barrister and author Andrew Boe – who has represented, among others, Ivan Milat and a number of those charged after the Palm Island riots – says it baldly. The system was never designed to seek the truth.
Notwithstanding that witnesses in a trial must swear to tell ‘the truth, the whole truth and nothing but the truth’, I intend to argue that our justice system is not even really about truth. And in my view, that’s a very bad thing.
What’s it all (actually) about?
In her 2020 book Witness, Louise Milligan explores the awful price people pay for seeking justice in Australian criminal courts. Her focus is on sexual assault trials. Much of her book is based on interviews with long-standing criminal defence barristers. One such barrister, who doesn’t wish to be named, bells the cat:
The whole purpose of running a criminal trial is to win. And that involves a fundamental and often brutal attack on the complainant’s credibility. We are often crafting ways to catch witnesses out – that’s what we are paid to do. When it comes to the trial, it can be ugly.
In the playbook of the overwhelmingly old, white, male defence barrister there are signature moves. Here are a few.
Move #1: never allow the complainant to be presented as innocent. If it’s a sex trial, another barrister tells Milligan, “the last thing you want the complainant to come across as is some sort of young, naïve girl. You want to neutralise her as a human being. So you call her ‘Madam’. You want to put age on her. That’s a tactic we barristers adopt. If we call her by her name, that would be humanising her for the jury. We don’t want that.”
Move #2: stand ‘em up and knock ‘em down. Ask humiliating, invasive, sneering questions over and over again. Be relentless. Act as though the witness or complainant is not cooperating, but don’t allow them to explain their answers. Paint them as a liar. If it’s a rape case, go repeatedly into scarifying and humiliating detail, suggesting the complainant actually invited and enjoyed the attention. Milligan describes the tone of the questioning in her own experience in the witness box at the hands of Robert Richter, Archbishop Pell’s QC – the one who described abuse of a child as “vanilla sexual penetration” – in four words: “Sarcastic, belittling, disbelieving, derisive.” And she sees the very same tone adopted for a fifteen year old boy, also a witness in a trial about sexual predation.
Move #3: ask ‘tag’ questions. Many of those who turn up in our criminal justice system, as reflected by the prison population, have poor literacy and a history of trauma. Tag questions – “he didn’t do it, did he?” – are actually complex for many people to process and respond to without becoming flustered or confused.
Move #4: gag the witness. Never allow them to say what they want. No context or nuance needed: just confirmation that the narrative the barrister has been constructing is correct. (So much for ‘the whole truth’.)
Move #5: pretend complete clarity of memory is normal. Catch the witness or complainant out on minute details – dates are favourite ones – even though the events may have been some time in the past, and the science is clear that our brains don’t function like video recorders. Being in a highly traumatised emotional state does not lend itself to a dispassionate assessment of surroundings and actions, nor to clarity of recall.
Move #6: perpetuate popular myths to suit your narrative. This has been especially common in trials involving women. Lindy Chamberlain-Creighton did not behave the way mothers are supposed to when their child is killed. If you don’t resist a rapist you are consenting to the rape. If you continue a relationship with your attacker it couldn’t have been an attack. Women provoke rape by flirting or by the way they dress. Sex workers can’t be raped. Being promiscuous means you weren’t raped. Women and children commonly make vexation claims about being sexually assaulted. Children, indeed, can be “evil beyond their years”.
This last claim appears in a textbook that has been used for decades by law students. The passage goes on:
Some children know that the adult world regards such matters in a serious and particular way, and they enjoy investigating this mystery or revenging themselves by making false accusations.
These words were written by former Justice of the High Court of Australia Dyson Heydon, himself found by the High Court to have serially sexually harassed his young female associates.
All of these myths have been soundly discredited, but they remain powerful ideas.
Vincent Hurley, a police officer for 29 years and now lecturer in Criminology, Police and Policing at Macquarie University, was recently on Q&A. Speaking of cases of sexual violence against women, he said:
if you get a barrister or a solicitor who is very good, they will degrade you and they will cut you to shreds and make you look like you are the liar… It’s brutal.
Needless to say, this kind of combative approach in which witnesses and complainants are treated as liars and infantilised is not without consequences.
In 2016 the Victorian Law Reform Commission conducted an inquiry into the role of victims in criminal trials. One submission concerning a nine-year old victim of sexual abuse claimed the child was “unlikely to have received such cold and offensive treatment as she experienced from the defence lawyer, at any other time in her life, apart from during the child sexual offences”.
The degrading experience that many witnesses and complainants go through, even though they’re not the ones on trial, result for many in nightmares and flashbacks about the trial itself. Psychologist Michelle Epstein tells Milligan being treated like a naughty child “parallels the experience of being sexually abused; one of the most problematic parts of being scolded by barristers in court is that, for many victims, that’s what their perpetrator did to them when they were a child.”
Milligan herself, in spite of being highly educated, including as a lawyer, and with professional and family support behind her, was physically and emotionally exhausted after her interrogation by Richter:
[A]fterwards, after him… I lay in my bed the next day, and I could not move. I couldn’t move. I couldn’t get up to get a glass of water.
The only thing in my life that was as bad as that day was when my first husband died. And I had to go and identify his body at the morgue.
In case you thought things had improved recently, and that judges now take account of the actual rules concerning courtroom behaviour – which is supposed to disallow questions that are confusing, harassing, humiliating, insulting or repetitive – look no further than the experience of Queensland abuse and domestic violence victim Brooke Fenner who reported in June 2021 that “Personal details about my life [were] thrown at me… like I was the abuser… I was nowhere near told I was going to be so brutally interrogated.”
Or consider the story of Nadia Bach, brutally raped in 2017 and retraumatised by the consequences, including going to court, of reporting her rape.
In what way can degrading and retraumatising people encourage them to accurately recall and tell the truth?
There’s even evidence that the system stresses and degrades the lawyers themselves. Milligan speaks to one barrister off the record who tells her
candidly and, of his own admission, several wines down, that he is a drunk. That all the best criminal barristers are drunks. ‘That’s the only way that we can do what we do,’ he says. He then thinks better of it and asks me not to quote him.
Another barrister admits
Many of us defence counsel like a drink… It’s our way of processing the stress that we live with, in every serious case that we do. But I think there’s an element of, you know, it might be unconscious, to be fair, that you don’t want to really face the fact that you’re bashing up a thirteen-year-old kid, and then go home to your own children. You know? So there’s a complete separation of self, if you like.
But there’s more… the process
Court processes very often involve delays and uncertainty, along with a demand for repetition of a complainant’s experience (no matter how traumatic and humiliating, as is true in many sex abuse cases).
In 2013 Saxon Mullins was anally raped in an alleyway on her night out to celebrate her 18th birthday. After two trials and two appeals the case fizzled. The accused was allowed to go free because the judicial process had taken too long. Disbelief, frustration and exhaustion were the only outcomes.
Milligan followed the Mullins case. Saxon told her:
‘I had to prepare myself emotionally each time and it just keeps stopping and starting. I don’t know how many times I was told it was happening and then it was postponed again… I find that court process really emotionally draining. The first trial, I had the energy for it, but the second time around I felt so drained. I struggled to find the energy to tell the story over and over again.’
Milligan claims the postponements were because of the strategy employed by the defence.
Right from the start, when a person registers a complaint with police, the processes are flawed. People often naively trust the system and just answer police questions rather than volunteering information, a situation that can prove costly when it comes to court.
Also, there is an emphasis on victims being interviewed as soon as possible. However, for a person in shock or having just faced a traumatic experience, talking to police immediately can be a bad idea. Without time to process the event, and influenced by the high emotion of the incident, recall of facts is not likely to be especially accurate. In court any such anomalies in testimony can be portrayed by the defence team as evidence of unreliability or even of falsehood.
If you are a victim or a witness in a court case, you are merely a bystander in the process. No-one is ‘on your side’. The prosecutor is there to serve the court and the administration of justice, not to represent or support the complainant. Witnesses and complainants are very often unprepared, resulting in them being confused, led into saying things they don’t mean, tied up in knots. They’re often not warned it could be a harrowing experience.
A lack of expertise… and out of touch?
Andrew Boe points out that an overemphasis on independence in the legal profession means that lawyers generally don’t collaborate with professionals in other relevant fields, notably mental health. Rules regulating legal practice, he says, “prohibit law firms from employing in-house social workers and psychologists”.
Most defence barristers and judges have little expertise in dealing with or understanding the effects of trauma: the very thing that many victims of crime have in common. Indeed, those in power in a courtroom usually have no lived experience or understanding of the lives of many who appear before them. Yet the statistics from our prisons are stark: inmates have a higher incidence of mental ill-health, cognitive disability and hearing loss compared with the population at large. Other disadvantaged groups are also over-represented: First Nations people, the homeless, the illiterate, those from areas of low SES, as well as those who’ve suffered trauma (notably abuse or neglect in early life).
A tendency among powerful people to feel they’re somehow morally superior and less accountable than others is also not new. Society has largely moved on from unwarranted respect for those in authority – priests, teachers, police, judges – and closer scrutiny in recent decades has revealed just how human and fallible they are. The law is an area now well-known for sexism and misogyny and, in some cases, sexual misadventure (e.g. Dyson Haydn and others). It’s hard, however, to dismiss arrogance associated with high office as a factor in the problems with our criminal justice system. There are notable exceptions, of course.
The list goes on
Among other vexed issues afflicting our criminal justice system is that of character references. These are routinely given in sex trials to mitigate the sentence. In the Saxon Mullins case, the local mayor, chairman of the South Sydney Rabbitohs, a Greek diplomat and a parish priest all lined up to speak for the good character of Saxon’s abuser. The priest even suggested the perpetrator had suffered an injustice!
Saxon’s response was along the lines of noting that someone could be a great employee, a reliable soccer coach and could even be a friend, but that has nothing to do with whether the person raped her. Milligan noted:
The other thing that struck me about this, as witness after witness told the court what an exceptional young man Lazarus was, was that Saxon had none of that. ‘You don’t have an expensive lawyer to represent you, you don’t have witnesses who can say how great you are. You simply have your character dissected.’
Does it have to be this way?
Could our justice system be more objective and actually attempt, with rigour, to determine what is true? To be sure, truth and justice are different things, but surely justice is not served if the truth (the whole truth) does not come out.
In discussing the treatment of sexual assault victims recently, writer Steve Biddulph reflected in a Brisbane Times article on the difference between our system and that of Germany:
In Australia, judges and juries are like umpires in a battle between two opposing sides – the police prosecutor, and the accused and his or her lawyer. The survivor of an assault has a distressingly passive role in this, they become like the ball that the other parties kick goals with. By contrast, in Germany judges become investigators and use a non-adversarial trial process, where the evidence, the emotional impacts, the whole ecosystem of facts can be brought into the picture without the need for warring sides. A quiet, respectful and even cathartic process can arrive at a judgment being made.
In the German system also, official advocates are available for victims to help them deal with and manage the legal process.
To be fair, a number of the issues raised here may not be resolved if we had an inquisitorial rather than an adversarial system of criminal justice. And there are in fact moves afoot in various state jurisdictions to address some of the issues raised here.
Nonetheless, a system in which it is simply not in the interests of either main party to fully disclose all relevant facts, and which has the effect for many of the people involved of traumatising or re-traumatising them: surely such a system cannot be called successful or even adequate.
Many victims say they would never have made a complaint had they known what the court process would be like. Do we want victims of crime to come forward?
I believe we are smarter, and better, than this.
See the essay ‘Defending The Indefensible: There’s No Case For Keeping A Justice System That Fails Half The Population’ by Chris Graham, on the New Matilda website for an in-depth consideration of these and related issues.
Disclaimer: views represented in SOFiA articles are entirely the view of the respective authors and in no way represent an official SOFiA position. They are intended to stimulate thought, rather than present a final word on any topic.
Photo by Bill Oxford on Unsplash