In some sense, politics, through its ability to legislate, is always responsible for both the formation of the rights of any accused person, and also the occasional removal of those rights.

The title of this article, however, points specifically to a recent development that places a material fetter upon the ability of certain accused to avail themselves of tools that have been readily available to a defendant in criminal proceedings for centuries – the right to cross-examine a witness.

And this development stems not from the natural ebb and flow of legislative intervention in the rights of its citizens, but rather directly from a new form of societal and political ideology that accompanies certain types of offences.

That is, as part of the controversial and sweeping reforms concerning the new offence of “coercive control”, the Queensland Government has now decided to forbid defence lawyers from asking questions about a complainant’s “sexual reputation” without permission of the court first.

What are the Changes?

You can find the changes in question in the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, Part 6, Division 3.

More particularly, the amending laws insert a tranche of new sections into the Evidence Act, giving effect to the prohibition.

Here’s how they work:

1. They apply to any criminal proceeding that relates, wholly or partly, to a charge for a “sexual offence”. That includes both a committal hearing and a trial.
2. Once you’ve ticked that box, the Court must not allow:
   1. any questions as to (or any evidence at all about) the sexual reputation of the complainant;
   2. cross-examination, or any evidence, about the sexual activities (consensual or otherwise) of the complainant – other than those specifically about the charge in question.
3. 2(a) above is an absolute prohibition.
4. You can, however, ask the Court to get leave to ask questions covered by 2(b) above.

What’s Required to Get Leave to Ask Such Questions?

So let’s say that your criminal defence lawyer believes it is reasonable and necessary to ask questions about the sexual activities of the complainant. What do they need to do in order to ask such questions?

First, they need to apply for leave. This means filing an application with the Court, and providing a copy of it and all your supporting materials to the prosecution.

Next, they need to provide details as follows:

1. The initial questions sought to be asked;
2. The scope of questioning that might flow from (1);
3. How that evidence has “substantial probative value” or why it is a “proper matter” that relates to credit of the witness.

Similar requirements exist for trying to get any related types of evidence admitted.

Now’s the interesting part – the Court must not grant leave unless it is satisfied about one of two things. Either:

1. That the evidence has substantial probative value – meaning that it has to tangibly demonstrate some relevant point that could affect the outcome of the proceeding. OR
2. That it’s a proper matter for cross-examination about credit.

Beyond that, the Court must also be persuaded that it is “in the interests of justice to allow the [evidence]”.

But Wait, There’s More

As if the above tests aren’t difficult enough hurdles to get past, another stumbling block is put in the way.

First – the Court must not accept anything as “probative” only by virtue of any inferences that the evidence may raise as to general disposition. This is a polite, legislative way of saying that if a female complainant is well known to have consensual sexual activity with dozens of different men in a week, and has done so for many years, that evidence cannot be adduced in order to suggest that the act in question was, itself, consensual. If that is the only reason for your proposed questions, then your application for leave must be rejected.

Second – the Court must not consider something a “proper matter” for cross-examination as to credit unless, because of “special circumstances” (those circumstances being unspecified) it would be “likely to materially impair confidence in the reliability of the evidence of the complainant”. Note the test – the cross examination cannot ONLY materially impair confidence in the reliability of the evidence, but must do so because of “special circumstances”.

As you might expect, these additional barriers to entry are designed to stop precisely the main reason that defence lawyers might be inclined to ask such questions or lead such evidence.

So Is this Good, or Bad?

The positive reasons for these legislation changes are fairly clear. That is, complainants who are genuine victims of traumatic sexual offences are not dragged through the mud by inappropriate or unnecessary questioning. This can both re-traumatise victims of these crimes, and provide a significant deterrent from reporting the crimes in the first place if they believe some scandalous part of their lives will be laid bare before a courtroom.

But that protection comes at a significant, and arguably too high, cost.

Complaints are Not Properly Vetted

We have written earlier about the committal proceedings, and the important part they play in determining whether a matter should proceed to trial.

An important part of a committal hearing is the defendant’s ability to test the reliability of the prosecution witnesses, to see if ultimately a trial is likely to be successful or not.

In claims involving offences of a sexual nature, testing historically has commonly included testing of the exact kind that has now, functionally, been prohibited.

As a result, claims that would previously have been found incapable of proceeding to trial will now likely sail through unimpeded.

The Presumption of Guilt

Current social perception is, essentially, that someone accused of a sexual offence is guilty until proven innocent. We have explored some consequences of this in our related discussion on the statistics of DVOs.

Faced with an isolated set of facts and the inability to contextualise the behaviour of the complainant, that (incorrect) presumption of guilt is only going to be even worse.

The societal narrative that a female complainant must be automatically believed, protected from difficult questions or scrutiny, and the male defendant should be publicly vilified will be readily perpetuated as a result of these laws.

Rights Eroded

More and more, rights that defendants would have previously taken absolutely for granted, are being eroded through legislative intervention.

There have been changes to certain types of bail application, changes to presumptions that must be made in a party’s favour, the woefully drafted and ambiguous offence of “coercive control”, and now significant erosion of the ability to even ask questions of a complainant concerning a serious offence.

The trend is not a good one if you happen to be a male person accused by a female person. While reasonable protections might be called for, arguably, the current haste to legislatively impede a defendant’s chances to demonstrate their innocence should not be a stick that is waved too readily or swung too frequently.

After all, if society decides to turn its collective attention to some other kind of issue, it’ll now take barely a scratch of a pen to apply these serious changes to more and more different kinds of offences, given the building blocks are in place.

Charged with a Sexual Offence? Get Advice Immediately!

If you or someone you know are under investigation for, or have been charged with, an offence of a sexual nature, it’s imperative that you get advice from criminal lawyers immediately.

These changes we’ve mentioned above are not the only things you need to be careful about, and it’s important you have a good team with you along the way.