A new law recently passed by the NSW parliament is going to make it even more difficult for defendants who cannot afford a lawyer to defend themselves.
The law is part of a suite of reforms aimed at making it easier for complainants (alleged victims) in domestic violence (DV) cases to give evidence in a court case. It will prohibit an accused person from directly cross examining (questioning) the complainant as part of their defence. Instead, the court will need to appoint a person or use technology (such as text to voice applications) to read out questions for the complainant as the accused writes or types them out.
On the surface, this seems like a sensible reform. It means that a complainant will not have to be confronted directly by their alleged abuser in court. Unfortunately, as is all too often the case, the right of an accused to a fair trial has once again taken a back seat.
Cross-examination is the main, and sometimes only, way that the evidence of a witness in a court case can be tested. Effective cross examination is not just about what you ask the witness, but also how you ask it. Tone and tempo are very important. By interrupting the flow of cross examination by the need to write down or type the next question to be put to the complainant, much of the effectiveness of cross examination will be lost. Even more will be lost by the questions being spoken by a computer or a disinterested human intermediary, without the right tone, intonation and cadence. The result will be that an accused who will be forced to conduct cross examination in this way will be at a huge disadvantage.
What is most galling about this reform is that it will disproportionately effect socio-economically disadvantaged defendants who cannot afford a lawyer to represent them, while Cashed-up defendants who retain a competent lawyer to cross examine their accusers for them will not be affected by the new law. To add insult to injury, this new regime is being introduced in the context of cuts to legal aid in recent times, which mean that fewer and fewer people have access to a free legal aid lawyer. So, in the end, the government is making it harder for those accused of DV offences to defend themselves without a lawyer while at the same time strangling their access to legal representation.