Telling Her Story: Assisting the Accusing Witness in Sexual Assault Trials

Abstract

The accusing witness in criminal trials for sexual assault often finds the process of testifying a horrendous ordeal. Where the witness is exposed to cross-examination by the accused in person or where the witness is required to testify at a second trial, the horror may become overwhelming. In the context of the Skaf case in NSW, the accusing witness has been faced with both prospects at different times. In 2003 the NSW legislature enacted the Crimes (Sexual Offence Evidence) Act to protect accusing witnesses from cross-examination by the accused himself. It has been held that the procedure did not cause a miscarriage of justice. In 2005 the same legislature is considering a proposal to allow video tape from a first trial to be used in a retrial. While these proposals clearly serve the therapeutic interests of the accusing witness, the question is posed whether they serve the interests of justice. The author advocates giving the accusing witness some control over whether she will testify in person but queries whether the use of videotape will it effective.