ALRC Recommendations on Sexual Assault Justice

The Australian Law Reform Commission handed down 64 recommendations aimed at improving how the justice system handles sexual assault matters, now before the Attorney General. Matt Ward gives his reaction as a defence lawyer to mandatory training, victim navigators, restorative justice options and the recommendations’ treatment of expert evidence.

Melinda James: It’s clear that there are some within the justice system who believe something needs to be done to improve the achievement of justice in sexual assault cases. The Australian Law Reform Commission says our justice system is currently letting down victims and not achieving justice, and there are 64 recommendations currently before the Attorney General. Joining me now is Matt Ward, defence lawyer with the Morrisons Law Group. Matt, good morning, thanks so much for talking to us.

Matt Ward: Good morning. Good to be here.

Melinda James: There are a few recommendations that have garnered the most attention — maybe we could get your reaction to those, and the pros and cons. First, mandatory training — do you feel we’re still confronting persistent rape myths and misconceptions among police and lawyers?

Matt Ward: I think these things are complicated, and also very individualised across different scenarios and cases. But I welcome there being more information and training, both for police, courts and everyone involved in this process. The better everyone can understand and be informed, the better the process will be, in my view, for everyone.

Melinda James: I can’t imagine anyone really complaining about mandatory training too much. Do you see persistent myths playing out in the courtroom, or hear about it?

Matt Ward: It can vary so much depending on the case — these cases are very individualised and personal, and can also depend on how the case is run, which can be individual to the advocate on either side. So there are certainly some misconceptions and perceptions, whether by jurors or people who work in our field, which means training can help everyone better address these issues in court in the proper way.

Melinda James: There was another recommendation for a specialist navigator to help victims choose the best pathway for their case — some are calling it an independent lawyer attached to victims. What do you think about that idea?

Matt Ward: At the moment there are certainly support services in place, but normally, and often, only after an allegation has been made and started. I think it’s a really good idea to have support people, or more information, for complainants of these allegations, because that person may have a different pathway they want to explore — the criminal court, the civil court, or some other way that’s right for them. I don’t think anyone should be pressured into a big decision like proceeding with a criminal allegation without having all the information about what that entails. Whether we should have an independent lawyer, I’m still a little unsure — I don’t think there’s a huge amount of clarity yet about what that role would be — but I definitely welcome more information for complainants to get a really good understanding of their options and what flows from those choices.

Melinda James: Another recommendation was pursuing more restorative justice, as opposed to playing things out in our adversarial system — bringing victims and alleged perpetrators together to reach some kind of understanding or resolution. What do you think?

Matt Ward: I think there should be individualised ways we can assist victims and complainants, and that could be one of them — every person is different, every case is different, and they have the right to decide how they want to move forward, whether that’s through criminal proceedings, a restorative process, or another form. I think there should be flexibility of choice, rather than just proceed with criminal allegations or don’t. There’s got to be more we can do about that.

Melinda James: Is there anything else you see, as a defence lawyer, in terms of pros and cons of the recommendations — noting we’ll probably be waiting some time before we see the Attorney General’s response?

Matt Ward: A few things to bear in mind — this is an Australia-wide assessment, and there are many measures, not perfect, but already in place in New South Wales. There’s a child sexual assault evidence scheme involving pre-recording of children’s evidence. There are support persons already available in sexual assault matters, and court-appointed questioners so unrepresented accused people can’t directly question complainants. But one of the biggest concerns in my mind is the issue of expert evidence. The law allows expert evidence in many forms, but it has grappled a little with an expert witness in these proceedings simply boosting the credibility of the person who’s made the allegation, rather than giving evidence within their actual area of expertise. That’s one of the big challenges the courts, and then the Attorney General, will need to grapple with.

Melinda James: We’ll see what the Attorney General’s response is — I know there’ll be a lot of people watching with interest, though it will certainly be after the election. I really appreciate you talking to me this morning, thank you very much.

Matt Ward: Pleasure.

Transcript lightly edited for readability (false starts, crosstalk removed).