134 In order to render a State Supreme Court an unfit repository of federal jurisdiction it is not enough to label a function as "legislative" or "quasi-legislative". It is necessary to look at the jurisdiction conferred by the statute and analyse the extent, nature and quality of the alleged incompatibility.
55 Whatever the principle in Kable, it has been invoked on numerous occasions in appellate courts without success. The only two occasions in which Kable has resulted in a declaration of invalidity were Kable itself and in the decision of the Queensland Court of Appeal in Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249.
56 The facts in Kable and the Queensland decision are far removed from those in the present case.
57 Kable involved a law directed at one man. The law empowered the Supreme Court to order his detention in prison for a specified time, if satisfied of various matters. When the law was passed Mr Kable had already been dealt with by the criminal law with respect to all offences with which he had been charged. The law was found by the majority of the High Court to be one that required the Supreme Court to act in a manner incompatible with the integrity, independence and impartiality of the Supreme Court as a court in which federal jurisdiction had also been invested under Chapter III of the federal Constitution. The ad hominem nature of the legislation as found by the High Court and the narrow constraints within which the Supreme Court's jurisdiction was constrained were factors which, in combination with others, contributed to its constitutional invalidity.
58 I share the concerns expressed by Winneke P and Hayne JA in R v Moffatt that it is not easy to discern what it is that pushed the legislation in Kable over the line. For many reasons, including the fact that I was counsel in that case, I refrain from further elaboration on that statement. Novelty in itself cannot be the hallmark of invalidity. I am confident that the combination of vitiating factors in Kable are absent in the present case.
59 Some of the reasoning of the majority in Kable proceeds on the basis that the legislation there in question was seen by the High Court as bringing the Supreme Court of New South Wales into public disrepute. I am unaware of authoritative guidance as to how a court gathers information as to the potential application of such an open-ended constitutional criterion.
60 Be that as it may, the present legislation falls far short of such a description. Section 294A is general in its application. It is modelled on legislation previously enacted in this State with respect to children, and enacted in other jurisdictions including overseas jurisdictions. It is not a "bill of pains and penalties" or a legislative judgment directed at specific individuals. It does not require a court to proceed to conviction upon untested evidence, because the accused person in cases such as the present has the effective right to counsel in accordance with Dietrich's Case as well as the alternative right to use a court-appointed questioner in accordance with the statutory regime.
61 In my view, the section falls very far short of satisfying McHugh J's description in Kable (at 118) of legislation that "might undermine public confidence in the impartial administration of the judicial functions of State courts".
62 Contrary to the appellants' submission, this law was not conceived and enacted to bring about their conviction. Nor is it tainted by racial prejudice or other improper discrimination. The law was the product of weighty consideration by the Law Reform Commission, whose members acted on a reference from the Attorney General dated 27 March 2002, ie before the very offences for which the appellants stand convicted. It is understandable why Parliament would have decided to enact subsection (8). More to the point it was Parliament's constitutional right to determine that and all other aspects of the policy enacted in the provision.
63 Accordingly, in my view, the appeals against conviction should be dismissed. The applications for leave to appeal against sentence that have been foreshadowed will be heard and determined at a later time.
64 WOOD CJ at CL: I agree with the President that the appeals against conviction should be dismissed for the reasons stated. I wish to add some brief observations of my own, confined to the proposition that section 294A of the Criminal Procedure Act is an unfair law, a proposition which in my view should be rejected.
65 Anyone who has experience in relation to the prosecution of trials involving sexual assault cannot be other than acutely aware of the additional risk of victimisation which can accompany the giving of evidence by a complainant.
66 The giving of evidence in chief in such a case is in itself humiliating and embarrassing and it involves the victim reliving what can only be one of the worst forms of forced invasions of the person imaginable, short of murder, being one which also poses the risk of an unwanted pregnancy, and of serious and occasionally fatal sexual infection. Each was a risk in this case since some of the assaults were committed without the use of a condom.
67 If examination in chief of a sexual assault victim is traumatic, that factor is multiplied when the complainant faces a cross-examination in which his or her veracity and/or morality is challenged. Where the cross-examination is conducted by counsel, there are constraints which are built upon the professionalism of those who are trained as advocates, who are bound by an ethical code, who are subject to peer assessment as to their fairness and competence, and who are essentially independent in that they lack a personal interest in the outcome of the prosecution. Moreover, if they stray, they are far more amenable to control by judges who are able to exercise the power reserved to them under section 41 of the Evidence Act.
68 The same does not apply where the cross-examination is conducted by an accused, who has an immediate self interest in the outcome, who is not bound by any ethical restrictions, and who does not have any training in relation to admissible evidence or permissible cross-examination.
69 The use by that person of the opportunity to confront and to challenge his alleged victim personally and directly risks diverting the integrity of the judicial process, insofar as it is likely to intimidate the complainant to the point where he or she is unable to give a coherent and rational account of what truthfully occurred. The threat of its occurrence may also discourage a victim of sexual assault from giving evidence or even from making an initial complaint.
70 None of these is an outcome which the justice system in this country can tolerate, since it is dependent upon persons who commit crimes being punished, and upon their trial being conducted in a way that is fair both to the community and to the accused alike.
71 It is that factor, along with the need to avoid the trial becoming a vehicle for the further victimisation of the complainant at the hands of an accused, who may use the occasion as one in which to engage in grandstanding, insulting and denigrating behaviour, which led to the enactment of section 294A of the Criminal Procedure Act.
72 Legislation of this kind is not unique. It has a precedent in other jurisdictions in this country and overseas, for example, England and Scotland. It was enacted after careful inquiry by the Law Reform Commission in which submissions from the community were received, and it had bicameral support.
73 The Law Reform Commission Report 101 was delivered in June 2003, prior to the commencement of this trial. It arose from a reference by the Attorney General that had been made in March 2002, before the offences which were the subject of this trial.
74 It is not correct in those circumstances to say that the law was enacted specifically for the present appellants, or directed against them, and their views to the contrary are as baseless as their suggestion that members of the Bar of this State hold the racial or religious prejudices which they seek to ascribe to them.
75 In truth, the provision was one which was designed to strike an important balance between the conflicting but legitimate rights that arise in this context, and it preserved an opportunity for an accused person to test the prosecution case in a way that in my view was compatible with the interests of justice. The position no doubt would be otherwise if the section had created an absolute prohibition against the cross-examination of a complainant. It has not done so.
76 Every accused retains a right to be represented by competent counsel engaged at the expense of the State, who has a full opportunity and entitlement to present a defence and to cross-examine all witnesses.
77 Accused who refuse the opportunity of legal representation which is available to them, have preserved a right personally to cross-examine all witnesses other than the complainant, and they are also free to call evidence themselves and to address the jury. They have the additional right to have an independent person put to the complainant such questions as can properly be put.
78 Should they follow the course taken by the present appellants and deprive themselves of independent legal representation, or of that additional right, it is difficult to see why they have any basis whatsoever for claiming that they were denied a fair trial.
79 In their submissions the appellants pointed to what were suggested to be concerns in relation to uncertain aspects of the section, or problems in its practicable implementation. This was related to issues which were said to arise concerning the way in which the Court might appoint a suitable person; the way in which an accused might convey to the court-appointed person those questions which he wished to have put, particularly those that might arise in the running of the trial; and the way in which arguments as to their admissibility might be resolved: concern was also identified in relation to why it was that the section contemplated the court-appointed person examining and re-examining the complainant, as distinct from cross-examining that witness.
80 None of these matters, it seems to me, operates as an effective obstacle to a fair trial. There is no difficulty in the way of the trial judge considering, before the commencement of the trial, the appointment of a suitable person who is either nominated by the accused, or who is made available on a pro bono basis following representations either to the Court or to the Law Society or the Bar Association. Such person need not be legally qualified and could come from a wide cross section of the community.
81 Obviously the accused would be entitled to speak to that person in advance of and during the trial, and in the course thereof, to identify the questions which he wished to be asked. That would not be confined to submitting questions in writing. Nor is it the case that the accused would be denied the opportunity of a short adjournment during the trial, if necessary, to formulate fresh questions.
82 The restriction in the section relating to the giving of legal advice, which has an obvious relevance so as to relieve the court-appointed person from the duties which might otherwise have attached to a person who had accepted instructions or a brief from the accused, does not restrict the formulation of questions.
83 Equally obviously, any ruling on the admissibility of the questions will be determined in the absence of the jury after the accused is heard, and in circumstances where the accused would be given the opportunity, if need be, to reformulate the question in an admissible form.
84 The fact that the section extends the right to the appointed person in relation to examination and re-examination is not surprising. It was obviously formulated in that way so as to prevent the purpose of the section being subverted by the accused endeavouring to recall the complainant in his case.
85 In relation to the submission that the jury might form an unfairly prejudiced view in relation to an accused who takes the course which was here adopted, I merely point to the directions which are required by section 294A(7) which were given by his Honour. I observe that his Honour amplified those directions over eleven pages of the summing up, going well beyond the advice which the section requires.
86 With the greatest respect to his Honour, I take the view that it was inappropriate for the section to have been dealt with in terms which involved a trenchant criticism of a piece of legislation which was enacted in this State after careful consideration by the Law Reform Commission and by the Parliament.
87 There is no reason why the jury should be assumed to have done other than to have given full respect to the directions which were given, which, as I have indicated, were on one view, at least, unduly favourable to the appellants.
88 I am not persuaded that the giving of the required directions, or the application of the section involves any risk of a jury determining the guilt or otherwise of an accused, except upon the basis of the evidence which the parties have placed before them.
89 In all of those circumstances I am unpersuaded that any unfairness or discrimination existed of the kind that might have been given rise to any question as to the constitutional validity of the section, within the reach of the principles which in my respectful opinion have been correctly and sufficiently stated by the President. I would dismiss the appeals.
90 BARR J: I agree, for the reasons given by the President, that the appeals should be dismissed. I agree with the additional remarks of the Chief Judge at Common Law.
91 MASON P: Each appeal is dismissed.