COURIER-MAIL: When Children Pay For Justice: Two Wrongs [Legal tactics used on child victims of rape]

The Crime Commission is considering radical change. Michael Ware reports

UNTIL just a month ago he was an accused child molester. Now he walks the streets a free man.

But he hasn't been cleared, or found not guilty. And the 11-year-old girl, who claimed he had interfered with her, has not admitted fabricating the story. The man has simply walked away, scot-free.

A jury will never have the opportunity to determine his guilt or innocence and an unanswered black mark hangs over his head.

When she came forward, some time ago, the police investigated the girl's claims. The more they looked, the more her story appeared to ring true. Charges of indecently dealing with a child under the age of 14 soon followed.

The allegations could not be dismissed lightly and the man's committal hearing in a Brisbane Magistrates Court took place in late February. It was a torrid affair.

When her time came, the young girl braced herself to take the stand: her chest pounding, her heart full of trepidation. At first she stood her ground, taking the hand-fed questions from the prosecutor. That part was easy.

But then things changed. The defence barrister rose from his seat, looked up from his notes and drew a breath. From the moment he first spoke, the child began to quiver. The barrister's booming voice filled the room. She thought he must be screaming. Question after question. Unrelenting. Unwavering. So personal, so intrusive. Her body began to shake uncontrollably, tears blossomed in her eyes. Her strength dissolved before his eyes.

Her distress was evident and the barrister was asked to lower his voice. You're frightening the witness, he was told. More than three times he had to be stopped, so the child could regain her composure. But the ordeal was rapidly tearing her apart.

Before too long she had lost it. Rocking back and forth in her chair, the questions rolling on, her tiny hand held a handkerchief to her mouth. Her timid responses became virtually inaudible. To those who were there, she seemed scared out of her mind.

"Why are you being so mean to me?" she implored. "I just want my Mum."

Mission accomplished.

But what was it all for? Despite being committed to the District Court, the man will never stand trial. That was the first, and last, time the girl would give evidence. Her mother refused to expose her to more. Once was enough. Left with no other choice, the office of Director of Public Prosecutions Royce Miller, QC, withdrew the indictment.

"That's not an isolated incident," Miller said this week. "It's not that uncommon, I'm afraid."

According to the Australian Law Reform Commission, he's right. For some barristers, particularly at committal stage, it's a stated tactic to intimidate the child; muscle them out of the game.

"The absence of a jury at committal can leave defence counsel free to pursue aggressive and intimidating tactics," a 1997 ALRC report on children in the legal process found. "Many defence counsel seem to proceed on the basis that the more intimidating and terrifying the committal is for a child witness, the less likely it is that a child witness will be willing or able to give evidence at trial."

Another mother remembered: "When my 14-year-old daughter was put up to be cross-examined, she was up for five hours . . . When cross-examining her (the defence barrister) accused her of doing this for gain of money. He told her he thought she reacted like she did because she was sleeping around. Mind you, at the time of the assault, she was nine years old... In two sentences he ruined my daughter. She came out of court, she was sick, she could not stop vomiting."

Other stories abound. In April, a Brisbane committal fails apparently because a 16-year-old, allegedly abused from the age of 11, asks for a volunteer supporter to sit next to her in court. Mum or Dad weren't there. She had to face That Man. But the magistrate refused, even in the absence of a jury.

And the same month, in the District Court, two girls tell of alleged abuse by a man. Both in their early teens, an almost all-male jury (10 to 2), and again not a family member in sight. Can a volunteer supporter be with us as we testify? Again, refused. It would be prejudicial to the jury, they're told. Their evidence was adversely affected and they feel the man was acquitted as a result.

All this despite the ALRC recommendation: "Children should be allowed to choose at least one person who may come into the courtroom with them while giving evidence. This person should be permitted to sit next to the child while the child gives evidence."

The issue of how we protect (or, rather, neglect) our children when they're forced to take the stand has flared hotly this week. A gripping audio tape of a seven-year-old boy's brutal, five-hour cross-examination at a Brisbane committal brought it home to national television viewers on the ABC's Four Corners this week. "Have you ever seen this (oral sex) done before?" the defence barrister grilled. "Have you ever been in the house when your mother's done this?"

YOU must be lying about your rape, the boy was told.

The boy and his then five-year-old sister haven't been the same since, their desperate mother says. Their alleged rapist walked free, a jury later acquitting him at trial, despite rips in the little girl's anal canal and semen on the back of the seven-year-old boy's underpants (boys that age do not produce semen).

A Crown prosecutor later summed it up: "The verdict in this trial was a crushing disappointment ... in my opinion, contrary to the weight of the evidence. This case provides a perfect example of the inability of the criminal justice system to protect our most vulnerable ... The children had been traumatised by the committal process and that affected them thereafter." For some people, this is the way, regrettably, it must be. Even with a child. A person's liberty could be at stake and, make no mistake, false allegations are made.

"I can see no evidence of a problem for children giving evidence," criminal lawyer and Australian Council for Civil Liberties president Terry O'Gorman said. More than 90 percent of accusations of child sex abuse taken to court resulted in a plea of guilty.

"There are institutional checks in place where, if you plead guilty, and save the child the cross-examination, you get a reduced sentence," he said.

"But the difficulty with this debate is that there are simply no figures for the rate of unsuccessful prosecutions. You can't have a debate without statistics.

"And these people and their studies that show all this traumatising: on what basis do they make these findings? All everyone is basing their conclusions on is simply what the complainants told them, as opposed to ordinary legal research where you go to the transcript, you make an objective assessment. But that's not happening here.

"And when people complain that closed-circuit television is not used to help the child give evidence ... they blame the defence. But it's the prosecution who choose, for reasons of tactics, to have children sit before a jury.

"I, like any defence lawyer who has any feeling, grit my teeth when I have to cross-examine a child," he said. "But I swore an oath of office to defend people without fear or favour."

Indeed, barristers are required to listen to their clients' instructions -- no matter what their personal view of them may be. But experienced counsel say it's not a matter of battering away at the child's story to do it successfully.

"It's more like a commando raid," one said. "You slip in, get what you want, and get out as quickly as possible. In front of a jury or not, you do not want to make the child cry, for any reason."

Crime Commissioner Tim Carmody, who is due to release a discussion paper next month on child sex offenders, said if the balance must be tipped, put it back the other way. "The world is full of injustice," he said. "If it is to fall anywhere, it shouldn't fall on the shoulders of children.

"Perhaps we need to be asking ourselves: what do we want to achieve here? Maybe it's a matter of offering more options, like a diversionary system, a treatment-oriented approach. Or is there some other option instead of the current dilemma -- make a complaint or not; be institutionally victimised or not? There has to be some middle road.

"The criminal justice system at the moment is a proven failure in child sex abuse cases. And we have to confront that really hard question: is our system serving our children well?

"With all the submissions, Project Axis (the Crime Commission's upcoming paper) raises the question of moving from an adversarial system, where the child's interests oppose that of the accused, towards an inquisitorial system where we seek the truth. Perhaps instead of a judge we should have a tribunal of experts hearing these cases. These are some of things we will be raising."

APART from hardcore defence lawyers and extremist groups, it is widely conceded children are being unduly re-abused within the justice system. So where to from here? Do we tinker with the old, or do we search for a greater, more holistic answer (although such a move will be opposed by a largely static and conservative legal profession)?

"You don't want dramatic changes," former DPP, and author of a groundbreaking 1986 report on child abuse issues, Des Sturgess, said. "I'm a conservative at heart -- use the current system and modify it. Trial without jury, that'll take them another 10 years to get around to that one."

Much of what Sturgess recommended -- such as use of video recordings of a child's entire evidence, both examination-in-chief and cross-examination, played before the jury -- is now on the table again.

And with 1216 children giving evidence in Queensland from 1994 to 1996 in proceedings involving sexual assault charges, it's time changes were made.

It appears real change is actually in the wind, because Queensland has been moving towards reform since the most recent Coalition government initiated a Queensland Law Reform Commission review. Former Attorney-General Denver Beanland doesn't want a politically charged debate leading to a knee-jerk response. And current Attorney-General Matt Foley says he's approaching the issue with an open mind, even refusing to rule out radical change.

But most of the legislative protections are already in place, such as the use of screens to shield children from the accused in court, use of closed-circuit TV and the removal of the need to warn juries against accepting children's inherently "unreliable" evidence (because research has shown it's no more unreliable than adults') at face value.

Yet the old practices persist, suggesting it may be necessary to enshrine these protections into law as the first option, rather than the possible alternative, available at the judge's discretion. Perhaps the onus should be the other way round, with the discretion to rule them out rather than in.

Or should we adopt the West Australian model, where video evidence means no child under 12 enters a witness box? Either way, the legal and, after this week, political winds of change are blowing.