A “fair trial” is central to our justice system. Someone who is accused of doing something terrible – a man accused of raping a woman, for instance – is entitled to the presumption of innocence. But as Louise Milligan argues in this blistering account, it’s difficult to interpret what happens to witnesses to sex crimes as anything like fair.
The problems of the legal system when it comes to sex crimes are legion, and have been documented in books the likes of See What You Made Me Do by Jess Hill and Eggshell Skull by Bri Lee. The numbers say it all: the Royal Commission into Institutional Responses into Child Sex abuse found only a quarter of sex crimes are reported, and only 8-15% end in convictions. Victims don’t make these claims up. In Witness, Milligan hones in on one problem in particular: the treatment of witnesses in the courts. It’s a carefully chosen subject. Because sex crimes are sorted out between the Crown and an accused, the victims of sex crimes, the complainants, are defined as witnesses. This means they aren’t entitled to legal representation, and are subject to the brutal process of cross-examination by defence barristers, who only have to prove that to a jury that there is reasonable doubt that a crime occurred. Many witnesses say that this process is re-traumatising, and is in fact worse than what happened to them in the first place.
At it’s core, Witness is reportage of three high-profile trials of sex crimes: that of Saxon Mullins, raped in a Sydney alley when she was 18 (the man was acquitted on appeal); Cardinal George Pell, who faced two charges of child sex crimes before the Royal Commission found he knew about those committed by many others (one set of charges was withdrawn, the other overturned in the High Court); and Paris Street, who was groomed by his athletics coach while at St Kevin’s College in Melbourne at the age of 14 (the school supported his perpetrator). Milligan produced Four Corners reports on each of them. In each trial she shows persuasively how the system fails victims. Defence barristers hector and bully and tie their vulnerable witnesses in such knots that they give evidence against themselves. The process leaves them shattered.
Milligan experiences this herself when she is called to be a witness in one of the Pell committal hearings, because she was the first person one of the victims told about his abuse. Even with her privilege as a journalist, her legal education and connections and support from her employer, the ABC, she find the experience of being interrogated by Robert Richter QC harrowing. She writes of the experience in second person:
the next morning you wake to feel like a Mack Truck has driven through the walls of the room and flattened you. Every single bone in your body aches in the way it does when you have done a particularly grueling workout for the first time in months. You lie, unable to get out of bed … Your children walk into the room, but, seeing you, close the door behind them and scurry back downstairs.
Later she admits devastatingly that the only other experience that comes close to it was the death of her first husband.
The solutions are known, and in fact many have been put in place in the past two decades. There are limits to what defence barristers can ask, particularly around sexual history, and they are not meant to bully or intimidate witnesses. Witnesses can appear remotely, so they don’t have to sit before their perpetrators (although, perversely, this benefits the defence). There are witness assistance programs, and comfort dogs that can accompany witnesses in court. But Milligan shows that these measures are poorly enforced.
The problem at its core, Milligan argues, is the cognitive dissonance barristers experience due to the work of defending. Despite evidence to the contrary (trials and convictions are actually declining), many seem to think that the system is now stacked in favour of complainants, which reminded me of the fallacy of oppression, that when you’re in a position of power, equality feels like oppression.
When it comes to talking about victims, I’ve often found barristers switch off. They go silent. There’s a feeling that they don’t want to know, but they don’t want to show that they don’t want to know. They listen patiently, then they change the subject.
Asking barrister John Desmond about a complaint from a witness about his cross-examination style, he responds, “that’s how she felt. Big deal, I feel Collingwood should win the premiership – not relevant to the process!” Peter Morrissey SC, Milligan’s barrister for the Pell committal hearing for which she was witness, wonders “is it as bad?” when Milligan puts to him that cross-examination is as traumatising for victims as the crime itself (a finding of the Royal Commission). Part of the problem here is generational: many of these senior barristers are older, white men who grew up in a different world.
This is a work of journalism and much of its power comes from the unparalleled access Milligan gets to legal professionals and transcripts of trials. It’s astonishing the things that barristers and judges say to her on the record. She retells many of the crimes in detail: these sections are utterly harrowing. But somehow just as bad is the 90-minute interrogation from Robert Richter QC Milligan faces about anal anatomy in the Pell committal hearing, all too telling about what the experience of the victim must have been like. Milligan writes with nail-biting journalistic flair; it is an effective technique to write against the dehumanising legalese of the system with what defence barristers might disdainfully dismiss as “sentimentality”.
Milligan has continued her work this year in exposing rape allegations against former Attorney General Christian Porter. A defamation case brought by Porter against her and the ABC has just been withdrawn. It is a sign that the work is not done, perhaps never can be. This is a tragic story, but what shines through is Milligan’s journalistic excellence, holding power to account in the relentless search for truth and justice.
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