Witness

Reviewed by Catherine Gleeson

Louise Milligan is an investigative journalist who has exposed dark conduct in Australia’s most powerful institutions to the light. In this book, she explores the flaws in the justice system by examining how witnesses are treated, particularly witnesses who are also complainants. The labourers and guardians of the justice system, its barristers and judges, do not come off well in this exploration.

Milligan starts the book with an account of her own feelings before and after giving evidence at the committal hearing of Cardinal Pell (detailed in the eighth to ninth chapters). During that cross-examination it was put to her that she intended to pervert the course of justice, that she sought to 'poison the public’s mind' and that her communications with a source were 'charming, if not flirtatious.'1

She goes on to examine a number of hearings in which the cross-examination of witnesses was crucial to the outcome: the rape trials of Luke Lazarus and Nicholas Weston, the Independent Commission set up as part of the Catholic Church’s Melbourne Response, the child sexual assault trials of John Aitchison, George Pell, Stephen Farrell, John Laidlaw and Robert Sharwood; the grooming and stalking trial of Peter Kehoe.

In respect of these hearings, Milligan extracts transcripts of cross-examination of the witnesses, which she weaves in with the accounts of the witnesses and their families about their experience, and astonishingly frank interviews with some of the barristers undertaking the cross-examination. These barristers are often of the older white male variety and this shows in their comments, and the manner of their cross-examination.

In the chapter ‘I’m not that guy’ Milligan engages with whether the old style of cross-examination directed at ‘rape myths’ as to how a genuine victim would act and how they would not act, still exists despite evidentiary and procedural reforms designed to protect complainants. Milligan presents evidence, both academic and anecdotal, that the practice survives. In the same chapter many defence barristers bemoan these reforms because, they assert, the pendulum has swung too far away from complainants and it is too difficult to secure an acquittal. Milligan counters this assertion with statistics showing that between 2009 and 2018, seven per cent of cases reported to police resulted in conviction. The chapter concludes with a disturbing account of the vicarious trauma suffered by barristers who regularly prosecute and defend sex assault trials. The accounts of the barristers she interviews about their experience are honest and touching.

Much of the book focuses on stories already covered by Milligan, and none more than her experience covering, and being involved in, the trial of George Pell. It is unsurprising therefore that the bête noire of the book is Robert Richter QC, who gained notoriety for his particularly aggressive defence of the Cardinal at committal and at trial, but not on appeal. He is not interviewed for the book but his cross-examination of Milligan and other witnesses is heavily criticised. Unlike some of the other barristers interviewed for the book, the reader comes away with a vivid picture of Richter’s skill and his failings, but none of the insight about what motivates him to practise as he does.

Milligan also touches on other ways in which complainants’ experiences of the justice system cause pain, beyond their experience as witnesses: the institutional failings of schools and churches that result in the perpetrator and not the victim being supported, and the related issue of the courts’ ready acceptance of character references from respected persons, without any regard for the fact that it is often an abuser’s role in society and unblemished reputation that enables him to commit the offences of which he is convicted. She gives an account of making a complaint of harassment and stalking only to have the matter disposed of without her being contacted to give evidence, or even being informed of the outcome.

Perhaps as a consequence of her previous involvement with the subjects of the book, Milligan’s approach to the writing of the book is intensely personal: her accounts of her own experience are detailed and immediate, her coverage of the experiences of the principal witnesses betray the personal association that a journalist often develops with a source. She is as much an advocate for these complainants as she is a reporter. This is not inappropriate when regard is had for the subject matter and it makes for engaging reading. As with Helen Garner’s coverage of legal proceedings, you feel as if you are in the courtroom with her, sharing the strangeness and intimacy that one feels observing a trial, absorbing the emotions felt by the participants.

The final chapter explores ways in which the justice system might improve the experience of victims of sexual assaults. These include revisiting many of the reforms designed to protect complainants, such as suppression orders and remote evidence, that have proved to create their own problems for victims of sexual assault.

Many of Milligan’s observations are astute, none more so than that witnesses and particularly victims are utterly at sea when they come to court to give evidence: without an advocate of their own; with a criminal justice system that is structurally incapable of either preparing or supporting them in the experience of giving evidence; with a Crown constrained by independence, fairness to the accused, time and funds from ever being able to properly protect them; they wander into and out of their own trial largely alone. Milligan canvasses the arguments for and against providing lawyers for victims and makes a compelling case for an advocate to represent the final corner of the triangulation of interests in any criminal trial.2

Of most interest to barristers reading the book is Milligan’s unflinching depiction of our conduct, often as told by us. Early in the book she makes an observation of her discussions with barristers that gives some insight into why the criminal justice system struggles to meet the needs of victims, and why that must change:

'….It says things about how the Bar sees victims. Or how it doesn’t see them. 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, but then they change the subject.

Their responses often range from clearly pained and empathetic but not quite knowing what to say, to still and cold and legalistic, to paternalistic and heartless. Victims seem to be a problem for barristers. They don’t quite know where to put them. They know their system doesn’t treat them well and they don’t know quite what to do with that.'