The ACT is set to introduce a specialised sexual assault list, with the territory's top judge claiming a better balance can be found between conducting fair trials and evidence testing.
"I think the courts can do more," ACT Supreme Court Chief Justice Lucy McCallum told The Canberra Times.
"There's an intractable problem in that our overriding task and function is to ensure an accused person has a fair trial. So, that's immutable."
But the judge said sexual assault complainants, with the presumption of innocence afforded to an accused person, hear the court's message as: "We are entitled to think you might be lying until you prove that you're not."
"That's not quite how the system works but that's the messaging," she said.
"Part of what we can do without throwing fair trials out the window, I think we can do better in terms of reducing delay."
The list
Chief Justice McCallum is working on a practice direction to announce the list dedicated to progressing sexual assault cases to trial faster.
In theory, a sexual violence case committed to the Supreme Court would almost immediately land in the new list and be managed by a judge rather than a registrar.
The list is intended to help deal earlier with pre-trial issues and things like recording complainant evidence, or work out if legal problems can be dealt with later by a trial judge to help speed up a months-long process.
The Chief Justice also said she wanted prosecutors to present an indictment with charges, and for an accused person to be arraigned, at the beginning of proceedings.
"This is going to be across the board for all matters. At the moment the accused aren't arraigned until just before their trial," she said.
"I want them to be arraigned earlier, so that they have that focus with their lawyers to think about do they want to plead guilty or not guilty.
"They always can choose not to but I think it's important to maintain the focus on the fact that you're facing these charges, and you need to work out what you're going to do with them."
Cross-examination
"I fully accept that an accused person is entitled to have a barrister cross-examine the complainant and test their evidence," Chief Justice McCallum said.
"That's what a trial is. It's a trial of the evidence."
But the judge said courts had a statutory duty to disallow cross-examination questions that were "misleading, confusing, offensive, annoying, harassing, humiliating, or repetitive".
"So why aren't we doing that? Because we're all scared of not giving an accused a fair trial," she said.
"We need to recognise there's an imbalance and be more proactive in encouraging barristers to perform their function of testing the evidence in a way that is not breaching the Evidence Act.
"And that's the judge's function. I think judges need to own that responsibility a bit more."
Accused given 'significant leeway'
Erin Priestly, head of practice at the Sexual Violence Legal Service, agreed there was an imbalance and legal protections in place for cross-examinations were not invoked as they should be.
"We have observed judges to give significant leeway to the accused party to undertake cross-examination rather than to step in to ensure these protections are enforced," she said.
Ms Priestly said she continually observed rape myths invoked during proceedings.
"Perhaps most common is the myth that people will act in a particular way in the days, weeks, months and even years after being subjected to sexual violence," she said.
"This is particularly the case when the violence has occurred in the context of intimate partner relationships. A very common immediate response to being subjected to sexual violence is to do nothing."
The lawyer said rape myths reflect social ideas about what is and isn't sexual violence in the broader community.
"This means it's also critical juries have access to appropriate expert evidence about trauma responses and sexual violence, where appropriate, to combat these pervasive myths," she said.
The ACT Women's Legal Centre pilot program established last year aims to support complainants through the criminal justice system and "rebalance the scales".
Ms Priestly said the service supported the introduction of a specialised sexual assault court list, and its goals of reducing delays and achieving earlier resolutions.
"A specialised list is just one step in building faith in the criminal justice system. It alone will not achieve this, however, and it is just one change amongst many that are needed," the lawyer said.
"Such a list will only be successful where everyone involved - the judicial officers, the prosecutors, and defence solicitors - have adequate training on trauma responses to sexual violence and consider the design of processes to ameliorate these."
- Support is available for those who may be distressed. Phone Lifeline 13 11 14; Women's Legal Centre ACT 6257 4377; Canberra Rape Crisis Centre 6247 2525; Victim Support ACT 1800 822 272.
