Angela Costi reviews Witness by Louise Milligan
Witness
by Louise Milligan
ISBN: 9780733644634
Reviewed by Angela Costi
The Trauma of Trial for Survivors of Crime
Traditionally, an investigative journalist provides an in-depth analysis of a matter or issue of public concern without having experienced the problem being uncovered. This is not the case in Witness. In Louise Milligan’s book there is a merging of non-fiction and memoir as Milligan shares her personal experience of being called as a witness in the trial of George Pell. The detailed interviews with a vast cross-range of participants and players in the judicial system, together with the lived experience of the author, provide an absorbing account of being a witness within a criminal trial process. Witness is an invaluable addition to the well-spring of accounts by survivors of crime, advocacy agencies and law reform bodies seeking to reappraise the legal system’s treatment of witnesses in sexual offence matters.
We are introduced to the legal process through the journey of the survivor and note the number of people involved, including the police officer, the prosecutor, the defence lawyer, the judicial officer, the social worker (Witness Assistance Service) … But their roles are contained or constrained according to regulation and practice, which further adversely impacts survivors. We come to understand that the victim of a sexual crime has a compromised role from the moment they report the crime to the police, and during the legal proceedings instigated – they are “a witness”, which involves being cross-examined. This adversarial process entails the prosecution lawyer and defence lawyer going into ‘battle’, the former to prove the case beyond a reasonable doubt and the latter to create doubt within the collective mind of the jury. It’s an anomaly (or an apathy) of the criminal adversarial system that requires a victim of a sexual crime to be a witness to the crime itself in the proceedings. A daunting and traumatic task. Milligan’s account of the cross-examination process shows how “blunt and brutal” it is for the survivor who is also treated as a witness.
Milligan provides transcripts of questions posed by defence lawyers where in order to garner a seed of doubt for their client’s case, they are prepared to override courtesy and respect. Some of the cross-examination tactics used include humiliating the survivor with particular tones, such as ones associated with derision or incredulity, using double-negative questions to deliberately confuse, “asking so-called ‘tag questions’ phrased in the negative – ‘he didn’t do it, did he?’” and being preoccupied with graphic and unnecessary details of the crime to garner emotive reactions for tactical advantage. As Milligan states, the impact on survivors is as bad as the crime itself:
Certainly, for the countless survivors of sexual crimes I have spoken to over the past few years, there is one commonality that stands out perhaps more than any other: to be disbelieved and disrespected in a courtroom when you are reliving a terrible event from when you are a child, or a vulnerable young woman, cuts people to the bone. I’ve spoken to people who have abandoned the process because the undermining that inevitably occurs is just too much. And to people whose loved ones killed themselves before the process of assassinating their characters was over. (21-22)
Milligan brings this heart-breaking statement home through an extensive account of what happened to two survivors. Firstly, we meet Saxon Mullins. Reflective and resilient Saxon Mullins speaking her truth despite a harrowing, “dehumanising” cross-examination experience. We learn of her ordeal in the alleyway, her courage to report, the five years of back and forth in court, how the conviction by a jury was appealed against by the well-resourced accused, Luke Lazarus. The matter was eventually left in legal limbo as the NSW Court of Criminal Appeal found that the judge erred in her decision (by failing to consider steps taken by the accused to determine consent) however, a retrial wasn’t allowed. This understandably sparked a public response for reforming the consent laws with the NSW Attorney-General, Mark Speakman, stating:
Look, it’s not a satisfactory outcome for a complainant to go through four hearings, two trials, two appeals, and in the end the accused has to be let go because we’ve had the judicial process going on too long. (135)
Milligan provides an intriguing post-trial interview with Ian Lloyd QC, the defence counsel for Luke Lazarus. She ventures into wanting to understand the personal motivations, emotional intelligence and empathetic awareness of defence advocates in sexual crime matters. Is there a “cognitive dissonance” that enables them to execute demoralising questions to survivors? She concludes:
From our discussions, I can see Ian Lloyd wants me to know that he has a heart. And he does. He empathises with these women and children who come before him with their awful stories. It is, by his own admission, ‘a very difficult process defending these guys’. (37-38)
Through her insightful interviews with defence barristers, Milligan asks us to consider questions such as: What type of system allows defence lawyers to feel comfortable transgressing the few in-built checks contained in section 41 of the Evidence Act regarding improper questions? What type of system allows defence lawyers to be at ease with and resort to unrestrained “bullying” or unchallenged “rape myths”? Milligan unravels these sorts of issues with various law reform and complaints personnel, including the Legal Services Commissioner, Fiona McLeay, who agrees that there is a long, long road towards change of this nature. As Milligan states:
In my hundreds of conversations with survivors over the past few years, I don’t think any of them have ever mentioned going through any sort of complaints process about what they endured in court. I get the feeling most of them would have no idea that the mechanism exists. And even if they did, they’re generally just too spent. (95)
Paris Street is the other survivor we come to know well in Witness. We are provided with an extensive account of his multiple ordeals: sexual grooming by a senior coach, Peter Kehoe, when he was a fifteen-year-old student at a private boys’ school; being harshly cross-examined by Robert Richter QC; actively “unsupported” by his school as they sided with the coach; writing an honest letter to Robert Richter about how:
I live with a scar in my mind from your cross-examination. (289)
Paris Street shared both this letter with Milligan and the disappointing response he received from Robert Richter. This exchange only served to compound the despondency and the futile wish for hope that there could be some acknowledgement, some change, so that a teenager’s experience of cross-examination isn’t another form of abuse.
However, many of the barristers interviewed by Milligan argue that the “pendulum has swung too far in favour of complainants.” To counter this, Milligan reminds us of the statistics born from studies of sexual assaults being reported to police and those being pursued in court:
An analysis by The Age and The Sydney Morning Herald newspapers of sexual assault statistics published in September 2019 found that of the 52,396 sexual assaults reported to NSW Police between 2009 and 2018, charges were only laid in 12,894 cases.
Of the 12,894, 7,629 went to court. Of those, 2308 were dropped at trial, 1494 found not guilty. The remaining 3827, or roughly 50 per cent of the total that went to court, were found guilty. That’s just 7 per cent of the cases that originally went to the police. (104)
Throughout Witness, we are reminded of this vast disconnect between the priorities of the adversarial system versus those of the survivor of the alleged crime. Milligan asks us to consider whether there is another way of gaining the truth without re-traumatising the victim/survivor? We are told that the Victorian Law Reform Commission is considering this question, among others, in its review of improving the response of the justice system to sexual offences. In the mix of reforms is a new approach of “restorative justice”, but there are serious reservations about its efficacy given it involves the victim/survivor facing their accused/perpetrator in the same space, where the power-imbalance is stark and still not alleviated.
One suggested way forward is for survivor/witnesses to have access to legal support in the form of their own legal representation in the trial process. However, many legal counsel and judicial officers are against this as they believe it compromises the presumption of innocence, the burden of proof, the public nature of the proceeding, the accused’s position in the eyes of the law… But as Milligan reminds us:
The complainant can be absolutely forgiven for thinking that the system is comprehensively stacked against them. (367)
Milligan does not evade her own experience of being called as a witness. She describes her heightened anxiety and panic from unreasonable documentation requests at short notice from the defence team for George Pell. Like Paris Street, Milligan was also brutally cross-examined by Robert Richter QC – the transcript of her cross-examination shows various undermining, offensive and discriminatory tactics being used by the defence. She describes feeling so “alone” in all of this despite her continual acknowledgement that, unlike other witnesses, she had a legal team supporting her. Rather than engaging in self-pity for her own predicament, she highlights the profound unfairness for the multitudes of victims who do not have the means or access to legal support that she was able to receive – they each sit utterly alone and unprotected in the witness box.
Towards the end of her book, Milligan is having a heart-to-heart moment with Peter Morrissey. It is here that she opens the wound of her experience as a witness:
the only thing in my life that was as bad as that day was when my first husband died. And I had to go and identify his body at the morgue. (372)
This is an astonishing statement from a seasoned investigative journalist we have come to know as courageous, sharp and tough. If the current system can retraumatise a journalist like Louise Milligan in this visceral way, we can only imagine the depth of damage to survivors. Witness takes a strong stance and calls this out as an injustice against survivors, and one which undoubtedly, needs to be changed.
ANGELA COSTI is a freelance writer with a community-engaged practice. She is a graduate of both Law and Professional Writing and Editing. She has worked as a lawyer in the local government and in the social justice sectors. The author of five poetry collections, nine produced plays and a community textbook. Her recent chapbook is Adversarial Practice (Cordite Poetry Review, 2024) and her recent book is An Embroidery of Old Maps and New (Spinifex Press, 2021). Her forthcoming book, The Heart of the Advocate is due out in March 2025 with Liquid Amber Press.