That is the issue with which Louise Milligan grapples in her 2020 book, Witness. The result is too often a gruelling cross-examination that can retraumatise already vulnerable people, whether or not they avail themselves of the right to remain anonymous. However, to plant a reasonable doubt in the minds of a jury, defence counsel will inevitably attempt to discredit the evidence of the complainant, who is usually the only other witness to the alleged offence. He or she is also entitled to decline to give evidence – the “right to silence”. The accused is entitled to the presumption of innocence, until proved guilty beyond reasonable doubt. It’s a classic example of the dilemma that confronts our courts in the trial of alleged sexual offenders. Last week, the ACT’s Director of Public Prosecutions announced that there would be no retrial of Bruce Lehrmann, because it would pose a “significant and unacceptable risk to the life of the complainant”, Brittany Higgins.
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