- Witness, by Louise Milligan. Hachette. $34.99.
This is a book about the experiences of witnesses, says author, Louise Milligan. In trials for sexual crimes, the contest often boils down to one word versus another. The alleged victim, in these circumstances, becomes a "witness".
Although it is the complainant whose life and trust may have suffered the material damage, and although without their harm, complaint and testimony there would be no charge or case, at the trial the "witness" is not a party.
Meanwhile, the accused enjoys legal, cultural, and procedural protections, and the presumption of innocence threatens to manifest an inverse characterisation as "lying until proven the victim"', says Milligan; "The complainant can be absolutely forgiven for thinking that the system is comprehensively stacked against them."
Witness seeks to foreground the damaging experiences of marginalised "witnesses", to underscore the ways in which the criminal law, in its core and its social and cultural penumbra, is failing complainants of sexual crimes, and to reinforce the urgency of reform.
Milligan, an award-winning law journalist and investigative reporter, emphasises the need for the law to loosen its iron grasp on age-old doctrines in criminal law which minimise complainant trauma, and leave them under-resourced, under-represented, and under-defended.
Milligan constructs Witness from interviews with participants in criminal justice, as well as professionals and insiders. It is not an easy book to read. The accounts it provides are heart-rending and emptying.
The book centrally traces three main accounts: that of Saxon Mullins, who underwent a harrowing experience as complainant in the infamous rape trial against Luke Lazarus at the age of 18; that of Milligan herself, as a witness in the hearing of Cardinal Pell in 2018; and that of Paris Street, who, as witness in the trial of his groomer, Peter Kehoe, suffered a traumatising cross-examination and saw the leaders of his church and school community rally around his attacker. Peppered throughout are other stories of struggle.
In particular, the book frequently interrogates cross-examination. Witness provides punishing extracts from court transcripts which echo the repeated reports of experts and witnesses that the cross-examination was "as bad, if not worse, than the original abuse".
Notable also is Witness' concern for the toll exacted on barristers and legal professionals in these trials. Milligan's investigations and interviews see barristers driven from their families, disassociating from their work and themselves - something like a professional culture of Stockholm Syndrome. No one, it seems, escapes the courtroom unscathed.
"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," she writes.
Attention to the rights of the accused is a keystone in criminal jurisprudence. The famous Blackstone Ratio, for example - that it is better for 10 guilty men to go free, than for one innocent to be convicted - reoccurs in commentary of both Milligan and her interviewees as emblematic of the construction and self-understanding of criminal law.
Milligan pays much deserved heed to principles like these, but emphasises that attachment to these concepts with puritanical dogma appears increasingly out-of-touch and obstructive towards meaningful reform. Why, Milligan asks, should adequate protection of the rights of the accused necessitate the denigration of alleged victims?
"In their genuinely noble commitment to the presumption of innocence, there is often a sense that protection of the rights of the accused is a higher pursuit," she says.
"Protection of the rights of the victim is associated with the low-brow - the stuff of tabloid sentimentality. It's expected. It lacks nuance and substance."
With this said, Witness is not a review of legal reform, nor a focused endorsement of specific reform mechanisms. It is, in itself, a call for reform.
Witness alludes to legislative solutions, considers the work of commissions and NGOs, canvasses the actions of legal professionals to ford a new path. Somewhat hopefully. Sometimes bitterly. All a work-in-progress.
Evoking the agenda-setting power of journalism, Milligan points to the blood on the gears of criminal justice, and works to reinforce the importance of these human experiences in the reform of an area of law often bogged by its insularity and doctrinal "end of history" conservatism.
The remedy for this unjust state of affairs will still have to come, it seems, from the "slow beast" system itself.