Melbourne Law School - Theses
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ItemProtective measures applicable to child complainants of sexual offences in the South African criminal justice system( 2008)Testifying in a courtroom is a stressful experience for any witness. This stress is heightened where the witness is a child complainant of a sexual offence. Not only will this child have to testify about the intimate details of the offence, but he or she will also have to do so in the presence of the alleged perpetrator in the formal environment of the courtroom surrounded by unfamiliar people dressed in black robes. The South African legislature has taken some cognizance of the difficulties that these vulnerable witnesses may face whilst giving evidence in the courtroom and has enacted various provisions which make protective measures available to them. Such protective measures include closing the court to the public during the testimony of the complainant, permitting the complainant to give evidence through closed-circuit television thereby avoiding confrontation with the accused and the formal courtroom environment, as well as permitting the child to give evidence through an intermediary who conveys the questions of counsel to the child in a language and form the child can understand. This study is based on a review of the relevant authority, judicial pronouncements thereon, academic literature on the subject, and to a limited extent empirical research of the practical application of these provisions in the South African courts. The aim of this study is to determine whether these provisions are achieving the purpose behind their enactment and therefore effectively providing protection to child complainants of sexual offences. The conclusion is reached that these provisions, are riddled with deficiencies and are further erratically applied. The provision which makes it mandatory to close the courts to the public during . the testimony of the complainant is completely ignored and prosecutors are still bringing applications for the closure of the courts, leaving presiding judicial officers with a discretion as to whether or not the public should be excluded from the trial during the testimony of the complainant. Furthermore, witnesses are often not aware of the provision which permits them to bring an application to give evidence via closed-circuit television. It has been argued that child complainants of sexual offences will always meet the requirements set out in that provision and that they should therefore be given an automatic right to give their evidence via closed-circuit television. On the other hand, witnesses have no standing to bring an application for the appointment of an intermediary and such an application can only be brought by the prosecution. Once the prosecution has decided whether or not to bring such an application, it is further subject to the discretion of the presiding judicial officer who may refuse to grant the application: This discretion has resulted in the inconsistent application of the section and an arbitrary application of the law which fails to uphold the values enshrined in the South African Constitution. It has been recommended that a more uniform and objective approach to invoking this protective measure is required. This study. recommends in closing that legislative reform is indeed necessary in order to provide more -effective and uniform protection to child complainants of sexual offences within the South African criminal justice system.
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ItemSecurity and liberty : Australia's counter-terrorism laws and freedom of expression( 2008)The legal subject areas covered by this thesis are international human rights law, Australian constitutional law and Australian federal criminal law. The thesis examines four selected provisions of the Commonwealth Criminal Code against the standards set by art 19 of the International Covenant on Civil and Political Rights (`ICCPR') to determine whether they breach Australia's international obligations to protect the right to freedom of expression. The four provisions are selected on the basis that they are identified as counter-terrorism laws that clearly affect the right to freedom of expression as defined in international law, and were controversial when they were enacted. The provisions are analysed carefully to identify their impact on freedom of expression. Article 19 is selected as the standard for the measurement of the effects on freedom of expression by the provisions because the ICCPR is the most prominent human rights covenant that Australia is a party to. The ICCPR has not, however, been fully implemented at federal level in Australia as yet. In particular, art 19 has not been expressly implemented at all. The result is that that Australia's compliance with art 19 is haphazard and dependent upon Australia's domestic laws (the Constitution and statutory mechanisms)confining the restriction of the right to freedom of expression within the boundary permitted by art 19(3), which sets out a limited basis for the governmental restriction of the freedom. Accordingly, the protection's for human rights established by Australian domestic law, particularly the implied constitutional freedom of expression on political and governmental matters, are examined to see whether they restrain the provisions from infringing article 19. The thesis concludes that all of the four provisions do breach article 19, notwithstanding the operation of these domestic legal protections, for identified reasons. The thesis suggests amendments to the provisions to avoid this effect, as well as general law reform measures that would strengthen the protection of all human rights in Australia, including freedom of expression.