When only the victim speaks the truth

Author Bri Lee's book Eggshell Skull scoops up another prize - this time at the Australian Book Industry Awards ... A story of childhood sexual assault ... While the book continues to collect awards, the author's view about how natural justice ought to work should be read with caution ... Lawyer Joanna Jenkins' critique 

Eggshell Skull has been lauded as an expose of the flaws in the justice system. The book gives a troubling account of author Bri Lee's year as an associate to a District Court judge, and her own pursuit of a complaint of sexual assault by a teenage boy which happened when she was a child.

But the anger with which it is expressed sometimes obscures how and why the justice system operates as it does. Worse, it is often directed at the basic principles of natural justice which underpin our fundamental rights and freedoms.

Bri Lee said of her book Eggshell Skull:

"At the end of an extremely difficult and triggering year listening to trials and sentences for sex offenders, I decided to go to the police and make an official complaint against a man who committed a sex offence against me when I was a child."

It would have been an extremely difficult year. Ms Lee was an associate to a judge in the District Court of Queensland. A depressingly sizeable proportion of the work in the court is trying men charged with the rape of children in their care.

Lee describes the facts of those matters in vivid detail. One of the matters she describes is of a little girl who placed her toys around the edges of her bed, hoping they would protect her from her stepfather when he regularly visited her, drunk, in the night. The child dreaded hearing the country and western song which she came to recognize was the immediate precursor to being raped. 

Hearing that traumatic testimony day in, day out, would cause anyone to question humanity. It caused Ms Lee to relive what happened to her.

She tells us that, when he was about 15, her brother's friend (who I will refer to as X), put his hand down Lee's pants. At the time she was about nine.

Lee hints of a darker crime perpetrated by X on a trampoline, but does not describe it. All we are told is there was one incident, involving two offences. X was charged with sexual assault, which encompasses a broad spectrum of acts, but does not include penetration - rape - which is a different, more serious, offence.

X is a man now, but he was a child when the offence was committed, which was 15 years before she went to the police.

Any sexual assault by a 15-year-old boy on a nine-year-old child is troubling, and disturbing. Clearly, this incident had a terrible and long-lasting effect on the author. She pursued X in the criminal justice system. That was not easy. She felt isolated and unheard. She persevered. She won. X was convicted of sexual assault on both counts.

X's conviction and sentence is the culmination of the book. A District Court judge imposed a gaol sentence which was wholly suspended (so X didn't actually go to gaol). Lee is elated that the conviction was recorded. It would mean X would have difficulty travelling overseas, would be on a sex-offenders register for the rest of his life, unable to move house or go away without informing the police.

X may have appealed the severity of the sentence. A judgment of the Court of Appeal was handed down in August 2018, which dealt with the same facts, the same time frame and the same sentence described in the book. The name of the defendant in the appeal is withheld because he was a child at the time the offence was committed, so it isn't absolutely possible to confirm it was X's appeal.

In that case the Court of Appeal overturned the sentence. Instead, a $500 recognisance was imposed for two months. No conviction was recorded and he will be taken off the sex offenders register.

The appeal court said an adult who is convicted of an offence committed while a child should receive no greater sentence than he would have received had he been convicted when still a child. In other cases, children received lighter sentences for much more serious and disturbing acts than those committed by the defendant.

The principle in sentencing juvenile offenders is that they must be given an opportunity to rehabilitate, so that an act committed while a child will not reverberate for the remainder of their lives. Many of us do stupid, even awful, things when we are children, but the philosophy is that we should be given a chance, as far as possible, to rehabilitate and live without having that juvenile crime hanging over us. 

Lee does not use X's real name in Eggshell Skull, but X would be readily identifiable to those who know him. She describes him as "one of only two real friends" her brother had.

The book is filled with anger. Sometimes it is misdirected and distracting, even misleading. Lee was distressed that X questioned the year in which the offence occurred and didn't plead guilty to both charges. She says:

"He literally can't go any lower ... He's denying the second count and he's running a defence." 

A defendant is entitled to defend him or herself, and to understand the facts alleged against him or her. Those are the principles of natural justice that underpin the law in Australia. A society relaxes those at its peril.

Many Australians were disturbed by the injustice of James Ricketson's conviction in Cambodia for spying. That is because he was convicted without being told of the details of his supposed crime, including who he was supposed to have been spying for. That is a "justice system" operating without the rules of natural justice.

Lee said of the judge's summing up:

"The judge's presentation of [X]'s arguments as alternatives to mine lent them a legitimacy they didn't deserve. His testimony, so full of lies and evasion, was 'his version', as though mine was just 'my version' and not the truth."

It is the judge's job to summarise both versions to the jury. The jury is there to decide which version is true. It is not intended as an attack on the complainant, or to undermine her. It is a necessary part of the justice system.

Lee's alternative proposal seems to be that complainants in sexual assault cases should be believed without question. This resolve is tested when X tells her he was himself the victim of sexual assault when he was a young child. Describing her difficulty with it, she decides she won't question the veracity of his statement. Instead, she lets her boyfriend express the doubt. "Bullshit," he said when she told him.

It's not the answer to her complaints to sideline the rules of natural justice. Yet, the problem Lee had with feeling unsupported and unheard is of real concern. Victims of sexual assault aren't represented in court. They are on their own in the criminal justice system in Queensland. That's not good. Support and guidance for victims of sexual assault are clearly needed.

The author's blast of anger is not just directed at the justice system. She is unflattering about the country towns she had to visit as part of her work. She quips to her judge that even though her family came from Warwick it didn't feel like home, because her Mum and Dad weren't cousins.

Of the bailiff in a country town she names, she says that he was "old" and deaf, and had been "cruising through that job with a bare-minimum output for longer than [she'd] been alive". 

The judge she worked for is quoted verbatim on things he said to her, in private, about trials he was hearing.

She says, for example, that she and the judge "agreed that it would be difficult for the residents of Roma to feel comfortable convicting a man of a rape when it was digital".

Judges choose their words with care because they must be careful not to tell the jury what to decide, but to guide them through the decision-making process. Publishing the remarks made by a judge in private about cases he or she is hearing could be grounds for an appeal.

Eggshell Skull should be read with caution.

The community should understand the extent and appalling nature of the cases in the District Court. For those in court every day, it must look like an epidemic of predatory monsters. Complainants in sexual assault cases need resources dedicated to support and guide them through what must seem like an opaque process.

Ignoring the basic principles of natural justice - that defendants are entitled to defend themselves and respond to the allegations made against them - will not result in a better justice system. 

Ms Lee is founding editor of Hot Chicks with Big Brains