When it comes to the law, we don’t often focus on the unpopular side of the story. In a democracy such as our own, however, a key part of our societal fabric is the right to a fair trial. To illustrate what it’s like to advocate for those who find themselves on the wrong side of the law, Villainesse asked Annabel Cresswell, a criminal defence lawyer with over 16 years experience, to share her insights with us.
*This story contains discussion of sexual violence. As such, some people may find this story difficult to read.
Villainesse: What led you to become a criminal defence barrister?
Annabel Cresswell: A combination of two factors: 1. Growing up in Rotorua we were surrounded by people with terrible backgrounds of poverty and abuse. I realised that from a young age, some kids lacked the life skills to express themselves. And 2. Watching In the Name of the Father with Daniel Day Lewis and being horrified for weeks afterwards, thinking of being in a cell, accused of something you didn’t do, with no one helping to fight for you.
What are the best parts of your job?
I think you are meant to say winning, but when you have a client acquitted that you genuinely believe is innocent, there is only relief. I guess what is the best thing is that it is almost never boring, there is always drama, excitement, things are changing, nerves, challenges, stress and then hopefully success. Oh and the humour. Which can be pretty dark sometimes, but amusing.
And the worst?
The utter helpless tragedy of some people’s lives. The heartbreaking results of some cases, which ultimately stem from a cycle of poverty and dysfunction, domestic abuse and violence.
When you are tasked with defending a rape accused, how do you balance doing your job and ensuring your client receives a fair trial with trying to avoid traumatising the complainant?
In today’s day and age, there is no need to cross examine a rape complainant by being aggressive and demeaning. It is perfectly acceptable to ask questions reasonably and respectably, and to put your case to the complainant and test their evidence while still making sure they feel comfortable and secure. It is unpleasant to be questioned about something so traumatic in any environment, and by the time they reach Court they will have already been interviewed by police and medical staff.
If they have a crown prosecutor who has explained what the defence counsel’s role is and that it isn’t personal, then nowadays there should not be any chance that they are re-traumatised by cross examination. Basically, effective lawyers do not engage in point scoring and bullying, which could alienate juries.
There have been many changes to how sexual violence cases are run in this country to date. Defence counsel can no longer cross examine about previous sexual conduct. We now use experts to explain seemingly counterintuitive aspects of reactions to sexual offending. We now use screens or CCTV and evidential videos. Complainants can have a support person in Court with them. The Court is cleared while they give their evidence. Unfair or irrelevant questions are impermissible.
It is also my personal view, and that of many of my colleagues, that what a female was wearing, say in a club, has no bearing at all on a defence of rape, whether it be a defence of consent or reasonable belief in consent. If this is raised at all by defence counsel in Court now, and I hope that it isn’t, then in my view this needs to stop. Perhaps this could be done by educating any practitioners who may be lagging behind and bringing them into the modern world.
Ultimately a good barrister who does a good job will lessen the chance of appeal, which could result in a longer process and/or another trial. If complainants are aware of this before Court starts – that this is the end game – it should make them feel more comfortable with being questioned by a defence barrister.
There is currently a pilot scheme being trialled in New Zealand in an attempt to improve the experience of our justice system for sexual assault complainants. Can you tell us a little about why it’s important and how it works?
Firstly it should speed up the trial process by having rape and sexual violence cases get to trial quicker, so complainants are not experiencing delays.
Once the case gets to Court, Judges will more closely monitor the questions that are being asked to make sure they are not impermissible. This is something that is already in law, and so for counsel who already take steps to ensure the complainant is not subject to a demeaning cross examination, there should be no change. There are other changes directed at educating the jury about the effects of sexual offending.
Do you think that juries should decide rape trials, or could the system benefit from an alternative setup like those seen overseas, where a judge or a panel of judges decide cases?
I do think generally jury trials work. In my experience the right result has usually been reached, because 12 people from different backgrounds and ages and cultures can bring such rounded perspective to these trials.
What advice would you give to a sexual assault victim who may be tossing up whether or not to report their assault?
I would say that the Court case itself is about determining guilt and so it will not be a satisfying day of reckoning that you might hope for. But if it’s done properly and you can live through it, then you have done a great service to women in NZ and this person should be inside for some time, unable to hurt other women.
What advice would you give to young women who want to become criminal defence barristers?
The young women coming up through law school now are so much smarter, more capable and worldly than I was at their age that I couldn’t possibly offer them anything other than keep doing what you are doing!!
If you need help, support or just someone to talk to, reach out:
24/7 Helpline: (09) 623 1700
- Te Ohaakii a Hine – National Network Ending Sexual Violence Together
0800 88 33 00
- Victim Support NZ
0800 842 846
0800 376 633