R v MSK and MAK

The appellants, MSK and MAK, were convicted of offences arising from a gang rape and sexual assault in company. They appealed against their convictions, arguing that the trial was unfair and miscarried due to the trial judge’s decision to prohibit them, as self-represented defendants, from personally cross-examining the complainant. They contended that this prohibition violated their common law right to cross-examine, was discriminatory, and caused the trial to be unfair and miscarry. They also argued that the relevant statutory provisions were unconstitutional as they vested functions in the Supreme Court that were incompatible with the exercise of federal judicial power.

The court was required to decide whether the prohibition on self-represented defendants personally cross-examining a complainant was a valid exercise of legislative power and whether it was discriminatory. The court also needed to determine whether the provision caused the trial to be unfair and miscarry, and whether section 294A of the Criminal Procedure Act 1986 was constitutionally invalid for vesting functions in the Supreme Court that were incompatible with the exercise of federal judicial power.

The court held that the prohibition on self-represented defendants personally cross-examining a complainant was a valid exercise of legislative power and not discriminatory. The court found that the provision did not cause the trial to be unfair and miscarry, as the appellants had other means of cross-examining the complainant, including through the assistance of a legal representative or by way of questions put to the complainant by the trial judge. The court also held that section 294A was not constitutionally invalid, as the functions vested in the Supreme Court were compatible with the exercise of federal judicial power.

The appeal was dismissed. The convictions of MSK and MAK were upheld.