14th International Criminal Law Congress 2014

9 October 2014

14th International Criminal Law Congress 2014 - Melbourne, Victoria

The Hon. Justice Peter McClellan AM
Chair, Royal Commission into Institutional Responses to Child Sexual Abuse.

In 1984, John (not his real name), an 11 year old boy, started as a Year 7 boarder at a prestigious Sydney school. He was, as you would expect, distressed from being away from his family for the first time. About two months into the school year, he was in bed asleep, when he was awakened to find his dormitory master sexually abusing him.

The abuse was repeated with escalating severity on several occasions while John was in Year 7. After Year 7, John moved to the Year 8 dormitory. The abuse stopped.

John did not feel able to tell anyone what had happened to him until some years later when he was treated for injuries suffered in an armed robbery.

John then told both his doctors and his parents. In 2001, he went to the police. Following an extensive police investigation, John told us that charges were laid against the dormitory master in respect of offences against seven boys, each of whom had at the time of the abuse been a Year 7 boarder.

A dormitory master or person in a similar role abusing multiple children in his care is a regular feature of the personal stories received by the Royal Commission.

The master denied the charges. What John said upset him the most was that the court ordered that each charge be tried separately.

There were eight separate trials. John’s was the last. When giving evidence, John of course could not refer to any factual matters relevant to the other allegations.

Parts of his statement could not be discussed. John has since wondered what the members of the jury might have thought if, the day after they acquitted the dormitory master, they discovered through the media that this was the last of eight trials in which the accused was alleged to have offended against boarders.

There were two hung juries and six acquittals. None of the juries knew that the accused was alleged to have engaged in the repeated abuse of multiple boys within his care.

We cannot know whether the outcome would have been different if any of the allegations had been tried together. What we do know is that John felt let down by the criminal justice system. His concerns would, I suggest, be shared by many in the community. John believes the jury did not hear the true story.

Alan (again not his real name) was abused by a scout leader. As it happened, the leader also abused other boys. The abuse occurred on multiple occasions and extended to penetrative sex.

Alan went to the police but only some years after the events. Frustrated by the slowness of their response, he took matters into his own hands and went to the abuser’s house and, in his words, “smashed him up” and smashed his house.

For his offending Alan received three months’ imprisonment. The offender received an eight months suspended sentence and was required to pay a victims of crime compensation levy of $450 to the Crown. “Work that out and stay sober? That’s the justice system” was Alan’s parting comment to the Commissioner he spoke with in the private session.

When the previous Government announced the establishment of the Royal Commission, the then Prime Minister made plain that the decision reflected a growing awareness in Government and the general community of the widespread and at times systematic sexual abuse of children within institutions.

Over the past three decades there have been many inquiries in Australia which have touched upon or been concerned with the sexual abuse of children.

I am advised that there have been more than 300 inquiries, of which at least 80 have looked at issues directly relevant to the Commission’s work. That number speaks to the difficulty the community has found in confronting and dealing with these issues. And, of course, there are many more inquiries into these issues which have been conducted overseas.

Both the Government and Opposition of the day realised that many people had been impacted by sexual abuse within institutions.

It was a challenge to the wellbeing of so many in the community that it needed to be openly discussed, possible causes identified and effective responses developed.

The pain endured by so many for so long, which had been understood by relatively few, required a community response. Although a Royal Commission can be confronting to those investigated and whose behaviour is publicly discussed, the impact from the confrontation can be the occasion for a major shift in community understanding.

This may bring change in the behaviour of individuals and institutions and an effective legislative response.

I have spoken on other occasions of the changes we can already see happening across many of the significant institutions in the country in response to the work the Royal Commission is doing. This is not the occasion to discuss them but it is clear that many if not all institutions responsible for children will be changed by the work we are doing.

To facilitate the work of the Royal Commission the Government decided, and the Parliament accepted, that the Royal Commissions Act 1902 (Cth) should be amended. Before its amendment, the Act operated through the conventional processes of a Royal Commission including the gathering of evidence at public and private hearings.

The Act did not provide a mechanism for Commissioners to meet with survivors of abuse in a manner which would allow them to speak privately in a setting in which they could understand that someone in authority had listened to and accepted their account. With the support of all parties, the Commonwealth Act was amended to provide a process known as private sessions.

A private session allows a person who may have suffered abuse, or someone who was aware of the abuse of another (commonly a family member) to come to the Commission, talk to one or two Commissioners, tell their story, have it recorded, and have its acceptance acknowledged.

I have previously referred to this as the obligation, which all of the Commissioners accept, to bear witness on behalf of the nation to the sexual abuse of individuals in institutions.

As of last Friday the Commissioners have held 2,452 private sessions. We have also received 2,601 written accounts from survivors or their family and friends. There are presently 1,448 people in the queue awaiting a session. We continue to receive about 41 requests for a private session each week.

We have recently received a two year extension to enable us to complete our work. The continued demand for private sessions was a very significant factor in the Commissioners seeking that extension.

Private sessions are one of the three “pillars” underpinning our work. The others are hearings, both public and private, and our work in policy and research. We will draw upon the work in each area when making our final recommendations for change.

Although the Commissioners understand the need for an early response to many issues, it is important that the recommendations we make, if they are to bring lasting benefits, have been adequately considered and that appropriate people and institutions have been consulted.

The need to conduct sufficient public hearings was a further important factor in the Commissioners seeking an extension of time for our work. Public hearings allow us to examine an institution in detail. They provide both background information and the detail of individual or managerial failure.

We know that our public hearings are having an impact on individuals and institutions. It could hardly be otherwise. When failure is publicly recognised in part of an institution which has a national reach, it would be surprising if other parts of the institution were not examined by the institution itself.

With effective understanding can come an appreciation of the need for change. The extension, provided by the Government, will also allow us to go back and look again at some institutions and discuss how they have responded to identified problems and the effectiveness of their responses.

We must be selective about the institutions we examine in public hearings. Our resources are finite. We have developed criteria to assist us in deciding which allegations and institutions should be the subject of a hearing.

We must conduct sufficient public hearings to ensure that a range of institutional types in different geographical locations throughout Australia are examined. We must also ensure that all important systemic issues are effectively considered in public hearings.

The Letters Patent provide comprehensive terms of reference to the Royal Commission. In addition to bearing witness to the abuse and trauma inflicted on children who suffered sexual abuse in an institutional context, they require us to identify and focus our inquiry and recommendations on systemic issues.

Drawing upon the experience of individuals and institutions and our research work, we are required to make recommendations that will provide a just response for people who have been sexually abused and ensure institutions achieve best practice in protecting children in the future.

We do not have any power to provide compensation or initiate prosecutions. However, we do refer individual cases to police with a view to their further investigation and prosecution. So far I have referred 334 cases.

At the end of our inquiry, our final report must recommend the laws, policies, practices and systems that may prevent or, where it occurs, respond to the sexual abuse of children in institutions.

Our Terms of Reference require the Royal Commission to inquire into what institutions and governments should do to ensure justice for victims through the provision of redress by institutions, and processes for referral for investigation and prosecution and support services.

We will consider justice in the context of civil litigation, redress schemes and support services – our criminal justice work will look at the investigation and prosecution functions.

Our work in these areas may have wider implications beyond the institutional context and our Terms of Reference recognise that any recommendations we make are likely to improve the response to all forms of child sexual abuse in all contexts.

Because of the need for an early response, the Commissioners have given a high priority to issues of civil litigation reform and redress schemes. The Commissioners have agreed to make final recommendations on these matters by the middle of next year.

The issues are complex and the institutional and personal interests diverse. We are looking at statutory limitation periods and the duty that should apply to institutions responsible for the care of children entrusted to them.

Apart from civil litigation, we are considering redress schemes, the criteria for eligibility, who should provide, fund and manage them and the benefits which they should provide. There are many complex questions. We have initiated an extensive consultation process, which will culminate with public consultation in the early part of 2015 and a report by the middle of next year.

Although civil issues required priority we have already commenced our work in relation to criminal justice. Some matters have been considered in public hearings.

They were raised in our inquiries relating to Scouts Australia NSW, outside school hours care at YMCA in Sydney, St Ann’s Special School in Adelaide, the Christian Brothers’ residential institutions in Western Australia, Swimming Australia in Queensland and New South Wales and the Aboriginal children’s home, Retta Dixon, in the Northern Territory.

We know from private sessions that, at least for some survivors, criminal justice is far more important than any compensation or redress. They tell us that they want to see the offender punished for what he (and it is almost always “he”) did.

They want the community to know that the offender is not the upstanding person he has perhaps appeared to be, and they want the offender to be forced to acknowledge the very great harm he has done. John and Alan are not unique in their response.

The demand for retribution and denunciation is not surprising. Many of our public hearings have heard individual survivors’ accounts of the impact of abuse, in some cases over many decades. Collectively, their accounts, and the thousands of further accounts we have received in private sessions, confirm the lifelong difficulties survivors face in many aspects of their lives.

It is over a year since I acknowledged publicly that it was not until I began my work with the Commission that I came adequately to appreciate the devastating and long-lasting effect which abuse can have on some people. I have also learned that many others in the community have a similarly limited knowledge.

The public hearings and private sessions have provided insight for myself and many other people. Events which lawyers and many others may have thought of as comparatively minor, or at the less serious end of the scale, can have a devastating impact on some victims.

The “get over it” and “get on with your life” response reflects a lack of understanding both of the mechanisms by which damage occurs and the potentially lifelong impact of that damage. As with any significant traumatic event the memory may never be lost.

We will at some point hold a public hearing which focuses on the nature of the impact of sexual abuse as a child and the process by which it occurs. The academic literature has reported for some time on the impact of child sexual abuse. However, the personal accounts through public hearings and private sessions will bring an understanding of the issues to a wider audience.

The criminal justice issues which the Royal Commission must consider extend from reporting to police and police investigations, through all aspects of the trial process and to sentencing, appeals and post-sentencing measures.

In New South Wales, at least since the paedophile reference to the Wood Royal Commission into the New South Wales Police Service conducted from 1995 to 1997, and some other jurisdictions, there have been significant reforms to police practices and procedures in relation to investigating allegations of child sexual abuse, and to cross-agency cooperation in child protection activities.

Since the 1970s and 1980s, all Australian jurisdictions have made significant amendments to sexual offences and child sexual abuse legislation. Some of these amendments have explicitly focused on child protection concerns, such as mandatory reporting laws. Others amendments, such as the introduction of offences where the accused is in a position of authority or trust in relation to the victim, have particular relevance for offending in an institutional context.

Most jurisdictions have also modified the process by which complainants who are children or other vulnerable witnesses can give evidence.

Because the issues that confront the criminal justice system in relation to child sexual abuse are not new, we are being careful to target our research program so that it does not duplicate existing work.

To assist us in identifying the issues we should consider we have established a Criminal Justice Working Group. It comprises a group of practitioners and academics who specialise in relevant fields.

It is important to recognise that we are not one Royal Commission. We have letters Patent from the Commonwealth and States and are also charged with examining these issues in the Territories. Because the criminal justice issues we are concerned with are the responsibility of the States we must make findings and develop recommendations for each jurisdiction. History teaches us that this can be a difficult task. Our research work reflects these complexities.

The reports of our first four research projects are available on the Royal Commission website. These reports identify child sexual abuse offences across Australian jurisdictions, review the history and present state of Australian mandatory reporting laws, examine the relevance of child exploitation material to child sexual abuse and provide an historical review of these offences. They were carried out by the Australian Institute of Criminology and other academics.

With the advice of the Criminal Justice Working Group, we have a further three external research projects currently underway, including research on the impact of delayed reporting on the prosecution and outcomes of child sexual abuse cases, an extensive sentencing research study, and research on the use of alternative mechanisms for taking a complainant’s evidence.

With respect to police, there are a number of issues we need to examine. We are looking at the use of specialist child sexual abuse units within police and the use of cross-agency specialist child protection units. We will consider issues of information sharing and communication, and how police intelligence is used in child protection when charges are not laid or a prosecution does not proceed.

In relation to prosecutions, we are looking at public prosecutors, including the adequacy of current prosecution guidelines, decision-making processes around decisions not to prosecute and whether there should be specialist child sexual abuse prosecution units.

We are looking at a number of issues in trial processes, including whether there should be specialist child sexual abuse courts, whether the current processes for receiving complainants’ evidence are appropriate and are being used, and whether the limits on cross-examination of complainants are appropriate and are being used. We are looking at directions and warnings to juries that are often given in child sexual abuse proceedings.

Critically in this area, we are also looking at the admissibility of tendency and coincidence and relationship evidence. We are looking at John’s problem, the issue of multiple charges, including from more than one complainant. I will say a little more about this later.

With respect to sentencing, we are seeking to get a better understanding of the sentences which have been given for child sexual abuse offences committed in an institutional context and the factors that influence those sentences. We are looking at whether the range and present structure of sentencing options are appropriate.

We are also looking at appeals in child sexual abuse cases, and particularly some of the issues that arise where jury verdicts are challenged because of their asserted inconsistency.

Our work on sentencing and appeals will also help in considering whether current offences for child sexual abuse are adequate and appropriate. Following the Victorian Parliamentary Inquiry, the Victorian Parliament recently enacted a new offence, s 49C of the Crimes Act 1958 (Vic). This offence targets failures by persons in authority in an organisation that exercises care, supervision or authority over children, to protect a child under 16 years of age from a sexual offence committed by an adult who is associated with the organisation.

The person in authority will commit the offence if he or she knows that there is a substantial risk that an adult associated with the organisation will commit a sexual offence against a child who is or may come under the care, supervision or authority of the organisation, and negligently fails to reduce or remove that risk. The offence can be prosecuted without proof that a sexual offence has been committed. The maximum penalty is five years’ imprisonment.

Emeritus Professor Arie Freiberg, who is well known to this audience, has been engaged to help us with our work in sentencing. He has suggested that, apart from the Victorian legislation, we consider whether there should be an offence that applies to the institution, as well as individuals within it.

He raises the question whether, if there are significant failures in an institution’s response to child sexual abuse, or if there is an institutional culture that encourages or tolerates abuse, should the institution be criminally liable, in addition to the individual abuser? If it is thought that an institution should be criminally liable, apart from the complexities of the drafting, thought needs to be given to the sanctions that might best bring about changes within the institution to better protect children.

I should of course emphasise that the Commissioners have no views on any of these matters at this stage.

As I have mentioned, any process which recommends change across all Australian jurisdictions presents practical challenges. In some respects, these challenges bring an advantage. Some States have already identified new approaches to some of the issues and we will be able to identify what may be working best. We will also consider relevant developments in overseas jurisdictions.

It will be apparent to you that some of the issues we must examine are not new. Those of us who have been involved in criminal law, whether at the police investigation stage or at the trial or appellate level, know well the consideration that sexual abuse issues, and child sexual abuse issues in particular, have received in bringing reforms across police and prosecution practices and trial processes over the past few decades.

In spite of the issues being well known, and in spite of decades of reform, the preliminary results from some of our research suggest that the opportunity to secure justice for victims of child sexual abuse through the criminal justice system may in fact be decreasing, rather than increasing.

We have engaged Associate Professors Judith Cashmore and Rita Shackel and Professor Patrick Parkinson of the University of Sydney to conduct research into the impact of delayed reporting on the prosecution and outcomes of child sexual abuse cases.

While the project is continuing, their preliminary analysis of police and court data from New South Wales suggests that there has been a fairly steady increase in the number of incidents of child sexual assault offences reported to Police from 1995 to 2013, with a short, above-trend increase following the Wood Royal Commission. These are reports of child sexual assault, being the most serious offences involving penetration, separated out from reports of indecent assault, acts of indecency, and other sexual offences.

For the same period, the preliminary analysis of the data shows that the proportion of child sexual assaults reported to police in respect of which the person of interest proceeds to court – that is, where there are charges laid – has declined quite dramatically, from around 60 per cent in 1995, to around 15 per cent in 2013. This decline in the proportion of child sexual assault reports leading to charges or prosecutions has occurred in relation to both child sexual assaults reported when the complainant was still a child, and to child sexual assaults reported when the complainant was an adult.

The researchers are also considering South Australian data in this study. It is not clear from the South Australian data that there has been the same reduction in reported child sexual assaults proceeding to court in South Australia as appears to have occurred in New South Wales.

The South Australian data suggests that there has been a decline in reporting of child sexual assault and indecent assault in South Australia, following a peak around the Layton and Mullighan Inquiries but there has been an increase in the numbers of defendants at court charged with child sexual assault offences since 2005.

The indication from the preliminary analysis of New South Wales data that reports of child sexual assault are up but prosecutions are down, both as a proportion of reports and in absolute terms, is not at all what we would have expected to see. The rate of attrition in sexual abuse cases, and in child sexual abuse cases in particular, has long been notoriously high. But if it is increasing this is troubling. In light of the decades of reform, we would be entitled to expect it to be getting considerably better.

The issue has greater significance than might first appear. Relevant criminal convictions, and in most Australian jurisdictions charges, are essential information in the assessment of a person’s suitability under the working with children check regime. Working with children checks are one important procedure for keeping known offenders, or those assessed as particularly at risk of offending, from working with children.

If alleged offenders are not being charged, or the charges are dropped without trial, we must consider the impact upon the effectiveness of regulatory measures that primarily rely on convictions and charges for their operation.

Without buying into debates about how effective gaol terms are in achieving general or specific deterrence, the literature suggests that in areas of concern to us the risks of detection and the speed of punishment are significant deterrents to offending. If, in spite of increased reports to police, there are fewer prosecutions for child sexual assault, then what impact might this have on deterrence? If there is an impact, and there may not be, it is unlikely that it could be positive.

If it is the case that there is a decline in prosecutions in New South Wales which is replicated across all Australian jurisdictions we must ask why is it occurring.

Are there fewer prosecutions because complainants, or their parents, are deciding that they do not want to proceed through the criminal justice system?

If this is the reason, we need to understand whether this is because the criminal justice system is too damaging or traumatic for complainants, despite reforms over the past 20 years, or whether it is because some complainants do not place importance on pursuing criminal justice. It may be that their needs are met through other mechanisms.

If the system is too damaging or traumatic for complainants, then we must consider how the system could be improved for the complainant, while still delivering a fair trial for the accused. If some complainants are not interested in pursuing criminal justice, we will need to consider how the child protection system can still be appropriately informed by intelligence from reports to police that do not become the subject of charges, so that the regulatory measures that draw on both charges and convictions are not compromised.

Of course it is also possible that if there are fewer prosecutions, this may be because of a change in police or prosecution practices.

Resourcing issues for police and prosecutors are perennial. It is possible that they are impacting on the prosecution of sexual offences, particularly if resources have been reallocated in accordance with changing priorities. We will try and find the answers.

It may also be that prosecutors are becoming more conservative in the child sexual abuse cases they will prosecute. If this is the explanation, it is reasonable to ask whether a more conservative approach is appropriate. If it is occurring, is it because of perceived difficulties in successfully prosecuting child sexual assault offences? Is this because tests for admissibility of tendency and coincidence evidence, and for joint trials, are too onerous? Are the jury directions and warnings appropriate? Do they reflect what we now know about how child sexual abuse occurs and is reported? Do they have an inappropriate impact on jury decision-making? Is a complainant’s evidence readily undermined, not because it is essentially unreliable, but because of the manner in which trials are conducted?

These are questions that have an added importance if they are contributing inappropriately to a reduction in the number and rate of prosecutions for child sexual assaults.

Our research, that suggests decreasing rates of prosecuting reported child sexual assaults in New South Wales, was commissioned for quite a different purpose. The original purpose was to examine the prosecution process for allegations of child sexual abuse that are reported to the police following a delay in disclosure or reporting, compared to the prosecution process for allegations of child sexual abuse that are reported more contemporaneously with the abuse.

The preliminary results of the first step of analysing recent crime reporting and courts data have revealed the quite separate and surprising indication of decreasing prosecutions for child sexual assault. We will consider with the researchers how best to further this investigation.

One of the difficulties for complainants in both sexual assault and other areas of crime is that they have very limited means, if any, of questioning the decisions made by Directors of Public Prosecution. Some feel this acutely, both when charges are reduced but more so if charges are dropped altogether.

Many of the Prosecution Guidelines adopted in Australian jurisdictions encourage or require consultation between the prosecutor, the complainant and the police. Many of the Guidelines also encourage or require the giving of reasons for discretionary decisions, including decisions not to prosecute, to people who have a legitimate interest.

In the public hearing into Swimming Australia in July this year, we heard evidence from the New South Wales and Queensland Directors of Public Prosecutions with respect to their Guidelines and decision-making processes. We heard similar evidence in the Retta Dixon hearing in Darwin. In each case representatives of survivors suggested there were significant flaws in the decision-making process and at least in Retta Dixon a failure to follow Prosecution Guidelines. What became clear in these hearings is that there is no external oversight or accountability of offices of the DPPs in Australia.

In Victoria, there is a Director’s Committee, an internal body. That Committee, among other tasks, advises the Director on “special decisions”, including decisions to discontinue proceedings or to issue a no-bill. Where a meeting is held to consider a “special decision”, the Committee comprises the Director of Public Prosecutions and the Chief Crown Prosecutor, and for some special decisions, the most senior prosecutor or other lawyer concerned in the matter. The Director may make a decision contrary to the Committee’s advice, but must provide reasons to the Attorney General, which are required to be tabled in Parliament.

Of course, the establishment of independent DPPs is well understood as arising from the need for prosecutorial decisions to be made independently of the political pressures of the day. But DPPs in Australia today are one of the very few administrative decision-makers whose decisions are not subject to judicial, parliamentary or executive oversight, or any other form of oversight or review. It is relevant to ask whether this is appropriate.

In the United Kingdom, prosecutorial decisions made by the DPP are amenable to judicial review, although the courts acknowledge that their powers in this respect are to be exercised sparingly. There are constitutional impediments to allowing judicial review of prosecutorial decisions in Australia because of the separation of judicial power doctrine. (See Likiardopoulos v The Queen (2012) 247 CLR 265). I am not sure the logic of that position would resonate with some complainants.

The United Kingdom also has a Crown Prosecution Service Inspectorate, with an independent statutory office of Chief Inspector. The Inspectorate may conduct inspections of the operations of the Crown Prosecution Service in particular geographic areas or in relation to particular themes or types of prosecution nationally. The Attorney-General may also refer specific cases that have caused public controversy to the Inspectorate for review.

Further, the United Kingdom has recently established an Independent Assessor for Complaints. The Independent Assessor handles and investigates complaints from members of the public about the Crown Prosecution Service and may conduct audits of complaints.

There have been suggestions for some form of oversight of DPPs in Australia. In 2001, two options for oversight of the New South Wales Office of the DPP were considered. Both were rejected.

The proposed Public Prosecutions Management Board would have had oversight of management, administrative and financial decisions, but not prosecutorial decisions. The proposal was criticised by both the then DPP and the then Senior Public Defender on the basis that oversight of administrative matters by the head of the Attorney-General’s Department, as a member of the Board, could permit indirect interference with prosecutorial decision-making. I can understand this criticism but a different structure which assures independence from government may have been worth considering.

The second proposal was to establish a Parliamentary Joint Committee to set the Office of the DPP’s budget, to monitor and review the exercise by the DPP of his functions, and to recommend changes to the Office of the DPP’s functions, structures and procedures.

The Joint Committee would also have had the power to require the DPP or a Deputy DPP to furnish the Committee with reasons why he or she chose not to proceed with, or appeal, a particular case. The proposal for a Joint Committee did not proceed. It was criticised because of the suggested possibility of political interference with the DPP.

Whether Australian DPPs should be subject to some form of oversight or external accountability is an issue that we must consider. What is plain is that independence brings with it an increased obligation to ensure that the decision-making process is of the highest integrity and administrative practice is beyond any legitimate criticism. A lack of any external oversight, including of administrative process, brings the risk of failure in the decisions which are made.

I must emphasise again that the Commissioners have no concluded views on any of these matters, whether as to causes of a decrease in the prosecution of child sexual abuse or as to possible reforms. These issues do, however, highlight the scope and importance of the work that we are undertaking and some of the matters on which we will be seeking the profession’s input and assistance, as well as that of the broader community.

I want to say something further about John’s issue. Many people have raised it. Complainants feel a great frustration when allegations of child sexual abuse in an institutional context are made by multiple complainants against the one accused, and they are ordered to be dealt with in separate trials.

Many people have told us in private sessions of the unfairness they see, when an accused faces separate trials and is acquitted, without the jury having heard anything of the other allegations. Survivors have told us how distressing and unfair they feel it is when they are required, in their evidence, to omit what to them are important parts of their accounts of what occurred, and to limit themselves – in their view, artificially – to a partial account of the events.

We must consider the rules relating to the admissibility of tendency and coincidence, or at common law propensity and similar fact evidence, and the circumstances in which joint or separate trials are ordered.

It is not an easy task even to establish how the relevant law is currently applied in practice in each Australian jurisdiction. Only Queensland retains the common law as set out by the High Court in Pfenning v The Queen (1995) 182 CLR 461. Queensland has, however, modified the common law to abrogate the High Court’s decision in Hoch v The Queen (1988) 165 CLR 292, by legislating that similar fact evidence must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion.

Western Australia and South Australia have adopted different statutory tests for the admissibility of this sort of evidence, termed “propensity evidence” in Western Australia and “discreditable conduct evidence” in South Australia. The South Australian provisions, which commenced on 1 June 2012, have been held in that State to have ousted the common law.

The remaining jurisdictions, being the Commonwealth, New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory, have each enacted the Uniform Evidence Act provisions, replacing the terminology of propensity and similar fact evidence with tendency and coincidence evidence.

Even with uniform provisions, however, it is not clear that the legislation is applied in the same manner in each jurisdiction. In particular, in Velkoski v The Queen [2014] VSCA 121, the Court of Appeal of Victoria recently set out its analysis of what it has identified as a divergence between the appellate courts in New South Wales and Victoria on the admission of tendency evidence under the Uniform Evidence Act provisions. In Saoud v The Queen [2014] NSWCCA 136, the New South Wales Court of Criminal Appeal expressed some doubt as to whether there is a real difference of approach between New South Wales and Victoria such that comparable cases would be decided differently in each State. This is a matter we will consider.

There are at least five possible grounds of divergence. First, the Uniform Evidence Act requires the “probative value” of tendency or coincidence evidence to be assessed. In New South Wales, Tasmania and the Australian Capital Territory, this assessment requires the court to look at what it is open for a tribunal of fact to conclude should the evidence be accepted. Only in limited circumstances would credibility or reliability be considered.

However, in the Victorian Court of Appeal decision of Dupas v The Queen (2012) 218 A Crim R 507, a five judge bench unanimously said that probative value always requires consideration of the reliability and weight of evidence, and that authorities to the contrary were “manifestly wrong”.

Second, the Uniform Evidence Act requires tendency or coincidence evidence to have “significant probative value” before it can be admitted. Although in New South Wales, Tasmania and the Australian Capital Territory, the word “significant” has been read as meaning “important” or “of consequence”, in Semaan v The Queen [2013] VSCA 134, the Victorian Court of Appeal said that the word is better read as meaning “substantial”. This is said to import a more onerous threshold of admissibility.

Third, in New South Wales, Victoria and the Australian Capital Territory, it is accepted that the possibility that tendency or coincidence evidence has been concocted or is contaminated can affect its probative value. However, whereas Victorian and earlier New South Wales decisions said that the “real chance” of contamination or concoction will always prevent the evidence from having significant probative value, in BJS v The Queen [2011] NSWCCA 239; [2013] NSWCCA 123, the Court of Criminal Appeal of New South Wales denied that this will always be the case.

Furthermore, in the Tasmanian decision of Tasmania v W [2012] TASSC 47, Blow J expressed the view that concoction or contamination is simply not relevant to the question of significant probative value.

Fourth, a question that has recently received public attention is whether the incidents described in tendency evidence must be similar before the evidence can have “significant probative value.” In particular, in Velkoski v The Queen [2014] VSCA 121, the Victorian Court of Appeal said that “evidence must possess sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct.” The Court said that recent New South Wales decisions had departed from that principle and therefore gone “too far in lowering the threshold to admissibility.”

Last week, an ABC news report colourfully suggested that the ruling of the Victorian Court was “a clamp down on the way child abuse cases are handled” and “could thwart convictions” by “making it harder for groups of victims to band together” in joint trials. The report also quoted a Victorian Police Assistant Commissioner and the Victorian Attorney-General, both of whom said that the different approaches to tendency evidence in different jurisdictions need to be examined on a national level.

Fifth, when an appeal is made from a trial judge’s ruling on the admissibility of tendency or coincidence evidence, there is some uncertainty about what level of appellate restraint the court should apply when reviewing the trial judge’s decision. While early New South Wales and Victorian authorities were inconsistent whether the high level of restraint described in House v The King (1936) 55 CLR 499 did not apply to tendency or coincidence rulings, it has now been settled in those jurisdictions that it does. However, in L v Tasmania (2006) 15 Tas R 381, a majority of the Court of Appeal of Tasmania followed the earlier New South Wales authorities that held the contrary.

Understanding the different approaches across Australian jurisdictions is important, as is determining what the approach should be. It is common for persons who commit child sexual abuse in an institutional context to offend against more than one victim and sometimes over extended periods of time.

Our second public hearing examined the response of YMCA NSW to Jonathan Lord’s sexual abuse of 12 children during 2010 and 2011. Multiple offending against multiple victims in institutional contexts is, regrettably, not just an occurrence in the distant past.

No doubt we all expect and certainly hope that the opportunity for perpetrators to offend over extended periods of time will be significantly reduced, if not eliminated, by improved institutional responses, both as a result of increased attention to the issue arising from the Royal Commission’s ongoing work and as a result of the recommendations we will make.

In the recent public hearing into Swimming Australia, evidence was given by Lloyd Babb SC, the current Director of Public Prosecutions in New South Wales. Mr Babb told the Commission that his impression is that joint trials do “impact on the rate of acquittal”, because “put in their proper context, offending against multiple complainants is powerful evidence”. Mr Babb suggested that “presumptions (in favour of) joint trials where there are multiple complainants is worth considering”.

Such a presumption has been legislated for in Victoria and in the Northern Territory, although in R v Popamitrou (2004) 7 VR 375 the Victorian Court of Appeal said that where evidence for offences against different complainants is not admissible against each other, the common law skepticism against joint trials will remain “influential”.

Mr Babb also expressed concern that, with respect to the admissibility of tendency evidence under the Uniform Evidence Act, “the idea of striking similarity pervades the mind of decision-makers sometimes” despite in his view the legislation having superseded this common law idea. He advocated clarification to the legislation to make plain that striking similarity is not required.

There are many other suggestions for change in this area – some are not new. One of course is the previously mooted suggestion for specialist child sexual abuse courts. This may exclude juries but provide for a judge sitting with expert assessors. It has been suggested that judges would not face the same difficulties as juries in avoiding impermissible propensity reasoning. Failures would be revealed in their reasons for decision and could be dealt with on appeal.

The need for potentially complex jury directions to lay jurors in joint trials which may not be understood would be removed, as would the need to restrict a witness’ evidence in separate trials. On the other hand, we have traditionally placed great importance on the availability of a jury’s fact-finding in criminal trials including sexual assault.

Eliminating juries may be at the fairly extreme end of reform options in this area. There may be other suggestions that could be considered to increase the availability of joint trials for child sexual abuse matters.

The focus of the Royal Commission must be on child sexual abuse in an institutional context. However, any changes we recommend to criminal law and procedure will affect the criminal justice process for all sexual offenders and their victims. As we turn our public focus to the criminal law, we will be seeking the assistance of the judiciary, the profession and the broader community in identifying and evaluating any proposed reforms.

We have also instituted a sentencing research project which is focusing on child sexual abuse in an institutional context, including the factors that influence sentencing for that offending.

Because the criminal law presently makes little distinction between institutional and non-institutional child sexual abuse sentencing data on child sexual abuse offences, regardless of whether there is an institutional aspect, will help us to assess whether the range of offences for child sexual abuse and the current sentencing responses are adequate and appropriate.

If I have managed to excite or alarm you by this brief discussion of the Royal Commission’s interest in criminal justice, it has been a good morning’s work for me.

I hope you follow our work and will be ready to help us when we ask for input on these issues.

We are planning a consultation program to include the judiciary and the legal profession in each Australian jurisdiction.

You do have some time to get ready for this process. Our first step is to be sure that we have up-to-date data and robust research, not just to inform our own work but also to help inform those who engage with us. We probably all have a bit to learn about each other’s jurisdictional differences and different ways of doing things. We certainly need to know as much as we can about what is happening to child sexual abuse cases in the criminal justice system now, or at least as recently as the data will allow.

We will continue to publish reports of the criminal justice research we have commissioned as they are finalised. I encourage you to keep an eye on our website for relevant publications. We also expect that our public hearings will continue to raise criminal justice issues, which may be dealt with in more or less detail in that hearing, depending on the focus of the particular hearing.

We will publish issues papers seeking public submissions on some issues in criminal justice, including issues relating to police.

We all know that many of the issues the Royal Commission must consider are not new. But nothing we have seen in our work to date suggests that the criminal justice system’s current response to victims of child sexual abuse is without controversy. Even when the issues have been considered before, the contemporary understanding of the current system may have changed. The most up-to-date prosecution data to which I have referred earlier suggests that there are issues in relation to child sexual assault prosecutions that we may not have appreciated, and that we do not yet understand.

I look forward to discussing all these matters with you as we develop our ideas.

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