Sydney, New South Wales
Wednesday 25 May, 2016

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

Launch of Jury Reasoning in Joint and Separate Trials of Institutional Child Sexual Abuse: An Empirical Study

I acknowledge the traditional custodians of the land upon which we meet today, the Gadigal people of the Eora nation and pay my respects to their Elders both past and present.

Early in our work we identified Criminal Justice as a key issue for consideration by the Royal Commission. To assist in the Criminal Justice Project we convened a Criminal Justice Working Group, which has members drawn from academics and practitioners. We have particularly sought their advice with respect to the research we should undertake of relevant criminal justice issues.

Our Criminal Justice Project will draw together our research, relevant material from public hearings, and the views of survivors expressed in private sessions. It includes extensive consultation and policy development. We will publish our report on criminal justice issues, including any recommendations for reform, next year.
Child sexual abuse offences are generally committed in private, with no eyewitnesses. In many cases there will be no medical or scientific evidence capable of confirming the abuse. Unless the perpetrator has retained recorded images of the abuse (and some do), or admits the abuse, it is likely that the only direct evidence will come from the complainant.

Where the only evidence of the abuse is the complainant’s evidence, it can be difficult for the jury to be satisfied beyond reasonable doubt that the alleged offence occurred. There may be evidence that confirms some of the surrounding circumstances, or evidence of first complaint, but the jury is effectively considering the account of one person against the account of another.

We have heard of many cases where a single offender has offended against multiple victims. This is not surprising. Particularly in institutional contexts, a perpetrator may have access to a number of vulnerable children. In these cases there may be evidence available from other complainants or witnesses who allege that the accused also sexually abused them. The question is whether that “other evidence” can be admitted in the trial.

In March this year, we held a public hearing into criminal justice issues relating to child sexual abuse in an institutional context. The first week of the hearing focused on how the criminal justice system deals with allegations against an individual of sexual offending against more than one child. We considered whether a joint trial may be held with respect to allegations against an accused made by multiple complainants.
We also considered the circumstances in which other allegations against an accused or evidence of the accused’s ‘bad character’ may be admitted in evidence to help a jury determine whether or not the accused is guilty of the charges on the indictment. 

As we all know these issues have troubled our courts for many years. The recent Victorian report into jury directions suggests they have caused problems for more than 100 years. In Pfennig v The Queen (1995) 182 CLR 461, at 510, Justice McHugh spoke of:

the vexed question as to the circumstances in which the prosecution may prove a criminal charge by tendering evidence that the accused has engaged in criminal conduct on occasions other than that which is the subject of the charge before the court.

The discussion in the first week of our public hearing indicates that this question remains vexed, even in those jurisdictions that have adopted the Uniform Evidence Act.

We heard in the public hearing that the rules governing both the admissibility of tendency and coincidence evidence, and the admission of evidence from other complainants appear to operate differently in different jurisdictions, both internationally and within Australia.

Both the common law and statutory rules share a common origin. They have been significantly informed by judges’ assumptions about how juries reason. This is particularly the case in relation to sexual offences, where judges have determined that special care must be taken. It has been assumed that allegations of sexual offending, particularly, but not only, against children, are likely to arouse unfair prejudice in the jury. As a consequence we have accepted that a person accused of sexual offences, including sexual offences against children, needs careful protection against the risk of the jury being influenced by such prejudice.

In September last year, I gave a paper at the Supreme Court of New South Wales Annual Conference. In that paper I examined the means by which courts can use the learning from other disciplines in relation to the sexual abuse of children in both the trial and sentencing process.

Judges have, for centuries, relied on their own understandings of human behaviour to inform the content of the relevant rules. The difficulty is that, in the absence of research evidence as to how people behave, we do not know whether the judges’ assumptions are correct.

In some cases, we know that judges’ assumptions have been far from correct. An obvious example is the issue of delay in complaint in sexual assault matters. For years, judges assumed that victims of sexual offences will complain at the first reasonable opportunity. As a consequence delay was accepted to adversely affect the complainant’s credibility. The common law developed special rules for warning the jury, in accordance with this assumption.

Research discredited this assumption. We now know that delay in complaint of sexual abuse is common rather than unusual, particularly in the context of child sexual abuse. Parliaments have legislated to limit or displace this erroneous assumption and the common law rules that developed from it.

In my paper to the Supreme Court, I asked the question: ‘How is it that judges know juries react in a way that requires them to exercise particular vigilance? Is this an accurate assumption? Is the rationale for the rules that this assumption mandates a valid one?’

The assumptions underlying the common law and legislative rules governing the admissibility of tendency and coincidence evidence and the availability of joint trials have been largely untested.

The research that we are releasing today provides evidence about how people who are likely to comprise juries reason on these issues. I anticipate that it will make a significant contribution to our understanding of the accuracy of judges’ assumptions.

Of course, research based on mock trials, which is all we can do in Australia, never exactly replicates a real trial. In the absence of access to real juries, however, well-designed research can allow observation of how potential jurors reason on particular issues. The results are interesting. For some they will be counterintuitive and possibly surprising. They will undoubtedly assist all of us to reflect on whether the current rules are appropriate.

It is not often that primary research on this scale can be commissioned. I am pleased that the Royal Commission has been provided with sufficient resources to enable us to undertake the project.

I encourage everyone with an interest in these issues to consider the research, and contribute their thoughts to the debate.

I should stress that the Commissioners have not formed any concluded views on whether or how the rules should change. We will consider the issues carefully. This research will make an important contribution to our work.

We will be publishing a consultation paper on criminal justice issues in September this year. The paper will address the tendency and coincidence issues as well as a number of other matters. I encourage all those with an interest in these matters to consider and respond to the consultation paper when it is published. We need the views not only of lawyers but also of members of the wider community.

I thank Jane Goodman-Delahunty, Annie Cossins and Natalie Martschuk – and the team of people they had behind them – for their work on this project. It has been complex and demanding.

I invite Jane Goodman-Delahunty and Annie Cossins to present their findings.

Read Jury Reasoning in Joint and Separate Trials of Institutional Child Sexual Abuse: An Empirical Study