Melbourne, Victoria
Thursday, 13 April 2017

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

Modern Prosecutor Conference

Seeking ‘justice for victims’ – Part II

In Part I of this speech, which I gave in Sydney last month, I focused on issues for victims of child sexual abuse when complainants in criminal proceedings. These issues relate to two areas of the law. Firstly, the substantive law in relation to offences, and secondly, criminal procedure.

Today has a different focus. I will discuss some of the challenges for victims as they proceed through the criminal justice system. I will also touch on issues with respect to the sentencing of sexual offenders.

I began the Sydney speech with a discussion of the difficulties sexual assault complainants have faced in the criminal justice system. Many of these difficulties arose from what are now recognised as unfounded assumptions that judges have made about the behaviour and reliability of sexual assault complainants. These assumptions found expression in jury directions given by judges.

Many of these directions have now been modified or displaced by legislation. The legislative changes reflect a better understanding of the dynamics of sexual assault, including child sexual assault, and the impact these offences have on victims. However research demonstrates that, still today, incorrect assumptions about victims of child sexual abuse are common in the general community. The Royal Commission is considering the need for jury directions which contain educative information about children and their response to child sexual abuse.

A further difficulty faced by some survivors in the criminal justice system concerns the requirement for particularisation. For a number of reasons victims and survivors of child sexual abuse often find it difficult to provide adequate details of the offence. One significant problem is that the abuse may have occurred so frequently and in such similar circumstances, that victims are unable to describe distinct or specific occasions on which they were abused. Ironically, this can mean that the most extensive offending can be the most difficult to prosecute. The Commission is considering ways in which offences for persistent sexual abuse could be better defined so as to overcome these difficulties.

In the Sydney speech I also discussed one of the most significant criminal justice issues facing the Royal Commission – tendency and coincidence evidence and joint trials. This law is complex and, as I am sure you know, has developed differently across Australia. Different states currently deal with this evidence in different ways. Even where the same legislative provisions apply to govern the admission of tendency and coincidence evidence differences have emerged in the way in which the legislation is interpreted. I spoke of some of the history of the law in relation to similar fact evidence and the assumptions on which the exclusionary rule is founded. I also discussed some of the key findings of the jury research study commissioned by the Royal Commission which challenges many of these assumptions.

There are likely to be some, perhaps many, practitioners and judges, who are resistant to change. Perhaps their thinking may be assisted by reflecting on a comment by the former Lord Chief Justice of England and Wales, Lord Judge, who said:

Just because a change does not coincide with the way we have always done things does not mean that it should be rejected. We should be considering each individual child as the individual he or she is, at the age and with the levels of maturity that he or she has, alleging whatever form of crime he or she has been the victim. Do proposed changes cause unfair prejudice to the defendant? If so, of course, they cannot happen. If however they make it more likely to enable the truth to emerge, whether favourable or unfavourable to the defendant, then let it be done. The truth is the objective.[1]

Although I understand that my previous speech has been made available to you, before I turn to today’s issues I would like to draw your attention to some of the statistics contained in the earlier speech. They are to say the least thought provoking. They concern outcomes in trials of child sexual abuse offences in New South Wales. I do not know what the position would be in Victoria.

The information comes from the NSW Bureau of Crime Statistics and Research which is the authoritative source for criminal offence data. It confirms the difficulties complainants of sexual assault, both children and adults, continue to face in the criminal justice system.

In New South Wales between July 2012 and June 2016 the conviction rate for all offences, including matters finalised by a guilty plea, was 89%. For child sexual assault offences (again including guilty pleas) the conviction rate was 60%. By comparison the conviction rate for assault was 70%, robbery 73% and illicit drugs 94%. One class of offences with a lower conviction rate was adult sexual assault with a conviction rate of only 50%. One possible reason for the lower rate for adult sexual offences is that in addition to the fact that these cases are, like child sexual assault cases, commonly word against word, consent will often be an issue.

The conviction rate for assault matters is higher than for child sexual assault matters. That is notwithstanding that in many common assault matters, the identity of the offender may be in issue. This is rarely the case for child sexual assault matters.

In relation to child sexual assault offences which were finalised at a defended hearing or at trial there were 725 matters in NSW between July 2012 and June 2016. Of these the defendant was convicted of all relevant offences in 32% of matters. The defendant was convicted of some but not all relevant offences in 16% of matters. The defendant was convicted of no relevant offences in 52% of matters.

Amongst other matters these figures are interesting because they tend to confirm that jurors do have the capacity to correctly isolate and apply the evidence in relation to each individual count. They suggest that long held concerns in relation to jurors being overwhelmed by feelings of prejudice and revulsion towards the accused in trials of child sexual offences may be overblown. This has implications for laws based on these assumptions. They are consistent with our jury research which I discussed in the earlier speech.

The Commission also received data in respect of conviction rates in child sexual offence trials in the time during which the Commission has been in operation. It had been suggested that the Commission’s work has had such a transformative effect on the mind of the general community that it is now much more difficult to secure an acquittal in relation to child sexual offences. The data tells a different story.

In 2012-2013, 73 child sexual assault matters were finalised at a defended hearing in the District Court. In that court, of course, charges in defended hearings, with some exceptions, are most likely to be heard before a jury. Of those 73 matters the defendant was convicted of all relevant offences in 29% of matters, convicted of some but not all relevant offences in 27% of matters, and convicted of no relevant offence in 44% of matters.

By contrast, in 2015-2016, 142 matters were finalised at a defended hearing. That is almost double the number of matters.  However, in relation to conviction rates the defendant was convicted of all relevant offences in 24% of matters, convicted of some but not all relevant offences in 23% of matters, and convicted of no relevant offences in 54% of matters.

Based on these figures, although many more complainants are coming forward, the chances of an offender being acquitted have risen rather than fallen.

Given that it appears, at least in New South Wales, that more victims are now entering the criminal justice system, the challenge for all of us is to ensure that, within the confines of the law and relevant professional obligations, the response of the criminal justice system achieves justice not only for the accused but also for victims. Justice for victims of child sexual abuse can never be obtained without their willing participation in the criminal justice process. It is increasingly apparent that changes to the process of, and evidence admitted at, a criminal trial may be necessary to achieve this end.

Best evidence in relation to children

In both private sessions and public hearings we have heard from many survivors who have told us of the significant challenges they faced as complainants in the criminal justice system. We have also heard from parents with respect to the difficulties they have encountered in relation to their child’s interaction with the criminal justice system. Some have questioned the utility of their child’s participation. Others have expressed frustration at their child’s exclusion.

The dilemma faced by many parents of children was clearly articulated by a mother who gave evidence in the criminal justice public hearing. She said:

The present criminal justice system forces parents of child abuse victims to decide between two options. Parents can either expose their children to the trauma of participating in the criminal justice system in order to achieve justice by putting paedophiles in jail to prevent harm to further children. Alternatively, parents can allow paedophiles to remain free in order to prevent the criminal justice system from causing further harm to their own child. In my mind, that will never be a fair and just system.[2]

From survivors whose allegations proceeded to a trial we have heard of the difficulties they faced in giving evidence. Some have characterised their cross-examination as ‘as bad as the abuse itself’. Many describe being re-traumatised by the process. For those in this room who have participated in trials of child sexual offences those observations will not be a surprise. Complainants in sexual assault cases, children and people with disability have for some time been recognised as vulnerable witnesses.

Of particular concern to the Royal Commission are children with disability. High levels of institutional contact and dependency on professionals for treatment and care place children with disability at a higher risk of sexual abuse. As a result of their need for specialised care and support, children with disability are often segregated from mainstream society. This segregation can create isolation and increased vulnerability.

There is a risk that if young children and children with disability are unable to give evidence in criminal proceedings perpetrators of sexual abuse will be able to offend against some of the most vulnerable members of society with impunity.

Vulnerable witnesses face particular challenges in an adversarial system. They are greater for complainants of child sexual offences as they will often be the only source of direct evidence against the accused. Their credibility will loom large in the trial. It is almost always the central issue.

As this audience knows our criminal justice system is designed so that the trial is effectively a contest, from which there emerges a winner and a loser. Chief Justice Barwick characterised it in the following way:

Under our law a criminal trial … is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or cross-examination shall be asked; always of course subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law.[3]

There is a real danger that, in the eyes of the community, the legitimacy of the criminal justice system will be undermined if it is perceived that the system is not concerned with revealing the truth as to what really happened.

This danger was discussed by Spigelman CJ in his Sir Maurice Byers lecture in 2011. He said:

The recognition that the principal purpose of legal proceedings is to identify the true factual circumstances of any matter in dispute is of fundamental significance for the administration of justice and the maintenance of public confidence in that system. If this recognition constitutes a modification of the adversary system, it is a modification that should be made.

The public will never accept that “justice” can be attained by a forensic game. The public require a system dedicated to the search for truth, subject only to the fairness of the process and consistency with other public values.[4]

There is little encouragement for survivors to participate in the criminal justice system if it does not have truth as its fundamental objective. Why risk potential re-traumatisation, a risk which materialises in many cases, to merely be a player in a sophisticated lawyers’ game?

Part of the justification of the adversarial system, although not its declared objective, is that it contains within it mechanisms through which the truth will emerge. One such mechanism, theoretically at least is cross-examination. It is the means through which it is accepted that the tribunal of fact is able to evaluate the truth of the witness’ evidence.

Most if not all lawyers, and indeed some non-lawyers, would be familiar with Wigmore’s characterisation of cross-examination as ‘beyond any doubt the greatest legal engine ever invented for the discovery of truth’.[5] Few, however, may be aware of the remarks that follow. Those remarks recognised the potential cross-examination has to distort the truth:

However difficult it may be for the layman, the scientist, or the foreign jurist to appreciate its wonderful power, there has probably never been a moment’s doubt upon this point in the mind of a lawyer of experience. “You can do anything” said Wendell Phillips, “with a bayonet – except sit on it.” A lawyer can do anything with cross-examination – if he is skilful enough not to impale his own cause upon it.  He may… - make the truth appear like falsehood. But this abuse of its power is able to be remedied by proper control.[6]

Wigmore is making the point that although cross-examination can be a powerful tool for discerning the truth it also can be an effective weapon to distort it. His remedy is to stress the need for the judge to ensure that cross-examination is appropriate in the circumstances. For judges trained in the adversarial paradigm this can be a challenging task. Judges may have different views about the appropriate level of intervention.

Research commissioned by the Royal Commission found that, in an analysis of 120 transcripts of complainant’s evidence in trials of child sexual offences, the number of times the judge intervened during the complainant’s cross-examination ranged between 0 and 162.[7] The average number of interventions was 10.78.[8] There were also jurisdictional differences. In NSW the average number of judicial interventions during the cross-examination of a child complainant was 25.87.[9] For Victoria the average was 19.67 and for Western Australia the average was 6.53.[10] For the purposes of this study the child complainants were defined to be between 6 and 13.[11]

In an article on cross-examination available on the NSW Public Defenders website the Deputy Senior Public Defender describes cross-examination in the following way:

The purpose of cross-examination is to extract from a Crown witness, evidence which will weaken the Crown case, or evidence which will strengthen the defence case. I hope I am not misquoting Gleeson CJ when he memorably criticised cross-examiners who seemed to believe that they were members of the ‘Junior League of Truth Seekers’. If the answer to the question you are thinking about asking will not weaken the Crown case, or strengthen the defence case, don’t ask it.[12]

The purpose of my referring to this quote is not to criticise the author. Indeed it is a piece of valuable practical advice and accords with defence counsel’s professional obligations. But it does confirm the objectives of the participants in the process, and consequently, the objectives of the system itself. That purpose is to better the opposition in a contest. Witness’ risk being caught in the cross-fire.

It may seem obvious that a child, and in particular a child with disability, will have greater difficulty answering questions asked by a well-educated adult trained in the art of questioning than an adult ordinarily might. If it is so obvious, however, why has the system failed to appropriately respond for so long? It is an unfortunate, yet inescapable reality, that children will be the victims of very serious crimes. Yet they will be forced to seek justice in a system designed not for them, but for adults.

In order for cross-examination to effectively investigate the truth the questions asked must be understood by the witness. The maturity or other relevant capacity of the witness matters. Questioning that prevents the complainant from giving their evidence effectively may lead to significant injustices.

In a statement that challenges both the old common law assumption in relation to the unreliability of children, and the capacity of the adversarial system to accommodate them, the Court of Appeal of England and Wales in B said:

We emphasise that in our collective experience the age of a witness is not determinative of his or her ability to give truthful and accurate evidence. Like some adults some children will provide truthful and accurate testimony, and some will not. However, children are not miniature adults, but children, and are to be treated and judged for what they are, not what they will, in years ahead, grow to be.[13]

In the course of its criminal justice work the Royal Commission is exploring processes and procedures that may alleviate some of the problems faced by children including those with disability. Those processes are often termed ‘special measures’.

New South Wales first introduced measures to assist complainants to give evidence in the early 1990s. Since that time all Australian jurisdictions have introduced a range of measures to assist complainants by modifying the usual procedures for giving evidence. These measures have eroded some aspects of the adversarial system.

A number of special measures are now commonly available in criminal proceedings, although their use varies across jurisdictions. These include using pre-recorded interviews with the complainant as evidence in chief; the use of closed circuit television, so that the complainant is able to give evidence from a room away from the courtroom; allowing the complainant to have a support person with them whilst giving evidence; the use of screens or partitions if the complainant is giving evidence in court; and, in some cases particularly, when young children are giving evidence, the judge and counsel will remove their wigs and robes.

Two important developments, now available in some jurisdictions, are intermediaries and special hearings.

Intermediaries can be used to assist vulnerable witnesses at both the investigative stage and in preparation for a trial. The intermediary is generally a professional with expertise in the communication difficulties that have been identified with respect to the witness. They conduct an assessment of the communication skills of the witness and recommend to police, and later to the court, the appropriate communication style for that witness.

Ideally, a ‘ground rules’ hearing occurs before the witness’ evidence is taken. At that hearing the intermediary can advise the court with respect to the witness’ requirements. The judge will indicate to counsel which recommendations of the intermediary are to be adopted. The intermediary will sit with the witness during their evidence, and may intervene where they believe a communication difficulty is likely to occur. Importantly, the intermediary’s role is not to rephrase or summarise the witness’ evidence.

A witness intermediary scheme was piloted in England and Wales in 2004-05.

The pilot was successful and the scheme was rolled out nationally.

Under the England and Wales scheme intermediaries undertake formal training in relation to their role in the justice system and are bound by a code of practice.

Of the intermediary scheme Lord Judge, a very experienced criminal lawyer, has said:

The use of intermediaries has introduced fresh insights into the criminal justice process. There was some opposition. It was said, for example, that intermediaries would interfere with the process of cross-examination. Others suggested they were expert witnesses or supporters of the witness. They are not. They are independent and neutral. They are properly registered. Their responsibility is to the court. And they are used at much earlier stages in the process, to flag up potential difficulties in advance of the trial. These can then be addressed in during the trial process.

… Their use is a step which improved the administration of justice and it has done so without a diminution in the entitlement of the defendant to a fair trial. In some cases juries have convicted, and in others there have been acquittals. But the use of intermediaries has meant that a number of those who are among the most vulnerable in the community may now be heard when before they would have been forced to remain silent.[14]

There are further benefits in the use of intermediaries. The first is that the complainant is no longer dependent on the judge having kept up with the most recent learnings in respect of children and other vulnerable witnesses. The second is that even in circumstances where the judge has appraised him or herself of the relevant knowledge, that knowledge will inevitably be of a general character. We know, of course, that children develop differently. A particular child may in some capacity, for example language, be more or less developed than the average child of that age. And persons diagnosed with a particular cognitive impairment may not have that impairment manifest in precisely the same way. Complainants may be uniquely challenged by the court process. The advantage of an intermediary is that the judge is able to understand the capacity, including any relevant disability, of a particular complainant and is informed of the challenges that that complainant will face in the courtroom. It allows the intermediary to assist not only the judge, but the parties to ask questions that will best assist the complainant to give effective evidence. This objective is fundamental to any system of justice.

Both New South Wales and South Australia have commenced intermediary schemes that draw, to some extent, on the experience of the scheme in England and Wales.

The function of intermediaries is to improve the quality, including the reliability, of the evidence given to the court. This function is entirely consistent with the objective of making the criminal justice system accessible to children and increasing its capacity to produce safe convictions in child sexual abuse cases.

An additional way of dealing with the challenges some sexual assault complainants face is through the use of special hearings. Special hearings provide for the evidence of complainants – that is, evidence in chief, cross-examination and re-examination – to be recorded before the trial, in the absence of the jury.

I understand that special hearings are available in Victoria. They are used in criminal proceedings relating to a charge for a sexual offence[15] where, at the time of the commencement of the proceedings, the complainant is under 18 or has a cognitive impairment.

Special hearings may facilitate the more effective use of other special measures. For example, if the cross-examination takes place in the absence of a jury, prosecution counsel, the judge, and, if relevant, an intermediary, may feel more comfortable intervening to object or suggest alternative wordings of questions to suit the language and cognitive abilities of the witness. These interventions can then be edited out of the final video that is presented to a jury. Full recording of the complainant’s evidence may also reduce delay for the complainant and the stress and anxiety that is likely to arise if the complainant has to be ready to give evidence on one or more occasions before the court is ready for the evidence to be given. There is no doubt that the full benefit will only be realised if the special hearing is conducted at an early stage of the proceedings.

The giving of evidence at an early stage means that the memory of the complainant is fresh and for this reason more likely to be accurate.[16] Importantly, having given evidence the complainant may then undergo counselling which may otherwise have to be postponed to minimise the risk that his or her evidence becomes tainted.[17] The complainant’s participation in proceedings is brought to an end at an earlier stage allowing the focus to shift to the complainant’s recovery.[18] And in the context of proceedings in which the assessment of a complainant’s credibility is often determinative, a complainant’s emotional response to an alleged offence is recorded closer to the time of the allegation.[19]

A further advantage is that pre-recording may assist in the identification of the key issues in the trial which may lead to earlier resolution of cases.

Prosecution responses and oversight

The establishment of independent prosecuting offices has been described as ‘one of the more significant improvements to the criminal justice system in this country in the 20th century.’[20]

In Price v Ferris, then President Kirby described the object of having a Director of Public Prosecutions as ‘to ensure a high degree of independence in the vital task of making prosecution decisions in exercising prosecution discretions.’[21]

The position of Director of Public Prosecutions was first established in Australia, in Victoria in 1982. The move in Victoria followed the establishment of a Crown Advocate under the Tasmanian Crown Advocate Act 1973, in Tasmania. The Tasmanian Act, however, did not provide guidance on the relationship between the Crown Advocate, the Attorney-General and the Solicitor-General.[22] This was seen as a significant flaw.

The Victorian Director of Public Prosecutions Act 1982 transferred most of the Attorney’s functions in matters of criminal prosecution to the Director’s office.[23] The second reading speech to the relevant Victorian bill stated:[24]

A major aim of the Bill is to remove any suggestion that prosecutions in this State or, indeed the failure to launch prosecutions can be the subject of political pressure.

Shortly before the creation of independent ODPPs the Australian Law Reform Commission described the process of prosecution in Australia at both state and federal level as ‘probably the most secretive, least understood and poorly documented aspect of the administration of criminal justice.’[25]

It is fair to say that through the establishment, and subsequent activities, of ODPPs the degree of transparency, and the capacity for scrutiny, of the prosecution process has increased. These activities have included the promulgation and publication of Director’s Guidelines. Director’s guidelines are, probably, the primary mechanism in this country for the control of prosecutorial discretion. However, they are only part of the picture.

A report by the Australian Institute of Criminology almost a quarter of a century after the creation of independent prosecuting agencies, stated the following:

The exercise of prosecutorial discretion is one of the most important but least understood aspects in the administration of criminal justice. The considerable discretionary powers vested in prosecutors employed by the state and territory Offices of the Director of Public Prosecutions are exercised in accordance with prosecution policies and guidelines, but the decision making process is rarely subject to external scrutiny.[26]

This lack of external scrutiny or oversight has emerged as an issue for the Royal Commission.

Significant problems in the decision-making process of ODPPs have emerged as a systemic issue in our case study work. Whilst this issue was not anticipated the Commission has been required to examine the issue of DPP complaints and oversight mechanisms.

For those of you who may not be aware in Case Study 15 the Commissioners found inadequacies in the processes of the ODPP of New South Wales. The Commissioners further found that the Queensland DPP failed to comply with its own guidelines, including in relation to consulting with complainants.

Concerns in relation to DPP processes emerged again in Case Study 17 in relation to the Northern Territory ODDP. The Commissioners again found noncompliance with the Northern Territory DPP guidelines in relation to a decision to discontinue a prosecution.

These case studies confirm that the mere existence of the Director’s guidelines is not sufficient to ensure the level of accountability and transparency the community might reasonably expect. This is not surprising.

The Commissioners are conscious that there is a tension between ensuring DPP accountability and maintaining DPP independence. Given that independence was essentially the raison d’etre of ODPPs, concern in relation to how greater accountability might be achieved is understandable. However as former Victorian DPP, and later Justice, John Coldrey observed:

Whilst it is argued that prosecutorial independence is an essential element in the proper administration of criminal justice it must be equally recognised that inherent in an independence without accountability is the potential for making arbitrary, capricious and unjust decisions.[27]

Currently there is no formal mechanism through which a complainant can challenge, or seek review of, the exercise of prosecutorial discretion including in circumstances where the decision making process has not been in accordance with the relevant Director’s guidelines. Further, the general community has no body or mechanism it can rely on to be satisfied that the DPPs and their staff are adhering to their guidelines.

In the Report of Case Study 15 the Commissioners stated:

Any body that is given statutory independence and that cannot be subject to any external reviews is at risk of failure in its decision-making processes. When the decisions being made are critical to the lives of the individuals involved, be they the complainant or accused, and are being made on behalf of the entire community it is relevant to ask whether the current structure, where there is absolute immunity from review of any decision is appropriate. Experience suggests that an absence of review increases the risk of administrative failure.[28]

Of particular concern to the Commission is the failure to comply with guidelines to consult with victims, particularly in relation to discontinuing a prosecution. Requirements in the guidelines to consult before decisions are made to discontinue recognise the importance of these decisions to complainants. Insufficient consultation before deciding to discontinue a prosecution or accept a negotiated plea is likely to cause victims to experience distress and dissatisfaction. The ACT Victims of Crime Commissioner told the Commission that ‘it is the procedural justice issue for many victims of crime that stays with them as much as the crime itself. The opportunity to be acknowledged and to have their questions answered and to have things explained in a way that they can understand is critical for their level of satisfaction.’[29]

The point at which the prosecutorial discretion to commence or continue a prosecution is exercised is one of the key points of attrition in the criminal justice system.[30] As the ALRC has stated ‘prosecutors play a key role as gatekeepers determining which victims of crime have access to justice’.[31]

With respect to DPP oversight mechanisms the situation in the United Kingdom is very different to that in Australia.

In 2013 the Victims Right of Review Scheme commenced in England and Wales. That scheme gives victims the right to request a review of certain decisions of the Crown Prosecution Service (CPS).

Decisions to which a right of review applies are decisions by the CPS to not bring proceedings; to discontinue proceedings or withdraw all charges involving the victim; to offer no evidence in all proceedings relating to the victim; or, to leave all charges in the proceeding to ‘lie on the file’ such that they cannot be proceeded with without leave of the court or the Court of Appeal.

Decisions to accept pleas to lesser charges or decisions to only prosecute some counts are not reviewable. In our consultations with the CPS they informed the Commission that review is afforded where otherwise a victim would have no remedy at all.

The creation of the VRR scheme followed the decision of the Court of Appeal of England and Wales in R v Christopher Killick.[32] In Killick the Court considered that rather than victims having to resort to the courts for judicial review, which unlike Australia is available for prosecutorial decisions in England and Wales, the right to review a CPS decision should be made the subject of a clearer procedure.

Under the VRR scheme the CPS first conducts what it terms ‘local resolution.’ This is a review of the original decision conducted by a different prosecutor but one from the same CPS area as the original decision-maker. The decision is checked and the reviewer ensures that the victim has been given a clear and detailed explanation of the decision.

In the event that local resolution does not resolve the issue to the satisfaction of the victim the matter proceeds to an independent review. Other than in relation to a review of a decision to offer no evidence, independent review is conducted by the CPS Appeals and Review Unit. The case is approached afresh by the reviewer. They may ask police to obtain further evidence. If the original decision was to discontinue proceedings it may be possible reinstitute proceedings if the reviewer found the original decision to be incorrect.

The victim is then notified of the outcome and provided with a full explanation of the decision, initially in writing. There is some capacity for victims of serious offences or their family members to be given an explanation in person.

In theory judicial review remains available if the victim remains dissatisfied. However, leave of the court is required to obtain judicial review. Since the introduction of the VRR scheme it has not been granted.

A further accountability mechanism operating in the United Kingdom is Her Majesty’s Crown Prosecution Service Inspectorate. The Inspectorate was established in 2000. The Chief Inspector reports to the Attorney-General. Reports are tabled in parliament.

In our consultations with the current Chief Inspector he told the Commission that the Inspectorate grew out of an internal CPS audit process. Subsequently, it became clear that it would be better if that process was external from, and independent of, the CPS.

The Inspectorate carries out a range of inspections including area or unit based inspections, thematic inspections and an annual case work examination program. The inspection program is developed in consultation with the Attorney General and other stakeholders. Those stakeholders include the DPP, other criminal justice inspectorates, the Victims Commissioner and Judges. The Inspectorate also responds to requests from the Attorney General and the DPP to review specific matters.  Inspectorate staff include both business and legal inspectors. They have access to the CPS computer system.

As part of its criminal justice work the Commission is considering whether oversight or review mechanisms for ODDPs are necessary in the Australian context and, if so, what they might look like.

The Commissioners consider that all Australian DPPs should be able to implement a number of minimum requirements. Those requirements are:

  1. The adoption of comprehensive written policies for decision-making and consultation with victims and police.

  2. Ensuring that all policies are publically available and published online.

  3. Provision of a right for complainants to seek written reasons for key decisions.

In relation to a complaints mechanism the Commissioners recognise that the CPS is significantly larger than individual Australian DPP offices. Indeed the CPS is significantly larger than the offices of all Australian DPPs combined.

We also recognise that, as conveyed to the Commission, decision-making in Australian ODPPs already occurs at a more senior level than in the CPS. Accordingly there is a capacity for some degree of informal review before a decision is made.

Notwithstanding these matters, and although a concluded view has not been determined, it appears to the Commissioners that there is merit in the provision of a formal internal complaints mechanism which would allow victims to seek merits review of key decisions, in particular decisions that result in a prosecution not being brought or being discontinued.  

There is a further option – an audit of compliance with DPPs guidelines and policies. If the results of any audit were published this would advance the transparency and accountability of DPPs and their offices, and might negate the need for an external audit process. This too is an option the Commissioners are closely considering.

Sentencing

In Part I of this speech I discussed how judicial assumptions about the way genuine victims of sexual assault behaved underpinned some of the more problematic jury directions in sexual assault trials, and in particular, child sexual assault trials.

Judicial assumptions have also played a role in the sentencing of offenders who have been convicted of sexual offences against children. These include assumptions about the harm caused by sexual offending.

In New South Wales it is now accepted that:

child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can do”.[33]

This position is the product of a shift in judicial understanding. From the early 2000s the decisions of the New South Wales Court of Criminal Appeal reveal a greater willingness on the part of judges to assume that harmful consequences result from child sexual abuse.[34] This has been accompanied by increased severity in the sentences for these offences.

This shift was remarked upon by Mason P in R v MJR in 2002. His Honour stated that over time the pattern of sentences for child sexual assaults had increased and that ‘this putative increase has come about in response to greater understanding about the long-term effects of child sexual abuse and incest; as well as by a considered judicial response to changing community attitudes to these crimes.’[35]

The issue in MJR was whether an offender should be sentenced in accordance with the sentencing practice adopted at the time of the commission of the offences, or whether the court should apply current sentencing practice notwithstanding the higher level of sentencing severity. His Honour held that current practice should apply. His Honour was, however, in the minority on this point.

The issue of what sentencing standards should apply in historical child sexual abuse cases is being considered by the Royal Commission as part of its criminal justice project. It has particular significance in the work of the Commission. This is because it is common for periods of significant time, sometimes decades, to pass between the offending and reporting by the victim of child sexual abuse to the authorities.

Research commissioned by the Royal Commission found that in relation to 84 institutional child sexual abuse cases finalised in the NSW District Court between 1989 and 2015, over 20 per cent of matters were sentenced 25 years after the sexual assault occurred. The longest period between offending and sentence was 51.7 years.[36]

A further study with an expanded dataset comprised of 283 matters of institutional child sexual abuse found that the median period of delay was 25 years. The longest period of delay was 58 years.[37] Longer periods of delay were more likely in cases where the offending was conducted over a long period of time, in cases that involved more offences and cases involving more than one victim.[38] This indicates that cases where there may be a disparity between two sets of sentencing standards because of delayed reporting are likely to be cases in which the offending is extensive. Longer periods of delay were also more likely in recent time. That is, cases sentenced since 2000 were associated with longer delay between the first offence and the sentence date.[39] This indicates that the question of which standards should apply is likely to remain an issue in the immediate future. 

In most Australian jurisdictions an offender is sentenced with reference to the sentencing standards in existence at the time of the offending. There are a number of concerns with this practice.

 First, applying historical standards may result in a sentence that does not align with the contemporary assessment of the criminality of the offence. Sentences may be shorter than they would otherwise be applying current standards. Non-custodial sentences may be imposed for offending which, applying current standards, would result in a term of imprisonment. This may cause distress for victims and undermine community confidence in the administration of justice. This is especially so in circumstances where previous standards were based on a lack of understanding of the seriousness of the offending and its impact.

Second, the court may be prohibited from taking into account matters that are today are recognised as aggravating features, such as grooming.[40]

Third, applying historical standards can be a difficult and complicated task. Relevant sentencing remarks and statistics may simply not be available.

In Victoria the Sentencing Act 1991 provides that the sentencing court must have regard to, amongst other matters, current sentencing practices.[41] Sentencing practice includes ‘current practice with respect to the use of pre-sentence reports, drug and alcohol reports and victim impact statements.’[42]

The Victorian Court of Appeal has held that although sentencing practices at the date of offending may be a factor to which the court may have regard, reference only to the historical statutory maximum in combination with current sentencing considerations, such as contemporary community attitudes would not be an error.[43]

In South Australia s 29D of the Criminal Law (Sentencing) Act 1988 requires sentencing courts to apply, in relation to matters of persistent or multiple child sexual abuse, the standards set out in R v D[44] irrespective of when the offending occurred.

In R v D a majority of the South Australian Court of Criminal Appeal held that heavier sentences should be imposed for child sexual abuse matters. They held that unlawful sexual intercourse with children under 12, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years subject to a guilty plea, co-operation with the police, genuine contrition and other mitigating factors. In relation to unlawful sexual intercourse with children over 12 the starting point should be a head sentence of about 10 years imprisonment. Doyle CJ considered the court should take this course ‘because of the seriousness of the crime in question, and because of its prevalence.’[45]

England and Wales have gone further still. Substantial reforms followed decisions by the England and Wales Court of Appeal including R v H and Others.[46] In that case the court held that for sexual abuse cases the appropriate approach to sentencing includes that the sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current and measured by reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts. The Court said that although the sentence must be limited to the maximum allowable at the date the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify today what the sentence for the individual offence was likely to have been if the offence had come to light soon after it was committed.[47]

In 2012 the Sentencing Council for England and Wales commenced consultation as part of a broad review of sentencing issues relating to sexual offences. The Council issued a guideline in 2013 which came into force on 1 April 2014. That guideline affirmed the approach in R v H and provides:

The offender must be sentenced in accordance with the sentencing regime applicable at the date of sentence. Under the Criminal Justice Act 2003 the court must have regard to the statutory purposes of sentencing and must base the sentencing exercise on its assessment of the seriousness of the offence.[48]

The guideline directs the court to prioritise the culpability of the offender and the harm caused or intended. The sentence is, however, limited to the maximum sentence at the time of the offending providing it is not higher than the current maximum.[49]

The Council stated that a key element in the development of the guideline was public protection. The guideline ‘reinforces the importance of proper punishment and the prevention of re-offending, either through significant custodial sentences or rigorous treatment programs that will address the offender’s behaviour.’[50]

In addition to standards other sentencing issues being considered by the Royal Commission include whether provision should be made to exclude good character as a mitigating factor for child sexual abuse offenses, similar to the approach in New South Wales and South Australia. And whether, like in England and Wales provision should be made for good character to be an aggravating factor where good character facilitated the offending. A further issue is whether there should be a presumption in favour of cumulative sentencing for child sexual abuse offences similar to the approach taken in Victoria.

Conclusion

In 2013 in Munda v The Queen six judges of the High Court stated:

The proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence.[51]

Munda was an appeal against sentence for the offence of manslaughter. However, the words of the Court are of general application. They have particular resonance in relation to the sexual abuse of children. The Royal Commission’s recommendations in relation to criminal justice issues are an opportunity for the entire Australian community to come together through their Parliaments to make changes in order to better fulfil that ‘long-standing obligation.’

There are few classes of offences in which the victim’s role in criminal proceedings will be as central as sexual offences. If we, as a community, wish to better ‘vindicate the dignity of … victim[s]’ and better protect ‘the vulnerable against repetition of violence’ we must encourage and support the participation of the victims in the criminal justice process. We must ensure our laws in relation to both substantive offences and procedure and evidence promote the conviction of those guilty of sexually offending against children and the acquittal of the innocent. And we must ensure that those who do offend against children are dealt with appropriately post-conviction.

The Royal Commission will provide its report in relation to criminal justice to government in August.


[1] Igor Judge ‘Half a Century of Change: The Evidence of Child Victims’, Tomlin Lecture in Law and Psychiatry, March 2013, Kings College London.

[2] Transcript of CDP, Case Study 38, 22 March 2016, 18036:43-18037:5.

[3] Ratten v The Queen (1974) 131 CLR 510, 517.

[4] Spigelman ‘Truth and the Law’ The Maurice Byers Lecture (Sydney, 26 May 2011)

[5] Wigmore, Wigmore on Evidence (1974) vol 5, s 1367.

[6] Ibid.

[7] Powell, Westera, Goodman-Delahunty and Pichler, An Evaluation of how Evidence is Elicited from Complainants of Child Sexual Abuse (August 2016) 236.

[8] Ibid.

[9] Ibid 237.

[10] Ibid.

[11] Ibid 197.

[12]http://www.publicdefenders.nsw.gov.au/Pages/public_defenders_research/Papers%20by%20Public%20Defenders/public_defenders_crossexamination_stratton.aspx

[13] B [2010] EWCA Crim 4, [40].

[14] The Rt Hon Lord Judge ‘Vulnerable Witnesses in the Administration of Criminal Justice’ (Speech delivered at the 17th AIJA Oration in Judicial Administration, Sydney, 7 September 2011) cited in Woodward, Hepner and Stewart, ‘Out of the Mouths of Babes: Enabling Children to Give Evidence in the Justice System’ (2014) 39 Alternative Law Journal 27, 30.

[15] Criminal Procedure Act 2009, s 369. The Judge must direct a special hearing be held unless, on application by the prosecution, the judge directs that the complainant is to give direct testimony: ss 370(1A), 370(2).

[16] Zhou, ‘Challenges in prosecuting child sexual assault in New South Wales’ (2010) 34 Criminal Law Journal 306, 309.

[17] Ibid.

[18] Bowden, Henning and Plater ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 556.

[19] Kebbell and Westera, ‘Promoting pre-recording complainant evidence in rape trials: Psychological and practice perspectives’ (2011) 35 Criminal Law Journal 376, 379.

[20] Bugg QC ‘The Role of the DPP in the 20th Century’, 1.

[21] (1994) 74 A Crim R 127, 130.

[22] Yang ‘Public Accountability of Public Prosecutors’ (2013) 20 Murdoch University Law Review 28, 37.

[23] Ibid.

[24] Victoria, Legislative Assembly, 18 November 1982 Debates, 2096 (Ian Cathie, Minister for Housing).

[25] ALRC, Sentencing of Federal Offenders, Report No 15 (1980), 61.

[26] Denise Lievore, ‘Victim Credibility in Adult Sexual Assault Cases’ [2004] (288) Trends and Issues in Crime and Criminal Justice 1.

[27] Coldrey, John QC (1990) Paper entitled ‘The Office if the Director of Public Prosecutions: Independence Professionalism and Accountability’ cited in G Flatman QC ‘Independence of the Prosecutor’ paper delivered at the Prosecuting Justice Conference (18 and 19 April 1996, Melbourne) 5.

[28] Report of Case Study No 15: Response of swimming institutions, the Queensland and NSW Offices of the DPP and the Queensland Commission for Children and Young People and Child Guardian to allegations of child sexual abuse by swimming coaches, 99.

[29] Transcript of J Hinchey, Criminal Justice Roundtable: DPP complaints and oversight mechanisms, 29 April 2016, T70:34-46.

[30] ALRC, Family Violence – A National Legal Response (Report 114, 2010) [26.43].

[31] Ibid.

[32] [2011] EWCA Crim 1608.

[33] R v Gavel [2014] NSWCCA 56, [110].

[34] Compare R v Muldoon (unreported, New South Wales Court of Criminal Appeal, Hunt J, 13 December 1990). and DBW v R [2007] NSWCCA 236.

[35] (2002) 54 NSWLR 368, 377 [57].

[36]A Freiberg, H Donnelly, and K Gelb, Sentencing for Child Sexual Abuse in Institutional Contexts, 2015, 126, 127.

[37] K Gelb, A Statistical Analysis of Sentencing for Child Sexual Abuse in Institutional Contexts, 2016, ix.

[38] Ibid 68.

[39] Ibid.

[40] A Freiberg, H Donnelly, and K Gelb, Sentencing for Child Sexual Abuse in Institutional Contexts, 2015, 95.

[41] Section 5(2)(b).

[42] Stalio v The Queen [2012] VSCA 120 [18].

[43] Stalio v The Queen [2012] VSCA 120 [78].

[44] (1997) 69 SASR 413.

[45] (1997) 69 SASR 413, 12-14.

[46] [2011] EWCA Crim 2753.

[47] [2011] EWCA Crim 2753 [47].

[48] Sentencing Council for England and Wales, Sexual Offences Definitive Guideline, 2013, Annex B (Approach to sentencing historic sexual offences) 155, [1].

[49] Ibid, [2].

[50] Sentencing Council for England and Wales, New proposals give greater focus on impact of sex offences on victims, media release, 12 December 2013.

[51] Munda v Western Australia [2013] HCA 38 [54] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).