Criminal justice issues for the Royal Commission - Sydney, New South Wales

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

In our system of criminal justice the victim of an offence is not given a central role. This was not always the case.

Historically the role of the state in the criminal trial process was very limited. Criminal disputes were considered private matters. Until the start of the 1400s, the laying of charges and the conduct of the prosecution was performed almost exclusively by the victim or their family.^[1]

Over the next three centuries the royal courts and officers of royal justice would exercise increasing influence in the criminal justice process, conducting both investigations and prosecutions.^[2] However, victims remained, in many cases, responsible for apprehending the offender, filing charges, collecting evidence and running the trial.^[3]

With the coming of the Industrial Revolution, and as cities became more densely populated, the criminal justice process began to change and ultimately became the modern adversarial trial.^[4] The rise in crime associated with increasingly dense populations led government to offer incentives for the apprehension of criminals.^[5] Miscarriages of justice resulted from increases in false evidence.^[6] Accused were regularly imprisoned before trial and, accordingly, faced difficulties in preparing a defence. The evidence against an accused was not disclosed before trial. They could not subpoena witnesses.^[7]

The disadvantaged position of the accused ultimately led to changes in the criminal trial process. The most significant change was to allow the accused to be legally represented.^[8] The presence of defence counsel encouraged the development of rules of evidence and the modern style of cross-examination. The core elements of the modern adversarial trial began to appear: the judge as neutral arbiter, the jury as passive observer, and defence counsel advising their clients to remain silent and put the prosecution to proof.^[9]

By the 1850s, most prosecutions would be conducted by police on behalf of victims.^[10] The first Director of Public Prosecutions was appointed in England and Wales in 1879. The role of the victim in the criminal justice process receded.

And so it remains today. With the trial conceptualized as a contest between the state and the accused, the role of the victim is largely limited to that of witness for the prosecution.

There have been some developments in more recent times, aimed at providing victims with greater consideration during court proceedings. These include the development of Declarations or Charters of Victims’ Rights and the issuing of DPP Guidelines which make reference to the role that victims should play in relation to the exercise of various prosecutorial discretions.^[11]

Notwithstanding these developments the role of the victim in the criminal justice process remains for many an issue of concern. As the Victorian Law Reform Commission recently reported, research has revealed that:

Many victims feel that their role as a witness simultaneously requires them to re-live the trauma of the crime, while denying them the ability to voice the circumstances and impact of the crime in a way that is meaningful for them.

Just retelling a traumatic event can be a traumatizing experience. Victims have described the process of giving evidence as humiliating, degrading and manipulative, and as adding to the trauma of the original crime. The public nature of a criminal trial; the focus on what happened instead of the impact; aggressive cross-examination techniques; and rules of evidence that restrict the way in which a victim can communicate have all been identified as contributing to victims’ distress and frustration.^[12]

The role of victims and survivors in the criminal justice process has been a central element of the Royal Commission’s criminal justice work.

The criminal justice system is often viewed as not being effective in responding to crimes of sexual violence, including adult sexual assault and child sexual abuse. Research has identified that, in relation to these crimes, there are lower reporting rates, higher attrition rates, lower charging and prosecution rates,^[13] and, as I will discuss further a little later, lower conviction rates.

For some victims the adversarial criminal trial can have negative psychological consequences. Judith Herman, a psychiatrist with expertise in traumatic stress, has observed that ‘if one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law.’^[14]

The concern that the criminal justice process disincentives victims of sexual offences from reporting is real. In case study 38 the witness who we have called CDR told us that, in relation to his psychologist:

While he didn’t explicitly discourage me from reporting to police, I remember he emphasized the negative impact that the criminal justice process would have on my health and well-being.^[15]

In 2013, six judges of the High Court recognised these issues when, in Munda v The Queen, they said:

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.^[16]

Munda was an appeal against sentence for the offence of manslaughter. However, the principles stated are fundamental to a fair criminal justice system. They have particular resonance in relation to the sexual abuse of children.

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, procedure and evidence promote the conviction of those who are guilty and the acquittal of the innocent. And we must ensure that those who do offend against children are dealt with appropriately post-conviction.

The question for the Royal Commission has been whether these objectives are being achieved and, if not, what, if any, changes are necessary to achieve them.

It is helpful to have in mind some statistics the Royal Commission obtained from the NSW Bureau of Crime Statistics and Research – the authoritative source of criminal offence data. They concern the outcomes in trials of child sexual abuse offences in New South Wales. These statistics confirm 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. Although 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 misplaced. This has implications for laws based on these assumptions.

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 of 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.^[17]

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’. 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 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 between the state and the accused, from which there emerges a winner and a loser. There is a real danger that, in the eyes of the community, the legitimacy of the criminal justice system will be undermined if the system is not concerned with revealing the truth as to what really happened but rather the winner of a contest.

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.^[18]

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’.^[19] 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.^[20]

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.^[21] The average number of interventions was 10.78.^[22] There were also jurisdictional differences. In NSW the average number of judicial interventions during the cross-examination of a child complainant was 25.87.^[23] For Victoria the average was 19.67 and for Western Australia the average was 6.53.^[24] For the purposes of this study the child complainants were defined to be between 6 and 13.^[25]

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.^[26]

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. In this context it is unsurprising that victims in the adversarial criminal trial have been described as as ‘evidentiary cannon fodder’.^[27]

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.

Recent research published by the Royal Commission confirms the potential for injustice to occur. In their report entitled ‘Empirical Guidance on the Effects of Child Sexual Abuse on Memory and Complainant’s Evidence’ the researchers reported that the most reliable and accurate memory reports are generally provided in response to free recall prompts.^[28] Free recall is a narrative response to an open-ended prompt, provided in any order and without the help of cues.^[29] An example of a free recall prompt would be ‘tell me what happened’.

Leading questions, questions posing options for agreement and other forms of suggestive questioning tend to lead to errors.^[30] Cross-examination style questions that do not include free-recall prompts tend to impair the memory reports of victims at the time of retrieval. This is particular so for pre-schoolers, primary school children and distressed witnesses.^[31] It is obvious that many, if not most, complainants of child sexual abuse will fall within these categories.

In relation to children, the researchers reported that being questioned repeatedly on the same topic may lead children to infer that their previous answer was incorrect. As a result they may doubt and change their answers.^[32] This, in turn, leads to both inaccuracies, which are unhelpful for the tribunal of fact, and inconsistencies, which provide fertile ground for defence counsel, in the child’s evidence.

Rather than operating as a mechanism for uncovering the truth the nature of cross-examination and the stress that accompanies it may impair a witness’ ability to recall events as accurately as they otherwise might. The emotional distress, shame and fear experienced by a complainant at the time they are interviewed by police or during court proceedings can impair their ability to retrieve relevant memories.^[33] Interviewing techniques which reduce stress at the time of recall may facilitate more accurate and complete memory reports.^[34] The adversarial trial in the traditional form does not appear well designed to facilitate accurate recall by witnesses giving evidence.

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.^[35]

In the course of its criminal justice work the Royal Commission has explored 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 the former Lord Chief Justice of England and Wales 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.^[36]

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.

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.^[37] 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.^[38] 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.^[39] 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.^[40]

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.

Particularisation

A further difficulty for survivors in child sexual abuse cases is the requirement for the prosecution to provide particulars in relation to the offence or offences charged. The requirement to provide particulars, undoubtedly reasonable, is required to ensure the accused knows the case against him or her.^[41]

Victims and survivors of child sexual abuse often find it difficult to provide adequate or accurate details in relation to the offending. There are a number of reasons. The first is that young children may not have a good understanding of dates, times and locations or an ability to describe how different events relate to each other across time.

Second, delay in reporting may cause events to be wrongly attributed to a particular time or location when they in fact occurred earlier or later, or at another location.

A third reason is that the abuse may have occurred so often and in such similar circumstances, that the victim or survivor is unable to describe specific or distinct occasions in which they were offended against.

The memory research I referred to earlier confirms this. The researchers reported that it is the core features and meaning of an event that are most likely remembered.^[42] Other information is less well preserved. They stated that ‘for example, core features of sexual abuse such as the nature of the abusive acts and the perpetrator may be remembered but details such as the time, the colour of someone’s clothing, or what was said may be forgotten.’^[43]

The researchers also reported that for repeated or familiar events, a person generally develops a schema for the core or gist features of that type of experience.^[44] A schema is a mental template which represents some aspect of experience and is based on prior experience and memory. It is structured to facilitate perception, cognition, the drawing of inferences or the interpretation of new information in terms of existing knowledge.^[45] Once that schema exists, the specific details of every instance of that type of experience may not be encoded or consolidated. As a consequence they cannot be recalled.^[46]

The challenges in relation to particularising a series of repeated events which occurred some time ago are obvious. The result is a cruel paradox: the greater the regularity with which a child is offended against, the more difficult it can become to charge and prosecute the offender.

Parliaments have attempted to remedy this situation through the introduction of legislation to create persistent sexual abuse offences. This first occurred in Queensland in 1989. By the end of the 1990s an offence of this type had been introduced in each of the states and territories. There have, however, been challenges in relation to these offences.

The Queensland offence as originally enacted was an offence of ‘maintaining a sexual relationship with a child/young person.’^[47] The legislation required the prosecution to prove the sexual relationship by showing three distinct occasions of unlawful sexual conduct each proved beyond reasonable doubt.

The offence was considered by the High Court in 1997 in KBT v The Queen.^[48]The Court held that the offence required the jury to be satisfied beyond reasonable doubt as to the commission of the same three acts which constituted relevant sexual offences.^[49]

It follows that in order for the jury to agree that the same three acts of sexual offending have been proved, one must be able to identify with some precision each of the three discrete acts or occasions of offending necessary to make up the charge. As a consequence the problem was not removed.

In most Australian jurisdictions the relevant offence continues to require proof of the occurrence of three or more unlawful sexual acts.^[50] It is not surprising, given the decision in KBT, that in most, but not all, of these jurisdictions the persistent sexual abuse offence is rarely charged. Data provided to the Royal Commission indicates it is rarely charged in the two largest jurisdictions: New South Wales and Victoria.

In Queensland, however, the persistent sexual abuse offence is regularly charged. In that state the offence has been reframed in order to address the concerns identified in KBT. Under the Queensland legislation the actus reus of the offence is the unlawful sexual relationship, not particular unlawful acts.

The amended section 229B defines an unlawful sexual relationship as one that involves more than one unlawful act over any period. All members of the jury are required to be satisfied beyond reasonable doubt that the evidence established that an unlawful sexual relationship with the child involving unlawful sexual acts existed. Importantly, however, s 229B(4) provides that:

(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence and;

(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and

(c) all the members of the jury are not required to be satisfied about the same unlawful sexual acts.

Section 229B has been considered at appellate level in Queensland on a number of occasions. The Court’s decisions establish that the key element of the offence is the unlawful sexual relationship.^[51] The indicia of maintaining a relationship include its alleged duration, the number of acts and the nature of the acts alleged.^[52] The Court was satisfied that the trial’s judge’s power to ensure a fair trial is maintained under the section,^[53] and that the section does not remove the court’s power to set aside a conviction on the grounds that there was a miscarriage of justice where the accused was given so little information about the charge as to render it impractical to prepare a defence.^[54] The Court of Appeal has also held that s 229B(4) does not offend Chapter III of the Commonwealth Constitution.^[55]

Application for special leave to appeal to the High Court in relation to convictions under s 229B have been twice refused. Once in 2008 and again in 2012.

The Royal Commission is considering the law in relation to persistent sexual offences as part of its criminal justice work. It is unacceptable, in our view, that the criminal justice system should accept a situation in which children who have suffered the most extensive abuse may be those who are less able to receive justice in the criminal courts.

Further improvements

The Royal Commission has also considered a number of options designed to improve the criminal system’s response to victims and survivors of child sexual abuse.

One option is that state and territory governments should develop a standard document for complainants and other witnesses to better inform them about the process of giving evidence. Currently complainants may not be given information about what to expect in court, and in particular the process of cross-examination. Complainants may not be given this information because of fears the prosecution may be accused of ‘coaching’ witnesses. The Commission has considered whether survivors would be assisted by being provided standardised information about matters including the purpose of giving evidence in chief, the purpose of cross-examination, the detail in which they are likely to be required to give their evidence, the obligations of defence counsel to challenge their evidence, and particularly difficult questions that might be used in cross-examination.

The Royal Commission has also considered whether victims and survivors should be provided better information about the role of victim impact statements in the sentencing process. This could include information in relation to understanding the sort of content that may result in objection being taken to some or all of the statement.

Conclusion

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 to ensure that the High Court’s sentiments in Munda are achieved.

There are likely to be some, perhaps many, practitioners and judges, who will be resistant change. Perhaps their thinking may be assisted by reflecting on a comment by 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 … 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.^[56]

The Royal Commission provided its report in relation to criminal justice to government last week

^{[1] Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Consultation Paper, July 2015) [2.15], [2.18].
[2] Ibid [2.19].
[3] Ibid [2.19]-[2.20].
[4] Ibid [2.24].
[5] Ibid [2.26].
[6] Ibid.
[7] Ibid [2.28].
[8] Ibid [2.29].
[9] Ibid.
[10] Ibid [2.30].
[11] Garkawe, ‘The Role of the Victim During Criminal Court Proceedings’ (1994) 17 University of New South Wales Law Journal 598-599.
[12] Victorian Law Reform Commission, above n 1, [2.64]-[2.65]
[13] Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal justice (Consultation Paper, September 2016) 70.
[14] Judith Herman, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16(2) Journal of Traumatic Stress 159, 159 cited in VLRC, above n 1 [2.50].
[15] Case Study 38, (Day 171), T17386: 16-22.
[16] Munda v Western Australia [2013] HCA 38 [54] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
[17] Transcript of CDP, Case Study 38, 22 March 2016, 18036:43-18037:5.
[18] Spigelman ‘Truth and the Law’ The Maurice Byers Lecture (Sydney, 26 May 2011)
[19] Wigmore, Wigmore on Evidence (1974) vol 5, s 1367.
[20] Ibid.
[21] Powell, Westera, Goodman-Delahunty and Pichler, An Evaluation of how Evidence is Elicited from Complainants of Child Sexual Abuse (August 2016) 236.
[22] Ibid.
[23] Ibid 237.
[24] Ibid.
[25] Ibid 197.
[26] http://www.publicdefenders.nsw.gov.au/Pages/public_defenders_research/Papers%20by%20Public%20Defenders/public_defenders_crossexamination_stratton.aspx
[27] Jonathon Braithwaite, ‘Juvenile Offending: New Theory and Practice’ in L Atkinson and S Gerull (eds) National Conference on Juvenile Justice (Australian Institute of Criminology, 1993) 36 cited in Victorian Law Reform Commission [2.34].
[28] Jane Goodman-Delahunty, Mark Nolan and Evianne L Van Gijn-Grosvenor, Empirical Guidance on the Effects of Child Sexual Abuse on Memory and Complainants’ Evidence (July 2017), 183-4.
[29] Ibid, 151.
[30] Ibid 184.
[31] Ibid 183-4.
[32] Ibid 184.
[33] Ibid 184.
[34] Ibid 184.
[35] B [2010] EWCA Crim 4, [40].
[36] 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.
[37] Zhou, ‘Challenges in prosecuting child sexual assault in New South Wales’ (2010) 34 Criminal Law Journal 306, 309.
[38] Ibid.
[39] 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.
[40] Kebbell and Westera, ‘Promoting pre-recording complainant evidence in rape trials: Psychological and practice perspectives’ (2011) 35 Criminal Law Journal 376, 379.
[41] Johnson v Miller (1937) 59 CLR 467, 489 (Dixon J).
[42] Goodman-Delahunty, Nolan and Van Gijn-Grosvenor, above n 25, 179.
[43] Ibid.
[44] Ibid.
[45] Ibid.
[46] Ibid.
[47] Criminal Code Act 1899 (Qld) s 229B.
[48] (1997) 191 CLR 417.
[49] (1997) 191 CLR 417, 422-423.
[50] NSW, Victoria, WA, Tasmania, ACT, NT.
[51] R v LAF [2015] QCA 130 [4].
[52] R v DAT [2009] QCA 181 [17]
[53] R v CAZ [2011] QCA 231 [45], [51].
[54] R v CAZ [2011] QCA 231 [51].
[55] R v CAZ [2011] QCA 231 [52]-[53].
[56] Igor Judge ‘Half a Century of Change: The Evidence of Child Victims’, Tomlin Lecture in Law and Psychiatry, March 2013, Kings College London.}