Transcript: Sentencing Seminar Series - The Criminal Justice Report

Kathy McLeish, Master of Ceremonies:

Good afternoon everyone, and welcome to the Queensland Sentencing Advisory Council’s fourth event in the sentencing seminar series. This is a very important event for the council, and for the Queensland justice system.

There’s no escaping the fact that the criminal justice system is often seen as not as effective as it could be, in responding to child sexual abuse cases. But with the Royal Commission into Institutional Responses to Child Sexual Abuse recently releasing its report on criminal justice, and due to complete its landmark inquiry in December, it provides a unique opportunity to reflect on how we can work together to improve the system into the future. The Commission has reflected on what it considers is the essential role of criminal justice, finding that an effective criminal justice response must punish offenders, protect children from those offenders, and restate the community’s abhorrence of such crimes.

It sounds relatively straightforward, right? But as those involved in investigating and prosecuting these charges, supporting victims through the process, and then working with offenders to prevent future offending know all too well, it’s anything but a simple exercise. So it was not surprising when the Commission’s report on these issues alone ran to 485 pages, with 85 recommendations. The Commission has also highlighted the role of the criminal justice response in bringing the occurrence of institutional child sexual abuse into the public domain, and ensuring that the community is aware of the nature and extent of that abuse, and the institutional context in which it has occurred.

Given the ground-breaking work the Commission has done in this area, I think we can all take up this challenge to ensure we continue to shine a light on this important issue. My name is Kathy McLeish; I’m a senior journalist with ABC News and Current Affairs. Over many years, I’ve reported widely across social issues, mental health, and until recently I was the child protection reporter in Queensland. Over the years I’ve had the privilege to be trusted with heartbreaking and powerful stories from people affected, to make those working to help and support them, and those working for change. I’ve seen firsthand just how complex the challenges are. So this extraordinarily important inquiry for all Australians has been of extreme interest to me; as a parent, a member of society, and as a reporter working in the field, and I know to all of you. This afternoon I’m also your Master of Ceremonies. Before we start, I’d like to acknowledge the traditional owners of the land on which we’re meeting this afternoon, and pay my respects to elders past, present, and emerging, and welcome any Aboriginal and Torres Strait Islander people with us today.

As you’re no doubt already aware, there are a large number of distinguished guests within the room; we have a cross-section of Queensland’s criminal justice and child protection systems, advocacy groups, and members of the general community. I’d like to make special mention of a few people: The Honourable Justice Atkinson of the District Court of Queensland; magistrates Anne Thacker and Christine Roney of the Magistrates Court of Queensland; Michael Byrne, QC, the Director of Public Prosecutions; Peter Shaddock, the Acting Deputy Commissioner of Corrective Services; Assistant Commissioner Maurice Carless from the State Crime Command at the Queensland Police Service, representing Police Commissioner Ian Stewart; Tony Keyes, the Senior Deputy Crown Solicitor; Jo Bryant, CEO of Protect All Children Today; Hetty Johnston, founder and Executive Chair of Bravehearts Foundation; Leanne Robertson, the Acting Assistant Director of the Department of Justice and Attorney General; and Michael Byrne, QC, President of the Parole Board. Both are joining us via live web stream. We also have a large group of people joining us via live web stream from homes, offices, and courts across Queensland. Welcome, to all of you.

Now to the general housekeeping; firstly, as a courtesy for everyone here today, please ensure your phone’s turned off or on silent. If you haven’t already located the restrooms, they are just outside the doors; men and ladies. In the unlikely event of an emergency, please follow the directions of the State Library staff or wardens. Don’t use lifts under any circumstances. If you’re required to leave the building and are unable to do so, please ask somebody for assistance. And finally, if you need to leave the room during this afternoon’s presentation, please do so with regard to others, and just do that quietly. As I mentioned before, we have a large group of people connecting with us via web stream, and this presentation is also being recorded for future use.

So that’s the formalities out of the way; let us kick things off. This afternoon we’re all here because we have several things in common. We work on the criminal justice or child protection systems; we support survivors of child sexual assault. We believe victims of institutional child sexual abuse and all child sexual abuse, for that matter, deserve to be heard. We understand the long-term ramifications of this heinous crime, and we’re keen to better understand the criminal justice report released by the Royal Commission Into Institutional Responses to Child Sexual Abuse on 17 August this year. We’re very fortunate today to have our guest speaker this afternoon; His Honour, Justice Peter McClellan. He’s a judge of appeal in New South Wales, and prior to this was Chief Judge at Common Law of the Supreme Court of New South Wales. He’s had a long and distinguished career, having also been the judge of the Supreme Court of New South Wales, Chief Judge of the Land and Environment Court of New South Wales, Chairman of the Sydney Water Inquiry, and Assistant Commissioner at the Independent Commission Against Corruption. He was admitted to practise law in 1974, and appointed Queen’s Counsel in 1985. He became a Member of the Order of Australia in 2011, for services to the judiciary, through the Supreme Court of New South Wales to environmental law, and to legal education. As you all know, since January 2013, he’s been the chair of the Royal Commission into Institutional Child Sexual Abuse, supported by a very experienced team, the Royal Commission has worked tirelessly to uncover where the systems have failed to protect children, and make recommendations on how to improve laws, policies, and practises. The final report is due for release on December 15, 2017. Please join me in welcoming The Honourable Justice Peter McClellan.

The Honourable Justice Peter McClellan, Chair of the Royal Commission into Institutional Responses to Child Sexual Abuse:

Thanks Kathy. I’m not sure where you got the number 485 pages from. This is Volume I; it’s the smallest, or thinnest of the volumes, and it’s got 619 pages. It’s in one sense the most important volume, because it contains the executive summary; but for those who have the tenacity reading the whole report, it’s interesting. As Kathy just told you, we have to take our final report to the Governor General on the 15th of December this year. That final report, I regret to tell you, will be significantly more than the three volumes in this report. The task that we were given by government covers an enormous range of subjects, and we have been fortunate in being given the time and resources to respond to the questions asked of us. Some people have asked why it is that the Royal Commission has considered criminal justice issues. Apart from the many issues concerning the nature, cause, and impact of sexual abuse, and the response of institutions – which, if you like, is our core task – the terms of reference require us to inquire into what institutions and governments should do to address or alleviate the impact of past and future sexual abuse and related matters; in particular in ensuring justice for victims through processes for referral, for investigation, and prosecution, so that as it turns out, the criminal justice issue was placed – along with many others – in the centre of our work.

No doubt, when we were asked to look at the criminal justice questions, the executive had in mind anecdotal accounts of the problems faced by complainants in sexual assault trials. We, I’m sure in this audience, have all heard about them; some of us may have been involved professionally and experienced them. We now have some statistics in New South Wales which confirm the difficulties faced by sexual assault complainants. I’ll come to those a little later, but the question they raise is, why do the outcomes for sexual assault differ so markedly from the outcomes for other crimes? It is the case, of course, that although we were required to look at the institutional response to child sexual abuse, once you step into the criminal justice space, then you’re looking at the criminal justice response for all those who may have been sexually assaulted. There are particular issues that arise in relation to children, but otherwise the issues in relation to the response of criminal justice is common, whether it’s a child or an adult who allegedly has been assaulted.

A little over 30 years ago, in a case called Bromley vs The Queen, Justice Brennan in the High Court – a man for whom we should all have great respect but nevertheless sometimes perhaps his views would not be views we would readily accept today – said in relation to “accomplices, children giving evidence on oath, and complainants in sexual assault cases”, so he lumped all three together. He said this: “The courts have had experience of the reasons why witnesses in the three accepted categories may give untruthful evidence wider than the experience of the general public, and the courts have a sharpened awareness of the danger of acting on the uncorroborated evidence of such witnesses.” Now, I don’t know whether you’ve all heard those words before, but if you’ve been in the law for any period of time, they will be words which resonate with you, but they are the source of very significant problems in the area, particularly of sexual assault. Those words reflect the long and difficult history of victims of sexual offenses, including child sexual offenses in the criminal justice system. They also reflect the view amongst judges that judges are possessed with particular insight, and that their role is to formulate the rules for criminal trials which reflect that insight. Some of those rules which the judges have formulated have had a significant and negative impact on the ability of child sexual abuse survivors to access justice.

In our system of criminal justice, the victim of an offense is not given a central role. That 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. 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. However, victims remained in many cases responsible for apprehending the offender, filing charges, collecting evidence, and actually running the trial. 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. The rise in crime associated with increasingly dense populations led government to offer incentives for the apprehension of criminals. Miscarriages of justice resulted from increases in false evidence. Accused were regularly imprisoned before trial, and accordingly faced difficulties in preparing a defence. The evidence against an accused was not disclosed before the trial, and the accused could not subpoena a witness. This 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. 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 client to remain silent, and put the prosecution to proof. By the 1850s, most prosecutions would be conducted by police on behalf of victims. The first Director of Public Prosecutions was appointed in England and Wales, believe it or not, in 1879. The role of the victim in the criminal justice process then quickly receded, and so it remains today, with the trial conceptualised 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 recent times, aimed at providing victims with greater consideration during the court proceedings, but it’s plain that we still have a significant journey to travel.

The criminal justice work which the commission has undertaken has covered a very significant range of topics. I don’t have time to talk to you today about all of them, or how we developed our thinking in relation to each of them. Without giving you an order of priority, the topics covered, generally, include tendency and coincidence evidence, and I want to say a little bit more about that today, because it’s one of the really significant issues in this space. We discussed standard directions; you probably know in Victoria, they’ve legislated to provide in their criminal courts that there are a number of standard directions which the judges are required to give, depending upon the particular time with which the accused has been charged. We’ve had a careful look at those directions as they might relate to sexual assault, and we believe that there is a significant benefit to be had if each of the states moves into this space. When we speak of standard directions in relation to sexual assault, we’re not only talking about the sort of directions that might overcome the problems that Justice Brennan raised, but we’re also talking about directions informed by the science, which may enable juries to better appreciate and understand evidence which has been given to them by a child or a person with a handicap.

It is clear that there are difficulties which children – particularly young children – will have, even with an ameliorated process, facing the ordeal which is involved in giving evidence and being cross-examined as part of a criminal trial. It’s also plain, from the evidence that’s been gathered, that the way a child is questioned may elicit particular responses; which, depending upon how those questions are framed, may not give you an accurate answer, although the child is intent upon telling you the truth. It’s important we believe that judges be armed with a capacity to tell juries how it is that they should approach and appreciate the evidence of a child, and as I say, someone who may have a handicap. So standard directions is an area where we have suggested that state governments, who have responsibilities in these areas, should proceed to develop probably with the help of their law reform commissions; but hopefully with a uniform approach throughout Australia, through perhaps COAG, and develop directions which might be commonly given in sexual assault trials. As an adjunct, as you like, or part of the same concerns, we looked at the intermediary process as it is known in the United Kingdom. Unfortunately, there, they chose the label “Children’s Champions” in New South Wales, which is a bit of a pity, but that is the process developed in England which provides for a person who has been trained, and skilled in understanding the capacity of a child to respond to questions, and give effective responses. Be those questions asked in the police station at the time of the investigation, or whether they are questions which might be asked in the courtroom, the person trained in this role is engaged to assist the justice process; not to assist the child or to condemn the accused, or indeed to assist the accused. But rather, their role is to ensure that the court is given the best opportunity to understand the true position through the evidence which the child gives. The way it works is that the intermediary will be present at the police station, or in the courtroom, and if a question is asked which the intermediary believes is framed in a way which may be unfairly misleading to a child, or which a child may not understand, or which for some other reason is unlikely to elicit a true answer, then the intermediary has the role to stop the proceedings before the question is answered; point out the difficulty that is involved in that form of question, allowing the questioner in the police station, or the judge in the trial to intervene, if the judge believes it necessary to keep the proceedings on the appropriate track.

New South Wales is trialling a process which they’ve called, “The Champion”. The problem with that is, I think it will create a false impression in the mind of a juror. The person is not there to champion for the child; the person is there to ensure that justice, so far as possible, is done – to both the accused and the child. The process is being looked at in Victoria as well. We have endorsed the process; we believe, based on the whole experience that it’s the appropriate way to proceed. We recognise that there is a cost in such a process; you have to find the people, you’ve got to train them, and you’ve got to have enough to have them available to assist, both at the investigation stage, and in the trial. Given the significant number of this type of case which comes through most of the criminal justice systems, it’s a significant commitment. But, it’s a commitment which we believe in the interests of justice is necessary to pursue.

Another limb of the same problem – I regret that this may not entirely please any police who might be here, but I’m confident enough in what we’ve been told not to apologise for, what I’m about to say – but what is clear is that many police struggle to take effective statements from children who’ve alleged sexual assault. The best way of illustrating it is this; I’m sure this doesn’t happen in Queensland, but it happens in every other state. When counsel want to cross-examine a witness, the classic technique is to head for the periphery. Someone who’s been sexually assaulted – adult or child – will have a memory of the traumatic event, and they’ll have a memory which is very strong, of some of the central features of that event, but their memory for peripheral facts is likely to be very weak. That’s a product of the fact that the event itself is so traumatic that the mind is overwhelmed by the trauma, and discards any capacity to concentrate or remember what would be the periphery. Now, even for adults, challenged in relation to the periphery, can be a difficult and embarrassing process; but for a child, it can be much worse. If you have been assaulted, and someone says to you, “What was the colour of the person’s jumper?” You would think yourself a fool if you didn’t remember what it was; but there’s a good chance that your memory will in fact bring that event to life in your mind only truly in black and white, because the trauma may be so great. But, asked the question, your temptation to provide an answer, of course, will be overwhelming. If you’re a child, it would be particularly overwhelming. “They will think me stupid if I can’t tell them what the answer of that question is.” And so it goes on. I was a barrister for 20 years; I’ve done this myself. A car smash, you can ask people about where they were, where the cars were, what position they were in, and what was happening at the time; and many of the peripheral events will not be remembered correctly, and you can show that clearly from film, and you can show it these days from CCTV footage, very often.

Now, you might think, “Well, the jury can sort that out.” I’m not sure they can; but the problem is made worse if the police interview of the complainant – and this will be true whether it’s an adult or a child – seeks to collect information which goes beyond that which is essential to prove the crown case. Because the further you move from the essential material, the more you are likely to run into a capacity for the complainant to misremember. Now, a lot of work’s been done in the police department in Victoria in relation to this question, and there’s a whole program through which police working in the sexual assault space are trained in how to obtain a statement which is confined to the essential elements, and which avoids the periphery. It’s also remarkable that some police, who haven’t been trained, nevertheless have difficulty asking an open question. If you’re seeking, again, information from a child, if you ask a closed question, you can’t necessarily rely upon the answer. If you ask an open question, it’s almost… Not every case, but in the great majority of cases, the child will endeavour to answer the open question honestly and accurately. So we stepped into this space; we looked at the Victorian training program, and we recommended that all police, throughout Australia, who may do this type of work, be trained in the appropriate way to ask children, and for that matter adults, questions when seeking a statement. I regret to tell you, again, there’s a cost implication; that’s obvious. There’s also an ongoing cost, because you can’t do this once. What the Victorians have shown now, sufficiently commonly, is that after about 12 months, even the best police working in this space will start to lose track of the best way to ask their questions, and so you need to give your police who work in this space refresher courses, to ensure that their statement provides the best opportunity to secure a conviction.

Now, that’s enough for police, but can I turn to DPPs? You probably know – you may not – we didn’t set out to look at DPPs, but we happened upon them. We happened upon the Queensland DPP; we happened upon the New South Wales DPP; and we happened upon the DPP in the Northern Territory. In each case, we found problems, and that caused us to ask the question, why have these problems existed, and what happens in other parts of the world? The fundamental problem was the relationship or the capacity of the DPP to communicate with the complainant to assess the case, having regard to the complainant’s prospective evidence, and failure – which surprised us – but failure in each case to follow the DPP’s own guidelines when making decisions not to prosecute. We didn’t think that was very good. Now, the starting point for looking overseas, as is common, was to go to the United Kingdom. The United Kingdom has faced problems in this space, because their volumes are much greater than ours. They faced problems in this space, which they’ve addressed through multiple processes. The first issue that arose for them is the problem that everyone faces – DPPs, judges and juries, and the police – when assessing allegations; is that as it will be, the peripheral detail may not be correct, there may be and there are likely to be deficiencies in a complainant’s evidence, particularly if they’ve gone through a traumatic event. And, as we know, in many cases there won’t be an eyewitness to the event. Sexual assault is a crime normally committed in private, or at least out of public view, and the DPP in England – not called the DPP, but you know what I’m talking about – they developed an approach with those assessing the strength of prosecution cases, which they called “the whole-case view”, and they’ve started to look at of course the complainant’s evidence, but then seek to see that evidence, having regard to all of the surrounding circumstances, and ask their prosecutors to assess how a jury, properly instructed, might look at the complainant’s material in that whole case view; rather than as they were tempted to say, “Well, there’s no eyewitness to this event, and we know that she’s got it wrong in relation to this, and this, and the colour of this” or whatever, and therefore won’t be believed, and therefore the case won’t succeed. So they’ve effectively turned the way their officers assess cases, and the police in the UK are responding in the same way.

Now, the second problem they found, which was akin to our not following guidelines, was the ineffective communication between the DPP and complainants about what the DPP was doing, and what they’d decided; and particularly, of course, when the DPP has decided not to prosecute, or as can be more harmful to the complainant when the prosecution commences, but the DPP decides not to proceed with it, which is an experience that can cause immense grief for the complainant. There may be, of course, good grounds for the DPP’s decision, but explaining that and taking the complainant through that decision-making process can be a very traumatic experience for everyone. What the decided to do in the United Kingdom was to provide effectively an internal method of appeal against a decision not to prosecute. That course was taken when proceedings were taken to the high court, to invoke judicial review of a decision of the prosecutors not to prosecute. The high court said that we accept that we’ve got jurisdiction to intervene here; it’s just a judicial review of another administrative decision. But it would be far better if we weren’t being asked to that, and there was an internal review process within the office of the prosecutor, which would ensure that both the proper procedure had been followed, but also that the merits justified the decision which had been taken. And that’s the course which the English have gone down, and we spoke with a number of officers of the prosecuting branch, including the Chief Prosecutor, and the system is working – they tell us – very well. Now, in Australia, the high court, in a decision which – with respect, I have some difficulty – but the high court said that there could be no judicial review of a DPP’s decision. What that means is that the DPP is the only officeholder of the state for whom there is absolutely no independent review. Now, I know that judicial review is a creature of the modern lawyer, if you like. We did study it at law school; or I did, but just, and it’s burgeoned since. Nevertheless, it’s a remarkable fact that one of the most important decisions that can be made by the officer appointed by government is whether or not to bring criminal proceedings. Our high court says there can be no judicial review.

Having regard to the problems that we identified, we came to the conclusion that the present position was not appropriate. If we hadn’t happened along, no one would ever have understood what happened inside the DPPs in relation to the cases we investigated. People would never have known. In the Northern Territory, the case that fell over was the prosecution on behalf of multiple complainants, of multiple alleged sexual assault charges. The DPP’s failure to follow their own procedures were plain, and the current DPP in fact came along and said, “Yes, we failed here, here, and here.” Now, unless we visited the issue, no one would ever have understood; it just would have been buried inside the DPP’s files. We didn’t consider that to be an acceptable position in the 21st century, and we’ve said some things in that space.

The next topic that I should mention, which got us involved in controversy; it’s amazing, you know, with every respect Kathy – you probably should report three of those. Covers multiple really serious issues. You know what ends up on the front page of the paper? The lead story on the news? A confessional. I mean, really? Anyway, where that issue comes from is that there have been in New South Wales… Actually, go back, sorry. The common law has an offense which is cutely called now, “Misprision of felony”. In some places, that’s been wiped out. In some places, it’s been replaced with a statutory offense, and in New South Wales, there’s a section which we call 316 of the Crimes Act, which was originally invented to force victims of bikie gang violence to tell the police who did it to them. It didn’t prove to be directly effective, but it works very well if you’ve got a phone tap as well as a refusal to answer, which is the way the police used it. They’ve prosecuted multiple cases under 316 where the person knows who committed the crime, but they haven’t reported it to the police. We’re talking about serious crime. It also extends to sexual assault, and Archbishop Wilson, the current Catholic Archbishop of Adelaide, is being prosecuted in New South Wales under section 316. He’s tried to stop the proceedings and the high court finally said, “No, no, go and have your trial.” I think he’s listed for some time next year. He was in the Newcastle region, when it’s alleged that he acquired knowledge and didn’t tell the police about it.

There has been suggestions at times that the section is of no particular merit, even in relation to bikie-type operations. We came to a different view, and we believe it does have merit, because we found so many cases where it was plain that people in authority in institutions did know what had been happening, and kept it secret. The police were never told; never reported to anyone. We believed although it may be an offense which might be difficult to detect and difficult to prosecute, it certainly should be marked out by the criminal law as something for which there should be a criminal sanction. So we recommended that each state create a failure to report offense, if they don’t already have one. In New South Wales, I should have said – the offense, when it was created, allows the prosecution of church people; but would you believe, although the DPP otherwise has discretion vested in the DPP to prosecute the offense, you can only prosecute a church person if you have the consent of the Attorney General? Anyway we don’t think that’s an appropriate qualification, either, and we’ve said so. We then had to face up to the confessional issue, and we concluded that there was no justification for excusing information obtained in the confessional from having to be reported, and we’ve so recommended. The reason we came to that view was that it was clear to us in multiple cases that priests who were abusing would go to priests and confess, thereby righting their position with the almighty, and then go off and continue to offend. The worst case was where we found one who was offending, confessing to another who was offending, and vice versa, so they would ensure that each other’s sins were forgiven, and life would go on. The same position was arrived at in Ireland, and much of the catholic theology and catholic culture of the Roman Catholic Church in Ireland has found its way to Australia, particularly through the religious orders, as you may know. So it’s no surprise to us to find that similar issues have been faced in Ireland. Anyway, although we recognised that it would be difficult to investigate and prosecute, we nevertheless believe that it would be intolerable in the 21st century for the state not to stand against an institution which enabled someone with a guilty conscience about their offending to alleviate that conscience without the state being told. So we stepped in, and as I say, it became the lead story, even though in one sense it’s a minor story, because the number of cases that would ever be prosecuted would likely be very small.

The other area, and this is not of so much concern in Queensland, because we’ve suggested that Queensland’s got this right; one of the sad but nevertheless difficult consequences for particularly a child who is sexually assaulted multiple times, will be the prosecution of individual offenses. We know of many children who have been abused if not daily, certainly multiple times per week, over periods of years. Not just a one-off occasion, not just twice; multiple, multiple times. As you can imagine yourself, given that it will take that person generally years before they’re able to report, and we’ve discussed in our reports why those problems exist; to then go back and identify the particular occasion, day of the week, perhaps day of the month, even the location where a particular assault happened and describe the circumstances of that particular assault, can prove very difficult. It would be easier if you were only assaulted once; but the more times you’ve been assaulted, the harder it will be to bring to mind a particular event. In Victoria they tried to overcome the problem by saying that it would be sufficient if you prosecute in this space, that an offense require you to prove… I think it’s three occasions; and the jury should be able to agree on the first occasion and the last occasion. The view being taken that the child – now adult, probably – is most likely to be able to remember the circumstances of the first occasion and more likely to be able to remember the circumstances of the last occasion, than maybe the hundreds, tens if you like, in the middle. That hasn’t proved particularly effective. The consequence of all of this, of course is, sadly, the more you’ve been sexually assaulted, the harder it will be to get a conviction. Now, in Queensland, what you’ve done is legislate to create a different character of offense, which depends upon the relationship that’s been created, and I think it’s section 229B of your criminal law, and our understanding is that the section has been prosecuted multiple times, successfully, and importantly has withstood two special leave applications to the high court. So we make the assumption that the high court is satisfied that framing an offense not as individual acts, but as the creation of a relationship, is satisfactory. We came to that view, and we recommended that each state go down the path that Queensland’s gone down in creating such an offense, in the hope that this might enable prosecutions to succeed where presently they might fail.

The last matter I want to talk about, as I mentioned before, is tendency and coincidence. Now, this is a space in which judges’ assumptions about human behaviour have influenced the law significantly. This is not the first time that I’ve said that how the criminal justice system deals with allegations against an individual of sexual offending against more than one child is one of the most significant issues we identified in our criminal justice work. The starting point for the discussion is just to reflect upon the outcomes for all criminal trials, and compare them with sexual assault trials. I’ve only got statistics for New South Wales, but I gather Queensland might be about to start down this path, which will be a good thing. But in New South Wales, between July 2012 and June 2016, the conviction rate for all criminal offenses, including matters finalised by a guilty plea, was 89 per cent; but for child sexual assault offenses, the conviction rate was 60 per cent. By comparison, the conviction rate for assault was 70 per cent; robbery 73; and illicit drugs 94 per cent. One class of offenses with a lower conviction rate was adult sexual assault; that had, in that period of time, a conviction rate of only 50 per cent. So only one in two cases succeeded. Now, the conviction rate for assault matters is, as those figures show you, higher than for child sexual assault. That is notwithstanding that in many cases, the identity of the offender – that’s in an assault case – may well be the issues; but the identity of the offender is very unlikely to be an issue in a child sexual assault case. The law reports are full of comments by judges, telling us of the extra caution which juries must take when approaching sexual assault cases. Justice Kirby, who of course would not be classed as a conservative, but nevertheless had this to say, “In cases involving accusations of sexual offenses, courts and prosecutors must exercise particular vigilance so far as they can to ensure that the fairness of the trial is maintained, because the circumstances are peculiarly likely to arouse feelings of prejudice and revulsion. This duty imposes special difficulties for judges presiding at such trials, where they are conducted with a jury.” This concern – the arousing of prejudice and revulsion in jurors – is not borne out by the data. If it is the case that mere allegations of a sexual offend against a child is peculiarly likely to arouse feelings of prejudice, then we should see high conviction rates in these cases. This is because self-evidently, every trial in relation to a child sexual offense will involve an allegation that a child has been sexually offended against. What we in fact see is significantly lower than average conviction rates.

There was another statement by a judge who would be considered to be conservative; a Queenslander by origin, the Chief Justice Gibbs. He said, “Sexual cases are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.” So he was saying the prejudice is so strong, that whatever the judge says, you can’t guard against that prejudice. Well, the numbers in New South Wales at least just do not support that proposition. The data suggests these concerns are overblown. To break down the child sexual assault figures a little further, again for the cases finalised between July 2012 and June 2016 in New South Wales, there were 725 matters. Of those that offended was convicted of all relevant offenses, and this is important because it’s very common that there’ll be multiple counts; but of those 725, only 32 were convicted of all the relevant offenses. Thirty-two per cent, sorry, were convicted of all the relevant offenses. So that means the juries have discriminated between some of the charges, as against others. The defendant was convicted of some but not all relevant offenses in 16 per cent of matters. So convicted of some, but not all, in 16 per cent. The defendant was convicted of no relevant offense in 52 per cent of matters. The capacity for jurors to correctly isolate and apply the evidence in relation to each individual case is not only demonstrated in the data, but has been recognised by courts in cases in relation to issues of inconsistent verdicts. In rejecting the ground of appeal that if the jury acquitted on one or more counts, it follows they did not believe the complainant in relation to these counts, and for that reason, they should not have believed the complainant in relation to the other counts. Now, that’s the position which is fairly commonly adopted by courts of appeal now, but of course, for years the judges would say, “Well, if one count got knocked out, they obviously didn’t believe the complainant, and therefore how could you find beyond reasonable doubt that the other counts had been proved?”

Now, as a means of tackling this problem, we set about a major study. When I say the problem, the problem ultimately translates into the concern which the courts have that the prejudice which the courts believe exists will infect a trial, if there are multiple counts or multiple complainants, and as a consequence, the courts have been suspicious; particularly suspicious of what we refer to as “tendency and coincidence evidence”. Similar issues arise in relation to joint trials, and the Uniform Evidence Act, which I don’t think you have in Queensland – there’s still some New South Wales judges who would applaud that position; but nevertheless – the evidence act has provisions in relation to it, and we were concerned that the approach that has been commonly taken under the evidence act to joint trials or tendency and coincidence evidence has been far too conservative, based upon an assumption that prejudice will follow from multiple counts or multiple complainants. Faced with those prosecution outcomes, the starting point, you’ve got to say to yourself, is hardly right, in thinking that a prejudice will operate in this space. What we set out to do was to study how jurors – ordinary jurors – might react to multiple counts and multiple complainants. Its’ a study the like of which has never been undertaken in the world before, and I don’t think it’s going to be undertaken again for quite some time, because it requires very significant resources. What we did was, we constructed – with the help of experienced criminal counsel – a transcript of a trial which could be broken down into multiple trials. So you had one count, one complainant, multiple counts, then multiple complainants. We engaged a prosecutor and a defender to run the trial before a district court judge. We filmed it, and the district court judge gave directions; there were summings-up consistent with the different forms of trial that might follow from this multiple set of complaints and complainants. We then went to the Downing Centre, which is our primary district court centre in Sydney, and collected jurors who had not been chosen, who were prepared to volunteer and be paid a very modest sum to do some work as a juror. We didn’t get enough; we ultimately ran almost 100 trials, so we needed more than 1,000 people. We went and gathered the rest of our jurors in the same way that the sheriff gathers jurors in New South Wales, using the electoral roll, and so on. Yes, people had to agree to do it, so we didn’t have the power of the state to say, “You must turn up and be a juror.” Not everyone was obviously prepared to do it, but nevertheless, what we then did was we broke them into their individual juries, and we showed them the film of the trial that we’d filmed. Now, I accept all the limitations; it’s a film, it’s not people who were forced to turn up, and so on. But what we then did was we placed them into the jury room, which were rooms with one-way glass. I actually watched some of these deliberations – it was over successive days; it didn’t happen in one day. We filmed it, each one, and there’s a filmed record of each jury’s deliberations; and we took a transcript of each of the juries’ deliberations, and then using the cleverness of the current computer programs, we analysed the way the juries reasoned in relation to the multiple trials that we’d conducted.

I have to tell you, that the results were significantly different to what I expected. What we demonstrated, using that method, clearly was that jurors – ordinary people – some of them make mistakes. It was interesting to watch how 12 people actually do work, the dynamic. Because someone would say, Fred said X, and someone else would say, “No, no, no, that’s wrong. That’s stupid. Fred said, “Why?” And you could see this in the process; mistakes that individuals were making were corrected through a common discussion in the jury room. I hadn’t quite expected that. Yes, there was the odd outlier who would say, “No, no, I’m not going to move; I’m stuck on my view.” But it was amazing to see how random errors were actually drawn in and corrected. Secondly, what was really clear, in all the deliberations, was the jurors actually faithfully looked at the evidence in relation to each charge, and I found that really quite interesting. Some juries in the multiple count cases went to the easy ones – and there were some easy ones – first; and made a decision. Some didn’t quite do that; some went in succession, but said, “That one’s too difficult; we’ll have to come back to that.” Then they moved on to work their way through. So they would do multiple runs through the counts, to see where they finished up. Many, many jurors in the course of discussion changed from their initial view; but the discrimination which they exercised in relation to each count – and some of them were pretty nasty counts – and by the time they got to the point of making decisions, they were truly involved as jurors; this was no idle entertainment process. They were seriously engaged in working out what happened. Partly, of course, that is to be expected when you show them the formality that the courtroom brings, and impose the processes which we imposed on them; but what was revealed was that overwhelmingly, the juries conscientiously discriminated between counts, and they gave no suggestion that they were overwhelmed by the nasty counts, and therefore just convicted on the lot. It just wasn’t to be seen. Underlining that, which again I didn’t expect, was that the jurors had less trouble, across all of the juries, convicting on the lessor counts; but where they disagreed was most likely to be in the more serious counts, which carried the more serious penalties. I hadn’t expected that, but the discussion reveals that that was a factor in their thinking. You know, “This is a really serious rape” as opposed to a significantly more minor assault. The juries were discriminating in that way, and being particularly careful in relation to those counts. So where that all ends up, we believe, is where the English have got to. You probably don’t know this, but in England, the prior relevant convictions of an accused are admissible in the trial. In Western Australia, much to my surprise, under their evidence rules, they are also admitted in their trial, and they are tendered without.

And all, of course, that a relevant prior conviction tells you is that this is again evidence of a tendency, if it be relevant, that happens to have stepped up to the point where a jury has accepted it. But nevertheless, it’s tendency evidence, and if you ask the ordinary person – and we asked a number of ordinary people, if there be such a thing – is it relevant, when you’re asked the question, “Did this man – or lady – do this particular act?” Is it relevant to know that they’ve done it before? If you ask the ordinary person that question, the answer is, “Of course it is.” And if you’re asking juries to think and apply their minds as ordinary people, which is what we tell them all the time; we tell them, “Ladies and gentlemen, you’re here to bring your common sense to bear; you understand the world and how it operates” and so on; and then we say to them, “No, no, no, but we judges know better than you about particular things, therefore we won’t let you know about things which you would think are relevant to your decision”; then I think we may have lost our way a little. You can see, and this at greater length in other papers that I’ve given, but you can see how the law has gone down the track which it’s gone down, without acknowledging what science might be able to tell us about how people respond, how they think, and how we might responsibly reason in relation to criminal justice issues.

That’s all I’ve got time for, but can I suggest that if you really are interested, to go beyond what we’ve talked about today, you’ll find that on the Royal Commission’s website, under I think it’s “communications”, there is listed the papers or speeches that I’ve given during the life of the Royal Commission. They do have some historical interest, because it will show you how we developed certain thoughts along the way; but in amongst those papers, you’ll find I discussed criminal justice in a two-part speech, if you like, on the 17 March and the 13 April this year, and again I’ve talked about it on the second of August, and you’ll find a more developed discussion of the issues we’ve looked at today in those papers. That might be a quicker way of understanding what we were thinking, than trying to plough your way through three volumes of this. Otherwise, I think you’ve got some fact sheets today, which the commission developed. They are truly little potted paragraphs, but they may prove of interest and useful to all of you. But thank you, indeed, for asking me to talk today.

Kathy McLeish:

Thank you, Justice McClellan. I’m sure everyone here appreciates the huge amount of work the Royal Commission has done over the last few years. I know earlier this year they had made almost 2,000 referrals to authorities; held more than 6,500 private sessions, and handled almost 40,000 phone calls. By the time the work is completed at the end of this year, those numbers will have escalated substantially. I know there are a lot of people who are counting down to 15 December, and the report’s subsequent public release. As a journalist, I know there will be great interest – phenomenal interest – in the final report, and the responses from the Australian government and our institutions, from the media, and from all of you I’m sure, too.

I’d now like to invite Queensland Sentencing Advisory Council member Warren Strange up here to say a few words.

Warren Strange, Queensland Sentencing Advisory Council member:

Thanks very much, Kathy. Firstly, I just wanted to thank you all who attended today, either in person or who’ve been watching over the live streaming. I particularly acknowledge those distinguished guests that Kathy acknowledged at the beginning. Thank you, Justice McClellan, for a very comprehensive and thought-provoking presentation about the criminal justice work of the Royal Commission. Outside of the role that I hold with the sentencing council, I work with knowmore legal service, which is an independent community legal service, established by the commonwealth government, and by the National Association of Community Legal Centres, to assist people who are engaging or who are thinking about engaging with the Royal Commission. I’ve been in that role now for pretty much the duration of the Royal Commission, and I’ve had I think a unique opportunity to look at its work, and to understand its broader impact, particularly for survivors of child sexual abuse. I also from my own experience know that Royal Commissions are not always straightforward or simple endeavours to undertake, particularly when the scope of their subject matter is wide, and particularly when there are examining the interests of powerful people and powerful institutions who are committed to protecting their reputations. I’m also sure that any lawyers in the audience would be somewhat daunted by the thought of signing on to a Royal Commission that has lasted for nearly five years, and the commitment and effort that that would entail. So over that time, this Royal Commission, under Justice McClellan’s leadership, has exposed what I think you can only describe as a national and catastrophic failure of Australian institutions to protect vulnerable children, supposedly placed in their care, and to respond adequately when child sexual abuse was detected. I’m sure that all of you here have been as impressed as I have about how the Royal Commission has gone about that task, and particularly how it’s put survivors front and centre of all of its activities.

Yes, it’s well worthy of recognition. The impact and success of the Royal Commission and what it’s done hasn’t happened by accident. It’s come about through the leadership and the legal and administrative skills of the commission’s chair, and his fellow commissioners, including Bob Atkinson, the former Commissioner of Police, who would be well-known to many of you in this audience. It has involved a lot of hard work from the commissioners and all of their staff, and I just wanted to offer my congratulations to you, Justice McClellan, and to the commission and your staff, for the wonderful job that you’ve done, and the ground-breaking work that you’ve delivered.

Fundamental to the success of the commission, also, has been the courage of so many survivors; now nearly 8,000 who’ve come forward to tell of their own experiences as children, the impacts of those experiences, and what they now need, to access justice. One of the major outcomes of so many survivors coming forward, I think we’ve seen a real shift in our society and our understanding of what happened in these institutions; understanding of the risks of institutional child sexual abuse, and the impacts on the children who are abused. Also in understanding what our justice system – our criminal and our civil justice systems – need to do to respond more effectively when child sexual abuse does happen. We’re now in an environment, through the work of the Royal Commission, where many more survivors are coming forward to make disclosures about their experiences, and every day our legal service will assist clients who are coming forward, often after decades of suffering in silence, and not being able to disclose even often to their own close family members what happened to them as children. I think that all creates a situation where it’s incumbent on us as a society, and incumbent on our legal systems, including our criminal justice system, to now take steps to better respond to survivors; and to as far as possible, prevent the occurrence of further offending. The commission’s criminal justice work is a stark reminder that justice is not simply about effectiveness, high quality evidence-gathering techniques, professional and well-trained police and prosecutors, timely disposal of matters, and appropriate sentencing responses; it’s also about the affective dimension of justice. How we treat those involved with the system, and how they feel about the process, and the outcomes. We’ve seen a very topical example, albeit overseas, in the press, in the world of Hollywood in recent days, of so many complainants, so many victims now coming forward to talk about their experiences; all of whom had remained silent, and had not taken official action for various reasons, over many, many years. I think the commission’s recommendations will ultimately make a real difference to the position of survivors, and to the outcomes of the cases, if they choose to come forward and participate in the criminal justice system. It’s pleasing to see Queensland’s already engaged in some work, in some reforms over recent years; including in July this year, the introduction of a new charter of victims’ rights, following a review of the Victims of Crime Assistance Act. It provides greater information to victims about their rights, and what they can expect when dealing with government and non-government agencies that are there to support victims. The charter includes an expanded definition of a victim to include victims of family violence, and places an onus on relevant agencies to proactively provide information. The effect of those amendments, I was told last week, has already led since July this year to an 80 per cent increase in victims’ assistance applications being made.

I’m pleased to say that already in Queensland we have implemented the Royal Commission’s recommendations around removing limitation periods for bringing civil action arising from child sexual abuse, in any setting, not just institutional. We’ve seen a number of developments in the criminal law in recent years, including new offenses such as grooming and offenses relating to the use of the internet for child exploitation material. We’ve seen sentencing reforms, including relating again to the making of child exploitation material; and in 2012, the introduction of a new sentencing regime of life imprisonment with a 20 year non-parole period for certain repeat child sexual offenders. I just wanted to note – and it’s a point that’s often passed over in discussions around implementing the Royal Commission’s recommendations, that Queensland, as every other state in Australia, appointed the same sick Royal Commissioners, and gave them the same terms of reference under their state legislation, to conduct the same enquiries. So we have a somewhat unique Royal Commission that operates both under the commonwealth legislation, and under every state legislation, and I think the outcome of that should be that we can look forward to each of those states that supported and endorsed the Royal Commission and appointed it to make the same enquiry, now implementing the recommendations that it’s making. The commission’s criminal justice report comes at a very appropriate time for the Queensland Sentencing Advisory Council, as a new entity in our state, or a re-established entity. Our first terms of reference from the Attorney General concerned the classification of child exploitation material for sentencing purposes, and how we might improve the current system. That inquiry was undertaken; we consulted widely, including with victims’ groups, and ultimately made 16 recommendations for reform. That report, for those who are interested, is available on our website.

I wanted to say a little about our second reference, which was announced by the Attorney General last Thursday, and is to focus on sentencing for criminal offenses arising from the death of a child. We are yet to receive formal terms of reference relating to that inquiry, but I have no doubt that it will raise for us challenging issues and questions; some of which will be similar to those that the Royal Commission has faced. They will include how we can respond more effectively as a justice system and a community to better protect children. When the worst happens and the death of a child results, how we can find a sentence that achieves what the Royal Commission has identified as being the hallmarks of an effective justice system; a sentence that punishes the offenders, protects children from those offenders, and communications our abhorrence as a community of those crimes. We also need to keep in mind some of the broader impacts that the commissioner has identified, that the criminal justice response is not only about seeking justice for specific victims, but encouraging reporting of crimes, which we know child sexual abuse and adult sexual abuse crimes are grossly underreported, and the other broader purpose of preventing such abuse occurring in the future. Sadly, the deaths of children frequently occur at the hands of someone charged with their protection; a parent, step-parent, or another family member. The phrase, “Child protection is everybody’s business” will be well-known to many of you here in this audience who have worked in some capacity either in or together with the child protection system. Reinforcing that message across the community in the actions we take, and the way our justice system responds can only ultimately result in a safer community.

I thank, again, Justice McClellan, for taking the time to come to not-so-sunny Queensland, and to speak to us today about the important criminal justice work of the commission, and again, I thank you for all of the work that your commission has undertaken, and everything that you’ve achieved; and particularly the hope that you’ve given to so many survivors. We look forward, as a council, to hearing more about what happens with the implementation of those recommendations, and we hope to be able to make a contribution to improving the criminal justice system for survivors of these offenses. Thank you.

Kathy McLeish:

Ladies and gentlemen, that concludes the formal part of the event; tomorrow you’ll receive an email asking you to complete a short survey. This will help us continue to improve our public information events, and help determine the speakers for future presentations. Thank you again for joining us this afternoon, and enjoy the rest of your day.