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Penny Savidis

Published: 07 July 2015
Author: Penny Savidis and Kate Malone

Royal Commission reaches half way point and will focus on criminal law reform

On Saturday, The Hon Justice Peter McClellan AM addressed the Care Leavers Australia Network (CLAN) about the Royal Commission into Institutional Responses to Child Sexual Abuse’s progress to date. (Speech at http://www.childabuseroyalcommission.gov.au/media-centre/speeches/care-leavers-australia-network-(clan) )

Established in January 2013, the Commission is now at its half way point, with its final recommendations due in December 2017.

The Royal Commission’s Chair, Justice McLellan said after presenting the government with its recommendations on redress and civil litigation, which is on track to occur in August 2015, it will focus its attention on the criminal law. According to Justice McLellan: 

“To assist our work in this area we are publishing a comprehensive research paper on sentencing. We are also considering the issues of tendency and coincidence evidence and issues relating to multiple allegations in criminal trials which continue to be controversial.”

According to the Uniform Evidence Law, which applies in Victoria, NSW, Tasmania, the ACT and the NT, tendency evidence is evidence about the character, reputation or conduct of a person, or a tendency that a person has/had, that is used to prove a person has/had a tendency to act a certain way, or to have a particular state of mind. For example, tendency evidence can be used to argue that an offender had a tendency to engage in sexual activity with children on the basis of past behaviour, or to engage in such conduct in similar circumstances. 

Coincidence evidence that two or more events occurred can be used to prove a person did a particular act or had a particular state of mind on the grounds that, having regard to any similarities in the events, it is improbable the events occurred coincidentally.

Where offenders have committed crimes against multiple survivors of abuse, the prosecution often pushes to have the complaints heard in the one trial to better secure a conviction. Not surprisingly, such attempts are often strenuously resisted by those defending abuse offenders. Where the defence successfully excludes tendency evidence, separate trials are often ordered in relation to each abuse survivor, which makes it harder to convict the accused.

The Royal Commission is set to undertake a major study of jury responses to different trial structures, including where there are individual and multiple allegations. The study involves filming a trial and then editing what is shown to jurors so that some trials will involve multiple counts with a number of abuse survivors and others will involve fewer counts but the same evidence. Some 1200 people have been recruited to participate in the jury panel study being researched, which is not a real trial.

The Commission’s Chair, Justice McLellan, explained that the study would shed light on the ability of jurors to understand and apply directions from trial judges, as well as how juries analyse evidence and witness credibility. Justice McLellan stated “the study will add significantly to our knowledge of juries generally as well as being a source to guide us in relation to the appropriate structure and jury directions in sexual assault trials.”

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