Religions and faith systems have social justice as a pivotal centre from which many activities in a faith community arise therefrom and become part of the active compassion taken up by that faith system or religion in society and culture. In examining justice for victims of sexual abuse in institutions, the Royal Commission is required to respond to the directive of the Federal Executive and the Parliament “what institutions and governments should do to address, or alleviate the impact of, past and future sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through … processes for referral for investigation and prosecution“.
Australian Lawyers Alliance NSW Annual State Conference
Seeking ‘justice for victims’ – Part I
Some of you may be asking why it is that the Royal Commission is considering criminal justice issues. Apart from the many issues concerning the nature, cause and impact of sexual abuse and the response of institutions, our 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 institutional contexts, including, in particular, in ensuring justice for victims through … processes for referral for investigation and prosecution ….[1]
When asking the Commission to look at criminal justice the executive would have had in mind anecdotal accounts of the problems faced by complainants in sexual assault trials. We have all heard about or experienced them. We now have some statistics which confirm the difficulties faced by sexual assault complainants. I will come to those later. The question they raise is why do the outcomes for sexual assault differ so markedly from the outcomes for other crimes?
A little over thirty years ago in Bromley v The Queen Brennan J, in relation to accomplices, children giving evidence on oath, and complainants in sexual assault cases, said:
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.[2]
These words reflect the long and difficult history of victims of sexual offences, including child sexual offences, in the criminal justice system. They also reflect a view amongst judges that they 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 have had a significant and negative impact on the ability of child sexual abuse survivors to access justice.
Because of their classification as potentially unreliable witnesses, together with the form of directions designed specifically in relation to their evidence, and a judicial attitude that juries may not be able to fairly assess all the evidence, the criminal justice system has created a series of barriers in sexual assault cases not known for other crimes. For many complainants the barriers have been insurmountable. For many others the rules have proved a deterrent to any engagement with the criminal justice system.
A recognition that the system may have gone too far and may be denying justice to complainants first started to emerge about 30 years ago. Since then, largely through the intervention of parliament, significant reforms have been made. The question for the Royal Commission is whether there is more that should be done.
The Royal Commission’s criminal justice project is significant in scale. The issues which we must consider cover a broad reach. In Part II of this speech, which Justice McClelland will deliver at the Modern Prosecutor Conference in Melbourne on 13 April, he will discuss some of the other issues the Commission is examining. These include prosecution responses, including DPP complaints and oversight mechanisms; the evidence of victims and survivors, including the use of special measures such as intermediaries and special hearings; and, sentencing.
The Royal Commission intends to provide its report in relation to criminal justice to government in August.
