Child abuse RC report into criminal justice helpful but falls short in

15th Aug 2017

The recommendations contained in the report into criminal justice released yesterday by the Royal Commission into institutional child abuse are helpful in many respects but have fallen short in some key areas, the Australian Lawyers Alliance (ALA) said today.

In a wide-ranging report into the criminal justice system, the Royal Commission into Institutional Responses to Child Sexual Abuse made 85 recommendations aimed at better protecting children and ensuring perpetrators were held accountable.

ALA spokesperson and barrister Dr Andrew Morrison SC said that while the report contained many interesting recommendations, it failed to fully address crucial issues relating to the liability to report child abuse, changing the rules of evidence regarding child abuse cases, blind reporting to police and the criminality of those who covered up child abuse.

“It is understandable that the Royal Commission should focus on the responsibility of institutions to report abuse, but that is no reason not to extend reporting obligations to all members of the public,” Dr Morrison said.

“Indeed, the Commission’s recommendations fall well short of the existing law under s316 of the Crimes Act in NSW. It is, for example, unacceptable that foster carers and parents should not be obliged to report the abuse of children under their care.”

Dr Morrison also said the report’s stance on ‘blind reporting’ was weak. Blind-reporting occurs when an organisation passes allegations of child sexual abuse to police, but strips victims’ names from the report at the apparent request of the victim. Police are then unable to properly investigate the allegations or prosecute offenders.

“The Royal Commission report appears to have accepted the blind reporting of child abuse,” Dr Morrison said.

“It is clear from the work of the NSW Police Integrity Commission that blind reporting tends to be used to protect perpetrators, pretending that the victim has requested it. Blind reporting can be used by institutions to protect their reputation and financial position without regard to the needs of existing and future victims.”

“This isn’t just referring to instances of child abuse in the Catholic Church. Royal Commission case studies have also revealed cover-ups in the Jewish community, the Salvation Army and the Anglican Church as well as other religious and non-religious organisations,” Dr Morrison said.  

Dr Morrison also took issue with the report's recommendations about how evidence should be treated during a child-abuse prosecution. He said it was essential in criminal prosecutions that truth and justice were the ultimate priorities.

"The Royal Commission did accept our position that any recommendations that it made in relation to the rules of evidence should only cover child abuse prosecutions," Dr Morrison said. "However, as we have seen in other areas of law, introducing reforms in politically sensitive areas such as prosecutions for child abuse or terrorism offences too often expand into other areas of law relatively quickly. That is why we are so concerned that the Royal Commission has recommended reforms to tendency and coincidence evidence."

"It seems that the Royal Commission was particularly concerned that courts had misunderstood the relevance of this type of evidence when it was admitted," Dr Morrison said. "The ALA does not believe that these concerns justify expanding the use of this type of dangerous evidence. Rather, judicial education would be the more appropriate tool to ensure that judges understand what type of tendency and coincidence evidence might be probative in child abuse cases, under existing laws.”

"Tendency and coincidence evidence is currently admissible in criminal proceedings where the court considers that it is highly relevant, and that relevance significantly outweighs any risk that it could lead to the conviction of an innocent person. It is currently often admitted in child abuse trials," Dr Morrison said. "The ALA feels that the existing arrangement strikes the right balance in ensuring trials are fair to everyone involved, and that no change is warranted. We cannot let our disgust at the horrific crime of sexual abuse of children give rise to laws that might convict innocent people.”

Dr Morrison said that the report contained many helpful recommendations, some of which have been adopted in jurisdictions such as Victoria, New South Wales and South Australia, but many need to be urgently considered by all jurisdictions in this country.

Tags: Royal Commission into Institutional Responses to Child Sexual Abuse