The other side of the Royal Commission into Institutional Responses to Child Sexual Abuse

14th Nov 2019

There’s no doubt that the Royal Commission into Institutional Responses to Child Sexual Abuse has brought to light issues that the public had probably suspected for a long time.

Bringing them out into the open has served a valid purpose. But doing so has come at a cost.

There has been a perceptible shift in community attitudes towards a presumption of guilt for individuals charged with a historical sexual abuse offence, particularly where the alleged offence took place in an institutional setting.

The prejudice is at a significantly higher level where the institution or the accused has some religious affiliation.

Juries are of course given standard warnings about being affected by any preconceived views about the guilt of the accused. The verdict based upon the evidence must be in accordance with the law as explained by the judge, but how effective those warnings might be in the wake of the Royal Commission is open to serious question.

The fact that hundreds of instances of child sexual abuse were definitively identified, compensation paid by the millions of dollars and wide-ranging apologies offered has created a milieu where the starting point in relation to an official prosecution is that any allegation that surfaces in a court is almost certainly true.

Again, juries will be warned in standard terms about the onus of proof and the presumption of innocence, but just how far this might go towards ensuring that jurors (who have been exposed to half a decade of adverse media about the prevalence of institutional abuse) take a rational approach to the evidence in any particular case is questionable.

The experience of the criminal defence Bar in the past year or two has been that in these kind of cases, the prospects of a successful outcome for clients have been palpably reduced. One colleague recently made the observation of juries deciding these cases that ‘they just won’t say “not guilty” these days’.

Once an area of the law where acquittals were frequent, as you might expect in cases that were historical and almost invariably lacked any form of corroboration, the pendulum appears to have swung the other way.

My colleagues at the criminal defence Bar have reported seeing jurors gasping and rolling their eyes as the charges are read out, before a single word of evidence has been heard. Some potential jurors at the commencement of the trial ask to be released from service on the basis that they would be unable to deliver a dispassionate verdict. Something you would never see in a drug case or an allegation of, say, fraud.

The problem is more acute in cases where the law of the state in question does not allow for a trial by judge alone, the Pell trial being a case in point.

Many of the accused in these cases may well be guilty. But the potential for verdicts that are tainted by prejudice or preconception has, in the light of the Royal Commission, become a worrying aspect for all cases of this kind.

Juries, of course, do not give reasons. So whether any given case has been poisoned by the deluge of publicity will never be known. It has, however, become a serious concern among those like myself at the coalface of the jury system. Some judges have also privately expressed their concerns, although it is hardly something that, by convention, they could ever express publicly.

The success of the Royal Commission is generally well acknowledged, but there has also been a corresponding downside. How this might be alleviated is far from certain, but a good start might be to allow an accused person the unconditional right to elect a trial by judge alone.

Tom Percy QC was born in Kalgoorlie where his family ran a hotel for many years. He attended Scotch College and UWA, graduating in 1977 and was admitted to legal practice the following year. In 1984 Tom was elected to the WA Bar Association and was appointed Queen’s Counsel in 1997. Tom practices primarily in the area of criminal law, specifically jury trials and superior Court and Tribunal appeals. In 2006 he received the Community Service Award from the Law Society of WA and in 2007 he was awarded the WA Civil Justice Award by the Australian Lawyers Alliance. In 2013 Tom was awarded the WA Law Society’s Lawyer of the Year Award. He is a member of the Editorial Board of the Australian Criminal Law Journal, a member of the National Criminal Law Consultative Committee and a former State President and National Director of the Australian Lawyers Alliance.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Royal Commission into Institutional Responses to Child Sexual Abuse Jury Judge-alone-trial