Justice Peter Mcclellan Signals Sweeping Changes, but Likely Resistance from Lawyers and Judges

By Joanne McCarthy
Newcastle Herald
April 13, 2017

http://www.theherald.com.au/story/4595736/prosecutors-source-of-significant-problems/

PUBLIC prosecution offices across Australia could be held accountable for their decision-making for the first time after “significant problems” identified by the Royal Commission into Institutional Responses to Child Sexual Abuse.

Prosecution offices could be subject to oversight, have to provide reasons for discontinuing or failing to proceed with prosecutions, or be subject to internal reviews, royal commission chair Justice Peter McClellan will tell a prosecutors’ conference in Melbourne on Thursday.

He also flagged the likelihood of resistance from the legal fraternity to significant recommendations expected in a criminal justice report to governments in August, ahead of a final royal commission report to Governor General Sir Peter Cosgrove in December.

“There are likely to be some, perhaps many, practitioners and judges, who are resistant to change,” Justice McClellan said.

In the second landmark speech on how the criminal justice system deals with child sexual abuse cases, Justice McClellan will tell prosecutors that “significant problems in the decision-making processes of ODPPs (Offices of Directors of Public Prosecutions) have emerged as a systemic issue in our case study work”.

Two case studies that raised serious questions about prosecutors’ decisions “confirm the mere existence of director’s guidelines is not sufficient to ensure the level of accountability and transparency the community might reasonably expect”, Justice McClellan will say.

The commission’s work had identified major failings across the criminal justice system which led to almost “insurmountable barriers” faced by child sexual abuse victims in seeking justice, he said.

Some victims had told the commission the court processes had been “as bad as the abuse itself”.

The criminal justice system was designed as a contest, with a winner and loser at the end of a trial, and cross examination of witnesses that left child sexual abuse victims sometimes “caught in the cross fire” of “a sophisticated lawyers’ game”, Justice McClellan said.

Although it was obvious that children were disadvantaged in situations where they were questioned by adults who were highly skilled at cross examination, “why has the system failed to appropriately respond for so long?”

“It is an unfortunate yet inescapable reality that children will be the victims of very serious crimes. Yet they will be forced to seek justice in a system designed not for them, but for adults.”

The royal commission is also considering sentencing issues relating to historic child sexual abuse cases, after research showing some Australian cases where perpetrators were being sentenced for crimes up to 58 years earlier.

Sentencing perpetrators according to standards at the time of the offences led to sentences significantly out of step with contemporary expectations, Justice McClellan said.

The commission is considering whether recommendations should include following English and Welsh sentencing provisions, where a perpetrator’s good character is an aggravating factor where a perpetrator’s perceived good character facilitated offences against children.

It will present a report on the criminal justice system to governments in August, ahead of its final report in December.

In a speech to lawyers in March Justice McClellan signalled the commission would recommend broad changes to the way Australian courts deal with child sexual abuse cases.

It followed evidence that traditionally low child sex conviction rates have fallen further since the child abuse royal commission was established in 2012, and entrenched barriers in the criminal justice system against sexual assault victims remain.

Justice McClellan told the lawyers conference in March that many of the most commonly held assumptions about child sexual abuse and sexual assault, and the criminal justice processes that developed because of those assumptions, were not borne out by evidence.

In his speech on Thursday Justice McClellan will tell prosecutors that judges had made “unfounded assumptions” about the behaviour and reliability of sexual assault complainants.