Criminal Justice Issues for the Royal Commission

Royal Commission into Institutional Responses to Child Sexual Abuse

Wednesday 2 August, 2017

The Hon Justice Peter McClellan AM
Chair, Royal Commission into Institutional Responses to Child Sexual Abuse

In our system of criminal justice the victim of an offence is not given a central role. This was not always the case.

Historically the role of the state in the criminal trial process was very limited. Criminal disputes were considered private matters. Until the start of the 1400s, the laying of charges and the conduct of the prosecution was performed almost exclusively by the victim or their family.[1]

Over the next three centuries the royal courts and officers of royal justice would exercise increasing influence in the criminal justice process, conducting both investigations and prosecutions.[2] However, victims remained, in many cases, responsible for apprehending the offender, filing charges, collecting evidence and running the trial.[3]

With the coming of the Industrial Revolution, and as cities became more densely populated, the criminal justice process began to change and ultimately became the modern adversarial trial.[4] The rise in crime associated with increasingly dense populations led government to offer incentives for the apprehension of criminals.[5] Miscarriages of justice resulted from increases in false evidence.[6] Accused were regularly imprisoned before trial and, accordingly, faced difficulties in preparing a defence. The evidence against an accused was not disclosed before trial. They could not subpoena witnesses.[7]

The disadvantaged position of the accused ultimately led to changes in the criminal trial process. The most significant change was to allow the accused to be legally represented.[8] The presence of defence counsel encouraged the development of rules of evidence and the modern style of cross-examination. The core elements of the modern adversarial trial began to appear: the judge as neutral arbiter, the jury as passive observer, and defence counsel advising their clients to remain silent and put the prosecution to proof.[9]

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