Professional knowledge and judicial understanding
Keynote address: 14th Australasian Conference on Child Abuse and Neglect
The Hon Justice Peter McClellan
April 2, 2015
The Royal Commission has now been in operation for more than two years. We have completed the public hearings for 25 case studies which in most cases have been concerned with the failure of institutions to manage their affairs to adequately protect the children in their care. We have looked at churches, religious schools, and state run institutions. We recently looked at issues in relation to out of home care. But we have many more and varied tasks to complete.
One of the obligations in our Terms of Reference requires the Commissioners to consider what "institutions and governments should do to address, or alleviate the impact of past and future child sexual abuse ... including, in particular, in ensuring justice for victims through the provision of redress by institutions, process for referral for investigation and prosecution and support services.
Justice for victims is an elusive concept. In the civil context redress schemes providing modest money compensation without the need to prove a breach of a duty of care are commonly believed to be appropriate. Otherwise in the civil context there are difficulties in defining the content of a duty of care. Determining the individuals or institutions who must accept the obligation of fulfilling that duty can also provoke animated discussion. Whether common law damages or some more confined financial recompense is appropriate are matters the Commissioners are considering as part of our discussions about redress for survivors.
Justice for victims in the criminal context raises multiple and complex issues different from the issues in a civil context. The Royal Commission is addressing many of those issues through external research, round tables and our own policy development. Prof Arie Frieberg, Hugh Donnelly and others have already completed significant work for us. The issues extend across the appropriate range of criminal offences, the reporting of criminal acts, their investigation and their prosecution. The latter requires us to consider the trial process, the legal rules which control it, in particular joint trials and tendency evidence, directions to juries and appropriate sentencing outcomes.
The Royal Commission is in a privileged position. We are able to both undertake and also commission other professionals to conduct empirical research to inform our decision making. But what of the judge in whose court the criminal trial is conducted? The question I will explore today is how knowledge developed in disciplines outside the law, but relevant to determinations made within it, can be communicated to, and appropriately used by judges. Although relevant to all judicial decision making it has particular relevance in the child sexual assault context. Today's discussion will not be the last I will have on this topic, but it provides me with an opportunity to raise issues which we will seek to discuss with the community going forward.
The rule of law is the fundamental concept which underpins the social compact by which we order our society. It is important to stress that although the concept necessarily contemplates legal rules it must be distinguished from the notion of rule by law. Rules are necessary to govern a society which accepts the rule of law. The question is always do we have the appropriate rules.
If confidence in the rule of law is to be maintained it is necessary for the legal rules to reflect the contemporary knowledge and expectations of the community. Those expectations are borne of generally accepted values. Some of those values are reflected in our trial processes which are informed by contemporary understandings of human behaviour. With time and greater knowledge our understandings are modified or redefined. And therein lies the challenge for those who make the rules be they legislators or judges. Early in the development of the common law the task was relatively easy. It is now much more difficult.
In the mid-1700s the English jurist Sir William Blackstone discussed the common law approach to a provoked killing. His words reflect the values of the 18th century but resonate today. He said: "if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor" then the law "pa[id] ... regard to human frailty" and the killer was convicted of manslaughter. If, however, there was "a sufficient cooling time for passion to subside and reason to interpose" then the defence would fail and the killing would be murder.
Contrast the contemporary relevance of those words about provocation with Blackstone's understanding of the mind of a victim of sexual assault. He said:
"if the witness be of good fame; if she presently discovered the offence, and made search for the offender ... these and the like are concurring circumstances, which give greater probability to her evidence. But on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for a considerable time after she had the opportunity to complain; if the place, where the fact was alleged to be committed, was where it was possible she might be heard, and she made no outcry; these and the like circumstances carry a strong, but not conclusive presumption that her testimony is false or feigned."
The seeds of later and erroneous approaches to issues of sexual assault can be seen in these remarks.
In 1879 an event occurred of fundamental importance in the development of our understanding of human behavior. In Leipzig, the first laboratory solely dedicated to psychological research was founded by Wilhelm Wundt. In that laboratory Wundt and his students developed the empirical methodologies that allowed psychology to emerge as a discipline distinct from philosophy. The question was how would the law respond to the birth of the new science whose area of focus - human behaviour - was central to so many aspects of the law itself.
[Download & read the full Keynote address: 14th Australasian Conference on Child Abuse and
Neglect (13 page pdf file)]