Justice Peter Mcclellan Says Study Raises Questions about Rules on Child Sex Trials

By Joanne Mccarthy
Newcastle Herald
May 25, 2016

http://www.theherald.com.au/story/3928516/worlds-largest-jury-behaviour-study-surprises/

AN Australian study of people in 90 mock child sex trials has raised questions about rules allowing serial child sex offenders to successfully argue for separated trials against individual victims.

The world’s largest study of jury behaviour in child sex trials, involving more than 1000 people, has directly challenged untested assumptions about juries, including that they can be prejudiced against an accused by multiple charges and witnesses, or can reach emotional or illogical verdicts in some circumstances.

The study, commissioned and launched on Wednesday by Royal Commission into Institutional Responses to Child Sexual Abuse chairman Justice Peter McClellan, “will undoubtedly assist all of us to reflect on whether the current rules are appropriate”, he said.

Because child sexual abuse occurs in private, juries can be left weighing an alleged victim’s account against an alleged offender. Under those circumstances “it can be difficult for the jury to be satisfied beyond reasonable doubt that the alleged offence occurred”, Justice McClellan said.

Untested assumptions about jury prejudice mean some serial child sex offenders, including in the Hunter, have successfully argued for separate trials against individual victims. Convicted Hunter child sex offender priest David O’Hearn sought leave to appeal to the High Court in 2011 to argue for six separate trials involving six victims.

The study will be used to inform any law reform about whether more joint trials should be available where there are multiple complainants against an individual accused.

The “Jury Reasoning in Joint and Separate Trials of Institutional Child Sexual Abuse” study found that no juries featured a juror who reasoned illogically about the evidence. They “used their common knowledge and experience of the world in understanding the behaviours of the complainants and the defendants”.

The study divided mock trials into groups testing how juries responded in trials with one victim, a number of victims, multiple charges and trials where “tendency” evidence was allowed, where witnesses gave evidence of similar, but uncharged, assaults by the defendant.

The study found juries were “more likely to blame the complainant (alleged victim)” in the separate trial where it was his or her word against the defendant, than in any other type of trial.

Victim “blame” was predicted by individual jurors’ misconceptions about child sexual abuse.

The presence of tendency evidence increased convictions for all offences, in both separate trials and trials with multiple victims.

“We found no evidence of emotional or illogical reasoning by juries in any of the trials in which tendency evidence was admitted,” the study concluded.

Unexpected findings included that jurors viewed separate trials, where it is the complainant’s word against the defendant’s, as “significantly less fair to the defendant” than trials allowing tendency or other evidence indicating guilt.

About 60 per cent of jurors expected to be told at trial of any child sexual abuse allegations, charges or convictions against the defendant. The study found no juries used tendency evidence to say the defendant was guilty because of prior allegations.

”There was no evidence of verdicts motivated by emotional reactions to the severity of the allegations, such as a sense of horror regarding the allegations, or a desire to punish the defendant,” the study found.

Justice McClellan said the study provided evidence about how people who are likely to comprise juries reason on issues relating to child sex trials.

“The results are interesting. For some they will be counterintuitive and possibly surprising. They will undoubtedly assist all of us to reflect on whether the current rules are appropriate,” he said.

The issues were investigated by presenting 10 different pre-recorded trials involving the same core evidence to the jurors, with the study focusing on the impact of evidence and the specific judicial directions on jury decision-making in joint versus separate trials.

The research revealed that juries did not engage in reasoning that was unfairly prejudicial to the defendant. They were not overwhelmed by the number of complainants or witnesses.

Juries were able to distinguish different charges against an accused and base their verdicts on the evidence relevant to each count.