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Truth, testimony, relevance: improving the quality of evidence in sexual offence cases

Melbourne Cricket Ground, Melbourne Victoria
15-16 May 2012

  

The Australian Institute of Criminology, the Australian Institute of Family Studies and Victoria Police are holding a national symposium to increase understanding of the nature of sexual offending, and around the vexed question of the use of evidence provided by sexual assault and abuse victims for court.

The symposium program is designed specifically for police, lawyers and legal officers, the judiciary and researchers – who will gather to examine what we know about offenders and their victims, and explore options to enhance the relevance and meaning of evidence in judicial processes that deal with sexual offences against both adults and children. The attendance numbers will be capped.

The organisers are seeking to develop a set of broad outcomes from the event that can be used constructively including how the quality and relevance of evidence can best be improved while also balanced against due process, and the establishment of a national sexual crimes investigators network for police.

Speakers include

  • Baroness Vivien Stern CBE (UK)
  • Justice Chris Maxwell, President of the Supreme Court of Victoria (Appeals)
  • Justice Marcia Neave AO, Court of Appeals, Supreme Court Victoria and foundation Chair of the Victorian Law Reform Commission
  • Judge Felicity Hampel, County Court of Victoria
  • Victorian Police Commissioner Ken Lay APM
  • Dr Adam Tomison, Director, Australian Institute of Criminology
  • Dr Antonia Quadara, Co-ordinator, Australian Centre for the Study of Sexual Assault, Australian Institute
    of Family Studies
  • Howard Bath, Child Safety Commissioner, Northern Territory
  • Dr Annie Cossins, Associate Professor in Law, Faculty of Law, University of New South Wales.
  • Professor Jane Goodman-Delahunty, Charles Sturt University (Jury decision making)
  • Professor Martine Powell,School of Psychology, Deakin University (Child eyewitness and forensic interviewing)
  • Associate Professor Jan Jordan, University of Wellington, NZ
  • Patrick Tidmarsh, Victorian Police

Focus

There has been a decade of reform—substantive and procedural—in relation to sexual offences. Police in most jurisdictions have refined their investigation practices and broadened the information they consider relevant in building a case. Specialist prosecution units have been set up to more effectively prosecute these cases. A specialist knowledge has developed which reflects and enriches both research and practice.

It is now broadly understood that sexual offence perpetrators—detected and undetected—use many strategies to groom victims into compliance and the research tells us that perpetrators typically aim to normalise and hide their offending in everyday relationships.

However, challenges present themselves: how much of this broadened understanding and the narrative provided by the victim can—and should—make it to trial?

To what extent does a broader understanding of sexual offending raise questions about and challenge the rights of the accused?

If there is a specialised knowledge about this often hidden form of offending, and should this not be presented to the court?

The symposium aims to develop a shared understanding between legal practitioners, law enforcement and researchers about how sex offenders offend, and to examine the complexities this presents for prosecuting and trying sexual offences.

Format

This two-day event will involve keynote speakers, presentations, expert panels and workshops to consider and debate these complexities and tensions.

Day 1

The first day of the symposium sets the scene with an examination of the research evidence on the nature of offending and experiences of victimisation.

Day 2

The final day will involve workshops and expert panels to explore whether and how an enhanced understanding of this knowledge can alter assessments of relevance in prosecuting, defending and trying sexual offence matters.

Outcomes

  • An identification of obstacles within legislation, elements of jurisprudence, requirements of the adversarial system, or existing case law
  • An identification of the next steps in improving the quality and meaning of evidence in sexual offence matters; and
  • The establishment of a national sexual crimes investigators network for police.

Following the symposium, the organisers will distil the discussion and produce an options paper that both synthesises the key debates and sets out possible approaches to improving the capacity of the justice system to identify what is relevant in victims’ accounts, in order to inform the criminal justice process.

Enquiries

Enquiries should be directed to the conference coordinator

Kate Hancott
02 6260 9272
events@aic.gov.au


Conference welcome

The vexed question of evidence in sexual offence cases

Victoria Police, the Australian Centre of the Study of Sexual Assault based at the Australian Institute of Family Studies, together with the Australian Institute of Criminology, would like to welcome you to Truth, Testimony & Relevance: Improving the quality of evidence in sexual offence cases. This symposium aims to increase understanding of the nature of sexual offending, and to consider the use, in court, of evidence provided by sexual assault and abuse victims.

Over the years, jurisprudence and case law has shaped the way evidence is presented in sex offence trials. The changes have often been driven by an improved understanding of the nature of sex offending, which has in turn enhanced the ability of witnesses before the Court to tell their story.

Some forms of evidence, however, have been ruled inadmissible by convention and procedure, thus diminishing the ability of categories of witnesses to present their stories.

This symposium is important because it brings together the perspectives of police, prosecutors, defence and the judiciary to consider current research on sex offenders and offending, and the responses of victims.

Participants will consider and debate what we now know about sexual offending and whether this is adequately reflected in the way evidence is assessed as relevant, or even permitted in courts around Australia?

Further, recognising the progress that has been made in investigating and understanding the behaviours and patterns of sex offenders, and the responses of victims, how can we improve evidentiary procedure to take into account new and emerging knowledge?

A range of esteemed expert speakers have been invited to participate and inform discussions at this symposium, including Baroness Vivien Stern from the UK, the author of the Stern review into how rape complaints are handled in the Welsh and English jurisdictions; senior jurists such as Justice Chris Maxwell, President of the Supreme Court of Victoria (Appeals); Professor Martine Powell, Deakin University, an expert in child eyewitness and forensic interviewing; and Chief Commissioner of Victoria Police, Ken Lay, APM.

The symposium has been generously sponsored by the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs, with funding provided to develop an options paper that will both synthesise the key debates that take place during the symposium and set out possible approaches to improving the capacity of the justice system to identify what is relevant in victims’ accounts, in order to inform the criminal justice process.

Symposium abstracts and selected biographies

Opening address

President of the Supreme Court of Victoria (Appeals) Justice Maxwell

Justice Maxwell commenced practice at the Bar in 1984 and took silk in 1998. He was appointed President of the Court of Appeal of Supreme Court of Victoria in July 2005.

Relevance and relationships in sexual offending narratives

Patrick Tidmarsh, Manager of forensic interviewing of sexual offenders, Victoria Police

This paper will discuss sexual offending as a crime of relationships. It will examine how the frames of reference for such relationships are considered and contrasted in therapeutic and legal paradigms. It will discuss which elements of offending ‘relationships’ withstand the first legal test—relevance.

Patrick Tidmarsh has been working in the field of sexual offending for twenty-five years. With a background in dramatherapy and criminology, he has run treatment programs for adult sexual offenders and adolescents who sexually offend, including the Male Adolescent Program for Positive Sexuality (MAPPS).

Patrick is currently a Forensic Interview Advisor with Victoria Police SOCIT Project. He trains police members in understanding sexual offending and improving their interviewing of sexual offence suspects. He also consults with members on investigations and interview planning.

He has presented both nationally and internationally on sexual offenders and treatment.

Keynote—What do we know about sexual offending?

Danny Sullivan, Consultant psychiatrist; Assistant clinical director of Forensicare, Adjunct senior lecturer, Monash University

This presentation aims to provide an overview of current theoretical and clinical understanding of sexual offenders. In a breathtaking whistle-stop tour, we will address:

  • statistics related to sexual offending
  • typologies, risk factors and pathways to offending
  • assessment and treatment
  • risk assessment and recidivism

The focus will be on identifying empirical evidence and theory to underpin societal, policing, legal, correctional and therapeutic approaches to sexual offending. The speaker will also identify gaps in knowledge and current controversies in approaches to sexual offending.

Danny Sullivan is a consultant psychiatrist and is currently Assistant Clinical Director of Forensicare, responsible for the Victorian Statewide Community Forensic Mental Health Service. In addition he is Adjunct Senior Lecturer at Monash University, affiliated with the Centre for Forensic Behavioural Sciences and involved in research and teaching.

He trained in Melbourne and at the Maudsley Hospital / Institute of Psychiatry in London. He has Masters Degrees in Medical Law and in Bioethics. His recent employment has included periods of time working in neuropsychiatry and with complex patients with multiple diagnoses. Danny is engaged in the assessment and management of offenders including sexual offenders, working in prison and community settings, and also provides medicolegal assessments and expert evidence in criminal, family and child protection jurisdictions.

Survival, resistance or surrender?

Moderator: Professor Martine Powell, PhD, FAPS, Deakin Forensic Psychology Centre, Deakin University

Reactions to perpetrator behaviours and strategies of resistance and survival can take many forms, some of which may appear counter-intuitive. Drawing on research and practice knowledge, this session will examine how victims react to, attempt to resist, and aim to survive their sexual victimisation. A key focus will be on understanding the victims’ behaviour as a response to, and in the context of, sexual offender tactics.

Reframing resistance through women’s rape narratives

Associate Professor Jan Jordan, Institute of Criminology/Te Pou Haratutanga, Victoria University of Wellington

The expectation that genuine victims of rape will display visible signs of resistance may initially appear as a self-evident ‘truth.’ In the context of reviewing women’s narratives of surviving rape, Jan Jordan was prompted to reassess this notion and consider expanded ways of understanding what the concept of resistance means. Today’s presentation draws on material from her book, Serial Survivors, to explore the diverse ways in which victims may defend, resist and survive rape attacks, even while outwardly conforming to conventional victim stereotypes.

Misperceptions and realities about complainant behaviour and convictions

Suzanne Blackwell, Clinical Psychologist, Broadway Psychology NZ

This paper briefly traverses two empirical studies, the first being about New Zealand jurors’ knowledge/misconceptions about child sexual abuse, and the second about child sexual assault trial processes and factors associated with the prediction of jury verdicts in those trials. Also discussed is the recent use of counterintuitive expert psychological evidence to educate jurors in such trials, and the resulting case law that has arisen in this area.

Child sexual abuse and children’s resistance strategies

Robyn Miller, Principal Practitioner—Child Protection and Family Services, Office for Children, Department of Human Services Victoria

This presentation will explore the experience of children and young people who are subjected to the grooming and manipulation of sex offenders and suffer sexual abuse. Research on the impact of trauma on the developmental trajectory of children and young people and the evidence about the impact of childhood sexual abuse across the life cycle will be reported.

The complexities of intra-familial abuse will be presented and the impact of this on family relationships and the undermining of the attachment relationship with the non-offending parent (s) will be discussed. The presenter’s clinical experience and evidence from research will provide information about children’s survival and resistance strategies, and patterns of accommodation. Some of the myths about patterns of disclosure and expectations of children will be challenged and the presenter will offer practical advice about useful engagement and treatment frameworks.

Grooming and sexual offending

Moderator: Saul Holt, Director, Victoria Legal Aid

Compared to other forms of offending, sexual offending is particularly hidden. It typically occurs in intimate, familial, and private settings and few victims report to police. General knowledge about how offences are set up, carried out and concealed is limited, and overshadowed by high profile serial offenders. This session examines perpetrators’ offending strategies, their offence decision-making and their motivations.

Planned and opportunistic offending: The continuum of sexual offending

Dr Antonia Quadara, Co-ordinator, Australian Centre for the Study of Sexual Assault, Australian Institute of Family Studies

Sexual offenders’ strategies, behaviours and decisions to offend are shaped by the interpersonal, situational and social contexts in which they occur. This paper draws on the insights about perpetration as shared by 33 victim/survivors of adult sexual assault. Their narratives suggested that perpetrators enacted “situationally targeted” strategies, and that their offending appeared more or less planned, more or less opportunistic depending on context. What challenges might this present to criminal justice assessments where planning is a proxy for intentionality?

How do child sex offenders differ from rapists?

Sarah Macgregor, Senior Research Analyst, Australian Institute of Criminology

This paper explores the differences in offending nature between child sex offenders, rapists and child pornography offenders. Specifically, the study analysed data from a sample of sex offenders surveyed through the Drug Use Monitoring Australia (DUMA) program and examined how the additional offences that sex offenders were charged with at the time they were arrested (e.g. violent offences, property charges, drug charges), as well as any prior charges, differentiated between child sex offenders, rapists and child pornography offenders in the sample.

What recidivism studies tell us and what judges think they know: using the literature to inform decision-making in trials involving serial child sex offenders

Dr Annie Cossins, Associate Professor, Faculty of Law, University of NSW

This paper challenges recent Victorian Court of Appeal decisions that have held that striking or remarkable similarities in the sexual behaviour of a child sex offender are required before the evidence of one complainant will be cross-admissible in relation to the evidence of another complainant in a joint trial. Recidivism, cross-over and self-report studies challenge these judicial assumptions and provide a completely different picture of the sexual behaviour of serial child sex offenders which in turn is the basis on which decisions in relation to joint trials ought to be made.

Specialised knowledge and the courtroom

Moderator: Patrick Tidmarsh, Manager of Forensic Interviewing of Sexual Offenders, Victoria Police

A number of recent reforms have focused on improving the court’s—and particularly juries’—understanding of sexual offending and its impact on victims. Mechanisms include expert opinion and social science evidence and directions to the jury. This session considers what knowledge jurors bring into the court room, whether it is sufficient to assess matters of fact, and how the expert evidence provisions are being used.

Jurors perceptions of sexual offending

Professor Jane Goodman-Delahunty, Australian Graduate School of Policing, Charles Sturt University, NSW

This presentation draws on empirical findings from recent Australian studies of intrafamilial child sex offenders, research documenting common behaviours among children exposed to sexual abuse, results of community surveys about child sex abuse and trial simulation studies to summarise gaps between available specialized knowledge and what potential jurors do and do not know about this topic. Results are informative about the potential role of expert evidence in these cases.

Specialised knowledge of the impact of sexual abuse

Hugh Donnelly, Director Research and Sentencing, Judicial Commission of New South Wales

Sarah Huggett, Crown Prosecutor, Crown Prosecutors’ Chambers, Director of Public Prosecutions New South Wales

In 2006 the various Law Reform Commissions (ALRC NSWLRC and VLRC) recommended that a new s 79(2) be inserted into the opinion evidence provisions of the Evidence Act. This was part of a 10 year review of evidence law. Section 79(2) provides, amongst other things, “To avoid doubt…. specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse).” The rationale given for the amendment by the Commissions included “Australian courts continue to demonstrate a reluctance to admit such evidence under s 79”...[and s 79] “should be amended to clarify the position” The Commissions also opined that the proposed amendment did not constitute “any major departure from the existing law” (ALRC 102 at paras 9.156-7).

The aim of this session is to facilitate a theoretical and practical discussion about s 79(2). What are the legal issues that arise for a Court when a party seeks to adduce opinion evidence of the kind described in s 79(2)? Are experts readily available? Has the enactment of s 79(2) had any impact on the way child sexual assault offences are prosecuted or defended?

Keynote—Giving witness to the unspeakable: What neuroscience has revealed about the ability of childhood victims of traumatic abuse to provide legal testimony

Dr Howard Bath, Children’s Commissioner, Northern Territory

Over the past two decades our understanding of the impact of traumatic experiences in childhood has grown significantly as has our knowledge about the processes and mechanisms of memory. There are now widely accepted propositions about the ability of young witnesses to recall the details of traumatic experiences such as sexual assault but some key areas of controversy remain. The accumulating research findings have major implications for way investigations and criminal proceedings are conducted. This presentation will review these findings which include considerations regarding the nature of the abuse, the child’s relationship with the abuser, the gender of the child, their age at the time of the abuse, the familial support provided, and the personal circumstances and family context of the child at the time of the legal proceedings.

Dr Howard Bath took up his appointment as Children’s Commissioner in June 2008. Trained as a Clinical Psychologist, Dr Bath has a long history of providing consultancy, clinical and training services relating to the needs of children and young people. For a number of years he provided consultancy services for the NT Government and in 2007 he undertook an audit of responses to high risk clients by programs of the then Community Services Division of the NT Department of Health and Community Services.

Dr Bath has been a youth worker, manager, clinician and Agency Director. He was the inaugural Chair of the Child and Family Welfare Association of Australia, the peak body for service providers representing all states and territories.

From 1999 to 2008 he was Director of the Thomas Wright Institute in Canberra which provided a range of consultancy, training and clinical services for organisations working with young clients who have complex needs and challenging behaviours. His particular clinical interests have included work with young people who have experienced developmental trauma, those with problems around aggression and sexuality, and those with developmental disorders such as autism.

Understanding whose story gets valued and recommendations for improving the competency of investigative interviewers

Professor Martine Powell, PhD, FAPS, Deakin Forensic Psychology Centre, Deakin University

This paper draws on the authors’ knowledge of witness testimony and investigative interviewing about sexual abuse to address three questions. First, what is considered ‘best practice’ interviewing from an eyewitness memory and prosecution perspective? Second, how well do interviewers adhere to best practice interviewing and what are the barriers to implementing the techniques? Third, what can organisations and professionals do to improve interviewing technique (and subsequently, the evidential quality) of witness statements about abuse?

Professor Martine Powell is a leading expert in the area of eyewitness testimony and investigative interviewing. To date, she has over 140 publications related to the topic, including a best-selling book entitled A Guide to Interviewing Children (Allen and Unwin), which is widely used by investigative interviewers throughout Australia and the UK. She has been the recipient of numerous awards, including the 2011 Australian Psychological Society’s award for most Distinguished Contribution to Forensic Psychology.

Prior to becoming an academic, Professor Powell was employed as a psychologist at a child protection unit and as a school teacher. Currently, she is coordinator of the Doctor of Psychology (Forensic) course at Deakin University—the only course of its kind in Australia that specialises in the area of children and the law. In addition to teaching on that course (and other courses within the School of Psychology), Professor Powell plays a major role in the education and training of professional investigative interviewers throughout Australia.

A ‘Whole Story’ approach to investigation and interviewing in sexual crime matters

Patrick Tidmarsh, Manager of forensic interviewing of sexual offenders, Victoria Police

This paper will detail the specialisation of sexual assault investigators within Victoria Police. It will discuss how the ‘Whole Story’ framework has been developed to improve the investigative and interviewing practices of police officers.

Welcome address

Chief Commissioner Ken D. Lay APM, Victoria Police

Chief Commissioner Ken Lay APM was appointed on 14 November 2011.

He started work with Victoria Police in 1974 and since that time has gained significant experience in a wide range of policing roles including operational, training and corporate roles as well as lengthy periods of service in both the rural and metropolitan areas. Ken’s most recent roles include the Deputy Commissioner (Strategy and Organisational Development), Deputy Commissioner (Road Policing), the Assistant Commissioner with responsibility for Victoria’s Traffic and Transit issues and as the Assistant Commissioner in Charge of policing services for the north-west geographical area of Victoria, one of the largest police regions in the State

As Chief Commissioner, he sits on numerous professional State and National Boards and Committees. He is a member of the Australian Institute of Company Directors, the International Association of Police Chiefs and the Australasian College of Road Safety.

As Chief Commissioner, Ken will have responsibility for management and operations of an organisation of over 15,000 employees which will grow to well over 17,000 by the end of 2014. One of Ken’s major priorities will be managing the recruitment and seamless integration of 1700 police and 940 protection service officers to the organisation during his tenure as Commissioner.

Keynote—Improving the justice response to sexual offending

Justice Marcia Neave AO, Court of Appeals, Supreme Court of Victoria

The Honourable Justice Marcia Neave was appointed a judge of the Court of Appeal, Supreme Court of Victoria in February 2006. Between 2001–2006 she was the foundation Chairperson of the Victorian Law Reform Commission. During that period the Commission’s references included Defences to Homicide, Sexual Offences, Co-Ownership, Privacy, Reproductive Technology and Adoption of the Uniform Evidence Act.

Justice Neave has previously held a personal Chair of Law at Monash University and has also been a professor at Adelaide University and at the Australian National University. In the early 1980s she was Research Director and then a part-time commissioner at the New South Wales Law Reform Commission.

Keynote—The criminal justice response to rape in the UK—new directions

Baroness Vivien Stern, CBE, International Centre for Prison Studies

Vivien Stern is the author of a government review punished in 2010 of how public authorities respond to rape complainants. In her address she will describe the background to the review, the response to her recommendations, the changes made in England and Wales by the police, prosecution and courts in responding to rape complainants and current recent developments towards a more victim-centred, strategic and intelligence-led approach.

Baroness Stern is a crossbench (independent) member of the UK House of Lords. She has extensive international experience in human rights and criminal justice matters and in 2010 carried out a review for the UK Government on the response of public authorities to those reporting rape (the Stern Review).