Juries need more education on sexual assault cases, says former Supreme Court judge

Former Supreme Court judge Peter McClellan, who led the royal commission focused on child sexual abuse, has argued for reform in how the legal system treats sexual assault cases.

McClellan says an important change has to be in the education of juries about how sexual assault victims report and respond to the trauma they have experienced.

Former Supreme Court justice Peter McClellan’s varied career took him from a brickies’ labourer to ICAC, the Supreme Court and two royal commissions.Credit:Louise Kennerley

“The public’s understanding, which you’ll see reflected today, particularly amongst men, is that if a woman is sexually assaulted and doesn’t immediately complain then her story is suspect. It’s fundamentally wrong,” he says.

“The hardest thing for anyone who’s been sexually assaulted, man, woman or child, is to go to the authorities and say: ‘I was sexually assaulted’. There’s shame; there’s difficulty in repeating the story because it’s a traumatic event, and there’s the possibility that they’ll end up in the criminal justice process and suffer cross-examination, which for anyone is difficult when you’re talking about something as intimate as sexual assault.”

McClellan declined to comment on any individual cases, including the recently aborted trial of former federal Liberal Party adviser Bruce Lehrmann, who was accused of raping his colleague Brittany Higgins in 2019. Lehrmann denied the allegations and is considering pursuing legal action against multiple media organisations for defamation.

‘The hardest thing for anyone who’s been sexually assaulted, man, woman or child, is to go to the authorities and say: I was sexually assaulted. There’s shame.’

The ACT government has also established an independent inquiry into the trial to examine the conduct of police and the ACT’s top prosecutor in the case against Lehrmann.

The trial was abandoned after a juror was found in possession of material that had not been presented as evidence, against the judge’s specific directions. The jury had earlier advised the judge they couldn’t agree on a unanimous verdict, and had been directed to keep working on a decision before being discharged. A second trial was abandoned, and the charges have been dropped.

McClellan spent nearly two decades on the Supreme Court, including five years as chair of the Royal Commission into Institutional Responses to Child Sexual Abuse. By the end of the Royal Commission, McClellan and the other five commissioners, had listened to almost 8000 stories of sexual abuse in an institution in private sessions, in addition to the public hearings.

McClellan says one of his concerns with the jury system and sexual assault cases is that they have “a capacity not to function with the knowledge that science can now give us about all of these issues”.

Bruce Lehrmann and Brittany Higgins. The trial was aborted after a juror was found in possession of material that had not been presented as evidence. Credit:Alex Ellinghausen/Rhett Wyman

For example, he says scientists have shown that in traumatic situations the brain copes often by shutting down its ability to remember in colour. As a result, he says victims may not remember the colours of a perpetrator’s clothing.

“If you suffer trauma, you will remember the essence of the events, but you may well not remember accurately the peripheral.

“The system at the moment enables the cross-examiner to pick off around the edges of the story, extract inaccuracies, and then use those inaccuracies to say the fundamental story must be wrong. Now that’s a public education thing if you have got a jury system.”

In previous speeches to his Supreme Court colleagues, McClellan has made the argument that science is continually adding to the knowledge that can assist the judicial process and outcomes, and that the objective of judges must be to ensure the law has the capacity and flexibility to respond in an informed and beneficial manner to those changes.

After the aborted trial of Bruce Lehrmann, Brittany Higgins made a statement complaining the criminal justice system had long failed to deliver outcomes to victims of sexual assault, and said she felt like she was on trial.

Former Supreme Court justice Anthony Whealy recently wrote that while Higgins comments were understandable after the jury discharge, they were misguided. In particular, was Higgins’ complaint that her evidence was fiercely tested by cross-examination whereas, by contrast, Lehrmann was entitled to maintain silence. “It flew directly in the face of the careful directions given by the trial judge to the jury in her summing up – the judge had stressed the presumption of innocence and the right to silence.”

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