An evaluation of how evidence is elicited from complainants of child sexual abuse and online

507 Pages·2016·6.35 MB·English

Disclaimer
The views and findings expressed in this report are those of the authors and do not
necessarily reflect those of the Royal Commission into Institutional Responses to Child
Sexual Abuse.
Copyright information
Powell, M., Westera, N., Goodman-Delahunty, J. and Pichler, A. S. (2016). An evaluation of
how evidence is elicited from complainants of child sexual abuse. Sydney, Australia: Royal
Commission into Institutional Responses to Child Sexual Abuse.
ISBN 978-1-925289-71-8
© Commonwealth of Australia 2016
All material in this report is provided under a Creative Commons Attribution 4.0 Australia
licence. Please see www.creativecommons.org/licenses for conditions and the full legal
code relating to this licence.
Published date
August 2016
An evaluation of how evidence is elicited from
complainants of child sexual abuse
Royal Commission into Institutional Responses to Child Sexual Abuse
Martine Powell
Professor, School of Psychology, and Director of the Centre for Investigative Interviewing,
Deakin University
Nina Westera
Research Fellow, Griffith Criminology Institute, Griffith University
Jane Goodman-Delahunty
Research Professor, School of Psychology and Australian Graduate School of Policing and
Security, Charles Sturt University
Anne Sophie Pichler
PhD Candidate, School of Psychology, Deakin University
August 2016
Preface
On Friday, 11 January 2013, the Governor-General 5. How should government and statutory
appointed a six-member Royal Commission to inquire authorities respond?
into how institutions with a responsibility for children 6. What are the treatment and support needs of
have managed and responded to allegations and victims/survivors and their families?
instances of child sexual abuse. 7. What is the history of particular institutions of
interest?
The Royal Commission is tasked with investigating 8. How do we ensure the Royal Commission has a
where systems have failed to protect children, and positive impact?
making recommendations on how to improve laws,
policies and practices to prevent and better respond This research report falls within themes five and six.
to child sexual abuse in institutions. The research program means the Royal Commission
can:
The Royal Commission has developed a • obtain relevant background information
comprehensive research program to support its work • fill key evidence gaps
and to inform its findings and recommendations. • explore what is known and what works
• develop recommendations that are informed by
The program focuses on eight themes: evidence, can be implemented and respond to
1. Why does child sexual abuse occur in institutions? contemporary issues.
2. How can child sexual abuse in institutions be
prevented? For more on this program visit
3. How can child sexual abuse be better identified? www.childabuseroyalcommission.gov.au/research.
4. How should institutions respond where child
sexual abuse has occurred?
Table of Contents
Chapter 11: The labelling of repeated
Acknowledgements...................................... i
occurrences.................................................. 169
Glossary........................................................ ii
Chapter 12: Judges’ instructions to
child complainants ....................................... 174
Executive summary...................................... 1
Chapter 13: Assessing truth/lie
Chapter 1: Introduction................................ 9
competency.................................................. 181
Chapter 2: Professionals’ views on how
Chapter 14: Court questioning....................... 187
to improve evidence-taking........................... 20
Chapter 15: Non-normative assumptions
Chapter 3: Professionals’ experiences
in cross-examination..................................... 196
with alternate measures............................... 46
Chapter 16: Cross-examination strategies..... 204
Chapter 4: Factors that influence
perceptions of cross-examination................. 83
Chapter 17: Cross-examination on
inconsistencies............................................. 219
Chapter 5: Prosecution case file review......... 91
Chapter 18: Judicial interventions................. 232
Chapter 6: The usage of alternate
measures...................................................... 107
Chapter 19: General discussion.................... 240
Chapter 7: Review of NSW Sexual Assault
References.................................................... 248
Review Committee minutes.......................... 135
Appendix A: Literature Review of alternate
Chapter 8: Nonverbal analysis of video
measures...................................................... 263
and CCTV evidence........................................ 145
Appendix B: Police organisational
Chapter 9: Police interviewing practices........ 149
responses to interviewing............................. 301
Chapter 10: Courtroom discussions
about police interviews................................. 161
Acknowledgements

The Royal Commission into Institutional Responses to Child Sexual Abuse commissioned and funded this research
project, which the following researchers carried out.

Chief investigators

Elli Darwinkel, BA AppSc (Hons) PhD
Martine Powell, DipTeach, BA (Hons), MClinPsych, PhD
Eunro Lee, BA, MPsych, PhD
Nina Westera, BSc, MSc, PhD
Mark Nolan, BSc (Hons)/LLB, MAsPacSt, PhD, SFHEA
Jane Goodman-Delahunty, BA, TTHD, JD, PhD
Yiyun Shou, BSc (Hons), PhD
Anne Sophie Pichler, BA (Hons)/LLB (Hons)
Megan Fraser, BA (Hons)

San Seo
Jake Miyairi, BA
Core contributors1 Bernard Leeman, BA (Hons), MEd, PhD
Ida Nguyen, BSc/LLB

Melissa Martin, BIntlSt, LLB, MPACS
Sonja Brubacher, BA (Hons), MA, PhD Berenike Waubert de Puiseau, DipPsych, PhD
Sarah Zydervelt, BA/LLB
Nigel Balmer, BSc (Hons), PhD
Rhiannon Fogliati, BPsych (Hons), MPsych (Clin), PhD
Martin Imrie
Alexandra Lonergan, BSS (Hons), GDipPsych Darius Rountree-Harrison, BSc, MPhil
Natalie Martschuk, DipPsych
Stella Palmer
Patricia O’Shaughnessy, MMgt, LLB, BA Natalie Hodgson, BA/LLB (Hons)
Yuki Nakata, BA

Other researchers
Editorial assistance

Mairi Benson, Bsc (Hons), PhD
Chelsea Leach, LLB (Hons)/BPsySc (Hons), DPsych (Forensic) Samantha Semmens, BA (Hons), MA, BFA
Meaghan Danby, BAppSc (Hons) Bronwen Manger, BA/BSc
Becky Eckhart, BA (Hons), MA Aylwin Yap, BA/BSc, GDipPsych
Madeleine Bearman, BA, GDipPsych

1 Core contributors provided a substantial intellectual contribution spanning multiple chapters.

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An evaluation of how evidence is elicited from child sexual abuse complainants
Glossary

Acronyms and initials
Acronym/Initial
ANOVA Analysis of variance
AV link Audio-visual link
CCTV Closed-circuit television
CWS Child Witness Service
DVD Digital versatile disc – an optical disc used to store digital data
M Mean
NSW New South Wales
NZ New Zealand
ODPP Office of the Director of Public Prosecutions
SARC Sexual Assault Review Committee
SD Standard deviation
SE Standard error
UK United Kingdom
Vic Victoria
WA Western Australia
WAS Witness Assistance Service

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An evaluation of how evidence is elicited from child sexual abuse complainants
Alternate measures
Alternate measure Description
An electronically recorded interview with a child complainant that is conducted during the
police investigation stage and may be played during the trial as the complainants’ evidence-in-
chief. NSW, Victoria and WA apply a multi-disciplinary response to the investigation of child
abuse, whereby police and child protection services both respond to reports of child abuse in
a coordinated manner, sharing case information.

Pre-recorded In Victoria, the electronically recorded investigative interview is always conducted by an
police interview authorised police officer (usually the detective assigned to the case). In WA and NSW, relevant
child protection staff and police are co-located, and both agencies have authority to conduct
the recorded child interview. It is possible that in NSW and WA, the interview that this report
refers to as the ‘police interview’ was conducted by a member of child protective services;
however, information as to the interviewer's affiliated agency was not available to the
researchers. As the focus of the current report is the criminal investigation process, for ease of
presentation this report will consistently refer to the interviews as police interviews.
A complainant may give evidence via closed-circuit television from a remote room located on
CCTV
or off the court premises.
Pre-recorded The cross-examination and re-examination of a complainant that is recorded in a preliminary
cross-examination hearing and later submitted in court.
Screens Screens in the court that block the accused from the complainant’s view.
Alternative The courtroom is altered by clearing the public gallery during the complainant’s evidence,
physical layout of requiring members of the judiciary to remove wigs and gowns, and/or alternative seating
the courtroom arrangements.
Supplementary Supplementary materials mentioned throughout this report can be found with the online
materials (online) version at www.childabuseroyalcommission.gov.au.
A person who sits with the witness as they are giving evidence and provides support. This may
be someone close to the witness or a support person provided by court services. Professional
Support persons
support people can also help explain to witnesses the process of giving evidence and the key
roles of legal players.
These give judges the power to disallow certain questions that are known to reduce witness
Restrictions on
accuracy or increase the stress of giving evidence. For example, a judge may disallow
questioning
misleading or confusing questions, or questions put in a manner or tone that is belittling.

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Powell, Westera, Goodman-Delahunty & Pichler
Executive summary

1
Powell, Westera, Goodman-Delahunty & Pichler
Executive summary

Child sexual abuse is difficult to prosecute and has complainants were analysed to determine trends
one of the highest attrition rates of all criminal across jurisdictions and demographic variables (such
offences. Part of the difficulty in prosecuting these as age groups), and how measures are actually being
cases is that offending is often hidden from public administered. For these analyses, the Royal
view, leaving only the complainants’ evidence to Commission nominated three representative
establish the defendants’ guilt beyond reasonable Australian jurisdictions: NSW, Victoria and WA.
doubt. The ability of child sexual abuse complainants
to give quality evidence is crucial for successful A brief summary of each of the 17 studies and the
prosecution, but it can be problematic for general discussion is provided below.
complainants to give such evidence. For both child
and adult complainants, a willingness to engage in the Professionals’ views on how to
justice process, and the accuracy and usefulness of
improve evidence-taking
the evidence they give, can be affected by anxiety and
stress, delays in the trial process and how
(Study 1)
professionals question them.

Aim: This study explored criminal justice
Over the past two decades, jurisdictions have
professionals’ views on how well procedures for
attempted to address these concerns by introducing
taking evidence from child and adult complainants of
alternate measures and guidelines for eliciting
sexual abuse are working, and how, if at all, methods
evidence from child sexual abuse complainants. This
of taking this evidence can be improved.
report provides a comprehensive, holistic and

contemporaneous picture of this process. Specifically,
Method: The researchers interviewed 43 criminal
it examines:
justice professionals (judges, prosecutors, defence
• the use and effectiveness of alternate
counsel and witness advisors) from the three
measures
nominated jurisdictions (and Tasmania). A qualitative,
• how complainants are questioned when
non-directive approach was used to gain an in-depth
evidence is elicited.
understanding of the professionals’ perceptions of the

effectiveness of alternate measures and
The researchers used a mixed method that involved
courtroom questioning.
conducting 17 studies using information from various

sources. Criminal justice professionals (judges,
Key findings: Stakeholders perceived that alternate
prosecutors, defence lawyers and witness advisors)
measures and restrictions on questioning had
were interviewed and surveyed to provide a
improved the evidence-giving processes for child
stakeholder perspective on issues and challenges. A
sexual abuse complainants, and were routinely used –
large representative sample of prosecution case files,
more often for children than for adults. Yet several
trial transcripts and police video interviews with
shortcomings were perceived as reducing the practical

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An evaluation of how evidence is elicited from child sexual abuse complainants