The changes to the law re sexual assault trials in Victoria and their impact on Kathy Sherriff's complaint
Republishing - the basis for Cardinal Pell's conviction (later overturned) lies in Victoria's 2015 Jury Directions Act
Saturday, 24 August 2019
Prior to June 2015 our criminal justice system was fairly well developed with the common law providing guidance in most matters. Daniel Andrews (and some of his Liberal contemporaries) knew better. This Act is at the heart of the (original, later overturned on appeal) Pell conviction.
On 29 June 2015 Victoria's Jury Directions Act became law.
It made a number of changes in particular to criminal trials of sexual assault charges:
- any previous requirement that evidence be corroborated was abolished
- any rules of law or practice that previously required directions (from Judge to Jury) concerning the absence of corroboration, including directions about the dangers of acting on uncorroborated evidence were abolished
The Act also requires that a judge must not
- Warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or
- Direct the jury regarding the absence of corroboration
http://www.judicialcollege.vic.edu.au/eManuals/CCB/4099.htm
These changes meant that it was up to a jury to decide if the evidence of one complainant should be accepted over the evidence of the offender.
Prior to 29 June 2015 judges would routinely warn jurors that it was dangerous to convict on the uncorroborated evidence of a single complainant.
The Jury Directions Act 2015 contained these provisions about sexual offences:
The Act contains other important provisions for trials of accused sex offenders, reflecting changed community perceptions of the seriousness of those offences and better understanding of the various ways that individual victims react to being assaulted.
Here are a few elements:
Kathy Sherriff's complaint against Bill Shorten
In October 2013 Kathy Sherriff went to Victoria Police to lodge a report alleging Shorten had raped her.
On 13 November 2013 The Australian reported on her complaint:
"In 1985 I joined the ALP. In 86 at the age of 16 I . . . became a delegate for state and national conferences. In 86 I went to a Young Labor camp down near Geelong . . . I was alone. At about 4am there was a knock at my door. It was him at the door. He pushed me into a bathroom, up against a towel rail, pulled down my pants and raped me."
Detectives from the Victoria Police Sexual Offences and Child Abuse Unit are drawing up an investigation plan, which will include whether to pursue these records through the union itself, as well as other potential witnesses.
The alleged victim claims the first person she told about the alleged assault, several months after it happened, was a close friend who she was living with at the time but had since lost contact with.
The Australian has spoken to this friend, who asked not to be named but confirmed the conversation took place between the two women, who were about 16 or 17 at the time.
While she did not remember the name of the alleged assailant mentioned at the time, this second woman said her friend had described a sexual assault taking place during a Young Labor overnight camp in 1986.
The alleged assault had devastated her friend, she said, and resulted in her losing her faith in politics. The two women have not spoken to each other in several years.
Victoria Police last night confirmed they were "investigating a report of an alleged historical sexual assault".
"As the matter is subject to an ongoing investigation, it would be inappropriate to comment further," they said.
On 21 August 2014 Victoria Police announced that no charges would be laid against Shorten.
Note that Shorten was not cleared, rather the OPP advised that there was no reasonable prospect of conviction - based on the evidence and the law that then applied.
Victoria Police then decided not to charge Shorten.
The Jury Directions Act 2015 became law eight months after the OPP's advice.
Compare and contrast Kathy's complaint against Shorten with the complaint against Cardinal Pell.
The Pell Case
In 2016 Victoria Police sent a brief of evidence against Cardinal Pell to the Office of Public Prosecutions. The OPP returned the brief to Victoria Police without recommending charges.
Later, in October 2016 detectives travelled to The Vatican to conduct a recorded interview under caution in which allegations were put to the Cardinal. Cardinal Pell vehemently denied the allegations against him.
Police then submitted a revised brief to the OPP for a second assessment. That second brief also resulted in no firm recommendation that charges be laid.
On 17 May 2017 Victoria Police made this announcement:
Victoria Police can confirm that it has received advice from the Director of Public Prosecutions relating to a current investigation into historical sexual assault allegations," she said.
"As with any investigation it will be a decision for Victoria Police as to whether charges are laid. As this remains an ongoing investigation, we will not be commenting further at this time."
There was no announcement that the OPP had recommended charges be laid against Pell - for the simple reason that the OPP made no such recommendation.
It was up to Victoria Police as to whether Pell would face charges or not. It didn't take them long to decide.
On 29 June 2017 Victoria Police held a press conference to announce it had charged George Pell with historical sexual offences.
Deputy Commissioner Shane Patton said, "Advice was received and sought from the Office of Public Prosecutions, however ultimately the choice to charge Cardinal Pell was one that was made by Victoria Police".
In August 2018 Cardinal Pell was tried in Victoria's County Court before a jury. That trial resulted in a deadlocked or hung jury with no conviction.
In November 2018 Cardinal Pell was retried in the County Court.
The evidence advanced by the prosecution relied entirely on the account of a single accuser, one of the alleged victims.
On 11 December 2018 that second jury found Pell guilty of 5 historical sexual offences against children.
Summary
In similar circumstances, Victoria Police decided to proceed against Pell - but not Shorten. That's now history, but the progress of the Pell case now provides the basis for revisiting the Shorten matter.
The fact of the recent Pell conviction in Victoria on the evidence of a single accuser, along with changes to the law since 2015 means the OPP's 2014 "no reasonable prospect of conviction" advice about Shorten is no longer valid.
If Kathy Sherriff wanted to let the Shorten matter rest, then we would not be having this conversation.
But Kathy continues to suffer because of what happened to her.
There is no shortage of contemporary wisdom about the importance of believing complainants.
That doesn't mean Shorten is guilty. But it must mean that Kathy's complaint be taken seriously.
The question of Shorten's guilt can only be decided by a trial in a court.
And that's exactly what should happen next.
