In January 2013, six Commissioners were appointed by the Australian Government to investigate instances of child sexual abuse while under the care of an institution. Since then, the Royal Commission into Institutional Responses to Child Sexual Abuse has received tens of thousands of phone calls, letters and emails. The Commission and its reports have been widely publicised over the last three years.
The Commission’s job is to ultimately make recommendations on how to improve laws and change policy. In the process of doing this, the Commission has encouraged thousands of people to come forward with their own experiences. In particular, the Commission has referred 857 matters to authorities – including the police.
Although the work of the Commission is much-needed, there are several difficulties with prosecuting and defending cases that have had their facts blurred by lengthy delay. Evidence changes or becomes completely unavailable, whether it’s the loss of documents or the passing of a relevant witness. Memories change and the accuracy of any evidence ought to be scrutinised.
Furthermore, commissions of inquiry such as this have a number of coercive powers which abrogate the fundamental and long-standing right against self-incrimination. It is generally argued that such a privilege impedes upon the prosecution’s ability to collect evidence in cases where such evidence is unavailable. However, the privilege against self-incrimination has been described by the Queensland Law Reform Commission as a cardinal principle of our system of justice, a bulwark of liberty, fundamental to a civilised legal system and an integral part of international human rights law. For criminal trials, the starting point is the presumption of innocence and secondly, that the Crown bears the onus of proof. It is concerning that these sorts of commissions undermine these fundamental aspects of our law.
There are many reasons for upholding the privilege against self-incrimination. One reason that will undoubtedly affect the validity of any conclusions drawn by a commission is the reliability of evidence that has been obtained coercively. According to the Australian Law Reform Commission, the quality of evidence is diminished when the privilege against self-incrimination is abrogated. A good lawyer will always warn about the risks of perjury proceedings if a client is summoned to appear and give evidence. Notwithstanding the extent to which a lawyer stresses this risk, a client may still prefer to lie than to expose himself to criminal prosecution. This is especially the case where the subject matter of the inquiry is a serious crime. Where lies are elicited under compulsion, the credibility of the trial system may be compromised by the increased existence of untruthful evidence.
Robertson O’Gorman Solicitors has played a vital role in defending the rights and interests of those that have been prosecuted or investigated as a result of the Royal Commission.
If you are at all concerned, you may seek legal advice from one of our experienced solicitors. We represent clients at all commissions, whether it’s the Crime and Corruption Commission, the Australian Crime Commission or any general commissions of inquiry.