The law itself protects serial child sex abusers
The English rule against pattern evidence (similar facts) has made it difficult to convict organised criminals and serial sex offenders for 118 years.
People in law enforcement have asked Australian governments to introduce a US exception to the rule for 29 years, without success. Charges laid against a former Catholic priest in NSW on October 18 prompted me to send the following to Premier Barry O’Farrell, Police Minister Mike Gallacher, and Justice Minister Greg Smith on October 23.
I received letters thanking me for my interest, but I will be pleasantly surprsied if the law is changed. This is what I wrote:
ref. serial sex offenders; abolition of the 1894 rule against similar facts
Dear Premier and Ministers,
You may recall that 17 months ago (18 May 2011) I made a submission inviting your Government to bring down Rico-type legislation.
RICO effectively eliminates the judge-made rule which conceals evidence of “similar facts”, i.e. evidence of a pattern of criminal acts.
I appreciate that drafting RICO is complicated, but a stroke of the pen could eliminate the rule against similar facts tomorrow. Recent events make its abolition even more urgent.
In July 2012, Strike Force Glenroe began to investigate claims of sexual abuse by Catholic priests in NSW, and claims that elements of the church covered up such abuse. The first charges were laid on October 18, when a former priest was alleged to have committed offences against three girls.
One consequence of the rule against similar facts is that judges may rule that an alleged serial sex criminal should receive a separate trial for each victim.
For example, Natasha Wallace reported in The Sydney Morning Herald of 2 July 2004:
“Brother … has faced eight [separate] trials on child sex abuse charges. Eight times, including yesterday, he has been acquitted, with none of the jurors ever told of the other allegations against him …
Jurors at each trial, before Judge Megan Latham at the NSW District Court since last November, were therefore unaware of the extensive allegations against Brother [M] … ‘It becomes one person’s word against another’, one complainant said yesterday.”
With every good wish, etc
Evan Whitton is a legal historian. Dr Robert Moles (LLB Hons Belfast, PhD Edinburgh) said his fourth book on the law, Our Corrupt Legal System: Why Everyone Is a Victim (Except Rich Criminals), “is one of the most important books I have ever read on the common law legal system. [It] should be required reading on Introduction to Law courses in all law schools”.
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