The ACT's top judge has described having a "feeling of unease over what juries make of allegations, particularly in sexual assault cases".
Chief Justice Lucy McCallum made the remarks on Friday, when she opened the 2024 Jury Research and Practice Conference held by the Australasian Institute of Judicial Administration.
What would the judicial officer be interested in researching, were she given the chance?
"I want to understand why in the 2020s, jurors find it so hard to believe allegations of sexual assault," she told an ACT Supreme Court room filled with lawyers and academics.
"I know that's a controversial statement."
While perhaps controversial in the eyes of some, Chief Justice McCallum has shown she is unafraid to be outspoken about sexual assault trials and the role of judges.
Earlier this year, she told The Canberra Times that courts could be doing more to support complainants and find a better balance between conducting fair trials and evidence testing.
"There's an intractable problem in that our overriding task and function is to ensure an accused person has a fair trial. So, that's immutable," she said in May, later repeating the sentiment in an ABC Radio interview.
Chief Justice McCallum also said it was up to judges to disallow cross-examination questions that were "misleading, confusing, offensive, annoying, harassing, humiliating, or repetitive".
"So why aren't we doing that? Because we're all scared of not giving an accused a fair trial," she previously said.
Canberra barristers were reportedly "up in arms" about the remarks, which they claimed undermined the presumption of innocence.
But her comments were supported by an ACT sexual violence legal service, the head of which said rape myths were still pervasive in courtrooms.
On Friday, the judge questioned what might affect trial juries being able to comprehend and believe allegations of sexual assault.
Is it the impact of "culture wars" or are jurors affected by the "extremely traumatic" nature of evidence, exacerbated by the evolution of technology, presented in such trials?
Chief Justice McCallum said she had experienced working with ACT jurors at "two very different times", including as a prosecutor many years ago when she was "not alone in loving Canberra juries".
But the judge made clear she loved working with juries as a judge, describing the experience as "richly rewarding".
Among several researchers and experts, the territory's Justice Belinda Baker also briefly spoke at Friday's conference.
The judge agreed with a previous speaker, who had said: "Jury directions are a weak mechanism for addressing misconceptions and rape myths in rape trials."
Such directions are delivered by judges at the conclusion of criminal trials to help guide jurors, on things like delayed complaints, demeanour and an accused person's right to silence, in accordance with the law.
Justice Baker said evidence from experts would be preferable to directions to explain issues like why certain misconceptions are wrong, or the two could be delivered in conjunction.
"[Experts] can explain why people don't complain, why children might have ambivalent feelings towards a perpetrator, why a person might freeze or become floppy or start to become compliant to perpetrator behaviour," she said.
The judge also agreed the timing of those directions was important after a conference speaker suggested they could be delivered at key moments during trials rather than simply at the conclusion.
"At the end of the day, they are incredibly complex and some of the directions are a struggle to understand even if you are an experienced lawyer," Justice Baker said.
- Support is available for those who may be distressed. Phone Lifeline 13 11 14; Canberra Rape Crisis Centre 6247 2525.
