T Henning

Psychological Explanations in Sentencing Women in Tasmania

This paper presents the findings of a study which investigated the extent to which female lawbreaking was attributed to psychological disturbance in written comments made by Tasmanian Criminal Court judges in passing sentence and in pre-sentence reports prepared for the Tasmanian Criminal Court. It was found that female deviance was viewed predominantly as a function of psychological disturbance and that while other factors were also relied upon to explain womens criminal conduct those factors tended to be discounted or subsumed into psychological explanations. It was also found that the evidence in support of psychological dysfunction in the cases examined was often weak or questionable. The implications of these findings are considered, in particular, the possibility that other significant aspects of the case may be ignored and that over-emphasis upon psychodynamic explanatory factors may produce a distorted view of the offenders and their behaviour.

Lies, personality disorders and expert evidence: New developments in the law

The High Court decision in Farrell v The Queen1 has determined that psychiatric and psychological evidence is admissible about the effect of mental conditions outside the realm of ordinary experience upon witness reliability. The practical effect of the decision is to give a fillip in sexual assault trials in particular to the defence tactic of calling expert evidence to suggest that because a complainant suffers from a personality disorder she or he may not be worthy of a jurys trust. The authors argue that while the decision is not surprising from a legal point of view, it may have many important repercussions for the conduct of sexual assault trials — to the detriment of complainants.

Speculation uncorroborated opinions and forensic expertise in child sex prosecutions

The High Court decision in HG v R (1999) 160 ALR 554 highlights a problematic form of expert evidence in child sex prosecutions. The Court strictly construed rape shield provisions to exclude evidence by a psychologist that a complainant was not sexually assaulted by the accused but had been assaulted some years before by her stepfather. More problematic, though, is the dalliance by some members of the Court with a notion that had apparently been repudiated in previous State and New Zealand decisions that there is a field of expertise that can diagnose whether sexual abuse has occurred from the behaviour of children subsequent to the alleged sexual assault. The most significant aspect of the decision, however, may be the preparedness by some members of the Court to construe the existence of expertise by reference to the processes by which expert opinions emerge from specialised knowledge within a discipline. Such an approach allows analysis of the substance and methods of a theory or area of expertise in ...

Ameliorating vulnerability arising from involvement with criminal courts

Purpose The purpose of this paper is to provide an overview of major mechanisms instituted in Australia to ameliorate the experience of vulnerability arising as a corollary of involvement in Australian criminal courts as defendants, victims or witnesses of crime or family members/friends of such people. Design/methodology/approach The paper begins by providing an overview of two major categories of vulnerability within the criminal justice system – generally experienced vulnerability arising as a corollary of involvement in Australian criminal courts and attribute-based vulnerability. It focusses on the former locating it within a human rights framework. It then outlines dominant responses to this form of vulnerability. Finally it considers the potential for the Court Network program to achieve a more integrated approach to ameliorating this form of vulnerability. Findings The paper takes the view that major responses to systemic vulnerability in the criminal justice system fall short of adequately managing this form of vulnerability. It suggests that the Court Network model has the potential to address some lacunae in other responses and importantly to provide a gateway to them. Originality/value It explores an aspect of vulnerability that is now infrequently addressed and considers one option to supply lacunae in other major responses that has not yet been brought into the scholarly discussion in any significant way.