Following the Royal Commission into Institutional Responses to Child Sexual Abuse, the Council of Attorneys-General agreed that the Uniform Evidence Acts will be amended to facilitate greater admissibility of tendency and coincidence evidence and the conduct of joint trials in child sexual abuse cases. These changes have been made, as stated in their report, to ensure that the system operates “in the interests of seeking justice for society, including the complainant and the accused”.
Legal Insight spoke to Stephen Odgers SC, renowned barrister and author of Uniform Evidence Law and the new Uniform Evidence Law 15th Edition, about the changes and their implications. Legal Insight advises that the following discussion may be distressing to some.
The Royal Commission’s Findings
The criminal justice system in Australia has often been criticised for its lack of effectiveness in dealing with crimes involving child sexual abuse. According to the Royal Commission’s Criminal Justice report, in prosecutions for child sexual assault offences finalised in New South Wales courts between July 2012 and June 2016, the defendant was not convicted of any child sexual assault offence in 40% of prosecutions, likely because the jury was effectively considering a “word against word” case. The same report also emphasised the social importance of responding to these crimes effectively not only to punish the perpetrators but also more broadly to increase awareness and deter further abuse.
The recommendations by the Royal Commission concerning tendency and coincidence evidence seek to address these issues by allowing for greater admissibility of evidence of other allegations or convictions of child sexual abuse as tendency (the tendency or propensity of the accused to commit the particular offence) or coincidence (the improbability of events occurring coincidentally) evidence.
The Evidence Amendment (Tendency and Coincidence) Act 2020 was developed in response to those recommendations as explained by the NSW Attorney-General in his Second Reading Speech to the Legislative Assembly in February 2020. Stephen noted that the Act makes a number of significant amendments to the NSW Evidence Act 1995 and that he “expected that identical amendments will be made in the other uniform evidence law (UEL) jurisdictions”.
Section 97A: tendency and coincidence evidence in child sexual assault trials
Inferential reasoning concerning tendency and coincidence evidence has frequently been considered dangerous in criminal trials “because they permit a person to be judged by his or her conduct on other occasions rather than by evidence directly or indirectly focused on the subject event, thus giving rise to ‘inevitable prejudice’,” said the Commissioners, referring to Sutton v The Queen (1984) 152 CLR 528; 11 A Crim R 331;  HCA 5.
While there is legislation in all Australian jurisdictions permitting greater admissibility of such evidence than at common law, the Royal Commission considered that this evidence is frequently misunderstood and often under-utilised as a result.
The general assumption that tendency and coincidence evidence is likely to be highly prejudicial to the accused and that juries would attribute too much weight to such evidence was found to be incorrect by the Royal Commission. Underpinning their recommendations to allow greater admissibility of such evidence is the proposition that tendency or coincidence evidence “does not rely on prediction of behaviour [but rather] on proven or alleged behaviour of the accused that has or is alleged to have already occurred”. Clearly, the Commissioners anticipate that the changes would go some way toward reducing the incidences of unwarranted acquittals in prosecutions for child sexual abuse offences.
The insertion of s 97A is specifically directed to tendency evidence and coincidence evidence adduced in child sexual offence prosecutions against a defendant. In the new section, tendency evidence about a defendant’s sexual interest in children will be presumed to have “significant probative value for the purposes of sections 97(1)(b) and 101(2)”.
Stephen noted that the insertion of s 97A is significant for the prosecution of child sexual assault cases because “[i]f the evidence is admissible it will permit joint trials of multiple complainants [and] that may have a very significant effect on outcome”.
Section 97A still preserves the court’s power to decide that such evidence lacks “significant probative value” where there are “sufficient grounds” to do so. However, as to what could be considered “sufficient grounds”, Stephen observed that it has not been defined in the legislation and would be heavily dependent on the individual aspects of each case, particularly as there is no case law available to consult at the present time.
He highlighted that, with “respect to s 97A, it is apparent that the courts will be required to engage in a complex and demanding analysis” in deciding whether the tendency or coincidence evidence does not have significant probative value.
Section 94(a): restriction of common law principles
One of the more notable amendments to s 94 was the restriction of the relevance of common law rules or principles regarding the admissibility of evidence when applying the tendency or coincidence rules to the evidence. Unlike s 97A, the amendments to s 94 (and the other amendments in the Act) are not restricted to child sexual assault cases although Stephen pointed out that it is likely that “they will have their biggest impact in such prosecutions”.
This means that once the amending Act commences, the fact that “any principle or rule of the common law” will not be relevant to the admissibility of tendency or coincidence evidence is now a point that practitioners must consider carefully.
Stephen underscored the difference between “applying” and “construing”. He reasoned that it would be possible, as an example, to take the common law “into account when working out what ‘prejudicial effect’ means and what it means for probative value to ‘outweigh’ such prejudicial effect” but then not taking it “into account in applying those concepts to a particular factual situation”.
Section 94(b): collusion, concoction and contamination
The possibility of collusion, concoction or contamination of coincidence or tendency evidence might be thought to have a direct impact on the probative value of that evidence, particularly in joint trials. However, where the court decides not to admit evidence due to the “possibility” that it may be affected by collusion, concoction or contamination, this would place undue restrictions on the admissibility of tendency and coincidence evidence.
The Royal Commission acknowledged the problematic nature of admitting coincidence or tendency evidence where it becomes apparent during the trial that there was concoction or contamination as “the force of that evidence is completely lost.” Further, it found that the jury may use reverse coincidence reasoning to conclude that none of the offences were proved. Nevertheless, the Commission recommended that the possibility of collusion, concoction or contamination should not “necessitate inadmissibility or separate trials”.
This recommendation was incorporated in the amendment to s 94(b) which directs courts not to consider the “possibility that the evidence may be the result of collusion, concoction or contamination” with regard to the admissibility of tendency or coincidence evidence.
According to Stephen, the use of the word “possibility” may be significant as it potentially allows for the exclusion of coincidence evidence “if it is probable or likely that there was collusion, concoction or contamination”.
“Since the probative value of this form of coincidence evidence depends on an assumption that the witnesses are independent, clear evidence that they are not should plainly be taken into account in assessing the degree of probative value”, he argued.
Section 101: probative value “outweighs” risk of unfair prejudice
One of the final recommendations of the Royal Commission was to amend the test of admissibility in s 101 which weighs the probative value of tendency or coincidence evidence adduced by the prosecution against the risk of unfair prejudice to the defendant. The wording in s 101 has been changed from “substantially outweighs” to merely “outweighs” but Stephen pointed to the fact there is no settled authority on whether there is a difference if the adverb is removed.
“[There are] almost no judgments with respect to the old version [that] turned on the presence of that word and there is a paucity of appellate authority on the significance of the word in UEL jurisdictions”, he remarked.
The NSW Attorney-General indicated in his Second Reading Speech that the “reform would align the language of [s 101 and s 137] with the consistent interpretation”. However, Stephen stressed that because the onus in s 101 of proving that the probative value outweighs the risk of unfair prejudice rests on the prosecution, unlike s 137 where the onus rests on the defence to prove that the risk outweighs the probative value, “generalisations from s 137 are likely to be of limited use”.
For the Royal Commission, altering the test of admissibility was desirable because their research concluded that the “risk of unfair prejudice to the accused arising from tendency and coincidence evidence has been overstated”. However, Stephen directed attention to other academic analysis, published in the Criminal Law Journal and other journals, that has critiqued and challenged that research.
Will there be lasting reform?
Early reports indicated that more than 15,000 survivors of institutional abuse or their families had contacted the Commission while more than 4,000 institutions were reported to the Commission as places where the abuse had occurred. However, in the criminal justice system, crimes of sexual violence, even child sexual abuse have statistically lower reporting rates, lower charging and prosecution rates, fewer guilty pleas and fewer convictions. With more and more reports of historical abuse coming to light, and especially where it was evident that some institutions had harboured the abusers, it is of little surprise that the recommendations of the Royal Commission seek to ensure that the criminal justice system operates in the interests of seeking justice for society as well as the complainant and that victims and survivors of sexual abuse are supported in their quest for justice.
However, whether the amendments formulated from those recommendations will produce the desired results or will, as Stephen opined, “require considerable appellate review” remains to be seen. Stephen discusses the NSW amendments and the implications in greater depth in the subscription service Uniform Evidence Law as well as the new Uniform Evidence Law 15th Edition which is now available for purchase.
If anything in this article has raised issues for you or if someone you know needs help, please contact:
- Lifeline on 13 11 14
- Kids Helpline on 1800 551 800
- MensLine Australia on 1300 789 978
- Suicide Call Back Service on 1300 659 467
- Beyond Blue on 1300 22 46 36
- Headspace on 1800 650 890
- QLife on 1800 184 527