Legal Insight<\/em> spoke to Stephen Odgers SC, renowned barrister and author of Uniform Evidence Law<\/em><\/a> and the new Uniform Evidence Law 15th<\/sup> Edition<\/a><\/em>, about the changes and their implications. Legal Insight<\/em> advises that the following discussion may be distressing to some. <\/p>\n\n\n\n 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\u2019s Criminal Justice<\/em> 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 \u201cword against word\u201d 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. <\/p>\n\n\n\n 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. <\/p>\n\n\n\n The Evidence Amendment (Tendency and Coincidence) Act 2020<\/em> 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<\/em> and that he \u201cexpected that identical amendments will be made in the other uniform evidence law (UEL) jurisdictions\u201d. <\/p>\n\n\n\n Inferential reasoning concerning tendency and coincidence evidence has frequently been considered dangerous in criminal trials \u201cbecause 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 \u2018inevitable prejudice\u2019,\u201d said the Commissioners, referring to Sutton v The Queen<\/em> (1984) 152 CLR 528; 11 A Crim R 331; [1984] HCA 5. <\/p>\n\n\n\n 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. <\/p><\/blockquote>\n\n\n\n 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 \u201cdoes 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\u201d. 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. <\/p>\n\n\n\n The insertion of s\u202f97A 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\u2019s sexual interest in children will be presumed to have \u201csignificant probative value for the purposes of sections\u202f97(1)(b) and 101(2)\u201d. <\/p>\n\n\n\n Stephen noted that the insertion of s\u202f97A is significant for the prosecution of child sexual assault cases because \u201c[i]f the evidence is admissible it will permit joint trials of multiple complainants [and] that may have a very significant effect on outcome\u201d. <\/p><\/blockquote>\n\n\n\n Section\u202f97A still preserves the court\u2019s power to decide that such evidence lacks \u201csignificant probative value\u201d where there are \u201csufficient grounds\u201d to do so. However, as to what could be considered \u201csufficient grounds\u201d, 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. <\/p>\n\n\n\n He highlighted that, with \u201crespect to s\u202f97A, it is apparent that the courts will be required to engage in a complex and demanding analysis\u201d in deciding whether the tendency or coincidence evidence does not have significant probative value. <\/p>\n\n\n\n One of the more notable amendments to s\u202f94 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\u202f97A, the amendments to s\u202f94 (and the other amendments in the Act) are not restricted to child sexual assault cases although Stephen pointed out that it is likely that \u201cthey will have their biggest impact in such prosecutions\u201d. <\/p>\n\n\n\n This means that once the amending Act commences, the fact that \u201cany principle or rule of the common law\u201d will not be relevant to the admissibility of tendency or coincidence evidence is now a point that practitioners must consider carefully. <\/p>\n\n\n\n Stephen underscored the difference between \u201capplying\u201d and \u201cconstruing\u201d. He reasoned that it would be possible, as an example, to take the common law \u201cinto account when working out what \u2018prejudicial effect\u2019 means and what it means for probative value to \u2018outweigh\u2019 such prejudicial effect\u201d but then not<\/em> taking it \u201cinto account in applying those concepts to a particular factual situation\u201d. <\/p>\n\n\n\n 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 \u201cpossibility\u201d that it may be affected by collusion, concoction or contamination, this would place undue restrictions on the admissibility of tendency and coincidence evidence. <\/p>\n\n\n\n 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 \u201cthe force of that evidence is completely lost.\u201d 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 \u201cnecessitate inadmissibility or separate trials\u201d. <\/p>\n\n\n\n This recommendation was incorporated in the amendment to s\u202f94(b) which directs courts not to consider the \u201cpossibility that the evidence may be the result of collusion, concoction or contamination\u201d with regard to the admissibility of tendency or coincidence evidence. <\/p>\n\n\n\n According to Stephen, the use of the word \u201cpossibility\u201d may be significant as it potentially allows for the exclusion of coincidence evidence \u201cif it is probable<\/em> or likely that there was collusion, concoction or contamination\u201d. <\/p><\/blockquote>\n\n\n\n \u201cSince the probative value of this form of coincidence evidence depends<\/em> 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\u201d, he argued. <\/p>\n\n\n\n One of the final recommendations of the Royal Commission was to amend the test of admissibility in s\u202f101 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\u202f101 has been changed from \u201csubstantially outweighs\u201d to merely \u201coutweighs\u201d but Stephen pointed to the fact there is no settled authority on whether there is a difference if the adverb is removed. <\/p>\n\n\n\n \u201c[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\u201d, he remarked. <\/p>\n\n\n\n The NSW Attorney-General indicated in his Second Reading Speech that the \u201creform would align the language of [s\u202f101 and s\u202f137] with the consistent interpretation\u201d. However, Stephen stressed that because the onus in s\u202f101 of proving that the probative value outweighs the risk of unfair prejudice rests on the prosecution<\/em>, unlike s\u202f137 where the onus rests on the defence<\/em> to prove that the risk outweighs the probative value, \u201cgeneralisations from s\u202f137 are likely to be of limited use\u201d. <\/p>\n\n\n\n For the Royal Commission, altering the test of admissibility was desirable because their research concluded that the \u201crisk of unfair prejudice to the accused arising from tendency and coincidence evidence has been overstated\u201d. However, Stephen directed attention to other academic analysis, published in the Criminal Law Journal<\/a><\/em> and other journals, that has critiqued and challenged that research. <\/p>\n\n\n\n Related: <\/strong>Did the Legislative Reforms and Redress Scheme for CSA Survivors Go Far Enough?<\/a> <\/p>\n\n\n\n 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. <\/p>\n\n\n\n However, whether the amendments formulated from those recommendations will produce the desired results or will, as Stephen opined, \u201crequire considerable appellate review\u201d remains to be seen. Stephen discusses the NSW amendments and the implications in greater depth in the subscription service Uniform Evidence Law<\/em><\/a> as well as the new Uniform Evidence Law 15th Edition<\/em><\/a> which is now available for purchase.<\/p>\n\n\n\n If anything in this article has raised issues for you or if someone you know needs help, please contact: <\/p>\n\n\n\n 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.<\/p>\n","protected":false},"author":101,"featured_media":3703,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"footnotes":""},"categories":[646,648,625],"tags":[110,1414,1413,463,1415],"insight_job_role":[1315,628],"insight_practice_area":[584],"class_list":["entry","author-cindywyn","has-excerpt","post-3701","post","type-post","status-publish","format-standard","has-post-thumbnail","category-legal-commentary-and-opinion","category-legislation-and-case-law","category-research-and-know-how","tag-child-sexual-abuse","tag-coincidence-evidence","tag-evidence-reform","tag-royal-commission","tag-tendency-evidence","insight_job_role-barrister","insight_job_role-solicitor","insight_practice_area-criminal-law","hentry"],"acf":[],"yoast_head":"\nThe Royal Commission\u2019s Findings <\/h2>\n\n\n\n
Section\u202f97A: tendency and coincidence evidence in child sexual assault trials <\/h2>\n\n\n\n
Section\u202f94(a): restriction of common law principles <\/h2>\n\n\n\n
Section\u202f94(b): collusion, concoction and contamination <\/h2>\n\n\n\n
Section\u202f101: probative value \u201coutweighs\u201d risk of unfair prejudice <\/h2>\n\n\n\n
Will there be lasting reform? <\/h2>\n\n\n\n
Need support? <\/h4>\n\n\n\n