Published: 03 March 2020
Author: Ryan Carlisle Thomas

NSW leads way in reforms to evidence for child sex abuse cases

The New South Wales Government has introduced new legislation which will, in child sex offence cases, make it easier to bypass laws which have historically disallowed the presentation of past convictions as evidence at trial.

Tabled in the parliament on 25 February, the Evidence Amendment (Tendency and Coincidence) Bill 2020, will amend the Evidence Act 1995 in relation to tendency evidence and coincidence evidence for cases heard in New South Wales.

Victoria is expected to follow suit.

Tendency or “propensity” evidence is evidence that is used to prove that someone has a tendency to act in a particular way. Coincidence evidence is “similar fact” evidence that is used to demonstrate that a person is more likely to have committed an offence because they have acted in a comparable way in the past.

The NSW Bill is aimed at child sex offence trials and means that it will now be easier for jurors to be informed about the prior convictions of an offender who is on trial for child sex offences. As it still stands in Victoria and many other states, jurors are not often informed about an accused person’s prior convictions unless the weight of the evidence is seen to have such a significant probative value that would outweigh any prejudicial effect to the accused person.

The Royal Commission into Institutional Responses to Child Sexual Abuse (“the Commission”) argued that tendency and coincidence evidence was highly relevant and that it was often unfair for abuse survivors to have it excluded, meaning it was survivors of abuse who did not get a fair go rather than those who were accused of abuse. See the Royal Commission into Institutional Responses to Child Sexual Abuse website: Criminal Justice report: Tendency and coincidence evidence and joint trials.

The NSW Bill was sparked by the Criminal Justice Report prepared by the Commission.

The report, which released 85 recommendations aimed at reforming the Australian criminal justice system, talked at length about the need for reform of the laws governing the admissibility of tendency and coincidence evidence in prosecutions for child sexual abuse offences.

The report notes on page 71: “Tendency or coincidence evidence is particularly important in child sexual abuse prosecutions which are, typically, ‘word against word’ cases. We have examined a number of cases in which juries have been denied the opportunity to hear accounts that give the true picture of what is alleged to have happened. We are satisfied that there have been unjust outcomes in the form of unwarranted acquittals because of the exclusion of tendency or coincidence evidence.”.

Victoria is expected to introduce similar legislation. See The Age: Jurors will be told about paedophiles' prior convictions under law change.

RCT Law supports these law reforms and we are hopeful that Victoria and the other Australian states and territories will follow suit promptly.