A historic reform to NSW law will see victims of child sexual assault get a “fairer go in court”, in a nationwide first

The Evidence Amendment (Tendency and Coincidence) Act 2020 is designed to allow evidence about an accused person’s sexual interest in children, including the evidence used in prior convictions, to be considered by the jury in child sexual assault proceedings.

The announcement comes in response to the Royal Commission into Institutional Responses Child Sexual Abuse who conducted a major empirical study into how juries reason when deliberating on multiple counts of child sexual abuse. The Commission used mock juries and a trial involving charges of child sexual abuse in an institutional context to determine whether conducting joint trials and admitting tendency evidence infringe on a defendant’s right to a fair trial. The study involved 90 mock jury deliberations with more than 1,000 people participating as jurors and examined the results in a simulated joint trial of child sex offences involving multiple complainants versus separate trials involving single complainants.

The Chair of the Royal Commission, Justice Peter McClellan AM, said that child sexual abuse offences are generally committed in private, with no eyewitnesses, and in some cases there will be no medical or scientific evidence capable of confirming the abuse.

“Where the only evidence of the abuse is the complainant’s evidence, it can be difficult for the jury to be satisfied beyond reasonable doubt that the alleged offence occurred,” Justice McClellan said. 

“There may be evidence that confirms some of the surrounding circumstances, or evidence of first complaint, but the jury is effectively considering the account of one person against the account of another.

“The assumptions underlying the common law and legislative rules governing the admissibility of tendency and coincidence evidence and the availability of joint trials have been largely untested."

The Royal Commission found the exclusion of evidence about an accused person’s sexual interest in children, including the evidence used in prior convictions led to cases of “unwarranted acquittals” in child sexual offence proceedings. The study also found that verdicts were not based on impermissible reasoning or unfair prejudice to the defendant. This suggests that any fears or perceptions that tendency evidence – whether presented in a separate trial or a joint trial – is unfairly prejudicial to the defendant are unfounded. It is therefore in the interests of a fair trial to have all available evidence before a jury.

It is hoped that the greater chance of conviction with the introduction of this legislation in NSW will encourage more victims to come forward.

Attorney-General Mark Speakman said this was an important achievement for survivors of child sexual assault.

“Today marks a significant milestone in our fight against the scourge of child sexual abuse,” Mr Speakman said.

“The Evidence Amendment (Tendency and Coincidence) Act 2020 will enable more evidence about an accused person’s sexual interest in children to be considered by the jury in child sexual assault proceedings.

“While these reforms cannot undo the crimes of the past, or take away a survivor’s pain, they will [help deliver] justice for survivors across NSW,” Mr Speakman said.

NSW is the first jurisdiction in Australia to introduce the Model Bill and now leads the way for other Uniform Evidence Law states and territories to follow in its footsteps. Mr Speakman called on other states and territories to introduce the same reforms.

We call on the Victorian Government to follow in the footstep of its NSW counterparts in introducing similar laws in allowing evidence used in prior convictions, to be considered by the jury in child sexual assault proceedings. Whilst we understand that no outcome can ever undo the destruction of families and the associated grief for survivors, we believe that the introduction of a similar law will provide survivors of institutional abuse a greater opportunity to achieve justice, a fair trial and an outcome that is more representative of the trauma and pain suffered.

By David Longano
Solicitor at Angela Sdrinis Legal