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EVIDENCE LAW REFORM

Published date: Friday, 28 June 2019

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Attorney General Mark Speakman today advocated for historic reforms nationally to enable greater admissibility of tendency and coincidence evidence in child sexual assault proceedings.

“We can never undo the evils perpetrated in the past, but we can ensure that our criminal justice system provides a fair and effective response to child sexual abuse. I commend the survivors who have bravely fought to achieve a safer future for children,” Mr Speakman said.

The reforms, developed by a NSW-led national working group in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, were discussed by the Council of Attorneys-General (CAG) meeting in Adelaide today.

Last year, 91% of defendants in NSW criminal proceedings were found guilty of an offence. For child sexual assault offences, the conviction rate was only 60%. The Royal Commission found that ‘there are unwarranted acquittals for child sex abuse prosecutions’, including because of the exclusion of important tendency and coincidence evidence.

“This is one of the most significant reforms in response to the Royal Commission. We need to enable juries to consider relevant, compelling evidence in child sexual abuse prosecutions, including the evidence of multiple complainants,” Mr Speakman said.

The proposed reforms to the Uniform Evidence Law would implement the Royal Commission’s objective of facilitating greater admissibility of tendency and coincidence evidence in child sexual assault proceedings.

A new rebuttable presumption would ensure evidence that a defendant has, or has acted on, a tendency to have a sexual interest in children is presumed to have ‘significant probative value’. Targeted legislative guidance, based on the findings of the Royal Commission, would help dispel misconceptions that have minimised the perceived value of this evidence in the past.

Judges would be required to exclude tendency or coincidence evidence about a defendant if its probative value does not outweigh the danger of unfair prejudice to the defendant.

Additional reforms would include a presumption in favour of joint trials in child sexual assault prosecutions where there are multiple victims and the prosecution is seeking to lead tendency or coincidence evidence.

The Australasian Parliamentary Counsel’s Committee will now draft a model bill for CAG’s consideration later this year.

A CAG Working Group will also now consider the Royal Commission’s recommendations regarding the exclusion of confessional privilege in laws requiring the reporting of child abuse and report back to CAG within three months.

NSW has led the nation in implementing responses to the Royal Commission, overhauling child abuse laws and investing more than $570 million to help prevent child abuse and improve support for survivors. NSW has introduced substantial civil litigation reforms and was also the first State to pass legislation allowing its participation in the National Redress Scheme.

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