Balancing the scales of justice

In its final report in December 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse recommended jurors in child abuse trials be permitted to hear “tendency evidence” and “coincidence evidence”. That would include a defendant’s prior offending or acts for which a defendant had been charged but not convicted, other than acts for which they had been acquitted.

On Tuesday, NSW became the first state to introduce legislation for past offending to be put before jurors in child sexual abuse cases. The legislation also will make it easier for multiple victims to give evidence against the same offender in the one trial setting rather than having to do so in separate, siloed proceedings. Comparable bills are expected in other jurisdictions after agreements between attorneys-general.

The reforms — which eventually may have wide repercussions for trials on other criminal matters such as rape and serious assault if victims’ advocates take up the issue — have been introduced for the best of reasons. That is to increase the conviction rate of child sex offenders. In NSW, about 50 per cent of child abuse matters are ­finalised with a conviction, compared with about 90 per cent for most other crimes, as Yoni Bashan reported on Wednesday.

In his second reading speech, NSW Attorney-General Mark Speakman said the royal commission considered that “if a complainant accuses a particular person of sexually abusing them as a child, this accusation is more likely to be true if the accused has sexually abused other children”. If a jury hearing child sexual offence proceedings accepted the accused had incurred other convictions or allegations, the jury might be satisfied that they proved the accused had a tendency to act in a particular way; for example, to be sexually attracted to young boys and to act on that attraction. “The jury may then reason that this makes it more likely that the accused acted on this tendency,” Mr Speakman said, quoting the royal commission.

As University of NSW law professor Anne Cossins told The Australian, the changes will help give juries “the bigger picture”. That said, attorneys-general should proceed with caution. The legislation should be implemented with care by trial judges and its effects should be monitored closely in all jurisdictions. It overturns accepted practice, honed through centuries of legal and judicial experience. Traditional legal wisdom held that the danger of tendency and coincidence evidence was its potential to create “unfair prejudice” — swaying juries to think that someone with an established tendency to act in a certain way will yield to that tendency whenever the opportunity arises. In that way, a jury might be diverted from proper consideration of evidence before them and assume the accused’s guilt.

The NSW legislation also raises an issue of balance. The purpose of the change is to shift the balance in criminal proceedings in favour of complainants. If this is justifiable on the grounds of transparency, it opens the door to those who believe juries should also have the benefit of an equivalent level of transparency about complainants. Tendency evidence, Mr Speakman said, was about “the character, reputation or conduct of a person … to act in a particular way, or to have a particular state of mind”. Defence barristers, conscious of their clients’ presumptions of innocence, might argue transparency should be even-handed. The criminal record of complainants or, even more so, any track record of lodging vexatious complaints also reflects on their characters and might well warrant consideration by juries.

The five-year royal commission revealed the vast scale of horrific abuse that affected so many children for decades. The commission fielded more than 42,000 calls and 25,000 letters, held more than 8000 private sessions and 57 formal public hearings, and heard from more than 1200 witnesses. Its findings reflected a shameful failing of our society. Legal reform is a must and this bill arises from one recommendation with wide implications. Governments must ensure the scales of justice are balanced between plaintiffs and defendants.