[TW: This article references sensitive topics, including sexual assault and child abuse]
In recent years, a cloud of debate has shrouded the laws of sexual assault. The historic allegations against George Pell and Christian Porter have sparked calls for evidentiary and procedural reforms. Proponents demand reform in favour of complainants. Sceptics warn that further reform will erode the rights of the accused. In the ensuing discussion, we examine two contentious areas of reform: Sean discusses tendency and coincidence evidence (“T&C”), and Jayarupi analyses the standard of proof.
T&C is a fraught area of law. Hailsham LJ aptly described the area as a ‘pitted battlefield’. Since 2017, the High Court has heard four appeals in relation to T&C. The Crown commonly relies upon T&C in sexual assault trials, as a powerful weapon of circumstantial evidence.
Tendency evidence is used to show that the accused has a tendency to do certain things. In other words, the evidence shows a pattern of behaviour. In a sex trial, the evidence usually comprises allegations from multiple complainants. Those allegations are used to show that the accused has a tendency to have a sexual interest in particular victims, and a willingness to act upon that interest. The jury can then infer that the accused committed each offence.
Coincidence evidence is used to prove that, because multiple allegations are so similar, it is improbable they occurred coincidentally. In other words, we reason: “It is no coincidence that the accused faces so many similar allegations. He must have committed each of them.”
The Current Law
T&C is inadmissible unless it has significant probative value. The evidence must make it significantly more likely that a fact in issue (an issue in dispute) is proven. In historic sex trials, that issue is usually whether the crimes occurred.
Where the Crown adduces T&C, its probative value must also substantially outweigh its prejudicial effect. In relation to probative value, tendency evidence must strongly prove the tendency alleged. Coincidence evidence must be very similar.
In relation to prejudicial effect, the question is whether the jury might misuse the evidence in an impermissible way. For instance, where a jury sees multiple similar allegations, it may simply assume each allegation is true, rather than properly assessing the evidence.
The Impetus for Reform
There are two principal motivations for the reforms to the T&C rules:
1. The Prejudice of T&C is Perceived to be Exaggerated
Traditionally, the courts considered that T&C was highly prejudicial. As Mason CJ, Deane, and Dawson JJ opined in Pfennig v The Queen, that prejudice is ‘of a high order’. Whereas, the Royal Commission into Institutional Responses to Child Sexual Abuse contends that the prejudice of T&C is ‘overstated’. The Commission references research that juries commonly return different verdicts on different charges. One possible inference is that juries follow directions, properly scrutinise the evidence, and disregard the prejudice of T&C.
However, those criticisms are not without limitation, and have been criticised. Indeed, the studies were conducted on mock trials. The atmosphere of a mock trial is inimical to a real trial. Further, there are other possible explanations for differing verdicts. First, that the verdicts are unreasonable or cannot be supported having regard to the evidence. Secondly, that the verdicts are inconsistent. Finally, that the jury engaged in impermissible compromise, out of an innate sense of mercy. Accordingly, the fact that juries return differing verdicts is inconclusive evidence that they disregard prejudice. The underlying vice is that we cannot predict what occurs in the jury room.
2. Greater Cross-Admissibility of T&C evidence
The second primary motivation for reform is to facilitate the cross-admissibility of T&C in child sexual assault trials. That intention is a political one; greater cross-admissibility of T&C leads to more joint-trials. Where T&C is cross-admissible, a joint-trial is inevitable. Research suggests that joint trials result in more convictions. Indeed, a jury is more likely to believe multiple complainants than a single complainant alone.
On 10 June 2020, the Evidence Amendment (Tendency and Coincidence) Bill 2020 (NSW) received royal assent. The Victorian Parliament has foreshadowed similar reforms. I will examine two contentious areas of the Bill.
Section 97A(2) provides that a tendency to have a sexual interest in children and/or to act on that interest is presumed to have significant probative value. This is intuitive because sexual misconduct against a child inevitably proves a tendency to have a sexual interest in children, and a willingness to act upon that interest. The two core elements of the tendency are present – sexual offending against a child. Curiously, however, the provision only applies where the commission of the offence is in issue (s 97A(1)). Therefore, it does not appear to apply where the identity of the offender is in issue.
Section 98(2A) provides that coincidence evidence includes:
“…evidence from 2 or more witnesses claiming they are victims of offences committed by… a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue…”
Parliament intends that s 98(2A) codify improbability of similar lies (IOSL) reasoning, a creature of the common law. In essence, the reasoning holds that it is unlikely multiple complainants would bring such strikingly similar allegations unless they were telling the truth.
Curiously, the IOSL compels an analysis of concoction. Indeed, the risk of concoction destroys the essence of the IOSL, as it suggests complainants are lying. Yet, paradoxically, the Act holds that the possibility of concoction is irrelevant to the admissibility of T&C.
The Implications of the Reforms
The reforms counterbalance the notorious forensic difficulties of the Crown in historic sex trials. Indeed:
evidence commonly derives from the complainant alone;
corroborative evidence (e.g.: DNA and eyewitnesses) is often absent, if not deficient; and
the effluxion of time renders memories infallible, and vulnerable to inconsistency.
In response, the reforms culminate a fundamental shift in favour of the Crown. For instance:
Since the common law, three High Court decisions, and two legislative amendments, have relaxed the T&C rules.
A joint trial is presumed where multiple sex charges appear on the indictment.
Jury directions favourable to the accused (e.g.: Longman and Crofts) have been abolished.
Directions favourable to the Crown (e.g.: delayed complaint) have been introduced.
Child/cognitively impaired complainants can give pre-recorded evidence (though this adds little, as a jury may connect better with a complainant in the courtroom).
Ultimately, T&C must maintain a balance between the public interest and the rights of the accused. The scales cannot tip too far. That balance is difficult to strike and will bedevil the appellate courts for years to come. We turn now to the standard of proof.
The Standard of Proof
The Current Law
In Australia, the presumption of innocence provides that an accused person is innocent until proven guilty. The Crown bears the burden of proving that the accused committed the elements of the offence.
The burden of proof comprises a legal and evidential burden. The legal burden requires the Crown to persuade the jury of the elements of the offence. The evidential burden requires the Crown to raise sufficient evidence on an issue, so that it may be put to the jury.
This leads us to the standard of proof - the Prosecution must prove each element of the offence beyond reasonable doubt. That is, the jury must find with near certainty that the defendant committed the offence. If there is even a slight reasonable doubt regarding the guilt of the accused, or the arguments of the Prosecution, the accused will be acquitted.
This is a higher standard than that of civil matters, which are assessed ‘on the balance of probabilities’.
There are exceptions to this general rule when it comes to defences. When raising self-defence, duress, or sudden or extraordinary emergency, the accused has the onus of proving the evidential burden by showing that there is evidence which suggests a reasonable possibility of the existence of facts that would establish these defences. . However, the legal burden remains with the Prosecution. If the accused satisfies the evidential burden, the Prosecution must still prove beyond reasonable doubt that the elements of the relevant defences are not satisfied.
The Impetus for Reform
It is evident that the standard of proving the legal and evidential burden ‘beyond reasonable doubt’ places a heavy burden on complainants. Critics of the current system argue that, due to the nature of sexual assault cases, this high standard of proof is impractical and contributes to it being almost impossible to sustain a conviction.
Indeed, the following factors contribute to the difficulty in sustaining a sexual assault convictions:
Sexual assault cases often occur in ‘he said, she said’ circumstances. That is, the complainant’s word conflicts with that of the accused.
There is rarely physical or medical evidence.
Delay in complaint, or no complaint at all, are common. The latest Australian data shows that most sexual assaults are not reported to the police, with the most recent estimates suggesting that approximately 87% of victims do not report their experience.
As most sexual offences occur in private or domestic settings, and are often committed by a person known to the victim or in a relationship with the victim. There are rarely eye-witnesses.
As a result, many cases do not make it to trial (there being no reasonable prospect of conviction). Indeed, under 9% of sexual assault instances reported to the police in Victoria lead to a criminal conviction in court. As such, it can be very difficult to adduce the evidence required, and satisfy the legal requirements, to establish guilt.
The high standard of proof in criminal matters seeks to address the risk of wrongful conviction.
A finding of guilt in a criminal matter can lead to harsh and life-altering consequences, specifically the restriction of a person’s liberty through imprisonment. As a society, we value personal freedom and autonomy. The law enshrines the belief that imposing a restriction on those rights should only occur if we find it certain, beyond reasonable doubt, that the accused is guilty. This necessarily means that it is possible that certain people who are guilty are not found guilty by the courts, because the law prefers to ensure no innocent citizens are punished, as opposed to ensuring every criminal is found guilty at the expense of also punishing those who may be innocent.
Moreover, the standard of beyond reasonable doubt exists to check the power of the State; it protects the rights of the defendant against the Prosecution, which generally has significantly more resources and the power of the State behind it.
It is evident that the existence of such a high standard of proof for establishing criminal liability protects and upholds society’s values of ensuring the freedom of innocent individuals, and the right to a fair and unbiased trial against the State’s powers. The suggested reform, to reduce this high standard of proof to something lower than ‘beyond reasonable doubt’, for the evidential or legal burden or both, would compromise these values and increase the likelihood of the punishment of innocent people. Thus, it may not be the most effective avenue for creating better outcomes for victims of sexual offences.
Due to the nature of the criminal justice system, civil trials may offer a higher chance of compensation to victims because the standard of proof is only required to be on the ‘balance of probabilities’. However, a civil trial does not condemn the actions of the offender, nor does it effectively punish this behaviour. As sexual offences are crimes under the Crimes Act 1958 (Vic), it is a failing of the system if criminal courts cannot appropriately address them. Alternative reforms are necessary to achieve these purposes in a way that does not compromise the integral values of the criminal justice system.
Image: Lukas Coch/AAP
 See, eg, David Hamer, ‘The Case for Principled and Practical Propensity Evidence Reform’ (2020) 94 Australian Law Journal 239, 239.
 See, eg, Pallavi Singhal, ‘Change to child sex abuse law could tip the balance against accused: lawyers’, The Age (Web Page, 26 February 2020) <Change to child sex abuse law could tip balance against accused: lawyers (smh.com.au)>.
 DPP v Boardman  AC 421, 445 (Hailsham LJ).
 R v Bauer  HCA 40; Johnson v The Queen  HCA 48; McPhillamy v The Queen  HCA 52; Hughes v The Queen (2017) 344 ALR 187.
 Evidence Act 2008 (Vic) ss 97(1)(b) and 98(1)(b).
 Hughes v The Queen (2017) 263 CLR 338, 356  (Kiefel CJ, Bell, Keane, and Edelman JJ) (‘Hughes’).
 Evidence Act 2008 (Vic) s 101.
 Hughes (n 6) 362  (Kiefel CJ, Bell, Keane, and Edelman JJ).
 PNJ v DPP (2010) 27 VR 146, 148 .
 IMM v The Queen (2016) 257 CLR 300, 334 (Nettle and Gordon JJ).
 (1995) 182 CLR 461, 483 (Mason CJ, Deane, and Dawson JJ).
 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report: Preface and Executive Summary, November 2017) 98.
 See, eg, Jane Goodman-Delahunty, Annie Cossins, and Nathalie Martyschuk, Jury Reasoning in Joint and Separate Trials of Institutional Child Sexual Abuse: an Empirical Study (Report for the Royal Commission into Institutional Responses to Child Sexual Abuse, May 2016) 266.
 See, eg, Cindy Cameronne and Wyn Diong, ‘Evidence Reform: Discussing the Royal Commission’s Recommendations’, Thomson Reuters (Web Page, 29 June 2020) <https://insight.thomsonreuters.com.au/legal/posts/tendency-and-coincidence-evidence-reform-discussing-the-royal-commissions-recommendations>.
 Criminal Procedure Act 2009 (Vic) s 276(1)(a).
 Tyrrell v The Queen  VSCA 52 .
 MacKenzie v The Queen (1996) 190 CLR 348, 367–8, 370.
 New South Wales, Parliamentary Debates, Legislative Assembly, 25 February 2020, 1911 (Mark Speakman, Attorney-General and Minister for the Prevention of Domestic Violence).
 Goodman-Delahunty, Cossins, and Martyschuk (n 13) 96.
 Hamer (n 1) 246.
 New South Wales, Parliamentary Debates, Legislative Assembly, 25 February 2020, 1917 (Mark Speakman, Attorney-General and Minister for the Prevention of Domestic Violence).
 DPP v Boardman  AC 421, 444 (Hailsham LJ).
 Hughes v The Queen (2017) 344 ALR 187; IMM v The Queen (2016) 257 CLR 300; R v Bauer  HCA 40.
 Crimes Act 1958 (Vic) s 398A (repealed); Criminal Procedure Act 2009 (Vic) s 194.
 Criminal Procedure Act 2009 (Vic) s 194(2).
 Jury Directions Act 2015 (Vic) ss 40, 54.
 Ibid ss 52–3.
 Criminal Procedure Act 2009 (Vic) s 369.
 Crimes Act 1958 (Vic) s 322I(1).
 Ibid s 322I(2).
 Elise Kinsella, ‘Keely has Helped Thousands of Sexual Assault Survivors, but only knows Two who've seen their Abuser Jailed’, The ABC (Web Page, 14 March 2021 <https://www.abc.net.au/news/2021-03-14/conviction-rates-for-sexual-assault-australia-calls-for-change/13230870>.
 ‘Attrition of Sexual Offence Incidents across the Victorian Criminal Justice System’, Crime Statistics Agency, (Webpage, 2 February 2017) <https://www.crimestatistics.vic.gov.au/research-and-evaluation/publications/attrition-of-sexual-offence-incidents-across-the-victorian>.
Jayarupi Pahala Vithana is a third year Bachelor of Laws/Bachelor of Arts student majoring in Human Rights at Monash University. She is a volunteer Paralegal at Anika Legal and is passionate about creating a more equitable legal system by improving access to justice for disadvantaged groups. Jayarupi also hopes to use her law degree to be involved in progressive law reform, climate policy and international human rights.
Sean Bricknell is a Judge’s Associate at the County Court and a law graduate from Monash University. Whilst at the court, he has specialised in both commercial and criminal trials, interlocutory applications, and admissibility hearings. Most recently, he has been involved in a number of highly contested rulings on the admissibility of evidence. Before coming to the court, Sean worked for a prominent criminal barrister and Queen’s Counsel in trials and higher court appeals. Following his time at the court, Sean aims to pursue his passion for particularly complex and intellectually challenging areas of the law in both the criminal and commercial spheres.