Changes to Law on Prosecuting Sexual Assaults (NSW)
Various figures in the federal parliamentary sphere – including, the Commonwealth’s former first law officer, Christian Porter – have recently been accused of sexual assaults. Simultaneously, more and more sexual assault survivors are coming forward. While the current public attention is certainly a federal political issue, it is the states who hold most of the legislative power when it comes to criminal law. The NSW Attorney-General Mark Speakman, in opening the recent NSW Public Defenders Criminal Law Conference 2021, outlined much that has already changed in this area in his state in the past year and foreshadowed even further legislative amendments to come. This article outlines the coming changes with regard to criminal procedure in New South Wales. The changes being made are almost exclusively aimed at achieving more successful prosecutions of sexual assault allegations.
Tendency and coincidence
The use of tendency and coincidence evidence has long been a controversial issue in criminal law. In NSW, tendency and coincidence evidence is governed by Sections 97 and 98 of the Uniform Evidence Act. These provisions have been increasingly used by prosecutors so that they can adduce evidence of often uncharged acts with a view to convincing the decision-maker that a person had a tendency to commit the act with which they have been charged.
Section 97A – Presumption that tendency evidence has probative value
Following the Royal Commission into Institutional Responses to Child Sexual Abuse, New South Wales has introduced a new section into its Evidence Act (section 97A) allowing greater admissibility of evidence in a criminal proceeding involving allegations of child sexual offences.
The thrust of the change is spelled out at Subsection (2): It is now to be presumed that tendency evidence about the defendant having or having had a sexual interest in children (even if the defendant has not acted on the interest), will have significant probative value.
The effect is to increase the likelihood of its admissibility when the probative value of the evidence is weighed against the prejudice to the defendant of its admission. It now applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, at any other child or at children generally.
The new law is so worded to favour the prosecution that it was deemed necessary to include Subsection (4), which says, “Despite Subsection (2), the Court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.”
The Act then spells out seven particular instances that “are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters”.
The seven matters were all areas that were previously relied on by defence counsel to have tendency evidence ruled inadmissible.
While the ACT did likewise to NSW, the other Uniform Evidence Act jurisdictions (the Commonwealth, Victoria and the Northern Territory) have not.
Presumption of joint trials
Under the changes, a defendant’s right to choose to sever trials (that is, to be able to answer individual allegations individually) has been abolished. NSW has amended the Criminal Procedure Act 1986 to create a presumption for joint trials in matters where an accused person faces multiple alleged offences when the prosecution is to use tendency evidence.
The new Section 29A provides:
“A court must hear and determine together proceedings for 2 or more offences if the offences are alleged to have been committed by the same person, and the offences are charged in the same indictment, or listed for hearing on the same day and at the same place, and the prosecution has given notice that it intends to rely on tendency evidence or coincidence evidence that relates to more than 1 of the offences.”
This new restriction on accused people remains subject to Section 21(2), which provides, “If of the opinion—
(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,
the court may order a separate trial of any count or counts of the indictment.”
A change, taking effect from March 2021, is an amendment that commands that a jury not be directed about the standard of proof regarding tendency and coincidence. That standard is the criminal standard of proof, which is beyond a reasonable doubt, not the civil standard, which is on the balance of probabilities. Not directing juries of the need for the higher standard means there is now a real prospect of evidence being accepted on the lower standard.
Sexual history of complainants in sexual assault cases
Another forthcoming amendment relates to section 293 of the Criminal Procedure Act, which deals with the admissibility of the sexual history of complainants in sexual assault cases. Such history is presently inadmissible, meaning that in certain cases evidence of false allegations by the complainant of other sexual assaults which simply did not occur is excluded from evidence. This is about to change.
The Attorney’s impetus, he said, were the comments of Judge Grant in the District Court case of R v RB  NSWDC 368. There, His Honour found that the evidence disclosed a tendency on the part of the complainant to make false sexual allegations. Of itself, the tendency was found to be significantly probative and admissible. However, it was caught by section 293 and so His Honour declined an application to permanently stay the proceedings.
Judge Grant said, “Parliament could not have foreseen the facts that I am confronted with and the injustice occasioned to the accused. There should be a residual discretion in the court to meet the facts of this case. The Act should be amended to allow the reception of evidence ‘if it is in the interests of justice to do so’.”
That defendant appealed to the Court of Criminal Appeal which dealt with the matter as Jackmain (a pseudonym) v R  150, handed down on 3 July 2020. The CCA ruled Judge Grant was correct in finding that evidence the complainant had made 12 false claims of sexual abuse in the past was inadmissible, despite one case having resulted in her being found guilty of the offence of providing a false report to police.
The Appeal Justices noted also that the NSW Law Reform Commission had stated as far back as 1998 that s293 was a problematic law.
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