On 22 November the NSW Parliament legislated to, among other things, amend the circumstances in which evidence given by someone in the course of a prosecution for certain sexual offences can be adduced in a later prosecution where that person is either a complainant or a witness.
These reforms are part of a larger package that seek to spare vulnerable people “the ordeal of giving evidence multiple times in sexual assault trials.”
The Act introduces two new sections to the Criminal Procedure Act.
The effect of this section is to allow – in proceedings for “prescribed sexual offences” – the admission of evidence from the earlier proceeding in the later prosecutions. The section will apply where a complainant in an earlier proceeding finds themselves in a subsequent proceeding against the same defendant and for acts committed in “related circumstances.” This would include a re-trial where the earlier trial aborted.
The Prosecution may tender “all evidence given by the complainant in the earlier proceedings, including … examination in chief … and any further evidence given on cross-examination or re-examination.”
This evidence is admissible despite anything in the Evidence Act to the contrary provided that notice is given to the court and the defence 21 days before the commencement of the hearing. However, the court in question has the discretion to allow for a shorter notice period. Unsurprisingly given the intent, the evidence is also not subject to the hear-say rule and so may be adduced to proved a fact asserted in the original evidence.
The court has the discretion to reject the evidence if it would ‘unfairly disadvantage’ the defendant, having regard to specifically enumerated considerations including the interest of justice and “any other matter the court thinks relevant”
If evidence is adduced under this provision, the complainant cannot be compelled to give further evidence unless defence satisfies the court that there is a need to clarify some aspect of the original evidence, that there is a need to ‘canvas information or material that has become available since the original evidence,’ or it is otherwise ‘in the interest of justice.’ If a complainant is called pursuant to this sub-section, then they can only be questioned in relation to issues upon which they were called. So if they were called to canvass new material they can’t be asked questions about other things.
This section operates in broadly the same way as cl 297A, except that it applies where the original evidence wasn’t given by the complainant in the proceedings at hand. So in effect the evidence of a complainant in a previous prosecution can be adduced in a subsequent prosecution that has a different complainant. Interestingly, and unlike cl 279A, the section does not specify that the subsequent prosecution must be of the same accused person.
These provisions, when passed, will significantly impact the conduct of prosecutions for sexual offences, significant broadening the circumstances in which tendency evidence will be admissible. This will have a particularly significant impact for historical child sexual offences, which traditionally have been heavily reliant on tendency evidence. See, e.g. Hughes v R.
For a detailed discussion on the contemporary state of case law and legislative reform proposals on tendency/propensity evidence, see David Hamer’s paper “Propensity Evidence Reform after the Royal Commission into Child Sexual Abuse.”