Tendency Evidence: Concerns Court of Appeal Ruling Could Thwart Child Abuse Convictions

By Sarah Farnsworth
ABC News
October 3, 2014

http://www.abc.net.au/news/2014-10-03/concerns-child-sex-ruling-could-thwart-convictions/5789952

A recent Victorian Court of Appeal ruling has sparked concerns a clamp down on the way child abuse cases are handled could thwart convictions.

In June, three Court of Appeal justices ruled only cases that are "remarkably" similar would go before the same jury, making it harder for groups of victims to band together.

For cases to be heard together, the court needs to allow what is known as tendency evidence – which is used to prove a person's tendency to act in a certain way.

In the case of sexual abuse, it can be used to establish predatory behaviour.

It was used successfully in the Sydney trial of Hey Dad! star Robert Hughes and in the UK trial of Australian entertainer Rolf Harris.

Associate Professor David Hamer from the University of Sydney Law School said Victoria's interpretation on the use of tendency evidence bucks the trend.

"Most other Australian jurisdictions have intervened. They have attempted to lower the threshold of admissibility to make it easier for these kinds of cases to be heard with joint trials," he said.

"The Victorian Court said, 'We don't like the way the New South Wales Court of Appeal is going. We think they've lowered the threshold too far and we are going to maintain it at a higher standard.'"

Trial separation could weaken some cases: police

The Court of Appeal decision has already led to the retrial in Victoria of a twice-convicted priest who is alleged to have abused multiple boys.

The complainants had their cases separated.

The ABC understands a number of judges disagree with the Court of Appeal's approach.

Victoria Police Assistant Commissioner Stephen Fontana said the issue of inconsistencies in law across Australia needed to be looked at.

"It's very hard to find that corroboration, but when you speak to a lot of victims, you might find there is a lot of corroboration – even in terms of the conduct and the type of offending committed," he said.

"What we do find is [that] when we do charge some offenders with historical matters, it gives others who have been abused by the same offender the courage to come forward."

Assistant Commissioner Fontana said the separation of trials could weaken some cases.

"We might have to review each particular matter individually," he said.

"It can it can make it extremely difficult for the victims because they are standing alone.

"It might cause them to have second thoughts about proceeding. On some occasions it may also weaken our case and we might have to review each particular matter individually."

Perpetrators rights being protected: lawyer

Lawyer Angela Sdiris said the matter needed to be considered by the Royal Commission into the Institutional Response to Child Sexual Abuse.

"We do seem to be seeing, in these cases, its the rights of the alleged perpetrator that is (sic) being protected," she said.

But Victoria Law Institute's Criminal Division chairman, Sam Norton, said tendency evidence could prejudice trials.

"There is a genuine risk of unfairness in these types of situations, where an accused person can be found guilty by a jury simply succumbing to the weight of numbers," he said.

"Individual cases need to be looked at in the individual settings."

Pam Krstic, from the Melbourne Victims Collective, which has helped more than 70 victims of child sexual abuse, said the laws should be changed.

"Why should it be different in Victoria to other places if they can try people together in NSW why not here in Victoria," she said.

Victorian Attorney-General Robert Clark said the issue needed to be looked at on a national level, adding that he would raise it with Victoria Police and relevant agencies.