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The Tendency Rule and the Coincidence Rule in child sex offences
Andrew Byrnes Law Group • Sep 06, 2020
In criminal law, the proof of character, reputation, or conduct of a person showing that they could act in a certain way or be in a particular state of mind is called tendency evidence.
Amendments being introduced in the ACT legislative assembly this year seek to institute reforms to the territory’s laws. The bill makes it easier for the prosecution to include tendency evidence in child sexual offence cases. This type of evidence is often excluded from trials since they can prejudice the defendant. These changes to evidence laws aim to support victims of child sexual abuse.
The definition of child sexual offence
Section 55 of the Crimes Act 1900 outline what constitutes a sexual assault on a minor in Canberra law. It states that:
(1) A person who engages in sexual intercourse with another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 17 years.
(2) A person who engages in sexual intercourse with another person who is under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
There is nothing which captures conduct that has ceased to be an offence before the events in the case. The amendment may see the inclusion of a new section relating to the admissibility of tendency evidence in child sexual assault proceedings.
How will the amendment affect current laws?
An experienced criminal lawyer can help clarify how these could affect a defendant’s case. Upon the passing of the bill, courts may have the ability to presume that tendency evidence of sexual interest in children has significant probative value.
It will also presume value if there is evidence that a defendant is likely to act upon such interest. Currently, Section 97(1) of the Evidence Act 2011 says:
Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
The new laws also have implications on the coincidence rule as outlined in Section 98(1) of the same Act. Currently, the rule states that:
Evidence that 2 or more events happened is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
“Sufficient grounds” and “probative value” are the key ideas. In the past, the court needed exceptional reasons for taking tendency evidence into account, as stated in Section 97 and 98 of the Evidence Act. Today, the interpretation of these two terms are geared to provide victims with the best chance possible for them to get relief.
In pursuit of this relief, the court may admit testimony gathered from confessionals. There are also related amendments that criminalise the failure to report possible child sexual assault.
Conclusion
Amendments to ACT law regarding the inclusion of tendency evidence makes it easier for the prosecution to build a case against alleged child sex offenders. Child abuse is a sensitive issue, which makes it essential for courts to reach a just and fair decision for everyone involved.
Matters regarding criminal law and criminal defence are our speciality at the Andrew Byrnes Law Group. We are a Canberra criminal law firm providing exceptional legal advice and representation—book a free conference with one of our criminal lawyers today for more information.
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