"There is a genuine risk of innocent people being convicted of crimes they have not committed."
Liberty Victoria strongly opposes the Victorian Government’s recently announced reforms to the law of tendency and coincidence evidence, which it has announced will be based on a Bill before the New South Wales Parliament - the Evidence Amendment (Tendency and Coincidence) Bill 2020 (NSW).
Those reforms, if enacted, would amongst other things:
- Create a presumption of admissibility for certain categories of tendency evidence in proceedings involving child sexual offences;
- Prohibit the Court, when considering the admissibility of such evidence, from having regard to whether such evidence may be the result of collusion, concoction or contamination; and
- Lower the threshold for the admissibility of tendency and coincidence evidence in all cases, not just proceedings involving child sexual offences.
Liberty Victoria understands that the Bill has been motived, in part, by the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. Liberty Victoria acknowledges the devastating harm caused by sexual offences against children, the need to ensure that complainants are treated with dignity and respect throughout the criminal process, and the need to ensure that properly admissible evidence is placed before juries as fact finders.
However, there is a real danger that by relaxing the threshold for admissibility of tendency and coincidence evidence, and indeed creating a presumption of admissibility in certain cases, that this may impact on the fair trial of accused persons and undermine the presumption of innocence. There is a genuine risk of innocent people being convicted of crimes they have not committed.
The Courts have long recognised the dangers posed by tendency evidence. By necessity, tendency evidence results in fact finders considering events other than the circumstances of the given offence. There is a real danger that tendency evidence can lead to what has been described as “rank propensity” reasoning by fact finders, including juries. That kind of reasoning holds that because an accused person has engaged in certain criminal or other discreditable conduct in the past, he or she is the kind of person that would have committed the given offence before the Court. There are obvious dangers with that kind of reasoning, and by lowering the threshold for the admissibility of tendency and coincidence evidence, there is a real danger that innocent people will be convicted based on their past conduct rather than direct evidence concerning the offending conduct.
Liberty Victoria holds the position that the prosecution should retain its current onus, in all cases, to demonstrate why such tendency or coincidence evidence has significant probative value and is therefore admissible. There should not be categories of cases where such evidence is presumed to be admissible. It should not fall on the defence, at the first hurdle, to contend why such evidence is inadmissible. Further, Liberty Victoria notes that over the past three years there have been important judgments by the High Court of Australia that have clarified the admissibility of this kind of evidence and which have, in effect, made in less difficult for the prosecution to adduce such evidence in appropriate cases. Those supporting such reforms should be required to demonstrate why such reforms are necessary in light of the recent jurisprudence of the High Court of Australia.
Further, Liberty Victoria submits that judicial officers should be entitled, when considering the admissibility of such evidence, to consider whether such evidence may be the result of collusion, concoction or contamination. In the High Court judgment of R v Bauer (2018) 92 ALJR 846, the Court held that there was a category of case where the risk of collusion, concoction or contamination was so great that it could affect the probative value of the evidence, namely in circumstances where it would not be open to the jury rationally to accept the evidence. The reforms, if enacted, would appear to remove that exception. It is an important function of judicial officers, in appropriate cases, to consider whether such evidence should be placed before the jury at all. That is a key function of the role of the judicial officer, as gatekeeper, in ensuring a fair trial of an accused person.
Finally, Liberty Victoria notes that the proposed reforms would reduce the threshold of admissibility of tendency and coincidence evidence in all criminal cases, not just those proceedings involving child sexual offences. In short, the current requirement is that such evidence cannot be used against the accused unless the probative value of the evidence “substantially outweighs” any prejudicial effect it may have on the accused. The reforms, if enacted, would provide that such evidence is admissible if “the probative value of the evidence outweighs the danger of unfair prejudice to the defendant”, removing the requirement that the probative value “substantially” outweigh the prejudicial effect. Given the dangers of this kind of evidence, and in particular propensity reasoning, Liberty Victoria favours the retention of the status quo as providing a proper balance between the admissibility of such evidence in appropriate cases and the right of an accused person to a fair trial.
For comment, please contact Liberty Victoria on 03 9670 6422 or firstname.lastname@example.org.