Proposed criminal trial evidence reforms could jail the innocent: lawy

19th Dec 2016

Proposals by the Royal Commission into child abuse to weaken the evidence rules and reduce the protections for the accused could irreparably undermine the rule of law in Australia, the Australian Lawyers Alliance (ALA) said today.

The Royal Commission into Institutional Responses to Child Sexual Abuse has circulated two draft bills that would radically alter the way in which ‘tendency and coincidence’ evidence is used in criminal trials in Australia. ‘Tendency and coincidence’ laws currently require that trial evidence be highly relevant to establishing guilt, and not create unfair prejudice towards the accused.

ALA spokesperson and barrister, Dr Andrew Morrison SC, is concerned that such a move could have broad and unintended consequences.

“In seeking justice for the victims of institutional child abuse we must ensure that we do not undermine the fundamental guarantee of a fair trial for everyone,” Dr Morrison said.

“The Royal Commission is doing invaluable work by uncovering the flaws in institutional responses to child sexual abuse that have allowed these horrific crimes to flourish. It has also made some very valuable recommendations, including in relation to limitation periods and a redress scheme for survivors of abuse.

“However, the reforms proposed in these draft bills would seriously undermine the right to a fair trial in Australia. There are very real risks that such reforms would lead to convictions and prison sentences for innocent people,” Dr Morrison said.

Dr Morrison said the bills proposed by the Royal Commission would apply to all crimes, not just those of child abuse.

“We understand that the Royal Commission is responding to a need that it has identified through extensive hearings. Convictions for child abuse, and sexual assault generally, are notoriously difficult to obtain. Balanced against the interests of victims in securing convictions, however, must be the right of us all not to be convicted of crimes we have not committed.” Dr Morrison said.

“These reforms would apply to people accused of all crimes. The answer to challenges in convictions for child abuse is not to undermine fundamental fair trial guarantees for everyone.”

Tendency and coincidence evidence can currently be used in criminal trials. The prosecution must show that the evidence is particularly relevant before it can be admitted into evidence. If using the evidence would lead to unfairness for the accused, however, it cannot be introduced.

“The fact is that evidence of a ‘tendency or a coincidence’ is not evidence that the accused is guilty of the crime they have been charged with. Tendency and coincidence evidence can be misunderstood by juries as proving something that did not actually happen,” Dr Morrison said.

Dr Morrison added that the draft bills would only require that the tendency or coincidence evidence be relevant, which is a lower threshold than the current standard. They would also remove the rule that the evidence be excluded if the accused can show that it will lead to unfair prejudice.

In its submission to the Royal Commission, Victoria Legal Aid pointed out that “[t]he Commission’s research shows that tendency and coincidence evidence is a powerful form of evidence which significantly increases conviction rates. Therefore, in most cases it will reach the threshold of significant probative value [currently required] … Any further reduction of thresholds around the admission of such evidence risks imbalance that could lead to injustice and wrongful convictions.”

“While we fully support the Royal Commission and the invaluable work that it is doing, in this instance it has gone too far,” Dr Morrison said.

“Reforming evidence laws is outside of its terms of reference and the proposed bills present a serious risk to the Australian legal system,” Dr Morrison said.

Note: The proposed bills can be found here:

Draft Bills:

Media release:

Tags: Access to justice