Page 1473 - Week 06 - Thursday, 2 July 2020
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Consequently, the royal commission found that “making the actus reus of the offence the relationship rather than the individual occasions of abuse, provides the best opportunity to charge repeated or ongoing sexual abuse in a manner that is more consistent with the sort of evidence a complainant is more likely to be able to give”. The amendments to this offence provision give operation to these royal commission findings and are informed by the decision of the ACT Court of Appeal. The royal commission recognised that the language of “relationship” “does not sit easily with the exploitation in child sexual abuse offending. However, it may help to emphasise that the actus reus is the existence of the relationship and not particular underlying acts.”
The changes to this section introduce a definition of “relationship” which is very broad in terms, to refer to the way in which the perpetrator and complainant are connected, rather than to connote any particular class or kind of relationship. And while the offence retains its retrospective operation, the provision has been amended to clarify that the sentence imposed must not exceed relevant maximum penalties that applied at the time of the offending. The bill also inserts a new provision so that where an indictment includes an offence against this section, as well as charges for the sexual acts which make up the offence, an offender may not be sentenced consecutively for those different charges. This bill also introduces amendments to tendency and coincidence evidence provisions in the Evidence Act, which align with a model bill developed by a Council of Attorneys-General working group.
That was done in consultation with stakeholders across the nation and agreed to by the Council of Attorneys-General in December last year. The royal commission was satisfied that tendency and coincidence evidence admissibility laws need to be changed to facilitate more admissibility and cross-admissibility of that kind of evidence in child sexual abuse trials. The commission noted that “courts have assumed for many years that tendency and coincidence evidence is likely to be highly prejudicial—that is, very unfair to the accused. They have assumed that juries will place too much weight on this evidence, assuming that the accused must be guilty because he is the sort of person who commits that offence.”
However, several considerations led the commission to conclude that those assumptions are wrong. This included the 2016 jury reasoning research conducted by experts, which showed that juries treat tendency and coincidence evidence carefully, and not in a way that unfairly prejudices the accused. In many respects, the amendments made by this bill codify existing common law about this type of evidence. They also incorporate the royal commission’s findings and they reflect the nature of their recommendations in respect of tendency and coincidence evidence, enabling appropriate admissibility of this kind of evidence in child sexual abuse proceedings while ensuring the accused’s right to a fair trial remains protected.
The Royal Commission Criminal Justice Legislation Amendment Bill 2019 introduced a suite of reporting laws, imposing a duty on adults who receive information about child abuse to report that abuse. Importantly, that legislation did not provide an exemption for information received under the seal of the confession. The royal commission emphasised that it is important that adults proactively report
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