Jenny Leong speaks on the Evidence Amendment Tendency and Coincidence Bill

Greens Member for Newtown, Jenny Leong MP has spoken in support of the Bill which broadens acceptable evidence in child sexual abuse cases. Ms Leong also raised the point that this change would also be beneficial in sexual assault cases involving women.


Ms JENNY LEONG (Newtown) (16:04:27): I speak on behalf of The Greens on the Evidence Amendment (Tendency and Coincidence) Bill 2020 and offer our support for the bill. The bill, as we know, will enable greater admissibility of tendency and coincidence evidence, such as evidence about an accused person's tendency to have a sexual interest in children. The bill provides by a new section 97A that in a trial relating to sexual offences against children, tendency evidence about the defendant's sexual interest in a child or children or acting on sexual interest in a child or children is presumed to have significant probative value. This is a rebuttable presumption if the defence can prove the evidence does not have significant probative value. The reforms will also lower an additional threshold for the prosecution to use tendency and coincidence evidence against the defendant.

As others have outlined in their contributions, evidence was presented to the child abuse royal commission about many criminal cases where evidence of a person previously offending against children was ruled inadmissible in the courts due to concerns that it may unfairly prejudice the case against that person. Many who have made contributions to the bill have acknowledged the courage of those who came forward during that royal commission to share horrendous, horrific and traumatic stories of injustices against them. It is a credit to their bravery, courage and willingness to attempt to ensure that those kinds of horrific incidents do not happen to others in our community. They shared and relived their trauma in order to see significant changes made to laws in New South Wales and around the country.

New South Wales and other uniform evidence jurisdictions agreed to a model bill at COAG in November 2019. This national and State approach demonstrates to those people that the contributions they made had significant value in changing the laws. Hopefully others will be prevented from ever going through what those people went through but, if they do, perpetrators of those offences on children will be treated appropriately. The royal commission made a specific recommendation that common law principles or rules that restrict the use of similar fact or propensity evidence should be abolished. The royal commission also made a recommendation that prosecutors should be able to rely on evidence of a defendant's prior convictions or charges, except if acquitted, in relation to child sexual assaults. Commissioner Robert Fitzgerald said:

Over many years, Australia's criminal justice system has failed to provide adequate justice for survivors of child sexual abuse, in part because of the unnecessary exclusion of tendency and coincidence evidence in criminal proceedings …

Following the Royal Commission's comprehensive inquiry, and in the context of alarmingly low conviction rates for child sexual assault offences, we were convinced of the need for change.

The Greens and I strongly support the changes to the bill along those lines, but I ask members to listen to the commissioner's words relating to alarmingly low conviction rates and the need for change. While he was referring in this instance specifically to child sexual assaults, I suggest that sexual assault offences against women in this context should also be the focus of this Chamber. I foreshadow that The Greens intend to move an amendment in this place that would seek to review the way those laws operate over potentially a two-year time frame. We seek consideration of expanding those provisions to address the incredibly low conviction rates for other types of sexual assault offences, particularly offences against women.

In most of the examples provided as reasons for recommendations along these lines, the perpetrator and the victim or the survivor are in a private setting and it is often one person's word against another. We are not suggesting any rash movement into expanding this just yet, but it is hard not to see that the reasons for introducing this legislation include the challenges of the private nature of those offences, the low conviction rate and the issue of it being one person's word against that of another. All of those descriptors—while they have emerged from the evidence of the royal commission into child abuse—could equally be used to describe the situation with sexual offences against women. The Greens foreshadow that we will move an amendment along those lines during the consideration in detail stage of the bill to allow us to consider that in light of those changes.

Obviously, we would prefer not to have another royal commission to establish why there are low conviction rates for sexual assault and sexual offences against women. We believe that we can learn from and, more broadly, use lessons from the royal commission to assist in other areas where there are low conviction rates and the circumstances are possibly quite similar in terms of power imbalances, the private nature of the offences and it being one person's word against that of another. I acknowledge the fact that New South Wales is leading the way in this matter. We support the proposed change to the law that will remove barriers to justice for survivors of child sexual assault.

On behalf of Mr David Shoebridge, one of my colleagues in the upper House, I acknowledge that The Greens may wish to raise some issues around the technical drafting of the proposed bill and whether it will achieve the desired outcomes. Our amendment may seek to allow for a consideration of those. As we have heard from the Attorney General, this amendment bill takes steps to make significant changes. I think we would all agree that those changes intend to be for the better, but we also need to make sure the legislation is working in the way that it is intended.

In its deep consideration of this issue as part of the royal commission it was found that the prejudice to the accused from tendency and coincidence evidence had previously been overstated and the actual risk was likely to be minimal. The current test in the law for admissibility was found to be too harsh. It was found that the law as it stands prevents joint trials being held even in cases where such trials would be in the interest of justice. The royal commission further recognised that, because child sexual offences are generally committed in private and with no eyewitnesses or other evidence, it can be harder for judges and juries to be satisfied beyond reasonable doubt. Credible evidence of other allegations or convictions of child sexual abuse committed by the accused can be valuable evidence to allow a determination on the facts.

I acknowledge again how great an achievement it is for people to make the tough decision to give evidence to a royal commission, not knowing how that evidence will be taken and not knowing if the personal trauma and pain they have to go through to make that contribution will result in any change. It is a credit to those people that their contributions to the royal commission are bringing about change that is being supported in a bipartisan, cross-party way. We are attempting to use those recommendations in the best ways. I honour the courage of those who made those contributions. I remind people that sometimes people listen and things change as a result. People should not give up and think that those systems cannot change or that broken things cannot be fixed. It is important that we have hope and that people know their contributions can make change in the community and the laws that provide us with the kind of world we live in.

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