Viw Magazine

Men's Weekly

.

  • Written by Marilyn McMahon, Deputy Dean, School of Law, Deakin University
Shutterstock

The NSW government has just introduced a bill that will, among other significant reforms, make it easier for a jury to be informed about the prior convictions of a person on trial for a sex offence involving a child.

The governments of Victoria, Tasmania, the ACT, the NT and the Commonwealth are likely to introduce similar legislation.

Disclosing evidence of an accused’s prior convictions has always been a difficult area of criminal law, requiring a balance of conflicting interests.


Read more: All about juries: why do we actually need them and can they get it 'wrong'?


Disclosure may demonstrate a propensity to offend in a particular way and therefore be helpful to the prosecution. But it may also prejudice a jury against the accused in an unfair manner.

The reforms proposed in NSW have widespread support among advocates and organisations working with victims of sexual abuse. They are also likely to be supported by the opposition.

But they have evoked a strong response from lawyers who view them as undermining fundamental principles in our legal system – the presumption of innocence and the right to a fair trial.

Why the changes?

Despite numerous changes to laws governing sexual offences in past decades, conviction rates for these offences remain substantially lower than for other types of crimes

There are many possible explanations for this, including the fact these cases often involve acts performed in secret, frequently do not have conclusive forensic evidence and ultimately come down to the word of the victim against the word of the accused.

When the victim is a child, difficulties in describing the assault and giving evidence are also significant.


Read more: To believe or not to believe: child witnesses and the sex abuse royal commission


Noting the low conviction rates – as well as the issue of offenders who have multiple victims – the Royal Commission into Institutional Responses to Child Sexual Abuse recommended that evidence law be amended so jurors could get a more complete understanding of an accused’s past. Achieving this goal required significant reform.

The royal commission recommended jurors in child abuse trials be permitted to hear about the accused’s past convictions for sex abuse. Royal Commission/PR handout

How evidence law works now

A jury in a criminal trial in Australia is not usually told about the criminal history of the accused. In cases where there is no jury, the judge or magistrate is also not permitted to take into account any prior offending when deciding guilt or innocence.

The justification for this restriction is that it prevents the jury, magistrate or judge from being improperly influenced by a defendant’s past. This ensures they restrict their considerations to the evidence presented in the present case.

However, some exceptions already exist relating to credibility and what is known as “tendency and coincidence evidence”.

Tendency evidence can show a person has a propensity to act in a certain way. Coincidence evidence can demonstrate that, because the person has acted in a very similar way in the past, they are likely to have committed the offence for which they are currently on trial.


Read more: We need better jury directions to ensure justice is done


In jurisdictions like NSW that have adopted the uniform evidence law, this type of evidence can only be admitted if it has “significant probative value” (that is, it is highly relevant to the current case) and its value “substantially outweighs” any prejudicial effect for the accused.

Given this high threshold, an accused’s prior offending is not commonly disclosed to a jury before it reaches a verdict.

What will the reforms do?

The reforms will allow more information about defendants to be admitted in trials involving child sex offences. Specifically, the changes will:

  • assist prosecutors to introduce evidence of past crimes by restricting matters that might previously have influenced judges and magistrates to exclude this evidence

  • allow evidence to be admitted if it simply “outweighs” the danger of unfair prejudice, a less demanding test than “substantially outweighs”

  • make it easier to have trials where multiple complainants make allegations (and present similar evidence) of child sexual abuse against the same person

  • create a legal presumption that evidence an accused is sexually interested in children and/or has acted on that interest this will be a very relevant matter in these trials.

Collectively, the reforms will strengthen the prosecution of these offences.

Concern about the changes

These changes are intended to make trials fairer for victims of child sexual abuse and increase the rate of convictions.

The royal commission referred to empirical research conducted on its behalf to support its view this type of reform could occur without unfair prejudice to a defendant.


Read more: Victims of child sex abuse still face significant legal barriers suing churches - here's why


Some lawyers have endorsed reform. Others argue the changes will undermine the presumption of innocence, remove the task of proving guilt beyond reasonable doubt from the prosecution and may have the effect of denying the accused a fair trial.

They are concerned this could result in innocent people going to jail.

Defence lawyers are worried if juries know a person committed a similar crime in the past, they will assume he or she probably committed the crime for which they are currently on trial, as well.

Or a jury may simply believe the defendant deserves to be punished for past offending, irrespective of the evidence in the case before them. Critics think this is especially likely to occur in child sexual abuse cases, which evoke a strong community reaction.

Defence lawyers also believe the reforms will improperly shift the focus in a criminal trial from the prosecution having to prove all the elements of a crime to consideration of whether the accused is the sort of person likely to have committed the offence.

The proposed changes undoubtedly reflect a significant shift in the criminal law. They demonstrate that while concern about a fair trial traditionally focused on the rights of the accused, contemporary reforms are increasingly grounded in concern the criminal justice system be fair for victims.

Marilyn McMahon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Authors: Marilyn McMahon, Deputy Dean, School of Law, Deakin University

Read more https://theconversation.com/juries-will-soon-learn-more-about-people-accused-of-child-sex-crimes-will-it-lead-to-fairer-trials-132517

Financial Planning For Couples

Why Every Couple Should Talk About Money And A Will (Before It’s Too Late) When you’re in a new, exciting relationship, it’s easy t...

Navigating Relationships While Living with Depression

Living with depression can feel like carrying an invisible weight—one that not only affects how you experience the world but also how yo...

Choosing the Right Vinyl Flooring Suppliers for Your Home or Business

When it comes to selecting flooring options that combine durability, style, and affordability, vinyl flooring stands out as a top choice. ...

Why Food Manufacturing Cleaning Services Are Essential for Safety and Quality

The complexity of food production environments demands specialised cleaning approaches that go beyond regular janitorial work. This is whe...

The Importance of Choosing the Right Industrial Electrician Melbourne for Your Business

When it comes to powering large-scale operations and complex machinery, commercial electrical services are not enough. Industrial environm...

What to Expect During a Property Settlement After Separation

Separation is a challenging and emotional time, and one of the most complex aspects can be the division of property. However, understandin...

Designing the Ideal Healthcare Environment with a Professional Medical Centre Fitout

When it comes to healthcare spaces, functionality, hygiene, and patient comfort take top priority. An intelligently designed medical centr...

Stay Comfortable Year-Round with Ducted Cooling Melbourne

When the temperature starts to rise, having a reliable and efficient cooling system becomes a priority. With unpredictable weather and sud...

Best Practices for Content Ownership and Tagging Across Departments

Image by kaboompics on Freepik The bigger and more complex content ecosystems grow, the more valuable ownership and tagging become. In ent...

Understanding Public Liability Insurance Australia: What You Need to Know

Image by rawpixel.com on Freepik The necessity of public liability insurance in Australia is that it acts as a financial safeguard for busi...

How HID Proximity Cards Improve Workplace Security Without Slowing Down Access

In today’s workplaces, security is non-negotiable, but so is speed. Companies are under pressure to protect their people, property, and ...

Unlock Business Insights Faster with Power BI Tools

In this digital age where data drives the consumer landscape, businesses are shipping huge amounts of data every day. To remain competit...

Why Split System Installation Is a Smart Choice for Home Climate Control

Temperature control is essential for comfort, and when it comes to efficient, versatile cooling and heating, a split system is one of the ...

The Ultimate Guide to Door Replacement: Everything You Need to Know

Image by freepik Sure, swapping out a door is a fairly easy task, but it requires careful consideration of options for materials, designs...

Common Web Development Issues Perth Businesses Face (and How Agencies Fix Them)

Image by freepik Let's be honest, in the bustling heart of Perth's business scene, a website that's not up to scratch is like trying to he...

Life With Clear Aligners: 10 Small Changes That Make a Big Difference

Image by tonodiaz on Freepik Clear aligners have transformed orthodontics, offering a nearly invisible way to straighten teeth without the...

Choosing the Right Hair Loss Treatment for Your Needs

Millions of people experience hair loss globally, and it can be a major cause of emotional discomfort and self-consciousness. Hair loss ca...

Cardboard Display Boxes: An Effective Solution for Retail Presentation

In the competitive world of retail, how products are presented can be just as important as the products themselves. Cardboard display boxe...

Why Hiring a Skilled Shopify Web Developer Can Transform Your Online Store

Shopify has become one of the most popular e-commerce platforms due to its ease of use, powerful features, and scalability. However, creat...

Selling a Home Left 1 in 3 Aussies in Tears, Survey Finds

New research on selling property found that more than 1 in 3 people who sold a property in the past two years admitted to crying at some poi...