Written by James Arthur
I INTRODUCTION
The Criminal Justice Legislation (Sexual Violence and Other Matters) Amendment Act 2024 ('the Act’) recently amended the Evidence Act 1977 (Qld) by inserting a new Part 7A.[1] This article examines several key changes under Part 7A and critically reflects on their appropriateness. It posits that while the amendments are appropriate for child sexual abuse matters, they should not apply to all criminal proceedings as they currently do.
II THE MISCHIEF
In 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse identified the law of evidence as a barrier to just outcomes in child sexual abuse cases. In its Criminal Justice Report,[2] the Commission noted that two key evidential issues create this mischief. Firstly, child sexual abuse cases overwhelmingly rely on direct as opposed to circumstantial evidence. Therefore, they are often ‘word against word’ cases, making it especially tough for juries to be satisfied beyond reasonable doubt.[3] Secondly, there are noticeably low conviction rates in child sexual abuse matters compared to other offences. Unless one believes that there are a disproportionate number of ‘false claims’, one must accept that there are unjustified acquittals.[4] Importantly, the Commission maintained that these unjustified acquittals were caused by the exclusion of propensity evidence.[5] The Commission recommended lowering the bar for propensity evidence in both Queensland and Australia’s Uniform Evidence Law (‘UEL’) jurisdictions
Four years later, in 2021, the Queensland Government established the independent Women’s Safety and Justice Taskforce. Tasked with examining the experiences of women and girls across the criminal justice system, the Taskforce published two reports in 2022. The WSJT’s second report echoed the 2017 Commission’s findings about unjustified acquittals. Among other things, the Report voiced stories of victim-survivors being unable to tell their whole story because of restrictive rules governing propensity evidence.[6] The Taskforce ultimately recommended adopting the UEL jurisdiction’s two-limb test for propensity evidence.[7]
The 2024 amendments to the Evidence Act give effect to the Taskforce’s recommendations.[8]
III THE CHANGES
A Propensity Evidence
The law of evidence is principally concerned with establishing guardrails around when material can be deemed admissible as ‘evidence’ in court. One crucial ‘guardrail’ provides that evidence is not admissible if it only suggests that a party has a propensity to engage in conduct of the kind in issue .[9] Propensity evidence is essentially material that is circumstantial or indirect evidence of a fact in issue in a particular case.[10] At its core, it presupposes a person's 'propensity' to behave in a certain way by reference to the way they can be proved to have acted previously. It includes ‘coincidence’ evidence—which relies on two or more events and the circumstances in which they occurred—and ‘tendency evidence’, which relies on an accused’s general character, reputation or conduct.[11] Propensity evidence can simultaneously be the most probative evidence against a person and the most prejudicial. It can go right to the heart of the facts, and just as equally be used by the jury to convict an innocent person.
B Abrogating and Aligning
The new part of the Evidence Act, Part 7A, abrogates the common law test for the admissibility of propensity evidence in criminal proceedings and aligns the law with Australia’s UEL jurisdictions. Queensland courts previously applied the case of Pfennig to determine the admissibility of propensity evidence in criminal proceedings. According to Pfennig, propensity evidence was not admissible if it showed only that the accused has a disposition to commit a crime.[12] Instead, propensity evidence was admissible if there was no rational view of the evidence consistent with the accused person’s innocence. Only if there was no such view could the judge safely conclude that the probative force of the evidence outweighed its prejudicial effect.[13] This was a high bar.
Part 7A abrogates Pfennig by inserting a two-limb test. This test lowers the threshold for tendency and coincidence evidence to be admitted in criminal proceedings. It firstly requires that the evidence has ‘significant probative value’ and, secondly, that the probative value of that evidence outweighs the danger of unfair prejudice to the defendant.[14] Part 7A also introduces a rebuttable presumption that tendency evidence about a defendant’s sexual interest in children will have 'significant probative value' for the purposes of the two-limb test.[15] This presumption only operates in criminal proceedings where a child sexual offence is a fact in issue.[16] Part 7A also lowers the standard of proof applicable to propensity evidence. Section 129AK provides that propensity evidence does not itself need to be proved beyond reasonable doubt. This rule does not apply, however, if the court is satisfied that there is a significant possibility that a jury will rely on the propensity evidence as being essential to its reasoning in reaching a finding of guilt or the evidence is adduced as both tendency evidence or coincidence evidence, and as proof of an element or essential fact of a charge.[17] These three key changes—arguably the most significant under Part 7A—bring the Evidence Act in line with the UEL jurisdictions.[18]
IV IS PART 7A THE REMEDY?
If Part 7A is further amended to limit its application to child sexual abuse matters, it will strike a just and appropriate balance between upholding an individual’s right to a fair trial and remedying the injustices of the previous legal regime..
The claims of the Commission and Taskforce are compelling arguments in favour of Part 7A. They are strengthened by the view that aligning Queensland with the UEL jurisdictions bolsters the rule of law by bringing certainty and predictability to the law of evidence.[19] They are also strengthened by the claim that Part 7A improves the admissibility and cross-admissibility of evidence at joint trials, something which will eventually improve the efficiency of Australia’s legal system.[20]
However, these arguments struggle to outweigh the case against Part 7A. An equally compelling claim is that juries will use propensity evidence to engage in unfair reasoning.[21] By considering evidence relating to the accused’s conduct that only indirectly bears on the present charge, the jury risks adopting the ‘forbidden reasoning’ of “Once a thief, always a thief”,[22] which effectively places unnecessary weight on that indirect evidence. This reasoning creates an ‘undue suspicion against the accused’ which undermines the presumption of innocence and risks wrongful convictions.[23] The right of a person to be presumed innocent of an offence until a court has determined, beyond reasonable doubt, that they are guilty, is a basic principle of the common law,[24] and the right to a fair trial.[25] This concern was addressed by the Commission which, after commissioning a mock jury study, found a low risk of unfair reasoning in the context of propensity evidence and child sex offences.[26] Despite this, numerous authors have questioned the efficacy of the Commission’s methodology,[27] and the low risk of prejudice in general.[28] As such, the question of prejudice to the accused remains unsettled. Another compelling claim is that by relaxing the standard of proof for propensity evidence, s 129AK undermines the presumption of innocence. This concern, however, is largely exaggerated. As mentioned earlier, there are safeguards deliberately incorporated into s 129AK that require propensity evidence to be proved beyond reasonable doubt when that evidence is highly probative—being either likely to be a crucial strand in a jury’s finding of guilt, or relating to an essential fact or element of the offence.
On balance, Part 7A is too restrictive and should be amended to apply only to child sexual abuse matters. Such an amendment would strike a just and appropriate balance, but only when two arguments—in addition to those outlined by the Royal Commission above—are considered. Firstly, sexual offences are particularly insidious crimes compared to other crimes. Studies show that abuse has long-lasting effects,[29] and that many survivors ultimately become offenders.[30] This public health concern necessitates derogation from established rights, including the right to a fair trial.[31] It would be unfair to similarly limit a defendant’s right to a fair trial for a relatively minor crime like theft or property damage. Secondly, any outstanding concerns about unfair jury reasoning should be met by the reminder that safeguards mitigate against such reasoning. Section 130 permits judges in certain circumstances to exclude evidence and direct the jury about to what extent they can consider evidence, and the accused always retains the power to reasonably challenge evidence.
These additional arguments show that if it is amended to apply only to child sexual abuse matters, Part 7A will serve as a just and appropriate way to improve outcomes in relation to the prosecution of child sexual abuse offences in Queensland. In any case, the case against Part 7A remains strong. So long as Part 7A remains applicable to all criminal proceedings, it ought to be referred to the Queensland Law Reform Commission for review.[32]
V CONCLUSION
The Evidence Act amendments largely align Queensland’s law of evidence with the approach of other Australian jurisdictions to propensity evidence. These amendments support the rule of law and will improve efficiency in the administration of justice. While they do impose heavy restrictions on an accused’s right to a fair trial, public health concerns and the various checks and balances in the Evidence Act make these amendments just and appropriate in the context of child sexual abuse offences.
[1] The Bill was tabled by the Attorney-General on 21 May 2024. The Act was passed with amendment on 10 September 2024.
[2] Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report – Parts III-VI, 14 August 2017) (‘Royal Commission Criminal Justice Report’).
[3] Ibid 411.
[4] Ibid 622.
[5] Ibid 634.
[6] Women’s Safety and Justice Taskforce, Hear Her Voice (Report 2, Volume 2, 21 November 2022) 388.
[7] Ibid 327.
[8] Queensland Parliament, Hansard, Legislative Assembly, 21 May 2024, 1622 (Yvette D’Ath, Attorney-General).
[9] LexisNexis, Halsbury’s Laws of Australia (online at 21 September 2024) Evidence, ‘Similar Facts’ [195-870].
[10] Ibid.
[11] Evidence Act (n 8) s 129AB.
[12] Pfennig v The Queen (1995) 182 CLR 461, 484 (‘Pfennig’).
[13] Ibid 486.
[14] Evidence Act (n 8) ss 129AD(1), s 129AF(1).
[15] Ibid s 129AE.
[16] Ibid.
[17] Ibid s 129AK.
[18] The two-limb test and the rebuttable presumption are already in place in almost all uniform evidence law jurisdictions, including New South Wales, the Australian Capital Territory, Tasmania and the Northern Territory. The equivalent of s 129AK is featured in the Criminal Procedure Act 1986 (NSW) and, in any case, merely reflects the common law rule in Shepherd v The Queen (1990) 170 CLR 573.
[19] The rule of law is an assumption which our Constitution depends on for its efficacy: Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193.
[20] Royal Commission Criminal Justice Report (n 15) 527, 544.
[21] Bar Association of Queensland, Submission No. 13 to Queensland Parliament, Criminal Justice Legislation (Sexual Violence and Other Matters) Amendment Bill 2024 (17 July 2024) 4.
[22] R v Boardman AC 421, 453. As per Lord Hailsham.
[23] Pfennig (n 25) 512. As per McHugh J in dissent.
[24] LexisNexis, Halsbury’s Laws of Australia (online at 22 September 2024) Civil and Political Rights, ‘C Right to a Fair Trial’[80-1620].
[25] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UTS 171 (entered into force 23 March 1976) (‘ICCPR’) art 14.
[26] Royal Commission Criminal Justice Report (n 15) 624.
[27] The following articles critique the Royal Commission’s methodology vis-à-vis the mock jury study: Jill Hunter and Richard I Kemp, ‘Proposed Changes to the Tendency Rule: A Note of Caution’ Criminal Law Journal (2017) 41(5) 253 and Peter M Robinson, ‘Joint Trials and Prejudice: A Review and Critique of the Report to the Royal Commission into Institutional Child Sex Abuse’ Monash University Law Review (2017) 23(3) 723.
[28] Tom Percy and Jessikah Niesten, ‘Propensity and Tendency Evidence: Is it Worth the Risk of an Unfair Trial? Precedent (2022) 48(172) 4.
[29] Patrick O’Leary, Scott D Easton, and Nick Gould ‘The Effect of Child Sexual Abuse on Men: Toward a Male Sensitive Measure’ Journal of Interpersonal Violence (2017) 32(3), 423. The abstract of this study provides a literature review pointing towards the severe effects of child sexual abuse on men.
[30] Australian Institute of Criminology, Trends & issues in crime and criminal justice (Report, No. 440, June 2012) <https://www.aic.gov.au/sites/default/files/2020-05/tandi440.pdf>.
[31] Statement of Compatibility, Criminal Justice Legislation (Sexual Violence and Other Matters) Amendment Bill 2024 14.
[32] This recommendation echoes the submission of Legal Aid Queensland to the relevant Bill. See the following citation: Legal Aid Queensland, Submission No. 5 to Queensland Parliament, Criminal Justice Legislation (Sexual Violence and Other Matters) Amendment Bill 2024 (4 July 2024) 15.