30 / 6 / 2023

Tendency evidence in NSW child sexual assault matters (Section 97A Evidence Act)

On 1 July 2020, section 97A was inserted into the Evidence Act 1995 (NSW) (the Act). This was in response to the Royal Commission into Institutional Responses to Child Sexual Abuse. While the ability to adduce tendency evidence has long been available under s 97 of the Act, Parliament’s objective in legislating s 97A was to allow greater admissibility of tendency evidence in child sexual offences and to allow for joint trials for multiple complainants to make allegations of child sexual abuse against the same accused.

Section 97A applies only to a criminal proceeding where the commission by the defendant of an act that constitutes or may constitute a child sexual offence is a fact in issue.

Traditionally, there has been a two-limbed test for the admissibility of tendency evidence. The first limb required the court to be satisfied that the tendency evidence sought to be led had significant probative value. To satisfy the second limb, the probative value of the evidence had to substantially outweigh the prejudicial effect on the accused. Although the two limbed test ostensibly remains, the legislative amendments have essentially created a rebuttable presumption that tendency evidence in matters involving child sexual offences is admissible.

Rebuttable presumption

Tendency evidence about a defendant’s sexual interest in a child or a defendant acting on a sexual interest is now presumed to have significant probative value under s 97A(2). The new section removes the judicial discretion to admit tendency evidence in these circumstances. Rather it is presumed admissible unless a judicial officer exercises their discretion and is satisfied that there are significant grounds that the evidence is not significantly probative as outlined under s 97A(4).

Under s 97A(5), there are seven factors set out that the Court is not to take into account when deciding if evidence is significantly probative of an alleged offence unless exception circumstances exist, namely:

  • Different sexual tendencies;
  • Different circumstances;
  • Different personal characteristics;
  • Different relationships;
  • Differences in particular features;
  • Period of time between the tendency evidence and alleged offence; and
  • Level of generality of the tendency evidence.

The message from Parliament is that there is a strong expectation that tendency evidence will have significant probative value in child sexual abuse prosecutions, irrespective of its particular features.

Probative vs Prejudicial (s 101 EA)

The second limb of the test where tendency evidence is admissible is still maintained. Section 101 has been amended so that the term “substantially outweighs” has been reduced to simply “outweighs”. The Second Reading Speech explains the aim of this amendment is to strike an even and appropriate balance between competing interests of what is deemed significantly probative and preventing unfair prejudice. From a defence lawyer’s perspective, whilst a small amendment, it significantly lowers the bar and broadens discretion surrounding the admission of tendency and coincidence evidence.

If you have been charged with a sexual assault offence, it is imperative that you obtain detailed and targeted advice. Our team have decades of experience in these types of matters and we stay up to date with the changing landscape of sexual assault legislation.

Helen Christinson, Partner