Propensity evidence reform after the Royal Commission into Child Sexual Abuse

Abstract

The Royal Commission considers the exclusion of propensity evidence, including prior convictions and the evidence of other alleged victims, to be one of the most significant obstacles to child sex offence (CSO) prosecutions. As the Royal Commission recognises, propensity evidence is more probative and less prejudicial than traditionally understood. It recommends broader admissibility for CSO proceedings. The Royal Commission has done valuable work. However, confining reforms to CSO cases is problematic, and its proposed admissibility test is unduly complex. The Council of Attorneys-General (CAG) is considering other models for reform extending to all criminal prosecutions. The CAG should not adopt a minimalist approach to reform. As well as broadening admissibility, the reforms should address spurious and counterproductive complexities in the law, starting with the unhelpful distinction between tendency and coincidence evidence. The new legislation should provide clear guidance on the admissibility and rational use of propensity evidence.