Sexual Assault Trials Handbook — Evidence

N Broadbent and D Buchanan, “Tendency evidence in 2020”, paper presented at the Legal Aid NSW Conference, November 2020, Sydney.

This paper sets out recent amendments to the law of tendency evidence in NSW. The amendments to both evidence and criminal procedure, which in large part came into force following the Evidence Amendment (Tendency and Coincidence) Act 2020 and the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020, substantially affect the law as it pertains to tendency, and in particular child sexual assault matters. It is noted that the amendments do not substantially alter the existing High Court authority in relation to other cases where tendency evidence is to be adduced. This paper summarises several High Court authorities which preceded the amendments to the Evidence Act 1995 (NSW). The paper next summarises recent amendments, which broaden the scope for admissibility of tendency evidence, particularly in cases involving allegations of child sexual assault. An update of recent Court of Criminal Appeal cases which highlight the growing prevalence of tendency evidence in these kinds of matters is also provided. Despite substantial changes, it is suggested that because the major amendments are confined to child sexual assault cases, arguments against the admission of tendency evidence in cases which do not involve child sexual assault remain available and viable.