Sexual Assault Trials Handbook — Evidence

Justice Peter McClellan and Amber Doyle “Legislative facts and s 144 — a contemporary problem”.

This presentation was given at the Supreme Court of NSW Annual Conference 2015, 4 September 2015. It is also published in (2016) 12(4) The Judicial Review 421.

In the past, judges have relied on their own observations and assumptions about human behaviour, and the evidence of children was treated with caution as children were considered unreliable witnesses. Judges’ assumptions about how complainants behave, and how memory works, became embedded in common law and had consequences for complainants in sexual assault cases. These assumptions have been challenged by the work of the Royal Commission into Institutional Response to Child Sexual Abuse. For example, delay in making complaint, which was once assumed to be an indication of falsity, has been shown to be typical in child sexual abuse. Similarly, the assessment of harm done to the victim for the purposes of sentencing has changed so that there is greater awareness of the effects of child sexual abuse, but can still be problematic if the victim’s impact statement is not consistent with the judge’s perceptions of harm. This article discusses the means by which courts can use available learning in relation to the sexual abuse of children in the trial and sentencing process, and the effect of s 144 of the Evidence Act 1995 on the operation of the common law doctrine of judicial notice.

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