In NSW one of the most frequently charged offences present in higher courts is sexual assault. Of these cases, two thirds are offences against children. Yet in NSW, higher courts’ conviction rates for child sexual assault cases average 26%.[1] The ALRC has noted that this may be substantively linked to a number of misconceptions held by jurors about a child’s ability to give evidence and how children react to sexual abuse. The role of experts is thus increasingly important in combating misconceptions and challenging myths about the “right” response to sexual assault. However it is only in the last few years that expert evidence on these issues has been admissible due to the common law opinion rule that excludes expert evidence because the ‘behavior of child sexual abuse victims is within common law knowledge or ordinary experience of the jury’.[2]

The myths surrounding sexual abuse generally are exacerbated by the vulnerability of children and it is often the case that delays in reporting, the perception that children may be manipulated into false reports, the fact children may return to their abuser and inconsistencies in a child’s report have been deemed by jurors to indicate sexual abuse did not occur. Reforms to the Evidence Act 1995 (NSW) responded to these misconceptions by allowing the inclusion of expert evidence about children. Such evidence clarifies misconceptions by providing evidence on children’s abilities to recount facts, distinguish fact from fiction and the psychological response of children to sexual abuse.[3] Section 79(2) confirmed that ‘specialised knowledge’ includes ‘specialised knowledge of child development and child behaviour’ and s 108C provided that the credibility rule, excluding evidence on the credibility of another witness’ if the person has specialised knowledge based on their training and the evidence ‘could substantially affect the assessment of the credibility of a witness’.[4]

Research with mock jurors conducted by the University of New South Wales and Charles Sturt University has suggested that the inclusion of expert evidence has a tangible effect upon conviction rates. In particular, they determined that the more mock jurors learned during the trial, the more the credibility of the victim increased and the more likely they were to convict the defendant.[5] This emphasises the very real role experts play in determining the outcome of a case.

Nonetheless, the ALRC recognises that issues persist in the provision of expert opinion evidence in child sexual assault cases. They note that s 108C is a narrow provision with the high standard of requiring the evidence to ‘substantially’ affect the credibility of the witness acting as a significant limitation. They further highlight the reform option of making some categories of expert evidence admissible without leave of the court to avoid unnecessary delay from defense objections that the expert evidence is within the common knowledge of the jury or that such evidence is highly prejudicial to the defendant. Finally, accessing appropriate and relevant expert evidence remains a practical issue facing all stakeholders.

The above concerns notwithstanding, the inclusion of expert evidence is a welcome addition to child sexual assault cases. The importance of ensuring that misconceptions or the underestimation of the children doesn’t overshadow their rights to justice cannot be overstated. Ideally, reforms such as those above and future steps taken will continue to allow experts to assist the court in ensuring children have a voice in the court that is heard and understood.

This article was prepared in conjunction with Susan Flynn.

[1] Fitzgerald J (2006) The attrition of sexual offences from the New South Wales criminal justice system. Crime and Justice Bulletin 92: 1–12 in

Jane Goodman-Delahunty J, Annie Cossins A & Kate O’Brien, ‘A comparison of expert evidence and judicial directions to counter misconceptions in child sexual abuse trials’ (2011) 44, Australian & New Zealand Journal of Criminology 196.

[2]C v R, 1993; F v R, 1995; Ingles v R, unreported; R v Venning, 1997; S v The Queen, 2001) in Annie Cossins A (2008) Children, sexual abuse and suggestibility: What laypeople think they know and what the literature tells us. Psychiatry, Psychology and Law 15: 153–170.

[3] Cossins, above n 2, 160.

[4] Australian Law Reform Commission, Uniform Evidence Law, Report No 114, 27

[5] Goodman-Delahunty, Cossins & O’Brien, above n 1, 211.