Admissibility of relationship evidence
[56] Factors favouring admission: I accept that, as a matter of legal principle or policy, several considerations tend to support the reception of evidence by complainants of alleged acts of sexual abuse different from, and additional to, those identified in the charges preferred against the accused by the prosecution:
(1) Although criminal trials address specific charges alleged in an information or indictment, the experience of the courts shows that sexual abuse of young persons is often, or typically, manifested in multiple and repeated incidents over a period of time. It is commonly impracticable, or even impossible, to include them all among the formal charges. The repeated character of the events may render them individually unmemorable either to the complainant or to the accused. A court process directed to eliciting a truthful description of what has happened to a complainant will take account of such practical considerations;
(2) Where sexual assault cases are not prosecuted under the new provisions establishing "relationship crimes", a practice is often observed by prosecutors of charging the first, or earliest, alleged incident of a sexual offence remembered by the complainant and also the most recent incident that can be described. Others may be included because of special features in the facts or surrounding circumstances which are said to trigger the memory of the complainant and to permit particularity. However, almost inevitably, and whatever the wishes and precautions of lawyers, evidence may emerge of other incidents not made the subject of charges. This may be due to factual links between such incidents and the matters charged, or because such incidents are allegedly remembered whilst the complainant's evidence is being adduced. Alternatively, the complainant, unaware of (or impatient with) the conventions of the criminal trial, may assert that many other similar instances occurred, leaving it to the trial judge to deal with the admissibility of such evidence and with the directions that should then be given. Attempts to quarantine the charged acts may, in practice, be both artificial and futile;
(3) From the point of view of the complainant, and respecting his or her entitlement to provide a truthful version of what is recalled, it is important for legal procedure to facilitate, so far as basic principle permits, the giving of a "fair and coherent account" of what has allegedly occurred resulting in the criminal prosecution;
(4) The law has an important obligation to protect truthful complainants about sexual abuse. It is an appreciation of the significance of this consideration that led Lord Hope of Craighead to observe in R v A (No 2) that "the balance between the rights of the defendant and those of the complainant is in need of adjustment if [complainants] are to be given the protection under the law to which they are entitled against conduct which the law says is criminal conduct". This observation has particular force where the abuse has allegedly been suffered by children as a result of the conduct of family members who owe the child special duties of trust and protection;
(5) Self-evidently, sexual assault against children is a very serious crime both in terms of its incidence in our society and in its impact on the victim, the victim's family and the community. There is compelling evidence of historical "under-enforcement" in this area. The increase in prosecutions for offences of the present kind observed by the courts in recent years is, in part, a reflection of changing community, police and prosecutorial attitudes. These developments ought not to be permitted to be frustrated by unjustifiably restrictive court procedures; and
(6) The retention of jury trial for most contested allegations of such offences in Australia suggests a continuing acceptance of the need to entrust decision-making in such cases to "the ordinary experiences of ordinary people". Juries resolve disputed issues and distinguish false or unproved accusations from those which they consider to have been proved to the requisite standard by applying their collective experience of life and of their fellow human beings. In recent years, the House of Lords, in Director of Public Prosecutions v P and R v H_, has demonstrated a greater willingness to trust juries with sensitive evidence than, for example, was apparent in the earlier case of_ R v Boardman_. Thus, Lord Griffiths, in the case of_ H_, suggested that a "less restrictive form" of the rules excluding relevant evidence was appropriate given today's "better educated and more literate juries". So far as the common law of Australia is concerned, the result may also be a greater willingness in this country to permit jury access to relevant but sensitive, and potentially prejudicial, evidence. The fact that potential prejudice may be susceptible of limitation through careful directions and warnings is an additional factor that tends to favour reposing greater trust in juries in cases such as the present._
[57] Factors favouring exclusion: As against the foregoing considerations, a number of others need to be kept in mind:
(1) In general, criminal trials of serious offences in Australia observe an accusatorial form. As a matter of law, the accused is ordinarily entitled to put the prosecution to proof of its allegations. In the usual case, it is essential that an accused person should be informed in advance of the trial not just of the "legal nature of the offence with which he is charged but also of the particular act, manner or thing alleged as the foundation of the charge". In Australia, this has led to rules of law and practice requiring a high degree of specificity of accusations and of criminal charges. To the extent that uncharged accusations or generalised "relationship evidence" intrude upon such a trial, they have a tendency to impair the right of the accused to know in advance, and to prepare to test and to meet, the particular charges alleged. This, in turn, has the tendency to endanger a fundamental feature of the criminal trial;
(2) From the viewpoint of the accused, the foregoing elements of the criminal trial afford important protections. They permit the accused to prepare for the trial; to test the accusations; to assemble a defence; and (if so decided) to gather rebutting, alibi and other evidence. They also permit the accused to object to evidence as it is tendered where it is not relevant to the issues for trial, as those issues are defined by the information or the indictment, supplemented perhaps by particulars. To the extent that a complainant introduces other accusations and allegations that are not contained in the charges or particulars, serious prejudice may sometimes arise which it is difficult, or impossible, to cure on the run in the course of the trial;
(3) Although the foregoing features of the accusatorial trial are particularly important in common law countries, it is arguable that a clear delimitation of criminal accusations before the beginning of any trial is a universal requirement of international human rights law. Thus, Art 14 of the International Covenant on Civil and Political Rights states a number of basic rights by reference to the "determination of any criminal charge" against a person. The determination of a "criminal charge" apparently postulates a degree of particularity and notice to the person accused of the exact allegation that is made;
(4) Whilst proper attention must be addressed to the protection of complainants, so that they may place relevant testimony before the trial without artificial or irrational impediments, it is the accused, and not the complainant, who is on trial. Ordinarily, in cases involving allegations of repeated child sexual assault, the accused faces, if convicted, serious (commonly custodial) punishment. It is therefore the duty of courts, and of prosecutors, to ensure the fairness of the trial, especially so because accusations of criminal offences against children are specially likely to arouse feelings of prejudice and revulsion in the community which will normally be shared by jurors;
(5) Uncontested evidence sometimes later proves that accusations earlier made to police about a sexual assault are false, resulting in the initial conviction of an innocent person. Cases also arise where such accusations are withdrawn and disclaimed after the accused has been convicted. It is not correct to assume that all such accusations are accurate and reliable; and
(6) Although criminal appeals are necessarily conducted on the assumption that the jury understand and observe directions given to them about the law, there are risks, once certain evidence becomes known to the jury, that they may treat that evidence as disclosing a general disposition on the part of the accused to act as alleged in the charges. To the extent that the common law retreats from rules withholding particular evidence from the jury, and to the extent that the law permits the jury to receive and consider such evidence although not the subject of any charge, there may be a commensurate need to enlarge the judicial obligation to direct and warn the jury about the dangers of pure propensity reasoning.
(footnotes omitted)