Other misconduct evidence in appeals against conviction in child sexual abuse trials

Abstract

Child sexual abuse (CSA) trials may feature evidence relating to behaviours beyond the charges laid. This ‘other misconduct’ evidence can add context to the offending and may relate to more than one complaint or victim, indicating a pattern of thinking and behaviour, or that multiple incidents are unlikely to be coincidental. Directions to the jury regarding such evidence are complex and error prone, giving grounds for appeal. This study investigates successful appeals against conviction based on other misconduct evidence by analysing child and adult sexual assault cases listed in the Supreme Court of Appeal (Victoria) between 2004 and 2014. The appeals were equally successful in child and adult cases and equally likely to result in retrial. Specific errors in directions were identified and explanations are presented. Jury directions continue to be a source of error in sexual assault trials and can result in further attrition from the criminal justice system.

Key words:

• appeal
• child sexual abuse
• context evidence
• other misconduct evidence
• tendency evidence
• uncharged acts

Ethical standards

Declaration of conflicts of interest

Susan Mills has declared no conflicts of interest.

Stefanie Sharman has declared no conflicts of interest.

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors.