14.57 In general, rules of evidence attempt to ensure that the trial process is fair for the parties. However, these same rules often prevent witnesses from fully explaining their evidence. They often interfere with the ability of the judge and/or jury to hear the words of a child witness and the special context in which they are spoken. Competency rules, judicial warnings regarding children’s evidence, rules against hearsay and prohibitions on expert testimony and on tendency and coincidence evidence are significant ways in which children can be effectively silenced as witnesses.
14.58 The following recommendations attempt to address these problems. Some of the recommendations incorporate existing provisions of the Commonwealth Evidence Act and other State and Territory legislation. These recommendations are addressed to those jurisdictions in which the relevant amendments have not been made. Although the Evidence Act was designed to provide ‘model’ evidence legislation to permit a more coherent approach to the rules of evidence across jurisdictions, for a variety of reasons not all jurisdictions have followed the model. The recommendations are directed not so much to securing uniform, general evidence law as to encouraging a more appropriate approach to child witnesses across jurisdictions.
14.59 In most Australian jurisdictions the law considers certain children not competent to give sworn evidence. Most State and Territory legislatures have fixed a specific age below which children are presumed incompetent to give sworn evidence unless there is a judicial determination of a particular child’s competency.
14.60 In making this determination, judges undertake different investigations in different jurisdictions. For example, Queensland and South Australia adhere to the traditional common law definition of competency to give sworn evidence. The common law defines competency as a requirement that the child witness understand the nature of the oath. It defines this understanding as a belief in God and in divine vengeance, a formulation arising from eighteenth century cases. On the other hand, Tasmania and Western Australia have followed the English approach which determines competency on the basis of a secular assessment of the witness’ reliability. This approach requires proof of the witness’ cognitive ability to distinguish between truth and falsity and an acknowledgement from the witness that he or she accepts a higher obligation to tell the truth in court than in everyday life.
14.61 The Evidence Act and the Evidence Act 1995 (NSW) mark a clear change in the direction of the law in this area. Both Acts deal with competency without reference to children. They state that every person is prima facie presumed psychologically and physically competent to give sworn evidence in civil and criminal proceedings. This presumption is rebutted if a person is ‘incapable of understanding that in giving evidence he or she is under an obligation to give truthful evidence’.
14.62 The Evidence Act recognises that a witness may be competent to give evidence about some but not all facts. This is particularly important for children who may have differing language skills, abilities to make inferences, conclusions or estimates or capacities to understand concepts such as time and spacial perspective. This approach to competency allows a young child to respond under oath to simple questions but not to questions beyond the child’s capacity that cannot be reframed in simpler terms.
14.63 In all Australian jurisdictions a child who is incompetent to give evidence on oath may give unsworn evidence. In general terms, the law requires that the judge ascertain whether the child can understand and respond rationally to questions and give an intelligible account. Additionally, the child must promise to tell the truth. In some States there is also the additional requirement that the witness appreciate the duty or obligation that the promise entails. Under the Evidence Act a witness who is found incompetent may give unsworn evidence where
‘..the court is satisfied that the person understands the difference between the truth and a lie; the court tells the person that it is important to tell the truth; and the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding’.
14.64 Wherever a question regarding the competency of a witness arises, the trial judge is expected to undertake inquiries of the witness. The Evidence Act permits the court ‘to inform itself as it thinks fit’. This provision allows a child’s competency to be tested with the assistance of someone professionally qualified or with whom the child has a rapport. For example, expert evidence may assist the judge to determine whether a particular child is capable of understanding and responding to certain questions. As the formal surroundings of most courtrooms and the dress of the judge and counsel may be intimidating to a child and can make questioning children a difficult task, this provision may also permit the child’s competency to be tested out of court or in a modified courtroom setting.
Recommendation 98 All children should be presumed prima facie competent to give sworn evidence. Oaths and affirmations should be simple and in language that the particular child understands. Where questions regarding children’s competency arise, courts should be able to take a flexible approach to competency testing, including obtaining expert opinion or reports.
Implementation. The Evidence Act is an appropriate model for these provisions. The Attorney-General through SCAG should encourage those jurisdictions that have not introduced legislation based on the Evidence Act to enact similar provisions.
14.65 Subject to certain exceptions, such as the spouse of an accused in a criminal trial, every person competent to give evidence about a fact can be compelled to give that evidence. Under the Evidence Act and theEvidence Act 1995 (NSW) the child of a defendant may object to being required to give evidence in criminal proceedings, unless the proceeding involves an assault on a child or other domestic violence situations. In most other Australian jurisdictions it seems that a child who is competent to give evidence can be compelled to give evidence, regardless of the type of proceeding, just like any other person.
14.66 The Evidence Act provides that judges may require an objecting child witness to give evidence where the nature and extent of any harm to the witness or to the relationship between the witness and the accused is outweighed by the desirability of having the evidence given. This test is appropriate for handling objecting child witnesses not only in criminal proceedings but also in civil proceedings and those criminal proceedings previously exempted from the right to object provisions.
Recommendation 99 The child of a party should have the right to object to being called to give evidence against that party in any criminal and civil proceeding. In deciding whether to require an objecting child to give evidence against a party, judges should apply a balancing test in which the judge looks to whether the harm to the child or to the child’s relationship with a party outweighs the need for the evidence to be given.
Implementation. The Evidence Act should be amended to reflect the above provisions. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation.
Corroboration and judicial warnings
14.67 In most Australian jurisdictions a child’s sworn or unsworn evidence need not be corroborated before a person can be convicted of an offence. As a corollary to these provisions, a judge is not obliged to warn the jury that it is dangerous to convict a person based on the uncorroborated evidence of a child. However, although all jurisdictions have removed the common law’s requirement that corroboration warnings be given, some jurisdictions still permit warnings about the unreliability of children’s evidence. In addition, judges generally have a discretion to comment on a particular child’s evidence considering the circumstances of the specific case, just as judges may comment on the evidence of any witness. Judges continue to give strong warnings about child witnesses, showing that children’s evidence continues to be viewed with suspicion.
14.68 In Western Australia, Tasmania and the Northern Territory judges are prohibited from warning the jury that it is unsafe to convict on the uncorroborated evidence of a child by implying that children are an unreliable class of witness. In Victoria warnings that children are considered an unreliable class of witness are prohibited whether or not made in connection with any uncorroborated evidence of a child. In South Australia judges are not required to warn a jury of the dangers associated with children’s uncorroborated evidence but there is no prohibition on doing so.
14.69 The NSW and federal Evidence Acts permit judges to warn juries about evidence that is ‘of a kind that may be unreliable’. In fact, a warning must be given where ‘…the reliability of the evidence may be affected by…the age of the witness’ and a party requests that a warning be given. Under these provisions the judge must state that the evidence may be unreliable, give the reasons why and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
14.70 Judicial warnings concerning the evidence of children continue to be standard practice in many jurisdictions despite these changes in the law. For example, Western Australia’s Court of Criminal Appeal recently held that a seven year old girl should not have been allowed to give sworn evidence in a criminal trial about an incident of domestic violence. The court held that the trial judge should have permitted her to give unsworn evidence and then warned the jury about convicting on the uncorroborated evidence of the child given the circumstances of this case (the child had shown some hesitation about whether she really understood the difference between the truth and a lie). Parker J went further than the other two Justices, stating that the jury should have been warned about the ‘…dangers inherent in the evidence of a young child’. He based this on his assumption that the evidence was that of ‘…a seven year old child describing events that could only have been observed by her in circumstances of considerable emotional disturbance’. This was despite s 106D of the Evidence Act 1906 (WA) that specifically prohibits judges from suggesting to the jury that children are classified as unreliable witnesses or that their evidence requires corroboration.
14.71 Submissions to the Inquiry deplored judicial warnings that effectively discriminate against child witnesses, particularly where those warnings are based on individual judges’ assumptions and prejudices regarding the ability of children to give reliable evidence. It was repeatedly suggested that judges should be prohibited from giving these warnings.
14.72 In Murray v R, the NSW Court of Criminal Appeal suggested that, in exercising a discretion to comment on the evidence of a complainant in a sexual offence case, judges should warn the jury that
…in all cases of serious crime it is customary for Judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in.
14.73 This phrase has become a common form of comment for NSW judges in sexual assault cases. A similar approach could be taken when judges comment on the evidence of child witnesses. Where a judge decides to exercise a discretion to comment on the evidence given by a child, the Murray formula should be the only permissible form of comment.
Recommendation 100 Recommendation 100. Corroboration of the evidence of a child witness should not be required. Judges should be prohibited from warning or suggesting to the jury that children are an unreliable class of witness and that their evidence is suspect.
Judicial warnings about the evidence of a particular child witness should be given only where (1) a party requests the warning and (2) that party can show that there are exceptional circumstances warranting the warning. Exceptional circumstances should not depend on the mere fact that the witness is a child, but on objective evidence that the particular child’s evidence may be unreliable.
Warnings should follow the Murray formula to reduce the effect of an individual judge’s bias against, or general assumptions about, the abilities of children as witnesses.
Implementation. The Evidence Act should be amended to reflect these provisions. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation.
14.74 Expert witnesses often give evidence in cases involving children. In family law or care and protection cases, experts are regularly called upon to describe the effects of certain types of abuse and to correlate this with injuries to a particular child or to give their opinion about the child’s psychological or physical health.
14.75 However, little use is currently made of expert opinion evidence regarding child victim witnesses in criminal proceedings, perhaps because the prosecution cannot generally call a witness solely for the purpose of bolstering the credibility of the complainant. Issues surrounding patterns of disclosure or behaviour in child victims may also be considered to be within the ‘common knowledge’ of a jury or not a fit subject for expert evidence. In a number of recent cases in Australia expert evidence about such matters as child sexual abuse accommodation syndrome or the behaviour of child victims of sexual abuse has been excluded for these reasons.
14.76 The Evidence Act has abolished the common knowledge rule, remedying the common law restrictions in this regard. This is particularly important for cases involving child victim witnesses, as a child’s behaviour on the witness stand or during the investigation process may be contrary to a jury’s expectations of an ‘abused’ child’s behaviour. A US study suggests that expert testimony about the characteristics of sexually abused children does affect jurors’ decision making in both civil and criminal cases. It is not entirely clear, however, that the Evidence Act permits the type of expert evidence that would be needed to explain a child victim witness’ behaviour, such as evidence of patterns of children’s disclosure in abuse cases and the effects of child abuse on children’s behaviour or demeanour in and out of court.
14.77 This kind of evidence has been admitted occasionally to rehabilitate the credibility of a witness after significant impeachment during cross-examination. However, the current wording of the Evidence Act may prevent the admission of rehabilitative evidence of this sort. There may also be occasions where this kind of expert evidence should be lead before the child is cross-examined or presented as a witness rather than waiting until the child witness is discredited during cross-examination. The rules of evidence should clearly indicate that expert evidence, on such issues as patterns of children’s disclosures in abuse cases or the effects of child abuse on children’s behaviour or demeanour in or out of court, is admissible to explain why general assumptions about the behaviour of a child witness or a certain line of cross-examination might not reflect adversely on a particular child witness’ credibility.
Recommendation 101 Expert opinion evidence on issues affecting the perceived reliability of a child witness should be admissible in any civil or criminal proceeding in which abuse of that child is alleged. In particular, evidence that may assist the decision maker in understanding patterns of children’s disclosure in abuse cases or the effects of abuse on children’s behaviour and demeanour in and out of court should be able to be admitted.
Implementation. The Evidence Act should be clarified to reflect the above provisions. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation. This legislation should in particular mirror the Evidence Act’s abolition of the common knowledge and ultimate issue rules.
Hearsay and evidence of recent complaint
14.78 The rule against hearsay evidence provides that evidence of a previous statement or representation by a person is not admissible to prove the fact that the person intended to assert by the statement or representation. Out-of-court statements are considered unreliable evidence of the facts stated because of the lack of an oath, the absence of cross-examination and the possibility of fabrication. However, hearsay evidence is often relevant to proceedings. For example, evidence of prior complaints may be admissible because they could ‘relate to a fact in issue’, namely whether the event had occurred. Hearsay evidence may be particularly important in cases involving child complainants. Many allegations of criminal acts against children are not prosecuted or do not proceed because the child is presumed incompetent to give evidence or does not understand the duty to tell the truth in court, or because the trauma of testifying at trial prevents the child from giving evidence satisfactorily or at all. The ability to introduce the hearsay statements of the child, in addition to or instead of the evidence of the child, might address these problems.
14.79 Where a child witness’ previous statement was made in certain circumstances, it may fall into an exception to the rule against hearsay. There are exceptions for contemporaneous and spontaneous statements about the maker’s health, feelings, sensations, knowledge and state of mind or statements made when the asserted fact was fresh in the maker’s mind. In sexual assault cases, hearsay statements by a complainant are admissible under the common law as ‘recent complaint’ evidence, to support the complainant’s credibility, if the complaint was made spontaneously at the first reasonable opportunity. Some children’s initial disclosures of abuse or descriptions of an event fall into these categories. However, as patterns of disclosure among child victims of abuse often include disclosure of small pieces of information over periods of time, the current exceptions are not sufficient to get all relevant previous statements by children into evidence to prove the fact in issue at a trial.
14.80 Some jurisdictions provide additional exceptions to rules against hearsay when children are involved in particular proceedings. For example, in Queensland documentary evidence of statements by children aged under 12 that tend to establish a fact are admissible as evidence of that fact. Care and protection proceedings in all States and Territories are not bound by the rules of evidence. The Family Law Act also suspends the rule against hearsay in relation to children’s evidence in Family Court proceedings.
14.81 The Supreme Court of Canada in R v Khan developed a special exception to the rule against hearsay for children’s statements. It held that hearsay statements by a child regarding the issue at trial may be admitted in evidence provided that admission of the statement is necessary and the hearsay statement is reasonably reliable. The admission is ‘necessary’ if the court decides that the child is incompetent to give either sworn or unsworn evidence, the child is unable or unavailable to testify or if the judge is satisfied, based on psychological assessments of the child, that giving evidence might be traumatic for the child or harm the child. In later cases, lower Canadian courts further explained the necessity requirement, holding that necessity could be established by the extreme youth of the child or by the inability of a young child, when appearing as a witness, to give a coherent or comprehensive account of the events.
14.82 The Inquiry recommends an additional exception to the rule against hearsay similar to that in R v Khan. However, in the interests of fairness to the accused, no person should be convicted of an offence based solely on the evidence of one statement admitted under this exception. Some corroborating evidence, for example other statements by the child, medical evidence or expert psychological evidence, must also be required.
Recommendation 102 Evidence of a child’s hearsay statements regarding the facts in issue should be admissible to prove the facts in issue in any civil or criminal case involving child abuse allegations, where admission of the hearsay statement is necessary and the out-of-court statement is reasonably reliable. A person may not be convicted solely on the evidence of one hearsay statement admitted under this exception to the rule against hearsay.
Implementation. The Evidence Act should be amended to this effect. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation.
Tendency and coincidence evidence and joinder of trials
14.83 Rules restricting the use of tendency (propensity) evidence and coincidence (similar fact) evidence are designed to ensure that, particularly in criminal trials, a person accused of committing certain acts receives a fair trial. The Evidence Act has essentially restated the common law restrictions on the use of tendency and coincidence evidence.
14.84 The Evidence Act provides that evidence of a person’s character, reputation or conduct is generally not admissible to prove that he or she has a tendency to act in a particular way. However, the tendency evidence will be allowed if the party wishing to adduce it has given reasonable notice in writing to the other party of that intention or if the court considers that the evidence would have significant probative value. Furthermore, in criminal trials tendency evidence about a defendant can be adduced by the prosecution only if its probative value substantially outweighs any prejudicial effect that it may have on the defendant. Such evidence was permitted in Pfennig v R. Evidence was permitted in the defendant’s trial for the murder of a boy ‘M’ that the defendant had abducted and sexually abused another boy ‘H’ one year after M disappeared. H’s abduction was described as evidence that the defendant had a propensity to abduct and sexually abuse young boys and showed a tendency in the defendant which fitted very closely with the requisite tendency of the murderer.
14.85 The Evidence Act also provides that evidence that two or more related events occurred (similar fact or coincidence evidence) is generally not admissible to prove that, because of the improbability of the events occurring coincidentally, one person must have acted in both cases. Again, the evidence will be allowed if the party wishing to adduce it has given reasonable notice in writing to the other party of that intention or if the court considers that the evidence would have significant probative value. Again, in criminal trials coincidence evidence about a defendant can be adduced by the prosecution only if its probative value substantially outweighs any prejudicial effect that it may have on the defendant.
14.86 Coincidence evidence will be allowed, however, only if the party can demonstrate that the two or more events in question are ‘substantially and relevantly similar’ and that ‘the circumstances in which they occurred are substantially similar’. At common law, phrases such as ‘strikingly similar’, ‘underlying unity’, ‘unusual features’, ‘system’ or ‘pattern’ have been used to describe the improbability of two events occurring by coincidence. The High Court has commented on these terms in a few cases, all with the result that these requirements combined to exclude evidence about abuse of more than one child and to prevent the joinder of charges in a single trial. In addition, in Hoch v The Queen the High Court stated that, where there is a sufficient relationship between the victims and a motivation for possible concoction of the charges, one explanation for the similarity of events described by the victims is joint concoction of the offences. In such cases the evidence of one charge should not be admitted as evidence in the trial of other charges.
14.87 Rules against tendency and coincidence evidence play a significant part in criminal trials involving child witnesses, particularly when an accused is charged with sexually assaulting several children. In DeJesus v R, the High Court held that sexual offences form a special class of offences that should almost always be tried separately except where evidence on one count is admissible upon the other count under the ‘substantially and relevantly similar’ test. In addition, a possibility of joint concoction based solely on a ‘sufficient relationship between the victims’ as described in Hoch v R necessarily arises when the child victims are siblings or friends and are abused by a parent, relative, family friend or teacher. Together, these rules mean that separate trials are usually necessary in these cases and that the children involved may have to give evidence numerous times: in their own trial they must give evidence about what happened to them and in the other trials they must give evidence about what they witnessed happening to other children.
14.88 Submissions to the Inquiry demonstrated the problems these rules cause for child witnesses, particularly for siblings who give evidence in their own and their sibling’s trials regarding abuse by the same offender. One example was described by a mother of two children in this very situation.
The fact that there were two trials meant a duplicity [sic] of stress for my children. As it stands now, one daughter’s trial has been completed with a Not Guilty verdict brought in…[it was] very distressing for the girls to go back once more for the second trial two days later — back to back. The second trial was mistrialed after two days…Now my children have to go back to court [on a specific date] to suffer this hell once again.
14.89 In addition, these rules mean that when the complainant’s credibility is attacked, evidence that would support his or her credibility is disallowed and the jury are kept in ignorance of the fact that there are multiple allegations of abuse against the accused. As one submission noted, ‘[this] is a situation which would appear to offend common sense and experience, and has the potential to cause real injustice’.
Recommendation 103 Multiple proceedings involving more than one incident concerning the same child victim and accused or more than one child victim and the same accused should be joined in a single trial to avoid the necessity of children giving evidence in numerous proceedings over long periods of time and the problems associated with rules against tendency and coincidence evidence. To this end, joinder rules and rules against tendency and coincidence evidence should be reviewed in light of the hardship these rules cause to particular child victim witnesses.
Implementation. The Attorney-General should recommend to SCAG that it convene a working group to conduct this review.
 Under 12 years: Evidence Act 1929 (SA)s 12; Evidence Act 1906 (WA) s 106B. Under 14 years: Evidence Act 1958 (Vic) s 23; Evidence Act 1910 (Tas) s 122B. Under 18 years : Evidence Act 1977 (Qld) s 19.
 M Aronson & J Hunter Litigation: Evidence and Procedure 5th ed Butterworths Sydney 1995, 741. See R v Brown (1977) Qd R 220; R v Schlaefer (1992) 57 SASR 423. However, unlike in SA, in Qld the judge may look to expert evidence on the issue of a child’s competence: Evidence Act 1977 (Qld) s 9A.
 R v Braiser (1779) 1 Leach 199; Omychund v Barker (1744) 1 Atk 21.
 Evidence Amendment (Children and Special Witnesses) Act 1995 (Tas) s 122B; Acts Amendment (Evidence of Children and Others) 1992 (WA) s 106B. See also Attorney-General’s Reference No 2 of 1993 (1994) 4 Tas R 26.
 Evidence Amendment (Children and Special Witnesses) Act 1995 (Tas) s 122B; Acts Amendment (Evidence of Children and Others) 1992 (WA) s 106B. See also Attorney-General’s Reference No 2 of 1993 (1994) 4 Tas R 26; Re R v Mansell (unreported)Tas Court of Criminal Appeal 1 March 1994.
 s 12.
 s 13(1).
 s 13(3).
 See K Saywitz ‘Improving children’s testimony: The question, the answer and the environment’ in M Zaragoza et al (eds) Memory and Testimony in the Child Witness Sage Publications Thousand Oaks 1995, 113.
 Evidence Amendment (Children and Special Witnesses) Act 1995 (Tas) s 122C; Evidence Act 1929 (SA) s 12; Acts Amendment (Evidence of Children and Others) Act 1992 (WA) s 106C; Evidence Act 1977 (Qld) s 9; Oaths Act 1867 (NT) s 25A; Evidence Act1995 (NSW) s 13; Evidence Act 1958 (Vic) s 23.
 eg Evidence Act 1958 (Vic) s 23; Evidence Act 1929 (SA) s 12.
 s 13(2).
 M Aronson & J Hunter Litigation: Evidence and Procedure 5th ed Butterworths Sydney 1995, 742.
 s 13(7).
 M Aronson & J Hunter Litigation: Evidence and Procedure 5th ed Butterworths Sydney 1995, 742.
 id 739.
 ss 18, 19.
 However, children do not generally give evidence in the Family Court and leave of court is required before a child may be called as a witness: see para 16.55.
 s 18(6), (7).
 Evidence Act s 164; Evidence Act 1995 (NSW) s 164; Evidence Act 1958 (Vic) s 23(2A); Evidence Act 1939 (NT) s 9C; Evidence Act 1977 (Qld) s 9(2), (3); Evidence Act 1906 (WA) s 106D; Evidence Act 1910 (Tas) s 122D. However, in SA corroborative evidence is still required for unsworn evidence from a child: Evidence Act 1927 (SA) s 12(3). In practice, where a case involves child witnesses under the age of seven, who are considered unable to give sworn evidence, the need for corroborative evidence means that the alleged offender will not be charged or that charges will be withdrawn, and this person may then be free to seek contact with the child should he or she be a parent: SA Victim Support Service IP Submission 185.
 See para 14.18 for a discussion of the traditional common law requirement of a warning regarding the evidence of children.
 R Pattenden The Judge, Discretion and the Criminal Trial Clarendon Press Oxford 1982, 151.
 Evidence Act 1906 (WA) s 106D; Criminal Code (Tas) s 122D; Evidence Act 1939 (NT) s 9C.
 Evidence Act 1958 (Vic) s 23(2A).
 Evidence Act 1929 (SA) s 12a.
 Evidence Act 1995 (Cth) s 165; Evidence Act 1995 (NSW) s 165.
 s 165(1)(c). But see R v Vella (unreported) NSW Court of Criminal Appeal 1 August 1997 which dismissed an appeal from a decision where no warning was given. The judge was not required to warn the jury regarding the evidence of a 10 year old complainant, even though such a warning was requested, because the evidence was not ‘inherently unreliable’.
 s 165(2) of each Act.
 eg T Coyne IP Submission 80; I Wallace IP Submission 85.
 R v Revesz (unreported) WA Court of Criminal Appeal 18 October 1996.
 eg T Coyne IP Submission 80; I Wallace IP Submission 85; M Forrester IP Submission 116; S Castell-McGregor IP Submission 152; SA Victim Support Service IP Submission 185.
 (1987) 39 A Crim R 315.
 id 322.
 NSW Dept for Women Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault NSW Dept for Women Sydney 1996, 188.
 In Longman v R (1989) 168 CLR 79 the High Court stated that, in exercising a discretion to comment on the evidence, judges should not convey a message to the jury that complainants of sexual offences are generally unreliable and untrustworthy as a class of witnesses. Rather judges should encourage the jury to make their own evaluation of the evidence of the witness ‘in light of common human experience’: 89 per Brennan, Dawson, Toohey JJ. Many allegations and behaviours of child victims of abuse may not fall within ‘common human experience’: see para 14.76. We do not suggest that this formula be followed in child abuse trials.
 Oz Child Legal Service IP Submission 195.
 See Evidence Act s 102.
 A Kapardis Psychology and Law Cambridge University Press Cambridge 1997, 179.
 See R v C (1993) 60 SASR 467.
 eg Re F (The Court) (1996) 83 A Crim R 502 (NSW); R v C (1993) 70 A Crim R 378 (SA); R v Johnson (unreported) Vic Court of Criminal Appeal 8 Dec 1994 ; R v Ingles (unreported) Tas Court of Criminal Appeal 4 May 1994.
 s 80.
 It has been argued that human behaviour in general is not transparent and that expert psychological evidence should be admitted whenever it is both relevant and potentially helpful to a jury in explaining aspects of human behaviour that may not be easily understood by common sense alone: A Kapardis Psychology and Law Cambridge University Press Cambridge 1997, 179.
 id 183.
 Expert evidence on patterns of children’s disclosures in abuse cases or the effects of child abuse on children’s behaviour or demeanour in or out of court may meet the broad test for relevance in s 55 of the Evidence Act and therefore be admissible under s 56. It may, however, be excluded under s 135 or s 137.
 eg R v J (1994) 75 A Crim R 522 (Vic).
 s 108(3) permits only the admission of prior consistent statements to rehabilitate a witness after cross-examination reveals a prior inconsistent statement or alleges that the evidence was fabricated, reconstructed or suggested to the witness by another person.
 eg where a child has a particularly flat and disconnected attitude while testifying about horribly traumatic experiences, expert evidence about the child’s behaviour in court may be necessary to prevent a judge or a jury from assuming that, because the child was not distressed while testifying, the event could not have happened.
 The Evidence Act 1908 (NZ) may be an appropriate model. This legislation permits, in cases concerning child sexual assault, expert opinion on the intellectual attainment, mental capability and emotional maturity of the complainant, the general development level of children of the same age group as the complainant and whether any evidence given during the proceedings regarding the complainant’s behaviour is consistent or inconsistent with the behaviour of sexually abused children of the same age group as the complainant.
It was suggested in some submissions that expert witnesses on these issues should be ‘neutral’ so as to limit the number of people who interview the child witness: B Nurcombe, Director Child and Adolescent Psychiatry, Royal Brisbane Hospital IP Submission 94; J Benfer, E Drew & K Shepherd IP Submission 119; SA Victim Support Service IP Submission 185; Geelong Rape Crisis Centre DRP Submission 61. However, video-taping the initial interviews and statements of the child can counteract this problem as any expert retained by either the prosecution or the defence could view the video-tapes of interviews rather than conduct personal interviews: see paras 14.39-44.
 See Evidence Act s 59(1). Under the Evidence Act s 60 hearsay evidence that is admitted for a purpose other than to prove the fact asserted in the representation, eg for showing the maker’s state of mind at a particular point, is now also admitted for all purposes, including proof of the fact asserted: see ALRC Report 26 Evidence Vol 1 AGPS Canberra 1985, 375. However, the trial judge has a discretion to limit the use of such evidence pursuant to s 136.
 See ALRC Report 26 Evidence Vol 1 AGPS Canberra 1985, 362-370.
 See Evidence Act s 55. In deciding whether to allow evidence of prior complaint in through this section, the judge may exercise a discretion to exclude it if the probative value outweighs the danger that the evidence may unfairly prejudice a party, be misleading or confusing or cause or result in a waste of time: ss 135, 137. See also NSW Dept for Women Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault NSW Dept for Women Sydney 1996, 214–215.
 eg Mother’s Support Group IP Submission 59; T Coyne IP Submission 143; SA Victim Support Service IP Submission 185.
 See Evidence Act s 72.
 See Evidence Act s 66 (2).
 Evidence of recent complaint is not admissible to prove that the acts alleged actually occurred: R vUgle (1989) 167 CLR 647. As first-hand hearsay statements of a witness, made when the incident was fresh in the mind of the witness, are admissible in criminal proceedings under s 66 of the federal and NSW Evidence Acts, this exception may go further than the recent complaint doctrine, allowing the admission of evidence of recent complaint to prove the fact in issue: ALRC Report 26 Evidence Vol 1 AGPS Canberra 1985, 383. See NSW Dept for Women Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault NSW Dept for Women Sydney 1996, 199–219 for a description of the common law recent complaint doctrine and the problems faced by sexual assault victims in its application.
 Evidence Act 1977 (Qld) s 93A.
 See paras 17.59-60.
 See para 16.30.
 (1990) 2 SCR 531. In this case, a doctor was charged with sexually assaulting a three and a half year old child during an examination. He was acquitted after the trial judge found the child, then aged four and a half, incompetent to give unsworn evidence and refused to allow evidence of the child’s statements to her mother 15 minutes after the alleged incident. The Ontario Court of Appeal found that the trial judge had wrongly applied the test for sworn evidence when he found the child incompetent to give unsworn evidence and that the child’s statement fell into the hearsay exception for contemporaneous and spontaneous declarations. It ordered a new trial. The doctor’s appeal from that order to the Supreme Court of Canada was dismissed when the court affirmed that the trial judge had applied the wrong test for competence to give unsworn evidence. The court went on to find that the child’s statement did not fall into the hearsay exception for contemporaneous statements, but rather into a new hearsay exception declared by the court.
 id 546. However, the ‘necessity’ requirement was not limited to these circumstances,. In addition, ‘reasonably reliable’ was not limited to those circumstances that have traditionally been associated with reliable hearsay (ie contemporaneous and spontaneous statements) but is to be determined by taking into account the context in which the statement was made.
 R v P (J) (1992) 74 CCC(3d) 276 (Quebec Court of Appeal) aff’d (1993) 1 SCR 469. The child in this case was two and a half at the time of the incident and five at the time of trial.
 See Khan v College of Physicians and Surgeons of Ontario (1992) 9 OR(3d) 641 (Ontario Court of Appeal). This case involved the same accused and child witness as in R v Khan (See fn 213 above), this time in disciplinary proceedings for professional misconduct. The Disciplinary Committee of the College of Physicians and Surgeons of Ontario had admitted into evidence both the child’s evidence as well as testimony by child’s mother about the child’s statements to her. The Committee’s order that the doctor’s licence to practice medicine be revoked was overturned by the Ontario Divisional Court and appeal was then taken to the Ontario Court of Appeal, which reinstated the revocation order. A more restrictive approach is taken, however, in the case of older children: see R v Aguilar (1992) 10 OR(3d) 266 (Ontario Court of Appeal).
 We note that Evidence Act s 65 may permit the admission of hearsay statements by children in criminal trials in circumstances similar to those in R v Khan (see fn 213 above). However, the child must be ‘unavailable’ before such statements will be admissible under that section. The Act’s dictionary defines a person as unavailable if the person is dead, is not competent to give evidence about a fact, cannot be found or cannot be compelled to give evidence. Khan‘s necessity test sets out a much broader set of circumstances for the admissibility of a child’s statements. In addition, Khan‘s reasonable reliability test may also be broader than the high probability of reliability test in s 65(2)(c).
 s 97.
 s 97(1). The court has power to dispense with the notification requirement under s 100(1).
 Evidence Act s 101(2). Recently a majority of the High Court determined that a more restrictive rule of admissibility should be applied at common law: Pfennig v R (1995) 182 CLR 461. Applying the principles set out in Hoch v R (1988) 165 CLR 292, the court held that similar fact and propensity evidence will be admissible if ‘there is no reasonable view of the evidence consistent with the innocence of the accused’ (484). McHugh J in his dissent preferred a test of admissibility that balanced the probative strength of the evidence against the degree of risk of an unfair trial if the evidence were allowed. This test is reflected in Evidence Act s 101.
 (1995) 182 CLR 461.
 CK Maxwell ‘Tendency and coincidence evidence — Exclusionary rules, part 1’ (1996) 3(8) Crim Law News 62, 64.
 s 98.
 s 98(1). The court has power to dispense with the notification requirement under s 100(1).
 Evidence Act s 101(2).
 Evidence Act s 98(2).
 See CK Maxwell ‘Tendency and coincidence evidence — Exclusionary rules, part 2’ (1996) 3(10) Crim Law News 78.
 See Hoch v R (1988) 165 CLR 292; De Jesus v R (1986) 61 ALR 1.
 (1988) 165 CLR 292.
 Tendency and coincidence evidence may also be necessary where the prosecution wants to demonstrate a pattern of abusive behaviour by the alleged offender towards one child victim. The intention is to show that the crime that is the subject of the proceedings did not occur in a vacuum but is part of a ‘guilty passion’: see R v Beserick (1993) NSWLR 510; R v Harvey (unreported) NSW Court of Criminal Appeal 3 September 1996. There is a possibility that this kind of evidence falls foul of the tendency rule, although courts seem willing to admit it: eg Ware v R (unreported) Qld Court of Criminal Appeal 7 March 1987; R v Harvey (unreported) NSW Court of Criminal Appeal 3 September 1996.
 (1986) 68 ALR 1.
 (1988) 165 CLR 292.
 Confidential DRP Submission 18.
 Malcolm CJ, WA Supreme Court IP Submission 101.