Patterns of Sexual Behaviour: The Law of Evidence: Back to the Future in Australia and England

Abstract A recent Victorian Court of Appeal ruling Velkoski v The Queen [2014] VSCA 121 (18 June 2014). [in Australia] has sparked concerns that a clamp down on the way child abuse cases are handled could thwart convictions. The Court of Appeal justices ruled only cases that are “remarkably” similar would go before the same jury, making it harder for allegations from multiple complainants to be heard together. There are concerns that this will reduce the number of convictions for sexual offences, especially for those against children. Farnsworth, S., Tendency evidence: Concerns Court of Appeal ruling could thwart child abuse convictions (3 October 2014). http://www.abc.net.au/news/2014-10-03/concerns-child-sex-ruling-could-thwart-convictions/5789952 accessed on 25 February 2015. This article explores the approach in England and Wales, and Australia to evidence of a pattern of behaviour, focussing on when it is adduced in cases involving sexual abuse. We first consider the shared common law history of the two jurisdictions before exploring how common law and legislative changes have led to surprisingly different positions in the two countries. We conclude by suggesting a simpler and more rational approach which has started to emerge and could be adopted in both countries, and indeed should be considered in any jurisdiction.