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International Commentary on Evidence

Editor-in-Chief: Singh, Charanjit

SCImago Journal Rank (SJR) 2018: 0.108

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

Q. C. Felicity Gerry
  • Corresponding author
  • London Bar, NTBA and School of Law, Charles Darwin University, Ellengowan Dr, Casuarina, NT 0810, Australia
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/ Catarina Sjölin / Gregor Urbas
Published Online: 2015-05-20 | DOI: https://doi.org/10.1515/ice-2014-0012


A recent Victorian Court of Appeal ruling1 [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.2 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.

Keywords: child abuse; court of appeals; sexual behaviour

About the article

Q. C. Felicity Gerry

Felicity Gerry QC LLB (Hons) is admitted to the Bar of England and Wales and to the Supreme Court of the Northern Territory of Australia. She has been recognised in the Legal 500 as a “fearless and effective advocate” and “tenacious in court” and “an expert in the field of sex offences” and in Chambers and Partners as “a vastly experienced advocate noted for her expertise in serious sexual offences, homicides and complex frauds”. Since 2013, Felicity has also held a research active post at Charles Darwin University, Australia, focussing on data and rights, particularly in the context of violence against women and girls and the rule of law online. She is Chair of the Research and Research Training Committee in the School of Law and co-author of the Sexual Offences Handbook. www.felicitygerry.com; email: felicity.gerry@cdu.edu.au.

Catarina Sjölin

Catarina Sjölin MA (Hons), LLM (Cantab) is a Senior Lecturer at Nottingham Law School, Nottingham Trent University. She teaches, amongst other things, Criminal Law. She is also a barrister with 15 years’ experience at the criminal bar in England and is the co-author, with Felicity Gerry QC and Lyndon Harris, of the Sexual Offences Handbook. Email: catarina.sjolinknight@ntu.ac.uk.

Gregor Urbas

Gregor Urbas BA(Hons), LLB(Hons), PhD (ANU) is an Associate Professor of Law at the University of Canberra and an Adjunct Associate Professor at the Australian National University and at Simon Fraser University in Canada. He teaches Criminal Law and Procedure, Evidence Law and related subjects. He is also admitted as a Legal Practitioner in the Australian Capital Territory Supreme Court and the High Court of Australia. Email: Gregor.Urbas@canberra.edu.au.

Published Online: 2015-05-20

Published in Print: 2013-12-01

Citation Information: International Commentary on Evidence, Volume 11, Issue 1, Pages 29–65, ISSN (Online) 1554-4567, ISSN (Print) 2194-5691, DOI: https://doi.org/10.1515/ice-2014-0012.

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