Misconceptions or expert evidence in child sexual assault trials: Enhancing justice and jurors' "common sense"

Although sexual assault is the most frequently charged offence in the New South Wales higher courts, it is characterised by high attrition rates before trial and low conviction rates at trial. The feedback effect of low conviction rates influences the type of sexual assault cases that prosecutors will take to trial. While insufficiency of evidence might account for low conviction rates, there is evidence that a pervasive scepticism, based on myths and misconceptions which favour the defence case, influences jurors' decisions. Expert evidence to counteract these misconceptions is one solution to educate jurors about the counterintuitive behaviours of child complainants. However, provisions under the Uniform Evidence Acts which would admit such evidence are rarely, if ever, utilised. In light of a number of empirical studies and the fair trial principle, this article examines the types and reliability of expert evidence that would be admissible in child sexual assault trials under the Uniform Evidence Acts in order to guide prosecutors about when they can tender this type of evidence more frequently.