The following article was published in the Law Institute Journal in November 2006.
The Victorian Government has swiftly implemented many of the Victorian Law Reform Commission’s (VLRC) recommendations for changes to the law to protect victims of sexual assault.
In August 2004, the VLRC launched its final report on sexual offences law and procedure, making 201 recommendations for change (see LIJ, October 2004).
The Commission’s recommendations intended to make it easier for complainants to give evidence in sexual offences trials. It has also recommended significant changes to directions given by judges to juries and changes to the legal requirement for proof in relation to the state of mind of the accused in rape cases.
The Victorian Attorney-General applauded the VLRC’s recommendations and the government has committed itself to a three-stage process for implementation of the legislative reforms.
Making it easier to give evidence
The VLRC recommended that all complainants in sexual offences trials have the right to give evidence remotely from the courtroom via closed-circuit television (CCTV), or within the courtroom with the use of screens to remove the accused from their direct line of vision.
The Crimes (Sexual Offences) Act 2005 creates a presumption that all children and people with a cognitive impairment give evidence via CCTV. These arrangements must be used, unless complainants are aware of their right but wish to give direct testimony.
Under the Crimes (Sexual Offences) (Further Amendment) Act 2006, these arrangements are extended to all complainants, creating a presumption that evidence will always be given in this manner. The onus is on the prosecution to apply for evidence to be given in the courtroom. All complainants will also have the right to have someone beside them when they give evidence, whether inside or outside the courtroom.
The hearsay evidence of children under 17 is now admissible in sexual offences cases. However, confidential communications between counsellors and their clients is no longer admissible, unless the court grants leave. It is also now prohibited to cross-examine complainants about any prior sexual experience or activity (whether consensual or non-consensual), unless the court determines that this evidence is of substantial relevance.
A new category of ‘protected witness’ has been created, including complainants and other members of their extended families. The accused is prohibited from cross-examining a protected witness. If the accused is not legally represented, and refuses to obtain representation, the court must order Victoria Legal Aid to provide representation.
Warnings to juries
As a result of the earlier reforms, judges must warn juries that the fact that a person did not do or say anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person’s free agreement.
However, research conducted by the VLRC indicated that in some cases, the use of the term ‘normally’ was having an effect contrary to the intention of the earlier reforms and recommended that this jury direction be amended to specifically state: ‘The fact that a person did not say or do anything to indicate free agreement to the particular sexual act at the time that the act occurred is evidence that the act took place without that person’s free agreement.’ This amendment has now been incorporated into the Crimes Act.
It is common for complainants to delay reporting sexual offences, or not to report at all. Since 1991, judges must tell the jury that there may be good reasons why a victim may delay reporting a sexual assault and should not suggest that the credibility of the complainant is in any way affected by a delay. However, in 1996 the High Court decided that this does not prevent a trial judge from warning juries that delay in reporting could affect the credibility of the complainant (known as a Crofts warning). It consequently became possible that juries received contradictory warnings.
Most sexual offences occur in situations where there are no witnesses. Since 1991, judges have been prevented from warning juries against convicting an accused unless the evidence of the complainant was supported by another witness. However, in another decision, the High Court determined that this does not remove the need to advise juries about the effect of delay on the ability of the accused to put forward a defence (known as the Longman warning).
The VLRC found that the intention of the original reforms was being undermined by these common law warnings, with the potential for contradictory directions being given to juries and has recommended that judges’ warnings to juries concerning delay in reporting should be clarified.
Under the recent amendments, judges’ warnings to juries regarding delay in reporting are restricted to situations where the accused has requested such a warning and the judge is satisfied that he has suffered significant forensic disadvantage as a result of the delay.
A report on the implementation of the VLRC’s non-legislative recommendations will appear in this column in a future issue of the Law Institute Journal.