Improving the Justice System Response to Sexual Offences: Report (html)

19. Sexual offence trials: key issues

Overview

• The fundamental aims and principles of the criminal justice system mean that it may not always give people who experience sexual violence the justice they need.

• Key features of our justice system sometimes make it hard for sexual offences to be proved in court, and hard for victim survivors to go through the process.

• Many factors that affect the experience of victim survivors who go to court, such as delay or the scope for appeal, are issues that affect the broader criminal justice system.

• There have been decades of reform to address these issues. There are also key reforms, such as to tendency and coincidence evidence and joint trials, that are still in progress. We recommend that the government implement recommendations from our Committals report.

• Given how critical this evidence is to sexual offence trials, we recommend that reforms to tendency and coincidence evidence are evaluated.

• We also acknowledge concerns about appeals, especially the negative impacts appeals may have on complainants. We suggest a review of appeals.

The fundamental features of the trial process

What is the role of a trial?

19.1 Sexual offences are heard in different places within our criminal justice system. ‘Summary’ sexual offences are heard in the Magistrates’ Court of Victoria and decided by a magistrate. ‘Indictable’ sexual offences (usually more serious offences, including rape and sexual assault) are heard in a trial in the County Court of Victoria. Most criminal offences, including all sexual offences involving child accused, are heard in the Children’s Court of Victoria by a magistrate.^[1]

19.2 The trial is an essential feature of Australia’s criminal justice system. The rules of evidence and procedure reflect the community’s sense of what is fair. In the adversarial system, the trial is a contest between the prosecution, acting as the state’s representative, and the accused, who is usually represented by defence counsel. The person who says they have suffered the harm (the complainant) is not a party to the proceeding. They are a witness.

19.3 The prosecution and defence decide how to conduct their cases and define the issues for the jury to consider. The case is presented mostly by witness evidence (including the complainant as a witness).

19.4 In sexual offence trials, the complainant will usually give their main evidence (evidence-in-chief) before being questioned (cross-examined) by the defence and again (re-examined) by the prosecution. If the accused is convicted, complainants can talk about the experience and impact of the sexual offence committed against them by making a victim impact statement at the sentencing hearing.^[2]

19.5 The judge ensures that the rules of evidence and procedure are followed. After the prosecution and the defence have presented their cases, the judge instructs the jury about the law to be applied. The jury then decides whether the prosecution has proved beyond reasonable doubt that the accused committed the crimes charged.

19.6 The trial is therefore:

not an inquiry into ‘the truth’. It is a process by which the prosecution seeks to prove guilt beyond reasonable doubt, and in various ways the presumption of innocence manifests. For the defence, gaps in the prosecution case are typically its focal point. They have no ultimate burden of proof, but their focus will be on raising reasonable doubt regarding the prosecution’s case. This focus on procedural truth, in contrast to objective truth, acknowledges that truth-seeking is an objective, but not the sole objective.^[3]

19.7 The accused is entitled to a fair trial. The accused is presumed to be innocent until proved guilty. The accused has rights and minimum guarantees to ensure a fair trial.^[4]

19.8 The prosecution must act independently and impartially and conduct the case fairly. It must disclose all evidence relevant to the charges against the accused, even if that might undermine the prosecution case or assist the defence.^[5] The prosecution must also act in the public interest, which may not always align with the complainant’s interest.

19.9 This means that within our legal system the role of a complainant in a trial is limited. As Jonathan Doak has said:

Although many victims may feel as though they are ‘owed’ a right to exercise a voice in decision-making processes, such as prosecution, reparation and sentencing, the criminal justice system places such rights or interests in a firmly subservient position to the collective interests of society in prosecuting the crime and imposing a denunciatory punishment.^[6]

19.10 This was recognised in our recent inquiry into the role of victims of crime at trial. However, as we discussed in depth there, this role is evolving and they are now recognised as having an interest in the criminal justice system’s response and as a participant in the proceedings.^[7]

The criminal justice system has its limits

19.11 Changing fundamental features of our criminal justice system, such as the burden and standard of proof or the adversarial nature of the trial, would have wide-ranging effects, including on the right to a fair trial. Any such changes would need to have strong support and evidence. We did not find such support or evidence in this inquiry.

19.12 We recognise, however, that some of these fundamental features mean that the criminal justice system will limit how much it can provide the form of justice that some people who experience sexual violence need. As we discuss in Chapter 2, people have different ‘justice needs’ that the criminal justice system may not meet.

19.13 Some of these features also make sexual offences more difficult to prove in court. By their nature, sexual offending often happens in private, without other witnesses. The accused does not have to give evidence because they have a right to silence. For rape, the need to prove there was no consent means that many cases will end up focusing on the complainant. For these reasons, trials for sexual offences are also more likely to be more distressing and invasive for complainants.

19.14 As counsellor advocates told us, reforms can and have made the system kinder, but that will not address the fundamentals of a system that pits one person’s word against another.^[8]

19.15 For these reasons, we have recommended a range of other justice options (see Chapters 9, 10 and 11) that may better meet the different needs of people who experience sexual violence. We also recommend more focus on preventing sexual offending and earlier responses to sexual offending (see Chapters 3 and 13).

Improving the court process still matters

Trials have value to society and victim survivors

19.16 Despite these limits, the criminal justice system is still the main response of our society to sexual offending. The courts are where people are tried for their crime and, if they are held to account, where sexual offending is denounced. They are a forum where the community’s understandings about sexual violence play out. For at least some people, it is an experience that affirms what happened to them, and which protects others from further violence.

19.17 In Chapter 1 we discuss data on the number of people who go to trial. Even though few people who have experienced sexual violence go to trial, it still matters what happens at them. The system can still be made kinder and the decision-making process can still be improved. There are still ways we can improve the trial process and, despite the limits of the system, it is still worth the effort.

The court process keeps being reformed

19.18 There have been decades of law reforms, in Australia and elsewhere, to improve the court process for dealing with sexual offences (see Table 18).

Table 18: Recent key reforms to trials for sexual offences

19.19 As we discuss in Chapter 1, we have not focused on issues that are part of ongoing reform processes, including reforms to tendency and coincidence evidence and our recent inquiry on committals, which we discuss below. We also note that many of the issues in our inquiry will be considered in a recently announced national initiative looking at key issues of evidence and procedure.^[9]

19.20 Our Committals report recommended:

• abolishing the test for committal

• improving charging practices and disclosure

• other measures to reduce trauma, such as requiring magistrates to consider the need to minimise trauma when deciding whether to grant leave to cross-examine an adult complainant.^[10]

19.21 These reforms have not yet been implemented. But given the benefits of those proposed reforms to sexual offence trials, we call on the government to adopt them.

19.22 The Sentencing Advisory Council has also recently published a report evaluating sentencing reforms for sexual offences,^[11] and on the sentencing of image-based sexual abuse offences.^[12] This inquiry has therefore not considered the sentencing of sexual offences.

19.23 In Chapters 20 and 21, we make recommendations that focus on improving the decision-making process of the jury, and on improving the respect for the complainant within the trial. In Chapter 18, we focus on a specialised approach to sexual offences that should improve both the decision making in trials and the complainant experience.

19.24 In this chapter, we discuss three key issues that have an important effect on sexual offences, although they extend beyond them:

• delays

• tendency and coincidence evidence

• appeals.

Delays need to be reduced

The effects of delay are profound

19.25 Sexual offence trials take a long time. This is a longstanding issue.^[14] We continued to hear in this inquiry that the time taken to go through the process:

• prolongs complainants’ trauma and makes it difficult for them and their families to move on with their lives

• leads to complainants choosing not to report or to withdraw from their case

• affects the quality of complainants’ evidence

• leads to a breakdown in relationships between the complainant and the prosecution.^[15]

19.26 These effects are even greater when victim survivors are children or have a cognitive impairment.^[16] Unexpected or last-minute changes to court schedules are often disruptive and discouraging.^[17] The Gatehouse Centre explained:

the constant changing of dates and the last-minute cancellations of hearings can be very disruptive to the lives of children and their families. The anxiety arising in the lead-up to every hearing date and the multiplication of this anxiety by the frequent (often last minute) rescheduling of meetings can have detrimental psychological and physical health effects. In one recent case, Gatehouse supported a young person in their final year of school. The frequent rescheduling of hearing dates and the concomitant exacerbation of this young person’s anxiety led to her missing an entire term of school. It is impossible to precisely calculate the long-term impact these disruptions will have on this young person’s future education and career opportunities, but the risk for considerable damage is very real. In such a case, it would be reasonable for this young person to conclude that seeking justice only harmed her further.^[18]

Previous reforms have tried to address delay

19.27 There have been many reforms to address delay in sexual offence cases. The laws set out time limits for:

• pre-trial procedures (for example, a committal mention hearing must be held within three months of the commencement of the criminal proceeding)^[19]

• indictments (28 days after a committal, and 14 days if the complainant is a child or a person with a cognitive impairment)^[20]

• special hearings, discussed in Chapter 21 (within three months of committal)^[21]

• starting trials (within three months of committal).^[22]

19.28 These time limits are often not met, mainly because of a lack of resources.^[23] However, sometimes delay cannot be avoided. The OPP stated that sometimes delay cannot be avoided and that every case is ‘unique, and it is difficult to place a firm timeframe on how long sexual offence prosecutions as a class should take to be finalised’.^[24]

19.29 Delays are also addressed by changes to improve case management and specialist lists and emergency case management processes because of COVID-19.^[25] Other measures include the use of specialised police prosecutors and priority for eCrime analysis in cases involving child abuse materials with a child complainant.^[26]

19.30 The impact of COVID-19 has also made delay worse in the courts. The Criminal Bar Association explained ‘COVID-19 adds to “ordinary” or “usual” delays in the movement of all prosecutions from investigation to verdict’.^[27] Delay was also reported as worse in regional circuit courts.^[28]

19.31 The Victorian Government has recently announced increased funding to reduce backlogs in courts.^[29]

19.32 We also recommended reducing pre-trial delay in our Committals report (see box). The recommendations have not yet been implemented.

How much delay is there?

19.33 Sexual offences usually take much longer than other cases to be resolved.^[31] As Chapter 6 discusses, there is not much data that identifies the causes of delay.^[32] While we know how long trials take, we still do not have a good sense of how much of this is delay that can be avoided.

19.34 For most incidents (approximately 63 per cent) charges are laid within three months of an incident being reported to police.^[33]

19.35 We requested data from the Office of Public Prosecutions (OPP) and the County Court of Victoria that shed some light on key stages in a trial process. The OPP has data on the average time between a filing hearing^[34] and a sexual offences trial. This shows that in each of the financial years from 2014–15 to 2018–19, sexual offences trials were on average per year brought to trial in 11.6 to 15.7 months. More recently in 2019–20 the average time was significantly faster at 7.7 months.^[35]

19.36 The County Court of Victoria provided us with data that suggested there has been a small increase in the number of cases being resolved by a plea of guilty before trial in the past few years (from under 75 to around 87 per cent).^[36]

19.37 The County Court of Victoria also provided data on the average time between a case starting and finishing. There was not much change over the last 10 years, with the average time per year hovering between 7 and 9 months, except for 2019–20 (which was affected by COVID-19). For most of this time, this average was reduced in cases involving a child or someone cognitively impaired, to between 6 and 7 months, but had increased to nearly 9 months in 2018–19 and 9.8 months in 2019–20.^[37]

19.38 The County Court of Victoria’s data indicated, however, that the number of cases which took less than 12 months to complete had also dropped in 2018–19, with more cases taking between 18 to 24 months.^[38]

What causes delay?

19.39 Although we cannot easily identify the reasons for delay from the data, some reasons were identified during our inquiry (see Table 19).

Table 19: Causes of delay

19.40 The Law Institute of Victoria observed a correlation between an accused facing a long sentence and their determination to fight the case to its conclusion.^[55] We also heard that the defence could use procedural rules to prolong a case or as ‘stalling tactics’.^[56]

The work on reducing delay must continue

19.41 As the identified causes of delay show, there are many reasons why trials are delayed. Some of these cannot be avoided, such as adjournments to afford procedural fairness to the accused or measures such as the use of intermediaries that protect the complainant’s interest.

19.42 Many of them point to systemic issues across our criminal justice system, such as a need to invest more resources in the system. We recommend this as the first and most urgent task of reform in Chapters 4 and 5. The effects of COVID-19 only make that task more urgent.

19.43 Our previous recommendations in our Committals report also address some of these issues (see box above). As discussed above, the government should implement these, given the benefits they have for sexual offence trials. In Chapter 6, we also identify the need to introduce measures to track and explain delay, and recommend that a working group on data find ways to record and address causes of delay more systematically.

19.44 We recommend some other measures that may also affect delay in this report. Introducing a model of a victim advocate in Chapter 12 may encourage more timely responses than is currently the case, as someone will be responsible for identifying progress in cases. A victim advocate could also help to support complainants through delays.

19.45 In Chapter 17, we recommend specific training for police, including to improve the quality of investigation.

19.46 In Chapter 21, we recommend that all complainants should also have the option of pre-recording evidence. This could reduce the time taken for a complainant waiting to give evidence, which is a key cause of stress.

19.47 The recommendations in Chapters 4 and 5 for systemic reform and improving collaboration should also improve the way elements of the criminal justice system come together and provide feedback on delays. For example, the feedback process that should be included in the multi-agency protocol recommended in Chapter 4 should include requiring agencies to identify causes of delay in cases and take steps to reduce it.

Tendency and coincidence evidence can be critical in child sexual abuse cases

What is tendency and coincidence evidence?

19.48 Evidence of other allegations of sexual offending by an accused may be admitted in a trial as ‘tendency and coincidence’ evidence. Tendency evidence (also known as ‘propensity’ evidence) is used to prove that an accused person has a tendency to act in a certain way or have a certain state of mind.^[57]

19.49 Coincidence evidence (also known as ‘similar fact’ evidence) refers to the improbability that two or more events coincided, in order to prove that the accused acted in a certain way or had a certain state of mind.^[58] This evidence is likely to play a role in sexual offence trials concerning child sexual abuse.

19.50 Tendency evidence and coincidence evidence are not admissible unless:

• the court thinks that the evidence will have significant probative value

• the probative value of the evidence must substantially outweigh its prejudicial effect.^[59]

What are joint trials?

19.51 Where more than one person alleges sexual offending by an accused, the prosecution can ask for a joint trial of all the charges. Whether this is allowed often depends on the ‘cross-admissibility’ of tendency and coincidence evidence, meaning that allegations from one complainant can be supported by the evidence of other complainants.

19.52 In Victoria, there is a presumption in favour of joint trials for sexual offence cases.^[60] However, the Office of Public Prosecutions (OPP) told us that trials are likely to be split (‘severed’) if the defence requests it, because it is presumed that having multiple complainants will be prejudicial and risk an unfair trial.^[61]

19.53 The OPP explained the many problems that arose if trials were severed, especially in closely linked cases. They told us these problems included:

• Much of the evidence would have to be repeated in separate trials.

• Proceedings would be longer and cost more.

• The interview with an accused would need to be heavily edited, which could make it much less coherent or invite speculation from the jury.

• There was a substantial risk that a jury would have to be discharged if offending associated with the severed trial was inadvertently raised in evidence.

• It may mislead the jury into thinking that only one of many children were alleging abuse.^[62]

19.54 Victoria Police also noted that when trials are severed, it can be traumatising for complainants.^[63] A victim survivor suggested keeping complainants in family groups, rather than splitting cases—they thought that splitting cases favoured the accused.^[64]

Reforms to tendency and coincidence evidence are underway

19.55 Courts have considered the application of rules about tendency and coincidence evidence.^[65] More recently, the Royal Commission into Institutional Responses to Child Sexual Abuse recommended changing the laws to make it easier to admit tendency and coincidence evidence in child sexual abuse trials, and to join trials.^[66]

19.56 Their reasoning was that:

• Tendency evidence and coincidence evidence are highly relevant, without a significant risk of unfair prejudice to the accused.

• Joint trials are less traumatising for complainants because they can feel supported by other complainants.

• Juries without a joint trial may be denied the opportunity to hear accounts that give the true picture of what is alleged to have happened.

• Laws relating to the admissibility of tendency and coincidence evidence have become too ‘complicated and unfairly protective of the accused’.^[67]

19.57 In response, the Council of Attorneys-General agreed to implement a Model Bill that would change the test on tendency and coincidence evidence in the Uniform Evidence Law.^[68] Importantly, these include changes so that:

• It will be presumed that any tendency evidence about the accused’s sexual interest in children, or the accused acting on a sexual interest in children, has significant probative value. This presumption can be overcome only if the court is satisfied that there are sufficient grounds to do so.^[69]

• The restriction on admitting both tendency and coincidence evidence will be changed, so that the probative value of the evidence need only ‘outweigh’, rather than ‘substantially outweigh’, the danger of unfair prejudice to the accused.^[70]

19.58 New South Wales has already implemented this change.^[71] Victoria has indicated it intends to introduce legislation implementing the Model Bill in 2021.^[72]

Tendency and coincidence reforms are important and should be evaluated

19.59 This ongoing reform process is already underway, so we do not recommend any changes to tendency and coincidence evidence. We also note the Australian Government’s decision to lead discussions on a national approach to justice for victim survivors of sexual assault, harassment and coercive control—this may include consideration of tendency and coincidence evidence.

19.60 We heard mixed views on these proposed reforms, so we have summarised what we heard below. In line with our recommendations in Chapter 6, we recommend that these reforms should be evaluated.

19.61 Victoria Legal Aid and Liberty Victoria, among others, expressed concerns about the Model Bill, or were strongly opposed to its adoption.^[73] They told us that the proposed laws:

• will be too broad and therefore unfair to the accused, by undermining the presumption of innocence and creating a genuine risk of innocent people being convicted of crimes^[74]

• would be difficult to apply by courts and may create complex laws leading to appeals and retrials^[75]

• will lower the threshold for admitting tendency and coincidence evidence in all criminal cases, not just those involving child sexual abuse.^[76]

19.62 Others, such as knowmore legal service, the Victims of Crime Commissioner and Sexual Assault Services Victoria, supported the proposed reforms.^[77] The OPP noted that there were advantages in a consistent national approach, and also thought the Model Bill could resolve some concerns it had expressed about severed trials.^[78]

19.63 In Chapter 6, we recommended that, when introducing reforms, the Victorian Government should, at an early stage, consider how to evaluate the impact of reforms, including the data that will need to be collected. Alongside this, and given how important reforms to tendency and coincidence evidence are, and the concerns expressed about the reforms, we recommend that the proposed Working Group referred to in Chapter 6 should plan to review the reforms after three years to find if they are effective and working fairly.

There might be a case for improving appeals in sexual offences

How do appeals work?

19.64 A convicted person has a right to appeal their conviction or sentence to a higher court.^[79] Appeals play an important role in correcting legal errors or miscarriages of justice.

19.65 There are many reasons for appeals, such as miscarriages of justice, legal or procedural errors, fresh evidence and excessive sentences.

19.66 Appeals from the Magistrates’ Court of Victoria or Children’s Court of Victoria are heard by the County Court of Victoria.^[80] Appeals from the County Court of Victoria or Supreme Court of Victoria are only available if the Victorian Court of Appeal gives permission (‘grants leave’).^[81] Similarly, the High Court of Australia can decide if an appeal should be heard (‘special leave’).^[82]

19.67 If a defendant succeeds in the appeal, the court may order that they can be re-tried, acquitted or their sentence changed.^[83] If a court orders a re-trial, the Director of Public Prosecutions decides whether to proceed with a new trial.^[84]

19.68 Complainants are generally only required to give evidence in the original trial. Appeal judges have access to the transcript of the trial and evidence before the trial, including recorded evidence (as discussed in Chapter 21).^[85]

19.69 There have been many reforms to the law and practice of appeals. These include:

• an interlocutory appeals procedure, which allows certain errors to be addressed before or during the trial^[86]

• a reduction in the number of appeals based on erroneous jury directions, as a result of reforms to jury directions^[87]

• using the same defence counsel at trial and appeal^[88]

• introducing a Registrar of Criminal Appeals and support solicitors^[89]

• abolishing appeals that required a court to look at the matter afresh (‘de novo’) at the County Court of Victoria.^[90]

How many appeals are there in sexual offence cases?

19.70 Recent data from the Judicial College of Victoria indicate that in the year 2019–2020, there were 26 successful appeals against conviction and 50 successful appeals against sentence in the Victorian Court of Appeal. This refers to all matters, not just sexual offences.^[91]

19.71 The most common errors related to errors in sentencing and unreasonable jury verdicts. The study notes that both these grounds are

intrinsically difficult to address. The former, because of the discretionary nature of sentencing and the often non-specific nature of the error, and the latter due to the highly fact-specific nature of such errors and the fact that jurors are called to perform a difficult task, without training, on a single occasion.^[92]

19.72 The Supreme Court of Victoria provided data on the number of sexual offence appeals that shows:

• applications for leave to appeal in sexual offence matters accounted for 18.8 per cent of all applications for leave to appeal (sentence and conviction appeals; this excludes interlocutory appeals)

• successful appeals (appeal allowed in whole or in part) in sexual offence matters accounted for 24.6 per cent of all successful appeals.^[93]

Appeals can have negative impacts on those involved

19.73 Appeals that result in retrials can draw out the process for those involved and are:

undesirable … for all parties to the proceedings, as well as the community, particularly if it results from technical rather than substantive issues. Regardless of the outcome of a further trial, a high rate of retrials has the capacity to damage public confidence in the criminal justice system and result in court delays. The accused has the right to be confident that the jury will be instructed correctly and that the trial will be conducted once; witnesses should expect to give evidence on one occasion, unless exceptional circumstances exist, and the jury should be able to comprehend the directions given to them.^[94]

19.74 Appeals prolong the criminal justice process for complainants. This can prevent them from moving on with their lives.^[95]

19.75 The Child Witness Service told us:

More matters seem to be granted an appeal even when out of time, with examples given of appeals granted 18 months after a conviction and cases that had gone on for five years where those witnesses now had their own children, and those witnesses asked: ‘What’s the point? We give up now.’^[96]

19.76 We also heard that complainants can feel excluded in appeals against sentence, because the focus is on the defendant.^[97]

19.77 The Magistrates’ Court of Victoria reported that limits on recording evidence in summary cases meant that complainants had to give evidence again if the matter was appealed to the County Court of Victoria, which is undesirable.^[98] We make recommendations about recording evidence in Chapter 21.

People suggested ways to improve appeals

19.78 The OPP suggested the appeal court should have a general power to inform itself in any way it thinks fit to reach a decision, such as by viewing recorded evidence.^[99] Sometimes an appeal court may only refer to the trial transcript.^[100]

19.79 We also heard that a much greater number of appeals are initiated than those that succeed on the ground that a verdict is unreasonable or cannot be supported by the evidence (also known as the ‘unsafe and unsatisfactory’ ground).^[101] This ground of appeal:

requires an appellate court to make findings of fact to determine whether there was an error in the jury’s guilty verdict. The confidentiality of jury deliberations means that the jury’s actual decision-making process is ‘inscrutable’ to an appellate court. Therefore, the appellate court must infer whether the jury made an error.^[102]

19.80 The Honourable Justice Chris Maxwell AC stated that these cases involve a significant amount of court resources and time and increase the period of uncertainty for the complainant.^[103] Academic commentary also questions how much appeal judges are better placed to assess guilt beyond reasonable doubt compared to a jury.^[104]

19.81 The OPP told us that it has noticed ‘an increase in the numbers of convictions being set aside in the Court of Appeal involving offences over 40 years’.^[105]

19.82 In a recent case, the Court of Appeal expressed ‘disquiet at the apparently increasing frequency with which cases involving delays in the order of 40 to 60 years are coming before the Court’. It observed:

While it is true that some trials may be fairly held in such circumstances, and the responsibility for deciding whether criminal proceedings should be maintained lies, in the first instance, with the Executive, the forensic difficulties which delays of this order of magnitude inflict suggest that such trials should be rare. It is of course relevant, in deciding whether to grant a permanent stay, to take account of the relative seriousness of the charges. It is to be expected that this is also a matter taken into account in deciding whether to bring charges in the first place.^[106]

19.83 This likely makes it harder for complainants in historical sexual abuse cases to get an outcome through the justice system and maintain a conviction.

19.84 Sexual Assault Services Victoria suggested that the right of appeal could be limited to cases ‘where there is additional evidence rather than there being an automatic right’.^[107]

19.85 The Criminal Bar Association told us that ‘the best way to address challenges with appeals is to ensure trials are run fairly at first instance’. It said that the right to seek leave to appeal ‘is a vital safeguard to remedy miscarriages of justice and should not be changed’.^[108]

19.86 The Victims of Crime Commissioner told us there was a need to examine sexual offence appeals to understand how the law was working. This included, for example, ‘the complexity of some elements of sexual assault offences, including the construction of “reasonable belief” in consent’.^[109]

19.87 We also heard that the success of the Jury Directions Act 2015 (Vic) in reducing the number of appeals based on errors in jury directions needed to be independently reviewed.^[110]

Appeals for sexual offence cases should be reviewed

19.88 In every case involving sexual offences, there are many complex factors that may lead to different appeal outcomes. We note the concerns raised in this inquiry about appeals. However, similarly to attrition, which we discuss in Chapter 6, there is also no easy way to identify what is going on without a close review of the reasons for the decisions.

19.89 In Chapter 17, we recommend a qualitative review of police and prosecution files to identify the factors that influence a case not progressing. Consistently with that recommendation, we also recommend a review of appeal decisions and data to identify:

• if there are trends in successful appeal decisions

• the characteristics of cases that lead to successful appeals

• any legal or process reforms that could address undesirable appeal outcomes.

19.90 This is consistent with the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse that state governments should monitor appeals in child sexual abuse cases to identify areas of the law in need of reform.^[111] The Victorian Government accepted this recommendation.^[112]

1. The definition of a child for this purpose is those aged 10 or above and aged under 18 at the time of the offence, but does not include anyone 19 years or older at the time the proceeding commences: Children, Youth and Families Act 2005 (Vic) ss 3 (definition of ’child’), 516. The other Division of the Children’s Court is the Family Division which hears applications relating to the protection and care of children and young persons at risk, and applications for intervention orders.

   ↑

2. Victims’ Charter Act 2006 (Vic) s 13.

   ↑

3. Jill Hunter et al, The Trial: Principles, Process and Evidence (Federation Press, 2nd ed, 2021) 3.

   ↑

4. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24–25.

   ↑

5. See David Plater, ‘The Development of the Prosecutor’s Role in England and Australia with Respect to Its Duty of Disclosure: Partisan Advocate or Minister of Justice?’ (2006) 25(2) University of Tasmania Law Review 111.

   ↑

6. Jonathan Doak, ‘Victims’ Rights in Criminal Trials: Prospects for Participation’ (2005) 32(2) Journal of Law and Society 294, 299–300.

   ↑

7. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) chs 2–3. This is now reflected in Victims’ Charter Act 2006 (Vic) s 4(ba).

   ↑

8. Consultation 25 (CASA senior counsellor/advocates). We note that such characterisations of sexual offence trials (also referred to ‘word on word’ or ‘she said/he said’) may not be accurate. Often, the accused does not give evidence. There may be other evidence supporting the complainant’s evidence such as DNA evidence, expert evidence and CCTV footage. The researchers in our transcript analysis suggest that a more accurate description ‘might be “she said/she’s lying”, which serves to underscore just how firmly the focus remains on the complainant, and how regular lying assertions are’: Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

   ↑

9. Attorney-General for Australia and Minister for Industrial Relations (Cth), ‘Leading a National Approach to Justice for Victims and Survivors of Sexual Assault, Harassment and Coercive Control’ (Media Release, 17 May 2021) <https://www.attorneygeneral.gov.au/media/media-releases/leading-national-approach-justice-17-may-2021>.

   ↑

10. Victorian Law Reform Commission, Committals (Report No 41, March 2020) Recommendations 3, 19–37, 42–8.

    ↑

11. Sentencing Advisory Council (Vic), Sentencing Sex Offences in Victoria: An Analysis of Three Sentencing Reforms (Report, June 2021) <https://www.sentencingcouncil.vic.gov.au/publications/sentencing-sex-offences-in-victoria-an-analysis-of-three-sentencing-reforms>.

    ↑

12. Sentencing Advisory Council (Vic), Sentencing Image-Based Sexual Abuse Offences in Victoria (Report, 27 October 2020) <https://www.sentencingcouncil.vic.gov.au/publications/sentencing-image-based-sexual-abuse-offences-in-victoria>.

    ↑

13. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021). Minor typographical edits have been made.

    ↑

14. Delays were a major theme in our report in 2004: Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004)
    
    ch 3.

    ↑

15. Submissions 13 (Australian Association of Social Workers), 14 (Gatehouse Centre, Royal Children’s Hospital), 17 (Sexual Assault Services Victoria), 18 (In Good Faith Foundation), 20 (Anonymous member of Aboriginal community), 21 (Victorian Aboriginal Child Care Agency), 22 (knowmore legal service), 62 (Shine Lawyers (on behalf of Ms Kim Elzaibak)); Consultations 15 (Child Witness Service), 25 (CASA senior counsellor/advocates), 53 (Elizabeth Morgan House and a victim survivor of sexual assault), 54 (Lucille Kent, a victim survivor of sexual assault), 62 (Mark, a person who has experienced sexual harm).

    ↑

16. Consultation 25 (CASA senior counsellor/advocates). See also Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Parts VII to X and Appendices, 2017) 207–10.

    ↑

17. Submission 14 (Gatehouse Centre, Royal Children’s Hospital); Consultation 54 (Lucille Kent, a victim survivor of sexual assault).

    ↑

18. Submission 14 (Gatehouse Centre, Royal Children’s Hospital).

    ↑

19. Criminal Procedure Act 2009 (Vic) s 126. The court may extend this: s 126(2).

    ↑

20. Ibid s 163. The court may extend or shorten this: s 247.

    ↑

21. Ibid s 371. The court may extend this time: s 371(2).

    ↑

22. Ibid s 212. If there is no committal, the time period begins at the time the indictment is filed or, if a new trial is ordered by the Court of Appeal, the time period begins on the day the order is made. The court may extend this period: s 247.

    ↑

23. Submission 63 (Office of Public Prosecutions); Consultation 71 (Magistrates’ Court of Victoria (No 1)).

    ↑

24. Submission 63 (Office of Public Prosecutions).

    ↑

25. County Court of Victoria, Annual Report 2019–20 (Report, 2020) 20–2 <https://www.countycourt.vic.gov.au/files/documents/2021-02/ccvannualreport2019-20.pdf>.

    ↑

26. Consultation 71 (Magistrates’ Court of Victoria (No 1)). eCrime (also known as ‘cyber crime’) involves the misuse of electronic devices, such as computers, mobile phones or other electronic devices that have internet access.

    ↑

27. Submission 47 (Criminal Bar Association).

    ↑

28. Consultation 15 (Child Witness Service).

    ↑

29. Daniel Andrews (Premier of Victoria), ‘Supporting Our Courts To Drive Down COVID-19 Backlogs’ (Media Release, 13 May 2021) <http://www.premier.vic.gov.au/supporting-our-courts-drive-down-covid-19-backlogs>.

    ↑

30. Victorian Law Reform Commission, Committals (Report No 41, March 2020).

    ↑

31. In all courts in Australia, the median duration for cases where the principal offence involved sexual offences to be resolved where defendants were proved guilty was 32.3 weeks in 2019–20, with homicide and related offences being the only category that took longer. The publicly available data does not include the duration of cases by type of offence for states and territories. For higher courts, the median duration for sexual offences was 38.9 weeks in higher courts and 22.6 weeks in Magistrates’ Courts: Australian Bureau of Statistics, Criminal Courts, Australia, 2019-20 (Catalogue No 4513.0, 25 March 2021) Table 11 <https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release>. Appeals for sexual offence cases may also take longer to finalise, taking on average 8.5 months compared to 7.2 months for all appeals (excluding 2019–20): Submission 66 (Supreme Court of Victoria).

    ↑

32. See also Victorian Law Reform Commission, Committals (Report No 41, March 2020) [3.24]–[3.35].

    ↑

33. S Bright et al, Attrition of Sexual Offence Incidents through the Victorian Criminal Justice System: 2021 Update (Report, Crime Statistics Agency, 2021). This analysis included offences recorded by police in the 2015–16 and 2016–17 financial years.

    ↑

34. This is the first hearing in the committal process. It usually occurs after charges are laid: Criminal Procedure Act 2009 (Vic) ss 101–102.

    ↑

35. Data provided by the Office of Public Prosecutions (Vic) to the Victorian Law Reform Commission, 12 July 2021.

    ↑

36. Data provided by the County Court of Victoria to the Victorian Law Reform Commission, 20 January 2021. Before 2016–17, this percentage was under 75%. The percentage reflects the cases where a plea of guilty was entered before ‘the door of the court’ (that is, on the first day of trial), compared to the total number of guilty pleas. This percentage indicates cases that most likely could have been resolved earlier before trial.

    ↑

37. Ibid.

    ↑

38. Ibid.

    ↑

39. Submissions 17 (Sexual Assault Services Victoria), 47 (Criminal Bar Association), 63 (Office of Public Prosecutions); Consultation 71 (Magistrates’ Court of Victoria) (No 1)).

    ↑

40. Submissions 27 (Victoria Legal Aid), 63 (Office of Public Prosecutions); Consultation 71 (Magistrates’ Court of Victoria (No 1)).

    ↑

41. Submissions 17 (Sexual Assault Services Victoria), 63 (Office of Public Prosecutions); Consultation 71 (Magistrates’ Court of Victoria (No 1)).

    ↑

42. Consultation 71 (Magistrates’ Court of Victoria (No 1)).

    ↑

43. Submission 63 (Office of Public Prosecutions); Consultation 71 (Magistrates’ Court of Victoria (No 1)).

    ↑

44. Submission 17 (Sexual Assault Services Victoria); Consultation 71 (Magistrates’ Court of Victoria (No 1)).

    ↑

45. Submission 68 (Victoria Police).

    ↑

46. Submission 27 (Victoria Legal Aid).

    ↑

47. Submission 63 (Office of Public Prosecutions).

    ↑

48. Submissions 27 (Victoria Legal Aid), 47 (Criminal Bar Association).

    ↑

49. See Victorian Law Reform Commission, Committals (Report No 41, March 2020) ch 9.

    ↑

50. Submission 63 (Office of Public Prosecutions).

    ↑

51. Ibid.

    ↑

52. Ibid.

    ↑

53. Consultation 15 (Child Witness Service).

    ↑

54. Submissions 63 (Office of Public Prosecutions), 68 (Victoria Police).

    ↑

55. Submission 40 (Law Institute of Victoria).

    ↑

56. Submission 17 (Sexual Assault Services Victoria); Consultation 54 (Lucille Kent, a victim survivor of sexual assault).

    ↑

57. Evidence Act 2008 (Vic) s 97.

    ↑

58. Ibid s 98.

    ↑

59. Ibid ss 97–98, 101(2).

    ↑

60. Criminal Procedure Act 2009 (Vic) s 194. The presumption is not rebutted because evidence on one charge is inadmissible on another charge: s 194(3). This presumption was established in Victoria in 1997 under the Crimes Act 1958 (Vic): Australian Law Reform Commission, Family Violence—A National Legal Response (Report No 114, October 2010) [26.136] <https://www.alrc.gov.au/publication/family-violence-a-national-legal-response-alrc-report-114/>.

    ↑

61. Submission 63 (Office of Public Prosecutions).

    ↑

62. Ibid.

    ↑

63. Submission 68 (Victoria Police).

    ↑

64. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

65. See generally McPhillamy v The Queen [2018] HCA 52, (2018) 361 ALR 13; R v Dennis Bauer (a pseudonym) [2018] HCA 40, (2018) 266 CLR 56; Hughes v The Queen [2017] HCA 20, (2017) 263 CLR 338.

    ↑

66. Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Parts III to VI, 2017) Recommendations 44–51.

    ↑

67. Ibid 591, 633–4.

    ↑

68. Council of Attorneys-General, ‘Communiqué’ (Media Release, 29 November 2019) 2 <https://www.ag.gov.au/sites/default/files/2020-03/Council-of-Attorneys-General-communique-November-2019.pdf>.

    ↑

69. Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) sch 1 item 2. This provision also lists factors for a court to consider when determining if there are sufficient grounds to rebut the presumption.

    ↑

70. Ibid sch 1 item 4. Cf Evidence Act 2008 (Vic) s 101.

    ↑

71. Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW).

    ↑

72. Victorian Government, Annual Report 2020—Royal Commission into Institutional Responses to Child Sexual Abuse (Report, December 2020) 28 <https://content.vic.gov.au/sites/default/files/2020-12/RCIIR%20to%20Child%20Sexual%20Abuse%20Annual%20Report20.pdf>.

    ↑

73. Submissions 27 (Victoria Legal Aid), 53 (Liberty Victoria); Consultations 26 (Greg Byrne PSM, Legal Policy Consultant, Greg Byrne Law), 41 (Individual views of the Honourable Justice Chris Maxwell AC and Judicial Registrar Tim Freeman).

    ↑

74. Submissions 27 (Victoria Legal Aid), 53 (Liberty Victoria).

    ↑

75. Consultations 26 (Greg Byrne PSM, Legal Policy Consultant, Greg Byrne Law), 41 (Individual views of the Honourable Justice Chris Maxwell AC and Judicial Registrar Tim Freeman).

    ↑

76. Submission 53 (Liberty Victoria).

    ↑

77. Submissions 17 (Sexual Assault Services Victoria), 22 (knowmore legal service), 45 (Victims of Crime Commissioner).

    ↑

78. Submission 63 (Office of Public Prosecutions).

    ↑

79. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(4).

    ↑

80. Criminal Procedure Act 2009 (Vic) s 254; Children, Youth and Families Act 2005 (Vic) s 424. These sections also provide that the appeal lies to the Supreme Court of Victoria if it is a decision of the Chief Magistrate.

    ↑

81. Criminal Procedure Act 2009 (Vic) pt 6.3 divs 1–2.

    ↑

82. Judiciary Act 1903 (Cth) ss 35, 35A.

    ↑

83. Criminal Procedure Act 2009 (Vic) ss 277, 286. Other outcomes include being convicted of another offence, or being asked to stand trial for another offence, making orders or declarations under the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic), or remitting the matter for sentencing back to the County Court or Supreme Court.

    ↑

84. Judicial College of Victoria, ‘20.4.1.9 Orders on a Successful Appeal’, Victorian Criminal Proceedings Manual (Online Manual, 31 August 2020) [10] <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27876.htm>.

    ↑

85. Criminal Procedure Act 2009 (Vic) s 368(4).

    ↑

86. Ibid pt 6.3 div 4.

    ↑

87. Jury Directions Act 2015 (Vic) pt 3; Greg Byrne and Chris Maxwell, ‘Putting Jurors First: Legislative Simplification of Jury Directions’ (2019) 43(3) Criminal Law Journal 180, 196.

    ↑

88. Chris Corns, ‘Leave to Appeal in Criminal Cases: The Victorian Model’ (2017) 29(1) Current Issues in Criminal Justice 39, 48; Supreme Court of Victoria, Practice Note SC CA 1: Criminal Appeals (Second Revision), 9 December 2019, [1.3] <https://www.supremecourt.vic.gov.au/law-and-practice/practice-notes/sc-ca-1-criminal-appeals-second-revision>.

    ↑

89. Chris Corns, ‘Leave to Appeal in Criminal Cases: The Victorian Model’ (2017) 29(1) Current Issues in Criminal Justice 39, 48.

    ↑

90. Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) s 20; substituting Criminal Procedure Act 2009 (Vic) pt 6.1 div 1. This change is now due to come into force on 1 January 2023: Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) s 124.

    ↑

91. Matthew L Weatherson, ‘Judicial College of Victoria: Learning from Upheld Appeals’ (2020) 94 Law Institute Journal <https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/October-2020/JCV–Learning-from-upheld-appeals>.

    ↑

92. Ibid.

    ↑

93. Submission 66 (Supreme Court of Victoria) The data was for the past five financial years and for the current financial year up to 7 January 2021.

    ↑

94. Susan Mills and Stefanie J Sharman, ‘Characteristics of Successful and Unsuccessful Appeals Against Conviction for Child Sexual Abuse’ (2017) 24(5) Psychiatry, Psychology, and Law 655, 663 (citations omitted).

    ↑

95. See Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Parts VII to X and Appendices, 2017) 332–3.

    ↑

96. Consultation 15 (Child Witness Service).

    ↑

97. Consultation 41 (Individual views of the Honourable Justice Chris Maxwell AC and Judicial Registrar Tim Freeman).

    ↑

98. Consultation 71 (Magistrates’ Court of Victoria (No 1)).

    ↑

99. Submission 63 (Office of Public Prosecutions).

    ↑

100. Greg Byrne, ‘The High Court in Pell v The Queen: An “Unreasonable” Review of the Jury’s Decision’ (2020) 45(4) Alternative Law Journal 284, 287.

     ↑

101. Consultation 41 (Individual views of the Honourable Justice Chris Maxwell AC and Judicial Registrar Tim Freeman); Criminal Procedure Act 2009 (Vic) s 276(1)(a).

     ↑

102. Greg Byrne, ‘The High Court in Pell v The Queen: An “Unreasonable” Review of the Jury’s Decision’ (2020) 45(4) Alternative Law Journal 284, 285 (citations omitted). In determining if there was an error the appellate court must ask itself ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’: M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ), (High Court of Australia, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, 31 May 1994).

     ↑

103. Consultation 41 (Individual views of the Honourable Justice Chris Maxwell AC and Judicial Registrar Tim Freeman).

     ↑

104. See generally Greg Byrne, ‘The High Court in Pell v The Queen: An “Unreasonable” Review of the Jury’s Decision’ (2020) 45(4) Alternative Law Journal 284.

     ↑

105. Submission 63 (Office of Public Prosecutions).

     ↑

106. Lucciano (a pseudonym) v The Queen [2021] VSCA 12, [48] (citations omitted).

     ↑

107. Submission 17 (Sexual Assault Services Victoria).

     ↑

108. Submission 47 (Criminal Bar Association).

     ↑

109. Submission 45 (Victims of Crime Commissioner).

     ↑

110. Consultation 41 (Individual views of the Honourable Justice Chris Maxwell AC and Judicial Registrar Tim Freeman); Submission 45 (Victims of Crime Commissioner).

     ↑

111. Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Parts VII to X and Appendices, 2017) Recommendation 82.

     ↑

112. Victorian Government, ‘Victorian Government Response to the Royal Commission into Institutional Child Sexual Abuse’, VIC.GOV.AU (Web Page, 20 July 2021) <https://www.vic.gov.au/victorian-government-response-royal-commission-institutional-responses-child-sexual-abuse>.

     ↑