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

21. Respecting victim survivors in sexual offence trials

Overview

• Trials are often traumatic for people who have experienced sexual violence.

• Too often, complainants feel their rights and interests are not given enough weight. These include being treated with respect and not being re-traumatised, their needs when they participate in a hearing and their right to privacy.^[1]

• These rights and interests should be considered as part of the process for planning a trial.

• Rights should include more flexible arrangements for taking evidence, including pre-recording their evidence.

• Changes also need to be made to court design and arrangements to make sure people feel safe and respected.

• Their rights to privacy need to be protected. They need to know if the defence wants to introduce evidence about their confidential communications or sexual history, and they need to be given legal advice and representation to protect those rights.

Victim survivors need respect during the trial process

21.1 Victims of crime expect and deserve to be treated with respect in the criminal justice system. As we said in our 2016 report The Role of Victims of Crime in the Criminal Trial Process (the Victims of Crime report), they are participants in criminal proceedings who have an inherent interest in the response of the criminal justice system.^[2] This is reflected in the Victims’ Charter Act 2006 (Vic).^[3]

21.2 Treating victims of crime with respect for their dignity is more likely than anything else to influence whether they are satisfied with the criminal justice system.^[4] This is especially important at the trial stage. For most victims of crime, attending court is the main event in their experience of the criminal process.

21.3 A trial is the most visible part of the criminal justice system. It reflects how society responds to the crime. What happens in the courtroom, and the way victim survivors are treated, is a public signal of how society regards sexual violence.

21.4 Trials are often distressing for victims (sometimes referred to, in the language of the court, as ‘complainants’). The law and language are complex and unfamiliar. Courts can be daunting places. There is more emphasis on the roles of the judge or magistrate, lawyers and the accused than on the victim. Courts may not provide an environment in which people feel comfortable talking about intimate details, let alone being challenged about them.

21.5 In the Victims of Crime report, we recommended that courts should acknowledge and respect the role of victims of crime, and improve the ways that victims of crime were questioned.^[5] These were also central concerns of our previous inquiry into sexual offences, in 2004.^[6]

21.6 Despite the reforms, we have continued to hear similar concerns about a lack of respect and dignity, and of ‘brutal’ experiences in court during cross-examination (see box).

21.7 We heard that alternative arrangements such as giving evidence from a remote location, designed to make the experience of complainants more comfortable, are not working as well as they could be.

21.8 We also heard that, while the law protected the privacy of complainants, these rights needed to be stronger and put into practice.

21.9 In this chapter we set out the reforms that could address these concerns. They aim to provide more of what victim survivors deserve: respect.

There is a strong base of reform that can be built on

Reforms have aimed to bring about a culture of respect and dignity

21.10 Everyone working in the criminal justice system should treat people with respect, informed by an understanding of the effects of trauma. We heard this concern expressed in our previous inquiries, and again in this one.

21.11 Since our Victims of Crime report, the Judicial College of Victoria has published a guide that sets out what everyone in the courtroom should do to improve the experience of victims of crime in the courtroom. It includes guidance notes on sexual offences and on how to get the best evidence.^[10]

21.12 Our Victims of Crime report included recommendations on improving training within the criminal justice system. We discuss this, and our further recommendations for training, in Chapter 18.

21.13 In this report, we have made other recommendations that would improve the experiences of complainants, including:

• improving the use of jury directions and expert evidence (in Chapter 20)

• expanding access to communication support, including interpreters (in Chapter 15)

• introducing a model of victim advocates and separate legal representation (in Chapter 12).

There are already limits on cross-examination

21.14 For most complainants, giving evidence and being cross-examined is one of the most challenging parts of the criminal trial process. Cross-examination aims to test the accuracy of their version of events and their credibility.

21.15 The law limits what the defence can ask during cross-examination.^[11] It rules out ‘improper’ questions or questioning, that is ‘a question or sequence of questions put to a witness that is one of the following:

• misleading or confusing

• unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive

• put to a witness in a manner or tone that is belittling, insulting or otherwise inappropriate

• has no basis other than a stereotype (for example a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability)’.^[12]

21.16 Even with these limits, complainants may be asked such questions by defence counsel in cross-examination. A court must not allow an improper question. If this sort of question is asked, a court must tell the complainant that they do not need to answer the question.^[13] In cases involving sexual offences, there are also limits on asking complainants about their sexual history.

21.17 The court’s power to intervene to disallow improper questioning was recently strengthened following the recommendations of our Victims of Crime report.^[15] The court must intervene to prevent the questioning rather than it just being an option.^[16]

21.18 The nature of cross-examination involves drawing out inconsistencies and inaccuracies in the complainant’s version of events. Therefore, cross-examination may not be ‘improper’ in law, but may still make a complainant feel offended, humiliated or distressed.^[17]

Ground rules hearings have been a successful reform

21.19 A key recommendation of our Victims of Crime report was to introduce a pilot program of intermediaries for witnesses who are children or have a cognitive impairment (see Chapter 15). Intermediaries provide communication assistance so that the court receives the witness’s best evidence.^[18]

21.20 This scheme has involved changes to the law to enable ‘ground rules hearings’. These hearings may be held in sexual offences and other cases with a child or person with a cognitive impairment who is a witness. They must be held if an intermediary is appointed.^[19] They can also be held without an intermediary.

21.21 The ground rules hearing is held before the witness gives evidence.^[20] It is focused on getting communication right between the witness and those questioning them, and it helps structure that interaction in a way that is respectful of their needs and abilities.

21.22 Before a ground rules hearing, the court may direct the police informant to fill in a questionnaire, and direct counsel to provide in writing questions that they wish to ask the witness.^[21]

21.23 At a ground rules hearing, a court can set the ‘ground rules’ that will apply at the trial, including:

• the style of questioning (for example, they can prevent the use of leading or complex questions, or allow the use of more free-flowing ‘narrative’ evidence)

• the time taken to question a witness (for example, they can set the timing of breaks, and the start and end times of questioning)

• the questions that may or may not be put to a witness (for example, they can suggest other ways of dealing with inconsistencies, or prevent complex questions about the timing of events)

• if a party must put all evidence contradicting or challenging the witness in cross-examination.^[22]

21.24 We heard that ground rules hearings and intermediaries have been working well. They ensure that questioning is fair, appropriate and easier on complainants.^[23] The Office of Public Prosecutions (OPP) told us they help judges and lawyers better understand the effects of sexual abuse on complainants. The OPP saw significant benefits where prosecution and defence counsel work together, workshopping proposed questions.^[24]

21.25 The County Court of Victoria said that the use of intermediaries had led to more appropriate questioning and resulted in complainants being able to ‘provide their best evidence’ and, in some cases, to provide evidence when they might not have otherwise done so. The court also gave us case studies of complainants who had felt a sense of satisfaction after giving this evidence.^[25]

21.26 We heard that the effectiveness of ground rules hearings depends on the complainant and whether an intermediary is appointed. Sometimes there may only be ‘modest improvements’^[26] in the complainant’s experience of giving evidence, such as when there is no intermediary because, for example, the complainant is in their late teens and has no communication difficulties.^[27]

Cross-examination needs more reform

21.27 We heard in this inquiry that although there has been a shift towards a respectful style of cross-examination in some cases, there remain issues with the style of cross-examination being used by defence barristers.^[28] The OPP told us:

In our view there remains occasional issues with excessive or inappropriate cross-examination of complainants in sexual offence matters. Recently, a complainant in a matter involving a single incident of rape was cross-examined over the course of three and a half days, primarily in relation to peripheral matters.^[29]

21.28 Similar concerns were expressed by Sexual Assault Services Victoria and the Victims of Crime Commissioner, as well as people who told us of their experience of being cross-examined.^[30]

21.29 The Criminal Bar Association stated that there had been a major cultural shift over the years in defending sexual offences at trial. They described an ‘old style’ approach to questioning that ‘is long gone and can no longer occur, as the law simply does not permit it’.^[33]

21.30 They told us that, if there was improper questioning, it was used only by a ‘small minority’ and was not well received by jurors. It also said that judicial officers ‘simply will not countenance that type of [improper] questioning’.^[34]

21.31 Liberty Victoria agreed, stating that in its experience:

the courts take the duty to protect witnesses very seriously and the stereotype of the barrister challenging a complainant through confusing and/or belittling cross-examination is very much the exception and not the rule.^[35]

21.32 The Law Institute of Victoria pointed out that cross-examination of a complainant was needed and was of considerable use ‘to elicit essential facts and context’. It ‘strongly opposed’ attempts to erode the ability to cross-examine, given its role in ensuring a fair trial.^[36]

21.33 Others told us that prosecutors may find it difficult to object to improper questions, and judicial officers may not be clear about when to stop improper questions,^[37] for example when they are not sure if a question is improper or not, and there is a risk that intervention could lead to an appeal.^[38]

21.34 Some recent cases seem to indicate that problems with cross-examination continue. In one case defence counsel called the complainant a ‘bare-faced liar’^[39] and in another case, the complainant was asked about her figure and the size of female genitalia.^[40]

Every sexual offence trial needs a discussion about cross-examination and respect

21.35 Reforms to protect complainants during the trial have made the criminal justice system kinder, but there is still work to be done to ensure that complainants feel respected throughout the criminal trial process. While the culture of cross-examination is shifting, it is plain that at least for some people, the risk of re-traumatisation is real.

21.36 Recent cases and a transcript analysis of rape trials in the County Court of Victoria (see box above) show that practices are not consistent. Feedback from victim survivors with recent experience of cross-examination also shows there is room for improvement. More must be done to give complainants respect and reduce re-traumatisation. These are some of the aims of the Victims’ Charter Act.^[48]

21.37 This problem is also about more than respecting complainants. It is unclear if cross-examining in a way that focuses on minute and irrelevant details actually gets the best evidence from the complainant or results in fair verdicts. A process that gets the most relevant and clear responses from complainants is likely to achieve the aims of a trial in establishing the facts of a case and improve its efficiency.

21.38 Building on the work of the Judicial College of Victoria’s guide, courtroom culture can be shifted further by requiring that respect and dignity are built into the design of a trial.

21.39 Ground rules hearings have been effective in setting the style and parameters for questioning children and people with a cognitive impairment. Researchers from our transcript analysis found that in a case involving a ground rules hearing, ‘the dynamic of the complainant’s cross-examination was noticeably different to that of other cases, including by virtue of being more logical and clear in the sequencing of questions, and less adversarial.’^[49]

21.40 This kind of discussion is currently not required in Victoria for other complainants in sexual offence trials. In Scotland, the Lord Justice Clerk’s Review Group recommended ground rules procedures for all complainants in sexual offence cases.^[50]

21.41 We recommend that, before a complainant gives evidence, the prosecutor, defence counsel and judge or magistrate should discuss what needs to be done to ensure the proper and respectful treatment of the complainant at trial. This discussion should cover the nature and style of cross-examination, as well as any other ways to create a courteous and sensitive environment. Although these discussions may already happen informally on a case-by-case basis, they should be required in all cases.

21.42 This process should be set out in the Criminal Procedure Act 2009 (Vic). Processes for setting out what is to occur in the trial already exist at law—these processes can inform the legislative design of the discussion we are proposing. For example, discussions are a part of the procedure for jury directions, where counsel discuss with the judge what jury directions should be given.^[51] We discuss jury directions in Chapter 20.

21.43 Such discussions will help shift courtroom culture by putting into practice the kind of guidance found in the Judicial College of Victoria’s guide on victims of crime. It will be easier for the court to intervene if counsel takes a course during trial that was not agreed as part of the discussion and is improper. There will also be benefits for prosecutors in developing better ways to question and interact with complainants.

21.44 Such a discussion for setting the rules and tone of cross-examination was supported by the Magistrates’ Court of Victoria, the Office of Public Prosecutions, Victoria Legal Aid and a representative of the Criminal Bar Association.^[52]

What should the discussion cover?

21.45 The topics for existing ground rules hearings and what is listed in the Judicial College of Victoria’s guide provide a good starting point for identifying the issues for discussion.^[53] Another potential source is a guide to the cross-examination of vulnerable witnesses developed by the Inns of Court College in England.^[54]

21.46 The same issues discussed in a ground rules hearing often apply to adult complainants in sexual offence cases. The discussion could therefore cover similar issues, as well as those identified in our transcript analysis (see box above). They could include:

• avoiding complex and confusing questions

• disallowing repetitive questions

• the need for breaks and time limits to questioning.

21.47 Depending on the facts in issue and evidence, discussion could cover the appropriateness of questions and the scope of questioning to limit irrelevant lines of questioning, confusing ‘puttage’, as well as how certain evidence could be used and presented in a respectful way.

21.48 For example, the researchers who conducted our transcript analysis suggested making it standard practice for complainants to view or listen to CCTV footage in advance. The option of advance viewing or listening is currently decided by the judge.^[55]

21.49 The discussion should also include setting rules for any questions related to sexual history evidence, where leave has been granted, or the boundaries around lines of questioning that might be prohibited by law.^[56]

21.50 The discussion should not limit legitimate questions relevant to the facts of the case. We have also not included in the discussion process a requirement to submit questions to the court in advance of the discussion. The focus of the discussion is about respecting complainants, reducing traumatisation and getting the best quality evidence from complainants.

21.51 There should be some discussion of the preferences and needs of the complainant. This could be achieved through a questionnaire to be completed by the complainant, victim advocate (recommended in Chapter 12) or (as is currently the case) the police informant. It could address issues such as:

• familiarising people with the courtroom and other ways to make the environment less daunting

• judicial officers introducing themselves and the process, and helping the complainant feel settled^[57]

• the preferred way of addressing the complainant, such as the use of their name or preferred pronouns^[58]

• the needs of complainants, including supports or arrangements for giving evidence (for example, interpreters).^[59]

21.52 The victim advocate we recommend in Chapter 12 should be present when the discussion takes place, to assist the court to understand the complainant’s rights, interests and needs. The victim advocate would inform the complainant about the rules.

21.53 The aims and benefits of this process are to:

• ensure a fair and efficient trial, by enabling complainants to give their best evidence

• ensure that complainants are treated respectfully and with dignity

• recognise the role of complainants as participants in the trial, by considering their rights, interests and preferences

• set clear expectations for everyone about what will not be tolerated by the court, which should reduce the need for judges or prosecutors to intervene or object during the trial and make it easier for them to intervene or object

• clarify for the complainant at an early stage what to expect from the trial, reducing their anxiety about the process and how they might be questioned

• prevent improper and inappropriate questioning.

21.54 Judges of the County Court of Victoria suggested strengthening the judge’s power to intervene to disallow improper questioning.^[60] We are of the view that the discussion process will be more effective than strengthening the judge’s power to intervene. The feedback we received suggests that in practice some judges and magistrates may still find it hard to intervene.

What should the discussion look like in practice?

21.55 The discussion does not need to be lengthy, depending on the needs of the complainant and the likely questions. It may be that as this practice becomes widely used, the discussions become shorter because the culture of cross-examination changes for the better.

21.56 The discussion should take place before the complainant gives evidence at the hearing. The process should include counsel who will be doing the cross-examination. The discussion should therefore take place very close to or during the trial.

21.57 Victoria Legal Aid, the Office of Public Prosecutions and a representative from the Criminal Bar Association agreed that such a process should be timed close to when the complainant gives evidence, because it is common for counsel to change and a lot of preparation is done at the last minute ‘on the door of the court’.^[61] The process can also be repeated as needed.

21.58 The discussion should take place before the complainant gives evidence in cases involving sexual offences in the Magistrates’ Court of Victoria, including before a committal hearing,^[62] and the County Court of Victoria.

21.59 Judicial officers and legal practitioners will need training to implement this process effectively. We discuss education and training in Chapter 18.

How can alternative arrangements be improved?

Special protections exist for victim survivors

21.60 In Victoria, there are procedures designed to minimise the trauma and distress involved in giving evidence.^[63] We refer to these as ‘special protections’. The law allows:

• a recording of interviews with police to be used in court (‘Visual and Audio Recorded Evidence’ or VAREs)

• cross-examination through a special hearing (special hearings)

• the use of physical arrangements such as allowing complainants to give evidence outside the courtroom in special ‘remote witness facilities’, using support people and screens (alternative arrangements).^[64]

21.61 The law prohibits witnesses who are children or have a cognitive impairment from being cross-examined at a committal proceeding before a trial involving sexual offences.^[65]

21.62 VAREs and special hearings are only available for witnesses who are children or have a cognitive impairment. VAREs are used as the main evidence (evidence-in-chief) of a complainant. The complainant can then be cross-examined and re-examined in a remote witness facility in a ‘special hearing’.^[66] The special hearing is also recorded and played with the VARE at trial, and in any retrial or related civil proceeding.^[67] The complainant can only be examined again in limited circumstances.^[68]

21.63 In our Victims of Crime report we recommended extending these ‘special protections’ to ‘protected victims’. ‘Protected victims’ include people who are likely to ‘suffer severe emotional trauma’, or ‘be so intimidated or distressed’ that they cannot give evidence or give evidence fairly.^[69] This recommendation has not been implemented.

21.64 The Royal Commission into Institutional Responses to Child Sexual Abuse recommended pre-recording evidence and making alternative arrangements available for all complainants in child sexual abuse prosecutions and other witnesses.^[70] These recommendations were accepted by the government in principle.^[71]

21.65 In our recent inquiry into committals, we considered whether the protection against cross-examination at committal should be extended to other witnesses, including adult complainants in sexual offence cases.^[72] As stated above, the protection covers complainants in sexual offence cases who are children or have a cognitive impairment. As a result, they can only be cross-examined once at trial, usually in a special hearing.

21.66 We concluded that there should be a formal evaluation before extending the protection to other classes of witness, as special hearings require significant time and resources. We did, however, recommend expanding the section to include witnesses in cases where the complainant was a child or a person with a cognitive impairment in family violence cases.^[73]

There were concerns about alternative arrangements

21.67 Alternative arrangements aim to reduce the trauma, intimidation and distress associated with giving evidence. Any recording of the victim survivor’s evidence may be used in a re-trial, in an appeal and in another related proceeding or civil proceedings.^[75]

21.68 While we heard general support for alternative arrangements, some people raised concerns about how well these were working in practice. For example, we heard:

• There was a need to improve the space and technology in remote witness facilities.^[76]

• Victim survivors could not have support while giving evidence because of a lack of resources.^[77]

• Practices of placing ‘screens’ between complainants and the accused could be ad hoc, such as using a whiteboard or having a court officer standing between them.^[78]

21.69 Sexual Assault Services Victoria also stated that remote witness facilities need to be more carefully monitored for their camera angles so that accused people do not appear on the victim survivor’s screen.^[79]

21.70 The Victims of Crime Commissioner told us the law providing for alternative arrangements are comprehensive, but that sometimes these arrangements were not used and there was no access to data about how consistently they were used.^[80] The Criminal Bar Association and Office of Public Prosecutions, however, said that the arrangements were working well.^[81]

21.71 The County Court of Victoria told us that alternative arrangements will be easier to arrange now than before the COVID-19 pandemic, because more remote witness facilities have been established.^[83] Sexual Assault Services Victoria reported that, during this time, complainants could give evidence remotely from a police location and found this to be a ‘supportive and safe’ process.^[84] Sexual Assault Services Victoria continued:

Not having to be present physically at the court proved beneficial to recovery and healing. [COVID-19] showed that remote witness facilities could operate from a variety of settings, not only at the court building. Regional and rural victims would benefit from a range of other options.^[85]

Some concerns related to courtroom design and facilities

21.72 Some aspects of alternative arrangements are linked to the physical design of courtrooms and the availability of facilities. Victim survivors reported feeling disconnected in remote witness facilities, and that remote witness facilities were uncomfortable and not appropriate to spend long hours in.^[86]

21.73 Another issue identified was the need for separate entrances and exits in courts. Complainants who attend court to give evidence in person or in a remote witness facility within the court risk coming face-to-face with the accused when entering or exiting the court, or going to the bathroom, especially in regional areas.^[88]

21.74 The Magistrates’ Court of Victoria told us:

Some of the aspects of a specialist court around design, how [specialist family violence courts] spaces are designed—if we could have some of these sorts of improvements in our court buildings, so complainants don’t have to face the accused—that would be really significant.^[90]

There is room to improve alternative arrangements and courtroom design

21.75 These issues were also addressed in our Victims of Crime report. In that report, we observed that the design and physical infrastructure of courts can make it difficult to minimise contact between a complainant and the accused.^[91]

21.76 We recommended that, in indictable trials, there should be:

• separate and safe entrances and exits

• separate rooms for victim survivors to wait in

• remote witness facilities that are off-site or accessible through a separate entrance

• appropriate means to screen victim survivors from the accused when giving evidence in the courtroom.^[92]

21.77 Some progress has been made. For example, the Victorian Budget 2021–22 includes upgrades of technology in the courts.^[93]

21.78 Specialist Family Violence Courts ‘have been designed with victims’ wellbeing and safety in mind, providing separate court entrances for victim survivors, safe waiting spaces and interview rooms, remote witness facilities, child-friendly spaces and culturally safe spaces.’^[94] This followed a recommendation by the Royal Commission into Family Violence.^[95]

21.79 In recent years, more off-site remote witness facilities have been developed,^[96] with family violence reforms also expanding remote witness facilities.^[97] Some Orange Doors already have remote witness facilities. The use of these remote witness facilities by complainants in sexual offence cases could be considered in the review of multi-disciplinary centres, including their collaboration with Orange Doors, that we recommend in Chapter 5.

21.80 The Children’s Court of Victoria in Melbourne has also developed court attendance safety plans. This includes staggered departure times and support when entering court rooms and taking part in proceedings.^[98] These safety plans should be used for complainants in sexual offence cases too.

21.81 We commend these efforts but consider more can and needs to be done. We recommend extending many of the efforts in the family violence context to complainants in the Magistrates’ Court of Victoria and the County Court of Victoria. This includes making entering and exiting court safer and extending more off-site remote witness facility locations. While we recognise some changes require more work, a priority that seems easy to achieve is to ensure that complainants have proper screens when giving evidence in the courtroom.

21.82 In Chapter 4, we recommend strengthening the rights in the Victims Charter Act to improve the consistency of practice and keep people accountable for their obligations. We recommend that this should include the right to alternative arrangements, consistently with the aim in that Act of minimising a victim’s contact with the accused and their supporters, and protecting them from intimidation.^[99]

21.83 In Chapter 14 we discuss ensuring that alternative arrangements are available for image-based sexual abuse offences.

21.84 Court infrastructure and facilities should be equipped with technology that provides for the best quality evidence and, as a result, a fair trial. These measures would also help complainants feel safe and respected.

There were concerns about the quality of Visual and Audio Recorded Evidence (VAREs)

21.85 In this and previous inquiries we heard general support for the aims of special protections. But responses were divided on whether VAREs and special hearings should be extended beyond children and people with cognitive impairment.

21.86 The Magistrates’ Court of Victoria and Victims of Crime Commissioner supported extending special protections to all complainants in sexual offences,^[100] as did Sexual Assault Services Victoria and knowmore legal service.^[101] Knowmore said this would reduce the stress and trauma of court proceedings and ensure that victim survivors could pursue a criminal justice response.^[102]

21.87 Cecilia, a victim survivor of sexual assault, described how a properly conducted VARE would have helped improve her experience at court.^[103]

21.88 The feedback we heard and research tells us that VAREs may have the following benefits:

• They avoid complainants having to repeat their story.^[104]

• They limit the time a complainant must spend in court.^[105]

• They allow an account to be captured near the time of the offending, resulting in more complete and accurate information.^[106]

• They are taken in a distraction-free and less stressful environment, more conducive to a free-flowing narrative account.^[107]

21.89 The Magistrates’ Court of Victoria reported that special hearing procedures are not available for summary matters in the court even though these cases:

can still have deleterious effects on complainants and still raise fair process issues for accused. … The [Magistrates’ Court of Victoria] has for years raised that it is the only jurisdiction where there is no provision for special hearings: hearings where the evidence of a child or complainant with a cognitive impairment is audio-visually recorded. If the [Magistrates’ Court of Victoria] had special hearings, the recording of the complainant’s evidence would then be available to be played in any County Court appeal.^[108]

21.90 While supporting the aims of the special protections, others including the Office of Public Prosecutions and the Law Institute of Victoria did not support their expansion. They noted issues such as the quality of VAREs and the disruption to the ‘normal flow’ of proceedings which meant that they may not benefit a complainant’s case.^[109]

21.91 The Criminal Bar Association told us that there was no need for any changes to special hearings.^[110] A representative from the Criminal Bar Association also said it is difficult to produce VAREs in a neat and chronological way.^[111]

21.92 It appears that the challenge stems from the ‘dual purpose’ of VAREs.^[112] The Magistrates’ Court of Victoria explained:

VAREs are used in contested hearings in the [Magistrates’ Court of Victoria] as evidence in chief, so the quality of the VARE is very important; it is both an investigative and a forensic tool.^[113]

21.93 Judges from the County Court of Victoria stated there could be more training to improve the quality of VAREs. It is challenging to have to investigate and take evidence-in-chief at the same time.^[114]

21.94 For example, we heard that:

• VAREs sometimes included irrelevant or inadmissible matters, which could result in all or part of the VARE not being admitted as evidence.^[115]

• As they were taken earlier in the process, they may not address everything needed for the trial.^[116]

21.95 VAREs and special hearings also require more time and resources, as we discussed in our Committals report.^[117]

Special protections should be expanded to include pre-recorded evidence

21.96 When done well, VAREs are a valuable procedure for complainants who are children or have a cognitive impairment. However, we recognise the concerns about their quality. We do not recommend expanding VAREs to more complainants in sexual offence cases at this stage. In Chapter 17 we recommend that Victoria Police consider professional development to improve the quality of VAREs before the issue of expanding VAREs is considered again.

21.97 Many of the aims of VAREs can be achieved at a later stage of the process, but before the trial, using ‘pre-recorded evidence’. There is currently a procedure for pre-recording evidence before trial. This is allowed if the court considers it appropriate and is satisfied that it is in the interests of justice to do so.^[118]

21.98 Unlike VAREs, this pre-recorded evidence records all the complainant’s evidence (not just evidence-in-chief). It is a more streamlined process than giving evidence-in-chief using a VARE and cross-examination in a special hearing later.

21.99 Pre-recording evidence would avoid the issue of the recording happening too early, before the main issues are identified. It focuses on the evidence for the trial, not the investigation. Pre-recording evidence would still give complainants the option of giving evidence in a familiar and supportive environment (such as a remote witness facility), and would reduce the time they spend in court. In cases where there are delays in the criminal process, complainants could give their evidence without having to wait for the trial date. This might give them some relief.

21.100 The recording could be used in any retrial or appeal, as with VAREs and evidence given remotely via a recorded audio-visual link.

21.101 We recommend amendments to the Criminal Procedure Act to allow complainants in sexual offence trials and contested hearings to give their evidence in the form of a pre-recording. This should be available as a standard protection for complainants. It could be achieved by introducing an entirely new procedure or amending the existing procedures that allow pre-recording of the whole of the evidence.

21.102 The process should be developed to ensure continuity of counsel and judge or magistrate through the pre-recorded evidence procedure and trial. Strong case management should ensure matters are resolved as much as possible before the complainant completes their pre-recorded evidence.

21.103 The procedure should apply and operate in similar ways to procedures for ‘alternative arrangements’. The court should order pre-recording of evidence and its use in trial if the complainant wishes. The recording should be made available for appeals and any re-trials.

21.104 We note our earlier concerns in our previous inquiry into committals about the resource implications of expanding pre-recorded evidence procedures like special hearings. However, our view has changed due to an increase in remote witness facilities and a general shift in practice towards a greater use of technology (for example, due to coronavirus (COVID-19)).

21.105 This still leaves a gap in the Magistrates’ Court of Victoria, where special hearings for children and people with a cognitive impairment cannot be held. These hearings are only available in the County Court of Victoria.^[119] We agree with the Magistrates’ Court of Victoria that giving evidence in its jurisdiction can be difficult and traumatising. The current special hearing procedures should be extended to the Magistrates’ Court of Victoria for children and people with a cognitive impairment.

21.106 In Chapter 4 we recommend including in the Victims’ Charter Act the right to special protections, including the recommended right to pre-recorded evidence.

Should the accused be removed from the courtroom?

21.107 The County Court of Victoria and the Victims of Crime Commissioner suggested an alternative arrangement: for the accused to be removed from the courtroom while the complainant gives evidence before the jury.^[120] This could address the concern that the complainant feels disconnected from the trial process when they give evidence using an alternative arrangement like a remote witness facility.^[121]

21.108 Some complainants may want to give evidence in the courtroom, especially when they believe it will be better for their case if the jury can see them in person.

21.109 At this stage, we are not convinced that this removing of the accused from the courtroom during the complainant’s evidence should be available. A criminal trial, unlike a civil trial, is a trial by the state against the accused. There is a risk that removing the accused could result in an unfair trial, even if they listen to the proceedings from a remote location. It may give the jury a sense of ‘presumptive guilt’ instead of ‘presumptive innocence’.^[122] We note Victoria Legal Aid and a representative of the Criminal Bar Association expressed concerns about this proposal.^[123]

Victim survivors have rights to privacy

21.110 A trial makes public the private lives of people who have experienced sexual violence. A fundamental feature of our criminal justice system is that justice is administered in open court.^[124] The prosecution or the defence may seek access to the complainant’s records. The accused is entitled to access all material relevant to the case so that they can make a full defence.^[125]

21.111 Complainants have a right not to have their privacy ‘unlawfully or arbitrarily interfered with’^[126] and to expect measures to protect their privacy interests.^[127] This section focuses on restrictions on:

• the right of the accused to access the complainant’s ‘confidential communications’ and other private information

• introducing information about their sexual history into evidence.

What are confidential communications and how does the law protect them?

21.112 In general, an accused is entitled to seek access to a complainant’s personal records and, if they are relevant, introduce those records into evidence. Seeking access usually involves filing a subpoena to force individuals or organisations to produce documents or to appear in court.^[129]

21.113 Personal records of a complainant include their medical records, psychological or psychiatric notes, dealings with government departments or bank records. In general, the documents must be handed over if they have evidentiary value.^[130]

21.114 Confidential communications are communications made in confidence by a victim survivor to a medical practitioner or counsellor, either before or after the alleged sexual offending occurred.^[131]

21.115 Reforms in Victoria have reduced access to records about confidential communications. These reforms aim to:

• promote the public interest in victim survivors seeking counselling

• encourage people to report the crime to police.^[132]

21.116 Under these laws, the defence can only access confidential communications if a court allows it (‘grants leave’). The court can only grant leave if it is satisfied that the records have ‘substantial probative value to a fact in issue’; that other sources for the evidence are not available; and that the public interest in ‘preserving the confidentiality’ of the communication and protecting the person who made the communication from harm, is substantially outweighed by the public interest in allowing the records into evidence because of their ‘substantial probative value’.^[133] In making this decision, the court must balance the factors listed in the legislation.^[134]

21.117 Applications must be made in writing over three stages—to subpoena records, to inspect records and then to use a record of a confidential communication as evidence. The party applying, usually the defence, must give at least 14 days notice of the application to the prosecution, the police informant and the person who holds the records. The informant is responsible for giving the complainant a copy of the notice within a ‘reasonable time’.^[135]

21.118 The defence may use confidential communications records to argue that:

• the complainant has cognitive disabilities

• the sexual offence did not happen

• the complainant has a motive to lie

• the decision to report the incident was influenced by a person in authority (for example, in the case of a child).^[136]

We have made recommendations on confidential communications

21.119 In our Victims of Crime report we made two recommendations to strengthen the confidential communications scheme (see box).^[137] As at June 2021 these recommendations have not been implemented.

21.120 The first recommendation addressed concerns that few complainants were participating in the decision making about their confidential records, because:

• Many complainants were not aware of the application and that they were entitled to intervene.

• Complainants did not have an automatic right to intervene (‘standing’) and did not have legal representation.

• Complainants may not want to appear before the court, but would be open to providing a sworn statement to the court.^[138]

21.121 The second recommendation addressed concerns that a broader range of records under the Health Records Act 2001 (Vic) needed to be protected, including:

• medical records (other than records already falling within the definition of confidential communications) including psychiatric or psychological records

• records held by the Department of Health and Human Services

• records made by social workers

• records held by specialist family violence services.^[139]

21.122 There is a risk that these records will be used to unfairly challenge a complainant’s reliability. We concluded that these sensitive records should be private and protected against misuse in a criminal trial.^[140]

21.123 The scope of the confidential communications scheme in Victoria focuses on the public interest in people seeking counselling. But we supported a broad approach that, as in Canada, focuses on the right to privacy.^[141] The right to privacy is protected in Victoria’s Charter of Human Rights and Responsibilities.^[142]

21.124 Another recommendation of our Victims of Crime report addressed the need for independent legal representation, modelled on the New South Wales Legal Aid service for sexual assault privilege.^[143] We discuss legal representation in Chapter 12.

Confidential communications protections still need improvement

21.125 We heard in this inquiry that confidential communications protections needed improvement.

21.126 Sexual Assault Services Victoria submitted that the confidential communication scheme is not working as intended in practice:

In practice, protections relating to a [victim survivor’s] confidential medical or counselling records are constantly overridden during sexual offence trials. SAS Vic members say that they are rarely able to stop a subpoena despite evidence of [legislative requirements] being met. The judge can make a decision on what they think is relevant in the file to be shared, and that can include information that is irrelevant and/or detrimental to the client. … Further protections are needed to practice [and] procedure regarding the protection of records, to prevent defence lawyers from continuing to undertake ‘fishing exercises’ in relation to gaining access to [victim survivor] counselling records. This provision has not proved effective and further action is required.^[144]

21.127 Child Protection also told us that its files were subpoenaed in court. They often included descriptions of behavioural challenges that were used to discredit the child in court, although the behaviour was often a result of trauma. It said:

Child Protection clients’ laundry is aired and it’s really sad for the victim. There’s a misconception around why children have ended up in residential care, and this can be brought up in court. It’s not the child’s fault and not relevant to the offences.^[145]

21.128 Dr Mary Iliadis told us that, despite reforms to restrict the use of complainants’ sensitive information in trials, research showed that it continues to be used by the defence to undermine the complainant’s credibility and claims.^[146]

21.129 Sexual Assault Services Victoria pointed to a Tasmanian provision that prevented the introduction of any communications to counsellors into court without the complainant’s consent.^[147] It also supported access to independent legal representation.^[148]

21.130 The Victims of Crime Commissioner supported the recommendations in our Victims of Crime report addressing the complainant’s participation in decisions about their medical or counselling records, including independent legal representation.^[149]

21.131 We heard other suggestions on how to strengthen protections. For example:

• restricting access to any records to defence counsel, so the accused would not see the records^[150]

• greater protections for other sensitive or private material, such as bank records^[151]

• allowing the court to order that the material should be produced to the court ‘on the papers’.^[152]

How can confidential communications protections be strengthened?

21.132 The issues identified in our Victims of Crime report are still with us today. The protection of confidential communications is undermined by the challenges complainants face in participating in the decisions made about their records.

21.133 We reaffirm the recommendations in our previous inquiry.

21.134 We also recommend in Chapter 4 that the Victims’ Charter Act should include a victim survivor’s right to be notified about applications to introduce confidential communications and to submit their views to the court, and the right to funded legal representation. This is consistent with the aims of the Charter of informing victim survivors about their cases and rights.^[153]

21.135 Finally, we note that there has been no improvement in the data that we have about the number of confidential communications applications made since our last inquiry. We discuss the need for better data in Chapter 6.

What are the laws on a complainant’s sexual history?

21.136 There are legal limits on evidence or questions about a complainant’s sexual reputation, history or activities in sexual offence cases.^[154] These limits are often called ‘rape shield’ laws.

21.137 These reforms prevent the use of outdated stereotypes to undermine the complainant’s credibility. These stereotypes cannot be used to suggest the accused was reasonable in believing that there was consent.^[155]

21.138 In Victoria, the laws:

• ban questions or evidence relating to a complainant’s sexual reputation ‘with respect to chastity’^[156]

• ban evidence relating to the complainant’s sexual history^[157] that is used to support an argument or conclusion that the complainant ‘is the type of person who is more likely to have consented to the sexual activity to which the charge relates’

• prevent questions or evidence about a complainant’s consensual or non-consensual sexual activities unless a judge allows them.^[158]

21.139 The court can only allow questions or evidence about sexual activities if they are ‘substantially relevant to a fact in issue’ and are ‘in the interests of justice’.^[159] The law lists factors that must be considered in making that decision.^[160]

21.140 As with confidential communications, a written application to introduce questions or evidence about a complainant’s sexual activities must be filed and served on the informant or Director of Public Prosecutions.^[161] This procedure may be waived if it is in the interests of justice to do so (‘waiver’).^[162]

21.141 We did not recommend reforming the laws relating to sexual history in our Victims of Crime report. We heard that applications to introduce evidence and questions about sexual history were infrequent and that the provisions were ‘generally regarded as working as intended’.^[163]

Sexual history protections could be strengthened

21.142 Sexual Assault Services Victoria told us that reforms to limit the use of sexual history were not working well. It told us:

In reality this is not happening. Clients’ sexual history is still being used to diminish their experience, discredit them or cast doubt on their statements and on what has happened.^[164]

21.143 Rape & Sexual Assault Research & Advocacy (RASARA) told us that the defence still referred to a complainant’s past sexual relationships with the accused.^[165]

21.144 It gave as an example a case where the defence had used a dispute about the timing of their past sexual encounter to ask the complainant if she ‘had quite an active relationship’ with the accused prior to the rape. RASARA explained that the question of an ‘active [sexual] relationship’ was irrelevant given the definition of consent. But such evidence was still being used to support that the defendant’s belief in consent was reasonable.^[166]

21.145 Child Protection told us it was aware of cases where a child’s history of allegations of child sexual abuse had been used to undermine their credibility. It gave an example of the defence requesting the history of the sexual encounters of a 13-year-old, even though children under 16 cannot consent to sexual activity.^[167]

21.146 The Gatehouse Centre submitted there was a need to consider the use of CCTV recordings as a ‘new vector for intimidating complainants in court and creating unjustified doubt amongst jury members’. It gave as an example a recent case where the defence had scrutinised the recording of the complainant at a bar hours before the alleged assault, which was highly distressing for her.^[168]

21.147 In their view these recordings could be ‘as intrusive and humiliating’ as questions about one’s sexual history and did not provide any evidence about whether she consented hours later. While this evidence should not be prohibited, it suggested it should be considered as sensitive in nature and required ‘clear rules around its admissibility’, how it is played in court and ‘appropriate lines of questioning’ if the evidence is introduced.^[169]

21.148 Rape & Domestic Violence Services Australia suggested the law in New South Wales as a model. The equivalent provision excludes evidence about sexual experience, other than in limited circumstances. It submitted this was better than the ‘discretionary regime’ in Victoria.^[170] The Office of Public Prosecutions (OPP) agreed that the grounds for allowing such evidence could be stricter.^[171] On the other hand, Victoria Legal Aid pointed out that there were already processes in place to address sexual history evidence and expressed concerns that a further narrowing of admissibility may be too rigid.^[172]

21.149 In the transcript analysis, cross-examination or other evidence about a complainant’s sexual activities did not feature prominently. When it did come up in trials, ‘it was generally subject to careful handling by way of a voir dire, rulings by the trial judge and careful questioning by counsel’.^[173] In examples where defence counsel went too far with questioning, the judge or prosecutor intervened or objected. The transcript analysis revealed no evidence that sexual history evidence was being used to argue the complainant is the type of person who is more likely to have consented.^[174]

21.150 Others focused on the need for procedural reforms. The OPP and the Magistrates’ Court of Victoria raised a concern that the written notice requirement was too easily waived.

21.151 The OPP told us that written notice was not often given and that this could lead to ‘questioning which is less confined and potentially more oppressive’ than if written notice had been given.^[175]

21.152 The Magistrates’ Court of Victoria supported a stricter test for waiving the application process. It observed that the written notice requirement ensured that lawyers had to ‘turn their mind’ to whether and why such questioning was needed at an early stage. It also avoided delays at the hearing and gave magistrates enough information to decide whether to allow questioning and to control questioning.^[176]

21.153 However, judges of the County Court of Victoria reported procedural requirements are strictly enforced and rarely waived.^[177]

21.154 The Magistrates’ Court of Victoria, OPP and Victoria Legal Aid agreed that the term ‘chastity’ under section 341 of the Criminal Procedure Act is outdated.^[178]

21.155 The Victims of Crime Commissioner suggested that, even if its use was rare, complainants should be heard in applications about their sexual history and have independent legal representation to do so.^[179]

How can sexual history protections be strengthened?

21.156 In our Victims of Crime inquiry, we heard these protections were working well. Evidence in this inquiry suggests this is not the case.

21.157 Complainants should be able to participate in applications to introduce their sexual history. We received considerable support for providing victim survivors with legal representation for such applications. In Chapter 12 we recommend that there should be independent legal advice and representation for these matters. As we discuss there, the right to legal representation to assist with sexual history evidence also exists in other jurisdictions.

21.158 We recommend strong procedural requirements, similar to those for confidential communications records (see above), for complainants in these applications. As with confidential communications, evidence about a person’s sexual activities is personal and sensitive. Complainants are likely to find it invasive and distressing having such private matters introduced in court. We recommend changes to the Criminal Procedure Act to:

• require the prosecution (or informant in summary proceedings) to notify the complainant of their right to appear and the availability of legal assistance in relation to an application concerning sexual activities under section 342 of the Criminal Procedure Act

• require the court to be satisfied that the complainant is aware of the application and has had an opportunity to obtain legal advice

• prohibit the court from waiving the notice requirements, except where the complainant cannot be found after reasonable attempts, or the complainant has given informed consent to the waiver

• provide complainants standing to appear

• allow complainants to provide a confidential sworn or affirmed statement to the court that specifies the harm they are likely to suffer if the application is granted.

21.159 Independent legal advice and strong procedural requirements with these applications will allow complainants to have their say in a more informed way. It will also assist judges in making decisions.

21.160 Requirements for complainants to have their say may result in better compliance with procedural requirements, such as a waiver for written applications.^[180] This is because complainants will need to be notified and provided an opportunity to seek legal assistance. We note, however, that our transcript analysis of rape cases in the County Court of Victoria found that the legislative regime was generally working as intended.

21.161 Rape & Domestic Violence Services Australia suggested that there should be narrower grounds for permitting such evidence, as is the approach in New South Wales.^[181] We are persuaded by Victoria Legal Aid that this approach may be too restrictive.^[182] It could be unfair to both the complainant (where it would assist the prosecution’s case) and the accused, especially for unique situations not contemplated by legislation.

21.162 We recommend in Chapter 4 that the Victims’ Charter Act should include a right for victims of sexual offences to be notified of sexual history applications and to submit their views to the court, and the right to funded legal representation. This is consistent with the aims of that Act of informing victim survivors about their cases and rights.^[183] In Chapter 6 we note the need for better data about how many sexual history applications are made.

21.163 We also heard that the word ‘chastity’ in the prohibition under section 341 of the Criminal Procedure Act is outdated.^[184] We agree that this is an outdated word. It should be replaced with a neutral term.

1. Victims’ Charter Act 2006 (Vic) ss 4, 14.

   ↑

2. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 141.

   ↑

3. Victims’ Charter Act 2006 (Vic) ss 4(ba), 7A.

   ↑

4. Malini Laxminarayan et al, ‘Victim Satisfaction with Criminal Justice: A Systematic Review’ (2013) 8(2) Victims & Offenders 119, 131. See generally Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) ch 5.

   ↑

5. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) ch 5.

   ↑

6. Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004).

   ↑

7. Consultation 62 (Mark, a person who has experienced sexual harm).

   ↑

8. 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).

   ↑

9. Ibid.

   ↑

10. Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (Guide, 2019) <https://www.judicialcollege.vic.edu.au/resources/victims-crime-courtroom>.

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11. Evidence Act 2008 (Vic) pt 2.1 div 5. See also Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 62–3.

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12. Evidence Act 2008 (Vic) s 41(3).

    ↑

13. Ibid s 41(1).

    ↑

14. Consultation 77 (Witness J).

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15. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) Recommendation 18; Justice Legislation Miscellaneous Amendment Act 2018 (Vic).

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16. Evidence Act 2008 (Vic) s 41.

    ↑

17. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [5.49]–[5.52].

    ↑

18. Ibid Recommendations 30–1, [7.197]–[7.326].

    ↑

19. Criminal Procedure Act 2009 (Vic) pt 8.2A.

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20. Ibid s 389C.

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21. County Court of Victoria, Multi-Jurisdictional Court Guide for the Intermediary Pilot Program: Intermediaries and Ground Rules Hearings (Guide No 2/2021, 22 March 2021) [5.2] <https://www.judicialcollege.vic.edu.au/sites/default/files/2021-04/Multi-jurisdictional%20Court%20Guide%20for%20IPP%20%20-%20final%20220321.pdf>.

    ↑

22. Ibid [5.3]–[5.6].

    ↑

23. Submissions 59 (County Court of Victoria), 63 (Office of Public Prosecutions), 68 (Victoria Police); Consultation 71 (Magistrates’ Court of Victoria (No 1)).

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24. Submission 63 (Office of Public Prosecutions).

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25. Submission 59 (County Court of Victoria).

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26. Submission 68 (Victoria Police).

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27. Submission 63 (Office of Public Prosecutions).

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28. Submissions 17 (Sexual Assault Services Victoria), 18 (In Good Faith Foundation), 26 (Northern CASA), 39 (Rape & Domestic Violence Services Australia), 45 (Victims of Crime Commissioner); Consultations 11 (Family violence and sexual assault practitioners focusing on disability inclusion), 56 (Cecilia, a victim survivor of sexual assault), 62 (Mark, a person who has experienced sexual harm), 69 (Deborah, a victim survivor of sexual assault), 77 (Witness J); 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).

    ↑

29. Submission 63 (Office of Public Prosecutions).

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30. Submissions 17 (Sexual Assault Services Victoria), 26 (Northern CASA), 45 (Victims of Crime Commissioner); Consultations 56 (Cecilia, a victim survivor of sexual assault), 62 (Mark, a person who has experienced sexual harm), 69 (Deborah, a victim survivor of sexual assault), 77 (Witness J); 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).

    ↑

31. Consultation 59 (Ashleigh Rae, Nicole Lee, Penny).

    ↑

32. Consultation 56 (Cecilia, a victim survivor of sexual assault).

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33. Submission 47 (Criminal Bar Association).

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34. Ibid.

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35. Submission 53 (Liberty Victoria).

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36. Submission 40 (Law Institute of Victoria).

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37. Submissions 17 (Sexual Assault Services Victoria), 45 (Victims of Crime Commissioner), 63 (Office of Public Prosecutions); Consultation 71 (Magistrates’ Court of Victoria (No 1)).

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

    ↑

39. Nenna (a Pseudonym) v The Queen [2021] VSCA 183, [37].

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40. Adam Cooper, ‘“We Put Our Trust in the Law”: Craig McLachlan Not Guilty on All Charges’, The Sydney Morning Herald (online, 15 December 2020) <https://www.smh.com.au/national/verdict-handed-down-in-craig-mclachlan-indecent-assault-trial-20201215-p56nj2.html>.

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41. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

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42. ‘Such as a judge saying “we will turn you off for a moment” when advising a complainant that the AVL link is about to be temporarily closed or counsel saying “we are not going to finish her today” when discussing the anticipated completion of examination or cross-examination of a witness’: ibid.

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43. For example, ‘the location of clothes and underwear; the position of hands, arms and legs (at multiple time points); the number of fingers used to effect penetration; the angle of her leg at the time of penetration; the duration of penetration etc’: ibid.

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44. These are ‘questions that are assertions put to the complainant, as distinct from questions designed to adduce evidence’. The law allows for such questions. However, they may be confusing or insensitive when they do not ‘appear to fit chronologically or logically in the sequence of questions that preceded them’. This is made worse when ‘puttage’ questions are ‘not always sign-posted’ and ‘sometimes followed by a rapid shift back to confronting questions about the specific details of the alleged rape’: ibid. See also Judicial College Victoria, ‘4.12 Failure to Challenge Evidence (Browne v Dunn)’, Criminal Charge Book (Online Manual, 26 April 2021) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/19672.htm>.

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45. This strategy was common: Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

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46. Ibid.

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47. Ibid.

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48. Victims’ Charter Act 2006 (Vic) s 4.

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49. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming). This ground rules hearing was held because the complainant in the case had a cognitive impairment.

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50. Lord Justice Clerk’s Review Group, Improving the Management of Sexual Offence Cases (Report, Scottish Courts and Tribunal Service, March 2021) 40–1, Recommendation 1(c) <https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6>.

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51. Jury Directions Act 2015 (Vic) pt 3.

    ↑

52. Consultations 86 (Magistrates’ Court of Victoria (No 2)), 90 (Criminal Bar Association (No 2)), 95 (Victoria Legal Aid (No 2)).

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53. County Court of Victoria, Multi-Jurisdictional Court Guide for the Intermediary Pilot Program: Intermediaries and Ground Rules Hearings (Guide No 2/2021, 22 March 2021) <https://www.judicialcollege.vic.edu.au/sites/default/files/2021-04/Multi-jurisdictional%20Court%20Guide%20for%20IPP%20%20-%20final%20220321.pdf>; Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (Guide, 2019) chs 3–4 <https://www.judicialcollege.vic.edu.au/resources/victims-crime-courtroom>.

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54. The Inns of Court College of Advocacy, The 20 Principles of Questioning: A Guide to the Cross-Examination of Vulnerable Witnesses (Guide, 2019) <https://www.icca.ac.uk/revised-20-principles/>. These principles include: asking questions in a way that follows the chronology of events; signposting new topics; not repeating questions to confuse a witness; and not using questions that are statements with a short question tagged on the end which invites a witness to agree or disagree. Some of these rules feature in the existing Victorian ground rules procedure for children and people with a cognitive impairment.

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55. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

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56. Criminal Procedure Act 2009 (Vic) pt 8.2 div 2; Evidence Act 2008 (Vic) s 41.

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57. Submission 59 (County Court of Victoria).

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58. Consultation 62 (Mark, a person who has experienced sexual harm).

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59. See, eg, Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (Guide, 2019) 10 <https://www.judicialcollege.vic.edu.au/resources/victims-crime-courtroom>.

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60. Consultation 87 (County Court of Victoria (No 2)).

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61. Consultations 90 (Criminal Bar Association (No 2)), 94 (Office of Public Prosecutions (No 2)), 95 (Victoria Legal Aid (No 2)).

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62. The defence must apply for leave to cross-examine a witness at a committal hearing: Criminal Procedure Act 2009 (Vic) s 124.

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63. See Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [8.6]–[8.23].

    ↑

64. Criminal Procedure Act 2009 (Vic) pt 8.2 div 4.

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65. Ibid s 123.

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66. Ibid pt 8.2 div 6.

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67. Ibid ss 367–68, 370, 372, 374.

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68. Ibid s 376.

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69. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) Recommendations 37–8. This is similar to the definition of ‘vulnerable adult’ used in the Australian Capital Territory: Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 42.

    ↑

70. Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Parts VII to X and Appendices, 2017) Recommendations 53, 56, 61. It recommended these provisions apply to other witnesses who are children or vulnerable adults, and any other prosecution witness that the prosecution considers necessary.

    ↑

71. 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>.

    ↑

72. Victorian Law Reform Commission, Committals (Report No 41, March 2020) [11.12]–[11.82].

    ↑

73. Ibid Recommendations 42–4.

    ↑

74. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

    ↑

75. Criminal Procedure Act 2009 (Vic) s 379.

    ↑

76. Submission 17 (Sexual Assault Services Victoria); Consultation 77 (Witness J).

    ↑

77. Consultation 54 (Lucille Kent, a victim survivor of sexual assault).

    ↑

78. Submission 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes).

    ↑

79. Submission 17 (Sexual Assault Services Victoria).

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80. Submission 45 (Victims of Crime Commissioner). See also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [4.226].

    ↑

81. Submissions 47 (Criminal Bar Association), 63 (Office of Public Prosecutions).

    ↑

82. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

    ↑

83. Consultation 24 (County Court of Victoria).

    ↑

84. Submission 17 (Sexual Assault Services Victoria).

    ↑

85. Ibid.

    ↑

86. Consultations 54 (Lucille Kent, a victim survivor of sexual assault), 77 (Witness J).

    ↑

87. Consultation 62 (Mark, a person who has experienced sexual harm).

    ↑

88. Submissions 17 (Sexual Assault Services Victoria), 45 (Victims of Crime Commissioner); 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).

    ↑

89. Consultation 54 (Lucille Kent, a victim survivor of sexual assault).

    ↑

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

    ↑

91. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [8.112]–[8.116].

    ↑

92. Ibid Recommendation 43.

    ↑

93. 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>.

    ↑

94. Submission 45 (Victims of Crime Commissioner). See also Victorian Government, ‘Courts—Reforming the Court Response to Family Violence’, VIC.GOV.AU (Web Page, 19 April 2021) <http://www.vic.gov.au/family-violence-reform-rolling-action-plan-2020-2023/priorities-for-2020-2023/courts>.

    ↑

95. Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) Recommendation 70 <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>.

    ↑

96. See, eg, Office of Public Prosecutions (Vic), Victims’ Facilities Improved, The Prosecutor (Web Page, March 2016) <https://www.opp.vic.gov.au/News-and-Media/Newsletters/March-2016/Victims-facilities-improved>.

    ↑

97. Victorian Government, Family Violence Reform Rolling Action Plan 2020–2023: Activities Index (Combined Activity Summary) 2 <https://www.vic.gov.au/family-violence-reform-rolling-action-plan-2020-2023>.

    ↑

98. Ibid.

    ↑

99. Victims’ Charter Act 2006 (Vic) s 12.

    ↑

100. Submission 45 (Victims of Crime Commissioner); Consultation 71 (Magistrates’ Court of Victoria (No 1)).

     ↑

101. Submissions 17 (Sexual Assault Services Victoria), 22 (knowmore legal service).

     ↑

102. Submission 22 (knowmore legal service).

     ↑

103. Consultation 56 (Cecilia, a victim survivor of sexual assault).

     ↑

104. Nicole Bluett-Boyd and Bianca Fileborn, Victim/Survivor-Focused Justice Responses and Reforms to Criminal Court Practice (Research Report No 27, Australian Institute of Family Studies (Cth), April 2014) 36 <https://aifs.gov.au/publications/victimsurvivor-focused-justice-responses-and-reforms-criminal-court-practice>.

     ↑

105. Submission 63 (Office of Public Prosecutions); Nicole Bluett-Boyd and Bianca Fileborn, Victim/Survivor-Focused Justice Responses and Reforms to Criminal Court Practice (Research Report No 27, Australian Institute of Family Studies (Cth), April 2014) 49 <https://aifs.gov.au/publications/victimsurvivor-focused-justice-responses-and-reforms-criminal-court-practice>.

     ↑

106. Submission 63 (Office of Public Prosecutions).

     ↑

107. Martine Powell et al, An Evaluation of How Evidence Is Elicited from Complainants of Child Sexual Abuse (Report for the Royal Commission into Institutional Responses to Child Sexual Abuse, August 2016) 12 <https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/research_report_-_an_evaluation_of_how_evidence_is_elicited_from_complainants_of_child_sexual_abuse_and_supplementary_-_government_responses.pdf>.

     ↑

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

     ↑

109. Submissions 40 (Law Institute of Victoria), 63 (Office of Public Prosecutions).

     ↑

110. Submission 47 (Criminal Bar Association).

     ↑

111. Consultation 90 (Criminal Bar Association (No 2)).

     ↑

112. Mark R Kebbell and Nina J Westera, ‘Promoting Pre-Recorded Complainant Evidence in Rape Trials: Psychological and Practice Perspectives’ (2011) 35(6) Criminal Law Journal 376.

     ↑

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

     ↑

114. Consultation 87 (County Court of Victoria (No 2)).

     ↑

115. See generally Judicial College of Victoria, ‘13.5.1 VARE Procedure’, Victorian Criminal Proceedings Manual (Online Manual, 1 November 2019) [37]–[39] <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/27695.htm>.

     ↑

116. Submission 63 (Office of Public Prosecutions).

     ↑

117. Ibid. See also Victorian Law Reform Commission, Committals (Report No 41, March 2020) [11.79].

     ↑

118. Criminal Procedure Act 2009 (Vic) s 198. For example, the witness will be overseas during the trial.

     ↑

119. Ibid s 369.

     ↑

120. Submissions 45 (Victims of Crime Commissioner), 59 (County Court of Victoria).

     ↑

121. Submission 59 (County Court of Victoria); Consultation 77 (Witness J). See also Nicole Bluett-Boyd and Bianca Fileborn, Victim/Survivor-Focused Justice Responses and Reforms to Criminal Court Practice (Research Report No 27, Australian Institute of Family Studies (Cth), April 2014) 50 <https://aifs.gov.au/publications/victimsurvivor-focused-justice-responses-and-reforms-criminal-court-practice>.

     ↑

122. Law Council of Australia, Courts and Tribunals (Part 2) (Report, August 2018) 78–9 <https://www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Final%20Report/Courts%20and%20Tribunals%20%28Part%202%29.pdf>.

     ↑

123. Consultations 90 (Criminal Bar Association (No 2)), 95 (Victoria Legal Aid (No 2)).

     ↑

124. See, eg, Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (Report No 129, December 2015) [8.53]–[8.56] <https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-report-129/>. However, provisions exist to close courts in sexual offence cases to avoid causing undue distress or embarrassment to a complainant or witness: Open Courts Act 2013 (Vic) s 30(2).

     ↑

125. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2).

     ↑

126. Ibid s 13.

     ↑

127. Victims’ Charter Act 2006 (Vic) s 14.

     ↑

128. Submission 26 (Northern CASA).

     ↑

129. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [8.131]–[8.133].

     ↑

130. Ibid.

     ↑

131. Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32B. This is known in other states by other names, such as ‘protected confidences’ in New South Wales, ‘sexual assault counselling privilege’ in Queensland, and ‘protected communications’ in South Australia and Western Australia.

     ↑

132. Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004) 211–12.

     ↑

133. Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32D(1). Harm includes actual physical bodily harm, financial loss, stress, shock, damage to reputation and emotional or psychological harm (such as shame, humiliation or fear): s 32B(1) ‘harm’.

     ↑

134. Ibid s 32D(2).

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135. Ibid s 32C. A judge may waive or shorten the notice requirement: s 32C(3). The OPP noted that it had taken on the role of advising complainants in practice, although in law the responsibility rested on the informant: Submission 63 (Office of Public Prosecutions).

     ↑

136. Australian Law Reform Commission, New South Wales Law Reform Commission, and Victorian Law Reform Commission, Uniform Evidence Law (ALRC Report No 102; NSWLRC Report 112, December 2006) [15.73] <https://www.alrc.gov.au/publication/uniform-evidence-law-alrc-report-102/>.

     ↑

137. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016).

     ↑

138. Ibid [7.67]–[7.86].

     ↑

139. Ibid [8.140]–[8.153].

     ↑

140. Ibid Recommendation 44.

     ↑

141. Criminal Code, RSC 1985, c C-46, s 278.1.

     ↑

142. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.

     ↑

143. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) Recommendation 23.

     ↑

144. Submission 17 (Sexual Assault Services Victoria).

     ↑

145. Consultation 57 (Department of Health and Human Services).

     ↑

146. Submission 23 (Dr Mary Iliadis).

     ↑

147. Evidence Act 2001 (Tas) s 127B.

     ↑

148. Submission 17 (Sexual Assault Services Victoria).

     ↑

149. Submission 45 (Victims of Crime Commissioner).

     ↑

150. Submission 14 (Gatehouse Centre, Royal Children’s Hospital). Restricted access may already be arranged in practice if the accused consents: Bowers (a pseudonym) v The Queen [2020] VSCA 246, [51].

     ↑

151. Submission 59 (County Court of Victoria).

     ↑

152. This means that a decision will be made by a judicial officer in their chambers based on written materials filed by parties, without verbal evidence or oral submissions: ‘What Are Decisions Made by Courts and Tribunals “On the Papers”?’, Justice Connect (Web Page) <https://justiceconnect.org.au/resources/decisions-made-on-the-papers/>.

     ↑

153. Victims’ Charter Act 2006 (Vic) s 7.

     ↑

154. Criminal Procedure Act 2009 (Vic) ss 341–343. This includes committal proceedings, summary or indictable trials, sentencing hearings and pre-trial cross-examination.

     ↑

155. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [5.44]–[5.45].

     ↑

156. Criminal Procedure Act 2009 (Vic) s 341.

     ↑

157. Ibid s 343. ‘Sexual history’ is defined as evidence that ‘relates to or tends to establish the fact that the victim survivor was accustomed to engaging in sexual activities; or had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person.’: ibid s 340.

     ↑

158. ‘Sexual activities’ is not defined.

     ↑

159. Criminal Procedure Act 2009 (Vic) ss 342, 349.

     ↑

160. Ibid s 349.

     ↑

161. Ibid s 344.

     ↑

162. Ibid ss 344, 347, 349.

     ↑

163. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [5.64]–[5.65]. See also Success Works and Department of Justice (Vic), Sexual Assault Reform Strategy (Final Evaluation Report, Department of Justice (Vic), January 2011) 110 <https://trove.nla.gov.au/version/169811763>.

     ↑

164. Submission 17 (Sexual Assault Services Victoria).

     ↑

165. Submission 34 (Rape & Sexual Assault Research & Advocacy).

     ↑

166. Ibid. Other researchers agreed that there was evidence sexual history was still ‘routinely introduced’ at trials in subtle ways: Submission 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes).

     ↑

167. Consultation 57 (Department of Health and Human Services).

     ↑

168. Submission 14 (Gatehouse Centre, Royal Children’s Hospital) (December 2020).

     ↑

169. Ibid.

     ↑

170. Submission 39 (Rape & Domestic Violence Services Australia). The New South Wales law contains six categories of exceptions for admitting sexual experience evidence, and also requires that the value of the evidence outweighs any ‘distress, humiliation or embarrassment’ that the complainant might suffer as a result of admitting the evidence: Criminal Procedure Act 1986 (NSW) s 293(4).

     ↑

171. Consultation 94 (Office of Public Prosecutions (No 2)).

     ↑

172. Consultation 95 (Victoria Legal Aid (No 2)).

     ↑

173. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming). A voir dire is a hearing in which a court determines questions of fact and law after hearing evidence from witnesses: Judicial College of Victoria, ‘17 Voir Dire’, Criminal Proceedings Manual (Online Manual, 1 November 2019) [1] <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/27799.htm>.

     ↑

174. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming). However, the researchers noted the legislation might be having unintended consequences where such evidence could assist the prosecution.

     ↑

175. Submission 63 (Office of Public Prosecutions). The Office of Public Prosecutions explained that the test for making a late application was whether it was in the interests of justice, and if there was merit in the questioning, this would usually satisfy this test.

     ↑

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

     ↑

177. Consultation 87 (County Court of Victoria (No 2)).

     ↑

178. Consultations 71 (Magistrates’ Court of Victoria (No 1)), 94 (Office of Public Prosecutions (No 2)), 95 (Victoria Legal Aid (No 2)).

     ↑

179. Submission 45 (Victims of Crime Commissioner).

     ↑

180. Criminal Procedure Act 2009 (Vic) s 347.

     ↑

181. Submission 39 (Rape & Domestic Violence Services Australia).

     ↑

182. Consultation 95 (Victoria Legal Aid (No 2)).

     ↑

183. Victims’ Charter Act 2006 (Vic) pt 2.

     ↑

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

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