In sexual offence prosecutions, each case relies on its own facts. However, common to all sexual assault cases which go before the courts are the rules that govern them, and the misconceptions in relation to how sexual offence defences are run, or can be run, under Victorian law.
The following are three commonly held misconceptions about how sexual offence defences can be run in Victoria.
1. The complainant has to be corroborated
In most sexual assault cases, there are no eye-witnesses to the alleged offending. Because of the nature of sexual assaults, usually the only two people present are the accused and the complainant. However, just because the complainant is the only person who can give evidence of what they say happened, doesn’t mean that it weakens the Crown case.
A complainant does not have to be corroborated by another witness, DNA or any other independent scientific, digital or medical evidence. His or her evidence is enough to proceed to trial.
How can a sexual offence defence be run without corroborative evidence?
How successful a complaint will be at trial in the absence of corroborative evidence really depends on the case and the issues in dispute in the case.
Usually, sexual offence defences are run on one of two bases:
- The alleged offence simply did not occur; or
- The sexual act was consented to, or the accused reasonably believed that it was consented to.
Consent can be a complex issue in sexual offence proceedings. You can read more about affirmative consent laws in Victoria and how they apply to sexual offence allegations.
Where the complainant is the only evidence relied upon, the decision as to whether to prosecute will often come down to whether the accused gave a record of interview. This can be very significant!
Why can a record of interview be important?
A record of interview is the interview that a person, arrested on suspicion of committing a sexual assault, has with Police before a decision is made to charge.
The suspect can say ‘no comment’ to the questions and maintain their right to silence. Or, they can give a record of interview and provide investigators with their version of events.
This is an important decision to make and any person considering participating in a record of interview should seek pre-interview advice from an experienced lawyer before doing so.
However, a thorough and well-prepared record of interview can make all the difference to the decision to charge an accused and, if charged, the ultimate outcome of any trial.
When a complainant is not corroborated and the accused has given a version inconsistent with the allegations, it makes it much harder for the prosecution to prove the allegations beyond a reasonable doubt.
2. The complainant will always give evidence in front of the jury
More often than not, a complainant’s evidence is pre-recorded prior to the trial even commencing and is played as a video recording to the jury.
The courts presume that complainants will give evidence via remote witness facility (video link) and pre-recording their evidence is more convenient to the court, given that these facilities have to be booked in advance, but also allow for edits to be made to the evidence if required.
In all criminal cases, there is a risk that a witness will make a statement or comment that causes difficulty for the trial proceeding. However, in sexual offence cases, these dangers are heightened because they are particularly emotional and sensitive proceedings.
By pre-recording the evidence, any inadmissible comments or utterances can be edited out before the recording is played to the jury.
3. You can rely on the complainant’s sexual history or reputation
Gone are the days where you can cross-examine a complainant in relation to his or her sexual history or their sexual reputation.
Sexual history evidence is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates.
However, a defence lawyer can apply to the court for leave to cross-examine a complainant in relation to his or her sexual history and the court can grant leave, but only if the court is satisfied that the evidence has substantial relevance to a fact in issue and it is in the interests of justice to allow the cross-examination or to admit the evidence.
These procedures are governed by the Criminal Procedure Act 2009 (Vic).
What does the court consider when deciding whether to grant leave?
In making a decision as to whether to grant leave, the court has to have regard to:
- Whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence;
- The age of the complainant;
- The number and nature of the questions that the complainant is likely to be asked;
- The risk that the evidence may arouse in the jury or decision maker a discriminatory belief or bias, prejudice, sympathy or hostility;
- The need to respect the complainant’s privacy and personal dignity; and
- The right of the accused to fully answer and defend the charge.
Speak to an experienced sexual offence lawyer
The laws surrounding how sexual offences are prosecuted are constantly changing. Whilst the misconceptions in this article are the three most commonly held beliefs, there are many other misconceptions about the nuances of sexual offence prosecutions.
If you or a loved one are charged with a sexual offence or, perhaps most importantly, wanted for questioning in relation to an allegation of sexual assault, obtaining experienced legal advice as early as possible is critical.
Galbally Parker has extensive experience representing people facing serious and complex criminal allegations. Our sexual offence lawyers can provide advice before a police interview and represent you throughout the investigation, court proceedings and trial process.
If you need advice about a sexual offence allegation, investigation or charge, contact Galbally Parker to arrange a confidential consultation with an experienced criminal defence lawyer.