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VLRC : Victims’ concerns heard

Every Issue

Cite as: (2003) 77(6) LIJ, p.81

A VLRC report has heeded sexual assault victims’ complaints about the criminal justice process.

In May 2003, the Victorian Law Reform Commission (VLRC) published its Interim Report on Sexual Offences. The report makes recommendations for legislative, administrative and procedural changes to ensure that the criminal justice system takes sufficient account of the needs of complainants in sexual offences cases. The recommendations span the entire criminal justice process, from disclosure to reporting, interviewing and charging, through to prosecution and complainants’ experiences in court. This article discusses some of the main recommendations in the report.

Giving Evidence

The VLRC’s consultations revealed widespread dissatisfaction with the criminal justice process among complainants and organisations which provide support to victims of sexual assault. The report contains recommendations to reduce the trauma that complainants often experience in giving evidence.

The major recommendations include that:

  • closed-circuit television (CCTV) should no longer be regarded as an “alternative” method of giving evidence, but should be the standard way in which complainants in sexual offences cases give evidence at committal or trial;
  • a person charged with a sexual offence should be prohibited from personally cross-examining complainants and other “protected witnesses”. If the accused refuses to arrange legal representation or to accept legal assistance provided by Victoria Legal Aid, or does not cooperate with the lawyer appointed for this purpose, he should be taken to have declined to cross-examine the complainant; and
  • evidence about complainants’ sexual activities should only be admissible where it has significant probative value to a fact in issue, and where the probative value of this evidence substantially outweighs the danger of prejudice to the proper administration of justice. In applying this test, the judge must consider factors including the rights of the accused, the harm that may be suffered by the complainant, and the risk that the evidence may unduly arouse discriminatory belief or bias, prejudice, sympathy or hostility in the jury.

The report also discusses two options for dealing with confidential communications made by a person who seeks counselling after being sexually assaulted. Under Option 1, disclosure or admission in evidence of these communications would be completely prohibited. Under Option 2, disclosure or admission in evidence would be prohibited at committals, and additional restrictions would be imposed on disclosure or admission in evidence of communications at trial.

Corroboration Warnings

If there is a significant delay in reporting a sexual offence, the judge must warn the jury that it may be dangerous to convict because of the forensic disadvantages which the accused may experience because of the delay. There is evidence that some juries interpret such warnings as directions to acquit.

The main recommendations are that:

  • warnings should not state that it is “dangerous to convict” in the absence of corroboration; and
  • jury warnings on delay should only be required where the accused can show a specific forensic disadvantage caused by the delay, rather than a hypothetical disadvantage.

Children’s Needs

The criminal justice system was designed for adults. Historically, child witnesses have been treated with suspicion. The stress which children experience in giving evidence and the difficulties of obtaining convictions often result in failure to report offences, or in the decision being made not to charge an accused person. Only one in seven reports of penetrative offences other than rape result in a person being charged.

The main recommendations in the report are that:

  • specialist child witness support should be provided to child witnesses, their parents, guardians or carers in sexual offences cases, both within Melbourne and in rural and regional areas;
  • the prosecution should be able to apply for a special hearing, presided over by a judge, at which the child witness gives evidence and is cross-examined. The accused and counsel for the prosecution and defence would attend the hearing. The child’s pre-recorded evidence would be played at trial. This process should also be available for witnesses with impaired mental functioning. (A similar process operates successfully in Western Australia.);
  • children should be deemed competent to give sworn evidence if they understand the obligation to tell the truth; and
  • hearsay evidence of children should be admissible in sexual offences cases, where the court is satisfied that the evidence is of sufficient probative value to justify admission. A person should not be able to be convicted solely on hearsay evidence.

Education which fosters cultural change within the criminal justice system is an essential component of the reference. The major recommendations relate to:

  • continuing education for prosecutors in sexual offences cases; and
  • provision of a program for judges and magistrates by the Judicial College of Victoria to facilitate discussion of issues which commonly arise in sexual offences committals and trials.

The report also discusses the possible advantages of establishing a specialist sexual offences jurisdiction in Victoria. South Africa has a specialist sexual offences court and New South Wales is experimenting with a specialist court to try sexual offences against children. The VLRC seeks views on the advantages and disadvantages of adopting this approach.

The VLRC welcomes feedback on the recommendations contained in the interim report.

Contributed by the VICTORIAN LAW REFORM COMMISSION, tel 8619 8619, website


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