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VLRC: Sexual offences shake-up

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Cite as: (2004) 78(10) LIJ, p. 77

The Victorian Law Reform Commission’s review of sexual offences has been tabled in Parliament, with 201 recommendations for change now under consideration.

Three years after receiving the reference to review sexual offence laws, the Victorian Law Reform Commission (VLRC) has written a final report containing 201 recommendations to improve the criminal justice system’s treatment of complainants.

The VLRC’s main term of reference for the investigation was to consider whether the justice system was “sufficiently responsive” to the needs of complainants in sexual offence cases.

It appears that the reporting rate for sexual offences may have dropped over the past decade even though a number of reforms have been made to sexual offence laws as well as police and court processes. It is in the community’s best interests to encourage people to report sexual assault to ensure offenders are apprehended and prosecuted.

Some of the submissions to the interim report were concerned that changes to court processes would result in more wrongful convictions. The VLRC has addressed these concerns and is confident the changes will do what they are supposed to – make the system more sensitive to complainants’ needs, without affecting the fairness of the trial.

The recommendations cover the entire justice system, from how police respond to complainants when they first report, through to the trial process.

Key recommendations

  • Better education and training in sexual assault cases for police, lawyers and judges, with greater emphasis on the social context in which sexual assault occurs and the impact on victims. Prosecutors from the private Bar should only be briefed to appear in sexual offence trials if they have completed specialised training through the Office of Public Prosecutions.
  • Improving police responses to all complainants, but particularly indigenous and NESB people and people with cognitive impairment. This includes providing written reasons to complainants if cases are not prosecuted and developing transparent guidelines for police to use when deciding whether to prosecute. A recommendation is also made to review and improve the collection of sexual offences statistics across the system.
  • Introducing a specialist list for cases involving sexual offences against children in the Magistrates’ Court to improve the speed and sensitivity of the process. In the County Court the VLRC recommends designating a judge to list and manage all sexual offence cases involving child complainants and complainants with a cognitive impairment.
  • Reducing the number of times children and people with a cognitive impairment must give their evidence and be cross-examined on it. This includes a ban on cross-examining these complainants at committal hearings and a presumption in favour of pre-recording examination-in-chief and cross-examination to be used in the trial. The VLRC also recommends improvements to the current VATE system for recording statements from children and people with cognitive impairment.
  • Establishing a working party to pinpoint the reasons for delays in processing sexual offence cases and provide recommendations to speed up the process.
  • Tightening judges’ control of cross-examination and barring the accused from personally questioning the complainant or other “protected” witnesses. The VLRC recommends the court appoint a lawyer, to be instructed by the accused, to conduct the cross-examination in cases where the accused is self-represented.
  • Making testimony by closed-circuit television routine for all complainants in sexual offence cases. All courts where sexual offence cases are heard should be fitted with closed-circuit TV and cases should be moved if it is not available and it is practical to do so. If prosecutors want complainants to appear in court they will have to apply to the judge for permission.
  • Further restricting access to the complainant’s counselling records. These records will not be available at committal hearings and their use at trial will be further restricted.
  • Giving judges the discretion to allow hearsay evidence in cases involving child complainants, and changing the test for competence to give evidence on oath.
  • Changing the “mental element” of rape to introduce an objective element. Before the defence can be put to the jury, the judge must be satisfied that there is sufficient evidence of an honest belief which goes beyond the accused’s mere assertion.
  • Increasing funding for the Office of Public Prosecutions’ witness assistance service and establishing and funding an independent child witness support service.
  • Widening the offences which protect people with a cognitive impairment against sexual abuse.
  • Establishing of a working party to improve responses to young sexual offenders.

Government and the various agencies involved in the criminal justice system that are covered in the report are now considering the recommendations to decide on implementation.


Contributed by the VICTORIAN LAW REFORM COMMISSION. For a copy of the final report, tel 8619 8619 or visit the website http://www.lawreform.vic.gov.au.

viclawreform@liv.asn.au

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