Section 294 Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings

(1) 

This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest:

(a) 

an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or

(b) 

delay by that person in making any such complaint.

(2) 

In circumstances to which this section applies, the Judge:

(a) 

must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and

(b) 

must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and

(c) 

must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.

(3) 

However, if:

(a) 

the delay in making a complaint by the person on whom the offence is alleged to have been committed is significant, and

(b) 

the Judge is satisfied that the person on trial for the offence has suffered a significant forensic disadvantage caused by that delay, and [sic]

the Judge may inform the jury (but only if a party to the proceedings so requests) of the nature of the disadvantage and of the need for caution in determining whether to accept, or give any weight to, the evidence or question referred to in subsection (1).

(4) 

For the purposes of subsection (3)(b), the factors that may be regarded as establishing a “significant forensic disadvantage” include, but are not limited to, the following:

(a) 

the fact that any potential witnesses have died or are not able to be located,

(b) 

the fact that any potential evidence has been lost or is otherwise unavailable.

(5) 

The mere passage of time is not in itself to be regarded as establishing a significant forensic disadvantage.

Section 294AA Warning to be given by Judge in relation to complainants’ evidence

(1) 

A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.

(2) 

Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.

(3) 

Sections 164 and 165 of the Evidence Act 1995 are subject to this section.

In Crofts v The Queen (1996) 186 CLR 427 the High Court has stated that if a warning is given in accordance with section 294, then the jury should also be informed that the delay, or absence of complaint may be taken into account in evaluating the complainant’s evidence, and determining whether to believe him or her. Item [6] of the bill therefore extends section 294 to ensure that a judge does not also warn the jury that such a delay or absence of complaint is relevant to the victim’s credibility, unless there is sufficient evidence to justify such a warning.

It must be acknowledged that in some cases a delay in complaint may prejudice an accused person by denying the accused the ability to marshal witnesses who may have died or may no longer be able to be located. Prejudice may also be occasioned due to a loss of evidence, for example, the destruction of school records, medical records, employment records or photographs which may have otherwise been able to cast doubt on the evidence of the complainant. These issues may not necessarily be apparent to the jury, which is not entitled to speculate on evidence that is not before it. Other Australian States have also identified problems with the Longman direction and suggested a number of options for reform. Most importantly, the Australian Law Reform Commission [ALRC] has also examined this issue and recommends that the uniform Evidence Act be amended.

Accordingly, item [7] of schedule 1 further amends section 294 to provide that where the delay is significant and the accused can show he or she suffered a significant forensic disadvantage as a result of the delay, the judge may warn the jury of the nature of the disadvantage and the need for caution in determining whether to accept or give any weight to the relevant evidence, but only where a party requests the warning. The amendment is designed to ensure in the first instance that a Longman warning should not be given unless it is established factually that there has been a significant delay. The word “significant” has been purposely used to ensure that the warning is given in cases where the delay is warranted, and conversely not given where the delay is not significant.

The direction in Regina v Murray [(1987) 11 NSWLR 12] provides that where there is only one witness asserting the commission of the offence, the evidence of the witness is to be scrutinised with great care. The typical sexual assault offence takes place in private without any other witnesses. The members of the task force agreed that the direction was unnecessary, as existing directions as to reasonable doubt were sufficient to protect the accused. Item [8] of the schedule therefore adds a new section 294AA which prohibits a judge from stating or suggesting to a jury that complainants in sexual offence proceedings are unreliable witnesses as a class, mirroring section 165A of the Evidence Act 1995 which relates to children. The new section also prohibits the judge from warning the jury of the danger of convicting on the uncorroborated evidence of any complainant.