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Tutorial 8

Sexual offences

1. A goes to the police and makes a formal complaint that, 20 years ago, when she was 17, she
was raped by a teacher on a school camp. She has never made a formal complaint before
this time, but she did tell her friend, F, that the teacher, T, had raped her, after she got back
from the school camp. Earlier this year, A told her psychologist, P, about the rape.

When A told F that T had raped her, she said it happened in the afternoon, when many other
campers were away on a hike. When she told P, and then in her formal complaint to police,
she said she couldn’t remember what time of day it was, but she thinks it was dark outside.
Discuss:
a. Who may give evidence;

A, F, psychologist, T

Preliminary complaint (discussion she had with friend and psychologist) ordinarily would be prior
statement, not evidence you can use to tender to bolster credibility – in sexual offences, have
exception – that evidence is admissible only for establishment of credibility of A – not to the fact of
statement – in a case like this, where no vast array of evidence, one word against other, crdiblity
evidence is significant – possibility that, even at preliminary stage, by bringing in evidence of
preliminary complaints, open youtself up to possibility of criticism – here, wuld be that there’s
inconsistencies in her statements

Evidence of psychologist – presumption of competency –s 9 EAQ – can be compelled, but privilege

regarding counselling provided for sexual assault victims – not compellable – however, under s 14 I,
privilege may be waived – A may consent to evidence of psychologist – will be compellable –

DL section 4A Criminal Law, Sexual Offences Act – need for exam

b. What directions should be given, if any;

Direction re. use to which preliminary complaint may be put – prelim complaints admissible for
credibility but not for fact of statement – initial direction

2 other directions relevant –

- Longman and Robinson direction

Longman

- Proposition that jury should be directed to length of time bbetween incident and formal
complaint, and appearance –comments are made as to fairness of the trial – it is usually said
that length of time has potential to undermine fairness of trial as it creates prejudice for
accused in bringing case – specific wording is usually – I warn you its dangerous to convict on
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testimony alone, unless scrutinizing on great care, you are satisfied BRD as to its trut and
accuracy
- Split in 2 ideas:
o 1 – length of time is likely/may result in miscarriage of justice – accucsed birnging
case
o 2 – dangerous to convict on victim’s word alone
- Underlying premise- if you have complaint after elapsation of time, accused loses
opportunity to gater evidence supporting case
o Alibi
o Medical examination evidence
o Opportunity to speak to other people –
- ‘Danger to convit’ – strong wording – framing of it is suggestion that its appropriate to acquit
– problematic- people tend not to make these complaints quickly – particularly where
persisting abuse or power imbalance

See problems with Longman in Cossin article – page 92

- Trial judges seek to avoid opportunities to appeal by issuing drirections – in reality, large
number of these cases have been overturned at appeal wher edirections haventbeen given

Deane J gives discussion of Longman direction, but also draws to attention re. issues (i.e. wording
which is unqualified absolute statement that conviction would be dangerous) -

McHugh J

Robinson

- Longman focused on delay, Robinson targeted at issuing further warning re. reliability of
particular types of witnesses and evidence
- Need to scrutinize evidence of complainant with great care wher:
o Significant delay
o Age of complainant at time of alleged incident
o Difference in accounts given by complainant
o Other matters
 Not exhaustive
 Would include things like where victim has been in altered state (asleep,
inebriated)
- Should only act on evidence if considering It with warning in mind, and with other evidence,
convinced of truth and accuracy
- Focused on type of complainant
o Maybe criticized for reinforcing ideas that children and women are unreliable
witnesses

Here, longman or robinson

- Yes to longman – years of delay

- Robinson – she was 17 – not really a problem re. her age
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c. Whether the differences in A’s testimony are likely to be a problem for the jury;

Inconsistency – human memories are frail due to elapsation of time – in circumstances like that,
easily explainable inconsistency – recommend use of Ashley direction – proposition that to the extnt
of inconsistency between accounts may cause doubt in witness’ reliaibility, mere xistence of
inconsistency doesn’t mean must rejct evidence – some inconsistency to be expected because
natural for humans to tell slightly diff stories – relevant aspect -> preliminary complaint part

d. Whether counsel for T would be able to ask A questions designed to elicit

information that A was sexually active while at school; and

S 21 – prohibition on improper questions – court can disallow question to witness if improper – one
that uses inappropriate language, is annoying etc. – general discretion court has to limit questioning

Also relevant htat in the case in hand – s 21A provisions re. evidence of special witnesses – however,
msut establish special witness

S 21A (1) (e) – peron against whom sexual offence alleged to be committed against

- Court can direct line of questioninh – subsection (2)

e. What special measures may be taken to assist A in giving evidence (see s21A)

Under s 21A, procedural rules for special witneses – evidence may be given in diff way – usually oral
testimony will be given in closed court, have support person, accused in diff room etc.

S 21A deals with children – because kind of threshold for being child is clear and objective, .

Age – 17 – delay of 3 years

At the time, talked to friend, and 3 years later, talked to psychologist – shift in information – not
entirely contradictory, but inconsistencies

2. Read the case of R v MBX [2013] QCA 214 [60]-[134], and summarise the court’s rulings on
the issues related to judicial directions.

R v MBX – complainant sexually assaulted when young – appeal point was tat no alternative
convictions were put to jury – no lessor sexual offence put before jury – question here was
approach taken to Longman Direction
- To summarize approach taken, see [105]
o Key issues here is that it has be issued in form of warning (not guide or comment),
proposition that after many years, evidence canot be adequately tested – criticzed
for creation assumption of prejudice, rather than whether there is prejudice
o Use of the word danger and appropriateness
o
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3. What particular challenges of proof arise in cases involving sexual offences? To what extent
do the current statutory and common law rules of evidence assist in prosecuting or make it
difficult to prosecute sexual offences? In your answer, consider the journal articles from this
week’s reading, and the different issues that arise in cases involving sexual violence, (read
Cossins, available in the Module 10 folder; and the article(/s) on the Pell case in the reading
list.).

a. Consider whether there are any changes that could be made in order to make it
easier to prosecute sexual offences/protect victims in the criminal justice system,
and whether any such changes are compatible with the rights of the defendant/the
‘golden thread’ of the criminal law.