Sex Offence Jury Trials in Victoria
Sexual offence matters are highly complex and subject to unique procedural rules. If you have been charged or are under investigation for a sexual offence, please contact our defence experts at Sher Criminal Lawyers immediately for specialist advice and representation.
Sex Offence Jury Trials in Victoria
In Victoria, a wide range of indictable sexual offences are legislated under the Crimes Act 1958 (Vic). Indictable offences are serious criminal charges that carry a maximum penalty of more than 2 years’ imprisonment. Examples of indictable sexual offences include rape and sexual assault. For further details, please see ‘Sexual Offences’.
If a person pleads not guilty to an indictable offence in Victoria, they must face a jury trial. The majority of jury trials are run in the County Court. Only the most serious indictable matters are trialled in the Supreme Court. The legal procedure is generally the same in both courts. However, sex offence matters are subject to certain procedural rules that do not apply in non-sexual indictable matters.
This article will discuss the special procedural rules that apply in sex-offence committal proceedings and jury trials. For a detailed overview of committal proceedings and general legal procedure in the higher courts, please see ‘Committal Stream’ and ‘County Court and Supreme Court Procedure’.
If you have been charged with an indictable sexual offence, you require a criminal lawyer who is extensively experienced and knowledgeable as to the special rules that apply in sex offence matters. Please contact our defence experts at Sher Criminal Lawyers immediately for specialist legal advice and representation.
Sex Offence Committal Proceedings
An indictable matter will only proceed to the County or Supreme Court after it has passed through committal proceedings in the Magistrates’ Court. During committal proceedings, the Magistrate considers whether there is enough evidence to warrant a trial in the higher courts. For more information about the committal process, please see ‘Committal Stream’.
Certain rules apply in relation to committal proceedings for sexual offences. These rules arise under the Criminal Procedure Act 2009 [CPA] (Vic).
Section 126(1)(a) of the CPA states that in a sexual offence case, a committal mention hearing must be held no more than 3 months after the filing hearing. However, the Magistrates’ Court may extend this time period if the court is satisfied that it is necessary to do so in the interest of justice (s126(2)).
Section 123 of the CPA prohibits cross-examination of any witness in sexual offence proceedings where the complainant is a child or cognitively impaired. This rule applies to all such proceedings that were commenced on or after 3 March 2019. As such, the Magistrate may adjourn such matters directly from the committal mention to the County Court.
Section 133 of the CPA states that during a committal hearing only relevant people may be present in the Court when:
- The complainant is giving evidence;
- A recording of the complainant’s evidence is being played; or
- A recording of the complainant’s examination is being played.
Relevant people may include the informant, the accused, legal practitioners representing the prosecution or the accused, court officials and any other person authorised by the Magistrates’ Court to be present.
Section 356 of the CPA provides that a ‘protected witness’, which includes a complainant for a sexual offence, must not be cross-examined by the accused in person.
Sex Offence Trials
Criminal matters in the County and Supreme Courts are heard and finalised by trial. That is, a jury delivers a verdict based on the evidence presented in court and the Judge imposes the appropriate penalty if the accused is found guilty. Please see ‘County Court and Supreme Court Procedure’ for more information on jury trial procedure.
Certain rules apply in relation to jury trials for sexual offences. The majority of these rules arise under the Criminal Procedure Act 2009 [CPA] (Vic).
Section 212 of the CPA states that all sex offence trials must commence within 3 months after the day on which the accused is committed for trial. However, the Magistrates’ Court may extend this time period if the court is satisfied that it is necessary to do so in the interest of justice (s247). The Court may grant the extension before or after the original 3 months expires, but the extension itself must not exceed 3 months.
Section 194 of the CPA notes that where two or more sexual offences are joined on the same indictment, it is presumed that those charges are to be tried together as opposed to separately.
Section 342 of the CPA legislates that a complainant cannot be cross-examined in relation to their sexual activities (consensual or non-consensual) without the leave of the Court, unless the sexual activity is related to the charge against the accused. That is, if the defence wishes to cross-examine the complainant about sexual activity that is not related to the charge against the accused, they must obtain leave from the Court. If any such evidence is given without leave, it must not be admitted by the Court.
Section 343 of the CPA states that evidence regarding sexual history cannot be admitted for the purpose of inferring that complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates. Similarly, section 352 states that inferences drawn from sexual history evidence about a person’s general disposition are not substantially relevant when assessing the fact’s in issue. Further, a party cannot use evidence of a person sexual history to attack their credit during cross-examination, unless that evidence is likely to directly impair confidence in the reliability of the complainant’s evidence.
It is common is sexual offence matters for the complainant to give evidence by way of recording. If this is the case, then the complainant may not be required to attend Court unless they are directed to give further evidence. The complainant retains the right to give direct evidence in court even after giving evidence in a recorded format if the Court believes that doing so is in the interests of justice (s384).
Section 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) may also be relevant in sex offence jury trials. This provision states that leave must be obtained from the Court if a party wishes to rely on evidence of confidential communications. This may be relevant in sex offence matters if the defence wishes to adduce evidence related to the complainant’s confidential communications with a psychologist or doctor for example.
Child and Cognitively Impaired Complainants
Certain rules apply in sex offence matters where the complainant is a child or cognitively impaired. These rules arise under the Criminal Procedure Act 2009 [CPA] (Vic).
Section 123 of the CPA prohibits cross-examination of any witness in sexual offence proceedings where the complainant is a child or cognitively impaired. This rule applies to all such proceedings that were commenced on or after 3 March 2019. As such, the Magistrate may adjourn such matters directly from the committal mention to the County Court (as opposed to adjourning to a committal hearing).
Sections 389A-E of the CPA legislate that a ground rules hearing must be conducted prior to the cross-examination of a child or cognitively impaired witness in a sex offence matter. A ground rules hearing allows the Court to give directions for the fair and efficient conduct of the cross-examination. As such, the Court may make directions in regard to:
- The manner in which a witness is questioned;
- The duration for which a witness is questioned;
- The nature of the questions that may or may not be asked of the witness; and
- Any other direction that the Court deems necessary.
In sexual offence proceedings where the complainant is a child or cognitively impaired, the whole of the evidence of the complainant (including cross-examination and re-examination) may be given at a special hearing and recorded as an audio-visual recording (s370 CPA). The evidence may be pre-recorded before the trial (s366 CPA) or during the trial (s370 CPA) at a special hearing. The accused and his or her legal practitioner are to be present in the courtroom at the time of the special hearing (s372(1)(a)). However, the accused is not to be present in the same room as the complainant when the complainant is giving evidence (s372(1)(b)(i)). Instead, the audio-visual recording of the complainant’s evidence will be sent from the room in which the complainant is present to the courtroom via closed-circuit television or a similar means of facilitating communication (s372(1)(d)). The accused is entitled to see and hear the complainant whilst the complainant is giving evidence and at all times must be able to communicate with his or her legal practitioner (s372(1)(b)(ii)).
At trial, the jury will be given directions in regard to its assessment of the recorded evidence. The jury will be made aware that the recording of evidence is common in such matters. The Judge will also warn that the jury cannot make inferences against the accused because the evidence is being presented in a recorded format.
What to Do Before Attending Court
If you have been charged or asked to interview in relation to potentially committing an indictable sexual offence, please contact Sher Criminal Lawyers immediately. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
Your defence case will be strategically planned and executed by a team of legal experts. Our specialist defence lawyers are extensively experienced in jury trials and work alongside Senior and Queens Counsel when running matters before the County and Supreme Courts of Victoria. Further, we forensically analyse each case to create a compelling legal strategy that will result in the best possible outcome for our clients. Find peace of mind knowing that your matter is being managed with the utmost legal expertise at Sher Criminal Lawyers.