26. Reporting, Prosecution and Pre-trial Processes

Recommendation 26–1 The Australian Centre for the Study of Sexual Assault, the Australian Institute of Criminology and similar state and territory agencies should prioritise the collection of comprehensive data in relation to sexual assault perpetrated in a family violence context. In particular on:

(a) attrition rates, including reasons for attrition and the attrition point;

(b) case outcomes; and

(c) trends in relation to particular groups including Aboriginal and Torres Strait Islander peoples.

Recommendation 26–2 Commonwealth, state and territory Directors of Public Prosecution should ensure that prosecutorial guidelines and policies:

(a) facilitate the referral of victims and witnesses of sexual assault to culturally appropriate welfare, health, counselling and other support services at the earliest opportunity;

(b) require consultation with victims of sexual assault about key prosecutorial decisions, including whether to prosecute, discontinue a prosecution, or agree to a charge or fact bargain;

(c) require the ongoing provision of information to victims of sexual assault about the status and progress of proceedings;

(d) facilitate the provision of information and assistance to victims and witnesses of sexual assault in understanding the legal and court process;

(e) facilitate the provision of information and assistance to victims and witnesses of sexual assault in relation to the protective provisions available to sexual assault complainants when giving evidence in criminal proceedings;

(f) ensure that family violence protection orders or stalking intervention orders are sought in all relevant circumstances; and

(g) require referral of victims and witnesses of sexual assault to providers of legal advice on related areas, such as family law, victims’ compensation and the sexual assault communications privilege.

Recommendation 26–3 Federal, state and territory governments and relevant educational, professional and service delivery bodies should ensure ongoing and consistent education and training for judicial officers, lawyers, prosecutors, police and victim support services in relation to the substantive law and the nature and dynamics of sexual assault as a form of family violence, including its social and cultural contexts.

Recommendation 26–4 State and territory legislation should prohibit:

(a) any child; and

(b) any adult complainant, unless there are special or prescribed reasons,

from being required to attend to give evidence at committal hearings in relation to sexual offences.

Recommendation 26–5 Federal, state and territory legislation should:

(a) establish a presumption that, when two or more charges for sexual offences are joined in the same indictment, those charges are to be tried together; and

(b) state that this presumption is not rebutted merely because evidence on one charge is inadmissible on another charge.

Recommendation 26–6 Federal, state and territory legislation should permit the tendering of pre-recorded evidence of interview between a sexual assault complainant and investigators as the complainant’s evidence-in-chief. Such provisions should apply to all complainants of sexual assault, both adults and children.

Recommendation 26–7 Federal, state and territory legislation should permit child complainants of sexual assault and complainants of sexual assault who are vulnerable as a result of mental or physical impairment, to provide evidence recorded at a pre-trial hearing. This evidence should be able to be replayed at the trial as the witness’ evidence. Adult victims of sexual assault should also be permitted to provide evidence in this way, by leave of the court.

Recommendation 26–8 The Australian, state and territory governments should ensure that relevant participants in the criminal justice system receive comprehensive education about legislation authorising the use of pre-recorded evidence in sexual assault proceedings, and training in relation to interviewing victims of sexual assault and pre-recording evidence.