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28.33 At common law it was assumed that ‘a genuine sexual assault victim would make a complaint at the first opportunity and the failure to do so was considered relevant to the complainant’s credibility’.[49]
28.34 This assumption has since been discredited by research.[50] Delay in complaint is now known to be a typical feature of reporting sexual assault. Parliaments in a number of jurisdictions have responded to these developments by enacting legislative provisions to
require the trial judge to warn the jury that delay in complaint does not necessarily indicate that the allegation is false and that a person may have a good reason for delaying in making a complaint.[51]
28.35 Arguably, these legislative reforms have subsequently been undermined by the High Court decisions in Longman v The Queen[52] and Crofts v The Queen[53] which discussed what are now referred to as the Longman and Crofts warnings respectively.
[49] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [18.72]
[50] For details of this research see, Victorian Law Reform Commission, Sexual Offences: Interim Report (2003), [2.43]. See also, Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [18.72]–[18.73]; A Cossins, Time Out for Longman: Myths, Science and the Common Law (2010) Forthcoming in vol.34 (1) of Melbourne University Law Review.
[51] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [18.73]. See, eg, Crimes Act 1958 (Vic) s 61(1)(b).
[52] Longman v The Queen (1989) 168 CLR 79.
[53] Crofts v The Queen (1996) 186 CLR 427.