Warnings about unreliable evidence and corroboration

28.11 Historically, sexual assault complainants[12] and children[13] were considered by the common law, as classes of witness, to be inherently unreliable.[14] Their unreliability was considered a matter capable of affecting the evaluation of the evidence and about which judges had special knowledge or experience beyond the jury’s appreciation.[15]

28.12 For this reason, the common law required corroboration warnings to be given by trial judges to juries in respect of the evidence of both sexual assault complainants and child witnesses. The common law corroboration warning has two components:

  • the corroboration component—the caution that, as it is dangerous to convict on a child or sexual assault complainant’s ‘uncorroborated’ evidence, it was necessary to have corroborating evidence; and

  • the reliability component—the caution that, as children and sexual assault complainants as classes of witness are unreliable, the evidence of a particular child or complainant had to be treated with care.[16]

28.13 Corroboration warnings about the potential unreliability of categories of witnesses are now recognised as discriminatory and based on prejudice rather than empirical evidence.[17]

Statutory response to the corroboration component

28.14 All Australian jurisdictions have enacted legislation that abolishes the requirement that a judge warn the jury that it is dangerous to act on uncorroborated evidence. These provisions do not, however, prohibit a warning that it would be dangerous to convict on uncorroborated evidence.[18] Under such legislation, trial judges retain their general powers and obligations to give appropriate warnings ‘necessary to avoid the perceptible risk of miscarriage of justice arising from the circumstances of the case’.[19]

28.15 The South Australian and the Northern Territory (NT) provisions deal exclusively with the uncorroborated evidence of child witnesses,[20] whereas the provisions in other jurisdictions have general application to uncorroborated evidence.[21]

28.16 These statutory responses to the common law requirement to give a corroboration warning recognise that the typical sexual assault offence takes place in private, without other witnesses.[22] While corroboration for an assault may exist by way of ‘an admission, DNA evidence, medical evidence, recent complaint, or tendency evidence … for the most part, particularly in child sexual assault matters, such evidence may be rare’.[23]

Statutory response to the reliability component

28.17 In all Australian jurisdictions, except Queensland, a judge is prohibited from warning or suggesting to the jury that children as a class are unreliable witnesses.[24] This statutory response addresses the misconception that the evidence of children is inherently less reliable than that of adults.

28.18 New South Wales (NSW), Victoria, the ACT and the NT[25] have enacted legislation pursuant to which a judge must not warn, or suggest in any way to, the jury that it is unsafe to convict on the uncorroborated evidence of a complainant because the law regards complainants as an unreliable class of witness. These provisions mirror the prohibition on the warning that children as a class are unreliable witnesses, and prevent judges from stating or suggesting to the jury that complainants in sexual assault proceedings are unreliable witnesses as a class.[26]

28.19 These provisions do not prevent a judge from making any comment on evidence given in a trial that it is appropriate to make in the interests of justice—for example, warning that a particular child’s or complainant’s evidence, or the particular circumstances of the witness, may affect the reliability of that evidence.[27]

[12] Kelleher v The Queen (1974) 131 CLR 534.

[13] Hargan v The King (1919) 27 CLR 13.

[14] For example, Brennan J in Bromley v The Queen (1989) 161 CLR 315 noted: ‘The courts have had experience of the reasons why … [children and sexual assault complainants] may give untruthful evidence wider than the experience of the general public, and the courts have a sharpened awareness of the danger of acting on the uncorroborated evidence of such witnesses’: 324. See also JJB v The Queen (2006) 161 A Crim R 187; R v TN (2005) 153 A Crim R 129, [69].

[15] Queensland Law Reform Commission, A Review of Jury Directions: Discussion Paper, WP 67 (2009), [7.80].

[16] This analysis was put forward in Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: The Evidence of Children, Report 55 (Part 2) (2000), 32.

[17] For a review of the literature on suggestibility studies and the reliability of children’s evidence, see A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 114–124 and the Australasian Institute of Judicial Administration, Bench Book for Children Giving Evidence in Australian Courts (2009), 28–40.

[18] Conway v The Queen (2002) 209 CLR 203, [53].

[19] Longman v The Queen (1989) 168 CLR 79, 86. See also Tully v The Queen (2006) 230 CLR 234; Robinson v The Queen (1999) 197 CLR 162; Bromley v The Queen (1989) 161 CLR 315.

[20] Evidence Act 1929 (SA) s 12A; Evidence Act 1939 (NT) s 9C.

[21] Evidence Act 1995 (Cth) s 164(3); Evidence Act 1995 (NSW) s 164(3); Evidence Act 2008 (Vic) s 164(3); Criminal Code (Qld) s 632(2); Evidence Act 1906 (WA) s 50; Evidence Act 1929 (SA) s 12A; Criminal Code (Tas) s 136; Evidence Act 2001 (Tas) s 164; Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 69, 70; Evidence Act 1939 (NT) s 9C.

[22] See, eg, New South Wales, Parliamentary Debates, Legislative Assembly, 18 October 2006, 2958 (G McBride—Minister for Gaming and Racing and Minister for the Central Coast).

[23] Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 103.

[24] Evidence Act 1995 (Cth) s 165A; Evidence Act 1995 (NSW) s 165A; Evidence Act 2008 (Vic) s 165A; Evidence Act 1906 (WA) s 106D; Evidence Act 1929 (SA) s 12A; Evidence Act 2001 (Tas) s 164(4); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 70; Evidence Act 1939 (NT) s 9C. Criminal Code (Qld) s 632(2) provides only that ‘a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness’.

[25] Criminal Procedure Act 1986 (NSW) s 294AA; Crimes Act 1958 (Vic) s 61; Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 69; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(5).

[26] See, eg, New South Wales, Parliamentary Debates, Legislative Assembly, 18 October 2006, 2958 (G McBride—Minister for Gaming and Racing and Minister for the Central Coast).

[27] The Commissions note also that judges in the uniform Evidence Acts jurisdictions are obliged to give a warning in respect of evidence that may be unreliable, including several broadly described categories of evidence, unless there is good reason for not doing so: Uniform Evidence Acts, s 165. As s 165 concerns warnings in respect of categories of evidence, rather than categories of witnesses, it is not of immediate relevance to the present discussion.