Sexual assault cases—especially those within a family violence context— commonly involve multiple incidents and multiple complainants, for example, a number of siblings may allege that a parent has sexually abused them.
In such situations, the prosecution is likely to make a pre-trial application to have the counts against the defendant heard in a joint trial, rather than separate trials. The defence, in contrast, is more likely to apply for separate trials for each offence. The power to order a joint trial is discretionary and is exercised in order to prevent prejudice to the defendant. There is no limit to the circumstances which will justify separate trials. However, two factors which have received detailed consideration by the High Court are: charges where evidence in relation to one count is not admissible in relation to another, but is prejudicial; and where the charges are for sexual offences.
Decisions to hold separate trials or refuse to admit relevant tendency or propensity evidence about a defendant’s sexual behaviour are considerable barriers to the successful prosecution of sex offences. Victoria has established a presumption in favour of joint trial in sexual offence cases.
The Commissions consider that, in order to reduce trauma for complainants in sexual assault cases, there should be legislation creating a presumption in favour of joint trial of multiple allegations against the same defendant, based on the Victorian provisions.
Proposal 17–4 Commonwealth, state and territory legislation should:
- create a presumption that when two or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together; and
- state that this presumption is not rebutted merely because evidence on one charge is inadmissible on another charge.
Consent and joint trial
The High Court’s decision in Phillips v The Queen (Phillips) is considered to have application to all sexual assault trials where there are multiple complaints of sexual assault against the same defendant and where consent is a fact in issue. The issue raised by Phillips is whether the evidence of the other complainants was relevant to whether or not the first complainant consented to sexual relations with the defendant.
Phillips involved a joint trial with six complainants. The High Court held that the evidence of each complainant was not cross-admissible in relation to the counts involving the other complainants on the grounds of lack of relevance. There is some case law to show that Phillips is being applied to prevent joint trials being held in relation to multiple allegations of sexual assaults against the same accused.
Question 17–8 What impact has Phillips v The Queen had on the prosecution of sexual assaults where there are multiple complaints against the same defendant and consent is a fact in issue?
Question 17–9 Is there a need to introduce reforms to overturn the decision in Phillips v The Queen?