In the sexual assault context the purpose of jury warnings has changed over time. Historically, they served to protect the accused against an unfair conviction. More recently, ‘legislation has been enacted to counter myths about sexual assault and to ensure that complainants, as well as people charged with sexual offences, are treated fairly’.
Warnings about unreliable evidence and corroboration
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 each as a class of witness are unreliable, the evidence of a particular child or complainant had to be treated with care.
All Australian jurisdictions have enacted legislation abolishing the mandatory requirement to warn the jury that it is dangerous to act on uncorroborated evidence. These provisions do not prohibit a warning that it would be dangerous to convict on uncorroborated evidence—only the requirement to give such a warning. Further, in all Australian jurisdictions, except for Queensland, a judge is prohibited from warning or suggesting to the jury that children as a class are unreliable witnesses.
In New South Wales, Victoria, the ACT and the Northern Territory a judge is prohibited from warning or suggesting 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 were enacted to 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.
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. One warning that may be given by trial judges pursuant to their common law powers is the Murray warning. A Murray warning cautions about the danger of convicting on the uncorroborated evidence of a sexual assault complainant—including a child complainant—and is frequently given in sexual assault trials, if requested by the defence. It is a direction to the effect that:
where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in.
The legislation that now prohibits a judge from stating or suggesting to a jury that complainants in sexual offence proceedings are unreliable witnesses as a class may have been enacted with the parliamentary intention of relieving a trial judge from giving a Murray warning. However, because those provisions are directed at warnings that refer to complainants of sexual offences as an unreliable class of witness and not whether the evidence of one witness must be scrutinised with great care, it is unlikely that such provisions prevent the trial judge from giving the Murray warning.
There is support for the legislative provisions which prohibit a judge from warning or suggesting to the jury that children as a class are unreliable witnesses. The Commissions’ view is that similar prohibitions should also be extended to complainants in sexual assault cases.
Proposal 18–11 Commonwealth, state and territory legislation should prohibit a judge in any sexual assault proceeding from:
- warning a jury, or making any suggestion to a jury, that complainants as a class are unreliable witnesses; and
- warning a jury of the danger of convicting on the uncorroborated evidence of any complainant.
Warnings about delay in complaint
Delay in complaint is now known to be a typical feature of reporting sexual assault. In response to this, legislation was enacted 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’.
Arguably, these legislative reforms have been subsequently undermined by the High Court decisions of R v Longman and Crofts v The Queen. The Longman warning is required to be given to a jury in cases where there has been a substantial delay between the time of the alleged offence and the complaint. The warning advises that because of delay the accused may be unable to adequately test and meet the evidence of the complainant.
Section 165B of the uniform Evidence Acts, developed in response to Longman, provides that the judge must be satisfied that the accused has suffered forensic disadvantage because of the delay before giving the jury a warning. Section 165B is activated by a request from counsel for a warning. The trial judge has a discretionary power to refuse to give a warning which has been requested when satisfied that ‘there are good reasons for not doing so’.
The Commissions are of the view that s 165B of the uniform Evidence Acts provides a satisfactory approach to the problems raised by Longman warnings. The Commission proposes that all states and territories that have not already done so should adopt provisions consistent with s 165B.
The Commissions are interested, however, in further comments on the operation in practice of s 165B of the uniform Evidence Acts in sexual offence proceedings—particularly those involving offences perpetrated in a family violence context.
Proposal 18–12 Commonwealth, state and territory legislation should provide that:
- if the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of the disadvantage and the need to take that disadvantage into account when considering the evidence;
- the judge need not comply with (a) if there are good reasons for not doing so; and
- no particular form of words needs to be used in giving the warning pursuant to (a), but in warning the jury, the judge should not suggest that it is ‘dangerous to convict’ because of any demonstrated forensic disadvantage.
Question 18–11 What issues arise in practice pursuant to s 165B of the uniform Evidence Acts? Is the s 165B(5) abrogation of the trial judge’s obligation and power to give a Longman warning sufficiently explicit?
In Kilby v The Queen, the High Court endorsed a court direction to juries that delay or absence of complaint could be used as a factor in determining a complainant’s credibility. Legislation, including s 61(1)(b) of the Crimes Act 1958 (Vic), was subsequently passed in a number of Australian jurisdictions to require the judge to warn the jury that a delay in making a complaint of sexual assault does not necessarily mean that the allegation is false. Although such provisions were designed to remove stereotypes as to the unreliability of evidence given by sexual assault complainants, their protective effects have arguably been negated by the High Court decision in Crofts v The Queen.
In Crofts v The Queen, the complainant reported that she had been sexually assaulted by a family friend over a period of six years, and made a complaint six months after the last assault. The trial judge directed the jury, as required by s 61(1)(b) of the Crimes Act 1958 (Vic), that delay in complaint did not necessarily indicate that the allegation of sexual assault was false and that there were good reasons why a complainant might delay making a complaint. The High Court held that s 61(1)(b) does not preclude the court from giving a Kilby direction or from commenting that delay in complaint of sexual assault may affect the credibility of the complainant.
The Commissions propose two options for reform. The first option would be for Commonwealth, state and territory governments to enact legislation modelled on the VLRC’s recommendation pursuant to their 2004 report Sexual Offences.
Legislation would provide that, in any trial for a sexual offence, the issue of the effect of any delay in complaint, or absence of complaint, on the credibility of the complainant should be a matter for argument by counsel and for determination by the jury and that ‘the trial judge must not give a direction regarding the effect of delay in complaint, or absence of complaint, on the credibility of the complainant, unless satisfied it is necessary to do so in order to ensure a fair trial’. If evidence is given, or comments made, that tend ‘to suggest that the person against whom the offence is alleged to have been committed either delayed making, or failed to make, a complaint in respect of the offence, the judge must tell the jury that there may be good reasons why a victim of a sexual offence of that kind may delay making or fail to make a complaint in respect of the offence’.
Legislation modelled on the second option would contain elements of s 4A(4) of the Criminal Law (Sexual Offences) Act 1978 (Qld), and s 61(1) of the Crimes Act 1958 (Vic).
Paragraph (a) of the second proposed option—that is, the direction in relation to ‘good reason for delay’—has been criticised because it may encourage the jury to speculate on the delay. Such directions were originally introduced to eliminate unwarranted misconceptions about the unreliability of the evidence of sexual assault complainants and to assist the jury to gain an understanding of the complainant’s position. As long periods of delay are not uncommon in cases of child sexual assault in a family context (for a range of reasons), the retention of the ‘good reason for delay’ direction may be particularly justified in those cases.
Paragraph (b) of the second option clearly prevents the Crofts warning from being given. Paragraphs (c) and (d) of the second proposed option act as ‘let out’ clauses in response to the strict prohibition on the giving of a Crofts warning by paragraph (b). These provisions permit trial judges to redress statements by defence counsel where the fact of delay is used to undermine the credibility of the complainant’s account in cross-examination or in addressing the jury; and preserve the common law powers of a trial judge to give the jury a warning and to comment on the evidence ‘in the interests of justice’.
Question 18–12 Are warnings about the effect of delay on the credibility of complainants necessary in sexual assault proceedings?
Proposal 18–13 Commonwealth, state and territory legislation should provide that, in sexual assault proceedings:
(i) the issue of any delay in complaint, or absence of complaint, on the credibility of the complainant should be a matter for argument by counsel and for determination by the jury;
(ii) subject to paragraph (iii), save for identifying the issue for the jury and the competing contentions of counsel, the trial judge must not give a direction regarding the effect of delay in complaint, or absence of complaint, on the credibility of the complainant, unless satisfied it is necessary to do so in order to ensure a fair trial; and
(iii) if evidence is given, or a question is asked, or a comment is made that tends to suggest that the person against whom the offence is alleged to have been committed either delayed making or failed to make a complaint in respect of the offence, the judge must tell the jury that there may be good reasons why a victim of a sexual offence may delay making or fail to make a complaint in respect of the offence.
(b) the judge:
(i) must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it;
(ii) must not warn or suggest in any way to the jury that the law regards the complainant’s evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint;
(iii) maintains a discretion to give appropriate directions to correct statements by counsel that conflict with the evidence or are based upon stereotypical assumptions about reporting of sexual offences; and
(iv) maintains a discretion to comment on the reliability of the complainant’s evidence in the particular case if the judge considers it is appropriate to do so in the interests of justice.
Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [7.7] (footnotes omitted).
 This analysis was put forward by the QLRC in Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: The Evidence of Children, Report No 55 (Part 2) (2000), 32.
R v Murray (1987) 11 NSWLR 12, 19.
Criminal Justice Sexual Offences Taskforce (NSW Attorney General’s Department), Responding to Sexual Assault: The Way Forward (2005), 104.
Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, ALRC 102, NSWLRC Report 112, VLRC FR (2005), [18.73]. See, eg, Crimes Act 1958 (Vic) s 61(1)(b).
Longman v The Queen (1989) 168 CLR 79.
Crofts v The Queen (1996) 186 CLR 427.
Kilby v The Queen (1973) 129 CLR 460.
Crofts v The Queen (1996) 186 CLR 427.
 See Victorian Law Reform Commission, Sexual Offences: Final Report (2004), Rec 38.