Disclosure of sexual assaults can often be delayed, for months, years, even decades. As there is no statute of limitations applying to most sexual offences, an individual may be charged with what is known as a ‘historical sex offence’; an alleged offence that was committed in the past that is only now prosecuted. Historical sex offences can include sexual touching, indecent assault, sexual assault, incest, sexual intercourse without consent, persistent sexual abuse and so on.
The way proceedings for historical sexual offences are run are very similar to closer in time offences, but there are a few key considerations. These include the point-in-time legislation, delay in complaint, fallibility of memory and forensic disadvantage.
Point in Time Legislation
In historical sexual offence cases, the law applied must reflect the legislation in force at the time the alleged conduct occurred. This has application to both the elements of the charges that are laid and the sentence that may be imposed.
For example, if the allegations relate to offences occurring in 1982, the charges will have to be laid in accordance with the version of the Crimes Act that was in force at the time. The language used in a charge for a historical offence may also be different, for example sexual intercourse used to be referred to as ‘carnal knowledge’.
Sentencing practices, will also be aligned with those of the relevant period. In the ACT, for example, this is reflected in ss25(2) of the Human Rights Act (2004) (ACT) which refers to retrospective criminal laws, stating that “A penalty may not be imposed on anyone for a criminal offence that is heavier than the penalty that applied to the offences when it was committed.” This is an important protection of the rights of defendants who are prosecuted for historic offences.
The exception to this rule is that any procedural changes about how a matter should be heard, for example rules of evidence during a trial, apply the current laws, not the past procedural laws that applied at the time of the alleged offence.
Delay in Complaint
It is settled in common law and legislation that a delay in complaint should not necessarily meant there is an inherent credibility or reliability issue with the complaint’s evidence. This principle is designed to promote the protection of victims and help those who have been sexually assaulted feel more comfortable in disclosing offences to the police. Juries are often given directions that there may be many reasons why victims may delay reporting including fear, shame or trauma.
Legal reforms, such as the introduction of s294 of the Criminal Procedure Act 1986 (NSW) ensure this protection. Courts will instruct juries to not assume unreliability to delay, particularly in the context of sexual assault trials, as an important safeguard for victims. However, delays may still have significant impact on the way a trial progresses in dealing with memory or forensic disadvantage.
Fallibility of memory
In criminal trials, witnesses are often asked to remember specific details, conversations and settings. Over time, memories can fade, distort or in some cases be entirely constructed. Generally speaking, the older the memory is, the less reliable it becomes.
This fallibility affects all parties involved. While courts recognise that memories of sexual assault may remain ‘fresh in the memory’ of the complainant for many years, memory related issues remain significant in historic sexual offence trials. Complainants may however, struggle to recall peripheral details such as exact dates, locations or the presence of other individuals, all of which may be significant to the defence.
For defendants and other witnesses, the challenges associated with memory can often greater. They may have no reason to retain memories of an alleged incident, especially if it was not raised as an issue or reported at the time, or simply never happened. This can hinder their ability to challenge the complainant’s version of events or recall the incident in any level of detail.
The legal system recognises the limitations of memory and the challenges that arise. During a trial, lawyers will challenge the reliability of memory through questioning and cross-examination by exploring potential inconsistencies in the testimony. In some cases, expert evidence regarding memory science may be adduced to help the jury assess the reliability and credibility of evidence.
Forensic Disadvantage
Another significant issue that will likely arise with historic sex offences and delay in complaint is forensic disadvantage to the accused. Forensic disadvantage can arise in a number of different ways including the loss of or inability to gather physical evidence, witness unavailability, loss of chance to establish an alibi, inability to identify the occasion with any specificity etc.
The onus is on the accused to establish that the forensic disadvantage has been experienced and particularise the specific prejudice caused by the inability to gather, adduce or give evidence. A jury will only be instructed to consider forensic disadvantage if it is shown to be ‘significant’. Delay alone will not overcome this hurdle of ‘significant’. However, the longer the delay, the more likely it is that the accused will be able to establish it (Doggett v R (2001) 208 CLR 343 [127] (Kirby J)).
If the defence can establish there was a significant forensic disadvantage, the judge may direct the jury on how they should consider the evidence in light of the disadvantage. Importantly, the judge must not undermine the direction by suggesting that the delay may have also disadvantaged the complainant or that they should balance the accused’s disadvantage against the complainant’s (Briggs v The King [2024] VSCA 80, [85]-[94]).
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640) or Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
