In a criminal trial, the trial judge is responsible for determining issues of law and the jury is responsible for determining issues of fact.
The jury is to decide facts and issues arising from the evidence and ultimately to determine whether an accused person is guilty of the crime or crimes alleged.
Before the jury commences its final deliberations at the conclusion of a trial, the judge will give directions of law to the jury as to how they approach their task and how to apply the law to the facts of the particular case. This is known as the judge’s ‘summing-up’. Outside of the summing up, the trial judge can also give specific directions at any point in the trial should they deem it appropriate to do so.
Many directions have application and will be given in all criminal trials. For example, the jury will always be reminded in the judges summing up as to the onus of proof. The judge will tell the jury that the Crown has the obligation of proving the guilt of the accused. The accused is not required to prove any fact or to meet any argument or submission made by the Crown. The accused is to be presumed innocent of any wrongdoing until the jury finds their guilt proved by the evidence, in accordance with the law.
Some directions are less general and are only given to a jury in specific cases. For example, sections 292 – 294AA of the Criminal Procedure Act 1986 were inserted by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 and specify directions to be given during certain sexual assault trials. These provisions follow recommendations made by the Law Reform Commission after its 2020 review of the law on consent.
The purpose of the amendments is to address common misconceptions about sexual assault and consent and to ensure that a complainant’s evidence is assessed fairly and impartially by a jury.
When do the directions apply?
Section 292 provides that the ‘consent directions’ in ss 292A–292E apply to the following offences (or attempts to commit those offences) in the Crimes Act 1900:
- sexual assault, aggravated sexual assault and aggravated sexual assault in company: ss 61I, 61J, 61JA
- sexual touching and aggravated sexual touching: ss 61KC, 61KD
- carrying out a sexual act and carrying out an aggravated sexual act: ss 61KE, 61KF.
Section 293A provides that the ‘differences in complainant’s account’ directions apply on the trial of anyone accused of a prescribed sexual offence in circumstances where the trial judge considers there is evidence that suggests that a difference in the complainant’s account that may be relevant to the complainant’s truthfulness or reliability.
Section 294 provides that ‘lack of complaint’ directions on the trial of anyone accused of a prescribed sexual offence in circumstances where the trial judge considers there is evidence that suggests that there is an absence of complaint in respect to the commission of an offence or a delay by that person in making the complaint.
What are the directions?
292A Circumstances in which non-consensual sexual activity occurs
Non-consensual sexual activity can occur–
(a) in many different circumstances, and
(b) between different kinds of people including–
(i) people who know one another, or
(ii) people who are married to one another, or
(iii) people who are in an established relationship with one another.
292B Responses to non-consensual sexual activity
(a) there is no typical or normal response to non-consensual sexual activity, and
(b) people may respond to non-consensual sexual activity in different ways, including by freezing and not saying or doing anything, and
(c) the jury must avoid making assessments based on preconceived ideas about how people respond to non-consensual sexual activity.
292C Lack of physical injury, violence or threats
(a) people who do not consent to a sexual activity may not be physically injured or subjected to violence, or threatened with physical injury or violence, and
(b) the absence of injury or violence, or threats of injury or violence, does not necessarily mean that a person is not telling the truth about an alleged sexual offence.
292D Responses to giving evidence
(a) trauma may affect people differently, which means that some people may show obvious signs of emotion or distress when giving evidence in court about an alleged sexual offence, but others may not, and
(b) the presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence.
292E Behaviour and appearance of complainant
It should not be assumed that a person consented to a sexual activity because the person–
(a) wore particular clothing or had a particular appearance, or
(b) consumed alcohol or another drug, or
(c) was present in a particular location.
293A Differences in complainant’s account
(a) that experience shows–
(i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and
(ii) trauma may affect people differently, including affecting how they recall events, and
(iii) it is common for there to be differences in accounts of a sexual offence, and
(iv) both truthful and untruthful accounts of a sexual offence may contain differences, and
(b) that it is up to the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.
294 Lack of complaint
(a) absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and
(b) there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and
(c) delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a direction.
Receive the right advice
Sexual assault trials are highly emotive and a jury’s verdict will often hinge on an assessment of a complainant’s credibility and reliability as a witness. Often, the Crown case will rest on the word of a complainant alone, uncorroborated by any other evidence. It is therefor an essential part of the jury’s task in sexual assault trials to use their own life experiences and understanding of the world, to assess whether a complainant is reliable and telling the truth.
While aspects of the new sexual assault trial direction regime rightly address dated misconceptions relating to sexual assault (such as assumptions about consent which stem from what a complainant was wearing at the time), other aspects have raised concern that the essential role of juries is being infringed upon – by way of urgings to overlook or downplay concerns or doubts that may arise about a complainant’s presentation and demeanour in Court.
Should you or someone you know be charged with sexual assault 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) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
