Special provisions for complainants in sexual offence trials

NSW

Procedures applying to both adult and child complainants, are set out in Chapter 6, Part 5 of the Criminal Procedure Act 1986, specifically sections 290-306. They apply to all proceedings for a ‘prescribed sexual offence’. Specific additional provisions applying only to vulnerable complainants (i.e. a child or cognitively impaired person) are also found in Pt 6 of Ch 6 of the Criminal Procedure Act 1986.

A prescribed sexual offence is defined as any offence that involves the commissions of, or intention to commit, such a sexual assault or any act which involves an attempt, conspiracy or incitement to commit such a sexual assault. This means it could involve any form of sexual offence that comes before the court. The definition also covers the offence of detaining for advantage, where the alleged advantage would be the intention to have sexual intercourse with the complainant.

Special procedures for rules complainants giving evidence at trial include the following:

• The evidence of the complainant must be held in camera unless otherwise directed by the courts (s291(1)), even if the evidence is being given via CCTV or any other alternative means of giving evidence in person (s 291(2)). Evidence can only be given in open court if requested by a party and is either in the ‘special interests of justice’ or the complainant consents (s 291(3)). Determining whether the giving of evidence is in the ‘special interests of justice’ involves a limited exercise of discretion as proceedings should generally be in open or in public.
• The court may permit media representatives to remain in court while the evidence of the complainant is being given via CCTV or similar electronic method (s 291C (1)).
• All complainants are entitled to give evidence outside of the courtroom by CCTV or similar electronic method, or to give evidence in the courtroom behind a screen, or with no people in the complainant’s line of sight (s294B (3)). If a complainant chooses to do so, the court has some discretion to refuse them, however only if there are ‘special reasons in the interests of justice’ (s 294B (5) and (6)). Where there is a jury present, the jury must be informed by the trial judge that this is standard procedure, that they must not draw any inference because the procedure is being used and the evidence should not be given any greater or lesser weight (s 294B (7)).
• A complainant is entitled to have a support person or persons present when giving their evidence, either in court or via CCTV or other electronic methods (s 294C). This person could include a relative, friend or professional advisor, and should be near the complainant and within their sight. The accused is not able to object tot the suitability of the support person (s 294C (4)). The court also cannot disallow the support person unless they would prejudice the accused’s right to a fair trial.
• An unrepresented accused cannot examine a complainant, but the court can appoint a person to do so, regardless of whether the evidence is being given in person in the courtroom or via an electronic method (s 294A (2)). The appointed person cannot give the accused independent legal advice (s 294A (4)) and can only ask the complainant questions as requested by the accused (s 294A (3)). If there is a jury, then the jury must be told that this is standard procedure and that they should nor draw an inference adverse to the accused or draw and greater or lesser weight from the evidence due to the procedure used (s 294A (7)).
• Any child under 16 or cognitively impaired person is entitled to give evidence-in-chief by way of a recording of their evidence made previously by an investigating official. This applies to all offences but is most relevant in sexual offences. Under s 306 of the Criminal Procedure Act 1986:
  • The vulnerable person is entitled to and can give their evidence-in-chief by way of a previously recorded statement taken by an investigating official.
  • A recorded statement made when the child was under 16 years ago may be admitted into evidence regardless of the complainant’s age at the time of the trial (s 306U (2)).
  • The complainant must not be present in the court or audible to the court via CCTV when the evidence is played.
  • The complainant can choose to be present while the recorded evidence-in-chief is played.
  • A complainant who gives recorded evidence-in-chief must be made available for cross-examination and re-examination subsequently, either orally in the courtroom or via CCTV or similar.
  • The court can order that evidence-in-chief is not presented in a recording but only if it can be proved that it is in the interests of justice (s 306Y). This does not require it to be in the ‘special interests of justice’.
  • The court can order a transcript of this recorded evidence be made available to the court and the jury to aid in comprehension (s 306Z).

ACT

In the ACT, special rules are afforded to complainants in sexual offence matters as outlined in the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Under this legislation, a complainant is the person against whom the offence is alleged, or has been found, to have been committed (s 42).

• The Court can order for the courtroom to be arranged in a way that ensures the complainant cannot see the accused person or anyone else that the court considers should be screened from them (s 47). However, the complainant must be visible to the presiding judicial officer, the jury (if in a jury trial), the accused person, the accused person’s lawyer, any other person screened from the complainant, and the prosecutor.
• They complainant cannot be examined by the accused personally, however they can of course be examined by the accused person’s legal representative or a person appointed by the court if the accused is self-represented (s 48).
• A complainant may have a support person in the court close to the complainant and within their eyesight whilst giving evidence (s 49). The court may order for the complainant to have more than one support person if they believe it to be in the interests of justice (s 49(2)). If there is a jury, they must be instructed that this is usual practice and should not draw any inference from the presence of a support or give any lesser or greater weight to the evidence (s 49(5)).
• A court can order that the court be closed to the public while the complainant’s evidence is being given (s 50(1)). When determining whether a court be closed, the court must consider whether the complainant wants to give evidence in an open court and whether it is in the interests of justice that the witness give evidence in an open court. Regardless of whether the court is open or closed, a person nominated by the complainant can stay in the courtroom, as well as any person preparing a news report who is authorised to attend the proceeding by their employer (s 50(3)).
• A complainant is permitted to take part in an audiovisual recording answering questions made by a prescribed person in relation to the investigation of a sexual offence that is the subject of the proceeding (s 51). This audiovisual recording may be played at the hearing of a relevant proceeding for the offence that is the subject of the proceeding and, if played at the hearing, can be admitted as the witness’s evidence in chief (s 52(1)). The court can refuse to admit all or any part of the recording, and the complainant cannot be in the courtroom, or visible to anyone in the courtroom by audiovisual link, while the recording is being played at the hearing.
• A complainant can also give evidence at a pre-trial hearing, however it must be given by audiovisual link from an external place (s 60). If this occurs, then the complainant must not be able to see or hear the accused person, the accused person must be able to see and hear the complainant give evidence, and the accused person cannot be at the same place that the complainant is giving evidence from. The complainant can have a support person with them at the external location, and anyone else that the court may consider appropriate (s 61). A complainant can also choose to have a pre-recorded hearing as under s 51 can also be played at a pre-trial hearing.
• If an audiovisual recording of the complainant is given at a pre-trial hearing and subsequently admitted in evidence, the accused can apply to the court to have the complainant attend the hearing of the proceeding to give further evidence (s 63). The court will not make this order unless it is satisfied that the witness could be recalled, and it is in the interests of justice to recall the witness. Usually this will occur by audiovisual link.
• If a complainant gives evidence at a pre-trial hearing, or is eligible to give evidence at a pre-trial hearing, then the court can order the court to be closed to the public while they give their evidence (s 73(2)). If such an order is made, the only people permitted to be in the courtroom are the presiding judicial officer, the prosecutor, the accused, the accused person’s lawyer, the jury members (if applicable) and anyone else the court considers appropriate. A support person may also be present if required, and a person preparing a news report for the media may be present if consented to by the complainant.
• It is illegal to publish in the media the complainant’s name, protected identity information about the complainant, a reference or allusion that discloses the complainant’s identity or a reference or allusion from which the complainant’s identity might be reasonably worked out, unless the complainant consents to publishing their name prior to the publishing (s 74).
• Evidence of the complainant’s sexual reputation is not admissible in a sexual offence proceeding (s 75), without leave of the court (s 76). Leave will only be given if the court is satisfied that it has substantial relevance to the facts in issue, or is a proper matter for cross-examination about credit (s 78).

Ava Buchen