Sex Offence Jury Trial Process:
Sex offence jury trial work is extremely complicated and requires the practitioner that you engage to have in depth knowledge in relation to the procedural requirements of successfully defending sex offence charges.
At Dribbin & Brown we realised that to keep ahead of the prosecution in relation to trial preparation we can leave no stone unturned. That is why we developed a 60 point checklist in relation to any sex offence trial that we run. When we handle your case we do not leave anything to chance.
The following information has been provided to demonstrate the differences involved when running a sex offence trial compared to a trial relating to charges not related to sex offences. If you are about to be interviewed or have only recently been charged with a sex offence click here for more information.
It is important that any criminal lawyer you engage has a firm understanding of the following procedures.
What are the time limits regarding a sex offence jury trial
Section 126 of the Criminal Procedure Act 2009 (CPA) – From filing hearing the committal mention must be within 3 months unless it is in the interests of justice to be longer, this applies to all sex offences.
Section 212 of the CPA – All sex offence trials are to commence within 3 months after being committed. An extension will usually be sought by the Crown regarding adult complaints per section 247 of the CPA 2009.
Other rules relating only to sex offence trials
Section 133 of the Criminal Procedure Act 2009 (CPA) – The court is closed to all non-relevant people in relation to a sex offences committal hearing proceedings.
Section 194 of the CPA 2009– There is a presumption when two or more sexual offences are joined in the same indictment, they will be heard together.
Section 342 of the CPA 2009 – Defendants must seek leave to cross-examine on the sexual history of the complainant by way of a written application.
Section 343 of the CPA 2009 – Sexual history is not admissible to show that sexual activity to which the charge relates was more likely.
Section 352 of the CPA 2009 – Sexual history evidence is not relevant to the general disposition of a complainant, further it cant be used to attack credit unless it goes directly to impairing the confidence in the reliability of the evidence of the complainant (the premise being just because the person sleeps around doesn’t make them a liar).
What are confidential communications?
Confidential communications – Under Section 32C of the Evidence (Miscellaneous Provisions) Act 1958, defence must seek leave to both subpoena the notes of ‘confider’ and cross-examine any complainant in relation to confidential communications. Confidential communications can be;
- Counselling that has occurred between the complainant and a psychologist
- Communications between a doctor and a complainant.
- Any other confidential communication (Confidential communication is defined at s32B of the act)
There are special rules that apply to seek leave in relation to obtaining materials that would be considered confidential communications.
For more information call one of our experienced sex offence lawyers today.
Can I cross examine the witness?
If the matter for which you have been charged relates to a sexual offence and the complainant in the matter was a child or a person that is cognitively impaired at the time of charge and that person or child has made a statement or recording that has been served in the hand up brief. The Magistrate cannot allow the complainant to be cross examined at a committal hearing.
Section 123 of the Criminal Procedure Act 2009 makes it plain, there is to be no cross examination of any witnesses attached to the above type of case in the Magistrates Court of Victoria. This is unfortunate as it was previously the case that some cross examination could occur prior to the matter being committed to the County Court.
Trial Proceedings relating to sexual offences
If your matter relates to a sexual offence and the matter has been committed to trial, by virtue of section 212 of the Criminal Procedure Act the trial must occur within 3 months after the day on which the indictment has been filed.
Unless an application is made by defence, the complainant cannot be cross examined with regard to his/her sexual activities that occurred externally to the charges against you as per section 342 of the CPA.
Similarly no evidence in relation to the complainant’s sexual history may be admitted in an attempt to infer the likelihood of consent to sexual activity to which you have been charged in accordance with section 342 of the CPA.
If the matter relates to a sexual offence and the complainant in the matter is a child or is cognitively impaired, prerecorded evidence is permissible under Division 5 section 366 of the CPA.
Per section 389A – E of the Criminal Procedure Act, ground rule hearings will be conducted prior to cross examination of any child or cognitively impaired witness to determine the manner, duration and nature of the questions that can be asked.
Committal hearing time limits
If your matter relates to a sexual offence, time limits that are applicable in terms of committal proceedings differ from other offences. Sex offences move much more quickly through the system in relation to adult complainants.
If you matter relates to a sexual offence and the complainant in the matter is a child or had a cognitive impairment when proceedings began it is likely the matter will be in the County Court within 3 – 4 month as committal hearings are no longer permitted in relation to these types of matters.
Child & cognitively impaired complainants
If your matter relates to a sexual offence and the complainant in the matter is a child or a person with a cognitive impairment then a special hearing is likely to take place whereby the evidence will be prerecorded in accordance with section 370 of the CPA.
The special hearing must be before the same court in which the indictment has been filed. This protocol is not followed for any other offence other than sex offences. In all other matters a defendant has the right to cross examine his accuser through counsel in front of a jury.
Both you and your legal representative will be present at the special hearing. However in accordance with section 372 (1) (b) (i) you are not to be present in the same room as the complainant whilst evidence is being taken, you are however entitled to see and hear the complainant give that evidence per section 372 (1) (b) (ii).
At trial the jury will be given a warning that recording of evidence is common practice for child or cognitively impaired complainants. The jury will also be warned that no inference should be made against the person charged because the evidence is being presented in that format. The jury will also be warned that the evidence must not be given any less weight because it has been presented in that format.
If the complainant has given their evidence by way of recording and previously been cross examined and the defence seek to further examine the complainant prior to trial, leave must be given by the Court to do so. The court will only grant leave to do so under section 376 (2) of the Criminal Procedure Act, which states further cross examination can only occur if you or your legal representative has become aware of a matter that was not or could not have been known at the time of the recording or if it is in the interests of justice to do so.
Admission of recorded evidence
In relation to sex offences it is often the case both adult complainants and child and cognitively impaired complainants will give their evidence by way of recorded evidence. If there is a hung jury or the jury has to be discharged and the matter is relisted for trial, the original recording of evidence will be deemed to be admissible under section 379 of the CPA in the new hearing. If the Prosecution in the matter seeks to tender that recorded evidence then they must notify you that they intend to do so. Section 380 (1) directs that they must give 21 days notice they intend to use that recording as evidence. The court will give regard to any periodical effect the recording may have and whether you would be unfairly disadvantaged by the admissibly of that evidence as per section 381 of the CPA.
If the complainant has given evidence via recording then they will not be required to attend unless they are directed to give further evidence which is unlikely.
The fact that the complainant has given evidence in a recorded format will not preclude the complainant from being able to give further direct evidence under section 384 of the CPA if the court is satisfied that the complainant is able to and it is in the interests of justice to do so.
The take away from the above information should be this, that it is critical that you do not get the cross examination wrong in the first instance, as it is highly unlikely that you will be given the opportunity to cross examine the complainant a second time.
