Previous Topic

Next Topic

Book Contents

Book Index

4.8.1 - Effect of Delayed Complaint on Credit

Click here to obtain a Word version of this document

Scope

  1. The law concerning delayed complaint and its impact on credibility in sexual offence cases is governed by the Jury Directions Act 2015 Part 5 Division 1 & 2. This Division applies to trials commenced on or after 29 June 2015 (Jury Directions Act 2015 Sch cl2).
  2. Division 2 applies to criminal proceedings that relate (wholly or partly) to a charge for ‘a sexual offence’ (Jury Directions Act 2015 s50). ‘Sexual offence’ has the same meaning as in the Criminal Procedure Act 2009.
  3. This topic outlines the law to be applied where the trial commenced on or after 29 June 2015. For older cases, this information must be used with caution.

    Overview

  4. If, before any evidence is adduced in a trial and after hearing submissions from the parties, the trial judge considers it is likely that there will be evidence in the trial that suggests there was a delay in complaint or that the complainant did not make a complaint, the trial judge must direct the jury about the relevance of delay to credit (Jury Directions Act 2015 s52).
  5. The judge may form this view on the basis of the depositions, through the matter being addressed during a pre-trial directions hearing, or through a pre-trial document filed under the Criminal Procedure Act 2009 (see Criminal Procedure Act 2009 ss182, 199 and 200).
  6. The direction on the effect of delayed complaint on credit must be given before evidence about the delay in making a complaint is adduced and may be given before any evidence is adduced (Jury Directions Act 2015 s52).
  7. In addition to the mandatory direction under s52, the prosecution may request a direction that there may be good reasons why a complainant has delayed in making their complaint (Jury Directions Act 2015 s53).
  8. Under section 51 of the Jury Directions Act 2015, there are certain statements about complainants in sexual offences which the trial judge, the prosecution and defence counsel are prohibited from making (Jury Directions Act 2015 s51).
  9. Depending on the circumstances of the case, the judge may also need to warn the jury about any forensic disadvantages caused by the delay, about Recent Complaint or about differences in the complainant’s account. See Delayed Complaint and Differences in a Complainant’s Account.

    Legislative History

  10. An understanding of the history of Part 5 Division 2 of the Jury Directions Act 2015 is necessary before the case law in this area can be safely approached. The law has changed substantially over time, and thus older cases must be approached with great caution.

    Common Law

  11. Prior to 1991, the issue of delayed complaint was not addressed by statute. The common law held that, in appropriate cases, the jury should be directed that a delay in complaining may cast doubt upon the reliability of the complainant’s evidence. They should also be told that there may be good reasons for the delay in complaint (Kilby v R (1973) 129 CLR 460).

    Crimes (Sexual Offences) Act 1991

  12. In 1991, the Crimes (Sexual Offences) Act inserted section 61 into the Crimes Act 1958. Originally, section 61(1)(b) required the judge to:

    (i) warn the jury that delay in complaining does not necessarily indicate that the allegation is false; and

    (ii) inform the jury that there may be a good reason why a victim of a sexual assault may hesitate in complaining about it.

  13. While this section partially codified the law in the area, it did not prevent judges from making any comments on the evidence given in the proceedings that it was appropriate to make in the interests of justice (Crimes Act 1958 s61(2)).

    Crimes (Amendment) Act 1997

  14. Section 61 was amended by the Crimes (Amendment) Act 1997. This amendment:

    Crimes (Sexual Offences) (Further Amendment) Act 2006

  15. In 2006, the Crimes (Sexual Offences) (Further Amendment) Act inserted a new s61(1)(b)(ii) into the Crimes Act 1958. This section prohibits judges from warning or suggesting to the jury that delay may affect the credibility of the complainant unless:

    Jury Directions Act 2015

  16. The Jury Directions Act 2015 commenced on 29 June 2015. These amendments repealed section 61 of the Crimes Act 1958. Part 5, Division 2 of the Act governs directions on delay in complaint and credibility. The Act also abolished the common law rules requiring a jury direction in relation to delay and credibility and prohibits suggestions that complainants in sexual offence cases are unreliable, or that complainants who delay in making a complaint are, as a class, less credible or require more careful scrutiny than other complainants.

    Relevance of Delayed Complaint

  17. At common law, the absence of "recent complaint" was relevant to the credibility of the complainant as it could be used in evaluating the consistency of the complainant’s evidence (Kilby v R (1973) 129 CLR 460; Crofts v R (1996) 186 CLR 427; R v Miletic [1997] 1 VR 593; R v Matthews [1999] 1 VR 534; R v WEB (2003) 7 VR 200).
  18. The fact that the complainant had not complained in a timely fashion was seen as capable of diminishing the complainant’s credibility (Kilby v R (1973) 129 CLR 460; Crofts v R (1996) 186 CLR 427).
  19. So just as the fact that a "recent complaint" was made could tend to support the credibility of the complainant (see Previous Representations (Hearsay, Recent Complaint and Prior Statements)), its absence was treated as a factor in reducing the complainant’s credibility (Kilby v R (1973) 129 CLR 460; R v Freeman [1980] VR 1; R v Matthews [1999] 1 VR 534).
  20. However, section 52 of the Jury Directions Act 2015 now requires the judge to give the jury certain directions which are relevant to assessing the significance of delay. These directions are designed to address certain misconceptions jurors may have about the significance of delay (see Department of Justice, Jury Directions: A Jury-Centric Approach, 2015).
  21. While section 51 of the Act prohibits certain statements or suggestions about the impact of delay (See Prohibited Directions and Statements below), nothing in Part 5, Division 2 prevents or restricts the defence from cross-examining the complainant about the reasons for the delay. The defence is entitled to cross-examine a complainant to explore the reasons for a delay (WSJ v R [2010] VSCA 339).
  22. Delay in making a complaint has no probative value as to any fact in issue (Kilby v R (1973) 129 CLR 460; Crofts v R (1996) 186 CLR 427; Jones v R (1997) 191 CLR 439).
  23. The lack of a "recent complaint" therefore does not itself go to disprove the facts of which the complainant gives evidence (Crofts v R (1996) 186 CLR 427; Jones v R (1997) 191 CLR 439; R v Mazzolini [1999] 3 VR 113).
  24. Similarly, the absence of "recent complaint" cannot found an inference of consent (Kilby v R (1973) 129 CLR 460).

    When to Direct the Jury

    General directions on delay – section 52 direction

  25. If, before any evidence is adduced in a trial and after hearing submissions from the parties, the trial judge considers it is likely that there will be evidence in the trial that suggests there was a delay in making a complaint or that the complainant did not make a complaint, the trial judge must give a section 52 direction (Jury Directions Act 2015 s52).
  26. The term ‘delay in making a complaint’ is defined in the Act to include where:
  27. This requires the judge to make an objective assessment of the interval between the alleged offending and the complaint, and the evidence that will likely be led in the trial.
  28. Unlike the previous provisions in Crimes Act 1958 s61, the need for the direction is triggered solely by the judge’s assessment of what the likely evidence will suggest. It is not triggered by questions asked of witnesses or statements made in addresses (Jury Directions Act 2015 s50. Compare Crimes Act 1958 s61 (repealed)).
  29. The section 52 direction must be given before the evidence of the delay is adduced (Jury Directions Act 2015 s52(1)(a)).
  30. The judge may elect to give the direction before any evidence is adduced (Jury Directions Act 2015 s52(1)(b)) and may give the direction more than once (Jury Directions Act 2015 s52(3)).
  31. If the judge forms the view during the trial that there is evidence that the complainant delayed in making a complaint or did not make a complaint, the judge must give the jury a section 52 direction as soon as possible (Jury Directions Act 2015 s52(2)).
  32. Section 52(2) ensures that juries will receive a section 52 direction even if the issue of delay is not identified at the start of the trial.
  33. The obligation to give a section 52 direction does not depend on a request from the prosecutor or defence counsel (Jury Directions Act 2015 s52).
  34. If the requirements of Jury Directions Act 2015 are satisfied, the section 52 direction must be given even if the defence do not refer to the delay (see, e.g., R v Murray (1987) 11 NSWLR 12).
  35. However, a direction may not be necessary if there has only been a modest delay in complaint (even of weeks or months), and the accused has made nothing of that delay (R v Munday (2003) 7 VR 423).

    Good reasons for delay – section 53 direction

  36. The prosecution may request that the judge direct the jury that there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence (Jury Directions Act 2015 s53).
  37. If the prosecution requests the direction, the judge must give the direction unless there are good reasons for not doing so (Jury Directions Act 2015 s14).
  38. The judge can give this direction in the absence of a request where he or she consider that there are substantial and compelling reasons for doing so (Jury Directions Act 2015 s16).

    Content of directions

    Section 52 direction

  39. In giving a section 52 direction, the judge must inform the jury that experience shows that:
  40. This direction is designed to reflect empirical research about the behaviour of victims of sexual assault. It also aims to counter common misconceptions about such behaviour, which wrongly assumes that most victims of sexual assault will complain at the first opportunity and that failure to do suggests that the complainant is not a “real victim” (Victorian Department of Justice, Jury Directions: A Jury-Centric Approach, 2015).
  41. It is not appropriate for a judge to tell the jury that they must have this direction “at the forefront of your minds” when assessing the evidence (Hermanus v R (2015) 49 VR 486 at [45] per Osborn JA).

    Section 53 direction

  42. A section 53 direction informs the jury that there may be good reasons for a person to delay in making a complaint, or not complain, about a sexual offence (Jury Directions Act 2015 s53).
  43. This is not a direction about the complainant in the current trial, but relates to victims of sexual assault generally (R v Mazzolini [1999] 3 VR 113).
  44. However, it will usually be proper for the judge to inform the jury of some of the possible reasons for a complainant to delay in making a complaint, if the judge considers that this will ensure the jury understands that there may be good reasons for delay (R v ERJ (2010) 200 A Crim R 270; AC v R (2014) 42 VR 278; Hermanus v R (2015) 49 VR 486 per Osborn and McLeish JJA (Priest JA contra)).
  45. Possible reasons for delay include:
  46. The judge should not refer to growing public knowledge of sexual abuse by teachers and members of clergy in a case where the offending does not involve abuse of institutional power relationships (Hermanus v R (2015) 49 VR 486 at [51]).
  47. The judge is not confined to any explanation advanced by the complainant and may include examples which might be relevant on the facts of the case (Hermanus v R (2015) 49 VR 486; AC v R (2014) 42 VR 278; R v ERJ (2010) 200 A Crim R 270; Svajcer v R [2010] VSCA 116).
  48. The judge may also elaborate on possible reasons to help the jury understand the relevance or likelihood of that reason in the circumstances of a case. Any such elaboration:
  49. The judge must also exercise caution and restraint in offering comments, due to the risk that any such comments may be misinterpreted by the jury (Hermanus v R (2015) 49 VR 486 at [177] per McLeish JA).
  50. The judge should not emphasise that the explanation for the delay has been given by the complainant him or herself. Such a direction improperly diminishes the weight of the evidence, and creates a risk that the jury might give less weight to the complainant’s explanation and testimony generally (Svajcer v R [2010] VSCA 116).

    Forensic Disadvantage Warning Does Not Remove Need for Direction

  51. The need for directions under Part 5 Division 2 of the Jury Directions Act 2015 is independent of any directions on forensic disadvantage given under Part 4 Division 5 of the Act (see Delay Causing Forensic Disadvantage). The directions address very different issues, and should be considered independently.

    Prohibited Directions and Statements

  52. The trial judge, the prosecution and defence counsel (or the accused if unrepresented) must not say, or suggest in any way, to the jury that:
  53. This does not prohibit any of those parties saying or suggesting that the particular complainant’s delay does, or may, affect their credibility (Jury Directions Act 2015 s51 Notes).
  54. Where the prosecution or defence breaches this prohibition, the judge must correct the statement or suggestion unless there are good reasons for not doing so (Jury Directions Act 2015 s7).
  55. A judge must not say, or suggest in any way, to the jury that, because the complainant delayed in making, or failed to make, a complaint that (Jury Directions Act 2015 s51(2)):
  56. A judge must not instruct the jury that the failure of the complainant to complain at the earliest possible opportunity is evidence of consent (Kilby v R (1973) 129 CLR 460).
  57. The Jury Directions Act 2015 also abolishes the common law rule which requires a judge to direct the jury that delay in complaint may cast doubt on the reliability of the complainant’s evidence and that the jury should take this into account when assessing the complainant’s credibility (Jury Directions Act 2015 s54).
  58. This abolition reverses the common law rule attributed to Crofts v R (1996) 186 CLR 427 which required judges to balance the statutory directions which informed the jury that there may be good reasons for a complainant to delay in complaining (see Jury Directions Act 2015 s54 Notes).

Last updated: 2 October 2017

See Also

4.8 - Delayed Complaint

4.8.2 - Charge: Section 52 Direction

4.8.3 - Charge: Section 53 Direction

4.8.4 - Delay Causing Forensic Disadvantage

4.8.5 - Charge: Delay Causing Forensic Disadvantage

4.8.6 - Delay Risking Honest but Erroneous Memory

4.8.7 - Charge: Delay Risking Honest But Erroneous Memory