4.26 - Differences in a Complainant’s Account

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Warning! These directions were introduced the Jury Directions and Other Acts Amendment Act 2017. There has not yet been appellate guidance on the operation of these provisions. This information should be used with caution. Further information about the Jury Directions and Other Acts Amendment Act 2017 is available in the Department of Justice and Regulation report, ‘Jury Directions: A Jury-Centric Approach Part 2’.

Overview

  1. Following amendments which commenced on 1 October 2017, the Jury Directions Act 2015 contains provisions for a mandatory statutory direction about how the jury assesses differences in a complainant’s account.
  2. The requirement to give this direction only applies in cases that relate wholly or partly to a charge for a sexual offence, or a charge for an offence of conspiracy or incitement to commit a sexual offence (Jury Directions Act 2015 s54A).
  3. For this purpose, ‘sexual offence’ is defined in s3 of the Criminal Procedure Act 2009 to mean
    1. an offence under Subdivision (8A), (8B), (8C), (8D), (8E), (8F) or (8FA) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment; or
    2. an attempt to commit an offence referred to in paragraph (a); or
    3. an assault with intent to commit an offence referred to in paragraph (a).
  4. The judge is only required to give the direction if, after hearing prosecution and defence submissions, the judge thinks there is evidence in the trial that suggests a difference in the complainant’s account of the alleged sexual offence that is relevant to the complainant’s credibility or reliability (Jury Directions Act 2015 s54D).

    Background to the direction

  5. This direction was introduced by the Jury Directions and Other Acts Amendment Act 2017. It applies to trials that commence on or after 1 October 2017.
  6. The direction is intended to address common misconceptions that occur in sexual offence trials: that a ‘real’ victim would remember all details of an offence, and be consistent in how they describe the offending whenever they are asked to do so (Victoria, Parliamentary Debates, Legislative Assembly, 22 February 2017, 18 (Martin Pakula, Attorney-General); see further Department of Justice and Regulation, Jury Directions: A Jury-Centric Approach Part 2, February 2017, pp 19-22).
  7. While it remains up to a jury to assess whether the differences are relevant to the complainant’s credibility and reliability, the directions set out in Jury Directions Act 2015 s54D(2) are intended to assist a jury to deal with any differences in the complainant’s account on an informed basis, rather than relying on unconscious misconceptions.

    Meaning of difference

  8. Jury Directions Act 2015 s54C, as amended in 2017, provides an inclusive list of what constitutes a ‘difference’ in the complainant’s account. It includes:
  9. This definition appears to cover both incomplete accounts (such as where a complainant does not reveal all alleged offending in the first interview with police) and inconsistent accounts (both inconsistencies that emerge between police statements or that emerge in the course of cross-examination). For a discussion of the significance of inconsistencies that emerge in cross-examination, see Failure to Challenge Evidence (Browne v Dunn) and Ward v R [2017] VSCA 37.

    When is the direction required?

  10. There are two conditions which must be met before the judge is required to give a differences in account direction:
  11. Unlike many directions under the Jury Directions Act 2015, the request process in Part 3 does not apply to this direction. Instead, the onus is on the judge to identify when the direction is required. This is similar to how the direction on delay in complaint operates. See Effect of Delayed Complaint on Credit.

    Timing of Direction

  12. The direction on differences appears designed to be given after evidence of differences emerges in the trial. This may be contrasted with the direction on delay in complaint, which is designed to be given before any evidence is adduced in the trial (compare Jury Directions Act 2015 ss52 and 54D).
  13. The Act is silent on whether the direction should be given as a direction in running when inconsistencies emerge, or whether the judge should wait until final directions. The timing of the direction may be at the discretion of the judge, taking into account matters such as the significance of the differences, the likely length of the trial and any other matters that appear relevant.
  14. The judge may repeat the direction on differences at any time in the trial (Jury Directions Act 2015 s54D(3), as amended in 2017).

    Content of the direction

  15. Where a judge thinks that there is evidence suggesting such a difference, the judge must inform the jury that:

    Prior Inconsistent Statements

  16. Where the difference in a complainant’s account is an inconsistency, a direction on the use of prior inconsistent statements may be required. See Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.

Last updated: 2 October 2017

In This Section

4.26.1 – Charge: Differences in Complainant’s Account

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings