At common law, the duty to direct a jury in respect of the potential impact of delayed complaint on the complainant’s credit derived both from statute (Crimes Act 1958 s61) and from the need to give a balanced charge where delay in making complaint is raised before the jury (Kilby v R (1973) 129 CLR 460; Crofts v R (1996) 186 CLR 427).
The Jury Directions Act 2015 has now codified the directions on the relevance of delay to credit in sexual offence cases, and any rule of the common law which required a judge to direct the jury that:
(a) a complainant's delay in making a complaint or lack of complaint may cast doubt on the reliability of the complainant's evidence; and
(b) the jury should take this into account when evaluating the credibility of the allegations made by the complainant-
Two other consequences of delay may be the production of forensic disadvantage to the accused, and of honest but unreliable recollections of the complainant. These are commonly seen only as consequences of long delay, but the length of delay may not be determinative.
The law on these topics is modified by the Jury Directions Act 2015 ss14 - 16 and 48 - 54.
Delay Risking Miscarriage of Justice
For trials commenced prior to 1 December 2006, the judge’s duty was primarily determined by the common law, as articulated in Longman v R (1989) 168 CLR 79 and the authorities that have applied it. In those cases, the question was whether the consequences of delay had created a perceptible risk of miscarriage of justice. The source of that risk was commonly considered to be the forensic disadvantage to the accused, and the potential for the complainant’s recollection to be honest but erroneous.
The need for and the content of a direction on forensic disadvantage is governed by Jury Directions Act 2015 ss38 - 40. A judge must give the jury a forensic disadvantage direction if one is requested, unless there are good reasons for not giving such a direction. However, a judge need not give a direction if it has not been requested, unless there are substantial and compelling reasons for giving the direction in the absence of a request (see Jury Directions Act 2015 ss14, 16; c.f. Greensill v R (2012) 37 VR 257).
Honest But Erroneous Memory
The provisions of the Jury Directions Act 2015 are not directly concerned with directions about honest but erroneous memory following delay.
If there is a dispute as to how soon after the alleged events the complaint was made, the judge may need to give the statutory directions on delayed complaint and also give directions on recent complaint at the end of the trial (see R v Munday (2003) 7 VR 423 and Charge: Complaint Evidence).
Where multiple directions about the different consequences of delayed complaint are necessary in the circumstances of a case, it is permissible to combine them in a single direction (R v BDX (2009) 24 VR 288).