Investigation and Court Procedures
Protection for the Victim
The victim will be referred to as a complainant right up until the conviction of the accused. For the accused to be convicted, the complainant will usually have first given evidence before a magistrate and then in a trial before a jury of 12 people. The complainant will probably have been cross-examined extensively, and with some pressure by defence lawyers about the intricate and very personal details of the offence and the person’s credibility. A successful prosecution depends to a great extent on strong evidence from the complainant. This whole process can be extremely upsetting.
The Evidence (Children and Special Witnesses) Act 2001 (Tas) provides the legislative means for support for children and special witnesses when giving evidence. To qualify as a special witness, a person must satisfy requirements set out under the Act. These include intellectual, mental or physical disability, an inability to give evidence in the ordinary manner, or some other vulnerability, such as relationship to any party to the proceeding that is likely to cause emotional trauma, intimidation or distress so as to prevent giving evidence satisfactorily (s8). Some of the means of support are:
- Audio visual linking for giving testimony rather than having to be present in court
- A support person near to the child or special witness
- Exclusion of persons from the courtroom, specified in a court order
Access the hearings for sexual offence charges
Preliminary proceedings will be dealt with by the court in the absence of members of the public. But in Tasmania, at the trial stage, the judge has no power to close the court.
Proof of Physical Injury
If a person submits to sexual intercourse as a result of threats or terror, they are not consenting. Where sexual intercourse has occurred and the complainant’s will has been overborne by a threat, it is not necessary for the Crown to prove physical injuries to the complainant. This is understandable, as in this situation there may well be no injury. An example would be a woman seeming to co-operate in circumstances where her child has been threatened with violence.
It is still the law that the lack of physical injury to a complainant may be very relevant to the defence in some circumstances, and may be the subject of substantial comment by defence lawyers when addressing the jury. The Crown in rape trials still places great weight on the existence of injuries to a complainant, and the defence is likely to submit that lack of injury is very significant.
Proof of grievous bodily harm to the complainant as a result of an alleged sexual offence is ‘prima facie’ evidence of absence of consent. This means that it will not now be necessary, where a complainant suffers grievous bodily harm, to show as a separate matter that there was no consent to the alleged offence.
Change in Place of Trial
Section 307A, Criminal Code enables a complainant to request a change in venue of a trial, and provides for compensation to be paid to an accused if additional costs are incurred by reason of that change.
It used to be the case, prior to a 1987 amendment, that defence lawyers in a rape trial emphasised the absence of complaint or late complaint. The rationale was that if a person had been raped, then they would complain to someone at the first available opportunity. If there was no complaint, it was open to the defence to cross-examine a complainant with some force and to cast doubt upon their story.
It is still possible to cross-examine a complainant in that way, but if it is done, the judge must warn the jury that the absence of complaint does not necessarily mean that the complainant’s claim is false.
Furthermore, the judge must point out that there may be good reason for a victim of sexual assault not making a complaint. Very often, a significant reason for not reporting a rape is that a victim believes that the gathering of evidence and the prosecution of the charge may be worse than the crime itself. Psychologists have pointed out that friends and relatives, who are initially supportive, may develop negative feelings about the victim and that this can affect the victim’s self-image. This provision is an open recognition that reasons like these may explain any reluctance to lodge an immediate complaint.
Publication of Names of Victims Prohibited
Section 194K of the Evidence Act 2001 (Tas) was amended in 2020 to allow victims of sexual abuse to speak out if they obtain a court order, are over 18 years of age, consent to the publication, and the court proceedings have finished.
Corroboration of Evidence
Corroboration is confirmation (or backing-up) of a witness’s evidence by other independent evidence. In a trial for sexual assault, it could be the findings of a doctor who examines the complainant, torn or stained clothes worn by the complainant, or the evidence of an eye-witness.
Section 136 of the Criminal Code states that there is no requirement in law or practice for a judge to give a warning in relation to uncorroborated evidence of crimes under Chapters XIV and XX of the Code. These chapters include all sexual offences. However, a judge may give such a warning if they feel it is justified in the circumstances.
Age of the Accused
The age of criminal responsibility is currently 10 years of age. Where a person under the age of 14 is charged with any offence, it still must be proved that he had sufficient capacity to know that the act or omission was one which he ought not to do or make.
Rape in Marriage
The fact that an accused person is married to the complainant is not a bar to a conviction for rape.
Evidence of Previous Sexual Experience
Section 194M of the Evidence Act 2001 (Tas) prohibits all evidence which discloses or implies the sexual reputation of the person against whom a crime of a sexual nature has allegedly been committed, and prohibits evidence which discloses or implies the sexual experience of the victim, unless leave of the magistrate or the judge is first obtained in the absence of the jury.
Such leave can only be granted if the evidence has substantial relevance, and its potential value outweighs any distress, humiliation or embarrassment which the victim may suffer as a result of the admission of such evidence. Evidence of the victim’s sexual experience that forms part of the events or circumstances out of which the charge arises does not require leave. This restricts evidence of sexual experience of the victim to situations where it is directly relevant, for example, to explain the source of pregnancy or disease.
Investigation of Sexual Offences
After a sexual offence, the victim is often taken to a hospital. At the North West General Hospital in Burnie, the Launceston General Hospital, and the Royal Hobart Hospital, there are specialised units to assist. The centres in all three hospitals provide treatment, forensic testing, and counselling or access to counselling. In Hobart, Launceston and Burnie there are also the Sexual Assault Support Services (‘SASS’). These services offer 24 hour counselling; information on medical, police and legal procedures; referral to other agencies as required and support for victims who are going through the court process.
At the hospital, the victim will be asked to have a complete medical examination, which involves a pelvic (internal) examination, the collection of specimens for laboratory tests, and the taking of photographs of injuries related to the offence. The kinds of specimens include combings of the pubic hair and vaginal/anal swabs to test for presence of semen. Photographs are made of any of the injuries and may include the face, body or vaginal/anal area. If the victim decides not to proceed with immediate police action the laboratory specimens will be held at the hospital for 48 hours.
If a complaint is made to the police, the complainant will be asked to give a full and detailed statement. The medical examination will become available to be used as evidence, and the complainant’s clothing may be taken by the police to be used later as evidence. While all this is extremely unpleasant for the victim, it is very important if the offender is to be punished.
If a person is charged, and decides to defend the case, a date will eventually be set for the preliminary proceedings, generally at least 6 months after the charge is laid. The preliminary proceedings involve the giving of prosecution evidence in a Court of Petty Sessions (Magistrate’s Court, Criminal Division) before a magistrate who decides whether there is sufficient evidence for the case to go to trial before a judge and jury. This initial procedure is viewed with some importance by the defence because it provides an opportunity to test the complainant by cross-examination.
If the magistrate decides that there is enough evidence, the defendant will be committed for trial at the next available sittings of the Supreme Court.