The law surrounding sexual assault is one of the fastest changing areas in criminal law. The trend in the past few years has undoubtedly been towards protecting and mitigating the impact that the process of criminal trials may have on complainants. Instrumental in this has been the Child Sexual Offence Evidence Program Scheme which has been extended to June 2022 and sexual assault communications privilege.
Likewise, s 293 of the Criminal Procedure Act has become an increasingly important part of sexual assault trials. Rape shield legislation has seemingly struggled to strike a balance between the admission of otherwise probative evidence and the need to protect the reputation of complainants from unjustified lines of questioning. The Court increasingly looks to certainty from the Defence as to what questions are to be asked before any determination is made under s 293, and for lines of cross examination of Complainant, this puts the Defence to a forensic disadvantage.
Sexual assault trials are often complex and challenging. Counsel are often faced with inconsistent and confusing instructions from clients, and practitioners frequently make the mistake of presenting too many competing arguments and case theories. As with any trial, a clear and concise case theory is the most important element for practitioners to develop. Counsel often feel that they have to argue each and every point at trial. Agreeing with opposing Counsel as to what is in issue will streamline the trial and ensure that the evidence you adduce is only that which is relevant to the most pertinent issues in the case.
As the majority of sexual assault trials are before juries, the fundamental misunderstanding that seems to pervade sexual assault trials is where the onus of proof lies. Often lay persons misunderstand the onus of proof, and fail to appreciate the function of the Prosecution and Defence. Ensure that you always outline what your role in a trial is to a jury.
Often with sexual assault trials, and particularly in trials in which there are multiple complainants, practitioners are often served with an endless stream of material right up until the date set for trial. It is fundamentally import that practitioners ensure enforcement by the Courts of strict compliance by the Crown with the rules of service of materials.
Any such failure should result in an exclusion of the evidence unless there are exceptional circumstances with the right in the defence for an adjournment if prejudiced. The Court should case manage trials so that the Defence can proceed to trial on the basis that there will be no late service of material, and that the case will start as fixed at the call-over.
The proposed Evidence Amendment (Tendency and Coincidence) Bill, currently before the Parliament, represents the most significant threat to the current tendency laws. Whilst specifically tailored for Child Complainants, the Bill sets a dangerous precedent. By introducing a presumption, albeit rebuttable in ‘exceptional circumstances,’ that certain evidence in relation to child sexual assault matters have significant probative value, the Parliament has again further eroded the rights that accused persons have in sexual assault trials. This Bill may have lasting and wide ranging repercussions adverse to the Defence.
Anthony Bellanto QC was called to the Bar in 1967 and took silk in 1988. Anthony has worked as the Crown Counsel and Senior Crown Counsel in Hong Kong and as a Crown Prosecutor in Australia. He possesses extensive experience in criminal law matters, trial advocacy, sentencing and appeals. Further, Anthony is an active participant in the Bar Reading Course, Continuing Professional Development programs and has delivered a collection of papers in both NSW and abroad, making him well-recognised within the academic community as well as the court room. He was the advisory editor of Sentencing Law: New South Wales published by LexisNexis in 2003. Connect with Anthony via email