Sex offence trial work is extremely complicated and requires the criminal defence lawyer that you engage to have an in depth knowledge in relation to the procedural requirements of successfully defending sex offence charges.
At Dribbin & Brown Criminal Lawyers we realise that to keep ahead of the prosecution in relation to trial preparation we can leave no stone unturned. That is why we developed a 60 point checklist in relation to any sex offence trial that we run. When we handle your case we do not leave anything to chance.
The following information has been provided to demonstrate the differences involved when running a sex offence trial compared to a trial relating to charges not related to a sex offences. If you are about to be interviewed or have only recently been charged with a sex offence contact our law firm offices immediately for urgent 24 hour criminal law legal advice.
It is important that any criminal lawyer you engage has a firm understanding of the following procedures.
What are the time limits regarding a sex offence jury trial
Section 126 of the CPA 2009 – From filing hearing the committal mention must be within 3 months unless it is in the interests of justice to be longer, this applies to all sex offences.
Section 99 of the CPA 2009 – From committal mention to committal hearing, if the matter relates to a child or cognitively impaired complainant then the committal must proceed within 2 months of the last committal mention date.
Section 212 of the CPA 2009 – All sex offence trials are to commence within 3 months after being committed. An extension will usually be sought by the Crown regarding adult complaints per section 247 of the CPA 2009.
Other rules relating only to sex offence trials
Section 133 of the CPA 2009 – The court is closed to all non-relevant people in relation to a sex offences committal hearing proceedings.
Section 194 of the CPA 2009– There is a presumption when two or more sexual offences are joined in the same indictment, they will be heard together.
Section 342 of the CPA 2009 – Defendants must seek leave to cross-examine on the sexual history of the complainant by way of a written application.
Section 343 of the CPA 2009 – Sexual history is not admissible to show that sexual activity to which the charge relates was more likely.
Section 352 of the CPA 2009 – Sexual history evidence is not relevant to the general disposition of a complainant, further it cant be used to attack credit unless it goes directly to impairing the confidence in the reliability of the evidence of the complainant (the premise being just because the person sleeps around doesn’t make them a liar).
What are confidential communications?
Confidential communications – Under Section 32C of the CPA 2009, defense must seek leave to cross-examine any complainant on confidential communications. Confidential communications can be;
1. Counseling that has occurred between the complainant and a psychologist
2. Communications between a priest and a complainant
3. Communications between a doctor and a complainant.
4. Any other confidential communication.
There are special rules that apply to seek leave in relation to obtaining materials that would be considered confidential communications.
As you can see from the above information sex offence trials have another set of rules specific to running sex offence trials.
Can I cross examine the witness?
If the matter for which you have been charged relates to a sexual offence and the complainant in the matter was a child or a person that is cognitively impaired and that person or child has made a statement or recording that has been served in the hand up brief then the Magistrates must not order that the witness be subject to cross examination in accordance with section 123 of the Criminal Procedure Act.
Trial Proceedings relating to sexual offences
If you matter relates to a sexual offence and the matter has been committed to trial then by virtue of section 212 of the CPA the trial must occur within 3 months after the day on which the indictment has been filed.
Unless an application is made by defence, the complainant cannot be cross examined with regard to his/her sexual activities that occurred externally to the charges against you as per section 342 of the CPA. Similarly no evidence in relation to the complainant’s sexual history may be admitted in an attempt to infer the likelihood of consent to sexual activity to which you have been charged in accordance with section 342 of the CPA.
If the matter relates to a sexual offence and the complainant in the matter is a child or is cognitively impaired then recorded evidence in chief is permissible under Division 5 section 366 of the CPA.
A witness may also be permitted to give evidence in chief via an audio or audio visual recording of the witness having questions put to him or her.
Committal hearing time limits
If your matter relates to a sexual offence rules and time limits that are applicable in terms of committal proceedings differ from other offences.
If you matter relates to a sexual offence section and the complainant in the matter is a child or had a cognitive impairment when proceedings began and if a witness other than the complainant and will be subject to cross examination then by virtue of section 99 of the CPA the Magistrate must order that the committal hearing take place within 2 months after the committal mention.
Child & cognitively impaired complainants
If your matter relates to a sexual offence and the complainant in the matter is a child or a person with a cognitive impairment then a special hearing must take place in order for the court to be presented with the evidence of the complainant and that evidence will be a recording and presented to the Court in that format in accordance with section 370 of the CPA.
The special hearing must be within 3 months form the date you have been charged and before the same court in which the indictment has been filed. This protocol is not followed for any other offence other than sex offences. In all other matters a defendant has the right to cross examine his accuser through counsel in front of a jury.
Both you and your legal representative will be present at the special hearing. However according to section 372 (1) (b) (i) you are not to be present in the same room as the complainant although evidence is being taken, you are however entitled to see and hear the complainant give that evidence per section 372 (1) (b) (ii).
At trial the jury will be given a warning that recording of evidence is common practice for child or cognitively impaired complainants. The jury will also be warned that no inference should be made against the person chares because the evidence is being presented in that format. The jury will also be warned that the evidence must not be given any less weight because it has been presented in that format.
If the complainant has given their evidence by way of recording and the complainant is to be cross -examined then leave must be given by the Court to do so. The court will only grant leave to do so under section 376 (2) of the criminal Procedure Act if you or your legal representative has become aware of a matter that was not or could not have been known at the time of the recording or if it is in the interests of justice to do so.
Admission of recorded evidence
As outlined above if you matter related to a sexual offence then the evidence of the complainant is most often taken in the form of a recording and that evidence will be deemed to be admissible evidence under section 379 of the CPA. If the Prosecution in the matter seek to tender that recorded evidence then they must notify you that they intend to do so. Section 380 (1) directs that they must give 21 days notice they intend to use that recording as evidence. The court will give regard to any periodical effect the recording may have and whether you would be unfairly disadvantaged by the admissibly of that evidence as per section 381 of the CPA.
If the complainant has given evidence via recording then they will not be required to attend unless it has been directed that they be required to give further evidence.
The fact that the complainant has given evidence in a recorded format will not preclude the complainant from being able to give further direct evidence under section 384 of the CPA if the court is satisfied that the complainant is able to and it is in the interests of justice to do so.
For more information call one of our experienced sex offence lawyers today. The Criminal Defence Lawyers
at Dribbin & Brown have received accreditation by the Law Institute of Victoria and are accredited criminal law specialists. Don’t leave your future livelihood or reputation in the hands of a law firm who are not accredited in criminal law.