4.9 -Delayed Complaint[1]

4.9.5 - Charge: Consequences of Delay (Combined Charge)

When to Use This Charge
This charge may be used in all trials that were commenced on or after 1 December 2006, including trials that were commenced in 2010.
This charge should only be given where:
i)A direction under Crimes Act 1958 s61 is required but a Kilby direction is not (see Bench Notes: Effect of Delayed Complaint on Credit);
ii)A forensic disadvantage direction is required (see Bench Notes: Delay Causing Forensic Disadvantage);
iii)A direction about the risk of honest but erroneous memory is required (see Bench Notes: Delay Risking Honest but Erroneous Memory); and
In other cases it should be adapted by deleting irrelevant sections.
Related Charges
For cases that only require directions as to the effect of delayed complaint on credit, one or more of the following charges may be given instead of this combined charge:
•Charge: Combined Section 61/Kilby Direction (Extended);
•Charge: Combined Section 61/Kilby Direction (Short); or
•Charge: Section 61 Direction Only

Introduction

As you will be aware, the offences in this trial are alleged to have occurred [indicate date(s) or date range(s)]. NOC first complained to NOW about the offending on [indicate dates].[2] This means there was a delay of [indicate delay] before NOC told anybody about [the details of] these alleged offences.

Because of this delay in complaint, I must give you three directions of law.

Effect of Delayed Complaint on Credit

[This part of the charge only addresses the requirements of Crimes Act 1958 s61. If a Kilby direction is also required, it will need to be modified. See Charges: Combined s61/Kilby (Extended) or (Short) for assistance.]

First, I must direct you that the law acknowledges that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about the kind of conduct alleged here. [If necessary, insert any relevant reasons.]

Effect of Delayed Complaint on Reliability

Secondly, I must give you a warning about the reliability of NOC’s evidence.

My warning to you is as follows. The honest recollections of a witness about events that s/he believed to have occurred many years before may be unreliable.

You will easily understand that the passage of time may affect any witness’s memory. While in some cases people simply forget things, in other cases their memory may become distorted. That is, they may come to remember things that did not really happen.

Human recollection is frequently erroneous and liable to distortion in this way. The likelihood of this error increases with delay.

[If the complainant was young at the time of the alleged offence, add the following shaded section if relevant]

This risk is enhanced if the complainant was young when the alleged offence took place. Our recollection many years later of events occurring in childhood may be distorted or mistaken.

[Add any other factors which may have exacerbated the risk of honest but erroneous memory in the circumstances, such as evidence that the complainant was suggestible. Also refer to any factors which may support the complainant’s recollection, such as the exceptional or traumatic nature of the alleged acts, or a timely complaint that was made to another person.]

Warning

The law says that every jury must take this potential unreliability into account when considering evidence that is given after a long delay.

You must take this potential unreliability into account in determining whether you accept NOC’s evidence at all, and if you do accept it, in whole or in part, in deciding what weight to give to that evidence.

In making this assessment you must carefully consider not only whether NOC’s evidence is honest, in the sense that NOC believes it to be true, but also whether it is in fact true. While you should use your common sense and experience in assessing the effect of the delay upon NOC’s memory, you must also consider the possibility that s/he honestly believes what s/he is saying, but is mistaken due to the distortion of his/her memory.

Forensic Disadvantage

My thirddirection relates to the impact the delay in making a complaint about the alleged offences has had on NOA’s ability to defend himself/herself against these charges.

In assessing the evidence in this case you must have regard to the following significant considerations. Because of this delay:

[List the specific forensic disadvantages suffered by the accused due to the delay. Only those disadvantages actually suffered in the circumstances of the case should be included. Possibilities include:

  • NOA lost the opportunity to make enquiries at, or close to, the time of the alleged incident[s].
  • NOA lost the ability to explore the alleged circumstances in detail soon after the offences were said to have occurred. Such an exploration may have uncovered evidence which would have [thrown doubt upon the complainant’s allegations/confirmed NOA’s denial of the charges].
  • NOA lost the means of testing NOC’s allegations which would have been available had there been no delay in prosecution.
  • NOC is not able to identify the occasion on which the offences are alleged to have occurred with any specificity. This makes it difficult for NOA to raise any defence other than a simple denial.
  • NOC’s own recollection of the events has faded, so s/he has not been able to provide many specific details of the alleged offences. This [also] makes it difficult for NOA to raise any defence other than a simple denial.
  • NOC could not be medically examinedclose to the time of the alleged offence, to provide evidence contradicting the allegations (referring also to expert evidence establishing the probability of detectable injury in the circumstances described by the complainant).
  • Witnesses who may have been able to give evidence contradicting the complainant’s allegation [are no longer available/can no longer remember relevant details].]

You must take these disadvantages into consideration when determining whether the prosecution has proved NOA’s guilt beyond reasonable doubt.

Summary

To summarise, I have given you three separate but related directions about the way you must approach the delay in complaint in this case:

  • First, I directed you that the law acknowledges that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about the kind of conduct alleged here;
  • Next, I directed you about the risk that over a long period of time a witness may convert false memories into honest but erroneous evidence;
  • Finally, I directed you about the significant disadvantages that NOA has suffered in presenting his/her defence, because of this delay.

These are all matters that you must take into account, in the different ways I have explained, in your consideration of the evidence in this case.

Supporting evidence

[If there is evidence capable of “supporting” the witness’s evidence that has not otherwise been dealt with, add the following shaded section.]

In considering the reliability of NOC’s evidence, you should have regard to any supporting evidence led in this trial that you accept. By “supporting evidence” I mean evidence that comes from a source that is independent of NOW, and that tends to show the truth of NOW’s evidence of the accused’s guilt.

In this case the prosecution relied upon [enumerate] items of evidence as supporting NOC’s evidence. These were [identify evidence capable of supporting the unreliable witness’s evidence].

[If there is a danger that the jury might mistakenly believe certain evidence to be supportive, add the following darker shaded section.]

There was other evidence given in this case that you might have thought at first glance could support NOC’s evidence. This includes the evidence [broadly identify non-supporting evidence].

I direct you that this other evidence is not capable of supporting NOC’s account, because [explain why the evidence is not capable of supporting, e.g., “it does not come from an independent source”.]

Complainants are not less reliable than other witnesses

To conclude this part of my charge, I must make clear that in giving you these directions I am not suggesting, and it would be wrong to suggest, that people who make complaints about sexual offences are less reliable than other witnesses. That is not the case.

These directions are necessary solely because of the because of the matters that I have explained to you.

1

[1] This document was last updated on 1 July 2013.

[2] This charge is designed for use in cases where there was a delay in making the complaint. If the relevant delay arose after the complaint was made it will need to be modified accordingly.