As the Royal Commission into Institutional Responses to Child Sexual Abuse continues, several proposals for protecting children against future abuse have already been discussed, including changes in how the law treats complaints made years or decades after an alleged sexual assault.
This blog looks at the criminal justice system’s treatment of delayed complaint, and whether there is a need for further change.
Historical assumptions
The law has traditionally treated delayed complaints as less reliable than immediate ones.
Courts have reflected this approach in what is known as a ‘Crofts warning’ to the jury(1996), which says that changes in legislation do not necessarily alter the “general rule” of a previous case Kilby v Queen (1973).
In Kilby, Barwick CJ said that “… just as the fact of a proximate complaint tends to support credibility of the complainant, so its absence may be a considerable factor where a tribunal of fact is deciding on the credibility of the complainant.”
Gaudron, Gummow and Hayne JJ explained in Graham v The Queen [1998]:
“the general assumption is that the victim of sexual offences will complain at the first reasonable opportunity and, if complaint is not then made, a subsequent complaint is likely to be false.”
This view presents an obstacle for those who make complaints years or decades after an alleged assault, just as delayed complaints can make it much harder for defendants to remember and gather evidence about events stretching back many years.
Recent Research
Delay of complaint is a common feature of sexual assault cases, particularly where the complainant was a child and knew the accused.
In such cases, the alleged offender is likely to be a trusted adult – such as a family member, teacher, coach or spiritual leader.
The Australian Law Reform Commission (ALRC) found that a child’s failure to immediately report may be an “adaptive and rational response” where:
• The adult is in a position of power,
• The complainant fears the disapproval of family and friends,
• The complainant believes they are at fault, and/or
• The complainant feels they will be disbelieved or not be taken seriously.
The ALRC’s research also suggests that “there is no logical nexus between delay in complaint and fabrication, particularly as it has been shown that delay in complaint is typical.”
For this reason, the use of the Crofts warning – or any warning which calls into question the reliability of a delayed complaint – has been criticised as unfair to the complainant.
Legislation
Taking into account the ALRC’s findings, the NSW Parliament passed legislation in 2003 to diminish the adverse effect of delay to the prosecution case.
Section 294(2) of the Criminal Procedure Act now provides that, where there has been a delay in the reporting of a prescribed sexual offence, the Judge must:
(a) Warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and
(b) Inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and
(c) Not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.
Such directions have the potential of hosing down the jury’s questions about why the alleged victim did not complain shortly after the alleged offence.
Common Law Alterations
The constant development of case law since the introduction of Longman warnings (1989) has arguably reinstated a mandatory warnings regime for sexual assault complainants who delay their reporting, in spite of the 2003 legislation.
The effect of Longman was that a warning must be given to the jury ‘whenever … necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case’.
The High Court of Australia found that this obligation was unaffected by Western Australia legislation which provided that a warning was not required in sexual assault cases; creating a potential argument that some form of warning must be given in NSW despite section 294(2).
The High Court in Longman found that the jury must be instructed to scrutinise a complainant’s testimony with extra care. This approach has been followed in many later cases.
In Crampton v the Queen [2000] the majority of the High Court held that the Longman warning given by a lower court was insufficiently emphatic. The Court emphasised that the jury should have been instructed that it would be ‘dangerous to convict’ on the complainant’s evidence.
In Doggett v The Queen [2001], the Court also found that a warning must be given even when there is corroborating evidence and in DRE v Regina , the period of delay found to warrant the warning was reduced to 5 years.
Necessity of Warnings
Delay in complaint can significantly prejudice a defendant because they may simply be unable to recall events which allegedly occurred years or even decades ago, making any testimony they give appear to be unreliable. They may not be able to locate evidence which provides an alibi or otherwise corroborates their version of the events – records may have been destroyed, witnesses may be deceased or no longer available etc. As the old adage goes ‘justice delayed is justice denied’.
In addition, there is a great deal of scientific evidence to suggest that our memories can become unreliable evidence over time; a defendant may be certain they did not sexually assault a complainant, but their failing or changed memory can provide fertile ground for cross-examination by the prosecution.
The work of cognitive psychologist Elizabeth Loftus illustrates how memory subconsciously changes after the event to fit our existing beliefs or other corrupting information. Loftus says that memory does not work like a recording device, instead “Our memories are reconstructive. [They] work a bit like a Wikipedia page, you can go in and change them but so can other people.”
The potential for false memories and forensic disadvantage is a serious concern for defendants – the danger being they are wrongfully convicted based on a delayed complaint and very little else.
For these and other reasons, it is argued that some form of warning is required in cases of delayed complaint.
Moving Forward
The ALRC has recommended that the Evidence Act be amended to provide that courts must give warnings when satisfied that the defence has suffered ‘significant’ forensic disadvantage due to delay, or where there is some other reason to doubt the complaint evidence.
This would remove the presumption that sexual assault complainants are inherently unreliable while protecting the right of defendants to a fair trial.
