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Historical Sex Offences (Vic)

In Victoria there is no limitation period for laying charges relating to sexual offending. Where sex offending may have occurred some 10, 20, 30 or more years ago, police may still decide to proceed with an investigation and lay charges. This may occur because the offending has only just been reported or because new evidence has arisen to assist in a previously unresolved investigation. This article deals with the evidential issues that may arise during prosecutions for historical sex offences in Victoria.

Changes to legislation

Victorian legislation governing sex offences has been amended numerous times over the years, most significantly in 1991. Prosecutions for offences alleged to have occurred prior to 1991 must be handled quite differently to those for more recent offences as the elements of a number of offences were changed significantly at that time.

When dealing with historical sex offences, the evidence must be assessed in relation to the offences as they were defined in the legislation at the time of the alleged offence. The date the offence is alleged to have occurred can have a significant impact on whether or not charges can be established.

Delays in making the first complaint

It is also important to ascertain when and how the initial complaint was made. A prompt and early complaint, shortly after the offending incident is alleged to have occurred, may increase the credibility of the complainant. However, when the first complaint was not made immediately, this does not adversely affect the complainant’s credibility.

Legislation and case law directs courts that a complainant’s delay in raising the offending with anyone, including police, does not indicate that the allegation is false, nor does it impact the credibility of the complaint. The court may also give a jury direction that the complainant may have good reason for their delay.

What a delay may, however, inadvertently do is impact the accused’s ability to defend the charge. For example, where an offence is alleged to have occurred outside a shopping centre some years ago. A delay in reporting the offence may mean that CCTV footage is no longer available, or that witnesses have passed away or are no longer available.

The court must only advise the jury of such a forensic disadvantage if there are substantial and compelling reasons to do so. The disadvantage must be significant for the court to even consider giving a jury direction.

Deterioration of memory

Another consequence of a delayed prosecution is that the complainant or another witness may give evidence of events as they remember them but those memories may be inaccurate. The courts can make directions with respect to the possibility of the evidence being unreliable as a result of a lot of time having passed. However, the delayed complaint in itself would not be sufficient to warrant giving this jury direction. There would have to be additional events that are likely to have affected the witness’s memory, such as subsequent sexual offending, mental health struggles and treatment or general health issues.

Seek legal advice if charged with historical sex offences

There are extra challenges associated with a prosecution for historical sex offences for both defence and prosecution. The rules dealing with how historical sex offences are to be dealt with by a court are extensive. They are intended to strike a balance between the interests of an accused and the interests of the community.

When facing historical sex offences, it is important to act as promptly as possible, to ensure that any further delay is minimised but also to ensure that all available evidence, which may assist an accused, is obtained while it is available.

While this article has outlines some of the complications involved in dealing with historical sex offending, it by no means encompasses all of the relevant considerations. For that reason, if you are facing charges of historical sex offences, you should seek legal representation as soon as possible.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Deike Kemper - Senior Associate - Melbourne

This article was written by Deike Kemper - Senior Associate - Melbourne

Deike Kemper holds a Juris Doctor (Master of Laws degree) from Monash University, a Graduate Diploma of Legal Practice from the College of Law and a Graduate Certificate of Forensic Psychology from Curtin University. She is admitted to practice in the Supreme Court of Victoria and the High Court of Australia. Deike’s main area of practice is criminal law. She...

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