Victorian Consolidated Legislation

Crimes Act 1958 - SECT 61

Jury warnings

61. Jury warnings



(1) On the trial of a person for an offence under Subdivision (8A), (8B),
(8C), (8D) or (8E) or under any corresponding previous enactment or for an
attempt to commit any such offence or an assault with intent to commit any
such offence-

   (a)  the judge must not warn, or suggest in any way to, the jury that the
        law regards complainants in sexual cases as an unreliable class of
        witness; and

   (b)  if evidence is given or a question is asked of a witness or a
        statement is made in the course of an address on evidence which tends
        to suggest that there was delay in making a complaint about the
        alleged offence by the person against whom the offence is alleged to
        have been committed, the judge-

   (i)  must inform the jury that there may be good reasons why a victim of a
        sexual assault may delay or hesitate in complaining about it; and

   (ii) must not warn, or suggest in any way to, the jury that the credibility
        of the complainant is affected by the delay unless, on the application
        of the accused, the judge is satisfied that there is sufficient
        evidence tending to suggest that the credibility of the complainant is
        so affected to justify the giving of such a warning; and

   (iii) must not warn, or suggest in any way to, the jury that it would be
        dangerous or unsafe to find the accused guilty because of the delay.

(1A) If the judge, on the application of the accused in a proceeding to which
subsection (1) applies, is satisfied that the accused has suffered a
significant forensic disadvantage because of the consequences of the delay in
making a complaint about the alleged offence by the person against whom the
offence is alleged to have been committed, the judge must, in any terms that
the judge considers appropriate having regard to the circumstances of the
case-

   (a)  inform the jury of the nature of the forensic disadvantage suffered by
        the accused; and

   (b)  instruct the jury to take that disadvantage into consideration.

(1B) Despite subsection (1A), a judge must not warn, or suggest in any way to,
the jury that it would be dangerous or unsafe to find the accused guilty
because of the delay.





(1C) For the purposes of subsection (1A), the passage of time alone is not to
be taken to cause a significant forensic disadvantage.

(1D) Nothing in subsection (1A) requires a judge to give a warning referred to
in that subsection if there is no reason to do so in the particular
proceeding.

(1E) A judge must not give a warning referred to in subsection (1A) or a
warning to the effect of a warning referred to in subsection (1A) except in
accordance with this section and any rule of law to the contrary is hereby
abrogated.

(1F) Nothing in subsections (1A) to (1E) affects the power of a judge to give
any other warning to, or to otherwise inform, the jury.

(2) Nothing in subsection (1) prevents a judge from making any comment on
evidence given in the proceeding that it is appropriate to make in the
interests of justice.

(3) Despite subsection (2), a judge must not make any comment on the
reliability of evidence given by the complainant in a proceeding to which
subsection (1) applies if there is no reason to do so in the particular
proceeding in order to ensure a fair trial.

(8G) Abrogation of obsolete rules of law