Victorian Numbered Acts

JURY DIRECTIONS AND OTHER ACTS AMENDMENT ACT 2017 (NO. 37 OF 2017) - SECT 7

After Division 2 of Part 5 of the Jury Directions Act 2015 insert —

" Division 3—Differences in complainant's account

        54A     Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

        54B     Part 3 does not apply

Part 3 does not apply to this Division.

        54C     Definitions

In this Division—

"difference" in an account includes—

        (a)     a gap in that account; and

        (b)     an inconsistency in that account; and

        (c)     a difference between that account and another account;

"sexual offence" has the same meaning as in the Criminal Procedure Act 2009 .

        54D     Direction on difference in complainant's account

    (1)     If, after hearing submissions from the prosecution and defence counsel (or, if the accused is unrepresented, the accused), the trial judge considers that there is evidence in the trial that suggests a difference in the complainant's account of the offence charged that is relevant to the complainant's credibility or reliability, the trial judge must direct the jury in accordance with subsection (2).

    (2)     In giving a direction referred to in subsection (1), the trial judge must inform the jury that—

        (a)     it is up to the jury to decide whether the offence charged, or any alternative offence, was committed; and

        (b)     differences in a complainant's account may be relevant to the jury's assessment of the complainant's credibility and reliability; and

        (c)     experience shows that—

              (i)     people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; and

              (ii)     trauma may affect different people differently, including by affecting how they recall events; and

              (iii)     it is common for there to be differences in accounts of a sexual offence; and

Example

People may describe a sexual offence differently at different times, to different people or in different contexts.

              (iv)     both truthful and untruthful accounts of a sexual offence may contain differences; and

        (d)     it is up to the jury to decide—

              (i)     whether or not any differences in the complainant's account are important in assessing the complainant's credibility and reliability; and

              (ii)     whether the jury believes all, some or none of the complainant's evidence.

    (3)     The trial judge may repeat a direction under this section at any time in the trial.

    (4)     This section does not limit any direction that the trial judge may give the jury in relation to evidence given by an expert witness.".