Last updated 5 April 2017
Evidence of complainants
Special rules of evidence apply in relation to complainants (including children) to a sexual offence.
The court may disallow or excuse witnesses from answering any improper questions the court considers to be misleading, confusing, annoying, harassing, intimidating, offensive, oppressive, repetitive or phrased in inappropriate language.
In deciding whether to disallow a question, the court must take into account particular characteristics of the individual witness (i.e. any mental, intellectual or physical impairment the witness has and any other relevant matter including age, education, level of understanding, cultural background or relationship to any party to the proceedings) (s 21 Evidence Act 1977 (Qld) (Evidence Act)).
Special provisions apply to children who are witnesses in certain proceedings (including for sexual offences).
Adult complainants to sexual offences may now be declared special witnesses. Children under 16 are automatically declared to be a special witness.
If a witness is a special witness, the court may make any of the following orders:
- that the accused be excluded from the court or obscured (e.g. by a screen) while the witness is giving evidence or while the witness is otherwise required to be present
- that all persons other than those specified by the court be excluded while the witness is giving evidence
- that a person approved by the court be present to give emotional support to the witness while giving evidence or while they are otherwise required to be in court
- that the witness give evidence in a room other than the room in which they are sitting and from which all persons other than those specified by the court are excluded
- that the witness give videorecorded evidence or evidence via a closed-circuit television link
- any other orders the court considers appropriate including rest breaks for the witness or a direction that questions for the witness be kept simple, be limited by time generally or by number on a particular issue.
Preliminary complaint evidence
Generally, evidence of a statement made to another person is not admissible. One exception to this rule is evidence of a recent (or fresh) complaint in trials for sexual offences. Section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) (Sexual Offences Act) permits a witness to give evidence of what a complainant said to them very soon after a sexual assault was alleged to have occurred. This rule of recent complaint is based on the historical notion that the complainant of a sexual offence will complain to someone about the assault at the first reasonable opportunity.
The evidence of a recent complaint does not prove any fact in the case (e.g. whether the complainant did or did not consent), but may act to support the complainant’s credibility.
Section 4A of the Sexual Offences Act provides that evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the accused is admissible in evidence, regardless of when the preliminary complaint was made. The court can exclude the evidence if it is satisfied that it would be unfair to the defendant to admit it (s 4A(3) Sexual Offences Act). A ‘complaint’ is defined to include a disclosure and a ‘preliminary complaint’. A preliminary complaint means any complaint made prior to the complainant’s first formal witness statement to a police officer given in anticipation of a criminal proceeding in relation to the alleged offence (s 4A(6) Sexual Offences Act). Examples include a complaint made to a parent, teacher or school guidance officer.
Evidence of sexual experience
Under the Sexual Offences Act, the circumstances in which a complainant may be asked during trials for sexual offences about their sexual experience with the accused and other persons, as well as their general sexual reputation, is very limited. Questions and comments about the complainant’s sexual reputation are prohibited entirely (s 4 Sexual Offences Act). Questions of the complainant regarding their prior sexual history with either the accused or any other person may only be asked with the leave (permission) of the court (s 4 Sexual Offences Act).
Cross-examination by the accused in person
An unrepresented accused is prohibited from cross-examining in person any children under 16 years of age, persons with an impairment of the mind and victims of sexual offences or violent crimes (s 21N Evidence Act). These persons are called protected witnesses (s 21M Evidence Act). A grant of Legal Aid will be given to an accused to allow cross-examination of these witnesses by a lawyer (s 21P Evidence Act) (see generally ss 21L–21S Evidence Act).
Proceedings in private
Proceedings for sexual offences usually occur in closed court.
Section 5 of the Sexual Offences Act excludes members of the public from the courtroom when the complainant is giving evidence about an alleged sexual offence. Publication of the complainant’s identity is also prohibited (s 6 Sexual Offences Act).