Annual Report 2016-17

39 Providing legal information Explaining when a warning to the jury can be given about a child’s evidence and the effect of delay in a criminal trial In a sexual assault trial, there is often a long delay between when an offence is alleged to have occurred and when it is reported to police. The accused person may make an application that the judge direct the jury about the disadvantage he or she may suffer as a result of delay. The accused person may be at a disadvantage due to the death or inability to locate any potential witness or the loss or unavailability of any potential evidence. During the year, the NSW Court of Criminal Appeal † explained the circumstances where a direction can be given about such a disadvantage to the accused person. The focus of the direction to the jury is on the disadvantage to the accused person. The jury cannot make a generalised assumption about the reliability of the complainant’s evidence because of the delay. The judge must inform the jury of the nature of the disadvantage and the need to take that disadvantage into account when considering the evidence only when the judge is satisfied that the defendant has suffered a significant forensic disadvantage. The judge cannot suggest that it would be dangerous or unsafe to convict the accused person solely because of the delay or the disadvantage. Whether there has been a significant forensic disadvantage depends on the nature of the complaint and the extent of the delay in the circumstances of the case. The test is the consequences of the delay, not the extent of delay. In another important decision, ‡ the NSW Court of Criminal Appeal clarified the circumstances in which a trial judge may give a warning about the reliability of a child’s evidence in a criminal trial. Any warning can only focus on matters relevant to the particular child complainant in the specific circumstances of the case and not upon the mere fact that the witness is a child or an inherent feature of children more generally. A judge may decline to give a warning for matters evident to the jury which the jury can assess without assistance. To advise judges about these important court decisions, we amended the commentary and relevant directions in the Criminal Trial Courts Bench Book . We also summarised the decisions and published these as news items on JIRS. Case study † TO v R [2017] NSWCCA 12. ‡ AL v R [2017] NSWCCA 34.