R v KSC (No 2) [2008] NSWDC 172

R v KSC (No 2) [2008] NSWDC 172

Although at common law the delay may have required a warning, s 294 changed the law and a warning that delay in complaint is relevant to credibility may only be given if sufficient evidence justifies it. The complainant gave evidence explaining the delay, including fear of the accused and circumstances consistent with that fear. The jury would already be required to receive directions about delay, possible reasons for not complaining, special scrutiny of the complainant's evidence, Markuleski caution, forensic disadvantage, and the Crown's burden of proof. A specific warning that delay affected credibility was superfluous and the evidence was not sufficient to justify it.

Jurisdiction
Australia
Judgment Date
30 June 2008
Procedural Posture
Criminal Trial for Prescribed Sexual Offences / Defence Application for Jury Direction During Trial
Outcome
Application refused.
Legal Topics
['sexual Assault' 'complaint Evidence' 'delay in Complaint' 'credibility' 'jury Directions' 'forensic Disadvantage']
['criminal Law' 'evidence'] ['sexual Assault' 'complaint Evidence' 'delay in Complaint' 'credibility' 'jury Directions' 'forensic Disadvantage']

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Procedural Posture

Criminal Trial for Prescribed Sexual Offences / Defence Application for Jury Direction During Trial

Legal Issues

  1. 1 ["Whether the jury should be directed that delay in complaint is relevant to the complainant's credibility under s 294(2)(c) of the Criminal Procedure Act 1986." "Whether there was sufficient evidence to justify a warning that the complainant's credit may be affected by delay in complaint."]

Ratio Decidendi

Although at common law the delay may have required a warning, s 294 changed the law and a warning that delay in complaint is relevant to credibility may only be given if sufficient evidence justifies it. The complainant gave evidence explaining the delay, including fear of the accused and circumstances consistent with that fear. The jury would already be required to receive directions about delay, possible reasons for not complaining, special scrutiny of the complainant's evidence, Markuleski caution, forensic disadvantage, and the Crown's burden of proof. A specific warning that delay affected credibility was superfluous and the evidence was not sufficient to justify it.

Court Disposition

Application refused.

Orders

  • ["The defence application that the jury be given a direction that delay in complaint is relevant to the complainant's credibility is refused."]