9. Sexual crimes guidelines

These guidelines recognise the need for sensitivity when dealing with the victims of sexual offences and aim to ensure the provision of advice to investigating authorities, the recommendation for prosecution and the disposition of matters is completed in a timely manner. The Tasmanian Charter of Rights for Victims of Crime provides the background to this approach.

These guidelines also recognise that, as with any other crime, a prosecution can only proceed in accordance with the prosecution guidelines. In particular, a prosecution cannot proceed unless, on the available, relevant and admissible evidence, there is a reasonable prospect of conviction (s310(4) of the Criminal Code).

9.1 Charging advice to Tasmania Police

The Office of the Director of Public Prosecutions provides an advice service to Tasmania Police prior to charging a person(s) with sexual assault crimes in circumstances where there may be a question as to the appropriateness of charges or the sufficiency of evidence.

The advice is provided for any sexual assault crime that could be prosecuted by indictment but also includes crimes where a defendant may elect, pursuant to s72 of the Justices Act 1959, to have the matter prosecuted summarily or where the defendant is a youth and the crime is not a prescribed offence (s161 of the Youth Justice Act 1997).

Advice will only be provided upon receipt of a police file from the inspector in charge of the relevant division of Tasmania Police.

The request for advice is to be made to the Office and marked to the attention of the Sexual Assault Liaison Clerk (SALC) (a person nominated by the Director to manage sexual assault and family violence offence referrals).

The police file must contain all the available evidence including a covering letter outlining the nature of the request for advice and, where possible, a summary of the material.

The request for advice and the police file is assigned to a designated senior prosecutor who possesses sufficient relevant experience to review the file in order to make a determination as to whether the laying of charges ought be recommended.

Once the police file is reviewed, the advice is provided to Tasmania Police in writing. The police file will ordinarily be returned with the letter of advice.

All advice is provided upon consideration of whether there is a reasonable prospect of conviction and is based on all the available evidence, including that unfavourable to the prosecution. Where appropriate, the advice will refer to any legal principle or authority that would impact on the admissibility of evidence or the likelihood of conviction.

Ordinarily, the advice returned with the police file will be provided within a period of six weeks, unless the nature of the case is of some complexity.

The letter of advice will identify the evidence considered, including not only the witness statements and references to the subject report prepared by the investigating officer but also any other sources of relevant information.

Ideally, where the statement of the complainant comprises an audio and/or visual record of interview they will be viewed. However, recourse will sometimes be had to the summaries provided in the subject report (or similar) without recourse to the actual interview. In these circumstances, this will be stated in the letter of advice. Similarly, if an accused has participated in an audio and/or visual record of interview, recourse may be had to the summary provided in the subject report. Again, if so, this will be stated in the letter of advice.

If further investigations are considered appropriate before providing the final advice, the file will be returned with an interim opinion. The investigating officer will be invited to resubmit the file once those investigations have been carried out.

In most cases, the decision whether or not to charge is based upon the complainant's account and an assessment of the weight of any corroborating evidence. In most cases, it is sufficient to base the assessment of the evidence upon the written statement of the complainant or upon review of the video statement of the complainant.

However, in some circumstances, it may be desirable to meet with the complainant prior to providing charging advice to police in order to clarify aspects of their statement, particularly if there are internal or external inconsistencies in their account. In such cases, an assessment of the credibility of the complaint may have an impact upon the decision to charge.

A physical meeting with the complainant need not be undertaken, especially if he or she resides in another jurisdiction. It is sufficient for video link facilities to be used or contact made via other audio and/or visual means. Consideration should be had as to whether or not a Witness Assistance Service (WAS) officer should be involved to provide support for the complainant during the briefing.

9.2 Individual charges or persistent sexual abuse of a child or young person

Normally the law requires that a count in an indictment alleges one specific identified occasion where it is alleged that criminal conduct occurred. It is not sufficient to particularise a time period in the indictment and lead evidence of numerous specific acts or evidence of a general nature alleging crimes of a particular type without specifying an individual occasion (see S v R (1989) 168 CLR 266). This can lead to difficulty, particularly with child complainants where the complaint is of many allegations of unlawful sexual acts over many years. As a result, Parliament has enacted the offence of persistent sexual abuse of a child [or young person] (s125A of the Criminal Code) whereby it is only necessary to particularise three separate unlawful sexual acts, only one of which has to have occurred in this State (s125A(6A)(b) of the Criminal Code). It is not necessary to prove the date or the exact circumstances in which any of the unlawful sexual acts were committed (s125A(4)(b) of the Criminal Code).

The charge of persistent sexual abuse of a child [or young person] can only be recommended after authorisation is obtained from the Director (s125A(7)). This will depend on an assessment as to whether at least three separate unlawful sexual acts have been identified, as defined in s125A. When taking statements from a complainant, police and prosecutors should ask the complainant to particularise as many individual episodes of unlawful acts as possible.

Ordinarily when at least three unlawful sexual acts are identified as occurring within a course of unlawful sexual conduct the charge of persistent sexual abuse will be recommended.

However, there may be instances where notwithstanding that more than three separate acts can be identified it is considered inappropriate to charge with the s125A crime. This will generally be the case where all allegations can be individually particularised. In the event that individual charges are preferred, there will be a recommendation as to the number and nature of the acts that ought to be particularised as crimes on the complaint.

In cases where a request has been made and prosecution under s125A is authorised, the authority will be provided at the time of the letter of advice recommending the appropriate charges to be laid.

9.3 Providing oral advice

In exceptional circumstances, and if urgent advice is required, i.e. where a complainant's safety may be at risk, a suspect is in custody, there is the possibility of scene or evidence contamination or there is a risk the suspect may flee the jurisdiction, such advice may be communicated to the investigating officer orally. However, oral advice should always be confirmed in writing.

9.4 Decision not to charge

When Tasmania Police charge a person they need only be satisfied that the legal ingredients are present to justify the laying of a complaint, i.e. a prima facie case has been made out. This standard is less than the standard required to be met when assessing whether there is a reasonable prospect of conviction.

It is not desirable to advise Tasmania Police to charge a person unless, at the time of giving the advice, the evidence would be capable of raising a reasonable prospect of conviction. To do otherwise would unrealistically raise the expectations of the complainant. A letter of advice recommending that charges ought not be laid will include an explanation to the investigating officer outlining why it has been determined that upon the evidence currently provided no charges are recommended. It will also provide sufficient information to enable the investigating officer to explain the decision to interested parties, including the complainant.

In circumstances where a decision is made to recommend no charges, the designated senior prosecutor (unless he or she is a Principal Crown Counsel) will have the advice reviewed by a member of the Committee before it is sent to the investigating officer.

The complainant and/or their legal representative is not ordinarily entitled to receive a copy of the letter advising Tasmania Police not to charge a suspect with a sexual assault crime. However, in some cases, it may be appropriate to send a letter to the complainant explaining the reasons for the decision or to meet with them for the purpose of explaining the reasons behind the decision.

Release of the letter of advice can only be authorised by the Director.

There is no right of appeal against a decision not to recommend charges. However, the complainant can request a review of the decision. The complainant can also request the Director to review the decision, if it was not made by the Director in the first place.

9.5 Recommendation to prosecute or discontinue

The following guidelines are intended to operate after charging by Tasmania Police. They should not in any way be taken to discourage earlier consultation between investigating officers and the Office.

The charging of a person with sexual crimes creates a particular expectation in the complainant that such charges will be proceeded with and raises particular disappointment and possibly further trauma if they are not. Therefore, where possible, consultation before charging is desirable.

As soon as a person is charged with an indictable sexual crime the Office must be notified of the relevant details by email. This is to ensure that the Office complies with the Tasmanian Charter of Rights for Victims of Crime.

The notification is to be emailed to the Office by the senior investigating officer within four working days of charging a suspect. The notification must include the following details:

• the date of the notification
• the date of the offence(s)
• the date of arrest/charging
• a list of the crimes charged
• the original appearance date in court, and any subsequent dates
• whether the accused has been remanded in custody or released on bail with conditions and, if so, an outline of the conditions
• the accused's personal details, including their full name, residential address, date of birth, occupation and relationship to the complainant
• the complainant's personal details, including their full name, residential address, date of birth and contact numbers
• an outline of the circumstances of the offence(s)
• details of any interview conducted with the accused/co-accused, including the date of the interview, a DVD reference number and a summary of admissions made during the course of the interview
• the name of the accused's legal representative, if known
• the nature of the statement made by the complainant, including whether it was obtained by audio visual means
• a summary of the forensic or medical evidence obtained
• a summary of the major corroborative witnesses, together with personal details, including their full names, residential addresses and contact numbers
• the names and contact details of the main investigating officers

If copies of the following documents are unable to be forwarded at the time of the notification, they are to be forwarded within seven days of the notification:

• the complainant's statement (or copy DVD, if it is an audio visual statement)
• the complaint containing the charges
• the accused's interview
• the medical report (a copy of the sexual assault investigation kit (SAIK) will suffice)

Where documents are subsequently released to the accused or defence counsel pursuant to the Right to Information Act 2009 or ss56(3) or 57(3) of the Justices Act 1959, a scanned copy of those documents should simultaneously be emailed to the Office for the attention of the SALC.

The SALC will contact the complainant by letter within two days of receipt of the notification providing advice as to the usual course of proceedings, with an assurance that the matter will be dealt with as speedily as possible. If the complainant is a young child, or there is a reason why making meaningful direct contact would be impractical or undesirable, or if any other exceptional circumstances exist, such contact will be with the parents or guardians of the complainant. In every other circumstance contact will be established directly with the complainant.

Police Prosecution Services will retain carriage of the matter until an election is made.

It is recognised that complainants in sexual offence crimes are particularly vulnerable to the criminal justice system process. The Office recognises the importance of keeping the complainant informed of the decision to prosecute or to discharge.

The complainant, where possible, is to be kept informed of developments in the progress of the matter. The SALC will forward a copy of the notification to the WAS. The WAS manager will allocate the matter to a WAS officer who then has the responsibility of contacting the complainant and is available to provide updates, e.g. the name of the prosecutor allocated to their case, anticipated dates for preliminary proceedings, meetings with the prosecutor and/or the date of trial.

The decision to prosecute or recommend discharge is considered in the same way as for any indictable crime (see 2. Decision to prosecute - considerations). In most instances, it will involve a discussion with the complainant before a final determination is made.

In the event it is determined that an indictment should not be filed, the complainant will be informed of that decision as early as possible. This is conducted by inviting the complainant into the Office to enable those reasons to be explained to them by the prosecutor. Where possible, a WAS officer will be present when this takes place. If this is not possible, the notification may be communicated in writing by the prosecutor. Again, the complainant can request the Director to review the decision and they should be informed of this right.

The Assistant Commissioner (Operations) is also notified in writing of the decision not to file an indictment. The notification will explain the reasons why there is no reasonable prospect of conviction or why the matter will not be prosecuted.

Once a final decision has been made to discharge an accused, the decision will not be reviewed unless it is plainly wrong, i.e. it was based on incorrect or irrelevant material, or it was unreasonable, or unless new evidence becomes available.

9.6 Prosecuting sexual assault crimes

The prosecution of sexual crimes must not be undertaken without consideration of the provisions of the Evidence (Children and Special Witnesses) Act 2001. In appropriate circumstances, there should be a pre-recording of the evidence of child witnesses or sexual assault victims who are particularly vulnerable.

Where consent is not an element of the offence or an available defence, the language of consent should not be used by prosecutors in any sexual assault prosecution. In respect to prosecutions for persistent sexual abuse of a child or young person, prosecutors must identify the unlawful acts by reference to the crime.

Complainants in sexual crimes must be given the opportunity to prepare a victim impact statement (VIS). This is not ordinarily done by the prosecutor. The services which provide assistance to the complainant are the Witness Assistance Service (WAS) or the Victims of Crime Service (VOCS).

Where there is material in a VIS that is inadmissible, then it is the duty of the prosecutor to either make appropriate amendments to the VIS, or draw the material to the attention of the presiding judicial officer.

A copy of the VIS must be provided to the accused before it is presented to the judicial officer (s81A of the Sentencing Act 1997 and rules 4-7 of the Criminal Rules 2006).

Where there has been an appeal against conviction and/or sentence, the complainant will ordinarily be notified of the lodging of the appeal, provided with an explanation of the appeal process and advised as to the outcome of the appeal.