Helping jurors to understand: Misconceptions about delay in making a complaint

Abstract

In a sexual offence case, jurors may have misconceptions that inappropriately affect their evaluation of a complainant’s evidence, for example, where the complainant has not complained at the first reasonable opportunity to do so. In Victoria, a judge may assist jurors to understand why a complainant may not have complained earlier by providing examples that are not drawn from the evidence. The Victorian Court of Appeal has recently questioned the legislative authority to do this. This article answers the Court’s question. It also considers the Court’s obligations to address this misconception, having regard to a complainant’s interests, to ensure a fair trial.