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Complaint and Medical Examination Evidence in Sexual Assault Trials

NCJ Number
Judicial Officers' Bulletin Volume: 15 Issue: 8 Dated: September 2003 Pages: 63-64
James Wood
Date Published
September 2003
2 pages
After considering two important aspects of sexual assault trials in New South Wales (Australia) -- i.e., delay in or absence of a complaint, and the use of medical-examination evidence -- this article considers related problems in current legal requirements and practices and suggests reforms.
After reviewing appellate court decisions that bear upon judicial instructions to the jury, the author advises that it is appropriate to instruct juries that evidence regarding reasons for the delay in or absence of a complaint by the alleged victim can be taken into account in assessing the credibility of the alleged victim; however, the instructions to the jury should not invite speculation or suggest reasons that are not supported by evidence. It is also appropriate that the jury be instructed about the prejudicial effect of delay regarding the production of evidence by the defense to counter the charge, even if the reason for the delay is deemed by the jury to be credible. Absent the introduction of evidence at trial regarding credibility and prejudicial issues linked to the delay or absence of a complaint, however, such jury instructions are not warranted. Customarily, the prosecution calls as a witness the medical practitioner who conducted a sexual assault examination. There is debate, however, about the admissibility of the medical history taken because of its nature as hearsay testimony and because it may not be relevant to the facts at issue in the case. The author advises that the use of s 136 of the Evidence Act limits the use of a medical history as the basis for expert medical opinion and as proof of the truth of the facts asserted, thus removing the risk of unfair prejudice. When the evidence is neutral, in the sense of neither establishing nor excluding the commission of the offense, it will often be appropriate for it to be adduced to ensure that the jury does not speculate about the absence of a medical examination. 13 notes


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