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

Addressing misconceptions about delay in making a complaint

The ‘purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters’. ² However, people’s experiences and knowledge about sexual offences may include misconceptions. Misconceptions, or ‘rape myths’, are ‘oversimplified and rigid cognitive schemas that focus on the victim, the act, and the perpetrator’. ³ Juror misconceptions about sexual offences appear to be one of the causes of high attrition rates and low conviction rates in sexual offence cases. ⁴ These misconceptions include that a ‘real’ rape victim will report a rape at the first reasonable opportunity to do so. ⁵ This misconception is one of the oldest misconceptions that arises in sexual offence cases. ⁶ However, research shows that delay in making a complaint is common, particularly where the complainant is a child at the time of the alleged offence. ⁷

The credibility of a complainant is often critical in the prosecution of sexual offences. Jurors assess the credibility of the complainant by comparing them with what they expect a genuine or ‘real’ complainant would have done. ⁸ If jurors’ expectations of a real complainant are mistaken, then they will not assess the evidence of the complainant on its ‘legal and factual merits’. ⁹

If there is a real, and not remote, possibility that a juror will not decide a case on its legal and factual merits, then a trial will not be fair. ¹⁰ A fair trial involves a triangulation of interests, which include the rights of the accused and the interests of victims and the community. ¹¹ Therefore, courts must address misconceptions that jurors may have about complainants to ensure that complainants are treated fairly and that jurors decide the issues on their legal and factual merits. ¹²

In many jurisdictions, judges may inform the jury that there may be ‘good reasons’ why a complainant may delay in making a complaint. ¹³ The purpose of the direction is to alert the jury to the:

difficulty that many complainants, particularly children, have first in bringing such matters to light, and then in articulating in the witness box the painful self reflections that they may have felt after the offence occurred… ¹⁴

In most jurisdictions, this ‘good reasons’ direction must remain at this more abstract level. The judge may only refer to examples of reasons for delay in making a complaint that have been given in evidence – usually by the complainant or an expert witness. ¹⁵ However, in Victoria, a judge’s exemplification of a ‘good reasons’ direction need not be drawn from the evidence. The judge may, for example, indicate that the complainant may have delayed in making a complaint because they may have: been ignorant about the nature of the act performed upon them; felt powerless; felt responsible, guilty or to blame for the acts; felt shame and embarrassment; feared discouragement or disbelief on the part of family and of officials. ¹⁶

Has Victoria’s legislative power to give reasons changed?

Prior to the introduction of the JDA, Victoria’s legislation provided that a judge could inform the jury that there may be ‘good reasons’ why a complainant delayed in making a complaint. ¹⁷ Recently, the Victorian Court of Appeal questioned, without deciding, whether parliament intended ‘judges to have the same scope for giving directions under s 53 [of the JDA] as they had under the predecessor provision’. ¹⁸ The Court identified three main differences between the new and previous provisions.

First, the new provision says that the judge may ‘direct the jury’, but the previous provision said that the judge must ‘inform the jury’ about ‘good reasons’. McLeish JA said that the word ‘inform’ indicated that parliament intended that the judge should expand on what ‘good reasons’ may be so that the jury would better understand the ‘good reasons’ direction. ¹⁹ A report from the Department of Justice and Regulation concerning the Bill states that the new provision was based on the previous provision but was ‘modified for consistency with the jury direction request provisions’. ²⁰ Some sections in the JDA use the word ‘inform’, rather than ‘direct’, for matters that the judge needs to explain to the jury. ²¹ However, even when a judge ‘directs’ the jury about potentially incriminating post-offence conduct under the JDA, Victoria’s Criminal Charge Book says that the judge should provide the jury with possible motivations for that conduct. These motivations need not be drawn from the evidence. ²²

The second difference between the provisions is that, in contrast to the previous provision, the new provision does not expressly refer to, and constrain, judicial comments about delay. ²³ The previous provisions indicated that the judge could comment on the evidence if doing so was ‘appropriate … in the interests of justice’, but a judge was prohibited from commenting on the reliability of the evidence if there was ‘no reason to do so … to ensure a fair trial’. ²⁴

The previous provisions limited when a judge was required to give a ‘Kilby/Crofts’ direction. Where a complainant did not make a complaint at the earliest reasonable opportunity to do so, a ‘Kilby/Crofts’ direction said that this delay may cast doubt on the reliability of the complainant’s evidence and the jury may consider this when evaluating the complainant’s credibility. ²⁵ The ‘Kilby/Crofts’ direction has been strongly criticised. ²⁶ While the previous provision restricted the circumstances in which a ‘Kilby/Crofts’ direction was required, the JDA expressly abolished any requirement to give the direction. ²⁷

The new provisions also extend prohibitions on what a judge may say or suggest where a complainant delays in making a complaint. For example, a ‘judge must not say, or suggest in any way, to the jury’ that because the complainant delayed in making a complaint that ‘it would be dangerous or unsafe to convict the accused’ or that the ‘complainant’s evidence should be scrutinised with great care’. ²⁸

The third difference between the provisions is that the new provisions are structured differently with the ‘good reasons’ direction being separated from the new general direction addressing misconceptions about delay. ²⁹ This direction provides that: there is no typical, proper, or normal response to a sexual offence; some people may complain immediately, some people may not complain for some time; and delay in complaint is a common occurrence. ³⁰

The ‘good reasons’ direction and the new directions are separate because there is a different process triggering when a judge may give these directions. The main jury directions request provisions in the JDA govern when a judge may give a ‘good reasons’ direction and are structured around the close of evidence in the trial. ³¹ However, the new general directions about delay operate outside of this process. The judge may give these directions before any evidence is adduced in the trial and the judge may give this direction without any request for it from one of the parties. ³²

A fourth difference, that was not discussed in Ford, concerns the context and purpose of the jury directions reforms. ³³ Set out in the guiding principles, one of the key objectives of the JDA is to make it easier for the jury to ‘understand and apply jury directions’. ³⁴ Compared to the previous provisions, the JDA further restricts what a judge may say that is consistent with the misconception about delay and enables a judge to say more to address this misconception. The second reading speech for the Jury Directions Bill 2015 did not state that there was any intention to change the purpose or scope of the ‘good reasons’ direction. If parliament had intended that a judge should no longer exemplify the ‘good reasons’ direction, it could have expressly said so as it did when abolishing other directions. ³⁵

Accordingly, parliament appears to have intended that a judge should have the same scope for exemplifying ‘good reasons’ directions as a judge had under the previous provisions.

While the difference between informing and directing a jury may not appear to be significant, this also depends upon whether the exemplification of a ‘good reasons’ direction is a direction, a comment, or something else.

Exemplifications: Directions, comments or speculation?

Judicial guidance to the jury usually involves a direction or a comment. Directions normally concern procedural or substantive laws, and comments involve opinions about the evidence. ³⁶ A jury must follow a direction but may choose not to follow a judicial comment. ³⁷

Willis and McMahon argue that the exemplification of ‘good reasons’ affects the impartiality of the trial judge because it involves the judge determining the facts and inviting the jury to speculate. ³⁸ In Ford, the Victorian Court of Appeal said they were ‘inclined to think’ that there was ‘force’ in this point. ³⁹

In a decision concerning the previous provision, the majority of the Victorian Court of Appeal in Hermanus v The Queen ⁴⁰ concluded that the exemplifications were part of the directions. Osborn JA indicated that the exemplification of ‘good reasons’ for delay was analogous to directions concerning post-offence conduct, where the judge must explain that there might be reasons why, for example, the accused told lies. ⁴¹ The High Court of Australia has suggested examples of reasons that the judge should direct the jury about in this situation (eg, that a ‘lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence’). ⁴² These reasons may include matters not drawn from the evidence. ⁴³ Judges provide similar exemplifications for post-offence conduct evidence in England and Wales, ⁴⁴ and in Canada. ⁴⁵ Thus, judicial guidance to explain a direction by suggesting reasons not drawn from the evidence is an established way to ensure a fair trial for the accused.

Further, unlike a comment, an exemplification does not involve an opinion or observation about what significance to attach, or not to attach, to evidence adduced in the trial. ⁴⁶ It provides general or framework information that may help jurors to understand or evaluate the evidence in the case. Where an exemplification is not drawn from the evidence, it is not evidence. A jury may properly consider whether a complainant would have, for example, felt embarrassed, powerless or fearful about the impact of a complaint on their family, without requiring evidence specifically to that effect. And the jury may do so regardless of whether the judge says that they may.

These kinds of matters are commonly, and properly, considered by jurors in bringing their life experience to the jury room when assessing the evidence. This does not involve speculating about the evidence – it forms part of the jury’s evaluation of what evidence they do and do not accept. Exemplifications seek to address mistakes in the knowledge that jurors have and use as part of their life experience when evaluating evidence. In both England and Wales, ⁴⁷ and in Canada, ⁴⁸ judges give ‘directions’ to address misconceptions about delay, which are the same as exemplifications in Victoria. Accordingly, Victoria’s exemplifications should also be regarded as directions, or at least as part of the directions. The next section discusses whether exemplifications, in general terms, work appropriately.

Do exemplifications enhance the complainant’s credibility?

Victoria’s model ‘good reasons’ direction also serves as an introduction to exemplifications. It provides:

I direct as a matter of law that there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence. ⁴⁹

This introduction is unclear. A jury must follow a judge’s directions. Therefore, stating that as a matter of law there may be good reasons, means that the jury must accept that there may be good reasons. While this is legally correct, whether there are good reasons for delay in each case is a matter of fact for the jury to determine. It would intrude into the jury’s fact-finding function if jurors understood the direction to mean that, as a matter of law, there are (or must be) good reasons why the complainant delayed in making a complaint. ⁵⁰ This interpretation also implies that the allegation is true. Avoiding reference to the direction being a matter of law would avoid this unintended interpretation.

Contributing to this problem is a narrow conception of a judge’s guidance: that a judge gives either directions or comments and must distinguish between the two so that jurors know whether they must follow, or may reject, what the judge says. However, trying to categorise exemplifications for the jury should not limit conceptions of the judge’s task, should not constrain a judge’s guidance, and should not risk misleading the jury. The judge’s overriding responsibility is to ensure a fair trial before an impartial jury that understands its task.

If judges clearly explain how exemplifications may help jurors with their task, how will this affect a complainant’s credibility? In Crofts v The Queen, the High Court of Australia said that parliaments had introduced the ‘good reasons’ direction to balance ‘Kilby’ directions, which included that ‘complainants of sexual misconduct were specially suspect … and delay in complaining invariably critical’. ⁵¹ The High Court said that the purpose of the ‘good reasons’ direction was ‘not to convert complainants … into an especially trustworthy class of witnesses’. ⁵² As discussed above, the JDA has removed the balancing role of the ‘good reasons’ directions by abolishing the need for a ‘Kilby/Crofts’ direction. In doing so, does the JDA treat complainants as ‘an especially trustworthy class of witnesses’?

The Kilby direction entrenched misconceptions about delay in making a complaint. However, even without this direction, some jurors will hold this misconception. ⁵³ Therefore, as discussed above, Victoria’s JDA introduced new general directions about delay that a judge may give before any evidence is adduced. These directions do not ‘balance’ a Kilby direction. However, they aim to address misconceptions that a juror may already have without a Kilby direction.

Exemplifications should be general in nature and uncontroversial. ⁵⁴ The purpose of challenging misconceptions is ‘to restore the complainant’s credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance’. ⁵⁵ If a juror does not hold the misconception, the directions should simply confirm what they already know. Accordingly, exemplifications should not enhance the complainant’s credibility nor make complainants an ‘especially trustworthy class of witnesses’. However, in Ford, the Court questioned whether there were specific problems with two of the exemplifications used in Victoria. ⁵⁶

Problems with two exemplifications

One exemplification indicates that a complainant may ‘employ psychological strategies to cope with the abuse, such as repression or suppression of the acts’. ⁵⁷ In psychology, a ‘repressed memory’ refers to ‘the idea that a traumatic memory can be stored yet inaccessibly blocked away from conscious knowledge’. ⁵⁸ Whether repressed memories exist and, if so, what their role is in memory, is highly controversial. ⁵⁹ Because ‘repressed memory’ is controversial, it is not appropriate to refer to it in an exemplification.

Further, memory ‘suppression’ is a term of art in psychology. In Ford, the trial judge added to this exemplification stating that ‘victims often or sometimes employ psychological strategies to cope with abuse, such as … disassociation’. ⁶⁰ ‘Disassociation’ is a medical term and expert evidence should be required to support reference to it, and the frequency with which it occurs.

Judges in England and Wales express a similar idea in more common terms: a child may ‘simply blank what happened out and get on with their lives until the point comes when they feel ready or the need to speak out’. ⁶¹ This layperson’s description avoids the problems of a judge using (undefined) medical terms of art and does not involve the controversy of ‘repressed’ memory.

Another exemplification provides that a complainant may delay in making a complaint because they have been ‘sworn to secrecy or compelled to secrecy by threats’ made by the accused. ⁶² This exemplification may suggest to jurors that the judge knows something about the accused’s conduct that the jury does not. The conduct described in this exemplification is serious: for sentencing purposes, this conduct would constitute an aggravating factor. ⁶³ In the absence of evidence and the opportunity for the accused to challenge this suggestion, this exemplification would be unfairly prejudicial to the accused and the judge would be inviting the jury to speculate. This is ‘simply inappropriate’. ⁶⁴

Although not raised in Ford, another question is whether any legislative support or nexus is necessary to authorise a judge to give exemplifications to address misconceptions about delay in making a complaint.

Is legislative support necessary to address misconceptions about delay?

When introducing legislation to provide for ‘good reasons’ directions in Scotland, the Cabinet Secretary for Justice said that ‘the courts have not been sufficiently innovative’ and therefore legislative intervention was required. ⁶⁵ In England and Wales, and Canada, judges may provide juries with information similar to Victoria’s exemplifications without any nexus to a statutory ‘good reasons’ direction. ⁶⁶ In England and Wales, these directions are given ‘to counter the risk of stereotypes and assumptions about sexual behaviour and reactions to non-consensual sexual conduct’ ⁶⁷ because they are ‘capable of leading to injustice’. ⁶⁸ Similarly in Canada, courts may direct the jury to dispel ‘the possibility that the jury might engage in stereotypical reasoning’. ⁶⁹

The approach in England and Wales, and in Canada, reflects the view that fairness to the complainant is a relevant fair trial consideration. Further, that it is part of the judge’s responsibility to prevent the jury from deciding a case based on stereotypes that lead to reasoning errors in the jury’s decision making process.

These fair trial considerations are also relevant in Australia. Misconceptions prevent a juror from bringing an impartial mind to the issues they must decide. ⁷⁰ Courts use jury directions to address the risk of errors in juror reasoning processes that may affect whether the accused receives a fair trial. Courts in Australia should also address misconceptions that risk jurors regarding a complainant with unwarranted scepticism and evaluating a complainant’s evidence based on mistaken premises about what a ‘real’ complainant would do. Addressing misconceptions would recognise the interests of the complainant, and the community, in determining what is necessary to ensure a fair trial. ⁷¹ Accordingly, a judge should not need a statutory power to give a ‘good reasons’ direction, together with exemplifications, to address misconceptions jurors may have about delay in making a complaint.

Although not raised in Ford, another important question is whether exemplifications do in fact help to address juror misconceptions.

Do exemplifications address juror misconceptions?

Research in England and Wales found that mock jurors who received judicial information about delay – which included a ‘good reasons’ direction – ‘were significantly more likely to say that they were untroubled by the three-day delay in [their] trial scenario’. ⁷² The number of mock jurors troubled by the delay dropped from 58 per cent to 23 per cent. ⁷³ In contrast to earlier research, ⁷⁴ this suggests that it is not necessary to explicitly link the more abstract general information in the ‘good reasons’ jury direction to the specific facts of the case to make inroads in challenging misconceptions about delay in making a complaint. ⁷⁵ However, 23 per cent of mock jurors were still troubled by a three-day delay. It is not known how many jurors would be troubled by a delay in making a complaint of 20 or more years, which is common where the complainant is a child and the alleged perpetrator is in a position of authority. ⁷⁶

There is no research focusing specifically on whether exemplifications help to address juror misconceptions. Exemplifications should help because providing concrete examples, rather than abstract information, helps jurors understand new information. ⁷⁷ Further, exemplifications may assist jurors because it can be difficult to know where assumptions, knowledge and inferences from their commonsense and experience end and speculation begins. ⁷⁸ However, addressing misconceptions in jurors’ cognitive schemas requires considerable care because doing so is ‘psychologically highly complex’, ‘fraught with danger’, and risks entrenching misconceptions. ⁷⁹

Conclusion

The Victorian Court of Appeal raised important questions about exemplifications of ‘good reasons’ directions. In answering these questions, I have concluded that the Victorian parliament did not intend to change how judges may exemplify a ‘good reasons’ directions. However, the model direction introducing exemplifications in Victoria’s Criminal Charge Book is misleading. And two of the exemplifications used – referring to a victim repressing or suppressing memory of the acts and the accused swearing or compelling the victim to secrecy – are inappropriate. Judges should not give these exemplifications to juries.

Examining these questions has raised other important issues. We do not know how effective exemplifications are, and whether they all work as intended, in addressing misconceptions. Research answering this question is essential. Further, questioning the legislative authority to give exemplifications in Victoria raises more fundamental questions for all Australian courts: what can and should courts do to address misconceptions in sexual offence cases, to recognise the fair trial interests of complainants?