Sex offences in Victoria can carry very serious consequences and you may get imprisoned or be registered on the sex offenders register. In addition to the legal consequences, the personal and professional ramifications of such charges can be life-changing.
In view of the seriousness of the matters involved, the right to a fair trial is of paramount importance at all stages of the proceedings.
As a sexual assault defence lawyer, they protect this right by ensuring the prosecution meets the high standard of proof, by challenging the reliability of evidence during cross-examination and by ensuring the accused has the capacity to make a full answer and defence.
Under the Charter of Human Rights and Responsibilities Act 2006, every person charged with a criminal offence in Victoria has the right to be presumed innocent and to a fair hearing.
That’s where the defence lawyer comes in, to make sure those protections are in place and upheld throughout the process.
Upholding the Presumption of Innocence
A fair trial is based on the presumption of innocence. A defence lawyer makes sure that the burden of proof remains with the prosecution, which must prove each element of the sexual offence beyond reasonable doubt.
If the threshold is not met, the accused has the right to an acquittal. The defence attorney looks for weaknesses in the Crown’s case and does not allow public opinion or assumptions to influence the result.
Rigorous and Ethical Cross-Examination
Cross-examination is one of the most significant tools of the defence lawyer. This enables the defence to establish whether the complainant’s evidence and/or story is reliable and credible and the evidence of other witnesses is also trustworthy and credible.
There are rules to prevent misleading, harassing or intimidating questioning in Confrontation, as set out in the Evidence Act 2008 (Victoria).
A defence lawyer works within these limits and looks out for inconsistencies in witness testimony, inconsistencies in memory and inconsistencies in the evidence when compared to the charges. This is essential to make sure that convictions are based on evidence and not unchallenged allegations.
Enforcing Consent Provisions
Consent is often pivotal in the defence in prosecutions for sexual offences. Victoria has specific statutory definitions of consent in the Crimes Act 1958 and consent must be given freely and voluntarily.
A defence lawyer has a vital part to play in helping to ensure the trial judge correctly directs the jury on this issue.
The defence may argue, where appropriate, that the accused had an honest and reasonable belief that consent had been given.
The lawyer ensures that the jury understands the legal framework for assessing consent and that the directions given by the judge accurately reflect the law.
Protecting Confidential Communications
Victorian law protects the medical and counselling records of a complainant very strictly under Part IIc of the Evidence (Miscellaneous Provisions) Act 1958.
Defence lawyers face complex procedural hurdles to gain access to any such records which might be relevant to the defence.
The process is a balancing act between the rights of the accused to a fair trial and the rights of the complainant to privacy.
A lawyer will seek disclosure of protected records only where they are directly relevant to the issues in dispute and the interests of justice so require. That means that the defence is wide but does not cover privileged communications.
Managing Pre-Trial and Jury Instructions
Defence lawyers also ensure the fairness of a trial by pointing out and challenging prejudicial evidence before it reaches the jury.
Applications to exclude material that is irrelevant, inflammatory or likely to create unfair bias against the accused are included.
At trial the defence, working with the presiding judge, seeks to get the correct directions to the jury as to how to evaluate the evidence, the correct application of the burden of proof and the perils of relying on unsupported evidence.
The Victorian Equal Opportunity and Human Rights Commission outlines the main protections for people involved in criminal proceedings, including the right to a fair hearing and an independent tribunal at all stages of the process.
Conclusion
A charge of sexual assault requires a strong and carefully managed defence to ensure that the trial is conducted in a fair manner.
A defence lawyer protects the rights of the accused throughout, whether by upholding the presumption of innocence, testing the evidence through cross-examination, or enforcing the consent provisions and shielding against prejudicial material.
It is important that you get professional and experienced lawyers at the earliest opportunity if you have been charged with a sexual offence in Victoria, as it will ensure you have your right to a fair trial upheld.
