sosocurious
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Was having a read of this journal article.
Interesting read.
Gave me a better understanding of the between dates.
Responding to Historical Child Sexual Abuse : A prosecution perspective on current challenges and future direction.
Proving dates can then become a focus of the trial, rather than certainty about the
offending conduct. Why must this be so?
A regular step in a prosecution for historical child sexual abuse charges is an application
by the Crown to amend the indictment. Typically, a historical offence is charged ‘between
dates’. That means that the complainant is unable to nominate the precise date upon which
an offence occurred, so the Crown expresses two dates between which the offence is alleged
to have occurred.
It is rare that a victim can say ‘on my 12th birthday’ an offence happened.
It is much more likely to be something along the lines of ‘when I was in 4th class and Mrs
Dyers was my teacher [an offence] happened’. Depending on the charge, the date or date
range asserted can be something that must itself be proved beyond reasonable doubt. Such a
charge is known as a charge where ‘time is of the essence’.
Such charges generally contain the age of the victim as an element of the offence.
For other charges, the dates are merely a
particular and need not be proved beyond reasonable doubt.
During a trial, it is not uncommon for there to be refinement of the dates of offending or
even a significant change in the evidence about when the offending occurred. The Crown
cannot then simply amend the dates specified in the indictment without the Court’s leave or
the accused’s consent (Criminal Procedure Act 1986 (NSW) ss 20–21).
An application to do so must be made and it is rare that the accused consents.
Many applications are refused, leading to a directed verdict of acquittal on that particular count.
A typical example might be
that a complainant has remembered an offence as happening when they were 14 years old
and living at Starling Street in a house with a pool. Late in the trial, the accused produces
records showing that the pool was built at Starling Street when the victim was in fact
15 years old (then a different offence, given the change in the victim’s age). Clearly, the
complainant was mistaken and the offence actually occurred a year later. The defence is
usually ‘I didn’t do it’ and not ‘I did it in 1986, not 1985’. Notwithstanding this, if satisfied
that an offence fell outside the range of dates specified in the indictment, time is of the
essence for that offence, and leave to amend the indictment is refused, then the trial judge
will direct a verdict of not guilty. Is this fair and just? An offender typically encourages, if
not in reality forces, a child not to complain (Craven, Brown and Gilchrist 2006:295). Time
passes and the child, now an adult, cannot remember if the accused had sexual intercourse
with them at age 14 or 15. Why should the offender be able to escape punishment even
though a jury may have been satisfied beyond reasonable doubt that the offending conduct
did occur?
http://www.austlii.edu.au/au/journals/CICrimJust/2014/13.pdf
Interesting read.
Gave me a better understanding of the between dates.
Responding to Historical Child Sexual Abuse : A prosecution perspective on current challenges and future direction.
Proving dates can then become a focus of the trial, rather than certainty about the
offending conduct. Why must this be so?
A regular step in a prosecution for historical child sexual abuse charges is an application
by the Crown to amend the indictment. Typically, a historical offence is charged ‘between
dates’. That means that the complainant is unable to nominate the precise date upon which
an offence occurred, so the Crown expresses two dates between which the offence is alleged
to have occurred.
It is rare that a victim can say ‘on my 12th birthday’ an offence happened.
It is much more likely to be something along the lines of ‘when I was in 4th class and Mrs
Dyers was my teacher [an offence] happened’. Depending on the charge, the date or date
range asserted can be something that must itself be proved beyond reasonable doubt. Such a
charge is known as a charge where ‘time is of the essence’.
Such charges generally contain the age of the victim as an element of the offence.
For other charges, the dates are merely a
particular and need not be proved beyond reasonable doubt.
During a trial, it is not uncommon for there to be refinement of the dates of offending or
even a significant change in the evidence about when the offending occurred. The Crown
cannot then simply amend the dates specified in the indictment without the Court’s leave or
the accused’s consent (Criminal Procedure Act 1986 (NSW) ss 20–21).
An application to do so must be made and it is rare that the accused consents.
Many applications are refused, leading to a directed verdict of acquittal on that particular count.
A typical example might be
that a complainant has remembered an offence as happening when they were 14 years old
and living at Starling Street in a house with a pool. Late in the trial, the accused produces
records showing that the pool was built at Starling Street when the victim was in fact
15 years old (then a different offence, given the change in the victim’s age). Clearly, the
complainant was mistaken and the offence actually occurred a year later. The defence is
usually ‘I didn’t do it’ and not ‘I did it in 1986, not 1985’. Notwithstanding this, if satisfied
that an offence fell outside the range of dates specified in the indictment, time is of the
essence for that offence, and leave to amend the indictment is refused, then the trial judge
will direct a verdict of not guilty. Is this fair and just? An offender typically encourages, if
not in reality forces, a child not to complain (Craven, Brown and Gilchrist 2006:295). Time
passes and the child, now an adult, cannot remember if the accused had sexual intercourse
with them at age 14 or 15. Why should the offender be able to escape punishment even
though a jury may have been satisfied beyond reasonable doubt that the offending conduct
did occur?
http://www.austlii.edu.au/au/journals/CICrimJust/2014/13.pdf
