Victoria’s top court warns historical abuse allegations should only be prosecuted in ‘rare’ cases

Victoria’s top court warns that historical abuse claims should only be prosecuted in “rare” cases, amid concerns about the time taken to bring cases.

Sex offenders could escape punishment after a warning by the state’s top judges about complainants waiting too long to go to police.

Sex offenders could escape punishment after a warning by the state’s top judges about complainants waiting too long to go to police.

The Court of Appeal has raised concerns about the time it is taking to bring cases to court, saying decades-long delays can be used to overturn convictions. It has also warned against complainants suing before bringing criminal cases.

But Attorney-General ­Jaclyn Symes has moved to reassure accusers “they have the right to come forward against an alleged perpetrator whenever they feel comfortable”.

The Court of Appeal warning came after the successful appeal of a man jailed for the indecent assault of a child in 1962.

He was convicted of nine charges but acquitted on appeal after prosecutors conceded he was unfairly tried because of the delay and prior civil litigation.

Upholding the appeal, the Court of Appeal said it was frustrated by the increasing number of historical sex cases being prosecuted. “We cannot conclude these reasons without expressing our disquiet at the apparently increasing frequency with which cases involving delays in the order of 40 to 60 years are coming before the court,” it said.

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“While it is true that some trials may be fairly held in such circumstances, and the responsibility for deciding whether criminal proceedings should be maintained lies, in the first instance, with the Executive, the forensic difficulties which delays of this order of magnitude inflict suggest that such trials should be rare.

“It is of course relevant, in deciding whether to grant a permanent stay, to take account of the relative seriousness of the charges. It is to be expected that this is also a matter taken into account in deciding whether to bring charges in the first place.”

AAdvocates have expressed concerns about the impact the warning may have on victims coming foward.

Greg Barns, SC, national criminal justice spokesman for the Australian Lawyers Alliance, said the court was sending a “very strong signal” that police and prosecutors “have to be much more judicious in the way in which they proceed with these matters”.

“The message is very clear that the onus is on the OPP and police in these cases of antiquity to ensure that the evidence is sufficiently robust to go before a jury,” he said.

“They ought to be asking themselves if it’s a judicious use of scarce taxpayer funds in running cases where you’re asking people to recall matters that happened so long ago.”

Mr Barns said prosecutors had come under increasing pressure to prosecute matters following the Royal Commission into Institutional Responses to Child Sexual Abuse.

“And while that’s understandable, you’ve got to weigh that up against what the Court of Appeal is saying, which is that you can get unsafe convictions,” he said.

High-profile lawyer Ingrid Irwin, who has represented dozens of child sexual abuse survivors, said the court’s warning highlighted a significant difficulty for complainants. Ms Irwin said it was virtually impossible for survivors to prove guilt and called for an overhaul of the legal system to allow complainants to be legally represented, and for the burden of proof to be lowered in sex abuse cases.

Ms Symes said there was no limitation for charging a person with indictable offences.

“It is vital that victim-survivors of sexual offences are given every opportunity to seek justice,” she said.

A Victorian Law Reform Commission review of laws relating to rape, sexual assault and associated adult and child sexual offences was launched last year.\