Even if you are innocent, being charged with a sexual offence is very stressful. The law says you are presumed innocent until proven guilty. But, how much evidence does the police need to charge someone with a crime?
HOW MUCH EVIDENCE IS NEEDED TO CHARGE YOU WITH A SEXUAL OFFENCE?
The Queensland Police Service Operational Procedures Manual (“OPMS”) says the decision to prosecute someone for a criminal offence is based on 2 tests:
- is there sufficient evidence? and
- does the public interest require a prosecution?
The OPMS says an arresting officer can start criminal proceedings if they are satisfied on reasonable grounds:
- a sexual offence has been committed;
- the person being charged has committed the sexual offence;
- there is a statutory authority to prosecute for the sexual offence;
- Any statutory of limitations has not expired; and
- The elements of the sexual offence can be proven.
The OPMS says the sufficiency of evidence test will be met if there is sufficient admissible evidence to prove the sexual offence against you. Admissible evidence is evidence capable of being admitted in a court. Police may find evidence during the course of their investigation, but for some reason it may not be able to be used in court. For example, there may be a witness who said they saw the sex offence being committed. If the witness is not willing to help the police, then their evidence is not admissible. The evidence exists, but the police cannot use it in court.
You don’t have to be caught by police mid-way through committing a sexual offence to be charged with it. In some situations you can be charged with a sexual offence if you had the intention to commit it. In many instances police charge persons with sexual offences because they believe the person committed it. You can be charged with a sexual offence before the investigation of it has been completed. It is not uncommon for persons to be charged with a sexual offence and for the police to continue with their investigation. The rules relating to evidence in Queensland are found in the Evidence Act 1977.
DIFFERENT TYPES OF EVIDENCE
The type of evidence collected by police varies from case to case. The type of criminal offence allegedly committed will determine the evidence gathered by police. There are 3 main types of evidence:
- Testimony Evidence;
- Documentary Evidence; and
- Real Evidence.
Testimony evidence is when a witness attends court and gives evidence. The evidence given by the witness will be offered as evidence as to the truth of what the witness is saying. In criminal cases police get written statements from persons who will give evidence. This is so the police and the prosecution know what the witness will say when they get in the witness box.
The Evidence Act defines a document as:
document includes, in addition to a document in writing—
(a) any part of a document in writing or of any other document as defined herein; and
(b) any book, map, plan, graph or drawing; and
(c) any photograph; and
(d) any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatever; and
(e) any disc, tape, soundtrack or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(f) any film, negative, tape or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(g) any other record of information whatever.
Real evidence is a thing or item proving the existence of a fact. For example, the weapon used during to commit the offence would be real evidence. The weapon can be produced in court for the Court to see.
In addition to the 3 types of evidence, there is also “direct evidence” and “circumstantial evidence”.
Direct evidence is something proving a fact. For example, if a witness says they saw or heard something, this is direct evidence of what they saw or heard.
Circumstantial evidence is a more complicated. It is not evidence of a fact, but it is evidence of circumstances proving a fact. For example, a witness may see the accused carrying a blood-stained knife at the home where the deceased was located. The evidence of the witness is not evidence of the accused killing the deceased. It is circumstantial evidence the accused was the person who killed the deceased.
In a criminal trial the Magistrate or Jury will hear and see evidence produced by the prosecution. The Magistrate or Jury will use the evidence in deciding if the accused is guilty, or not guilty. You may wonder, but if the prosecution produces evidence in Court, how can I be found not guilty. Evidence of witnesses is tested by the cross-examination of them. The Magistrate and Jury will watch and listen to how a witness gives their evidence to decide if they are credible. If a witness is not credible, then their evidence cannot be accepted as the truth. Depending on the witness, if they are not credible this can result in a not guilty verdict.
An accused person in a criminal trial has the right to produce or call evidence. This evidence may be oral testimony from the accused or another person. It can also be documents, such as photographs or text messages. An important witness can sometimes be an alibi. An alibi may be able to say the accused cannot have committed the offence because they were with them at the time.
THERE ISN’T ANY EVIDENCE, ALL THEY HAVE IS A COMPLAINT!
All the police need is a complaint being made by someone saying they are a victim of a sexual offence. The police do not need anything else. Once the police has a complaint of a sexual offence, they just need to work out who they say did it. Where the alleged victim knows the accused, this is a simple task. This makes the job of police a lot easier in determining who they are going to say committed the offence. The police don’t need any eye-witnesses or medical evidence to charge and prosecute someone for a sexual offence- all they need is a complaint.
DNA AND MEDICAL EVIDENCE
Our DNA (Deoxyribonucleic Acid) is what makes us individuals unique. Almost all human cells contain DNA. The DNA determines our individual characteristics such as hair, eyes and skin colour. No two humans (except for twins) have the same DNA.
When police investigate a sexual offence, they will be trying to locate evidence which will help them. The evidence located by police may be tested to determine if it contains a DNA profile. If a DNA profile is obtained from a piece of evidence, then this profile can be used to compare against DNA reference profile samples obtained from persons. DNA samples are often obtained from blood, semen, saliva, hair, or cellular material (such as touch DNA).
Police may gather DNA evidence from where the alleged sexual offence took place. DNA evidence can be collected from the body of the alleged victim or the clothes of the alleged victim. When DNA is collected from the body of the alleged victim, the victim will undergo a Sexual Assault Investigation Kit (SAIK). The SAIK is a forensic sexual assault examination of the alleged victim. During the SAIK swabs will be taken from various parts of the alleged victim’s body. These swabs will then be submitted for DNA testing.
s93A EVIDENCE ACT STATEMENTS
The way a witness first gives evidence in a Queensland criminal case sometimes depends on their age. For example, adults will give evidence in a witness statement, which will either be typed, or handwritten. The adult will tell their story in their witness statement and they will sign it. Children who are under 16 years of age do not provide written witness statements. Police record the evidence of children on a video or audio recording device. The evidence of the child is what is commonly known as a Section 93A statement. It is section 93A of the Queensland Evidence Act which allows the recorded evidence of the child to be admissible in court. At a trial for a sexual offence the child’s Section 93A statement is played to the jury as the child’s evidence-in-chief. The cross-examination of the child occurs at a pre-recording, or also known as a Section 21AK hearing.
There are no hard and fast rules about where police must take a 93A statement from a child. The evidence of the child may be recorded at a police station, but it may also recorded at other places, such as a school.
When police record the evidence of a child they will ask some preliminary questions. Preliminary questions may include such things as what the child’s name is, where they go to school and who their family is. Police ask these sorts of questions to get the child relaxed and comfortable talking to them. After preliminary questions police will ask the child why they came to speak to the police. For the child’s evidence to be admissible in court, the police officers must not ask the child leading questions. A leading question is a question which suggests an answer. For example, police cannot say to the child “Dad brought you in today to speak to us because Mr. X touched you on your vagina didn’t he?”. This question is a leading question because it suggests Mr. X touched the child on the vagina. The questions used by police must be open-ended.
If a police officer asks a child a leading question, this question and the child’s answer may be removed from the recording before a trial. It is common for the Section 93A statements played to a jury to be an edited version. The way the recording is edited is either with the consent of the prosecution or an Order of the Court.
If your case includes Section 93A statements your lawyer or the prosecution will not give you a copy of the recording or a transcript of the recording. The reason for this is because the law prevents them from doing so.
CRIMINAL LAWYERS BRISBANE GROUP, THE SEXUAL OFFENCE EXPERTS
If police charge you with a sexual offence, the best thing you can do is arm yourself with a criminal defence lawyer. But, not any criminal lawyer. You want a criminal lawyer whose primary practice is sexual offences. At the Criminal Lawyers Brisbane Group we focus on crimes involving sex, drugs and, no, not rock and roll, but fraud.
If you want the best result, you need the best Brisbane criminal lawyers. Contact the Criminal Lawyers Brisbane Group today for confidential expert advice. We represent clients throughout South-East Queensland. No matter where your criminal charge is, our sex crime lawyers can help you.