338. Guiding principles

338. Guiding principles

It is the intention of Parliament that in interpreting and applying this Part in any criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—

(a) there is a high incidence of sexual violence within society; and

(b) sexual offences are significantly under-reported; and

(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d) offenders are commonly known to their victims; and

(e) sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred.

Sections 338 - 339 were inserted by s 50 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009. The legislative intention was to preserve the special arrangements which had been introduced in previous years for witnesses perceived as particularly vulnerable.

Section 338 largely replicates the introductory section s 32AB (now repealed) of the (now amended) Evidence Act 1958. The DPP unsuccessfully attempted to invoke the operation of the predecessor to these provisions in Theophanous & Ors [2009] VSC 325.

There is little guidance provided as to how courts are to have regard to these facts.