(VIC) Allow Complainants of Sexual Offences to Provide Pre-Recorded Evidence

Author: Enya Broadley | Publish date: 11/09/2025

Trigger Warning: Sexual Offence Cases

Problem Identification: 

In VIC, complainants in sexual offence proceedings do not have the option to pre-record their evidence for all stages of a trial, or to have this evidence admitted in all relevant proceedings.

Sections 366(2), 369 and 370 of the Criminal Procedure Act 2009 (VIC) limit the option for sexual offence complainants to pre-record their testimony (including cross-examination and re-examination) unless they are under 18 or have a cognitive impairment. For adult complainants, the court may grant permission based on specific criteria, such as both parties consenting or the complainant being unavailable for trial. 

This means that adult complainants in sexual offence proceedings in VIC do not have the automatic right to pre-record their testimony. According to Fair Agenda and Sexual Assault Services Victoria (SASV), complainants may be required to give their evidence in person, sometimes years later and/or on multiple occasions. This is known to retraumatise some complainants, affect the consistency of their testimony, and/or prolong the time they must spend in court.

Context: 

Pre-recorded evidence refers to the practice of recording a complainant’s testimony in advance of the trial or hearing, often outside of the courtroom setting. The recording is then shown to the jury during the trial. 

Fair Agenda and SASV noted that complainants are ‘forced to navigate a system that can be unresponsive [and] insensitive’, while the Victorian Law Reform Commission (VLRC) observed that trials can often involve ‘brutal’ cross-examinations. 

Research has shown that limits on a complainant’s ability to pre-record their evidence can contribute to barriers that discourage victim-survivors from reporting sexual violence. Reportedly, 87% of sexual violence incidents go unreported and the VLRC has identified the justice system’s response to complainants as a significant reason for this. 

According to Fair Agenda and SASV, giving evidence in person can be ‘emotionally and psychologically distressing’, often requiring complainants to ‘recount some of the most traumatic moments of their life’. Comparatively, a 2023 study from the NSW Bureau of Crime Statistics and Research found that pre-recorded evidence in retrials significantly reduced this trauma. 

It is known that unpredictable and repeated appearances in court can negatively impact the quality of a complainant's testimony. Fair Agenda and SASV have highlighted that complainants may be required to give evidence multiple times throughout the legal process, instead of relying on a single pre-recorded account. Reportedly, this can create inconsistencies in testimony and ‘memory recall issues’ when testifying about events that happened many years earlier. 

The VLRC has suggested that expanding the use of pre-recorded evidence could also make court processes more ‘streamlined’ and predictable. They noted that allowing evidence to be pre-recorded could shorten both the wait time to give evidence and the overall time complainants are required to spend in court. In the case of cross-examination, it has been proven that pre-recorded testimony minimises unexpected delays. Fair Agenda and SASV also stated that pre-scheduled dates for recording evidence are ‘more reliable and earlier than trial dates’, which can help to reduce the stress and unpredictability of the court system.

Advice/Solution Identification:

The VIC Attorney-General and the Minister for Prevention of Family Violence should amend sections 366, 367, 368, 374, 379 and 381 in Divisions 5, 6 and 7 of Part 8.2 of the Criminal Procedure Act 2009 (VIC) to ensure that all complainants in sexual offence proceedings have the option to pre-record and admit their evidence for all stages of sexual offence proceedings, including appeals or criminal matters arising from the same circumstances. 

The VLRC, Fair Agenda and SASV have called for this. The VLRC has stated that expanding the right to pre-record evidence for all complainants in sexual offence proceedings would ‘make sure complainants feel safe and able to present their best evidence’, increasing the likelihood that complainants will feel confident to come forward. Further, Fair Agenda, in partnership with SASV, said that these changes would better support complainants engaging with the system and signal to others that the justice system is becoming more ‘trauma-informed’. They stated that this could also help to reduce uncertainty, unexpected delays and retraumatisation for complainants during court processes.

Precedent:

There is domestic precedent for allowing all complainants in sexual offence cases to give pre-recorded evidence. In QLD and the NT, legislation has been amended ‘to provide all complainants in sexual offence proceedings, specifically, the legal option to pre-record their evidence’.

Download the 1-Page Brief Here - VIC) Allow Complainants of Sexual Offences to Provide Pre.

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Public Support: 

1. Victorian Law Reform Commission 

2. Fair Agenda & Sexual Assault Services Victoria

3. Australian Law Reform Commission    

News Coverage:

• ABC News - “Sexual assault survivors call for pre-recorded testimony laws to be expanded.” Advocates and survivors are calling for all jurisdictions to allow sexual assault complainants to pre‑record their testimony ahead of trial to help reduce psychological harm and improve evidence quality. By Kate O'Halloran | Friday 11 July 2025 - Read the article here.

• The Guardian - “Sexual assault victims to be spared repeated grilling by lawyers under new Victorian reforms.” A bill was introduced to parliament on Tuesday, which would see victims only undergo cross-examination when their case goes to trial. Tuesday 29 October 2024 | By Benita Kolovos - Read the article here.

• ABC News - “New Victorian laws to spare some victims from traumatic cross-examination before trial.” The VIC government has introduced new laws so that victims of particularly traumatic crimes would only need to give evidence at trial, avoiding them from needing to repeatedly face cross-examination. Tuesday 29 October 2024 - Read the article here.

• Women’s Agenda - “Victoria introduces new bill protecting sexual assault victims from further trauma in court.” Victims of sexual assault, stalking and family violence in Victoria will be better protected under new laws that will prevent lawyers from cross-examining them during committal hearings. Tuesday 29 October 2024 | By Brianna Boecker - Read the article here.

• Sydney Morning Herald - “‘Not your case’: Sexual assault survivors speak of hope and hostility pursuing justice.” A landmark NSW study found that sexual assault survivors frequently face disbelief and obstruction from the moment they report to police through court. August 14, 2023 | Perry Duffin - Read the article here.

Where to go to learn more: 

• Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence - The ALRC’s report called for the Offices of the Directors of Public Prosecutions to review and update their guidelines on responding to complainants of sexual violence to ensure their guidelines addressed the option to pre-record evidence. Read the report here.

• The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainants on jury decision-making: an experimental study - This research study by the Australian Institute of Criminology assessed whether video or CCTV testimony in sexual assault trials negatively affects juror perceptions. Read the study here.

• Promoting pre-recorded complainant evidence in rape trials: Psychological and practice perspectives - This research investigated whether pre-recorded evidence in rape trials can improve the accuracy, detail and reliability of complainant testimony while reducing trauma. Read the research study here.

• Criminal Procedure Act 2009 (VIC) - The Act, which this brief proposes to modify. Sections 366, 367, 368, 374, 379, 381 in Divisions 5, 6 and 7 of Part 8.2 do not universally allow sexual assault complainants to pre-record their evidence. Read the full act here.

  
  

Human Perspective:

Trigger Warning: Sexual offence case and PTSD

Sophie, a 26-year-old student from regional Victoria, reported a sexual assault and gave evidence during the initial trial, recounting painful memories in front of a courtroom of strangers. Months later, the trial ended in a hung jury and a retrial was ordered. Under the current legislation, Sophie wasn’t allowed to rely on her previous testimony, and she was required to return to court and give her evidence all over again. The thought of repeating that experience filled her with dread. She began having panic attacks, couldn’t sleep and eventually dropped out of university. At the retrial, inconsistencies in her account, driven by trauma and delays, were used to undermine her credibility. The accused was acquitted. She now suffers from post-traumatic stress disorder and has stated that the legal process itself felt like a second form of violence, leaving her feeling silenced and broken by a system that demanded she continually relive her trauma. 

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.\

Conflict of interest/acknowledgment statement: 

N/a

Support 

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

Australian Institute of Health and Welfare. (2019). Family, domestic and sexual violence in Australia: continuing the national story 2019. https://doi.org/10.25816/5ebcc837fa7ea 

Criminal Procedure Act 2009 (VIC). https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s366.html

Fair Agenda, & Sexual Assault Services Victoria. (2024). Improving the Court Experience: A model for pre-recording testimony in sexual assault cases. https://assets.nationbuilder.com/fairagenda/pages/5775/attachments/original/1731876480/Improving_the_court_experience_A_model_for_pre-recorded_testimony_in_sexual_assault_cases.pdf 

J, Quilty., & L., Mcnamara. (2023). Experience of Complainants of Adult Sexual Offences in the District Court of NSW: A Trial Transcript Analysis. In NSW Bureau of Crime Statistics and Research: Crime and Justice Bulletin. https://bocsar.nsw.gov.au/documents/publications/cjb/cjb251-300/cjb259-report-transcript-analysis-of-nsw-sexual-offences-trial.pdf 

Victorian Law Reform Commission. (2021). Improving the Justice System Response to Sexual Offences: Report. https://www.lawreform.vic.gov.au/wp-content/uploads/2022/04/VLRC_Improving_Justice_System_Response_to_Sex_Offences_Report_web.pdf