Delay

Published by Geoff Harrison | 17 July 2025

An accused may suffer a significant forensic disadvantage in the conduct of their case due to a delay in bringing the prosecution; in terms of witnesses' memory and/or the gathering and securing of evidence. Hence, a judge, upon application of a party, if satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence (s165B of the Evidence Act 1995).

In relation to a complainant's evidence, in a prescribed sexual assault matter, where there the issue of delay arises, a judge must direct the jury that the absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and must direct the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and must not direct the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a direction (s294(2) Criminal Proceudre Act 1986).

Other Sources:

• Criminal Trial Courts Bench Book: Delay in complaint and forensic disadvantage to the accused

• Criminal Trial Courts Bench Book: Suggested direction — delay in, or absence of, complaint

• Criminal Procedure Amendment (Sexual and Other Offences) Bill: Second Reading Speech, 18 October 2006

  
  

Cases:

• Longman v R [1989] HCA 60

• Crampton v R [2000] HCA 60

• GROUNDSTROEM Christoffer Andreas v R [2013] NSWCCA 237

• Jarrett v R [2014] NSWCCA 140

• TO v R [2017] NSWCCA 12

• Park v R [2023] NSWCCA 71

• Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354

• Shanmugam v R [2021] NSWCCA 125

Extracted Legislation:

EVIDENCE ACT 1995 - SECT 165B

Delay in prosecution

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section--

(a) delay includes delay between the alleged offence and its being reported, and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

(7) For the purposes of this section, the factors that may be regarded as establishing a

"significant forensic disadvantage" include, but are not limited to, the following--

(a) the fact that any potential witnesses have died or are not able to be located,

(b) the fact that any potential evidence has been lost or is otherwise unavailable.

CRIMINAL PROCEDURE ACT 1986 - SECT 294

Direction to be given by Judge in relation to lack of complaint in certain sexual offence proceedings

(1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest--

(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or

(b) delay by that person in making any such complaint.

(2) In circumstances to which this section applies, the Judge--

(a) must direct the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and

(b) must direct the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and

(c) must not direct the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a direction.

(2A) A judge may, as the judge sees fit--

(a) give a direction in this section at any time during a trial, and

(b) give the same direction on more than 1 occasion during a trial.

(3) If the trial of the person also relates to a domestic violence offence alleged to have been committed by the person against the same victim, the Judge may--

(a) also give a warning under section 306ZR, or

(b) give a single warning to address both types of offences.

CRIMINAL PROCEDURE ACT 1986 - SECT 306ZR

Warning to be given by Judge in relation to lack of complaint in certain domestic violence offence proceedings

(1) This section applies if, on the trial of a person for a domestic violence offence, evidence is given or a question is asked of a witness that tends to suggest--

(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or

(b) delay by that person in making a complaint.

(2) The Judge--

(a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and

(b) must inform the jury that there may be good reasons why a victim of domestic violence may hesitate in making, or may refrain from making, a complaint about a domestic violence offence, and

(c) must not warn the jury that delay in making a complaint is relevant to the victim's credibility unless there is sufficient evidence to justify the warning.

(3) If the trial of the person also relates to a prescribed sexual offence alleged to have been committed by the person against the same victim, the Judge may--

(a) also give a warning under section 294, or

(b) give a single warning to address both types of offences.