Criminal Trial Courts Bench Book — Sexual assault offences

Sexual act

Crimes Act 1900 (NSW), ss 61KE, 61KF, 66DC, 66DD, 66DE and 66DF

Important note: The directions in ss 292–292E Criminal Procedure Act 1986 apply to proceedings for the above offences which commence on or after 1 June 2022, regardless of when the offence was committed: Sch 2, Pt 42. See further [5-200] Directions — misconceptions about consent in sexual assault trials. The procedure for filing a Crown or Defence Readiness Hearing Case Management Form requires the parties to identify, amongst other matters, which directions under ss 292A–292E may be required at trial. It would be prudent to commence a discussion early in the trial concerning which of these directions, if any, might be required in a particular trial.

[5-1200] Introduction

Last reviewed: September 2023

The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (the amending Act) implemented recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse and the Child Sexual Offences Review team to reform the law with respect to sexual offences. These included repealing the basic and aggravated offences of act of indecency (former ss 61N and 61O Crimes Act 1900, respectively) and replacing them with separate offences of sexual act in ss 61KE and 61KF for adults, and in ss 66DC, 66DD, 66DE and 66DF for children.

The new provisions apply to offences committed on or after 1 December 2018: Crimes Act 1900, Sch 11, Pt 35.

“Sexual act” is defined in s 61HC as an act (other than sexual touching) carried out in circumstances a reasonable person would consider to be sexual.

The following matters in s 61HC must be considered when deciding whether a reasonable person would consider an act to be sexual:

(a) 

whether the area of the body involved in the act is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or

(b) 

whether the person carrying out the act does so for the purpose of obtaining sexual arousal or sexual gratification, or

(c) 

whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.

Offences against ss 61KE, 61KF, 66DC, 66DD, 66DE and 66DF are “prescribed sexual offences”: s 3 Criminal Procedure Act 1986. Particular provisions of the Criminal Procedure Act and the Crimes Act apply to proceedings for such offences: see Evidence given by alternative means at [1-360]ff, and Closed court, suppression and non-publication orders at [1-349].

See also: Criminal Practice and Procedure NSW at [8-s 61KE], [8-s 61KF], [8-s 66DC], [8-s 66DD], [8-s 66DE] and [8-s 66DF].

For offences committed before 1 December 2018, ss 61N and 61O provide the basic and aggravated offences, respectively. Section 61N(1) makes it an offence to commit an act of indecency “with or towards” a person (or incite a person to an act of indecency) where the person is under the age of 16 years. Section 61N(2) applies where the person is aged above 16 years.

The common law definition of “indecency” applies, meaning contrary to currently accepted standards of decency: R v Manson (unrep, 17/2/93, NSWCCA,); R v Harkin (1989) 38 A Crim R 296. Where an act does not have an unequivocal sexual connotation, it may still constitute an indecent act if it is proved it was carried out for sexual gratification: R v Court [1989] 1 AC 28; R v Harkin. The purpose of the act, such as for artistic or political reasons, is a relevant but not decisive condition for determining if the act was indecent: R v Manson.

[5-1210] Suggested direction — basic offence (s 61KE) — until 31 May 2022

Last reviewed: September 2023

The suggested direction is based on the offence in s 61KE(a). For incitement offences see the commentary at [5-1290] Notes — Incitement offences.

It is suggested that consideration be given to whether it is more helpful to explain the competing cases of the parties overall for the jury after identifying the separate elements of the offence or as the directions are given for each element.

For the suggested direction for offences involving a child, see [5-1260] Suggested direction — sexual act involving a child under 10 (s 66DC).

The accused is charged with carrying out a sexual act. The Crown case is that [briefly outline the incident/s to which the charge relates].

To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following four elements which make up the offence.

1. 

the accused intentionally carried out an act with, or towards, the complainant;

2. 

the act was sexual;

3. 

without the complainant’s consent to the sexual act;

4. 

the accused knew the complainant did not consent.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them you must find the accused not guilty.

1. 

The accused intentionally carried out an act with, or towards, the complainant

The act itself must be voluntary and intentional, not an accident or carried out by mistake.

In determining whether the act was intentionally carried out with, or towards, the complainant, you are to consider the act and all of its surrounding circumstances. [refer to specific Crown allegation regarding the act]. This may include: .

  • the nature of the act;

  • the proximity between the accused and the complainant when the act was carried out (the complainant does not have to be in the immediate physical presence of the accused);

  • the visibility of the act and whether the accused wanted their actions to be seen or was deliberately hiding them;

  • what interaction, if any, occurred between the complainant and the accused at the time the act was being carried out, including inviting or encouraging the complainant to watch or participate.

[Add the following where the offence is particularised as ‘with’]:

The act must involve some participation by the complainant (although the Crown case is that the participation was involuntary).

[Add the following where the offence is particularised as ‘towards’]:

In performing the act, there must be some engagement with the complainant, from which it can be inferred the act is directed at the complainant.

[For either particularisation]: It is not enough if the complainant was simply present (physically or electronically), but nothing more, when the act was carried out.

2. 

The act was sexual

Sexual act means an act (other than touching another person) carried out in circumstances where a reasonable person would consider the act to be sexual.

In determining whether a reasonable person would consider the act was sexual, you should consider everything that you regard as relevant, but there are some particular matters you are required to take into account. They are:

  • the part of the body involved in the act. Was it the genital or anal area or [only in the case of a female person, or a transgender/intersex person identifying as female: the breasts] [and add where relevant: whether or not the breasts are sexually developed]?

  • whether the person doing the carrying out the act did so for the purpose of obtaining sexual arousal or sexual gratification;

  • whether there was any other aspect of the act (including the circumstances in which it was carried out) which made it sexual?

The Crown is not required to prove any particular one of these matters. They are matters you are required to take into account, along with anything else you consider to be relevant when you are deciding whether the Crown has proved that the act was “sexual”.

[Where appropriate: An act carried out for genuine medical or hygienic purposes is not a sexual act. As that is what the accused says was the reason for carrying out the act, it is a matter for the Crown to prove beyond reasonable doubt that it was not done for such a purpose.]

3. 

Without the complainant’s consent

This element concerns the complainant’s state of mind. The Crown must prove that the sexual act was carried out without the complainant’s consent.

Consent means that a person freely and voluntarily agrees to something. So, the Crown is required to prove the complainant did not freely and voluntarily agree to the sexual act being carried out.

You are concerned with whether the complainant did not consent to the act at the time the act occurred. What the complainant’s state of mind was before or after the act might provide a guide, but the question is whether the Crown has proved that the complainant was not consenting at the time the act occurred.

[Where appropriate: The complainant said in evidence that they did not consent to the sexual act being carried out. If you accept that evidence, then you could be satisfied the Crown has proved this element.]

In deciding whether you accept that the complainant was not consenting you may also take into account any of the following:

(a) 

Consent obtained after persuasion is still consent, provided that ultimately it is given freely and voluntarily.

(b) 

Consent, or lack of consent, may be indicated by what the complainant said or did. In other words, the complainant’s words or actions, or both, may indicate whether or not there was consent.

(c) 

A person who does not offer actual physical resistance to a sexual act being carried out is not, by reason only of that fact, to be regarded as consenting to that act. There is no legal requirement for a person to physically resist before a jury can find that the person did not consent.

[If applicable, add one or more of the following [s 61HE(5)–(6)]:

The law provides that a person does not consent to a sexual act being carried out:

  • if they do not have the capacity to consent, including because of their age or cognitive incapacity, or

  • if they did not have the opportunity to consent because they were unconscious or asleep, or

  • if they consent because of threats of force or terror (whether the threats are against, or the terror is instilled in, them or another person), or

  • if they consent because they were unlawfully detained, or

  • if the person consented under a mistaken belief:

    • as to the other person’s identity, or

    • that the other person is married to the person, or

    • that the sexual activity is for health or hygienic purposes, or

    • about the nature of the activity that has been induced by fraudulent means.]

[If applicable, add one or more of the following [s 61HE(8)]:

It may be established that the complainant did not consent to the sexual act if:

  • the complainant consented while substantially intoxicated by alcohol or any drug, or

  • the complainant consented because of intimidatory or coercive conduct, or other threat, even though that conduct does not involve a threat of force, or

  • the complainant consented because of the abuse of a position of authority or trust.

If you are satisfied the complainant consented in that circumstance, it does not necessarily follow that you should be satisfied beyond reasonable doubt the complainant did not consent. The essential matter the Crown must prove is that the complainant did not consent in the sense that the complainant did not freely and voluntarily agree to the sexual act.]

4. 

The accused knew the complainant did not consent

The fourth element concerns the accused’s state of mind. The Crown is required to prove the accused knew the complainant did not consent to the sexual act being carried out.

This is a question about what the accused’s state of mind actually was. It is not a question about what you or anyone else would have known, thought or believed in the circumstances. It is what the accused knew, thought or believed.

You must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual act being carried out.

[Add, if appropriate: The law is that any intoxication of the accused that was self-induced must be ignored. If you consider that the accused was intoxicated by voluntarily drinking alcohol [or taking drugs], you must ignore that and decide this element by considering what the accused’s state of mind would have been if they had not been intoxicated.]

The law says the Crown will have proved the accused knew the complainant did not consent to the sexual act if: [refer only to those of the following matters that arise from the evidence — see further [5-1230] Notes below]

(a) 

the accused knew the complainant did not consent; or

(b) 

the accused was reckless as to whether the complainant consented because the accused realised there was a possibility the complainant did not consent; or

(c) 

the accused was reckless as to whether the complainant consented because the accused did not even think about whether the complainant consented but went ahead not caring, or considering it was irrelevant whether the complainant consented; or

(d) 

the accused may have actually believed the complainant consented, but the accused had no reasonable grounds for that belief; or

(e) 

the accused knew the complainant consented under a mistaken belief about [refer to those parts of s 61HE(6) that may apply].

To repeat what I said at the beginning of these directions, you can only find the accused guilty if the Crown proves each of the four elements beyond reasonable doubt. If the Crown fails to prove any one of them you must find the accused not guilty.

[5-1220] Suggested direction — basic offence (s 61KE) — from 1 June 2022

Last reviewed: September 2023

Notes:

1. 

Sections 61HF–61HK Crimes Act 1900 which relate to consent and proof of consent apply to offences committed from 1 June 2022. See [5-900] Sexual intercourse without consent — from 1 June 2022 and [5-920] Notes related to consent for the commentary related to these provisions. See also the notes at [5-1230] below.

2. 

The suggested direction is framed in terms of what the Crown is required to prove. It is a matter of discretion as to how often it is appropriate to remind the jury that the accused is not obliged to prove anything.

The accused is charged with carrying out a sexual act. The Crown case is that [briefly outline the incident/s to which the charge relates].

To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following four elements which make up the offence.

1. 

the accused intentionally carried out an act with, or towards, the complainant;

2. 

the act was sexual;

3. 

without the complainant’s consent to the sexual act;

4. 

the accused knew the complainant did not consent.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of these elements you must find the accused not guilty.

1. The accused intentionally carried out an act with, or towards, the complainant

The act itself must be voluntary and intentional, not an accident or carried out by mistake.

In determining whether the act was intentionally carried out with or towards the complainant, you are to consider the act and all of its surrounding circumstances. [refer to specific Crown allegation regarding the act].

This may include:

  • The nature of the act;

  • The proximity between the accused and the complainant when the act was carried out (the complainant does not have to be in the immediate physical presence of the accused);

  • The visibility of the act and whether the accused wanted their actions to be seen or was deliberately hiding them;

  • What interaction, if any, occurred between the complainant and the accused at the time the act was being carried out, including inviting or encouraging the complainant to watch or participate.

[Add the following where the offence is particularised as ‘with’]:

The act must involve some participation by the complainant (although the Crown case is that the participation was involuntary).

[Add the following where the offence is particularised as ‘towards’]: In performing the act, there must be some engagement with the complainant, from which it can be inferred the act is directed at the complainant.

[For either particularisation]:

It is not enough if the complainant was simply present (physically or electronically), but nothing more, when the act was carried out.

2. The act was sexual

Sexual act means an act (other than touching another person) carried out in circumstances where a reasonable person would consider the act to be sexual.

In determining whether a reasonable person would consider the act was sexual, you should consider everything that you regard as relevant, but there are some particular matters you are required to take into account. They are:

  • the part of the body involved in the act. Was it the genital or anal area or [only in the case of a female person, or a transgender/intersex person identifying as female: the breasts] [and add where relevant: whether or not the breasts are sexually developed]?

  • whether the person carrying out the act did so for the purpose of obtaining sexual arousal or sexual gratification.

  • whether there was any other aspect of the act (including the circumstances in which it was carried out) which made it sexual?

The Crown is not required to prove any particular one of these matters. They are matters you are required to take into account, along with anything else you consider to be relevant when you are deciding whether the Crown has proved that the act was “sexual”.

[Where appropriate: An act carried out for genuine medical or hygienic purposes is not a sexual act. As that is what the accused says was the reason for carrying out the act, it is a matter for the Crown to prove beyond reasonable doubt that it was not done for such a purpose.]

3. Without the complainant’s consent

This element concerns the complainant’s state of mind. The Crown must prove beyond reasonable doubt that the complainant did not consent to the sexual act.

Everyone has a right to choose whether or not to participate in a sexual act. A person cannot presume that another person is consenting. A consensual sexual act involves ongoing and mutual communication and decision-making and free and voluntary agreement between the persons participating in the sexual act. [s 61HF]

[If required (s 292A Criminal Procedure Act 1986 — circumstances in which non-consensual activity occurs): However, you should bear in mind that non-consensual sexual activity can occur in many different circumstances and between different kinds of people including people who know one another, or are married to one another, or who are in an established relationship with one another.] [See [5-200]]

A person consents to a sexual act being carried out if, at the time of the act, the person freely and voluntarily agrees to the act: [s 61HI(1)]. Consent can be given verbally or it can be expressed by actions. However, a person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity: [s 61HI(4)].

[If applicable — circumstances in which there is no consent — s 61HJ:

The law provides that circumstances in which a person does not consent to a sexual act include if you are satisfied beyond reasonable doubt that the person [refer only to those that apply]:

(a) 

does not say or do anything to communicate consent,

(b) 

does not have the capacity to consent to the sexual act,

(c) 

is so affected by alcohol or another drug as to be incapable of consenting to the sexual act,

(d) 

is unconscious or asleep,

(e) 

participates in the sexual act because of force, fear of force or fear of serious harm of any kind to them, another person, an animal or property (regardless of when the force or the conduct giving rise to the fear occurred or whether it occurred as a single instance or as part of an ongoing pattern),

(f) 

participates in the sexual act because of coercion, blackmail or intimidation (regardless of when the coercion, blackmail or intimidation occurred or whether it occurred as a single instance or as part of an ongoing pattern),

(g) 

participates in the sexual act because they or another person is unlawfully detained,

(h) 

participates in the sexual act because they are overborne by the abuse of a relationship of authority, trust or dependence,

(i) 

participates in the sexual act because they are mistaken about the nature of the act,

(j) 

participates in the sexual act because they are mistaken about the purpose of the act (including about whether the act is for health, hygienic or cosmetic purposes),

(k) 

participates in the sexual act with another person because they are mistaken about the identity of the other person or because they are mistaken that they are married to the other person, or

(l) 

participates in the sexual act because of a fraudulent inducement. [If appropriate: A misrepresentation about a person’s income, wealth or feelings [refer only to that or those which apply] is not a “fraudulent inducement”.

Summarise the evidence and relevant arguments of the parties.]

[If applicable — persuasion: Consent that is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.]

[If applicable — withdrawal of consent: A person may withdraw consent to a sexual act at any time: [s 61HI(2)]. If the act occurs, or continues, after consent has been withdrawn then it occurs without consent: [s 61HI(3)]. If the Crown has proved beyond reasonable doubt that the complainant withdrew consent and that the act occurred or continued after that point in time, then you would find the occurrence or continuation of the sexual act was without the complainant’s consent. Summarise the evidence and relevant arguments of the parties.]

[If applicable — consent to a different act [s 61HI(5)]: A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity. There is evidence the complainant may have consented to [describe relevant sexual activity]. If you decide the person may have consented to that activity, it does not follow that for that reason only the person may have consented to the sexual act alleged by the Crown. [Summarise the evidence and relevant arguments of the parties.]

[If applicable — consent to sexual activity with accused on a different occasion (s 61HI(6)(a)): A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with that person on another occasion. There is evidence the complainant may have consented to [describe sexual activity and occasion] with the accused. If you decide the complainant may have consented to that activity, it does not follow that for that reason only the complainant consented to the sexual activity alleged by the Crown.

Summarise the evidence and relevant arguments of the parties.]

[If applicable — consent to sexual activity with another person on same or another occasion (s 61HI(6)(b)):

A person who consents to a sexual activity with a person is not, by reason only of that fact, taken to consent to a sexual activity with another person on that or another occasion. There is evidence the complainant may have consented to [describe sexual activity and occasion] with [name of person]. If you decide that the complainant may have consented to that activity, it does not follow that for that reason only that the complainant consented to the sexual act with the accused alleged by the Crown.

Summarise the evidence and relevant arguments of the parties.]

4. The accused knew the complainant did not consent

This element concerns the accused’s state of mind. The Crown must prove beyond reasonable doubt that the accused knew the complainant did not consent to the sexual act alleged.

The Crown has no direct evidence about what the accused’s state of mind was at that time. The Crown asks you to infer or conclude that the accused knew the complainant was not consenting on the basis of the facts and circumstances which it has sought to prove occurred.

[Give direction as to Inferences [see [3-150]] or remind jury if already given.]

For the purpose of deciding whether the Crown has proved this element, you must consider all the circumstances of the case, including what, if anything, the accused said or did: [s 61HK(5)(a)]. [Add, if appropriate — self-induced intoxication: However, intoxication of the accused that was self-induced must be ignored. If you consider the accused was intoxicated by voluntarily drinking alcohol [or taking drugs], you must decide if the Crown has proved this element by considering what the accused’s state of mind would have been if the accused had not been intoxicated: [s 61HK(5)(b)]].

The Crown will have proved the accused knew the complainant did not consent if it proves that [refer only to those of the following that arise from the evidence]:

1. 

the accused actually knew the complainant did not consent to the sexual act; or

2. 

the accused was reckless as to whether the complainant consented to the sexual act;

3. 

any belief the accused had, or may have had, that the complainant consented to the sexual act was not reasonable in the circumstances.

It is important to bear in mind that it is for the Crown to prove this. As you are well aware, there is no obligation upon the accused to prove anything.

[Actual knowledge — s 61HK(1)(a): Summarise the evidence and relevant arguments of the parties.]

[Recklessness — s 61HK(1)(b)]

To establish that the accused was reckless as to whether the complainant consented to the sexual act, the Crown must prove, beyond reasonable doubt, either:

(a) 

that the accused failed to consider whether or not the complainant was consenting at all, and just went ahead with the sexual act, even though the risk the complainant was not consenting would have been obvious to someone with the accused’s mental capacity had they turned their mind to it, or

(b) 

the accused realised the possibility that the complainant was not consenting but went ahead with the sexual act regardless of whether the complainant was consenting or not.

[Summarise the evidence and relevant arguments of the parties.]

[Belief in consent that was not reasonable in the circumstances — s 61HK(1)(c):

If, on the basis of the evidence led in the trial, you decide there is a possibility the accused had, or may have had, a belief that the complainant consented, the Crown must prove beyond reasonable doubt that the belief was not reasonable in the circumstances. The Crown case is that you would find that any such belief was not reasonable in the circumstances because [state Crown’s contention].

[If appropriate — s 61HK(2): A belief that the complainant consented to the sexual act is not reasonable if the Crown satisfies you beyond reasonable doubt the accused did not, within a reasonable time before, or at the time of, the sexual act, say or do anything to find out if the complainant consented.

Whether it was reasonable in the circumstances for the accused to believe the complainant was consenting to the sexual act is judged according to community standards. You ask yourself what would an ordinary person in the accused’s position have believed at the relevant time having regard to all the circumstances of the case [If appropriate: other than the accused’s self-induced intoxication]?

[Summarise the evidence and relevant arguments of the parties.]

[If applicable — cognitive or mental health impairment as a substantial cause of the accused not saying or doing anything (s 61HK(3)–(4)):

If the Crown has proved beyond reasonable doubt that the accused did not say or do anything to ascertain whether the complainant consented to the sexual act, then that would establish that the belief of the accused that the complainant was not consenting was not reasonable. However, this would not be the case if the accused was suffering from a [cognitive/mental health] impairment at the time of the sexual act and that the impairment was a substantial cause of the accused not saying or doing anything to ascertain whether the complainant consented to that sexual act.

[Adopt so much of the definitions of mental health impairment and cognitive impairment from ss 4C and 23A(8) and (9) Crimes Act as appropriate — see further [4-304].]

This is a matter where the accused must prove on the balance of probabilities both that:

1. 

The accused was suffering from a [cognitive/mental health] impairment at the time of the sexual act; AND

2. 

The accused’s [cognitive/mental health] impairment was a substantial cause of the accused not saying or doing anything to ascertain whether the complainant consented to the sexual act.

[Summarise the evidence and relevant arguments of the parties.]

If the accused has not proved both these matters on the balance of probabilities, then the Crown will have established beyond reasonable doubt that the accused’s failure to say or do anything to ascertain whether the complainant consented to the sexual act was such that the accused’s belief the complainant was not consenting was not reasonable in the circumstances.

If the accused has proved both these matters on the balance of probabilities, then you cannot use the fact the accused did not do or say anything to ascertain whether the complainant consented to the sexual act in considering whether the Crown has proved beyond reasonable doubt that the accused’s belief in consent was not reasonable. You must put that fact to one side and consider whether the Crown has proved beyond reasonable doubt that the accused’s belief in consent was not reasonable because of other facts and circumstances.

[For aggravated forms of the offence add from [5-1240] as appropriate.]

[5-1230] Notes

Last reviewed: September 2023
1. 

The meaning of “with” or “towards” has been considered in the following cases:

(a) 

Sexual or indecent acts “with” another require two participants, while acts “towards” another are committed towards a non-participant: R v Chonka [2000] NSWCCA 466 at [46].

(b) 

Where an accused performs a sexual or indecent act in front of a person and invites that person to participate, this will be considered a sexual act towards that person: R v Gillard [1999] NSWCCA 21 at [63].

(c) 

An accused’s sexual or indecent act does not have to be committed in the immediate physical presence of another person for it to be considered “towards” that other person. It is sufficient if the conduct was within the view of that person and the accused intended to be seen: R v Barrass [2005] NSWCCA 131 at [28]–[30].

(d) 

If the accused engages in a sexual or indecent act but does not believe the other person is able to see the act, this act will not be “towards” that person. The accused must know they are being watched by that person and derive some sort of stimulus from that person’s observation: R v Francis (1989) 88 Cr App R 127 at 129.

(e) 

“Towards” requires an intention by the accused to engage at some level with another person, from which it can be inferred the accused’s sexual or indecent act is directed towards the person. A person’s mere presence is not enough: DPP (NSW) v Presnell [2022] NSWCCA 146 (by majority) at [29], [91]–[92]. A complainant does not have to be aware of the accused’s conduct for the offence to be established (for example, if the complainant is asleep they are taken to not be consenting: s HJ(1)(d)): DPP (NSW) v Presnell at [59]. If the accused is sufficiently proximate to the person so that it can be inferred the accused intends to gain sexual pleasure from exposure to the person’s body, this may be sufficient even if the accused does not intend the person becomes aware of the sexual or indecent act: DPP (NSW) v Presnell at [94].

2. 

DPP (NSW) v Presnell involved consideration of a sexual act involving a child (s 66DC), where consent is not an element of the offence. The principle of “intention to engage” was applied by Yehia J at [202] in SC v R [2023] NSWCCA 60 regarding an offence of aggravated act of indecency towards a person under 16 years contrary to now repealed s 61O(1).

3. 

It is important to tailor the directions to the circumstances and issues in the particular trial. Where the only issue is whether the alleged act occurred, or whether the accused was the offender and there is no issue about the complainant not consenting, it may be confusing to direct the jury about aspects of the definition of consent in s 61HE(6) (for offences up to 31 May 2022) and s 61HJ(1)(i) and (j) (for offences from 1 June 2022) that do not apply. See R v Mueller (2005) 62 NSWLR 476 at [3]–[4] and [42].

4. 

The Crown must prove the alleged complainant did not consent. What amounts to knowledge of consent and how consent may be negated is addressed in detail in s 61HE (for offences up to 31 May 2022) and ss 61HJ and 61HK (for offences from 1 June 2022)..

5. 

Consent is not an element of a sexual act offence if the alleged victim is a child: s 61HE(1) (for offences up to 31 May 2022) and s 61HG(1) (for offences from 1 June 2022) lists the offences to which the definition of consent applies.

6. 

The exception for genuine or proper medical or hygienic purposes in s 61HC(3) may be excluded when the relevant acts giving rise to the offence occurred during a medical examination: Decision Restricted [2020] NSWCCA 138 at [51]–[65]. There is no requirement that the sole purpose of an act in such a context be for sexual gratification. The exception is only engaged when the relevant act is carried out for proper medical purposes: at [51]; see also [99].

7. 

Evidence that, at the relevant time, the accused was intoxicated cannot be taken into account if it was self-induced: s 61HE(4)(b) (for offences up to 31 May 2022) and s 61HK(5)(b) (for offences from 1 June 2022).

[5-1240] Suggested direction — aggravated offence (s 61KF)

Last reviewed: September 2023

If the Crown has charged the accused with an aggravated offence, adapt so much of the suggested direction for the basic offence as is appropriate and continue with whichever of the following aggravated circumstances have been relied upon.

Because it is possible for the jury to reach different verdicts, it may avoid confusion if they are provided with a written list of possible verdicts (a “verdict sheet”), particularly if the trial involves multiple counts.

The final element the Crown must prove beyond reasonable doubt is that the offence was aggravated because [specify circumstance of aggravation]. You only need to consider this element if you are satisfied the Crown has proved the first four elements of the offence beyond reasonable doubt.

In company — s 61KF(2)(a)

[This direction is based upon the sexual act being carried out by the accused in the presence of an alleged co-offender in the accused’s company. Modification will be required if the roles are different.]

It is an aggravating circumstance if the offence was committed in the company of another person or persons. The Crown alleges the accused committed the offence when the accused was in the company of [alleged co-offender]. The Crown case is that when the accused carried out the sexual act, [alleged co-offender] was [specify nature of presence].

The Crown will prove the offence was committed “in company” if it proves beyond reasonable doubt:

(a) 

the accused and [alleged co-offender] shared a common purpose that a sexual act would be carried out with or towards the complainant;

and

(b) 

[alleged co-offender] was physically present when the sexual act occurred.

For [alleged co-offender] to be “physically present”, the Crown must prove the co-offender was sufficiently close [refer only to those of the following the Crown relies on]:

(a) 

to intimidate or coerce the complainant in relation to the sexual act;

or

(b) 

to encourage or support the accused in carrying out the sexual act.

It is not enough for the Crown to prove either the accused shared a common purpose with [alleged co-offender] that the sexual act would be carried out, with or towards the complainant, or that [alleged co-offender] was physically present. The Crown must prove both of these beyond reasonable doubt before you can conclude the offence was committed in company.

[If appropriate, add: It is not enough [alleged co-offender] shared a common purpose with the accused that a sexual act would be carried out with or towards the complainant, but was not physically present in the way in which I have defined that concept. For example, it would not be enough if [alleged co-offender] was somewhere else acting as a look-out, or had provided encouragement to the accused at some time before the sexual act occurred.]

[Summarise the evidence relied on by the Crown and the defence case.]

Under authority — s 61KF(2)(b)

The Crown alleges the aggravating circumstance that the offence was committed when the complainant was under the authority of the accused. To establish this, the Crown must prove the complainant was under the accused’s care, supervision or authority [whether generally or at the time of the offence]. It is a matter for you to determine whether the evidence establishes the complainant was under the care, supervision or authority of the accused.

[Summarise the evidence relied on by the Crown and the defence case].]

Complainant has serious physical disability or cognitive impairment — s 61KF(2)(c), (d)

It is an aggravating circumstance if the offence was committed while the complainant had a [serious physical disability OR cognitive impairment].

The law recognises a variety of forms of “cognitive impairment”, including where a person has a [nominate the form of cognitive impairment according to the list in s 61HD and in accordance with the evidence relied on in the particular case].

OR

The law does not define what a “serious physical disability” is. That is a matter for you to decide. However, it is an ordinary English phrase, and you should give it its ordinary English meaning. It obviously focuses on disability of the body, as opposed to the mind and requires you to evaluate whether there was a disability that was a serious one.

To prove this element, the Crown relies upon the evidence of [summarise relevant evidence].

That evidence [has/has not] been disputed. [Summarise defence case as necessary.]

Conclusion

If you are satisfied the Crown has proved all five elements of the aggravated offence of sexual act in the indictment beyond reasonable doubt you would find the accused guilty. When asked for the verdict [for this count], your foreperson would simply announce, “guilty”.

If you are satisfied the Crown has only proved the first four elements of the basic offence of sexual act, but has not proved the element of aggravation, then you would acquit the accused of the aggravated offence and return a verdict of guilty for the basic offence. When asked for the verdict [for this count], your foreperson would announce, “not guilty of aggravated sexual act but guilty of sexual act”.

If you are not satisfied the Crown has proved any one of the four elements of the basic offence of sexual act, then you would acquit the accused completely. When asked for the verdict [for this count], your foreperson would simply announce, “not guilty”.

[5-1250] Notes — aggravated sexual act — under s 61KF

Last reviewed: September 2023
1. 

As indicated in the suggested direction, the “circumstances of aggravation” for a charge against s 61KF are listed in s 61KF(2).

2. 

An alternative verdict for the basic offence in s 61KE is available for a charge under s 61KF: s 80AB(1).

3. 

To establish that the offence was committed in company, the Crown must show another person was physically present and shared a common purpose with the accused: R v Button (2002) 54 NSWLR 455 at [120]. Whether or not another person is physically present depends on what was described in Button at [125] as:

… the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission.

See also R v ITA [2003] NSWCCA 174 at [137]–[140].

Mere presence of another person is not sufficient: R v Crozier (unrep, 8/3/96, NSWCCA); Kelly v The Queen (1989) 23 FCR 463 at 466. The complainant’s perspective (of being confronted with more than one person) is relevant but not determinative. “If two or more persons are present, and share the same purpose, they will be ‘in company’, even if the victim was unaware of the other person”: Button at [120]. It is sufficient if the complainant is confronted by the “combined force of two or more persons”, even if the other person(s) did not intend to physically participate if required: R v Leoni [1999] NSWCCA 14 at [20] (referring to the judgment of King CJ in R v Broughman (1986) 43 SASR 187 at 191); applied in R v Villar [2004] NSWCCA 302 at [68]. Proof of this aggravating circumstance does not depend upon the other person being convicted of the same offence: Villar at [69].

4. 

As to whether the alleged victim is under the authority of the accused (s 61KF(2)(b)), s 61H(2) provides that “a person is under the authority of another person if [they are] in the care, or under the supervision or authority, of the other person”. In KSC v R [2012] NSWCCA 179 at [125], McClellan CJ at CL (Davies and Fullerton JJ agreeing) concluded that the components in the definition of care and supervision made plain the nature of the relationship to which section was directed and that each of the words “care”, “supervision” and “authority” were ordinary English words a jury would have no difficulty understanding. See also R v Howes [2000] VSCA 159 at [4]; R v MacFie [2000] VSCA 173 at [18], [21]. It is not confined to relationships based on a legal right or power: Howes at [50]; MacFie at [20]–[21].

5. 

“Serious physical disability” (s 61KF(2)(c)) is not defined but is capable of encompassing a vast array of different conditions: JH v R [2021] NSWCCA 324 at [38]. In JH v R, it was held that this term did not require explication as the words mean what they say and are capable of being applied by a jury: [24]–[25].

6. 

“Cognitive impairment” is defined in s 61HD and provides that a person has such an impairment if they have:

(a) 

an intellectual disability, or

(b) 

a developmental disorder (including an autistic spectrum disorder), or

(c) 

a neurological disorder, or

(d) 

dementia, or

(e) 

a severe mental illness, or

(f) 

a brain injury,

that results in the person requiring supervision or social habilitation in connection with daily life activities.

[5-1260] Suggested direction — sexual act involving a child under 10 (s 66DC)

Last reviewed: September 2023

This direction can be adapted for an offence involving a child against s 66DE. For incitement offences see the commentary at [5-1290] Notes — Incitement offences.

It is suggested that consideration be given to whether it is more helpful to explain the competing cases of the parties overall for the jury after identifying the separate elements of the offence or as the directions are given for each element.

The accused is charged with carrying out a sexual act with or towards the complainant. The Crown case is that [briefly outline the incident/s to which the charge relates].

Before you can find the accused is guilty, the Crown must prove beyond reasonable doubt each of the following elements of the offence.

1. 

the complainant was a child under 10 years old;

2. 

the accused intentionally carried out an act with, or towards, the complainant; and

3. 

the act was sexual.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them then you must find the accused not guilty.

1. 

The complainant was a child under 10

The law says a child is a person who is under the age of 10 years. In this case there is no dispute the complainant was a child of [age] at the time specified on the indictment. [This will require adaptation if the complainant’s age is disputed].

2. 

The accused intentionally carried out a sexual act with or towards the complainant

The act itself must be voluntary and intentional, not an accident or carried out by mistake.

In determining whether the act was intentionally carried out with or towards the complainant, you are to consider the act and all of its surrounding circumstances. [refer to specific Crown allegation regarding the act].

This may include:

  • The nature of the act;

  • The proximity between the accused and the complainant when the act was carried out (the complainant does not have to be in the immediate physical presence of the accused);

  • The visibility of the act and whether the accused wanted their actions to be seen or was deliberately hiding them;

  • What interaction, if any, occurred between the complainant and the accused at the time the act was being carried out, including inviting or encouraging the complainant to watch or participate.

[Add the following where the offence is particularised as ‘with’]:

The act must involve some participation by the complainant (although the Crown case is that the participation was involuntary).

[Add the following where the offence is particularised as ‘towards’]:

In performing the act, there must be some engagement with the complainant, from which it can be inferred the act is directed at the complainant.

[For either particularisation]:

It is not enough if the complainant was simply present (physically or electronically), but nothing more, when the act was carried out.

3. 

The act was sexual

Sexual act means an act (other than touching another person) carried out in circumstances where a reasonable person would consider the act to be sexual.

In determining whether a reasonable person would consider the act was sexual, you should consider everything you regard as relevant, but there are some particular matters you are required to take into account. They are:

  • the part of the body involved in the act. Was it the genital or anal area or [only in the case of a female person, or a transgender/intersex person identifying as female: the breasts] [and add where relevant: whether or not the breasts are sexually developed]?

  • whether the person carrying out the act did so for sexual arousal or sexual gratification.

  • was there any other aspect of the act (including the circumstances in which it was carried out) which made it sexual?

The Crown is not required to prove any particular one of these matters. They are matters you are required to take into account, along with anything else you consider to be relevant when you are deciding whether the Crown has proved that the act was “sexual”.

[Where appropriate: An act carried out for genuine medical or hygienic purposes is not a sexual act. As that is what the accused says was the reason for carrying out the act, it is a matter for the Crown to prove beyond reasonable doubt that it was not done for such a purpose.]

[If the circumstances of the particular case require it: Some sexual offences require the Crown to prove the complainant did not consent. But where the alleged offence involves a child, consent is irrelevant. The law says that children cannot consent to sexual activity.]

If you find that the Crown has proved all three elements of the offence beyond reasonable doubt, then your verdict should be “guilty”. However, if you are not satisfied the Crown has proved any one element of the offence, then your verdict should be “not guilty”.

[5-1270] Notes — sexual act involving a child

Last reviewed: September 2023
1. 

Section 80AF Crimes Act 1900, which addresses the situation where there is some uncertainty about the timing of a particular offence or offences against a child, may require consideration. The section may only be invoked at the commencement of a trial; it cannot be invoked to address uncertainties that arise during the trial: Stephens v The Queen [2022] HCA 31 at [45]–[46].

[5-1280] Suggested direction — sexual act involving a child which is filmed (s 66DF)

Last reviewed: September 2023

The suggested direction is based on the offence in s 66DF. For incitement offences see [5-1290] Notes — Incitement offences.

The accused is charged with carrying out a sexual act with or towards the complainant, while knowing the act is being filmed for the purposes of producing child abuse material. The Crown case is that [briefly outline the incident/s to which the charge/s relates].

Before you can find the accused is guilty, the Crown must prove beyond reasonable doubt each of the following elements of the offence:

1. 

the complainant was a child under 16 years old at the time of the offence;

2. 

the accused intentionally carried out an act with, or towards, the complainant;

3. 

the act was sexual; and

4. 

the accused knew the act was being filmed to produce child abuse material.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them then you must find the accused not guilty.

1. 

The complainant was a child under 16.

The law says a child is a person who is under the age of 16 years. In this case there is no dispute the complainant was a child of [age] at the time specified on the indictment. [This will require adaptation if the complainant’s age is disputed].

2. 

The accused intentionally carried out a sexual act with or towards the complainant

The act itself must be voluntary and intentional, not an accident or carried out by mistake.

In determining whether the act was intentionally carried out with or towards the complainant, you are to consider the act and all of its surrounding circumstances. [Refer to specific Crown allegation regarding the act].

This may include:

  • the nature of the act;

  • the proximity between the accused and the complainant when the act was carried out (the complainant does not have to be in the immediate physical presence of the accused);

  • the visibility of the act and whether the accused wanted their actions to be seen or was deliberately hiding them;

  • what interaction, if any, occurred between the complainant and the accused at the time the act was being carried out, including inviting or encouraging the complainant to watch or participate.

[Add the following where the offence is particularised as ‘with’]:

The act must involve some participation by the complainant (even though the Crown case is that the participation was involuntary).

[Add the following where the offence is particularised as ‘towards’]:

In performing the act, there must be some engagement with the complainant, from which it can be inferred the act is directed at the complainant.

[For either particularisation]:

It is not enough if the complainant was simply present (physically or electronically), but nothing more, when the act was carried out.

3. 

The act was sexual

Sexual act means an act (other than touching another person) carried out in circumstances where a reasonable person would consider the act to be sexual.

In determining whether a reasonable person would consider the act was sexual, you should consider everything that you regard as relevant, but there are some particular matters you are required to take into account. They are:

  • whether there was any other aspect of the act (including the circumstances in which it was carried out) which made it sexual?

  • the part of the body involved in the act. Was it the genital or anal area [only in the case of a female person, or a transgender/intersex person identifying as female: or the breasts] [and add where relevant: whether or not the breasts are sexually developed]?

  • whether the person carrying out the act did so for the purpose of obtaining sexual arousal or sexual gratification;

  • whether there was any other aspect of the act (including the circumstances in which it was carried out) which made it sexual?

The Crown is not required to prove any particular one of these matters. They are matters you are required to take into account, along with anything else you consider to be relevant when you are deciding whether the Crown has proved that the act was “sexual”.

[Where appropriate: An act carried out for genuine medical or hygienic purposes is not a sexual act. As that is what the accused says was the reason for carrying out the act, it is a matter for the Crown to prove beyond reasonable doubt that it was not done for such a purpose.]

4. 

The accused knew the act was being filmed to produce child abuse material

The Crown case is that the alleged sexual act [briefly state the particulars] was being filmed for the purposes of producing child abuse material and the accused knew this.

Child abuse material includes material that depicts a child’s private parts, or a child engaged in sexual posing or sexual activity, [or where relevant: a child in the presence of another person engaged in sexual posing or a sexual activity].

Private parts means a person’s genital or anal area (whether bare or covered by underwear) [only in the case of a female person, or a transgender/intersex person identifying as female: or the breasts] [and add where relevant: whether or not the breasts are sexually developed].

Child abuse material is what reasonable persons would, in all the circumstances, consider to be offensive. In determining whether reasonable persons would regard particular material as being, in all the circumstances, offensive, you should consider everything that you regard as relevant, but there are some particular matters you are required to take into account. They are:

(a) 

the standards of morality, decency and propriety generally accepted by reasonable adults, and

(b) 

the literary, artistic or educational merit (if any) of the material, and

(c) 

the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and

(d) 

the general character of the material (including whether it is of a medical, legal or scientific character).

You must also be satisfied the accused knew, at the time of the sexual act, that it was being filmed for the purpose of producing child abuse material.

[Where appropriate: Some sexual offences require the Crown to prove the complainant did not consent. But where the alleged offence involves a child, consent is irrelevant. The law says that children cannot consent to sexual activity.]

If you find that the Crown has proved all four elements of the offence beyond reasonable doubt, then your verdict should be “guilty”. However, if you are not satisfied the Crown has proved any one element of the offence, then your verdict should be “not guilty”.

[5-1290] Notes — incitement offences

Last reviewed: September 2023

1. 

The offences of committing a sexual act include inciting an alleged victim to carry out a sexual act with or towards the alleged offender or a third person, or inciting a third person to sexually touch the alleged victim (ss 61KE(b)–(d), 61KF(b)–(d), 66DC(b)–(d) and 66DE(b)–(d)) or doing any of the aforementioned while knowing the sexual act is being filmed for the purposes of the production of child abuse material (s 66DF(b)(d)).

2. 

It is not an offence to incite an offence where the offence is constituted by inciting another person to carry out a sexual act: s 80G(5)(a).

3. 

“Incite” is not defined in the Act. Its meaning was discussed in R v Eade [2002] NSWCCA 257, where Smart AJ observed at [59]–[60]:

In Young v Cassells (1914) 33 NZLR 852 Stout CJ … said: “The word ‘incite’ means to rouse; to stimulate; to urge or spur on; to stir up; to animate.” In R v Massie [1999] VR 542 at 564, Brooking JA, with whom Winneke P and Batt JA agreed, said of ‘incite’, “common forms of behaviour covered by the word are ‘command’, ‘request’, ‘propose’, ‘advise’, ‘encourage’, or ‘authorise’”.

It was pointed out in Regina v Asst Recorder of Kingston [1969] 2 QB 58 at 62 that with the offence of incitement it is merely the incitement which constitutes the offence and that it matters not that no steps have been taken towards the commission of the substantive offence nor whether the incitement had any effect at all: Young v Cassells …”

4. 

The incitement must be to commit the specific offence at hand: Walsh v Sainsbury (1925) 36 CLR 464 at 476; Clyne v Bowman (1987) 11 NSWLR 341 at 347–348. It is not necessary to prove the person incited acted upon the incitement or whether the incitement had any effect. However, it is necessary to prove that the course of conduct urged would, if it had been acted upon as the inciter intended it to be, amount to the commission of the offence: R v Dimozantis (unrep, 7/10/1991, Vic CCA); R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58 at 62.