Sexual offences

[5-000] Directions

Last reviewed: March 2024

Part 5, Div 1, Subdiv 3 Criminal Procedure Act 1986 (ss 292A–292E) contains directions regarding misconceptions about sexual consent which may be given in certain hearings for particular sexual offences. These provisions apply to the Local Court (see ss 274, 275) and to the “hearing of the proceedings” that commence on or after 1 June 2022: Sch 2, Pt 42, cl 117 Criminal Procedure Act. This is consistent with a reference to the hearing of the particular trial or hearing proceedings: GG v R (2010) 79 NSWLR 194 in relation to an amendment to the Evidence Act 1995 with similarly worded transitional provisions.

The offences in the Local Court where consideration of whether a direction is necessary are:

  • sexual touching: s 61KC Crimes Act 1900

  • aggravated sexual touching: s 61KD

  • sexual act: s 61KE

  • aggravated sexual act: s 61KF,

  • attempts to commit the above offences.

The magistrate, as the trier of fact, should consider whether they need to give themselves such a direction. The timing of a direction may also be an important consideration. For commentary and suggested directions, see Criminal Trial Courts Bench Book, Directions — misconceptions about consent in sexual assault trials at [5-200]ff.

Sections 61HF–61HK of the Crimes Act address proof of consent for offences committed on or after 1 June 2022. For commentary and suggested directions regarding consent, see Criminal Trial Courts Bench Book, Sexual intercourse without consent – from 1 June 2022 at [5-900]ff.

For commentary and suggested directions regarding specific offences, see Criminal Trial Courts Bench Book:

For a discussion of the amendments and the context for these reforms, see P Mizzi and R Beech-Jones, “The law on consent in sexual assault is changing” (2022) 34(1) JOB 1.