Currency

Update 24, July 2019

Update 24 to the Handbook contains amendments to:

[6-000] Recent sexual assault law

The following recent cases have been added:

BC v R [2019] NSWCCA 11, where the Crown failed to adduce evidence capable of satisfying the jury to the criminal standard that the doli incapax presumption had been rebutted: [50], [51]. The presumption cannot be rebutted merely as an inference from the doing of the acts constituting the offence, although “the circumstances of the offending” may be capable of rebutting the presumption without evidence of the accused’s contemporaneous character or maturity: [43]–[45]. However, there was no error in admitting each complainant’s evidence as tendency evidence in respect of each count involving the other complainants; the evidence was significantly probative of the applicant having assaulted the four complainants: [59], [82], [97].

R v Denton [2019] NSWCCA 81, where the respondent was standing trial for offences of aggravated indecent assault and sexual intercourse with a child between 14 and 16 pursuant to ss 61M(2) and 66C(3) of the Crimes Act 1900, the primary judge was correct to conclude photographs of the respondent’s penis were not admissible for comparison with complainant’s drawings of same. If the forensic photographs were relevant, their probative value was so low that their tender should have been rejected because of the danger of unfair prejudice to the respondent: [3]; [9]; [34]; Evidence Act 1995, s 137.

McNiece v R [2019] VSCA 78, where any evaluation of the adequacy of sentences for offending in the use of the internet for the purposes of creating, obtaining or transmitting child pornography, or offending against children by means of the internet more generally, must be informed by the fact that this medium is a rapidly developing and easy means by which vulnerable children are exploited. The expanding breadth of offending and increased maximum penalties reflect the gravity with which the legislature views this form of offending.

McClelland v R [2019] NSWCCA 59, where the applicant appealed against sentence on grounds including that the sentencing judge erred by making findings about objective seriousness which contravened concessions made by the Crown. A sentencing judge is not bound to accept the Crown’s submitted assessment of the objective gravity of an offence: [27]. That assessment is a discretionary process and positioning objective seriousness on a spectrum does not readily admit of precision since it calls for a value judgment about which minds might reasonably differ: [27].

R v Edwards [2019] QCA 15, where it was held an error to consider that cartoons, animations or stories depicting children in sexual activity constitute a victimless offence: [78]. The state of advancement in technology over the last 20 years reveals the inappropriateness of assuming that Category 6 material is distinctly different from the other categories.

R v DP [2019] NSWCCA 55, where the court found the sentence was manifestly inadequate, where the combination of features of aggravation additional to the complainant’s age (11 years old) as an element of the aggravated offence, warranted a finding of a very high degree of moral culpability, despite the judge’s finding that the nature and circumstances of the offending were bereft of details. Nor did the features of the respondent's subjective case operate in mitigation to any significant extent: [47]–[48].

RH v R [2019] NSWCCA 64, where the applicant was convicted as part of a joint criminal enterprise where the applicant assisted her partner in repeatedly sexually assaulting her daughter when she was aged between 10 and 13 years. She appealed her sentence on grounds including that the judge erred in assessing the objective criminality of her offending and by not taking into account the removal of her children as extra-curial punishment, and as the sentence was manifestly excessive (16 years imprisonment with a non-parole period of 11 years). The removal of the applicant’s children by authorities did not amount to extra-curial punishment. The applicant was obviously dangerous to the children; it would be perverse to conclude that their removal, in order to provide for their safety and care, involved any punishment for the applicant: [56]. The removal of the children was a natural consequence of the applicant’s terrible offending against one of them, and reflected society’s concern for the safety and ongoing care of those children: [57].

Clarke-Jeffries v R [2019] NSWCCA 56, where the applicant, who turned 18 on the day of one of the offences (s 474.26, Criminal Code), successfully appealed his sentence as manifestly excessive. The fact it is an element of the offence that the sender of the communications be at least 18 years old, and the applicant would therefore not have committed an offence at all had he not turned 18, particularly highlights his youth: [48]. Further, there was unchallenged evidence establishing the applicant was both emotionally and physically immature, and that that immaturity contributed to his offending. While the judge referred to the applicant’s youth, no reference was made to the evidence he had a “relatively immature set of neuro-behavioural systems for self-control and affect regulation”. The effect of that evidence was that the applicant’s criminality was less than would have been the case had the offending been committed by an adult. The sentence erroneously did not reflect those factors: [50]–[51].

OKS v State of WA (2019) 93 ALJR 438, where during the summing up, the trial judge directed the jury not to “follow a process of reasoning to the effect that just because [S] is shown to have told a lie or … has admitted she told a lie, that all of her evidence is in fact dishonest and cannot be relied upon” (“the impugned direction”). The appellant appealed his conviction on the basis that the impugned direction was wrong on a question of law. The appellate court unanimously upheld the ground, but applied the proviso under s 30(4) of the Criminal Appeals Act 2004 (WA), finding that no substantial miscarriage of justice had occurred: OKS v Western Australia (2018) 52 WAR 482. The High Court allowed the applicant’s appeal, quashed the conviction and ordered a new trial. The central issue at trial was the capacity of S’s evidence to support the appellant’s conviction in circumstances where her credibility was under challenge. It was within the jury’s province to find S’s lies, without more, precluded acceptance of her evidence of the offences beyond reasonable doubt. The appellate court rightly encapsulated the effect of the impugned direction as taking that process of reasoning away: [19], [27]; [33].

The following recent sexual assault legislation has been noted:

Justice Legislation Amendment Act (No 3) 2018, amended the Crimes Act 1900. These amendments add a new aggravating circumstance to aggravated sexual assault in s 61J. It also amends the Criminal Procedure Act 1986 to enable expert evidence to be given concurrently or consecutively, and provide new provisions and offences with respect to sensitive evidence. This Act commenced on 28 November 2018, except relevantly 1.4 [1] and [4], 1.17 [1] and [4] which commence on proclamation. Schedule 1.11 [1] and [2] commenced 17 December 2018, Sch 1.20 commenced 28 February 2019 and Sch 1.2 [1]–[3] commenced on 31 May 2019.

Crimes Legislation Amendment (Victims) Act 2018, amended the Children (Criminal Proceedings) Act 1987. It introduces new procedures for determining applications by prosecution for child sexual assault offences to be dealt with according to law. Further amendments to the Criminal Procedure Act 1986 extend protections associated with the giving of evidence to victim, sexual offence and vulnerable witnesses. Amendments to the Crimes (Domestic and Personal Violence Act) 2007 require certain AVO proceedings be closed to the public. Further amendments were made by this Act to the Crimes (Sentencing Procedure) Act 1999, by repeal and replace Pt 3, Div 2 relating to victim impact statements (VIS). It extends VIS provisions to additional victims and introduces right for all victims to have support person present when reading VIS. It also made new provisions related to VIS in mental health and cognitive impairment forensic proceedings. These amendments commenced on proclamation on 27 May 2019, with remaining amendments under the Act commencing on 1 December 2018.

[6-050] Other publications

The following article, which outlines the changes brought about by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, has been published in the Judicial Officers Bulletin:

P Mizzi, “Balancing prosecution with the right to a fair trial: the child sexual abuse reforms in NSW” (2019) 31(2) JOB 11.

Update 23, February 2019

Update 23 to the Handbook contains amendments to:

[1-040] Meaning of “consent”

Following the commencement of the relevant provisions of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, which introduced a new consent provision, s 61HE into the Crimes Act 1900, a brief legislative history of the consent provisions has been included in the Handbook.

[6-000] Recent Cases

Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 has been added where error was found as the trial judge relied on the dissenting reasons in McPhillamy v R [2017] NSWCCA rather than applying High Court authority including Hughes v The Queen (2017) 92 ALJR 52 regarding the admissibility of tendency evidence in child sexual assault offences.

PPC v Stylianou [2018] NSWCCA 300 regarding the sexual assault communications privilege has been added. This clarifies that a judge is not precluded from exercising independent discretion when determining whether to grant access to protected confidence documents where another judge previously granted leave for subpoena to produce protected confidence documents.

Dawkins v R [2018] NSWCCA 278 has been added where error was found as the trial judge’s findings regarding objective seriousness and aggravating circumstances of sexual intercourse prescribed by s 66C(5) of the Crimes Act 1900 were not reasonably open .

An historical indecent assault matter, SY v R [2018] NSWCCA 6, has been added. The parties had agreed that there was no obligation on the part of the applicant’s lawyers to challenge the complainant’s honesty and credibility without precluding the applicant arguing that the events complained of did not occur. In the face of that agreement, the trial judge raised for the jury matters beyond the issues upon which the trial was being conducted and effectively drew the jury’s attention to the credibility of the complainant’s evidence in a manner detrimental to the applicant.

[9-000] Sexual assault communications privilege

A new section on the sexual assault communications privilege has been added at [9-0000]. This section outlines the legislative reform from the introduction of the privilege into the Evidence Act 1995 in January 1998, to the current provisions in Pt 5, Div 2 of the Criminal Procedure Act 1986 (NSW); defines a protected confidence; and outlines the scope and purpose of the privilege, including relevant case law.

Update 22, December 2018

Update 22 to the Handbook contains amendments to:

[1-000] Offences

Table 1, which details sexual offences against adults and child victims, and Table 2, other sexual offences at [1-010] have been updated to reflect amendments to the Crimes Act 1900 and the Criminal Procedure Act 1986 (commenced on 1 December 2018). This includes new offences of “sexual touching” and “sexual act”, which are defined in the new ss 61HB and 61HC respectively.

[6-000] Recent Cases

The High Court decision McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 regarding tendency evidence in historical sexual offences, and whether the evidence meets the threshold requirement of significant probative value has been added.

The High Court decision Johnson v The Queen (2018) 92 ALJR 1018; [2018] HCA 48 regarding context evidence in historical child sexual assault evidence of uncharged acts to explain otherwise implausible aspect of complainant’s evidence has been added.

A further summary of the High Court decision in The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40 regarding the admissibility of a complainant’s recorded evidence from previous trial has also been added.

The High Court decision DL v The Queen (2018) 92 ALJR 636; [2018] HCA 26 regarding persistent sexual exploitation of a child has been added.

The case of Llewellyn v R [2011] NSWCCA 66 regarding directions erroneously following the conviction of a single offence of sexual intercourse without consent has been added.

Summaries of the following sexual assault legislation which commenced 1 December 2018 have been added:

Justice Legislation Amendment Act (No 3) 2018 , which amends Crimes Act 1900 and adds new aggravating circumstance to aggravated sexual assault in s 61J. It also amends Criminal Procedure Act 1986 to enable expert evidence to be given concurrently or consecutively and new provisions and offences with respect to sensitive evidence.

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, certain provisions, which restructure and modernise sexual offences in Crimes Act 1900, Pt 3, Div 10. The new s 80AF permits prosecution when there is uncertainty about when child sexual offence occurred. The new consent provision, s 61HE, expands the definition of consent to “sexual activity” which includes sexual intercourse, sexual touching or a sexual act (s 61HE(11)) and applies to offences under ss  61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF: s 61HE(1) — it is no longer limited, as previously, to “sexual intercourse” — the existing consent provision, s 61HA, is repealed — new s 80AG is inserted and is aimed at decriminalising certain acts engaged in by children for offences against ss 66C(3), 66DB, 66DD, 73 or 73A if the alleged victim is of or above 14 years old and the age difference between the alleged victim and the accused is no more than 2 years — new s 293A is inserted into the Criminal Procedure Act 1986 to enable judges to give jury directions to address difference in accounts given by complainant.

Update 21, September 2018

Update 21 to the Handbook contains amendments to:

[6-000] Recent Cases

The High Court decision The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40 regarding tendency evidence and suggested jury directions in single complainant sexual offence cases where evidence of uncharged acts admitted as tendency evidence has been added.

[10-500] Important general directions in sexual assault trials

Context/tendency evidence has been updated to reflect the High Court decision The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, where, in the course of its reasons, the High Court set out, at [86], the directions which should ordinarily be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence the accused had a sexual interest in the complainant and a tendency to act upon it.

Update 20, September 2018

Update 20 to the Handbook contains amendments to:

[1-000] Offences

The Offences table has been revised in response to the commencement of part of the Criminal Legislation Amendment (Child Sexual Abuse Act) 2018. Section 43B has been added, and applies to adults (“position holders”) working or volunteering for an organisation which carries out “child-related work”. An offence is committed if a position holder knows of a serious risk that an adult worker will commit a child abuse offence, has the power or responsibility to reduce or remove that risk and negligently fails to do so: s 43B(1). It is not necessary to prove a child abuse offence has been committed: s 43B(2). The maximum penalty is 2 years.

A new offence, in s 316A(1), with a maximum penalty of 2 years, is added and provides that it is an offence if an adult who: (a) knows, believes or reasonably ought to know that a child abuse offence has been committed against another person, and (b) knows, believes or reasonably ought to know they have information that might be of material assistance in securing the apprehension, prosecution or conviction of the offender for that offence, (c) fails without reasonable excuse to bring that information to the attention of police as soon as it is practicable to do so. Under s 316A(4), it is an offence if a person solicits, accepts or agrees to accept any benefit for themselves or anyone else in consideration for doing anything that would be an offence under s 316A(1). The maximum penalty is 5 years.

[6-000] Recent sexual assault law

Update 20 contains the following additions to recent law items posted in JIRS:

Sentencing: Rampe v R [2018] NSWCCA 163

Court suppression orders: Qiangdong Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159

[7-500] Articles

P Mizzi, “The sentencing reforms — balancing causes and consequences of offending with community safety” (2018) 30 JOB 73

[7-550] R Blackley & L Bartels — Sentencing and treatment of juvenile sex offenders in Australia

Update 19, June 2018

Update 19 to the Handbook contains amendments to:

[1-000] Offences

The Offences Table has been revised and further articles have been added.

[7-000] Articles

[7-270] T Gartelmann — Tendency, coincidence and joint trials

[8-000] Royal Commission into Institutional Responses to Child Sexual Abuse

This section has been updated due to the release of the Final Report on 15 December 2017.

[10-240] District Court Criminal Practice Note 9 has been updated.

[10-500] H Murrell — Important general directions in sexual assault trials

.

Update 18, August 2017

Update 18 to the Handbook contains amendments to Offences at [1-000] and a new section Royal Commission into Institutional Responses to Child Sexual Abuse has been inserted at [8-000].

 

Update 17, April 2016

[6-000] Recent sexual assault law

Update 17 to the Handbook contains additions to Recent sexual assault law at [6-000] and ff to include references to and links to recent law items posted on JIRS.

[7-000] Articles

[7-250] P Cooper — Children’s champions/witness intermediaries.

This provides information regarding the role of witness intermediaries in readiness for the commencement of the Child Sexual Offence Evidence Pilot in the District Court (Downing Centre and Newcastle) on 2 April 2016.

[7-260] P McClellan and A Doyle — Legislative facts and s 144 — a contemporary problem

This article discusses how courts can use available learning regarding the sexual abuse of children in the trial and sentencing process and the effect of s 144 of the Evidence Act 1995 on the operation of the common law doctrine of judicial notice.

[7-265] J Goodman-Delhahunty and A Cossins — Jury views of psychological expert evidence about child abuse

This presentation reports on research into the impact on jurors of expert clinical and research psychological evidence in a simulated child sexual assault trial.

Miscellaneous

[10-260] District Court Criminal Practice Note 11

The Chief Judge of the District Court has issued this Practice Note to facilitate operation of the Child Sexual Offence Evidence Pilot in the Downing Centre District Court. The pilot will also operate at Newcastle District Court.

 

Update 16, July 2015

Update 16 to the Handbook includes changes to the Offences chapter at [1-000] to reflect the amendments made to the Crimes Act 1900 and the Crime (Sentencing Procedure) Act 1999 by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 which commenced on 29 June 2015. The update includes amendments to:

  • Table 1 in [1-000] Sexual offences involving child victims (to include the new maximum penalty for Crimes Act 1900, s 66A offences (life), and the new standard non-parole periods for various child sex offences: Crimes Act 1900, ss 66B, 66C(1), (2), (4), 66EB(2), (2A), (3), 91D(1), 91E(1), 91G(1)).

  • [1-020] Sexual offences — alternative verdicts to reflect the omission of s 66E(2) and the insertion of the new s 66A.

 

Update 15, June 2015

Update 15 to the Handbook contains additions to Recent sexual assault law at [6-000] to include references to and links to recent law items posted on JIRS:

  • [6-010] Legislation: Statute Law (Miscellaneous Provisions) Act (No 2) 2014 (amends Criminal Procedure Act 1986, s 130A; pre-trial orders and orders made during trial on admissibility of evidence binding on subsequent trial judge); Child Protection (Offenders Registration) Amendment (Statutory Review) Act 2014 (amends Child Protection (Offenders Registration) Act 2000; expands classes of registrable offences; various other amendments); Bail Amendment Act 2014 — amends Bail Act 2013 (requires bail for certain serious offences be refused unless accused shows cause why detention not justified; additional matters in applying unacceptable risk test).

  • [6-020] Evidence: Taleb v R [2015] NSWCCA 105 (admissibility of evidence relating to sexual experience; “sexual intercourse so alleged” excludes issues of consent: Criminal Procedure Act 1986, s 293(4)(c); exception in s 293(4)(a) not applicable); WC v R [2015] NSWCCA 52 (admissibility under Criminal Procedure Act 1986, s 306I; “not admissible” under Evidence Act 1995, ss 59, means “not admissible over objection”); Pasoski v R [2014] NSWCCA 309 (interaction between s 306I and Evidence Act 1995; admissibility of relationship evidence); JWM v R [2014] NSWCCA 248 (admissibility of evidence relating to sexual experience: Criminal Procedure Act 1986, ss 293(4)(a); sexual assault communications privilege; no error in lack of explicit tendency warning about “pretext” evidence).

  • [6-025] Procedure: AF v R [2015] NSWCCA 35 (no right of appeal against vulnerable person ruling: Criminal Procedure Act 1986, ss 306M, 306S(1)(a); Criminal Appeal Act 1912, s 5F); DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 (show cause and acceptable risk tests; two tests not to be conflated: Bail Act 2013, ss 16A, 19; practice of referring bail applications to the Court of Appeal should cease); JG v R [2014] NSWCCA 138 (ambiguity as to whether pre-trial rulings on evidence within scope of Criminal Procedure Act 1986, s 130A(3); credibility a jury matter and not relevant to assessment of probative value of evidence; tendency and coincidence evidence: Evidence Act 1995, ss 97, 98, 101).

  • [6-030]. Directions: KA v R [2015] NSWCCA 111 (no error in joint criminal enterprise directions; no Shepherd v The Queen (1990) 170 CLR 573 direction required); Ewen v R [2015] NSWCCA 117 (effect of Criminal Procedure Act 1986, s 294AA, on R v Murray (1987) 11 NSWLR 12 direction; directions in sexual assault cases which will not contravene s 294AA); ML v R [2015] NSWCCA 27 (no error in refusing warning under Evidence Act 1995, s 165A(2), based on child complainant’s psychological issues; warning regarding forensic disadvantage not required); Budrodeen v R [2014] NSWCCA 332 (erroneous written directions in form of question trail).

  • [6-035] Sentencing: AH v R [2015] NSWCCA 51 (error in finding applicant’s good character facilitated commission of sexual offences; Crimes (Sentencing Procedure) Act 1999, s 21A(5A), inapplicable); KAB v R [2015] NSWCCA 55 (no denial of procedural fairness where finding that sexual offence aggravated by risk of pregnancy although factor not subject of Crown submissions or agreed facts); LJS v R [2015] NSWCCA 47 (sentencing for historical child sexual offences); Ahmu v R [2014] NSWCCA 312 (error in assessment of objective seriousness of sexual offences committed in domestic violence context); R v RM [2015] NSWCCA 4 (no power to impose aggregate suspended sentence; error in quantifying discount for remorse: Crimes Act 1900, ss 66A, 66B; Crimes (Sentencing Procedure) Act 1999, ss 12, 53A); JM v R [2014] NSWCCA 297 (summary of relevant principles and issues relating to imposition and appellate review of aggregate sentences: Crimes (Sentencing Procedure) Act 1999, ss 53A, 54B); MLP v R [2014] NSWCCA 183 (appeal against severity of sentence for child sexual assault: Crimes Act 1900, s 66A); RJB v R [2015] NSWCCA 93 (objective seriousness and accumulation; error in imposition of fixed terms: Crimes Act 1900, s 66A).

  • [6-040] Appeals: AF v R [2015] NSWCCA 35 (no right of appeal against vulnerable person ruling: Criminal Procedure Act 1986, ss 306M, 306S(1)(a); Criminal Appeal Act 1912, s 5F); Mansaray v R [2015] NSWCCA 40 (judge’s opinion of jury’s verdict and complainant’s evidence irrelevant to conviction appeal: Criminal Appeal Act 1912, s 6(1), s 11); R v RM [2015] NSWCCA 4 (court declined to intervene in exercise of residual discretion); TS v R [2014] NSWCCA 174 (error in refusal by judge to permanently stay sexual assault proceedings).

Cross-references to the Criminal Trials Bench Book and the Sentencing Bench Book have been updated in the following chapters: [1-100] Trial procedure, [3-000] Checklist of jury directions, [4-000] Resource materials for important directions and [5-000] Sentencing.

 

Update 14, November 2014

Update 14 to the Handbook contains additions to Recent sexual assault law at [6-000] to include references to and links to recent law items posted on JIRS:

  • [6-010] Legislation: Crimes Legislation Amendment Act 2014 (extends statutory definition of consent to attempted sexual assault offences: Crimes Act 1900, s 61HA; written record required of indicative sentences when s 53A aggregate sentence imposed).

  • [6-015] Offences: NW v R [2014] NSWCCA 217 (errors in charges for pornography offences where provisions had been amended: Crimes Act 1900, ss 91FB, 91G(1)(a), 91G(3)(rep), 91H(2)).

  • [6-020] Evidence: R v MM [2014] NSWCCA 144 (admissibility of context evidence of other offences and of relationship between accused and his sister in incest case); Saoud v R [2014] NSWCCA 136 (admissibility of tendency and coincidence evidence as to alleged sexual offences committed against two complainants in similar circumstances: Evidence Act 1995, ss 97, 98, 101).

  • [6-030] Directions: W v R [2014] NSWCCA 110 (contention that requirement to give reliability warning not applicable to judge-alone trials rejected: Evidence Act 1995, s 165); Jarrett v R [2014] NSWCCA 140 (warning about delay in complaint in sexual offence proceedings: Criminal Procedure Act 1986, s 294(2)(c)).

  • [6-035] Sentencing: TU v R [2014] NSWCCA 155 (appeal against severity of sentence for child sexual assault: Crimes Act 1900, s 66A); Ingham v R [2014] NSWCCA 123 (resentencing in child sexual assault case where Muldrock ((2011) 244 CLR 120) error conceded: Crimes Act 1900, ss 66A, 66B, 61M ); R v RD [2014] NSWCCA 103 (Crown appeal against sentence for child sexual assault where victim’s pregnancy, age and vulnerability rendered offences extremely serious: Crimes Act 1900, s 66C).

  • [6-040] Appeals: TS v R [2014] NSWCCA 174 (appeal against refusal to permanently stay sexual assault proceedings where alleged offences 40 years old: Criminal Appeal Act 1912, s 5F); Carlton v R [2014] NSWCCA 14 (referral under Pt 7 of Crimes (Appeal and Review) Act 2001 circumvents need for leave to appeal and extension of time).

 

Update 13, June 2014

Update 13 to the Handbook contains amendments, including:

  • revisions to Trial procedure at [1-100]ff to include amendments made as a consequence of the enactment of the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth). A cross-reference has been added at [1-155] to the remote witness facilities operational guidelines reproduced in the Criminal Trial Courts Bench Book. These guidelines have been reissued following a review conducted by the NSW Department of Police and Justice. References have also been added to [1-110] (Douglass v The Queen (2012) 86 ALJR 1086) and [1-170] (NAR v PPC1 [2013] NSWCCA 25; KS v Veitch (No 2) (2012) 84 NSWLR 172; I Nash, “Sexual assault communications privilege”, paper presented at Public Defenders Conference, February 2014, Sydney).

  • minor amendments to Checklist of jury directions at [3-080] and Sentencing at [5-000] to include update cross-references to the Criminal Trials Court Bench Book and the Sentencing Bench Book.

  • additions to Recent sexual assault law at [6-000] to include references to and links to recent law items posted on JIRS:

    • [6-010] Legislation: Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth) (amends Crimes Act 1914 (Cth) to extend vulnerable witness protections to “vulnerable adult complainants” and persons declared by court to be “special witnesses”; establishes federal scheme for victim impact statements).

    • [6-015] Offences: Gillard v The Queen [2014] HCA 16 (negation of consent); O’Sullivan v R [2012] NSWCCA 45 (objective test for consent in s 61HA not applicable to attempt offence under s 61P).

    • [6-020] Evidence: Sokolowskyj v R [2014] NSWCCA 55 (tendency evidence erroneously admitted: Evidence Act 1995, ss 97, 101); De Silva v R [2013] VSCA 339 (effect of failure to object to expert evidence from child psychiatrist: Evidence Act 2008 (Vic), s 108C); O’Sullivan v R [2012] NSWCCA 45 (admissibility of evidence relating to sexual experience: Criminal Procedure Act 1986, s 293); KJS v R [2014] NSWCCA 27 (admissibility of context evidence in child sexual offence proceedings); DW v R [2014] NSWCCA 28 (admissibility of conversation recorded without warrant: Surveillance Devices Act 2007, s 7); R v Burton [2013] NSWCCA 335 (admissibility of evidence of telephone conversation recorded pursuant to warrant: Evidence Act 1995, s 137).

    • [6-025] Procedure: MJ v R [2013] NSWCCA 250 (validity of indictment where repealed and replaced offences); Stanizzo v Complainant [2013] NSWCCA 295 (costs in criminal proceedings).

    • [6-030] Directions: Gillard v The Queen [2014] HCA 16 (negation of consent); Doyle v R [2014] NSWCCA 4 (tendency evidence).

    • [6-035] Sentencing: Peiris v R [2014] NSWCCA 58 (use of sentencing statistics); R v Gavel [2014] NSWCCA 56 (aggregate sentence for serious child sex offences manifestly inadequate); Versi v R [2013] NSWCCA 206 (past sentencing practices); R v CMB [2014] NSWCCA 5 (adequacy of sentences imposed for furtther offences disclosed during assessment for pre-trial diversion program); Simpson v R [2014] NSWCCA 23 (objective seriousness of assault by reference to all relevant circumstances; duration or form of intercourse not to be given primary significance); MJ v R [2013] NSWCCA 250 (repealed and replaced offences).

    • [6-040] Appeals: R v CMB [2014] NSWCCA 5 (residual discretion to dismiss Crown appeal; double jeopardy: Crimes (Appeal and Review) Act 2001, s 68A); R v Burton [2013] NSWCCA 335 (appeal against decision or ruling on admissibility of evidence: Criminal Appeal Act 1912, s 5F(3A)); BCM v The Queen (2013) 88 ALJR 101 (verdicts unreasonable or unsupported by evidence).

 

Update 12, December 2013

Update 12 to the Handbook contains amendments, including:

  • revisions to Trial procedure at [1-100] to include amendments made to the definitions of “sexual offence witness” and “personal assault offence” in the Criminal Procedure Act 1986, ss 294D and 306M(1) respectively. The court’s jurisdiction under s 130 of the Criminal Procedure Act following the decision in KS v Veitch (2012) 300 ALR 181 has also been clarified at [1-105].

  • revisions to Pre-trial case management at [2-000] to include a reference to the new District Court Criminal Practice Note 9 (effective 1 September 2013)

  • revisions to Recent sexual assault law at [6-000] to include references and links to recent law items posted on JIRS:

    • [6-010] Legislation: Crimes Legislation Amendment Act 2013 (protections provided to complainant giving evidence in prescribed sexual offence proceedings extend to “sexual offence witness”); Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 (clarifies role and meaning of standard non-parole period (SNPP) following Muldrock v The Queen (2011) 244 CLR 120); Crimes and Courts Legislation Amendment Act 2013 (amendments to Evidence Act 1995, s 19 (compellability of spouses and others) and Criminal Procedure Act, s 306M(1) (giving of evidence by vulnerable persons); Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 (mandatory requirements for disclosure by in proceedings for indictable offences); Evidence Amendment (Evidence of Silence) Act 2013 (inserts s 89A into Evidence Act allowing unfavourable inference to be drawn where defendant fails to mention during official questioning a fact which is later relied on in proceedings).

    • [6-015] Offences: Zhu v R [2013] NSWCCA 163 (penetration for “proper medical purposes” for purposes of Crimes Act 1900, s 61H); RH v R [2011] NSWCCA 98 (adequacy of directions where evidence raised issue of consent to alleged indecent assault).

    • [6-020] Evidence: Colquhoun v R (No 1) [2013] NSWCCA 190 (requirement for tendency direction where evidence of accused sexual interest in child complainant); BJS v R [2013] NSWCCA 123 (admissibility of tendency evidence as to appellant’s sexual interest in, sexual activities with, girls of certain ages); RRS v R [2013] NSWCCA 94 (applicability of Evidence Act 1995, s 165, where defence case that complainants and their mother had concocted assaults).

    • [6-025] Procedure: BJS v R [2013] NSWCCA 123 (motion for separate trials under Criminal Procedure Act, s 21(2), effectively determined by ruling on admissibility of tendency evidence).

    • [6-030] Directions: Zhu v R (adequacy of good character direction); RRS v R (whether unreliability direction required under Evidence Act 1995, s 165, where defence case that complainants and their mother had concocted assaults); RH v R (adequacy of directions where evidence raised issue of consent to alleged indecent assault).

    • [6-035] Sentencing: MPB v R [2013] NSWCCA 213 and Magnuson v R [2013] NSWCCA 50 (approach to sentencing for historic child sex offences); Montero v R [2013] NSWCCA 214 and RO v R [2013] NSWCCA 162 (aggravating factors under Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(eb) (offence committed in home of accused) and 21A(2)(g) (substantial emotional harm caused by child sex offences)); BJS v R [2013] NSWCCA 123 (extra curial punishment not established in child sexual assault case); BJS v R (aggregate sentencing where multiple counts of indecent assault by former priest involving multiple victims); Magnuson v R (concurrent sentences in child sexual assault case); R v Cortese [2013] NSWCCA 148 (assessment of objective seriousness of aggravated sexual assault where pre-existing relationship).

  • the new District Court Criminal Practice Note 9 has been included at [10-240].

The resources component of the Handbook is currently under review. As part of this process, the following articles have been removed: D Boniface, “The Common Sense of Jurors vs The Wisdom of the Law: Judicial Directions and Warnings in Sexual Assault Trials” (previously at [7-020]); A Cossins, “Prosecuting Child Sexual Assault Cases: To specialise or not, that is the question” (previously at [7-060]); “The Hearsay Rule and Delayed Complaints of Child Sexual Abuse: The Law and the Evidence” (previously at [7-080]); and J Wood, “Summing-up, Corroboration and Credibility” (previously at [7-260]).

 

Update 11, June 2013

Update 11 to the Handbook contains amendments, including:

  • twenty-four historical and current offences have been added to Table 1: Sexual offences involving child victims in the Offences chapter at [1-000], including kidnapping offences. For each offence, Table 1:

    • provides information about its period of operation

    • sets out the maximum penalties for the offence where it is dealt with on indictment

    • specifies whether the offence is a “prescribed sexual offence” for the purposes of the Criminal Procedure Act, s 3, or a “serious children’s indictable offence” for the purposes of the Children (Criminal Proceedings) Act 1987, s 3

    • provides online access (as available) to amending Acts which commence, repeal or amend particular offences; sentencing statistics for the offence; NSWCCA case summaries for the offence; advance notes prepared by the ODPP (NSW); commentary in the Sentencing Bench Book, suggested directions and commentary in the Criminal Trial Courts Bench Book, and other Judicial Commission research publications.

  • revisions to Recent sexual assault law to include references and links to recent law items posted on JIRS:

    • [6-010] Legislation: Victims Rights and Support Act 2013; Crimes (Serious Sex Offenders) Amendment Act 2013

    • [6-020] Evidence: R v XY [2013] NSWCCA 121 (prejudicial evidence); MA v R [2013] VSCA 20 (opinion evidence)

    • [6-025] Procedure: R v Stanley [2013] NSWCCA 124 (trial by judge alone); WC v R [2012] NSWCCA 231 (discharge of whole jury); NAR v PPC1 [2013] NSWCCA 25 (sexual assault communications privilege); D1 v P1 [2012] NSWCA 314; D1 v P1 (No 2) [2012] NSWCA 440 (Court Suppression and Non-publication Orders Act 2010, ss 8(1)(c), 13, 14); KS v Veitch (No 2) [2012] NSWCCA 266 (sexual assault communications privilege)

    • [6-030] Directions: Christian v R [2012] NSWCCA 34 (admissions); PGM (No 2) v R [2012] NSWCCA 261 (admission of complainant’s evidence in new trial); RWC v R [2013] NSWCCA 58 (Markuleski v R (2001) 52 NSWLR 82 direction)

    • [6-035] Sentencing: Achurch v R (No 2) [2013] NSWCCA 117 (power to re-open proceedings to correct sentencing error following Muldrock v The Queen (2011) 244 CLR 120); R v Nahlous [2013] NSWCCA 90 (sentencing federal offenders); Lipchin v R [2013] NSWCCA 77 (sexual intercourse with a child between 14 and 16 years); PK v R [2012] NSWCCA 263 (standard non-parole period offences)

    • [6-040] Appeals: WC v R [2012] NSWCCA 231 (defence appeal against discharge of whole jury)

    • [6-050] Other publications: RA Hulme, “After Muldrock — sentencing for standard non-parole period offences in NSW” (2012) 24(10) JOB 81 — M Ierace SC, “Judge-alone trials” (2012) 24(9) JOB 73 — H Donnelly, “Assessing harm to the victim in sentencing proceedings” (2012) 24(6) JOB 45; “The diminished role of standard non-parole periods” (2012) 24(1) JOB 1.

 

Update 10, December 2012

Update 10 to the Sexual Assault Trials Handbook contains amendments to the following sections, including:

  • revisions to Recent sexual assault law to include references and links to recent law items posted on JIRS:

    • [6-010] Legislation: Crimes Legislation Amendment Act 2012

    • [6-015] Offences: Cargnello v DPP (Cth) [2012] NSWCCA 162 (encourage sexual intercourse with child under 16 years outside Australia), FP v R [2012] NSWCCA 182 (aggravated sexual assault), R v Speechley [2012] NSWCCA 130 (aggravated kidnapping), PGA v The Queen (2012) 86 ALJR 641 (common law rape)

    • [6-020] Evidence: R v SK [2011] NSWCCA 292 (tendency evidence), Norman v R [2012] NSWCCA 230 (relevance/tendency evidence); SKA v R [2012] NSWCCA 205 (context evidence), Ross v R [2012] NSWCCA 207 (silence), GEH v R [2012] NSWCCA 150 (Criminal Procedure Act 1986, s 293)

    • [6-025] Procedure: Douglass v The Queen (2012) 86 ALJR 1086 (trial by judge alone)

    • [6-030] Directions: SKA v R [2012] NSWCCA 205 (context evidence)

    • [6-035] Sentencing: Stewart v R [2012] NSWCCA 183 (application of Muldrock v The Queen (2011) 244 CLR 120)

    • [6-040] Appeals: [Name withheld] [2012] NSWCCA 247 (directed acquittal/sexual intercourse without consent)

    • [6-050] Other publications: Criminal Trials Court Bench Book Special Bulletin 30 (relationship evidence in sexual assault cases).

  • a reference and link to M Ierace, “Judge-alone trials” 24(9) JOB 73 at [1-110]

  • a reference and link to P Johnson “Admitting evidence of uncharged sexual acts in sexual assault proceedings” (2010) 22(10) JOB 79 at [3-080] and [4-180]

  • a reference and link to Criminal Trials Court Bench Book Special Bulletin 30 (relationship evidence in sexual assault cases) and Special Bulletin 26 (BBH v The Queen [2012] HCA 9: Evidence in child sexual assault cases).

  • reference to ss 53A, 66, 76(b), 77(1)(a), 78(6) Crimes (Sentencing Procedure) Act 1999 and s 61U Crimes Act 1900 at [5-140].

 

Update 9, May 2012

Update 9 to the Sexual Assault Trials Handbook contains the following important changes.

A new Offences chapter has been inserted at [1-000] which contains the following three tables (available online only). This chapter also includes new material to show the legislative history of the definition of “sexual intercourse” in the Crimes Act 1900 at [1-030].

Table 1: Sexual offences involving child victims at [1-000]:

  • contains current and historical NSW and Commonwealth sexual offences, including information about the period of operation of each offence

  • sets out the maximum penalties for offences where the offences are dealt with on indictment

  • identifies offences which attract a standard non-parole period (SNPP) under the Crimes (Sentencing Procedure) Act 1999, Pt 4, Div 1A

  • specifies whether a particular offence is a “prescribed sexual offence” for the purposes of the Criminal Procedure Act, s 3, or a “serious children’s indictable offence” for the purposes of the Children (Criminal Proceedings) Act 1987, s 3

  • provides online access (as available) to: amending Acts which commence, repeal or amend particular offences; sentencing statistics for each offence; NSWCCA case summaries for each offence; advance notes prepared by the ODPP (NSW); NSWCCA table of SNPP appeals; commentary in the Sentencing Bench Book, suggested directions and commentary in the Criminal Trial Courts Bench Book, and Judicial Commission research publications, including Sentencing Trends & Issues and Research Monographs; relevant articles in other Judicial Commission publications, including the Judicial Officers’ Bulletin and The Judicial Review.

Table 2: Sexual offences — other at [1-010] contains current sexual offences in the Crimes Act 1900 (other than those which specifically refer to children). While it is confined to current offences, it has the same features as Table 1.

Table 3: Sexual offences — alternative verdicts at [1-020] sets out the statutory alternative verdicts available in proceedings for sexual offences.

The material which was previously located in Checklist of procedural requirements at [1-000] has been restructured to reflect the current procedural requirements and has been renamed “Trial procedure” at [1-100]ff.

The material in Recent sexual assault law at [6-000]ff has been substantially revised:

  • the recent law material is now classified by subject as follows: legislation; case law relating to offences, evidence, directions, sentencing and appeals; and other publications of interest

  • links are provided to the full text of all recent law items posted.

 

Update 8, June 2011

Update 8 to the Sexual Assault Trials Handbook contains amendments to the following sections:

 

Update 7, April 2010

Update 7 to the Sexual Assault Trials Handbook contains amendments to the following sections:

“Case management”: paragraph [1-020] amended to incorporate reference to the Criminal Procedure Amendment (Case Management) Act 2009 and District Court Practice Note 9. Paragraph [1-040] “Prohibitions on publicity” amended to incorporate new s 15A Children (Criminal Proceedings) Act 1987 (s 11 repealed on 11 December 2009 by the Children (Criminal Proceedings) Amendment (Naming of Children) Act 2009). New heading “Removal of judgments from internet” included to refer to District Court Criminal Practice Note 8.

“District Court Practice Notes” paragraph [2-000] amended to incorporate reference to the Criminal Procedure Amendment (Case Management) Act 2009 and District Court Practice Note 9.

“Checklist of jury directions” section amended at [3-080] to include reference to TJ v R [2009] NSWCCA 257. References to JDK v R [2009] NSWCCA 76 and Toalepai v R [2009] NSWCCA 270 included in “Relevance and admission of other acts” at [3-080].

[5-000] Sentencing template: cross-references to commentary in the Sentencing Bench Book included. Amendment made to [5-120] to include reference to avoiding double counting and breaching De Simoni principle with cross-references to Sentencing Bench Book.

Recent law amended at [6-000] to incorporate all recent law items from the last 12 months from JIRS concerned with sexual assault and evidence.

New article included with publisher’s permission in “Non-legal articles” section at [7-520] “Suicide and fatal drug overdose in child sexual abuse victims: a historical cohort study” by Cutajar et al.

Article by his Honour Judge Nicholson SC “Four key sexual assault directions” updated at [7-200] to include amendments made by the Evidence Amendment Act 2007 and recent case law.

District Court Practice Notes 8 and 9 inserted in “Miscellaneous” section at [10-220] and [10-240].

Article by His Honour Judge R Ellis “Evidence in prescribed sexual offence cases” updated at [10-400] to include references to JDK v R [2009] NSWCCA 76 and Toalepai v R [2009] NSWCCA 270 and to include amendments made by the Evidence Amendment Act 2007.

 

Update 6, February 2009

Sexual Assault Trials Handbook Update 6 amends the following chapters:

“Checklist of procedural requirements” amended at [1-000] and ff to incorporate amendments made by the Evidence Amendment Act 2007 and the Crimes Amendment (Cognitive Impairment Sexual Offences) Act 2008.

“Checklist of jury directions” at [3-000] ff.

“Resource materials for important directions on summing-up” amended at [4-000] and ff to incorporate changes to warnings about children’s evidence (new s 165A Evidence Act) and warning about delay in complaint and prosecution (new s 165B Evidence Act).

“Sentencing template” amended at [5-000] and ff to link to recent changes effected by Crimes Amendment (Sexual Offences) Act 2008 and Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008.

Various articles amended to incorporate amendments made by the Evidence Amendment Act 2007 at [7-000] (“What does s 41 mean to you as a judicial officer”); [7-120] (“Judicial activism in child sexual cases”); [7-220] (“Section 41 of the Evidence Act”); [7-300] (“Child witnesses: the judicial role”).

Link to track change document showing changes to Evidence Act 1995 provided at [6-000].

“Procedure in prescribed sexual offence cases” article updated at [7-240] to incorporate changes made by the Crimes Amendment (Cognitive Impairment Sexual Offences Act) 2008.

New article inserted at [7-500] “Guidelines on memory and the law” originally published by and reproduced with permission of the British Psychological Society.

“Evidence in prescribed sexual offence cases” article amended at [10-400] to incorporate principles from Court of Criminal Appeal’s decision in [Name withheld] [2008] NSWCCA 272.

Recent sexual assault case law published on JIRS included at [6-000].

 

Update 5, November 2008

Sexual Assault Trials Handbook Update 5 — Working paper on the High Court’s decision in HML, SB and OAE v The Queen (2008) 82 ALJR 723 inserted at [10-450] to assist judges in determining admissibility of evidence of other sexual conduct — Note about transitional provisions for the Evidence (Children) Act 1997 (repealed by the Criminal Procedure Amendment (Vulnerable Persons) Act on 12 October 2007) included at [1-080] and [6-000] to show that proceedings on foot prior to its repeal continue to be dealt with by the Evidence (Children) Act — Recent sexual assault case law published on JIRS included at [6-000].

 

Update 4, October 2008

The “Checklist of jury directions” and the “Resource materials for important directions on summing-up” chapters have been further amended to include references to R v Boney [2008] NSWCCA 165 and Doe v R [2008] NSWCCA 203. Commentary on the “Gipp/HML/Tully direction” has been rewritten in these chapters. The article “Evidence in Prescribed Sexual Offence Cases” at [10-400] has been updated to include commentary on the High Court’s recent decision in HML, SB and OAE v The Queen (2008) 82 ALJR 723 and commentary on the Court of Criminal Appeal’s decision in Qualtieri v R (2006) 171 A Crim R 463. This decision provides guidance where the Crown seeks to adduce evidence of other sexual conduct.

A new article on “‘Consent’ in Sexual Intercourse Cases in 2008” has been inserted at [7-125] which discusses the amendments effected by the Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 (commenced 1 January 2008).

The update also includes recent sexual assault case law on JIRS at [6-000].

 

Update 3, June 2008

The “Checklist of jury directions” and the “Resource materials for important directions on summing-up” chapters have been amended to include a reference to the High Court’s recent decision on HML, SB and OAE v The Queen [2008] HCA 16.

Update 3 also includes further consequential amendments arising from the enactment of the Criminal Procedure (Vulnerable Persons) Act 2007. The update also includes two pages of recent sexual assault case law on JIRS at [6-000].

 

Update 2, March 2008

Consequential amendments arising from the repeal of the Evidence (Children) Act 1997 and enactment of the Criminal Procedure Amendment (Vulnerable Persons) Act 2007 have been made to the “Checklist of procedural requirements”, “Checklist of jury directions”, “Resource materials for important directions on summing-up” and to the article by the Hon J Wood “Summing-up, Corroboration and Credibility”. The “Checklist of precedural requirements” chapter has also been revised to reflect amendments made by the Crimes (Domestic and Personal Violence) Act 2007. The “Sentencing template” chapter has been amended to incorporate amendments effected by the Crimes (Sentencing Procedure) Amendment Act 2007 which introduced new aggravating factors under s 21A and qualified the extent to which remorse may be taken into account as a mitigating factor.