Currency

Update 34, September 2021

[1-010] Sexual offences — other

Table 2 contains current and repealed sexual offences in the Crimes Act 1900 other than those which specifically refer to children. This table has been updated to incorporate female genital mutilation offences (ss 45, 45A) and the offence of conceal a serious indictable offence (s 316) which have been listed as “prescribed sexual offences” in s 3 of the Criminal Procedure Act 1986.

[6-000] Recent sexual assault law on JIRS

The following recent cases and legislation have been added:

Evidence

  • Kassab (a pseudonym) v R [2021] NSWCCA 46 — where it was found there was no error in refusing to exclude evidence under s 137 Evidence Act 1995. It was open to the judge to find one of the victims had not undergone hypnotherapy before making her statement and to admit her evidence despite her undergoing EMDR therapy. While there have been concerns raised about the impact of hypnosis or EMDR treatment on the evidence of witnesses, they have arisen where hypnosis or EMDR has been used to revive memory. None of the cases relied on concern a case like this where the EMDR is undergone after the police statements have been made and there is no evidence of any apparent change to the witness’s recollection after the treatment.

Sentencing

  • GP (a pseudonym) v R [2021] NSWCCA 180 — where, in relation to the s 66EA Crimes Act offence of persistent sexual abuse of a child, it was held the judge erred by finding the offending was aggravated because of repeated acts of ejaculation. It is not permissible to make an adverse finding of fact on sentence unless it is proved beyond reasonable doubt and, as there was no evidence ejaculation occurred on more than one occasion, the judge’s remark was an overstatement.

  • McGovern aka Lanesbury v R [2021] NSWCCA 176 — where the Crown erroneously provided a sentence summary document to the sentencing judge which indicated the offences were committed during the currency of the bond. In circumstances where errors of the kind identified in this case are becoming increasingly common, the NSWCCA found it appropriate to reiterate there is a fundamental obligation upon counsel appearing in sentence proceedings to assist the sentencing judge.

  • Kiss v R [2021] NSWCCA 158 — where the court stated there is no principle that a sexual assault committed in the context of a prior or existing relationship is, for that reason alone, different from (and less serious than) a sexual assault committed by a stranger.

Offences

  • DPP (NSW) v Wright and the Local Court of NSW [2021] NSWSC 1086 — where it was held that a magistrate had erred in relation to s 61HE Crimes Act by suggesting that the victim was required to communicate lack of consent, by failing to correctly apply recklessness and by failing to consider any steps the defendant took to ascertain consent.

Procedure

  • Croft v R [2021] NSWCCA 146 — where it was found that the judge did not err in allowing rebuttal evidence by the Crown in reply “directed to an issue the proof of which did not lie on the prosecution… [and that] the prosecution had not anticipated...” The evidence could not have been called by the Crown, was not rebuttal of good character evidence and the defence painted an arguably false picture of the appellant.

  • Stephens v R [2021] NSWCCA 152 — where in relation to historical child sex offences, the court found allowing the trial to proceed on the basis that s 80AF, Crimes Act applied did not offend the principles concerning retrospectivity of legislation. A statute will not be given retrospective operation where to do so would affect an existing right or obligation unless the statute, expressly or by necessary implication, so demands. However, statutes affecting “mere matters of procedure” are excepted from that presumption and s 80AF is procedural.

Directions

  • Decision Restricted [2021] NSWCCA 124 — where it was found that the Crown impermissibly addressed the jury on the basis that the appellant’s answers in recorded conversations were admissions and the judge erred in failing to direct the jury as to how those answers could be used.

  • JJP v R [2021] SASCA 53 — where in a trial for maintain unlawful sexual relationship with child (similar to Crimes Act, s 66EA(1)) the judge erred in his articulation of the elements of the offence. In NSW, s 66EA(13) (which has no direct counterpart in the SA provision) permits a jury that is not satisfied an offence against s 66EA(1) has been proved, but is satisfied the accused committed an unlawful sexual act, to find the accused guilty of that unlawful sexual act.

Recent sexual assault legislation

The Justice Legislation Amendment Act (No 2) 2019 amends the Criminal Procedure Act in relation to the list of “prescribed sexual offences” in s 3 to include female genital mutilation offences (Crimes Act, ss 45, 45A) and the offence of concealing a serious indictable offence (Crimes Act, s 316), if the concealed offence is a prescribed sexual offence: Sch 1.10[1]–[3].

[6-100] Government reviews and papers

This section has been updated to include reference to the NSW Law Reform Commission Report 148 — Consent in relation to sexual offences which was tabled in Parliament on 18 November 2020. A Bill to give effect to the reforms will be introduced into Parliament later in 2021.

[7-500] Relevant literature — non-legal articles

Two new articles have been added:

At [7-2500] a Report titled “Aboriginal and Torres Strait Islander children and child sexual abuse in institutional contexts”, which examines the question of Aboriginal and Torres Strait Islander children’s past and contemporary vulnerability to child sexual abuse in institutional contexts.

At [7-9500] Further reading, an article by Marika Guggisberg, “Aboriginal women’s experiences with intimate partner sexual violence and the dangerous lives they live as a result of victimization” (2019) 28(2) Journal of Aggression, Maltreatment & Trauma 186.

Update 33, June 2021

[6-000] Recent sexual assault law on JIRS

The following recent cases have been added:

Evidence

  • Decision Restricted [2021] NSWCCA 51 — Recent Law 25/4/2021

Sentencing

  • Culbert v R [2021] NSWCCA 38 — Recent Law 5/5/2021

  • Hillman v R [2021] NSWCCA 43 — Recent Law 26/4/2021

  • Aryal v R [2021] NSWCCA 2 — Recent Law 19/4/2021

  • Gale v R [2021] NSWCCA 16 — Recent Law 8/3/2021

Procedure

  • Decision Restricted [2021] NSWCCA 51 — Recent Law 25/4/2021

Directions

  • Beattie v R [2020] NSWCCA 334 — Recent Law 30/4/2021

[7-500] Relevant literature — non-legal articles

“Recording evidence and evidentiary issues in child sexual abuse cases”:

At [7-1080] an article by medical practitioner C Lincoln, “Sexual assault: forensic examination in the living and deceased” has been added. This article provides an overview of various components of forensic sexual assault examination in both living and deceased persons. The detection of injury and biological material to support or exclude sexual activity requires a careful, methodical approach to ensure robust evidentiary value and an understanding of genito-anal anatomy and sexual physiology to interpret its significance for the courts.

“Adult victims of sexual assault and the barriers to justice”:

At [7-2000] a book published in 2020 (online pdf) by E McDonald et al, “Rape myths as barriers to fair trial process” has been added. This book examines how and why rape trials can re-traumatise complainants. It examines 30 matters prosecuted over a five-year period (January 2010 to September 2015) in New Zealand as well as 10 rape trials from the New Zealand Sexual Violence Court Pilot (November 2017 to November 2018) in relation to adult acquaintance rape cases where the central issue in dispute is consent. The researchers have captured the type and content of questions asked during a rape trial that cause the most distress to complainants.

At [7-2100] a report by P Tidmarsh and G Hamilton, “Misconceptions of sexual crimes against adult victims: barriers to justice” has been added. This Australian Institute of Criminology report published in 2020 finds that, despite the prevalence of sexual offending in our communities, there is a lack of understanding about the nature and dynamics of sexual crimes. Myths and misconceptions about sexual offending are common and may contribute to the high attrition rates of sexual offence cases throughout the criminal justice system. This study synthesises over 40 years of research to present an accurate and updated picture of sexual offending. With specialist knowledge, improvements can be made to the criminal justice responses and outcomes for victims of sexual crime.

Update 32, April 2021

[7-000] Relevant literature — legal articles

Two new legal articles have been added addressing recent reforms to tendency and coincidence evidence that commenced on 27 October 2020 and 1 March 2021:

  • P Mizzi and R A Hulme, “Reforming the admissibility of tendency and coincidence evidence in criminal trials”, (2020) 32 JOB 113

  • N Broadbent and D Buchanan, Tendency evidence in 2020”, paper presented at the Legal Aid NSW Conference, November 2020, Sydney.

Update 31, March 2021

[6-000] Recent sexual assault law

The following recent cases and legislation have been added:

RA v R [2020] NSWCCA 356, where the court found the sentence imposed by the trial judge for two counts of carnal knowledge of a girl under 10 years was outside the upper range. Notwithstanding the seriousness of the offence, it was too stern a sentence for an offender who, at the time, may have been 16 or 17.

Franklin v R [2019] NSWCCA 325, where the applicant appealed his sentence for rape, carnal knowledge and incest, on grounds including that the sentence was manifestly excessive. Given the very grave offences of rape set against systematic violation and sexual exploitation of the victim over a period of 13 years, the sentence was not manifestly excessive. The offences not only breached the absolute prohibition on sexual activity with a child but fractured the legal and moral code which prohibited sexual activity between a brother and sister.

Decision Restricted [2020] NSWCCA 314 where the trial judge erred by declining to revoke the witness intermediary’s appointment where they had assisted the witness in a professional capacity before the appointment. The disqualifying conditions in the Criminal Procedure Act 1986, Sch 2, Pt 29, Div 3, cl 89(5) do not require subjective inquiry into the intermediary’s impartiality and are not limited to direct therapeutic assistance.

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315, a Crown appeal, where the sentencing judge erred in assessing the objective seriousness of sexual assault offences committed by the complainant’s teacher-mentor as bottom of the range and the aggregate sentence was manifestly inadequate. An intermediate appellate court cannot increase a sentence unless manifest inadequacy is established, even where patent error is found.

DC v R [2019] NSWCCA 234, where there was a miscarriage of justice occasioned by the trial judge failing to direct the jury on lies. The Crown’s closing address on lies risked impermissible consciousness of guilt reasoning. Despite defence counsel’s forensic decision not to request a direction on lies, the judge had an overriding obligation to ensure a fair trial.

Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354, where there was no error by the trial judge in declining to give a forensic disadvantage direction under Evidence Act 1995, s 165B in a child sexual assault case. It is not unexpected for there to be delay in complaint when offences involve family members and threats. The applicant’s misconduct in making those threats is relevant to whether the direction should be given.

The Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 amends Criminal Procedure Act 1986 by inserting Div 5, ss 289T–289VA which creates a scheme so domestic violence complainants can give evidence by alternative means or arrangements, amongst other things. It provides for jury warnings when delayed or no complaint (ss 294(3) and 306ZR). New s 289T provides that the Div 5 applies to domestic violence offence proceedings and AVO proceedings where the defendant is charged with a domestic violence offence and the protected person is the alleged victim. If the complainant is a person against whom a prescribed sexual offence is alleged to have been committed by the accused, the Div 5 applies in addition to Pt 5 relating to apprehended personal violence orders. The Act commenced on assent on 25 November 2020 unless otherwise indicated (see s 2, LW 23.11.20).

[7-000] Relevant literature — legal articles

A new legal article has been added:

  • A Cossins and J Goodman-Delahunty, “The application of the Uniform Evidence Law to delay in child sexual assault trials” in A Roberts and J Gans (eds), Critical perspectives on the Uniform Evidence Law, The Federation Press, 2017. This chapter looks at how the Uniform Evidence Law (UEL) operates in relation to child sexual assault.

At [7-495] a new Further reading — legal list has been added to the end of the chapter.

[7-500] Relevant literature — non-legal articles

At [7-9500] a new Further reading — non-legal list has been added to the end of the chapter.

Update 30, December 2020

[6-000] Recent sexual assault law

The following recent cases have been added:

Gray v R [2020] NSWCCA 240 concerned the competence of a 5-year-old witness, who was also the victim, diagnosed with autism spectrum disorder and hearing impairment. The court held that to establish competency, s 13 of the Evidence Act 1995 requires an examination of whether the witness has the basic comprehension skills to understand a question and provide an intelligible answer. It is not an examination of the question of whether a witness's evidence is credible or reliable.

In Bussey v R [2020] NSWCCA 280, the applicant appealed his sentence for aggravated sexual assault on grounds including the sentencing judge erred by not having sufficient regard or giving any weight to the extent and nature of the prior sexual experience between the applicant and victim. The court found the objective seriousness of sexual intercourse without consent cannot be reduced because of factors such as a prior sexual history between an offender and his victim without making unjustified and impermissible assumptions about the effect upon the victim.

BG v R [2020] NSWCCA 295, where it was held that the judge erred in the manner in which he addressed the issue of the applicant's prior good character. Ryan v The Queen (2000) 206 CLR 267 at [23], which sets out the steps to be taken when determining the use to be made in the sentencing process of an offender's character, was applied.

Tatur v R [2020] NSWCCA 255 concerned the inappropriateness of an exchange between the sentencing judge and counsel regarding an appropriate sentence. The fundamental proposition that it is for the prosecution alone to determine the charge to be preferred; for the accused alone to determine the plea to enter; and for the judge alone to determine the sentence to be imposed was discussed: see Barbaro v The Queen (2014) 253 CLR 58.

Small v R [2020] NSWCCA 216, where the appellant was convicted and sentenced for various State and Commonwealth cybersex offences with a 14-year-old victim. The appellant appealed on the ground the judge erred by failing to have regard to the utilitarian benefit of the guilty pleas for the Commonwealth offences, which was successful and a 25% discount was provided for the Commonwealth offences.

Decision Restricted [2020] NSWCCA 247, where it was held that the primary judge erred by refusing to admit evidence that the applicant had no prior convictions. The absence of prior convictions has long been understood as an aspect of prior “good character” and evidence of good character almost always helps an accused person’s defence by demonstrating it is unlikely the accused committed the offence or by supporting their credibility. The primary judge also erred in directing that the alleged lies could be taken into account as reflecting a consciousness of guilt.

FB v R [2020] NSWCCA 137, where the appellant appealed his convictions of physical and indecent assault against his children on grounds including that there was a miscarriage of justice because the judge failed to give the jury an anti-tendency direction. It was found that in the circumstances of this case, the judge was not required to given an anti-tendency direction.

GBF v The Queen [2020] HCA 40, where the trial judge directed the jury with respect to the presumption of innocence and the onus and standard of proof, explaining that the appellant’s silence did not constitute an admission and could not be used to fill gaps in the prosecution’s evidence. However, after reminding the jury of the complainant’s evidence, the judge directed them to: “bear in mind … [the complainant] gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier”. The High Court found such a process of reasoning is false because it proceeds upon a view that the accused may be expected to give evidence.

[7-500] Non-legal articles

The non-legal articles section of the handbook has been extensively revised, reordered and updated. Summaries of, and links to, the following articles have been added in this update:

Update 29, October 2020

[6-000] Recent sexual assault law

The following recent cases have been added:

Higgins v R [2020] NSWCCA 149, where the court held the trial judge erred in the approach taken to s 87 of the Evidence Act 1995 and by admitting representations of a third party as admissions. A representation made by a person who shares a common purpose with the party to the litigation is confined to representations made “in furtherance of” the common purpose alleged, that is, the common purpose alleged in those proceedings.

Saffin v R [2020] NSWCCA 246, where the applicant appealed his sentence for 13 sexual offences, including six counts of aggravated sexual intercourse without consent, on grounds including that the judge erred by sentencing him on the basis he was reckless as to whether or not the victim consented. In dismissing the appeal, the court held the sentencing was run on the basis the guilty verdicts were supportable on any of the three states of mind identified in s 61HA of the Crimes Act 1900 — it was for the judge to determine on which basis the applicant should be sentenced. There was no inconsistency between the conclusion by the trial judge that the applicant was reckless as to whether or not the victim was consenting and the judge's finding that there was a reasonable possibility the applicant believed the victim to be consenting; nor did the judge apply an inappropriate burden of proof.

Decision Restricted [2020] NSWCCA 138, where the respondent medical practitioner was arraigned on charges of having sexual intercourse with patients and that he indecently assaulted them contrary to ss 61J(1) and 61M (rep) of the Crimes Act 1900 respectively. The alleged offences involved the digital penetration of the patients’ vaginas during medical consultations. Penetration for “proper medical purposes” is excluded from the definition of sexual intercourse (see s 61HA(a)). The trial judge found, in the circumstances of this case, that for the Crown to disprove the exception, it must establish the sole purpose for the respondent’s conduct was sexual gratification (the sole purpose test). The court allowed a Crown appeal against this finding on the basis the judge had misconstrued the operation of the “proper medical purposes” exception and the sole purpose test and the judge's reasoning for it were erroneous. A practitioner may act with multiple purposes. There is a material difference between a purpose of deriving an income and a purpose of obtaining sexual gratification. Sexual arousal of the practitioner cannot be a proper purpose.

In Watson v R [2020] NSWCCA 215, the court allowed an appeal and quashed convictions for certain NSW offences of contravening a Child Protection Prohibition Order (CPPO) contrary to s 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 and an offence against s 17(1) of the Child Protection (Offenders Registration) Act 2000 (the Registration Act) of failing to comply with reporting obligations. The ground of appeal was that the convictions for these offences were invalid since the CPPO was invalid because the applicant was not, at the relevant time, a “registrable person” as defined by s 3A of the Registration Act. Section 3A(2) of the Registration Act exempts a person from the definition if the person, relevantly, committed the offence when they were a child or if they were found guilty of a registrable offence before 15 October 2001. The applicant fulfilled both of these criteria because she committed a single offence involving an act of indecency when she was 13 years old and was also found guilty before 15 October 2001.

Toohey v R [2020] NSWCCA 166, where the applicant was charged with sexual intercourse with his 11 month old step-daughter contrary to s 66A(2) of the Crimes Act 1900. The sexual intercourse charge had been severed from the original indictment for manslaughter and heard separately, in a judge-alone trial, in which the applicant did not give evidence. Some weeks after the trial’s conclusion, the judge found the offence proven but gave oral reasons for his verdict four months later, including brief reasons for not accepting the defence expert evidence and preferring that of the Crown’s experts. The applicant appealed on grounds including the judge gave inadequate reasons for his findings. The court allowed the appeal and ordered a retrial, finding that the judge erred by failing to give reasons for rejecting an important part of the defence case. Further, observations were made in that, announcing the outcome, unaccompanied by any reasons for some four months, gave rise to concerns relating to s 133(3) of the Criminal Procedure Act 1986.

In SB v R [2020] NSWCCA 207, the appellant was convicted, following trial, of two counts of sexual intercourse with a child under 10 years. The trial judge gave the jury directions derived from suggested directions in the Criminal Trial Courts Bench Book, summarised the Crown expert evidence concerning how children exposed to sexual assault typically behave and the complaint evidence but did not summarise the complainant’s nor the appellant’s evidence. The court allowed the appellant’s appeal, quashed the convictions and ordered a retrial. The summing up, considered as a whole, was unbalanced and unfair and led to a miscarriage of justice, as it minimised dramatically the effect of any inconsistency upon which the appellant was relying. The overall impression of the summing-up is that it was a reminder of those parts of the Crown case that were strong, for which purpose the trial judge became an advocate for the Crown.

The following recent legislation has been added:

The Stronger Communities Legislation Amendment (Crimes) Act 2020 inserts s 316(1A) in to the Crimes Act 1900 to protect persons from prosecution for an offence of concealing a serious indictable offence regarding an adult victim of sexual or domestic violence where the person had a reasonable belief that the alleged victim did not wish the information to be reported. New s 316(1B) provides that subs (1A) does not limit the grounds on which it may be established that a person has a reasonable excuse for failing to report. These amendments commenced on assent on 28 September 2020 (s 2, LW 28.9.2020).

[7-000] Legal articles

The legal articles section of the handbook has been extensively revised, reordered and updated. The following new articles have been added in this update:

  • B Neild, “Jury directions in sexual assault trials: Murray/Ewen, significant forensic disadvantage and delay in complaint”, a paper presented at the Public Defenders Criminal Law Conference, 18 March 2017, Sydney. This paper examines three key directions, each of which has been the subject of important case law or legislative reform, being the Murray/Ewen direction, the significant forensic disadvantage direction (s 165B of the Evidence Act 1995) and the delay in complaint direction (s 294 of the Criminal Procedure Act 1986). Consideration is also given to the overall role of directions in sexual assault trials and the need to shape directions in order to meet the specific requirements of justice in the case in which they are to be given.

  • D Hamer, “Trying delays: forensic disadvantage in child sexual assault trials" (2010) 9 Criminal Law Review 671. This article considers the possible consequences of delayed prosecutions for child sexual assault offences, particularly the forensic disadvantages faced by defendants. It then examines, with reference to Australian and UK law, the scope for delay to cause evidence to be lost, whether the loss must be proven, whether regard should be had to lost peripheral evidence and whether existing evidence may compensate for what is lost. The article argues for a balanced response to lost evidence with no allowances being made in a defendant's favour, and for convictions to be based upon the strength of the prosecution evidence.

  • E Lee, J Goodman-Delahunty, M Fraser, M Powell and N Westera, “Special measures in child sexual abuse trials: criminal justice practitioners’ experiences and views” (2018) 18(2) QUT Law ReviewSpecial issue: Contemporary legal and ethical challenges in children’s health: reproduction, technology, capacity, medicine and violence 1. Special measures have been implemented across the globe to improve evidence procedures in child sexual assault trials. This study explored the day-to-day experiences and views on their use by five groups of Australian criminal justice practitioners (N =335): judges, prosecutors, defence lawyers, police officers and witness assistance officers. Most practitioners reported routine use of pre-recorded police interviews and CCTV cross-examination of child complainants, but rare use with vulnerable adults. Despite persistent technical difficulties and lengthy waiting times for witnesses, high consensus emerged that special measures enhanced trial fairness and jury understanding. The perceived impact of special measures on conviction rates diverged widely. Defence lawyers disputed that this evidence was as reliable as in-person testimony. All practitioner groups endorsed expanded use of expert witness evidence and witness intermediaries. Ongoing professional development in all practitioner groups will further enhance justice outcomes for victims of child sexual abuse.

  • S Brubacher, N Hodgson, J Goodman-Delahunty, M Powell and N Westera, “Children’s competence to testify in Australian courts: implementing the Royal Commission recommendation” (2019) 42(4) UNSW Law Journal 1386. In 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse recommended reforms to the law of competence of child witnesses. This article examines Australian judges’ practices in assessing children’s competence to give sworn evidence. Trial transcripts from 56 victims revealed that 64% were posed competence questions, with fewer to older children. The most frequent manner of posing such questions was to ask children to evaluate the morality of truths and lies. Most questions were yes/no format, and children nearly always answered these satisfactorily. When questions were ‘wh-’ format, children provided a satisfactory response only 51% of the time. Only nine children testified unsworn, and they were asked more than twice as many competence questions as sworn children. Competence inquiries have been challenged for underestimating children’s abilities, and because responses to questions about truths and lies are not predictive of behaviour. This article discusses how reforms could be implemented.

  • P Cooper and M Mattison, “Intermediaries, vulnerable people and the quality of evidence: an international comparison of three versions of the English intermediary model” (2017) 21(4) The International Journal of Evidence & Proof 351. Since 2004, witness intermediaries have been utilised across the justice system in England and Wales. Two witness intermediary schemes based on the English model have also been introduced in Northern Ireland (2013), and more recently, in New South Wales, Australia (2016). The purpose of the intermediary in these jurisdictions is to facilitate the questioning of vulnerable witnesses, but there are clear differences in the application of the role. This paper presents the first comparative review of the three related intermediary models, and highlights the pressing need for further research into the efficacy and development of the role in practice.

  • J Cashmore and R Shackel, “Evaluation of the child sexual offence evidence pilot: final outcome evaluation report”, NSW Department of Justice. This is the final report of the evaluation of the Child Sexual Offence Evidence Pilot in NSW. It outlines the findings of the outcome evaluation and presents an assessment of the impact and effectiveness of the special measures introduced by the Pilot and recommendations for possible improvements to, and future development of those measures, related processes, and implications for a wider and sustainable roll out. Some key challenges and risks for expansion of the Pilot are identified.

  • Associate Professor Jacqueline Horan and Professor Jane Goodman-Delahunty, “Expert evidence to counteract jury misconceptions about consent in sexual assault cases: failures and lessons learned” (2020) 43(2) UNSW Law Journal 707. This century has seen dramatic changes in the way in which sexual offences, particularly against children, are prosecuted in Australia, Canada, New Zealand, the United Kingdom and the United States of America. These jurisdictions have acknowledged the potential of myths and misconceptions about how a victim will behave, both during and after a sexual assault, to exert an undue influence on jurors. Expert evidence to educate jurors about common rape myths that apply to issues of consent has been used to redress this issue. However, such expert evidence poses significant challenges for the lawyers and experts. This article explores the effectiveness of educative expert evidence through analysis of an illustrative contemporary Australian child sexual assault case where the authors interviewed some of the jurors and other trial participants about their perceptions of the expert evidence. Practical suggestions to improve educative expert evidence are identified and explained.

  • S Bouveng, Bauer and McPhillamy — update on admissibility and use of tendency evidence in child sexual assault matters”, conference paper presented at the Public Defenders Conference, 16 March 2019, Sydney. The law regarding the admissibility and use of tendency evidence has again “evolved” since the audience at the 2018 conference was updated by his Honour Judge Gartelmann SC. This paper reviewed High Court developments in the admissibility of tendency evidence in 2018, with a focus on its use in child sexual assault matters.

Update 28, August 2020

[6-000] Recent sexual assault law

The following recent cases have been added:

Evidence

BRC v R [2020] NSWCCA 176 — directions — tendency and context evidence

Vagg v R [2020] NSWCCA 134 — Evidence Act 1995, s 97 — tendency evidence

IW v R [2019] NSWCCA 311 — Evidence Act 1995, ss 104, 112 — credibility and character

Hogg v R [2019] NSWCCA 323 — Evidence Act 1995, s 89A — special caution

Sentencing

R v LS; R v MH [2020] NSWCCA 148 — child abuse material offences

Kannis v R [2020] NSWCCA 79 — cybersex offences against young girls

LS v R [2020] NSWCCA 27 — child abuse material offences

KMC v DPP (SA) [2020] HCA 6 — persistent sexual exploitation of a child

Park v R [2020] NSWCCA 90 — jurisdictional limits

Cabezuela v R [2020] NSWCCA 107 — sentencing — effect of COVID-19

Maxwell v R [2020] NSWCCA 94 — practice of referring to “remarks on sentence”

Scott v R [2020] NSWCCA 81 — re-sentencing — effect of COVID-19

RC v R; R v RC [2020] NSWCCA 76 — Crown appeal — sentence assessment reports

Davies v R [2019] NSWCCA 45 — child sexual assault — totality

Corliss v R [2020] NSWCCA 65 — Crimes (Sentencing Procedure) Act 1999, s 25AA— historical child sexual assault

DPP (NSW) v Burton [2020] NSWCCA 54 — sexual assault — self-induced intoxication

Baden v R [2020] NSWCCA 23 — child sex offences outside Australia

Offences

R v Mann [2020] SASCFC 69 — maintain unlawful sexual relationship with child

R v M, DV [2019] SASCFC 59 — persistent child abuse — elements

Maughan v R [2020] NSWCCA 51 — futility in assessing complainants’ behaviour by reference to stereotypical expectations

Procedure

Decision Restricted [2020] NSWCCA 115 — cross-examination on prior sexual experience or activity

Jackmain (a pseudonym) v R [2020] NSWCCA 150 — Criminal Procedure Act 1986, s 293 — false complaint evidence

State of NSW v Carr [2020] NSWSC 643 — ESOs — punitive impact — protective purpose

Edwards v R [2020] NSWCCA 57 — prosecution duty of disclosure

Doyle v Commissioner of Police [2020] NSWCA 11 — LEPRA, s 65 — search warrants

Sexual Assault Communications Privilege

R v Bonanno; ex parte Protected Confider [2020] NSWCCA 156 — procedure — legislative requirements

Appeals

Jackson v R [2020] NSWCCA 5 — directions — tendency evidence

Pell v The Queen [2020] HCA 12 — conviction appeal — unreasonable verdicts

Wheeler v R [2019] NSWCCA 255 — conviction appeal — unreasonable verdicts

The following recent legislation has been added:

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) — amends Crimes Act 1914 (Cth) and Criminal Code (Cth) to make changes to all stages of criminal justice process, from bail and sentencing through to post-imprisonment options — inserts new sexual offences and minimum sentence scheme

Evidence Amendment (Tendency and Coincidence) Act 2020 — amends Evidence Act 1995, Pt 3.6 — clarifies matters to take into account when determining admissibility of tendency and coincidence evidence — amends test in s 101(2) so tendency and coincidence evidence inadmissible unless probative value outweighs danger of unfair prejudice

Crimes Amendment (Special Care Offences) Act 2020 — amends Crimes Act 1900 special care sexual offences involving 16 and 17 year olds — creates new special care categories — certain categories now have requirement that victim be "under the authority" of offender — new defence for young people for some incest offences

Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) — amends Criminal Code (Cth) and Crimes Act 1914 (Cth) — repeals and replaces definition of forced marriage, and defence of marriage for child sex offences — creates new offences including possession of child-like sex doll and possession of child abuse material obtained using carriage service — creates offences related to Commonwealth officers who fail to protect children from, or report, child sexual abuse

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

The Royal Commission into Institutional Responses to Child Sexual Abuse found that the impacts of child sexual abuse are “interconnected in complex ways”, making specific impacts difficult to isolate. Following the publication of the online Bugmy Bar Book, a new paragraph has been inserted at [8-520] Bugmy Bar book. This chapter collates expert research about the impact of child sexual abuse and how sentencing courts may take into account these impacts in relation to sentencing persons convicted of child sexual assault offences, as well as other types of offences. The overall purpose of the Bugmy Bar book is to assist in the preparation and presentation of evidence to establish the application of the Bugmy v The Queen(2013) 249 CLR 571 principles. Additional articles have been added to [8-600] Further reading.

[9-000] Sexual assault communications privilege

This chapter has been revised at [9-300] Applications for grant of leave, to add R v Bonanno; ex parte Protected Confider [2020] NSWCCA 156, and the importance of considering the specific terms of ss 299C and 299D of the Criminal Procedure Act 1986.

Update 27, March 2020

Offences

Table 1: Sexual offences involving child victims at [1-000] and Table 2: Sexual offences — other, at [1-010] have both been updated.

A brief legislative history of the significant reforms to the laws relating to sexual assault in the past 30 years has been added at [1-025]. This material previously appeared in Sentencing Bench Book at [20-605] and has been updated to include the substantial amendments from the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.

[6-000] Recent sexual assault law

The following recent cases have been added:

Rahman v R [2020] NSWCCA 13, where the court held, in dismissing an appeal on the grounds that the sentencing judge erred by taking into account an irrelevant consideration in stating “in this country … [cunnilingus] is sexual intercourse”. There is nothing to suggest from the impugned comment that the judge considered that, because the applicant was from another country, some greater emphasis on specific deterrence was warranted: [21], [26]–[27]. The criminal law must be administered publicly in such a fashion that its activities can be understood by ordinary citizens [emphasis in original]: [22].

Facer (a pseudonym) v R [2019] NSWCCA 180, where in allowing the appeal against an aggregate sentence of 21 years imprisonment, with a non-parole period of 15 years, 9 months for six sexual offences involving his granddaughter, the court held that the limited aggregated statistics provided to the trial judge tend to confirm the sentence imposed was manifestly excessive: at [60]. While it is always possible to conceive of an even worse instance of an offence, and the limitations of such reasoning, the melancholy truth is that it would be surprising if the applicant’s offending warranted a sentence as severe as the worst recorded in the statistics: [61]; The Queen v Kilic (2016) 259 CLR 256. It is necessary to consider the facts underlying the statistics: [62].

Vasilevski v R [2019] NSWCCA 277, where the applicant pleaded not guilty to a number of offences including sexual assault against s 61I of the Crimes Act 1900 and persuading a witness to withhold true evidence contrary to s 323(a) of that Act. The latter offence involved the applicant persuading the complainant not to give true evidence concerning the alleged sexual assault by withdrawing the allegation. The court dismissed the appeal on the basis that the jury’s acquittal of the applicant in relation to the sexual assault offence did not render his conviction for the s 323 offence unreasonable: [100]. The jury’s verdicts can sit together for various reasons including there being evidence to support a reasonable doubt as to whether the applicant knew or believed the complainant did not consent to sexual intercourse or was reckless as to that fact: [89]–[90].

R v Cattell [2019] NSWCCA 297, in allowing a Crown appeal against a manifestly inadequate sentence for historical child sex offences by a priest, the court found the sentencing judge erred by elevating considerations of fairness to the respondent to a“dominant role” in the circumstances of this case. The purposes of sentencing, which include general deterrence; the recognition of serious harm to each of the victims; the accountability of the respondent; the denunciation of his conduct and adequate punishment for his crimes could not be regarded as being subordinate to delay and rehabilitation: [142]. In historical sexual assault cases, a child sexual offender does not necessarily benefit from an extensive delay in the revelation of offences: [135]. It is well known the sexual abuse of children causes a reluctance on the part of victims to come forward and make a complaint: [138].

DR v R [2019] NSWCCA 320, where the court dismissed an appeal on grounds including that a miscarriage of justice arose because the appellant was tried jointly with a known child sex offender (PV). The case against PV formed a relatively small part of the case as a whole and evidence admissible against PV alone played a very small part in the trial as a whole and did not include any reference to the appellant. To a significant degree it was overshadowed by the confronting evidence admissible against the appellant. Any unfair prejudice arose from the possibility the jury would engage in impermissible, and illogical, reasoning of guilt by association: [66], [87].

GBB v R [2019] NSWCCA 296, where an appeal against conviction on the grounds that the judge in a judge-alone trial misdirected herself that the complainant’s evidence was unreliable pursuant to s 165 of the Evidence Act was dismissed. A judge sitting alone is not required by law to assess the evidence differently from an assessment which would be made by a jury if there were one. The judge was required to assess the reliability of both the complainant’s evidence-in-chief and her evidence during cross-examination. It is entirely artificial to excise the obligation to take a warning into account from that overall consideration: [35]. Further, regarding the operation of s 133(3) of the Criminal Procedure Act, the court found that “properly construed, what the judge must take into account is the subject matter of any required warning, in this case, the potential unreliability of the complainant’s evidence and the particular reasons why it may be unreliable. Having identified a relevant source of unreliability, the judge must consider the weight to be given to the particular evidence”.

JPM v R [2019] NSWCCA 301 where the applicant appealed his conviction on grounds including that a miscarriage of justice was occasioned by the judge’s failure to direct the jury that the applicant’s silence in court was not evidence against him, could not be used to fill gaps in the prosecution case, or support the prosecution case (an Azzopardi direction — see Azzopardi v The Queen (2001) 205 CLR 50). Fullerton J (with whom Simpson AJA agreed) stated, “in the absence of an explanation from trial counsel that she saw no forensic advantage in not seeking an Azzopardi direction but failed to do so through error or oversight, the court accepted that it was a rational choice of trial counsel not to seek a direction and, in those circumstances, it was not open to the applicant now to complain that there has been a substantial miscarriage of justice”: [221].

De Silva v The Queen [2019] HCA 48, where the appellant was convicted following trial, of rape, and where the Crown’s case was dependent on the complainant’s evidence. The appellant did not give, or call, evidence at trial but had previously denied the offence in a record of interview with police which was tendered during the trial. An appeal to the Queensland Court of Appeal was dismissed, and he appealed to the High Court on the ground that the trial judge erred by failing to give the jury a Liberato v The Queen (1985) 159 CLR 507 direction. The court (Kiefel CJ, Bell, Gageler and Gordon JJ in a joint judgment; Nettle J dissenting) dismissed the appeal, finding that the trial did not miscarry because of the omission of a Liberato direction: [36]. A Liberato direction should be given in cases where a trial judge perceives there is a real risk the jury will reason that the accused’s answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the complainant's evidence over the accused’s account in a record of interview suffices to establish guilt: [10]–[11]. The direction clarifies and reinforces directions about the onus and standard of proof in such cases: [10]. It should be given whether the accused's version is on oath or given in a record of interview. The summing up made clear the necessity that the jury be satisfied beyond reasonable doubt of the complainant’s reliability and credibility: [36].

Update 26, December 2019

Update 26 to the Handbook contains amendments to:

[6-000] Recent sexual assault law

The following recent cases have been added:

Tindall v R [2019] NSWCCA 136, where the court held, in dismissing a severity appeal, there was no error in the assessment of the objective seriousness of the offences and the absence of an aggravating factor did not diminish the gravity of the offence which must be assessed on its own facts: at [6]–[8]. Further, there is nothing in the definition of “sexual intercourse” in s 61HA which indicates any form of sexual intercourse (without consent) is more or less serious than any other form. There is no “hierarchy” of sexual offences ranked by the level or degree of seriousness according to the particular kind of penetration or sexual connection: at [12].

BM v R [2019] NSWCCA 223, where, in allowing a severity appeal, the court held the sentencing judge erred by failing to take into account the applicant’s age and mental condition when determining the objective seriousness of the child sexual assault offences. The offences were ameliorated to a very significant extent by the applicant’s age at the time and by his mental disorder which was causally related to the offending. The offending conduct here, engaged in opportunistically by a 13-year-old boy with a mental condition, which was causative of the offending, significantly affected his moral culpability and the objective seriousness of the offending which, in all the circumstances, was at or near the bottom of the range for offences of this kind.

Xu v R [2019] NSWCCA 178, where the court, in allowing a conviction appeal, held that the failure to raise good character in the context of a dispute concerning the true nature of several sexual acts performed by the appellant upon the complainant, where the Crown case was not strong, and consent was the sole issue, was a substantial miscarriage of justice.

Martin v R [2019] NSWCCA 197, where the court, in dismissing a severity appeal, held at [83] that general deterrence is a primary sentencing consideration for offences involving sexual predatory conduct towards children and was an important feature on sentence for these offences.

Hofer v R [2019] NSWCCA 244, where the court, in dismissing a conviction appeal, held that there was no miscarriage of justice arising from the prosecutor’s cross-examination of the accused about evidence not previously put to the complainants. In rare cases the prosecutor can use non-compliance with the rule in Browne v Dunne (1893) 6 R 67 to attack an accused’s evidence: at [125], however the rule should be applied with “some care” and “serious qualifications”: [121]. A prosecutor should exercise great caution before deciding to embark upon cross-examination of an accused with a view to laying the ground work for a Birks comment: [106]; [202]–[204]. Defence counsel should also be well aware that if the prosecutor does commence cross-examining the accused regarding failure to put some matter to a Crown witness, action should be taken to avert unfair prejudice.

O’Sullivan v R [2019] NSWCCA 261, where the court, in dismissing a severity appeal for indecent assault offences subject to s 25AA of the Crimes (Sentencing Procedure) Act 1999 (requiring that the offender be sentenced in accordance with the sentencing patterns and practices at the time of sentencing), observed “Importantly, her Honour appreciated the wide spectrum of offending which was covered by the now repealed s 81 of the Crimes Act. Her Honour appreciated that although s 25AA allowed a sentencing judge to have regard to current sentencing practice, other restraints were operative such as the maximum penalty and the absence of any non-parole period.”

Decision Restricted [2019] NSWCCA 214, where the court, in refusing leave to appeal a District Court interlocutory decision to refuse a permanent stay of proceedings for historic child sexual assault offences, held that the judge did not err by failing to determine specific jury directions regarding prejudicial delay which would be given at the 80-year-old applicant’s trial. It was sufficient for the judge to address the issue of directions in the general way he did: at [49], [54]. The applicant’s trials would be conducted according to law, so any directions concerning the effect of delay under s 165B of the Evidence Act would be identified when an application was made and if the court was satisfied those directions were appropriate in the circumstances: [50]–[51]. The court held that the power to permanently stay a criminal prosecution will only be used in most exceptional circumstances, and the onus of satisfying the court there is an abuse of process is a heavy one.

The following recent sexual assault legislation has been noted:

The Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) (the amending Act) amends the Criminal Code (Cth), and makes consequential amendments to other Acts, in response to key recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. The Recent Law item on JIRS deals with amendments in Schedules 2–7, which commenced on 21 September 2019. In summary, the amendments are:

  • Schedule 2 – Possession of child-like sex dolls

  • Schedule 3 – Possession or control of child abuse material obtained or accessed using a carriage service

  • Schedule 4 – Persistent sexual abuse of child outside Australia

  • Schedule 5 – Forced marriage

  • Schedule 6 – Restricted defence of marriage for child sex offences

  • Schedule 7 – Reconstitutes definition of child abuse material

Justice Legislation Amendment Act 2019 commenced 26 September 2019 (LW 26.9.2019) and relevantly amends s 80AF of the Crimes Act 1900. This section provides for the prosecution of a sexual offence against a child in the situation where the alleged offending spans over a period of time and there has been a change in the law and/or a change in the age of the child and, therefore, more than one offence may apply.

The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) commenced on 6 April 2019 and inserted a new subdivision into Div 474 of the Criminal Code (Cth), titled “Subdivision H — Offences relating to use of carriage service for sharing of abhorrent violent material”. The penalty for the offence of failure by an ISP or internet content host to refer details of child pornography or child abuse material to the AFP has been increased from 100 penalty units to 800 penalty units: s 474.25.

[10-270] Supreme Court Practice Note No SC CL 8

Supreme Court Practice Note SC CL 8 — Media Access to Sexual Assault Proceedings Heard in Camera, has been added to the “Miscellaneous” section.

Update 25, August 2019

Update 25 to the Handbook contains amendments to:

[6-000] Recent sexual assault law

The following recent cases have been added:

Porter v R [2019] NSWCCA 117, where error was found in the sentencing judge’s approach to the application of totality. Although the sentencing judge erred by failing to provide reasons for how he applied the totality principle, no lesser sentence was warranted: [1]; [54]–[55], [92]; [94]. His Honour correctly alluded to the need to consider the effect of sentencing the applicant in relation to all three episodes of offending but did not then say how he considered that effect: [51]–[52].

R v Toohey [2019] NSWCCA 182, which found error in the sentencing judge’s application of totality. The respondent was convicted of aggravated sexual intercourse with a child under 10, while serving a sentence for manslaughter of the same victim at the time of conviction of this offence. The Crown’s appeal was allowed. It was not appropriate to characterise the criminality of the s 66A(2) offence as substantially reflected in the manslaughter offence on the basis they occurred in the same episode and involved the infliction of harm to the child: [58]. The sentence was manifestly inadequate.

Gibbons (a pseudonym) v R [2019] NSWCCA 150, where the applicant, who had received an aggregate sentence of 30 years imprisonment with a npp of 22 years 6 months for two counts of aggravated sexual assault of a child under 10, appealed the sentence arguing it was manifestly excessive. In dismissing the appeal, the court found that in stating that the offences were “objectively within the most serious category… near the very top of the range”, the judge was not making a finding that the offending fell into the “worst category” of case, but placing the offences on a scale of objective gravity, as her Honour was obliged to do: [39]–[40].

Yu v R [2018] NSWCCA 201, where the applicant appealed his convictions for sexual offences on the ground that the judge erred by failing to correctly direct the jury on the element of consent. The appeal was allowed, convictions quashed and a new trial ordered. The trial judge erroneously directed the jury that the accused could be convicted if the jury was satisfied beyond reasonable doubt that the accused did not care whether or not the complainant consented: [47].

Milliner v R [2019] NSWCCA 127, where the applicant pleaded guilty to one count of attempting to procure a child for unlawful sexual activity, contrary to the Crimes Act, s 66EB(2), and one of travelling with the intention of meeting a child under 14 years old whom he had groomed for sexual purposes intending to procure child for unlawful sexual activity, contrary to s 66EB(2A), and given an effective sentence of 8 years imprisonment, with a non-parole period of 5 years. The applicant appealed on the basis that the sentencing judge erred in the level of accumulation between the two sentences, and an aspect of that argument was that the judge double-counted the element of “grooming” between the two offences. The NSWCCA held that the sentencing judge erred in the degree of accumulation between the two sentences: [72], although there was no double counting in relation to the element of grooming of the child as between the two offences: [63], [66].

[6-050] Other publications

The following publications have been updated:

NSW Bureau of Crime Statistics & Research (BOCSAR)The progress of sexual offences through the NSW criminal justice system, 2017

[6-100] Government reviews and papers

Consent in relation to s 61HE of the Crimes Act 1900

The NSW Law Reform Commission has now published some material including a survey, submissions, preliminary submissions and Consultation Paper 21 in response to the terms of reference in relation to the review of s 61HE of the Crimes Act 1900 (NSW), which deals with consent in relation to sexual offences.

NSW Sexual Assault Strategy 2018–2021

The NSW Government released their NSW Sexual Assault Strategy 2018-2021 in July 2018. The strategy is a comprehensive framework to improve prevention and response to sexual assault and delivers a three year, whole-of-government approach to sexual assault in NSW for the first time.

[10-260] District Court Criminal Practice Note 11

District Court Criminal Practice Note 11 regarding the Child Sexual Offence Evidence Program Scheme — Downing Centre, has been revised and replaces the version published on 17 December 2015.

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

[7-880] 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

[7-000] 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

[7-060] 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.

[7-100] 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 Trial Courts 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 Trial Courts 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 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 Trial Courts 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 Trial Courts 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.