Sexual Assault Trials Handbook — Update 26 published

Update 26 to the Handbook contains the following material:

[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”: at [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: at [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: at [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

The 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.