Sexual Assault Trials Handbook — Update 27 — March 2020


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].