Sexual Assault Trials Handbook – Update 29 published

The following changes have been incorporated into this update:[6-000] Recent sexual assault lawThe 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 s 316(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 Review — Special 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.