Sexual Assault Trials Handbook Update 31 published

Update 31 of the Sexual Assault Trials Handbook includes:

[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 the 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 the Criminal Procedure Act 1986 by inserting Div 5, ss 289T–289VA. This creates a scheme so domestic violence complainants can give evidence by alternative means or arrangements. 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, 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.