Sexual Assault Trials Handbook Update 34 published

The following sections have been updated:

[1-010] Sexual offences — other Table 2 contains current and repealed sexual offences in the Crimes Act 1900 other than those which specifically refer to children.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 proven, 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.