Sexual Assault Trials Handbook Update 35 published

Update 35, December 2021

The following sections have been updated:

[1-000] Sexual offences involving child victims

Table 1 contains both current and historical NSW and Commonwealth sexual offences which refer specifically to children. This table has been updated to incorporate sexual offences listed as a “prescribed sexual offence” in s 3 Criminal Procedure Act 1986.

[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Table 2 contains current and repealed sexual offences in the Crimes Act 1900 other than those which specifically refer to children.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 sexual offences listed as a “prescribed sexual offence” in s 3 Criminal Procedure Act 1986.

[6-000] Recent sexual assault law on JIRS

The following recent cases have been added:


  • Greenaway v R [2021] NSWCCA 253 — where it was found there was no error by permitting evidence of offences in two institutions as cross-admissible as sexual tendency evidence under s 97 Evidence Act 1995. The case concerned historical sexual offences against multiple child complainants. There was no requirement for the judge to direct the jury on the standard of proof necessary for uncharged acts used as tendency evidence. The principle in R v Bauer (2018) 266 CLR 56 at [86] applies where there are multiple complainants.
  • O’Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103 — where there was no miscarriage of justice by not admitting the witness’s convictions. The credibility rule exception in s 106 of the Evidence Act is directed at denial of convictions, not offending conduct. The jury was aware the witness was convicted of like offences involving 27 victims. Evidence of the witness’s convictions for sexual abuse of two further victims would not significantly impact the witness’s credibility or verdict.
  • Denton v R [2020] NSWCCA 341 — where a GP’s evidence concluding there was an abnormality on applicant’s penis was inadmissible at the applicant’s trial for sexual offences. The Crown relied on the complainant’s drawing depicting an “abnormal skin flap” on the applicant’s penis. The GP did not have the relevant specialised knowledge under s 76 of the Evidence Act. The conviction was quashed.


  • Xerri v R [2021] NSWCCA 268 — where, in a trial an offence of maintain unlawful sexual relationship with a child under s 66EA(1) Crimes Act 1900 committed before the repeal of the predecessor offence, the new s 66EA offence, with a higher maximum penalty, was held to apply. The replaced s 66EA created a new offence. The clear legislative intent was that the new offence would operate retrospectively. The new s 66EA is not subject to s 19 Crimes (Sentencing Procedure) Act 1999. The judge was correct to sentence on the basis the maximum penalty was life imprisonment.
  • Hall v R [2021] NSWCCA 220 — where it was found the judge did not err in the application of the totality principle where the offender committed repeated physical and sexual violence against his domestic partner while the partner was detained. The offences were contrary to ss 61I, 61J(1), and 86(2)(b) of the Crimes Act. It was sufficient to reference the need for the overall sentence to reflect the totality of the criminality. No particular formula of words was required.


  • Young (a pseudonym) v R [2021] NSWCCA 163 — where it was held the sentencing judge wrongly took into account standard non-parole periods that were not applicable. On finding error, the appellate court re-exercises the sentencing discretion afresh under s 6(3) Criminal Appeal Act 1912 and in doing so may adopt, but is not bound by, the sentencing judge’s findings. Kentwell v The Queen (2014) 252 CLR 601 applied.


  • Hofer v The Queen [2021] HCA 36 — where it was found there was no substantial miscarriage of justice in an appeal arising from the appellant’s conviction for sexual offences under s 61I Crimes Act 1900. The High Court unanimously held that there was prejudicial cross-examination of the appellant by the Crown Prosecutor on matters of credibility. However, a majority of the court held that the proviso in s 6(1) Criminal Appeal Act 1912 applied because no substantial miscarriage of justice had actually occurred. The Court of Criminal Appeal was correct to dismiss the conviction appeal. The appellate court must consider the impact of the error on particular proceedings when determining whether to apply the proviso.


  • Hamilton (a pseudonym) v The Queen [2021] HCA 33 — where the judge did not err by not giving an anti-tendency direction to the jury where it was not sought at trial. The appellant was convicted of sexual offences against three of his five children. The counts were tried together. The appellant alleged the complainants’ evidence was inconsistent and had been concocted. The majority of the High Court held the Court of Criminal Appeal was correct to conclude there was no miscarriage. The risk of the jury engaging in tendency reasoning was remote and the issue of credibility as between the appellant on one hand and complainants and their mother on the other, was overwhelmingly likely to be decisive of guilt.
  • Gage v R [2021] NSWCCA 222 — where it was held the judge should have given a specific redirection on consent even though the summing up was unimpeachable. The applicant sought to appeal his conviction for six counts of sexual intercourse without consent. The jury note during deliberations appeared to reverse the onus of proof for consent. A re-trial was ordered.
  • Long (a pseudonym) v R [2021] NSWCCA 212 — where the judge did not err by failing to warn the jury not to give greater or lesser weight to complaint evidence given by audio-visual link in directions at the time the complainant’s evidence was given. The judge gave the warning during her opening and in her summing up. While ss 306X and 306ZI of the Criminal Procedure Act 1986 require such a warning, the timing of the warning is a discretionary decision to be made in the context of the particular trial issues.

[6-050] Other publications

The following articles from the Judicial Officers’ Bulletin have been added:

D McMillan, “Criminalising coercive control: a complex discussion” (2021) 33(6) JOB 57

P Mizzi and RA Hulme, “Reforming the admissibility of tendency and coincidence evidence in criminal trials” (2020) 32(11) JOB 113

K Nomchong SC, “Sexual harassment and the judiciary” (2020) 32(6) JOB 55

N Cowdery, J Hunter and R McMahon, “Sentencing and disadvantage: the use of research to inform the court” (2020) 32(5) JOB 43

P Hora, “The trauma-informed barrister” (2020) 32(2) JOB 11

[7-500] Relevant literature — non-legal articles

The following articles have been added:

At [7-2110] in Adult victims of sexual assault, “Avoiding the second assault: a guidebook for trauma-informed prosecutors” by Eric M Werner, discusses how trauma may impact a victim of crime and provides a guide for prosecutors for best practices at each stage of a prosecutor’s involvement in a case so as to avoid re-traumatisation in the process.

At [7-3000] in a new chapter on Juvenile sex offenders, an article by R Blackley and L Bartels, “Sentencing and treatment of juvenile sex offenders in Australia” considers current sentencing and treatment practices for juvenile sex offenders in Australia and examines how the competing challenges of rehabilitation, accountability and community protection are met.

At [7-3100] the new chapter on Juvenile sex offenders includes reference to the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse, Volume 10, “Children with harmful sexual behaviours”.

At [7-4000] in a new chapter on Online exploitation, a paper by T Krone and RG Smith, “Trajectories in online child sexual exploitation offending” reports on an exploratory study aimed to improve understanding of the risks posed by those investigated by the Australian Federal Police for online-only offences.

At [7-4100], a paper by B Leclerc et al, “Child sexual abuse material on the darknet: a script analysis of how offenders operate” examines the emergence of child sexual abuse material over the internet and darknet.

At [7-4200], the submission of the Australian Institute of Criminology to the Parliamentary Joint Committee on Law titled, “Inquiry into law enforcement capabilities in relation to child exploitation”, examines the link between both online and offline sexual offending against children against a background of evidence that sharing of child sexual assault material on the internet is growing.

[7-9500] Further reading, includes the following articles on female offenders, juvenile sex offenders, online exploitation and the challenges in investigation and prosecution of historical child sex offences:

C Weinsheimer et al, “The unusual suspects: female versus male accused in child sexual abuse cases” (2017) 72 Child Abuse and Neglect 446–455.

G McIvor, “Female sex offenders” in T Sanders (ed), The Oxford handbook of sex offences and sex offenders, OUP, 2017, p 199.

A Darling and L Christensen, “Female child sex offenders” in I Bryce and W Petherick, Child sexual abuse: forensic issues in evidence, impact and management, Academic Press, Elsevier, 2020, p 119.

C Bijleveld, C van den Berg, and J Hendriks, “The juvenile sex offender: criminal careers and recidivism risk” in T Sanders (ed.), The Oxford Handbook of Sex Offences and Sex Offenders, OUP, 2017, p 220.

M Seto, Internet sex offenders, American Psychological Association, 2013, Ch 6 (“The connection between online and contact offending”).

K Babchishin et al, “Online child pornography offenders are different: a meta-analysis of the characteristics of online and offline sex offenders against children” (2015) 44 Archives of Sexual Behavior 45.

K Shead, “Responding to historical child sexual abuse: a prosecution perspective on current challenges and future directions” (2014) 26(1) Current Issues in Criminal Justice 55.

D Connolly, P Coburn and K Chong, “Twenty-six years prosecuting historic child sexual abuse cases: has anything changed?” (2017) 23(2) Psychology, Public Policy, and Law 166.