Update 36, March 2022
The following sections have been updated:
[1-000] Sexual offences involving child victims
Table 1: Sexual offences involving child victims at [1-000] has been updated to incorporate amendments made to the Crimes Act 1900 by the Modern Slavery Act 2018, which commenced 1 January 2022. The Modern Slavery Act amends s 91G to introduce an aggravated form of the offence of using a child for the production of child abuse material. The amendments also create new offences relating to administering and encouraging use of digital platforms for child abuse material and providing information about avoiding detection (ss 91HAA, 91HAB, 91HAC).
[6-000] Recent sexual assault law on JIRS
The following recent cases have been added:
- Arvinthan v R  NSWCCA 44 — Sentencing — Crimes (Sentencing Procedure Act) 1999, s 21A(2)(ea) — aggravating factors — judge erred by finding offence aggravated because it occurred in presence of child — double-counting to assess objective seriousness having regard to victim’s age and treating age as separate aggravating factor when child the victim of offence.
- BB v R  NSWCCA 283 — Crimes Act 1900, s 61M(2) (rep) — indecent assault of child under 10 years — applicant complainant’s father — sentence not manifestly excessive — judge found motivation for offences to “bond” with complainant — supposed absence of sexual motivation unlikely to affect assessment of objective seriousness — sexual character of conduct an inherent feature of offence.
- R v Ibrahim  NSWCCA 296 — Crown appeal — Crimes Act 1900, s 61I — pharmacist sexually assaulted customer under guise of medical examination — respondent’s status as registered health professional reflects trust placed in them and informs seriousness of breach of trust — Crimes Act, s 61HE — knowledge of non-consent not a separate aggravating factor but informs abuse of position of trust — non-parole period manifestly inadequate but appeal dismissed.
- Allison (a pseudonym) v The Queen  VSCA 308 — Criminal Code (Cth), ss 474.19 (rep), 474.22, 474.22A — use carriage service to access and possess child pornography/child abuse material — application for permanent stay of “access offences” — judge did not err by refusing stay — offences overlap but are not duplicitous as they involve different elements and criminality — Pearce v The Queen (1998) 194 CLR 610 applied — no double jeopardy or abuse of process.
- Decision Restricted  NSWCCA 2 — apprehended bias — Crimes Act 1900, s 61M(2) (rep) — aggravated indecent assault — Crown added s 61M(2) offence to indictment during retrial on trial judge’s urging — test for apprehension of bias satisfied and miscarriage of justice resulted — judge provided advice to Crown and conduct departed from role to adjudicate impartially — retrial ordered on original charges on indictment.
- Z (a pseudonym) v R  NSWCCA 8 — Crimes Act, s 578A(2) — non-disclosure of complainants of prescribed sexual offences — applicant acquitted of Crimes Act 1900, s 61I offence (a prescribed sexual offence) but appealed conviction for other offences — appropriate that s 578A(2) still operates as appeal would identify complainant.
- McIver v R  NSWCCA 343 — apprehended bias — judge-alone trial — historical sexual assault where verdict based on complainant’s credibility — at trial, judge recognised complainant as an attendant at shop she frequented 18 years earlier — judge ought to have recused herself — fair-minded lay observer might reasonably apprehend unconscious predisposition in favour of complainant.
- R v AB  NSWCCA 3 — Crown appeal — Crimes (Sentencing Procedure) Act 1999, s 10(1)(b) — conditional release order (CRO) without conviction — numerous sexual offences against boy aged 14 — respondent victim of extensive and severe child sexual abuse and was on remand for 8½ months — s 10(1)(b) CRO not manifestly inadequate — unique case — despite serious offending, criminality did not deserve community denunciation by recording conviction.
- R v JH  NSWCCA 299 — Crown appeal — Crimes Act 1900, s 66A — sexual intercourse with child under 10 — Crimes (Sentencing Procedure) Act 1999, s 33(4)(b) — error to place offence carrying life imprisonment on Form 1 — matter remitted to District Court for sentence — inappropriate for CCA to resentence when that decision might inform sentencing outcome.
- Orreal v The Queen  HCA 44 — Appeals — child sex offences — evidence appellant and complainant had herpes irrelevant and prejudicial — trial judge erred by failing to direct jury to disregard that evidence — Qld Court of Appeal erred by finding no substantial miscarriage of justice and applying proviso — error to place weight on verdicts which may have been affected by impugned evidence — Hofer v The Queen  HCA 36 distinguished.
- JH v R  NSWCCA 32 — Directions — Crimes Act 1900, s 61J — aggravated sexual intercourse without consent — aggravating circumstance (s 61J(2)(f)) that complainant had “serious physical disability” (cerebral palsy and dystonia) — no error in judge’s directions — “serious physical disability” is a question for jury and does not require explication — open on evidence for jury to find aggravating circumstance made out.
Recent sexual assault legislation
- Modern Slavery Act 2018 — amends Crimes Act 1900 — amends s 91G to introduce aggravated form of offence of using child for production of child abuse material — creates new offences relating to administering and encouraging use of digital platforms for child abuse material and providing information about avoiding detection (ss 91HAA, 91HAB, 91HAC) — inserts s 93AC relating to child forced marriages — commenced on 1 January 2022 (s 2).
- Crimes Legislation Amendment Act 2021 — amends Crimes (High Risk Offenders) Act 2006, s 5 to update offences classified as a “serious sex offence” and “offence of a sexual nature” — commenced on assent on 8 December 2021 (s 2, GG No 649 of 17 December 2021).
[6-050] Other publications
An article by J Cashmore and R Shackel, “Research on sexual assault to inform the courts and legal professionals” (2022) 34(2) JOB 15 has been added.
[7-000] Relevant literature — legal articles
The following articles have been added:
At [7-150] “The law on consent in sexual assault is changing” by P Mizzi and R Beech-Jones, (2022) 34(1) JOB 1. This article summarises the changes that the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, commencing June 2022, will introduce as well as the legislated jury directions added to the Criminal Procedure Act 1986. The directions address perceived misconceptions about the conduct of a sexual assault complainant and the possible manner of such complainants giving evidence.
At [7-155] “Myths, misconceptions and mixed messages: an early look at the new tendency and coincidence evidence provisions” by D Hamer, (2021) 45 Crim LJ 232. This article discusses reforms made to the tendency and coincidence evidence provisions in the Uniform Evidence Law jurisdictions following recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. The author argues that the reforms are unnecessarily complex, and that rather than improve understanding of the inferential value of other misconduct evidence, the reforms may sow confusion, waste court resources, and create associated costs for complainants, defendants and other participants.