Sexual Assault Trials Handbook Update 37 published

The following sections have been updated:

[1-025] Sexual offences — brief legislative history and [1-040] Meaning of “consent” have been revised to incorporate amendments to the Crimes Act 1900 and the Criminal Procedure Act 1986 by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 which commenced from 1 June 2022.

[6-000] Recent sexual assault law on JIRS

The following recent cases have been added:


  • Sita v R [2022] NSWCCA 90 — Conviction appeal — directions — 10 child sexual offences involving complainants JU and KK — applicant found guilty on only count involving JU corroborated by KK — although Markuleski direction appropriate, direction that doubt about one complainant’s evidence could not affect assessment of count involving other complainant erroneous — not anticipated jury would take path of reasoning that led to acquittals on all counts other than only count corroborated by other complainant


  • AJ v R [2022] NSWCCA 136 — Evidence Act 1995, ss 79, 108C — specialised knowledge of behaviour of child sexual abuse victims — judge erred by admitting evidence related to opinion that sexual offending against children often occurred in brazen settings — such statements not within expertise of expert relied on by Crown — observations concerning preferred approach trial judges may take to such evidence
  • Aziz (a pseudonym) v R [2020] NSWCCA 76 — Evidence Act 1995, ss 79, 108C — expert evidence on children’s responses to sexual abuse — “opinion” includes conclusions drawn from others’ research — evidence admitted without objection at trial — no miscarriage of justice caused by admission of evidence in particular circumstances of this case


  • R v DB [2022] NSWCCA 87 — Mental Health and Cognitive Impairment Forensic Provisions Act 2020, ss 4, 28 — mental health impairment — criminal responsibility — child sexual offending — judge correct to conclude sexsomnia, a form of parasomnia, not a mental health impairment and to acquit respondent — respondent’s condition made his actions involuntary — absence of volition while asleep is universal and not a disturbance of volition — common law defence of “sane automatism” continues to apply
  • Smith v R [2022] NSWCCA 88 — Crimes Act 1900, ss 61M(2) (rep), 66DB, 80AF — aggravated indecent assault, replaced by sexual touching of child — uncertainty when offending occurred — judge erred in applying standard non-parole period for s 61M(2) offence — open to Crown to prosecute under ss 61M(2) or 66DB pursuant to s 80AF where same maximum penalty applies — alternative interpretation results in inability to prosecute and frustrates object of s 80AF
  • Hodgson v R [2022] NSWCCA 72 — Criminal Procedure Act 1986, s 133 — judge-alone trial — applicant found guilty of historical child sexual offences — convictions unreasonable — judge placed undue weight on demeanour of complainants’ and applicant — unchallenged evidence in defence case meant judge should have had a reasonable doubt
  • Higgins v R (No 2) [2022] NSWCCA 82 — Costs in Criminal Cases Act 1967, ss 2, 3 — applicant acquitted of historical child sexual assault charges on appeal — application for costs certificate dismissed — decision to prosecute charges not unreasonable given all “relevant facts” — institution of proceedings not necessarily unreasonable where verdict unreasonable within Criminal Appeal Act 1912, s 6(1)
  • WS v R [2022] NSWCCA 77 — Criminal Procedure Act 1986, s 293 — evidence complainant had prior sexual experience or had taken part in sexual activity — s 293(4)(c) exception — presence of semen, pregnancy, disease or injury attributable to alleged offence — miscarriage of justice caused because evidence complainant sexually assaulted by another man near date of offence not led at trial — probative value of evidence outweighed “distress, humiliation and embarrassment” complainant might suffer
  • R v BK [2022] NSWCCA 51 — Criminal Procedure Act 1986, s 133(2) — historical child sexual assault charges — obligation to give reasons in judge-alone trial — respondent acquitted — judge erred in not explaining assessment of tendency evidence in judgment — s 133(2) requires trial judges to expose their reasoning process linking principles applied with findings of fact to justify findings and verdict — notwithstanding error, acquittal affirmed


  • R v RB [2022] NSWCCA 142 — Crown appeal — Crimes Act 1900, s 66EA — maintain unlawful sexual relationship with a child — fact finding on sentence after jury verdict of guilty — judge erred in determining respondent should be sentenced on basis of two least serious unlawful sexual acts and by making no factual findings — Chiro v The Queen (2017) 260 CLR 425 does not apply — matter remitted for sentence
  • R v Delzotto [2022] NSWCCA 117 — Crown appeal — Crimes Act 1914 (Cth), ss 16AAA, 16AAB — mandatory minimum penalties — possess child abuse material accessed by carriage service — judge erred by failing to approach minimum penalty in accordance with Bahar v R [2011] WASCA 249 — sentence below mandatory minimum not appropriate for offence in mid-range of seriousness — minimum penalty reserved for least serious offending
  • Young (a pseudonym) v R [2022] NSWCCA 111 — child sexual offences — delay — applicant sentenced as an adult for childhood offending — delay resulted in lost opportunities for Children’s Court sentencing, more lenient sentencing options, consideration of good character, and cycle of abuse to be addressed earlier — applicant’s significantly deprived background a “classic Bugmy case” — sentence manifestly excessive
  • PC v R [2022] NSWCCA 107 — Crimes Act 1900, ss 61H(2), 66C(2) — aggravated sexual intercourse with child aged 10–14 (under authority) — complainant was applicant’s daughter — Crimes (Sentencing Procedure) Act 1999, s 21A(2)(k) — aggravating factors — abuse of trust — judge did not err by taking aggravating factor of abuse of trust into account — abuse of authority not an element of offence — each case depends on relationship between offender and child, and circumstances of offending
  • R v Obbens [2022] NSWCCA 109 — Crown appeal — Crimes Act, s 61E(1A) (rep) — historical indecent assault of child under authority — respondent had already served 3 year sentence of imprisonment for like offending committed around same time — subsequent community correction order (CCO) not manifestly inadequate — judge correct to conclude imprisonment not appropriate — relevant question whether total sentencing outcome (previous imprisonment and CCO) encompassed whole criminality
  • Bisiker v R [2022] NSWCCA 110 — Criminal Code (Cth), s 474.24A — Crimes Act 1900, s 91H(2) — child pornography offences — Child Protection (Offenders Registration) Act 2000, s 17(1) — failure to comply with reporting obligations — effective sentence not manifestly excessive — significant accumulation between State and federal offences appropriate — breach of reporting obligations involved distinct criminality — subsuming breach into subsequent offences would undermine objectives of child protection regime
  • R v PC [2022] NSWCCA 59 — Crown appeal — child sexual assault by stepfather — judge erred by treating registration under the Child Protection (Offenders Registration) Act 2000 as a mitigating factor — community correction orders manifestly inadequate given repetition, persecutory nature and extended period of offending — observations on Children (Criminal Proceedings) Act 1987, s 15A(1)(a) — impact of restriction on publication of child victim’s name — s 15A prevents general deterrent effect of inter-familial child sex offence sentences
  • Darke v R [2022] NSWCCA 52 — Crimes Act 1914 (Cth), s 16A(2AAA) — Commonwealth child sex offender rehabilitation — judge erred by failing to refer to mandatory considerations in s 16A(2AAA) — court required to consider applicant’s rehabilitation, including in imposing conditions and fixing sentence length — applicant resentenced with recognisance release order and treatment/rehabilitation condition
  • Fenner v R [2022] NSWCCA 48 — Crimes (Sentencing Procedure) Act 1999 (C(SP) Act), s 21A(3)(e), (f) — good character — Crimes Act 1900, s 73(2) — sexual intercourse with person under special care aged 17 — school teacher/student — judge erred by not taking into account applicant’s good character and lack of criminal history as mitigating factors — C(SP) Act, s 21A(5A) does not apply to s 73 offence — good character evidence entitled to some weight
  • R v Harrison; ex parte DPP (Cth) [2021] QCA 279 — Crown appeal — Criminal Code (Cth), ss 272.11(1), 272.19(1), 474.19(1) (rep) — Criminal Code (Qld), s 228D — sexual offences involving children outside Australia — total effective sentence failed to adequately reflect overall criminality which included exploiting a child’s economic vulnerabilities, and seeking to procure another child through the first child

Recent sexual assault legislation

  • Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 — amends Crimes Act 1900 — replaces s 61HE with new ss 61HF–61HK — s 61HI provides new definition of “consent” — s 61HJ provides circumstances where no consent — s 61HK updates circumstances where accused has knowledge of lack of consent — amends Criminal Procedure Act 1986 — new ss 292–292E provide for jury directions in relation to misconceptions about consent — commenced on proclamation on 1 June 2022 (s 2).Sch 1.2[1] replaces s 5(1)(b4)–(b5) to add to the definition of “serious sex offence” the offences in the Criminal Code (Cth) relating to:
    • Grooming a person to make it easier to engage in sexual activity with, or procure, a child: ss 272.15A, 471.25A, 474.27AA; and
    • The use of electronic services to commit or facilitate the commission of particular child abuse material offences: s 474.23A.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” — amendments commenced on assent on 8 December 2021 (s 2):
  • Sch 1.2[2] replaces s 5(2)(h3)–(h4) to add to the definition of “offence of a sexual nature” the offences in the Criminal Code relating to the possession or control of child abuse material: ss 273A.1, 474.22A. It also omits references to repealed provisions of the Criminal Code.

[6-100] Government reviews and papers

The section on Consent in relation to sexual offences has been revised to update the reference to the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, which commenced 1 June 2022.

A recent research bulletin from Corrective Services NSW on the CUBIT program has been included: M Howard, Process evaluation of the Custody Based Intensive Treatment (CUBIT) program for sex offenders: within-treatment change, Corrective Services NSW Research Bulletin No 50, 2021.

[10-500] Important general directions in sexual assault trials

This section has been updated to provide links to important jury directions in the Criminal Court Trials Bench Book for use in sexual assault trialsIncluded are links to new directions concerning misconceptions about consent in sexual assault trials following the addition of ss 292 to 292E to the Criminal Procedure Act by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021.