Sexual Assault Trials Handbook Update 39 published

Update 39, March 2023

Sexual Assault Trials Handbook — consolidated and current to Update 39 — March 2023 [PDF]

[6-000] Recent sexual assault law on JIRS

The following recent cases have been added:


  • BQ v R [2023] NSWCCA 34 — Evidence Act 1995, s 79 — expert opinion evidence — children’s responses to sexual abuse — type of evidence adduced approved in Decision Restricted [2022] NSWCCA 136 — evidence did not fall outside expert’s qualifications and expertise — no invariable requirement for direction that expert evidence not relevant to credibility of particular complainants — no miscarriage of justice
  • Cook (a pseudonym) v R [2022] NSWCCA 282 — Criminal Procedure Act 1986, s 293 (now s 294CB) — prohibition on admitting evidence of prior sexual experience/activity — victim disclosed to applicant previous abuse by another 18 months before subject offences — judge correctly excluded evidence — events too far apart in time and not sufficiently related (s 293(4)(a)(i)) — “connected set of circumstances” in s 293(4)(a)(ii) does not include reporting of previous offences or related committal proceedings
  • Elsworth v R [2022] NSWCCA 276 — Criminal Procedure Act 1986, s 293 (now s 294CB) — prohibition on admitting evidence of prior sexual activity/experience — Crimes Act 1900, 61I — sexual intercourse without consent — judge correct to exclude evidence of complainant’s conversation with applicant after offence regarding prior sexual assault five years earlier — evidence did not fall within s 293(4) exceptions as temporal requirement in s 293(4)(a)(i) not satisfied, and evidence not relevant
  • RC v R [2022] NSWCCA 281 — Evidence Act 1995, ss 65, 106(1) — exceptions to hearsay and credibility rules — child sexual assault — complainant an unfavourable witness — judge erred in admitting complainant’s police statement — silence not sufficient to establish denial of substance of evidence under s 106(1)(a)(ii) — witness was not “unavailable” under s 65 — “all reasonable steps” not taken by Crown to compel witness to give evidence — conviction quashed and re-trial ordered


  • R v Taylor [2022] NSWCCA 256 — Crown appeal — Crimes Act 1914 (Cth), ss 16AAB, 16AAC — mandatory minimum penalties for specified child sexual offences — judge did not err by imposing mandatory minimum (pre-discount) — not the case that, unless offence within least serious category, mandatory minimum term or higher must, as a matter of law, be imposed — mandatory minimum fixes lower limit, and discretion to impose it to be determined on established principles
  • DH v R [2022] NSWCCA 200 — multiple child sexual offences — judge did not err in not specifying objective seriousness by reference to scale of seriousness — judge satisfied requirement to clearly state findings of objective seriousness noting differences in that assessment reflected in indicative sentences — whilst not an error to assess objective seriousness on hypothetical continuum of seriousness, failure to do so not erroneous
  • Benn v R [2023] NSWCCA 24 — Crimes (Sentencing Procedure) Act 1999, s 53A — aggregate sentences — sexual offending against multiple victims — judge did not fail to give effect to totality principle — no requirement to specify notional cumulation and concurrency across offences and complainants when imposing aggregate sentence
  • Bhatia v R [2023] NSWCCA 12 — Crimes (Sentencing Procedure) Act 1999, s 21A(5A) — good character in child sexual offences — applicant was victim’s parents’ friend before victim’s birth — judge erred by not taking good character into account — no evidence applicant actively used good character to gain access to victim
  • Decision Restricted [2023] NSWCCA 10 — child sexual offences — Crimes (Administration of Sentences) Regulation 2014, cl 214A — parole supervision limitation — judge’s refusal to find special circumstances open — while limitation generally a significant factor in determining special circumstances, limitation not only factor considered by judge — observations regarding findings of objective seriousness

[7-000] Legal articles

The abstract for the District Court of NSW Seminar Series presentation “Children’s champions/witness intermediaries” by Professor P Cooper at [7-060] has been updated to add reference to the Child Sexual Offence Evidence Program (CSOEP). Beginning as a pilot scheme in 2016, the CSOEP will be established as a permanent fixture to every District Court and police district in NSW from 1 July 2023: see “Greater support for child sex abuse victims”, media release, NSW Communities and Justice, Sydney, 1 February 2023.

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

The following article has been added:

At [7-990] “Legal decision making about (child) sexual assault complaints: the importance of the information-gathering process” by M Martschuk, M Powell, R Blewer and J Goodman-Delahunty, (2022) 34(1) Current Issues in Criminal Justice 58. This article discusses why legal systems still struggle with prosecuting sexual offences, particularly against children, despite over a century of reform in the way evidence of adult and child sexual assault complainants is received during the common law adversarial trial process.