Sexual Assault Trials Handbook Update 43 published

The following sections have been updated:

[1-025] Sexual offences — brief legislative history has been revised to incorporate amendments to the Crimes Act 1900, Criminal Procedure Act 1986, Crimes (Sentencing Procedure) Act 1999 (commenced 1 July 2024), and the Crimes (Domestic and Personal Violence) Act 2007 (commenced 1 February 2024) by the Crimes Legislation Amendment (Coercive Control) Act 2022.

The Crimes Legislation Amendment (Coercive Control) Act 2022 creates the new offence of abusive behaviour towards intimate partners (s 54D(1) Crimes Act 1900).

[6-000] Recent sexual assault law on JIRS

The following recent cases have been added:

Evidence

• Davidson (a pseudonym) v R [2024] NSWCCA 60 — Evidence Act 1995, ss 97A, 101 — child sexual offences — tendency evidence derived from single witness and involved acts different from charged offence — no “exceptional circumstances” to allow consideration of s 97A(5) factors to rebut s 97A(2) presumption of significant probative value — judge correctly admitted tendency evidence of sexual interest in person with similar characteristics to complainant — jury directions ameliorated danger of unfair prejudice
• SA v R [2023] NSWCCA 50 — Evidence — context evidence — Evidence Act 1995, s 137 — exclusion of prejudicial evidence — trial judge did not err in admitting, as context evidence, parts of complainant’s statement disclosing earlier abuse, including fellatio — judge properly considered test in s 137 — evidence went to complainant’s continuing fear and delay in complaint — any prejudice met by appropriate directions — s 137 not engaged for those portions of context evidence not objected to at trial

Offences

• Grant v R [2024] NSWCCA 78 — Crimes Act 1900, ss 66EA, 81 (rep) — historic indecent assaults (s 81 (rep)) constituting maintain unlawful relationship offence (s 66EA) — acts committed by female — s 81 offence can only be committed by male: Lam v R [2024] NSWCCA 6 — appellant’s relationship not unlawful as s 66EA applies retrospectively if sexual acts making up unlawful relationship were illegal at time committed — indictment quashed and acquittal ordered

Sentencing

• R v Bredal [2024] NSWCCA 75 — Cth sentencing — Crown appeal — Crimes Act 1914 (Cth), s 20(1)(b)(iii) — Cth child sex offender not to be immediately released on recognizance unless exceptional circumstances — online grooming (Criminal Code (Cth), s 474.27(1)) — open to sentencing judge to find exceptional circumstances on combination of matters including respondent’s voluntarily withdrawal from offending — meaning of “exceptional circumstances” discussed

Appeals

• R v Carey [2024] NSWCCA 90 — Crown sentence appeal — historical child sexual offences — sentence manifestly inadequate — Crimes (Sentencing Procedure) Act 1999 (C(SP) Act), ss 19, 21B (formerly s 25AA) — applicable maximum penalties, and sentencing in accordance with patterns and practices at time of sentencing — limited number of truly comparable cases — cases to be from period when maximum penalty (or SNPP) was same or similar, and after introduction of s 25AA(1) — residual discretion — respondent resentenced

Recent sexual assault legislation

• Crimes High Risk Offenders Legislation Amendment Act 2024 — Incorporation of strangulation offences — Schedules 1[2] and [3] respectively expand the definitions of “serious sex offence” in s 5(1)(b) and “offence of a sexual nature” in s 5(2)(b) of the Crimes (High Risk Offenders) Act 2006 to include offences under Crimes Act 1900, s 37(2) [choking, suffocation and strangulation with intent to enable commission of another indictable offence] — commenced on proclamation on 21 June 2024 (s 2, LW 21.06.24)