Sections 292 to 292E in Ch 6, Pt 5 Div 1, Subdiv 3 of the Criminal Procedure Act 1986 were inserted by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 and provide for particular directions to be given during certain sexual assault trials. These provisions follow certain recommendations by the Law Reform Commission after its review of the law on consent: New South Wales Law Reform Commission Consent in relation to sexual offences Report No 148, 2020, recommendations 8.1–8.7; Ch 8.

These provisions apply to proceedings which commence on and from 1 June 2022, regardless of when the relevant offence was committed: Sch 2, Pt 42.

The Attorney General said the purpose of these provisions was to “address common misconceptions about consent and to ensure a complainant’s evidence is assessed fairly and impartially by the tribunal of fact”: Second Reading Speech, Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021, NSW, Legislative Assembly, Debates, 19 November 2021, p 58.

The Court of Criminal Appeal has made a number of statements concerning the futility of making assumptions based on misconceptions about how a sexual assault complainant might behave: see, for example, Khamis v R [2018] NSWCCA 131 at [56]–[58] (Gleeson JA), [533] (Button J); Rao v R [2019] NSWCCA 290 at [98]; Xu v R [2019] NSWCCA 178 at [92]; Maughan v R [2020] NSWCCA 51 at [2] (RA Hulme J), [13] (Adamson J), [99] (Ierace J). In Maughan v R at [2], RA Hulme J described:

Section 292(1) provides that each of the consent directions in ss 292A–292E apply to the following offences (or attempts to commit those offences) in the Crimes Act 1900:

Section 292(2) provides that a judge must give any one or more of the consent directions:

The directions do not require a particular form of words: s 292(3).

A judge should give reasons explaining the basis of a decision as to whether, or not, to give a direction.

A judge may:

At the earliest opportunity, it is suggested it would be good practice to ask the parties to identify the issues in the trial and which, if any, of the consent directions in ss 292A–292E may be required. The potential timing, and frequency, of the directions to be given could also be addressed then.

The directions will require adaptation to suit the charges and the evidence of the particular case. It is unlikely a “one size fits all” approach could be taken, particularly in cases involving multiple offences and multiple complainants.

Sections 292A–292C and 292E concern consent and the circumstances in which non-consensual sexual activity might occur. Whether any of these directions should be included in the summing-up when addressing proof of consent may require consideration. Certain of them might need to be discussed when dealing with the evidence of the complainant more generally (for example, ss 292C and 292D). Consider the relationship between these provisions and the provisions related to proof of consent in the Crimes Act 1900 such as, for example, ss 61HI (Consent generally), and 61HJ (Circumstances in which there is no consent). Directions concerning the same or similar topics might be given at the same time.

Section 292D concerns misconceptions about a person’s response to giving evidence: see LRC Report at 8.111–8.119 for an explanation of the rationale for this provision.

Note: Consider the relationship between these provisions and provisions related to proof of consent in the Crimes Act 1900 such as, for example, ss 61HI (Consent generally), and 61HJ (Circumstances in which there is no consent). Directions concerning the same or similar topics might be given at the same time.

Circumstances in which non-consensual sexual activity occurs — s 292A

Note: Consider the limitation imposed by s 294CB on cross-examination of a complainant about past sexual activity. The need for this direction will only arise if there has already been a ruling admitting evidence of this kind. See further [5-100] Cross-examination concerning prior sexual history of complainants.

Responses to non-consensual sexual activity — s 292B

Lack of physical injury, violence or threats — s 292C

Behaviour and appearance of complainant — s 292E

In cases involving the consumption of alcohol or another drug, consideration should also be given to the evidence in the particular case and whether a direction of this kind is required given s 61HJ(1)(c) identifies, as a circumstance where a person cannot consent, if “the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity”.

It is difficult to envisage a case where evidence of a complainant’s clothing or appearance would be relevant. It is more likely a direction addressing these aspects of s 292E may be required if other evidence was led in the trial, such as videos or photographs of the complainant taken at the time of the relevant offence, and/or submissions made about those matters.