Note:

See JIRS Legal digests and announcements for summaries of all items in this list. Content on JIRS is only available to NSW judicial officers and other JIRS subscribers.

30/11/2023 —sentencing — Crimes Act 1900, s 61HE(3), (4) (rep) — knowledge of sexual consent and offender's self-induced intoxication — Crimes (Sentencing Procedure) Act 1999, s 21A(5AA) — self-induced intoxication not mitigatory — applicant convicted of sexual assault after jury trial — judge found applicant knew victim not consenting — no error in judge's approach — s 21A(5AA) prohibits taking into account applicant's self-induced intoxication as mitigating factor — Fisher v R [2021] NSWCCA 91 (Fullerton and Adamson JJ) followed — Pender v R [2023] NSWCCA 291

24/11/2023 — sentencing — extra-curial punishment — applicant convicted of child sexual offences was subject to public/media attention regarding previous like offending — judge did not err by finding applicant not subject to extra-curial punishment — public denunciation following conviction does not generally constitute extra-curial punishment — media reporting naming offender ordinary consequence of such offences — personal consequences including loss of employment may still be relevant on sentence — Melville v R [2023] NSWCCA 284

07/11/2023 — sentencing — Crimes (Sentencing Procedure) Act 1999, s 21A(2)(k) — aggravating factor of abuse of trust/authority — Crimes Act 1900, s 66A(1) (since amended) — sexual intercourse with child under 10 — Crown and applicant accepted s 21A(2)(k) satisfied — judge erred by relying upon matters falling within aggravated s 66A(2) offence (under authority) — De Simoni error — HA v R [2023] NSWCCA 274

01/11/2023 — offences — Crimes Act 1900, ss 61M(1) (rep), 61E(1) (rep) — historical indecent assault of children — no “indecent intent” required — majority decision in R v Court [1989] 1 AC 28 not followed — Evidence Act 1995, ss 66, 108(3)(b) — complaint evidence relevant to re-establishing credibility — Van Gestel v R [2023] NSWCCA 263

25/10/2023 — sentencing — aggravating features — applicant sentenced for child sexual offences including sexual intercourse and act of indecency with child (Crimes Act 1900, ss 66C(1), 61N (rep) respectively) — judge referred to applicant’s position of authority as “aggravating feature” — judge did not conclude aggravated offence or Crimes (Sentencing Procedure) Act, s 21A(2)(k) feature of statutory aggravation, had been made out — position of authority can be considered as part of instinctive synthesis — Kilby v R [2023] NSWCCA 247

16/10/2023 — Digest — Criminal Procedure Act 1986, ss 306U, 306Y — child sexual offences — child witness’ evidence in chief recorded in police interview — application to exclude interview on basis not in “interests of justice” to tender recording — judge did not err in dismissing application — Evidence Act 1995, ss 165, 165A — judge did not err in directions about unreliability of witness’ evidence — LF v R [2023] NSWCCA 232

11/09/2023 — appeals — conviction appeal — child sexual assault — verdicts not unreasonable or unsupported by evidence — appeal dismissed — observations on complainant responses to sexual assaults — Decision Restricted [2023] NSWCCA 223

31/08/2023 — Directions — sexual offences — consent — Crimes Act 1900, s 61HE(3)(b), (c) (rep) — “non-advertent” recklessness not abolished by unreasonable belief in consent — no error in judge’s directions — Criminal Procedure Act 1986, ss 292A–249E — mandatory consent directions only apply if accused arraigned after commencement of provisions — Lee v R [2023] NSWCCA 203

18/08/2023 — appeals — unreasonable verdicts — Criminal Appeal Act 1912, s 6(1) — judge-alone trial — judge did not err in resolving conflicting evidence of complaint — complaint “limited” and not especially memorable — error in judge’s reasoning process resolving disputed facts not challengeable under “first limb” of s 6(1) (unreasonable verdict) but challengeable under “third limb” (miscarriage of justice) — Dansie supersedes any suggestion in Filippou v The Queen that errors in reasoning process can engage first limb of s 6(1) — verdict not unreasonable — EE v R [2023] NSWCCA 188

14/08/2023 — sentencing — Crimes Act 1900, s 61HA(3) (since amended) — knowledge of non-consent — respondent convicted of sexual offences after trial — judge’s finding respondent’s state of mind in “least serious” category of knowledge (s 61HA(3)(c): no reasonable grounds for believing consent) open — if judge not satisfied beyond reasonable doubt of more culpable forms of knowledge in s 61HA(3)(a), (b), finding of knowledge in s 61HA(3)(c) necessary default — in assessing objective seriousness, generalised phrases or range labels not useful — R v RE [2023] NSWCCA 184

01/08/2023 — appeals — fitness to be tried — Mental Health and Cognitive Impairment Forensic Provisions Act 2020, s 44 — applicant raised fitness to be tried for first time on appeal — despite new legislative regime prescribing different decision-maker (judge-alone, not jury), applicable test still that in R v RTI (2003) 58 NSWLR 438 — question of principle on appeal not based on identity of decision-maker but rather whether miscarriage of justice occurred — Roberts v R [2023] NSWCCA 187

20/07/2023 — offences — Crimes Act 1900, s 66EA — persistent sexual abuse of child — five-judge bench — statutory interpretation — offence requires existence of relationship “in which” unlawful sexual acts were committed — word “maintains” in s 66EA(1) adds nothing to actus reus beyond satisfaction of s 66EA(2) — no requirement for sexual relationship over and above unlawful sexual acts — judges’ directions conformed with proper construction — Decision Restricted [2023] NSWCCA 2 and R v RB [2022] NSWCCA 142 overruled — MK v R [2023] NSWCCA 180

17/07/2023 — Directions — child sexual offences — child accused — Crown disclaimed consciousness of guilt reasoning in case but used it to rebut doli incapax presumption — judge gave no Edwards or Zoneff directions to jury — absence of direction in light of Crown’s conduct of trial occasioned miscarriage of justice — acquittal entered — AB v R [2023] NSWCCA 165

11/07/2023 — sentencing — Crown appeal — Crimes Act 1900, s 61I — sexual intercourse without consent — Community Correction Order (CCO) imposed — penile-vaginal intercourse offence committed with knowledge of non-consent within context of other consensual sexual activity — not open to judge to characterise offending as just above low range — CCO manifestly inadequate — observations regarding social media apps, the pandemic and sexual consent — Kramer v R [2023] NSWCCA 152

05/07/2023 — sentencing — sexual and violent offences perpetrated against partner — applicant relied upon psychiatric/psychological reports with inconsistencies in histories provided by applicant — judge failed to take into account relevant mitigatory matters and erred in rejecting parts of subjective case — while open to judge to regard applicant’s inconsistent hearsay to experts with scepticism, rejection of part of the evidence did not justify rejection of almost entire subjective case — Giacometti v R [2023] NSWCCA 150

23/06/2023 — Directions — right to silence — applicant answered questions in electronically recorded interview until allegations of offending raised — judge failed to adequately direct jury on applicant’s right to silence — right to silence only referred to in summing up — where evidence is led by Crown of applicant’s right to silence, conviction ordinarily set aside where no direction given — Rahman v R [2021] NSWCCA 290

15/06/2023 — sentencing — five-judge bench — Crimes (Sentencing Procedure) Act 1999 (C(SP) Act), s 25AA(2) — standard non-parole period (SNPP) at time of offence applies for child sexual offences — C(SP) Act, Sch 2, cl 91 — retrospective application of increased SNPP for indecent assault of child under 10 (Crimes Act 1900, s 61M(2) (rep)) — increased SNPP does not have retrospective application — scope of s 25AA(2), in clear language, not limited by earlier enacted transitional provision — GL v R [2022] NSWCCA 202 correctly decided — AC v R [2023] NSWCCA 133

05/10/2023 — sentencing — Crown appeal — Crimes (Sentencing Procedure) Act 1999, s 21A(2)(g) — substantial harm — respondent committed sexual offences against live-in housekeeper and disseminated intimate images which damaged victim’s relationship with her family in Nepal — judge failed to take into account significant emotional harm suffered by victim as an aggravating factor under s 21A(2)(g) — R v Packer [2023] NSWCCA 87

22/09/2023 — evidence — sexual offences — accused convicted of three counts — complainant only made immediate and clear complaint about one count — equivocal or delayed complaint about remaining counts — verdicts not unreasonable — observations on malleability of witnesses’ memory — Arizabaleta v R [2023] NSWCCA 217

28/07/2023 — Evidence Act, ss 97, 97A, 101— tendency evidence — child sexual offences — cross-admissibility of tendency evidence of three complainants — tendency notice alleged acts less serious than some charged offences — no error in judge excluding evidence under s 101 — danger of unfair prejudice outweighed probative value — observations on “exceptional circumstances” in s 97A — Stenner-Wall v R [2023] NSWCCA 163

29/06/2023 — Evidence Act 1995, ss 97A, 101(2) — child sexual offences — cross-admissibility of tendency evidence for three complainants — judge erred in considering s 97A(5) factors to rebut s 97A(2) presumption of significant probative value in absence of “exceptional circumstances” — circumstances must be more than just sufficient to enliven s 97A(5) factors to be “exceptional” — R v Clarke [2023] NSWCCA 123

26/06/2023 — Directions — Criminal Procedure Act 1986, s 161A — tendency evidence — standard of proof — charged and uncharged acts of varying seriousness adduced as tendency evidence — judge’s directions did not invite circular reasoning — Rassi v R [2023] NSWCCA 119

08/06/2023 — Criminal Appeal Act 1912, s 5F(3) — appeal of “interlocutory judgment or order” — child sexual offences — judge refused leave for applicant to recall child witnesses who gave pre-recorded evidence under Criminal Procedure Act 1986, Sch 2, cl 87 — refusal of leave not appellable under s 5F(3) — no jurisdiction to hear appeal — PJ v R [2023] NSWCCA 105

26/05/2023 — sentencing — historical child sexual offences — good character — no offending from 1986 — judge’s assessment of applicant’s character of “little weight” open — conviction-free period distinct from factual finding that offender has not reoffended — delay in complaint — judge did not err in considering delay — delay result of child sexual offending’s nature and not a mitigating factor — Richards v R [2023] NSWCCA 107

23/05/2023 — criminal responsibility — sexual offences allegedly committed by child between 10 and 14 — Criminal Code (Qld), s 29(2) — presumption of incapacity of child between 10 and 14 rebuttable by evidence of capacity to know they ought not do act — presumption of incapacity under s 29(2) not equivalent to moral wrongness required by common law (RP v The Queen (2016) 259 CLR 641) but is informed by it — BDO v The Queen (2023) 277 CLR 518

18/05/2023 — evidence — assessing reliability — child sexual assault — complainant socially disadvantaged, deprived and behaviourally troubled — system of individual justice relies on jury assessing witness’ evidence, not based on assumed social or material worth — no class of child witness inherently incapable of truthfulness or accuracy — verdict not unreasonable or unsupported by evidence — Murray v R [2023] NSWCCA 79

10/05/2023 —procedure — Child Protection (Offenders Registration) Act 2000, ss 3(3), 3A(2), (5) — Crimes Act 1900, s 91H(2) — possess child abuse material — juvenile offender — judge erred by declaring respondent’s entry on Child Protection Register erroneous on basis exception in s 3A(2) applied — meaning of “registrable person” and “arising from the same incident” in s 3A — possessing child abuse material involving actual children is an offence committed against those children — Commissioner of Police, NSW Police Force v TM [2023] NSWCA 75

05/05/2023 — procedure — judge-alone trials — child sexual assault — judge erred by making adverse findings on applicant’s credibility based on his demeanour in dock and insignificant evidentiary point, without notice — Criminal Procedure Act 1986, s 133 — obligation to give reasons in judge-alone trials — reasons did not disclose how demeanour affected credit — applicant denied procedural fairness — Decision Restricted [2023] NSWCCA 89

01/05/2023 — sentencing — Crimes (Sentencing Procedure) Act 1999 (C(SP) Act), s 25AA(2); Sch 2, cl 68 — applicable standard non-parole periods (SNPPs) for child sexual offences — transitional provisions — Crimes Act 1900, s 66C(2) — aggravated sexual intercourse with child aged 10 to 14 committed before 1 January 2015 — judge erred by applying SNPP which commenced 29 June 2015: C(SP) Act, s 25AA(2); Sch 2, cl 68 — sentencing judge led into error by parties — counsel have responsibility to properly assist court — DC v R [2023] NSWCCA 82

01/05/2023 — Criminal Appeal Act 1912, s 6(1) — unreasonable verdicts — child sexual offences — guilty verdicts not inconsistent with acquittals — plausible explanation for verdicts specific to the evidence — complainant’s credibility and general reliability of her other evidence not damaged — observations on credibility and reliability — Barney v R [2023] NSWCCA 85

21/04/2023 — sentencing — child sexual offences — Crown appeal — judge erred imposing indicative sentences below proper range — aggregate sentence manifestly inadequate — indicative sentences can signal error in aggregate sentences: Lee v R [2020] NSWCCA 244 — Crimes (Sentencing Procedure) Act 1999, s 25AA(3) — Crown to identify trauma of sexual abuse on child victim where not self-evident from facts — relevance of uncharged acts in sentencing — DPP (NSW) v TH [2023] NSWCCA 81

11/04/2023 — Directions — sexual offences — accused gave evidence — judge erred in giving incomplete Liberato v The Queen (1985) 159 CLR 507 direction — Criminal Procedure Act 1986, s 294(2)(c) — judge erred in directing jury that delay in complaint not relevant to credibility — insufficient evidence to justify direction — omission of some alternative counts from indictment liable to confuse — retrial ordered — Park v R [2023] NSWCCA 71

14/03/2023 — Evidence Act 1995, s 79 — expert opinion evidence — children’s responses to sexual abuse — type of evidence adduced approved in AJ v R [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 — BQ v R [2023] NSWCCA 34

02/03/2023 — sentencing — 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 — Benn v R [2023] NSWCCA 24

22/02/2023 — sentencing — 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 — Bhatia v R [2023] NSWCCA 12

21/02/2023 — sentencing — 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 — Decision Restricted [2023] NSWCCA 10

16/02/2023 — sentencing — 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 — DH v R [2022] NSWCCA 200

22/12/2022 — Evidence — 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 — Cook (a pseudonym) v R [2022] NSWCCA 282

22/12/2022 — evidence — Criminal Procedure Act 1986, s 293 (now s 294CB) — prohibition on admitting evidence of prior sexual activity/experience — Crimes Act 1900, s 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 — Elsworth v R [2022] NSWCCA 276

19/12/2022 — 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 — RC v R [2022] NSWCCA 281

09/12/2022 — sentencing — 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 — R v Taylor [2022] NSWCCA 256

25/10/2022 — evidence — Jury Act 1977, ss 68A, 68B, 73A — jury deliberations — sheriff’s investigations — historical child sex offences — sheriff’s report under s 73A regarding alleged bias and consideration of irrelevant material inadmissible due to “exclusionary rule” in Smith v Western Australia (2014) 250 CLR 473 — no evidence to support grounds of appeal — Vella v R [2022] NSWCCA 204

11/10/2022 — sentencing — Crimes (Sentencing Procedure) Act 1999, s 25AA — sentencing for child sex offences under current practices — standard non-parole period (SNPP) at time of offence applies (s 25AA(2)) — SNPP for s 61M(2) (rep) Crimes Act 1900 (aggravated indecent assault) increased after offence committed and had retrospective operation — judge erred by applying higher SNPP — more appropriate to apply clear words of s 25AA than transitional provisions — GL v R [2022] NSWCCA 202

06/10/2022 — Conviction appeal — Crimes Act 1900, s 61I — sexual assault — unreasonable verdict ground — appeal dismissed — intermediate appellate courts must avoid rigid stereotypical expectations in sexual assault matters as to how complainants should behave — court not assisted by reliance upon such arguments when contending unreasonable conviction ground — verdicts not unreasonable or unsupported by evidence — Harper v R [2022] NSWCCA 211

20/09/2022 — sentencing — aggravating factors — “threat” — sexual assault — applicant and complainant strangers — applicant told complainant not to inform anyone of assaults — judge did not err in finding statement to be a threat and therefore an aggravating factor — not necessary for precise consequences to be spelled out — statement carried implication of adverse consequences due to criminal nature of conduct — Baker v R [2022] NSWCCA 195

13/09/2022 — sentencing — Crimes Act 1900, s 80AF — historic child sex offences — uncertainty about offence date — majority of NSW Court of Criminal Appeal erred by finding s 80AF was “procedural” only and operated retrospectively — s 80AF changed the law concerning elements of offence itself — provision can only be invoked at commencement of trial — no application to trials already commenced — acquittal on relevant counts — Stephens v The Queen [2022] HCA 31

12/09/2022 — sentencing — Crimes Act 1900, ss 78, 78T (both rep), Sch 11, cl 82 — sexual offences — repeal of historic sexual offence limitation periods — s 66C(1) prosecutions not statute-barred under s 78 because words of Sch 11, cl 82 make clear s 78 repealed retrospectively — however s 78K (rep) prosecutions statute-barred under s 78T — miscarriage of justice occasioned by incompetence of trial counsel — verdict for some offences unreasonable and not supported by evidence — Madden v R [2022] NSWCCA 196

29/08/2022 — sentencing — Crown appeal — child sexual offences — sentence manifestly inadequate — observations providing guidance for sentencing judges — summary of facts must be accurate and include material facts bearing upon objective seriousness — where Form 1, sentence should be longer than for primary offence alone if appropriate — special circumstances must be sufficiently “special” to justify variation of statutory ratio — R v Lau [2022] NSWCCA 131

19/08/2022 — sentencing — child sexual offences — applicant had deprived background but no evidence of causal link to offending — judge did not err by not reducing applicant’s moral culpability — full weight otherwise given to deprived upbringing in instinctive synthesis, notwithstanding no causal link to offending — Bugmy v The Queen (2013) 249 CLR 571 and Dungay v R [2020] NSWCCA 209 applied — DR v R [2022] NSWCCA 151

16/08/2022 — Crimes Act 1900, s 66DC(a) — sexual act “with or towards” a child — Crown appeal — stay of proceedings — phrase “with or towards” in s 66DC(a) creates two separate offences — “towards” requires intention to engage with another — no error in judge’s finding mere presence of complainant insufficient — DPP (NSW) v Presnell [2022] NSWCCA 146

03/08/2022 — sentencing — Crimes Act 1900, s 61J — aggravated sexual assault — multiple counts — no error in finding objective seriousness of each sexual assault affected by proximate commission of other sexual assaults — course of conduct relevant to applicant’s state of mind and victim’s vulnerability — Ragg v R [2022] NSWCCA 150

07/07/2022 — sentencing — 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 RB [2022] NSWCCA 142

01/07/2022 — 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 — AJ v R [2022] NSWCCA 136

27/06/2022 — sentencing — 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 — R v Delzotto [2022] NSWCCA 117

24/06/2022 — sentencing — 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 — Young (a pseudonym) v R [2022] NSWCCA 111

16/06/2022 — sentencing — 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 — PC v R [2022] NSWCCA 107

14/06/2022 — sentencing — 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 — R v Obbens [2022] NSWCCA 109

5/06/2022 — sentencing — 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 — Bisiker v R [2022] NSWCCA 110

25/05/2022 — procedure — 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 — R v DB [2022] NSWCCA 87

20/05/2022 — 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 — Sita v R [2022] NSWCCA 90

09/05/2022 — procedure — 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 s 61M(2) or s 66DB pursuant to s 80AF where same maximum penalty applies — alternative interpretation results in inability to prosecute and frustrates object of s 80AF — Smith v R [2022] NSWCCA 88

07/05/2022 — procedure — 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 — Hodgson v R [2022] NSWCCA 72

28/04/2022 — procedure — 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) — Higgins v R (No 2) [2022] NSWCCA 82

25/04/2022 — 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 — Aziz (a pseudonym) v R [2020] NSWCCA 76

23/04/2022 — procedure — 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 — WS v R [2022] NSWCCA 77

19/04/2022 — procedure — 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 BK [2022] NSWCCA 51

12/04/2022 — sentencing — 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 — R v PC [2022] NSWCCA 59

11/04/2023 — Directions — sexual offences — accused gave evidence — judge erred in giving incomplete Liberato v The Queen (1985) 159 CLR 507 direction — Criminal Procedure Act 1986, s 294(2)(c) — judge erred in directing jury that delay in complaint not relevant to credibility — insufficient evidence to justify direction — omission of some alternative counts from indictment liable to confuse — retrial ordered — Park v R [2023] NSWCCA 71

24/03/2022 — sentencing — 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 — Darke v R [2022] NSWCCA 52

18/03/2022 — sentencing — 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 — Fenner v R [2022] NSWCCA 48

14/03/2022 — sentencing — 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 — R v Harrison; ex parte DPP (Cth) [2021] QCA 279

14/03/2022 — 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 — Arvinthan v R [2022] NSWCCA 44

18/02/2022 — offences — 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 — Allison (a pseudonym) v The Queen [2021] VSCA 308

16/02/2022 — procedure — Crimes Act 1900, 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 — Z (a pseudonym) v R [2022] NSWCCA 8

14/02/2022 — 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 — JH v R [2021] NSWCCA 324

07/02/2022 — 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 AB [2022] NSWCCA 3

07/02/2022 — 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 — R v JH [2021] NSWCCA 299

04/02/2022 — 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 — Al Bayati v R [2022] NSWCCA 2

17/01/2022 — 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 (2021) 274 CLR 351 distinguished — Orreal v The Queen (2021) 274 CLR 630

14/01/2022 — sentencing — 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 — BB v R [2021] NSWCCA 283

14/01/2022 — procedure — 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 — McIver v R [2020] NSWCCA 343

21/12/2021 — sentencing — 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 — R v Ibrahim [2021] NSWCCA 296

30/11/2021 — appeals — Criminal Appeal Act 1912, s 6(1) — sexual offences — prejudicial cross-examination of appellant by Crown Prosecutor on credit matters caused a miscarriage of justice — Court of Criminal appeal correct to dismiss conviction appeal — no substantial miscarriage of justice — appellate court to consider impact of error on particular proceedings when determining whether to apply proviso — Hofer v The Queen (2021) 274 CLR 351

24/11/2021 — sentencing — Crimes Act 1900, s 66EA(1) — maintain unlawful sexual relationship with child — unlawful sexual acts committed before repeal of predecessor offence — replaced s 66EA created new offence — clear legislative intent that new offence operate retrospectively — new s 66EA not subject to s 19 Crimes (Sentencing Procedure) Act 1999 — judge correct to sentence on basis maximum penalty was life imprisonment — Xerri v R [2021] NSWCCA 268

16/11/2021 — Evidence Act 1995, s 97 — tendency evidence — historical sexual offences against multiple child complainants — judge did not err by permitting evidence of offences in two institutions as cross-admissible as sexual tendency evidence — no requirement for judge to direct jury on standard of proof necessary for uncharged acts used as tendency evidence — principle in The Queen v Bauer (2018) 266 CLR 56 at [86] applies where multiple complainants — Greenaway v R [2021] NSWCCA 253

12/11/2021 — Directions — anti-tendency warnings — appellant convicted of sexual offences against his three children — counts tried together — appellant asserted concoction between complainants and mother — CCA correct to conclude no miscarriage — judge did not err by not giving anti-tendency direction where not sought at trial — risk of engaging in tendency reasoning remote and credibility overwhelmingly likely to be decisive of guilt — Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531

15/10/2021 — Directions — sexual intercourse without consent — jury note during deliberations appeared to reverse onus of proof for consent — judge should have given specific redirection on consent even though summing up unimpeachable — re-trial ordered — Gage v R [2021] NSWCCA 222

03/10/2021 — sentencing — Crimes Act 1900, ss 61I, 66J(1), 86(2)(b) — detention involving repeated physical and sexual violence against domestic partner — judge did not err in application of totality principle — sufficient to reference need for overall sentence to reflect totality of criminality — no particular formula of words required — Hall v R [2021] NSWCCA 220

15/09/2021 — appeals — Criminal Appeal Act 1912, s 6(3) — re-sentencing — on finding error appellate court re-exercises sentencing discretion afresh — in doing so court may adopt but is not bound by sentencing judge’s findings — Kentwell v The Queen (2014) 252 CLR 601 applied — Young (a pseudonym) v R [2021] NSWCCA 163

09/09/2021 — offences — Crimes Act 1900, s 61KC — sexual touching without consent — magistrate did not properly consider requirements of s 61HE concerning consent — error to conclude victim required to communicate lack of consent to defendant — reasons inadequate — did not indicate consideration of reasonable steps taken by defendant to ascertain whether complainant consented — DPP (NSW) v Wright and the Local Court of NSW [2021] NSWSC 1086

1/09/2021 — Directions — Criminal Procedure Act 1986, ss 306X, 306ZI — warnings not to give greater or lesser weight to complainant evidence given by AVL — judge did not err by failing to give warning when complainant’s evidence given — warning’s timing a discretionary decision to be made in context of particular trial issues — Long (a pseudonym) v R [2021] NSWCCA 212

31/08/2021 — sentencing — Crimes Act 1900, s 66EA — maintain unlawful sexual relationship with child — judge erred by finding objective seriousness of offence aggravated by repeated incidents of ejaculation — principles in Burr v R [2020] NSWCCA 282 for old s 66EA offence apply to current version of offence — GP (a pseudonym) v R [2021] NSWCCA 180

30/08/2021 — sentencing — judge misinformed by Crown that child sex offences aggravated by breach of conditional liberty — applicant conceded breach in conflicting submissions — judge led into error as a result — Crown advised court it could not prove breach after sentence passed — fundamental obligation of parties to assist Court not met — McGovern aka Lanesbury v R [2021] NSWCCA 176

27/08/2021 — Directions — historical child sexual assault — Crown impermissibly addressed on basis appellant’s answers in recorded conversation were admissions — no defence objection at trial — judge erred by failing to direct jury as to how answers could be used — notwithstanding lack of objection judge had overriding obligation to ensure appellant’s trial was fair — Decision Restricted [2021] NSWCCA 124

17/08/2021 — sentencing — Crimes Act 1900, s 61I — sexual intercourse without consent — judge did not err in assessment of objective seriousness — prior or existing relationship does not lessen offence seriousness — circumstances of relationship require consideration — sexual assault involves degradation of victim regardless of who commits offence — Bussey v R [2020] NSWCCA 280 applied — Kiss v R [2021] NSWCCA 158

06/08/2021 — Directions — Criminal Law Consolidation Act 1935 (SA), s 50 (similar to Crimes Act 1900, s 66EA) — maintain unlawful sexual relationship with child — judge erred by not directing jury as to elements of underlying sexual offences — proof of “unlawful sexual relationship” requires proof of at least two unlawful sexual acts — not sufficient to generally establish relevant acts of sexual or indecent nature — JJP v The Queen [2021] SASCA 53

05/08/2021 — procedure — historical child sexual assaults — defence led evidence accused never angry or violent — Crown permitted to lead rebuttal evidence in response — judge did not err by permitting rebuttal evidence — evidence not admissible in Crown case and issue of accused never being angry or violent not foreseeable — The Queen v Chin (1985) 157 CLR 671 applied — Croft v R [2021] NSWCCA 146

22/07/2021 — procedure — historic child sex offences — Crimes Act 1900, ss 78K, 78T, 81 (each rep), 80AF — uncertainty about offence date — indictment amended after arraignment and after s 80AF had commenced — judge did not err by applying s 80AF — s 80AF retrospective and applies to pending proceedings — procedural only — does not make past acts criminal, create offence or alter pre-existing offence — s 78K offence statute-barred — Stephens v R [2021] NSWCCA 152

21/06/2021 — Evidence Act 1995, s 106 — credibility rule exception — no miscarriage of justice by not admitting witness’s convictions — s 106 directed at denial of convictions, not offending conduct — jury aware witness convicted of like offences involving 27 victims — convictions for two further victims would not significantly impact witness’ credibility or verdict — O’Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103

04/06/2021 — Evidence Act 1995, ss 76, 79 — opinion evidence — specialised knowledge exception — Crimes Act 1900, 61N(1) (rep) — act of indecency — GP’s evidence concluding abnormality on applicant’s penis inadmissible — GP did not have relevant specialised knowledge — conviction quashed — Denton v R [2020] NSWCCA 341

04/06/2021 — Evidence Act 1995, ss 66(2)–(2A), 137 — judge did not err by refusing to exclude complainant’s evidence under s 137 on basis she had EMDR therapy — EMDR not used to revive memory — no error to admit complaint evidence under exception to hearsay rule in s 66(2) — events traumatic and complaints made repeatedly in similar terms — delayed complaints may be “fresh in the memory” — Kassab (a pseudonym) v R [2021] NSWCCA 46

05/05/2021 — sentencing — Crimes (Sentencing Procedure) Act 1999, s 21A(2)(g) — historical child sexual offences against three nieces — victim impact statements (VIS) — judge did not err in finding harm disclosed in VIS greater than ordinarily attaches to child sexual offences — finding of substantial harm as an aggravating factor was open — Culbert v R [2021] NSWCCA 38

30/04/2021 — Directions — Crimes Act 1900, ss 61HA (rep), 61HE, 61I — consent — sexual intercourse without consent knowing complainant not consenting — judge incorrectly applied current consent provision (s 61HE) when predecessor provision (s 61HA) applied — judge misdirected jury in respect of substantial intoxication and complainant’s capacity to consent — comparison of consent provisions in ss 61HE and 61HA — Beattie v R [2020] NSWCCA 334

26/04/2021 — sentencing — Crimes Act 1900, s 66EA (since amended) — persistent sexual abuse of child — ingredient offences occurred in NZ and NSW — no error in judge’s approach to s 66EA — gravamen of offence reflected in 25 year maximum penalty which provides sentencing yardstick — maximum penalties for ingredient offences in NSW assist only as a guide to objective seriousness — Hillman v R [2021] NSWCCA 43

25/04/2021 — procedure — Criminal Procedure Act 1986, s 293 — evidence of complainant’s prior sexual activity or experience — sexual intercourse without consent — judge erred by excluding, under s 293(3), part of appellant’s ERISP concerning complainant’s sexual experience — exception in s 293(4) applied — probative value of evidence outweighed complainant’s distress, humiliation or embarrassment if admitted — Decision Restricted [2021] NSWCCA 51

25/04/2021 — evidence — Criminal Procedure Act 1986, s 293 — evidence of complainant’s prior sexual activity or experience — sexual intercourse without consent — judge erred by excluding, under s 293(3), part of appellant’s ERISP concerning complainant’s sexual experience — exception in s 293(4) applied — probative value of evidence outweighed complainant’s distress, humiliation or embarrassment if admitted — Decision Restricted [2021] NSWCCA 51

19/04/2021 — sentencing — Crimes (Sentencing Procedure) Act 1999, s 53A — aggravated sexual intercourse with cognitively impaired victim — judge did not err in approach to totality — aggregate sentence determined by assessing totality of criminality in all offending — principles concerning accumulation and concurrency do not apply to aggregate sentences — Aryal v R [2021] NSWCCA 2

08/03/2021 — sentencing — Crimes Act 1900, s 73(2) — sexual intercourse with person under special care aged 17 — judge did not err in assessing objective seriousness of offences as being in mid-range — position of victim within age range of very little significance — foundation for contact based on teacher-student relationship — offences constituted egregious breach of trust — Gale v R [2021] NSWCCA 16

24/02/2021 — Directions — lies — applicant’s statements in ERISP inconsistent with his evidence at trial — defence counsel did not seek direction on lies — miscarriage of justice occasioned by judge failing to direct jury on lies — Crown’s closing address on lies risked impermissible consciousness of guilt reasoning — despite defence counsel’s forensic decision, judge had overriding obligation to ensure fair trial — DC v R [2019] NSWCCA 234

12/02/2021 — Directions — Evidence Act 1995, s 165B — forensic disadvantage — child sexual assault — 3-year-delay in complaint — no error in judge declining to give forensic disadvantage direction — not unexpected for delay in complaint when offences involve family members and threats made — applicant’s misconduct (threats) relevant to whether direction should be given — Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354

02/02/2021 — Crown appeals — sexual assaults committed by teacher-mentor on student — judge erred in assessing objective seriousness of offences as bottom of range — role of intermediate appellate court — cannot increase sentence unless manifest inadequacy established even where patent error found — discussion of DPP (NSW) v Burton [2020] NSWCCA 54 — sentence manifestly inadequate — Manojlovic v R [2020] NSWCCA 315

28/01/2021 — sentencing — Crimes Act 1900, s 67 (rep) — carnal knowledge of girl under 10 — juvenile offender — 16/17 years old — sentence manifestly excessive — applicant need not demonstrate a clear sentencing range by reference to statistics or comparable cases to establish manifest excess — RA v R [2020] NSWCCA 356

24/12/2020 — procedure — witness intermediaries — Criminal Procedure Act 1986, Sch 2, Pt 29, Div 3, cl 89(5) — judge erred by declining to revoke intermediary’s appointment — intermediary assisted witness in professional capacity before appointment — cl 89(5)(b) does not require subjective inquiry into intermediary’s impartiality and not limited to direct therapeutic assistance — court retains discretion to revoke appointment — SC v R [2020] NSWCCA 314

01/12/2020 — sentencing — Crimes Act 1900, ss 63, 71, 78A (all rep) — rape, carnal knowledge of girl aged 10-16, incest — representative counts — predatory sexual offending against sibling over many years in the 1960s/70s — judge did not err by finding offence committed when victim 16 towards top of range for rape — substantial sentence not manifestly excessive — Franklin v R [2019] NSWCCA 325

27/11/2020 — sentencing — Crimes Act 1900, s 61J(1) — aggravated sexual intercourse without consent — prior intimate relationship between victim and offender cannot mitigate objective seriousness of offence — no error in judge’s approach to sentencing — Bussey v R [2020] NSWCCA 280

26/11/2020 — Directions — historic sexual assaults — multiple complainants — lies — judge erred by directing certain lies could be considered as consciousness of guilt — those lies not relied on by Crown in that way — good character — judge erred by refusing to admit evidence applicant had no prior convictions — concern for what might occur at a subsequent trial irrelevant — Pethybridge v R [2020] NSWCCA 247

24/11/2020 — sentencing — child sex offences — judge erred by failing to give weight to applicant’s prior good character — necessary to first determine if offender is of good character then consider weight to be given to that factor — Ryan v The Queen (2000) 206 CLR 267 applied — BG v R [2020] NSWCCA 295

12/11/2020 — Evidence Act 1995, s 110 — character evidence — appellant convicted of assault and indecent assault of his children — good character raised in defence case and Crown relied on rebuttal evidence — judge correctly directed rebuttal evidence could be used to determine appellant’s character — no requirement to also warn jury not to use character in determining guilt as would have undermined defence case — FB v R [2020] NSWCCA 137

06/11/2020 — Directions — sexual assault — Crown case at trial wholly dependent on accepting complainant’s evidence — appellant did not give evidence — Qld Court of Appeal erred by finding judge’s directions regarding appellant’s silence did not cause miscarriage of justice — Azzopardi v The Queen (2001) 205 CLR 50 direction required in almost all cases — GBF v The Queen (2020) 271 CLR 537

29/10/2020 — Evidence Act 1995, ss 12, 13 — witness competence — 5-year-old child complainant diagnosed with autism spectrum disorder and hearing impairment — judge did not err by finding complainant competent to give unsworn evidence — Witness Intermediary Assessment Report indicated complainant able to give evidence if appropriately questioned — question of reliability separate to competence — Gray v R [2020] NSWCCA 240

29/10/2020 — sentencing — sexual assault — observations concerning inappropriateness of exchange between sentencing judge and counsel about appropriate sentence — judge’s role to determine sentence — JIRS statistics not a starting point for calculating sentence — Barbaro v The Queen discussed — Tatur v R [2020] NSWCCA 255

23/10/2020 — sentencing — Criminal Code (Cth), ss 474.19(1)(a)(iv), 474.27(1) — cybersex offences — 14-year-old victim — judge failed to give discount for utilitarian value of guilty pleas for Cth offences — judge correctly assessed objective gravity of offences — primacy of general deterrence and denunciation for offences involving procuring children for child abuse material offences using internet — Small v R [2020] NSWCCA 216

13/10/2020 — sentencing — Crimes Act 1900, ss 61HA (now ss 61HE), 61J — aggravated sexual intercourse without consent — judge did not err by finding beyond reasonable doubt applicant reckless as to consent — not inconsistent to also find reasonably possible applicant believed victim consenting — no requirement to sentence according to state of mind proffered by Crown but according to what evidence proves — Saffin v R [2020] NSWCCA 246

25/09/2020 — Evidence Act 1995, s 87 — admissions in furtherance of common purpose — judge erred in approach to s 87 and by admitting representations of third party as admissions — satisfaction of s 87(1)(c) criteria does not render representation admissible at trial without further evidentiary decision — common purpose must be that alleged in those proceedings — Higgins v R [2020] NSWCCA 149

21/09/2020 — Criminal Appeal Act 1912, s 5F(3) — Crimes Act 1900, ss 61J, 61H(1) (see now s 61HA) — digital penetration during medical examination — “proper medical purposes” exception — judge erred by finding that to exclude exception Crown must prove sexual gratification was sole purpose of penetration — Decision Restricted [2020] NSWCCA 138

31/08/2020 — offences — Child Protection (Offenders Prohibition Orders) Act 2004, s 13(1) — Child Protection (Offenders Registration) Act 2000, ss 3A, 17(1) — contravening child protection prohibition orders — orders invalid as applicant not a “registrable person” within s 3A — appropriate to remit matter to District Court for sentence — Watson v R [2020] NSWCCA 215

24/08/2020 — Directions — child sexual assault — judge’s summing up unfair and unbalanced — summing-up of defence case cursory — caused miscarriage of justice — Evidence Act 1995, ss 60, 66 — complaint evidence — judge erroneously directed jury complaint evidence was independent of other evidence given by complainant — SB v R [2020] NSWCCA 207

24/08/2020 — procedure — Criminal Procedure Act 1986, s 133(2), (3) — trial by judge alone — child sexual assault — sufficiency of reasons — judge erred by failing to address a critical part of defence case — reasons did not explain why evidence of Crown experts preferred over defence experts — re-trial ordered — Toohey v R [2020] NSWCCA 166

04/08/2020 — Directions — Evidence Act 1995, ss 97, 101 — tendency evidence — context evidence — charged counts on indictment used as tendency evidence — judge did not err by omitting aspects of suggested tendency direction in Criminal Trial Courts Bench Book — suggested Bench Book directions advisory and must be adapted to circumstances of individual case — BRC v R [2020] NSWCCA 176

15/07/2020 — Criminal Procedure Act 1986, s 293 — prohibition on cross-examination concerning prior sexual experience or activity — judge erred by refusing a voir dire to determine whether exclusions in s 293(3) or exceptions in s 293(4) applied — admissibility of evidence to be determined by ordinary evidentiary principles — Uddin v R [2020] NSWCCA 115

31/07/2020 — procedure — Criminal Procedure Act 1986, s 293 — prohibition on questioning complainant about prior sexual activity or experience — judge correct to refuse stay application — judge also correct to conclude s 293 extends to evidence of false complaint — M v R (1993) 67 A Crim R 549 correctly decided — Jackmain (a pseudonym) v R [2020] NSWCCA 150

30/07/2020 — offences — Criminal Law Consolidation Act 1935 (SA), s 50 (similar to s 66EA Crimes Act 1900 (NSW)) — maintain unlawful sexual relationship with child — stated case — elements of offence — meaning of “relationship” — duration, nature and continuity of interactions to be considered — relationship elements must comprise more than alleged unlawful sexual acts alone — R v Mann [2020] SASCFC 69

30/07/2020 — offences — Criminal Law Consolidation Act 1935 (SA), s 50 — maintain unlawful sexual relationship with child (similar to previous and current Crimes Act 1900, s 66EA) — elements — relationship a separate element of offence — actus reus of offence is maintenance of relationship during which adult engages in two or more unlawful sexual acts with child — relationship in this case familial — R v M, DV [2019] SASCFC 59

29/07/2020 — sentencing — Crown appeal — Crimes Act 1900, s 91H(2) — produce child abuse material — online chats between offenders describing sexual acts involving their children — judge erred by assessing offences as just below mid-range — R v Hutchinson [2018] NSWCCA 152 factors relevant considerations — relationship of children to offenders and circumstances in which material produced also relevant — R v LS [2020] NSWCCA 148

23/07/2020 — procedure — Criminal Procedure Act 1986, ss 299, 299C, 299D — sexual assault communications privilege — judge erred by granting leave to issue subpoena without considering legislative requirements — R v Bonanno; ex parte Protected Confider [2020] NSWCCA 156

16/07/2020 — Evidence Act 1995, ss 97, 101 — tendency evidence — judge did not err by admitting evidence that applicant had a tendency to have a sexual interest in young girls and to act on that interest — tendency evidence should not be considered in isolation — unusual case of tendency but offence charged and tendency evidence shared sufficiently common features — Vagg v R [2020] NSWCCA 134

16/07/2020 — sentencing — Criminal Code (Cth), ss 474.27, 474.19(1) — cybersex offences against young girls — 18 year old offender — presumption children suffer harm because of prohibited sexual activities applies to cybersex offences — Adamson v R (2015) 47 VR 268 applied — sentence failed to reflect judge’s finding that less weight given to specific and general deterrence because of applicant’s immaturity and mental condition — judge erred by relying on dissimilar decisions to identify sentencing range — Kannis v R [2020] NSWCCA 79

18/06/2020 — sentencing — Crimes (Sentencing Procedure) Act 1999, ss 31, 32, 33(2) — judge erred by taking Form 1 offences into account across multiple offences — offences on a Form 1 can only be taken into account on one principal offence — parties must ensure principal offence and offences to be taken into account are clearly identified — LS v R [2020] NSWCCA 27

03/06/2020 — sentencing — Crimes (Sentencing Procedure) Act 1999, s 22 — guilty plea discounts — Criminal Procedure Act 1986, s 166 — procedures for back-up charges —approach to determining sentence where indictable offence dealt with summarily — judge did not err by indicating sentence higher than jurisdictional limit for related offence before applying discount for plea —jurisdictional limit does not equate to maximum penalty — R v Doan (2000) 50 NSWLR 115 applied — Park v R [2020] NSWCCA 90

01/06/2020 — procedure — Crimes (High Risk Offenders) Act 2006, s 13(1) — revocation of extended supervision order (ESO) — no serious offences committed in 19 years since ESO imposed — no high risk of sexual offending — impact of ESO and incarceration for relatively minor breaches adversely affecting prospects of rehabilitation — State of NSW v Carr [2020] NSWSC 643

29/05/2020 — sentencing — historical child sexual offences — sentence not manifestly excessive notwithstanding strong subjective case — evidence relating to COVID-19 pandemic not fresh evidence and not admissible to support manifest excess ground — risks of COVID-19 in prison system moderated by controls introduced by Corrective Services — Cabezuela v R [2020] NSWCCA 107

20/05/2020 — sentencing — practice of referring to sentence reasons as “remarks on sentence” — phrase is not outdated and has contemporary legislative status — observations to opposite effect in You v R [2020] NSWCCA 71 questioned — Maxwell v R [2020] NSWCCA 94

20/05/2020 — Conviction appeal — Evidence Act, s 97(1) — tendency evidence — judge’s directions pre-Bauer — judge did not err by directing jury that criminal standard of proof required for tendency evidence — evidence not elevated to essential intermediate fact — no real risk jury improperly used tendency evidence — Jackson v R [2020] NSWCCA 5

15/05/2020 — sentencing — appeals — re-sentencing — child sexual assault — 72-year-old applicant with pre-existing medical conditions — sentence manifestly excessive given exceptional nature of case — potential impact of COVID-19 pandemic considered on re-sentence — Scott v R [2020] NSWCCA 81

15/05/2020 — offences — Crimes Act 1900, ss 61L (rep) and 61I — sexual assault — verdicts not unreasonable — observations concerning cross-examination of witnesses, including complainant, about behaviour during and after assaults — futile to assess complainants’ behaviour by reference to stereotypical expectations — Maughan v R [2020] NSWCCA 51

13/05/2020 — procedure — prosecution duty of disclosure — duty satisfied by entirety of electronic material seized from applicant’s phone being made available to defence — prosecution not required to draw potentially unfavourable or exculpatory documents from the electronic material to the defence’s attention — no miscarriage of justice established — Edwards v R [2020] NSWCCA 57

08/05/2020 — sentencing — Crown appeal — Crimes Act 1900, s 66A(1) — child sexual assault — Crimes (Sentencing Procedure) Act 1999, ss 17B, 17C, 17D, 89 — judge erred by imposing CCO without first obtaining a sentence assessment report — proposed work condition not available — sentence manifestly inadequate — residual discretion exercised — offender aged 76 vulnerable to COVID-19 due to existing health issues — RC v R [2020] NSWCCA 76

05/05/2020 — sentencing — historical child sexual assault — Crimes (Sentencing Procedure) Act 1999, s 25AA — provision abolishes requirement to sentence in accordance with sentencing principles at time of offence — observations concerning whether s 25AA applies following successful sentence appeal if did not apply to original proceedings — no error in judge’s approach to determining appropriate non-parole period — no requirement that non-parole period be fixed at 50% of head sentence — Corliss v R [2020] NSWCCA 65

01/05/2020 — sentencing — Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(k), (l), 22 — aggravating factors — multiple child sexual assaults — no error in judge finding offences aggravated because victims vulnerable and under applicant’s authority — judge did not breach principle in The Queen v De Simoni or double-count — uniform guilty plea discount appropriate given limited plea negotiation information — Davies v R [2019] NSWCCA 45

30/04/2020 — procedure — Law Enforcement (Powers and Responsibilities) Act 2002, ss 48, 65 — search warrants — issuing officer’s obligations to record basis for granting warrant — warrant invalid — efficiency considerations do not justify police practice of presenting applications which presuppose outcome — Doyle v Commissioner of Police [2020] NSWCA 11

30/04/2020 — Crown appeal — sexual assault — community correction order imposed — Crimes (Sentencing Procedure) Act 1999, ss 21A(5AA), (2)(k) — judge erred by taking into account self-induced intoxication as mitigating fac tor (s 21A(5AA)) — judge did not err by not taking into account abuse of trust (s 21A(2)(k)) — residual discretion exercised — appeal dismissed — DPP (NSW) v Burton [2020] NSWCCA 54

17/04/2020 — appeal — historical child sexual assault — Victorian Court of Appeal majority failed to properly consider whole of evidence when determining conviction appeal — evidence as a whole not capable of excluding a reasonable doubt as to applicant’s guilt — SKA v The Queen (2011) 243 CLR 400 considered — appellate court should only view recordings of evidence in exceptional cases — verdicts unreasonable — acquittals entered — Pell v The Queen (2020) 268 CLR 123

31/03/2020 — sentencing — Criminal Code (Cth), ss 272.9(1), 272.11(1), 272.14(1) — child sex offences outside Australia — judge did not err in assessment of objective seriousness — factors identified in DPP (Cth) v Beattie [2017] NSWCCA 301 relevant to assessing objective seriousness of offences against ss 272.11 and 272.14 — Baden v R [2020] NSWCCA 23

25/03/2020 — sentencing — Criminal Law Consolidation Act 1935 (SA), s 50 — persistent sexual exploitation of a child — sentencing judge erred by not sentencing applicant on facts most favourable to him as required by Chiro v The Queen (2017) 260 CLR 425 — Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA), s 9(1) not engaged — judge did not make findings about acts of sexual exploitation he found proved — facts on sentence adverse to offender must be proved beyond reasonable doubt — sentence remarks should make findings clear — KMC v DPP (SA) (2020) 267 CLR 480

13/03/2020 — Evidence Act 1995, ss 102–104, 110, 112, 192 — irrelevant evidence led during Crown’s cross-examination of appellant concerning his credit and good character — trial miscarried because cross-examination impermissible and prejudicial — further miscarriages of justice resulting from character directions and replaying complainant’s evidence without warnings — IW v R [2019] NSWCCA 311

13/03/2020 — Conviction appeal — sexual assault/act of indecency offences against child — applicant convicted of four counts and acquitted of another four counts — verdicts unreasonable as complainant’s lack of credibility affected all counts — jury verdict neither logical nor reasonable — Wheeler v R [2019] NSWCCA 255

10/03/2020 — sentencing — sexual assault offences — sentencing judge did not err by explaining cunnilingus was sexual assault to non-Australian offender — judge merely discharging duty to provide reasons and explaining scope of definition of sexual intercourse — observations concerning differing manners of giving reasons — Rahman v R [2020] NSWCCA 13

03/03/2020 — Evidence Act 1995, s 89A — special caution — right to silence exercised by appellant on legal advice — miscarriage of justice because not open to jury to draw adverse inference from exercise of right — onus on Crown to establish appellant’s silence was because he had no innocent explanation — s 89A abrogates common law right to silence — miscarriage caused by Crown undermining good character evidence led at trial — prejudicial to suggest appellant’s work with vulnerable children suspicious — verdict of acquittal ordered — Hogg v R [2019] NSWCCA 323

19/02/2020 — procedure — joint trials — child sexual assault offences — no real injustice caused by appellant being jointly tried with co-accused — no unacceptable risk of unfair prejudice to appellant arising from tendency evidence admissible only against co-accused — Crown case against appellant not significantly weaker than that against co-accused — risk of prejudice mitigated by judge’s directions — DR v R [2019] NSWCCA 320

31/01/2020 — procedure — sexual assault of child under 10 — Criminal Procedure Act 1986, s 133 — warnings a judge should consider in judge alone trials — Evidence Act 1995, ss 165, 165A — warnings concerning unreliable evidence and children’s evidence — judge did not err by taking warning ordinarily given to jury about reliability of complainant’s evidence into account — no miscarriage of justice — GBB v R [2019] NSWCCA 296

28/01/2020 — sentencing —Crimes Act 1900, ss 66A, 66B, 66C — child sexual assault — sentence imposed was manifestly excessive — approach to comparable cases — need to consider particular facts in cases underlying statistics — analysis of cases relied on during appeal — Facer (a pseudonym) v R [2019] NSWCCA 180

24/01/2020 — sentencing — Crimes Act 1900, s 323(a) — persuade witness to withhold true evidence — applicant acquitted of sexual assault but convicted of persuading complainant not to give true evidence of sexual assault — verdicts not unreasonable or inconsistent — sentencing — judge did not err by failing to take into account absence of threats of violence when assessing objective seriousness — Vasilevski v R [2019] NSWCCA 277

24/01/2020 — Conviction appeal — indecent assault on person under 16 — applicant did not give evidence at trial but his record of interview was admitted into evidence — failure of judge to give an Azzopardi direction did not occasion a miscarriage of justice — rational choice of trial counsel not to seek a direction — JPM v R [2019] NSWCCA 301

17/01/2020 — sentencing — Crimes Act 1900, ss 81, 61E(1A), 61M(1) (all repealed), 66C — historical child sexual offences — Crimes (Sentencing Procedure) Act 1999, s 25AA(1) — considering current sentencing practices and the importance of expressly stating s 25AA(1) has been applied — four prosecutions over 25 years — judge erred by giving delay and rehabilitation a “dominant role” on sentence — totality — sentence failed to reflect seriousness of whole conduct — R v Cattell [2019] NSWCCA 297

17/12/2019 — Directions — onus and standard of proof — sexual offences — appellant did not give evidence at trial but denied offences in police interview — Qld Court of Appeal correct to conclude Liberato direction not required — trial judge’s directions on onus and standard of proof clear and correct — Liberato v The Queen (1985) 159 CLR 507 direction may apply where accused’s version of events not on oath — suggested re-framing of Liberato direction — De Silva v The Queen [2019] HCA 48

20/11/2019 — sentencing — Criminal Code (Cth), ss 474.19(1) (rep), 474.27A(1) — Crimes Act 1900, s 91H(2) — possess/transmit/solicit child pornography/child abuse material and transmit indecent communication to child — general deterrence a primary consideration for offences involving sexual predatory conduct towards children — sentence not manifestly excessive — Martin v R [2019] NSWCCA 197

11/11/2019 — procedure — Crimes Act 1900, s 61I— sexual assault — no miscarriage of justice caused by prosecutor’s cross-examination of accused about evidence not previously put to Crown witnesses — prosecutors should rarely use rule in Browne v Dunn to attack credit of accused — Hofer v R [2019] NSWCCA 244

07/11/2019 — sentencing — Crimes (Sentencing Procedure) Act 1999, s 25AA — historical child sexual offences — Crimes Act 1900, s 81 (rep) — indecent assault on male — s 25AA requires consideration of current sentencing practices — factors such as breadth of offending, maximum penalty and lack of standard non-parole period relevant considerations — O’Sullivan v R [2019] NSWCCA 261

04/11/2019 — Directions — Evidence Act 1995, s 165B — delay in prosecution — historical child sexual assault — judge did not err by failing to consider specific directions concerning delay to be given during trial — directions regarding prejudicial delay must conform with s 165B not principles in Longman v The Queen (1989) 168 CLR 79 — no error to refuse to permanently stay proceedings — McIver v R [2019] NSWCCA 214

08/10/2019 — sentencing — Crimes Act 1900, ss 61HA, 61J(1), 61M(1) (rep) — aggravated sexual intercourse without consent — aggravated indecent assault — victim with serious physical disability — no error in assessment of objective seriousness of offences as “slightly above mid-range” — absence of aggravating factors does not diminish gravity of offences — no hierarchy of sexual offences ranked by type of penetration or sexual connection — Tindall v R [2019] NSWCCA 136

04/10/2019 — sentencing — Crimes Act 1900, ss 61M(2) (rep), 66A — child sexual assault — juvenile offenders — judge erred by failing to take into account applicant’s age and mental condition when determining objective seriousness of offence — both relevant to assessment of objective seriousness when causative of offending — limited sentencing options available following commencement of community-based sentencing options on 24 September 2018 — BM v R [2019] NSWCCA 223

02/10/2019 — Conviction appeal — Crimes Act 1900, Pt 3, Div 10 — sexual offences — counsel’s failure to lead evidence of appellant’s good character caused substantial miscarriage of justice — issue of character notoriously important in serious sexual assault cases involving word on word factual disputes — likely that failure to lead evidence of character affected trial outcome particularly since Crown case not strong — verdict of acquittal entered — Xu v R [2019] NSWCCA 178

20/08/2019 — sentencing — Crimes Act 1900, s 61J — aggravated sexual assault — judge erred by failing to give reasons concerning application of totality principle — sentencing judges required to provide insight into determination in reasons — offenders and community entitled to know how and why a sentence of imprisonment has been assessed — no lesser sentence warranted — Porter v R [2019] NSWCCA 117

19/08/2019 — sentencing — Crown appeal — Crimes Act 1900, s 66A(2) — aggravated sexual intercourse — 11 month old victim — respondent serving sentence for manslaughter of victim at time of s 66A offence — judge misapplied totality principle — inappropriate to characterise criminality of s 66A(2) offence as substantially reflected in manslaughter offence — R v Toohey [2019] NSWCCA 182

06/08/2019 — sentencing — Crimes Act 1900, s 66A(2) — child sexual assault — no error in sentencing judge’s finding that offences “within the worst category” — judge undertaking task of placing offences on scale of objective gravity “near the top of the range” — sentence not manifestly excessive — legislative history of s 66A(2) a relevant consideration — sentences must be commensurate with offending and reflect community revulsion for such offences — Gibbons (a pseudonym) v R [2019] NSWCCA 150

30/07/2019 — Directions — sexual assault — consent — judge erred by directing jury that accused could be convicted if they were satisfied beyond reasonable doubt he did not care whether or not complainant consented — directions reversed onus of proof — suggested jury was to decide between two competing versions not determine lack of consent beyond reasonable doubt — Yu v R [2018] NSWCCA 201

24/07/2019 — sentencing — Crimes Act 1900, s 66EB(2), (2A) — procure child for unlawful sexual activity — travel to meet child under 14 following grooming — judge erred in degree of accumulation allowed between sentences — no error deciding not to impose wholly concurrent sentences but degree of accumulation excessive — no double counting of “grooming” which was an element of s 66EB(2A) offence but not s 66EB(2) offence — Milliner v R [2019] NSWCCA 127

30/06/2019 — Conviction appeal — sexual offences committed by 11- to 13-year-old — evidence in Crown case did not rebut presumption of doli incapax — no evidence of applicant’s maturity or intelligence — circumstances of offending incapable of rebutting presumption — Evidence Act 1995, ss 97, 101 — tendency evidence correctly admitted — common features of each incident sufficiently specific and of significant probative value — directions to jury about use of tendency evidence ameliorated its prejudicial effect — BC v R [2019] NSWCCA 111

26/06/2019 — sentencing — Criminal Code (Cth), ss 272.14, 474.19, 474.26, 474.27A — procure child to engage in sexual activity outside Australia — use carriage service to transmit indecent communication to child/procure child for sexual activity — general deterrence important for such offences — very lengthy term of imprisonment not necessarily appropriate — sentence excessive given applicant not procuring for sexual activity with himself, no masking of identity, and no inducement or arrangements for activity — comparisons with other cases often difficult, if not meaningless, for such offences — McNiece v R [2019] VSCA 78

24/06/2019 — sentencing — Crimes Act 1900, s 61J(1) — aggravated sexual intercourse without consent — judge did not err in approach to assessing objective seriousness of offences — incorrect to characterise Crown written sentence submissions that offences in low-range of objective seriousness as a concession — McClelland v R [2019] NSWCCA 59

03/06/2019 — sentencing — Criminal Code (Cth), s 474.19(1) — animated child pornography in CETS Category 6 — not a “victimless crime” — not substantially different from other categories — material normalises exploitative sexual activity of children — judge did not err by considering applicant’s employment as AFP officer an aggravating factor — R v Edwards [2019] QCA 15

24/05/2019 — Evidence Act 1995, ss 55, 137 — Crimes Act 1900, ss 61M(2) (rep) and 66C(3) — child sex offences — judge correct to conclude photographs of penis not admissible for comparison with complainant’s drawings of same — any probative value of evidence outweighed by unfair prejudice — R v Denton [2019] NSWCCA 81

15/05/2019 — sentencing — Crimes Act 1900, s 61J(1) — aggravated sexual intercourse without consent — no error in description of objective seriousness of offence — determining objective seriousness by reference to a point on a spectrum of culpability not a necessary component of sentencing task — Criminal Appeal Act 1912, s 5D — Crown appeal — sentence manifestly inadequate — appropriate to intervene because sentence did not address sentencing principles, gravity of offending or physical and psychological impact on complainant — R v DP [2019] NSWCCA 55

18/04/2019 — sentencing — Criminal Code (Cth), s 474.26 — use carriage service to procure person under 16 for sexual activity — manifestly excessive sentence failed to reflect applicant’s youth and immaturity which materially contributed to offending — observations concerning Crown’s reliance on comparative cases with significant distinguishing features — Clarke-Jeffries v R [2019] NSWCCA 56

21/03/2019 — appeals — proviso — erroneous jury direction given in relation to complainant’s lies — complainant’s credibility and reliability central issue at trial — appellate court erred in applying proviso — misdirection cannot be assumed to have had no effect upon jury’s verdict —misdirection effectively precluded jury from adopting a reasoning process open and favourable to appellant — OKS v State of Western Australia (2019) 265 CLR 268

23/01/2019 — Criminal Procedure Act 1986, ss 298, 299B, 299D — sexual assault communications privilege — judge not precluded from exercising independent discretion when determining whether to grant access to protected confidence documents where another judge previously granted leave for subpoena to produce — judge required to consider s 299D when determining whether access should be granted — satisfying conditions in s 299B(3) necessary, but not sufficient, requirement for access — PPC v Stylianou [2018] NSWCCA 300

15/01/2019 — Evidence Act 1995, ss 97, 101(2) — tendency evidence — child sexual assault offences — judge erred by relying on dissenting reasons in CCA judgment of McPhillamy v R [2017] NSWCCA 130 when High Court judgment reserved — judge should have applied principles in Hughes v The Queen (2017) 263 CLR 338 and other decided cases — incorrect to conclude probative value of evidence outweighed by prejudicial effect — appropriate directions could address prejudice — DPP (NSW) v RDT [2018] NSWCCA 293

11/01/2019 — sentencing — Crimes Act 1900, s 66C — aggravated sexual intercourse with child between 10 and 14 — under authority — victim 12 years old — applicant 21-year-old babysitter — judge’s findings regarding objective seriousness of offences not reasonably open — aggravating circumstance had to be analysed in context of range of aggravating circumstances prescribed by s 66C(5) — Dawkins v R [2018] NSWCCA 27

14/11/2018 — Evidence Act 1995, s 97(1)(b) — tendency evidence — historical sexual offences — majority of NSW CCA erred by finding evidence of prior sexual offending against different complainants committed a decade earlier admissible as tendency evidence — evidence did not meet threshold requirement of significant probative value in s 97(1)(b) — features of previous conduct and present offending insufficient to link two together — McPhillamy v The Queen [2018] HCA 52

31/10/2018 — Evidence Act 1929 (SA), s 34P(2) — context evidence — historical child sexual assault — SA Court of Appeal correct to conclude evidence of uncharged acts to explain otherwise implausible aspects of complainant’s evidence admissible — probative value of evidence substantially outweighed any prejudicial effect on appellant — directions adequately explained use jury could make of context evidence — no substantial miscarriage of justice — Johnson v The Queen (2018) 266 CLR 106

30/10/2018 — Directions — miscarriage of justice occasioned by judge’s directions responding to jury question about counsel’s questioning of complainant — directions erroneously left jury in a position to assess appellant’s credibility on basis of their determination of a false issue — capacity of jury to fairly and properly assess appellant’s credibility seriously impaired — Llewellyn v R [2011] NSWCCA 66

14/08/2018 — Court Suppression and Non-publication Orders Act 2010, ss 8, 14 — appeal against revocation of interim non-publication order — judge did not err in approach to determining whether order in the public interest — accurate reporting of sexual assault trial shows applicant not criminally involved — no prospect of applicant being humiliated or embarrassed by publication — legislation does not operate to prevent mere discomfit to witness — Qiangdong Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159

18/10/2018 — evidence — Criminal Procedure Act 2009 (Vic), s 381(1) — admissibility of complainant’s recorded evidence from previous trial — Victorian provision broadly similar to s 306I, Criminal Procedure Act 1986 — Victorian Court of Appeal’s approach to determining question of complainant’s willingness to give evidence incorrect — this determination a question of degree to be determined by reference to other factors in s 381(1) — Court erred by concluding evidence of complaint not admissible as a previous representation within Evidence Act 2008 (Vic), s 66 (identical to Evidence Act 1995, s 66) because not fresh in the memory — further error to conclude probative value of evidence of complaint outweighed by danger of unfair prejudice under Evidence Act, s 137 (identical to Evidence Act 1995, s 137) — The Queen v Bauer (a pseudonym) (2018) 266 CLR 56

01/10/2018 — Directions — historical indecent assault — judge erred by addressing matters associated with complainant’s credibility in a way contrary to agreement between parties as to conduct of trial — directions suggested jury need not consider reasonable possibilities put by defence arising from evidence in trial — re-direction did not cure error — SY v R [2018] NSWCCA 6

26/09/2018 — Directions — Evidence Act 2008 (Vic), ss 97, 135, 137 (identical to Evidence Act 1995, ss 97, 135, 137) — tendency evidence — multiple sexual offences committed against single complainant — suggested jury directions in single complainant sexual offence cases where evidence of uncharged acts admitted as tendency evidence — judge should not ordinarily direct jury they may only act on evidence of uncharged acts if satisfied they are proved beyond reasonable doubt — NSW practice of directing in these terms should not continue — The Queen v Bauer (a pseudonym) (2018) 266 CLR 56

20/08/2018 — sentencing — multiple child sex offences — judge indicated same term for numerous offences — no error in assessment of objective seriousness of each offence — judge adopted discriminating rather than “broad-brush” approach — little variation in objective seriousness for many of the offences — no requirement for judge to rank offences according to scale of seriousness — Rampe v R [2018] NSWCCA 163

05/07/2018 — Evidence Act 1995, ss 97, 100(1), 192(2) — tendency evidence — application to dispense with notice requirements — judge erred by treating lack of sufficient explanation for non-compliance as mandatory and determinative of application — additional error to treat perceived need to correct Crown’s systemic non-compliance as relevant to “interests of justice” — failure to refer to matters relevant under s 192(2) — R v AC [2018] NSWCCA 130

03/07/2018 — Crimes Act 1900, ss 66EB, 66C(1) — procure child for unlawful sexual activity — father arranged marriage of 12-year old daughter — judge did not err by finding “procure” in s 66EB(2) means “to cause or bring about” — sentencing — sentence not excessive given very serious nature of offending — fact applicant motivated by religious beliefs rather than sexual gratification did not ameliorate sentence — ZA v R [2018] NSWCCA 116

24/06/2018 — procedure — judge-alone trial — adequacy of reasons — Criminal Law Consolidation Act 1935 (SA), s 50 — persistent sexual exploitation of a child — judge’s reasons sufficiently identified and disclosed basis for concluding two or more acts of sexual exploitation proved — adequacy of reasons depends on issues in particular case — DL v The Queen (2018) 266 CLR 1

20/06/2018 — sentencing — Crimes Act 1900, ss 91G, 91K(3), 91L(3) — voyeurism offences — eight victims aged 12 to 16 years — offences committed over 7-year period — aggregate sentence of 6 years not manifestly excessive — offences involved serious violation of privacy — fact victims unaware of filming, images not published, and no physical contact involved did not reduce seriousness of offences — objective gravity not assessed by absence of features which would elevate offence to different category of seriousness or different type of offence — TM v R [2018] NSWCCA 88

13/06/2018 — sentencing — Crimes Act 1900, s 66A — sexual intercourse with child under 10 — juvenile offender — judge erred by finding Crown‘s concession, that alternative to full-time custody was within range, was “contrary to sentencing principle” — serious sexual offending by young children does not necessarily result in full-time custody — additional error for judge not to consider alternatives to full-time custody — Campbell v R [2018] NSWCCA 87

07/06/2018 — Evidence Act 1995, ss 97, 101 — tendency evidence — judge did not err by ruling tendency evidence admissible and refusing separate trial application — possibility of concoction or contamination relevant in determining whether evidence has significant probative value — observations by Button J in R v GM [2016] NSWCCA 78 that NSWCCA jurisprudence continues to apply approved — test remains whether there are competing inferences that deprive the evidence of significant probative value — BM v R [2017] NSWCCA 253

31/05/2018 — offences — Criminal Code (Cth), ss 473.1, 474.19 — meaning of “child pornography material” — judge correct not to direct jury that verdicts of acquittal should be entered — appellant’s communications drafted in future tense fell within scope of definition in s 473.1 — definition and offence provisions extend to descriptions of past, present and future sexual activity — Innes v R [2018] NSWCCA 90

25/05/2018 — Evidence Act 1995, ss 55, 137 — context evidence — no error in judge’s finding that evidence of one uncharged act was relevant to fact in issue — a single act is capable of, but faces higher hurdle in, meeting test for relevance as context evidence — no error in application of s 137 — evidence was of significant probative value — risk of tendency reasoning was only danger of unfair prejudice and could be addressed by jury directions — CA v R [2017] NSWCCA 324

06/05/2018 — Criminal Procedure Act 1986, ss 298(1), 299B, 299D — sexual assault communications privilege — judge erroneously found power to order production of documents under s 299B irrelevant — finding that documents sought did not have “substantial probative value” nonetheless correct — Rohan v R [2018] NSWCCA 89

29/04/2019 — Sentence appeal — Crimes Act 1900, ss 61J, 66C, 66EB — child sexual assault — procure child for sexual activity — offences committed against applicant’s daughter by partner — no error in assessment of objective criminality of offences — fact offending arose from joint criminal enterprise limited conclusions which could be reached about applicant’s involvement — no error to conclude removing applicant’s children from her care did not amount to extra-curial punishment — mere fact sentence for procuring offence highest imposed cannot establish manifest excess — RH v R [2019] NSWCCA 64

28/03/2018 — Crimes Act 1900, s 91D(1)(b) — participate as client in act of child prostitution — factors relevant to assessment of objective seriousness discussed — judge erred by finding offending below mid “and possibly towards lower end” of range of seriousness — type of sexual service provided relevant to objective seriousness given broad definition under s 91C — aggregate sentence manifestly inadequate — R v Darwich [2018] NSWCCA 46

07/03/2018 — Crimes Act 1900, s 61D (rep) — historical sexual intercourse without consent — Crown case presented on basis appellant reckless as to consent — not unreasonable for jury to conclude Crown had proved appellant was reckless about whether complainant consented — complainant’s age and sexual ignorance relevant to question of consent — judge’s directions correctly identified how consent to be proved — Morgan v R [2017] NSWCCA 269

29/01/2018 — sentencing — Crimes Act 1900, ss 73, 76 (both rep) — historical child sex offences — judge did not allow own memory of historical sentencing patterns and practices to dictate sentences — doubtful whether “judicial memory” should be used to establish historical sentencing patterns — settled propositions about changes in sentencing practices for child sexual assault offences — MC v R [2017] NSWCCA 316

29/01/2018 — sentencing — Criminal Code (Cth), ss 272.8(2), 272.9(2) — sex offences against children outside Australia — relevant sentencing factors and principles — judge erred in approach to totality — overall sentence failed to reflect harm done to each child — when applying totality principle where separate victims involved, temporal proximity of offences not determinative — DPP (Cth) v Beattie [2017] NSWCCA 301

16/01/2018 — Directions — Evidence Act 1995, s 165B — forensic disadvantage resulting from delay in complaint — Crimes Act 1900, s 66A — sexual intercourse with person under 10 — judge did not err by failing to warn jury about consequences of delay — “significant forensic disadvantage” in s 165B requires examination of consequences of delay not its extent — lack of DNA evidence caused by delay not usually evidence within s 165B(2) — Binns v R [2017] NSWCCA 280

11/01/2018 — Crimes Act 1900, ss 91FB, 91G(1), 91H(2) — child pornography offences — “private parts” in s 91FB refers to unclothed genitals and breasts with a visible degree of sexual development — extended definition in s 91I does not apply to s 91FB — judge not required to make express findings as to objective seriousness of each offence — Turner v R [2017] NSWCCA 304

30/09/2015 — Criminal Appeal Act, s 5F(3AA)(c) — Criminal Procedure Act 1986, ss 296 , 299B — sexual assault communications privilege — “counselling communication” in s 296(1) must involve counselling provided by a counsellor — onus is on person asserting the privilege to show communication privileged — documents in this case were not “counselling communications” within s 296 — focused and specific evidence required to ground claim for privilege — statements by judge explaining each ruling in relation to the privilege were sufficient having regard to the circumstances — ER v Khan [2015] NSWCCA 230

19/10/2022 — Crimes (Sentencing Procedure) Amendment Act 2022 — amends Crimes (Sentencing Procedure) Act 1999 — replaces s 25AA(1) with new s 21B(1) — court must sentence (or resentence) in accordance with practices at time of sentencing — court may sentence according to practices at time of offending if offence not a child sexual offence and exceptional circumstances exist — inserts new s 67(2)(h) — expands definition of prescribed sexual offences so that ICOs cannot be made for certain sexual offences regardless of when committed or which provision is charged — commenced on assent on 18 October 2022 (s 2)

30/05/2022 — 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)

02/05/2022 — 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):

30/05/2022 — 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 — commences on proclamation on 1 June 2022 (s 2, LW 13/5/2022)

13/01/2022 — Modern Slavery Act 2018 — amended before commencement by Modern Slavery Amendment Act 2021 — amends s 91G Crimes Act 1900 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 (ss 91HAA, 91HAB, 91HAC) — commenced on 1 January 2022 (s 2)

13/05/2021 — Justice Legislation Amendment Act (No 2) 2019 — amends Criminal Procedure Act 1986 — The list of “prescribed sexual offences” in s 3 is amended to include female genital mutilation offences (Crimes Act, ss 45, 45A) and the offence of concealing a serious indictable offence (Crimes Act, s 316), if the concealed offence is a prescribed sexual offence: Sch 1.10[1]–[3]

26/11/2020 — Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 — amends Criminal Procedure Act 1986 — inserts Div 5, ss 289T–289VA — creates scheme so domestic violence complainants can give evidence by alternative means or arrangements, amongst other things (partly commences on assent and proclamation) — provides for jury warnings when delayed or no complaint (ss 294(3) and 306ZR) — commenced on assent on 25 November 2020 unless otherwise indicated (see s 2, LW 23.11.20). New s 289T provides that the division applies to domestic violence offence proceedings and AVO proceedings where the defendant is charged with a domestic violence offence and the protected person is the alleged victim. If the complainant is a person against whom a prescribed sexual offence is alleged to have been committed by the accused, the division applies in addition to Pt 5 relating to apprehended personal violence orders

29/10/2020 — Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 — amends Criminal Procedure Act 1986 — creates presumption that offences be heard together if allegedly committed by same person and relied on as tendency and coincidence evidence (s 29A) — inserts directions on standard of proof for tendency and coincidence evidence (s 161A, commenced 1 March 2021)

01/10/2020 — Stronger Communities Legislation Amendment (Crimes) Act 2020 — inserts s 316(1A) in Crimes Act 1900 to introduce reasonable excuse for concealment of domestic or sexual violence offences on certain grounds commenced on assent on 28 September 2020 (s 2, LW 28/9/2020)

10/07/2020 — Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) — amends Crimes Act 1914 (Cth) — s 16A(2)(g) amended to provide greater guidance for considerations relevant to guilty plea — s 16(2)(ma) added — requires consideration of whether an offender’s standing in community aided commission of offence — s 16A(2) amendments commence 20 July 2020 — s 20AB amended to add residential treatment orders as sentencing alternative for intellectually disabled offenders — inserts provisions relevant to sentences for Cth child sexual abuse offences — new ss 16AAA, 16AAB and 16AAC introduce mandatory minimum sentences for certain child sexual abuse offences — s 19 amended to add presumption of accumulation of sentences — s 20 now requires particular conditions for Cth child sexual abuse offenders released on recognizance — amends Criminal Code (Cth) — inserts new aggravated offences for child sexual abuse, grooming offences and offences related to providing electronic services to facilitate dealings with online child abuse material — increases maximum penalties for certain Cth child sex offences — unless indicated otherwise commenced 23 June 2020 (s 2)

10/07/2020 — Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act2020 (Cth) — amends Crimes Act 1914 — new s 15AAA introduces presumption against bail for Cth child sex offences — s 15YM amended to provide that recording of interview with vulnerable witness admissible as evidence-in-chief — new s 15YHA prohibits cross-examination of vulnerable witness at committal — ss 19AA, 19APB, 19AQ, 19AR, 19AS amended as to procedures related to revocation of parole order or licence — s 19AU(3) amended to insert community safety as factor relevant to revocation of federal offender’s parole — commenced on 23 June or 20 July 2020 as indicated (s 2)

26/06/2020 — Evidence Amendment (Tendency and Coincidence) Act 2020 — amends Evidence Act 1995, Pt 3.6 — new s 94(4) and (5) clarify matters that may or may not be taken into account when determining admissibility of tendency and coincidence evidence — adds s 97A which sets out rules for admissibility of tendency evidence in proceedings for child sexual offences — inserts s 98(1A) to extend coincidence rule to evidence of witnesses claiming to be victims of accused — amends test in s 101(2) to one where evidence inadmissible unless its probative value outweighs danger of unfair prejudice — commenced 1 July 2020 (s 2, LW 10/6/2020)

·26/06/2020 — Crimes Amendment (Special Care Offences) Act2020 — amends Crimes Act 1900 special care sexual offences involving 16-and 17-year-old young people — creates new special care categories in ss 73(3)(f), (g) and 73A(3)(f), (g) — amends ss 73 and 73A by adding ss 73(3)(b1), (3)(c) and 73A(3)(b1), (3)(c), (3)(f) so that for certain special care categories there is a requirement that victim be “under the authority” of offender — inserts new s 78(1) to include defence for young people for some incest offences — commenced on assent on 23 June 2020 (s 2, LW 22/6/2020)

24/03/2020 — Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) — amends Criminal Code (Cth) — Sch 1 inserts Div 273B “Protection of children” — creates offences related to Commonwealth officers who fail to protect children from, or report, child sexual abuse — commenced on proclamation on 20 March 2020 (s 2) — amends Crimes Act 1914 (Cth), s 15Y — extends protections to vulnerable persons in Crimes Act, Pt IAD to proceedings for offences in Div 273B

23/10/2019 — Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) — amends Criminal Code (Cth) — repeals and replaces definition of forced marriage, and defence of marriage for child sex offences — creates new offences including possession of child-like sex doll and possession of child abuse material obtained using a carriage service — redefines ‘child pornography material’ as ‘child abuse material’ — commenced 21 September 2019, except Sch 1 (s 2)

27/09/2019 — Justice Legislation Amendment Act 2019 — amends Crimes Act 1900, s 80AF to clarify the position where uncertainty exists about time when sexual offence against child occurred

07/06/2019 — Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) — amends Criminal Code (Cth) — inserts new Div 474, Subdiv H “Offences relating to use of carriage service for sharing of abhorrent violent material” — creates new offences under ss 474.33 and 474.34 for ISPs, or content or hosting services of failing to notify AFP of, or failing to remove, abhorrent violent material — maximum penalty for ISP or internet content host failing to notify AFP of child pornography under s 474.25 increased — commenced on 6 April 2019

03/06/2019 — Justice Legislation Amendment Act (No 3) 2018 — amends Crimes Act 1900 — adds new aggravating circumstance to aggravated sexual assault in s 61J — amends Criminal Procedure Act 1986 to enable expert evidence to be given concurrently or consecutively — new provisions and offences with respect to sensitive evidence — amends various Acts to increase maximum judicial retirement age to 75 years — commenced on 28 November 2018 (s 2, see LW 26/11/2018) except relevantly 1.4 [1] and [4], 1.17 [1] and [4] which commence on proclamation — Sch 1.11 [1] and [2] commenced 17 December 2018 — Sch 1.20 commenced 28 February 2019 — Sch 1.2 [1]–[3] commenced on 31 May 2019 (s 2, LW 31.05.19)

15/05/2019 — Crimes Legislation Amendment (Victims) Act 2018 — amends Crimes (Sentencing Procedure) Act 1999 — repeals and replaces Pt 3, Div 2 relating to victim impact statements (VIS) — extends VIS provisions to additional victims— introduces right for all victims to have support person present when reading VIS — new provisions related to VIS in mental health and cognitive impairment forensic proceedings — these amendments commenced on proclamation on 27 May 2019 (s 2, LW 24.05.19) — remaining amendments under Act commenced 1 December 2018 (s 2, LW 28.11.18)

30/11/2018 — Crimes Legislation Amendment (Victims) Act 2018 — amends Children (Criminal Proceedings) Act 1987 — introduces new procedures for determining applications by prosecution for child sexual assault offences to be dealt with according to law — amends Criminal Procedure Act 1986 to extend protections associated with giving evidence to additional witnesses — amends Crimes (Domestic and Personal Violence Act) 2007 to require certain AVO proceedings be closed to the public — these amendments commenced on 1 December 2018 (s 2(2), LW 28.11.18) — balance of amendments commence on proclamation (s 2(1))

30/11/2018 — Justice Legislation Amendment Act (No 3) 2018 — amends Crimes Act 1900 — adds new aggravating circumstance to aggravated sexual assault in s 61J — amends Criminal Procedure Act 1986 to enable expert evidence to be given concurrently or consecutively — new provisions and offences with respect to sensitive evidence — commenced on 28 November 2018 (s 2, see LW 26 November 2018) except relevantly Sch 1.2 [1]–[3], 1.4 [1] and [4], 1.17 [1] and [4], 1.20 which commence on proclamation — Sch 1.11 [1] and [2] commence on 17 December 2018

30/11/2018 — Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, certain provisions, commenced on 1 December 2018 (LW 30/11/2018) — these provisions restructure and modernise sexual offences in Crimes Act 1900, Pt 3, Div 10 — new s 80AF permits prosecution when there is uncertainty about when child sexual offence occurred — the new consent provision, s 61HE, expands the definition of consent to “sexual activity” which includes sexual intercourse, sexual touching or a sexual act (s 61HE(11)) and applies to offences under ss 61I, s 61J, 61JA, 61KC, 61KD, 61KE and 61KF: s 61HE(1) and it is no longer limited, as previously, to “sexual intercourse” — the existing consent provision, s 61HA, is repealed — new s 80AG is inserted and is aimed at decriminalising certain acts engaged in by children for offences against ss 66C(3), 66DB, 66DD, 73 or 73A if the alleged victim is of or above 14 years old and the age difference between the alleged victim and the accused is no more than 2 years — new s 293A is inserted into the Criminal Procedure Act 1986 to enable judges to give jury directions to address difference in accounts given by complainant

The NSW Government released their NSW Sexual Violence Plan 2022–2027 in December 2022. The Plan puts in place an approach to guide the work of the NSW Government, specialist organisations and workers, the broader workforce, community organisations, including legal services, health professionals, academics, law enforcement, the justice sector, businesses and workplaces, and all community members.

In May 2018, the NSW Law Reform Commission was asked by the Attorney General to review s 61HE of the Crimes Act 1900 (NSW), which deals with consent in relation to sexual offences. The terms of reference were received on 3 May 2018. The Law Reform Commission published some preliminary submissions in response to the terms of reference. These can be accessed at https://lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Consent/Preliminary-submissions.aspx. Report 148 — Consent in relation to sexual offences was tabled in Parliament on 18 November 2020.

The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 commenced 1 June 2022. See Second Reading Speech, Legislative Assembly, Debates, 20 October 2021, p 7506.

The NSW Government released their NSW Sexual Assault Strategy 2018–2021 in July 2018. The strategy is a comprehensive framework to improve prevention and response to sexual assault and delivers a three year, whole-of-government approach to sexual assault in NSW for the first time.

The Strategy aims to improve the existing service system for adults and children who experience sexual assault, while holding perpetrators to account. It also seeks to raise community awareness of sexual violence while improving prevention and education measures in families and the wider community.

In September 2017, the NSW Government prepared a discussion paper that identified issues and posed questions about possible options for child sexual abuse law reform. The paper considered the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse in its Criminal Justice Report, released in August 2017, and the recommendations of the NSW Parliament’s Joint Select Committee on Sentencing of Child Sexual Assault Offenders: see Final Report of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders. The purpose of the discussion paper is to examine child sexual offences in NSW to simplify the current framework, revise current offences and identify whether any new offences should be created to fill any gaps in the existing framework. See Discussion paper: Strengthening child sexual abuse laws in NSW.