5 / 6 / 2023

Amendments to the Criminal Procedure Act in NSW Sexual Assault Trials: Directions regarding consent

On 1 June 2022, the NSW government amended the Criminal Procedure Act 1986 (NSW) (CPA) to list five new directions that can be given to juries in sexual assault trials.

The purpose of the amendments to the CPA was to address certain misconceptions about consensual and non-consensual sexual activity. The concern was that juries would make or be incorrectly invited to make unwarranted assumptions about consent and sexual assault. Parliament has sought to address this concern through the introduction of these five new directions to provide assistance and guidance to the jury.

s 292A 

This direction concerns circumstances in which non-consensual sexual activity can occur. The direction outlines that there are many different circumstances when non-consensual activity can occur and that it can occur between different kinds of people including people who know each other, people who are married or are in an established relationship. This list is non-exhaustive, and the direction is drafted so that it may be adapted to the particular circumstances.

s 292B

This direction regards a complainant’s response to non-consensual activity. It directs that there is no typical or normal response and people may respond to non-consensual sexual activity in different ways. The section specifically mentions freezing and not saying or doing anything as a possible, but not only, way that a person responds to non-consensual activity. It extends the direction to include that the jury must avoid making assessments based on preconceived ideas about how people would respond.

s 292C 

This direction notes that people who do not consent to sexual activity may not be threatened with or incur physical injury or be subjected to violence. The absence of any such injury or threat does not necessarily mean a complainant is not telling the truth about an alleged sexual offence.

s 292D

This direction considers responses people have to giving evidence, including the different responses different people have to trauma. The presence or absence of emotion or distress does not mean a person is not telling the truth in relation to an alleged offence.

s 292E

The final direction under this subdivision details that the behaviour and appearance of a complainant such as alcohol, drugs, particular clothing or appearance or presence in a particular location should not lead to the assumption a complainant consented to a sexual activity.

The consent directions are to be given if there is good reason or if at the request by a party unless there is good reason not to give the direction. There is no requirement to use a particular form of words in giving a consent direction, and at the discretion of the judge it can be giving at any time and on more than one occasion (s 292 CPA).

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

If you have been charged with a sexual assault offence, it is imperative that you obtain detailed and targeted advice. Our team have decades of experience in these types of matters and we stay up to date with the changing landscape of sexual assault legislation.

Helen Christinson, Partner