Citation: R v MK [2022] NSWDC 245
Court: District Court of New South Wales
Date: 21 June 2022
Judge: Tupman DCJ
Background
The accused faced three counts of aggravated sexual assault under s 61J of the Crimes Act 1900 (NSW) and one count of sexual assault under s 61I. The trial proceeded in June 2022, shortly after new "consent direction" provisions in the Criminal Procedure Act 1986 (NSW) took effect on 1 June 2022.
During the trial, the Crown flagged a possible request for consent directions under ss 292B and 292D. Before final addresses, the Crown clarified it was not in fact requesting any consent directions. Despite the Crown withdrawing its request, Her Honour considered whether the mandatory limb of s 292 nonetheless required any directions to be given.
The central factual issue in the trial was not whether the complainant had consented to sexual activity, but whether the alleged sexual activity had occurred at all. The accused denied the events took place.
Legal Issues
- Whether any of the "consent directions" under ss 292A to 292E of the Criminal Procedure Act 1986 were required to be given, where consent was not in dispute at trial
- How s 292D (directions about demeanour and emotional responses when giving evidence) should be construed, including whether it operates as a direction at large or is limited to the issue of consent
- What the proper procedure is for raising consent direction requests in trials governed by s 292
Decision
Her Honour declined to give any of the consent directions. The mandatory obligation under s 292(2) to give a direction only arises where there is a "good reason" to do so. Because consent was not in dispute, there was no good reason to give any directions under ss 292A, 292B, 292C, or 292E, each of which plainly address circumstances surrounding non-consensual sexual activity.
The more contested question was the scope of s 292D, which directs juries that trauma may affect people differently and that the presence or absence of emotion or distress does not necessarily mean a person is not telling the truth. The Bench Book note suggested this section extends beyond consent to general credibility assessments. Her Honour rejected that reading.
In Her Honour's view, s 292D is properly construed as a consent direction in the strict sense. Its definition as a "consent direction" under s 292(2), combined with its origins in Law Reform Commission Report 148 recommendation 8.111 (which expressly addressed misconceptions about responses to non-consensual sexual activity), means it is directed at the consent issue, not at witness credibility generally. It does not operate as a free-standing direction on demeanour for all purposes.
Her Honour noted, however, that in future trials under s 292, judges may need to consider whether general directions about assessing witness demeanour require qualification. Where consent is genuinely in issue, a general credibility direction inviting jurors to assess demeanour may need to be tempered by the effect of s 292D. Her Honour suggested that counsel in all s 292 trials address consent direction requests before the jury is empanelled and certainly before any preliminary remarks are made.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court held that the obligation under s 292(2) to give consent directions is triggered only where there is a "good reason" to do so, and where consent is not in dispute at trial, no such reason exists.
- Section 292D is properly construed as a direction limited to the issue of consent, specifically addressing misconceptions about how a complainant may present when recounting non-consensual sexual activity. It is not a general direction about witness credibility or demeanour.
- The origins of s 292D in Law Reform Commission Report 148 were treated as significant context in resolving an apparent ambiguity between the section's drafting and the Bench Book note suggesting a broader application.
- Where consent is a live issue in a s 292 trial, a general jury direction about assessing witness reliability through demeanour may require qualification to reflect the operation of s 292D.
- In trials governed by s 292, the decision indicates that the question of which consent directions are sought should be addressed before jury empanelment and before any preliminary remarks to the jury are delivered.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J
- Criminal Procedure Act 1986 (NSW), ss 292, 292(2), 292A, 292B, 292C, 292D, 292E
Other materials referenced:
- Judicial Information Research System (JIRS) Criminal Trial Courts Bench Book, [2-984]
- NSW Law Reform Commission, Report 148, recommendation at chapter 8.111
Cases cited: None cited in the judgment.