“There have been calls for reform in NSW,in Australia and indeed across the world,of how we handle sexual violence complaints. Those calls have reached a crescendo,in the last six months.”
The prosecution still bears the onus of proving to a jury beyond reasonable doubt the three elements of an alleged sexual assault,namely that the sexual conduct occurred,that the complainant did not consent and that an accused knew a person did not consent.
The reforms follow years of advocacy led by Saxon Mullins,whose own court experience triggered a landmark review of laws,as well as months of public outcry provoked by apetition started by former Sydney studentChanel Contos.
Ms Mullins was the complainant in the highly-publicised rape trial of Luke Lazarus. The “no reasonable grounds” provision was a central issue in the Lazarus trial. Mr Lazarus was initially found guilty of sexual assault by a District Court jury in 2015,but the NSW Court of Criminal Appeal quashed the verdict and ordered a retrial after finding the judge misdirected the jury on this issue.
After a retrial in 2017,a District Court judge found Mr Lazarus not guilty on the basis of a mistaken belief in consent based on reasonable grounds. The Crown lodged an appeal,and the Court of Criminal Appeal found the judge erred in failing to consider in her written reasons any steps taken by him to ascertain consent.
However,the court said it would be “oppressive” for Mr Lazarus to face a third trial.
Mr Speakman said the reforms would not have been possible without sexual assault survivors like Ms Mullins telling her story.
“My determination is to make sure that a case like that never arises again. This is not just about holding perpetrators to account,but making sure that these cases don’t arise,” he said.
Ms Mullins said she was grateful that her case had been a catalyst for reform.
“We are now leading the way in this space. Hopefully other states can look to NSW and enact their own reforms.”
NSW Police Commissioner Mick Fuller said the new laws would aid judges and juries that often struggled with the “grey” areas of consent.
“While it may always be grey,it can’t be as grey as what it is now and clearly the legal application at the moment is not servicing anyone in my opinion,” he said.
Education Minister Sarah Mitchell said school curricula would be updated to reflect the law reforms once the changes passed Parliament.“[We’ll] also ensure that our teachers have the resources that they need to make sure young people understand what they can and can’t do when it comes to being in those situations.”
But national criminal justice spokesman for the Australian Lawyers Alliance,Tasmania-based barrister Greg Barns,SC,said affirmative consent laws,while useful in consent education,would not make a significant difference to criminal trials.
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