On 22 September 2026, the Minns Government introduced the Criminal Procedure and Other Legislation Amendment (Victim Experience Reforms) Bill 2026 into NSW Parliament. It proposes the most substantial change to the conduct of adult sexual assault trials in NSW for some years, targeting three things: how complainants are questioned, how their evidence is captured, and what the defence can obtain from their counselling records.
The Government’s framing is that, aside from the possibility of an unjust verdict being found, the trial process itself causes harm. That is, the current system will always harm a complainant, even if a judge finds in their favour. However, whether the solution appropriately balances this consideration against the necessary rights of an accused person is the question the legal profession will now have to work through.
How Prosecutions Currently Operate in Sexual Assault Trials
Sexual assault offences are prescribed sexual offences under section 3 of the Criminal Procedure Act 1986 (NSW), tried on indictment before a judge and jury in the District Court. The extreme backlog of our courts has meant that delay is now the norm: a complainant frequently gives evidence years after the alleged conduct.
The process has two parts. The complainant gives evidence in chief, led by the Crown, and is then cross-examined by the defence. Cross-examination is the principal mechanism by which the prosecution case is tested, and in a trial that commonly turns on two competing accounts with no independent witnesses, it is often the only one.
Importantly, a substantial protective framework already exists. Complainants may give evidence by closed-circuit television or audio-visual link. Courts are closed during their evidence. They are permitted support persons, and an unrepresented accused cannot personally cross-examine a complainant. Evidence of sexual reputation and, subject to exceptions, sexual experience, is excluded. Since 1 June 2022, NSW has operated an affirmative consent model under sections 61HI and 61HJ of the Crimes Act 1900, accompanied by mandatory jury directions addressing misconceptions about consent, delay in complaint and inconsistency in accounts. As such, there have already been developments in the protections for complainants.
A few features of the existing law matter particularly to this Bill. Recorded police interviews are already admissible as evidence in chief, but only for complainants under 16 and people with a cognitive impairment. Ground rules hearings already operate in child sexual assault proceedings. And the sexual assault communications privilege (SACP) regime in Chapter 6 of the Criminal Procedure Act 1986 (NSW) already restricts the defence from subpoenaing counselling records, requiring leave of the court under section 298.
The Bill extends each of those three mechanisms with respect to adult complainants.
Why The Bill Was Introduced
The impetus for reform has been the overwhelming fact that most sexual assault reports are not legally pursued.
BOCSAR tracked every sexual assault reported to NSW Police in 2018 and found that of 5,869 incidents, only 14.9% resulted in legal action. Just 6% of reported adult sexual assault incidents ended in a proven charge, and no legal action was taken at all in 85% of cases. Among those charged with adult sexual assault who reached court, the conviction rate was 38 per cent. Reported incidents rose 94% across the decade while convictions did not follow.
The Government’s position, reflected in Daley’s second reading speech, is that despite significant legislative reform, complainants continue to report negative experiences in cross-examination, compounded by questioning built on misconceptions about consent and sexual offending. Women’s Safety Commissioner Dr Hannah Tonkin put it in terms of complainants giving detailed evidence years after the fact and facing questions that are irrelevant to the issues in dispute.
The Bill sits alongside a $4.36 million justice system navigators pilot, the appointment of the state’s first independent Victims of Crime Commissioner in July, and a $49.4 million support hub announced in June.
Proposed New Laws for Sexual Assault Trials
The Bill inserts a framework for a pilot scheme into Schedule 2 of the Criminal Procedure Act, operating at Parramatta, Wollongong and Dubbo District Courts from 31 March 2027 to 30 June 2030, backed by $4.8 million. It applies to all prescribed sexual offence proceedings where the complainant was 18 or over at committal.
Before the complainant gives evidence, the court may give directions on the duration of questioning, the manner of questioning and the topics that may be covered, along with directions about communication aids such as body maps or palm cards. The pilot also requires pre-trial discussion of likely jury directions on consent, delay and differences in accounts. Daley was explicit that the scheme will not restrict legitimate forensic testing of the complainant’s evidence, will not prevent the accused’s version being put, and will not require the defence to disclose its precise cross-examination questions.
Further, the existing provision permitting recorded police interviews as evidence in chief would extend to all adult complainants and to tendency witnesses. Domestic violence evidence in chief would become available in standalone ADVO proceedings without related criminal charges. Similarly, reuse of complainant evidence in retrials would extend to Crown appeals and to domestic violence proceedings. Complainants would not be required at committals except for special reasons, and courts would be closed during victim impact statements in domestic violence matters. The court retains power to order that a recording not be used where it is not in the interests of justice. This assortment of amendments is meant to bolster the procedural support that complainants receive, insofar as possible.
Finally, Section 298 would be amended to confirm that no person may access private counselling records protected by confidence, or a document recording it, unless it is necessary. Courts would then be required to consider whether they are inspecting these documents as a matter of course, or out of necessity. As such, seeking leave will be codified in legislation. To that end, a University of Sydney research project reporting mid-2027 is separately examining whether such records should be excluded from criminal proceedings entirely.
The defence concern is concerns the suite of reforms rather than any single measure. Affirmative consent, mandatory jury directions, and now procedural constraints on questioning and document access have arrived in sequence. Each is defensible in isolation, but together, they shift the balance of a trial in which the accused faces harsh penalties to potentially erode the presumption of innocence. A cornerstone of the criminal trial is that the accused’s guilt can never be assumed, but critics argue that the array of constraints that favour complainants imply exactly this. The interplay between complainant and accused rights are extremely complex.
The evidentiary objections are narrower and harder to answer. Recorded evidence in chief means a jury sees an account given in a police station, shaped by police questioning, without contemporaneous objection to leading questions and without the usual assessment of a witness in the courtroom. Another cornerstone of a criminal trial is their oral nature, and courts are reluctant to rely on out-of-court evidence.
The counselling records amendments are quieter still and arguably the most consequential because the defence cannot know what is contained in material it has never seen. Narrowing the circumstances in which a judge inspects those records narrows the prospect that inconsistent or exculpatory material is ever identified at all.
Criticism also comes from the other direction. Full Stop Australia and Fair Agenda have pressed for complainants to pre-record their entire evidence including cross-examination, which this Bill does not do. A statutory review beginning early next year will consider that question.
The Bill now proceeds to second reading debate – the next hurdle to surpass before it becomes law. The inequities of sexual assault trials have been a focus of legislative reform for years following major sociopolitical movements, and the law has not always moved in the right direction. Only time will tell whether this Bill might.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]