By Paul Gregoire and Ugur Nedim
The New South Wales government has introduced a bill that would significantly reform the way in which sexual assault prosecutions proceed. Spruiked as an effort to improve the experience of victims of such crimes in court, changes are proposed over three key areas: ground rules for hearings, recording evidence in chief and restraints on defence ability to subpoena protected confidences.
Introduced on 22 September 2026, the Criminal Procedure and Other Legislation Amendment (Victim Experience Reforms) Bill 2026 contains changes that aim at reducing the “distress and trauma experienced by complainants when giving evidence” in sexual assault proceedings. This includes restraints on lines of questioning and the provision of prerecorded evidence in chief for adults.
“Recent tragic events have shown that the scourge of sexual violence and domestic and family violence remains persistent and continues to have devastating effects on our community, particularly for victim-survivors and their families,” said New South Wales attorney general Michael Daley, during his 22 September 2026 second reading speech on the bill.
These reforms come on the back of a related $4.36 million investment in a two-year pilot program involving eleven trauma-informed specialist officers, to assist victim-survivors in navigating the sexual violence justice system announced last month, as well as the July establishment of the state’s first independent Victims of Crime Commissioner, a position now held by Hannah Damkar.
Daley further told the lower house last week that these reforms align with the June 2026 announced $49.4 million investment in a Sydney CBD dedicated support hub for victim-survivors of crime, including sexual violence, and added that all these reforms have been developed in consultation with “justice agencies, legal peak bodies and domestic, family and sexual violence sector organisations”.
A ground rules hearing pilot scheme
“Despite significant legislative reforms… many complainants continue to report negative experiences when giving evidence and undergoing cross-examination,” the AG explained in terms of the “ground rules hearing pilot scheme”. He added that those “negative experiences are compounded by questioning practices that are distressing” or involve “consent and sexual offending” misconceptions.
The $4.8 million two-year ground rules hearing pilot scheme will operate at Parramatta, Wollongong and Dubbo District Courts. This trial of a procedure, that already operates in NSW child sexual assault proceedings, consists of a pretrial hearing where both parties discuss how the questioning of the complainant will proceed, in terms of eliciting best answers in the least traumatising manner.
To progress this, the bill inserts an “overarching legislative framework for the ground rules hearing pilot scheme” into schedule 2 of the Criminal Procedure Act 1986 (NSW). This trial will run over 31 March 2027 until 30 June 2030, and it will “apply in all proceedings for a prescribed sexual offence” relating to complainants over the age of 18 at the time the accused is committed to stand trial.
A ground rules hearing commences prior to the complainant giving evidence. Their participation is optional, but their criminal defence lawyer and the prosecutor must meet to consider the needs of the complainant. This can entail the court giving directions around the duration of questioning, the manner of questioning and the topics involved.
Daley specifically outlines that the manner of questioning can involve being “clear and nonargumentative” or as well, “the use of certain language”, while “directions about the use of open-ended questions” can be progressed. And such directions aim at curbing “aggressive questioning tactics” and ensuring that the complainant is treated with “respect and dignity”.
The AG further stressed that questioning restraints will not “restrict the legitimate forensic testing of the complainant’s evidence” or “the defence from putting the accused’s version of events”, nor will it “prevent legitimate questioning arising in response to… evidence-in-chief” that couldn’t have been anticipated and “it will not require defence to disclose” precise cross-examination questions.
This process can also involve a direction about the use of communication aids, or “things, whether electronic or otherwise, that can be used to assist in communication by a complainant”. Aids could comprise of “palm cards, models, plans or body maps”. And it would be open for both parties involved in a ground rules hearing to raise and consider “tailormade” directions for the specific case.
This process will also require sexual assault complainants to fill out a complaint questionnaire and case management form, with the assistance of a Witness Assistance Service officer, prior to the ground rules hearing. And further, a judge isn’t required to then decide on informing a jury of specific directions, while directions are binding on the officer, although they can be revoked later on.
Recording evidence in chief
The bill also contains a list of additional amendments to the Criminal Procedure Act that serve to enhance complainant protections in domestic and sexual violence matters, via changes that ensure that recorded evidence in chief can be tendered, whist preserving the ability of the defence to cross-examine and reexamine a complainant.
The first reform comprises of amendments that serve to expand domestic violence evidence-in-chief, or DVEC, which involves complainant statements recorded by police when responding to DV incidents. The changes result in the ability to tender DVEC in standalone apprehended domestic violence order (ADVO) proceedings, without the current requirement of any related criminal charges.
The second changes involve a provision that allows defendants, who are “under 16 years of age or a person with a cognitive impairment” being able to give evidence-in-chief in regard to prescribed sexual offences via a recorded police interview, being expanded, so that all complainants and “tendency witnesses” can provide evidence in this way, to prevent retraumatisation.
A tendency witness is a ‘sexual offence witness’, other than the complainant, who has been sexually assaulted by the accused in some manner.
“Giving evidence in court can be challenging, particularly for complainants in prescribed sexual offence matters due to the intimate and personal nature of the offending,” Daley explained in respect of this reform. “As a safeguard, the court will have the ability to order that a recording not be used if it is satisfied it is not in the interests of justice to do so.”
Further, the amendments will place a prohibition on the provision of recordings that involve domestic violence evidence in chief or to prescribed sexual offences evidence in chief being passed on to the defence. Prescribed sexual offences are set out under section 3 of the Criminal Procedure Act.
Two changes are also proposed to complainant evidence in respect of retrials and subsequent trials. The first involves the current permission to reuse of complainant evidence in respect of prescribed sexual offence appeal raised by the convicted, then serving to exclude it in Crown appeals. The bill would extend the reuse of such evidence to appeals brought by the prosecution.
The second reform involves a change to domestic violence proceedings, so that the reuse of complainant evidence in retrials or subsequent trials is extended to proceedings involving DV crimes.
Three further provisions to minimise trauma are progressed by the amendment bill. The first is that complainants will not be required at the committal hearing of the accused, unless there is a special reason.
The second consists of the alternative measures a complainant has available to them when giving evidence during DV trials, such as the use of an audio-visual link, so that these will too be made available in standalone ADVO hearings.
The third and final additional provision would provide that a court must be closed during the reading of victim impact statements in domestic violence proceedings, which is a change that is being progressed via an amendment to the Crimes (Sentencing Procedure) Act 1999 (NSW).
Restraints on subpoenas for protected confidences
The final major reform progressed by the amendment bill involves changes to the sexual assault communications privilege (SACP) regime contained in division 2 part 5 of chapter 6 of the Criminal Procedure Act. The SACP regime protects against the defence subpoenaing counselling communications that involve the alleged victim in sexual assault proceedings.
Such evidence is known as “protected confidences”. The defence is currently prohibited from obtaining protected confidences in reference to bail and committal hearings. However, in criminal proceedings, including domestic violence matters, this is not the case, as the defence can seek leave to obtain protected confidence evidence.
Section 298 of the Criminal Procedure Act requires that unless the defence has leave of the court, a person cannot compel another to produce a document recording a protect confidence, and that such a document cannot be produced in criminal proceedings, and that evidence can’t be produced that would divulge a protected confidence or a document containing one.
A new amendment to section 298 would confirm that a person cannot access a protected confidence evidence or a document recording one, unless they have leave of the court as well.
Another reform would also require the court only scrutinise such evidence if it has considered whether it is necessary to do so. These stipulations would also apply to judges perusing such evidence themselves.
The final changes involve how the SACP regime relates to Children’s Court proceedings and are made to the Children (Criminal Proceedings) Act 1987 (NSW). The initial change involved in this provides that protected confidences cannot be subpoenaed in relation to committal hearings relating to serious children’s indictable offences.
Further, the Children’s Court can hear indictable offences that are not serious children’s indictable offences if a defendant was a child on offending and continues to be under 21 at time of trialling, or otherwise, the matter can be committed to a higher court for trial. And a new reform clarifies that in these cases evidence of protected confidence can be relied upon with the court’s leave.
“This bill is an important part of our reform agenda,” Daley added in ending his second reading speech on the bill last week, “and it builds on the reforms the government has introduced to combat the blight of domestic, family and sexual violence and the investments we have made in critical programs and services.”
The next step for the bill is it will undergo second reading debate in the lower house.
Concerns
While the proposed reforms have been welcomed by victim advocate groups, there are concerns that adding further restraints on the defence and making it easier to prosecute sexual assault cases could lead to more innocent people being found guilty, particularly given the swathe of sexual offence reforms in recent years which have introduced the requirement for affirmative consent and compel judges to give directions to the jury which make it easier for them to convict.
Indeed, there is an argument that the reforms go a step too far when it comes to undermining the presumption of innocence in the hope of ensuring justice for legitimate victims and deterring potential offenders.
