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Child sexual assault

The position of inequality between offender and victim and the life long effect on a victim makes these crimes particularly serious. As such the maximum penalties for these offences can be quite high. For example, the maximum penalty for the offence of Persistent sexual abuse of a child, is imprisonment for life [Criminal Law Consolidation Act 1935 (SA) s 50].

Offences of this nature are covered under the Criminal Law Consolidation Act 1935 (SA) and some of the specific provisions relating to children are explained above in this section under Unlawful sexual intercourse and Indecent assault.

Evidence

Complaints of sexual interference from children, particularly young children, involve difficulties in investigation and prosecution. Children often have trouble explaining what has happened either because of their lack of understanding or simply because of limited vocabulary and may also have problems with the exact dates that acts occurred.

Evidence given to courts is divided into sworn evidence and unsworn evidence. Sworn evidence is given when someone takes an oath or makes an affirmation before giving evidence [s 4 Evidence Act 1929 (SA)]. Unsworn evidence is evidence that is given without the obligation of an oath first being taken or an affirmation being made.

Children are able to give sworn evidence to a court, if they have a sufficient understanding of the obligation to be truthful involved in giving such sworn evidence. Even if a child cannot give sworn evidence that child may be allowed to give unsworn evidence. To give unsworn evidence a person must have a proper understanding of the difference between the truth and a lie, understand the importance of telling the truth and say to the Court that they will tell the truth when they give their evidence.

To give sworn evidence the person must have the understanding needed to give unsworn evidence but in addition must understand that in giving sworn evidence they acknowledge and accept the solemnity of taking an oath/ making an affirmation and the moral and/or legal sanctions that would follow if they fail to comply with the promise to tell the truth [s 9(1) Evidence Act 1929 (SA)].

Where unsworn evidence is given the judge must tell the jury the reason why the evidence was unsworn as opposed to sworn evidence and would almost always be required to warn the jury that they need to be cautious in deciding whether to accept it [ s 9(4)Evidence Act 1929 (SA)].

Section 9 of the Act does not apply to a statement made outside of court admitted as evidence under an exception to the rule against hearsay at common law or under the Act.

While a child gives evidence in a child sexual abuse matter, all non-essential persons will be ordered to leave the court [s 69(1a) Evidence Act 1929 (SA)] and the child will be allowed to have support person in court with them [s 12 Evidence Act 1929 (SA)]. The evidence of a child who is 14 years old or younger, may also be heard at a pre-trial special hearing under the procedure outlined in s 12AB of the Evidence Act (SA) (see below). There are also additional protections that can be put in place to protect a child who is of or under 14 years old when giving evidence in criminal proceedings [see s 13A Evidence Act 1929 (SA)].

Pre-trial special hearings

A pre-trial special hearing is, on application and under certain circumstances, available to a child of or under 14 years of age or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions [s 12AB(14), s12AB(1)].

This type of trial is available only in trials of a charge of a serious offence against the person or of charges of contraventions of intervention orders or restraining orders [s 12AB(14)].

The hearing is also only available if the necessary facilities are readily available, it is practicable, and the arrangements can be made without prejudice to any party to the proceedings [s 12AB(1)(b)-(c)].

Once allowed this pre-trial special hearing enables the witness to give evidence before the trial with special provisions. This includes that the court must make the following provisions:

  • That the Court can change the setting in as it sees fit, such as a more informal setting;
  • If the witness has a physical disability or cognitive impairment that the evidence can be taken in a way that the Court thinks will minimise embarrassment or distress (including, if the witness has complex communication needs, communication assistance may be provided);
  • That an audio visual record of the evidence be made;
  • That the taking of evidence at the hearing be transmitted to the defendant by CCTV;
  • If the defendant attends the hearing in person, that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during, or after the hearing.

    [s 12AB(2)(a)]

The court may also make the following provisions:

  • That the witness can be accompanied at the hearing by a relative, friend or other person for the purpose of providing emotional support; and
  • Specify that the hearing is convened for any (or all) of the following purposes: examination of the witness; cross-examination of the witness; re-examination of the witness; and
  • Provide for any other matter that the court thinks fit.

    [s 12AB(b)]

There many more procedural laws around what can and can not be done at a pre-trial special hearing and legal advice should be sought.

Registration of offenders

Under the Child Sex Offenders Registration Act 2006 (SA) registrable offenders have to report their personal details to the Commissioner of Police [ss 11 - 13].

Who is a registrable offender?

A registrable offender is a person who:

  • a court has at any time sentenced for a class 1 or class 2 offence, or is, or has been, the subject of a child sex offender registration order; or
  • who is, or has been subject to a child sex offender registration order.

[Section 6(1) Child Sex Offenders Registration Act 2006 (SA)]

There are also provisions deeming people registrable where they were sentenced for the same types of offences interstate and overseas [see ss 6(2), 6(3), 7 and 8].

The following are not registrable offenders:

  • a person who committed a class 1 or class 2 offence as a child, or a person who has committed a single class 2 offence if the sentence did not include a term of imprisonment and was not a supervised sentence (such as community service or home detention);or
  • a person who was sentenced for a single class 2 offence more than 8 years prior to the commencement of the Act (18 October 2007);or
  • a person who was sentenced for a single class 1 offence or two class 2 offences more than 15 years prior to the commencement of the Act.

[ss 6(4)-(5) Child Sex Offenders Registration Act 2006 (SA)]

Additionally there are provisions covering where a person ceases to be a registrable offender (for example, where the only registrable offence that makes them registrable is quashed or set aside, reduced) [s 6(6)].

Class 1 offence:

Class 1 offences are listed in Schedule 1 Part 2 of the Act. They include serious offences under the Criminal Law Consolidation Act 1935 (SA) against a child victim (such as murder, endanger life, rape, unlawful sexual intercourse*, kidnapping) where the offence also involves a sexual offence.

(*does not include unlawful sexual intercourse where the victim consents and either: the offender was aged 18 and the victim not less than 15 at the time of the offence, or the offender was aged 19 and the victim not less than 16 at the time of the offence).

Class 1 offences also include offences against certain federal criminal laws such as offences sexual abuse, and other unlawful sexual activity with children under 16 (and in the case of a person of trust and authority children who are 16 and 17 also), committed outside of Australia. These offences include associated procuring, grooming, encouraging and benefiting from types of offences.

Conspiracy, attempt, aiding and abetting, counselling or procuring commission of any of these offences are also Class 1 offences [Schedule 1, clause 2(m) and (n)].

A full list of class 1 offences can be found in Schedule 1 Part 2 of the Act.

Class 2 offence:

Class 2 offences are listed in Schedule 1 Part 3 of the Act. They include offences (such as manslaughter, risk of harm, indecent assault) against a child where the offence also involves a sexual offence.

Class 2 offences also include offences against certain federal criminal laws such as trafficking children and obtaining child exploitation material (child pornography) through the post or similar, or the internet or telephone. Also grooming and procurement of children under 16 year via these means is covered in this class.

Conspiracy, attempt, aiding and abetting, counselling or procuring commission of any of these offences are also Class 2 offences [Schedule 1 clause 3 (l) and (m)].

A full list of class 2 offences can be found in Schedule 1 Part 2 of the Act.

Child sex offender registration order

Additionally, an order can be made on sentencing for other offences for the offender to comply with the reporting obligations of this Act if the court is satisfied that the person poses a risk to the sexual safety of any child or children [s 9 Child Sex Offenders Registration Act 2006 (SA)].

The Magistrates Court may also make an order that a person comply with the reporting obligations of the Act when they also make a paedophile restraint order [s 9(1a)(SA)].

Serious registrable offender

A serious registrable offender is a registrable repeat offender (committed on three separate occasions a class 1 or 2 offence or on 2 occasions if the victim was under the age of 14) [s 4(1)] Child Sex Offenders Registration Act 2006 (SA)]. Additionally, a person can be declared a serious registrable offender if the Commissioner of Police is satisfied that a registrable offender is at risk of committing further class 1 or 2 offences [s4(1), s 10A(1)]. A serious registrable offender can apply to the Commissioner for written reasons for the decision and there is ability to appeal this decision of the Commissioner [ss 10B(3) and 10B (1)].

The main affect of being declared a serious registrable offender is additional reporting requirements may be imposed (see below). Additionally the Commissioner may issue a requirement to a serious registrable offender to carry a tracking device, failing to wear, carry or maintain the device is an offence, maximum penalty, $10 000 or imprisonment for 2 years [s 66N].

Reporting obligations

Registrable offenders must report their personal details to the Commissioner of police where:

  • A registrable offender (other than a foreign registrable offender) who enters government custody in South Australia …as a consequence of having been sentenced for a registrable offence and who ceases to be in government custody whilst in South Australia. This must be done within 7 days after he or she ceases to be in government custody;

  • Any other person who becomes a registrable offender because he or she is sentenced for a class 1 or class 2 offence in South Australia or who becomes a registrable offender because of a child sex offender registration order made by a court in South Australia. This must be done within 7 days after he or she is sentenced for the class 1 or class 2 offence or the child sex offender registration order is made (as the case may be);

  • A registrable offender who enters South Australia from a foreign jurisdiction and who has not previously been required under this section to report his or her personal details to the Commissioner. This must be done within 14 days after entering and remaining in South Australia for 7 or more consecutive days, not counting any days spent in government custody;

  • A foreign registrable offender who has not previously reported his or her personal details to the Commissioner and who is in South Australia on the date on which he or she becomes a foreign registrable offender. This must be done within 7 days after he or she becomes a foreign registrable offender or 7 days after he or she ceases to be in government custody, whichever is the later; and

  • A registrable offender who is leaving South Australia must, report his or her personal details to the Commissioner before leaving South Australia unless he or she entered South Australia from a foreign jurisdiction and remained in South Australia for less than 7 consecutive days, not counting any days spent in government custody.

[s 11 Child Sex Offenders Registration Act 2006 (SA)].

There is also an obligation to report, within 7 days of sentencing, when a registrable offender's reporting period expires but he or she is then sentenced for a registrable offence, or becomes a foreign registrable offender [see s 12]

The personal details that must be reported by a registrable offender are set out in s 13 of the Child Sex Offenders Registration Act 2006 (SA) and include such things as names, cars owned or driven, tattoos, telephone numbers used, internet connection details, email addresses, passwords, usernames, and other details. These must be reported annually [s 15].

Under section 15A of the Act serious registrable offenders may be required to make additional reports as declared by the Commissioner of Police.

Despite any other provision in the Act, if a registrable offender has reportable contact with a child, the registrable offender must provide details of the contact to the Commissioner within two days of the contact occurring [s 20A].

Penalty for failing to comply with reporting obligations

The maximum penalty for failure to comply with reporting obligations without reasonable excuse is $25,000 or 5 years imprisonment [s 44 Child Sex Offenders Registration Act 2006 (SA)].

The register and access to it

The maintenance and access to the register are governed by sections 60-65 of the Child Sex Offenders Registration Act 2006 (SA). The register is maintained by the Commissioner of Police and the Commissioner is also responsible for developing, maintaining and adhering to guidelines about access to the register. A registrable offender is able to request, in writing, access to their information and seek amendment of incorrect information [s 63].

It is an offence to disclose confidential information about a registrable offender obtained under the Act, except in accordance with the Act (including law enforcement purposes and as otherwise set out). The maximum penalty for this is 5 years imprisonment [s 67].

Registrable offenders are prohibited from particular work

Registrable offenders are prohibited from applying for or engaging in work child-related work.

The maximum penalty for this is imprisonment for 5 years [s 65 Child Sex Offenders Registration Act 2006 (SA)].

This includes work involving contact with a child in connection with any of the following:

(a) pre-schools or kindergartens;

(b) child care centres;

(c) educational institutions for children;

(d) child protection services;

(e) juvenile detention centres;

(f) refuges or other residential facilities used by children;

(g) foster care for children;

(h) hospital wards or out-patient services (whether public or private) in which children are ordinarily patients;

(i) overnight camps regardless of the type of accommodation or of how many children are involved;

(j) clubs, associations or movements (including of a cultural, recreational or sporting nature) with significant child membership or involvement;

(k) programs or events for children provided by any institution, agency or organisation;

(l) religious or spiritual organisations;

(m) counselling or other support services for children;

(n) commercial baby sitting or child minding services;

(o) commercial tuition services for children;

(p) services for the transport of children; and

(q) taxi services and hire car services.

[s 64(1) Child Sex Offenders Registration Act 2006 (SA)].

There is a defence to this charge where the accused can prove that they did not know that the work was child related work [s 65(2)].

The Commissioner of Police can give a person who has committed a class 1 or 2 offence written notice to provide them with information about their work [s 65A(1)]. It is an offence to fail to comply with such a notice, maximum penalty $10 000 or imprisonment for 5 years [s 65A(2)].

Under the Act a police officer are able to disclose to any employer or prospective employer that a person has been arrested or reported for a class 1 or 2 offence and provide details of the alleged offence [s 65A(3)(b)].

A person engaged in child-related work who is arrested or reported for a class 1 or 2 offence must disclose this to their employer within 7 days (in the case of an arrest or report prior to commencement of the section – within 7 days of commencement)[s 66(1)]. A person must also, on application for work, disclose if they have been reported for such offences if proceedings have not been finalised [s 66(2)]. Under both of these provisions the maximum penalty is $5000.

Exemptions, modifications and suspensions granted by the Commissioner of police.

The amending Act has inserted Part 5A—Exemptions, modifications and suspensions granted by Commissioner. This deals with the general power of the Commissioner of police, on application (and payment of a fee) of a registrable offender, make a declaration to modify their reporting obligations [s 66B Child Sex Offenders Registration Act 2006 (SA)].

The Commissioner of Police may only make such a declaration if:

  • The relevant offences against were either indecent assault, acts of gross indecency or unlawful sexual intercourse with a person under 17 years; and
  • the registrable offender has been a registrable offender for at least 12 months and has complied with the Act during that period; and
  • the Commissioner is satisfied that the offender does not pose a risk to the safety and well-being of children [s 66B(4)].

The Commissioner of Police may not make such a declaration if:

  • there was more than one victim of the relevant offences; or
  • the offender was more than 10 years older than the victim at the time of any relevant offence; or
  • the victim of any relevant offence was less than 14 years old; or
  • any relevant offence was committed in connection with child-related work engaged in by the offender [s 66B(5)].

The Commissioner of Police may refuse to consider an application to make such a declaration unless the registrable offender undergoes a risk assessment at their own expense [s 66B(2) –(3)]. The Commissioner must take into account any risk assessment, any other offending, any victim impact statement and the sentencing remarks relating to each relevant offence [s 66B(7)].

If the Commissioner does make a declaration under this part, the Commissioner can attach conditions to it [s 66B(6)].

The Commissioner of Police may also, with or without application, suspend a person’s reporting obligations on the basis that they have a disability that makes it impossible for the person to satisfy his or her reporting obligations and do not pose a risk to the safety and well-being of children [s 66C].

The Commissioner of Police may only revoke such a declaration if there is a change to the grounds on which it was made or the person is charged with any class 1 or 2 offences. The Commissioner must give the registrable offender written notice, as soon as practicable, of any declaration or revocation, or variation [ s66D(4)].

Applications can not be made within 12 months of each other by the same registrable offender [s66D(1)(c)].

Applicants can appeal decisions of the Commissioner of Police under this Part to the Administrative and Disciplinary Division of the District Court [s 66E].

Publication of information about registrable offenders

The Commissioner can publish information about registrable offenders where the registrable offender’s whereabouts is unknown and the registrable offender either has failed to comply with reporting obligations or has provided false or misleading information [see ss 66F-H Child Sex Offenders Registration Act 2006 (SA)].

The Act contains prohibitions on inciting animosity or harassing people identified as offenders [s 66I] and prohibitions on the publication of identifying information without written approval from the Minister [s 66J].

Change of name of registrable offender

A registrable offender must obtain the Commissioner of Police’s written permission before registering, or applying to register, to change their name. The maximum penalty for this is $10 000 or imprisonment for 2 years [s 66K].

Information provided to parents or guardian

A registrable offender who stays overnight in a house where there is a child or generally resides in the same household as a child must tell the parent or guardian of that child that they are a registrable offender and what the offence/s were that caused them becoming a registrable offender. The maximum penalty for failing to do this is $25 000 or imprisonment for 5 years [s 66L].

Search powers

Police have extensive powers to search premises of registrable offenders to ensure compliance with the Act. Included in this is the ability to break open and search cupboards etc, search computers and other devices [s 66M]. If a computer or other device requires a password to be inspected, the registrable offender must provide that, maximum penalty, imprisonment for 2 years [s 66M(2)].

Effect of spent convictions

The fact that an offence in respect of which a registrable offender has been found guilty becomes spent does not affect the status of the offence as a registrable offence for the purposes of the Child Sex Offenders Registration Act 2006 (SA) in respect of the registrable offender [s 71].

Child sexual assault  :  Last Revised: Wed Oct 25th 2017
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