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Retired Supreme Court Justice Carolyn Simpson has been appointed to lead the NSW Law Reform Commission’s review into the law of consent in sexual assault matters.

Simpson, who served in the NSW Supreme court for 24 years and is an acting judge in the NSW Court of Appeal, was appointed part-time Commissioner of the NSW Law Reform Commission on 23 May. Attorney-General Mark Speakman called Simpson a “trailblazer for female lawyers and judges across the state” and said that her “wealth of knowledge acquired during a four decades long career will be invaluable to the Law Reform Commission”.

Speakman and the Minister for the Prevention of Domestic Violence and Sexual Assault, Pru Goward, commissioned the enquiry into section 61HA of the Crimes Act, which governs the law of consent, in the wake of the acquittal of Sydney man Luke Lazarus, the son of a King’s Cross nightclub owner. The announcement came the day after Four Corners aired a story on Lazarus’ trial. The program highlighted the legal and emotional hurdles victim Saxon Mullins faced in taking her allegations to court.

“This young woman’s bravery in coming forward and sharing her story is commendable,” Speakman said of Mullins. “The delay and uncertainty in this matter were unacceptable.”

Mullins, who relinquished her legal right to anonymity to share her story and highlight gaps in the law, was an 18-year-old virgin before her encounter with Lazarus. She endured two trials and two appeals, in which Lazarus was found guilty by a jury then had his conviction quashed by the Court of Criminal Appeal. The appeals court refused Mullins the chance to seek a third trial because it said it would be “oppressive” to put Lazarus through the expense and worry of the process. 

“We can’t legislate for respect, but we can examine whether the consent provisions in our Crimes Act require simplification and modernisation,” Speakman said.

More often than not, it is simply one word against another,” said Tiedt. “It is always difficult to prove a case when the entire case rests on the evidence of just one person.

Laws on the requirement for knowledge of sexual consent vary around the world and even across Australia. Tasmania has Australia’s strictest consent laws, which assume that a person has not consented if they “do not say or do anything to communicate consent”. 

Goward told The Sydney Morning Herald that she believed NSW should follow Tasmania’s lead in requiring “enthusiastic consent”.

“You must explicitly ask for permission to have sex. If it’s not an enthusiastic yes, then it’s a no,” said Goward.

Criminal lawyer and partner at Armstrong Legal Andrew Tiedt said he was sceptical about how the law could be amended fairly to accommodate all stakeholders.

“The law on consent is complicated,” said Tiedt. “The law on knowledge of consent is complicated. It is difficult to explain to juries and difficult for juries to apply to facts as they find them. Making the law clearer while protecting the safety of the community, the rights of complainants and the rights of the accused is an almost impossible task.”

Tiedt noted that, as in the Lazarus case, most sexual assault trials had no eyewitnesses and alcohol was frequently involved. This presented serious evidentiary difficulties for the victim to prove their case over the accused’s version of events, or to reach the standard required for a guilty conviction.

“More often than not, it is simply one word against another,” said Tiedt. “It is always difficult to prove a case when the entire case rests on the evidence of just one person.”

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