Accused of something from thirty years ago: how historical sexual assault allegations are actually prosecuted in NSW

There is no statute of limitations on serious sexual offences in NSW. A person can be charged in 2026 over conduct alleged to have occurred in 1994, and the passage of time does not itself provide any answer. For someone who receives that phone call – detectives asking to arrange an interview about events from decades ago – the disorientation is total. There are no records. No witnesses. No way to reconstruct where you were on a particular afternoon in a particular year.

These prosecutions are difficult for everyone involved, including the courts. Understanding how they are actually built, and where the real contests lie, is essential for anyone facing one.

Why there are so many more of them

The trend is unambiguous. BOCSAR’s recorded crime statistics show sexual assault reports rose 7.9 per cent over the two years to December 2025), continuing a long-term pattern in which sexual assault reports increased 145.5 per cent over the decade to 2025 – an average rise of around 10.5 per cent each year. BOCSAR attributes much of both the short and long-term increase to increased reporting rather than increased offending.

One driver is structural. Since the Sexual Assault Reporting Option was introduced in January 2023, online reporting has grown substantially, making up 22.8 per cent of all sexual assault reports in the year to March 2025 and accounting for a large share of the decade-long increase. Alongside that sit the Royal Commission into Institutional Responses to Child Sexual Abuse, the removal of limitation periods, and a substantial cultural shift in willingness to report.

None of that tells you anything about any individual allegation. It does explain why matters that would once never have reached a police station now regularly reach a District Court.

The charge is the law as it stood then

This is the first thing that surprises people. A person is charged under the offence provisions that existed at the time of the alleged conduct, not the provisions in force today. That can mean repealed sections, different elements, and different maximum penalties – and it means the applicable maximum penalty is the one that applied then, which is sometimes lower and sometimes considerably higher than the modern equivalent.

The modern provisions give the shape of the offences: section 61I of the Crimes Act 1900 (NSW) for sexual intercourse without consent, and provisions such as section 66C dealing with sexual intercourse with a child aged between 10 and 16. But in a historical matter, the first task is always to identify precisely which version of which section applied on the alleged dates, because that determines the elements the Crown must prove.

It also matters enormously for consent. The affirmative consent reforms that commenced in 2022 changed what the prosecution must establish about a defendant’s state of mind – but they do not apply retrospectively. A historical allegation is assessed against the consent law of its own era, which is a materially different test from the one we set out in our article on what the current NSW consent law requires the prosecution to prove.

What the Crown case usually consists of

Almost always, the complainant’s account and very little else. There is rarely forensic evidence, rarely contemporaneous documentation, and rarely an independent witness to the alleged act itself.

What the Crown builds around it are complaint evidence – accounts the complainant gave to others, sometimes years later – and context evidence about the relationship and the circumstances. Where there are multiple complainants, the Crown will usually seek to have the counts tried together and to use each complainant’s evidence in relation to the others.

That is where the fight is. Tendency and coincidence evidence has been the most heavily litigated area of criminal evidence law in NSW for a decade, and the Judicial Commission maintains extensive material on it, including analysis of the tendency and coincidence provisions and their operation in child sexual assault matters. The provisions were amended to make admission easier in child sexual offence proceedings, but the Court of Criminal Appeal continues to intervene where evidence has been wrongly admitted – as the Commission’s digest of recent sexual assault law records, including a 2025 decision holding that the prejudicial effect of tendency evidence was not cured by jury directions.

Whether counts are tried together or separately frequently determines the outcome of the entire proceeding. It is the single most important interlocutory battle in a multi-complainant historical matter.

Delay: what it does and does not give the defence

Delay causes real forensic disadvantage. Alibi witnesses die. Premises are demolished. Employment, school and medical records are destroyed under ordinary retention policies. Memory degrades and reconstructs. A person cannot meaningfully answer an allegation about an unspecified afternoon in an unspecified month thirty years ago.

The law recognises this, but less generously than it once did. Directions about forensic disadvantage arising from delay remain available, and warnings about the reliability of evidence may be sought in appropriate cases – the Public Defenders’ published material on preparing and conducting sexual assault trials surveys the circumstances in which the Court of Criminal Appeal has accepted such warnings were required. But legislative reform has restricted the terms in which delay can be commented upon, and a judge cannot suggest to a jury that delay in complaint means the complaint is false.

In an extreme case, a permanent stay may be sought on the basis that a fair trial is impossible. Those applications are rarely granted and require the disadvantage to be genuinely incurable rather than merely serious. But they exist, and identifying whether a case is one of the rare ones is work that has to be done early.

The evidence you cannot lead

This is where historical matters can feel deeply unfair to defendants, and where the criticism from within the profession has been sustained.

The provision formerly known as section 293 of the Criminal Procedure Act 1986, now section 294CB, prohibits the admission of evidence relating to the sexual reputation or sexual experience of a complainant in proceedings for a prescribed sexual offence, subject to narrowly drawn exceptions. Unlike every other Australian jurisdiction, the NSW provision has been applied without a general discretion to admit such evidence in the interests of justice.

The most striking illustration came in a District Court matter where the trial judge found the evidence disclosed a tendency on the part of the complainant to make false sexual allegations, and considered it significantly probative – but held that the exclusion applied regardless, observing that Parliament could not have foreseen the injustice occasioned. The Court of Criminal Appeal upheld the exclusion. Whatever view is taken of the policy, the practical consequence for a defendant is that some material which would plainly be relevant simply cannot be put before the jury.

What defence work actually looks like

It is documentary before it is anything else. The first task is a rigorous chronology: where the complainant and the accused each lived, worked and studied on the alleged dates, and whether the alleged conduct was even physically possible. Old employment records, school records, tenancy records, travel records, photographs, military or immigration records and family correspondence all become significant, and some can still be obtained if sought promptly.

The second is the account itself. Historical allegations are usually given more than once – to a family member, a counsellor, a police officer at an initial report, and then in a formal statement. Obtaining and comparing those accounts, and examining how the detail developed, is central. So is understanding what prompted the report and when, which is often relevant in ways that have nothing to do with the complainant’s honesty.

The third is the tendency and severance argument, which as noted is frequently the whole case. And the fourth is the interview – or rather, not participating in one. In historical matters an accused is being asked to give an account of events decades ago with no ability to check anything. Innocent errors about dates, addresses and sequence are inevitable, and they will be presented at trial as lies. Our article on how the right to silence actually works in NSW explains why declining an interview until you have advice is not an admission of anything.

These cases are defensible

It is worth saying plainly, because people facing them often assume otherwise. Historical matters are contested successfully. Our case studies on a total jury acquittal in a complex consent matter and on a charge of sexual intercourse with a child aged 14 to under 16 being withdrawn after defence representations both illustrate outcomes achieved through careful, early forensic work rather than through anything happening at the door of the court.

The other reality is the sentencing consequence. Convictions in this category attract full-time custody in the ordinary course, carry registration obligations under the child protection offender scheme where the offence is a registrable one, and carry lifelong employment and reputational consequences. The stakes justify the preparation.

If police have contacted you

Do not attend an interview before speaking to a lawyer. Do not contact the complainant or any member of their family, directly or through anyone else – that conduct can found intimidation or attempting to pervert the course of justice charges, entirely separate from the substantive allegation. Do not discuss the matter on social media or in messages.

Do start assembling records immediately. Documents that still exist today may not exist in a year, and in a historical matter the documentary record is very often the only thing capable of contradicting an account.

Contact Us

An allegation about conduct decades ago is not a weak case simply because it is old. It is a case in which the ordinary tools of proof are missing on both sides, where evidentiary rulings about tendency and severance frequently decide the outcome, and where the material capable of answering the allegation is disappearing while you decide what to do.

At National Criminal Lawyers, we defend sexual offence matters including historical allegations across the NSW District Court and Court of Criminal Appeal. We know how to build a chronology that can be tested, how to run tendency and severance arguments properly, and how to protect your position from the first contact by police.

Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.