(NSW) Mandate a Ground Rules Hearing in Sexual Assault Trials
Author: Alexis Nguyen, Christabelle Natasha, Charlie Byrne, Alanah Bowden & Alex Faehrmann | Publish date: 18/9/2026
CW: Sexual violence
P: In NSW, courts are not required to hold a ground rules hearing (GRH) before an adult complainant gives evidence in sexual offence trials.
S: The NSW Attorney-General should amend the Criminal Procedure Act 1986 (NSW) to insert a new section to require courts to hold a GRH before an adult complainant gives evidence in sexual offence trials.
E: Women’s Legal Service NSW (2024): ‘GRH should be mandated in all sexual offence trials across all Australian states and territories.’
Problem Identification:
Section 140 of the Criminal Procedure Act 1986 (NSW) enables the court to order a conference between parties before a trial to identify legal and evidentiary issues. However, it is not mandatory to hold a GRH for adult complainants of sexual offences.
According to legal researchers Quilter and McNamara (2023), this means that there is no guaranteed opportunity for counsel and the court to ‘discuss and decide how the complainant will be questioned.’ They further stated that this is important ‘to [elicit] reliable evidence and minimis[e] distress’ for adult complainants.
Context:
A GRH refers to ‘a meeting between the judge, parties and intermediary.’ The County Court of Victoria stated that it is ‘a pre-hearing process used to discuss and establish how vulnerable witnesses will be enabled to give their best evidence, by the Court setting ground rules for questioning of the witness.’ This can include discussion of cross-examination. The Australian Law Reform Commission (ALRC) reported that GRHs sit alongside measures such as intermediaries and flexible evidence to ‘help the system meet the communication needs of complainants’.
The ALRC refers to cross-examination as ‘a feature of the adversarial process’. They also noted that it ‘is designed … to allow the defence to confront and undermine the prosecution’s case by exposing deficiencies in a witness’ testimony, including the complainant’s testimony.’ George and Lowik (2025) found that ‘questioning during cross-examination is one of the most retraumatising aspects of going to trial.’ Quilter (2023) emphasised that for complainants, ‘their credibility and their reliability is often put to the test during a trial.’ Sarah Rosenberg from With You We Can (WYWC) noted that during cross-examinations, a ‘victim-survivor is a sitting duck, unprotected.’
According to the Australian Institute of Health and Welfare, a victim-survivor is a ‘person who has experienced FDSV [family, domestic and sexual violence],’ acknowledging that ‘not all people prefer or use [this term] to identify themselves.’
Arguments:
Women’s Legal Service NSW (WLS NSW) reported that ‘the process is really brutal, and victim-survivors are not given a voice - they have no idea what to expect.’ WYWC explained that ‘victim-survivors are expected to deal with a level of [invasive] questioning incomparable to other types of crime.’ An unnamed victim-survivor recorded the experience and stated, ‘even though I am the victim and leading witness, it feels like I am the one on trial.’ According to Quilter (2023), ‘in 73 per cent of trials the complainant was accused of lying about or inventing the sexual offence allegation with ulterior motives.’ In submissions to the 2022 Queensland Women’s Safety and Justice Taskforce, victim-survivors reported ‘that they have been traumatised by the offence … and then retraumatised by the justice system.’
Criminal defence solicitor Paul Blake argued that GRHs were procedurally ‘unfair’ and could lead to ‘prosecution/plaintiffs fixing up witnesses once they know what the defence is planning.’ However, this concern does not hold across all GRH models. In VIC’s complainant scheme, courts may direct counsel to disclose only general topics, not the specific questions themselves. Further, the ALRC reported GRHs extend beyond disclosure of questions and topics, they can encompass ‘any direction regarding the fair and efficient conduct of proceedings, [or] interests of justice’.
Advice/Solution Identification:
WLS NSW, Quilter and McNamara (2023), WYWC and Full Stop Australia have called for mandating GRH ‘in all sexual offence matters’. Quilter and McNamara (2023) stated this could ‘support … effective transparency and accountability between the parties during the … trial’, and ‘[provide] better quality evidence from the complainant’. WYWC added that GRHs would ‘make sure questions test evidence rather than the complainant’s ability to navigate confusing or inappropriate questioning.’
Precedent:
There is domestic and international precedent for mandating GRH in sexual assault trials. In NSW, sexual offence cases involving complainants under the age of 18 are mandated to include a GRH. In VIC, GRHs have been mandated for complainants in relation to a sexual offence charge, regardless of age. In Scotland, GRHs have been mandated for all sexual offence trials.
Public Support of the Solution:
(This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.)
With You We Can (see acknowledgements)
Amanda-Jane George, member of the Expert Advisory Group for the ALRC’s Inquiry and Report, ‘Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence’
Broad Support
Julia Quilter and Luke McNamara (2023) - Experience of Complainants of Adult Sexual Offences in the District Court of NSW: A Trial Transcript Analysis - They have ‘suggest[ed] that consideration be given to introducing a system of mandatory GRHs for all sexual offence trials in NSW.’ However, they have not explicitly called for mandating ground rules hearings.
Domestic Violence NSW (DVNSW) - They have recommended similar reforms to assist victim-survivors through the trial process, including recommending ‘the elimination of cross-examination by perpetrators and the best protection possible for victim-survivor witnesses.’ However, they have not explicitly called for mandating ground rules hearings.
Community Legal Centres NSW (CLS NSW) - They have recommended expansion of justice for victim-survivors, which should ‘incorporate restorative justice processes and practices and to focus these responses around the needs of the victims/survivors.’ However, they have not explicitly called for mandating ground rules hearings in sexual assault trials.
Australia’s National Research Organisation For Women’s Safety (ANROWS) - They have made recommendations on removing barriers which make it difficult, and deter victim-survivors from engaging with the legal system. This included recommending ‘assess[ing] and implement[ing] trauma-informed measures that prioritise the safety and wellbeing of victims and survivors of sexual violence’. However, they have not explicitly called for mandating ground rules hearing trials.
News Coverage:
News.com.au - “‘Wanted attention’: Appalling questions rape survivor was asked”. This article highlighted the compounding trauma faced by a victim in a cross-examination process where the defence asked over 1500 questions, some of which tried to emphasise the clothing worn by the victim on the night of the assault. By: Dr Rachael Burgin | 28 November 2024 - Read the article here.
Law Society Journal - “Study confirms ‘rape myths’ still persist in sexual offence trials”. This article detailed progressive reforms that have been taking place in NSW regarding how victims interact with giving evidence in sexual assault trials. It also emphasised calls to mandate ground rules hearings in sexual assault cases from experts. By: Cat Woods | 16 August 2023 - Read the article here.
ABC News - “In the witness box”. This article outlined how the process of cross-examination had asked inappropriate questions about a victim's clothing and behaviour when she was assaulted. By: Elise Kinsella | 18 July 2021 - Read the article here.
ABC News - “Questioning of sexual assault victims during trials ‘worse’ than in the 1950s, criminologist finds”. This article highlighted how trials continue to be a traumatic experience for victim-survivors, deterring some from reporting sexual offences to police in the first place. By: Elise Kinsella | 25 March 2021 - Read the article here.
Where to go to learn more:
(2024) Response to ALRC Issues Paper: Justice Responses to Sexual Violence | Women’s Legal Service NSW - The submission reported on the lived experience of victim-survivors of adult sexual assault and called for justice system reforms that would better reflect this. This submission directly called for the mandate of ground rules hearings for all sexual assault trials. Read the full report here.
(2023) Experience of Complainants of Adult Sexual Offences in the District Court of NSW: A Trial Transcript Analysis | Julia Quilter and Luke McNamara - This article provided a detailed analysis of the lived experience of complainants of adult sexual offences. This article directly called for the mandate of ground rules hearings for all sexual assault trials. Read the article here.
(2024) Submission to the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 | Full Stop Australia - This submission strongly supported multiple reforms aimed at protecting vulnerable witnesses and complainants during the justice system response. This submission directly called for the mandate of ground rules hearings for all sexual assault trials. Read the article here.
(2025) Rethinking cross-examination: Reducing retraumatisation for victims and survivors of sexual assault | Amanda-Jane George and Vicki Lowik - This article looked at the lived experience of victim-survivors during the trial and proposed solutions to better this experience. Read the article here.
Criminal Procedure Act 1986 (NSW) - Read the full Act here.
Human Perspective:
CW: Describes events of sexual assault and trauma.
Fatima was 19 and attending university when she was raped by a friend. Due to the close nature of her perpetrator, it took Fatima a while to come to terms with what she experienced whilst also processing the intense trauma. Fatima decided to report the assault to the police, and after some investigation, the case went to trial. Fatima was informed of her role as a witness and spent months preparing herself to tell the court what had happened that night. However, going into the trial, Fatima and her lawyer did not know which lines of questioning would be pursued. When the cross-examination began, the lines of questioning were so targeted that she felt just as powerless as she did the night she was raped. The defence continuously asked her intimidating questions to change the narrative of her encounter, such as whether she was sure if she consented or not. They also asked questions that implied she was not trustworthy and was lying about her experience. Each answer invited another traumatising question that felt like an attack. Fatima no longer felt like she was giving evidence of her experience. She felt like she was now responsible for defending herself and was on trial. Fatima and her counsel had further worries, as they noticed that even the judge had not made any attempts to stop the defence's line of questioning. They feared this could sway the jury and their decision. She left the courtroom traumatised again and distraught by the tragic events, wondering whether it was worth reporting to the police at all.
To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.
Conflict of interest/acknowledgment statement:
Sarah Rosenberg (Executive Director at With You We Can) confirmed their support for this recommendation and shared quotes for this brief in a meeting with FORE Good held on 29 July 2026. Shared with their permission.
Dr Sarah Croskery-Hewitt (Head of Research for Women’s Legal Service NSW) confirmed their support for this recommendation and shared quotes for this brief in a meeting with FORE Good held on 30 July 2026. Shared with their permission.
Support
If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com.
Disclaimers
Please review all FORE disclaimers here.
Reference list:
Australian Institute of Health and Welfare. (n.d.). Family, domestic and sexual violence: Glossary. https://www.aihw.gov.au/family-domestic-and-sexual-violence/resources/glossary#V
Australian Law Reform Commission. (2010). Family violence – A national legal response (ALRC Report 114). https://www.alrc.gov.au/publication/family-violence-a-national-legal-response-alrc-report-114/28-other-trial-processes-3/cross-examination-2/
County Court Victoria. (2018). Multi-jurisdictional court guide for the intermediary pilot program: Intermediaries and ground rules hearings. https://www.countycourt.vic.gov.au/files/documents/2018-08/multi-jurisdictional-court-guide-intermediary-pilot-program-2806180.pdf
Criminal Procedure Act 1986 (NSW). https://legislation.nsw.gov.au/view/html/inforce/current/act-1986-209
Full Stop Australia. (2024). Crimes amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024. https://fullstop.org.au/uploads/main/Submissions-Reports/2024/Full-Stop-Australia-Submission-Crimes-Amendment-Strengthening-the-Criminal-Justice-Response-to-Sexual-Violence-Bill.pdf#page=8
George, A.-J., & Lowik, V. (2025). Rethinking cross-examination: Reducing retraumatisation for victims and survivors of sexual assault. Alternative Law Journal, 50(3), 204–211. https://doi.org/10.1177/1037969X251359080
Judicial Commission of New South Wales. (2026). Equality before the law: Bench Book. https://jirs.judcom.nsw.gov.au/public/assets/benchbooks/equality/
Panagopoulos, J., & Dudley, E. (2024, May 13). ‘Civil approach’ to rape trials would set ‘dangerous precedent’. The Australian. https://archive.is/DMHtS#selection-211.5-211.68
Quilter, J., & McNamara, L. (2023). Experience of complainants of adult sexual offences in the District Court of NSW: A trial transcript analysis. NSW Bureau of Crime Statistics and Research. https://bocsar.nsw.gov.au/documents/publications/cjb/cjb251-300/cjb259-report-transcript-analysis-of-nsw-sexual-offences-trial.pdf
Victorian Law Reform Commission. (2021). Improving the justice system response to sexual offences. https://www.lawreform.vic.gov.au/publication/improving-the-justice-system-response-to-sexual-offences-report/21-respecting-victim-survivors-in-sexual-offence-trials/
Women’s Legal Service NSW. (2024). Submission to the Australian Law Reform Commission issues paper: Justice responses to sexual violence. https://www.alrc.gov.au/wp-content/uploads/2024/09/205.-Womens-Legal-Service-NSW.pdf
Women’s Safety and Justice Taskforce. (2022). Hear her voice: Women and girls’ experiences across the criminal justice system. https://www.publications.qld.gov.au/ckan-publications-attachments-prod/resources/5b70727a-cc0e-4e08-8eda-e1434e6e0814/wsjt-hear-her-voice-report-2-volume-1.pdf?ETag=e7ff438db3d61317be5d683ce05e7023
Woods, C. (2023, August 16). Study confirms ‘rape myths’ still persist in sexual offence trials. Law Society Journal. https://lsj.com.au/articles/study-confirms-rape-myths-still-persist-in-sexual-offence-trials/
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