TERMS OF REFERENCE

1.1 On 2 December 1996, the Attorney-General, the Hon JW Shaw QC, gave the Commission a reference to

review the operation of section 409B of the Crimes Act 1900 taking into account the purpose for which it was enacted and recent case law.

BACKGROUND TO THE REFERENCE

1.2 Between 1990 and 1995, the District Court of New South Wales granted a permanent stay of proceedings in a number of cases of sexual assault in which the complainant was a child. This was on the ground that the accused could not receive a fair trial because evidence he wished to lead was prohibited by s 409B(3), for example:

• evidence the complainant had been sexually assaulted in the past;¹
• evidence of allegedly false allegations of sexual assault in the past.²

1.3 In R v PJE,³ the Court of Criminal Appeal strongly criticised the trial judge’s action in having granted a stay. It held that the court’s jurisdiction to stay proceedings for unfairness does not extend to the court’s perception of unfairness arising from the operation of a valid statutory provision such as s 409B. In rejecting special leave to appeal, the High Court upheld the decision of the Court of Criminal Appeal. Nevertheless, Chief Justice Brennan, said:

It is the unanimous view of the Court, however, that the provisions of s 409B of the Crimes Act clearly warrant further consideration by the legislature in the light of the experience of its operation.⁴

THIS PAPER

1.4 This paper is an issues paper. It is designed to provoke comment. The first section of the paper outlines s 409B, describes how it works and lists some examples of its operation. It outlines the relevant provisions of the Evidence Act 1995 (NSW), explains why s 409B was enacted and distinguishes it from other Australian laws that restrict the admission of sexual reputation and experience evidence in sexual assault proceedings. The second section of the paper outlines views about the operation of s 409B. In the third section, the Commission identifies several options for reform, outlines the arguments for and against the options and asks questions about what changes, if any, should be made.

WHAT IS SECTION 409B?

An evidentiary provision

1.5 Section 409B is an evidentiary provision that limits the introduction of evidence about a complainant’s sexual reputation and experience in criminal proceedings. Laws for this purpose were enacted in all Australian jurisdictions in the 1970s and 1980s to modify the common law rules, under which a complainant (nearly always a woman) in a rape trial could be cross-examined about her credit and thus her reputation and character where that related to credit. Cross-examination about a complainant’s prior sexual experience with the accused or with other men was often permitted on this basis. However, this kind of evidence frequently did little more than embarrass, distress and humiliate complainants and prejudice juries against them rather than in any reasonable sense affect their credibility. There was a perception that cross-examination which merely humiliated and insulted was permitted far too often. This was not only unjust to the complainants but discouraged genuine complaints of rape from being brought forward.

What does section 409B say?

Absolutely prohibits reputation evidence

1.6 Section 409B(2) absolutely prohibits evidence of a complainant’s sexual reputation in prescribed sexual offence proceedings.

Limits evidence of sexual experience

1.7 Section 409B(3) severely limits evidence of a complainant’s sexual experience. Evidence of a complainant’s sexual experience (or lack of it) or his or her sexual activity (or lack of it) cannot be admitted unless two barriers to admission are overcome:

• the evidence fits within one of the exceptions to the prohibition listed in the section; and
• the probative value of the evidence outweighs any distress, humiliation or embarrassment the complainant might suffer as a result if its admission.

1.8 The exceptions to the prohibition are:

• evidence of the complainant’s sexual experience or activity (or lack of it) at or about the time of the alleged offence and alleged to form part of a connected set of circumstances in which the alleged offence was committed (s 409B(3)(a));
• evidence relating to an existing or recent relationship between the complainant and the accused (s 409B(3)(b));
• where the accused denied intercourse took place - evidence relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the alleged intercourse (s 409B(3)(c));
• evidence relevant to whether, at the time of the alleged offence, the complainant had a disease that the accused did not have at any relevant time or whether, at any relevant time, the complainant did not have a disease that the accused had at the time of the alleged offence (s 409B(3)(d));
• evidence relevant to whether the allegation of the offence was first made after a realisation of pregnancy or disease (s 409B(3)(e));
• where the Court is satisfied that the prosecution has disclosed or implied sexual experience or activity (or lack of it) on the part of the complainant and the accused might be unfairly prejudiced if the complainant could not be cross-examined about it - evidence given by the complainant in cross-examination (s 409B(3)(f)).

1.9 If the complainant’s sexual experience or activity (or lack of it) has been disclosed or implied by the prosecution, the accused can cross-examine the complainant if he might otherwise be unfairly prejudiced. Whether or not evidence is admissible under s 409B(2) or (3) is decided by the judge in the absence of the jury (s 409B(6)). The nature and scope of the evidence that is admissible and why it is admissible must be recorded in writing (s 409B(7)).

HOW DOES SECTION 409B(3) WORK?

Counsel makes an application

1.10 If counsel wishes to raise evidence under s 409B, he or she must, in theory, make an application to the judge. It should be in writing. The Court of Criminal Appeal has held that counsel should ensure that there is a proper record of material on which a ruling on admissibility is sought.

Preferably, a detailed written statement of the evidence proposed to be led or extracted in cross-examination should be handed to the trial judge and marked for identification. In that way, there should be no room for any later argument in the trial or upon appeal as to what had been permitted or rejected pursuant to s 409B.⁵

Trial judge decides if evidence is admissible

1.11 If an application to admit sexual experience evidence is made, the trial judge considers it in the absence of the jury. The evidence must be admissible under the general law before it can be admitted under s 409B, that is, it must be admissible under the Evidence Act 1995 (NSW). It can only be admitted if it fits within one of the exceptions, which, the Court of Criminal Appeal has consistently said, should be construed broadly.

The Court has held many times that the categories defined by s 409B(3) should be construed broadly when the material in question is otherwise relevant to the issues of the case.⁶

1.12 If the evidence fits within one of the exceptions, its probative value must outweigh any distress, humiliation or embarrassment the complainant might suffer as a result of its admission. Before the evidence is heard, the trial judge must state the nature and scope of the evidence and the reasons for admitting it.

Some examples

Cases in which evidence of sexual experience was admissible

1.13 The following cases are examples of cases in which the Court of Criminal Appeal held that the disputed evidence was admissible.

• R v Morgan.⁷ Evidence that the complainant had sexual intercourse with her boyfriend within an hour or two of having allegedly been sexually assaulted by someone else was admissible as relevant to whether or not the assault took place. It is “properly open to a jury of men and women to conclude that for her to have such sexual intercourse an hour or two after forced intercourse is, in the relevant sense, unlikely or contrary to human experience”.⁸
• R v Henning.⁹ The complainant had been abducted and assaulted by five men. She suffered serious injuries. Evidence that one of the accused had gone to school with her and had had sexual intercourse with her then and on about 20 occasions since was admissible as relevant to the complainant’s credibility because she had said she had not seen the accused between leaving school and a month before the alleged assault.
• R v Dimian.¹⁰ Evidence that the complainant had had sexual intercourse with her boyfriend six hours before the alleged assault was admissible, on application by the defence, to explain her distress, dishevelment and injury immediately after the alleged assault.
• R v Warner.¹¹ The Court of Criminal Appeal overturned the trial judge’s refusal to allow evidence that the complainant had consensual sex with the accused a month after the alleged assault.

Cases in which evidence of sexual experience was inadmissible

1.14 The following cases are examples of cases in which the Court of Criminal Appeal held that the disputed evidence was not admissible.

• R v White.¹² Evidence of a conversation at the beach and over coffee shortly before the alleged assault between the complainant and the accused in which the complainant had discussed the fact that her boyfriend had left her after finding her in bed with a body builder was not admitted. The Court of Criminal Appeal expressed doubt the complainant could have been cross examined about having had sexual intercourse with the body builder even under the common law rules.
• R v Hunter.¹³ The accused was not permitted to cross-examine the complainant after she had denied having had sexual intercourse at the relevant time to ascertain whether or not she might have done so: “it was precisely this sort of fishing expedition which s 409B . . . was designed to prevent”.¹⁴
• R v McGarvey.¹⁵ Evidence that the accused knew that the complainant had consented to sexual intercourse with 20 other men on an unconnected occasion and that that had led the accused to believe the complainant was consenting to the alleged assault was not admissible: “That ... is the very sort of evidence which s 409B was designed to exclude”.¹⁶
• R v Costello.¹⁷ The accused was not permitted to cross-examine the complainant about:

- her alleged participation in group sex 12 months before the alleged assault.

EVIDENCE ACT RESTRICTIONS

1.15 Section 409B restricts the admissibility of evidence that would otherwise be admissible. In New South Wales, the Evidence Act 1995 (NSW) governs admissibility of evidence. Generally speaking, evidence is admissible if it is relevant and does not fit within one of the exclusionary rules that apply, for example, rules about hearsay evidence, opinion evidence and so on.¹⁸ The Evidence Act 1995 (NSW) restricts the admissibility of evidence about a complainant’s sexual reputation and experience.

• Evidence relevant to credibility. Although evidence relevant only to a witness’s credibility is not, generally speaking, admissible,¹⁹ there are a number of exceptions. One of the exceptions applies to evidence led in cross-examination if it has “substantial probative value”.²⁰
• Propensity evidence. Under the Evidence Act 1995 (NSW), evidence of character, reputation or conduct is not admissible to prove a person has a tendency to act in a particular way unless sufficient notice is given to the other party and the court thinks that the evidence (by itself or together with other evidence) would have “significant probative value”.²¹ This is so even if such evidence is admitted for another purpose.²²
• Coincidence evidence. “Coincidence evidence” is also restricted under the Evidence Act 1995 (NSW) s 98. Evidence that two or more related events (namely, events that are substantially and relevantly similar and occur in circumstances that are substantially similar) occurred is not admissible to prove that, because of the improbability of their occurring coincidentally, a person did a particular thing or had a particular state of mind unless sufficient notice is given to the other party and the court thinks that the evidence (by itself or together with other evidence) would have “significant probative value”.
• Trial judge has a residual discretion to exclude evidence. The Evidence Act 1995 (NSW) s 135 gives the court a discretion to exclude evidence that would otherwise be admissible in certain circumstances. A court may exclude evidence if “its probative value is substantially outweighed by the danger that the evidence might:
  
  (a) be unfairly prejudicial to a party; or

  (b) be misleading or confusing; or

  (c) cause or result in undue waste of time”.

WHY WAS SECTION 409B ENACTED?

Section 409B was part of a package of sexual assault reforms

1.16 Section 409B was one part of a significant package of sexual assault law reforms. The Crimes (Sexual Assault) Amendment Act 1981 (NSW) included a number of substantive and procedural reforms, including:

• the common law offence of rape was abolished and 4 categories of sexual assault were created; ²³
• sexual intercourse was defined to include vaginal and anal intercourse, the insertion of parts of the body other than a penis, and objects, into a vagina or anus, oral sex and the continuation of any one of these;
• the immunity from prosecution of husbands and boys under 14 was abolished;
• provision for proceedings to be held in camera in some cases;
• mandatory warning to the jury that there might be good reasons for delaying or not making a complaint about an assault and that this does not necessarily show the allegation is false; and
• abolition of the rule that the judge should warn the jury that it would be dangerous to convict on the uncorroborated evidence of the victim alone.²⁴

1.17 The package of reforms was designed:

to protect the victims of rape from victimisation under the legal process; to encourage rape victims to report offences to the authorities; to facilitate the administration of justice and the conviction of guilty offenders; at the same time, to preserve the rights of the accused; and to serve an educative function in further changing community attitudes to sexual assault.²⁵

Rationale of section 409B

1.18 Section 409B prohibits evidence of a complainant’s sexual reputation and limits the circumstances in which a complainant might be questioned about his or her sexual experience. Before s 409B became law (and before the Evidence Act 1995 (NSW)), evidence of a woman’s sexual behaviour was regarded as being capable of “relevance”:

Where it established a relevant relationship which was existing at the time of the offence charged... The evidence of other sexual activity at which the legislation was expressly directed was that which had previously been admitted in relation to issues of the complainant’s credit, her consent to sexual intercourse and the accused’s belief that she was consenting ... Such evidence was usually (but not necessarily) of sexual activity beween a female complainant in a rape case and men other than the accused.²⁶

1.19 These notions of “relevance” were based on outmoded ideas about women’s sexuality and sexual behaviour. Rape trials became an ordeal for the complainant who sometimes had to endure cross-examination about intimate details of her sexual life and was subjected to accusations of immorality.

1.20 In his second reading speech, the Attorney-General said:

The deficiency of the present law is that a victim may be cross-examined about sexual behaviour with other persons, possibly years before, in circumstances quite irrelevant to the case in question ... The fear of this type of cross-examination has been a potent cause of reluctance on the part of women to report sexual assault. The old law and practice, therefore, has actually been a cause of crime. It has discouraged the reporting of crime, and encouraged criminals in the knowledge that they could escape prosecution.²⁷

OTHER LAWS RESTRICTING SEXUAL REPUTATION AND EXPERIENCE EVIDENCE

Sexual reputation evidence

1.21 In every Australian jurisdiction, except the Northern Territory, sexual reputation evidence, or “general reputation evidence as to chastity” is inadmissible. In the Northern Territory, it may be admitted with the leave of the court.²⁸

Sexual experience evidence

1.22 In every Australian jurisdiction there are legislative limits on the admissibility of evidence about a complainant’s previous sexual experience. In Victoria, for example, evidence of the complainant’s “sexual activities” is inadmissible; in Queensland, the Australian Capital Territory and the Northern Territory, evidence of the complainant’s sexual activities (or experience) with persons other than the accused is inadmissible. In every jurisdiction except New South Wales, however, evidence that would otherwise be inadmissible is admissible if the court gives leave. There is a residual discretion in the court to admit the evidence subject to legislative guidelines:

• if it has “substantial relevance to the facts in issue or is a proper matter for cross-examination as to credit”;²⁹
• if it has “substantial relevance to the facts in issue” and its probative value “outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission”;³⁰ or
• if refusal to allow the evidence “would prejudice the fair trial of the accused person”.³¹

SECTION 409B(3) DISTINGUISHED

1.23 The approach to restricting sexual experience evidence taken by the New South Wales Parliament is different from that taken by other Australian Parliaments. Section 409B provides that sexual experience is inadmissible unless it fits within one of the exceptions, or “gates” to admissibility. There is no residual discretion in the judge to admit evidence that does not fall within the exceptions. This was a deliberate decision.

The Government has deliberately opted for this course in view of the longstanding practice of the courts to allow wide-ranging and really irrelevant cross-examination as to prior sexual history.³²

1.24 In all other Australian jurisdictions (and in England) sexual experience evidence is admissible with leave of the court. In most other Australian jurisdictions (and in England) the key to admissibility is “relevance”. Formulations of the connection between the evidence and the issues in the case needed to satisfy the test of relevance include that the evidence must:

• be part of the transaction;
• render another fact probable;
• increase the probability of the existence of the fact, however marginally;
• be of sufficient probative value; and
• be submitted to a balancing of probative value and other policy considerations.³³

1.25 In New South Wales and the Australian Capital Territory, and in federal courts, evidence is relevant if it is evidence that:

if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.³⁴

1.26 If its probative value is substantially outweighed by dangers associated with admitting it, the court has a residual discretion to exclude it.³⁵

FOOTNOTES

1. R v Morris (Court of Criminal Appeal, NSW, 18 October 1990, CCA, 70005/89, unreported).

2. R v McIlvanie (Court of Criminal Appeal, NSW, 30 August 1994, CCA, 93/11/1405, unreported).

3. R v PJE (Court of Criminal Appeal, NSW, 9 October 1995, CCA, 060216/95, unreported); cf R v Morgan (1993) 30 NSWLR 543 at 554.

4. Grills v R; PJE v R (High Court of Australia 9 September 1996 S8/96; S154/95, unreported); see also Berrigan v R (High Court of Australia, 23 November 1995, S 59/94, unreported).

5. R v McGarvey (1987) 10 NSWLR 632.

6. R v Dimian (1995) 83 A Crim R 358 at 365.

7. R v Morgan (1993) 30 NSWLR 543.

8. R v Morgan (1993) 30 NSWLR 543 at 550.

9. R v Henning (Court of Criminal Appeal, NSW, 11 May 1990, CCA, 406/88, unreported).

10. R v Dimian (1995) 83 A Crim R 358.

11. R v Warner (Court of Criminal Appeal, NSW, 7 May 1997, CCA, 60349/96, unreported).

12. R v White (1989) 18 NSWLR 332.

13. R v Hunter (Court of Criminal Appeal, NSW, 12 August 1992, CCA, 060656/91, unreported).

14. Per Mathews J at 24.

15. R v McGarvey (1987) 10 NSWLR 632.

16. Per Hunt J at 635.

17. R v Costello (Court of Criminal Appeal, NSW, 15 December 1995, CCA, 060114/95, unreported).

18. Evidence Act 1995 (NSW) Part 3.

19. Section 102. This reflects the common law position.

20. Section 103. In deciding whether or not it does, the court must have regard to, at least:

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or event to which the evidence relates were done or occurred.

22. Section 95.

23. They are: sexual assault category 1 - inflicting grievous bodily harm with intent to have sexual intercourse; sexual assault category 2 - inflicting bodily harm etc with intent to have sexual intercourse; sexual assault category 3 - sexual intercourse without consent; sexual assault category 4 - indecent assault and act of indecency.

24. See also Evidence Act 1995 (NSW) s 164.

25. New South Wales - Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4758.

26. R v Beserick (1993) 30 NSW LR 510 at 518.

27. New South Wales - Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4763.

28. Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(1).

29. Evidence Act 1968 (Vic) s 37A(3)(a); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4.3; see also Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(1).

30. Evidence Act 1906 (WA) s 36BC(2)(b).

31. Evidence Act 1971 (ACT) s 76G(3)(b).

32. New South Wales - Parliamentary Debates (Hansard) Legislative Assembly 18 March 1981 at 4763.

33. Australia - Law Reform Commission Evidence (Report 38, 1987) Appendix C at para 10,

34. Evidence Act 1995 (NSW) s 55(1); Evidence Act 1995 (Cth) s 55(1).

35. Evidence Act 1995 (NSW) s 135; Evidence Act 1995 (Cth) s 135.