INTRODUCTION
2.1 Although there has been considerable criticism of the operation of s 409B, there is conflicting opinion as to its shortcomings and how they should be overcome. Judges of the Court of Criminal Appeal have been highly critical of s 409B because it leaves no room for the exercise of judicial discretion in cases where its absence apparently led to injustice. The Court has identified a number of particular problems of interpretation. Two surveys of the operation of s 409B found that the provision has, by and large, achieved its goals.1 An analysis of cases shows that the provision seems to implement its policy goals in cases in which the issue is consent but that it has gone beyond this in cases in which the accused denied intercourse took place, especially in cases where the complainant has allegedly made false allegations of sexual assault on an earlier occasion.
SECTION 409B APPROACH MAY BE INAPPROPRIATE
2.2 The New South Wales Parliament deliberately opted for the s 409B approach to experience evidence, namely, a ban on evidence that does not fit within one of the exceptions, in favour of the discretionary provisions introduced in other jurisdictions. This approach has been criticised academically and judicially. Much of the criticism has been directed not at the underlying policy of the provision but at the way in which the policy was implemented. The New South Wales Court of Criminal Appeal has, in a number of cases, questioned the wisdom of the Parliament’s assumption that, in framing the section, they could foresee all the possible circumstances in which an exception to the general rule of exclusion might be appropriate. In R v M, for example, the Court said:
The legislature has endeavoured to foresee all the exceptions which justice requires and to provide specifically for them. It has excluded all others. It has taken the risk that experience will throw up circumstances, which it has failed to foresee and expressly provide for, in which denial of evidence disclosing or implying that the complainant has or may have had sexual experience or lack of sexual experience, or has or may have taken part or not taken part in any sexual activity, results in injustice to an accused at his trial. The wisdom of so Draconic a restriction upon judicial discretion and of so bold an assumption of perfect prescience may be questioned. The courts must apply, however, the law as enacted.2
Academic criticism also focusses on the difficulty inherent in identifying in advance all the possible situations that should be excepted from the general rule. Accepting that there are dangers associated with sexual history evidence and that there are sound policy arguments for inadmissibility, Stephen Odgers concludes that a general rule of exclusion is inappropriate. Indeed
it is highly dangerous to attempt to formulate specific exceptions to such a prohibition since it is impossible to predict in advance all the ways in which evidence of a complainant’s sexual history might be properly relevant to what are the real issues in the case.3
SECTION 409B RAISES PROBLEMS OF INTERPRETATION
Introduction
2.3 Section 409B has given rise to a number of problems of interpretation:
- does sexual “experience” and “activity” include sexual abuse;
- does s 409B(5) provide an exclusive test of cross-examination;
- what constitutes an existing or recent relationship; and
- does “injury” include a child’s broken hymen?
Does sexual experience include sexual abuse?
2.4 In a number of recent cases the evidence that has been held to be inadmissible under s 409B has been evidence of sexual abuse the complainant had suffered, or claimed to have suffered, before the alleged assault. This is because the earlier assault (or lack of it) is said to fall within the prohibition on evidence that “discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity”. In R v PJE, however, Sperling J, in passing, questioned this assumption:
it is not self evident to me that such sexual abuse or the lack of it is within the ambit of s 409B. The phraseology may be apt to apply only to prior sexual experience or lack of it which was consensual. 4
Does section 409B(5) provide an exclusive test of cross-examination?
2.5 Section 409B(5) provides for the accused to cross-examine the complainant if the prosecution has disclosed or implied sexual experience (or lack of it) or sexual activity (or lack of it) and the accused might otherwise be unfairly prejudiced. In R v Henning,5 the Court of Criminal Appeal considered whether s 409B(5) provided the exclusive test of cross-examination and held that it did not; rather, it is right to assume:
if the cross-examination were permissible at general law, and the case otherwise fell within s 409B(3), then, quite apart from s 409B(5) it should have been allowed.6
What constitutes an existing or recent relationship?
2.6 One of the exceptions to the prohibition on sexual reputation and sexual experience evidence is evidence relating to an existing or recent relationship between the complainant and the accused. What constitutes a relationship has been discussed in a number of cases. In R v White, the Court of Criminal Appeal favoured the narrower definition of the word in dictionaries: “an emotional connection between people, sometimes involving sexual relations”.7 In R v Henning, however, the Court downplayed the importance of the emotional connection:
we do not consider in the circumstances that the emotional aspect is as important as the sexual one. We are, after all, considering the matter in the context of an alleged sexual assault.8
2.7 This was taken further in R v Beserick,9 in which the Court held that evidence of sexual activity, other than that charged, between a complainant child and the accused is admissible as evidence of an existing or recent relationship in order to establish the accused’s guilty passion at the time of the offence.
SECTION 409B HAS SUCCESSFULLY IMPLEMENTED POLICY
2.8 There is general consensus that the underlying policy of s 409B, namely that complainants in sexual assault proceedings should be protected from irrelevant and offensive questions about their sexual lives, is sound. Despite the problems identified in the paragraphs above, s 409B has, by and large, implemented this policy successfully. There have been two surveys of the operation of s 409B.
- Bureau of Crime Statistics and Research. In 1987, the Bureau of Crime Statistics and Research published a report of its study, over an 18 month period (from 14 July 1981 to 13 January 1983), of transcripts of all sexual assault categories 1 to 3 proceedings.10
- Heroines of Fortitude. In November 1996, the New South Wales Department of Women published Heroines of Fortitude: the experiences of women in court as victims of sexual assault. It reported a study, the objective of which was to examine the effectiveness of the 1981 reforms, of all sound recorded sexual assault proceedings in the District Court of New South Wales from 1 May 1994 to 30 April 1995.11
2.9 The Bureau of Crime Statistics reported a significant reduction in the number of cases in which the complainant’s sexual experience was raised and some difference in the kind of sexual experience admitted. At committal hearings, the number of cases in which the complainant’s prior sexual experience was raised fell by almost half, from 65.7% to 33.2% of cases. In higher court proceedings, there was also a decline in the number of cases in which the complainant’s sexual experience was raised, from 68% to 40.6% of cases. In addition, where sexual experience was raised at committal, the complainant was asked fewer questions than before.12 There was also a qualitative difference in the kind of prior sexual experience that was admitted at committal hearings and in higher courts. The researchers for Heroines of Fortitude concluded that the position of a complainant giving evidence in sexual assault cases has remained fairly constant since the earlier study.
CASES WHERE THE ISSUE IS CONSENT
2.10 An analysis of cases which reached the Court of Criminal Appeal in which consent (or belief in consent) is the issue shows that s 409B appears to be achieving its goals. Section 409B provides for two exceptions to the general exclusion of sexual history evidence in cases where consent is the issue. Evidence may be admitted if it is evidence of:
- sexual activity on the part of the complainant that is part of a connected set of circumstances with the alleged offence (s 409B(3)(a)); and
- an existing or recent relationship between the accused person and the complainant (s 409B(3)(b)).
2.11 An examination of cases which reached the Court of Criminal Appeal in which consent was the issue does not support the argument that the section is unduly restrictive, although the issues arising both in trials and on appeal do not necessarily reflect what counsel for an accused person may not have raised because of the existence of s409B. In all of the cases in which a ground of appeal that evidence of prior sexual activity was not admitted when it should have been was successful, the evidence the accused wished to raise was evidence of previous sexual activity with people other than the accused. The evidence that was not admitted was evidence usually of this kind:
- the complainant’s alleged past prostitution;13
- the accused’s belief that the complainant had consented to intercourse with 20 men on another unconnected occasion;14 and
- the complainant having told the accused that her former boyfriend had broken off their relationship because he had found her in bed with a body builder.15
2.12 It appears that the evidence that would have been led in three of these cases would have been indistinguishable from reputation evidence which is prohibited absolutely. The evidence, if led, would have been relevant to consent only on the assumption that, having consented to sexual intercourse with someone else on another occasion, the complainant was likely to have consented on this one. This assumption about consent was what s 409B was seeking to eradicate. In the last case, it is not clear whether the defence case rested on the assumption that having sex with a body builder shows a propensity for having sex with everyone or whether the complainant’s having casual sex with someone else while in a relationship went to her credit. In any case, the Court of Criminal Appeal doubted whether the complainant could have been cross-examined about her intercourse with the body builder even under the common law rules. In none of the cases does it appear that an injustice has been done to the accused as a result of the exclusion of the evidence made inadmissible by s 409B.
ISSUE 4
Do you know of any cases in which consent (or belief in consent) was the issue where s 409B successfully achieved its policy goals?
ISSUE 5
Do you know of any cases in which consent (or belief in consent) was the issue where s 409B resulted in injustice?
CASES WHERE INTERCOURSE IS DENIED
2.13 Section 409B has come under attack in a number of cases in which intercourse was denied. For example, the section has prevented the accused from raising evidence of the complainant’s allegedly false claims of sexual assault in the past. In R v M,16 the Court of Criminal Appeal upheld the trial judge’s decision that evidence of the complainant’s earlier allegations that members of her family had sexually assaulted her was not admissible even though the forensic purpose of the proposed evidence was to establish the complainant’s lack of truthfulness, not her sexual experience or activity (or lack of it) which would have been revealed only consequentially. R v M17 was applied in R v Bernthaler18 in which the Court held that evidence of an adult complainant’s allegedly false claims of sexual assault as a child was not admissible, “unfortunate though it may be for particular accused persons in particular cases”.19 Both cases were quoted with approval in R v PJE,20 in which the defence identified a number of ways s 409B would operate unreasonably and unfairly preventing evidence on collateral matters which may be of importance.
It would prevent an accused from showing a complainant was a compulsive false accuser of sexual misconduct on the part of others. It would prevent the accused from advancing a case that the complainant has made a false complaint in order to divert attention from some other illegal conduct involving sexual activity, such as incest. It would prevent furtherance of a case that the complainant was subject to sexual fantasy arising from an earlier repressed sexual experience.21
FOOTNOTES
1. See below para 2.7.
2. R v M (1993) 67 A Crim R 549 at 558.
3. S J Odgers, “Evidence of Sexual History in Sexual Offence Trials” (1986) 11 Sydney Law Review 73 at 88.
4. R v PJE (Court of Criminal Appeal, NSW, 9 October 1995, CCA, 60216/95, unreported) at 5.
5. R v Henning (Court of Criminal Appeal, NSW, 11 May 1990, CCA, 406/88, unreported).
6. Per Gleeson CJ, Campbell J and Mathews J at 74; compare R v Dimian (1985) 85 A Crim R 358 at 364. The difficulty of s 409B(5) has not yet been resolved.
7. R v White (1989) 18 NSWLR 332 at 341. The difficulty of s 409B(5) has not yet been resolved.
8. R v Henning (Court of Criminal Appeal, NSW, 11 May 1990, CCA, 406/88, unreported) at 76.
9. R v Beserick (1993) 30 NSWLR 510. See also R v Chamilos (Court of Criminal Appeal, NSW, 24 October 1985, CCA, 84/85, unreported).
10. R Bonney, Crimes (Sexual Assault) Amendment Act 1981: Monitoring and Evaluation Report No 3 - Court Procedure (NSW Bureau of Crime Statistics and Research, 1987).
11. There were 150 proceedings of which 111 were defended trials. In every trial, the data collectors listened to the complainant’s evidence, the trial judges’ summing up and the sentencing hearing. Where they were able to identify them from the running sheets, they also listened to voir dires relating to s 409B applications.
12. This may to some extent reflect the unavailability of legal aid to contest committal proceedings.
13. R v Berrigan CLS 1995 HC 276; R v Costello (Court of Criminal Appeal, NSW, 15 December 1995, CCA, 060114/95, unreported).
14. R v McGarvey (1987) 10 NSWLR 632.
15. R v White (1989) 18 NSWLR 332.
16. R v M (1993) 67 A Crim R 549.
17. R v M (1993) 67 A Crim R 549.
18. R v Bernthaler (Court of Criminal Appeal, NSW, 17 December 1993, CCA, 60394/93, unreported)
19. Per Badgery-Parker J, at 6.
20. R v PJE (Court of Criminal Appeal, NSW, 9 October 1995, CCA 60216/95).
21. Per Sperling J at 4.
