1.2 Section 409B has been in operation for approximately 17 years. Recently, controversy arose when, in a number of cases, the section was criticised for causing injustice to the accused. On several occasions, s 409B was brought to the attention of the High Court of Australia, where it received similar criticism, the then Chief Justice of the Court commenting that:

It is the unanimous view of the Court … that the provisions of s 409B of the Crimes Act 1900 (NSW) clearly warrant further consideration by the legislature in light of the experience of its operation.¹

BACKGROUND TO THIS REPORT

1.3 As a result of the High Court’s comments, the Attorney General, the Hon Jeffrey Shaw QC, referred a review of s 409B to the NSW Law Reform Commission on 2 December 1996. The terms of the reference are:

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

1.5 Following the publication of IP 14, the Commission received 50 submissions from various groups and individuals in the community. A list of the submissions appears as Appendix A to this report. The Commission also conducted a series of consultations with defence lawyers, prosecutors, judges, sexual assault counsellors and members of the DPP Witness Assistance Service. These people all have particular expertise in the area of sexual assault within the criminal justice system. A list of the consultations appears as Appendix B to this report.

1.6 The Commission was greatly assisted by the views and suggestions put forward by people in submissions and in consultations. The consultations provided us with particular insight into the experiences of complainants and the accused in the courtroom. We appreciate very much the contributions made by these people to our review.

THE ISSUES UNDER REVIEW

1.7 Section 409B was introduced as a response to what was seen to be the distressing and unnecessary investigation in court into complainants’ sexual history. There was a perception that the verdict in a sexual offence trial often rested on the jury’s assessment of the complainant’s sexual morality, particularly whether she had a reputation for promiscuity or “loose morals”. Section 409B aimed to refocus the court’s attention on the real issue in the case, namely, to determine the guilt or otherwise of the accused, rather than the moral character of the complainant. The section excluded evidence of the complainant’s sexual reputation, and imposed rules restricting the admissibility of evidence concerning the complainant’s sexual experience, for the purpose of seeking a balance between the distress, humiliation or embarrassment caused to the complainant, and the rights of the accused.

1.8 The problem which is said to have arisen in the operation of s 409B is that it is too restrictive, so that it excludes not only irrelevant but also relevant material concerning the complainant’s sexual experience. The result of this is that the accused may be denied a fair trial, because he or she is unable to bring all relevant material to the court’s attention. It is consequently argued that s 409B should be amended to widen the scope for admitting sexual experience evidence. That argument is strongly opposed by those who are anxious to ensure that complainants continue to receive some protection from distress in the courtroom.

1.9 Central to this debate is the difficulty in balancing two public interests within the special circumstances surrounding a sexual offence trial. On the one hand, there is the public interest in ensuring the accused has a fair trial, including the need to consider all reasonably relevant evidence, the right to be presumed innocent, and to cross-examine fully the witnesses for the prosecution. On the other hand, there is the public interest in treating alleged victims of crime with compassion and respect, and protecting them from undue distress and humiliation in court. In international as well as domestic law, our legal system has obligations to take both these interests into account in its administration of criminal justice.²

1.10 For complainants, the simple fact of having to appear in court and publicly relate the details of the alleged crime will be extremely distressing. An important question in this review, taking into account the competing public interests referred to above, is the extent to which s 409B can operate to minimise a complainant’s distress without intruding to an unacceptable extent on the rights of the accused and the fairness of the trial.

SECTION 409B IN CONTEXT

1.11 In order to understand the policies behind s 409B, it is important to take into account the context in which the section operates.

1.12 Section 409B applies in criminal proceedings where the accused is charged with committing a sexual offence on the complainant. There are special issues surrounding this type of proceedings which distinguish them from other criminal proceedings.

1.13 In the first place, the nature of these offences is arguably unique. They involve an act which, in other circumstances, is regarded by society as an act of love, intimacy, or pleasure. In the context of a sexual offence, however, that act becomes an exercise of power, usually violent, by one person over another. It amounts to a gross invasion of a person’s privacy and a denial of human dignity. Victims of sexual offences will obviously react in different ways: some may feel shock, an inability to cope, extreme vulnerability, and even guilt that they somehow invited the sexual attack.

1.14 Sexual offences also raise in a particularly acute manner issues of gender imbalance within our society and our legal system. Because it is a crime which is predominantly committed by men upon women, sexual violence has come to be regarded as a symptom of women’s oppression. The way in which complainants are treated in the justice system is sometimes criticised as further reflecting sexist attitudes towards male violence against women.³

1.15 Victims who make the decision to complain to the police may face special difficulties in court if the perpetrator is prosecuted. They will often be the only person present at the crime, besides the accused. In many cases, there is no dispute that sexual intercourse took place, the only dispute being as to whether the complainant did not consent, or whether the accused knew that there was not consent. A trial for a sexual offence will frequently come down to a question of the complainant’s word against the word of the accused. A finding of reasonable doubt about the guilt of the accused will usually depend on casting doubt on the complainant’s version of events. Consequently, the complainant’s evidence will be the central focus of the prosecution’s case and also of the defence’s attack. Complainants’ experiences of the courtroom may therefore be particularly distressing, traumatic, and isolating.

1.16 From the point of view of a person accused of committing a sexual offence, that person must bear the shame and stigma of being suspected as a sex offender. He (or, in rare cases, she) faces the prospect of possible imprisonment and treatment in gaol as a sex offender. The impact of a possible conviction must also be borne by his or her family. An accused person who maintains his or her innocence, and faces the possible deprivation of his or her liberty, has a right to believe that he or she will be presumed innocent and be tried fairly. As in any criminal trial, a person accused of a sexual offence should expect to have full opportunity to question the prosecution’s case and lead a defence to the charges for which he or she stands trial. It will often be central to that defence to try to raise doubt about the accuracy of the complainant’s testimony.

1.17 Section 409B will usually have a direct effect on the way in which a sexual offence trial is run, and in that sense it may contribute significantly to the experiences of both the complainant and the accused in the criminal justice system. Any proposals for reform of s 409B should therefore be considered in light of the special context in which it operates.

SCOPE OF THE COMMISSION’S REVIEW

1.18 It is important to make clear the precise scope of the Commission’s review. Many people in consultations, particularly sexual assault counsellors, identified numerous problems in the conduct of sexual offence trials: for example, lengthy adjournments, long distances to travel to country courts, inadequate amplification in the courtroom, counsel’s use of language which is inappropriate to the complainant’s age, and insufficient attention to ensuring that the complainant is not placed in close proximity to the accused or his or her relatives. These were all considered to be problems which can make the complainant’s experience of court extremely traumatic and may often have a detrimental effect on his or her testimony.

1.19 While these are important concerns, they are outside the scope of the Commission’s review. Consequently, we cannot make any recommendations for the reform of those particular aspects of the conduct of sexual offence trials. Our review is confined to the operation of s 409B. Our recommendations are therefore limited to reforming that section.

THE STRUCTURE OF THIS REPORT

1.20 Chapter two of this report outlines the current operation of s 409B. It summarises the key provisions of s 409B and the way in which those provisions have been interpreted in cases. In particular, it looks at the exceptions to the prohibition against evidence of sexual experience, and the ways in which those exceptions have been applied in practice. The procedural requirements arising from s 409B are also examined as well as the types of legal proceedings to which s 409B applies.

1.21 Chapter three traces the history of the introduction of s 409B. It begins with an overview of the law governing the admissibility of evidence of sexual experience and reputation as it existed before the introduction of s 409B. It then outlines the period of reform which led up to the introduction of legislation restricting the admissibility of such evidence in New South Wales and elsewhere. It lastly examines the introduction of s 409B, in particular the purposes which the section was said to serve in light of perceived deficiencies in the existing law at that time.

1.22 Chapter four discusses the problems which have arisen in the operation of s 409B, and in particular focuses on the criticisms which have been made of the section in a number of “problem cases” before the courts in recent years. It then outlines the responses to those criticisms by people who support the current operation of s 409B. Finally, it examines proposals to make s 409B even more restrictive.

1.23 Chapter five considers legislation in other common law jurisdictions which restricts the admissibility of evidence of sexual experience and reputation. It compares the experiences in those jurisdictions with the experiences in New South Wales.

1.24 Chapter six contains the Commission’s conclusions and recommendations for reform of s 409B. It includes a detailed discussion of the rationale behind the Commission’s recommended reformulation of s 409B, as well as an explanation of the terms of that reformulation.

1. Grills v The Queen; PJE v The Queen (High Court of Australia, No S8/96; S154/95, 9 September 1996, unreported), refusing an application for special leave to appeal from the NSW Court of Criminal Appeal. See also Berrigan v The Queen (High Court of Australia, No S159/94, 23 November 1995, unreported), refusing special leave to appeal, and HG v The Queen (High Court of Australia, No S128/97, 19 May 1998, unreported), granting special leave to appeal from the NSW Court of Criminal Appeal.

2. See International Covenant on Civil and Political Rights (1966) Art 14; Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) Art 4; Victims Rights Act 1996 (NSW). See also, for example, Jago v District Court (NSW) (1989) 168 CLR 23; Dietrich v The Queen (1992) 177 CLR 292.