409B. (1) In this section:

“the accused person”, in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a prescribed sexual offence;

“the complainant”, in relation to any proceedings, means the person, or any of the persons, upon whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed.

(2) In prescribed sexual offence proceedings, evidence relating to the sexual reputation of the complainant is inadmissible.

(3) In prescribed sexual offence proceedings, evidence which 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 is inadmissible except:


(a) where it is evidence:

(i) of sexual experience or a lack of sexual experience of, or sexual activity or a lack of sexual activity taken part in by, the complainant at or about the time of the commission of the alleged prescribed sexual offence; and

(ii) of events which are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed;


(b) where it is evidence relating to a relationship which was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant;

(c) where:


(i) the accused person is alleged to have had sexual intercourse, as defined in section 61H(1), with the complainant and the accused person does not concede the sexual intercourse so alleged; and

(ii) it is evidence relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person;


(d) where it is evidence relevant to whether:

(i) at the time of the commission of the alleged prescribed sexual offence, there was present in the complainant a disease which, at any relevant time, was absent in the accused person; or

(ii) at any relevant time, there was absent in the complainant a disease which, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person;


(e) where it is evidence relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery which took place after the commission of the alleged prescribed sexual offence); or

(f) where it is evidence given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question which may, pursuant to subsection (5), be asked,

and its probative value outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.


(4) In prescribed sexual offence proceedings, a witness shall not be asked:

(a) to give evidence which is inadmissible under subsection (2) or (3); or
(b) by or on behalf of the accused person, to give evidence which is or may be admissible under subsection (3) unless the Court or Justice has previously decided that the evidence would, if given, be admissible.

(5) In prescribed sexual offence proceedings, where the Court or Justice is satisfied that:

(a) it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:

(i) had sexual experience, or a lack of sexual experience, of a general or specified nature; or

(ii) taken part or not taken part in sexual activity of a general or specified nature; and


(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,

the complainant may be so cross-examined but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.


(6) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (5) shall be decided by the Judge in the absence of the jury.

(7) Where a Court or Justice has decided that evidence is admissible under subsection (3), the Court or Justice shall, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.

(8) Nothing in this section authorises the admission of evidence of a kind which was inadmissible immediately before the commencement of this section.

• evidence of a complainant’s “sexual reputation”; and
• evidence of a complainant’s “sexual experience”.

2.3 Evidence relating to a complainant’s sexual reputation is absolutely prohibited in criminal proceedings to which s 409B applies.¹ This means that complainants must not be questioned, whether by the prosecution or the defence, about any matters that relate to their sexual reputation, and independent evidence of their sexual reputation must not be admitted.

2.4 The term “sexual reputation” is not defined in the legislation. Arguably, it is not always clear what information relates to “sexual reputation” and in what way the term is to be distinguished from the term “sexual experience”.² Generally, “reputation evidence” relates to information revealing the way in which a person is regarded by others. Rather than referring to specific acts or incidents, reputation evidence is concerned with people’s general beliefs and opinions about a person’s character. Evidence of “sexual reputation” is therefore likely to involve evidence of people’s beliefs and opinions about a person’s sexual disposition, in particular that person’s reputation for promiscuity, rather than to specific incidents of sexual activity in which the complainant has or may have been involved. Examples of evidence which would probably amount to evidence of “sexual reputation” include information that a complainant is generally known to be promiscuous or is known to work as a sex worker.³

RESTRICTION ON EVIDENCE OF “SEXUAL EXPERIENCE OR ACTIVITY”

2.5 Evidence of a complainant’s sexual experience or activity, or lack of experience or activity, is inadmissible, except in certain circumstances, in proceedings to which s 409B applies.⁴ This means that, in general, a complainant must not be questioned about,⁵ and independent evidence must not be admitted of, anything which reveals or implies⁶ that the complainant has been involved in, or has not been involved in, sexual activity or sexual experience.

2.6 The terms “sexual experience” and “sexual activity” are not defined in the section. They have been said not to be terms of art but, on the contrary, appear to have been chosen because of their broad generality. They have been interpreted to include sexual experience or activity which is not consensual.⁷ So, for example, evidence that a complainant has been sexually abused in the past would seem to constitute evidence of sexual experience or activity so as to come within the prohibition in s 409B(3). It has, however, been argued recently in the High Court that s 409B should be interpreted to apply to consensual sexual experience only. The Court’s decision on this issue is pending.⁸

2.7 Section 409B(3) restricts rather than absolutely prohibits evidence of sexual experience or activity (or lack of it). Such evidence may be admitted if all the following three requirements are met:

• first, the evidence comes within one of the exceptions to the prohibition which are listed in s 409B(3)(a)-(f);
• secondly, the evidence is otherwise admissible according to the ordinary rules of evidence (for example, it must be relevant);⁹ and
• thirdly, the probative value (or relevance) of the evidence outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of the admission of this evidence.¹⁰

2.9 Examples of cases in which s 409B(3) has operated to exclude evidence of sexual experience or activity include the following:

R v McGarvey.¹² The accused sought to admit evidence that the complainant had had sexual intercourse with 20 men in the week before the incident of the alleged sexual assault. The evidence was said to be relevant to the belief of the accused that the complainant consented to intercourse with him, on the basis that he believed she had recently consented to intercourse with 20 other men. The evidence was held to be inadmissible.¹³

R v Berrigan.¹⁴ The accused argued that the complainant had consented to sexual intercourse but afterwards had tried to take money from him. At least seven months after the incident of the alleged assault, the complainant had been convicted on two counts of prostitution. Evidence of the convictions was held to be inadmissible at the trial of the accused for the sexual assault.

R v M.¹⁵ The complainant, a 10 year old girl, claimed that the accused had sexually assaulted her. The accused wished to cross-examine her and call other witnesses to show that she had made similar claims of assault against male members of her family. The evidence was directed at casting doubt on the complainant’s reliability, on the basis that it suggested she habitually made false allegations of sexual assault. It was not directed at drawing any inference based on the girl’s previous sexual experience. The court ruled, however, that the evidence was inadmissible under s 409B(3), because it implied that the complainant had not had the sexual experience which she claimed to have. The restrictions in s 409B(3) apply equally to evidence revealing a lack of sexual experience as to evidence of sexual experience.

2.10 Section 409B(3)(a)-(f) lists the circumstances in which evidence of a complainant’s sexual experience or activity or lack of it may be admissible as exceptions to the general prohibition. However, as noted in paragraph 2.7, this is only one step in admitting such evidence. Even if it can be shown that the evidence comes within one of the exceptions, the two further requirements set out in paragraph 2.7 must be met.

2.11 The courts have stated that the exceptions set out in s 409B(3) should be interpreted broadly and in a way which favours the liberty of the accused. Such an approach is said to be consistent with established principles of construction in the criminal context.¹⁶ The exceptions to the general prohibition, and the way in which they have been interpreted, may be summarised as follows.

2.12 Exception (a): Evidence may be admissible of sexual experience or activity or lack of it by the complainant at or about the time of the commission of the alleged sexual offence, where such evidence forms part of a connected set of circumstances in which the alleged offence was committed.

2.13 Comment: An example of evidence which would come within this exception is evidence that the complainant had sexual intercourse with a number of persons at around the same time as she was allegedly assaulted by the accused. This exception was said to be principally intended to allow the accused to lead evidence of the complainant’s sexual behaviour at the time of the alleged assault as a basis for claiming that the accused knew or believed that the complainant was consenting to intercourse with him.¹⁷ The condition that the sexual experience or activity must be part of a “connected set of circumstances” has been interpreted as requiring that the evidence which is sought to be admitted have real probative value, or be relevant to, an issue in the case, such as the issue of consent.¹⁸ The exception has been applied to admit evidence that a complainant had sexual intercourse with her boyfriend within one to two hours after the time of the alleged assault, on the basis that evidence of the subsequent consensual sexual act may be seen by the jury to make it less likely that the alleged sexual assault in fact occurred.¹⁹

2.14 Exception (b): Evidence of sexual experience or activity or lack of it may be admissible if it relates to a relationship between the accused and the complainant, where the relationship was existing or recent at the time of the commission of the alleged offence.

2.15 Comment: The term “relationship” has been held to require an emotional or sexual connection of some kind between the accused and the complainant, although for the purposes of interpreting this exception, the sexual aspect of a relationship is a more important consideration than the emotional aspect.²⁰ Consequently, if the evidence discloses a regular sexual liaison between the accused and the complainant, this would ordinarily constitute a “relationship” for the purposes of s 409B(3)(b), even if there is little or no emotional involvement between the people. In child sexual assault cases, the exception has been applied to admit evidence of previous abuse by the accused on the complainant, where the “relationship” may be said to be based on a history of abuse or “guilty passion” on the part of the accused.²¹ A mere conversation, however, between two people would not generally be seen as sufficient to amount to a “relationship” as used in this exception. As for whether a relationship is “recent” or “existing” at the time of the commission of the alleged offence, it will be a matter of degree as to whether the temporal requirement is satisfied in each individual case.²²

2.16 Exception (c): Evidence of sexual experience or activity or lack of it may be admissible if the accused denies that intercourse with the complainant took place, and the evidence is relevant to whether the presence of semen, pregnancy, disease, or injury is attributable to the alleged sexual intercourse between the accused and the complainant.

2.17 Comment: This exception was intended to allow evidence that the complainant had had sexual intercourse with another person as an explanation for the presence of, for example, semen or injury, where this physical evidence might otherwise tend to incriminate the accused.²³ The term “injury” is not confined to injury caused by sexual intercourse, but may include a general state of dishevelment and distress.²⁴ It appears, however, that “injury” has not been interpreted by the courts in New South Wales to extend to a child’s broken hymen as a means of admitting evidence of previous sexual abuse.²⁵

2.18 Exception (d): Evidence of sexual experience or activity or lack of it may be admissible if it relates to the presence of a disease in the complainant at the time of the commission of the alleged offence which, at any relevant time, was absent in the accused, or which was present in the accused at the time of the alleged offence and was absent in the complainant at any relevant time.

2.19 Comment: Parliament considered it important to include this exception to allow the accused to question the complainant about the presence or absence of, for example, a sexually transmitted disease as a means of establishing that intercourse with the accused did not in fact take place.²⁶

2.20 Exception (e): Evidence of sexual experience or activity or lack of it may be admissible where it is relevant to show that the allegation of the offence was first made following a discovery or realisation of pregnancy or disease in the complainant.

2.21 Comment: This exception was intended to allow an accused to raise doubt about the truth of a complainant’s allegation by showing that it was made only after the complainant learnt that she was pregnant or that she had, for example, a sexually transmitted disease. It was anticipated that the exception would apply in a situation where, for example, a young woman becomes pregnant and makes an allegation of sexual assault to avoid criticism from her parents.²⁷

2.22 Exception (f):²⁸ Where the Court is satisfied that the prosecution has disclosed or implied sexual experience or activity (or lack of it) by the complainant, and the accused might be unfairly prejudiced if the complainant could not be cross-examined in relation to the disclosure, the complainant may be so cross-examined.²⁹ Any evidence which the complainant gives in response to this cross-examination which reveals or discloses sexual experience or activity (or lack of it) by the complainant may be admissible as an exception to the general prohibition.

2.23 Comment: This exception has been applied where the complainant asserted in her evidence in chief that she barely knew the accused. The accused was permitted to suggest to her in cross-examination that she and the accused were in fact regular sexual partners. This evidence was considered to be relevant to the complainant’s credibility as a witness, in light of her original assertion.³⁰ The exception appears to be confined to evidence which the complainant gives in response to questions put to her in cross-examination. Consequently, in the above example, if the complainant denies that she had previous sexual experience with the accused, independent evidence would not be admissible under this exception to rebut the complainant’s denial.³¹

MAKING AN APPLICATION TO ADMIT EVIDENCE UNDER S 409B

2.24 If counsel in a trial wishes to raise evidence which may come within the restrictions of s 409B, he or she is required first to make an application to the judge. The question whether the evidence is admissible or not must then be decided by the judge in the absence of the jury.³²

2.25 In making an application under s 409B, it is said to be preferable for counsel to provide the judge with a detailed written statement of the evidence which is proposed to be led or extracted in cross-examination.³³ If the judge decides that the evidence is admissible under an exception in s 409B(3), he or she is required by s 409B(7) to record or cause to be recorded the reasons for this decision as well as the nature and scope of the admissible evidence. Even if the judge decides that the evidence is inadmissible under s 409B(3), it is considered to be preferable if reasons for this decision are recorded, although there is no requirement to this effect in the legislation.³⁴

PROCEEDINGS COVERED BY S 409B

2.26 Section 409B applies to “prescribed sexual offence proceedings”, which are defined as proceedings in which a person stands charged with a prescribed sexual offence.³⁵ “Prescribed sexual offence” is defined³⁶ as any one or more of the offences listed below, being offences committed under specific sections of the Crimes Act 1900 (NSW). Accordingly, s 409B will cover any criminal proceedings in which the accused is charged with:³⁷

• sexual assault (s 61I)
• aggravated sexual assault (s 61J)
• assault with intent to have sexual intercourse (s 61K)
• indecent assault (s 61L)
• aggravated indecent assault (s 61M)
• act of indecency (s 61N)
• aggravated act of indecency (s 61O)
• sexual intercourse procured by a non-violent threat (s 65A)
• sexual intercourse with a child under 10 (s 66A)
• attempt to have sexual intercourse with a child under 10 (s 66B)
• sexual intercourse with a child between 10 and 16 (s 66C)
• attempt to have intercourse with a child between 10 and 16 (s 66D)
• sexual intercourse with a person with an intellectual disability (s 66F)
• homosexual intercourse with a boy under 10 (s 78H)
• attempt to have homosexual intercourse with a boy under 10 (s 78I)
• homosexual intercourse with a boy between 10 and 18 (s 78K)
• attempt to have homosexual intercourse with a boy between 10 and 18 (s 78L)
• sexual assault by forced self-manipulation (s 80A)

• inflicting grievous bodily harm with intent to have sexual intercourse (s 61B)
• inflicting actual bodily harm with intent to have sexual intercourse (s 61C)
• sexual intercourse without consent (s 61D)
• indecent assault (s 61E)

2.29 Arguably, it is not clear whether s 409B applies to committal hearings. These are pre-trial hearings in the Local Court in which a magistrate must decide, based on the prosecution’s case against the accused, whether the accused should be committed to stand trial or whether he or she should be discharged.⁴¹ Section 409B is not expressly stated to apply to committal hearings.⁴² However, it certainly seems to be generally considered that s 409B applies equally to the committal stage as to the trial stage.⁴³

2.30 While in theory s 409B may apply to committal proceedings to restrict questioning of complainants about their sexual experience and reputation, in practice the section would seem to have a limited operation at this stage. This is because witnesses do not now usually attend in person to give evidence at a committal hearing. Instead, written statements are tendered. An accused person who seeks to require the attendance in person of an alleged victim of a sexual offence must show special reasons why, in the interests of justice, the alleged victim should be required to give oral evidence.⁴⁴ In practice, there may be few successful applications compelling a complainant to attend a committal hearing. Given that legal aid is not generally available in these types of cases, many people accused of committing a sexual offence will not be legally represented at committal.

1. Section 409B(2).

2. See para 4.81-4.85.

3. It seems that the prohibition against evidence of “sexual reputation” in s 409B was intended to reverse the common law practice of admitting evidence of a complainant’s reputation for promiscuity or prostitution: see R v McGarvey (1987) 10 NSWLR 632. See para 3.3.

4. Section 409B(3).

5. It has been held that the rules set down in s 409B for admitting sexual experience evidence apply equally to cross-examination of a complainant about his or her sexual experience, even though this is not specifically spelt out in the subsection: see R v Henning and others (NSW, Court of Criminal Appeal, No 406/88; 426/88; 436/88; 425/88; 437/88, 11 May 1990, unreported); R v Dimian (1995) 83 A Crim R 358 (NSW CCA).

6. The evidence does not have to prove that the complainant has or has not had particular sexual experience. The exclusion in s 409B(3) is attracted if the evidence conveys information or an imputation about the complainant’s sexual experience: see R v White (1989) 18 NSWLR 332 at 340.

7. R v Bernthaler (NSW, Court of Criminal Appeal, No 60394/93, 17 December 1993, unreported); R v G (1997) 42 NSWLR 451 per Mason P at 457-458, per Sperling J at 460-461, not following Sperling J in R v PJE (NSW, Court of Criminal Appeal, No 60216/95, 9 October 1995, unreported) at 5.

8. See transcript of proceedings in HG v The Queen (High Court of Australia, No S67/98, 8 September 1998).

9. See R v Morgan (1993) 30 NSWLR 543; R v Uhrig (NSW, Court of Criminal Appeal, No 60200/96, 24 October 1996, unreported).

10. Crimes Act 1900 (NSW) s 409B(3).

11. R v M (1993) 67 A Crim R 549 (NSW CCA).

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

13. This evidence was inadmissible under s 409B. However, the Court noted that even at common law, the evidence may now be inadmissible.

14. R v Berrigan (NSW, Court of Criminal Appeal, No 60412/93, 7 October 1994, unreported); Berrigan v The Queen (High Court of Australia, No S159/94, 23 November 1995, unreported), refusing application for special leave to appeal from the decision of the Court of Criminal Appeal.

15. R v M (1993) 67 A Crim R 549 (NSW CCA).

16. See R v Morgan (1993) 30 NSWLR 543.

17. See New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4764; R v Dimian (1995) 83 A Crim R 358 (NSW CCA); R v Uhrig (NSW, Court of Criminal Appeal, No 60200/96, 24 October 1996, unreported).

18. R v Beserick (1993) 30 NSWLR 510 per Hunt CJ at CL at 520-521; R v Morgan (1993) 30 NSWLR 543 per Mahoney JA at 551.

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

20. R v White (1989) 18 NSWLR 332; R v Henning and others (NSW, Court of Criminal Appeal, No 406/88; 426/88; 436/88; 425/88; 437/88, 11 May 1990, unreported).

21. R v Beserick (1993) 30 NSWLR 510; cf R v G (1997) 42 NSWLR 451 per Mason P at 458-459.

22. R v Beserick (1993) 30 NSWLR 510.

23. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4765.

24. R v Dimian (1995) 83 A Crim R 358 (NSW CCA).

25. See para 4.12-4.15.

26. See New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4765.

27. See New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4766.

28. This exception must be read in conjunction with s 409B(5).

29. This is provided for in s 409B(5).

30. R v Henning and others (NSW, Court of Criminal Appeal, No 406/88; 426/88; 436/88; 425/88; 437/88, 11 May 1990, unreported).

31. It appears to have been the express intention of Parliament to limit the application of this exception to the cross-examination of a complainant rather than to the admission of independent evidence: see New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4766.

32. Crimes Act 1900 (NSW) s 409B(4) and 409B(6).

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

34. R v Uhrig (NSW, Court of Criminal Appeal, No 60200/96, 24 October 1996, unreported) per Hunt CJ at CL at 11.

35. Crimes Act 1900 (NSW) s 4(1).

36. Crimes Act 1900 (NSW) s 4(1).

37. According to the definition in s 4(1), s 409B also applies to an offence of attempting or of conspiracy to commit these offences. Moreover, in proceedings where the accused is charged with more than one offence, if one of those offences is a “prescribed sexual offence”, then s 409B applies to the proceedings.

38. Although these sections have been repealed, if an accused person is alleged to have committed an offence coming under one of these sections at a time before it was repealed, then he or she will be charged with an offence under that section: see Crimes Act 1900 (NSW) Sch 11[2].

39. The offences listed are all felonies, being offences punishable by penal servitude: see Crimes Act 1900 (NSW) s 9. This means that they are indictable offences to be heard in the District Court (or, in theory, the Supreme Court): Interpretation Act 1987 (NSW) s 21 and Justices Act 1902 (NSW) s 4(2), in conjunction with Criminal Procedure Act 1986 (NSW) s 4(1). Criminal proceedings in the District Court are to be tried by jury, unless the accused elects and the prosecution consents to trial by judge alone: see Criminal Procedure Act 1986 (NSW) s 31, 32.

40. Section 33C of the Criminal Procedure Act 1986 (NSW) permits indictable offences listed in Tables 1 and 2 to that Act to be heard summarily before a magistrate in a Local Court, unless the prosecuting authority elects to have it heard on indictment (Table 2 offences) or the accused or the prosecuting authority elects to have it heard on indictment (Table 1 offences). Note the effect of s 495 of the Crimes Act 1900 (NSW) on certain of these offences for which an accused was charged before 1 September 1995.

41. Justices Act 1902 (NSW) s 41(6).

42. The term “stands charged” in the definition of “prescribed sexual offence proceedings” in s 4(1) of the Crimes Act 1900 (NSW) is a term which is used more particularly in the trial context than at committal.

43. See Mr D Milovanovich, Submission at 2. An empirical study of s 409B considered the operation of the section in committal hearings, obviously on the assumption that the section applies to committal proceedings: see R Bonney, Crimes (Sexual Assault) Amendment Act 1981 Monitoring and Evaluation: Interim Report 3: Court Procedures (NSW Bureau of Crime Statistics and Research, Canberra, 1987) ch 2.