4.2 Proposals to reform s 409B to address the High Court’s criticisms have been met with strong opposition by some members of the community, in particular women’s organisations and feminist legal commentators.² They argue that s 409B works well in practice and, if anything, should be made more restrictive to ensure that it is not applied too liberally in favour of the accused.

4.3 These opposing views of s 409B were strongly expressed to the Commission in both consultations and submissions. Some people, for the most part defence lawyers, considered that s 409B was unfairly restrictive and intruded to an unacceptable extent on the rights of the accused. They agreed with the High Court that reform of s 409B was desirable, indeed essential, to ensuring a fair trial for the accused. Other people, for the most part women’s organisations and sexual assault counselling services, took the view that s 409B was not unduly restrictive. Their concern was directed at protecting the interests of complainants from further trauma in the courtroom and from preventing a return to the “bad old days” of the common law.

4.4 This Chapter examines the arguments put forward for widening the scope of s 409B on the one hand, and the opposing arguments to leave s 409B in its current form, or to make it more restrictive.

ARGUMENTS IN SUPPORT OF REFORM

Right of the accused to a fair trial

4.5 It is fundamental to our system of law that a person charged with a criminal offence is presumed innocent until proven guilty and should not be convicted except after having a fair trial.³ The call for reform of s 409B is based on the claim that the section operates in certain cases to deny an accused person the right to a fair trial. According to this argument, there is some evidence concerning a complainant’s sexual experience which is directly relevant to determining the guilt or innocence of an accused in a particular case. The evidence may be so important to that case that, if it is excluded by s 409B, the accused will be prevented from making a full response to the charge against him or her in court. In the worst case, s 409B may result in the conviction of an innocent person who has been prevented from bringing important information to the court’s attention.

4.6 As we noted in Chapter 3, the effect of legislative restrictions concerning sexual experience evidence on the right of an accused to a fair trial was an issue which was debated by Parliament before the introduction of s 409B in 1981. In particular, consideration was given to whether the formulation of s 409B, which only allows sexual experience evidence to be admitted under closely-defined exceptions, was too inflexible to ensure that the section did not operate unjustly against the accused. Parliament ultimately took the view that no such injustice would arise. It was considered that the exceptions to the prohibition, listed in s 409B(3), would make admissible all evidence which, in the interests of justice and in fairness to the accused, should be admissible.

4.7 In the first few years following its introduction, there were no reported cases in which judges referred to any problems in the operation of s 409B. Since 1990, however, there have been several occasions on which judges have publicly noted a danger that s 409B may operate to deny an accused person a fair trial.⁴ It could be argued from these cases that the section has proven insufficient to prevent injustice to the accused in every situation and that, consequently, it should be amended to provide greater opportunity for introducing evidence of a complainant’s sexual experience so as to ensure that the accused has a fair trial. This was a view which was strongly expressed by some people in submissions and in consultations.⁵ Defence lawyers referred to cases in which they considered that their clients, the accused, were unable to lead relevant evidence because it was prohibited by s 409B.

The “problem cases”

4.8 The “problem cases” are the cases in which s 409B has received particular attention by the courts for its impact on the accused. Judges in these cases have commented on the danger that s 409B may exclude certain evidence in a way which denies the accused a fair trial. Most of the problem cases have had the following features in common:⁶

• the complainant was a child;
• the accused denied that the alleged abuse occurred; and
• the evidence which was excluded by s 409B was evidence of sexual experience or activity (or lack of it) rather than evidence of sexual reputation.

4.10 Evidence which has generally been excluded in these cases may be described as falling into two broad categories:

(a) evidence of sexual abuse of the child by someone other than the accused;⁹

(b) evidence that the child made “false” allegations of sexual abuse on other occasions.

(a) Relevance of evidence of sexual abuse of the child by someone other than the accused

4.11 Evidence of this kind may be relevant to the case for the accused in the following ways.

4.12 First, where there is reason to believe that a child has been sexually abused on another occasion by a person other than the accused, the evidence of abuse on that other occasion may be relevant to the case for the accused to explain why the child demonstrates certain signs of abuse. For example, it may provide an explanation as to why the child has physical symptoms of abuse.¹⁰ In other instances, the child’s allegation may involve a description of a sexual act about which a jury would not normally expect a child of that age to have knowledge. In those instances, it may be relevant to the jury to be aware that the child has been previously abused in a similar way to that described in the allegation against the accused.¹¹ In the absence of that information, the jury may be more likely to conclude that the accused has abused the child.

4.13 In other instances, evidence of abuse by someone else may be relevant to suggest that the child, for whatever reason, is blaming the accused for abuse which was in fact committed by that other person.¹² For example, the accused may wish to argue that the child has in fact been abused by a member of his or her family, such as a father or brother, but has blamed the accused for the abuse rather than identify the real offender. Evidence suggesting that the child has been abused by another person would normally be excluded by s 409B.

4.14 A number of people in submissions and in consultations disputed that evidence of previous abuse is ever relevant to the question of whether the accused has sexually abused the child.¹³ It was said that the mere fact that a child has been abused by someone else does not mean that he or she was not also abused by the accused.

4.15 Evidence that a child has been abused by someone else is not proof in itself that the accused has not also abused the child. However, as shown in the examples above, it may be relevant information for the jury to consider in determining whether there is a reasonable possibility that the sexual abuse in question was committed by someone else rather than by the accused. The policy issue is to identify where the balance should lie in these cases between the rights of the alleged victim and the rights of the accused at trial. This issue is addressed in Chapter 6.

(b) Relevance of evidence that the child has made false allegations of sexual abuse on other occasions

4.16 Evidence that a child has made a demonstrably false allegation of sexual abuse on another occasion has been considered relevant to the case for the accused to suggest, for example, that the child has a general propensity to lie or make false allegations,¹⁴ or is a “sexual fantasist”,¹⁵ or that the allegation of abuse against the accused is activated by the improper motives of others,¹⁶ or otherwise generally to discredit the child as an unbelievable or unreliable witness. The exclusion of evidence of previous false allegations has been said to cause injustice to the accused in some cases because it prevents the accused from bringing information before the jury which may cause them to doubt the complainant’s version of events.

4.17 For example, in one case, a child made a complaint of sexual abuse against her step-father.¹⁷ The step-father and the child’s mother were recently separated. According to the accused, the child’s mother had threatened him that she would do to him what she had done to the child’s natural father, that is, make an allegation of sexual abuse to prevent him from seeing the child. The accused wished to lead evidence of the alleged threat to show that the child’s complaint had been made under the direction of the mother for the purpose of taking revenge on the accused. The evidence was, however, excluded by s 409B.

4.18 Another example involves a “street kid” who was said to have made an identical allegation of sexual abuse against a series of social workers.¹⁸ Evidence of the previous allegations was said to be relevant to the case for the accused in order to suggest that the child, for whatever reason, was in the habit of making false allegations of sexual abuse and therefore the allegation against the accused was more likely also to be false.

4.19 In situations such as those described above, evidence that a complainant (whether a child or an adult) has made clearly false allegations of abuse on other occasions will be directly relevant to the question of whether the complainant has fabricated the allegation against the accused. Indeed, in the United States, the accused is considered to have a constitutional right to introduce such evidence where it is relevant, despite legislative restrictions on sexual experience evidence similar to the restrictions in s 409B.¹⁹ In New South Wales, the general rules of evidence would ordinarily allow a witness to be questioned about false allegations which they have made, whether or not the allegations were of a sexual nature. In some cases, independent evidence may also be able to be introduced to prove that the witness has made these allegations, if, for example, she or he has denied doing so in the witness box. Such evidence may be relevant to the witness’ credit, to show that she or he has a propensity to lie or cause a public mischief, or it may be relevant to the facts in issue in the case.²⁰

4.20 A problem in determining the admissibility of evidence of “false” allegations in the context of sexual offence proceedings is being able to determine with any accuracy whether an allegation made on another occasion is in fact false. This is an issue relating to the probative weight of such evidence. That is, the extent to which allegations made on other occasions may be shown to be false will affect the extent to which they are relevant to determining whether the complainant has fabricated the allegation against the accused. Flowing on from the difficulty involved in determining the probative weight of this evidence are concerns of fairness and policy which may weigh against its admissibility. These issues are all discussed in Chapter 6. It is worth noting at this point, however, that the purpose of the line of questioning about previous allegations is to demonstrate that no prior sexual activity in fact occurred, rather than to humiliate the complainant by suggesting that he or she is sexually immoral.

Other cases

4.21 Although it is cases of the kind described above in which s 409B is most commonly criticised for causing injustice to the accused, defence lawyers emphasise that the danger of injustice is not limited to these types of cases. They claim that there are other cases in which, in their experience, evidence of sexual experience is highly relevant, and its exclusion by s 409B may prevent the accused from having a fair trial.²¹

4.22 It is difficult to ascertain with any precision the extent to which s 409B may operate in situations other than those outlined above in a way to cause injustice to the accused. Several magistrates and District Court judges have suggested that, in their experience, it is only in rare cases that an accused may be considered to be denied a fair trial because of the operation of s 409B, and that most of those cases involve evidence of previous allegations as referred to in paragraph 4.16-4.20 above.²² Of course, it is possible that not all cases in which s 409B is considered to operate unfairly against the accused will be brought to the attention of a judicial officer. There may be cases where counsel for the accused does not attempt to have relevant evidence admitted because it is assumed that it will be prohibited by s 409B,²³ or where the Crown decides not to proceed with the prosecution of the accused because evidence will be excluded by s 409B in a way which is considered may deny the accused a fair trial.²⁴

4.23 The Public Defenders submitted that, in general, s 409B does not operate unfairly against the accused in cases involving adult complainants, where the issue in dispute is whether there was consent to intercourse rather than whether intercourse with the accused occurred at all.²⁵ In most cases of this kind, it was considered that the exceptions in s 409B(3) are sufficient to admit evidence which is important to the case for the accused. However, this does not mean that s 409B never operates unfairly in these types of cases: the Public Defenders submitted that they have been involved in “consent” cases in which evidence which they considered to be important to their clients’ case was excluded by s 409B.

4.24 An example which was given related to evidence of prostitution in cases where the accused claimed that there was consensual intercourse in exchange for money, and that the complainant subsequently claimed she was sexually assaulted to avoid being apprehended for soliciting. Without the restrictions imposed by s 409B, evidence that a complainant was working as a sex worker around the time of the alleged assault would ordinarily be admissible as tending to establish a motive for invention.

4.25 Arguably, in these circumstances, evidence of prostitution might be admissible under the existing exception to s 409B(3), which admits evidence of sexual activity or experience where it forms part of the “connected circumstances” of the alleged incident.²⁶ However, in order to be admissible under this exception, the sexual activity in question, namely the acts of prostitution, must be recent and must form part of the connected circumstances of the alleged assault. These requirements may exclude much evidence relating to acts of prostitution.

4.26 A few additional examples were given by defence lawyers of cases other than child sexual assault cases where they considered that s 409B operated unfairly. One example involved evidence of false allegations made by the complainant, only in this instance the complainant was an adult rather than a child.²⁷ In other cases, it was submitted that s 409B may prevent a full version of the facts from being presented to the jury, without which the jury is left with a skewed perception of events.²⁸ For example, in a case involving an allegation of homosexual sexual assault, where the issue in dispute is whether the complainant consented to intercourse, evidence that the complainant is homosexual is inadmissible because it implies sexual activity under s 409B(3).²⁹ From the point of view of the accused, evidence of the complainant’s homosexuality may be relevant to the likelihood of whether he or she consented to intercourse with the accused. Although consent cannot be implied from the mere fact that the complainant is a practising homosexual, it could be argued that the complainant’s sexuality may affect the likelihood that he or she consented to homosexual intercourse just as, in the reverse situation, evidence that a complainant has never engaged in homosexual activity may affect the likelihood that he or she consented to homosexual intercourse on this one instance with the accused.

4.27 It was also submitted that the operation of s 409B may sometimes lead to absurd results because of the way in which the section is drafted.³⁰ For example, strictly speaking, s 409B prohibits evidence that the complainant is a mother, because this implies that she has been sexually active. Examples such as these may be unlikely to cause injustice to the accused, but they may make it difficult to place the alleged offence in its full context.

4.28 Defence lawyers did not generally consider that any problems arose for the accused from the absolute prohibition in s 409B(2) against evidence relating to sexual reputation.³¹ Some considered that, in theory, there may be evidence relating to a complainant’s sexual reputation which would be relevant to the case for the accused. For example, evidence that the complainant worked as a sex worker, which arguably relates to her sexual reputation, may be relevant to a claim by the accused that she consented to intercourse. However, it was thought that the term “sexual experience” is sufficiently wide to encompass evidence of this kind, so that the prohibition on sexual reputation evidence did not usually give rise to problems for the accused.³²

4.29 This analysis may be somewhat inadequate. On a strict reading of s 409B, even if evidence may be shown to relate to sexual experience and to be admissible under one of the exceptions in s 409B(3), the fact that it also relates to the complainant’s sexual reputation may mean that it is nevertheless inadmissible under the prohibition in s 409B(2).³³ If this is correct, it may be particularly difficult to conduct a prosecution where the complainant is a sex worker and the accused is his or her client. The sex worker/client relationship may be an essential part of the context in which the alleged assault occurred, for example, if the complainant claims to have consented to one sexual activity in exchange for money, but the accused then allegedly forces him or her to engage in another sexual activity which does not form part of the agreement. The prosecution’s ability to lead evidence of the initial circumstances leading up to the alleged assault may be greatly hindered if evidence that the complainant was a sex worker is prohibited by s 409B(2). This is an issue which the Commission addresses in its recommended reformulation.³⁴

4.30 It was asserted by the Crown Prosecutors, in consultation, that there have been other cases in their experience where s 409B has excluded evidence to the detriment of the complainant and the case for the prosecution.³⁵ For example, in a couple of cases encountered by one Crown Prosecutor, there was evidence that the complainant had remained immobile during the sexual attack, which may have been construed by some jurors as an unusual and unlikely response. The complainant’s reaction could be explained, however, by the fact that she had been the victim of incest as a child, and the attack as an adult had brought back memories of the previous abuse, rendering her immobile. Because of s 409B, the Crown was unable to lead evidence of the earlier abuse to explain the complainant’s reaction to the attack.

4.31 It was also submitted by the Crown Prosecutors that there may be cases where it is relevant to lead evidence that the complainant was a virgin before the sexual assault. For example, if the accused claims to have believed the complainant was consenting, it may be relevant to show that, before the attack, the complainant was a virgin in order to make the version of events told by the accused less likely.

Operation of s 409B beyond its original rationale

4.32 It was submitted that one of the reasons why problems have arisen in the operation of s 409B is because the section has been applied to a range of situations to which it was never originally intended to apply.³⁶

4.33 As we noted in Chapter 3, at common law, the fact that a woman had had sexual intercourse on other occasions was considered relevant in itself to the questions of consent and credibility. “Relevance” was based on a moral judgment that women who were sexually active outside of marriage had a greater propensity both to consent to sexual intercourse and to lie. When s 409B was introduced, it was said to overcome these common law practices of drawing inferences about a complainant’s credibility and consent based solely on his or her sexual history.

4.34 However, s 409B is drafted in a way which imposes a general prohibition against evidence of sexual conduct, with specific exceptions listed. This has the result that, other than for the excepted purposes, the section restricts the admissibility of sexual experience evidence regardless of the purpose for which it is sought to be admitted. Evidence relating to sexual experience is inadmissible even if its purpose is other than to draw an inference about a complainant’s credibility or consent based solely on the fact that he or she has had previous sexual encounters. Similar legislative provisions in the United States and Canada have been criticised for their inability to distinguish between the different purposes for which sexual experience evidence may be raised.³⁷

4.35 For example, in child sexual assault cases, evidence of prior sexual abuse of the child is not sought to be introduced in order to suggest that, because of the previous abuse, the child is less believable or is more likely to have consented to the sexual act with the accused. On the contrary, such evidence is usually relevant for the purpose of suggesting that the child is being abused by someone other than the accused, or to provide an explanation as to why the child demonstrates certain signs of abuse, where otherwise those signs may be attributed to abuse by the accused. Indeed, the purpose of admitting such evidence may often be consistent with the rationale underlying the exception in s 409B(3)(c), which allows evidence of sexual experience or activity to be admissible where it is relevant to explain the presence of semen, pregnancy, injury, or disease in the complainant. In both instances, the evidence is raised for the purpose of providing an explanation as to why the complainant demonstrates signs that a sexual act with someone has occurred.³⁸

4.36 Another situation in which it could be argued that s 409B has been applied in a way which goes beyond its original rationale is where evidence that a complainant is a mother is excluded because it implies that she has had previous sexual experience. It seems unlikely that s 409B was ever originally intended to restrict such evidence.

4.37 The section is also broad in its application both to the prosecution’s evidence as well as evidence for the accused. Unlike equivalent legislation in some other jurisdictions,³⁹ s 409B is not confined to restricting evidence elicited only by the accused but may also exclude evidence sought to be admitted by the prosecution.⁴⁰ It may be argued that this result runs contrary to the rationale of the section, in so far as it aimed to protect complainants from humiliating cross-examination by defence counsel, rather than to be used to the possible detriment of the prosecution’s case.⁴¹

4.38 Similarly, the inclusion of “lack of sexual activity or experience” in the prohibition in s 409B(3) may seem inconsistent with the rationale of the section, which was particularly aimed at preventing inferences being made about sexually active and “promiscuous” women. The inclusion of this term results in, for example, the prohibition of evidence of previous false allegations of sexual abuse, because such evidence implies that the complainant has not had the experience which she claims to have had. Although the purpose of introducing such evidence relates, at least in part, to discrediting the witness, it is not relying on the complainant’s sexual practices as a reason in itself for discrediting her, but rather on the fact that she has previously made a “false” allegation.

4.39 Of course, the reasons for introducing s 409B were not confined to overcoming the deficiencies in the common law as outlined above. Other purposes included minimising the distress to complainants in the courtroom, preventing trials becoming an investigation into complainants’ sexual lives, and limiting the admission of prejudicial material concerning sexual experience. Although, on the one hand, it may be argued that the section has been extended beyond its original rationale, these other purposes must also be recognised in considering any calls for reform. Any changes to s 409B will involve a decision about the extent to which evidence which does not rely on the common law inferences for its relevance should continue to be excluded by the legislation, taking into account the other purposes for which it was introduced.

Consequences of finding that an accused may be denied a fair trial

4.40 It is not clear what remedies are available in cases where s 409B is seen to operate in a way to deny an accused a fair trial. Moreover, any such remedies, if they are available at all, may present certain difficulties.

4.41 Stay of proceedings. On a number of occasions between 1990 and 1995, judges permanently stayed proceedings on the basis that the accused would be unable to have a fair trial due to the exclusion of evidence by s 409B.⁴² This meant that the prosecution of the accused for the commission of the offences in question had to be permanently discontinued. Since then, however, the Court of Criminal Appeal has held that the power to stay proceedings does not apply to cases where s 409B is considered to operate unfairly against the accused. The Court stated that judges cannot stay proceedings simply because they consider that a valid law, passed by Parliament, is operating in a way to cause injustice.⁴³ Consequently, the power to stay proceedings is no longer available as a remedy to the accused against a perceived injustice caused by s 409B.

4.42 Appeal against conviction. It may be possible for the accused to appeal against a conviction where it is considered that s 409B has operated unfairly to exclude relevant evidence.⁴⁴ The accused could argue that the conviction was unsafe and unsatisfactory, because the evidence which was excluded by s 409B was of such significance to the case that a conviction without consideration of that evidence resulted in a substantial miscarriage of justice. The effect of a successful appeal on this basis would be either to order a retrial, or quash the conviction and direct that a verdict of acquittal be entered.

4.43 However, it is not completely certain whether, in law, a conviction can be found to be unsafe and unsatisfactory on the basis that evidence was excluded at the trial by the operation of valid legislation. There have been statements made by the Court of Criminal Appeal which suggest that a finding to this effect is available in these circumstances, and consequently this remedy would be available where it was considered that the operation of s 409B had denied the accused a fair trial.⁴⁵ On the other hand, there have also been remarks in the High Court which may be seen to suggest that no such avenue of appeal is available against the operation of s 409B.⁴⁶ The High Court has recently reconsidered the availability of this remedy in relation to s 409B in the case of HG v The Queen. The Court’s judgment in that case is pending.⁴⁷

4.44 Even if this remedy is available, from the point of view of the accused, it is less than satisfactory. He or she will inevitably be in custody while waiting for the appeal to be heard, and will have suffered the substantial embarrassment of a conviction.⁴⁸

4.45 In a practical sense, it may be difficult to determine an appeal of this kind because it would require the Court of Criminal Appeal to consider the significance of evidence which has been untested by the prosecution at trial and to which the witnesses for the prosecution have not had the opportunity to respond. In the case of HG v The Queen,⁴⁹ it was argued by counsel for the appellant that the Court of Criminal Appeal could determine an appeal of this kind by receiving the evidence which was excluded by s 409B at trial, and permitting the Crown to cross-examine on that evidence in the hearing of the appeal. Evidence of sexual experience could be admitted on appeal, it was argued, because s 409B applies to trial proceedings, not to appeals. The High Court is still to rule on the correctness of this interpretation of the section.

4.46 Prosecution’s decision not to lead evidence. There may be cases where the prosecution and defence counsel in a trial agree that s 409B would unfairly prohibit the accused from responding to certain evidence put forward by the prosecution. As a way of preventing injustice to the accused in these instances, the prosecution may decide not to lead its evidence. For example, in one case involving an allegation of child sexual assault, the prosecution had medical evidence that the child’s hymen was not intact.⁵⁰ It was known that the child had been previously sexually assaulted by someone other than the accused. If the prosecution led the medical evidence, it was thought that counsel for the accused would be prohibited by s 409B from referring to the previous abuse as a possible explanation for the broken hymen. This was considered to be unfair to the accused. Consequently, the prosecution decided not to lead any medical evidence about the child.

4.47 In some cases, a decision by the prosecution not to lead evidence may give rise to difficulties. The jury may question why there is no evidence on a particular matter about which they would ordinarily expect to hear, and may consequently speculate about the reasons why there is no evidence on this point. For example, in the case discussed above, the jury asked the trial judge a question about whether the child had been examined by a doctor after making the complaint of assault. The trial judge formed the view that he was prohibited by s 409B from answering the jury’s question but that to leave the question unanswered would cause the jury to speculate in a way as to give rise to injustice to the accused. He consequently discharged the jury and directed a new trial.⁵¹

4.48 As well as possibly confusing the jury, this remedy is unsatisfactory because it relies on the decision of the individual prosecutor not to lead evidence.⁵²

4.49 Decision not to prosecute. If, before a trial, the prosecution forms the view that s 409B will operate to exclude evidence in a way that may deny the accused a fair trial, the prosecution may take the decision not to proceed with the prosecution.⁵³ Under the Prosecution Policy of the Director of Public Prosecutions, a decision whether or not to prosecute must consider any factors in the case which dictate that, in the public interest, the matter should not proceed. One of the factors is whether there are special circumstances that would prevent a fair trial from being conducted. This would appear to allow consideration of whether or not s 409B may operate to prevent a fair trial.⁵⁴

4.50 This remedy is likely to be highly unsatisfactory from the complainant’s point of view. It may also be unsatisfactory to the general public for legislation to operate in such a way that it prevents the prosecution of an alleged sex offender.

ARGUMENTS IN SUPPORT OF THE CURRENT OPERATION OF SECTION 409B

4.51 In response to criticisms of s 409B, a number of people in submissions and in consultations expressed strong support for the section and argued that it has, to a reasonable extent, successfully achieved the purposes for which it was introduced, at least in cases of adult sexual assault.⁵⁵ The section was said to have provided some protection to complainants against distressing questioning in court, and to have reduced the amount of irrelevant material regarding sexual experience which is admitted. The “success” of s 409B in achieving these aims was attributed to a large extent to the rules-based approach underlying the section. It was argued that s 409B has proven far more effective in protecting complainants than similar legislation in other jurisdictions, because, unlike that other legislation, s 409B does not contain a judicial discretion to admit sexual experience evidence.⁵⁶ It was strongly argued that s 409B should be retained in its current form in order to ensure that complainants continue to be protected from distressing and irrelevant questioning. Some submissions conceded that it may be desirable to introduce an additional exception to the list of exceptions in s 409B(3) to take account of the “problem cases”, but emphasised that a rules-based model for s 409B should be retained.⁵⁷

4.52 In consultation, sexual assault counsellors unanimously agreed that s 409B provides some reassurance to their clients, who are often concerned that they will be questioned in court about their past sexual experiences. They are reassured with the knowledge that there are rules against questioning about sexual experience and reputation, although they are aware that these rules do not always provide a complete protection against such questioning. Counsellors remarked that, based on their observations of cross-examination in court, there are some defence counsel who are able to overcome the restrictions imposed by s 409B by asking questions which, on their face, are not excluded by s 409B, but which give rise to innuendos and insinuations about the complainant’s sexual experience, for example questions about whether the complainant lives in Kings Cross, or whether she frequents nightclubs.

Empirical studies of the operation of s 409B

4.53 Two empirical studies of the impact of s 409B on the conduct of sexual offence proceedings in New South Wales have been carried out. In general, both studies have found that the section has successfully reduced the amount of material relating to a complainant’s sexual experience and reputation which is raised in court, but considered that there are some areas in which s 409B could operate more restrictively to provide greater protection to complainants.

4.54 The first study compared sexual assault proceedings from before and after the introduction of the 1981 legislative reforms.⁵⁸ It examined transcripts of proceedings for the periods January 1979 to July 1980 and July 1981 to January 1983. In relation to committal proceedings in the Local Court, the study found that, since the introduction of s 409B, evidence relating to sexual experience or activity was raised half as frequently as it had been before the introduction of s 409B. In trials in the higher courts, it found that, since the introduction of s 409B, evidence relating to sexual experience or activity was raised in approximately 41% of trials, as compared with 68% of trials in which such evidence was raised before the introduction of s 409B. In addition, the study found that, since the introduction of s 409B, a greater percentage of the sexual experience evidence which was admitted in court related to sexual experience between the complainant and the accused, while a lesser percentage of such evidence related to the issue of whether the complainant was a virgin. Lastly, it was found that, despite the absolute prohibition against evidence of sexual reputation in s 409B(2), such evidence was nevertheless raised and admitted in a small percentage of cases at committal and at trial.⁵⁹ Evidence of this kind generally related to the complainant’s promiscuity or prostitution. Based on these findings, the study concluded that s 409B had been successful in reducing the level of investigation into complainants’ past sexual conduct. It argued that there could be greater clarification of the term “sexual reputation” in order to ensure that evidence relating to sexual reputation was consistently excluded.

4.55 The second study, entitled Heroines of Fortitude, examined complainants’ testimony in all sound-recorded sexual assault proceedings in the District Court from May 1994 to April 1995.⁶⁰ There was a total of 111 cases included in the study. It was found that the incidence of sexual experience evidence raised in court had remained fairly constant since the time of the earlier study. In the 111 cases, defence counsel were found to have raised such evidence 72 times and were successful 58 times (67%) in admitting it.⁶¹ Evidence of the complainant’s sexual reputation was raised in 12% of cases, such evidence generally relating to the complainant’s promiscuity, allegations of lesbianism, or virginity.⁶² It was also found that the procedural requirements for making an application to admit sexual experience evidence were not followed in 35% of the instances in which such evidence was admitted. The authors did not know, however, whether the issue of admissibility had been dealt with before the trial, or informally during the trial. The study concluded that the term “sexual reputation” should be defined in the legislation. It also concluded that the purpose of s 409B had not been fully achieved, and that the rules imposed by s 409B remain necessary to protect women from attacks on their claims to truth.

4.56 The studies’ finding that s 409B reduced the instances in which evidence of a complainant’s sexual experience was admitted in court is perhaps not surprising. It could be expected that the restrictions imposed by s 409B would cause a reduction of this kind. It would require a detailed analysis of the types of situations in which sexual experience evidence was either admitted or excluded to evaluate whether s 409B was successfully achieving its purposes.

PROPOSALS FOR GREATER RESTRICTIONS IN SECTION 409B

4.57 Although generally supporting the current operation of s 409B, it was considered in some submissions that the section could be made more restrictive in order to provide a stronger protection to complainants against the admissibility of evidence concerning their sexual experience.⁶³ This view reflects the general conclusions of the studies discussed above, in particular the Heroines of Fortitude report. Proposals for greater restrictions were made in respect of the following aspects of s 409B:

• the exceptions to the prohibition against sexual experience evidence in s 409B(3);
• a legislative definition of the term “sexual reputation”; and
• the procedures for making an application to admit evidence under s 409B.

4.58 It was submitted that several of the exceptions to the prohibition against sexual experience evidence in s 409B(3) have been interpreted too broadly by the courts.⁶⁴ The result of this, it was argued, is that the protection provided to complainants by s 409B has been gradually eroded, as there is greater opportunity for evidence of a complainant’s previous sexual experience to be admitted through the exceptions than was originally intended by Parliament. It was proposed that the legislation should be amended to make these exceptions more restrictive in admitting sexual experience evidence. In addition, it was considered that some of the exceptions to the prohibition are based on offensive and outmoded notions of women. It was proposed that these exceptions should be abolished.

4.59 In Chapter 6, we recommend that s 409B be redrafted in a way which abolishes the existing exceptions set out in s 409B(3). Strictly speaking, therefore, it is unnecessary to address these proposals. However, it is useful to address the criticisms in these submissions for two reasons. First, if our recommendation for reformulating s 409B is not adopted into legislation, it may assist Parliament to know our conclusions on proposals to make the exceptions in s 409B(3) more restrictive. Secondly, whatever formulation is adopted for s 409B, it is worthwhile to provide some discussion of the general probative value of sexual experience evidence which, according to some submissions, should not be admissible.

“Existing or recent relationship” exception

4.60 The first area where, it was submitted, the courts have applied too broad an interpretation relates to the exception for evidence concerning an existing or recent relationship. This exception allows evidence of sexual experience or activity to be admissible where it relates to an existing or recent relationship between the accused and the complainant. It was submitted that the words “existing or recent relationship” have been interpreted too broadly and should be defined in legislation.

4.61 As an indication that this exception is applied too widely, submissions relied on a finding in the Heroines of Fortitude report that the “recent or existing relationship” exception was the most commonly used exception for admitting evidence of a complainant’s sexual experience.⁶⁵ It was concluded from this that the courts apply the broadest possible interpretation to the term “recent relationship” to admit evidence in an inappropriately wide range of cases. Without any clear time limits to define the word “recent”,⁶⁶ it was submitted that judges may use the exception to admit evidence of a relationship which has occurred years before the alleged assault.

4.62 Submissions also focused on the way courts have interpreted the word “relationship”. It was submitted that judges have interpreted “relationship” inconsistently⁶⁷ and, in some instances, inappropriately, in order to allow the accused to raise evidence of the complainant’s sexual experience. In particular, submissions objected to the interpretation of “relationship” adopted by the Court of Criminal Appeal in the case of R v Henning.⁶⁸ In that case, the Court held that a relationship, for the purposes of the exception in s 409B(3)(b), could consist of a regular sexual liaison between the accused and the complainant, even if there were no emotional involvement between the two parties. It was submitted that this interpretation of the word “relationship” is based on an assumption that it is more likely that a complainant consented to intercourse on the occasion in question, because she consented to intercourse with the accused in the past. Submissions also expressed concern that an accused could fabricate evidence of a previous sexual relationship with the complainant in order to introduce evidence of the complainant’s sexual experience. It was submitted that it would be preferable if “relationship” were defined to require an emotional element rather than simply a sexual connection. It was thought that it would be more difficult for an accused to fabricate evidence of an emotional connection with the complainant than it would be to assert that he had been in a purely sexual relationship with the complainant. At the least, it was submitted that the word “relationship” should be defined in legislation to exclude evidence of mere acquaintance.

4.63 The Commission is not convinced that there is a need for further legislative clarification of the exception relating to a recent or existing relationship. A finding that this exception is commonly used as a means of admitting evidence of the complainant’s sexual experience is not in itself an indication that the exception is being interpreted too broadly. It may simply reflect a high incidence of sexual offence cases involving partners or former partners coming before the courts.⁶⁹

4.64 Parliament originally included this exception in s 409B(3) because it considered that, in some circumstances, evidence of sexual experience or activity between the accused and the complainant would be relevant to an issue in the case, in particular to the issues of consent or belief by the accused in the complainant’s consent. The fact that the complainant engaged in consensual sexual activity in the past may be relevant to the question of whether she consented to sexual activity on this occasion, or whether the accused believed she was consenting. Of course, consent on this occasion cannot be assumed or proven from the fact that the complainant consented previously. There may be a variety of reasons why the complainant did not consent on this occasion. Evidence that the accused and the complainant were in a previous relationship is not in itself conclusive proof of any fact in issue, such as consent. It is simply a factor which may be relevant for the jury to consider in weighing up the evidence, particularly on the issue as to whether the accused knew that the complainant was not consenting (often described as the “honest belief” issue).⁷⁰

4.65 The Commission questions the view that the case law is inconsistent on the meaning of the word “relationship”. The term appears to have been interpreted in each reported case in the context of the surrounding facts. In the Commission’s view, it is preferable to have flexibility to interpret the term in the context of each case rather than attempt to define it by legislation. The Commission does not consider it to be inappropriate if, in a particular case, “relationship” is interpreted to include a purely sexual relationship. Given that s 409B applies to offences of a sexual nature, it may be relevant to consider previous sexual encounters between the accused and the complainant. It would also be difficult to define “emotional connection” in legislation as a requirement for a relationship within the meaning of this exception. The Commission does not consider that it would be any more or less difficult for an accused to fabricate evidence of a purely sexual relationship as opposed to a relationship which includes an emotional connection of some kind. Any assertion by the accused of a recent or existing relationship is subject to cross-examination by the prosecution. Lastly, the Commission is satisfied that the case law has established that a relationship must be more than a mere acquaintance to allow evidence of sexual experience.⁷¹

“Connected set of circumstances” exception

4.66 The second exception which, it was submitted, has been interpreted too broadly is the exception to admit evidence of sexual experience where it forms part of a connected set of circumstances with the alleged assault.

4.67 This exception permits the admission of evidence of a complainant’s sexual experience or activity at or about the time of the alleged assault. The exception appears to have been directed mainly to admitting evidence which is relevant to the question of consent or belief by the accused in the complainant’s consent.⁷² However, in one case, Morgan’s case, the exception was relied on to admit evidence relevant to the question of whether the alleged intercourse had occurred at all. In this case, it was held that the exception could be used to admit evidence that the complainant had sexual intercourse with her boyfriend a couple of hours after the alleged assault by another man.⁷³ The evidence was considered to form part of the “connected circumstances” of the alleged assault on the basis that it was relevant to determining the likelihood that the assault occurred, it being open to the jury to consider that the subsequent consensual sexual act was an unlikely reaction to a sexual assault.

4.68 Submissions objected to the application of this exception in Morgan’s case. It was submitted that the exception was never intended to allow evidence of subsequent sexual activity as a basis for assessing whether an assault has occurred. It was further submitted that such evidence should not be admissible because it permits juries to speculate about whether an assault has occurred based on the complainant’s subsequent reaction, when in fact it is not possible to make any accurate generalisations about the way victims will react to a sexual assault.

4.69 The introduction of s 409B was essentially aimed at precluding moral judgments about women’s sexual behaviour from providing a basis for admitting evidence. This was a response to the common law’s view about women who were sexually active outside of marriage.

4.70 In Morgan’s case, evidence of subsequent sexual activity was admitted on the basis that it was relevant to whether a sexual assault had occurred. Its relevance did not involve a moral judgment about how women, or victims of sexual assault generally, should behave. Rather, it was based on a generalisation about how victims of sexual assault do behave, namely that victims in general may be considered unlikely to engage in consensual sexual activity shortly after being sexually assaulted. To this extent, the admission of such evidence does not offend the underlying principle of s 409B, that is, to ensure that relevance is not based on outmoded views of morality.

4.71 It is a different issue to consider whether the generalisation made by the court in Morgan’s case is a valid one to make about human behaviour, in order to assess the probative value or relevance of evidence of subsequent sexual activity. That is, the relevance of such evidence, and consequently its admissibility, depends on whether it is a valid generalisation about human behaviour to say that people who have been sexually assaulted do not usually engage in consensual sexual intercourse shortly after the alleged assault.

4.72 Most jury questions are determined on the basis of ordinary human experience. Similarly, in the Commission’s view, it should be a matter for the jury to decide whether it is ordinary human experience to engage in consensual sexual activity shortly after being sexually assaulted. Of course, there may be a variety of reasons to explain why, in a particular case, a victim of sexual assault consented to sexual intercourse after being assaulted, such as shock, or fear of reprisals in domestic violence settings. It is for the prosecution to bring such explanations to the jury’s attention and it is for the jury to make an assessment of the facts based on their collective judgment of human experience, provided they are warned against making assumptions about the complainant’s moral character by reason of the evidence of his or her subsequent sexual activity.⁷⁴

Exception to explain physical evidence

4.73 The third exception which was considered in some submissions to require greater legislative restriction is the exception relating to physical evidence. This exception allows evidence of a complainant’s sexual experience or activity to be admitted where the accused denies that intercourse occurred, and the evidence is relevant to explain signs of intercourse, that is, semen, pregnancy, disease, or injury.

4.74 This exception was criticised for the way in which the word “injury” has been interpreted. In one case, “injury” was held to include a complainant’s general state of dishevelment and emotional distress. Evidence that the complainant had had sexual intercourse with her boyfriend earlier in the evening of the alleged assault was considered admissible to explain why the complainant appeared dishevelled and distressed after the alleged assault. It was submitted that the extension of “injury” to include general dishevelment and distress goes beyond the logical meaning of the word and is contrary to the original intention of the exception to allow the accused to respond to physical evidence of intercourse. It was thought effectively to allow evidence of sexual experience to be admitted in a wide range of circumstances. It was submitted that the term “injury” should be clarified in legislation.

4.75 The Commission does not agree that the word “injury” has been interpreted in a way which is inconsistent with the original intention of Parliament, nor that it needs to be defined in legislation in order to restrict its meaning. This exception was intended to allow evidence that the complainant had had sexual intercourse with someone at around the time of the alleged assault, where such evidence was relevant to explain why the complainant showed signs of having had sexual intercourse. Parliament considered it necessary to include this exception in fairness to the accused, to allow him or her to provide an alternative explanation for these signs of intercourse which might otherwise tend to incriminate him or her.⁷⁵ It accords with the underlying purpose of the exception to interpret the word “injury” in a way which applies to any evidence which tends to indicate that sexual intercourse with someone has occurred, including signs of dishevelment and distress.

Exception for evidence of disease in the complainant or in the accused

4.76 A number of submissions objected to retaining an exception to admit evidence of a complainant’s sexual experience or activity where it relates to the presence of a disease, either in the accused or in the complainant. This exception was originally intended to cover cases where the complainant has a sexually transmitted disease from a previous sexual encounter which is absent in the accused, or where the accused has a sexually transmitted disease which is absent in the complainant. Evidence of a sexually transmitted disease in these circumstances was regarded as relevant to the issue of whether intercourse with the accused occurred.

4.77 It was submitted that this exception should be abolished. It was asserted that evidence of a disease in one but not both parties can neither prove nor disprove contact, and therefore such evidence has a low probative value. In contrast, there is a high risk that this sort of evidence will humiliate the complainant and prejudice him or her in the eyes of some jurors.

4.78 Obviously, evidence of a disease in either the complainant or the accused is not conclusive proof that intercourse did or did not occur. This does not mean, however, that evidence of this kind may not have a significant probative value in a particular case. Although, on its own, it does not prove that intercourse occurred or did not occur, in some instances, it may be directly relevant to that question. The Commission therefore considers that such evidence should be admissible on the basis that in some cases it will have a high probative value. Any risk of prejudice or humiliation for the complainant which arises from this evidence is a factor to be weighed up by the judge in deciding whether to admit it. Even if it is admitted, the judge should warn the jury about the use they may make of the evidence, and that they should not use it to draw the conclusion that the complainant is unreliable or more likely to consent to sexual intercourse.⁷⁶

Exception for evidence of discovery of pregnancy or disease

4.79 Some submissions also objected to including an exception to admit evidence of a complainant’s sexual experience or activity where it relates to discovery that the complainant is pregnant or has a disease. This exception was intended to allow evidence that a complainant made an allegation against the accused only after discovering that she was pregnant or had a disease. It was submitted that this exception is based on the notion that women are prone to lie about sexual assault to avoid criticism for their sexual activities. It was proposed that this exception be abolished.

4.80 The Commission does not agree that this exception reflects any sexist assumptions about women. Where a person is accused of a sexual offence and pleads not guilty, it is usually⁷⁷ central to his or her defence to argue that the complainant’s version of events is not true, that the complainant is either mistaken or is lying. Although it may be extremely distressing to a complainant to have his or her word publicly doubted, it is fundamental to our system of law that an accused have the right to plead not guilty and to introduce evidence which may raise a reasonable doubt in the jury’s minds about the prosecution’s case. Consistent with that principle, the exception for pregnancy or disease allows the accused to admit evidence which may be relevant to raising a reasonable doubt. It does not rely on sexist assumptions about women generally. Rather, it reflects the possibility that, in some cases, a complainant of a sexual offence, just like a complainant of any other type of offence, may have a motive to lie, and it permits the accused to bring evidence of this motive to the jury’s attention.

Definition of “sexual reputation”

4.81 It was submitted that the term “sexual reputation” in s 409B(2) should be legislatively defined.⁷⁸ Submissions referred to the empirical studies of s 409B,⁷⁹ both of which made proposals to the same effect. The studies found that, despite the prohibition against sexual reputation evidence in s 409B(2), material which should properly be classified as sexual reputation evidence had been admitted in a small proportion of the cases studied. The material was admitted either on the basis that it came within one of the exceptions to the prohibition on evidence of sexual experience, or on the basis that it was not caught at all by s 409B. The studies concluded that judges and lawyers would benefit from a clear legislative definition of “sexual reputation” to ensure that the prohibition was consistently applied and that evidence relating to “sexual reputation” was more easily distinguished from evidence of “sexual experience”. The same conclusion was reached in a study of the Tasmanian legislative provision prohibiting evidence of sexual reputation.⁸⁰

4.82 As noted in Chapter 2, no guidance is given in the legislation as to the meaning of the terms “sexual reputation” and “sexual experience” nor has there been any detailed consideration of the meaning of the term “sexual reputation” in cases.

4.83 In consultation, a number of defence lawyers opposed any attempt to define the term “sexual reputation” in legislation.⁸¹ They conceded that the term is unclear and that it sometimes overlaps with the term “sexual experience”, but they did not consider that this ambiguity gave rise to any problems in practice. In their view, it was preferable for the interpretation of the term to remain flexible, rather than to be tied to a specific legislative meaning. Members of the Witness Assistance Service of the Office of the DPP also opposed the suggestion to define “sexual reputation” in legislation.⁸² They were concerned that, if the term were defined, there would be a greater risk of evidence of a complainant’s sexual conduct being admitted on the basis that it did not technically come within the legislative definition of “sexual reputation”.

4.84 The Commission agrees that it is undesirable to tie the term “sexual reputation” to a specific legislative definition. The prohibition in s 409B(2) on sexual reputation evidence was principally intended to exclude evidence that a woman was known to be promiscuous as evidence relevant to credibility and the issue of consent. The Commission is satisfied that this legislative intention is sufficiently clear by reference to the Parliamentary debates leading to the introduction of s 409B. It is preferable to leave a degree of flexibility with the interpretation of “sexual reputation” to ensure it does not inadvertently exclude evidence which should be admissible.

4.85 In particular, the Commission is concerned to ensure that the prohibition against evidence relating to sexual reputation does not wrongly exclude relevant evidence which may also be characterised as evidence of sexual experience. As we discussed in paragraph 4.29, the wording of the current s 409B(2) may be interpreted as excluding evidence of sexual experience if it also relates to sexual reputation, such as evidence of acts of prostitution. This may disadvantage not only the case for the accused, but also, in some situations, the case for the prosecution. The Commission addresses this issue in its recommended reformulation.⁸³

Procedure for admitting evidence of sexual experience or activity

4.86 A number of submissions expressed concern that lawyers and judges do not always follow the correct procedure in admitting evidence of sexual experience or activity.⁸⁴ As noted in Chapter 2, if counsel wish to raise such evidence, then s 409B(4) and (6) requires that an application first be made to the trial judge, in the absence of the jury, who must decide whether the evidence is admissible under one of the exceptions in s 409B(3).

4.87 The Heroines of Fortitude report found that in 35% of the cases in which evidence of the complainant’s sexual experience was admitted, an application to the judge was not made beforehand. The report concluded that judges and lawyers either fail to recognise that evidence comes within the restrictions imposed by s 409B, or ignore the proper procedures for admitting such evidence.⁸⁵

4.88 On the other hand, defence lawyers and District Court judges, in consultation, insisted that they routinely follow the correct procedures for admitting evidence under s 409B.⁸⁶ Defence lawyers asserted that the only cases where they may not seek leave before leading sexual experience evidence is where there is prior agreement between the defence and the prosecution that such evidence is obviously admissible and no objection to its admission is made by the prosecution. Where both prosecution and defence agree to the admission of a piece of evidence, whether it be evidence of sexual experience or any other type of evidence, it is normal practice for the evidence to be admitted without intervention by the trial judge. The methodology adopted in the research for the Heroines of Fortitude report could not take into account applications made before trial or agreements reached informally between the Crown and the defence during trial. Arguably, this suggests that no particular reliance should be placed on the conclusion which the report reaches regarding procedure.

4.89 Whatever view is taken of the current procedural requirements, the Commission considers that there are advantages in setting out with greater precision in the legislation the procedures which must be followed under the Commission’s recommended reformulation of s 409B. With the introduction of a restricted discretion in the recommended reformulation, the imposition of strong procedural requirements will act as an important means of ensuring that the discretion is properly exercised. The ways in which the recommended procedures will achieve this are discussed in Chapter 6.

1. See, for example, R v McIlvanie (NSW, District Court, No 93/11/1405, Shillington DCJ, 30 August 1994, unreported); R v Morris (NSW, Supreme Court, No 70005/89, Wood J, 18 October 1990, unreported); R v Murphy (NSW, District Court, No 94/21/0425, Rummery DCJ, 30 May 1995, unreported); R v PJE (NSW, District Court, No 94/21/1248, Dent DCJ, 5 April 1995, unreported); R v PJE (NSW, Court of Criminal Appeal, No 60216/95, 9 October 1995, unreported); R v Grills (NSW, Court of Criminal Appeal, No 60445/95, 12 December 1995, unreported). See also R v Morgan (1993) 30 NSWLR 543 per Mahoney JA at 554; R v M (1993) 67 A Crim R 549 (NSW CCA) per Allen J at 558; R v Bernthaler (NSW, Court of Criminal Appeal, No 60394/93, 17 December 1993, unreported) per Badgery-Parker J at 9.

2. See, for example, M Kumar and E Magner, “Good Reasons for Gagging the Accused” (1997) 20 University of New South Wales Law Journal 311; A Cossins, “Sex, Lies and the Rights of a Rape Victim” Sydney Morning Herald (16 April 1997) at 15; New South Wales, Department for Women, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (Gender Bias and the Law Project, Sydney, 1996) at 250-251; New South Wales, Standing Committee on Social Issues, Legislative Council, Sexual Violence: Addressing the Crime: Inquiry into the Incidence of Sexual Offences in New South Wales: Part II (Report 9, 1996) at 27-28

3. See, for example, Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23; Dietrich v The Queen (1992) 177 CLR 292. It has been held, however, that the right to a fair trial may be curtailed by statute, to the extent that the courts have no power to stay criminal proceedings on the basis that legislation operates in those proceedings to cause injustice to the accused: see R v PJE (NSW, Court of Criminal Appeal, No 60216/95, 9 October 1995, unreported), approved by the High Court in refusing an application for special leave to appeal: Grills v The Queen; PJE v The Queen (High Court of Australia, No S8/1996; S154/1995, 9 September 1996, unreported).

4. See para 4.1.

5. Legal Aid Commission, Consultation; Public Defenders, Consultation; Forbes Chambers, Consultation; District Court judges, Consultation; Bar Association, Submission at 1; Law Society, Submission at 2-4; Public Defenders, Submission at 1-4; Confidential, Submission at 3-4; T Molomby, Submission at 1-2; H di Suvero, Submission at 5-9; J Gallagher, Submission at 1-7.

6. In the case of R v Bernthaler (NSW, Court of Criminal Appeal, No 60394/93, 17 December 1993, unreported), it was commented that this may be a case in which s 409B operated to cause injustice to the accused: see Kirby P at 5, Badgery-Parker J at 9. This case involved an adult complainant, although the evidence which was excluded related to evidence of false allegations of abuse by the complainant when she was a child.

7. Legal Aid Commission, Consultation; Forbes Chambers, Consultation; Public Defenders, Consultation. See also Law Society, Submission at 2-3; Bar Association, Submission at 1-2. The Director of Public Prosecutions also identified these as the types of cases in which s 409B has been controversial for its potential injustice to the accused: see N Cowdery QC, Submission at 1-2.

8. Public Defenders, Consultation.

9. For example, R v Morris (NSW, Supreme Court, No 70005/89, Wood J, 18 October 1990, unreported); R v G (1997) 42 NSWLR 451.

10. For example, where medical evidence shows that the child has a ruptured hymen: see R v Morris (NSW, Supreme Court, No 70005/89, Wood J, 18 October 1990, unreported).

11. See, for example, R v Morris, where the child stated that she had seen an erect penis. In consultation, defence lawyers stated that they had encountered cases where the child demonstrates a knowledge of sexual matters, such as bizarre sexual acts: see Legal Aid Commission, Consultation; Forbes Chambers, Consultation.

12. See, for example, R v G (1997) 42 NSWLR 451 (decision on appeal to the High Court pending). See also Public Defenders, Consultation.

13. Southern Area Health Service, Sexual Assault Services, Consultation; DPP Witness Assistance Service, Consultation; NSW Rape Crisis Centre Inc, Submission at 7-8.

14. See R v Bernthaler (NSW, Court of Criminal Appeal, No 60394/93, 17 December 1993, unreported); R v McIlvanie (NSW, District Court, No 93/11/1405, Shillington DCJ, 30 August 1994, unreported).

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

16. See R v PJE (NSW, Court of Criminal Appeal, No 60216/95, 9 October 1995, unreported). See Bar Association, Submission at 2.

17. R v PJE.

18. This example was given by the Public Defenders: see Public Defenders, Submission at 3.

19. See, for example, People v Hackett 365 NW 2d 120, 124-125 Mich 1984); People v Makela 383 NW 2d 270, 276 (Mich Ct App 1985). See C Fishman, “Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant’s Past Sexual Behaviour” (1995) 44 Catholic University Law Review 709 at 768-769.

20. See the discussion by McHugh J of the distinction between evidence relevant to credit and evidence relevant to a fact in issue in Palmer v The Queen (1998) 72 ALJR 254 at 265-267, cited with approval by Smart J in the NSW Court of Criminal Appeal in R v Vawdrey (NSW, Court of Criminal Appeal, No 60432/97, 16 April 1998, unreported) at 11-13. The extent to which evidence of previous allegations of sexual abuse may be used to show a propensity to lie and fantasise was discussed in R v Bernthaler (NSW, Court of Criminal Appeal, No 60394/93, 17 December 1993, unreported) per Badgery-Parker J at 10. See also Evidence Act 1995 (NSW)

s 102-103.

21. Public Defenders, Consultation; Legal Aid Commission, Consultation, Forbes Chambers, Consultation. See also Law Society, Submission at 4.

22. One magistrate submitted that, in his eight years’ experience as a magistrate, he had not encountered any cases of summary prosecution in which he considered that the accused was denied a right to a fair trial because of the operation of s 409B: see D Milovanovich, Submission at 3. Of course, the limited jurisdiction of the Local Court to hear sexual offence cases may mean that issues relating to s 409B rarely arise in the Local Court. In consultation, several District Court judges recollected a few cases in which they considered s 409B severely restricted the defence case because of the exclusion of evidence of previous allegations: see District Court judges, Consultation.

23. It was stated in consultation with Legal Aid solicitors that, in their experience, there are cases where counsel for the accused does not attempt to have relevant evidence admitted because it is presumed it will be rejected by reason of s 409B: see Legal Aid Commission, Consultation.

24. See para 4.49-4.50.

25. Public Defenders, Submission at 6.

26. In R v Berrigan, the Court of Criminal Appeal commented that if the complainant’s convictions for soliciting had occurred closer to the time of the alleged incident, they may be relevant to support the accused’s claim that she had consented to intercourse with him then demanded money, and may have been admissible under s 409B(3)(a): see R v Berrigan (NSW, Court of Criminal Appeal, No 60412/93, 7 October 1994, unreported); see also Berrigan v The Queen (High Court of Australia, No S159/94, 23 November 1995, unreported), refusing the application for special leave to appeal.

27. See J Fleming, Submission at 1-2. Ms Fleming is a magistrate. The example given in her submission related to a case in which she had been involved as a solicitor.

28. Forbes Chambers, Consultation.

29. R v Uhrig (NSW, Court of Criminal Appeal, No 60200/96, 24 October 1996, unreported).

30. T Molomby, Submission at 1.

31. Public Defenders, Consultation; Legal Aid Commission, Consultation; Forbes Chambers, Consultation. As for the suggestion that the term “sexual reputation” be defined in legislation, see para 4.81-4.85.

32. Of course, as we discussed in paragraph 4.24-4.25, even if evidence of prostitution may be shown to be evidence of “sexual experience”, it may still be inadmissible under the prohibition in s 409B(3). The proximity requirement in s 409B(3)(a)(i) would in most cases preclude its admission under this exception.

33. See Leahy v Price and Anor (NSW, Supreme Court, Adams J, No 11756/98, 28 September 1998, unreported). In this case, the complainant, a female sex worker, alleged non-consensual anal intercourse following abduction. It was part of the prosecution’s case that she entered the accused’s car, and accepted $100 in exchange for other sexual acts. It was suggested by the court that this evidence related to the complainant’s sexual reputation, since it demonstrated that the complainant was a sex worker. It was therefore inadmissible by virtue of s 409B(2). If this suggestion is correct, it might well be that the prosecution in such a case cannot proceed, a result which would be most unjust from the point of view of the complainant.

34. See recommendation 2 and para 6.148.

35. Crown Prosecutors, Consultation.

36. T Molomby, Submission at 1.

37. See Seaboyer v The Queen; Gayme v The Queen [1991] 2 SCR 577 per McLachlin J (delivering the judgment of the majority of the Court) at 618; H Galvin, “Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade” (1986) 70 Minnesota Law Review 763.

38. Arguably, in some cases, evidence relating to previous abuse could be brought within the existing “injury” exception in s 409B(3)(c). For example, it could be argued that, for the purposes of s 409B(3)(c), a child’s broken hymen amounts to an injury so as to allow evidence of previous sexual abuse to explain this physical evidence. There does not appear to be any discussion in the cases, however, as to whether the term “injury” could extend to cover such evidence: see R v Morris (NSW, Supreme Court, No 70005/89, Wood J, 18 October 1990, unreported); R v Murphy (NSW, District Court, No 94/21/0425, Rummery DCJ, 30 May 1995, unreported). Similarly, it could be argued that evidence of a child’s emotional distress, consistent with sexual abuse, could be classified as an “injury” for the purposes of admitting evidence of previous sexual abuse. See R v Dimian (1995) 83 A Crim R 358 (NSW CCA), in which “injury” was interpreted to include emotional distress.

39. Equivalent legislation in Western Australia, Victoria, and Canada imposes restrictions on questioning of a complainant only in cross-examination, not examination-in-chief: see Evidence Act 1906 (WA) s 36BC; Evidence Act 1958 (Vic) s 37A(2)(a); Criminal Code (Canada) s 276(2).

40. See R v Linskey (NSW, Court of Criminal Appeal, No 306/85, 9 April 1986, unreported). There is some inconsistency in the section. Section 409B(5) seems to anticipate that the prosecution may raise evidence of sexual experience or activity, or lack of it, whereas s 409B(2) and (3) generally prohibits such evidence.

41. A couple of submissions suggested that s 409B be amended so that it not apply to the prosecution: see Fems Rea, Submission: Part II at 32; E Magner and M Kumar, Submission at 11-12.

42. R v McIlvanie (NSW, District Court, No 93/11/1405, Shillington DCJ, 30 August 1994, unreported); R v Murphy (NSW, District Court, No 94/21/0425, Rummery DCJ, 30 May 1995, unreported); R v PJE (NSW, District Court, No 94/21/1248, Dent DCJ, 5 April 1995, unreported).

43. R v PJE (NSW, Court of Criminal Appeal, No 60216/95, 9 October 1995, unreported), approved by the High Court in refusing an application for special leave to appeal: Grills v The Queen; PJE v The Queen (High Court of Australia, No S8/96; S154/95, 9 September 1996, unreported).

44. See Criminal Appeal Act 1912 (NSW) s 6.

45. See R v Morgan (1993) 30 NSWLR 543 per Mahoney J at 554; R v PJE (NSW, Court of Criminal Appeal, No 60216/95, 9 October 1995, unreported) per Cole JA at 3, per Grove J at 2.

46. In Berrigan v The Queen (High Court of Australia, No S159/94, 23 November 1995, unreported), Dawson J remarked that the correct application of s 409B cannot of itself found an argument that the trial was unsafe or unsatisfactory. In this particular case, however, the Court found it unnecessary to examine the issue further, since it refused the application of the accused for special leave to appeal.

47. HG v The Queen (High Court of Australia, No S67/98, 8 September 1998, unreported).

48. Legal Aid Commission, Consultation.

49. HG v The Queen (High Court of Australia, No S67/98, 8 September 1998, unreported).

50. R v Morris (NSW, Supreme Court, No 70005/89, Wood J, 18 October 1990, unreported).

51. In R v PJE (NSW, Court of Criminal Appeal, No 60216/95, 9 October 1995, unreported), Sperling J at 17 disagreed with the approach taken by Wood J in discharging the jury in R v Morris. Justice Sperling took the view that a court cannot decline to exercise its jurisdiction on the ground that a trial would be unjust because of the operation of a statutory law.

52. Some prosecutors have, unfortunately, demonstrated an inappropriate zealotry: see R v Dimian (1995) 83 A Crim R 358 (NSW CCA).

53. See District Court judges, Consultation.

54. New South Wales, Office of the Director of Public Prosecutions, Prosecution Policy and Guidelines (Sydney, March 1998) para 5. Of course, this factor may need to be weighed up against other factors in the decision whether to prosecute, such as the seriousness of the alleged offence, and whether the alleged offence is of considerable public concern.

55. P Wagstaff, Submission; M Roberts, Submission; M Curtis, Submission; T Manson, Submission; Westmead Sexual Assault Service, Submission; P Williams, Submission; Richmond Sexual Assault Service, Submission; Fems Rea, Submission; Dympna House, Incest Counselling, Information and Resource Centre, Submission; Office of the Status of Women, Department of the Prime Minister and Cabinet, Submission; Kingsford Legal Centre, Submission; Women’s Legal Resources Centre, Submission; Liverpool/Fairfield Sexual Assault Service, Submission; Macquarie and Far West Sexual Assault Services, Submission; Redfern Legal Centre, Aboriginal Women’s Legal Resources Centre, Campbelltown Legal Centre, Intellectual Disability Rights Service, Submission; Child Protection Unit, New Children’s Hospital, Submission; L Martin, Submission; NSW Council on Violence Against Women, Submission; Department for Women, Submission; Sex Workers Outreach Project, Submission; Royal North Shore Sexual Assault Service, Consultation; Southern Area Health Service, Sexual Assault Services, Consultation; Eastern and Central Sexual Assault Service, Consultation; Liverpool/Fairfield Sexual Assault Service, Consultation. A number of people commented that, while s 409B should be retained in its current form, there are issues relating to the operation of the section in child sexual assault cases which may warrant special consideration and perhaps the introduction of a separate provision for child complainants: see para 6.74-6.81.

56. See Chapter 5.

57. See S Egger and J Gans, Submission; NSW Rape Crisis Centre Inc, Submission; NSW Health Department, Submission; Victims Advisory Board, Submission; Women Lawyers’ Association, Submission; N Cowdery QC, Submission; Crown Prosecutors, Consultation. See paragraph 6.21-6.31 for further discussion of the option to introduce additional exceptions into s 409B(3). One submission supported the general approach taken in s 409B, but suggested as an option for overcoming unfairness that the complainant be vested with the power to decide whether to agree to the admission of evidence of her or his sexual experience: see E Magner and M Kumar, Submission; see further at para 6.94-6.95.

58. R Bonney, Crimes (Sexual Assault) Amendment Act 1981 Monitoring and Evaluation Interim Report 3: Court Procedures (NSW Bureau of Crime Statistics and Research, Sydney, 1987).

59. It was found that, since the introduction of s 409B, the complainant’s sexual reputation was raised in 8.9% of cases at trial, and in 7.6% of cases at committal: see Bonney at para 2.2 and 3.2. “Sexual reputation evidence” was interpreted in the study to consist of references to the complainant’s prostitution, assertions that the complainant was believed or known to be promiscuous, or other references to the complainant’s sexual proclivities which were asserted to be commonly known: see Bonney at para 1.4.4.

60. New South Wales, Department for Women, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (Gender Bias and the Law Project, Sydney, 1996) (“Heroines of Fortitude”) at 223-253. It appears that the study of s 409B was confined to examination of the complainant’s testimony, and did not look at testimony of the accused or the issues at trial: see Heroines of Fortitude at 229.

61. The prosecution raised sexual experience material 23 times in the 111 cases, and were successful 21 times in admitting such evidence (91%).

62. The term “sexual reputation” was given the same meaning in this study as in the previous study.

63. One submission proposed that all evidence of the complainant’s sexual experience should be excluded altogether in sexual offence proceedings, on the basis that it will never be relevant to the question of whether the accused committed the alleged offence: see D Turney, Submission.

64. NSW Rape Crisis Centre Inc, Submission at 11; Fems Rea, Submission at 7 and para 5.3-6.4; Office of the Status of Women, Department of Prime Minister and Cabinet, Submission at 6-7; Kingsford Legal Centre, Submission at 8; Women’s Legal Resources Centre, Submission at 8-9; NSW Health Department, Submission at 5-6; Redfern Legal Centre, Aboriginal Women’s Legal Resources Centre, Campbelltown Legal Centre, Intellectual Disability Rights Service, Submission at 2-3; E Magner and M Kumar, Submission at 24-30; NSW Council on Violence Against Women, Submission at 3-6, 10; Department for Women, Submission at 8-11, 21; Sex Workers Outreach Project, Submission at 3. See also Heroines of Fortitude at 228. On the other hand, the Women Lawyers’ Association expressed the view that it is not necessary to reformulate the exceptions in s 409B(3): see Women Lawyers’ Association, Submission at 5.

65. As a percentage of instances in which sexual experience evidence was admitted in the cases studied, the “recent or existing relationship” exception was used in 27% of instances to admit such evidence: see Heroines of Fortitude at 232-233.

66. The legislation does not impose any precise time limits on the word “recent”, and the courts have chosen not to define the word in the context of s 409B(3). In one case, it was noted that what constitutes a recent relationship will be a matter of degree, and will depend on the facts of the particular case: 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) at 76-78.

67. It was submitted that, in the case of R v White (1989) 18 NSWLR 332, the court interpreted the word “relationship” narrowly to require an emotional connection of some kind, whereas in the case of R v Henning, the court interpreted “relationship” broadly to require simply a sexual connection: see Fems Rea, Submission at para 6.3.2.

68. In its inquiry into sexual offences in New South Wales in 1996, the Standing Committee on Social Issues expressed the view that the effect of the decision in R v Henning on the operation of s 409B was in need of urgent review: see New South Wales, Standing Committee on Social Issues, Legislative Council, Sexual Violence: Addressing the Crime: Inquiry into the Incidence of Sexual Offences in New South Wales: Part II (Report 9, 1996) at 26-28.

69. Indeed, the Heroines of Fortitude report found that in 27% of the cases studied, there was some evidence of prior consenting sexual intercourse between the accused and the complainant: see Heroines of Fortitude at 248.

70. In New South Wales, as a defence to a charge of sexual assault, the accused may claim that he or she had an honest but mistaken belief that the complainant was consenting to sexual intercourse. This follows the English approach set down in DPP v Morgan [1976] AC 182. There is no requirement that the mistaken belief be reasonable although, of course, as a matter of evidence, the fact that the belief was unreasonable may be relevant to the determination of whether the accused did indeed honestly hold that belief.

71. See R v White (1989) 18 NSWLR 332. In R v Henning, contrary to the assertions in some submissions, evidence of sexual activity was admitted on the basis that the complainant and the accused had been engaging in regular sexual relations for at least several months before the alleged assault.

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

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

74. See subsection 11 of the Commission’s recommended reformulation: recommendation 2 and para 6.127-6.128.

75. See New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 March 1981 at 4765; G D Woods, Sexual Assault Law Reforms in New South Wales: A Commentary on the Crimes (Sexual Assault) Amendment Act 1981 and Cognate Act (New South Wales, Department of the Attorney General and of Justice, 1981) at 37.

76. See R v Dimian (1995) 83 A Crim R 358 per Hunt CJ at CL at 367.

77. This may not always be the case. For example, an accused person who claims to have honestly though mistakenly believed that the complainant was consenting to intercourse is not necessarily asserting a version of events which is inconsistent with the complainant’s testimony.

78. Kingsford Legal Centre, Submission at 22; Office of the Status of Women, Department of the Prime Minister and Cabinet, Submission at 4-5; E Magner and M Kumar, Submission at 9-10; NSW Council on Violence Against Women, Submission at 13; Department for Women, Submission at 29; L Byrnes, Submission at 1-2.

79. See para 4.53-4.56.

80. T Henning, Sexual Reputation and Sexual Experience Evidence in Tasmanian Proceedings Relating to Sexual Offences (Occasional Paper 4, University of Tasmania Law School, University of Tasmania Law Press, 1996) at para 6.1. See also T Henning and S Bronitt, “Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence” in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Federation Press, Sydney, 1998) at 84-85.

81. Legal Aid Commission, Consultation; Public Defenders, Consultation.

82. DPP Witness Assistance Service, Consultation. One submission also opposed the suggestion to define “sexual reputation” in legislation, unless guidance was given to practitioners: see M Roberts, Submission at 3.

83. See recommendation 2 and para 6.143-6.148.

84. Redfern Legal Centre, Aboriginal Women’s Legal Resources Centre, Campbelltown Legal Centre, Intellectual Disability Rights Service, Submission at 8; NSW Health Department, Submission at 2-3; Fems Rea, Submission at 4; Office of the Status of Women, Department of the Prime Minister and Cabinet, Submission at 8; Kingsford Legal Centre, Submission at 12-13; NSW Council on Violence Against Women, Submission at 4; Department for Women, Submission at 14.

85. Heroines of Fortitude at 240-252.