6.1 Section 409B has been particularly controversial in relation to certain types of cases, referred to in this report as the “problem cases”.¹ The evidence which was excluded in the problem cases related either to sexual abuse by another person, or to previous, supposedly false, allegations. The Commission has come to the conclusion that evidence of this kind may be highly relevant to a particular case. Its exclusion by s 409B indicates the need to reform that section if the accused is to be assured of a fair trial. In reaching this conclusion, we have taken account of the objections to the admissibility of this type of evidence, expressed by a number of people in submissions and consultations.

Objections to the admissibility of evidence of sexual abuse

6.2 In relation to the admissibility of evidence of sexual abuse by someone other than the accused, a number of arguments were put forward as to why s 409B should not be amended to admit evidence of this kind.² First, it was said that there will often be great trauma and distress involved for the complainant in being publicly asked questions about previous sexual abuse. Secondly, there is a danger that such evidence will be prejudicial in so far as it may reinforce in some jurors’ minds myths about sexual assault victims, particularly children, being sexually provocative and in some way inviting sexual advances.³ It is argued that the effect of this may be to divert jurors’ attention away from the real issues in the case, with the result that their verdict will be based on prejudices and misconceptions rather than a proper evaluation of the evidence. Thirdly, young children in particular may become very confused while giving evidence if they are asked questions which refer to a previous incident of abuse not the subject of the current charges. As a result, a jury may wrongly perceive the child as an unreliable witness and discount the child’s evidence.

Objections to the admissibility of evidence of false allegations of abuse

6.3 As we noted in paragraph 4.20, it may be difficult to determine with any accuracy whether an allegation of abuse is in fact false. A number of people in submissions and consultations expressed concern about the admissibility of allegations of abuse because of this.⁴ They emphasised that there are victims of sexual assault who make complaints but, for a variety of reasons, those complaints do not end in a conviction. This does not necessarily mean that the complaint was false. For example, there may be family or community pressure to withdraw a complaint, or threats from the abuser. Even where a complaint proceeds to trial and the alleged perpetrator is acquitted, this does not necessarily mean that the complaint was false, but that the prosecution failed to prove its case beyond reasonable doubt.

6.4 Particular concern was expressed about the admissibility of such evidence in proceedings where the complainant is Aboriginal.⁵ It was submitted that Aboriginal women are often vulnerable to sexual assault and domestic violence, and are also likely to withdraw complaints of abuse due to community pressure. Evidence of these previous allegations should not be used against them if they choose later to proceed to court.

6.5 In response to this objection, the Public Defenders argued that the question of the falsity or otherwise of an allegation is surely a matter for the jury to determine.⁶ The accused simply needs to raise a reasonable doubt about his or her guilt, and should not be precluded from doing so by questioning the reliability of a witness.

6.6 Some submissions also objected to the possible prejudicial effect which evidence of this kind may have on the accuracy of the fact finding process.⁷ Evidence of previous allegations may play upon some jurors’ misconceptions of women and children as essentially unreliable and prone to making false accusations of sexual assault out of spite, vengeance, or suppressed sexual fantasies. The prejudicial effect of such evidence may be particularly strong in cases involving complainants who are children or adults with an intellectual disability, who arguably are commonly viewed as inherently unreliable. In these cases, the mere suggestion that the complainant has made an allegation of abuse in the past may be assumed to indicate that he or she must be in the habit of making up stories of abuse.

6.7 While some submissions conceded that there may be situations where it is relevant to raise evidence which establishes a pattern of making demonstrably false allegations, it was argued that in cases where the evidence is less compelling, the suggestion of a previous allegation may simply serve to divert the jury’s attention from the real issues by way of prejudicial and mostly irrelevant material.⁸ A number of sexual assault counsellors expressed the view that, in their experience, there is only a very small number of cases involving people who make multiple false allegations of sexual assault, and these cases very rarely proceed to court. There is a far greater risk that evidence of a previous true allegation will be used to prejudice the complainant’s evidence.⁹ This assertion was, however, strongly disputed by defence lawyers.¹⁰

6.8 There are also policy concerns about admitting evidence of previous allegations. Complainants may suffer great distress at having the details of an earlier allegation investigated within the trial for the current complaint.¹¹ There is concern that an amendment to s 409B to allow evidence of previous allegations may result in “fishing expeditions” by the defence to try to find means to discredit the complainant.¹² Lastly, it was submitted that an amendment to allow evidence of previous “false” allegations of sexual abuse to be admissible may discourage victims from reporting the commission of these offences.¹³

The Commission’s response

6.9 It is integral to the fairness of a trial that the accused has an opportunity to cross-examine and lead evidence on matters of substantial relevance to his or her defence. Protecting that right is not a question of favouring the accused over the complainant, or of weighting the system to protect the “criminal”. It is surely a matter of public interest that our criminal justice system remain centred on the presumption of innocence and the right of every person charged to be tried fairly. These principles are not, and should not become, mere rhetoric; they shape the substance and procedure of the criminal law and common justice. The focus of a criminal trial is always on the accused; it is, after all, his or her liberty which is ultimately at stake.

6.10 In the Commission’s view, there may be instances where evidence of sexual abuse, or of an allegation of abuse, has substantial probative value in relation to the issues. The exclusion of such evidence would make it difficult for an accused to have a fair trial. Our view is supported by comments of the High Court.¹⁴ Elsewhere, in the United States of America, it has been held that the exclusion of the types of evidence arising in our “problem cases” may violate the accused’s constitutional right to a fair trial.¹⁵

6.11 At present, the only safeguards against injustice to the accused in these situations are, as outlined in paragraph 4.40-4.50, a decision not to prosecute, a decision by the prosecution not to lead certain evidence, and, possibly, an appellate decision to quash a conviction and enter an acquittal. These safeguards are less than satisfactory. On the one hand, they may have the result that a person is not prosecuted for the alleged commission of an offence because of the unfair consequences of legislation, or that a jury’s decision is overturned on the basis of evidence that has been untested at trial. On the other hand, they may result in the imprisonment of a person who has been wrongly convicted while that person awaits the determination of an appeal.

6.12 The policy objections to the admissibility of this type of evidence are based on the possibility of an increase in distress for complainants and the risk that sexual assault victims will be discouraged from reporting. One of the purposes of s 409B was to minimise the distress suffered by complainants in the courtroom. If s 409B is amended to allow evidence of sexual abuse and previous “false” allegations of abuse, it is possible that some complainants will suffer greater distress in giving evidence as a result of being questioned on these issues. That distress should not be trivialised or disregarded. In some cases, and for some complainants, perhaps particularly for children, cross-examination on these topics may be extremely traumatic.

6.13 We can only speculate about what effects, if any, the admission of evidence of sexual abuse or of an allegation of abuse may have on the incidence of reporting of sexual abuse. To our knowledge, the introduction of s 409B has not been found necessarily to have led to an increase in reporting rates.¹⁶ However, it would certainly be an extremely unfortunate consequence if the admissibility of evidence of sexual abuse or of allegations of abuse had a detrimental effect on reporting.

6.14 Ultimately, however, the Commission considers that the importance of this evidence in appropriate cases must outweigh these concerns. In so far as complainants may suffer distress from being cross-examined about previous sexual abuse or an allegation of abuse, that distress cannot be a sufficient reason for excluding evidence if it is of significant probative value in determining the guilt or otherwise of an accused person. Section 409B was introduced essentially to stop complainants from being subjected to distressing and irrelevant questioning. Evidence of previous sexual abuse and of allegations of abuse does not rely for its relevance on the old common law inferences about the morality of sexually active women. To the extent that complainants may be distressed by being questioned about abuse or allegations of abuse, that distress is unfortunate but may be necessary to ensure that all relevant material is before the court.

6.15 The second ground for objecting to the admissibility of evidence of abuse and allegations of abuse amounts to an issue of fairness: that is, whether there is a danger that evidence of this kind will detrimentally affect the accuracy of the fact-finding process in a trial. The court may give undue probative value to evidence of a “false” allegation to discredit the complainant, when there is little basis for claiming that that allegation was in fact false. There may also be a risk that this evidence will give rise to prejudice and misconceptions about women and sexual assault complainants generally, in a way which wrongly influences the court’s evaluation of the facts.

6.16 These are real concerns. However, in the Commission’s view, they are concerns which are better addressed in each individual case, rather than by absolute prohibitions in legislation. The trial judge is in the best position to make a detailed assessment of the probative value of evidence in the context of the particular facts of the case, weighing up that probative value against its prejudicial effect. For other types of evidence in criminal proceedings, including evidence which may be prejudicial to the accused, such as evidence that the accused has committed crimes in the past, it is left to the trial judge to weigh up the probative value of the evidence against its prejudicial effect in order to determine its admissibility.

6.17 We do acknowledge, however, that there is concern about the ability of judges and lawyers to assess sexual experience evidence objectively. It is also clearly in the public interest that the distress and possible prejudicial effect flowing from the admission of evidence of this kind be minimised. To some extent, these concerns can be addressed by legislation. For example, legislative measures can be imposed which require judges to take into account a range of factors in determining the admissibility of such evidence, including the possible prejudicial effect of such evidence and its likely distress to the complainant. Other legislative measures can be put in place to reduce the risk of “fishing expeditions” by the defence, as an attempt to discredit the complainant without basis.

6.18 Trial judges also have a responsibility to instruct the jury about the proper use which they may make of evidence, and to warn them about its possible prejudicial effect. Moreover, while cross-examination is likely always to be a distressing experience, no matter what the context, that distress may be reduced by lawyers who treat witnesses with respect and common politeness. This is something which may be partly achieved by the trial judge’s close control over the courtroom. It should also be addressed by proper education of the judiciary and the legal profession about the special issues surrounding sexual offence proceedings.

OPTIONS FOR REFORM

6.19 It is the Commission’s view that, in light of the experiences in the “problem cases”, there should be some legislative reform of s 409B. Six options for amendment have been considered:

• introduce additional exceptions to the prohibition in s 409B(3) to address the problem cases;
• include an overriding judicial discretion to admit evidence which falls outside the exceptions in s 409B(3);
• reformulate s 409B by omitting the exceptions listed in s 409B(3) and introducing instead a specific judicial discretion to admit evidence where it complies with certain conditions;
• create a separate legislative provision for child sexual abuse cases;
• abolish s 409B and rely on the general rules governing the admissibility of evidence; or
• introduce legislation permitting a trial judge to stay proceedings on the basis that s 409B will operate unjustly against the accused.

Option 1: Additional exceptions

6.21 Section 409B could be amended to provide expressly that evidence of sexual abuse by someone other than the accused and previous allegations of abuse may be admissible in sexual offence proceedings.

6.22 One way to amend s 409B to admit these kinds of evidence would be to define the terms “sexual experience” and “sexual activity” in s 409B(3) to refer to consensual experience and activity only,¹⁷ and to remove from the prohibition in s 409B(3) reference to a lack of sexual experience or activity (that is, so that s 409B(3) would apply only to exclude evidence disclosing or implying sexual experience or activity, not a lack of it). These amendments would mean that s 409B(3) would simply not apply to evidence of sexual abuse or evidence of previous false allegations. The admissibility of such evidence would instead be determined according to the general rules of evidence. Arguably, a disadvantage of an amendment to this effect would be that courts would no longer be required to apply the special balancing test in s 409B, which involves consideration of the distress and embarrassment to the complainant, when determining the admissibility of this evidence.¹⁸

6.23 Another way to amend s 409B to take account of this kind of evidence would be to add to the list of exceptions to the prohibition in s 409B(3). This could be done either by expanding the existing exceptions to include evidence of abuse and false allegations of abuse,¹⁹ or by adding exceptions to the list. For example, two exceptions could be added to admit evidence which disclosed or implied sexual experience or activity, or lack of it, where this evidence related to, first, previous sexual abuse of the complainant, and, secondly, a previous false allegation of sexual abuse made by the complainant.

6.24 In relation to an exception for previous allegations of abuse, a number of suggestions were made to define “false” in the legislation in a way which would ensure that only evidence of false allegations of sexual abuse was admissible under any amendment to s 409B. This was in response to one of the main concerns about admitting evidence of this kind, namely that complainants who have been assaulted on several occasions should not be discredited in court for making multiple allegations.

6.25 One suggestion put forward was that evidence of a previous allegation be admissible only where there is cogent, credible and independent evidence that the allegation was false. This would require independent corroborative evidence of the falsity of the allegation, rather than simply an assertion by the accused or the earlier alleged perpetrator that the allegation was false.²⁰ The legislation would give the trial judge a discretion to admit or reject evidence of a previous false allegation, based on whether the evidence was shown to be of a high probative value to the facts in issue, rather than simply going to the credibility of the complainant.

6.26 Another suggestion was that evidence of a previous allegation be admissible where there has been a positive conclusion by an investigating authority, such as the Police or the Department of Community Services, that the allegation was false.

6.27 A third suggestion was that, in order to be admissible, the evidence must show that the previous allegation of sexual abuse was substantially similar to the current allegation made against the accused, and that the accused could credibly claim that the previous allegation was false without requiring the court to conduct a “trial within a trial” to ascertain whether the complainant was in fact previously abused.²¹

6.28 In the United States, which has legislation similar to s 409B,²² some States specifically provide in their legislation that evidence of a previous false allegation may be admissible. The legislation is drafted in terms, for example, to admit “evidence that the victim has a history of false reporting of sexual assaults”²³ or simply to admit evidence of “false allegations of past sexual offences made by the alleged victim”.²⁴ In deciding whether an allegation is false, American courts have held, in isolated cases, that it is sufficient proof of its falsity if the complainant recanted the allegation, or if, based on evidence produced at a pre-trial hearing to determine admissibility, a reasonable person could reasonably infer that the complainant made prior untruthful allegations. It has been held not to be sufficient proof of falsity simply to show that no arrest was made following the complaint, or that the previous accused was acquitted.²⁵

6.29 There was qualified support in submissions and consultations for the option to amend s 409B by adding exceptions to the list of exceptions in s 409B(3).²⁶ Those in favour of this option considered that amendments to s 409B may be desirable to take account of the concerns arising in the “problem cases”, but did not support an amendment to introduce a general judicial discretion into s 409B. They favoured the addition of either an exception to admit evidence of previous sexual abuse or an exception to admit evidence of previous false allegations or both. People who did not support this option generally did so on one of the following (opposing) grounds: first, that the evidence which was excluded in the “problem cases” should not be admissible and was rightly excluded;²⁷ secondly, that it would be preferable to address the concerns in the “problem cases” by introducing a separate legislative provision to govern the admissibility of evidence in child sexual assault cases;²⁸ and thirdly, that the addition of exceptions to s 409B(3) would be inadequate and a judicial discretion should be introduced instead.²⁹

6.30 Arguably, there are two principal advantages in adopting this option of adding exceptions to the prohibition in s 409B(3) to admit evidence of previous sexual abuse and of previous false allegations of abuse. First, an amendment to this effect would address the most common concerns raised in the case law, and in submissions and consultations, in relation to the current operation of s 409B. Secondly, it would retain the rules-based approach which was expressly adopted by Parliament to govern the admissibility of evidence concerning a complainant’s sexual experience. While it is true that the addition of these two exceptions would extend the circumstances in which evidence of a complainant’s sexual experience could be introduced under s 409B, such an extension would be confined to identified, isolated, and closely-defined areas. The balancing exercise between the competing interests of the accused and the complainant would continue to be governed by rules as set down by Parliament, with the addition of these two exceptions in order to avoid injustice to the accused.

6.31 In opposition, it may be argued that the rules-based approach underlying s 409B has proven inadequate in preventing injustice to the accused and that s 409B should be amended to include a judicial discretion.

Option 2: Overriding judicial discretion to admit evidence

6.32 Section 409B could be amended to introduce an overriding judicial discretion to admit evidence which otherwise falls outside the exceptions in s 409B(3). Following an amendment to this effect, a trial judge would exercise a discretion to admit evidence concerning the complainant’s sexual experience and/or reputation, if it was considered to be sufficiently relevant to the case. A judicial discretion would be introduced into the section by way of an additional provision in the list of exceptions in subsection (3). Evidence which was not admissible under one of the exceptions to the prohibition could be admitted under this discretionary provision if the judge decided that it should be admitted.

6.33 A number of people in submissions and in consultations supported the option to introduce a judicial discretion into s 409B. Defence lawyers were unanimous in their support. On the other hand, this option was strongly opposed by other people including the Crown Prosecutors, the Director of Public Prosecutions, and by sexual assault counsellors. A number of District Court judges were also hesitant in giving their support to this option.³⁰

6.34 A judicial discretion to admit evidence could apply both to evidence of sexual experience and evidence of sexual reputation, or, alternatively, it could apply only to evidence of sexual experience. Some of the people who favoured an amendment to introduce a judicial discretion suggested that the discretion should apply both to evidence of sexual reputation and sexual experience, on the basis that there may be occasional cases where it is relevant to introduce evidence of sexual reputation.³¹ In general, however, it was considered that it would be a sufficient safeguard against injustice to the accused if a judicial discretion was introduced to apply only to evidence of sexual experience or activity, or lack of it.

Arguments in favour of a discretion

6.35 The main arguments in favour of introducing a judicial discretion into s 409B may be summarised as follows.

6.36 First, it is impossible for Parliament to foresee every situation in which injustice will arise from the exclusion of evidence under s 409B. Parliament attempted to do so by formulating a list of exceptions to the prohibition on evidence of sexual experience. This attempt has proven unsuccessful, as illustrated by recent cases. Simply to add exceptions to the list to address the problems identified in these cases would not remove the danger that s 409B may operate unjustly in other, unforeseen, cases.

6.37 The notion of injustice to the accused is not simply an academic or theoretical argument. The consequence of preventing the accused from introducing highly relevant material may be the wrongful deprivation of his or her liberty. Although defence lawyers generally agreed that the main deficiencies in s 409B are those which were identified in the “problem cases”, it was argued that these are not the only cases in which s 409B may operate unfairly against the accused. A rigid, rules-based approach to the admissibility of evidence in this area is not adequate to ensure a fair trial in each individual case. There needs to be flexibility to assess and admit evidence which has sufficient probative value to a particular situation.

6.38 Secondly, it was argued that, in other aspects of the criminal process, the judge is entrusted to make a decision about the admissibility of evidence in individual cases, and the jury is entrusted to weigh up that evidence in order to make a decision. While there are other rules of law which operate to exclude relevant evidence, as discussed in paragraph 6.106, those rules have a large degree of flexibility in their application. In contrast, s 409B predetermines admissibility of evidence according to inflexible legislative rules. This approach is essentially based on the assumption that judges, lawyers, and juries cannot be trusted to assess the relevance of evidence concerning sexual experience and make appropriate decisions about that evidence. It is, however, inconsistent and illogical to base one legislative provision on a distrust of a system which our society has chosen as the most appropriate means of determining the question of criminal guilt.

6.39 Thirdly, it was argued that attitudes of the legal profession, including defence lawyers and judges, towards the conduct of sexual offence proceedings have changed since the time s 409B was first introduced. The change in attitude in the legal profession reflects a change in the general community towards sexual assault. The old practices of discrediting a complainant by irrelevant questioning about her sexual past would no longer be seen as acceptable by jurors and would consequently no longer be followed by the defence. Moreover, judges are now more experienced in the conduct of sexual offence cases and are more aware of the issues relating to sexual assault. They are now in better positions to make appropriate decisions about the relevance of evidence concerning sexual experience and would actively ensure that inappropriate questioning was disallowed. That awareness is buttressed by the provisions relating to credibility evidence in s 103 of the Evidence Act 1995 (NSW). Crown Prosecutors are also vigilant in objecting to any attempt to introduce evidence relating to sexual experience and reputation and would therefore protect the interests of the complainant. These changes indicate that a judicial discretion in s 409B would be unlikely to be misused by defence lawyers and judges as a means to return to the old common law practices.

6.40 Lastly, every other Australian jurisdiction as well as common law jurisdictions overseas have adopted a discretionary approach in their legislation restricting evidence of a complainant’s sexual experience. This is an indication that a discretionary approach is generally viewed as the only way of ensuring that injustice does not arise in the individual case. In Canada and the United States, a rules-based approach to restricting sexual experience evidence has been considered by the courts to infringe constitutional principles of fundamental justice.³² This supports the argument in favour of a discretionary model.

Arguments against a discretion

6.41 In response, the arguments against introducing a judicial discretion in s 409B may be summarised as follows.

6.42 First, a judicial discretion is unnecessary and undesirable. Section 409B has been in operation for approximately 17 years. There was almost no public criticism of the way the section was operating until the last few years. The concerns which have been expressed since that time relate to a small number of cases, and have identified specific situations in which s 409B is said to cause injustice to the accused. If it is considered that s 409B should be amended to address the concerns in these cases, it would be sufficient to do this by adding exceptions to the section. If a discretion were introduced into s 409B, there is a far greater danger that it would be misused to introduce prejudicial and irrelevant material than there is a danger of injustice to the accused without the introduction of such a discretion. It was argued that empirical studies of jurisdictions in which a discretionary model exists, such as Victoria, demonstrate a significantly higher rate of admission of sexual experience evidence.

6.43 In the Commission’s view, the fact that public criticism of s 409B has arisen only in relatively recent years and in specific types of cases cannot be relied on as indicating that there have been no other circumstances in which the operation of the section has been controversial. Such an assertion does not take into account cases where the Director of Public Prosecutions may not proceed with the prosecution of an accused, because of the potential for s 409B to operate unfairly against him or her. Nor does it take into account cases where the prosecution may suppress evidence because its introduction would be unfair to the accused, due to restrictions imposed by s 409B.³³ In both these instances, the operation of s 409B may not necessarily be brought to the attention of the trial judge or the general public, but both are examples of how the section may operate to the potential detriment of the complainant and the prosecution. As well, the recent explosion in the courts of sexual offence cases, in particular cases involving allegations of sexual abuse of children,³⁴ has put considerable strain on s 409B, and has created increased opportunity for the deficiencies in its operation to be exposed.

6.44 In relation to the claim that evidence of sexual experience is admitted more frequently in jurisdictions with a discretionary model, as demonstrated in empirical studies, caution needs to be exercised in drawing any particular conclusion from this. Clearly, there are likely to be more instances in which sexual experience evidence is admitted under a discretion than according to legislative rules. The issue is whether, in jurisdictions with a discretion, there are significantly more instances where evidence is inappropriately admitted, that is, where it does not have real relevance to the case.

6.45 A second argument against a discretion is that, in so far as s 409B attempts to balance the interests of the accused with the interests of the complainant and of the general public, the introduction of a judicial discretion would tilt the balance too far in favour of the accused. If a discretion were introduced in s 409B, there would be no defined limit to the evidence relating to sexual experience which might be admitted. Leave to lead evidence and cross-examine a complainant about prior sexual experience under a discretion would be more readily granted than under the existing strictly controlled scheme. A discretion would probably be used much more widely than originally intended, as judges would consider themselves primarily obliged to protect the interests of the accused over the interests of the complainant in a trial.³⁵

6.46 It was argued that the legal system is already structured to protect the interests of the accused over the interests of the complainant in the trial context. The prosecution has only limited rights of appeal.³⁶ Moreover, the accused, it was argued, is protected from investigation in the courtroom into his or her previous criminal history. It was argued that the law in New South Wales, though not in some other jurisdictions,³⁷ excludes evidence indicating that the accused has previous convictions or has been previously charged with committing offences involving sexual violence or sexual misconduct. Such evidence may be highly relevant to a case, but is excluded on the basis that it would be prejudicial to the accused. The same protection is not necessarily given to the complainant, and if s 409B were amended to introduce a general judicial discretion, even the existing limited protection which now exists would be eroded. Such an amendment would cause the imbalance between the protection of the accused and the protection of the complainant in sexual offence trials to increase to an unacceptable level.

6.47 In fact, it is not completely accurate to state that the legal system protects the accused to such an extent that his or her past criminal activities can never be exposed in court, in contrast to the sexual experience of the complainant. As a matter of general principle, evidence of an accused person’s past criminal or wrongful conduct is not admissible on the basis that it may prejudice the jury to convict based on that past conduct rather than on the facts of the current case. However, there are exceptions to this general principle. The law’s protection of the accused is not absolute. Evidence of tendency or coincidence may be admissible; that is, evidence which suggests that the accused has a tendency to act in a particular way, such as a tendency to be sexually violent, or evidence of two or more similar incidents, such as two sexual assaults, which occurred in substantially similar circumstances, may be admitted as a basis for supporting an inference that the accused must be responsible for both acts. In this way, evidence of an accused person’s past sexual misconduct may be admissible if its probative value is considered substantially to outweigh its prejudicial effect.³⁸

6.48 To the extent that some other jurisdictions have considered it appropriate to go further than this and introduce special legislation to admit evidence of the accused’s sexual experience whenever evidence of the complainant’s sexual experience is admitted, the Commission does not support this retributive approach. In our view, it is not appropriate to admit evidence which discredits the accused simply because evidence has been introduced by the defence which discredits the complainant. The admissibility of evidence should be assessed according to its own relevance to the case. Moreover, an accused with a criminal record should not be deterred from attacking the credit of Crown witnesses where this has real relevance to the charge against him or her.³⁹

6.49 In relation to the argument that the criminal justice system favours the accused by restricting the rights of the prosecution to appeal, there are sound reasons why, as a matter of fairness, it is undesirable to grant the prosecution wider rights of appeal. A criminal trial is focused on the task of determining the guilt or otherwise of a person accused of a crime. According to the long-established principle against double jeopardy, if that person is subsequently acquitted of a criminal charge, he or she should not be tried again for the same crime. This is an integral part of our legal system; it provides an important safeguard against an abuse of power by the government against the individual citizen.

6.50 A third argument against introducing a discretion is that, although it is true that, in general, the law entrusts individual judges in criminal cases to determine the admissibility of evidence, there are good reasons why different principles should be applied in relation to the admissibility of evidence of a complainant’s sexual experience in sexual offence proceedings. There are special problems surrounding the prosecution of sexual offences, not least of which is the danger that prejudicial beliefs and uninformed assumptions about sexual behaviour will influence decisions about the relevance of evidence to determining guilt.⁴⁰ Section 409B was enacted because of the experiences of complainants in the courtroom, and the practices which were generally tolerated by the courts of permitting questioning about a complainant’s sexual experience and reputation as a basis for making ill-informed inferences. The deliberate decision by Parliament to regulate the admissibility of sexual experience evidence according to rules rather than a discretion was a response to these experiences.

6.51 It was disputed that the attitudes of lawyers and judges towards the conduct of sexual offence proceedings have changed in any significant way since the introduction of s 409B. Sexual assault counsellors were particularly concerned about what they perceive to be the continuing mistreatment of and lack of respect shown to complainants by some members of the legal profession. Some counsellors had had positive experiences of the courtroom, mostly in cases where the trial judge exercised close control over the cross-examination of the complainant.⁴¹ However, counsellors were not convinced that the legal profession as a whole, including the judiciary, were sufficiently informed and aware of issues relating to sexual assault to make appropriate decisions in all cases about the admissibility of sexual experience evidence. A number of other people in submissions⁴² cited the conclusions reached in the Heroines of Fortitude report⁴³ as an indication that the treatment of complainants by lawyers and judges had not improved to any great extent since 1981.

6.52 The Heroines of Fortitude report concluded that lawyers and judges continue to perceive women as “emotional, irrational, and profoundly sexual”, and that s 409B remained as necessary today as when it was first introduced. That conclusion was said to be based on the empirical results and case studies undertaken as part of the research for the report. The Commission has some concerns about the validity of this conclusion based on the findings presented in the Heroines of Fortitude report. We do not say that bias and prejudice do not exist in the legal system and among members of the legal profession. However, we do not find that the empirical data and examples given in the Heroines of Fortitude report provide persuasive support for the assertions made by its authors.

6.53 There are other readily available conclusions which may be drawn from the empirical findings in the Heroines of Fortitude report besides a conclusion that some judges and lawyers disregard the spirit and requirements of s 409B. For example, the high success rate in admitting sexual experience evidence (84% of instances in which it was raised) could indicate that counsel only raise such evidence if it is thought to have substantial relevance to the case, rather than that such evidence is routinely admitted regardless of its relevance. Similarly, as we noted in paragraph 4.88, there is an alternative explanation for the report’s finding that there was no prior application to the trial judge in 35% of instances in which sexual experience evidence was admitted, other than that lawyers are ignoring or failing to recognise the procedural requirements in s 409B.

6.54 In addition to the empirical data, the Heroines of Fortitude report cites case studies to support its conclusions about the operation of s 409B. Again, in the Commission’s view, these cannot be considered necessarily to lead to the conclusions which were reached. Examples are provided from the case studies of sexual experience evidence which was raised and/or admitted in the trials studied. The details of the evidence and the context in which it was raised are not set out in great detail. They are instead summarised in what, in some instances, are quite subjective and emotive terms, such as “allegations about her sexually provocative behaviour”.⁴⁴ This makes it difficult for the reader to make a proper assessment of the relevance of the evidence to the particular case. Depending on the context, much of the evidence cited in the case studies could be regarded as highly relevant, such as evidence of the nature of the complainant’s relationship with the accused.⁴⁵ The report is highly critical of the distressing and gruelling process of cross-examining complainants. However, it does not take into account the fact that, under the adversarial system, cross-examination generally is distressing and gruelling for any witness, and that it is usual and often crucial to the defence case to question the testimony and credibility of a Crown witness in order to raise reasonable doubt. It cannot be inferred that, because complainants in sexual offence proceedings are subjected to distress and to long hours of cross-examination, judges and lawyers are biased against women.

6.55 A fourth ground for opposing the introduction of a discretion in s 409B was that the operation of the section would become unpredictable. The admissibility of evidence concerning sexual experience would ultimately depend on the decision of the individual judge in each case. The section would be likely to be unevenly applied, according to which judge was exercising the discretion in a particular case.⁴⁶ Sexual assault counsellors expressed concern about the effects on their clients of such a lack of predictability. People facing the prospect of giving evidence in court as complainants could no longer be reassured with the knowledge that there were rules governing the admissibility of evidence concerning their sexual experience. This may cause particular anxiety in complainants from specific groups in the community, such as women from a non-English speaking background and Aboriginal women. These women may face particular pressure and scrutiny from their communities if details of their sexual experience are exposed, and may have a strong distrust that they will be treated fairly and humanely by the legal system. A possible consequence may be that fewer people will be willing to report and proceed in the prosecution of perpetrators of a sexual offence. Such a result would defeat one of the purposes for which s 409B was introduced.

6.56 Fifthly, it may be argued that resorting to a judicial discretion to determine the admissibility of sexual experience evidence is an easy but unsatisfactory way of resolving a difficult problem. From the point of view of the accused, most evidence concerning a complainant’s sexual experience could be said to have some relevance to the case for the defence. Section 409B represents a deliberate decision by Parliament to exclude such relevant and otherwise admissible evidence, except in specific circumstances, for policy reasons. The exceptions to the general prohibition represent the situations in which Parliament has determined that, balancing the probative value of such evidence with the underlying policies of the section, sexual experience evidence should be admissible. To transfer the task of determining when such evidence should be admissible would be an abdication by Parliament of any attempt to formulate a clear and consistent policy approach to the difficult balancing act required to weigh the interests of the accused with the interests of the complainant.

6.57 In the Commission’s view, it was never the intention of Parliament to exclude evidence of sexual experience which had real relevance to a case. It is clear from the Parliamentary debates leading to the introduction of s 409B that Parliament attempted to foresee every situation in which such evidence would be relevant, and to provide for evidence to be admissible in these situations by the exceptions listed in s 409B(3). It is not then a question of Parliament making a clear policy decision to exclude relevant evidence, but rather an attempt by Parliament (arguably, unsuccessful) to ensure that only relevant evidence of sexual experience was admitted.

6.58 Lastly, a discretion is opposed on the basis of the indirect consequences which, it is said, may follow its introduction. These consequences would be undesirable from the point of view of the complainant. One possible consequence is an increase in the number of appeals by the accused against a judge’s discretionary decision to exclude sexual experience evidence. This would carry with it an increased risk of retrials, which would obviously be distressing for a complainant and, arguably, would be contrary to one of the aims of s 409B. While the Commission acknowledges this concern, we do not consider it a proper basis for excluding a discretion from s 409B, if that is considered to be the fairest means of regulating sexual experience evidence. Clearly, the risk of retrials should be avoided wherever possible, in the interests of both the complainant and the accused, as well as the efficient administration of the courts. However, the concern to avoid retrials should not override the public interest in ensuring a fair trial.

6.59 It has also been suggested that the introduction of a discretion could provide greater opportunity for compelling complainants to give evidence in person at committal hearings.⁴⁷ At present, as we noted in paragraph 2.30, alleged victims of an offence involving violence usually give their evidence in committal hearings by way of written statements rather than in person. This procedure aims at reducing the trauma to victims in having to give evidence in person twice, at committal and at trial. The defence may require the witness to attend a committal hearing in person if it can be shown that there are “special reasons” for doing so, in the interests of justice.⁴⁸

6.60 The courts have made it clear that, in order to establish special reasons, the accused must show more than a mere disadvantage from loss of the opportunity to cross-examine or to find material to discredit a witness. There must be some feature of the case which makes it out of the ordinary and which establishes that it is in the interests of justice to call the witness. Examples from the case law of “special reasons” are where the complainant’s statement is vague as to the date on which the alleged offence occurred, or where the complainant has given significantly inconsistent versions of the alleged offence.⁴⁹ Following the courts’ interpretation of the requirement to show special reasons, the Commission can see no reason why the introduction of an overriding discretion in s 409B would provide greater opportunity than now exists for the accused to require the complainant’s attendance at committal.

6.61 Another concern⁵⁰ is that the introduction of a discretion in s 409B may have an impact on the sexual assault communications privilege which was recently enacted in legislation.⁵¹ Under this privilege, evidence of communications made by an alleged sexual assault victim to a sexual assault counsellor cannot be admitted in court proceedings, except with the court’s leave and with reasonable notice. The court must not grant leave unless it is satisfied that the evidence has substantial probative value, that other evidence of the communication is not available, and that the public interest in preserving the confidentiality of the communication and protecting the alleged victim from harm is substantially outweighed by the public interest in admitting the evidence. In weighing up the competing public interests, the court must take into account the likelihood, and nature or extent, of harm that would be caused to the alleged victim if evidence of the communication were admitted. It is interesting to note that Parliament considered it appropriate to grant the trial judge a discretion to balance these competing interests in relation to the communications privilege, in contrast to the rules-based approach in s 409B.

6.62 Sexual assault counsellors were particularly anxious that a discretionary provision in s 409B may make it easier for the accused to show grounds for admitting evidence of a confidential communication as an exception to the sexual assault communications privilege. It is true that, with the introduction of a discretion in s 409B, there would be greater scope for admitting sexual experience evidence than is currently available. This may provide additional grounds for introducing evidence of a confidential counselling communication, if it relates to the complainant’s sexual experience or activity, and it is considered to be admissible in the exercise of the court’s discretion, where now it would generally be excluded by s 409B.

6.63 To this extent, the Commission agrees that a discretionary provision in s 409B may provide increased scope for admitting evidence of a confidential counselling communication. However, it should be remembered that the court is still required to weigh up the competing public interests in deciding whether or not to waive the sexual assault communication privilege, and must only grant leave to admit such evidence where the public interest in admitting it outweighs the public interest in protecting it from admission. Moreover, the discretionary provision in s 409B could be drafted in a way to require consideration of a number of factors in deciding whether to admit evidence of sexual experience or activity, including distress to the complainant. This, together with the balancing exercise required in considering the sexual assault communication privilege, would provide strong protection against the admission of evidence of a confidential counselling communication which did not have substantial probative value to the issues in a particular case.

Models for formulating a discretion

6.64 If a discretion were introduced as an additional provision in s 409B(3), there are a number of ways in which it could be formulated.

6.65 One suggestion is that the legislation could provide the judge with a discretion to admit evidence of sexual experience or activity, or lack of it, if the judge were satisfied that the evidence has substantial relevance and outweighed any distress, humiliation or embarrassment the complainant might suffer if it is admitted.⁵² The Public Defenders supported this formulation but argued that the legislation should require “relevance” rather than “substantial relevance”, given that the accused has only to raise a reasonable doubt.⁵³ In response to the Public Defenders’ argument, however, it may be noted that the provision relating to cross-examination as to credibility in the Evidence Act 1995 (NSW) also requires that evidence adduced in cross-examination have “substantial probative value” in order to be admissible. The word “substantial” imposes an important limitation on the admissibility of such evidence.⁵⁴

6.66 There has been some concern in the past about framing a discretion to require the court to take account of the “distress, humiliation or embarrassment” which a complainant may suffer.⁵⁵ It may be argued that it is difficult for a judge to estimate the degree of the complainant’s distress, humiliation or embarrassment, and then to weigh that distress against the possibility of a conviction and the consequent deprivation of the accused’s liberty if the evidence is excluded. However, a discretion which included consideration of the complainant’s distress would be no more difficult to exercise than any of the other evidentiary provisions requiring a judge to weigh up competing considerations in the exercise of a discretion in the criminal context.⁵⁶ This is part of a judge’s role in the trial process.

6.67 One submission proposed that the discretion be drafted to permit the court to admit evidence of sexual experience:

where the Court or Justice is satisfied there are substantial reasons why in the interests of justice the evidence ought to be admitted.⁵⁷

6.68 Another submission proposed that the legislation be formulated to require the judge to exercise his or her discretion to admit evidence of sexual experience or activity or lack of it if the judge is persuaded that there is an arguable case for the jury to consider.⁵⁹

Option 3: Specific judicial discretion to admit evidence in certain circumstances

6.69 Section 409B could be reformulated by omitting the list of exceptions in s 409B(3) altogether and introducing instead a judicial discretion to admit evidence of a complainant’s sexual experience and/or reputation according to the circumstances of each particular case, if certain requirements were first complied with.⁶⁰

6.70 The reformulation could impose significant limitations on the exercise of the judge’s discretion. For example, it could guide the exercise of the discretion by requiring consideration of a number of factors, including matters of policy, in a way which is similar to the Canadian legislation.⁶¹ Matters which could be required to be taken into account might include, for example, consideration of the distress to the complainant, the need to respect the complainant’s privacy, and the risk that the evidence may arouse discriminatory belief or bias in the jury.

6.71 The discretion could also be restricted by an express legislative provision stipulating that evidence of the complainant’s sexual experience or activity is not admissible where it is relied on to draw an inference about the complainant’s credibility or likelihood to consent to sexual intercourse. A provision to this effect has again been adopted in the Canadian legislation, as well as in other Australian jurisdictions.⁶² It addresses the main purpose which s 409B aimed to achieve, namely to overcome the inferences made at common law about consent and credibility.

6.72 Lastly, the exercise of the discretion could be restricted even further by the imposition of strict procedural requirements which must be complied with in order to admit sexual experience. This would assist in ensuring that both counsel and the trial judge put their minds to assessing the real probative value of the evidence, and that the discretion is not used as a means to admit evidence of sexual experience freely.

6.73 The fundamental arguments for and against this option are the same as those set out in relation to Option two. However, under this option, the judicial discretion would be much more significantly restricted and closely guided by the limitations outlined above than would the mere addition of a discretionary provision under Option two. This would address some of the concerns about introducing a judicial discretion into s 409B.

Option 4: A separate provision for child sexual assault cases

6.74 A number of submissions suggested that s 409B should be retained in its present form, but that it should apply only to adult complainants. A separate provision should be introduced to apply to child complainants.⁶³

6.75 These submissions noted that the main problems in the operation of s 409B have arisen in cases involving child sexual assault. It was submitted that s 409B was not drafted with consideration to the particular issues arising in child sexual assault cases. Rather, it was specifically focused on protecting adult complainants in cases where consent is an issue. By law, consent can never be an issue in child sexual assault cases and therefore s 409B may be an inappropriate means of protecting child complainants from trauma in the courtroom.

6.76 Most of the submissions which supported this option did not make any specific suggestions as to how a separate provision for children should be formulated, nor the extent to which it should restrict evidence relating to sexual matters. Instead, it was proposed that a comprehensive research study should be undertaken into the prosecution of child sexual assault matters in order to identify the type of protection which is needed for child complainants, and the best way to formulate legislation to ensure that these needs are met. It was emphasised that children should be protected as much as possible from distressing courtroom experiences, and that, until a study of the kind proposed is conducted, s 409B should continue to apply to children as well as to adults.

6.77 One submission suggested that a separate provision be enacted for child sexual assault cases, to permit evidence of previous sexual abuse to be admitted if it was relevant.⁶⁴ Alternatively, the provision could give the trial judge a general discretion to admit evidence of sexual matters relating to the complainant, but only in the context of child sexual assault cases. This provision could apply to sexual offence proceedings where the complainant is less than 16 or 18 years.

6.78 Several people opposed the suggestion to enact a separate provision for child sexual assault cases, either on the basis that this would be unnecessarily complicated and would not address all the problems arising from s 409B,⁶⁵ or on the basis that children should be protected to the same extent as adults when giving evidence in sexual offence proceedings.⁶⁶

6.79 Given that the problem cases have primarily involved child complainants, this option may seem an attractive compromise between complete reformulation of s 409B and no reform at all. However, the Commission considers that this option has some significant disadvantages. As a practical matter, it may prove quite complicated to have two regimes for the admissibility of evidence operating in sexual offence cases. For example, consideration would need to be given to which regime should apply to questioning an adult complainant who complains of being sexually abused as a child, or an adult complainant who complains of abuse as an adult but who was also sexually abused as a child.

6.80 At a more fundamental level, it is questionable whether the introduction of a separate provision for children would adequately resolve the problems which have arisen in the operation of s 409B. For example, evidence to suggest that a complainant has made previous false allegations of abuse may be equally relevant to a case involving an adult complainant as one involving a child. It is less likely that evidence of previous sexual abuse will be of such significance to a case involving an adult complainant as to a case involving a child, since adults are not generally expected to be sexually naïve. There may, however, be adult cases where it is relevant, such as in the example given by the Crown Prosecutors of the complainant whose reaction to a sexual attack was affected by her memories of earlier abuse.⁶⁷

6.81 Lastly, it is difficult to envisage what sort of legislative provision would be favoured by those people who suggested this option in submissions. If the provision aimed to address the issues arising in the problem cases, then it seems likely that it would have to be formulated in a way which either contained a judicial discretion to admit sexual experience evidence, or included additional exceptions to those set out in s 409B(3). It is difficult to see, however, why the same objections to both those options would not apply equally to child sexual assault cases as to adult cases. For example, it seems illogical and artificial to entrust judges with a discretion to admit evidence in child cases, but not to do the same in adult cases.

Option 5: Abolition of s 409B

6.82 Section 409B could be abolished altogether. The admissibility of evidence relating to a complainant’s sexual experience and reputation would then be governed by the general rules of evidence.

6.83 In general, evidence is admissible if it is relevant and not excluded by reason of an exclusionary rule,⁶⁸ such as the rule against hearsay evidence. In sexual offence proceedings, the following general rules may operate to restrict the admissibility of evidence of a complainant’s sexual experience and reputation, in addition to the restrictions imposed by s 409B.

6.84 The tendency rule.⁶⁹ This rule states that evidence of a person’s character, reputation, conduct, or tendency, is not admissible to prove that that person has or had a tendency to act in a particular way. For example, under the tendency rule, evidence that a complainant has a reputation for promiscuity would not usually be admissible to prove that she consented to intercourse with the accused. However, as an exception to the tendency rule, evidence of character, reputation, conduct, or tendency is admissible if the court considers that it has significant probative value.⁷⁰

6.85 The coincidence rule.⁷¹ According to the coincidence rule, evidence of two or more events is inadmissible to prove that a person did a particular act or had a particular state of mind. However, such evidence may be admissible if the events in question are substantially and relevantly similar, and the circumstances in which they occurred are substantially similar, and the court considers that the evidence has a significant probative value.⁷²

6.86 The credibility rule.⁷³ As a general rule, evidence that relates only to a witness’ credibility is inadmissible. The “credibility” of a witness includes matters such as his or her truthfulness, intelligence, bias or motive to lie, or ability to observe or remember events. However, evidence relating only to a witness’ credibility is admissible if it has substantial probative value. For example, evidence that a complainant has told a lie in the past would not ordinarily be admissible. However, if the evidence suggests that the complainant falsely accused a person in the past of sexual abuse, it may be considered in some cases to have substantial probative value and therefore be admissible.

6.87 Discretion to exclude evidence.⁷⁴ The court has a general discretion to exclude evidence if its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party, or be misleading or confusing, or cause or result in an undue waste of time.

6.88 Discretion to disallow improper questions.⁷⁵ The court has the power to disallow a question put to a witness in cross-examination, or inform the witness that the question need not be answered, if that question is misleading, or unduly annoying, harassing, intimidating, offensive, oppressive, or repetitive.

6.89 If s 409B were abolished altogether, the admissibility of evidence of sexual experience and sexual reputation would continue to be restricted by the general exclusionary rules such as those set out above. In light of these general rules, it could be argued that it is unnecessary to retain an additional legislative provision regulating the admissibility of evidence of sexual experience and reputation. However, only one submission supported the abolition of s 409B.⁷⁶ All other submissions considered that it was desirable to retain s 409B in some form, because of the special issues surrounding sexual offence cases. The Commission agrees that it is desirable to retain a special provision for sexual offence proceedings and for that reason we have recommended that s 409B be retained.⁷⁷

Option 6: A provision to stay proceedings

6.90 Legislation could be introduced permitting the court to stay proceedings on the basis that the accused is unable to have a fair trial, by reason of the operation of s 409B.⁷⁸ This would mean that the prosecution of the accused for the commission of the relevant sexual offence would be permanently discontinued. A legislative provision of this kind would reverse the effect of the decisions of the Court of Criminal Appeal and the High Court, which held that, under the existing law, judges have no power to grant permanent stays in these circumstances.⁷⁹

6.91 Although there are other rules which exclude relevant evidence in criminal cases, it would be possible to confine the scope of the proposed legislative provision to the operation of s 409B. This is because, as we note in paragraph 6.106, s 409B is quite unique in so far as it excludes otherwise admissible evidence, with no flexibility to do otherwise in cases where its admission is considered desirable in the interests of fairness.

6.92 One advantage of this option is that it provides a remedy for unfairness, but at the same time does not subject complainants to any additional trauma or distress by further investigation into their private lives in the courtroom. The scope of cross-examination of complainants would remain fairly predictable, in so far as s 409B would continue to set down defined limits or rules on questioning about sexual experience.

6.93 A significant disadvantage of this option is that it may have the effect that some offenders are never prosecuted, because the operation of a law does not permit them to be tried fairly. This would be a highly undesirable result, both for the complainant and the general community.

6.94 One way of overcoming this problem, it was submitted, is for the court to give the complainant the choice of either having proceedings against the accused permanently stayed, or of agreeing to have the evidence relating to his or her sexual experience admitted so as to ensure that the accused has a fair trial.⁸⁰ It was suggested that vesting control over the proceedings in the complainant may bring benefits to the complainant’s psychological well-being and enable him or her to deal with the potentially traumatic experience of having his or her sexual experience disclosed, if he or she decides to continue with the proceedings.

6.95 Traditionally, the State has been responsible for the prosecution of those accused of crimes. Victims are not a party to criminal proceedings; their role is generally limited to reporting the crime and appearing as a witness. The State’s decision whether or not to prosecute may be informed by the attitude of the victim to the prosecution, but it does not depend on the victim’s agreement.⁸¹ This is because the management of criminal prosecutions is regarded by the community as a matter of public interest, rather than a private matter between individuals. It would be contrary to the interests of both the victim and the public to place the responsibility and costs of prosecuting crime on the victim. Similarly, the Commission considers that it would be contrary to the interests of both the victim and the public to place the burden of deciding whether to continue with the prosecution of an alleged sex offender on the complainant. We do not agree that this approach would be any less distressing for the complainant. In fact, it may place even greater stress on the complainant who is forced to decide whether to agree to a permanent stay.⁸²

THE COMMISSION’S RECOMMENDATIONS

RECOMMENDATION 1

Section 409B should be retained.

RECOMMENDATION 2

Section 409B should be amended to provide as follows:

409B.(1)(a) This section applies to criminal proceedings for a prescribed sexual offence, whether those proceedings are for that offence alone, or together with any other offence (as an additional or alternative count).

(b) This section applies to all stages of criminal proceedings, including bail, committal, summary hearing, trial, sentencing, and appeal.

(c) This section applies to an inquiry into a conviction for a prescribed sexual offence under Part 13A of this Act.

(d) In this section:


“the accused person”, in relation to any proceedings, means the person charged 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 is charged is alleged to have been committed;

“prescribed sexual offence” means:


(i) an offence under section 61B, 61C, 61D, 61E, 61I, 61J, 61K, 61L, 61M, 61N, 61O, 65A, 66, 66A, 66B, 66C, 66D, 66F, 73, 74, 78A, 78B, 78H, 78I, 78K, 78L, 78N, 78O, 78Q, 80A, 86, 87, or 89;

(ii) an offence (such as an offence under section 37 or 112) which includes the commission, or an intention to commit, an offence referred to in paragraph (i); or

(iii) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (i) or (ii).

(2)(a) In proceedings to which this section applies, evidence relating to the sexual reputation of the complainant is inadmissible.

(b) Notwithstanding subsection (2)(a), evidence about any sexual experience or sexual activity, or lack of experience or activity, of the complainant shall not be inadmissible merely because it also relates to the sexual reputation of the complainant.

(3)(a) In proceedings to which this section applies, no evidence shall be admitted about any sexual experience or activity of the complainant, or lack of sexual experience or activity, except with leave of the court.

(b) For the purposes of subsection (3)(a), “sexual experience or activity” includes sexual experience or activity to which the complainant did not consent.

(4) The court shall not grant leave under subsection (3)(a) unless:

(a) the court is satisfied that the evidence has significant probative value to a fact in issue or to credit; and

(b) the probative value of the evidence sought to be admitted substantially outweighs the danger of prejudice to the proper administration of justice, taking into account the matters set out in subsection (6); and

(c) the party seeking to admit the evidence has complied with the requirements in subsection (7).

(5) Evidence of a complainant’s sexual experience or activity is not admissible to support an inference that, by reason only of the fact that the complainant has engaged in sexual activity or has had sexual experience, the complainant:

(a) is the type of person who is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

(6) In determining whether the probative value of the evidence sought to be admitted substantially outweighs the danger of prejudice to the proper administration of justice under s 409B(4)(b), the court shall take into account the following matters:

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) the distress, humiliation, or embarrassment which the complainant may suffer as a result of leave being granted;

(c) the risk that the evidence may unduly arouse discriminatory belief or bias, prejudice, sympathy or hostility in the jury;

(d) the need to respect the complainant’s personal dignity and privacy;

(e) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(f) any other factor which the court considers relevant.

(7) The party seeking leave under subsection (3)(a) must do so by application to the court in writing and must:

(a) set out:


(i) the nature of the evidence sought to be adduced; and

(ii) how the evidence has significant probative value to a fact in issue or to credit;


(b) give a copy of the application to the other party within such time before the hearing of the application as the court may prescribe or considers to be appropriate in the interests of justice in the particular case.

(8) The court must hear an application to grant leave under subsection (3)(a) in the absence of the jury (if any) and the public.

(9) The complainant is not a compellable witness at the hearing of an application for leave under subsection (3)(a).

(10) At the conclusion of the hearing of an application for leave under subsection (3)(a), the court must make a determination whether or not to grant leave to admit the evidence and must record or cause to be recorded:

(a) the reasons for that determination;

(b) where the court grants leave to question the complainant, the nature of the evidence which may be elicited.

(11) Where evidence of a complainant’s sexual experience or activity is admitted at trial under this section, the judge shall give a warning to the jury to the effect that they must not infer, by reason only of the fact that the complainant has engaged in sexual activity or has had sexual experience:

(a) that the complainant is less worthy of belief;

(b) where consent is an issue at the trial, that the complainant is the type of person who is more likely to have consented to the sexual activity that forms the subject-matter of the charge.

Recommendation 1: Retention of a special provision for sexual offence proceedings

6.96 The Commission recommends that s 409B be retained and reformulated, rather than abolished. As we have already noted,⁸³ the recommendation to retain s 409B was supported in almost all submissions and consultations.

6.97 As we noted in paragraphs 6.83-6.89, the general rules of evidence provide some protection to complainants in sexual offence cases against distressing and irrelevant questioning about their sexual experience and reputation. Nevertheless, there are reasons why it is desirable to retain a separate legislative provision to provide additional protection to complainants in sexual offence proceedings against unnecessary disclosure of material relating to their sexual conduct.

6.98 In the Introduction to this report, the Commission referred to the special issues surrounding sexual assault and sexual offence proceedings. These relate to the nature of the crime itself, and the special vulnerability of complainants in the courtroom. A complainant’s testimony and credibility will often be subject to particular scrutiny by the defence, because the outcome of the trial will largely depend on the acceptance or rejection of the complainant’s word against the accused. As a result, complainants’ experiences of the courtroom may be particularly traumatic and isolating. It is proper that the law ensure, as far as possible, that they are not unnecessarily subjected to further distress by irrelevant attacks and questioning about their sexual character and sexual lives. For this reason, the Commission considers that it is important to retain a special legislative provision requiring the court to give consideration to the possible distress suffered by a complainant by questioning of this kind. Moreover, the existence of a special legislative provision may offer some reassurance to complainants who feel apprehensive about reporting to the police and appearing publicly in court.

6.99 In addition, the history of the law’s treatment of complainants of sexual assault has been a sorry one, revealing uninformed assumptions and moral judgments about women generally. It is appropriate to retain a provision requiring the courts to pay special attention to the conduct of sexual offence trials to make sure the old practices and conduct towards complainants do not resurface.

Recommendation 2: Reformulation of s 409B

Introduction of a restricted discretion for evidence of sexual experience

6.100 We take the view that s 409B needs to be reformulated to resolve the problems which have arisen in some cases. The reformulation which we recommend introduces a restricted discretion for determining the admissibility of evidence of a complainant’s sexual experience or activity, essentially in accordance with the model set out in option three above. This permits the court to admit or reject evidence of sexual experience or activity after balancing its probative value against a number of factors.

6.101 The Commission finds the arguments in favour of a discretionary model to be compelling. Essentially, we consider that it is the only means of ensuring a fair trial. It is true that s 409B has been most strongly criticised in specific types of cases involving specific types of evidence. However, we are not satisfied that it will be sufficient to overcome all the problems in the section’s operation simply to amend it by adding more exceptions.

6.102 As the drafters of s 409B themselves recognised, there are occasions when material relating to a complainant’s sexual experience is relevant to the issues in an individual case. If the rules-based approach for s 409B is retained, the danger remains that sexual experience evidence which is highly relevant will be excluded because it does not come within one of the exceptions to the prohibition. Parliament stated that the introduction of s 409B would not give rise to any injustice to the accused, because the exceptions in s 409B(3) provided for all the circumstances in which sexual experience evidence was relevant. The “problem cases” have shown that this was not so. In the Commission’s view, it is not possible to foresee every situation in which evidence will be relevant to the facts of an individual case, in order to be satisfied that injustice will not be done by the imposition of inflexible rules.

6.103 We have sought to emphasise in this report that the notion of a fair trial for the accused is not merely a theoretical argument nor a matter of favouring the accused over the victim, but is a matter of public interest. The right to a fair trial includes a right to present a full and fair defence and cross-examine prosecution witnesses on relevant material.

6.104 It is true that this is not an absolute right: it must be balanced against competing interests and policy considerations.⁸⁴ However, that balancing exercise is most effectively and fairly done by assessing the relevance of the evidence in each individual case against concerns for its prejudicial effect and possible trauma for the complainant, rather than by setting down rigid rules for admissibility. The absence of any satisfactory remedy against injustice caused by s 409B reinforces the importance of ensuring that the section is formulated in a way which ensures that it will not deny the individual accused a fair trial.

6.105 It is relevant to note that s 409B is now the only legislative provision regulating sexual experience evidence which continues to exclude absolutely any form of judicial discretion. In our view, the experiences of other jurisdictions are an indication that a rules-based model for admissibility cannot operate fairly in every case.

6.106 There are, of course, other rules of law which exclude evidence relevant to the defence case in criminal proceedings. For example, relevant evidence may be excluded because it is hearsay or it amounts to someone’s opinion, or because it relates to privileged information or is covered by public interest immunity.⁸⁵ Examples such as these may be used to suggest that the exclusion of relevant evidence does not necessarily amount to a denial of a fair trial. However, these exclusionary rules differ from s 409B, both in their rationale and in their operation. Hearsay and opinion evidence is generally excluded because it is considered unreliable and potentially inaccurate. Evidence which is privileged or covered by public interest immunity is generally excluded because, as a matter of public policy, its admission would do more harm than good to the public interest. There is now, however, a great amount of flexibility in the operation of these exclusionary rules, particularly in the context of criminal trials: courts generally have some discretion to waive these rules in order to admit evidence which has a significant probative value. Section 409B is therefore quite unique in its absolute prohibition of relevant evidence.

6.107 The Commission is conscious of the concerns which some people have expressed about introducing a discretion into s 409B. Essentially, these concerns relate to, first, a possible increase in the distress and trauma faced by complainants, including greater apprehension about going to court because of the unpredictable operation of a discretion and the potential consequences this may have on reporting rates, and, secondly, a distrust of judges’ ability to exercise a discretion properly.

6.108 The Commission agrees that there is greater scope with a discretion to lead evidence of a complainant’s sexual experience, and this brings with it the possibility of additional distress for the complainant. It is the role of the defence, however, to try to raise reasonable doubt about a complainant’s testimony and credibility, and so, to this extent, it is likely that cross-examination will always carry with it some element of distress.

6.109 The Commission does not consider that the introduction of a discretion is, as some people suggested in consultations, a step backward, or a withdrawal of the protection provided by s 409B. The fundamental aim of this section was to protect complainants against the distress of irrelevant and offensive questioning. Where the questioning is directly relevant to the case, then in any trial, whether or not it relates to a sexual offence, the significance of its probative value must override the fear of distress and concern for any indirect consequences such as an effect on reporting rates. Ultimately, it must be remembered that the focus of a criminal trial is necessarily on the accused: the purpose of the trial process is to determine the question of the accused’s guilt, and the outcome of a conviction in sex offence cases will likely be the deprivation of the accused’s liberty.

6.110 In relation to the concern that judges cannot be trusted to exercise a discretion properly, the Commission acknowledges this concern but does not consider it a proper basis for imposing inflexible restrictions on the admissibility of evidence, when every other aspect of the criminal process relies to some extent on judicial discretion. This is the system which our society has chosen, on the ground that it is the fairest way of administering justice in individual cases. Moreover, a judicial discretion may be guided or controlled by various means. Our recommended reformulation places strong limitations on the exercise of judicial discretion.

6.111 We are not convinced that the empirical studies referred to in this report necessarily indicate that discretionary schemes for restricting sexual experience evidence do not work.⁸⁶ Most of these studies have tended to measure the success of the relevant provision solely according to whether or not it reduces the admission of all sexual experience evidence, not the extent to which it reduces the admission of irrelevant sexual experience evidence. The two studies which attempted a detailed qualitative analysis of the types of situations in which sexual experience evidence was admitted under a discretionary regime were the studies of the Tasmanian and Scottish provisions.⁸⁷ They concluded that the discretion was not exercised as effectively as it was originally intended to be in every case. However, they did support the basic discretionary model, with recommendations, among others, for amendments to the legislation to provide greater guidance on how the discretion was to be exercised. This issue is addressed in the Commission’s recommended reformulation.

6.112 We are conscious of the fact that sexual offence proceedings have been particularly susceptible in the past to sexist assumptions by the judiciary about what is “relevant”. For this reason, although we maintain that a discretion is the fairest means of assessing admissibility, we have adopted an approach in our recommended reformulation which guides the exercise of the judicial discretion in order to guard against inappropriate decisions. Strong restrictions are placed on the exercise of the discretion by:

• a prohibition on reliance of evidence of sexual experience to draw a general inference about the complainant’s consent or credibility (that is, the old “common law” inferences);
• a requirement that the court weigh up the relevance of the evidence with competing considerations set out in recommended s 409B(6);
• detailed procedural requirements which must be complied with in order to admit sexual experience evidence.

Prohibition on making general inferences about consent or credibility

6.114 Recommended s 409B(5) is drawn from the Canadian legislation.⁸⁸ It prohibits the admission of evidence of a complainant’s sexual experience or activity, where that evidence is sought to be relied on to make an inference that the complainant is the type of person who is more likely to have consented, or is less worthy of belief. It aims to preclude the common law practice of admitting sexual experience evidence to infer that, because the complainant has engaged in sexual activity in the past, she or he is more likely to have consented to the sexual activity which is the subject of the current charge, or is a less credible witness. A provision to this effect reflects the fundamental purpose for which s 409B was enacted.

6.115 The Commission is aware that the Canadian provision is currently the subject of a constitutional challenge in the Canadian Supreme Court. The challenge has been brought on the basis that the provision prohibits the admission of evidence of a complainant’s sexual experience, including sexual experience with the accused, whenever that evidence is said to be relevant to the question of consent. Since evidence of previous sexual experience with the accused can have substantial relevance to the question of consent, it is argued that the provision may deny the accused a fair trial and is therefore unconstitutional, according to the Canadian Charter of Rights and Freedoms.⁸⁹

6.116 In the Commission’s view, the wording of our recommended s 409B(5), which differs from the Canadian provision, does not support an interpretation of the kind which forms the basis of the Canadian constitutional challenge. The recommended provision aims to prohibit general inferences which rely only on the previous sexual experience of the complainant as a reason for suggesting that she or he is a type who is more likely to consent or is less worthy of belief. It does not prohibit the admission of evidence from which specific inferences are sought to be drawn, such as evidence that the complainant had consensual sexual intercourse with the accused in the past in similar circumstances which make it relevant to the question whether she or he consented to intercourse with the accused on this occasion.

“Significant probative value” of the evidence sought to be admitted

6.117 As one of the preconditions to admissibility, recommended s 409B(4)(a) requires that evidence of sexual experience or activity, or lack of it, have “significant probative value” to a fact in issue or to credit. Inclusion of the term “significant probative value” is consistent with the existing provisions regulating the admissibility of tendency and coincidence evidence in the Evidence Act 1995 (NSW).⁹⁰ In the context of those provisions, “significant probative value” has been interpreted to require that evidence be “important” or be “of consequence” to the issues, that it be more than merely relevant but that it not necessarily be substantially relevant.⁹¹ The case law which has developed as to the interpretation of this term should assist the courts in applying the recommended reformulation of s 409B.

Weighing probative value against the danger of prejudice to the proper administration of justice: matters to be considered

6.118 Even if sexual experience evidence or activity, or lack of it, is found to have significant probative value, recommended s 409B(4)(b) provides that the court must not grant leave to admit it unless its probative value substantially outweighs the danger of prejudice to the proper administration of justice. Recommended s 409B(6) sets out matters which the court must consider as part of this balancing exercise.

6.119 The term “substantially outweighs” is again familiar to the courts because of its inclusion in a number of provisions in the Evidence Act 1995 (NSW).⁹² It places a heavy onus on the party seeking to admit the sexual experience evidence.⁹³

6.120 The matters to be considered under recommended s 409B(6) reflect the main concerns about admitting sexual experience evidence which have been discussed in this report and which the existing s 409B seeks, unsuccessfully, to resolve. They essentially require the court to balance considerations of fairness to the accused, with the risk of unfair prejudice arising from the admission of the evidence in question, as well as the need to protect the complainant, as much as possible, from distress, humiliation or embarrassment resulting from an invasion of his or her sexual privacy. The recommended reformulation makes it clear that this is not necessarily an exhaustive list of matters to be considered by the court in exercising its discretion.

Application to evidence of non-consensual sexual experience or activity

6.121 The Commission intends that the recommended reformulation of s 409B apply to evidence of non-consensual sexual experience or activity, as well as consensual experience or activity. Since there seems to be some uncertainty as to whether the term “sexual experience or activity” in the existing s 409B should be interpreted to include non-consensual experience or activity,⁹⁴ we considered it prudent to define the term in subsection (3)(b) of the reformulation to make it clear that the section applies equally to evidence of sexual experience or activity to which the complainant did not consent.

6.122 It may be true that the original rationale of the section was aimed more at protecting women from investigation into their previous consensual sexual encounters. However, we consider that survivors of sexual abuse should be offered the same protection from investigation into their sexual history as other complainants. The court may, of course, exercise its discretion to admit evidence of sexual abuse in cases where its probative value substantially outweighs the danger of prejudice to the proper administration of justice. This may occur particularly in child sexual assault cases, where the evidence relates to the same sort of matters as arose in the “problem cases”.

Application to evidence of a lack of sexual experience or activity

6.123 Recommended s 409B(3)(a) makes it clear that the section applies to restrict the admissibility of evidence of a lack of sexual experience or activity, as well as evidence of sexual experience or activity. Evidence of a lack of sexual experience will include, for example, evidence of a supposedly false allegation of sexual assault.

6.124 The Commission agrees that the original rationale of the existing s 409B was more particularly aimed at protecting women from comments about their “promiscuity”. However, we consider that the section should seek to protect complainants as much as possible from distressing investigation into their sexual lives generally, which includes investigation into their lack of sexual experience. It should also require the court to scrutinise the relevance of any evidence relating to a complainant’s sexual conduct, including a lack of experience, in order to ensure that inappropriate assumptions are not being made about the relevance of that evidence. We consider, however, that evidence of a lack of sexual experience will more readily be admitted than evidence of sexual experience, because it is less likely that the relevance of such evidence will be based on inappropriate assumptions about “promiscuous” women.

6.125 The concerns which have been expressed about admitting evidence of “false” allegations of sexual abuse reinforce the advantage in applying the restrictions in our recommended reformulation of s 409B to evidence of a lack of sexual experience. Under the recommended reformulation, the court will have to consider the probative value of such evidence and be required to weigh this against the danger of prejudice to the proper administration of justice. In doing this, the court may have to take into account many of the issues which were raised in submissions and consultations, such as the difficulty in determining whether the allegation was false, the risk that the evidence may arouse prejudice or assumptions in the jury about the “unreliability” of complainants, and the possible distress which the complainant may suffer.

6.126 The Commission considered including in the recommended reformulation a specific provision dealing with evidence of “false” allegations of sexual abuse, possibly adopting one of the proposals set out in paragraph 6.24-6.28. We came to the conclusion that it is not possible to draft such a provision in a way which is sufficiently flexible to allow consideration of all the facts in an individual case. The recommended reformulation is sufficient to allow proper consideration of the concerns about the admissibility of such evidence. It may be the responsibility of the Crown Prosecutor, in opposing an application by the defence to admit evidence of a complainant’s previous allegation of abuse, to direct the court’s attention to matters which may tend to lessen the probative value of such evidence or which suggest that the probative value of that evidence does not substantially outweigh the danger of prejudice to the proper administration of justice.

Requirement to give a warning to the jury

6.127 Recommended s 409B(11) applies in cases where leave is granted to admit evidence of a complainant’s sexual experience or activity. It requires the judge to give a warning to the jury against inferring that, by reason only of the fact that the complainant has engaged in sexual activity or has had sexual experience, she or he is less worthy of belief, and, where consent is an issue at the trial, that he or she was the type of person who is more likely to have consented. Like recommended subsection (5), this recommended subsection aims at preventing the use of sexual experience evidence for the purpose of making one of the common law inferences about a person’s credibility or propensity to consent to sexual activity based solely on the fact that that person has had previous sexual experience. It is directed at ensuring that, where sexual experience evidence is admitted for a legitimate purpose, it is not misused by the jury to make baseless assumptions about the complainant’s moral character.

6.128 The requirement to give a warning in recommended subsection (11) does not apply in relation to the admission of evidence of a lack of sexual experience or activity. In this situation, there is not the same risk that a jury may base a decision on an inappropriate moral judgment about a “promiscuous” or sexually active complainant.

Application to evidence for the prosecution

6.129 Unlike some other jurisdictions,⁹⁵ the Commission’s recommended reformulation of s 409B is not limited to apply only to evidence sought to be admitted by the accused. Consistent with the approach taken in the existing s 409B, our recommended reformulation also restricts the admissibility of sexual experience evidence raised by the prosecution.

6.130 Although s 409B was particularly intended to protect complainants from unnecessary attacks by the defence, the Commission considers that the section should continue to apply equally to the prosecution. The section ensures that the relevance of all sexual experience evidence, whether raised by the defence or by the prosecution, is properly scrutinised by the court before it is admitted. In this way, it prevents the return of the common law practices of using sexual experience evidence as a basis for making moral judgments about “chaste” and “unchaste” women.

6.131 Unlike the existing s 409B, however, the Commission’s recommended reformulation will not operate to exclude relevant evidence raised by the prosecution, where its exclusion may be detrimental to the prosecution’s case and, consequently, to the complainant. This is because the court will have a discretion to grant leave for the prosecution to admit sexual experience evidence where it can be shown to have significant probative value to the issues in the case and where its probative value is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Application to all stages of criminal proceedings

6.132 Recommended s 409B(1)(b) makes it clear that the section is to apply to all stages of criminal proceedings for a prescribed sexual offence.

6.133 As we noted in Chapter 2, it is arguably unclear whether the existing s 409B applies to committal proceedings, although it has generally been interpreted to do so. Moreover, it was recently argued in the High Court that the wording of s 409B excludes its application to hearings on appeal.⁹⁶ If this argument is accepted, it would have the result that evidence relating to a complainant’s sexual experience may be admitted on appeal which was inadmissible at trial.

6.134 Given the existing ambiguities, the Commission considers it desirable to spell out the scope of the application of s 409B in our recommended reformulation. We can see no reason in principle why the section should not apply to restrict the admissibility of evidence at all stages of criminal proceedings.

6.135 In recommended s 409B(1)(c), the Commission extends the application of the section to inquiries into a conviction under Part 13A of the Crimes Act. Under Part 13A, a review of a person’s conviction may be conducted by a judicial officer or a Justice of the Peace if there is doubt as to the convicted person’s guilt, or any mitigating circumstances, or any part of the evidence in the case. Following the recent argument in the High Court referred to above, it may be uncertain whether the existing s 409B applies to restrict the admissibility of evidence in inquiries under Part 13A.

6.136 If s 409B is reformulated to include a judicial discretion, the Commission can again see no reason in principle why the section should not apply to inquiries of this kind. To avoid any uncertainty, we have expressly provided to this effect in our recommended reformulation. However, we take the view that the discretion under the reformulated s 409B would more generally be exercised to permit the admission of evidence in these inquiries, given that, by reason of the inquisitorial nature of such proceedings, the person conducting the inquiry may inquire into matters which an appellate court may not be able to consider in determining whether a conviction was unsafe or unsatisfactory.⁹⁷

Procedural requirements

6.137 Recommended s 409B(7)-(10) imposes important procedural requirements on both counsel and the court in making and hearing an application for leave to admit evidence of sexual experience or activity, or lack of it. These provisions follow the approach taken in Canada and in Victoria, in which the exercise of the judicial discretion is restricted by detailed procedures which must be complied with before leave may be granted. Tight procedural requirements are an important safeguard against the inappropriate exercise of a judicial discretion, because they require counsel and the court to apply their minds to assessing the real relevance of the evidence sought to be admitted, and to justify why it should be admissible.

6.138 The procedural requirements recommended by the Commission include a requirement that counsel make an application for leave in writing, and that the application be given to the opposing party before the hearing of the application. This forces counsel to address specifically the way in which the evidence sought to be admissible is relevant to the issues in the case. It also gives the opposing party notice of the application, and allows time to prepare any arguments which he or she may wish to make in opposition to that application. The recommended reformulation requires that a copy of the application be given to the opposing party within such time as the court may prescribe or considers to be appropriate in the interests of justice. This allows the courts to set down the time limits which they consider to be the most appropriate.

6.139 The inclusion of a notice provision was supported by the Crown Prosecutors in consultation, but was opposed by the Public Defenders on the basis that it is not always known until the middle of a trial that issues relating to s 409B arise.⁹⁸ District Court judges were not generally opposed to a requirement to give notice, although they did not favour any provision which would require the formal filing of a Notice of Motion.⁹⁹ The Commission considers that the Public Defenders’ concern is satisfactorily addressed by a provision which gives the court a degree of flexibility in setting down time limits, where it is in the interests of justice to do so.

6.140 The recommended reformulation also requires the court to give reasons for its decision whether or not to grant leave, and if leave is granted to question the complainant, to state the nature of the evidence which may be elicited by that questioning. This last requirement addresses a concern raised by some Crown Prosecutors, which was that when the court grants leave now to cross-examine the complainant under one of the exceptions to the prohibition on sexual experience evidence, the scope of the questioning for which leave has been granted is not necessarily specified. This may have the result that questioning of the complainant extends beyond the scope of the evidence which, in the Crown Prosecutor’s view, was initially ruled to be admissible.¹⁰⁰

6.141 Recommended s 409B(8)-(9) provides that an application for leave must be heard in the absence of the jury and the public, and that the complainant is not a compellable witness in the hearing of the application. This means that a complainant cannot be forced to give evidence in the hearing of an application for leave. These provisions are designed to minimise unnecessary distress to the complainant. Under the existing provisions of s 409B, it may not be certain whether a complainant may be compelled to give evidence on an application for leave to admit evidence under the existing exceptions in s 409B(3).¹⁰¹ Arguably, it defeats one of the purposes of s 409B to subject a complainant to distressing questioning in a leave application for the purpose of determining whether the complainant should be protected from the distress of such questioning at trial.

6.142 The recommended reformulation does not stipulate any express sanctions for non-compliance with the procedural requirements. It does provide, however, that the court shall not grant leave to admit the evidence in question unless the party complies with the procedural requirements. The Commission considers that, in cases where a party seeks to admit evidence without first following the procedures, the court will usually grant an adjournment to allow time to comply.

Evidence of sexual reputation

6.143 In the recommended reformulation of s 409B, the discretion to admit evidence applies only to evidence of sexual experience or activity, or lack of it. There continues to be an absolute prohibition on admitting evidence relating to the complainant’s sexual reputation.

6.144 Most submissions supported an absolute prohibition on evidence of sexual reputation.¹⁰² In contrast, the Public Defenders considered that it may be prudent to apply a discretion to the admissibility of such evidence, in case it was relevant in a particular trial.

6.145 In most instances, evidence of the way in which a complainant’s sexual behaviour is regarded by others will have little or no relevance to the facts of the case, and any limited probative value it has will be greatly outweighed by its possible prejudicial effect.

6.146 The one situation in which, theoretically, sexual reputation evidence could have greater relevance is in a case where the accused claims to have honestly, though mistakenly, believed that the complainant was consenting to the sexual advance. It could be argued that the complainant’s reputation concerning her sexual practices may, if it was known to the accused, be relevant to the question of whether the accused honestly believed that there was consent. In fact, it could be argued that it is inconsistent for the law to recognise a defence of honest but mistaken belief (rather than requiring that belief to be reasonable), but on the other hand prohibiting evidence of sexual reputation, which may have contributed to that honest belief.

6.147 While the Commission acknowledges the theoretical argument for admitting sexual reputation evidence, as a matter of policy we take the view that such evidence should never be admissible, even in cases of honest but mistaken belief. Although the law recognises a defence of honest belief, the prohibition on sexual reputation evidence is a compromise between the principle of fairness to the accused and society’s concern that consent to a sexual act never be assumed from hearsay reports about a person’s sexual disposition. This approach is consistent with the approach in most other jurisdictions, where there are absolute bans on sexual reputation evidence.

6.148 Recommended s 409B(2) includes a provision which makes it clear that evidence of sexual experience or activity, or lack of it, is not to be automatically excluded merely because it also relates to the complainant’s sexual reputation. This provision addresses the problem raised in paragraph 4.29, namely, that the current wording of the prohibition on evidence relating to sexual reputation may wrongly exclude relevant and otherwise admissible evidence of sexual experience if it can be shown to relate also to reputation. This may raise particular difficulties for the prosecution in cases involving alleged sexual assault of a sex worker by a client. In such cases, the fact that the complainant was a sex worker may be an essential part of the context in which the assault was committed, yet it may be excluded on the grounds that it relates to the complainant’s reputation as a sex worker. Such a result is undesirable and may be unfair from the point of view of the prosecution and the complainant. To avoid difficulties of this kind, we have included recommended s 409B(2)(b) in the recommended reformulation.

Definition of “prescribed sexual offence”

6.149 As we noted in Chapter 2, s 409B applies to proceedings for “prescribed sexual offences”, not to sexual offences generally. The term “prescribed sexual offence” is defined as one or more of a number of specified offences which are listed in s 4(1) of the Crimes Act 1900 (NSW).

6.150 Not all sexual offences against the person are included within the list of offences under the definition of “prescribed sexual offence” in s 4(1). Consequently, where a person is accused of committing a sexual offence which does not amount to a prescribed sexual offence, s 409B will not operate in criminal proceedings for that offence.¹⁰³ Sexual offences which are not included within the definition of a prescribed sexual offence are:

• procuring carnal knowledge by fraud (Crimes Act 1900 s 66)
• carnal knowledge by a teacher or father (Crimes Act 1900 s 73)
• attempted carnal knowledge by a teacher or father (Crimes Act 1900 s 74)
• incest (Crimes Act 1900 s 78A)
• incest attempt (Crimes Act 1900 s 78B)
• homosexual intercourse by a teacher or father (Crimes Act 1900 s 78N)
• attempted homosexual intercourse by a teacher or father (Crimes Act 1900 s 78O)
• act of gross indecency with or towards a male person (Crimes Act 1900 s 78Q)
• abduction of a woman against her will (Crimes Act 1900 s 86)
• abduction of a woman against the will of her parents (Crimes Act 1900 s 87)
• forcible abduction of a woman (Crimes Act 1900 s 89)

6.152 One way to widen the application of s 409B to cover the offences above would be to amend the section to state that it applies simply to “sexual offence proceedings”, with no attempt to define that term by reference to specific offences arising out of the Crimes Act 1900 (NSW). This approach would have the advantage that it would not require subsequent amendments if, in the future, specific sexual offences were added or abolished under the Crimes Act. However, the danger of adopting this approach is that it may give rise to disputes and uncertainty as to what exactly is a “sexual offence” so as to attract the operation of s 409B.

6.153 In the Commission’s view, a preferable approach is to amend the meaning of “prescribed sexual offence” for the purposes of s 409B, so that it includes those offences listed above. We concede that this is perhaps more awkward than a simple reference to “sexual offence proceedings”, because it may require subsequent amendments. However, it is the most certain means of ensuring that there are no ambiguities about the application of s 409B.

6.154 The Commission has recommended that a definition of the term “prescribed sexual offence” be included within the recommended reformulation of s 409B, rather than rely on an (amended) definition of that term in s 4(1) of the Crimes Act 1900 (NSW). The only reason why we have recommended this is because there are other provisions in the Crimes Act which refer to a “prescribed sexual offence”.¹⁰⁵ Any change to the definition of “prescribed sexual offence” in s 4(1) of the Crimes Act would therefore have an impact on those other provisions. The terms of the Commission’s reference do not allow us to make recommendations for reform beyond the operation of s 409B. Consequently, we have confined our recommendation for amendment to the definition of “prescribed sexual offence” to its application

1. See para 4.8-4.20.

2. M Roberts, Submission at 2; NSW Rape Crisis Centre Inc, Submission at 7-8; Women’s Legal Resources Centre, Submission at 4; Redfern Legal Centre, Aboriginal Women’s Legal Resources Centre, Campbelltown Legal Centre, Intellectual Disability Rights Service, Submission at 5-6; Child Protection Unit, New Children’s Hospital, Submission at 2; Department for Women, Submission at 6-7; Liverpool/Fairfield Sexual Assault Service, Consultation. The Sexual Assault Service at Royal North Shore considered that it may be desirable to introduce a separate provision to admit evidence of sexual abuse in child sexual assault cases, but emphasised the need for the judge in such cases to warn the jury not to rely on stereotypes of children as sexually provocative: Royal North Shore Sexual Assault Service, Consultation. One submission supported an amendment to s 409B to permit evidence of sexual abuse, on the condition that only independent evidence of abuse should be admissible, that is, the complainant should not be permitted to be questioned about the abuse. This proposal was said to avoid trauma to the complainant: see E Magner and M Kumar, Submission at 13.

3. T Marcketti, “Rape Shield Laws: Do They Shield the Children?” (1993) 78 Iowa Law Review 753 at 763.

4. P Wagstaff, Submission at 2; Westmead Sexual Assault Service, Submission at 2; S Egger and J Gans, Submission at 3-4; NSW Rape Crisis Centre Inc, Submission at 6; Kingsford Legal Centre, Submission at 17-19; Women’s Legal Resources Centre, Submission at 7; NSW Health Department, Submission at 4; Victims Advisory Board, Submission at 1; Liverpool/Fairfield Sexual Assault Service, Submission at 3; Child Protection Unit, New Children’s Hospital, Submission at 1-2; Department for Women, Submission at 16-19; Southern Sydney Sexual Assault Service, Oral Submission; Royal North Shore Sexual Assault Service, Consultation; Southern Area Health Service, Sexual Assault Services, Consultation; Eastern and Central Sexual Assault Service, Consultation; Crown Prosecutors, Consultation; Liverpool/Fairfield Sexual Assault Service, Consultation; DPP Witness Assistance Service, Consultation; Newcastle/Hunter Sexual Assault Service, Oral Submission.

5. DPP Witness Assistance Service, Consultation.

6. Public Defenders, Consultation.

7. Redfern Legal Centre, Aboriginal Women’s Legal Resources Centre, Campbelltown Legal Centre, Intellectual Disability Rights Service, Submission at 5; Kingsford Legal Centre, Submission at 17-18; NSW Rape Crisis Centre Inc, Submission at 7; Department for Women, Submission at 16. See also Southern Area Health Service, Sexual Assault Services, Consultation.

8. S Egger and J Gans, Submission at 3-4; Women’s Legal Resources Centre, Submission at 7.

9. See Royal North Shore Sexual Assault Service, Consultation; Southern Area Health Service, Sexual Assault Services, Consultation; Eastern and Central Sexual Assault Service, Consultation; DPP Witness Assistance Service, Consultation; Newcastle/Hunter Sexual Assault Service, Oral Submission; Southern Sydney Sexual Assault Service, Oral Submission.

10. Public Defenders, Consultation.

11. Crown Prosecutors, Consultation; Southern Area Health Service, Sexual Assault Services, Consultation.

12. Crown Prosecutors, Consultation.

13. DPP Witness Assistance Service, Consultation.

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

15. People v Mikula 84 Mich App 108, 115-116, 269 NW 2d 195 (1978); People v Hackett 365 NW 2d 120, 125 (Mich 1984); cf People v Arenda 330 NW 2d 814, 818 (Mich 1982).

16. The study conducted by Ms Bonney for the Bureau of Crime Statistics and Research in 1985 found that, since the introduction of the sexual assault reforms in 1981, there had been an approximate increase of 15.4% in the number of reports of a sexual offence to the police. However, the study emphasised the need to be cautious in drawing any conclusion from this about the effect of the legislative reforms on reporting rates. There could be other factors which contributed to reporting rates, such as the wider range of sexual offences for which a person could be charged, better training for police and medical staff in handling complaints of sexual abuse, and changes in attitude in the general community about the criminality of violence against women: see R Bonney, Crimes (Sexual Assault) Amendment Act 1981 Monitoring and Evaluation: Interim Report No 1: Characteristics of the Complainant, the Defendant and the Offence at 8; Interim Report 2: Sexual Assault: Court Outcome, Acquittals, Convictions and Sentence at 62-63 (NSW Bureau of Crime Statistics and Research, Sydney, 1985; 1986). See also similar conclusions reached in an American study: J Marsh, A Geist, N Caplan, Rape and the Limits of Law Reform (Auburn House Publishing Co, Boston, 1982) at 42-43.

17. See R v PJE (NSW, Court of Criminal Appeal, No 60216/95, 9 October 1995, unreported) per Sperling J at 5, not followed in R v G (1997) 42 NSWLR 451 per Mason P at 457-458, per Sperling J at 460-461. See also submissions of defence counsel on appeal to the High Court in HG v The Queen: transcript of proceedings No S67/98 on 8 September 1998. The Women Lawyer’s Association expressed the view that evidence of previous false allegations of abuse does not amount to an investigation into past sexual experiences and should fall outside the scope of s 409B. It was considered, however, that this was an issue which relates particularly to child sexual assault cases, and such could perhaps more appropriately be dealt with by separate legislation: see Women Lawyers’ Association, Submission at 4-5.

18. R v G (1997) 42 NSWLR 451 per Mason P at 457-458, per Sperling J at 460-461.

19. For example, the exception for injury, etc in s 409B(3)(c) could be expanded to include evidence of previous sexual abuse.

20. Crown Prosecutors, Consultation.

21. S Egger and J Gans, Submission at 5.

22. See para 5.23-5.27.

23. See Colorado Rev Stat 18.3-407(2) (1986).

24. See Mississippi R Evid 412(b)(2)(C).

25. 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 773-775.

26. The Crown Prosecutors supported the addition of exceptions to address the “problem cases”, that is to cover evidence of sexual abuse and previous false allegations. They also favoured the inclusion of an additional exception in s 409B(3) to allow the prosecution to raise evidence of sexual experience or activity or lack of it where it is important to the prosecution’s case and where not to do so would be detrimental to the complainant: see Crown Prosecutors, Consultation. A number of submissions favoured the addition of an exception to admit evidence of previous false allegations, but did not address the question of whether an exception should also be added to admit evidence of previous sexual abuse: see N Cowdery QC, Submission at 1-2; S Egger and J Gans, Submission at 4-5; NSW Health Department, Submission at 6. Other submissions supported the addition of an exception to admit evidence of previous false allegations, provided “false” could be defined in a satisfactory way in legislation: see Women’s Legal Resources Centre, Submission at 4 and 7; NSW Young Lawyers, Submission at para 5.2. One submission supported a provision permitting independent evidence of sexual abuse to be introduced where consent is not an issue, but not permitting questioning of the complainant about the abuse: M Kumar and E Magner, Submission at 12. The Hon J Saffin MLC, Submission at 3, gave qualified support to adding exceptions to s 409B(3) if the issues arising from the current operation of the section could not be settled without recourse to legislative change. See also M Roberts, Submission at 1.

27. Liverpool/Fairfield Sexual Assault Service, Consultation; Eastern and Central Sexual Assault Service, Consultation; Southern Area Health Service, Sexual Assault Services, Consultation; Child Protection Unit, New Children’s Hospital, Submission at 1-2; Macquarie and Far West Sexual Assault Services, Submission at 2; Richmond Sexual Assault Service, Submission at 1; T Manson, Submission at 2-3.

28. See para 6.74-6.81.

29. All defence lawyers who were consulted or who made a submission took this view. See para 6.33.

30. See District Court judges, Consultation.

31. Public Defenders, Submission at 10; Legal Aid Commission, Consultation.

32. See Chapter 5.

33. See para 4.46-4.50.

34. See P Gallagher, J Hickey, and D Ash, Child Sexual Assault: An Analysis of Matters Determined in the District Court of New South Wales During 1994 (Monograph Series 15, Judicial Commission of New South Wales, Sydney, 1997).

35. See N Cowdery QC, Submission at 3; Crown Prosecutors, Consultation. This was also a concern expressed by some District Court judges: see District Court judges, Consultation.

36. The Director of Public Prosecutions may lodge an appeal in relation to the inadequacy of a sentence, an increase of sentence after a person fails to cooperate with authorities, the quashing of an indictment, a stated case after an acquittal, and an appeal against an interlocutory judgment or order: see Criminal Appeal Act 1912 (NSW) s 5A-5F.

37. See Rules 413-414 of the Federal Rules of Evidence (United States of America). A proposal has been put forward in the United Kingdom for legislation to permit evidence of the accused’s history of sexual violence to be admitted whenever evidence of a complainant’s sexual experience is admitted: see para 5.47.

38. See Evidence Act 1995 (NSW) s 97, 98, 101.

39. See Australian Law Reform Commission, Evidence (Report 26, Interim, 1985) vol 1 at para 411.

40. See the strong dissent of Justice L’Heureux-Dube in the Canadian case of Seaboyer v The Queen; Gayme v The Queen [1991] 2 SCR 577 at 643-712.

41. Royal North Shore Sexual Assault Service, Consultation; Liverpool/Fairfield Sexual Assault Service, Consultation.

42. E Magner and M Kumar, Submission at 23; NSW Health Department, Submission at 2; NSW Council on Violence Against Women, Submission at 7 and 12; Department for Women, Submission at 23-27; Premier’s Council for Women, Submission at 1; L Byrnes, Submission at 1-2; T Manson, Submission at 3; NSW Rape Crisis Centre Inc, Submission at 3-5; Fems Rea, Submission at 4; Dympna House, Incest Counselling and Resource Centre, Submission at 2; Office of the Status of Women, Department of Prime Minister and Cabinet, Submission at 2 and 7; Kingsford Legal Centre, Submission at 6 and 12-14; Women’s Legal Resources Centre, Submission at 1 and 3; Redfern Legal Centre, Aboriginal Women’s Legal Resources Centre, Campbelltown Legal Centre, Intellectual Disability Rights Service, Submission at 3-4, 8-9.

43. See para 4.55.

44. Heroines of Fortitude at 246.

45. Heroines of Fortitude, case 36 at 246.

46. See Crown Prosecutors, Consultation.

47. Liverpool/Fairfield Sexual Assault Service, Submission at 2; Crown Prosecutors, Consultation.

48. Justices Act 1902 (NSW) s 48E.

49. See R v Kennedy (1997) 94 A Crim R 341 (NSW CCA). See also B v Gould and DPP (1993) 67 A Crim R 297 , which considered the now repealed s 48EA of the Justices Act 1902 (NSW) (s 48EA imposed a similar test for requiring the attendance of an alleged victim of a violent offence).

50. Royal North Shore Sexual Assault Service, Consultation; Southern Area Health Service, Sexual Assault Services, Consultation; Crown Prosecutors, Consultation.

51. Evidence Act 1995 (NSW) s 126G-126L, inserted by the Evidence Amendment (Confidential Communications) Act 1997 (NSW) Sch 1.

52. Law Society, Submission at 1. See also Legal Aid Commission, Consultation; J Fleming, Submission at 2; NSW Council for Civil Liberties, Submission at 2; NSW Young Lawyers, Submission at 4. NSW Young Lawyers suggested that the section should also include a proviso that the judge grant leave to admit evidence where it is in the interests of justice to do so and to ensure a fair trial for the accused. The Women Lawyers’ Association did not support the introduction of a discretion but submitted that, if a discretion were introduced, it should be framed in terms which require the probative value of the evidence to outweigh the stress and humiliation which the complainant may suffer: Women Lawyers’ Association, Submission at 6.

53. Public Defenders, Consultation.

54. Evidence Act 1995 (NSW) s 103. See R v RPS (NSW, Court of Criminal Appeal, No 60583/96, 13 August 1997, unreported).

55. See Mahoney JA in R v Morgan (1993) 30 NSWLR 543 at 552. See also E Magner and M Kumar, Submission at 13-14; District Court judges, Consultation. In contrast, the Public Defenders did not consider that there were any difficulties in applying the phrase “distress, humiliation or embarrassment”: see Public Defenders, Consultation.

56. For example, judges have to weigh up competing interests when deciding whether to exclude evidence which has been improperly or illegally obtained, or for which there is a claim of public interest immunity, or a claim for sexual assault communication privilege: see Evidence Act 1995 (NSW) s 138, 130, 126B.

57. Bar Association, Submission at 1.

58. See para 5.41.

59. J Nicholson SC, Oral Submission.

60. The defence lawyers, all of whom supported the introduction of a discretion, did not express particular views as to whether the discretion should be adopted according to the model set out in option two, or according to the model in option three. Some lawyers did emphasise, however, that whichever model was chosen, the legislation should continue to require counsel to seek leave before introducing evidence: Public Defenders, Consultation. One group, who were strongly opposed to the introduction of a discretion, submitted that if a discretion were introduced, the existing framework for s 409B should be retained, and a discretionary provision added to the end of s 409B(3): see Fems Rea, Submission at 8.

61. See para 5.33. See also E Magner and M Kumar, Submission at 31 and J Bargen and E Fishwick, Sexual Assault Law Reform: A National Perspective (Office of the Status of Women, Canberra, 1995) at 91-93.

62. See Chapter 5.

63. NSW Council on Violence Against Women, Submission at 3; Department for Women, Submission at 6; Women Lawyers’ Association, Submission at 7; NSW Health Department, Submission at 3-5; Women’s Legal Resources Centre, Submission 8; Kingsford Legal Centre, Submission at 4-5; Redfern Legal Centre, Aboriginal Women’s Legal Resources Centre, Campbelltown Legal Centre, Intellectual Disability Rights Service, Submission at 5-6; Dympna House, Incest Counselling and Resource Centre, Submission at 3; Royal North Shore Sexual Assault Service, Consultation.

64. See Royal North Shore Sexual Assault Service, Consultation.

65. Public Defenders, Consultation; Legal Aid Commission, Consultation. One Public Defender gave limited support to this option if it established a separate provision for children which included a judicial discretion to admit evidence.

66. M Roberts, Submission at 3.

67. See para 4.30.

68. See Evidence Act 1995 (NSW) Part 3.

69. Evidence Act 1995 (NSW) s 97.

70. Section 97(1)(a) also imposes a requirement that the party seeking to admit the evidence give reasonable notice of this intention to the other party.

71. Evidence Act 1995 (NSW) s 98.

72. Section 98(1)(a) also requires that the party seeking to admit the evidence give reasonable notice of this intention to the other party.

73. Evidence Act 1995 (NSW) s 102, 103, 106.

74. Evidence Act 1995 (NSW) s 135.

75. Evidence Act 1995 (NSW) s 41 and 103.

76. H di Suvero, Submission at 5.

77. See recommendation 1 and para 6.96-6.99.

78. This option was suggested by Mr Stephen Odgers, although it is not necessarily his preferred option.

79. See para 4.41.

80. See E Magner and M Kumar, Submission at 21, 23. See also M Kumar and E Magner, “Good Reasons for Gagging the Accused” (1997) 20 University of New South Wales Law Journal 311 at 330-331.

81. Victims of crime have a right to commence private prosecutions, but the Director of Public Prosecutions can at any time take over and discontinue these proceedings: see Director of Public Prosecutions Act 1986 (NSW) s 9; New South Wales, Office of the Director of Public Prosecutions, Prosecution Policy and Guidelines (Sydney, March 1998) at 7-8.

82. See Redfern Legal Centre, Aboriginal Women’s Legal Resources Centre, Campbelltown Legal Centre, Intellectual Disability Rights Service, Submission at 5.

83. See para 6.89.

84. See M Kumar and E Magner, “Good Reasons for Gagging the Accused” (1997) 20 University of New South Wales Law Journal 311 at 331.

85. See Evidence Act 1995 (NSW) Pt 3.2, 3.3, 3.10.

86. See Z Adler, Rape on Trial (Routledge and Kegan Paul, London, 1987) at 143.

87. See para 5.20-5.22, 5.52-5.53.

88. Criminal Code (Canada) s 276(1). See para 5.33.

89. The hearing of an appeal to the Supreme Court of Canada in the case of R v Darrach is pending. See also D Paciocco, “The New Rape Shield Provisions in Section 276 Should Survive Charter Challenge” 21 CR (4^th) 223.

90. Sections 97 and 98. See para 6.84-6.85.

91. See R v Lockyer (1996) 89 A Crim R 457 (NSW CCA); R v Lock (1997) 91 A Crim R 356 (NSW CCA); R v AH (1997) 42 NSWLR 702; R v Fordham (NSW, Court of Criminal Appeal, No 60697/97, 2 December 1997, unreported) per Howie AJ at 15.

92. See, for example, s 101, 135.

93. See S Odgers, Uniform Evidence Law (3rd edition, LBC Information Services, Sydney, 1998) at para 135.2.

94. On appeal to the High Court in HG v The Queen, counsel for the appellant submitted that “sexual experience or activity” should be interpreted to apply only to experience or activity which is consensual, that is, that it not include evidence of previous sexual assault or other sexual abuse. This argument had been previously rejected by the NSW Court of Criminal Appeal in R v G: see para 2.6. The High Court’s judgment in HG v The Queen has not yet been delivered: see transcript of proceedings No S67/98 on 8 September 1998.

95. See Chapter 5.

96. See transcript of proceedings in HG v The Queen (High Court of Australia, No S67/98, 8 September 1998). Counsel for the appellant argued that the use of the word “charged” in s 409B and in s 4(1) of the Crimes Act 1900 (NSW) means that s 409B does not apply to a person who has already been convicted and appeals that conviction.

97. See Grills v The Queen; PJE v The Queen (High Court of Australia, No S8/96, 9 September 1996, unreported); R v Morgan (1993) 30 NSWLR 543.

98. See Public Defenders, Consultation; Crown Prosecutors, Consultation.

99. See District Court judges, Consultation.

100. See Crown Prosecutors, Consultation.

101. See R v Morgan (1993) 30 NSWLR 543 per Mahoney JA at 552.

102. See Public Defenders, Submission at 10.

103. However, it has been held that where sexual offences which are not covered by s 409B are heard in the same proceedings as a sexual offence which is covered by the section, then s 409B will apply to all offences heard in those proceedings: R v ARS (NSW, Court of Criminal Appeal, No 60684/95, 25 September 1997, unreported).

104. Crown Prosecutors, Consultation; Public Defenders, Consultation.