Section 409B should be retained.

Section 409B should be amended to provide as follows:

(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).

(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.

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

(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).

(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.

(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.

(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;

(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.

(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.