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Where am I now? Lawlink > Law Reform Commission > Publications > Report 87 (1998) - Review of Section 409B of the Crimes Act 1900 (NSW)
Report 87 (1998) - Review of Section 409B of the Crimes Act 1900 (NSW) TABLE OF CONTENTS Terms of Reference
(b) Relevance of evidence that the child has made false allegations of sexual abuse on other occasions Operation of s 409B beyond its original rationale Consequences of finding that an accused may be denied a fair trial ARGUMENTS IN SUPPORT OF THE CURRENT OPERATION OF SECTION 409B Empirical studies of the operation of s 409B PROPOSALS FOR GREATER RESTRICTIONS IN SECTION 409B The exceptions to the prohibition in section 409B(3)
“Connected set of circumstances” exception Exception to explain physical evidence Exception for evidence of disease in the complainant or in the accused Exception for evidence of discovery of pregnancy or disease Procedure for admitting evidence of sexual experience or activity 5. LEGISLATION IN OTHER JURISDICTIONS AUSTRALIAN JURISDICTIONS Empirical studies
Tasmania Michigan CANADA NEW ZEALAND ENGLAND AND WALES IRELAND SCOTLAND 6. REFORM OF SECTION 409B THE NEED FOR REFORM Objections to the admissibility of evidence of sexual abuse Objections to the admissibility of evidence of false allegations of abuse The Commission’s response OPTIONS FOR REFORM Option 1: Additional exceptions Option 2: Overriding judicial discretion to admit evidence
Arguments against a discretion Models for formulating a discretion Option 4: A separate provision for child sexual assault cases Option 5: Abolition of s 409B Option 6: A provision to stay proceedings THE COMMISSION’S RECOMMENDATIONS DISCUSSION OF THE COMMISSION’S RECOMMENDATIONS Recommendation 1: Retention of a special provision for sexual offence proceedings Recommendation 2: Reformulation of s 409B
Prohibition on making general inferences about consent or credibility “Significant probative value” of the evidence sought to be admitted Weighing probative value against the danger of prejudice to the proper administration of justice: matters to be considered Application to evidence of non-consensual sexual experience or activity Application to evidence of a lack of sexual experience or activity Requirement to give a warning to the jury Application to evidence for the prosecution Application to all stages of criminal proceedings Procedural requirements Evidence of sexual reputation Definition of “prescribed sexual offence” Appendix A — Submissions Received Appendix B — Consultations Table of Cases Table of Legislation Select Bibliography Index |
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