21.10.2010
Recommendation 27–1 Federal, state and territory legislation should provide that complainants of sexual assault must not be cross-examined in relation to, and the court must not admit any evidence of, the sexual reputation of the complainant.
Recommendation 27–2 Federal, state and territory legislation should provide that the complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities—whether consensual or non-consensual—of the complainant, other than those to which the charge relates, without the leave of the court.
Recommendation 27–3 Federal, state and territory legislation should provide that the court must not grant leave under the test proposed in Rec 27–2, unless it is satisfied that the evidence has significant probative value and that it is in the interests of justice to allow the cross-examination or to admit the evidence, after taking into account:
(a) the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked;
(b) the risk that the evidence may arouse discriminatory belief or bias, prejudice, sympathy or hostility;
(c) the need to respect the complainant’s personal privacy;
(d) the right of the defendant to fully answer and defend the charge; and
(e) any other relevant matter.
Recommendation 27–4 Federal, state and territory legislation should provide that evidence about the sexual activities—whether consensual or non-consensual—of the complainant, other than those to which the charge relates, is not of significant probative value only because of any inference it may raise as to the general disposition of the complainant.
Recommendation 27–5 Federal, state and territory legislation should require that an application for leave to cross-examine complainants of sexual assault, or to admit any evidence, about the sexual activities of the complainant must be made:
(a) in writing;
(b) if the proceeding is before a jury—in absence of the jury; and
(c) in the absence of a complainant, if a defendant in the proceeding requests.
Recommendation 27–6 Federal, state and territory legislation should require a court to give reasons for its decision whether or not to grant leave to cross-examine complainants of sexual assault, or to admit any evidence, about the sexual activities of the complainant and, if leave is granted, to state the nature of the admissible evidence.
Recommendation 27–7 Australian courts, and judicial education and legal professional bodies should provide education and training about the procedural requirements for admitting and adducing evidence of sexual activity.
Recommendation 27–8 Federal, state and territory legislation and court rules relating to subpoenas and the operation of the sexual assault communications privilege should ensure that the interests of complainants in sexual assault proceedings are better protected, including by requiring:
(a) parties seeking production of sexual assault communications, to provide timely notice in writing to the other party and the sexual assault complainant;
(b) that any such written notice be accompanied by a pro forma fact sheet on the privilege and providing contact details for legal assistance; and
(c) that subpoenas be issued with a pro forma fact sheet on the privilege, also providing contact details for legal assistance.
Recommendation 27–9 The Australian, state and territory governments, in association with relevant non-government organisations, should work together to develop and administer training and education programs for judicial officers, legal practitioners and counsellors about the sexual assault communications privilege and how to respond to a subpoena for confidential counselling communications.
Recommendation 27–10 State and territory evidence legislation should provide that:
(a) the opinion rule does not apply to evidence of an opinion of a person based on that person’s specialised knowledge of child development and child behaviour; and
(b) the credibility rule does not apply to such evidence concerning the credibility of children.
Recommendation 27–11 Federal, state and territory legislation should authorise the giving of jury directions about children’s abilities as witnesses and responses to sexual abuse, including in a family violence context.
Recommendation 27–12 Judges should develop model jury directions, drawing on the expertise of relevant professional and research bodies, about children’s abilities as witnesses and responses to sexual abuse, including in a family violence context.
Recommendation 27–13 Federal, state and territory legislation should provide that, in sexual assault proceedings, tendency or coincidence evidence is not inadmissible only because there is a possibility that the evidence is the result of concoction, collusion or suggestion.