Sexual reputation and experience

27.11 This section considers legislation intended to restrict the admission of evidence of a complainant’s sexual reputation and sexual experience. A number of complexities arise in analysing existing legislation of this kind.

27.12 First, existing restrictions apply to evidence defined in varying ways, including as evidence of sexual reputation, sexual history, sexual experience and sexual activities. The implications of this terminology are considered below. For convenience, the Report uses the term sexual experience to mean the sexual activities (consensual or non-consensual) of a complainant.

27.13 Secondly, existing legislative provisions not only restrict the admission of sexual reputation and sexual experience evidence generally, but also for specific purposes—including for the purpose of establishing that the complainant is the ‘type’ of person who is more likely to consent to sexual activity, or as an indicator of the complainant’s truthfulness.[7]

Evidence of witnesses who are not complainants

27.14 State and territory legislation generally restricts the admission of evidence of the complainant’s sexual reputation and sexual experience in proceedings in which a person stands charged with a sexual offence.[8] The Commonwealth restrictions apply to every child witness in sexual assault proceedings.[9]

27.15 The provisions therefore do not apply to evidence about the sexual reputation or sexual experience of the following groups:

  • in the Commonwealth jurisdiction, adult sexual assault complainants in sexual assault proceedings;

  • in all jurisdictions, adult sexual assault victims who are witnesses, but not complainants in sexual assault proceedings; and

  • in the state and territory jurisdictions, child witnesses who are not complainants in a sexual assault proceeding.

Submissions and consultations

27.16 In the Consultation Paper, the Commissions asked whether federal, state and territory evidence laws and procedural rules should limit the admission of evidence about the sexual reputation and prior sexual history of all witnesses in sexual assault proceedings.[10]

27.17 A number of stakeholders supported the extension of legislative restrictions in relation to the admission of evidence about sexual reputation and sexual experience to all witnesses in sexual assault proceedings.[11]

27.18 Women’s Legal Service Queensland suggested that it would be unusual for evidence about the sexual reputation or sexual experience of a witness who is not the complainant to be relevant in sexual assault proceedings.[12]

Commissions’ views

27.19 The Commissions consider that, in practice, questions are not likely to arise often concerning the admissibility of evidence of the sexual reputation or sexual experience of a witness who is not the complainant in sexual assault proceedings. One possible scenario might involve attempts to adduce sexual experience evidence about a witness who has been engaged in prostitution, in order to impugn her credibility.

27.20 Where such evidence is sought to be adduced, existing evidence law may adequately deal with the possibility. For example, evidence about the sexual reputation or sexual experience of a witness may fail the relevance requirement under s 55 of the uniform Evidence Acts. If questioning on the subject is intended to harass or intimidate the witness, questioning may (or must) be disallowed under s 41 of the uniform Evidence Acts. Finally, if the evidence is sought to be admitted in cross-examination as to credibility, it will be excluded under s 102 of uniform Evidence Acts unless it ‘could substantially affect the assessment of the credibility of the witness’.[13]

27.21 While some stakeholders suggested existing restrictions in relation to the admission of evidence of sexual reputation or sexual experience should be extended to all witnesses, the Commissions consider that there are insufficient grounds to make such a recommendation.

Terminology

27.22 Australian legislation restricts the admission of evidence variously described as being of:

  • the general reputation of the complainant with respect to chastity;[14]

  • sexual reputation;[15]

  • reputation with respect to sexual activities;[16]

  • disposition of the complainant in sexual matters,[17] or evidence that raises inferences about a complainant’s general disposition;[18]

  • sexual history;[19]

  • sexual experience,[20] or sexual experiences;[21] and

  • ‘experience with respect to sexual activities’,[22] ‘sexual activity’[23] or ‘sexual activities’.[24]

27.23 Statutory and judicial guidance[25] about the meaning and boundaries of each of these terms and the kinds of evidence covered are limited.[26] In practice, this uncertainty may inhibit the ability of judicial officers and practitioners to apply and observe the current legislative provisions.[27]

Submissions and consultations

27.24 In the Consultation Paper, the Commissions asked how judicial officers and legal practitioners can best be assisted to develop a consistent approach to the classification of evidence as being of ‘sexual reputation’ as compared with ‘sexual experience’ (or ‘sexual activities’).[28]

27.25 National Legal Aid noted that the operation of the legislative provisions governing these kinds of evidence is not monitored, but should be, and that there is often no empirical evidence to assess whether the intention of Parliament in enacting particular provisions is being met.[29] A number of other stakeholders observed that the classification of evidence as being of ‘sexual reputation’ or ‘sexual experience’ is not an issue in practice.[30]

27.26 The Magistrates’ Court and Children’s Court of Victoria suggested that multifaceted education and training would assist the development of a consistent approach to the classification of evidence as being of ‘sexual reputation’ or ‘sexual experience’. This should include targeted judicial professional development.[31]

Commissions’ views

27.27 It is important that sexual reputation evidence is distinguishable from sexual experience evidence because, broadly speaking, sexual reputation evidence is inadmissible in most jurisdictions, whereas sexual experience evidence is admissible in some circumstances. However, it is not clear whether, or to what extent, evidence is inconsistently categorised in practice.

27.28 The Commissions suggest that this is an area in which empirical research might usefully be conducted to establish how existing provisions are being applied and interpreted in sexual assault proceedings. Judicial and practitioner education concerning relevant definitions and their boundaries may also assist to ensure that the concepts are more clearly understood and delineated.

Sexual reputation

27.29 Evidence relating to a complainant’s sexual reputation is inadmissible in all Australian states and the ACT.[32] Evidence of sexual reputation is excluded on the basis that, ‘even if relevant and therefore admissible, [it] is too far removed from evidence of actual events or circumstances for its admission to be justified in any circumstances’.[33]

27.30 In the Northern Territory, evidence relating to the complainant’s general reputation as to chastity may be elicited or led with the leave of the court. Leave is not granted unless the evidence has substantial relevance to the facts in issue.[34]

27.31 Under federal legislation, evidence of a child witness or child complainant’s sexual reputation is only admissible in a proceeding if the court is satisfied that the evidence is substantially relevant to the facts in issue.[35]

Submissions and consultations

27.32 In the Consultation Paper, the Commissions proposed that federal, state and territory legislation should provide that a court must not admit any evidence of the sexual reputation of the complainant.[36]

27.33 Stakeholders generally supported the proposal.[37] Some stakeholders, however, preferred a model where sexual reputation evidence may be elicited or led with the court’s leave.[38] The Magistrates’ Court and Children’s Court of Victoria noted that the Consultation Paper proposal went further than the current restrictions in Victoria and that any such law needs to be supported by judicial education and lawyer accreditation in family violence and sexual assault.[39]

Commissions’ views

27.34 The Consultation Paper proposal reflected the current legal position in most jurisdictions. It is clear that the policy basis for excluding evidence of sexual reputation—that it is too far removed from the evidence of actual events or circumstances for its admission to be justified in any circumstances—is widely accepted. However, the federal and Northern Territory exclusionary rules do not give the policy full effect.

27.35 In the Commissions’ view, federal, state and territory legislation should be consistent in providing that the court must not allow any questions as to, or admit any evidence of, the sexual reputation of the complainant. Judicial and practitioner education concerning the scope of evidence of sexual reputation may be desirable.

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.

Sexual experience

27.36 Australian jurisdictions have adopted different approaches to the admission of evidence of the complainant’s sexual experience—described variously as evidence of ‘sexual activities’, ‘sexual activity’, ‘sexual experiences’ and ‘sexual experience’.

27.37 This issue is an important one for all complainants in sexual assault cases for whom the admission of sexual experience evidence can have the effect of re-traumatisation through humiliation and ‘victim-blaming’.

27.38 The Commissions have heard that evidence of a complainant’s prior sexual history is more likely to be admitted in proceedings concerning sexual offences perpetrated in a family violence context, as compared with other sexual assault proceedings.[40]

27.39 Sexual experience evidence may also reinforce certain prejudices that jury members may hold. Statutory restrictions relating to the admission of sexual experience evidence have been enacted to curtail reasoning influenced by what have been described as the ‘twin myths’.[41] That is,

to forbid any chain of ‘reasoning’ that asserts that, because the complainant has a certain sexual reputation or a certain disposition in sexual matters or has had certain sexual experiences, he or she is the ‘kind of person’ who would be more likely to consent to the acts the subject of the charge … [and] to forbid the chain of ‘reasoning’ that asserts that, because a complainant has a particular sexual reputation or disposition in sexual matters or has had certain sexual experiences, he or she is less worthy of belief than a complainant without those features.[42]

Scope of the restrictions

27.40 The issues in this area include whether rules prohibiting the admission of evidence of sexual experience should apply to evidence of the complainant’s:

  • sexual experience with the defendant, as well as with other persons; or

  • non-consensual, as well as consensual, sexual experiences.

27.41 In the ACT, the restrictions apply only to evidence about sexual activity with persons other than the accused.[43] In Victoria, Western Australia and Tasmania the sexual experience provisions apply (expressly or by implication) to prior sexual experience between the complainant and the defendant.[44] In the remaining jurisdictions, the sexual experience or conduct provisions do not restrict the admission of evidence about ‘recent’ sexual activity between the complainant and the defendant.[45]

27.42 The Victorian legislation is unique in expressly restricting questions and evidence about both the consensual and non-consensual sexual activities of the complainant.[46] The legislation covers non-consensual sexual activities in order to clearly restrict cross-examination of complainants about earlier incidents of child sexual abuse or sexual assault.[47] The Victorian Law Reform Commission (VLRC) noted that:

in many cases the main purpose of this type of cross-examination is to unsettle the complainant by suggesting he or she is prone to lie or is mentally unstable …

Many complainants find it difficult to understand why the defence should be able to cross-examine them about prior abuse when evidence about the accused’s prior sexual behaviour is rarely admissible and the accused is entitled to exercise the right to remain silent.[48]

27.43 In all jurisdictions, except Western Australia, the sexual experience provisions apply to evidence adduced or elicited by the prosecution or the defendant. In Western Australia the provisions apply only where the evidence is adduced or elicited by the defendant.[49]

Discretionary and mandatory approaches

27.44 Another important distinction between the different approaches to restricting the admission of evidence of the complainant’s sexual experience is whether or not admissibility is subject to leave granted by a judicial officer in an exercise of their discretion.

27.45 New South Wales is the only Australian jurisdiction in which a judicial officer does not have an overriding or residual discretion to admit sexual experience evidence. Section 293 of the Criminal Procedure Act 1986 (NSW) provides that sexual experience evidence is inadmissible unless it falls within a specific statutory exception. Evidence which falls outside of the exceptions is excluded.

27.46 In all other Australian jurisdictions, admissibility is a matter for the judicial officer’s discretion, the exercise of which is subject to legislative criteria.

Submissions and consultations

27.47 In the Consultation Paper, the Commissions proposed that federal, state and territory legislation should provide that 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.[50]

27.48 Stakeholders expressed support for the Consultation Paper proposal.[51] Some stakeholders commented that the NSW approach to the exclusion of sexual experience evidence is overly prescriptive, and that the Commissions’ proposal strikes an appropriate balance between allowing an appropriate defence and protecting the victim.[52]

Commissions’ views

27.49 The main policy objective informing restrictions on admitting sexual experience evidence concerns minimising the distress, humiliation and embarrassment experienced by complainants who testify at trial.[53] To adequately safeguard sexual assault complainants against such distress, particularly where such evidence is sought to be adduced through cross-examination, restrictions should have broad application.

27.50 Restrictions should apply to evidence of both the consensual and non-consensual sexual experience of the complainant. This should prevent evidence of prior sexual assault and incidents of sexual abuse in childhood being admitted. It will also ensure that survivors of sexual abuse are offered protection from investigation into their sexual history.[54] The provisions should also apply to the complainant’s sexual experience with the accused and with other persons, regardless of whether the experience was ‘recent’ or not.

27.51 The Commissions therefore support the enactment of legislation similar to s 342 of the Criminal Procedure Act 2009 (Vic), which states:

The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or nonconsensual) of the complainant (other than those to which the charge relates), without the leave of the court.

27.52 In the Commissions’ view, such restrictions on the admission of evidence of the complainants’ sexual experience are unlikely to cause injustice to the defendant, provided that any evidence covered by the rule may be admitted with the leave of the court.[55]

27.53 Concerns about whether the admissibility of sexual experience evidence is better dealt with by the statutory exception approach of NSW or the discretion-based approaches of other jurisdictions have been canvassed in reports by the former Model Criminal Code Officers Committee of SCAG (MCCOC)—now the Model Criminal Law Officers Committee—the New South Wales Law Reform Commission (NSWLRC) and VLRC.[56] These reports considered the relative merits of each approach and whether the statutory exception approach is too restrictive and excludes material relevant to the defendant’s defence. Each report favoured a structured discretionary model.[57]

27.54 In the Commissions’ view, the relevant issues related to each approach—for both complainants and defendants—have been sufficiently canvassed in, and appropriately evaluated by, these earlier reports. The Commissions agree that the admission of sexual experience evidence should be determined by judicial officers exercising their discretion in accordance with criteria set out in legislation. The discussion that follows focuses on identifying the optimal formulation for this approach.

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.

Granting leave to adduce sexual experience evidence

27.55 The discussion below considers the legislative criteria that apply to the judicial discretion to grant leave to admit evidence of the complainant’s sexual experience, including where the evidence is sought to be admitted because it:

  • may raise an inference as to the complainant’s general disposition;[58] or

  • relates to the complainant’s credibility as a witness.

27.56 Generally, leave must not be given under the federal legislation to admit evidence of a child witness or child complainant’s sexual experience unless the evidence is substantially relevant to the facts in issue.[59] In relation to evidence relating to the credibility of a child witness adduced in cross-examination of the child, leave must not be granted unless the evidence has substantial probative value.[60] The court may have regard to a range of factors in deciding whether the evidence has substantial probative value, but must have regard to:

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.[61]

27.57 In addition, the federal legislation provides that sexual experience is not admissible merely because of any inference it may raise about general disposition.[62]

27.58 In Victoria, the court must not grant leave unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to a list of considerations.[63] One consideration is ‘whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience’.[64]

27.59 The admission of sexual history evidence to support an inference that the complainant is ‘the type of person who is more likely to have consented to the sexual activity to which the charge relates’ is prohibited in Victoria.[65]

27.60 In addition, s 352 of the Criminal Procedure Act 2009 (Vic) provides that:

Sexual history evidence is not to be regarded—

(a) as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or

(b) as being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant.

27.61 The Queensland, ACT and Northern Territory legislation are substantially similar. The court must not give leave unless satisfied that the evidence has substantial relevance to the facts in issue or is a proper matter for cross-examination about credit.[66] Evidence relating to, or tending to establish the fact that, the complainant has engaged in sexual activity with a person or persons is not to be regarded as being a proper matter for cross-examination about credit unless the evidence would be likely materially to impair confidence in the reliability of the complainant’s evidence.[67] Sexual activity evidence that relates to or tends to establish that the complainant has engaged, or was accustomed to engaging, in sexual activity is not to be regarded as having a substantial relevance to the facts in issue because of any inference,[68] or by reason only of an inference,[69] it may raise about general disposition.

27.62 The Western Australian and Tasmanian legislation are alike in so far as they provide that the court shall not grant leave unless the evidence sought to be adduced or elicited has substantial relevance to the facts in issue and the probative value of the evidence that is sought outweighs the distress, humiliation or embarrassment which the complainant must suffer as a result of its admission.[70]

27.63 The Tasmanian legislation requires the judicial officer to take into account the age of the complainant and the number and nature of the questions likely to be put, when assessing the amount of the distress, humiliation or embarrassment to the complainant.[71] It also provides that evidence relating to sexual experience does not have the requisite relevance to a fact in issue if it is relevant only to the credibility of the complainant.[72]

27.64 In South Australia, leave to ask questions or admit evidence about the complainant’s sexual activities must not be granted unless, taking into account the ‘principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence’, the admission of the evidence is ‘required in the interests of justice’ and is either of ‘substantial probative value’ or ‘would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim’.[73] Evidence the purpose of which is only to raise inferences concerning some general disposition of the complainant, is not admissible.[74] The admissibility of sexual experience evidence which relates to the credibility of the complainant is determined by general credibility rules.[75]

Consultation Paper

27.65 In the Consultation Paper, the Commissions made a number of proposals, substantially based on the current Victorian legislation,[76] relating to the federal, state and territory legislative provisions governing the admissibility of sexual experience evidence.

27.66 The Commissions proposed that federal, state and territory legislation should provide that the court shall not grant leave for complainants of sexual assault to be cross-examined about their sexual activities unless it is satisfied that the evidence has significant probative value to a fact in issue and the probative value substantially outweighs the danger of unfair prejudice to the proper administration of justice.[77]

27.67 The Commissions also proposed that legislation should provide that the court, in deciding whether the probative value of the evidence substantially outweighs the danger of unfair prejudice to the proper administration of justice, must have regard to:

(a) the distress, humiliation, or embarrassment which the complainant may suffer 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 in the jury discriminatory belief or bias, prejudice, sympathy or hostility;

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

(d) the right of the accused to make a full answer and defence; and

(e) any other factor which the court considers relevant.[78]

27.68 The Commissions asked whether federal, state and territory legislation should provide that sexual experience evidence is not:

(a) admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates; and/or

(b) to be regarded as having substantial probative value by virtue of any inference it may raise as to general disposition.[79]

27.69 Finally, the Commissions proposed that federal, state and territory legislation should provide that sexual experience evidence is not to be regarded as being a proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant.[80]

Submissions and consultations

27.70 Stakeholders who addressed the issue agreed generally with the proposals and answered the question about legislative restrictions on the admission of evidence of ‘general disposition’ in the affirmative.[81]

27.71 The Public Defenders Office NSW, for example, supported the introduction of a structured discretionary model for the admission of sexual experience evidence.[82] It considered that the proposal that ‘the court shall not grant leave unless … the evidence has significant probative value to a fact in issue’ adequately deals with the focus of relevance, but that the phrase ‘to a fact in issue’ should be dropped from the proposal because it may cause technical problems. The Public Defenders Office NSW also considered that the primary restriction on the admission of sexual experience evidence[83] should be redrafted to apply also to evidence that may raise an inference about the complainant’s ‘general disposition’ or the complainant’s credibility as a witness.

27.72 The Law Council of Australia (Law Council) opposed ‘any rigid exclusionary rule that prohibits reasoning in respect of sexual history evidence’ on the basis that, in some circumstances, such evidence is ‘highly probative and it would be unjust for the defence to be prevented from putting such evidence before the tribunal of fact’. The Law Council considered that restricting cross-examination about sexual activities to situations where the evidence’s probative value substantially outweighs the danger of unfair prejudice provides the appropriate test and ‘if that test is satisfied, it is impossible to see any justification for, nonetheless, excluding the evidence’.[84]

27.73 National Legal Aid observed that ongoing education and professional development of the judiciary and legal practitioners would help to ensure that legislation effectively curtails the distress, humiliation and embarrassment of the complainant due to the admission of irrelevant sexual experience evidence.[85]

27.74 The Magistrates’ Court and Children’s Court of Victoria commented on the similarities between the proposals and recently enacted Victorian legislation, and noted that the effects of the Victorian reforms are still to be fully assessed.[86]

Commissions’ views

27.75 The Commissions have sought to identify the best formulation of the court’s discretion to admit evidence of the complainant’s sexual experience. Such a formulation should attempt to adequately safeguard complainants against irrelevant and harassing cross-examination, but also uphold the defendant’s right to a fair trial.

27.76 The Consultation Paper proposal on restricting the circumstances in which evidence of a complainant’s sexual experience may be adduced[87] was based upon s 349 of the Criminal Procedure Act 2009 (Vic). The Commissions’ proposals are also substantially consistent with relevant recommendations of the VLRC’s report, Sexual Offences,[88] and the NSWLRC’s report, Reform of Section 409B.[89]

27.77 In the Commissions’ view, all jurisdictions should enact legislative provisions substantially similar to s 349 of the Criminal Procedure Act 2009 (Vic), and this is reflected in the recommendations set out below—with some changes.

27.78 First, the recommendation, if implemented, would require the evidence to have ‘significant probative value’, rather than ‘substantial relevance to a fact in issue’. The latter formulation appears in the legislation of a number of jurisdictions.[90] The term ‘significant probative value’ is more consistent with the overall approach of the uniform Evidence Acts, under which relevance is a threshold test of admissibility[91] and there is no concept of ‘substantial’ relevance. The use of ‘significant probative value’ as a test is also consistent with the formulation of other admissibility rules, including those applying to tendency and coincidence evidence,[92] and was recommended by the NSWLRC.[93]

27.79 Secondly, the list of factors that the court must consider to balance the considerations of fairness to the defendant with the need to protect the complainant from distress, humiliation and embarrassment resulting from an invasion of her sexual privacy, should be non-exhaustive. In the Commissions’ view, the listed matters address the main concerns about admitting sexual experience evidence. Others may arise in the particular circumstances of a case, however, and a judicial officer should not be precluded from taking such a relevant matter into account.[94]

27.80 Finally, the words ‘in the jury’ have been deleted from the reference to evidence that might ‘arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility’. This is consistent with similar provisions in the uniform Evidence Acts, which do not make any distinction between jury and non-jury trials.[95]

27.81 The recommendation differs from the Consultation Paper proposal in that it follows more closely the Victorian (and South Australian) legislation by requiring the admission of sexual experience evidence to be in ‘the interests of justice’ (having regard to the listed factors). The phrase ‘interests of justice’ is used in a number of evidentiary and procedural provisions, including in the uniform Evidence Acts.[96]

27.82 The Commissions also recommend that evidence as to the sexual activities of the complainant, other than that to which the charge relates, should not be admissible to show, for example, that the complainant is more likely to have consented to the sexual activity to which the charge relates, because of any inference it may raise about ‘general disposition’. A provision of this nature has been enacted in all Australian jurisdictions except NSW and Tasmania.[97] Evidence of prior sexual activity is not normally relevant to the issue of consent, and tendency (or propensity) reasoning in this regard suffers from dangers of reliance on resilient myths and misconceptions about sexual assault complainants.

27.83 In the Commissions’ view, there is no need to make special provision concerning the admissibility of sexual experience evidence for credibility purposes.[98] Section 103 of the uniform Evidence Acts already provides that evidence may not be adduced in cross-examination of a witness unless ‘the evidence could substantially affect the assessment of the credibility of a witness’.[99] Sexual experience evidence is unlikely to meet this standard.[100]

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.

Procedural issues

27.84 In all jurisdictions, a determination about the admissibility of evidence of the complainant’s sexual reputation or sexual experience is decided by the court in the absence of the jury.[101] In Victoria, Queensland, the ACT and the Northern Territory, an application for leave may be heard in the absence of the complainant at the defendant’s request.[102] This approach allows for the full examination of the nature and purpose of the proposed evidence by counsel for both sides without causing embarrassment to the complainant[103] and may afford a practical opportunity to limit and frame questions.

27.85 In the Commonwealth, Victorian and ACT jurisdictions, an application for leave is to be made in writing.[104] The Victorian provisions require service of the application on the Office of Public Prosecutions (OPP) or the informant at least seven days before summary hearings, committal hearings and sentencing hearings, and 14 days before trials and special hearings.[105] The written application for leave must set out the initial questions sought to be asked, the scope of the questioning and how the evidence sought to be elicited has substantial relevance to the facts in issue or why it is a proper matter for cross-examination as to credit.[106] These procedural controls were imposed after studies showed that the legislation had a limited effect on the admission of prior sexual history evidence.[107]

27.86 The Victorian OPP pursued a policy of writing to the defence in sexual offence matters and informing them of the procedural requirements imposed under then s 37A of the Evidence Act 1958 (Vic).[108] As at December 2003, that practice increased the number of written applications for leave, but written applications were still only being made in approximately half of cases where they were required.[109] The VLRC recommended the OPP continue that practice.[110]

27.87 There is variation across the jurisdictions as to whether the court is required to record in writing the reasons for granting leave.[111]

Consultation Paper

27.88 In the Consultation Paper, the Commissions made a number of proposals relating to the procedure by which an application for leave to admit sexual experience evidence should be made, determined and implemented.

27.89 The Commissions proposed that federal, state and territory legislation should require any application for leave to admit sexual history evidence to be:

(a) made in writing; and

(b) filed with the relevant court and served on the informant or the Director of Public Prosecutions within a prescribed minimum number of days,

and prescribe:

(a) the required contents of such an application;

(b) the circumstances in which leave may be granted out of time;

(c) the circumstances in which the requirement that an application for leave be made in writing may be waived; and

(d) that the application is to be determined in the absence of the jury, and if the accused requests, in the absence of the complainant.[112]

27.90 The Commissions also proposed that federal, state and territory legislation should require a court to give reasons for its decision whether or not to grant leave, and if leave is granted, to state the nature of the admissible evidence.[113]

27.91 Finally, the Commissions proposed that Commonwealth, state and territory Directors of Public Prosecutions (DPPs) should introduce and implement a policy of writing to the defence in sexual assault matters and informing them of the procedural application requirements imposed under the relevant legislation relating to admitting sexual experience evidence.[114]

Submissions and consultations

27.92 Some stakeholders, including victims of family violence, supported the Consultation Paper proposals.[115]

27.93 The Public Defenders Office NSW opposed any requirement that written notice be filed in advance and considered that a requirement for the full articulation of reasons for allowing questioning, and for the scope of the questioning to be recorded in writing, would be adequate.[116] Other stakeholders noted that it is common for both prosecutors and defence counsel to be briefed on short notice in sexual assault proceedings. Accordingly, there needs to be a degree of flexibility in the process, including to allow applications to be made on short notice.[117]

27.94 The Commonwealth Director of Public Prosecutions (CDPP) opposed the proposal that DPPs should inform the defence of the procedural application requirements, on the basis that this would require the CDPP to provide legal advice to the defence.[118] The CDPP considered that the intent of the proposal could be met instead by professional bodies, such as the law societies, creating fact sheets for lawyers on the procedural requirements for admitting and adducing sexual experience evidence in a given jurisdiction.

27.95 National Legal Aid and the Magistrates’ Court and Children’s Court of Victoria submitted that it is common for impermissible questions eliciting sexual experience evidence to be asked, without reference to the legislation or legislative procedures.[119] National Legal Aid supported monitoring the provisions in practice. The Magistrates’ Court and Children’s Court of Victoria observed that active case management of matters in a specialised sexual assault list improves the ability of the Court to control impermissible questioning and helps ensure that matters are addressed in advance of the hearing.[120]

Commissions’ views

27.96 Formalising the procedure by which leave to admit evidence of the complainant’s sexual experience is sought and granted will encourage judicial officers and legal practitioners to turn their minds to the admissibility issues before they arise in the course of proceedings and to help ensure compliance.

27.97 Legislation should require that an application for leave be made in writing and determined in the absence of the jury and, if the defendant so requests, in the absence of the complainant. The court should be required to give reasons for its decision whether or not to grant leave, and, if leave is granted, to state the nature of the admissible evidence.[121] The requirement that the court ‘state the nature of the admissible evidence’ is necessary to prevent questioning of the complainant beyond the scope of the evidence which has been ruled admissible.[122]

27.98 These legislative measures should be supported by judicial and practitioner education and training about the procedural requirements for adducing sexual history evidence through cross-examination 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.

[7] The relationship between these provisions and the uniform Evidence Acts has previously been considered by the Commissions: Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [20.11]–[20.40].

[8]Criminal Procedure Act 2009 (Vic) s 339(1); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4; Evidence Act 1906 (WA) s 36A; Evidence Act 1929 (SA) s 34L(1); Evidence Act 2001 (Tas) s 194M(1); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 49; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4.

[9]Crimes Act 1914 (Cth) ss 15Y, 15YB, 15YC.

[10] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Question 18–1.

[11] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010.

[12] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[13] Uniform Evidence Acts, s 103.

[14]Criminal Procedure Act 2009 (Vic) s 341. Section 4(1)(b) of the Sexual Offences (Evidence and Procedure) Act 1983 (NT) uses a similar phrase: ‘the complainant’s general reputation as to chastity’.

[15]Criminal Procedure Act 1986 (NSW) s 293(2); Criminal Law (Sexual Offences) Act 1978 (Qld)s 4(1); Evidence Act 1906 (WA) s 36B; Evidence Act 1929 (SA) s 34L(1)(a); Evidence Act 2001 (Tas) s 194M(1)(a); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 50.

[16]Crimes Act 1914 (Cth) s 15YB.

[17]Evidence Act 1906 (WA) s 36BA; Evidence Act 2001 (Tas) s 194M(6)(b).

[18]Crimes Act 1914 (Cth) s 15YC; Criminal Procedure Act 2009 (Vic) s 352(a); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(4); Evidence Act 1929 (SA) s 34L(3); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 53(2); Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(2)(a).

[19]Criminal Procedure Act 2009 (Vic) ss 340, 343.

[20] Ibid s 293(4); Evidence Act 2001 (Tas) s 194M(1)(b).

[21]Evidence Act 1906 (WA) s 36BC.

[22]Crimes Act 1914 (Cth) s 15YC.

[23]Criminal Procedure Act 1986 (NSW) s 293(3);Criminal Law (Sexual Offences) Act 1978 (Qld)s 4(2).

[24]Criminal Procedure Act 2009 (Vic) s 342; Evidence Act 1929 (SA) s 34L(1)(b); Evidence (Miscellaneous Provisions) Act 1991 (ACT)s 51; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(1)(b).

[25] The leading case of Bull v The Queen (2000) 201 CLR 443, [54]–[64] discusses the distinctions between evidence relating to the ‘sexual reputation’, ‘disposition of the complainant in sexual matters’, ‘sexual experience’ and ‘sexual experiences’.

[26] For further discussion about the meaning and boundaries of the terms, see Consultation Paper, [18.16]­–[18.20].

[27] For example, an empirical study undertaken in relation to sexual assault hearings in the District Court of New South Wales over a one year period between 1 May 1994 and 30 April 1995 concluded that sexual reputation evidence cannot be clearly distinguished from sexual experience evidence: J Bargen, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault, Gender Bias and the Law Project (1996), 11. In the context of the Western Australian legislation, ‘a difficulty arises because evidence of a complainant’s sexual experiences, which is made admissible by s 36BC, will often, but not necessarily, also be evidence relating to a person’s sexual disposition’ which shall not be adduced or elicited by or on behalf of an accused: Bull v The Queen (2000) 201 CLR 443, [61].

[28] Consultation Paper, Question 18–2.

[29] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010.

[30] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Central Australian Aboriginal Legal Aid Service and Northern Territory Legal Aid Commission, Consultation, Alice Springs, 2010.

[31] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[32]Criminal Procedure Act 1986 (NSW) s 293(2); Criminal Procedure Act 2009 (Vic)s 341; Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(1); Evidence Act 1906 (WA) s 36B; Evidence Act 1929 (SA) s 34L(1)(a); Evidence Act 2001 (Tas) s 194M(1)(a); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 50.

[33] Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 219.

[34]Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4.

[35]Crimes Act 1914 (Cth) s 15YB.

[36] Consultation Paper, Proposal 18–1.

[37] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 69, 2 June 2010; Commissioner for Children (Tas), Submission FV 62, 1 June 2010.

[38] National Legal Aid, Submission FV 232, 15 July 2010; Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010.

[39] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[40] Ibid; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[41] S Chapman, ‘Section 276 of the Criminal Code and the Admissibility of “Sexual Activity” Evidence’ (1999) 25 Queen’s Law Journal 121.

[42]Bull v The Queen (2000) 201 CLR 443, [53].

[43]Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 51(2).

[44]Criminal Procedure Act 2009 (Vic) s 342; Evidence Act 1906 (WA) s 36BC(1); Evidence Act 2001 (Tas) s 194M(1)(b).

[45]Criminal Procedure Act 1986 (NSW) s 293(4); Criminal Procedure Act 1986 (NSW); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(4) and Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(3) (acts which are ‘substantially contemporaneous’); Evidence Act 1929 (SA) s 34L(1)(b) (‘recent sexual activities with the accused’).

[46]Criminal Procedure Act 2009 (Vic) s 342. See also, Victorian Law Reform Commission, Sexual Offences: Final Report (2004), Rec 68.

[47] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.44].

[48] Ibid, 201–202.

[49]Evidence Act 1906 (WA) ss 36A–36BC.

[50] Consultation Paper, Proposal 18–2.

[51] Public Defenders Office NSW, Submission FV 221, 2 July 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Confidential, Submission FV 130, 21 June 2010; Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 69, 2 June 2010.

[52] Barrister, Consultation, Sydney, 10 June 2010; NSW Legal Assistance Forum, Consultation, Sydney, 10 May 2010.

[53] The experience of testifying at trial is sometimes said to cause complainants almost as much trauma as the actual assault, and the anticipated admission of sexual history evidence may contribute to the reluctance of many women to report sexual assaults to the police. See, eg, S Bronitt and T Henning, ‘Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence’ in P Easteal (ed) Balancing the Scales: Rape, Law Reform and Australian Culture (1998) 76, 81; J Bargen and E Fishwick, Sexual Assault Law Reform: A National Perspective (1995), prepared for the Office of the Status of Women, 75.

[54] New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW), Report 87 (1998), [6.122].

[55] The circumstances in which the leave of the court may be granted are discussed below.

[56] Victorian Law Reform Commission, Sexual Offences: Final Report (2004); Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999); New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW), Report 87 (1998).

[57] Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), 243–45; New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW), Report 87 (1998), [6.100]–[6.113]; Victorian Law Reform Commission, Sexual Offences: Final Report (2004), Recs 69–71.

[58] Including an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates.

[59]Crimes Act 1914 (Cth) s 15YC(2)(a).

[60] Ibid s 15YC(2)(b).

[61] Ibid s 15YC(4).

[62] Ibid s 15YC(3).

[63]Criminal Procedure Act 2009 (Vic) s 349.

[64] Ibid s 349(a).

[65] Ibid s 343.

[66]Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(3); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 53(1); Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(1), (2)(b).

[67]Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(5); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 53(3); Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(2)(b).

[68]Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(4); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 53(2).

[69]Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(2)(a).

[70]Evidence Act 1906 (WA) s 36BC(2); Evidence Act 2001 (Tas) s 194M(2). The Western Australian legislation also prohibits the eliciting or admission of evidence relating to the disposition of the complainant in sexual matters: Evidence Act 1906 (WA) s 36BA.

[71]Evidence Act 2001 (Tas) s 194M(4).

[72] Ibid s 194M(3).

[73]Evidence Act 1929 (SA) s 34L(2).

[74] Ibid s 34L(3).

[75] Ibid s 23.

[76]Criminal Procedure Act 2009 (Vic) ss 343, 349, 352.

[77] Consultation Paper, Proposal 18–3.

[78] Ibid, Proposal 18–4.

[79] Ibid, Question 18–4.

[80] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Proposal 18–5.

[81] National Legal Aid, Submission FV 232, 15 July 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Confidential, Submission FV 130, 21 June 2010; Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010.

[82] Public Defenders Office NSW, Submission FV 221, 2 July 2010.

[83] That is, as set out in Consultation Paper, Proposal 18­–3.

[84] Law Council of Australia, Submission FV 180, 25 June 2010. The Queensland Law Society supported the Law Council view: Queensland Law Society, Submission FV 178, 25 June 2010.

[85] National Legal Aid, Submission FV 232, 15 July 2010.

[86] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[87] Consultation Paper, Proposal 18–3.

[88] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), Recs 69–73.

[89] New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW), Report 87 (1998), Rec 2.

[90]Crimes Act 1914 (Cth) s 15YC(2)(a); Criminal Procedure Act 2009 (Vic) s 349; Criminal Law (Sexual Offences) Act 1978 (Qld) s 4; Evidence Act 1906 (WA) s 36BC; Evidence Act 2001 (Tas) s 194M; Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 53; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(1).

[91] That is, under uniform Evidence Acts ss 55–56.

[92] See, eg, uniform Evidence Acts ss 97–98. In the context of those provisions, ‘significant probative value’ has been interpreted to require that evidence be ‘important’ or ‘of consequence’ to the issues. It has been held to mean something more than mere relevance but something less than a ‘substantial’ degree of relevance. For further discussion see: Australian Law Reform Commission, Evidence, (Interim) Report 26, vol 1, [806]; New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW), Report 87 (1998), [6.117]; S Odgers, Uniform Evidence Law (8th ed, 2009), [1.3.6680].

[93] New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW), Report 87 (1998), [6.117], Rec 2.

[94] The VLRC considered that a non-exhaustive list ‘would leave open the possibility that sexual activity evidence could be introduced inappropriately’: Victorian Law Reform Commission, Sexual Offences: Interim Report (2003), [5.58]. In assessing the ‘interests of justice’ of a particular case, judicial officers should be informed not only by the circumstances of the case, but also by the guiding principles and objects clauses of the legislation: see Ch 25.

[95] See, eg, Uniform Evidence Acts, ss 135–137. See also Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [2.57]–[2.70].

[96] See, eg, Commonwealth Evidence Act 1995 (Cth) s 128(4) (‘Privilege in respect of self-incrimination in other proceedings’); Criminal Procedure Act 1986 (NSW); s 306Y (‘Evidence not to be given in the form of recording if contrary to the interests of justice’); Criminal Procedure Act 1986 (NSW) s 29(3) (‘When more than one offence may be heard at the same time’).

[97] The Commissions note that the circumstances in which sexual experience evidence may be admitted pursuant to s 293(4) of the Criminal Procedure Act 1986 (NSW) are so narrowly cast that evidence which only raises an inference as to the complainant’s general disposition in sexual matters is likely to be excluded in practice: Criminal Procedure Act 1986 (NSW) s 293(4).

[98] As in Victoria under Criminal Procedure Act 2009 (Vic) s 352.

[99] Uniform Evidence Acts, s 103(1).

[100] S Odgers, Uniform Evidence Law (8th ed, 2009), [1.3.7760]. This constraint does not apply in common law evidence jurisdictions where, as a general rule, questions designed to attack the witness’ credit are permissible in cross-examination of another party’s witness: See Thomson Reuters, The Laws of Australia, vol 16 Evidence, 16.4.

[101]Crimes Act 1914 (Cth) s 15YD(1)(b); Criminal Procedure Act 1986 (NSW) s 293(7); Criminal Procedure Act 2009 (Vic) s 348; Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(6); Evidence Act 1906 (WA) s 36BC(1); Evidence Act 1929 (SA) s 34L(4); Evidence Act 2001 (Tas) s 194M(1)(b); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 52(b); Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(4).

[102]Criminal Procedure Act 2009 (Vic) s 348; Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(6); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 52(c); Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(4).

[103] J Bargen and E Fishwick, Sexual Assault Law Reform: A National Perspective (1995), prepared for the Office of the Status of Women, 83.

[104]Crimes Act 1914 (Cth) s 15YD(1)(b); Criminal Procedure Act 2009 (Vic) s 344; Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 52.

[105]Criminal Procedure Act 2009 (Vic) s 344.

[106] Ibid s 345.

[107] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.41].

[108] Replaced by Criminal Procedure Act 2009 (Vic) s 348.

[109] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [4.52].

[110] Ibid, Rec 74.

[111] A court may be required to record in writing the reasons for granting leave, eg: Crimes Act 1914 (Cth) s 15YD(2); Criminal Procedure Act 1986 (NSW) s 293(8); Criminal Procedure Act 2009 (Vic) s 351; Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 52; or give reasons only, eg: Evidence Act 2001 (Tas) s 194M(5); or may be free of any legislative requirement.

[112] Consultation Paper, Proposal 18–6.

[113] Ibid, Proposal 18–7.

[114] Ibid, Proposal 18–8.

[115] J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Confidential, Submission FV 130, 21 June 2010.

[116] Public Defenders Office NSW, Submission FV 221, 2 July 2010.

[117] National Legal Aid, Submission FV 232, 15 July 2010; Barrister, Consultation, Sydney, 10 June 2010.

[118] Other stakeholders opposed this aspect of the proposal on similar grounds: National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010.

[119] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010.

[120] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[121] A similar recommendation was made in NSWLRC 87: New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW), Report 87 (1998), [6.140], Rec 2.

[122] Ibid.