Issues often arise where the defence is seeking to adduce evidence to show that sexual activity was consensual and, in doing so, to undermine the credibility of the complainant. This can sometimes result in unjustifiable trauma to complainants. In other contexts, the policy challenge is posed by evidence of prior misconduct by the defendant, which is highly prejudicial and may carry a risk of wrongful conviction. At the same time, it can be highly important and probative evidence.
Sexual reputation and experience
A number of commentators assert that the experience of testifying at trial may 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 offences to the police. Australian jurisdictions vary in relation to the basis on which sexual history evidence may be admitted and the procedure by which questions of admissibility are determined by the court.
State and territory exclusionary rules generally limit the cross-examination of complainants and the admission of evidence of a complainant’s sexual reputation and prior sexual history in proceedings in which a person stands charged with a sexual offence. Commonwealth provisions apply to child witnesses in sexual offence proceedings.
The exclusionary rules do not, however, cover evidence about the sexual reputation or prior sexual history 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 the complainants in sexual assault proceedings; and
- in the state and territory jurisdictions, child witnesses who are not complainants in a sexual assault proceeding.
Question 18–1 Should Commonwealth, state and territory evidence law and procedural rules limit cross-examination and the admission of evidence about the sexual reputation and prior sexual history of all witnesses in sexual assault proceedings?
Australian legislation regulates the admission and use of evidence in relation to prior sexual history using terms such as sexual reputation, sexual history, disposition of the complainant in sexual matters, sexual experience and sexual activities. Statutory and judicial guidance about the meaning and boundaries of each of these terms and the kinds of evidence covered is limited.
In the Commissions’ view, legislative reform may be required to better enable the judiciary and practitioners to distinguish between kinds of prior sexual history evidence. It is essential that prior sexual history evidence be correctly identified as being either of sexual reputation, sexual disposition or sexual experience because different tests of admissibility apply in respect of each.
Question 18–2 How best can judicial officers and legal practitioners be assisted to develop a consistent approach to the classification of evidence as being either of ‘sexual reputation’, ‘sexual disposition’ and ‘sexual experience’ (or ‘sexual activities’)?
Evidence relating to the complainant’s sexual reputation is inadmissible in all Australian states and the ACT. 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. In Commonwealth legislation, evidence of a child witness or child complainant’s sexual reputation is admissible in a proceeding if the court is satisfied that the evidence is substantially relevant to the facts in issue.
The policy basis for excluding evidence of sexual reputation is widely accepted. However, the Commonwealth and Northern Territory tests of admissibility do not give the policy full effect. The Commonwealth, and all states and territories should, in the Commissions’ view, ensure legislation provides that the court must not allow any questions as to, or admit any evidence of, the sexual reputation of the complainant.
Proposal 18–1 Commonwealth, state and territory legislation should provide that a court must not allow any questions as to, or admit any evidence of, the sexual reputation of the complainant.
Australian jurisdictions have adopted different approaches in relation to the admission of evidence of the complainant’s sexual activity or experience. The most important distinction is between the mandatory model in NSW and the discretionary models of the other jurisdictions. In NSW, such evidence is inadmissible unless it falls within specific statutory exceptions. In the ‘discretionary’ jurisdictions, admissibility is a matter for the judicial officer’s discretion, the exercise of which is subject to legislative conditions.
In the Commissions’ view, a discretionary model ought to apply to determine the admissibility of prior sexual activities evidence. The Commissions would like to know whether evidence of a complainant’s prior sexual history is admitted more or less often in proceedings where the charge arises from a family violence context, as compared to other proceedings, and why this might be so. For example, defendants in family violence contexts may have more knowledge about the previous sexual activities of the complainant. This may mean that the admission of evidence of previous sexual activity has a disproportionate impact on those victims of sexual assault.
Question 18–3 Under discretionary models, is evidence of a complainant’s prior sexual history admitted more or less often in proceedings concerning offences perpetrated in a family violence context, as compared to other sexual assault proceedings?
Scope of exclusionary rules
Rules relating to questioning and admitting evidence of the complainant’s sexual activities vary and may apply to evidence of the complainant’s:
- prior sexual activities with the accused and with other persons; and
- consensual and non-consensual sexual activities.
In the ACT, the restriction applies only to evidence about sexual activity with persons other than the accused. In Victoria, Western Australia and Tasmania the sexual experience provisions apply (expressly or by implication) to prior sexual experience between the complainant and the accused. In the remaining jurisdictions, the sexual experience or conduct provisions do not apply to ‘recent’ sexual activity between the complainant and the accused.
In the Commissions’ view, an exclusionary rule of broad application to evidence of a complainant’s sexual activities is unlikely to cause injustice to the accused. Under the discretionary models, any evidence covered by the exclusionary rule may be admitted, and the complainant may be cross-examined as to such evidence, with the leave of the court.
For these reasons, the Commissions support the enactment of legislation similar to s 342 of the Criminal Procedure Act 2009 (Vic).
Proposal 18–2 Commonwealth, state and territory legislation should provide that complainants of sexual assault 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.
Test for admission
In all states and territories, other than NSW, sexual experience evidence is inadmissible, subject to a judicial officer’s discretion to grant leave. Generally the court must be satisfied that the evidence is of ‘substantial relevance to a fact in issue’ before leave may be granted to cross-examine or admit evidence as to the complainant’s prior sexual history.
The primary focus of the Commissions is to identify a model governing the admission of sexual history evidence which adequately safeguards complainants against irrelevant and harassing cross-examination, while still allowing admission of evidence which is relevant to the case of the defence. In the Commissions’ view, such evidence should only be admissible where, as well as satisfying a general relevance test, the evidence has significant probative value to a fact in issue. A significant probative value test is preferred because it is more consistent with the approach in the uniform Evidence Acts in relation to exclusionary rules, including in relation to tendency and coincidence evidence. The probative value of the evidence should be weighed against the interests of justice to allow the cross-examination or to admit the evidence. Such an approach appropriately takes account of the needs and rights of both complainants and accused persons.
A non-exhaustive list of factors should be provided, which the court must consider as part of the balancing exercise of weighing the probative value of the evidence against the danger of prejudice to the proper administration of justice. The proposed factors reflect s 349 of the Criminal Procedure Act 2009 (Vic).
Proposal 18–3 Commonwealth, 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 of the evidence substantially outweighs the danger of unfair prejudice to the proper administration of justice, taking into account the matters in Proposal 18–4 below.
Proposal 18–4 Commonwealth, state and territory 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:
- 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;
- the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility;
- the need to respect the complainant’s personal dignity and privacy;
- the right of the accused to make a full answer and defence; and
- any other factor which the court considers relevant.
Limitations on admissibility for specific purposes
Proposals 18–3 and 18–4 do not address the admission of evidence about a complainant’s sexual experience where it:
- may raise 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;
- may raise an inference as to the complainant’s general disposition; or
- relates to the complainant’s credibility as a witness.
Victorian legislation explicitly addresses these questions of admissibility in respect of ‘sexual history evidence’. For example, Sections 343 and 352 of the Criminal Procedure act 2009 prohibit 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. The Commissions are interested to hear views about whether the admission of sexual history evidence or sexual experience evidence ought to be limited according to the Victorian model.
In the Commissions’ view, the admission of evidence about a complainant’s sexual activity on the grounds that the evidence has significant probative value only in relation to the credibility of the complainant should not be permitted. However, where sexual history evidence is genuinely relevant to credibility, and credibility is a fact in issue, sexual history evidence may be a proper matter for cross-examination as to credit.
Question 18–4 Should Commonwealth, state and territory legislative provide that ‘sexual history evidence’ or sexual experience evidence is not:
- 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
- to be regarded as having substantial probative value by virtue of any inference it may raise as to general disposition.
Proposal 18–5 Commonwealth, state and territory legislation should provide that ‘sexual history evidence’ or sexual experience evidence is not to be regarded 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.
Formalising the procedure by which an application to cross-examine and adduce evidence of a complainant’s sexual history is made will encourage judicial officers and legal practitioners to turn their minds to the admissibility issues at an early stage of the proceedings. By requiring an application for leave in writing, and that the application be given to the opposing party before the hearing of the application, the provision proposed below would require counsel to address whether the evidence is probative of the facts in issue. It also gives the opposing party notice of the application and allows time to prepare any counter-arguments.
In the Commissions’ view, the court should be required 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. The requirement that the court ‘state the nature of the evidence which may be elicited by that questioning’ is necessary to prevent questioning of the complainant beyond the scope of the evidence which has been ruled admissible.
Proposal 18–6 Commonwealth, state and territory legislation should require an application for leave to admit or adduce sexual history evidence to be:
- made in writing; and
- filed with the relevant court and served on the informant or the Director of Public Prosecutions within a prescribed minimum number of days,
- the required contents of such an application;
- the circumstances in which leave may be granted out of time;
- the circumstances in which the requirement that an application for leave be made in writing may be waived; and
- that the application is to be determined in the absence of the jury, and if the accused requests, in the absence of the complainant.
Proposal 18–7 Commonwealth, 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 question the complainant, to state the nature of the evidence which may be elicited by that questioning.
Proposal 18–8 Commonwealth, state and territory Directors of Public Prosecution 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 in relation to admitting and adducing sexual experience evidence.
Sexual assault communications privilege
Sexual assault communications are communications made in the course of a confidential relationship between the victim of a sexual assault and a counsellor. The defence may seek access to this material to assist during their cross-examination of the complainant and other witnesses. From the mid-1990s, ongoing reform of sexual assault law and procedure has included the enactment of legislation to limit the disclosure and use of these communications. Every state and territory—except Queensland—now has specific legislation protecting counselling communications.
Implementing some or all of the following measures may assist sexual assault victims to invoke a sexual assault communications privilege:
- requiring the party seeking production to provide notice in writing to each other party and if the sexual assault complainant is not a party—the sexual assault complainant;
- requiring that any such written notice issued be accompanied by a pro forma fact sheet on the privilege, providing contact details for assistance;
- educating defence counsel about their obligation to identify records potentially giving rise to the privilege to encourage compliance with any such written notice provisions;
- providing counsellors with education about the sexual assault communications privilege and next steps if they are served with a subpoena;
- requiring that subpoenas be issued with a pro forma fact sheet on the privilege, providing contact details for legal assistance;
- improving access to free legal assistance about the sexual assault communications privilege;
- requiring that the court issuing a subpoena provide a copy of all subpoenas to the prosecution;
- educating prosecutors: to identify possible claims of the sexual assault communications privilege arising out of subpoenas; to inform the court of any such possible claims of the sexual assault communications privilege during the pre-trial processes; where subpoenas are served at short notice during a trial, to query short service applications; to inform the court where documents containing protected confidences are improperly adduced, admitted or used in the course of proceedings;
- educating defence counsel generally about the sexual assault communications privilege with a view to limiting the use of improperly obtained protected confidences;
- educating judicial officers about the impact of sexual assault on complainants, the role of counselling in alleviating victims’ trauma and the desirability of encouraging people who have been sexually assaulted to seek therapy; and
- educating judicial officers about complainants’ difficulties—legal and personal—where an application for leave to produce or adduce a sexual assault communication is considered twice—by a judicial officer at an interlocutory hearing and again by the trial judge.
The Commissions are interested in comments on whether any such measures should be implemented to assist complainants in sexual assault proceedings to invoke a sexual assault communications privilege.
Question 18–5 In sexual assault proceedings, the sexual assault communications privilege must generally be invoked by the complainant, who is legally unrepresented. Assuming complainants continue to be unrepresented in such sexual assault proceedings, what procedures and services would best assist them to invoke the privilege?
Expert opinion evidence and children
Section 79(2) of the uniform Evidence Acts provides that for the purposes of the expert opinion exception to the opinion rule, ‘specialised knowledge’ includes ‘specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse)’. Section 108C of the uniform Evidence Acts provides that the credibility rule does not apply to evidence given by a person concerning the credibility of another witness if the person has specialised knowledge based on the person’s training, study or experience (including specialised knowledge of child development and child behaviour) and the evidence ‘could substantially affect the assessment of the credibility of a witness’.
There is recognition that, in at least some cases, expert evidence on the development and behaviour of children generally (and those who have been victims of sexual offences in particular) and the implications for the credibility of children as witnesses may be desirable.
On this basis, the approach to the admissibility of such evidence taken under the uniform Evidence Acts is an improvement on the position in jurisdictions that have not joined the scheme. For this reason, the Commissions propose below that 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 given concerning the credibility of children.
The Commissions are also interested in hearing views on the desirability or otherwise of mandatory jury directions concerning children’s abilities as witnesses and children’s responses to sexual abuse.
Proposal 18–9 State and territory evidence legislation should provide that
- 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
- the credibility rule does not apply to such evidence given concerning the credibility of children.
Question 18–6 Should Commonwealth, state and territory legislation provide for mandatory jury directions, containing prescribed information about children’s abilities as witnesses or children’s responses to sexual abuse?
Tendency and coincidence evidence
The following section considers the admissibility of ‘tendency’ and ‘coincidence’ evidence, as defined under the uniform Evidence Acts, and ‘propensity’ or ‘similar fact’ evidence at common law. These forms of evidence may include, for example, evidence of prior convictions for sexual offences or prior illegal sexual conduct—often referred to as ‘uncharged acts’.
Three aspects of the law of evidence concerning the admissibility of tendency and coincidence evidence are problematic in sexual assault cases:
- the ‘striking similarities’ test;
- the ‘no rational view of the evidence’ test; and
- excluding ‘a reasonable possibility of concoction’.
The ‘striking similarities’ test
At common law, the cross-admissibility of the evidence of two or more complainants is dependent on the evidence revealing ‘striking similarities’. A lower threshold for determining probative value may be ‘appropriate in child sexual assault cases where the identity of the offender is not in issue, in order to capture the range of sexual and grooming behaviours of serial offenders’. Since most cases of sexual assault involve defendants known to the complainant, rather than strangers, the identity of the accused will not usually be a fact in issue.
Although the uniform Evidence Acts create a different regime for admitting tendency and coincidence evidence, it can be argued that the striking similarities test is still used in assessing the probative value of the evidence of two or more complainants about a defendant’s sexual conduct.
The ‘no rational view of the evidence’ test
At common law, even if the evidence of two or more witnesses has ‘striking similarities’, it can still be excluded because of its prejudicial effect. In order to prevent the admission of prejudicial propensity and similar fact evidence, the common law developed the ‘no rational view of the evidence’ test, confirmed by a majority of the High Court in Pfennig v The Queen, which held that the probative force of similar fact evidence will outweigh its prejudicial effect only if there is no rational view of the evidence that is consistent with the innocence of the accused.
Under s 101(2) of the uniform Evidence Acts, the probative value of tendency or coincidence evidence must substantially outweigh the prejudicial effect.
A reasonable possibility of concoction
Where two or more children give evidence about a defendant’s sexual behaviour with them, the reliability of their evidence is based on whether they had the opportunity to concoct their allegations. While the targeting and grooming strategies of serial sex offenders are well documented, the rules governing the admissibility of tendency and propensity evidence are based on the belief that if two or more complainants know each other then the possibility of concoction must be ruled out for one complainant’s evidence to be admissible in the case of another. The mere possibility of concoction can mean that evidence is excluded in common law jurisdictions.
Dr Anne Cossins has argued that, in sexual assault cases, s 101(2) of the uniform Evidence Acts is only likely to be satisfied ‘if a reasonable possibility of concoction can be eliminated and if there are sufficient similarities (striking or otherwise) between the evidence of two or more witnesses to be able to conclude that the probative value of the evidence outweighs its prejudicial effect’.
Western Australian reforms
Under s 133 of the Criminal Procedure Act 2004 (WA), a court can only order separate trials if satisfied that there would be a likelihood of prejudice to the accused by the joinder of two or more charges. When considering the likelihood of prejudice to the accused from joinder of charges, the court cannot take into account that the evidence of two or more complainants or witnesses may be the result of collusion or suggestion.
In addition, s 31A of the Evidence Act 1906 (WA) deals specifically with admitting propensity evidence in a joint trial. It is admissible if it would have significant probative value and ‘the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial’. When determining whether the propensity evidence has significant probative value the court cannot take into account that the evidence may be the result of collusion, concoction or suggestion.
The Commissions’ view is that, because the mere possibility of concoction can affect the admissibility of propensity and similar fact evidence in common law jurisdictions, and because the uniform Evidence Acts do not expressly deal with concoction and the admissibility of tendency and coincidence evidence, there is a need for reform in relation to this issue.
The Commissions propose that federal, state and territory legislation provides that, in sexual offence proceedings, the court should not have regard to the possibility that the evidence of a witness or witnesses is the result of concoction, collusion or suggestion when determining the admissibility of tendency or coincidence evidence.
Further consideration may also need to be given to the continued reliance on the striking similarities test for the admission of tendency, coincidence, propensity and similar fact evidence (including in uniform Evidence Acts jurisdictions). The National Child Sexual Assault Reform Committee considers that without changes in the application of the test, reforms to increase the number of joint trials may be undermined. Although there have been a number of reforms in different jurisdictions to increase the frequency of joint trials in relation to sex offences, only one common law jurisdiction (Western Australia) has abandoned striking similarities as the test for admissibility of propensity evidence.
Proposal 18–10 Commonwealth, State and territory legislation should provide that, in sexual assault proceedings, a court should not have regard to the possibility that the evidence of a witness or witnesses is the result of concoction, collusion or suggestion when determining the admissibility of tendency or coincidence evidence.
Question 18–7 To what extent does the ‘striking similarities’ test impede the ordering of joint trials in relation to sex offences?
Question 18–8 Should the Western Australian reforms in relation to the cross-admissibility of evidence be adopted in other jurisdictions?
If there is only one complainant, the prosecution may want to lead evidence from other witnesses about the defendant’s criminal sexual behaviour with them, or it may wish to adduce evidence to explain the nature of the relationship between the complainant and the defendant, as well as the context in which the sexual assault occurred. Evidence of uncharged acts of sexual misconduct is commonly referred to as ‘relationship’, ‘context’, or ‘background’ evidence and is a type of circumstantial evidence.
Where such evidence is admissible, it cannot be used by the jury to reason that, if the accused committed the uncharged acts, he or she is more likely to have committed the charged acts. However, the distinction between relationship evidence and tendency evidence has been described as ‘somewhat artificial’ since evidence which shows the ‘existence of a sexual relationship must surely tend to show that the accused [has a tendency] to do the sort of things the subject of the charge’. Nonetheless, many cases have held that evidence of uncharged sexual behaviour between a complainant and an accused is admissible as relationship evidence.
The High Court has accepted that there are important reasons why evidence of uncharged acts of sexual misconduct by the defendant ought to be admissible in child sexual assault trials. However, the relevance test was not considered to be a sufficient control on the admissibility of relationship evidence by Gummow, Kirby and Hayne JJ all of whom agreed that, in addition to relevance, evidence of uncharged acts should not be admissible unless there was no rational view of the evidence consistent with the innocence of the accused (the Pfennig test).
However, Kiefel J expressed the view that only where relationship evidence is being tendered for its tendency purpose should the Pfennig test be applied. This is the same approach that is taken in uniform Evidence Acts jurisdictions where the test under s 101(2) does not apply to relationship evidence which is tendered for a non-tendency purpose.
Question 18–9 Should the ‘no rational view of the evidence’ (Pfennig) test be applied to determine the admissibility of relationship evidence at common law?
Evidence of recent and delayed complaint
Complaint evidence is a type of prior consistent statement, which is given by a witness or the complainant about when the complainant made their first report of sexual assault. The common law recent complaint rule allows this type of evidence to be admissible if the complaint was made at the first reasonable opportunity after the alleged sexual assault. However, it is only admissible for credibility purposes, that is, to bolster the credit of the complainant.
The common law’s approach to recent complaint evidence meant that evidence of delayed complaint was also considered to be relevant to credibility—to undermine the complainant’s credibility. Evidence of delayed complaint is commonly used by defence counsel to argue that a complainant has falsely accused the defendant of sexual assault.
Evidence of a complainant’s complaint is caught by the exclusionary hearsay rule in s 59 of the uniform Evidence Acts. Evidence of the complaint may nevertheless be admissible under the first-hand hearsay exception, where the complainant is available to give evidence, and the ‘fresh in the memory’ test in s 66(2) is satisfied.
In Graham v The Queen, the High Court was required to consider the scope of the ‘fresh in the memory’ test under s 66(2). In that case, a witness had given evidence about the complainant’s disclosures made six years after the alleged sexual assault. The High Court held that the witness’ evidence was not admissible under s 66(2) because the complainant had not told her friend she was sexually abused by her father when the events were fresh in her memory.
The Commissions consider that this is an area of evidence law in which consistency should be pursued, based on provisions that recognise that delay in complaint is a common characteristic of sexual assault. Knowledge that children typically delay disclosure of sexual abuse is one reason that evidence of a child’s delay in complaint has been held to satisfy the relevance test under the uniform Evidence Acts. One option would be for legislation to provide that the hearsay rule does not apply to evidence of a preliminary complaint, regardless of when the preliminary complaint was made.
Such a reform may be criticised, however, for attempting to amend an exception to the hearsay rule to address concerns primarily about attacks on the credibility of complainants in sexual assault cases. Evidence of a long delayed complaint is not inherently more reliable than in-court evidence (the usual justification for exceptions to hearsay rule). It can be seen as wrong in principle to retain s 66 generally, while creating a special exception for complainants in sexual offence proceedings.
Another factor is that there has not been enough time to establish whether recent amendments to the uniform Evidence Acts, intended to address restrictive interpretations of what is ‘fresh in the memory’ based on the decision in Graham, have had any impact on the admission of evidence of delayed complaint.
Question 18–10 Should Commonwealth, state and territory legislation provide that, where complainants in sexual assault proceedings are called to give evidence, the hearsay rule does not apply to evidence of a preliminary complaint, regardless of when the preliminary complaint was made?
Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4.
Crimes Act 1914 (Cth) s 15YB.
Phillips v The Queen (2006) 225 CLR 303.
National Child Sexual Assault Reform Committee, Alternative Models for Prosecuting Child Sex Offences in Australia, unpublished (2009), 214.
A Cossins, Striking Similarities between the Common Law and the Uniform Evidence Acts: Protecting Serial Offenders and Putting Children at Risk, unpublished (2010), 14.
Pfennig v The Queen (1995) 182 CLR 461, 482–483.
A Cossins, Striking Similarities between the Common Law and the Uniform Evidence Acts: Protecting Serial Offenders and Putting Children at Risk, unpublished (2010), 19–20.
National Child Sexual Assault Reform Committee, Alternative Models for Prosecuting Child Sex Offences in Australia, unpublished (2009), 208.
R v Knuth (Unreported, QCA, J Lee, 23 June 1998), .
 See Harriman v The Queen (1989) 167 CLR 590, 630–631; B v The Queen (1992) 175 CLR 599; R v Beserick (1993) 30 NSWLR 510; R v Alexander (Unreported, SASC, 24 April 1996); Cook v The Queen (2000) 22 WAR 67; R v Nieterink (1999) 76 SASR 56;R v Vonarx  3 VR 618.
HML v The Queen (2008) 235 CLR 334.
Ibid, , .
Graham v The Queen (1998) 195 CLR 606, 608.
National Child Sexual Assault Reform Committee, Alternative Models for Prosecuting Child Sex Offences in Australia, unpublished (2009), 152.