Chapter 7
Evidence of sexual experience of complainants
in sexual cases

“Interests of justice”

7.23McDonald and Tinsley have also proposed that s 44 of the Evidence Act be amended to provide:529

That when determining the admissibility of evidence of the sexual experience of the complainant with any person (including the defendant), the judge must consider whether it is in the interests of justice to admit the evidence, by taking into account:

  • The distress, humiliation and embarrassment 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 the complainant is likely to be asked;
  • The risk that the evidence may arouse discriminatory belief or bias, prejudice, sympathy or hostility;
  • The need to respect the complainant’s personal privacy;
  • The right of the defendant to fully answer and defend the charge; and
  • Any other relevant matter.
7.24 They argue that s 44(3), as it is currently worded, only requires the judge to take account of the effect of exclusion of the evidence, rather than the effect of inclusion. For this reason, they say that the test does not encourage judges to consider the impact of admissibility on the complainant when assessing where the “interests of justice” lie in a particular case.530  Their recommendation is based on a proposal of the Australian Law Reform Commission.531

7.25We are not convinced of the desirability of this proposal. The test for inclusion of sexual history evidence is that it is so clearly relevant to the issues that to exclude it would be contrary to the interests of justice. The way in which s 44(3) is currently cast clearly puts the emphasis on exclusion of such evidence and contemplates its admission only where it is of such direct relevance that the interests of justice require admission. At the heart of the test is the direct relevance to the issues at trial.

7.26The suggested rewrite does not fundamentally change the test, but rather, sets out a list of matters that a judge might consider in determining where the interests of justice lie. Given that it is not a proposed change to the test, we find it difficult to see how the additional matters that the judge would be required to take into account are relevant to the application of that test. For example, how is the degree of distress, humiliation or embarrassment suffered by the complainant, or his or her age, relevant to the degree of relevance?

7.27We acknowledge that by its very nature this kind of evidence is inevitably going to be a source of distress, humiliation and embarrassment for a complainant. Indeed, this is the very reason that s 44 is underpinned by a presumption against admission of evidence of the complainant’s sexual experience with other persons. However, as well as respecting the interests of complainants, the Act must also protect the interests and rights of defendants. Accordingly, where fair trial rights require it, such evidence will be available to the court. That is the balance struck by s 44, and more broadly, by the Act as a whole.

7.28For these reasons, we are not convinced that the proposed amendment to spell out matters that should be considered in determining the interests of justice under s 44(3) is desirable.

529McDonald and Tinsley, above n 523, at 336.
530At 335.
531Australian Law Reform Commission and New South Wales Law Reform Commission Family Violence – A National Legal Response (ALRC R114, 2010) at 1252-1253.