Chapter 7
Evidence of sexual experience of complainants
in sexual cases

Pre-trial notification procedure

7.29McDonald and Tinsley also recommend an amendment to the Act to require notice of intent to offer evidence of the sexual experience of the complainant to be given pre-trial and for decisions about admissibility to be made pre-trial. They use s 22 of the Act (notice of hearsay in criminal proceedings) as an example of how this would operate.532  Again, this proposal is based on a similar recommendation made by the Australian Law Reform Commission.533
7.30Procedural controls were imposed on the admission of prior sexual history evidence in some Australian jurisdictions, following an evaluation of earlier reforms which showed that they had limited effect on the admission of prior sexual history evidence.534  The Australian Law Reform Commission recommended that these procedural requirements, including a requirement for a pre-trial written application, should be included in federal, state and territory legislation as:535

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.

7.31In Victoria where a requirement for written notice has been in place since 2009, an application 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.536
7.32In terms of the parallel that McDonald and Tinsley draw with s 22 and the notice requirements in relation to hearsay, the rationale there for the notice provision was to encourage admissibility decisions concerning hearsay evidence to be made pre-trial where possible given the change from a category-based approach to one relying on the exercise of judicial discretion.537  Interestingly, the Law Commission in recommending the notice requirement that became s 22, described it is “an important safeguard” in relation to its proposed liberalisation of the hearsay rules.538
7.33It would not be inconsistent for similar notice requirements to be imposed in relation to the exercise of judicial discretion under s 44 to admit sexual experience evidence. Furthermore, there are arguably efficiency gains to be made if potentially important admissibility decisions can be made pre-trial. As the Law Commission noted in relation to the equivalent of s 22 in its Evidence Code, there is sufficient flexibility to ensure it does not lead to injustice.539

7.34For these reasons we support the incorporation of a notice requirement in relation to applications for leave to adduce evidence as to the sexual experience of a complainant. We recommend that it be modelled on the notice requirements in s 22 of the Act.

R14 We recommend amending s 44 to require that notice of an application for leave to lead evidence as to the sexual experience of a complainant in a sexual case be given, modelled on the notice requirement in relation to hearsay evidence in s 22 of the Act.

532McDonald and Tinsley, above n 523, at 338.
533Australian Law Reform Commission Family Violence, above n 531, at 1256.
534Victorian Law Reform Commission Sexual Offences: Final Report (2004) at 200.
535Australian Law Reform Commission Family Violence, above n 531, at 1256.
536Criminal Procedure Act 2009 (Vic), s 345.
537Richard Mahoney and others The Evidence Act 2006: Act & Analysis (2nd ed, Brookers, Wellington, 2010) at [EV22.02].
538Law Commission Evidence: Volume 1, above n 517, at 19.
539At 19.