Chapter 7
Evidence of sexual experience of complainants
in sexual cases

Written reasons for section 44 decisions

7.35We have considered a recommendation that reasons are given in writing for any decision given at any time concerning the admissibility of evidence pursuant to s 44 of the Evidence Act, which addresses evidence of sexual experience of the complainant.540

7.36We are not aware of any current problems with judges omitting to give written reasons under the current system. It would also be rather anomalous to require reasons to be given in writing for decisions under s 44 but not to have an equivalent requirement for admissibility decisions made under other provisions of the Act. The intention of this proposal may be to improve communication and clarity for complainants in sexual cases, and to promote greater understanding about the reasons for decisions relating to evidence of their sexual experience. However, if communication with complainants is the concern, it is a matter that may be better addressed through practice rather than legislative reform.

540McDonald and Tinsley, above n 523, at 338.