20.

Matters Outside the Uniform Evidence Acts

Rape shield laws http://www.alrc.gov.au/publications/ 20.%20Matters%20Outside%20the%20Uniform %20Evidence%20Acts/rape-shield-laws
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20.11 All states, the ACT and Northern Territory have passed legislation which deals specifically with the admission of evidence in criminal proceedings where someone is charged with a sexual offence.[10] These rape shield laws are said to have three principal aims. These are to: prohibit the admission of evidence of a complainants sexual reputation; prevent the use of sexual history evidence to establish the complainant as a type of person who is more likely to consent to sexual activity; and exclude the use of a complainants sexual history as an indicator of the complainants truthfulness.[11] 20.12 All Australian rape shield laws take the form of an exclusionary rule and share a similar procedural scope.[12] However, there are a number of differences between federal, state and territory rape shield laws.[13] All the laws protect the complainant in relation to the offence charged but do not extend to other witnesses, except in the case of the Commonwealth provisions, which protect every child witness in sexual offence proceedings.
[14]

20.13 All existing rape shield laws are associated with other provisions

regulating the cross-examination of witnesses and the adducing and admission of evidence of witnesses sexual history by any party. The exception is in Western Australia, where the law only applies to defence evidence.[15] These provisions may also deal with specific warnings or directions to be given by judges in sexual offence cases.[16] Aspects of the examination of witness and the giving of directions, including in sexual offence proceedings, are dealt with in Chapters 5 and 18. 20.14 All states and the ACT have provisions which make evidence relating to the sexual reputation of a complainant inadmissible.[17] These provide no exceptions to their exclusionary rule. The justification for making evidence of sexual reputation completely inadmissible is said to be that evidence of reputation, even if relevant and therefore admissible, is too far removed from evidence of actual events or circumstances for its admission to be justified in any circumstances.[18] 20.15 However, Northern Territory legislation allows evidence of the sexual reputation of the complainant to be admitted with the leave of the court, if the court is satisfied that the evidence has substantial relevance to the facts in issue.[19] Similarly, the federal law allows evidence of a child witness or child complainants sexual reputation to be admitted with the leave of the court, if the court is satisfied that the evidence is substantially relevant to facts in issue in the proceeding.[20] 20.16 Australian jurisdictions have adopted different approaches in relation to evidence of the sexual activities,[21] sexual experience[22] or sexual experiences[23] of the complainant. 20.17 The most important distinction is between New South Wales, where the admissibility of such evidence depends on whether it falls within specific statutory exceptions,[24] and the other jurisdictions, where the evidence is inadmissible unless the leave of the court is obtained. Admissibility in the latter jurisdictions is a matter for the judges discretion, although the exercise of the discretion is subject to various conditions laid down by the legislation.
[25]

20.18 A further distinction may be drawn within the discretionary models. In

Victoria, Western Australia, the Northern Territory 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.[26]

Concerns about the rape shield laws

20.19 There are concerns about the operation of the rape shield laws, many of which have been canvassed in reports by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (MCCOC), the New South Wales Law Reform Commission and the Victorian Law Reform Commission.[27] 20.20 These reports have canvassed concerns about whether a mandatory or discretionary model is preferable for dealing with the admission of evidence of a complainants sexual experience;[28] and whether the New South Wales legislation[29] is too restrictive, so that it excludes not only irrelevant but also relevant material concerning the complainants sexual experience.[30] 20.21 The MCCOC report considered the relative merits of the mandatory and discretionary approaches in some detail.[31] The report referred to the undoubted difficulties encountered with the New South Wales model and the fact that the rest of Australia and other common law jurisdictions have rejected the mandatory model. MCCOC stated that it was attracted to a strictly circumscribed discretionary model.[32] MCCOC therefore recommended that the Model Criminal Code should contain a provision that prohibits, in the trial of a sexual offence, questioning of a complainant as to prior sexual experience unless leave of the court is obtained.[33]

Relationship with the uniform Evidence Acts

20.22 The uniform Evidence Acts do not affect the operation of federal, state or territory rape shield laws.[34] The rape shield laws operate alongside provisions of the uniform Evidence Acts that regulate the admission of evidence generally, including evidence of sexual reputation or sexual experience. Evidence of sexual reputation or sexual experience may be

inadmissible under the rape shield laws, the uniform Evidence Acts, or both. 20.23 For example, leaving aside the operation of rape shield laws, where evidence of a complainants sexual reputation or experience is sought to be adduced as relevant to the complainants credibility, it may be excluded under s 102 of the uniform Evidence Acts unless it is relevant for another purpose or falls within one of the exceptions to the credibility rule. The operation of the credibility rule is discussed in Chapter 12. 20.24 Evidence of a complainants sexual reputation or sexual experience may be admissible under the exception to the credibility rule provided by s 103 of the uniform Evidence Acts. This section provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness (including the complainant in a sexual offence case) if the evidence has substantial probative value. However, the evidence may still be ruled inadmissible under rape shield laws, depending on the applicable law and the exercise of judicial discretion (where available). 20.25 In some circumstances, evidence of a complainants sexual reputation or experience may be subject to the tendency rule. As discussed in Chapter 11, s 97 of the uniform Evidence Acts provides that evidence of character, reputation, conduct or a tendency is not admissible to prove a persons tendency to act in a particular way or have a particular state of mind, unless the court thinks that the evidence would have significant probative value. 20.26 Again, even where such evidence is admissible under the uniform Evidence Acts, the evidence may be ruled inadmissible under rape shield laws. Conversely, evidence about prior consensual sexual activity involving the complainant and the accused may be admissible under exceptions in the rape shield laws, but still constitutes tendency evidence for the purposes of s 97 of the uniform Evidence Acts. If so, in order to be admissible, notice has to be given to the other party and the evidence must have significant probative value.

Locating rape shield laws

20.27 In some states and territories, rape shield provisions are contained in

legislation dealing with criminal procedure[35] or with evidence and procedure in sexual offence cases specifically.[36] Some non-uniform Evidence Act jurisdictions have rape shield provisions in general evidence legislation.[37] 20.28 Tasmania is the only uniform Evidence Act jurisdiction to include rape shield provisions in evidence legislation. In 1996, the Tasmanian Law Reform Commissioners Special Committee on Evidence recommended that, if Tasmania were to adopt the uniform Evidence Act, then s 102A of the Evidence Act 1910 (Tas) containing Tasmanias rape shield provisions should be transferred to Chapter XIV of the Criminal Code Act 1924 (Tas).[38] However, the provisions were instead re-enacted in Tasmanias uniform evidence legislation.[39] 20.29 As discussed in IP 28, in the interest of uniformity between Australian jurisdictions, and to ensure consistency between rape shield provisions and those of the uniform Evidence Acts, there may be good reasons to recommend including provisions dealing specifically with the admission of evidence of sexual reputation or experience in the uniform Evidence Acts. However, as each jurisdiction which is part of the uniform Evidence Acts scheme has enacted different rape shield provisions, uniform rape shield provisions would need to be developed.[40] 20.30 In IP 28, opinion was sought as to whether there were concerns about the relationship between the uniform Evidence Acts and the rape shield provisions in state and territory legislation and whether the uniform Evidence Acts should be amended specifically to include provisions dealing with the admission of evidence of sexual reputation or experience.[41] 20.31 In DP 69, it was suggested that, while it might be desirable to include rape shield provisions in the uniform Evidence Acts,
given the differences in the approach taken to the rape shield provisions between NSW and other States (and the unlikelihood of achieving identical provisions) inclusion of these provisions in the Evidence Act is not practicable.[42]

20.32 Another view was that rape shield and similar provisions should not be introduced into the uniform Evidence Acts because the Acts should not

contain provisions applicable only to specific offences.[43] 20.33 The Commissions common policy position is that uniformity in evidence laws should be pursued unless there is good reason to the contrary. Uniformity in rape shield laws could be advanced by an agreed recommendation for enactment in federal, state and territory evidence laws. 20.34 In DP 69, the Commissions noted that developing recommendations on uniform rape shield laws would require review of the effectiveness of the provisions in each jurisdiction and review by the Commissions of previous recommendations for reform of rape shield laws. Such a project is beyond the terms of reference of the current Inquiry. However, the Commissions support harmonisation of rape shield laws in principle. Once agreement is reached on the content of uniform rape shield laws, the desirable location for those provisions can be determined. [44]
SUBMISSIONS AND CONSULTATIONS

20.35 The Commissions received one submission that was critical of this approach. It argues strongly that there should be greater uniformity to ensure that the special problems faced by children giving evidence, and all witnesses giving evidence of experiences of sexual assault, are adequately addressed.
At the very least, a proposed uniform act could incorporate these by reference or identify the common elements that do exist and include those, plus incorporating additional local provisions. It would be far better for the combined law reform commissions to take the opportunity for national leadership created by this reference and propose national provisions. A further inquiry is not really needed. The special needs of these vulnerable witnesses is well established, as are the continuing obstacles and limited implementation of the many evidentiary reforms Failing to address the distinctive and well-documented obstacles faced by these witnesses implicitly supports a view that their needs are not significant enough to be addressed in comprehensive uniform legislation.[45]

20.36 It was also noted that the lack of uniformity in protective provisions for sexual assault complainants supports the placement of such provisions in the uniform Evidence Acts.

Some protective provisions do not exist at all in Commonwealth law, except for children in connection with specific crimes. Although the report attempts to argue that some protection is provided by a sort of patchwork of the general provisions, this is unduly complex and uncertain in scope.[46]

THE COMMISSIONS VIEW

20.37 In Chapter 2 of this Report, the Commissions note the general policy that the uniform Acts should be of general application to all criminal and civil proceedings and should generally not include provisions of application only to specific offences or categories of witness. However, the chapter also acknowledges that strict adherence to this policy is not practicable, and that the balance of convenience and policy principle will differ from case to case. 20.38 For example, even though this may be considered offence specific, it is proposed that a sexual assault communications privilege be included in the uniform Evidence Acts. The Commissions believe a distinction may be drawn between the privilege and other special measures designed to assist witnesses in a particular type of matter. In the case of a sexual assault communications privilege, it is not the nature of the witness which causes him or her to need special protection, it is the recognition by law of the benefit to the public in (where it is in the interests of justice) protecting the confidentiality of the relationship between a complainant and a counsellor. It is therefore appropriate for the privilege to be legislated for alongside the other relationships whose confidentiality is similarly recognised at law, those being client legal privilege and the confidential professional relationship privilege. 20.39 Whilst another option would be to recommend the enactment of the different rape shield laws in the uniform Evidence Acts of each jurisdiction, this approach carries dangers for the objective of the uniform Evidence Acts. Arguably, the more non-uniform provisions included, the less the incentive to maintain uniformity in the existing provisions. 20.40 The Commissions remain of the view that it is consistent with the structure of the uniform Evidence Acts and their intended application for specific evidentiary provisions relating to sexual offence cases to remain

outside the Acts.[47] In Chapter 2, the Commissions recommend that all Australian jurisdictions should work towards the harmonisation of provisions relating to issues such as childrens evidence and offence-specific evidentiary provisions, and in particular those relating to sexual assault.[48] Part of this work could include an inquiry into the content and operation of federal, state and territory rape shield laws, with a view to achieving uniformity. In Chapter 2, the Commissions suggest that the Standing Committee of Attorneys-General (SCAG) establish an expert advisory committee to assist the process of continuing amendment to the uniform Evidence Acts as the need arises.[49] This group could undertake an inquiry into the operation of federal, state and territory rape shield laws.
[10] Uniform Evidence Act jurisdictions: Crimes Act 1914 (Cth) ss 15YB15YC; Criminal

Procedure Act 1986 (NSW) s 293;Evidence Act 2001 (Tas) s 194M; Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4853. Non-uniform Evidence Act jurisdictions: Evidence Act 1929 (SA) s 34I; Evidence Act 1958 (Vic) s 37A; Criminal Law (Sexual Offences) Act 1978 (Qld) s 4;Evidence Act 1906 (WA) ss 36A36BC; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4.
[11] T Henning and S Bronitt, 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, 82.
[12] J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 293. [13] These differences were highlighted by the High Court in Bull v The Queen (2000) 201

CLR 443.

[14] Crimes Act 1914 (Cth) ss 15YB15YC. [15] Evidence Act 1906 (WA) ss 36A36BC. See J Gans and A Palmer, Australian Principles

of Evidence (2nd ed, 2004), 293.

[16] For example, Criminal Procedure Act 1986 (NSW) s 294. [17] Ibid s 293(2); Evidence Act 2001 (Tas) s 194M(1)(a); Evidence (Miscellaneous

Provisions) Act 1991 (ACT) s 50; Evidence Act 1958 (Vic) s 37A(1)(1); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(1); Evidence Act 1929 (SA) s 34I(1)(a); Evidence Act 1906 (WA) s 36B.
[18] Model Criminal Code Officers Committee of the Standing Committee of Attorneys-

General, Model Criminal CodeChapter 5 Sexual Offences Against the Person, Report (1999), 219.
[19] Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(1)(a). [20] Crimes Act 1914 (Cth) s 15YB. [21] Criminal Procedure Act 1986 (NSW) s 293(3); Criminal Law (Sexual Offences) Act 1978

(Qld) s 4(2); Evidence Act 1929 (SA) s 34I(1)(b); Evidence Act 1958 (Vic) s 37A(1)(2); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 51; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(1)(b).
[22] Criminal Procedure Act 1986 (NSW) s 293(3); Evidence Act 2001 (Tas) s 194M(1)(b).

[23] Evidence Act 1906 (WA) s 36BC. [24] Criminal Procedure Act 1986 (NSW) s 293(4). [25] Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 5153; Sexual Offences

(Evidence and Procedure) Act 1983 (NT) s 4(1)(b), (2)(3); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(2)(3); Evidence Act 1929 (SA) s 34I(2)(3); Evidence Act 2001 (Tas) s 194M(2); Evidence Act 1958 (Vic) s 37A(3); Evidence Act 1906 (WA) s 36BC(2).
[26] See Model Criminal Code Officers Committee of the Standing Committee of Attorneys-

General, Model Criminal CodeChapter 5 Sexual Offences Against the Person, Report (1999), 223224; Criminal Law (Sexual Offences) Act 1978 (Qld) s 4(4) (acts which are substantially contemporaneous); Evidence Act 1929 (SA) s 34I(1)(b) (recent sexual activities with the accused).
[27] Model Criminal Code Officers Committee of the Standing Committee of Attorneys-

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

General, Model Criminal CodeChapter 5 Sexual Offences Against the Person, Report (1999), 237245.
[29] Crimes Act 1900 (NSW) s 409B. These provisions were re-enacted without significant

change in Criminal Procedure Act 1986(NSW) s 293. 1900 (NSW), Report 87 (1998), [1.8].

[30] New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act [31] Model Criminal Code Officers Committee of the Standing Committee of Attorneys-

General, Model Criminal CodeChapter 5 Sexual Offences Against the Person, Report (1999), 237243.
[32] Ibid, 243. MCCOC also stated that it favours the variant that extends the discretionary

regime to all incidents of sexual contact between the complainant and the accused.
[33] Ibid, 245. [34] Uniform Evidence Acts s 8(1). [35] Criminal Procedure Act 1986 (NSW).

[36] Criminal Law (Sexual Offences) Act 1978 (Qld); Sexual Offences (Evidence and

Procedure) Act 1983 (NT); Evidence (Miscellaneous Provisions) Act 1991 (ACT). The ACT legislation deals with a range of other matters, including evidence of children and the use of audio-visual links in proceedings.
[37] Evidence Act 1929 (SA); Evidence Act 1958 (Vic); Evidence Act 1906 (WA). [38] Law Reform Commissioner of Tasmania, Report on the Uniform Evidence Act and its

Introduction to Tasmania, Report 74 (1996), Rec 5, [6.1.3].

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

[40] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004),

[15.33].

[41] Ibid, Qs 151, 152. [42] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005. [43] G Bellamy, Consultation, Canberra, 8 March 2005. See discussion in Australian Law

Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform

Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [18.30][18.34].
[44] Australian Law Reform Commission, New South Wales Law Reform Commission and

Victorian Law Reform Commission,Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [18.38].
[45] K Mack, Submission E 82, 16 September 2005. [46] Ibid. [47] As noted above, in 1996, the Tasmanian Law Reform Commissioners Special

Committee on Evidence recommended that, if a uniform Evidence Act were adopted in Tasmania, Tasmanias rape shield provisions should be transferred to crimes legislation: Law Reform Commissioner of Tasmania, Report on the Uniform Evidence Act and its Introduction to Tasmania, Report 74 (1996), rec 5, [6.1.3].
[48] Recommendation 24. [49] See [2.30].