343. Admissibility of sexual history evidence

343. Admissibility of sexual history evidence

Sexual history 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.

This prohibitive rule acts to prevent the admission of evidence, regardless of its possible relevance. It has not yet been resolved if, as with provisions of the Evidence Act 2008, the evidence is relevant for some other purpose (eg. credit) the trier of fact may not be permitted to use the evidence in other ways: Papakosmas v R (1999) 196 CLR 297. The probable view is that a judge ought to instruct a jury not to use the evidence admitted for that purpose, in line with s 343.