349. Determination of application for leave during summary hearing, committal proceeding or trial

349. Determination of application for leave during summary hearing, committal proceeding or trial

In the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to—

(a) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that 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 that the complainant is likely to be asked; and

(b) the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and

(c) the need to respect the complainant's personal dignity and privacy; and

(d) the right of the accused to fully answer and defend the charge.

Note

Section 352 limits the relevance of sexual history evidence.

The note attached to this section clarifies that even where sexual history evidence is admitted s 352 continues to prohibit the evidence being used to draw inferences as to consent.