377. Exception to hearsay rule—previous representations made by complainant under 18 years

377. Exception to hearsay rule — previous representations made by complainant under 18 years

(1) In this section—

asserted fact has the same meaning as in the Evidence Act 2008;
hearsay rule has the same meaning as in the Evidence Act 2008;
previous representation has the same meaning as in the Evidence Act 2008.

(2) This section applies in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence if a complainant under the age of 18 years who made a previous representation is available to give evidence about an asserted fact or the complainant's credibility is relevant.

(3) Subject to subsection (4), if a complainant has been or is to be called to give evidence, the hearsay rule does not apply to evidence to support an asserted fact or the complainant's credibility that is given by—

(a) the complainant; or

(b) a person who saw, heard or otherwise perceived the representation being made.

(4) Subsection (3) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.

(5) A witness has personal knowledge of the asserted fact if his or her knowledge of that fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

(6) Evidence of the kind referred to in subsection (3) is admissible to support the credibility of the complainant as a witness.

(7) Nothing in this section takes away from or limits any discretion a court has to exclude evidence.

Offences which may be dealt with summarily which attract this provision are:

- s 39 indecent assault
- s 47 indecent act with a child under 16
- s 48 sexual penetration of 16 or 17 year old child

It should be noted that it is not necessary for the witness giving the evidence to be a child or to be the complainant of the alleged offence(s) in order to fall under this provision, provided a child is the complainant in the hearing.

This section modifies s 59 of the Evidence Act 2008 by virtue of s 8, which provides that the Evidence Act does not affect the operation of other Acts. However, discretions to reject the evidence under ss 135, 137 and 138 may be invoked. The case of R v Christie [1914] AC 545 is relevant to the exercise of discretion.