So what's important here?

Well, it's all important.

But, if I were on a really tight schedule I would have a look at Chapter 8, under the innocuous-sounding title of General.

What will make the Evidence Act 2008 so difficult for generations of legal students to come is that it's natural, given the title it has been given and the way it has been laid out, to assume that it's a one-stop shop on evidence law. And, come to think of it, that's the way it was sold, too.

Then you get to s 8 of that Act and realise that any contradictory provision in any other act is going to have primacy.

So for that reason alone, dip into s 328 through 389 and see how they modify the existing law.

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352. Limitation on sexual history evidence

352. Limitation on sexual history evidence

Sexual history evidence is not to be regarded—

(a) as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or

(b) as being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant.

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351. Court must state reasons if leave granted

351. Court must state reasons if leave granted

(1) If the court grants leave under section 342 it—

(a) must state in writing the reasons for granting leave; and

(b) cause those reasons to be entered in the records of the court.

(2) The failure of a court to comply with subsection (1) does not invalidate any order made by it.

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350. Determination of application for leave during sentencing hearing

350. Determination of application for leave during sentencing hearing

In the course of a sentencing hearing, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to the issue of appropriate sentence and the offender—

(a) has pleaded guilty to all sexual offences charged against the offender; or

(b) has been found guilty of all sexual offences charged against the offender.

Note

Section 352 limits the relevance of sexual history evidence.

Section 350 sets out how the court must determine an application for leave in a sentencing hearing. This section is based on (now repealed) Rule (3)(b) in section 37A(1) of the (now amended) Evidence Act 1958.

Uncertainty surrounds why an accused must plead or be found guilty to all charges before such evidence becomes admissible. Strictly read, this could deny an accused who has successfully defended some charges from informing the court of surrounding mitigatory circumstances.

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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.

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348. Hearing of application for leave

348. Hearing of application for leave

An application for leave under section 342 must be heard in the absence of the jury (if any) and, if the accused so requests, in the absence of the complainant.

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347. Waiver of requirement to apply for leave in writing

347. Waiver of requirement to apply for leave in writing
If it is in the interests of justice to do so, the court may waive the requirement that an application for leave under section 342 be made in writing.

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346. Contents of application for leave

346. Contents of application for leave

(1) An application for leave under section 342 must be in writing and set out the matters required by subsection (2) or (3), as the case requires.

(2) An application for leave to cross-examine the complainant as to the sexual activities of the complainant must set out—

(a) the initial questions sought to be asked of the complainant; and

(b) the scope of the questioning sought to flow from the initial questioning; and

(c) how the evidence sought to be elicited from the questioning has substantial relevance to facts in issue or why it is proper matter for cross-examination as to credit.

(3) An application for leave to admit evidence as to the sexual activities of the complainant must—

(a) identify the evidence that is sought to be admitted; and

(b) set out how the evidence has substantial relevance to facts in issue.

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345. Application for leave out of time

345. Application for leave out of time

If it is in the interests of justice to do so, the court may hear and determine an application for leave under section 342 after the expiry of the relevant time limit specified in section 344.

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344. Application for leave

344. Application for leave

An application for leave under section 342—

(a) in the case of a summary proceeding, must be filed with the Magistrates' Court and served on the informant in accordance with section 392 at least 7 days before the summary hearing;

(b) in the case of a committal proceeding, must be filed with the Magistrates' Court and served on the informant and the DPP in accordance with section 392 at least 7 days before the committal hearing;

(c) in the case of a trial, must be filed with the County Court or the Supreme Court (as the case requires) and served on the DPP in accordance with section 392—

(i) at least 14 days before the day on which the trial is listed to commence; or

(ii) if a special hearing is to be held, at least 14 days before that hearing;

(d) in the case of a sentencing hearing, must be filed with the relevant court and served on the informant or the DPP (as the case requires) in accordance with section 392 at least 7 days before the sentencing hearing is listed to commence.

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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.

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342. Restriction on questions and evidence concerning complainant's sexual activities

342. Restriction on questions and evidence concerning complainant's sexual activities

The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court.

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341. Prohibition on questions and evidence concerning complainant's chastity

341. Prohibition on questions and evidence concerning complainant's chastity

The court must not allow any questions as to, or admit any evidence of, the general reputation of the complainant with respect to chastity.

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340. Definition

340. Definition

In this Division—

sexual history evidence means evidence that relates to or tends to establish the fact that the complainant—

(a) was accustomed to engaging in sexual activities; or

(b) had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person.

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