EVIDENCE ACT 1929 - SECT 34M

EVIDENCE ACT 1929 - SECT 34M

34M—Evidence relating to complaint in sexual cases

        (1)         This section abolishes the common law relating to recent complaint in sexual cases.

Note—

See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427

        (2)         In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.

        (3)         Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.

Examples—

Evidence may be given by any person about—

        •         when the complaint was made and to whom;

        •         the content of the complaint;

        •         how the complaint was solicited;

        •         why the complaint was made to a particular person at a particular time;

        •         why the alleged victim did not make the complaint at an earlier time.

        (4)         If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—

            (a)         it is admitted—

                  (i)         to inform the jury as to how the allegation first came to light; and

                  (ii)         as evidence of the degree of consistency of conduct of the alleged victim; and

            (b)         it is not admitted as evidence of the truth of what was alleged; and

            (c)         there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,

but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.

        (5)         It is not necessary that a particular form of words be used in giving the direction under subsection (4).

        (6)         In this section—

"complaint", in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);

"initial complaint", in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).