Victorian Consolidated Legislation

Evidence Act 1958 - SECT 37A

Special rules of evidence in relation to certain offences which relate to rape

37A. Special rules of evidence in relation to certain offences which relate to
rape





(1) Notwithstanding anything in this or any other Act or any rule of law to
the contrary the following Rules shall apply in relation to any proceeding,
including a committal proceeding, that relates to a charge for a sexual
offence, whether or not the proceeding relates to any other charges against
the same or any other person and whether or not it is alleged that there are
aggravating circumstances:

(1) The court shall forbid any question as to and shall not receive evidence
of the general reputation of the complainant with respect to chastity.

(2) Without the leave of the court-

   (a)  the complainant shall not be cross-examined as to his or her sexual
        activities (whether consensual or non-consensual); and

   (b)  no evidence shall be admitted as to the sexual activities (whether
        consensual or non-consensual) of the complainant.

(3) The court shall not grant leave under Rule (2) unless-

   (a)  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-

   (i)  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 his or her age and the number and nature of the questions that
        he or she is likely to be asked; and

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

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

   (iv) the right of the accused person to fully answer and defend the charge;
        or

   (b)  it is satisfied that the evidence has substantial relevance to the
        issue of appropriate sentence and the accused person has-

   (i)  prior to the committal proceeding signified in writing before a
        magistrate his or her intention of pleading guilty to all the sexual
        offences on which he or she is there charged;

   (ii) pleaded guilty to all such offences; or

   (iii) been convicted of all such offences.

(4) Evidence that relates to or tends to establish the fact that the
complainant was accustomed to engage in sexual activities, or had freely
agreed to engage in sexual activity with the accused person or another person
other than the sexual activity to which the charge relates, shall not 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 in the
        absence of special circumstances by reason of which it would be likely
        materially to impair confidence in the reliability of the evidence of
        the complainant.

(4A) Without limiting Rule (4), evidence of a kind referred to in that Rule 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.

(5) An application for leave under Rule (2)-

   (aa) must, in the case of an application to cross-examine the complainant
        as to his or her sexual activities-

   (i)  be in writing and given to the Director of Public Prosecutions and, in
        the case of a committal proceeding, to the informant-

                (A)  in the case of a committal proceeding, at least 14 days
                     before the date fixed by the court for the
                     cross-examination of the witness; or

                (B)  in the case of a trial, at least 14 days before the date
                     fixed by the Criminal Trial Listing Directorate as the
                     date on which the trial is to be listed for hearing;

   (ii) 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;

   (a)  shall be heard in the absence of the jury (if any) and, if the accused
        so requests, in the absence of the complainant;

   (b)  shall be determined after the court has allowed such submissions or
        other evidence (sworn or unsworn) as the court considers necessary for
        the determination of the application; and

   (c)  shall not be granted unless the court considers that the requirements
        of Rules (3), (4) and (4A) are satisfied but in that case may be
        granted provided that the court considers it desirable in the
        interests of justice so to do.

(5A) The Director of Public Prosecutions must forward an application referred
to in Rule (5)(aa) given to the Director of Public Prosecutions under that
Rule-

   (a)  in the case of a committal proceeding, to the registrar at the venue
        of the Magistrates' Court at which the committal proceeding is to be
        held on or before the committal mention date;

   (b)  in the case of a trial, to the Criminal Trial Listing Directorate
        together with the copy of the presentment required to be forwarded to
        that Directorate.

(5B) Nothing in Rule (5) or (5A) prevents a court, because of the existence of
exceptional circumstances, hearing and determining an application to
cross-examine the complainant as to his or her sexual activities that is made
after the expiry of the period referred to in Rule (5)(aa)(i).

(5C) Despite anything to the contrary in Rule (5), the court may, because of
the existence of exceptional circumstances, waive the requirement that an
application to cross-examine the complainant as to his or her sexual
activities be made in writing.





(6) If the court grants leave under Rule (2) 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 Rule (6) in subsection (1) does not
invalidate any order made by it.