When politics reaches into the rights of the accused

What the amendments actually do

The changes sit in Part 6, Division 3 of the amending Act, which inserted a group of new sections into the Evidence Act 1977 (Qld).

They apply to any criminal proceeding that relates, wholly or partly, to a charge for a sexual offence. That covers a committal hearing as well as a trial.

Once the proceeding qualifies, two separate rules bite.

1. The court must not admit any question or any evidence about the sexual reputation of the complainant. This is absolute. There is no application you can make.
2. The court must not admit cross-examination or evidence about the complainant’s sexual activities, consensual or otherwise, other than the activity that forms the charge itself, unless leave is granted.

Getting leave, and why it is difficult

If defence counsel considers questions about sexual activity are necessary, an application must be filed and served on the prosecution with the supporting material.

The application has to set out the initial questions proposed, the scope of questioning likely to follow from them, and why the evidence has substantial probative value or is a proper matter going to credit.

The court must not grant leave unless satisfied of one of two things. Either the evidence has substantial probative value, meaning it tends to prove something that could actually affect the outcome. Or it is a proper matter for cross-examination as to credit. On top of that, the court must be satisfied that admitting the evidence is in the interests of justice.

Two further filters

The Act then narrows both gateways.

Evidence cannot be treated as probative only because of an inference it raises about the complainant’s general disposition. In plain terms, a history of frequent consensual sexual activity cannot be led to suggest that the act charged was also consensual. If that is the only basis for the application, it fails.

A matter cannot be treated as a proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely to materially impair confidence in the reliability of the complainant’s evidence. The Act does not define special circumstances. It is not enough that the questioning would impair confidence in the evidence. It has to do so for a reason the court accepts as special.

Those two filters are aimed squarely at the reasons defence practitioners would usually want to ask the questions in the first place.

The case for the change

The rationale is not hard to see and should not be dismissed.

Complainants in sexual offence proceedings have historically been questioned in ways that were humiliating and often had little to do with the charge. That can retraumatise a person who has been assaulted. It also deters reporting, because a complainant weighing whether to go to police is entitled to ask whether their private life will be examined in open court.

A rule that removes the worst of that behaviour has an obvious public benefit.

The cost, which is real

Complaints get tested later, or not at all

A committal hearing exists so that the reliability of prosecution witnesses can be examined before a matter is set down for trial. That testing has historically included exactly the kind of questioning now restricted.

The practical effect is that some matters which would previously have been resolved at committal will now be committed to trial, with the cost and delay that follows for everyone, including the complainant.

The presumption runs the wrong way in public

A person charged with a sexual offence is presumed innocent in law and frequently presumed guilty everywhere else. We have written about the same problem in the context of domestic violence order statistics.

Where a jury hears an isolated account with no ability to place the surrounding conduct in context, that presumption is harder, not easier, to overcome.

The building blocks are now in place

These restrictions came as part of a broader package that also produced the coercive control offence in Chapter 29A of the Criminal Code, changes to bail presumptions, and the affirmative consent model.

Once a legislative structure of this kind exists for one class of offence, extending it to another is a drafting exercise rather than a policy fight. That is worth watching.

If you are under investigation

Sexual offence allegations move quickly and the early decisions matter most. Whether you take part in a record of interview, what you say if you do, and what material is preserved are all decided in the first days.

Get advice before you speak to police. See our page on sexual offence charges for how these matters run through the Queensland courts.