R v Finn

The appeal concerned a conviction for a sexual offence. The appellant, R, was appealing his conviction. The Court of Criminal Appeal of South Australia was required to determine whether the trial judge had erred in admitting certain evidence and in their summing up to the jury.

The primary legal issues before the court were whether the trial judge had correctly applied section 34L of the *Evidence Act 1929* (SA) regarding the admissibility of evidence concerning the complainant's sexual history, and whether the judge's summing up adequately addressed the jury's need for corroboration in sexual offence cases, particularly in light of the complainant's evidence regarding her lack of prior sexual experience.

The Court of Criminal Appeal found that the trial judge had erred in allowing questions and admitting evidence relating to the complainant's lack of prior sexual experience. The court held that such evidence, particularly when elicited through questioning that suggested the complainant's inexperience was relevant to the accused's actions or the complainant's understanding, contravened the spirit and purpose of section 34L(3) of the *Evidence Act 1929* (SA). This section mandates that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation, or embarrassment, and that evidence of prior sexual activities should only be admitted if it possesses substantial probative value or is likely to materially impair confidence in the reliability of the victim's evidence, and its admission is required in the interests of justice. The court also noted that section 34L(6) explicitly states that a judge is not required to warn the jury about the dangers of convicting on uncorroborated evidence in sexual offence cases. However, the admission of the evidence concerning the complainant's virginity, which was not of substantial probative value and served only to potentially prejudice the jury, was deemed a misapplication of the Act.

Consequently, the Court of Criminal Appeal allowed the appeal, set aside the conviction, and remitted the matter to the District Court for a re-trial. The court deemed it unnecessary and inappropriate to consider the appeal against sentence.