The Queen (on the Appln of the Director of Public Prosecutions for the State of Victoria) v Garde-Wilson

The Director of Public Prosecutions for the State of Victoria sought special leave to appeal to the High Court of Australia against a decision of the Victorian Court of Appeal. The dispute concerned the interpretation and application of s 102(1)(c) of the *Crimes Act 1958* (Vic), which relates to the admissibility of evidence of a person's previous sexual experience with the accused in sexual offence proceedings. The Director contended that the Court of Appeal had erred in its construction of this provision.

The central legal issue before the High Court was whether the Court of Appeal had correctly determined that evidence of a complainant's previous sexual experience with the accused was inadmissible under s 102(1)(c) of the *Crimes Act 1958* (Vic) unless the accused could demonstrate that the evidence was relevant to a fact in issue in the proceedings, beyond its tendency to show that the complainant might have consented or was more likely to have consented. The High Court was required to consider the scope and purpose of the exclusionary provision and its interaction with the general principles of evidence.

Kirby and Crennan JJ, in their joint judgment, allowed the Director's application for special leave to appeal and granted leave. They held that the Court of Appeal had erred in its interpretation of s 102(1)(c). The High Court clarified that the provision does not require the accused to demonstrate relevance beyond the tendency to show consent. Instead, the provision operates to exclude evidence of previous sexual experience with the accused unless it is relevant to a fact in issue in the proceedings, and that relevance is not solely based on the tendency to suggest consent. The Court emphasised that the provision aims to prevent the jury from being unduly prejudiced by evidence of prior sexual history that is not genuinely probative of a matter in dispute.

The High Court therefore set aside the decision of the Victorian Court of Appeal and remitted the matter to that Court for re-hearing.