B (SC12/2013) v R

This appeal concerns the admissibility of evidence in a sexual offence case. The appellant was convicted of sexual penetration of a complainant without consent. The trial court had ruled that evidence of the complainant’s prior sexual experience was inadmissible, a ruling that was upheld on appeal. The High Court now considers whether the evidence was properly excluded. The legal issue is whether the evidence was properly excluded under the Evidence Act, specifically s 44, which governs the admissibility of evidence of the sexual experience or sexual reputation of a complainant in a sexual case. The High Court considered that the evidence was either about the complainant’s sexual reputation or her sexual experience with another person, both of which are excluded by s 44(2) and (3). The Court held that the trial Judge was correct to exclude the evidence, as it went to the complainant’s sexual reputation, and therefore did not need to consider whether it was of such direct relevance that it would be contrary to the interests of justice to exclude it.

The High Court dismissed the appeal, affirming that the evidence was properly excluded. The Court held that the evidence was either about the complainant’s sexual reputation or her sexual experience with another person, both of which are excluded by s 44 of the Evidence Act. The Court of Appeal had already considered that the evidence went to the reputation in sexual matters of the complainant, and so was excluded by s 44(2). The High Court found no error in this reasoning and held that the exclusion of the evidence was correct. The appellant’s argument that the evidence was relevant to show a pretext used by the complainant on another occasion was rejected as the evidence related to her sexual reputation or experience with another person, which are excluded categories under the Act.