Consent evidence to be allowed in sex offence trials

A proposed change to the Evidence Act would permit defendants in sexual offence trials to submit character evidence supporting claims of consent. 

The Attorney General's Office has submitted to parliament a bill including multiple amendments to the Evidence Act, which was ratified in 2022. Amongst these is a new chapter, specifically on Character Evidence. 

Character evidence refers to evidence related to a person's general character, personality traits, disposition, or conduct. Bad character evidence refers to details of a person's past conduct, such as prior convictions or dishonest behaviour, which could imply likelihood of having committed the current offence, or their lack of credibility. 

The Evidence Act currently lists character evidence as to be used to show bad intent, with only a single article dedicated to it in the law. 

The amendment expands on the provisions of this article and introduces new elements. It allows character evidence to be submitted either through direct testimony or through another person's opinion stated in court. 

Under the amendment, a defendant can submit character evidence to prove positive traits, good conduct or disposition directly or indirectly. 

If such evidence is accepted by the court, the prosecution then is allowed to present bad character evidence against the defendant. 

Special provisions regarding character evidence in sexual offence cases are also outlined in the amendment. In sexual offence cases, there are circumstances outlined where character evidence can be submitted against the victim. These circumstances are:

- If the evidence submitted is to prove that the sexual offence against the victim was committed by a person other than the defendant

- If the evidence is submitted to prove that the sexual act was committed with the victim's consent at the time

- If excluding the evidence would hinder justice for the defendant

The bill stipulates that such evidence should only be admitted if the court finds that its evidentiary benefit outweighs any potential harm to the victim. 

Further, the court must grant the opportunity to the prosecution to submit evidence to negate the defence's evidence or to prove that it cannot be admitted in trial. 

Reports indicate that there have been multiple past attempts to falsely implicate persons in sexual offence cases. According to Mihaaru News, the State has recently withdrawn several such cases from court.