Report No. 172
5.3.4. Reiteration of the recommendations made in the 84th Report and reference to the New South Wales Law Reform Commission's recommendations.-
We are in agreement with the above recommendations contained in the 84th Report of the Law Commission and do herewith reiterate them. In this context, however, we may refer to a set of recommendations proposed by the New South Wales Law Reform Commission to amend section 409B of the Crimes Act, 1900 (New South Wales). Sub-section (2) of section 409B of the New South Wales Act provides that "in prescribed sexual offence proceedings, evidence relating to the sexual reputation of the complainant is inadmissible".
Sub-section (3) makes evidence of any sexual experience or lack of sexual experience of the complainant equally inadmissible except in certain specified situations. The New South Wales Law Commission has proposed retaining the existing sub-section (2) as clause (a) of sub-section (2) and to add a new clause, clause (b) in sub-section (2). It has also proposed addition of sub-sections (3) to (11). We do not however propose to set out all the said proposed sub-sections, except sub-section (2), which reads as follows:
"(2)(a) In proceedings to which this section applies, evidence relating to the sexual reputation of the complainant is inadmissible.
(b) Notwithstanding sub-section (2)(a), evidence about any sexual experience or sexual activity, or lack of experience or activity, of the complainant shall not be inadmissible merely because it also relates to the sexual reputation of the complainant."
5.3.5. For ready reference, we are enclosing both section 409B as it now stands as well as the recommendation for its amendment as suggested by the New South Wales Law Reform Commission. (The recommendation was made in November 1998.) (Annexure-F)
5.3.6. We do not think that we need to draw any inspiration from the highly involved and intricate provisions suggested by the New South Wales Law Reform Commission by way of clause (b) of sub-section (2) or by way of sub-sections (3) to (7) of S.209-B. The provision as suggested herein are sufficient. It is, of course, for the government to decide whether any provisions on the lines of the suggestions made by the New South Wales Law Commission should be made.
5.3.7. In the light of changes proposed by us in section 375, the language of section 53A and of clause (4) in section 146, recommended in the 84th Report of the Law Commission, have to be modified and adapted.