32. Prior Sexual History Evidence (Vic) — Comprehensive Practitioner Cheat Sheet¶
Scope and currency
Criminal Procedure Act 2009 (Vic) Ch 8 Pt 8.2 Div 2 (ss 339–352) · Evidence (Miscellaneous Provisions) Act 1958 (Vic) Pt II Div 2A · Jury Directions Act 2015 (Vic) Pt 5 · Crimes Act 1958 (Vic) ss 36, 36AA · Statutory text verified against AustLII consolidations current at 14 August 2026
How to use this sheet. Victoria's rape shield is a two-stage machine, and most marks are lost by collapsing the two stages into one. Stage one asks whether the material is caught — and there are two separate catching provisions with two different definitions (s 341 catches sexual reputation absolutely; s 342 catches sexual activities subject to leave). Stage two asks whether leave should be granted, and that question is governed by s 349, filtered through s 352 and, where therapeutic records are the source, by the entirely separate Division 2A privilege regime. Work the gates below in order. Every section number and quoted phrase in this sheet has been checked against the current AustLII consolidation; the four corrections and the currency watch at the end are the parts most likely to decide a mark.
Three currency traps that will cost you the question. First
, Crimes Act 1958 ss 37, 37AA and 37AAA — the old consent jury-direction provisions — no longer exist. Sections 37, 37A and 37B have been re-used for completely different subject matter (s 37 is now "care, supervision or authority"; ss 37A and 37B are the objectives and guiding principles for Subdivisions (8A)–(8G)). Citing "s 37AAA" in 2026 is a competence signal to the marker. Second, Lancaster is a s 342 / substantial relevance to a fact in issue case; it is not a s 352(b) "special circumstances" case, and saying otherwise inverts its reasoning. Third, since 28 December 2025 the committal limbs of ss 344 and 349 have been repealed, and since 25 March 2026 a five-judge bench in Hameed has held that a refusal of s 342 leave does concern the admissibility of evidence — which, counter-intuitively, makes an interlocutory appeal against such a refusal effectively impossible.
1. The statutory architecture — Part 8.2 Division 2 at a glance¶
Division 2 of Part 8.2 of the Criminal Procedure Act 2009 (Vic) is a self-contained code of eleven sections. It is worth learning as a sequence rather than as a list, because the sections track the actual chronology of an application: what the Division catches, what is absolutely barred, what requires leave, how leave is sought, how leave is decided, and what must be recorded afterwards.
| s | Heading | What it actually does |
|---|---|---|
| 339 | Application of Division | Applies to a criminal proceeding relating (wholly or partly) to a charge for a sexual offence; applies to all complainants in that proceeding; and applies despite anything in this or any other Act or any rule of law to the contrary (s 339(3)). That override clause is the reason the Division defeats a general Evidence Act 2008 relevance argument. |
| 340 | Definition | Defines sexual history evidence — evidence that relates to or tends to establish the fact that the complainant: (a) was accustomed to engaging in sexual activities; or (b) had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person. |
| 341 | Prohibition on questions and evidence concerning sexual reputation of complainant | Absolute bar, no leave gateway. "The court must not allow any questions as to, or admit any evidence of, the sexual reputation of the complainant." Heading and text amended by No 38/2022 s 73 — the provision formerly spoke of the complainant's chastity. |
| 342 | Restriction on questions and evidence concerning complainant's sexual activities | The leave gateway. The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court. |
| 343 | Admissibility of sexual history evidence | Purpose bar. Sexual history evidence is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates. |
| 344 | Application for leave | Filing and service. Summary: file with the Magistrates' Court, serve on the informant under s 392, at least 7 days before the summary hearing. Pre-trial or limited preparatory cross-examination under a s 198A or s 198B order: file with the County or Supreme Court, serve on the DPP at least 7 days before. Trial: file with the County or Supreme Court, serve on the DPP at least 14 days before trial (or before a special hearing). Sentencing: at least 7 days. s 344(b) — the committal limb — was repealed by No 5/2025 s 18. |
| 345 | Application for leave out of time | The court may hear and determine an out-of-time application if it is in the interests of justice to do so. Note the standard: the 2009 Act deliberately replaced the older "exceptional circumstances" formulation. |
| 346 | Contents of application for leave | The application must be in writing. For cross-examination it must set out: (a) the initial questions sought to be asked, (b) the scope of the questioning sought to flow from the initial questioning, and © how the evidence has substantial relevance to facts in issue or why it is proper matter for cross-examination as to credit. For adducing evidence it must (a) identify the evidence and (b) set out how it has substantial relevance to facts in issue. |
| 347 | Waiver of requirement to apply for leave in writing | The writing requirement may be waived if it is in the interests of justice to do so — the safety valve when the forensic need emerges mid-trial. |
| 348 | Hearing of application for leave | The application must be heard in the absence of the jury (if any) and, if the accused so requests, in the absence of the complainant. Note this is not a general closed-court provision. |
| 349 | Determination of application for leave during summary hearing or trial | The operative leave test — set out in full at Gate 5 below. Heading and text amended by No 5/2025 s 19 to remove "committal proceeding". |
| 350 | Determination of application for leave during sentencing hearing | A different and narrower test — see section 6 below. |
| 351 | Court must state reasons if leave granted | If leave is granted the court must state the reasons in writing and cause them to be entered in the records of the court; failure to do so does not invalidate any order made. |
| 352 | Limitation on sexual history evidence | The relevance filter that sits over s 349 — set out in full at Gate 5 below. |
2. The decision sequence¶
GATE 0 Does Division 2 apply at all? (s 339)
Is this a criminal proceeding relating wholly or partly to a charge for a sexual offence? Division 2 applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence as defined in s 4 of the Act, and it applies to all complainants in that proceeding — including children and persons with a cognitive impairment. Note that No 38/2022 s 24 extended s 4 to include intimate image offences, so the shield now reaches charges that many practitioners still think of as outside it. The critical drafting feature is s 339(3): the Division applies despite anything in this or any other Act or any rule of law to the contrary. That is what defeats an argument that the material is simply relevant under ss 55–56 of the Evidence Act 2008, or that it is admissible as a prior inconsistent statement, or that the common law permits it. If the material is caught, the Division governs and nothing else does. → Yes: the Division applies to every stage of the proceeding it still governs — the summary hearing, a s 198A or s 198B pre-trial cross-examination, the trial, a special hearing, and the sentencing hearing. Proceed to Gate 1. → No: ordinary Evidence Act 2008 admissibility applies (relevance under ss 55–56; credibility under ss 102–108; discretionary exclusion under ss 135, 137 and 138; improper questions under s 41). The Division is not engaged.
GATE 1 Is it sexual REPUTATION? (s 341) — the absolute bar
Does the proposed question or evidence go to the complainant's sexual reputation, as distinct from specific sexual acts? Section 341 is the most commonly overlooked provision in the Division because it has no leave gateway at all. The court must not allow any questions as to, or admit any evidence of, the sexual reputation of the complainant. There is no application, no discretion, and no interests-of-justice balancing. Reputation evidence is simply gone. The provision was amended by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (No 38/2022) s 73, which replaced the archaic "general reputation of the complainant with respect to chastity" with "sexual reputation of the complainant". If a question stem or a set of notes still refers to "chastity", it is pre-2023 material and should be treated with caution. → Yes — it is reputation: the answer is complete. Refuse. No leave application lies, and there is no need to reach ss 342, 349 or 352. → No — it is specific conduct: proceed to Gate 2.
GATE 2 Is it 'sexual activities' under s 342? — and note the two-concept trap
Is the material evidence as to the sexual activities of the complainant, other than those to which the charge relates? Section 342 is the gateway provision and its reach is deliberately wide. It catches cross-examination and the adducing of evidence; it catches sexual activities whether consensual or non-consensual; and it carves out only those activities to which the charge relates. Everything else requires leave. The words "whether consensual or non-consensual" codify on the face of the statute what the High Court decided in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 in relation to s 409B of the Crimes Act 1900 (NSW). Gleeson CJ rejected the argument that a rape shield provision is confined to consensual sexual experience, observing that a consensual/non-consensual distinction would operate invidiously against victims of child sexual abuse. The practical consequence is that evidence that the complainant was previously the victim of sexual abuse by a third party is caught by s 342 and requires leave — a point that catches out practitioners who assume the shield protects only against attacks on a complainant's sexual choices. The trap. Sections 340 and 342 use different language and they are not coextensive. Section 342 controls access and speaks of "sexual activities" — a broad, conduct-based concept covering consensual and non-consensual activity alike. Section 340 defines "sexual history evidence" — a narrower, propensity-flavoured concept limited to being accustomed to sexual activities or having freely agreed to them. Sections 343 and 352 operate only on the narrower s 340 concept. So, material may require leave under s 342 without engaging the s 343 consent-inference bar or the s 352 disposition bar at all. That is precisely the space in which Lancaster and Bloomfield were decided, and articulating it is worth real marks. → Yes: leave is required. Proceed to Gate 3 to identify the forbidden purposes, then to Gate 4 for the machinery. → It relates to the charged activity itself: s 342 is not engaged — the carve-out is express. But check s 41 of the Evidence Act 2008 (improper questions) and, where the source is a counselling or health record, Division 2A of the Evidence (Miscellaneous Provisions) Act 1958.
GATE 3 Screen out the two forbidden purposes (ss 343 and 352(a))
Is the evidence being deployed, in substance, as propensity to consent or as general sexual disposition? Two provisions kill an application before the s 349 balancing is ever reached, and they must be addressed head-on in any answer. Propensity to Consent: Section 343 provides that sexual history evidence is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates. This is an absolute purpose bar, not a discretion. General Sexual Disposition: Section 352(a) provides that sexual history evidence is not to be regarded as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition. Because s 349 requires substantial relevance to a fact in issue, s 352(a) operates as a deeming provision that forecloses the s 349 gateway wherever disposition is the only pathway to relevance. These are reinforced substantively for conduct on or after 30 July 2023 by Crimes Act 1958 s 36(3): a person does not consent to an act just because they consented to a different act with the same person, the same act with the same person at a different time or place, the same act with a different person, or a different act with a different person. → The real purpose is propensity or disposition: refuse. Section 343 bars it outright and s 352(a) denies it the substantial relevance s 349 requires. Say so and stop. → The purpose is something else: identify that purpose precisely and proceed to Gate 4. Vague purposes fail; the purposes that succeed are set out in section 4 of this sheet.
GATE 4 The machinery — how leave is actually sought (ss 344–348)
Form (s 346). The application must be in writing and must set out, for cross-examination, the initial questions sought to be asked, the scope of the questioning sought to flow from those initial questions, and how the evidence has substantial relevance to facts in issue or why it is a proper matter for cross-examination as to credit. For an application to adduce evidence, the application must identify the evidence and set out how it has substantial relevance to facts in issue. The requirement to nominate the questions and the anticipated scope is a real constraint: an application drafted at the level of "cross-examination about the complainant's prior sexual conduct" does not comply with s 346(2)(a)–(b) and invites refusal on that ground alone. Timing (s 344). Summary hearing: file with the Magistrates' Court and serve on the informant under s 392 at least 7 days before. Pre-trial cross-examination under a s 198A order, or limited preparatory cross-examination under a s 198B order: file with the County or Supreme Court and serve on the DPP at least 7 days before the cross-examination. Trial: file with the County or Supreme Court and serve on the DPP at least 14 days before the trial (or before a special hearing). Sentencing hearing: at least 7 days before. Relief from the rules (ss 345 and 347). The court may hear an out-of-time application, and may waive the writing requirement, if it is in the interests of justice to do so — the standard in each case. This is the route when the forensic foundation emerges only from material produced mid-trial. Hearing (s 348). The application must be heard in the absence of the jury (if any) and, if the accused so requests, in the absence of the complainant. Note the asymmetry: exclusion of the jury is automatic; exclusion of the complainant depends on an accused's request.
GATE 5 The leave test itself (s 349), filtered through s 352
Section 349 — the operative test. In the course of a summary hearing or trial, the court must not grant leave under s 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to — - whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions the complainant is likely to be asked; and - the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and - the need to respect the complainant's personal dignity and privacy; and - the right of the accused to fully answer and defend the charge. The structure matters. There are two cumulative conditions — substantial relevance to a fact in issue and interests of justice — and the four matters in (a)–(d) are mandatory considerations feeding the interests-of-justice limb, not a separate test. Limb (d) is the accused's only real counterweight and should be argued expressly in every application. Section 352 — the relevance filter. Sexual history evidence is not to be regarded: - as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or - as being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant. The relationship between them, stated correctly. Section 352 is not a second gateway sitting beside s 349; it is a deeming provision that constrains how s 349 may be satisfied. Section 352(a) removes disposition as a route to substantial relevance. Section 352(b) governs the credit pathway only, and sets a demanding threshold — special circumstances such that confidence in the reliability of the complainant's evidence would be likely materially impaired. The note appended to s 349 says exactly this: "Section 352 limits the relevance of sexual history evidence." Why the credit route is structurally weak. Credit is not, of itself, a fact in issue — the facts in issue are the elements of the offence, the basis of complicity and any defence raised. Evidence going only to credit therefore does not satisfy the first limb of s 349 on its own terms, and must instead be squeezed through the narrow s 352(b) aperture. That is why the successful applications are all reframed as going to a fact in issue: reliability of identification in Lancaster, the inferential foundation for the defence case in Bloomfield, the source of sexual knowledge in Irwin and Coleman. Section 342 binds the prosecution too. The provision is expressed as a bar on the court admitting any evidence as to the complainant's sexual activities. Where the Crown seeks to lead prior sexual activity between the complainant and the accused as relationship or tendency evidence (ss 97 and 101 Evidence Act 2008; R v Bauer (2018) 266 CLR 56; [2018] HCA 40; HML v The Queen [2008] HCA 16), s 342 leave is required in addition to the tendency gateway. Practitioners consistently treat s 342 as a defence-only provision; it is not. The strategic consequence. Wherever the material can be framed as going to a fact in issue, frame it that way and stay out of s 352(b) altogether. The credit route is harder, and — because s 352 operates only on "sexual history evidence" as narrowly defined in s 340 — material that is caught by s 342 but falls outside s 340 does not attract s 352 at all. This is the analytical move that won Lancaster and Bloomfield.
GATE 6 After the ruling — reasons (s 351) and the appeal route (s 295)
If leave is granted (s 351): the court must state the reasons in writing and cause them to be entered in the records of the court. Failure to comply does not invalidate the order — so a s 351 breach is not, by itself, a ground of appeal, though it will complicate appellate review of the ruling. If leave is refused: a refusal of s 342 leave is an interlocutory decision within the meaning of s 3 of the Act, and the challenge runs through a three-step route. Step one — certification (s 295(3)): the party must apply to the trial judge to certify. Under s 295(3)(a), where the decision concerns the admissibility of evidence, the judge must certify that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. Under s 295(3)(b), where the decision does not concern admissibility, the judge must certify that it is otherwise of sufficient importance to the trial to justify interlocutory determination. Step two — review of a refusal to certify (s 296): if the judge declines to certify, the party may apply to the Court of Appeal for review, which proceeds on House v The King (1936) 55 CLR 499 principles and requires a specific error of principle or a result outside the range reasonably open. Step three — leave to appeal (ss 295(2), 297): if certification is obtained, leave is granted only where the Court of Appeal is satisfied it is in the interests of justice to do so, and the Court will ordinarily refuse leave in respect of routine evidentiary rulings absent a clear error of principle that may lead to a miscarriage. In Hurst (a pseudonym) v The Queen [2021] VSCA 3 the Court proceeded on the footing that a s 342 refusal fell to be certified under the more forgiving s 295(3)(b). That is no longer the law. In Hameed (a pseudonym) v The King [2026] VSCA 48 (25 March 2026) a five-judge bench (Emerton P, Walker, Orr and Kidd JJA and Croucher AJA) held that a decision refusing leave to adduce evidence of a complainant's sexual activities is a decision that "concerns the admissibility of evidence", and that Hurst is plainly wrong to the extent it suggests otherwise. Certification therefore falls under s 295(3)(a). The practical effect is counter-intuitive and is the single most examinable development in this area. Because s 295(3)(a) asks whether the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case, and because defence-adduced sexual history evidence by definition does not strengthen the prosecution case, a refusal of s 342 leave will almost never be certifiable. In Hameed itself the application for review of the refusal to certify was refused and the application for leave to appeal was dismissed as incompetent. In practice, a s 342 refusal must now be preserved and run as a ground on a conviction appeal, not litigated interlocutorily.
3. Section 340 vs section 342 — the distinction that decides most questions¶
| s 342 — "sexual activities" | s 340 — "sexual history evidence" | |
|---|---|---|
| Function | Controls access: what may be asked or adduced without leave. | Defines the class on which the substantive bars in ss 343 and 352 operate. |
| Scope | Sexual activities of the complainant, whether consensual or non-consensual, other than those to which the charge relates. | Evidence relating to or tending to establish that the complainant was accustomed to engaging in sexual activities, or had freely agreed to sexual activity with the accused or another person. |
| Covers prior abuse of the complainant? | Yes — expressly, and confirmed by HG v The Queen. | Not naturally — being the victim of abuse is neither being "accustomed to" nor "freely agreeing to" sexual activity. |
| Consequence | Leave under s 342 is required, and s 349 governs the grant. | If the material falls outside s 340, the ss 343 and 352 bars are not engaged and the application is decided on s 349 alone. |
| Why it matters | You cannot get to the evidence without a s 342 application, however innocuous the purpose. | Framing the material as outside s 340 removes the disposition bar and the credit threshold — the winning argument in Lancaster and Bloomfield. |
4. Purposes that succeed and purposes that fail¶
The reported outcomes cluster tightly. Applications framed around the complainant's character fail; applications framed around a specific, articulable alternative explanation for a fact the prosecution must prove succeed. The table below maps each recognised purpose to the authority that establishes it and to the sub-limb of s 349 or s 352 it engages.
| Purpose | Authority | Route through the Division |
|---|---|---|
| Misattribution or transference — the complainant honestly but erroneously attributes prior third-party abuse to the accused | Lancaster v The Queen [2014] VSCA 333; (2014) 44 VR 820 (Nettle and Redlich JJA, Almond AJA); appeal allowed | s 342 leave; substantial relevance to a fact in issue under s 349. Prior sexualised behaviour recorded in subpoenaed DHS files supported an expert opinion (Dr Gibbs) that the child complainant had been exposed to prior sexual abuse by a third party, raising a real possibility of misattribution and going directly to the reliability of her identification of the offender. At [54] the Court held the defence need not prove the prior abuse — it was enough that the jury could not exclude misattribution as a reasonable possibility. Applied Callinan J in Farrell v The Queen. Not a s 352(b) special-circumstances case. |
| Prior complaints of sexual abuse of a similar kind | Bloomfield (a pseudonym) v The King [2025] VSCA 98 (Emerton P and Kaye JA, 9 May 2025); appeal allowed | ss 342, 346(2), 349. Prior complaints fall within s 342 and require leave, but it is not necessary for the accused to establish the falsity of the prior complaints. Sufficient similarity between the prior complaints and the charged conduct permitted inferential reasoning, and the interests of justice favoured cross-examination. Jackmain (a pseudonym) v R [2020] NSWCCA 150; (2020) 102 NSWLR 847 considered. This is the current Victorian authority on false or similar prior complaints. |
| Alternative source of sexual knowledge (the "how else would she know" inference) | Irwin v The King [2022] VSCA 218; appeal allowed, retrial ordered. Coleman (a pseudonym) v The King [2025] VSCA 250; appeal allowed, retrial ordered | s 342 leave; fact in issue under s 349. Where the prosecution invites the jury to reason that a child complainant could only have acquired the relevant sexual knowledge from the charged offending, evidence of another source of that knowledge is substantially relevant. In both cases the refusal of leave was compounded by a prosecutor's closing address that exploited the resulting gap — the combination, not the refusal alone, produced the miscarriage. |
| Prior sexual activity with the accused | Price (a pseudonym) v The Queen [2022] VSCA 169; appeal allowed | ss 342, 349. Substantial relevance and interests of justice made out. Note the tension with Crimes Act s 36(3)(b) and Jury Directions Act s 47F: leave to adduce the history does not license the propensity-to-consent inference, and a direction under s 47F will follow. |
| Meaning of "sexual activities" — prior conviction connected with sex work | Gutierrez v The Queen [2018] VSCA 270 (leave granted, appeal dismissed); earlier ruling Gutierrez v The Queen [2017] VSCA 228 (leave refused) | ss 340, 342, 343, 349. The leading Victorian case on the meaning of "sexual activities". A complainant's prior conviction for loitering for the purpose of sex work is evidence "as to" her sexual activities within s 342, and was properly excluded under ss 342 and 349 where it lacked substantial relevance and in substance invited the forbidden reasoning that she was the type of person who would consent to sexual activity for material gain (there, avoiding eviction) — engaging s 343 and the s 349(b) risk of arousing discriminatory belief or bias. Distinguishes Bull v The Queen and R v Warrell [1993] 1 VR 671; considers R v Lear [1998] 1 VR 285. |
| Complainant's state of mind / res gestae | Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 — WA statute; comparator only | Prior telephone conversations and expressed fantasies were held not to be evidence of sexual disposition but of the complainant's experiences, directly relevant to her state of mind — her reason for attending the premises — and hence to consent on the specific occasion. The reasoning transfers usefully to the s 340 / s 342 distinction, but the governing provisions were ss 36BA and 36BC of the Evidence Act 1906 (WA). |
| Social media conduct suggesting sexual interest | Hurst (a pseudonym) v The Queen [2021] VSCA 3; certification refused | Fails at substantial relevance. Facebook comments and a "like" carried no substantial relevance to a fact in issue. Cites ss 295, 296, 297, 342, 346, 349, 352. Now qualified on the certification point by Hameed. |
| Speculative or unfounded assertions of prior abuse | Roberts v The Queen [2012] VSCA 313 | Fails. A proper and rigorous evidentiary foundation is required before cross-examination about a complainant's prior sexual abuse will be permitted. Fishing is not a purpose. |
| General disposition or propensity to consent | ss 343 and 352(a); Crimes Act s 36(3) | Barred outright. Never framed this way in a competent application. |
Comparator, correctly labelled: Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 is a High Court decision on ss 36BA and 36BC of the Evidence Act 1906 (WA), concerning evidence as to the disposition of the complainant and res gestae. It is useful by analogy and was distinguished in Gutierrez, but it is not Victorian authority on Division 2 and should be cited as a comparator, not as the governing rule.
5. The overlay you must not miss — Division 2A confidential communications¶
Most sexual history applications in practice are built out of subpoenaed counselling, psychology or medical records. Those records are governed by a separate and cumulative regime: Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), ss 32AB–32G, headed "Confidential communications and protected health information". Section 32G(1)© provides expressly that nothing in Division 2A affects the operation of Part 8.2 of the Criminal Procedure Act 2009. The two regimes therefore run in parallel and** both must be satisfied: Division 2A to get the material, s 342 to use it.
| Element | Provision | Content |
|---|---|---|
| What is protected | ss 32B, 32BA | A confidential communication is a communication, oral or written, made in confidence by a person against whom a sexual offence has been or is alleged to have been committed, to a registered medical practitioner or counsellor (a person treating another for an emotional or psychological condition), in the course of that relationship, whether before or after the alleged offending. Since No 38/2022 the Division also protects protected health information in criminal proceedings. A communication may still be confidential though made in the presence of a third party whose presence facilitated communication or furthered treatment (s 32B(2)). |
| The prohibition | s 32C | A party cannot seek to compel production, a document is not to be produced, and evidence is not to be adduced, if it would disclose protected material — unless the court grants leave and the applicant has complied with the notice requirements in s 32CA or s 32CC that have not been waived. Section 32C(7) makes such evidence inadmissible. |
| The leave test | s 32D(1) | The court must not grant leave unless satisfied on the balance of probabilities that (a) the evidence will have substantial probative value to a fact in issue; (b) other evidence of similar or greater probative value concerning those matters is not available; and © the public interest in preserving confidentiality and protecting the protected person from harm is substantially outweighed by the public interest in admitting evidence of substantial probative value. |
| Notice condition (criminal) | s 32D(1A) | In a criminal proceeding leave additionally requires that the protected person is aware of the application and has had a reasonable opportunity to consider obtaining legal advice, or that all reasonable steps to locate them failed, or that they consented in writing to not being notified, or that notice has already been given under s 32CD in the same proceeding for the same material. Sections 32CD–32CF also allow the protected person to appear and make submissions, including by confidential statement (s 32CE(2)). |
| Mandatory factors | s 32D(2) | (a) likelihood, nature and extent of harm to the protected person; (b) the extent to which the material is necessary to allow the accused to make a full defence; © the need to encourage victims to seek counselling and the risk of discouraging them or diminishing counselling's effectiveness; (d) whether the party seeking the material is doing so on the basis of a discriminatory belief or bias; (e) whether the protected person objects; (f) the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to privacy. |
| Machinery | s 32D(3)–(5) | The court may grant leave as to part only of the material and may control the manner of disclosure. The court must state its reasons for giving or refusing leave. If leave is refused, that fact must not be referred to in the presence of the jury. |
| Exceptions to the privilege | s 32E | The Division does not prevent production or adducing of evidence: with the consent of the protected person (or, if under 14, an appropriate person); of information acquired by a registered medical practitioner by physical examination in relation to the alleged offence; of communications or documents prepared for the purposes of the legal proceeding; of communications or documents made in furtherance of a fraud or offence; or of a communication evidencing wilful and corrupt perjury. If consent is withheld, that fact must not be referred to before the jury (s 32E(3)). |
| Interaction | s 32G | Nothing in Division 2A affects the operation of s 28 of that Act; ss 41, 103 or 127 of the* Evidence Act 2008; Division 1C of Part 3 of the Sentencing Act 1991; or Part 8.2 of the* Criminal Procedure Act 2009. |
The Victorian privilege is qualified, not absolute — including at committal
Unlike New South Wales, South Australia, the ACT and the Northern Territory, where the sexual assault communications privilege is absolute in committal or preliminary proceedings, Victoria has a qualified privilege at every stage: leave under s 32D is available in any legal proceeding, and the word "committal" appears nowhere in Division 2A. Do not import the interstate rule. Separately, note that the 2025 committal reforms have curtailed cross-examination of complainants in sexual offence matters, which is a different point and a common source of confusion.
Victorian authority on Division 2A: Todd (a Pseudonym) v The Queen [2016] VSCA 29 (refusal of leave to compel production under s 32C; refusal to certify under s 295(3); no error); Baker (a pseudonym) v The Queen [2015] VSCA 323 (ss 32C and 32D applied; leave to appeal refused); Bowers (a pseudonym) v The Queen [2020] VSCA 246 (application for leave to issue a subpoena to the complainant's treating psychologist refused as speculative; procedural fairness); Duncan (a pseudonym) v The King [2024] VSCA 27 (interlocutory decision in a pending trial involving a repressed-memory claim); and in the civil sphere K R v B R & Anor [2018] VSCA 159 (leave required to issue a subpoena for documents disclosing confidential communications to a treating psychiatrist).
6. Sexual history evidence on a plea (s 350)¶
Section 350 is regularly missed. It applies a different test at the sentencing hearing. The court must not grant leave under s 342 unless satisfied that the evidence has substantial relevance to the issue of appropriate sentence and the offender has either pleaded guilty to all sexual offences charged against them or been found guilty of all such offences. In determining substantial relevance to sentence, s 350(2) requires the court to have regard to (a) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment the complainant may experience, in view of the complainant's age and the number and nature of the questions likely to be asked; and (b) the need to respect the complainant's personal dignity and privacy. Note what is absent from the sentencing list: there is no jury-bias factor (obviously) and, more significantly, no equivalent of s 349(d) — the accused's right to fully answer and defend. The offender's forensic interest carries materially less weight on a plea. Section 352 still applies, and the application must be filed and served at least 7 days before the sentencing hearing (s 344(d)).
7. Jury directions — the correct current provisions¶
Directions in sexual offence trials are governed by Part 5 of the Jury Directions Act 2015 (Vic), not by the Crimes Act. Part 5 is organised into Division 1AA (early indication of likely directions, ss 44O–44P), Division 1 (consent and reasonable belief for offences after 1 July 2015, ss 45–47), Division 1A (consent and reasonable belief for offences before, on or after 1 July 2015, ss 47A–47I), Division 2 (delay and credibility, ss 48–52 and 54), Division 3 (differences in the complainant's account, ss 54A–54D), Division 4 (continuation of relationship or communication, ss 54E–54H) and Division 5 (whether the complainant is distressed or emotional, ss 54I–54K).
| Direction | Provision | Content and operation |
|---|---|---|
| Judge's obligation to direct on consent | s 47C | The trial judge must give whichever of the directions in ss 47D–47I the judge considers there are good reasons to give, after hearing submissions from the prosecution and defence. Part 3 (the request-based regime) does not apply to Division 1A (s 47B). Directions may be given before evidence, during the trial or in the summing up, on request or on the judge's own motion, and may be repeated. |
| Other sexual activity — the direct counterpart to sexual history evidence | s 47F | A direction informing the jury that experience shows that "people who do not consent to a sexual act with a particular person on one occasion may have, on one or more other occasions, engaged in or been involved in consensual sexual activity — (a) with that person or another person; or (b) of the same kind or a different kind." This is the direction that follows whenever leave has been granted to adduce prior sexual activity. Inserted by No 38/2022 s 48. |
| Absence of physical injury, violence or threat | s 47D | Counters the assumption that a real complaint is corroborated by injury. |
| Responses to a non-consensual sexual act | s 47E | Informs the jury that people may react differently and there is no typical, proper or normal response, and that people who do not consent may not protest or physically resist. The statutory example is that a person may freeze and not do or say anything. |
| Personal appearance and irrelevant conduct | s 47G | Counters reasoning from clothing, presentation or unrelated conduct. |
| Non-consensual acts occur between all sorts of people | s 47H | Counters relationship-based and stereotype-based assumptions. |
| General assumptions and reasonable belief | s 47I | A belief in consent based solely on a general assumption about the circumstances in which people consent is not a reasonable belief. |
| Delay in complaint | ss 50–52 | Section 50 defines delay in making a complaint to include not pursuing a complaint in a timely manner and not complaining at the first or a subsequent reasonable opportunity. Section 51 prohibits the judge, prosecution and defence from suggesting that complainants as a class are unreliable or less credible (the prohibited-suggestion limbs now expressly include sexual orientation and gender identity), and s 51(2) prohibits suggesting that it would be dangerous or unsafe to convict, or that the evidence should be scrutinised with great care, because of delay. Section 52 sets out the mandatory direction: no typical response; some complain immediately and others never; delay is a common occurrence; and there may be good reasons why a person may not complain or may delay — and since No 38/2022 the judge may give an example of a good reason, which need not be based on the evidence in the trial. |
| Abolition of Kilby and Crofts | s 54 | Abolishes any common law rule requiring the judge to direct that delay or absence of complaint may cast doubt on reliability and that the jury should take that into account. Note 1 to s 54 identifies the abolished rules by reference to Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 and Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427. Both are abolished by the one provision. |
| Differences in the complainant's account | s 54D | The jury must be informed that people may not remember all the details of a sexual offence or describe it the same way each time, that trauma may affect different people differently, and that it is for the jury to decide the significance of any differences and whether to believe all, some or none of the evidence. |
| Post-offence relationship or communication | s 54H | Where there is evidence the complainant continued a relationship or communication with the accused after the alleged offending, the jury must be informed that there is no typical or normal response, that some victims never make contact again while others continue a relationship or communication, and that there may be good reasons for doing so — with examples permitted that need not be based on the evidence in the trial. Amended by No 26/2023 s 61. |
| Complainant distressed or emotional while giving evidence | s 54K | Trauma affects people differently; some complainants display obvious distress and others do not; and a truthful or an untruthful account may be given either with or without displays of emotion. |
| Forensic disadvantage | ss 39–40 | Not s 53 — there is no s 53 in force. A significant forensic disadvantage direction is available only on defence request under s 12, only where the judge is satisfied the accused has experienced a significant forensic disadvantage, and s 39(3)(b) prohibits telling the jury that it would be dangerous or unsafe to convict or that the complainant's evidence should be scrutinised with great care. Section 40 abolishes the corresponding common law (Longman) rules. |
Substantive consent law, for conduct on or after 30 July 2023: Crimes Act 1958 s 36(1) — consent means free and voluntary agreement; s 36(2) — a person does not consent just because they do not resist verbally or physically; s 36(3) — a person does not consent just because they consented to a different act with the same person, the same act with the same person at a different time or place, the same act with a different person, or a different act with a different person. Section 36AA contains the sixteen circumstances in which a person does not consent (substituted by No 38/2022 s 8), and s 36A carries the affirmative consent standard: a belief in consent is not reasonable if, within a reasonable time before or at the time of the act, the accused did not say or do anything to find out whether the other person consented. Sections 37A and 37B set out the objectives and guiding principles for Subdivisions (8A)–(8G).
8. Other exclusionary levers that survive Division 2¶
• Evidence Act 2008 s 41 (improper questions) — the court must disallow an improper question or improper questioning, or inform the witness it need not be answered. Improper questioning includes questioning that is misleading or confusing; unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; put in a belittling, insulting or otherwise inappropriate manner or tone; or that has no basis other than a stereotype. The duty applies whether or not an objection is raised (s 41(7)). A question is not improper merely because it challenges truthfulness or requires the witness to discuss a distasteful or private subject (s 41(5)). Failure to disallow does not affect admissibility of the answer (s 41(8)). Even where s 342 leave is granted, s 41 continues to govern the manner and scope of the questioning — and it is preserved expressly by s 32G(1)(ba) of the Evidence (Miscellaneous Provisions) Act 1958.
• Evidence Act 2008 ss 102–108 (the credibility rule) — leave under s 342 does not dispense with the credibility rule. Cross-examination as to credit still requires substantial probative value under s 103, and s 106 governs rebuttal. A s 342 application that succeeds on the credit limb of s 352(b) must still clear s 103.
• Evidence Act 2008 ss 135 and 137 — the general and mandatory exclusions remain available. Spencer (a pseudonym) v The King [2026] VSCA 82 is a recent illustration of s 342 leave being granted while the photographic and video material was nonetheless excluded under s 41.
• Evidence Act 2008 s 127 — religious confessions privilege, also preserved by s 32G(1)(ba).
• Alternative arrangements and ground rules hearings — Part 8.2 of the Criminal Procedure Act 2009 contains the alternative arrangements and protected witness provisions (Division 3 begins at s 353), which will shape how any permitted cross-examination is actually conducted.
9. Answer template — how to run this in an exam or a written application¶
• Step 1 — State that the proceeding relates to a charge for a sexual offence, so Division 2 of Part 8.2 applies to all complainants and applies despite any other law (s 339).
• Step 2 — Ask whether the material is sexual reputation. If so, s 341 is an absolute bar and the analysis ends.
• Step 3 — Ask whether the material is evidence as to the complainant's sexual activities, consensual or non-consensual, other than the charged activity. If so, leave under s 342 is required, and HG v The Queen confirms the reach over prior non-consensual conduct.
• Step 4 — Separately ask whether the material also falls within the narrower s 340 definition of sexual history evidence. If it does not, say so expressly — the ss 343 and 352 bars are not engaged and the application is decided on s 349 alone.
• Step 5 — Identify and discard any propensity purpose (s 343; s 352(a); Crimes Act s 36(3)), then articulate the specific permitted purpose and tie it to a fact the prosecution must prove.
• Step 6 — Work the machinery: written application setting out the initial questions and the anticipated scope and the basis of relevance (s 346), filed and served in time (s 344) or with an interests-of-justice extension or waiver (ss 345, 347), heard without the jury and, on request, without the complainant (s 348).
• Step 7 — Apply s 349 as two cumulative conditions — substantial relevance to a fact in issue and interests of justice — and work each of the four mandatory factors, arguing (d), the right to fully answer and defend, hardest.
• Step 8 — Apply the s 352 filter, and explain whether you are on the fact-in-issue route (preferred) or the credit route (which requires special circumstances materially impairing confidence in reliability).
• Step 9 — Deal with Division 2A separately and cumulatively if the source is a counselling, psychology or health record, and note that s 32G(1)© preserves Part 8.2 so both regimes must be satisfied.
• Step 10 — Address the consequences: reasons in writing if leave is granted (s 351); the s 47F direction and any other Division 1A directions that follow; and, if leave is refused, that Hameed now routes certification through s 295(3)(a), so the point is realistically preserved for a conviction appeal rather than an interlocutory one.
• Step 11 — If the question is a plea, use s 350 instead of s 349 and note the absence of any right-to-defend factor.
10. Corrections carried into this sheet¶
Four propositions in wide circulation are wrong and have been corrected here. They are set out expressly because each is the kind of error that reads as a competence failure.
| Proposition as commonly stated | Status | Correct position |
|---|---|---|
| Allan v R [2017] NSWCCA 6 holds that evidence a complainant lied or fantasised about prior sexual assaults is not sexual history evidence | Reversed | Allan decides the opposite. Ground 4 — that the trial judge wrongly refused, under s 293 of the Criminal Procedure Act 1986 (NSW), to permit cross-examination on previous false accusations — failed, and Campbell J confirmed that evidence a complainant has lied or fantasised about previous sexual experiences was excluded by the shield. The Victorian authority to use instead is Bloomfield (a pseudonym) v The King [2025] VSCA 98; in NSW, Jackmain (a pseudonym) v R [2020] NSWCCA 150; (2020) 102 NSWLR 847 (and note s 293 has been renumbered s 294CB). |
| Lancaster established the "special circumstances" requirement under s 352(b) | Corrected | Lancaster v The Queen [2014] VSCA 333; (2014) 44 VR 820 construed s 342 and turned on substantial relevance to a fact in issue — the reliability of the complainant's identification of the offender. The Court did not decide the case under s 352(b), and "special circumstances" governs only the credit pathway. The missing year is 2014. |
| Crimes Act 1958 ss 37 and 37AAA carry the consent jury directions, enforced via s 4 of the Jury Directions Act 2015 | Repealed | Section 37AAA operated only from 1 January 2008 to 30 June 2015. The substantive propositions are now in Crimes Act s 36(2)–(3) and the circumstances in s 36AA; the directions are in Jury Directions Act 2015* Part 5, principally ss 47C–47I for consent and ss 50–52 and 54 for delay. Sections 37, 37A and 37B of the* Crimes Act have been re-used for unrelated subject matter. |
| Division 2A of the Evidence (Miscellaneous Provisions) Act 1958 comprises ss 32B–32G and confers an absolute privilege at committal | Corrected | The Division runs ss 32AB–32G (32AB guiding principles, 32B definitions, 32BA protected health information, 32C exclusion, 32CA–32CF notice and submissions, 32D leave, 32E limitations, 32F ancillary orders, 32G operation), following the insertions made by No 38/2022 Pt 6. The privilege is qualified at every stage in Victoria, including committal — the absolute-at-committal rule is the NSW, SA, ACT and NT position. |
11. Currency watch¶
• 1 January 2023 — the jury directions package of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (No 38/2022) commenced, inserting Division 1A (ss 47A–47I) of Part 5 of the Jury Directions Act 2015 and amending ss 51 and 52. Division 1A applies to offences committed before, on or after 1 July 2015, so a 2026 trial of a 2010 offence attracts these directions.
• 30 July 2023 — the affirmative consent reforms commenced: new Crimes Act ss 36 and 36AA and amended s 36A. These apply prospectively only, to conduct committed on or after that date. Also on this commencement, s 341 of the CPA changed from "chastity" to "sexual reputation" (No 38/2022 s 73), and Division 2A of the Evidence (Miscellaneous Provisions) Act 1958 was extended to protected health information with the ss 32CA–32CF notice machinery (No 38/2022 Pt 6).
• No 26/2023 — inserted Jury Directions Act s 47A(2)–(4), extending Division 1A to sexual offences where absence of consent is not an element, and amended s 54H.
• 28 December 2025 — the Justice Legislation Amendment (Committals) Act 2025 (No 5/2025) repealed s 344(b) of the CPA and removed "committal proceeding" from the heading and text of s 349 (ss 18–19). Division 2 now speaks to summary hearings, s 198A/198B pre-trial cross-examination, trials, special hearings and sentencing hearings.
• 25 March 2026 — Hameed (a pseudonym) v The King [2026] VSCA 48, five-judge bench: a refusal of s 342 leave concerns the admissibility of evidence, so certification is assessed under s 295(3)(a); Hurst is plainly wrong to the extent it suggests otherwise. Practical effect: interlocutory appeals against s 342 refusals are effectively unavailable.
• No 1/2026 — amended Evidence (Miscellaneous Provisions) Act 1958 s 32B (definition of parent, by reference to the Youth Justice Act 2024) and s 32D(1A)(b) and (d). Confirm the current text of the notice conditions before relying on them in a contested application.
Two items to re-check before you rely on them. First
, the Jury Directions Act 2015 was consolidated at Version 016 (30 September 2025) and Version 017 (26 April 2026); the Part 5 structure is unchanged as between those versions, but in-section textual amendments in Version 017 were not able to be diffed. Second, Coleman (a pseudonym) v The King* [2025] VSCA 250 and Spencer (a pseudonym) v The King [2026] VSCA 82* are recent and were confirmed by catchword rather than by full reading; treat their propositions as reliable in outline and read the judgments before relying on a pinpoint.