Statute Details
- Title: Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018
- Act Code: EA1893-R1
- Type: Subsidiary Legislation (SL)
- Authorising Act: Evidence Act 1893 (referenced in the legislative materials as linked to section 154A)
- Key Provisions (from extract): Rule 2 (Definition of “sexual behaviour”); Rule 3 (Restrictions on questions and evidence); Rule 4 (Application for permission of court)
- Citation: Rule 1 provides the short title: “Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018”
- Legislative History (high level): Made on 31 Oct 2018 (SL 726/2018); amended by S 257/2022; revised edition issued 18 Dec 2024 (2024 RevEd); current version indicated as at 27 Mar 2026
What Is This Legislation About?
The Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018 (“the Rules”) implement a targeted protection for alleged victims in criminal proceedings involving sexual offences and child abuse offences. In practical terms, the Rules limit when an accused person (or their counsel) may question an alleged victim, or adduce evidence, about the alleged victim’s prior sexual behaviour or physical appearance.
This is commonly understood as a “rape shield” style framework. The underlying policy is to prevent trials from being derailed by irrelevant or prejudicial material about a complainant’s sexual history or appearance, which can distract the court and unfairly influence perceptions of credibility. The Rules do not create an absolute bar; instead, they require the accused to obtain the court’s permission before such lines of questioning or evidence are permitted.
Accordingly, the Rules strike a balance between two competing interests: (i) the accused’s right to test the prosecution case and present a defence, and (ii) the need to protect alleged victims from invasive, humiliating, or legally irrelevant inquiries that do not genuinely assist the court in determining the issues in dispute.
What Are the Key Provisions?
Rule 2: Definition of “sexual behaviour” is the foundation for the restrictions. The Rules define “sexual behaviour”, in relation to an alleged victim of an offence, as:
- Inclusive limb: “any sexual behaviour or other sexual experience of the alleged victim involving any person other than the accused charged with the offence”; and
- Exclusion limb: it “excludes anything alleged to have taken place as part of the event that is the subject matter of the charge against the accused.”
This definition is crucial for practitioners because it draws a line between (a) sexual conduct or experiences that are not part of the charged incident, and (b) matters that are part of the incident itself. Evidence about the alleged victim’s conduct during the charged event may be treated differently from evidence about prior or separate sexual experiences.
Rule 3: Restrictions on questions and evidence sets out the operative limits in criminal proceedings where the accused is charged with committing a sexual offence or child abuse offence. The restrictions apply during cross-examination and in the adducing of evidence by or on behalf of the accused.
Under Rule 3, two categories are restricted, unless the court grants permission:
- Rule 3(a) – Questions: “except with the permission of the court, no question may be asked of the alleged victim of the offence, during cross-examination by or on behalf of the accused, about the alleged victim’s sexual behaviour or physical appearance.”
- Rule 3(b) – Evidence: “except with the permission of the court, no evidence may be adduced by or on behalf of the accused about the alleged victim’s sexual behaviour or physical appearance.”
Several practical points follow from this wording:
- It covers both questioning and evidence. The restriction is not limited to cross-examination; it also prevents the defence from introducing material through other evidential routes (for example, witness testimony, documents, or other forms of proof) about sexual behaviour or physical appearance.
- It is triggered by the subject matter of the charge. The Rules apply when the accused is charged with a sexual offence or child abuse offence. This means the defence must consider the Rules early in case strategy, not only at the trial stage.
- “Physical appearance” is expressly included. Even where the material is not strictly “sexual behaviour”, the Rules extend to questions and evidence about physical appearance. This can include, depending on the facts, matters such as clothing, body characteristics, or other appearance-related topics that may be argued to be relevant to consent, credibility, or alternative explanations—yet are still within the restricted categories.
Rule 4: Application for permission of court provides the procedural mechanism for the defence to seek leave to ask restricted questions or adduce restricted evidence. Rule 4(1) states that an application for permission under Rule 3(a) or (b) is to be heard in the absence of the alleged victim. This is designed to reduce further trauma and avoid exposing the alleged victim to the prospect of invasive questioning.
Rule 4(2) sets the substantive test: the court may grant permission only if it would not be in the interests of justice to disallow the asking of the question or adducing of the evidence. In other words, the default position is disallowance; permission is granted only where the interests of justice require it.
For practitioners, this “interests of justice” formulation is likely to be assessed through factors such as relevance, probative value, necessity for the defence, and the risk of prejudice, distraction, or unfair stereotyping. While the extract does not list factors, the structure of the Rules indicates that courts will be cautious: the restrictions are designed to prevent unfair or irrelevant sexual-history reasoning from influencing the trial.
How Is This Legislation Structured?
The Rules are structured as a short set of provisions:
- Rule 1 (Citation): provides the short title.
- Rule 2 (Definition of “sexual behaviour”): defines the key term and clarifies the boundary between sexual conduct involving persons other than the accused and conduct that forms part of the charged event.
- Rule 3 (Restrictions on questions and evidence): establishes the substantive restrictions for sexual offence and child abuse offence proceedings, covering both cross-examination questions and the adducing of evidence about sexual behaviour or physical appearance.
- Rule 4 (Application for permission of court): sets out the procedure (hearing without the alleged victim) and the threshold test (permission only where it would not be in the interests of justice to disallow).
Although the extract is brief, the Rules are designed to operate as a focused evidential gatekeeping mechanism. They do not replace general rules of evidence; rather, they add an additional layer of restriction for a sensitive category of material.
Who Does This Legislation Apply To?
The Rules apply in criminal proceedings where the accused is charged with committing a sexual offence or a child abuse offence. The restrictions operate specifically in relation to the alleged victim of the offence.
For the defence, the Rules bind counsel and the accused in how they conduct cross-examination and how they seek to introduce evidence. For the prosecution and the court, the Rules create an additional compliance and case-management obligation: where the defence intends to raise sexual behaviour or physical appearance, the court must ensure the procedural permission requirement is satisfied.
Why Is This Legislation Important?
These Rules are important because they directly affect how trials are conducted in sensitive criminal cases. They reduce the likelihood that a complainant’s credibility will be attacked through sexual-history or appearance-based insinuations that may be legally irrelevant or disproportionately prejudicial. This can improve the fairness and focus of proceedings by keeping attention on the charged conduct and the issues the court must decide.
From a practitioner’s perspective, the Rules have immediate strategic consequences. Defence counsel must identify early whether any proposed line of questioning or evidence falls within “sexual behaviour” or “physical appearance”. If it does, counsel should prepare to make a permission application under Rule 4. Waiting until trial may lead to practical difficulties, including delays, adverse rulings, or the inability to introduce evidence that could have been sought with proper procedural preparation.
For prosecutors, the Rules provide a clear basis to object to improper cross-examination or evidence. They also support court management by enabling the court to conduct permission hearings in the absence of the alleged victim, thereby protecting the alleged victim from unnecessary exposure while still allowing the defence to seek leave where genuinely justified.
Finally, the Rules reinforce a broader evidential principle: relevance and fairness matter. Even where the defence believes the material is helpful, the court must assess whether allowing it is consistent with the interests of justice. This makes the permission stage a critical battleground in sexual offence and child abuse prosecutions.
Related Legislation
- Evidence Act 1893 (notably the legislative linkage to section 154A, as indicated in the legislative materials)
Source Documents
This article provides an overview of the Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the official text for authoritative provisions.