Section 37AAA(d) of the Crimes Act 1958 (Vic) does not relieve the prosecution of its burden of proving non-consent; it requires positive evidence that the complainant did not say or do anything to indicate free agreement at the time of the sexual act. The absence of evidence on this point does not establish non-consent unless the complainant's account, if accepted, leads inexorably to the conclusion that there was no free agreement. Where a trial judge limits complaint evidence to credibility under s 136 of the Evidence Act 2008 (Vic), the preconditions under ss 108(3)(b) and 192 should not be circumvented.
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