S293

Gleeson CJ

At 544

I agree that the material which the cross-examiner wanted to put to the claimant, as to her having sexual intercourse with her boyfriend about an hour after the alleged offence had been committed by the appellant, could have been regarded by a jury as having a bearing upon the central issue of fact at the trial, and was therefore relevant. The question is whether that line of cross-examination was excluded by s 409B. At the trial, the resolution of that question was regarded as turning upon s 409B(3)(a), and, in particular, whether what took place between the complainant and her boyfriend could be said to be part of a connected set of circumstances in which the alleged rape was committed.

For my part, I see no difficulty in regarding, as one connected set of circumstances, the events of the evening in question including the return of the complainant from the hotel to the house, her falling asleep, her alleged assault by the appellant, her getting up to make a drink, her meeting of her boyfriend when he returned from the hotel, and her going to bed with her boyfriend.

Mahoney JA

At 544 and 545

On the evening of 18 August 1989, the appellant Geoffrey Michael Morgan and a young lady some nineteen years of age (to whom I shall refer as “the complainant”) were together in a house in East Richmond. The following day, the complainant complained to her father that Mr Morgan had had intercourse with her without her consent. Mr Morgan was charged with three charges all based on what she said occurred that evening. On 25 March 1992, after a trial before a jury, he was convicted of each charge. The trial judge, Saunders DCJ, sentenced Mr Morgan to imprisonment: on the first count to a minimum term of four years to commence on 17 May 1992 and an additional term of one year and six months to commence on 17 November 1998; and on the second and third counts to a fixed term of imprisonment of two years to commence on 17 May 1992.

He has appealed to this Court against both the convictions and the sentences.

In the appeal against convictions, Mr Game, for Mr Morgan, has raised three issues: whether there was a misdirection of the jury in relation to the effect of the appellant's intoxication; whether the judge erred in refusing to allow cross-examination of the complainant in respect of subsequent sexual intercourse by her with another; and whether the conviction was unsafe and unsatisfactory.

At 547

2. Cross-examination as to other sexual intercourse:

Counsel for Mr Morgan at the trial desired to cross-examine the complainant to show that, when Mr Holt returned to the fiat from the hotel later in the evening, he had gone to bed with the complainant, had sexual intercourse with her and had not received any complaint from her of the matter now charged. Evidence was given at the trial that Mr Holt had gone to bed with the complainant and that she had made no such complaint to him. It may be that the jury inferred that, if they went to bed together, sexual intercourse took place. But the trial judge, after argument, had directed that counsel for Mr Morgan not ask questions, of her or others, to show that she had then had intercourse with Mr Holt. His Honour felt constrained to do so by the provisions of s 409B of the Crimes Act 1900.

At 548

I am not satisfied that proof alone that the complainant had sexual intercourse with Mr Holt on that evening would affect her credibility as a witness in the trial. In earlier times, if it was established that a woman had sexual intercourse with a man outside marriage, the conclusion was open that she was a person of such moral character that, special cases apart, she should have limited credibility as a witness: see generally, Gregory v The Queen (1983) 151 CLR 566 at 570 et seq; R v Viola [1982] 1 WLR 1138; [1982] 3 All ER 73; Cross on Evidence, 4th Aust ed, vol 1, par 19070 et seq and the cases there referred to. Such a view was not, I think, always taken of sexual intercourse by a man: as to the extent to which an allegation of adultery was defamatory of a man: see Jones v Jones [1916] 2 AC 481.

At 549

Mr Game, in this submission, pointed to the connection between the fact of sexual intercourse and the other circumstances of the evening. He accepted that the evidence already established that the  complainant and Mr Holt had gone to bed together for the evening, that he was her boyfriend and that she made no complaint of the offence to him. She gave evidence as to why she had made no complaint to him: she referred to the possibility of their relationship ceasing if she told him and to other matters explanatory of  what she had done. But he submitted that if the fact of sexual intercourse were established that would add significance to the fact that she had made no complaint to Mr Holt of what Mr Morgan had done; at least, the jury could have held it to do so. It would be “inconsistent” — as the matter was put — with her having had forced intercourse an hour or two before and not making mention of it until she spoke to her father the following afternoon. And it was suggested in argument, absent explicit evidence as to sexual intercourse, the jury might have concluded that there had been none and that that was because of what the appellant had done to her.

At 551

What precisely subpar (ii) requires is by no means clear. The subparagraph requires that the set of circumstances be “connected” but gives no indication of what is an acceptable connection. The offence and the subsequent intercourse are, of course, connected in that, under the general law, the latter could, in the sense to which I have referred, be probative that the offence did not take place. But it is doubtful whether that is the kind of connection to which par (a) refers. As I have said, the section is drafted upon the assumption that the evidence deemed “inadmissible” would otherwise be admissible. Putting aside admissibility on credit alone (a matter to which par (a) does not appear to be primarily directed) the existence of a connection based on probative value would presumably always exist.

Established principles of construction and of justice require that the court adopt a construction which favours the liberty of the accused. Section 409B may result in an accused person, male or female, being imprisoned where otherwise he or she would not be. To this I shall refer.

Construing the section in this way, I am of opinion that the alleged offence and the subsequent intercourse were part of a connected set of circumstances within subpar (ii). In the sense and with the limitations to which I have referred, the subsequent intercourse could be seen by the jury as making the occurrence of the offence less likely. That could determine the choice between a verdict of guilty and not guilty. The Crown called evidence to show what occurred from before the alleged offence to the complaint made by the complainant to her father on the following afternoon. The evidence of the complaint was admitted on the grounds of “consistency”, that is, to show that the complainant's conduct up to that time was “consistent” with the offence having occurred. Mr Game submitted that the complaint to her father was admitted on the assumption that what took place on the following afternoon was sufficiently connected to the alleged offence to make what she then said to the father relevant in determining the “consistency” of her behaviour. This, he submitted, added significance to the fact that, though she had had intercourse with him, the complainant made no complaint to Mr Holt. In all the circumstances, I am of opinion that there was a “connected set of circumstances” of which the intercourse with Mr Holt was part.

At 552 and 553

I have referred to some of the difficulties of s 409B because of the importance of the mischief with which it seeks to deal, the difficulties which it poses if it is to be applied according to its terms, and the injustice which it may create by such an application.

It was, in my opinion, proper that the court be empowered to deal with the difficulties to a complainant, whether by way of distress, humiliation, embarrassment or the like, which improper, or even proper, crossexamination upon sexual activity and experience might cause. Examination of these matters in a court may be destructive of a complainant: he or she may be damaged both emotionally and socially. No doubt before the section, the possibility of such damage led to complaints not being made and offenders not punished. Personal and social reasons required that a change be made.

I do not overlook the difficulty of determining the remedy to deal with this mischief. But the problems which arise from the remedy which the section has chosen are real. I have referred to the difficulties which face a trial judge applying the section if he applies the section according to its terms. He will no doubt feel it appropriate, in giving weight to the liberty of the subject, to give the term “its probative value” a beneficial construction. He will, perhaps, in weighing the probative value of evidence of other sexual activity, take into account the seriousness of conviction and imprisonment because, having proper regard to the interests of the complainant and his or her distress, he has felt compelled to exclude otherwise important evidence. And it may be that, as part of a proper process of construction, he may feel able to apply the section otherwise than in accordance with its literal terms. But a remedy which requires this is less than fully satisfactory.

At 554

My conclusion is that the trial judge erred in excluding cross-examination upon the sexual intercourse with Mr Holt. Accordingly, the verdict should be set aside. There should be a new trial.

Sully J

At 554

Ihave had the advantage of reading in draft the judgments of both the Chief Justice and Mahoney JA. I agree with the orders proposed by Mahoney JA and with his Honour's reasons for those orders. As well, I agree with respect with the additional comments of the Chief Justice.

Gleeson CJ

At 550

I agree with the judgment of Allen J.

Meagher JA

At 550

I agree with Allen J.

Allen J

At 550

This is an appeal against conviction and, if leave is granted, against severity of sentence.

The appellant had been indicted in respect of sexual offences concerning a 10-year-old girl to whom I refer hereafter simply as T, another girl of about six years of age, and a further young girl, aged about five, to whom I refer hereafter as K. All the offences occurred in the same residential building. There were three counts in respect of T (one under s 61D(1) of the Crimes Act 1900 (NSW) of sexual intercourse by digital penetration and two under s 61E(1) of indecent assault). There were three counts also in respect of the second child (one under s 61E(1) of indecent assault and two under s 61n(1) of sexual intercourse by fellatio). In respect of K, the youngest child, there was only the one count of indecent assault (s 61E(1)). Pursuant to s 31 of the Criminal Procedure Act 1986 (NSW) the trial proceeded without a jury. The trial judge, Judge Freeman, convicted the appellant on each of the charges and proceeded to sentence.

Of the grounds of appeal filed (as amended) three were supported by argument. There is no substance in the remaining grounds. It suffices to direct attention to the three which were argued. They are that:

(1) in relation to the offences involving T his Honour misapplied the provisions of s 409B of the Crimes Act.

(2) in relation to all the offences charged his Honour wrongly admitted evidence of sexual misconduct by the appellant in relation to other girls.

(3) in relation to K his Honour erred in finding that there was a case to answer.

I shall deal separately with each of these contentions.

Section 409B

What counsel for the appellant sought to establish at the trial was, as he expressed it, that T was "a sexual fantasist" who was "all too willing to make allegations". He declared that what he was seeking to elicit by crossexamination of T and by evidence in chief from other witnesses was that during, or shortly after, the period during which the offences charged were alleged to have occurred T claimed that male members of her own family, including her father, were having sexual intercourse with her and that these claims were wholly untrue.

The issue was first raised, at the trial, in cross-examination of T. The period covered by the charges in respect of T, that is between 1 October 1983 and the end of that year, roughly coincided with the period that T lived with her parents in a large downstairs room in the home of the appellant and his de facto wife. It was suggested to her that on the very °first occasion she spoke to the accused and that lady, after she came to live at their home, she informed them that she had "a problem" but was told that if there was a problem she should take it up with her own parents. It was then put to her that the accused went downstairs and that she followed and said to him: "My father and brothers are fucking me." The Crown objected to the question which suggested that T had made that statement as to the sexual conduct of her father and brothers with her. The Crown submitted that the question was one prohibited by s 409B.

At 553 and 554

His Honour indicated that in his opinion both the specific question in cross-examination and the adducing of the evidence in chief were prohibited by s 409B. As to the specific question in cross-examination he said: "Certainly if I were sitting with the jury, I would not permit it at all." He continued, however: "I think that I have a somewhat greater degree of flexibility and freedom in the absence of the jury, and for an abundance of caution I propose to allow the question ... " His Honour indicated that in his view the question went to credit only and accordingly any denial by her would be conclusive.

The question to her in cross-examination having been allowed, T denied that she had said any such thing. In answer to a further question she also denied having made a like statement, on a later occasion, to the accused's married daughter. Thereafter, his Honour permitted evidence to be given by the accused that T had made that statement to him. He rejected, however, questions designed to elicit from the accused's married daughter that T had made a similar statement to her. He also made it clear that he would not admit evidence to be given by any of the persons whom T allegedly had said had had intercourse with her to give evidence in denial of that conduct.

For the reasons which I state later in this judgment I am of the opinion that his Honour was correct in the view which he expressed, despite his formal rulings, that the entirety of the evidence relating to T's assertions in respect of the sexual conduct towards her of members of her family and in respect of the baselessness of those assertions was proscribed by s 409B. It has not been suggested, however, that admitting the cross-examination, to the limited extent that it was permitted, in any way prejudiced the appellant.

I turn first to the admissibility of evidence of persons other than T as to what T said as to her sexual experiences with members of her family. That evidence comes within the ambit of the general proscription by the opening words of s 409B(3): "evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity." It follows that unless this specific evidence is saved by one of the specified exceptions in the subsection, or by some exception which is implicit

although not specified, it was inadmissible…

at 554 and 555

The proscription contained in the opening words of s 409B(3) is directed to what the evidence, if admitted, would disclose or imply. The proscription is not directed to whether it is any part of the forensic purpose sought to be served by the party adducing the evidence to establish that the complainant did, or did not, have the sexual experience or participate in the sexual activity referred to. A nice illustration of the distinction between what is disclosed or implied on the one hand and the forensic purpose sought to be achieved on the other arose in White. The only issue at the trial was whether the complainant had consented to sexual intercourse. The accused was not concerned, in that case, to establish that the complainant's statement as to the circumstances in which her boyfriend had broken off their relationship was true or false. It didn't matter. What mattered was the fact, if proven, that the complainant had said it. It was arguable that if she had said it the fact that she said it may have encouraged the accused to believe that she did not object to intercourse with him. But despite it being irrelevant to the forensic purpose whether the complainant had or had not lost her former boyfriend because he found her in bed with another man the question fell within the proscription contained in the opening words of s 409B. It disclosed or implied that she had engaged in particular sexual activity. In the present appeal the position of the appellant is even less tenable. It is not to the point that what was sought to be established for him at the trial was that T had lied about her sexual experience with members of her family. The evidence, if elicited, would have disclosed or implied that in fact she had not participated in the sexual activity the subject of the lies. The fact of nonparticipation would have been material. It fell within the proscription.

There are the specified exceptions, set out in subs (3), to the application of the proscription. It was conceded on the appeal that none of those specific exceptions apply. That concession was properly made. Counsel for the appellant was forced, accordingly, into the difficult role of having to argue, in substance, that despite the specific exceptions there is to be read into subs (3), by implication, an additional exception to the effect that the proscription does not apply where the evidence relates to whether the complainant by the making of false accusations of sexual misconduct with her by a person or persons other than the accused has manifested such a tendency to fantasise as to sexual conduct as to make her evidence in respect of the sexual conduct of the accused towards her unreliable.

In support of such an implied exception it has been argued that the section was not intended to deprive an accused of the right to place evidence of that nature before the tribunal of fact. It would be, it was put, a gross injustice so to deprive an accused of the chance to prove the unreliability of the complainant in relation to sexual allegations.

At 558

What was said in Parliament undoubtedly supports what, in my judgment, is manifest from the structure of the section itself. It enacts a blanket prohibition. To that prohibition the only exceptions are those specifically stated. There is not any judicial discretion, arising from considerations of justice as perceived by the court in any individual case, to proceed on the basis that some further exception can be read into the section by implication.

…

What there was said by the Minister supports what is clear from the structure of the section. The legislature has endeavoured to foresee all the exceptions which justice requires and to provide specifically for them. It has excluded all others. It has taken the risk that experience will throw up circumstances, which it has failed to foresee and expressly provide for, in which denial of evidence disclosing or implying that the complainant has or may have had sexual experience or lack of sexual experience, or has or may have taken part or not taken part in any sexual activity, results in injustice to an accused at his trial. The wisdom of so Draconic a restriction upon judicial discretion and of so bold an assumption of perfect prescience may be questioned. The courts must apply, however, the law as enacted. If the present case has thrown up an instance of injustice or of possible injustice indicating the desirability of a further exception to the blanket prohibition the exception must be one enacted by Parliament. It is not for the courts to usurp its role.

Gleeson CJ (would dismiss the appeal)

1. Following a trial before Kirkham DCJ, sitting without a jury, the appellant was convicted of two offences of having sexual intercourse with a child under the age of 10 years. He was sentenced to a term of penal servitude. He appealed to the Court of Criminal Appeal against his convictions.

…

5. At the commencement of the trial, counsel for the appellant applied for an adjournment, to enable him to have available, as a witness for the defence, a psychologist, Mr McCombie. The application for adjournment was resisted by the Crown, which disputed the admissibility of Mr McCombie's evidence. Trial counsel sought a ruling on admissibility. The trial judge was provided with a written report prepared by Mr McCombie, together with the transcript of some evidence he had given at the committal proceedings. The argument about the adjournment was conducted upon the common understanding that the written report, considered in the light of certain explanations of its contents given by Mr McCombie at the committal proceedings, contained the evidence upon which the appellant would seek to rely. The trial judge ruled that the evidence was inadmissible and for that reason refused the adjournment. The Court of Criminal Appeal agreed with the trial judge's ruling, and rejected a ground of appeal complaining of the failure to grant an adjournment.

..

11. This led Mr McCombie to the conclusion that, although the complainant had been sexually assaulted, the perpetrator of the assaults had been her natural father and not the appellant. The father had died when the complainant was about four and a half years old. Mr McCombie considered that, although the complainant had been sexually abused, it was at a much earlier age than she was claiming.

…

16. Although the judge's initial response to the report was to doubt its admissibility as opinion evidence the transcript of argument shows that both the Crown prosecutor and trial counsel for the appellant told the judge that they saw the critical issue as involving the application of s 409B of the Crimes Act 1900 (NSW) ("the Crimes Act"). They said that what was sought was a ruling on "a s 409B argument in terms of prior sexual activity involving the complainant." That was the issue addressed by counsel in their submissions on the adjournment application and the related question of the admissibility of Mr McCombie's evidence. Kirkham DCJ's judgment refusing the adjournment was headed: "On application for a ruling under s 409B". The judgment began by stating: "The accused seeks a ruling under s 409B of the Crimes Act." The judge ruled that the evidence was excluded by s 409B. He gave counsel an opportunity to raise any other arguments relevant to the application for adjournment. No such arguments were raised. The trial then proceeded in the absence of Mr McCombie.

…

27. It is difficult to dispute that Mr McCombie's evidence discloses or implies that the complainant has or may have had sexual experience in the form of a sexual encounter with her father or has or may have taken part in sexual activity involving her father, unless the words "sexual experience" and "sexual activity" are given some narrower interpretation than they appear at first sight to bear.

28. One such narrower interpretation was advanced by counsel for the appellant. It was argued that s 409B(3) applies only to prior consensual sexual episodes. Such a possibility had been tentatively suggested by Sperling J in R v PJE, but was rejected by the Court of Criminal Appeal in the present case. Sperling J was a member of the Court, and expressly resiled from his earlier suggestion.

…

35. Kirkham DCJ and the Court of Criminal Appeal were right to hold that s 409B(3) operated to exclude evidence of Mr McCombie's opinion that the complainant had been sexually abused, in 1987, by her natural father, and that it was this abuse which she was actually recounting when she made allegations against the appellant.

….

47. Notwithstanding what was said in Grills v The Queen, counsel argued that a Court of Criminal Appeal may hold a trial to be unfair where relevant evidence is excluded under s 409B, even though such trial is conducted strictly in accordance with the legislature's stipulation as to evidence which may not be received. However, he conceded that no such argument could succeed if the evidence in question were also excluded by s 76 of the Evidence Act. The reason for the difference is not entirely clear, but, because of the concession, the point need not be pursued.

Gaudron J (would allow the appeal on the basis that some of the evidence could have come in stripped of the portion that offended s409B)

56. As earlier indicated, Kirkham DCJ refused the appellant's application for an adjournment on the basis that Mr McCombie's evidence was inadmissible. In his Honour's view, it was rendered inadmissible by s 409B(3) of the Crimes Act 1900 (NSW) ("the Act"). For present purposes, it is sufficient to note that, in certain cases, of which this is one, and, subject to certain exceptions, s 409B(3) excludes evidence of a complainant's sexual history. In this Court, however, it was also contended that the evidence was inadmissible opinion evidence. It is convenient to deal with that issue first.

..

67. As a matter of ordinary language, the general prohibition in s 409B(3) against evidence that a complainant "has or may have had sexual experience ... or has or may have taken part in ... sexual activity" clearly extends to evidence that he or she was or may have been sexually assaulted on an occasion other than that alleged in the indictment. And as a matter of ordinary language, the prohibition also extends to evidence that a complainant was or was not party to the sexual activity charged.

…

69. The exceptions to the general prohibition effected by s 409B(3) are within a narrow compass. Moreover, they do not extend to evidence that the offence was or was not committed, that being evidence which, as already indicated, falls within the terms of the general prohibition in sub-s (3). Clearly, for the sub-section to be given any sensible operation, it must be read down to enable that evidence to be led. When read down in that way, s 409B(3) does not render inadmissible evidence that discloses or implies that a complainant was not sexually assaulted as alleged in the indictment. It follows that it does not exclude the opinion evidence of Mr McCombie that the complainant was not sexually assaulted on the occasions alleged in the indictment.

70. It was contended for the appellant that the general prohibition in s 409B(3) is also to be read down to apply only to consensual sexual activity. Thus, it was put that it did not render inadmissible Mr McCombie's opinion that the complainant may have been sexually assaulted during the time she spent with her father. Alternatively, it was put that his opinion to that effect falls within the second or third of the exceptions earlier referred to, namely, those effected by ss 409B(3)(b) and (c). I agree with the Chief Justice and with Hayne J, for the reasons that they each give, that those arguments must be rejected. However, in my view, the evidence that the complainant may have been assaulted during the period she spent with her natural father is inadmissible for another and different reason. To explain why that is so, it is necessary to say something as to the significance of the evidence in question.

..

76. It was contended for the respondent that, even if Mr McCombie's opinion that the complainant was not sexually assaulted by the appellant was admissible, the trial judge's refusal of an adjournment involved neither error nor a miscarriage of justice. In this regard, it was put that Mr McCombie's view that the complainant was not sexually assaulted by the appellant was "inextricably linked" with his view that she may have been assaulted during the period she spent with her natural father. As the latter was inadmissible, there was no foundation, according to the argument, for the former. Additionally, it was emphasised that no application was made to the trial judge for an adjournment "on the basis that part of the report might be admissible."

…

79. It was also argued for the respondent that, as the appellant did not seek an adjournment to enable Mr McCombie to give evidence confined to his opinion that the complainant was not assaulted as alleged in the indictment, the trial judge did not err in not adjourning the matter of his own motion. That argument must be rejected. An adjournment was sought to call Mr McCombie as a witness. He was in a position to give relevant and admissible evidence, notwithstanding that some parts of the evidence intended to be called were not admissible. The trial judge erred in ruling that it was wholly inadmissible and, thus, in refusing the adjournment.

…

83 Although Mr McCombie's evidence might have raised a reasonable doubt, it is also possible that his evidence might not have been accepted. Accordingly, the contention that that evidence renders the appellant's convictions unsafe and unsatisfactory and necessitates the entry of verdicts of acquittal must be rejected.

84. The appeal should be allowed and the order of the Court of Criminal Appeal set aside. In lieu of that order, it should be ordered that the appeal to that Court be allowed, the convictions quashed and a new trial ordered.

McHugh J (would dismiss the appeal)

91. In the light of the discussion, there can be no doubt that the defence wished to call Mr McCombie to support the defence theory that the complainant had been assaulted by her father and not by the appellant. That was how the Crown Prosecutor and the learned trial judge understood the nature of the application. Indeed, his Honour's judgment began with the statement: "[T]he accused seeks a ruling under s 409B of the Crimes Act." Furthermore, the appellant's counsel gave no indication that he was seeking to call Mr McCombie for any purpose other than to seek to show that the natural father, and not the appellant, was the person who had sexually assaulted the complainant.

92. For the reasons given by Gleeson CJ, s 409B prevented Mr McCombie giving evidence that, in his opinion, the complainant had been sexually assaulted prior to the assault alleged against the appellant. It also necessarily prevented Mr McCombie expressing the opinion that it was the natural father who had assaulted the complainant. That being so, there was no denial of natural justice in refusing the adjournment. This part of the adjournment application was grounded on the submission that Mr McCombie would be called to give evidence that, although the complainant had been sexually assaulted, it had occurred at an earlier point of time and that it was the natural father, and not the appellant, who was the offender. Once his Honour held that Mr McCombie could not give this evidence, there was no basis for upholding the application to adjourn the trial.

The alternative case

93. In this Court, however, counsel for the appellant has argued that Mr McCombie could have given admissible evidence even if the trial judge was correct in holding that s 409B made the most important part of his evidence inadmissible. Counsel contended that Mr McCombie's evidence contained two independent opinions. One was that the natural father had assaulted the complainant when she was only three years old. The second was that the appellant had not assaulted her. Counsel for the appellant contended that this second opinion was admissible even if the first was not.

…

95. It is difficult to see how, once s 409B operated to exclude the central thesis of Mr McCombie's evidence, the trial judge could have allowed him to give evidence that in his opinion the appellant had not assaulted the complainant. Section 409B would have precluded him from expressing the opinion that she had been assaulted at the age of three while she was in the care of her natural father, that she had "buried" the assault, and that it was her resentment of the appellant and the "stranger danger" lecture which had resurrected the assault in her mind and caused her to attribute it to the appellant. His opinion that the complainant had not been sexually assaulted by the appellant was dependent on the four steps in reasoning to which I have referred. His evidence would be quite misleading if he was allowed to express the opinion that the appellant had not assaulted the complainant when s 409B prevented him giving evidence as to how he arrived at that opinion. If an expert gives an opinion and it later appears that the opinion is based on matters that the law prevents being the subject of evidence, the proper course for the judge is to reject the opinion[42]. To allow the opinion to stand would mean that it would be based on material that could not be the subject of curial examination. Indeed, Mr McCombie may not have wished to express an opinion about the case at all once essential steps in his reasoning process were held to be inadmissible in a court.

Gummow J (would allow the appeal on the basis that some of the evidence could have come in stripped of the portion that offended s409B)

118. The question on the adjournment application was not whether at trial the evidence from Mr McCombie to the precise effect of that to be gleaned from these materials would be admissible. It was whether sufficient evidence had been shown to demonstrate that Mr McCombie was a material witness, whose unavailability, when considered with other relevant circumstances, provided sufficient ground for an adjournment. The application thus involved a question as to the prejudice to the appellant's case which would be engendered by refusal of the adjournment.

…

124. Upon those issues, I agree with Gaudron J, for the reasons given by her Honour, that "[t]he opinion rule" in s 76 of the Evidence Act 1995 (NSW) ("the Evidence Act") did not support the refusal of the adjournment. As to s 409B(3) of the Crimes Act, I agree with Gaudron J that this provision would not have excluded opinion evidence led from Mr McCombie that the complainant was not sexually assaulted on the occasions alleged in the indictment. Like Gaudron J, I agree with the Chief Justice and Hayne J with respect to the construction placed by them upon pars (b) and (c) of s 409B(3).

…

127. I agree with the orders proposed by Gaudron J.

Hayne J (would dismiss the appeal)

138. The appellant submitted in this Court that Mr McCombie expressed more than one opinion and a conclusion that one of those opinions was inadmissible did not necessarily mean that his other opinions were to be excluded. It is necessary to examine this contention in the light of what happened at first instance.

…

140. Several things should be noted about these opinions. First, the form in which they are tendered in evidence is governed by what questions are put to the witness, not by how the witness may have chosen to express them in a written report. (It was not suggested that the written report would be tendered in evidence.) Secondly, whether an adequate factual foundation for their tender is established may well depend upon what other evidence is called (in particular, in this case, upon what evidence was called from the complainant's mother about the complainant's behaviour at various times). Thirdly, whether the opinion that is expressed is, in the words of s 79 of the Evidence Act, "wholly or substantially based on" specialised knowledge that the witness has, is a question that may depend greatly on what opinion is being expressed. Thus for Mr McCombie to say that a child who has been sexually assaulted will (or will usually) exhibit certain behavioural changes is an opinion that might be linked to Mr McCombie's training as a psychologist or his study of published literature in the field, or his experience in examining young victims of sexual abuse (or some combination of these factors). By contrast, for Mr McCombie to say that the complainant in this case had been assaulted by her natural father as opposed to some third party is an opinion that, on its face, appears not to be based at all on any specialised knowledge of Mr McCombie. Rather, on its face, it appears to be based only on his reasoning from his earlier (possibly admissible) conclusion that the child was assaulted at a particular time (when she was in the custody of her natural father) to the conclusion that the father was the most likely perpetrator.

141. I mention these matters because ordinarily they would suggest that the primary judge had insufficient material in this case on which to base a conclusion that the witness could give no admissible opinion evidence. If that were so, it would follow that the adjournment sought should have been granted. But in this case, there are other considerations that intrude.

…

143. In these circumstances, then, I can conclude only that in so far as the application for adjournment depended upon the wish to call Mr McCombie, trial counsel (and for that matter the primary judge) proceeded on the basis that Mr McCombie was to be called to give evidence only if he could express an opinion that the complainant had been assaulted by her natural father. If he could not give that evidence he was not to be called. Whether he could express this opinion was rightly held to depend upon the application of s 409B.

144. Trial counsel having adopted the course he did, (and there being no suggestion of incompetence or other exceptional considerations[53]) it cannot be said that there is, or may be, some miscarriage of justice because some other course might have been adopted at trial with different results. Such a conclusion would be entirely speculative and ill-founded; it would be made without any of the information that is critical to the making of a decision of this kind by trial counsel, such as the assessment made by counsel of a witness and the place that particular evidence may have in the overall conduct of a trial. Even accepting that the adoption of a particular course at trial may not conclude in every case whether a point is open on appeal, it is as well to recall that trial and the verdict of a jury are the central features in the administration of criminal justice and that trial and verdict are not merely stopping places on the path to appeal.

…

146. It was submitted, on the hearing of the appeal in this Court, that the expressions "sexual experience" and "sexual activity" should be confined to "consensual" experiences and activity. Thus, so the argument proceeded, the complainant being incapable of consenting to the conduct that was alleged against her natural father, s 409B did not apply.

147. There is no warrant for reading the provision as confined to consensual acts. Nothing in the language used suggests any intention other than to extend the reach of the provisions as broadly as possible. It was submitted that the provisions should be read in the manner suggested because the mischief to which s 409B is directed is the prevention of distress, humiliation and embarrassment of complainants of sexual crime. Accepting that this is so, it by no means follows that a distinction between consensual and non-consensual sexual acts is warranted. Distress, humiliation and embarrassment are very likely present for any person required to describe, in a public forum, sexual activity in which they have engaged. There is no basis for suggesting that the distress, humiliation or embarrassment felt in having to describe these matters would be less if the activity occurred as a result of the unlawful conduct of another or others.

Campbell JA

1. In February 2008 the appellant was tried before Hulme DCJ (as his Honour then was) and a jury on a charge that, on 5 November 2006 and at a particular place, he: “... did have sexual intercourse with [ABC] without her consent, knowing she was not consenting and at the time of such sexual intercourse did maliciously inflict actual bodily harm upon her” contrary to section 61J(1) of the Crimes Act 1900.

…

11. The first respect in which miscarriage of justice arising from incompetence of counsel is asserted arises from an application that counsel for the appellant at the trial (who was not the same counsel as appeared for the appellant on the appeal) made to the judge at the start of the second day of the trial. Counsel had begun his cross-examination of ABC the previous afternoon, but the cross-examination that afternoon had been only a few questions, of the most introductory kind.

12. At the start of the second day counsel sought a ruling “as to whether I can cross-examine without infringing the provisions of section 293 of the Criminal Procedure Act”.

…

36. There is ample authority in this Court that the categories of exception defined by section 409B(3) should be construed broadly when the material in question is otherwise relevant to the issues of the case: R v McGarvey (1987) 10 NSWLR 632 at 634C-D per Hunt J (with whom Wood and Allen JJ agreed); R v Henning at 70-1 per Gleeson CJ, Campbell and Mathews JJ; Dimian v R (1995) 83 A Crim R 358 at 365 per Hunt CJ at CL (with whom Smart and Simpson JJ agreed). In R v Morgan at 551D-E Mahoney JA (with whom Gleeson CJ and Sully J agreed) identified the reason for so doing as being that the court should “adopt a construction which favours the liberty of the accused”.

…

44. The procedure that counsel should adopt in making an application under section 409B were laid down by this Court in R v McGarvey. Hunt J (with whom Wood and Allen JJ agreed) said, at 634G-635B:

“Counsel should be vigilant to see that there is made a proper record of the material upon which a ruling is sought pursuant to s 409B. Preferably, a detailed written statement of the evidence proposed to be led or extracted in cross-examination should be handed to the trial judge and marked for identification. In that way, there should be no room for any later argument in the trial or upon appeal as to what had been permitted or rejected pursuant to s 409B.”

45. The desirability of counsel coming to an argument about admissibility under section 293 armed with a written statement of the evidence proposed to be given arises from the terms of the section itself. Unusually amongst rules of evidence, section 293(5) imposes limits upon the questions that counsel can ask of a witness – usually counsel is free (subject to limits of proper professional conduct) to ask any question he or she likes, and wait to see whether it is objected to.

46. By contrast, section 293(5) forbids counsel from asking a question that would elicit evidence that is inadmissible under subsection (2) or (3), and counsel can ask a question that would elicit evidence that is or may be admissible under subsection (4) only if there is a prior ruling of the court that the evidence would, if given, be admissible. For a section like that to be workable, it is necessary for both counsel, and the judge, to know in advance the substance of the evidence that would be elicited by the question.

Latham J

87. I agree with Campbell JA.

Harrison J

88. I agree with the judgment of Campbell JA and with the order he proposes. I would only wish to add some brief remarks.

Whealy JA (dissenting whether there should be a new trial or an acquittal based on other grounds, but agreeing with Simpson J on the s293 issue)

1. JAD (the appellant) was found guilty by a jury at the Orange District Court on 18 August 2009 in relation to an indictment containing six counts. Each count related to a sexual offence which was perpetrated upon the daughter of the appellant's de facto partner. The Crown alleged that, on each occasion, the appellant was the perpetrator. I shall refer to the young woman as the complainant. The appellant appeals his conviction on the following grounds:

…

13. The Crown conceded that a second significant error occurred in the proceedings. At trial the Crown prosecutors placed great reliance on the psychological condition of the complainant especially from 2006 onwards. There was evidence from the complainant's mother that she was at times very anxious and depressed. There was evidence from Melissa Roberts, a psychologist, who treated the complainant from February 2007 onwards. After treatment for some time, in May 2008, the complainant had disclosed to the psychologist that she had been abused by the appellant. The Crown argued at trial that this evidence was significant in rebutting any suggestion that the complainant's version of events was a fantasy or contrived. In other words, the evidence was said to powerfully assist in suggesting that the complainant's mental "injuries" occurred as a result of the abuse she had suffered at the hands of the appellant.

14. However, there was a sequence of events which might have suggested a possible alternative basis for the complainant's symptoms. This arose as follows.

(i)In February 2007 the complainant began her treatment with Melissa Roberts. The patient was immediately diagnosed as being depressed and anxious.

(ii)In June 2007 the plaintiff told her school teacher that she had been sexually assaulted by a school mate named JM and that this assault had taken place in April/May 2006.

(iii)Police were immediately notified of the complaint by the school and spoke to the complainant.

(iv)The complainant was admitted to hospital in June 2007. It was at this time that she began seeing other counsellors in addition to her psychologist. Once again she was diagnosed as being depressed and anxious.

(v)The complainant did not tell anyone about the allegations involving the appellant until May 2008.

15. The trial judge made a ruling against the appellant purporting to rely on s 293(4)(a) Criminal Procedure Act 1986. Section 293 applies to proceedings in respect of prescribed sexual offence. It provides that certain types of evidence are inadmissible unless permitted under subs (4). The ruling made by the trial judge was that trial counsel could not raise the matters I have listed above either in cross examination or otherwise. In particular, counsel was prevented from suggesting before the jury that the complainant's psychological conditions were, either in whole or in part, related to the JM incident rather than to the alleged abuse by the appellant.

…

17. The Crown on this appeal has fairly and candidly conceded that the resulting situation was seriously unfair to the appellant and his trial counsel. In addition, the Crown has conceded that the trial judge's ruling was incorrect. The particular evidence was plainly admissible under s 293(4)(c), subject to the Court's satisfaction that its probative value outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

Simpson J (allowing the appeal)

53. During the course of the cross-examination of the complainant's mother, an issue was raised by defence counsel concerning allegations previously made by the complainant against a male pupil at a local school, and on which he wished to cross-examine. After brief consideration of s 293 of the Criminal Procedure Act 1986, the cross-examination was rejected. Since that question is the focus of a discrete ground of appeal, I will defer outlining the circumstances, and the evidence sought to be adduced (so far as it is ascertainable), until I come to deal with that ground of appeal.

…

61. The grounds of appeal are pleaded as follows:

"1.The convictions in respect of Counts 5 and 6 (Crimes Act 1900, s 73(1)) cannot be supported by the evidence.

2.In respect of each of the convictions, a miscarriage of justice was occasioned by one or more of the following:

(a)the admission of tendency evidence contrary to Evidence Act 1995, s 907[sic - 97];

(b)defence counsel's failure to rely on Criminal Procedure Act 1986 s 293(4)(c);

(c)defence counsel's failure to request a warning as to the unreliability of the complainant's evidence, under Evidence Act 1995 s 165(1)(c), and trial judge's failure to give such a direction; and/or

(d)defence counsel's failure to request a direction under Evidence Act 1995 s 165B and the trial judge's failure to give such a direction."

Ground 2(b): Criminal Procedure Act, s 293

62. It is convenient to deal first with Ground 2(b). I note here that this ground is, very properly, conceded by the Crown. It is, however, necessary to set out in some detail the circumstances, in order to demonstrate that the Court accepts the concession, and why it does so.

…

68. The complainant also reported to Ms Roberts experiencing auditory hallucinations with a male voice. Ms Roberts said that she had continued to see the complainant. On 13 May 2008 the complainant for the first time told her of her allegations against the appellant. She said that when the complainant spoke of those incidents:

" ... she appeared highly stressed, her [a]ffect was anxious, she was shaking, she found it difficult to speak."

and that those manifestations continued both before and after she first made the disclosures. She said that on 4 June 2008 the complainant reported that the appellant had been sexually assaulting her and that the complainant was highly distressed and anxious, her body was visibly shaking and she was crying. When Ms Roberts asked for details of the abuse she became more anxious and appeared to dissociate. She said that the symptoms she observed were consistent with flashbacks of the abuse that she reported.

69. The evidence concerning the complainant's mental condition assumed considerable prominence. The Crown Prosecutor addressed on it at some length, unequivocally suggesting that the symptoms described were attributable to the conduct alleged against the appellant.

70. Similarly, in the summing up, considerable reference was made to this aspect of the Crown case.

71. Plainly, the Crown case was that the complainant's anxiety and depression were a direct result of the conduct she asserted against the appellant. That could be seen as powerful corroboration of her allegations, and therefore an important component of the Crown case.

72. Equally plainly, evidence that might suggest an alternative explanation could be seen as an important aspect of the defence case, having significant capacity to dilute the otherwise prejudicial effect of the evidence.

73. No attempt was made on behalf of the appellant to introduce such evidence. That such evidence was potentially available is apparent from some exchanges between counsel and the judge in the absence of the jury.

74. The subject first arose, although in an oblique way, during the cross-examination of the complainant. The topic under discussion (raised in the absence of the jury) was the extent to which defence counsel would be permitted to cross-examine the complainant about the lateness of her complaints about the appellant's conduct. During that discussion, defence counsel said:

"If the witness is called, could I just say this your Honour, I also wish to put to her that she didn't say anything to the teacher [named] nor to a Detective Senior Constable Geraldine Bunting and it was in June 06 that she spoke to Bunting in relation to the alleged sexual assault by the boy at school. I'm not going to raise it but she certainly was interviewed and I would say in relation to an unrelated matter. She spoke to police on an unrelated matter." (emphasis added)

81. Again, consideration was given to s 293. There appears to have been general agreement that s 293 precluded admission of any evidence concerning the alleged assault by JM. The evidence concerning the complainant's allegations about the conduct of JM is evidence that fits the description above (at [77]) of evidence capable of significantly diluting the effect of the evidence suggesting the complainant's psychological condition was attributable to the misconduct she alleged against the appellant.

82. On the appeal, the Crown fairly conceded that a psychological condition such as that suffered by the complainant comes within the term "disease or injury" for the purposes of s 293(4)(c)(ii). The suffix to that subsection must, therefore, be considered - the evidence is admissible, provided that its probative value outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

83. In my opinion, the evidence meets that test. The evidence was potentially of very significant probative value. The Crown did not suggest otherwise.

Hoeben J (agreeing with Simpson J)

170. I agree with Simpson J and the orders which she proposes. I also agree with the observation of Whealy JA that section 73 Crimes Act 1900 requires urgent and immediate attention by the legislature. Accordingly, I support the recommendation by Whealy JA that a copy of this decision should be taken out and forwarded by the Registrar to the Attorney-General for his urgent consideration.

Basten JA

1. In March 2011 the appellant was convicted by a jury on two counts of aggravated sexual intercourse with a child between the ages of 10 and 16 years, who was under his authority at the time of the offence. The complainant was his stepdaughter. The charges related to two occasions, when the complainant was 15 years of age, the events occurring in April and October/November 1992 respectively.

2. On the appeal the appellant challenged the correctness in law of the exclusion by the trial judge of evidence which might have disclosed or implied sexual activity (or the lack thereof) on the part of the complainant on another occasion, some eight months later. The entitlement to proffer such evidence was said to arise by way of an exception to the general exclusionary rule contained in s 293 of the Criminal Procedure Act 1986 (NSW). I agree with Harrison J that the appeal should be dismissed.

…

5. Before cross-examining the complainant, counsel for the appellant raised in the absence of the jury his intention to cross-examine the complainant as to whether she had admitted to Ms Hastings, whilst staying at the Hastings home, that she was having an affair with Ms Hastings' father and that she was pregnant. That claim was based on a written account made by Ms Hastings dated 6 November 2011, part of the contents of which were put to the complainant in cross-examination on the voir dire. She denied making any such assertion. She was not asked whether at that time she was having an affair with Mr Hastings.

…

7. The purpose of the proposed cross-examination was somewhat obscure. Following the evidence on the voir dire, the trial judge put to counsel for the accused that "what you seek to establish at the trial is that [the complainant] was a sexual fantasist who was all too willing to make allegations against men, is that right?": at Tcpt, p 65(30). Counsel denied that he would put to the complainant that she was a "sexual fantasist" but rather would put to her that "when it suits her, if she's in conflict with a person, she will tell lies to hurt the other person": p 65(40)-(45). The trial judge pressed on counsel that the "forensic purpose is that the complainant lied about sexual experience with Mr Hastings": p 65(47). Counsel stated that he was "not going to put that she lied, I'm going to put that you will say these things when it suits you to hurt another person's feelings".

…

9. To determine admissibility, the first step is to consider whether that evidence disclosed or implied that the complainant had, or may have taken part in sexual activity (with Mr Hastings) or that she had not, or may not have, taken part in such activity. Because the evidence was limited to the making of the statement, it could hardly be said that it "disclosed" actual sexual activity. (Indeed, it appears to have been the intention of the accused to invite the jury to infer that the complainant was lying in denying she had made the statement to Ms Hastings and that the statement itself had been untrue when made.) However, a reasonable person might draw from the question and answer (so that the evidence could properly be said to imply) either the inference that the complainant had taken part in such activity, or the inference that she had not. The possibility that a reasonable person might draw neither inference would not remove the evidence from the prohibition, so long as at least one inference was open. Thus, it was rightly conceded on appeal that this evidence fell within the exclusion in s 293(3): see, in relation to the substantially identical provision which used to be s 409B of the Crimes Act 1900 (NSW), R v White (1989) 18 NSWLR 332 (Gleeson CJ, Carruthers and Badgery-Parker JJ) at 340C-F; M (1993) 67 A Crim R 549 at 554-555 (Allen J, Gleeson CJ and Meagher JA agreeing).

10. In order to satisfy the condition of admissibility in sub-s (4)(a), the evidence must relate to sexual experience or sexual activity (or the lack of either) "at or about the time of the commission of" the offence alleged against the accused: s 293(4)(a)(i). Both the disputed statement to Ms Hastings and the possible relationship with her father must have occurred some 15 months after the events constituted by the first count on the indictment and eight months after the events the subject of the second count. They did not self-evidently satisfy the temporal element.

…

12. A number of common characteristics do not render two events which occurred eight months apart to be a connected set of circumstances. On the hypothesis that neither event occurred, the characteristics only obtain significance if it were shown that on the latter occasion she lied, which was not proposed to be done. Nor, accepting that the temporal element involves a degree of imprecision, can the events be described as being at "about" the same time.

Harrison J

61. The clear forensic purpose behind the appellant's attempts to cross-examine KN about what she allegedly told Amy Hastings, and to introduce Amy Hastings evidence about it, was to portray KN as a girl who at the time of the alleged sexual offences committed by the appellant was prepared to make, or had on that occasion at least made, untrue and fanciful allegations of sexual conduct with an older man in authority over her. The similarity between the offences charged and the content of alleged statements made by KN about John Hastings went directly to the issue of KN's credit in circumstances where her status as a witness of truth, concerning otherwise uncorroborated allegations of sexual offences committed by the appellant, was critical to the Crown's case. His Honour correctly identified this in the course of certain remarks that he made to counsel during discussions on the voir dire.

62. In my view the evidence in question was evidence "of the complainant's sexual experience" or "of the complainant's sexual activity". Although there was some preliminary discussion in this Court concerning the question of whether the evidence in question was evidence of any kind of sexual experience or sexual activity, as opposed to it being evidence only of a propensity to fantasize about sexual experience or activity, it was uncontroversially accepted in the end that the evidence was evidence of a type described in s 293(4)(a)(i).

Beech-Jones J

77. I have had the advantage of reading the reasons of Harrison J. Subject to what follows I agree with his Honour's reasons.

78. The evidence that was the subject of the application had two components. The first component was the statement that Amy Hastings asserted KN made sometime in 1993 to the effect that she was in a relationship with John Hastings and he had impregnated her. The second component was that KN had not in fact been in a relationship with John Hastings and had not had sex with him. On the voir dire KN denied she had made that statement referred to in the first component. Although it was not expressly stated, it seems that she would have agreed with the second component in that she would have denied having been in a relationship with John Hastings or having had sex with him.

79. Both components of this evidence are prima facie inadmissible under s 293(3). The first is excluded by either or both of s 293(3)(a) and (b) because it discloses or implies that KN may have had a sexual experience or taken part in sexual activity. The second is excluded by s 293(3)(b) because it discloses or implies that she has "not taken part in any sexual activity".

…

81. In my view the real difficulty for the appellant concerns s 293(4)(a)(ii). It refers to evidence "of events". If the evidence is broken down into its two components and each is considered against s 293(4)(a)(ii), then it travels nowhere. With the second component, evidence that KN did not have sex with John Hastings is clearly not evidence of an "event' connected to the "set of circumstances" in which the offence occurred. With the first component, evidence that KN in effect said she had sex with John Hastings has the same problem. Further it would not be of much assistance to the appellant without the second component.

…

86. I agree with Harrison J that the appeal should be dismissed.

Simpson J

1. This appeal, brought by the Director of Public Prosecutions ("the Director"), pursuant to s 5F(3A) of the Criminal Appeal Act 1912, concerns two pre-trial evidentiary rulings, made by Graham ADCJ on 24 and 25 July 2013.

2. The respondent is charged with an offence of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, allegedly committed on 18 May 2012. The evidentiary rulings in question relate to:

evidence of a telephone conversation between the complainant and the respondent on 12 June 2012, to be tendered by the Director;

evidence said to be evidence that the complainant had or may have had sexual experience, or taken part in sexual activity, within the meaning of s 293(3) of the Criminal Procedure Act 1986, proposed to be adduced on behalf of the respondent by way of cross-examination of the complainant.

…

13. Early in 2012 the respondent offered work to the complainant as a stewardess on the Aqua Bay. By February 2012 the complainant was working fulltime on the yacht. The respondent showed a clear sexual interest in the complainant. The complainant rebuffed his advances in clear and unequivocal terms. From March to May 2012 the complainant undertook a small business management course. On 17 May she completed her last assignment for the course. She planned to celebrate the occasion on the Aqua Bay, in the company of the respondent, and she invited Mr McManus. The three consumed champagne on the yacht, and then attended a local Glebe restaurant for dinner. They then travelled to Kings Cross where they went, sequentially, to two bars and two strip clubs, and an "adult shop".

14. At about 2am on the morning of 18 May, the three returned to the Aqua Bay. The respondent invited the complainant to stay overnight on the yacht. She agreed to do so, having ascertained that Mr McManus would also stay overnight. All three sat in a lounge area of the yacht. The complainant fell asleep, the men on either side of her.

15. At some stage during the night Mr McManus left the area to sleep in another part of the yacht. The complainant woke to find the respondent performing cunnilingus on her. The complainant left the yacht, despite attempts by the respondent to have her stay. She drove home.

31. The trial was fixed to commence in the District Court on 24 July 2013. On that day, the solicitors representing the respondent notified the Office of the Director that they proposed to seek leave pursuant to s 293 of the Criminal Procedure Act 1986 to cross-examine the complainant on certain identified topics. Section 293 prohibits, subject to exceptions, the admission, in sexual offence prosecutions, of evidence concerning the complainant's sexual history. Its relevant terms are set out below. The topics identified as the subject of the proposed cross-examination were:

"(1) The complainant's relationship with Mr Patrick McManus in terms of:

(a) the nature of their general relationship;

(b) whether or not that relationship involved sexual activity;

(c) was such activity isolated or had it occurred on more than one occasion;

(d) had such activity been followed by the complainant and Mr McManus sleeping overnight together (including the activities on the Aqua Bay on the night it was anchored at Athol Bay);

(e) the complainant's responses to Mr McManus in the days following any such sexual activity.

(2) The complainant's conduct on the evening of 17th May 2012 and the morning of 18th May 2012 in terms of:

(a) her interaction with an unknown male at 'Vegas Bar and Grill' and later at the 'Badabing' strip club and associated comments."

32. The sole basis on which it was sought to adduce this evidence was to lay a foundation for an inference that the complainant had consented to the sexual activities with the respondent.

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47. The evidence in question was the evidence in paragraphs 18 and 22 of Mr McManus' statement (concerning the complainant's apparent sexual interest in the man she met in the Kings Cross bar). The principal basis for his Honour's decision to admit the evidence was that he considered it came within the exception provided by s 293(4)(a) of the Criminal Procedure Act.

…

54. The primary position of the Director, both at first instance and on appeal, was that the evidence was not (and could not have been) relevant, and ought, therefore, to have been excluded under s 56 of the Evidence Act 1995 (see below).

55. The Director's alternative position on appeal was that the evidence falls within s 293(3) of the Criminal Procedure Act (and is, therefore, prima facie inadmissible) and does not come within the exception provided for by s 293(4)(a).

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67. First, the evidence was not, and was not capable of being, relevant. The issue in the trial, as declared by counsel for the respondent, was whether, in the early hours of 18 May 2012, the complainant had in fact consented to sexual connection (by cunnilingus) with the respondent. It is proper to broaden that inquiry to include questions concerning the respondent's knowledge (or lack thereof) that the complainant was not consenting (in the event that it would be proved that she was not), or his belief that she was consenting (again, in the event that it would be proved that she was not).

68. That the complainant had exhibited sexual interest in another man (whether or not at or near the time the offence is alleged to have been committed) is irrelevant to any question concerning her consent to sexual engagement with the respondent.

…

70. The judge's conclusions that the evidence indicated "a general sexual willingness on the part of the complainant", and that it "might act as some sort of antidote to the evidence that the complainant had, in the past expressly disavowed any interest in intimacy with the [respondent]" betrays an impermissible approach to the question of consent in the prosecution of allegations of sexual offences. The reasoning contains an unstated premise. The unstated premise is that a person who engages sexually with another person will, or is likely to, engage sexually with any other person. It is a patently false premise. Section 293 was introduced into the legislation (originally as s 409B of the Crimes Act 1900) for the specific purpose of putting an end to offensive and demeaning cross-examination that proceeded on the basis that evidence of consent by a person (then invariably female) to sexual engagement with one person (person A) provided the foundation for an inference that that person also consented to sexual engagement with another person (person B). That process of reasoning has been banned from the criminal courts, first by s 409B of the Crimes Act, and subsequently by s 293 of the Criminal Procedure Act. Yet that is precisely the process of reasoning disclosed in the passages of the judgment set out above, and the inference that was explicitly drawn. That inference was the basis for the decision to admit the evidence of the complainant's sexual interest in the stranger at Kings Cross.

71. The submissions made on behalf of the respondent, that the proposed evidence "needs to be seen in the wider context in which the complainant was showing particular interest in the respondent" perpetuates the erroneous approach. Potential evidence that the complainant exhibited an interest in the respondent was not in issue on the appeal. Such evidence (if in proper form) would almost certainly be admissible, supposing that the respondent asserted that the complainant consented, that he did not know that she did not consent, or that he believed that she did consent. It was the inferences to be drawn from her apparent interest in another man that were in issue. Those inferences - as sought on behalf of the respondent - were that, because of her apparent interest in the stranger, she was "sexually available", or that it signified "general sexual willingness", or that her sexual interest (availability) was "general". Those inferences were simply not permissible. Evidence that the complainant showed signs of sexual interest in the respondent could not be strengthened by evidence that she showed signs of sexual interest in another man.

72. The evidence was not relevant and ought to have been excluded on that basis. The finding that the evidence was relevant was erroneous.

…

74. Since I have concluded that the evidence was not relevant and therefore had no probative value, s 293 was not engaged. Even if it were, the judge's expressed concern as to whether the evidence fell within sub-s (3) was well founded.

75. The most that could be drawn from the content of Mr McManus' statement (on which the proposed cross-examination would be based) is that the complainant exhibited sexual interest in a man she met in a Kings Cross bar. That falls far short of sexual experience or sexual activity, or lack thereof.

…

78. The third error lay in the application of sub-s (4)(a)(i), that is, in the finding that the evidence related to sexual experience or sexual activity "at or about the time of the commission of the offence".

79. The proposed evidence was that the encounter with the stranger had taken place at some time in the early hours of the morning at Kings Cross. Much occurred in between that encounter and the events giving rise to the charge against the respondent. The party had returned to the boat, had settled on a sofa, and the complainant had fallen asleep. Mr McManus had left the area to sleep elsewhere. The complainant's encounter with the man in the bar (the subject of the evidence sought to be adduced) did not take place "at or about the time" of the events giving rise to the charge. Several hours intervened.

RA Hulme J

219. I agree with Simpson J

Barr AJ

220. I agree with Simpson J

Bathurst CJ

1. I have had the advantage of reading the judgment of Leeming JA in draft. I agree with the orders proposed by his Honour.

…

13. I am fortified in this view in that it is by no means clear to me that M v R was incorrectly decided. The structure of s 293, like the construction of any statutory provision, must begin and end with the text. The statutory text must be considered in context including the legislative history and extrinsic material. Understanding context has utility in so far as it assists in finding the meaning of the statutory text. However, historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39].

…

16. I also agree with Leeming JA that at least in certain respects the section cannot be read literally. First, the generality of the application of the section to proceedings in s 293(1) must be read down to permit evidence being led in the absence of the jury to enable a court to perform its task under s 293(6) and s 293(7) in determining whether particular evidence falls within the prohibition or if any of the exceptions to the prohibition applies.

17. Second and more importantly, on its face the complainant would be prevented from leading evidence and being cross-examined on whether the sexual activity the subject of the charge occurred. This is because s 293(3) precludes evidence that the complainant has taken part in any sexual activity. The only relevant exceptions are ss 293(4)(c), 293(4)(d), 293(4)(e) and 293(6) which do not, at least directly, allow evidence in chief or cross-examination on the incident the subject of the charge. Notwithstanding, it is plain in my view that s 293 was not intended to preclude evidence and cross-examination concerning the acts about which a complaint is made.

18. In considering the extent of the prohibition it must first be remembered that the section only applies to evidence which is relevant; that is, evidence which could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue (Evidence Act 1995 (NSW) s 55). That must be borne in mind in considering some of the more extreme examples of its suggested operation.

…

22. In the present case the evidence sought to be led would imply that the complainant had not taken part in sexual activity which she claimed occurred. On its face the evidence falls within s 293(3)(b). It does not seem to me to the point that the purpose of leading the evidence was to establish that the complainant was a person who made false complaints of sexual assault, as the section rather looks to what the evidence is taken to disclose or imply, not the reason it was led.

23. The section must of course be considered in context. The context included first, the reason for the introduction of the legislation as set out in the Second Reading Speeches to which I have referred. Those speeches make it clear that the purpose of the statutory prohibition is to prevent embarrassing and humiliating cross-examination about past sexual activities which it was believed was a deterrent in reporting sexual offences.

24. Second, s 293 forms part of a suite of legislative provisions designed to protect complainants in their giving of evidence. They include the requirement that proceedings must be held in camera when the complainant gives evidence (Criminal Procedure Act s 291), the prohibition on an unrepresented accused cross-examining the complainant (s 294A), the right of the complainant to give evidence away from the court of trial (s 294B) and the right to a support person (s 294C). These sections demonstrate the concern of the legislature to protect complainants in sexual assault cases to the greatest extent possible. The wide interpretation of s 293 propounded in M v R is consistent with that approach. The decision does not seem to me to be plainly wrong and I doubt that it was wrongly decided.

25. I respectfully agree with the reasons of Leeming JA that grounds 3, 4 and 5 of the grounds of appeal have not been made out.

Leeming JA

26. The main points of this interlocutory appeal may be summarised shortly. Section 293 of the Criminal Procedure Act 1986 (NSW) renders evidence of a complainant’s sexual experience and sexual activity inadmissible in proceedings for certain sexual offences. A line of authority holds that s 293 and its predecessor extend to evidence that a complainant has previously fabricated complaints of sexual assault. The applicant, who has pleaded not guilty to three counts of sexual intercourse without consent, challenges that line of authority. Alternatively, he seeks to invoke an exception. In the further alternative, the applicant says that s 293 is invalid, and, finally, if its operation cannot be avoided, he asks for the prosecution to be permanently stayed. He seeks leave to appeal to this Court from the dismissal of all these submissions by primary judge, who nonetheless described s 293 as an “affront to justice” giving rise to “real and not illusory” unfairness.

27. Section 293 is not a well drafted law. It contains textual errors, and it is needlessly complex. It also differs from its counterparts in every other Australian State, because it does not contain a residual discretion, even in an exceptional case such as the present. The absence of discretion leads to one aspect of this appeal: the possibility that the prosecution should be permanently stayed because it is shown that there cannot be a fair trial. The absence of discretion has been criticised by many judges at all levels, including the very highest, and law reform bodies have consistently recommended change. However, the New South Wales Legislature revisited the section in 1999 and implicitly disregarded those criticisms and recommendations.

28. I think there is force to the applicant’s submissions that the earlier decisions are overly broad. With great respect to those who have previously considered the construction of s 293 and its predecessors, I think that some forms of evidence that a complainant has fabricated a complaint of sexual assault are not made inadmissible by s 293. However, the re-enactment of s 293 in substantially the same terms, when that construction had been clearly enunciated and in the face of recommendations that it be altered, persuades me that this Court should respect the Legislature’s implicit decision not to alter the substance of the law, even though it is capable of operating unjustly in a case such as this. Accordingly, I have concluded that the primary judge was correct to rule that the evidence was inadmissible.

29. It was common ground that his Honour’s discretion to order a permanent stay had miscarried, but based on the material presently available, I would reject the applicant’s submission that the prosecution should be stayed. I would also reject the applicant’s submission that the section is invalid.

30. The result is that there should be a grant of leave extending to most of the proposed grounds of appeal, but the appeal should be dismissed.

…

36. The details of the alleged offending do not presently matter and need not be summarised. If the complainant is correct, there has been a series of violent sexual assaults in a highly abusive and controlling relationship which has caused lasting harm to her. The applicant wants to contend that she is lying about the offending with which he has been charged, just as previously, so he says, she has lied in the past. He maintains that he should be permitted to adduce evidence that the complainant has previously claimed, falsely, that she has been sexually abused, and his pre-trial applications concerning that evidence give rise to the present appeal.

Procedural background

37. The applicant seeks leave to appeal from interlocutory judgments of the District Court on 2 August 2019 and 6 September 2019, declining to make certain orders or rulings in advance of the trial pursuant to s 192A of the Evidence Act 1995 (NSW): R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368 and R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511.

…

39. On 6 September 2019, the primary judge declined to exclude the evidence of the complainant, her friend and the medical practitioner she consulted in June and August 2014 on the basis of ss 135 and/or 137 of the Evidence Act. A challenge to that ruling is also sought to be included in the appeal.

40. All of the orders and rulings which are challenged in this appeal derive from what has been called “evidence of false complaint”. The applicant has identified 12 incidents suggesting, so he maintains, that the complainant had previously fabricated complaints of sexual assault. The details are elaborated below. The applicant accepts that s 293 of the Criminal Procedure Act 1986 (NSW) applies to the proceeding, and the various applications reflect different ways in which he seeks to avoid that section rendering the evidence of false complaint inadmissible at trial.

…

66. Essentially, the underlying evidentiary basis for the 12 incidents amounts to (a) hearsay statements in police investigations, (b) an elaborately fabricated letter purporting to be from a firm of solicitors concerning a sexual assault, (c) the 2009 incident of complaint of sexual assault, also quite elaborately detailed but rapidly withdrawn after it was made, leading to a guilty plea to the charge of making a false report to police, and (d) one or perhaps more admissions by the complainant in notes of conversations with the police and the Director that she had made up the 11th and 12th incidents. It is possible that the applicant will also seek to adduce testimonial evidence from those involved in the events of 2001, 2002 and 2009. All this comprises the “evidence of false complaint”.

…

89. The section is difficult to understand. In part that is because of its length. In part it is because it contains obvious minor textual errors. In part it is because of the compressed style of its drafting. It is as well at the outset to provide an overview of the operation of the section, and at the same time to address its superficial problems, so as to be able then to focus upon the substantive difficulties it presents.

90. Subsection 293(1) is an application provision. The applicant stands charged with three counts of a “prescribed sexual offence”, and plainly s 293 applies at his trial. But the subsection applies to “proceedings in respect of” a prescribed sexual offence. It would be natural to proceed on the basis that the application for a pre-trial ruling, and this interlocutory appeal which has been brought from it, are also “proceedings in respect of” a prescribed sexual offence.

91. Subsections 293(2) and (3) make certain evidence “inadmissible”. That does not bear its literal unqualified meaning. It must mean inadmissible in the prosecution before the tribunal of fact. So much is clear from s 293(7), which leaves questions as to the operation of the exclusionary rules to the “court in the absence of the jury” and by necessary implication means that evidence which is contended to be inadmissible by reason of either or both rules will be tendered on the voir dire in the jury’s absence.

92. In short, subsection (1) makes the section apply to proceedings on a voir dire and an interlocutory appeal, but it is clear that the “inadmissibility” to which subsections (2) and (3) speak does not extend to proceedings seeking to determine whether or not those rules apply, as was noted in Decision restricted v R [2020] NSWCCA 115 at [54]- [58] and [94]. I see no reason to conclude that subsection (2) or (3) would prevent the tender of evidence on an application for a permanent stay, or a constitutional challenge to the validity of the subsections, or even a collateral challenge in separate civil proceedings. No party suggested to the contrary. The prohibition although expressed in unqualified terms applies only to the trial and committal. This, incidentally, is the first of a number of instances of broad language in s 293 necessarily being construed so as to bear a slightly narrower meaning.

93. In proceedings to which they apply, the two rules in subsections (2) and (3) are mandatory, in the sense that there is no discretionary exception. As will be seen below, this makes the New South Wales provision unique. The first makes inadmissible evidence “relating to the sexual reputation of the complainant”. The second makes evidence which discloses or implies certain things about the complainant's sexual experience or sexual activities inadmissible, unless it falls within any of the paragraphs in subsection (4).

94. Subsection 293(4) identifies six paragraphs which, if any is satisfied, will disapply the rule in subsection (3) and permit the evidence to be admitted, provided that the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. In the present case, only the first exception is relevant.

95. Subsections (5) and (6) are directed to testimonial evidence, and in particular upon the limits of cross-examination. They must be read together, such that the prohibition in subsection (5) is subject to the exception in subsection (6). That must be so, because the premise of subsection (6) is that the court is satisfied of unfair prejudice brought about by the inability to cross-examine in circumstances where matters of sexual experience or activity have been disclosed or implied in the Crown case. Another way of making this point is that if subsection (5) were not to be read as qualified by subsection (6), then subsection (6) would never be engaged. It follows that the prima facie unqualified prohibition upon questions in subsection (5) is in fact qualified by the power granted to a court to permit questioning in subsection (6).

…

98. It will be seen that later, in 1999, the very long subsection (3) was divided into what has become s 293(3) and (4). It is at this stage that certain minor textual errors became incorporated in the provision.

…

102. The rationale for adopting a mandatory rather than discretionary approach was explained when the legislation was introduced in 1981. The Attorney General said, when explaining why the bill did not contain “a mere judicial discretion to disallow any irrelevant question”, that:

“The Government has deliberately opted for this course in view of the long-standing practice of the courts to allow wide-ranging and really irrelevant cross-examination as to prior sexual history. This legislation is intended to alter both the theoretical law and the actual practice of the courts as to the reception of evidence about prior sexual history. Let there be no doubt about that. Since these laws involve the rights of accused persons, the courts will probably be reluctant to interpret provisions as changing past practice unless the change is specifically mandated in the legislation, and accordingly the bill does so” (Hansard, Legislative Assembly, 18 March 1981, pp 4763-4).

…

126. A minor error was introduced when what had been the first half of former s 409B(3) became the two paragraphs (a) and (b) of s 105(3). The first begins with the words “that the complainant”, and continues “has or may have”, while the second begins with “has or may have”. It is clear that the words “that the complainant” are intended to qualify both paragraphs. It would have been preferable either for the words “that the complainant” precede paragraph (a), immediately following “discloses or implies”, or else that the words “that the complainant” be repeated in paragraph (b). That would accord with the drafting convention that when separate paragraphs are contained as alternatives in the same section, each can be read as complete if it stood alone. I mention this not because it gives rise to any difficulty as a matter of construction, but because it – coupled with other matters to which I shall refer below – suggests that the close attention to detail by parliamentary counsel to which one is accustomed may not have been present in the case of the redrafting of s 409B.

127. The minor textual difficulty in the two limbs of former s 105(3)(a) and (b) is preserved in s 293 to this day.

128. Other minor textual difficulties in s 293 were likewise introduced when s 409B was recast as s 105. Read literally, s 293(5) is an unqualified prohibition upon questions that invite answers which are inadmissible under subsections (2) or (3), and a qualified prohibition where subsection (4) applies. But disputes may arise on the application of subsection (3). (The distinction is highlighted in this very appeal, in which grounds 1 and 2 contend that neither subsections (2) nor (3) apply, while ground 3 assumes that subsection (3) applies but that the evidence falls within subsection (4).) It seems passing strange that subsection (5)(b) makes special provision for what is to occur when subsection (4) is in issue, but that no provision is made when subsection (3) is in issue. The answer is that the qualifying words “unless the court has previously decided that the evidence would, if given, be admissible” should be read as applying not merely to paragraph (b) but also to paragraph (a).

129. A similar difficulty applies to subsections 293(5), (7) and (8). It will be seen that subsections (5) and (8) refer to what occurs when evidence is admissible under subsection (4). However, the command in subsection (7) that questions of admissibility take place in the absence of the jury does not mention subsection (4) at all. Once again, the reason for this derives from the recasting of the section in 1999. It is clear that even if the only issue is the applicability of subsection (4) (say, because the only dispute is as to whether the probative value outweighs the distress, humiliation or embarrassment), nonetheless, subsection (7) applies. It is not clear whether the command in subsection (8) is qualified only to cases where subsection (4) is held to disapply subsection (3), or extends to cases when subsection (3) does not apply, but there would seem to be no sensible reason for such a selective construction of subsection (8), and when the position is compared with the previous form the section took, it may well be that this too is merely an unintended defect in the drafting.

…

144. Some extreme examples illustrate the problem. The complainant’s birth certificate or a passport is powerful evidence that the complainant has not taken part in any sexual activity before he or she was born. Of course it would be absurd for s 293(3) to prevent the tender of such documents, but precisely why is that so?

145. Or suppose the Crown alleges that a prescribed sexual offence was committed at a party, and the accused has an alibi for part of the evening. The Crown may wish to tender a complainant’s mobile phone records or highway toll records to assist in establishing the complainant drove to the party, leaving home at, say, 9pm and arriving at, say, 10pm. Yet evidence that the complainant was driving to the party between 9pm and 10pm discloses or implies that the complainant was not taking part in any sexual activity between 9pm and 10pm while in transit. Once again, it seems absurd for the mobile phone or highway toll records to be inadmissible. But precisely why is that so?

146. Two things need to be borne steadily in mind when construing the section.

147. The first is that the section does not operate in isolation. The starting point is that the evidence be relevant. As Gleeson CJ observed in R v Morgan (1993) 30 NSWLR 543 at 544; 67 A Crim R 526, “the evidence in question is, by hypothesis, relevant and of probative value (otherwise it would be inadmissible without the need for any statutory exclusion)”. Morgan predated the Evidence Act 1995 (NSW), but Gleeson CJ returned to this point in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [24], in connection with s 409B:

“Both at common law, and now under s 56 of the Evidence Act, evidence which is not relevant is inadmissible. One only comes to consider and, if necessary, apply a rule of exclusion, such as that contained in s 409B, if the evidence in question is relevant. If it were irrelevant, that would be the end of the matter. There would be no occasion to consider s 409B.”

148. The mobile phone or highway toll records in the example given above are relevant because there is an issue as to the location of the complainant at a particular time on a particular day. In the absence of any such issue making the records relevant, they would be inadmissible.

149. Secondly, the reason that s 293(3) does not apply to the mobile phone and highway toll records is that there is nothing to suggest that any sexual activity was taking place between 9pm and 10pm that evening. I do not think that the final negative sub-limbs of s 293 which apply where evidence discloses or implies that the complainant has not, or may not have, taken part in any sexual activity, bear their literal meaning. That is because there is not the slightest jot of evidence to suggest that the complainant was taking part in any sexual activity between 9pm or 10pm.

…

153. Another way of putting the point is this. Suppose a complainant writes a letter saying he or she was sexually assaulted by a fictional character. Even though the letter makes claims concerning sexual activity, it should not be regarded as evidence which discloses or implies anything concerning whether the complainant has taken part or not taken part in any sexual activity. Or suppose a complainant writes a letter saying he or she was assaulted the previous evening by a grandparent who died ten years earlier. Evidence which makes a claim of sexual activity involving the complainant which cannot possibly have occurred in the real world cannot fall within s 293.

…

165. If the view is taken that the strictness of former s 409B and s 293 may once have been appropriate in order to ensure a change of culture in criminal trials, but that it is now desirable to introduce a narrowly circumscribed discretion to admit evidence in a case such as this, then there is much to be said for that being a course to be taken by the Legislature, and with prospective effect.

…

177. I have borne in mind the considerations that s 409B was repealed and re-enacted without separate debate, quite possibly subject to the time-pressure of the end of the parliamentary sitting, and with the introduction of a series of minor textual infelicities. Even so, I do not think this Court should override the balance struck by the Legislature between the protection given to complainants and the rights of persons accused of prescribed sexual offences.

178. Accordingly, I conclude that the primary judge was right to rule that the false complainant evidence was inadmissible insofar as it disclosed that the complainant had alleged in 2001, 2002 and 2009 she had been sexually assaulted or that those allegations were false. The Crown correctly conceded that evidence that the complainant had pleaded guilty to a charge of making a false statement was not inadmissible per se. I shall return to this when dealing with ground 4.

…

197. If s 293(3) applied and the exception in subsection (4)(a) was unavailable, the applicant submitted that s 293 was invalid. That submission was grounded in the limitation upon State legislative power first identified in Kable v Director of Public Prosecutions (NSW). In Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13 at [40] and Vella v Commissioner of Police (NSW) [2019] HCA 38; 93 ALJR 1236 at [55], joint judgments of six and four members of the High Court reiterated that:

“The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.”

…

204. That is the short answer to ground 5. There can be no substantial impairment of a State court’s institutional integrity, which is incompatible with the court’s role as a repository of federal jurisdiction, if the court reserves power to stay the proceedings. To the contrary, the institutional integrity of the court is confirmed and enhanced by staying the particular proceedings in which the application of the impugned law would lead to an unfair trial.

…

213. The power to stay proceedings permanently will only be granted in extreme or exceptional cases. Bathurst CJ collected some of the authorities in R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 at [15]- [23]. In part this is because the stay is an exceptional remedy. In part it reflects the public interest in serious allegations being disposed of on the merits: Moore at [24]; R v Blackett [2018] NSWCCA 114 at [42]. In Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [37], it was noted that “a permanent stay is tantamount to a continuing immunity from prosecution”.

…

226. The result is that at this stage in the litigation, I am unpersuaded that the applicant has discharged the heavy burden of establishing that the continuation of the prosecution is inconsistent with the recognised purpose of criminal justice and should be stayed as an abuse of the court’s process. I am not persuaded that there is a fundamental defect going to the root of the trial which is of such a nature that there is nothing that a trial judge can do to relieve against its unfair consequences: TS v R [2014] NSWCCA 174 at [61].

227. Nor am I persuaded that the course proposed by the Crown will necessarily lead to the jury being materially misled or to the prosecutor behaving unfairly. As was explained during oral submissions, the notion that a witness will be questioned so as not to adduce evidence on a particular topic, and indeed will be told that as a matter of law he or she should not volunteer evidence so as to mention that subject, is not uncommon in jury trials. The Crown accepted during the hearing that the position was accurately described as follows:

“JOHNSON J: Is what you say in that respect that in the same way as from time to time in criminal trials when there is either an agreement between the parties or a ruling by a judge that some particular topic should not be discussed or mentioned that care is taken by counsel and the witness is informed about the limits for the purpose of what is asked and answered before the jury is restricted, not to sanitise it but to ensure that what is before the jury is permissible questions and answers.”

228. Accordingly, I conclude that the primary judge was correct (although not for the reasons given by his Honour) to refuse the application for a permanent stay. This ground is not made out.

Orders

229. For those reasons, I propose that there be a grant of leave to appeal confined to grounds 1-5, but the appeal be dismissed.

Johnson J

230. I have had the considerable advantage of reading the judgment of Leeming JA and the judgments of the Chief Justice and Wilson J which refer to his Honour’s judgment.

231. I agree with the orders proposed by Leeming JA. Subject to what follows, I agree with his Honour's reasons.

232. I agree with what the Chief Justice has said (at [6]-[24]) concerning s.293 Criminal Procedure Act 1986.

233. Like Wilson J (at [246]), I do not agree with Leeming JA’s analysis at [153]-[154] and [156], for the reasons expressed by Wilson J (at [247]).

Button J

236. I have had the very significant benefit of reading the judgments of all members of the Court in draft.

237. I agree with the orders proposed by Leeming JA.

238. I also agree with the reasons for those orders given by his Honour, subject to the following.

239. To the limited extent that there is divergence between the judgment of Leeming JA and the judgment of the Chief Justice, I agree with the latter.

Wilson J

240. I have had the advantage of reading in draft the judgment of the Chief Justice, with which I agree.

241. I am grateful to Leeming JA for his Honour’s careful analysis of both the history of s 293 of the Criminal Procedure Act 1986 (NSW), and of the evidence of “false complaint” at the heart of this application. I agree with the orders proposed by Leeming JA, although my reasons differ in some regards.

242. Specifically, I do not share his Honour’s conclusion that the earlier decided cases concerning the interpretation and application of the former s 409B of the Crimes Act 1900 (NSW), and the present s 293 of the Criminal Procedure Act 1986, are overly broad, or wrong in some regard. Whilst the latter section contains a number of textual infelicities, I do not doubt the correctness of those authorities which have considered its broad operation.

243. Bearing in mind the history of the enactment of s 409B of the Crimes Act, and its later re-enactment as s 105 and then s 293 of the Criminal Procedure Act, it must be concluded that the legislature intended and intends that s 293 have the wide operation that it has been consistently held by this Court to have in decisions such as M v R (1993) 67 A Crim R 549. That there is no discretion available to the courts to admit evidence otherwise excluded by the provision must also be concluded to reflect the considered will of Parliament.

244. The present s 293 strikes a balance between the community’s interests in an accused person being permitted to test to the fullest extent possible the Crown case at trial, and the community’s interests in ensuring that the operation of the criminal justice system does not inhibit victims of sexual assaults from seeking the protection of the courts. Any change to that balance must be for the Parliament, and not for the courts, as Leeming JA concluded.

…

246. I cannot agree with the conclusions of Leeming JA at [153] - [154] and [156].

247. Even an allegation which seems impossible on its face may be the subject of a factual contest such that it cannot, in my opinion, be stated as a rule that an “obviously” false claim is not caught by the operation of s 293. In any event, the falsity or otherwise of a claim of sexual assault is not material to the question of the admissibility of such a claim; it is whether the claim is evidence of sexual reputation (s 293(2)), or whether it discloses or implies those things referred to in s 293(3), subject to the exceptions specified by s 293(4).

248. Where it is necessary to hold a preliminary inquiry to determine the admissibility of disputed evidence, s 293 does not prevent that course. However, consistent with the purpose of the provision, any voir dire should ordinarily be conducted on the documents. It would be wholly inconsistent with the intention of the legislature in introducing s 409B of the Crimes Act and maintaining its operation in s 293 of the Criminal Procedure Act for a complainant to be required to give evidence viva voce and endure the sort of humiliating and distressing cross-examination that the Parliament sought to prevent.

249. In my conclusion, the orders of the Court should be as proposed by Leeming JA.

MacFarlan JA (the taking of a pregnancy test satisfies the s293(4)(c) threhold)

1. In December 2020 the applicant stood trial in the District Court before a judge and jury on an indictment alleging three offences of sexual intercourse without consent, contrary to s 61D(1) of the Crimes Act 1900 (NSW) (Counts 1, 3 and 4). As an alternative to Count 1 the applicant was charged under Count 2 with indecent assault, contrary to s 61E(1) of the Crimes Act. The offences were alleged to have occurred on a single occasion between 1 September 1990 and 10 November 1990 when the applicant, who is an older brother of the complainant, is alleged to have grabbed the complainant, dragged her into his bedroom and sexually assaulted her whilst they were alone together in the family home. The applicant was then 18 years old and the complainant was then 15 or 16 years old.

2. On 16 December 2020 the jury returned verdicts of guilty on Counts 2 and 4 and not guilty on Counts 1 and 3.

3. On 1 April 2021 the applicant was sentenced to an aggregate term of imprisonment of 4 years and 3 months with a non-parole period of 2 years and 6 months, commencing on that date and expiring on 30 September 2023. The aggregate head sentence expires on 30 June 2025.

4. The applicant seeks leave to appeal against his convictions and relies on three grounds of appeal as follows:

“1) The guilty verdicts in respect of counts 2 and 4 were unreasonable.

2) A miscarriage of justice resulted from the failure of trial counsel for the applicant to seek to have admitted pursuant to s 293(4)(c) Criminal Procedure Act 1986 evidence that the complainant had sexual experience or had taken part in sexual activity.

3) The trial judge erred in declining to exclude evidence of the pregnancy test”.

5. The applicant does not allege that the verdicts of guilty on Counts 2 and 4 were unreasonable by reason of inconsistency of them with his acquittals on Counts 1 and 3. Rather, his contention is that they were unreasonable when considered in light of the evidence as a whole.

6. For the reasons that appear below, I considered that grounds 1 and 2 should be upheld, the verdicts on those counts quashed and verdicts of acquittal entered.

...

8. The s 293(6) application concerned evidence led in the Crown case that, after the applicant sexually assaulted the complainant, she complained to her family doctor and later underwent a pregnancy test. Records produced by Medicare show that the complainant had a pregnancy test on 16 November 1990. In light of that evidence, the applicant sought to cross-examine the complainant in relation to a suggestion that she had been sexually assaulted by a man named “Ian”, with whom she had been in a short relationship. One issue that arose on the application was when that relationship and the alleged sexual assault by Ian occurred.

...

11, In the course of argument in the District Court, counsel for the applicant conceded that his application could not succeed in light of the decision of this Court in Taleb v R (2015) NSWCCA 105 at [120]–[125]. Relevantly, that decision confirms what is apparent from the terms of s 293(6), namely that the subsection’s operation is conditioned on a disclosure or implication in the Crown case of the type described in section 293(6)(a). No such disclosure or implication by the Crown was foreshadowed, as a result of which the subsection was inapplicable.

12. The applicant’s counsel did not then make any application under s 293(4)(c). The absence of such further application is the subject of the applicant’s second ground of appeal. Counsel did however argue before the Trial Judge that evidence of the pregnancy test ought to be excluded under s 137 of the Evidence Act 1995 (NSW) which is in the following terms:

“137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant”.

THE EVIDENCE AT THE TRIAL

13. By an ex tempore judgment of 2 December 2020, the Trial Judge rejected the application and admitted the evidence of the pregnancy test, stating...

...

GROUND 2 – WHETHER A MISCARRIAGE OF JUSTICE RESULTED FROM THE FAILURE OF TRIAL COUNSEL FOR THE APPLICANT TO SEEK TO HAVE ADMITTED PURSUANT TO S 293(4)(C) CRIMINAL PROCEDURE ACT 1986 (NSW) EVIDENCE THAT THE COMPLAINANT HAD SEXUAL EXPERIENCE OR HAD TAKEN PART IN SEXUAL ACTIVITY

75. As noted in [7] and [11] above, trial counsel for the applicant made an application for a ruling in relation to s 293(6) of the Criminal Procedure Act which he withdrew when he became aware of authority that precluded the application succeeding. On appeal, the applicant submits that his trial counsel should instead have relied on s 293(4)(c) and that the failure of his counsel to do this was “incapable of rational explanation on forensic grounds” (Nudd v The Queen [2006] HCA 9; 162 A Crim R 301 at [16]; Hanna v The Queen [2017] NSWCCA 168 at [17]; Xie v The Queen [2021] NSWCCA 1; (2021) 386 ALR 371 at [415]). The applicant submitted that in those circumstances he was not bound by the conduct of his trial counsel and that a miscarriage of justice occurred with the consequence that his convictions should be quashed (Restricted Judgment [2021] NSWCCA 113 at [74], [75]).

76. The applicant argued on appeal that he ought to have been allowed to utilise in cross-examination of the complainant (and presumably of the complainant’s sister P) material contained in their police statements (see [8]-[10] above). The material is to the effect that the complainant was raped by a man named “Ian” who ejaculated inside her. The applicant contended that this may have occurred at a time that rendered it a reasonably possible explanation for the presence in the complainant of the semen that led to her being tested for pregnancy.

77. On appeal the applicant explained as follows how he was entitled to do this notwithstanding the general prohibition in s 293(3) of evidence that discloses or implies other sexual activity or experience of a complainant (see [7] above). That prohibition applied because the offences of which the applicant was charged were “prescribed sexual offences” within the meaning of s 293(1).

78. The first condition for the application of the exception provided by s 293(4)(c) to the general rule in s 293(3) is that there has been an allegation of sexual intercourse of the accused with the complainant and that the accused person does not concede that that intercourse occurred (s 293(4)(c)(i)). This condition was plainly satisfied.

79. The second condition (so far as material to this case) is that the evidence is relevant to whether “the presence of semen… is attributable to the sexual intercourse alleged to have been had by the accused person” (s 293(4)(c)(ii)).

80. In oral argument on appeal the applicant submitted that there were two ways in which the evidence indicated “the presence of semen”. First, the complainant gave evidence of a conversation with Dr Bright in which she made it clear that the applicant had ejaculated inside her (see [21] above). Secondly, the applicant submitted that, in indicating that a pregnancy test was conducted on 16 November 1990, the Medicare records implied the “presence of semen” because, as a matter of acceptable inference, a pregnancy test would not be conducted in the absence of a belief by the patient and/or doctor ordering the test that semen had or may have been inside the patient. I accept that this inference should be drawn, with the result that the next question becomes whether the material available to the applicant and intended to be the basis of cross-examination of the complainant and sister P was “relevant” in the sense to which s 55 of the Evidence Act refers. That is, if it were accepted, could it have “rationally affect[ed] (directly or indirectly) the assessment of the probability” of the pregnancy test having been undertaken because of the alleged sexual assaults by the applicant. If the rape by Ian arguably occurred at a relevant time, it was capable of doing this.

...

87. In light of the central role that the pregnancy test played in the Crown’s case, I consider that the applicant has lost a significant opportunity to be acquitted and that a miscarriage of justice has therefore occurred by reason of the applicant’s trial counsel not seeking to rely at the trial on s 293(4)(c) and the material concerning the complainant’s rape by Ian. Accordingly, Ground 2 should be upheld and on this basis, as well as on the basis of Ground 1, the applicant’s convictions should be quashed. As I have said above, the upholding of Ground 1 also warrants a verdict of acquittal being entered.

Walton J (the taking of a pregnancy test satisfies the s293(4)(c) threhold)

96. I have had the advantage of reading the draft judgments of Macfarlan JA and Rothman J. I agree with the orders proposed by Macfarlan JA for the reasons given by his Honour.

Rothman J (the taking of a pregnancy test does not satisfy the s293(4)(c) threhold)

97. I have had the advantage of reading, in draft, the carefully crafted reasons of Macfarlan JA. I agree with the orders he proposes and, except as set out in the following paragraphs, with his Honour’s reasons. I am able to be brief and I adopt the terminology of Macfarlan JA.

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103. The issue of fact, in these proceedings, is whether the pregnancy test was occasioned by the alleged rape or other sexual activity. This, in turn, affects whether there is a reasonable hypothesis inconsistent with the guilt of the applicant. It does so by denying efficaciousness to the evidence of the pregnancy test being corroborative of the complainant’s allegations.

104. If the complainant had told others that she had been raped by Ian, then evidence of that conversation to prove the truth of its content would be hearsay. It may be an admission because it is a statement against interest, but the complainant is not a party to the criminal proceedings. Of course, Ian may have been called to give evidence that he had penile/vaginal intercourse with the complainant.

105. The circumstance that the complainant was raped by another, if that were so, adds nothing to the sexual activity. In other words, if the sexual intercourse with Ian occurred consensually, it would have the same probative value as would a rape.

106. The applicant relies on the admissibility of that evidence by operation of s 293(4)(c) of the Criminal Procedure Act. As is obvious, the paragraph requires two conditions: first, an allegation of sexual intercourse that is denied; and, secondly, the sexual experience being utilised to assess the probability that the presence of semen, a pregnancy, disease or injury is attributable to the alleged, and denied, sexual intercourse.

107. The first condition is plainly satisfied. As to the second, the complainant undertook a pregnancy test. It is not suggested that she was pregnant. Nor is it suggested that the complainant suffered from a relevant disease or injury.

108. The applicant relies on the sexual experience being relevant to the presence of semen. Plainly, leaving aside a medically implanted foetus, all pregnancies require the presence of semen in a woman, even artificial insemination.

109. However, the requirement for the “presence of… pregnancy, disease or injury” does not include a fear of pregnancy, disease or injury. Nor does it include a determination of whether the pregnancy, disease or injury exists.

110. It is no different with semen. While ejaculation of a healthy male will ordinarily involve the emission of semen, not every ejaculation involves the discharge of semen. A pregnancy test is taken because, in this circumstance, there is a fear or perception that semen was discharged, which might cause pregnancy. A negative pregnancy test does not prove, or disprove, the presence of semen. It cannot therefore prove or affect the probability of whether semen, which is not proved to be present, was that of the accused person.

111. The construction urged by the applicant ought not to be adopted. Where, in s 293(4)(c), the term “presence of semen” is used, it does not include the fear or perception of the presence of semen. It refers to circumstances where semen is located in, relevantly, the complainant and there remains a possibility that the semen may not be that of the accused.