Bloomfield (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0242

TIMOTHY BLOOMFIELD (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, WALKER and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2025
DATE OF JUDGMENT:	9 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 98
JUDGMENT APPEALED FROM:	DPP v [Bloomfield (a pseudonym)] (Ruling 1) (County Court of Victoria, Judge Wraight, 12 December 2024); DPP v [Bloomfield (a pseudonym)] (Ruling 2) (County Court of Victoria, Judge Wraight, 19 December 2024)

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CRIMINAL LAW – Interlocutory appeal – Rape and sexual assault – Whether judge erred in not granting leave to cross‑examine complainant about sexual activities – Where complainant had made prior complaints of sexual abuse – Where prior complaints involve similar circumstances to present complaints – Judge not satisfied evidence of prior complaints substantially relevant to a fact in issue – Whether necessary for applicant to establish falsity of prior complaints – Complaints sufficiently similar to permit inferential reasoning – Interests of justice allow applicant to cross‑examine complainant about prior complaints – Appeal allowed.

Criminal Procedure Act 2009, ss 342, 346(2), 349.

Jackmain v The Queen (2020) 102 NSWLR 847, considered.

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Counsel
Applicant:		Ms M O’Brien with Ms B Proud
Respondent:		Mr J Dickie
Solicitors
Applicant:	Malkoun & Co Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

352

EMERTON P
KAYE JA:

Introduction

The applicant is facing trial in the County Court of Victoria on four charges of rape (charges 1, 3, 5 and 7) and four charges of sexual assault (charges 2, 4, 6 and 8). The alleged offending took place on 21 February 2021 (charges 1 and 2), 5 March 2021 (charges 3 and 4) and on two separate occasions on 6 March 2021 (charges 5 and 6, and charges 7 and 8).[1]
[1]The Crown also alleges that on 21 February 2021 and 6 March 2021, the complainant was affected by prescription drugs. The Crown alleges that on 5 March 2021, the complainant was deprived of sleep, food and water such that she was not capable of consenting.
It is alleged that on those occasions the applicant sexually penetrated the complainant’s vagina without her consent. There is no direct evidence of penetration. The complainant (‘KF’) alleges that on each occasion she was asleep and has inferred from surrounding circumstances that the sexual penetration took place. Her evidence is that she did not consent to any sexual contact and had repeatedly made it clear to the applicant that she did not want any sexual contact.
The applicant denies that he engaged in sexual activity with KF without her consent. He says that he and KF had consensual sexual intercourse on a handful of occasions between the end of February 2021 and early March 2021. The applicant maintains that KF was an active, conscious and willing participant in all the sexual activity and denies that she was ever affected by prescription drugs to an extent that she was incapable of consenting to that activity.
The applicant and KF were previously friends and lived in a share house together. They had a mutually supportive relationship. KF had told the applicant that she had previously been sexually assaulted by another man, TE, some two years before the events in question (the ‘TE incident’). The applicant is aware that KF had also previously complained of being sexually assaulted by another person, AP (the ‘AP incident’). He contends that each of these prior complaints involved similar circumstances to those alleged against him.
The applicant wishes to cross‑examine KF about both of these prior complaints. He applied to the trial judge under s 342 of the Criminal Procedure Act (‘CPA’) for leave to do so. Section 342 of the CPA requires the leave of the court to cross‑examine a complainant as to his or her sexual activities.
The prosecution also applied pursuant to s 342 of the CPA for leave to ask KF questions about conversations she had with the applicant regarding previous sexual abuse she had experienced. In the prosecution application, the evidence of ‘sexual activity’ in question was identified by reference to the following paragraph in the summary of prosecution opening: ‘The complainant was distressed. She had previously told the accused about previous sexual abuse’.
The prosecution sought to adduce this evidence in order to prove the applicant’s knowledge that KF would not consent to having sex with him because she had been traumatised by previous sexual abuse.
Having reviewed the evidence of the prior complaints, the trial judge was not satisfied that the evidence of the prior complaints had substantial relevance to a fact in issue in the trial or that it was in the interests of justice to allow the questioning proposed. As a result, his Honour refused both applications.
For the reasons that follow, the appeal must be allowed.

Background

The allegations

At the relevant time, the applicant and KF resided together in a share house. They had separate bedrooms and separate bathrooms: the applicant on the ground floor; KF on the top floor. They initially shared the house with a couple, BN and AP. BN and AP had moved out by the time the alleged offending occurred.
The applicant and KF were close friends. Both suffered from poor mental health, and they confided in and provided support to one another. The applicant was besotted with KF and wanted more. KF says she made it very clear to the applicant that because she had been sexually abused, she could not sustain a sexual relationship of any kind and was not interested in being his girlfriend.
KF alleges that in the early hours of 21 February 2021, when she was feeling unwell, the applicant gave her two Seroquel tablets to help with the pain. When they did not help, he gave her two Valium tablets and two more Seroquel tablets. The next thing she remembers was falling off the applicant’s bed with her ‘underwear past her [buttocks] and her tampon had been removed’. She retreated to her own room. The applicant came into her bedroom and asked ‘what do I do with this?’ She did not know what he was talking about because she was in the ensuite with the door closed and could not see him. When she eventually calmed down and came out of the bathroom, she found her used tampon on her TV unit. She said she knew that she had not taken out her tampon or pulled down her underwear. She also had pain in her vagina.
These alleged events constitute charge 1 (rape) and charge 2 (sexual assault).
When KF woke in the morning, there was a text message from the applicant which said:
I’m sorry. I’m disgusting. I’m sorry. I hate myself. I’ll never ever ever ever ever ever ever ever forgive myself. My head was in a trance and I should have known better. I’ve betrayed you and it’s all my fault. I’m sick at the thought of me, I never want to think of what I did. I’ll never go near you again.
KF says that on 5 March 2021, after several days of no sleep, food or water, she felt dizzy and the applicant put her on his bed. She does not remember anything until she was woken by the applicant shaking her and telling her that she needed to shower immediately. She was so ‘out of it’ that when she went upstairs to go to her bathroom she only made it to the middle floor of the house and almost fell asleep on the couch. The applicant came and brought her back downstairs and made her shower in his bathroom. She then realised that she had on different clothes from those she had been wearing. Her underwear was ‘all twisted and smelt like cum’ and her vagina was very sore.
KF says that the applicant never told her why she needed a shower, even though she asked him ‘heaps of times’. She also asked him why she had to shower in his bathroom and why she could not shower in her own bathroom, but the applicant just responded that she needed to shower.
These alleged events constitute charge 3 (rape) and charge 4 (sexual assault).
KF says that on 6 March 2021, she was feeling unwell. The applicant put her to bed in his own bed and gave her two Valium tablets. She says that her lower stomach was ‘in agony’ and that the applicant started touching her stomach to see if he could feel anything abnormal. He pressed on her lower pubic bone and she said ‘no, don’t do that’. This was the last thing she remembers as she must have ‘passed out’. She woke up on the floor of the applicant’s bedroom. Her white G‑string underwear was on sideways and when she went to the toilet there was a little bit of blood in her underwear.
These alleged events constitute charge 5 (rape) and charge 6 (sexual assault).
KF alleges that later on the same day, 6 March 2021, the applicant gave her two more Valium tablets then went out to dinner. While the applicant was out, KF took the rest of his Valium tablets (all 16 of them). She said that she did not hear the applicant come home. She was asleep in his bed because she was too drowsy and dizzy to go upstairs. She was woken up by the applicant yelling at her saying ‘you’re bleeding a lot’. She no longer had on her white G‑string, ‘so it didn’t make any sense’. The applicant told her to go and look at her underwear, which was in his washing basket, but she was unable to get up. Her vagina was sore and she did not feel well.
These alleged events constitute charge 7 (rape) and charge 8 (sexual assault).
In relation to this last incident, as to why she swallowed the 16 Valium tablets, KF said she felt like she had to make ‘it’ look like a medical emergency so that she would be able to tell the police at the hospital what had happened rather than call them and have the detectives come to the house. However, the applicant came home early, so she did not have time to call the ambulance.
KF left the house after the last of the alleged incidents and made no contact with the applicant for two weeks. She then made a pretext call, in the course of which she told the applicant that she had been bleeding from the vagina and had undergone surgery ‘down there’ (which was untrue). KF told the applicant this was because it was ‘all like, fucked up’ (presumably also untrue). In the course of describing the bleeding, KF told the applicant that while the whole thing was ‘so random’ and had happened all of a sudden, the only time it had happened before was when it happened ‘with [TE]’.
In the course of this pretext call, after KF had told the applicant that she was bleeding as she had done after the TE incident, she asked him to explain some things he had said to her that did not ‘make sense’. The applicant told KF that some ‘stuff’ had happened between them, that they were in his bed just touching each other and then she fell out of bed. Later on, the applicant told KF that the ‘same deal’ had happened a couple more times. KF stated that she did not know any of this had happened, to which the applicant responded, ‘Really?’ and ‘Oh, I thought you did. That just makes it so much worse’. When asked what had happened, the applicant told KF that they had had sex. He said he was not sure how many times but it was not that many.
The applicant expressed surprise that KF did not remember and said he did not understand how she did not remember. He told her that one thing had led to another and that he wanted to make the point that he did not force himself on her. He said he would never do that. ‘It just happened, like, just touching, whatever, and then it progressed to that, and that was — that was the extent of it, nothing weird or fucked up’.
The Crown relies on the following evidence with which it intends to prove penetration, and, in the alternative, sexual assault:
(a)the applicant expressing a sexual interest in KF, including on 20 February 2021 (when they ate together at the Pancake Parlour) and on earlier occasions;
(b)with respect to 21 February 2021 (charges 1 and 2), KF discovering, after the drugs she had been given by the applicant (multiple Seroquel and Valium tablets) had worn off, that her underwear had been moved and a tampon removed from her vagina, KF later feeling pain in her vagina, the applicant apologising to KF and promising never to touch her again, and the applicant later texting KF that he was sorry, he was disgusting, he would never forgive himself, he had betrayed her and he was never going near her again;
(c)with respect to 5 March 2021 (charges 3 and 4), the applicant picking KF up when sleepy and placing her on his bed, the applicant later telling KF — after she awoke — that she needed to shower, and encouraging her to do so, and KF’s discovery that she was wearing different clothes, her underwear was twisted and smelled of semen, and her vagina was very sore;
(d)with respect to the first allegation on 6 March 2021 (charges 5 and 6), the applicant helping KF to his room after she complained of not being able to breathe properly and having abdominal pains and giving her two Valium tablets, the applicant having touched KF on her lower pubic bone, after which she told him not to, and — after she awoke — KF discovering that her underwear was on sideways and contained a small amount of blood;
(e)with respect to the second allegation on 6 March 2021 (charges 7 and 8), KF waking, after taking multiple Valium tablets, to hear the applicant tell her that she was bleeding a lot and that her underpants were in his washing basket, with KF again feeling sore in her vagina; and
(f)analysis of samples found on underwear worn by KF on each of the three days, indicating the presence of semen/sperm and, upon comparison with his DNA, a strong likelihood that the applicant was a contributor to the DNA in the samples.

The prior complaints

Against this background, the applicant wishes to cross‑examine KF about prior allegations of rape or sexual assault that she made against two other men. In summary, those prior complaints were as follows:[2]
(a)In September 2018, KF complained to police that she had been raped by TE, her then boyfriend’s 15‑year‑old brother. She said this occurred while she was ‘in and out of consciousness’, but she knew that TE had penetrated her with his fingers and with his penis.
(the ‘TE complaint’)
TE was interviewed by police and initially denied that he had sex with KF. However, after DNA testing revealed TE’s semen inside KF’s vagina, TE admitted having sex with KF but said that she had initiated it. He said that he lied because of fear of a person whose name was redacted.
TE was not charged following this complaint because police concluded that there was no reasonable prospect of a conviction.
(b)KF complained to her housemate, BN, that in December 2020, after KF had ‘blacked out’ from consuming too much alcohol, she thought AP had assaulted her while she was in the shower. AP was BN’s boyfriend and was living in the house KF shared with the applicant and BN. One reason for this belief was that before she blacked out, she was using a tampon, and after she came to, the tampon was gone, and she had not removed it. She also said that she was not sure if it had occurred or not.
(the ‘AP complaint’)
KF did not complain to police about this alleged incident.
[2]Before the judge, evidence of further complaints about rape was also in issue, but the application to cross‑examine KF in relation to two of these complaints was abandoned below and one was abandoned before us. The applicant’s notice pursuant to s 342 of the CPA also stated that he wished to cross‑examine KF about two occasions on which she is said to have had consensual sexual activity with two other men, shortly after the TE incident. This was not dealt with separately in the judge’s ruling and was not the subject of argument before us, and we will thus not express any view about that aspect of his application. Nothing in these reasons should be thought to endorse the proposition that cross‑examination about those alleged events would be permitted.

Statutory framework

Section 342 is found in pt 8.2 of the CPA, which concerns the treatment of witnesses in a criminal proceeding relating to a charge for a sexual offence. Division 2 of pt 8.2 regulates evidence concerning complainants in such proceedings.
Division 1 of pt 8.2 contains the guiding principles for the interpretation and application of pt 8.2. Section 338 requires the courts, when interpreting or applying pt 8.2, to have regard to the fact that—
(a)there is a high incidence of sexual violence within society; and
(b)sexual offences are significantly underreported; and
(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and
(d)offenders are commonly known to their victims; and
(e)sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred.
Against this background, s 342 provides as follows:
The complainant must not be cross‑examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non‑consensual) of the complainant (other than those to which the charge relates), without the leave of the court.
Section 349 of the CPA then sets the parameters for the grant of leave. It provides as follows:
In the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross‑examination or to admit the evidence, having regard to—
(a)whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross‑examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and
(b)the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and
(c)the need to respect the complainant's personal dignity and privacy; and
(d)the right of the accused to fully answer and defend the charge.
Sections 344 and 346 are highly prescriptive as to how an application for leave to cross‑examine a complainant is to be made for the purposes of s 342. Relevantly, s 346(2) provides:
(2)An application for leave to cross‑examine the complainant as to the sexual activities of the complainant must set out—
(a)the initial questions sought to be asked of the complainant; and
(b)the scope of the questioning sought to flow from the initial questioning; and
(c)how the evidence sought to be elicited from the questioning has substantial relevance to facts in issue or why it is proper matter for cross‑examination as to credit.
As Leeming JA observed in Jackmain v The Queen,[3] provisions such as those in div 2 of pt 8.2 of the CPA (and their analogues in other States) were ‘informed by a recognition that evidence of a complainant’s prior sexual experiences was often used to humiliate and discredit the complainant’.[4] The provisions with which we are concerned are directed to protecting complainants from unnecessary and irrelevant attacks on their credit by reference to their sexual activities, sexual history or sexual reputation.
[3](2020) 102 NSWLR 847; [2020] NSWCCA 150 (‘Jackmain’).
[4]Jackmain (2020) 102 NSWLR 847, [100] (Leeming JA); [2020] NSWCCA 150.
Although it was not raised in argument before us, we note that s 352 of the CPA provides a further limitation on the use of ‘sexual history evidence’, as follows:
Sexual history evidence is not to be regarded—
(a)as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or
(b)as being proper matter for cross‑examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant.

The phrase ‘sexual history evidence’ is defined in s 340 of the CPA to mean evidence that relates to or tends to establish the fact that the complainant—
(a)was accustomed to engaging in sexual activities; or
(b)had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person.
Despite their generally proscriptive nature, these provisions recognise that there will be cases in which it is necessary for evidence of a person’s sexual activities and/or sexual history to be adduced in order for an accused person to receive a fair trial. The question is whether the present proceeding is such a case.

The Ruling[5]

[5]DPP v [Bloomfield (a pseudonym)] (Ruling 1) (County Court of Victoria, Judge Wraight, 12 December 2024) (‘Ruling’).

As discussed, the Ruling addressed two separate applications under s 342 of the CPA: the application made by the applicant to cross‑examine KF about sexual activities other than those to which the charges relate; and the prosecution’s application to lead evidence from KF that she had, in her dealings with the applicant, told him about her past sexual abuse. We are only concerned with the former.
The judge first observed in relation to the rape charges that there was no direct evidence from KF that penetration had occurred and that the prosecution was essentially relying on the surrounding circumstances together with DNA evidence later collected from KF’s underwear ‘which it would seem may be contaminated’.
The judge then recorded that while the applicant’s s 342 notice referred to five incidents, two were not being pressed as there seemed to be very limited sources of information about those incidents. His Honour therefore considered three incidents: the two incidents that are the subject of this judgment (the AP incident and the TE incident) and a further incident on 10 September 2019 that related to information that was provided to a psychologist on 4 March 2021.
The judge observed in relation to both the AP incident and the TE incident that there was no suggestion that the relevant complaint was false or that it was proven to be false.
The judge correctly understood the applicant to be submitting that KF made false allegations or allegations that could not be believed. His Honour observed, however, that there was no evidence to suggest the prior complaints were false. While the complaints had not been proceeded with ‘in terms of a prosecution’, there was no evidence of KF withdrawing the allegations. For reasons which were not known, the evidence did not amount to a case authorised for prosecution.
His Honour observed further that the contention that the prosecution could not prove the penetration on the actual dates alleged had little to do with the cross‑examination for which leave was sought under s 342.
The judge found some similarity ‘in relation to the context’ in which both the AP complaint and the TE complaint were made. However, having regard to the complexity of the elements that seemed to be behind these two allegations, including the evidence about KF’s state of mind and her behaviour after the allegations, his Honour considered that leading that evidence or cross‑examining on that evidence risked becoming ‘trials within this trial’.
The judge stated that he was simply not satisfied that the evidence about these allegations had substantial relevance to a fact in issue. This was because the facts in issue were ‘something of a moving feast’. If the focus was on whether penetration occurred or whether the prosecution could prove penetration occurred, this seemed to have very little to do with the credit of KF. In any event, the applicant had admitted that there was sexual activity with KF throughout this period, which might include on the dates in respect of which the allegations were made, but it was consensual.
The judge then said:
In those circumstances while there may be some relevance to some aspects of these other allegations if one was to drill down and find an inconsistency, for example, in the way in which she may have responded after an event such as that, it then gives rise to the matters I have to have regard to. For example, the risk that the evidence may arouse in the jury, discrimination, belief or bias or prejudice or sympathy or hostility. And of course, the need to respect the complainant’s dignity and privacy in circumstances, where I understand common knowledge that she does suffer a number of psychological conditions.
Again when I consider the right of the [applicant] to fully answer and defend the charge, I go back to the position of what I understand the case to be about, and I do not understand how these explorations into very complex and detailed other matters will be of substantial relevance. It is not simply a case of making an allegation to the police and then submitting a statement of no complaint. These are matters that have been complained about either to the police or to others which have vast vagaries to them in the way they were presented to me.
I cannot see how these enquiries could be easily confined to a very simple set of questions in the way that they have been anticipated in the application. For example, the circumstances of the alleged incident with [AP]. Given what has been outlined just on that incident, that questioning could go for a very long time and indeed risk opening up a number of other matters which are not known at this stage.[6]
[6]Ruling, [20]–[23].
The judge stated that he was not satisfied that the evidence had substantial relevance to a fact in issue. Furthermore, he was not satisfied that it was in the interests of justice to allow the cross‑examination having regard to the four criteria in s 349 of the CPA. There seemed to be a vast amount of evidence in relation to very separate matters in circumstances where there was no evidence the allegations were false allegations, notwithstanding some very common similarities in relation to the AP incident.
For similar reasons, the judge rejected the prosecution’s application to ask questions about prior sexual assaults. Again, it would open the door to matters that would give rise to a trial within the trial. It did not have substantial relevance, particularly in circumstances where evidence was going to be led that KF made very clear to the applicant that she did not wish to engage in any form of sexual activity or, indeed, in any form of physical activity, including hugging, touching or anything of that nature. That evidence would be led without complaint, as it did not trespass on the s 349 considerations.

Proposed grounds of appeal

The applicant seeks leave to appeal against the trial judge’s decision on two grounds:
1. The trial judge erred in finding that the evidence sought to be adduced by the defence of the complainant’s previous complaints of rape or sexual assault pursuant to s 342 of the CPA did not have substantial relevance to a fact in issue.
2. The trial judge erred in applying the interests of justice criteria outlined in s 349 of the CPA by failing to place any, or sufficient, weight on the defendant’s right to fully answer and defend the charge.

Applicant’s submissions

The applicant submits that the prior complaint evidence has substantial relevance to the following facts in issue:
(a)      whether penetration or sexual touching occurred on the charged dates;
(b)      whether KF consented to penetration or sexual touching; and/or
(c)      the reasonableness of the applicant’s belief in KF’s consent.
According to the applicant, the prosecution relies almost exclusively on KF’s account of what occurred and the prior complaint evidence is inextricably linked to the jury’s assessment of her credibility and reliability, which carries substantial weight in tending to prove or disprove the facts in issue.
The applicant contends that cross‑examination of KF about the prior complaints will demonstrate that KF was ‘untruthful about the aftermath of each account’. He says it will support the defence case that KF is lying about her sexual contact with him. The applicant contends that it is ‘so unlikely that KF has been raped or sexually assaulted with such similar features on so many different occasions that … the only reasonable inference available is that she has fabricated these accounts, including that against the applicant’.
In addition, the applicant contends that evidence about KF’s earlier complaints will ‘appropriately contextualise the applicant’s obvious bewilderment and concern for KF expressed during the lengthy pretext call, allowing him to fully answer the charge against him’. He also submits that the evidence will explain the apparently incriminating text message he sent to KF on 21 February 2021.
The applicant contends that a ‘proper, fair assessment of the facts in issue cannot occur in a trial where [he] is prevented from asking [KF] any questions about these previous allegations’.
As to the manner in which the judge assessed the interests of justice, the applicant submits that the judge erred in assessing the impact of the prior complaint evidence on his right to fully answer and defend the charge. In particular, the judge failed to have regard to the following matters:
(a)Excluding the prior complaint evidence removes the applicant’s ability to explain why he sent the apparently incriminating text message. If the applicant is unable to provide this explanation, his right to defend the charges is significantly curtailed and this message could be viewed as unfairly incriminating.
(b)The prosecution intends to lead evidence about the applicant’s relationship with KF and his desire to be her boyfriend and have sex with her. When the applicant’s communication with KF is properly contextualised, she regularly explains that the reason for her reluctance to be in a relationship with the applicant is because of her history of sexual abuse. Preventing the applicant from properly questioning KF about this renders him unable to answer the prosecution’s case.
Finally, the applicant submits that the Ruling deprives him of the opportunity to explore and expand his application to lead tendency evidence.
It is convenient to record at this point that before the trial judge, the applicant sought to rely on tendency evidence based on the prior complaints, but that application fell away once evidence of the prior complaints was ruled out. The alleged tendency, as set out in the applicant’s tendency notice, was described as follows:
[KF] has a tendency to make allegations of having been raped [or] sexually assaulted generally, and/or:
4.1. When unconscious without reasonable explanation for why she was unconscious;
4.2. After realising she was bleeding after having sex;
4.3. After realising she was wearing a tampon before losing consciousness and then did not have one in when she regained consciousness; and
4.4. Against those she was living with when facing unpleasant living arrangements.

Respondent’s submissions

The respondent submits that it is not clear how the prior complaint evidence might have any relevance to whether penetration or sexual touching occurred or to the reasonableness of the applicant’s belief in consent. Moreover, it is not apparent how a jury might sensibly use evidence of previous complaints to contextualise the pretext call in order for this to have substantial relevance to the issues in dispute.
It is submitted that, as the judge properly emphasised, there is no contradictory evidence or suggestion that KF’s earlier complaints were false. The applicant was granted leave to cross‑examine KF at his committal hearing in relation to two prior complaints but neither complaint was explored in detail.
It follows that the judge was not in error in finding that the prior complaint evidence was not of substantial relevance to a fact in issue where there was simply no evidence before the Court as to the falsity of KF’s allegations.
As to ground 2, the respondent submits that the applicant has made no persuasive argument as to why, without reference to the prior complaint evidence, he is unable to explain his conversation, text, or pretext call with the complainant and how his defence might otherwise be curtailed. The judge properly balanced, as he was required to do, the right of the applicant to fully answer and defend each charge with the other matters outlined in s 349 of the CPA, including whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant might suffer; the risk that the evidence might arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and the need to respect the complainant’s personal dignity and privacy. There was no error in the judge finding that it was not in the interests of justice to permit cross‑examination in relation to matters with respect to which the ‘questioning could go for a very long time and indeed risk opening up a number of other matters which are not known at this stage’.
However, counsel for the respondent fairly conceded during the course of the hearing that the right of an accused to fully answer and defend the charges is ‘very powerful’ in the context of the balancing exercise and submitted that:
… on the facts of this case, in terms of that unfairness [to the applicant], the matters that your Honours have raised during the course of discussion, if your Honours were to conclude that [the prior complaint evidence] was of some substantial relevance to ensure a fair trial of the applicant, then I would struggle to respond sensibly to that.

Consideration

The applicant has proposed two grounds of appeal involving the application of s 349 of the CPA. It is convenient to deal with those grounds together.
It is plain that the applicant seeks leave to cross‑examine KF about the AP complaint and the TE complaint with a view to damaging her credit. However, how this is to be achieved is somewhat opaque. The tendency notice indicates that the applicant seeks to establish that KF has a tendency to make allegations of rape or sexual assault. Unstated, but implicit in the notice, is the proposition that the prior complaints are false. The judge proceeded to decide the application on that basis.
It is convenient to commence our analysis by making some general observations about the relevance of prior complaints of rape or sexual assault.
First, the fact that a person has complained of rape or sexual assault in the past has, in and of itself, no relevance to whether the person was raped or sexually assaulted on a different occasion by a different person. It is plainly possible for a person to be raped or sexually assaulted by different people on different occasions, so even if the person’s earlier complaint was true, it has no relevance to the later allegations. It is also possible for a person who has previously falsely complained of rape or sexual assault to in fact have been raped or sexually assaulted on a later occasion. Finally, it is possible that whether a person’s prior complaints are true or false will be unclear, so that they shed no light on the truth or otherwise of the allegations in issue. Thus, the mere fact that a person has previously complained of being raped or sexually assaulted is not, for that reason alone, necessarily relevant in a trial of a different person for a different sexual assault.
Secondly, the fact that an earlier complaint was made to police, but police declined to lay charges based on that earlier complaint, does not mean that the complaint was untrue. A decision not to lay charges may simply reflect the view that the charges would not be able to be proved beyond reasonable doubt. Likewise, the fact that an earlier complaint was made to someone other than police, and never made to police, does not mean that the complaint was untrue. It may also reflect a person’s unwillingness to subject themselves to the criminal justice process.
Accordingly, the mere fact that KF made two prior complaints of rape and/or sexual assault, which did not result in any person being charged, does not mean that leave should be granted to adduce evidence of those complaints. Something more is required.
In this case, the applicant submits that two distinct matters render the prior complaints relevant to the jury’s consideration of the allegations against him:
(a)the prior complaints assist him to explain the incriminating text message and his bewilderment and concern during the pretext call; and
(b)the similarities between the two prior complaints and the allegations against him make it likely that all three complaints were fabricated.
We begin by considering the second of these submissions, that is, the manner in which the cross‑examination of KF is proposed to be used to attack her credit.
The applicant submits that it is ‘so unlikely’ that KF has been raped or sexually assaulted ‘with such similar features on so many different occasions’ that the only reasonable inference available is that she has fabricated these accounts — and that she has fabricated the allegations against the applicant. Although not formulated expressly as such, it appears that this is an argument combining something akin to coincidence reasoning with tendency reasoning.[7]
[7]No notice of an intention to rely on coincidence reasoning has been filed, but as noted above, a tendency notice was filed. The judge did not rule on the tendency application, given that he declined to grant leave under s 342 of the Criminal Procedure Act.
In short, the applicant’s argument is that this reasoning leads to the conclusion that KF has lied about two rape allegations in the past; the next step in the chain of reasoning is that she has a tendency to fabricate such allegations, which supports the conclusion that she fabricated the allegations against the applicant. In this sense, the applicant’s argument might be seen to turn on the falsity of the allegations, but in circumstances where there is no clear evidence that the allegations were in fact false.[8]
[8]In contrast, in Jackmain, for example, the complainant admitted to having ‘made up’ certain complaints; at other times denied making any complaints of sexual assault or rape; and in relation to another complaint, pleaded guilty to making a false report and admitted she did the wrong thing in making a false complaint: [42]. However, Leeming JA cautioned against describing the falsity of these complaints as ‘proven’: [43].
Based on the way in which the applicant put his argument, the trial judge refused the application under s 342 on the basis that the prior complaints could only be relevant to the facts in issue at trial if they were false complaints. The defence had sought to rely on the proposition that KF’s credit was undermined by her tendency to make false complaints. However, there was no evidence that the prior complaints were false.
We accept that if it were necessary to prove the prior complaints were false, this would necessitate a ‘trial within a trial’. We also repeat that, as a matter of principle, the fact that a complainant has made one or more prior complaints of rape or sexual assault of itself says nothing about the veracity of a further complaint or the credit of the complainant.
Although the question before us is governed by statute, there is persuasive authority in other jurisdictions with similar but not identical statutory regimes — New Zealand, the United Kingdom and Canada — to the effect that if it is sought to rely on a prior false complaint to impugn the evidence of a complainant, there must be some evidential foundation that the prior complaint was in fact false before it can be raised.[9]
[9]See, eg, Best v R [2017] 1 NZLR 186; [2016] NZSC 122; R v T; R v H [2001] EWCA Crim 1877; E v R [2005] Crim LR 227; [2004] EWCA Crim 1313; R v D [2009] EWCA Crim 2137; R v BJK [2024] EWCA Crim 667; R v Riley (1992) CarswellOnto707; (1992) 11 OR (3d) 151; R v G (2015) CarswellOnt 2641; [2015] ONSC 923.

As this reflects the logic of what we have said in [65] and [66] above, we do not seek to depart from this position.
However, we do not consider that it is necessary for the applicant to assert, let alone prove, the falsity of the complaints about AP and TE in order for evidence about those complaints to be relevant to a fact in issue in this trial. The similarities between the two prior complaints and the present allegations constitute a sufficient basis for the applicant to contend that it is so improbable that KF was raped in such similar circumstances on three separate occasions (involving six separate assaults) by three different men in a period of two and a half years, as to raise a reasonable doubt about his guilt in the present case.
There are a number of close similarities between the AP complaint and the allegations against the applicant:
(a)the fact that KF claims to have been unconscious at the time of each of the alleged assaults;
(b)the fact that KF does not remember the assaults and cannot say definitively that they had occurred — rather, she has inferred that she was assaulted by reason of other circumstances;
(c)in both cases, one of the circumstances that led KF to infer that she had been sexually assaulted was that she had a tampon in her vagina prior to losing consciousness, but it was gone when she regained consciousness;
(d)the fact that the complaint against AP and one of the complaints against the applicant involved KF taking a shower after having blacked out;
(e)the two assaults are alleged to have taken place in the same house when both men were residing there; and
(f)the two assaults are alleged to have taken place reasonably closely together in time — the alleged assault by AP was said to have occurred on 12 December 2020 and the assaults by the applicant were alleged to have occurred on 21 February 2021 and on 5 and 6 March 2021.
In our view, these similarities constitute a solid basis for the applicant to argue that it is improbable that KF was raped or sexually assaulted on two separate occasions by two different men in such similar circumstances. It is not necessary for the AP complaint to be a false complaint for inferential reasoning of this kind to be open to the jury.
The similarities between the TE complaint and the allegations made against the applicant are not as obvious. They are, nevertheless, material.
At the time of the TE incident, TE was staying in the same house as KF. TE had stayed at the house over a number of weekends before the alleged incident. Unlike AP and the applicant, TE was not KF’s house‑mate, but he was a regular presence at the house and, as the brother of KF’s house‑mate and then boyfriend, could be regarded as part of the domestic arrangements. And, as was the case for the AP complaint and in the present allegations, at the time of the TE incident, KF was in a state of significantly reduced consciousness, in that she was falling in and out of sleep, albeit that she recalls the sexual penetration.
KF’s state of consciousness during the TE incident bears closer examination. KF stated that when the incident commenced, she was asleep, but she woke up when she felt TE touching her buttock. She described how TE then started to touch her buttocks and vagina, and to remove her pants and underwear. At that time, she said she was ‘only half awake’, and she drifted back to sleep. She said, ‘I could just not stay awake’. KF stated that she then felt TE trying to put his finger in her vagina, and that he did so, but she was ‘still half asleep’. She said that she felt it for about a minute or so, and then she fell asleep again. KF said that, subsequently, she woke up. She could feel TE’s penis touching her buttocks, and he attempted to put his penis into her vagina. She said it took a while, but he managed to insert his penis into her vagina. KF said that it seemed to go on for a long time, ‘but I was still half asleep, I fell asleep again’. She said that when she woke up, TE’s penis was not inside her, and he was trying to pull her pants up.
It seems to us that KF’s description of her diminished states of consciousness during the TE incident is not, in fact, at all far removed from her descriptions of her state of unconsciousness during the AP incident and in the present allegations. In all three cases, KF alleges that she was so disabled as to be incapable of giving consent. Her description in the TE incident of becoming conscious to the extent that she was ‘half asleep’ and then quickly falling asleep again (despite being aware that TE was touching her in an unwelcome way) is similar to her description of being so ‘out of it’ during the alleged events on 5 March that she could not make it to the top of the stairs and ‘nearly’ fell asleep on the couch on the middle floor. It is reasonable to infer that KF’s compromised ability to understand and control what was happening to her on each occasion was due to her being heavily medicated, and the difference between her being unconscious, ‘half asleep’ or ‘asleep’, ‘passed out’ or ‘blacked out’, or ‘drowsy’, conscious or awake, is relative in that context. What is important is that on each occasion, KF says she was in a diminished state of consciousness such that she was incapable of giving consent.
In essence, KF has made three separate complaints of sexual assault (involving six separate assaults) against three different men, each of whom was residing or staying in the house that she then occupied. She has alleged, in relation to each assault, that because she was in a unconscious state, or state of reduced consciousness, she did not have the capacity to, and did not, consent. All of the incidents took place within a two and a half year period, although the AP incident and the incidents that are the subject of the present allegations are much more proximate in time to each other than to the TE incident.
In our view, depending on how the evidence of the similarities emerges at trial, the exposure of these similarities in the cross‑examination of KF permits an inference to be drawn that it is improbable that KF was raped in such similar circumstances on six separate occasions by three different men. This form of reasoning does not depend on the prior complaints being false complaints. Rather, it may enable the applicant to raise a reasonable doubt about the credibility of KF’s allegations against him that, on four separate occasions, he had non‑consensual sexual intercourse with her while she was unconscious (asleep).
In this context, we emphasise that the probative value of the prior complaint evidence is to be assessed having regard to the fact that it is sought to be adduced in order to establish a defence to the charges against the applicant; that is, to raise as a reasonable possibility the existence of facts consistent with his innocence. In the present case, the evidence would be specifically relevant to the credibility (and reliability) of the evidence given by KF that, on four separate occasions, the applicant had non‑consensual sexual intercourse with her while she was unconscious.
It follows, in our view, that evidence of the prior complaints about AP and TE is substantially relevant to a fact in issue — whether the applicant had non‑consensual sexual intercourse with KF while she was unconscious — and its use in the manner we have described does not require the conduct of ‘a trial within a trial’ to establish the falsity of the prior complaints. Indeed, whether the prior complaints were true or false is irrelevant. Cross‑examination permitted under s 342 would not extend to questions directed to establishing the falsity of those complaints.
As to whether it is in the interests of justice to permit the cross‑examination, the evidence that could be adduced from KF about the AP complaint is limited because her evidence at the committal was that she does not recall any precise events — rather, she ‘blacked out’ and inferred that she had been sexually assaulted because her tampon had been removed. Thus the distress, humiliation and embarrassment that KF may experience as a result of the cross‑examination is likely to be relatively minor. Moreover, the evidence concerning the AP complaint is unlikely to arouse in the jury any discriminatory belief or bias. There will be intrusion into KF’s personal dignity and privacy, but the probative value of the evidence outweighs the distress and humiliation that she might experience and the applicant’s right to fully answer and defend the charges against him requires that he be permitted to cross‑examine the complainant in relation to the AP complaint.
For these reasons, it is in the interests of justice for the applicant to cross‑examine KF about the AP complaint.
As to whether it is in the interests of justice to allow the proposed cross‑examination about the TE complaint, we recognise that KF considers the TE incident to be have been particularly traumatic. She was drifting in and out of consciousness during the TE incident and was not fully unconscious as she was during the events alleged against AP. Cross‑examination about the TE complaint is likely to cause her distress, and she may regard it as a significant intrusion on her dignity and privacy. However, any cross‑examination about the TE complaint will be required to focus on the nature of that complaint and the similarities with the present allegations and the AP complaint, not the details of any sexual penetration. In these circumstances, the probative value of the evidence outweighs the distress that KF might experience. Importantly, given the probative value of the coincidence reasoning that is enlivened by the TE complaint, the applicant’s right to fully answer and defend the charges against him requires that he be permitted to cross‑examine KF about it.
We therefore consider that it would be in the interests of justice to allow the applicant to cross‑examine KF about the TE complaint.
In so holding, we stress that none of the cross‑examination about the AP complaint or the TE complaint may be directed to establishing the falsity of those complaints. Having regard to the permissible purpose of the cross‑examination, it is simply not relevant whether those complaints were true or false.
As a further matter, we do not consider that the permissible cross‑examination is cross‑examination directed to impugning KF’s credibility per se. Rather, it is directed to the credibility or reliability of KF’s account that the applicant had non‑consensual sexual intercourse with her while she was unconscious — which is plainly a fact in issue. We did not have the benefit of any argument on the application of the credibility rule in s 102 of the Evidence Act, and it does not seem to us to have any application, as the permissible cross‑examination is not relevant only because it affects KF’s credibility.
We also note that we did not have the benefit of any argument on the application of s 352 of the CPA to the question at hand. Its existence was mentioned only in passing by counsel for the applicant, and the Crown did not seek to rely on it. However, we make the following observations.
Broken into its component parts and applied to the facts in this matter, s 352 provides relevantly that:
(a)‘sexual history evidence’, that is, evidence that KF was accustomed to engaging in sexual activities and/or freely agreed to engage in sexual activity with the applicant or another person (AP or TE);
(b)is not to be regarded as a proper matter for cross‑examination as to KF’s credit unless, because of special circumstances, it would be likely to materially impair confidence in the reliability of KF’s evidence.
The evidence sought to be adduced in cross‑examination exposing the AP complaint and the TE complaint is not evidence that KF was accustomed to engaging in sexual activities or that she freely agreed to engage in sexual activity with either AP or TE. It is evidence that she has made complaints that AP and TE raped her in circumstances that are similar to those alleged against the applicant. It involves evidence of the existence and content of the complaints, but whether those complaints were true or false, that is, whether or not she freely engaged in sexual activity with AP or TE, is not in issue.

It follows that s 352 does not appear to affect our conclusion that KF can be cross‑examined as to her credit having regard to the similarities between the AP complaint, the TE complaint and the allegations she makes against the applicant.
Finally, we also consider that the prior complaint evidence is relevant to enable the applicant to explain the text message and his responses in the pretext call. However, cross‑examination directed to explaining these matters would be limited to exposing what KF told the applicant about the prior sexual abuse she had suffered. Again, it would not go to challenging the veracity of the prior complaints.

Disposition

Leave to appeal the ruling of the trial judge refusing the applicant’s s 342 application will be granted.
The appeal will be allowed and the order refusing the applicant’s s 342 application will set aside.
The s 342 application will be remitted to the trial judge to be determined in accordance with these reasons.
This will necessitate amendment of the s 342 notice to specify, in accordance with s 346(2), the initial questions sought to be asked of the complainant, and the scope of the questioning sought to flow from the initial questioning, having regard to the permissible scope of the cross‑examination we have described.

WALKER JA:

I have had the advantage of reading in draft form the reasons for judgment of Emerton P and Kaye JA. Their reasons make it unnecessary for me to set out in detail the factual background, the relevant statutory provisions or the judge’s ruling.
I agree with Emerton P and Kaye JA that leave to appeal should be granted and the appeal should be allowed.
However, I differ significantly from Emerton P and Kaye JA in relation to the nature and scope of the cross‑examination that ought to be permitted in relation to KF’s prior complaint concerning AP and KF’s evidence concerning the alleged incident involving TE.
In relation to the AP complaint, I consider that the applicant ought not be given leave to cross‑examine KF about that complaint.
In relation to the TE incident, I consider that the applicant ought to be permitted to cross‑examine KF only in relation to what she had told him about having been previously sexually assaulted by TE. He ought not be permitted to cross‑examine her in the manner identified in his s 342 application, or otherwise in relation to her complaint to police about being sexually assaulted or any alleged similarities between the TE incident and her complaints against the applicant.

In summary, my reasons for so concluding are as follows:
(a)First, as a matter of construction, s 349 of the Criminal Procedure Act 2009 does not permit a court to grant leave to cross‑examine a complainant about their sexual activities where the cross‑examination is directed only to the complainant’s credit.
(b)Secondly, in so far as the applicant seeks to cross‑examine KF concerning her complaint against AP and the TE incident in order to impugn her credit, leave to do so was properly refused by the trial judge under s 349.
(c)Thirdly, in so far as the applicant seeks to cross‑examine KF concerning the fact that she told the applicant that she had been sexually assaulted by TE, the judge erred in refusing leave under s 349. That aspect of the cross‑examination is not directed to KF’s credit — it is directed (principally) to explaining the applicant’s state of mind when he sent KF the text message on 21 February 2021. The applicant’s case is that he believed KF’s statements to him to be true. In order to advance this aspect of his case, there is no need either to delve into the detail of the events involving TE or to seek to prove that KF’s complaint against TE was false. The factors in s 349 weigh in favour of granting leave to cross‑examine KF to that limited extent.
Finally, there is a real doubt about whether the judge erred in refusing to certify his decision under s 295(3) of the Criminal Procedure Act. That is because a decision to refuse leave under ss 342 and 349 is, in my opinion, a decision about the admissibility of evidence and thus fell to be considered pursuant to s 295(3)(a). That sub‑paragraph applies only to evidence that, if it were to be excluded, would substantially weaken or eliminate the prosecution case. The evidence in question in this case was plainly not of that character. However, in Hurst v The Queen this Court held that a decision to refuse leave under s 342 falls under s 295(3)(b).[10] Although I consider that decision to be wrong, I do not consider it to be ‘plainly wrong’, thus I am constrained to follow it.
[10][2021] VSCA 3 (‘Hurst’).
I consider that the judge’s decision to refuse leave under ss 342 and 349, in so far as it concerned cross‑examination of KF about what she had told the applicant about the TE incident, was of sufficient importance to the trial to justify it being resolved on an interlocutory appeal.

The construction of s 349 of the Criminal Procedure Act

Section 349 of the Criminal Procedure Act sets out the circumstances in which a court may grant leave under s 342 to cross‑examine a complainant concerning their sexual activities (other than the activities to which the charge relates). The section prohibits a court from granting leave unless:
(a)the evidence has substantial relevance to a fact in issue; and
(b)it is in the interests of justice to allow the cross‑examination.
A threshold question is whether a court may be satisfied that the evidence has substantial relevance to a fact in issue where the evidence goes only to the complainant’s credit. As this Court observed in Hurst, ‘ss 342 to 349 of the [Criminal Procedure Act] appear to draw a distinction between evidence going to a fact in issue and evidence going to credit: see for example s 346(2)(c) and s 352’.[11] However, in that case the Court found it unnecessary to decide whether the requirement in s 349 for the court to be satisfied that the evidence in question has substantial relevance to a fact in issue extends to evidence that only goes to credit.[12]
[11]Hurst [2021] VSCA 3, [27] (Niall and Emerton JJA).
[12]Hurst [2021] VSCA 3, [27] (Niall and Emerton JJA).
In this case the applicant seeks squarely to cross‑examine KF about her prior sexual activities in order to impugn her credibility. Thus it is necessary to consider the issue left unresolved by Hurst. That requires attention to the proper construction of s 349.
Emerton P and Kaye JA appear to construe the phrase ‘substantial relevance to a fact in issue’ in s 349 as including evidence that goes to whether KF’s evidence about her complaint against the applicant is credible.[13] For the reasons that follow, I consider that approach to the construction of s 349 to be in error.
[13]See joint judgment at paragraph [92]. To the extent that the joint reasons characterise the cross‑examination as directed to the credibility of KF’s account that the applicant had non‑consensual sexual intercourse with her while she was unconscious, rather than directed to her ‘credibility per se’, I consider this to be a distinction without a difference.
I note that this Court received no argument about the proper construction of s 349. The issue is one of considerable importance, and it would ordinarily be inappropriate to decide it without having heard argument. Had a majority of the Court sought to resolve the construction issue, it would have been necessary for the parties to have had a further opportunity to be heard. However, because I am in dissent, and because this is an interlocutory appeal in which a trial is shortly due to commence, I consider it appropriate to express my views about the question of construction without receiving further submissions.

Principles of statutory construction

The starting point in any exercise of statutory construction is the text of the provision. However, the text is to be considered in light of its context and purpose.[14] Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act.[15] Consideration of purpose is further reinforced by s 35(a) of the Interpretation of Legislation Act 1984, which in summary provides that a construction that would promote the purpose of the Act (whether or not that purpose is expressly stated) shall be preferred to a construction that would not promote that purpose or object.
[14]AB (a pseudonym) v Independent Broad‑Based Anti‑Corruption Commission (2024) 278 CLR 300, 312 [21] (the Court); [2024] HCA 10; SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ); see also 157 [41] (Gageler J), 162–3 [64] (Edelman J); [2018] HCA 55; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–‍7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and the cases there cited at n 105; [2009] HCA 41.
[15]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28 (‘Project Blue Sky’). See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21, 35–‍6 [15] (Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ); [2021] HCA 19.
Identification of the statutory purpose may appear from an express statement in the statute or by reference to, or inference from, its language. Discernment of purpose may be aided by reference to any relevant extrinsic materials, in particular those that identify the mischief to which it is directed.[16] It is also permissible to have regard to extrinsic materials in resolving the meaning of the text, particularly in cases of ambiguity.[17] However, legislative history and extrinsic materials cannot displace the meaning of the statutory text.[18] Finally, it is permissible, in determining which of two competing interpretations of a statute ought to be adopted, to have regard to the consequences of each interpretation.[19]

The history of ss 342 and 349 of the Criminal Procedure Act

[16]Lacey v Attorney‑General (Qld) (2011) 242 CLR 573, 592 [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2011] HCA 10. See also Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565, 594 [87] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2021] HCA 39.

[17]Interpretation of Legislation Act 1984, s 35(b).

[18]Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); [2012] HCA 55.

[19]R v Young (1999) 46 NSWLR 681, 687–8 [15] (Spigelman CJ); [1999] NSWCCA 166; Project Blue Sky (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28. And see generally the discussion in D C Pearce, Statutory Interpretation in Australia (LexisNexis, 10^th ed, 2024) 80–5 [2.61]–[2.65].

Sections 342 and 349 of the Criminal Procedure Act fall within div 2 of pt 8.2 of that Act. They were introduced, in substantially their present form, in 2009 by the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009. Prior to that date, evidence concerning a complainant’s prior sexual activity was governed by s 37A of the Evidence Act 1958 (the ‘1958 Act’).
Section 37A of the 1958 Act was enacted in 1976 by the Rape Offences (Proceedings) Act 1976, following a report of the Victorian Law Reform Commission (‘VLRC’).
Section 37A was amended over the years. By 2003, it relevantly provided as follows:
Special rules of evidence in relation to certain offences which relate to rape
(1)Notwithstanding anything in this or any other Act or any rule of law to the contrary the following Rules shall apply in relation to any proceeding, including a committal proceeding, that relates to a charge for a sexual offence, whether or not the proceeding relates to any other charges against the same or any other person and whether or not it is alleged that there are aggravating circumstances:
(1)The court shall forbid any question as to and shall not receive evidence of the general reputation of the complainant with respect to chastity.
(2)Without the leave of the court—
(a)the complainant shall not be cross‑examined as to his or her sexual activities; and
(b)no evidence shall be admitted as to the sexual activities of the complainant.
(3)The court shall not grant leave under Rule (2) unless—
(a)it is satisfied that the evidence has substantial relevance to facts in issue or is proper matter for cross‑examination as to credit; …
…
(4)Evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities shall not be regarded—
(a)as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or
(b)as being proper matter for cross‑examination as to credit in the absence of special circumstances by reason of which it would be likely materially to impair confidence in the reliability of the evidence of the complainant.
…
As is apparent, s 37A(1) Rule 3(a) treated cross‑examination directed to a fact in issue as distinct from cross‑examination as to the complainant’s credit.
In 2003 the VLRC published an interim report about legislative provisions relating to sexual offences, including s 37A, in which it recommended various changes to the section.[20] That report also noted that, after the VLRC had received its reference on sexual offences, the Office of Public Prosecutions had put in place certain procedural steps in cases where the complainant’s sexual history might be in issue.[21]
[20]Victorian Law Reform Commission, Sexual Offences (Interim Report, 2003) (‘VLRC Interim Report’).
[21]VLRC Interim Report, 183 [5.35].
In 2004 the VLRC published a final report.[22] It opened the Final Report with the following observations:
The 202 recommendations in this Report respond to the widely held perception that the criminal justice system does not always deal fairly with complainants in sexual offence cases. People who allege that they have been sexually assaulted are the least likely of all crime victims to report the offence to the police. Only about one in six reports to police of rape and less than one in seven reports of incest or sexual penetration of a child result in prosecution. Conviction rates for rape are substantially lower than for other offences and have fallen since the late 1980s.
Concerns about the fairness of the criminal justice process contribute to substantial under‑reporting of sexual offences and may discourage people from giving evidence against alleged offenders at committal and trial.
Prosecution for a sexual offence has very serious consequences for the accused, including life‑long stigma and the possibility of a lengthy prison sentence if convicted. It is vital to safeguard the presumption of innocence and ensure that the criminal justice system treats people accused of offences fairly. However the Commission does not accept the argument that this is the sole purpose of the criminal justice system. The community has an interest in encouraging people to report sexual crimes and in apprehending and dealing with those who commit them.
The recommendations in this Report are intended to achieve the twin goals of providing decent treatment for complainants, who perform a public service when they report offences and give evidence in court, and ensuring a fair trial for people accused of sexual offences. During our consultations some lawyers expressed concerns that our recommendations would increase the chance that people would be wrongly convicted of offences. We disagree with this view. Most of the changes proposed are already in place in other parts of Australia and there is no evidence that they have caused injustice to those charged with offences.[23]
[22]Victorian Law Reform Commission, Sexual Offences (Final Report, July 2004) (‘VLRC Final Report’).
[23]VLRC Final Report, xxi–xxii.
In relation to cross‑examination of a complainant concerning her or his prior sexual activity, the VLRC Final Report said this:
Historically women complainants in sexual offence cases were subjected to detailed cross‑examination about their prior sexual history. Evidence about the complainant’s sexual activities was regarded as relevant because of the ‘twin myths’ that ‘unchaste’ women who are sexually experienced are likely to lie about being sexually assaulted and that they are more likely to consent to sex on a particular occasion.
Fear of humiliating and irrelevant cross‑examination about their sexual activities may contribute to women’s reluctance to report sexual assault or to give evidence at committal or trial. Inappropriate admission of evidence about prior non‑consensual sexual activity has a disproportionate impact on women from groups in which there is a high incidence of sexual assault, for example women with cognitive disabilities and Indigenous women.[24]
[24]VLRC Final Report, 198 [4.36]–[4.37] (citations omitted).
The VLRC Final Report noted that courts had on occasion taken the view that s 37A applied only to prior consensual sexual activity, and thus complainants had been required to give evidence about earlier non‑consensual activity.[25] The report then said this:
In cases involving adult complainants, the defence may want to cross‑examine the complainant about prior abuse in order to suggest that they are prone to making false allegations of abuse. It may also be suggested that the complainant has a ‘victim mentality’ because of prior abuse, which has resulted in them making mistaken allegations about the accused.
While evidence about prior abuse may sometimes be relevant to a fact in issue in the trial, in many cases the main purpose of this type of cross‑examination is to unsettle the complainant by suggesting he or she is prone to lie or is mentally unstable. Normally the complainant will have little opportunity to challenge an implication that the prior allegation of sexual assault was false or misguided, even if that abuse actually occurred. Cross‑examination about prior incidents of abuse, which the victim of the abuse has never revealed to family or friends, is likely to be particularly humiliating and painful and may force a complainant to relive a prior incident of victimisation. The admission of such evidence may also discriminate against women with cognitive impairments and Indigenous women (who have a high incidence of sexual victimisation) by making it more difficult for them to give evidence.[26]
[25]VLRC Final Report, 201 [4.44].
[26]VLRC Final Report, 201–2 [4.46]–[4.47].
The VLRC Final Report recommended that s 37A be amended to make it clear that it applied to both consensual and non‑consensual sexual activity.[27]
[27]VLRC Final Report, 204 [4.54].
The VLRC Final Report also recommended various other changes to s 37A, as follows:
69.Section 37A of the Evidence Act 1958 should be amended to provide that the court shall not grant leave for the complainant to be cross‑examined about sexual experience or activity (whether consensual or non‑consensual) or lack of sexual experience or activity unless it is satisfied that:
•    the evidence is of substantial relevance to a fact in issue; and
•    admission of the evidence is in the interests of justice having regard to the matters in Recommendations 70 and 71 below.
70.In deciding whether the admission of the evidence is in the interests of justice the judge must consider:
•    whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may suffer as the result of the admission of the evidence;
•    the risk that the evidence may arouse discriminatory belief or bias, prejudice, sympathy or hostility in the jury;
•    the need to respect the complainant’s personal dignity and privacy; and
•    the right of the accused to make a full answer and defence to the charge.
71.In assessing the distress, humiliation or embarrassment that the complainant may suffer as a result of leave being granted the court must consider the age of that person and the number and nature of questions that will be put to that person.
72.Evidence of prior sexual experience or activity should not be regarded as having substantial relevance to a fact in issue merely because of the fact that the complainant freely agreed to participate in another sexual act with the accused or with another person.[28]
[28]VLRC Final Report, 210–11.
As observed above, in its Interim Report the VLRC had made various recommendations for reform. In the Final Report, the Commission observed that it had made some changes to the interim recommendations:
In response to comments made in submissions we have made some minor changes to the recommendations in the Interim Report.
• Instead of requiring that the evidence have ‘significant probative value to a fact in issue’ it is proposed that the evidence should be required to have ‘substantial relevance to a fact in issue’. This meets a concern expressed in the County Court submission and uses the same form of words as the current version of section 37A of the Evidence Act 1958.
•    The recommendation requires the admission of the evidence to be ‘in the interests of justice’ having regard to a number of listed factors. As mentioned above, the listed factors are modelled on provisions already in force in South Australia, Western Australia and Tasmania, and recommended by the [New South Wales Law Reform Commission].
•    The recommendation provides that evidence of sexual activity is not admissible to support an inference that the complainant is the type of person who is likely to have consented to the sexual activity that forms the subject matter of the charge. A provision of this kind was recommended by the [New South Wales Law Reform Commission].
•    The recommendation includes a provision that in assessing the distress, humiliation and embarrassment that might be experienced by the complainant in giving evidence about prior sexual activities, the court must take account of the age of the person and the number and nature of questions to be put to that person. A provision of this kind is included in the Tasmanian Evidence Act 2001.[29]
[29]VLRC Final Report, 208–9 [4.67] (citations omitted).
Importantly for present purposes, the VLRC Final Report also said this:
The provision does not allow the admission of sexual activity simply on the grounds that the evidence casts doubt on the ‘credibility’ of the complainant. Professor Bob Williams’ submission commented that he agreed with the thrust of the recommendation but that ‘there may be cases where the evidence does have substantial relevance to credit and should be admitted’. The Commission’s view is that this provision is often used to justify questioning of the complainant on issues which have little or no relevance to the question in issue at trial. If the evidence is genuinely relevant to a fact in issue the Court will have the discretion to allow its admission. This is consistent with the legislation in Western Australian and Tasmania.[30]
[30]VLRC Final Report, 209 [4.68] (emphasis added) (citations omitted).
Following the VLRC Final Report, s 37A was amended by the Crimes (Sexual Offences) Act 2006 (the ‘2006 Act’). In his second reading speech in relation to that Act the then Attorney‑General, Mr Hulls, said as follows:
Sexual crime in all its forms horrifies us as a community. The effects of sexual crime on our society are profound and far reaching. Victims of sexual assault experience incredible trauma and stress, the effects of which are long‑term and devastating. The impact of the crime also extends to victims’ families, our public health system, the capacity of victims and their families to contribute to our society, and of course, our criminal justice system.
Whilst the right to a fair trial is a cornerstone of our legal system, for too long the balance of fairness in the prosecution of sexual assault has been heavily weighted against the complainant. Regrettably, for many complainants this has meant the process failed to treat them with respect and in a way that preserved, as far as possible, their dignity. The criminal justice system has thus not only denied them an acknowledgment of their experience but, worse still, has had the effect of re‑traumatising them through the very process through which they have sought redress.
Over the last 15 years, there has been recognition of the need to improve the way the criminal justice system deals with sexual crime. Yet despite previous reforms in 1991 and in 1999 to address these problems and improve the way the criminal justice system responds to sexual assault, positive change has to a large extent been marginal. This is why the government gave the Victorian Law Reform Commission a reference in 2001 to review law and procedure governing sexual offences.
In its final report, Sexual Offences Law and Procedure, the commission found that there is a high incidence of sexual assault, a low disclosure rate, serious health consequences for victims of sexual assault, low prosecution and conviction rates and a criminal justice response that causes further trauma to victims, especially children.
The commission’s final report put forward a large number of wide ranging recommendations in recognition of the need for a broad systemic response to the problem of dealing with sexual assault. This bill implements the majority of the legislative recommendations put forward by the commission and represents one component of a broader policy initiative to make the criminal justice system respond to sexual assault in a fairer way and in a way that does not re‑traumatise victims.
…
The bill will amend the Evidence Act to ensure that a complainant’s privacy and dignity are better preserved through clearer and tighter restrictions on the use of evidence related to the complainant’s sexual history or activities with the accused person or with another person …[31]
[31]Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2005, 2183–4 (emphasis added).
Following these amendments, s 37A relevantly provided as follows:
Special rules of evidence in relation to certain offences which relate to rape
(1)Notwithstanding anything in this or any other Act or any rule of law to the contrary the following Rules shall apply in relation to any proceeding, including a committal proceeding, that relates to a charge for a sexual offence, whether or not the proceeding relates to any other charges against the same or any other person and whether or not it is alleged that there are aggravating circumstances:
(1)The court shall forbid any question as to and shall not receive evidence of the general reputation of the complainant with respect to chastity.
(2)Without the leave of the court—
(a)the complainant shall not be cross‑examined as to his or her sexual activities (whether consensual or nonconsensual); and
(b)no evidence shall be admitted as to the sexual activities (whether consensual or non‑consensual) of the complainant.
(3)The court shall not grant leave under Rule (2) unless—
(a)it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross‑examination or to admit the evidence, having regard to—
(i)whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross‑examination or the admission of the evidence, in view of his or her age and the number and nature of the questions that he or she is likely to be asked; and
(ii)the risk that the evidence may arouse discriminatory belief or bias, prejudice, sympathy or hostility in the jury; and
(iii)the need to respect the complainant's personal dignity and privacy; and
(iv)the right of the accused person to fully answer and defend the charge; …
(4)Evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities, or had freely agreed to engage in sexual activity with the accused person or another person other than the sexual activity to which the charge relates, shall not be regarded—
(a)as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or
(b)as being proper matter for cross-examination as to credit in the absence of special circumstances by reason of which it would be likely materially to impair confidence in the reliability of the evidence of the complainant.
(4A) Without limiting Rule (4), evidence of a kind referred to in that Rule is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates.

The applicant contends that it is necessary for him to adduce evidence that KF had told him she had been sexually assaulted in order for him to explain the incriminating text message. In particular, this will enable him to submit that the text message referred to his guilt at having consensual sex with KF, believing as he did that she had previously been the victim of sexual assault.
As the applicant appeared to accept at the hearing, this aspect of his case turns on his belief that KF had, in fact, been raped or sexually assaulted. It does not require that KF give evidence about the details of the earlier alleged assaults, or that her earlier complaints are shown to be untrue. It does not require the applicant to impugn KF’s credibility. It simply requires that he be permitted to ask KF whether she had told him that she had previously been sexually assaulted and, if so, what she had told him.
The evidence of prior complaints and the pretext call
The pretext call also requires some contextual evidence of the applicant’s understanding that KF was the victim of earlier sexual assaults. It is clear from the content of the call that the complainant was using the consequences of the alleged sexual assault by TE (her bleeding) in order to induce the applicant to ‘come clean’ that he had done the same thing to her. The applicant’s responses to KF’s prompting in this manner need to be understood in context. But again, leave to adduce evidence of what KF said to the applicant about being the victim of sexual assault by TE could be given without also giving leave to cross‑examine KF more generally about the details of that alleged assault and its aftermath, and without any attempt to establish the falsity of that complaint. And again, this cross‑examination would not be directed to undermining KF’s credibility — only to elucidating the applicant’s understanding of KF’s history.
For these reasons I consider that evidence that the complainant told the applicant that she had been sexually assaulted by TE has substantial relevance to a fact in issue (namely, the applicant’s state of mind at various times).
I also consider that it is in the interests of justice to allow limited cross‑examination of KF to that effect. In relation to the matters set out in s 349, I make the following observations.
(a)First, the nature of the evidence that could be led from KF about what she told the applicant about the incident with TE is likely to be limited in nature because it concerns only what she told the applicant. The applicant would not be permitted to question KF about the details of the TE incident or the alleged similarities between the TE incident and her complaints against the applicant. KF is an adult, the number of questions that she will be asked about what she told the applicant is likely to be limited, and the nature of the questions will not, it seems to me, be overly graphic or intrusive if limited in the manner I have described. Thus the distress, humiliation and embarrassment that KF might experience as a result of the cross‑examination is likely to be limited. In these circumstances, the probative value of the evidence will outweigh the distress and humiliation that she might experience.
(b)Secondly, I do not consider that the evidence concerning the fact that KF told the applicant that TE had raped her is likely to arouse in the jury any discriminatory belief or bias.
(c)Thirdly, in light of the limited nature of the cross‑examination, I consider that there will be minimal intrusion into the complainant’s personal dignity and privacy.
(d)Finally, I consider that, given the potentially incriminating text message, the applicant’s right to fully answer and defend the charges against him requires that he be permitted to cross‑examine the complainant in relation to what she told him about her prior complaint about TE.
Importantly, cross‑examination would be limited to exposing what KF told the applicant about the prior sexual abuse she had allegedly suffered. It would not otherwise go to the detail of the events that occurred with TE, or to challenging the veracity of her prior complaint in relation to TE. In particular, the applicant would not be permitted to ask KF any of the questions set out in its s 342 notice:
(a)the applicant would not be permitted to ask KF if she had been raped by TE (proposed question 14.3) — rather, the applicant would be permitted to ask KF whether she told the applicant she had been raped by TE;
(b)the applicant would not be permitted to ask KF questions about the circumstances of the incident with TE (proposed questions at 15.3) — rather, the applicant would be permitted to ask KF what she had told the applicant about the incident involving TE;
(c)the applicant would not be permitted to ask KF about her conduct in the days immediately after the rape allegation which allegedly included pursuing intimate and sexual relationships with two separate men, TT and TE’s brother (proposed questions at 15.3); and
(d)the applicant would not be permitted to ask KF about the status of her complaint to police about TE (proposed questions at 15.3).
In addition, the applicant would not be permitted to ask KF about her relationship with TE’s brother and TE before and after the incident with TE, including the nature of their living situation (proposed questions at 15.3). That line of questioning does not, on its face, concern KF’s prior sexual activity (although that is not entirely clear), thus it is not caught by s 342. However, it would be irrelevant to any issues in the trial.
For these reasons, I consider that the judge erred in refusing leave for the applicant to cross‑examine KF in relation to what she had told the applicant about the TE incident, but the judge did not otherwise err in refusing to permit cross‑examination in relation to the TE incident.

Alternative reasoning if s 349 is construed to authorise a grant of leave in relation to evidence going to credibility

I accept that it is possible that I am wrong about the construction of s 349. The text of ss 346, 349 and 352 plainly throw up a difficult interpretive issue, and I am conscious that, as already mentioned, the Court did not hear argument on this issue. Thus, for completeness, I will address the manner in which I would approach the applicant’s application for leave to cross‑examine KF if, contrary to the view that I have expressed, s 349 permits a court to grant leave where the proposed cross‑examination goes only to a complainant’s credibility.
I observe at the outset that I agree entirely with paragraphs [65] and [66] of the joint reasons. Those paragraphs make the important point that the mere fact that a person has previously complained of rape or sexual assault (whether to the police or otherwise) will ordinarily have no relevance to the facts in issue in a trial of a different person for a different rape or sexual assault. Something more is required.
I also agree with Emerton P and Kaye JA that one matter that might render cross‑examination about a complainant’s earlier complaint of rape or sexual assault relevant is where the earlier complaints are sufficiently similar to make it unlikely that a complainant was raped in such similar circumstances on the occasion in question. However, in my opinion, where that is the basis for the proposition that an earlier complaint is relevant, the similarity in question must be so striking as to give rise to the logical inference that at least one, if not all, of the alleged events did not occur in the manner described by the complainant.[45] In the absence of striking similarity the earlier complaint would provide no basis for concluding that the complainant was lying about one (or more) of the allegations. This approach is consistent with the purpose of ss 342 and 349 (and their predecessor, s 37A), as revealed by the legislative history discussed earlier.
[45]As to the requirement for ‘striking similarity’, see by way of example the Canadian decisions in R v Anstey (2002) 202 Nfld & PEIR 264; [2002] NFCA 7 (where striking similarity was demonstrated) and R v K (K) (2002) 224 Nfld & PEIR 302 (where striking similarity was not demonstrated). Canada has similar, although not identical, provisions concerning the admissibility of evidence about a complainant’s other sexual activity.
Such cross‑examination, in the absence of striking similarities, would be likely to introduce the kinds of bias and prejudice that s 342 was designed to prevent. The jury might believe that ‘lightning never strikes twice’, so that a single victim is unlikely to be sexually assaulted by more than one person — but there is no evidentiary basis for such a proposition. Or the jury might believe that a victim who accuses more than one person of sexual impropriety is more likely to be lying about either or both occurrences than a victim who accuses only one person.[46] In essence, the jury might reason that the complainant has complained of rape before, ‘and she’s at it again’ — the implication being that the mere fact of the earlier complaint (regardless of its truth or falsity) makes the later complaint less likely to be true. That would not, in my view, be a permissible form of reasoning in the absence of striking similarities,[47] for the reasons given by Emerton P and Kaye JA in paragraph [65].

The complaint concerning AP

[46]See discussion in Chapter 11 of Daniel Brown and Jill Witkin, Prosecuting and Defending Sexual Offence Cases (Emond, 2018).

[47]I put to one side a case where there is a large number of prior complaints of rape or sexual assault, because an argument based on the weight of sheer numbers was not in issue before this Court.

I consider that there are striking similarities between KF’s allegation in relation to AP and her allegations in relation to the applicant so as to render evidence concerning her allegation about AP relevant to KF’s credibility. Those similarities are set out at paragraph [77] of the joint reasons. I would add to the similarities that in relation to both AP and three of the four allegations involving the applicant, KF’s state of unconsciousness was said to have arisen as a result of her ingestion of a substance that caused her unconsciousness (namely alcohol in relation to AP and prescription medication in relation to the applicant).
In light of those striking similarities, I consider that the complaint KF made about AP is capable of giving rise to the logical inference that it is unlikely that two such similar events, so close in time and location, both occurred in the manner described by KF. From that, it would be open to the jury to reason that the alleged events involving the applicant did not occur in the manner described by KF — ie that KF is lying.
I also note that, in the course of the committal hearing, KF said that she was not sure whether AP had sexually assaulted her or not. I regard this as coming close to, albeit not expressly amounting to, a retraction of her allegation against AP. This provides additional support for the grant of leave to cross‑examine KF about this allegation.[48]

The TE incident

[48]I note that in Canada various cases have held that cross‑examination of a complainant about prior allegations of non‑consensual sexual activity may be permitted where the defence can establish that the complainant recanted their earlier accusations: see, eg, R v Riley (1992) 11 OR (3d) 151, [9]–[10]; R v CF [2017] ONCA 480, [70].

The position concerning KF’s evidence about the TE incident is more complex and requires separate consideration.
There is no dispute that TE had sexual intercourse with KF at the relevant time — his semen was detected in her vaginal tract by a forensic examination conducted around 10 hours after the events; and, after initially denying sexual intercourse, TE later admitted it but claimed it was consensual.
As explained above, the evidence is that KF told the applicant that she had been raped or sexually assaulted by TE. This was one of the reasons that she said she did not want to have a sexual relationship with the applicant. The applicant seeks to rely on the fact that KF had told him of this earlier sexual assault to explain the text message he sent to KF on 21 February 2020. This aspect of his case turns on him believing that KF had been raped by TE — it does not turn on the complaint of rape having been fabricated, or on any attack on KF’s credibility. For the reasons already given, the applicant ought to be permitted to cross‑examine KF about what she told the applicant about the incident with TE.
However, the applicant also seeks to cross‑examine KF about her complaint in relation to TE with a view to undermining her credibility. The applicant’s argument appears to be that KF’s complaint of rape by TE was false, not because no sexual activity occurred, but because she had in fact consented to sex with TE, but then lied about her lack of consent. The applicant again relies on similarities between KF’s allegations against TE and her allegations against the applicant.
The similarities between the TE incident and the complaints against the applicant
The applicant’s contentions concerning the similarities between the TE incident and the complaints concerning the applicant are set out in the passage from his written submissions quoted in paragraph [146], above. In summary, those similarities are as follows:
(a)KF claimed to have been ‘unconscious or otherwise has no recall of having been raped or sexually assaulted by’ both TE and the applicant;
(b)prior to making the complaints against TE and the applicant, KF ‘was living with’ TE and ‘those living arrangements had become untenable’; and
(c) KF claimed to find that she was bleeding from her vagina after both alleged assaults, but her bleeding in relation to the applicant was menstrual bleeding, and she had no active bleeding when forensically examined after the TE incident — the implication being that she had fabricated her account of ‘extensive bleeding’.
However, in significant respects the applicant’s submissions about KF’s allegations against TE were not accurate.
First, KF did not claim to have been unconscious for the entire period of the alleged rape by TE; nor did she claim to have no recall of being raped or sexually assaulted by him. Rather, she claimed to have been ‘in and out of sleep’, but said that she had been aware of the assault while it was occurring.
Nor was KF properly described as ‘living with’ TE prior to the time at which she alleged that he raped her. Rather, KF was living with her then boyfriend, TE’s brother. There was some evidence that TE would stay there most weekends, and that he was going to move into the house, but that did not occur after KF’s complaint.
As to the question of whether the complainant was bleeding after the alleged assaults, in the allegations against the applicant it appears that the complainant was bleeding, but that this was considered possibly to be regular menstrual bleeding. In relation to TE, a forensic examination of KF around 10 hours after the alleged sexual assault found no ‘active bleeding’. However, the forensic examination found results consistent with bleeding having occurred prior to the examination. The examiner expressed the opinion that menstruation could have been a contributing factor but also said that ‘trauma associated with digital and penile penetration of the vagina should be considered as one cause of bleeding’.
Thus, insofar as there are similarities between KF’s complaint against TE and her allegations against the applicant, they are in my view properly described as follows:
(a)the fact that KF claimed to experience vaginal bleeding as a consequence of the alleged rapes or sexual assaults, which a forensic examination concluded could have been menstrual bleeding; and
(b)the fact that both TE and the applicant admitted engaging in sexual activity with KF, but claimed that it was consensual.
In my view, these similarities are not at all striking. They are insufficient to support the type of inferential reasoning that could properly be applied in relation to the AP complaint, based on the improbability of the events complained of by KF occurring coincidentally.
Differences between the TE incident and the complaints against the applicant
Rather than there being striking similarities between KF’s evidence in relation to the TE incident and her complaint in relation to the applicant, there are in fact significant differences between the two complaints.
First, as noted above, KF did not claim to have been unconscious for the entire period of the alleged rape by TE; nor did she claim to have no recall of being raped or sexually assaulted by him. Rather, she claimed to have been ‘in and out of sleep’, but said that she had been aware of the assault while it was occurring, including giving a detailed account of the various ways in which TE penetrated her vagina with his fingers and his penis. By way of example, in her statement to police she said this:
I then woke up and I could feel his penis touching my butt. [TE] then tried to put his penis inside my vagina. It took him a while, but he then managed to get his penis inside my vagina. I could tell it was his penis, I can tell the difference between fingers and a penis in my vagina. He was pushing himself against me and then he pulled me back into him and he put his hand up my top and under my bra and touched my right breast.
In contrast, KF offered no such detailed account in relation to the applicant — rather, her allegation is that she believes that the applicant had sexually assaulted her while she was unconscious, due to the circumstances when she regained consciousness (such as having different clothes on and finding her tampon removed). Thus I do not consider that KF’s state of consciousness during the TE events, and her awareness of those events, is relevantly similar to her state during the alleged sexual assaults by the applicant.
In this respect her complaint concerning TE was also quite different from her complaint concerning AP; indeed, in her evidence at the committal she said she was not sure if AP had raped or sexually assaulted her.
Secondly, it does not appear to be the case that KF’s sleepiness during the TE events ‘was due to her being heavily medicated’.[49] Her statement did not refer to taking any medication or consuming any alcohol; and the police files record that a toxicology report that same day ‘came back clear’. In contrast, in relation to three of the four complaints against the applicant, KF says that she had taken prescription medication that caused her to lose consciousness; and, as mentioned above, her state of consciousness at the time of the AP complaint was said to be due to consumption of alcohol.
[49]Cf joint judgment at paragraph [82].
Thirdly, KF made an immediate complaint of rape by TE on the day of the event, by text message to TE’s brother. She also complained to police that day. And she was forensically examined the same day, which examination found semen in her vaginal tract. In contrast, KF did not make an immediate complaint about the applicant and was not forensically examined until some days later. (It is unclear on the materials before this Court when KF complained about AP.)
Fourthly, and unlike the AP complaint, KF was not living with TE at or prior to the time at which she alleged that he raped her. Rather, KF was living with her then boyfriend, TE’s brother. In contrast, KF was living with the applicant at the time of the alleged rapes or sexual assaults by him. The fact that TE had stayed at the house on most weekends is not a notable similarity, in my view.
Finally, and again unlike the AP complaint, the TE events were not proximate in time to the allegations concerning the applicant.
In conclusion, I accept that there are some similarities between the TE complaint and the complaints about the applicant. However, in my opinion the similarities are not striking — rather they are superficial.

Furthermore, even if some degree of similarity less than striking similarity is sufficient, I do not consider the similarities to be such as to permit the applicant to be cross‑examined generally about the details of the TE incident. (Of course, as explained above, I consider that a more limited form of cross‑examination directed to what KF told the applicant would be permissible).
I agree with Emerton P and Kaye JA that KF cannot be cross‑examined with a view to demonstrating the falsity of her complaint against TE. I add that, to the extent that the applicant seeks to rely on KF’s alleged tendency to make up false allegations of rape/sexual assault, it would be necessary for him to put forward some basis for an assertion that the complaint against TE was a false complaint. This would then involve a ‘trial within a trial’ on a collateral issue — namely, whether KF in fact consented to sexual intercourse with TE — which would be as difficult to resolve as the issues concerning KF’s consent in the present case. In my view such a course would not lightly be permitted. In any event, no application to adduce other evidence about the TE incident has been made or ruled upon, and so I express no concluded view about this issue.
However, if the applicant is permitted to embark upon cross‑examination of KF about the details of her complaint against TE, including what are said to be its similarities with the complaints she made against the applicant, I consider there is a real possibility that the jury will reason based on their view as to the truth or falsity of the TE complaint.
Ultimately, for the reasons explained above, I do not consider that KF’s account of the events with TE, even if limited in the manner identified in the joint judgment, has substantial relevance to a fact in issue (even if broadly construed), thus I consider that the judge was correct to refuse leave to cross‑examine her in relation to the detail of those events pursuant to s 349 of the Criminal Procedure Act.

Section 352 of the Criminal Procedure Act

As the joint judgment observed, we did not hear argument about the application of s 352 of the Criminal Procedure Act in this matter. However, I make the following observations.
I agree with Emerton P and Kaye JA that the evidence sought to be adduced in cross‑examination concerning the AP complaint is not directed to establishing that KF had freely engaged in sexual activity with AP. Thus I agree that s 352 does not appear to affect my alternative conclusion that the applicant can cross‑examine KF in relation to the AP complaint.
In relation to the TE incident, the applicant sought to assert that KF’s complaint of rape by TE was fabricated. Such an assertion could not have been on the basis that there was no sexual activity between TE and the complainant, because plainly there was. Rather, the argument implicitly rested on the proposition that KF had in fact consented to engage in sexual activity with TE, but had lied about it. It is at least arguable that cross‑examination directed to that proposition would constitute ‘sexual history evidence’ within the meaning of s 352, because the applicant would be seeking to establish that KF had freely agreed to engage in sexual activity with TE. It would then follow that cross‑examination about that activity would not be a proper matter for cross‑examination as to KF’s credit unless, because of special circumstances, it would be likely to materially impair confidence in the reliability of KF’s evidence.
However, as explained above, neither Emerton P and Kaye JA, nor I, would permit cross‑examination directed to demonstrating that KF’s complaint against TE was false. Thus I would not permit cross‑examination directed to showing that KF had ‘freely engaged in sexual activity’ with TE.
Furthermore, I have concluded that the only evidence that may permissibly be adduced in cross‑examination in relation to the TE complaint will be evidence about what KF told the applicant about that incident. As discussed, that will not include evidence about the details of the sexual activity that was said to have occurred. It is thus not evidence that KF was either ‘accustomed to engaging in sexual activities’ or that she ‘freely agreed to engage in sexual activity’.
It follows that s 352 does not affect my conclusion that KF can be cross‑examined about what she told the applicant about having been raped or sexually assaulted by TE.

Review of the judge’s refusal to certify

Section 295(3) of the Criminal Procedure Act provides that a party may not seek leave to appeal against an interlocutory decision unless the judge who made the decision certifies either that:
(a)if the decision concerns the admissibility of evidence, the exclusion of the evidence would ‘eliminate or substantially weaken the prosecution case’; or
(b)if the decision does not concern the admissibility of evidence, the decision is of sufficient importance to justify its determination on an interlocutory appeal.
This Court has, on many occasions, stated that interlocutory appeals concerning evidentiary issues should be ‘strictly confined’.[50] Parliament did not intend the work of this Court to be inundated with evidentiary applications. As Priest and Beach JJA said in R v Pace:
The regime for interlocutory appeals was not designed to cater for appeals against routine evidentiary rulings — as the impugned ruling is — made in the ordinary course of a criminal trial. It must be said — and cannot be ignored — that the already overloaded system of criminal justice in this State simply cannot cope with, and should not have to tolerate, interlocutory appeals directed to issues of little moment.[51]
[50]Peterson (a pseudonym) v The Queen (2019) 57 VR 521, 522 [6] (Maxwell P and Taylor AJA) and the authorities there cited in n 1; [2019] VSCA 12.
[51](2015) 45 VR 276, 284 [26]; [2015] VSCA 18.
It is for that reason that s 295(3) of the Criminal Procedure Act erects a barrier to certification in strict terms. Certification is not a ‘mere formality’. There are strong public policy reasons for discouraging interlocutory appeals in criminal matters in general, and particularly those involving nothing more than points of evidence. As Weinberg JA said in R v Paulino:
When the legislature in this State first made provision for interlocutory appeals in criminal matters, it was careful to stipulate that a trial judge should be satisfied, before certifying, that the exclusion of any item of evidence in dispute would ‘eliminate or substantially weaken’ the prosecution case. In erecting that barrier to certification, the legislature expressly distinguished challenges to evidentiary rulings from challenges to non‑evidentiary decisions.[52]
[52](2017) 54 VR 109, 112 [8]; [2017] VSCA 38.
The present case concerned the question whether leave to cross‑examine KF ought to be given under ss 342 and 349. There is a real question whether a decision to refuse leave under those sections is a decision about the admissibility of evidence and thus fell to be considered pursuant to s 295(3)(a), or whether it was not such a decision and fell to be considered pursuant to s 295(3)(b). It appears to me that such a decision is a decision concerning the admissibility of evidence, so that s 295(3)(a) is applicable. But that sub‑paragraph applies only to evidence that, if it were to be excluded, would substantially weaken or eliminate the prosecution case. The evidence in question in this case was plainly not of that character.
However, in Hurst, which also concerned an interlocutory appeal in relation to a s 342 decision, this Court said this:
Having failed in his application for leave to cross‑examine, the applicant applied for the judge to certify in accordance with s 295(3) of the [Criminal Procedure Act] to facilitate an application for leave to appeal. The interlocutory decision did not concern the admissibility of evidence[53] and, accordingly, s 295(3)(b) applied. It provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies that ‘the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[54]
[53]Which would be the subject of certification under s 295(3)(a) of the [Criminal Procedure Act].
[54]Hurst [2021] VSCA 3, [18] (Niall and Emerton JJA) (emphasis added) (footnote in original).
For that reason, the judge approached the question of whether to certify his decision by reference to s 295(3)(b).
My view is that the decision in Hurst, in so far as it considered s 295(3)(b) to be the applicable provision, was wrong. However, I do not consider it to be ‘plainly wrong’. It is at least arguable that an interlocutory decision under s 342 is directed to the question of leave to cross‑examine or adduce evidence, rather than to the admissibility of the evidence, strictly understood. While the consequence of the interlocutory decision is that certain evidence will or will not be adduced, the decision itself is arguably a step prior to the question of admissibility.
Thus I am constrained to follow Hurst. For that reason, I will approach the question of certification by reference to the importance of the interlocutory decision.
In my view, the judge was wrong to conclude that the evidence concerning what KF told the applicant about the incident with TE is not of sufficient importance to the trial to justify the question of leave to cross‑examine KF being determined on an interlocutory appeal. That is because the text message the applicant sent to KF on the morning of 21 February 2021 (in relation to sexual activity said to have occurred earlier that same morning) is, without explanation, likely to be treated by the jury as incriminating. As explained earlier, the applicant seeks to rely upon what KF had told him about the incident with TE as explaining his state of mind when he sent that message. It is important to the defence case to be able to proffer an explanation of that text message that is consistent with his case that only consensual sexual activity occurred between him and KF.
In light of that conclusion, and in light of the matters set out in s 297 of the Criminal Procedure Act, I consider that leave to appeal should be granted.

Disposition

For the reasons given above, I would join in the orders proposed by Emerton P and Kaye JA, although the manner in which the trial judge determines the s 342 application on remittal will, of course, not reflect my conclusions about the permissible scope of cross‑examination of KF in relation to the TE incident.

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[2025] VSCA 98

9 May 2025