Bloomfield (a pseudonym) v The King

Case [2025] VSCA 98

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

  1. 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.

  2. 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.

  3. 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…

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Bloomfield (a pseudonym) v The King [2025] VSCA 98
Case
[2025] VSCA 98
Decision Date

CaseChat Overview and Summary

The court dealt with an interlocutory appeal in the criminal case of Bloomfield v The King, concerning allegations of rape and sexual assault. The applicant sought leave to cross-examine the complainant about her sexual activities, arguing that her prior complaints of sexual abuse, which involved similar circumstances to the present complaints, were relevant to her credibility. The primary judge had declined to grant leave, finding that the evidence of prior complaints was not substantially relevant to a fact in issue. The appeal centred on whether the judge's decision was correct and whether the applicant needed to establish the falsity of the prior complaints to be granted leave to cross-examine.

The court examined the legal framework provided by the Criminal Procedure Act 2009, particularly sections 342, 346(2), and 349, which outline the procedures for granting leave to cross-examine a complainant about their sexual activities. The court considered whether the judge had erred in not granting leave, given that the complainant had made prior complaints under similar circumstances. The court also referenced Jackmain v The Queen and the relevant provisions of section 37A, which prohibit cross-examination about a complainant’s sexual activities unless certain conditions are met. The court needed to determine if the prior complaints were sufficiently similar to allow for such cross-examination and whether the interests of justice supported granting leave.

The court found that the judge had not properly considered the relevance of the prior complaints to the issues in the case. The court held that the interests of justice did permit the applicant to cross-examine the complainant about her prior complaints, as these were sufficiently similar to allow for inferential reasoning. The court held that the judge's decision not to grant leave was in error and that the applicant should have been allowed to challenge the complainant's credibility based on the prior complaints. Consequently, the court allowed the appeal.

The court's decision mandated that the trial judge reconsider the application for leave to cross-examine the complainant about her prior sexual activities, taking into account the findings of the appellate court. The court's ruling underscored the importance of balancing the interests of justice with the rights of the accused to a fair trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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