Cook (a pseudonym) v The The King

[2022] NSWCCA 282

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cook (a pseudonym) v R [2022] NSWCCA 282

Hearing dates:

26 August 2022

Decision date:

15 December 2022

Before:

Beech-Jones CJ at CL at [1]; Adamson J at [31]; Bellew J at [135]

Decision:

(1) Grant leave pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to argue ground 1.

(2)   Grant leave to appeal.

(3)   Allow the appeal on the basis of ground 1.

(4)   Quash the applicant’s convictions ordered following the trial before Colefax SC DCJ.

(5)   Order that there be a new trial of the applicant.

(6)   List the matter in the District Court arraignments list on 27 January 2023.

Catchwords:

CRIME — Appeals — Appeal against conviction — jury directions — where jury provided written elements documents containing question trail to be followed — where document not orally explained to jury by trial judge — where such explanation required — error established

CRIME — Appeals — Appeal against conviction — jury directions — where trial judge commented on how verdicts on various counts could be consistent — error established

CRIME — Appeals — Appeal against conviction — whether evidence of disclosure wrongly ruled inadmissible — application of s 293 of the Criminal Procedure Act 1986 (NSW) — no error established

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 61M, 66A

Criminal Appeal Act 1912 (NSW), ss 5F, 6, 8

Criminal Procedure Act 1986 (NSW), ss 130A, 293, 294CB

Evidence Act 1995 (NSW), ss 97, 192A

Jury Act 1977 (NSW), s 55B

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Adams v R [2018] NSWCCA 303

Bourke (a pseudonym) v R [2021] NSWCCA 145

GEH v R [2012] NSWCCA 150

HG v The Queen (1999) 197 CLR 414; [1999] HCA 2

Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150

Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46

KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66

M v R (1993) 67 A Crim R 549

McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

Taylor v R (2009) 78 NSWLR 198; [2009] NSWCCA 180

The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40

Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104

Zhou v R [2021] NSWCCA 278

Category:

Principal judgment

Parties:

Cook (a pseudonym) (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Game SC / R Khalilizadeh / A Faro (Applicant)
G Newton (Respondent)

Solicitors:
Streeton Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2017/381748

Publication restriction:

Publication of names and any information or material that may lead to the identification of the applicant or the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

6 March 2020

Before:

Colefax SC DCJ

File Number(s):

2017/381748

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 9 August 2019, Cook (a pseudonym) (the applicant) was convicted by a jury on 17 counts of sexual offences against a child contrary to ss 61J, 61M and 66A of the Crimes Act 1900 (NSW).

Prior to the commencement of the trial, an issue arose as to the admissibility of evidence relating to the complainant’s complaint of sexual assault in Queensland by another member of her family. These offences in Queensland constituted four counts of sexual offences committed in the period from 1 January 2008 to 17 June 2009, when the complainant was between 6 and 7 years old. The alleged offending by the applicant occurred in the period from 1 January 2011 to 2014. The trial judge ruled that the evidence of the Queensland offences was inadmissible in the applicant’s trial.

The trial then proceeded, and witnesses including the complainant gave evidence.

During the course of the summing up, the trial judge provided the jury with a document entitled “Jury Question Trail”. The trial judge told the jury to leave the courtroom and “go through” this document. They were told to send a note to him if they had any questions.

Later in the summing up, when providing instructions about returning verdicts on each of the 17 counts, the trial judge said: “I myself have some difficulty in seeing how you could bring in different verdicts. It is a matter for you but I would have thought, speaking only for myself, that there would have to be 17 one way or 17 the other. But I have been wrong before and you may think that there is a logical reason, not a compromise, but you may think there is a logical reason, for having different verdicts.”

The applicant sought leave to appeal from his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on three grounds: first, that the trial judge erred in directing the jury about the elements of the offences; second, that the trial judge erred in directing the jury about consideration of the 17 separate counts on the indictment; and third, the trial judge erred in excluding the evidence of the Queensland offences or the trial miscarried by reason of the exclusion of that evidence. The Crown conceded that the first ground was made out and as such, that a re-trial should be ordered.

The Court held (Adamson J, Beech-Jones CJ at CL and Bellew J agreeing), granting leave to appeal against conviction, allowing the appeal, and ordering that there be a new trial:

As to the first and second grounds:

Per Beech-Jones CJ at CL; Adamson J; Bellew J:

1. Sending the jurors to the jury room with the Jury Question Trail document without reading it and providing an explanation in open court was insufficient to fulfil the trial judge’s obligation to direct the jury as to the elements of the offence. There are both practical and procedural reasons for this requirement, including that it allows the trial judge and counsel to observe the jury during this process. Even though counsel at trial did not object to the approach taken by the trial judge, the task of directing a jury is so fundamental that leave should be granted to argue the ground: [58]-[59] (Adamson J); [1] (Beech-Jones CJ at CL); [136] (Bellew J).

   Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104, considered.

2. Given the result in ground 1, there is strictly no reason to consider ground 2 but in light of the Court’s role including provision of guidance to trial judges, some comment is appropriate. The trial judge erred in his comments about how to consider the separate counts on the indictment. The question of whether a verdict of guilty or not guilty is to be returned on each count is purely a matter for the jury. The trial judge should not have provided comments based on his consideration of how verdicts could be consistent: [64]-[65] (Adamson J); [1] (Beech-Jones CJ at CL); [136] (Bellew J).

   McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, considered.

As to the third ground:

Per Adamson J; Bellew J:

1. Whilst the trial judge fell into error by failing to address the argument put by the applicant, his Honour correctly ruled that the evidence was inadmissible. This was because: first, the evidence was not of events that occurred at or about the time of the commission of the alleged offences committed by the applicant, being 18 months apart; and second, because the disclosure by the complainant to the applicant of the Queensland offences did not relate to a relationship between the applicant and complainant: [115], [121] (Adamson J); [137]-[138] (Bellew J).

   GEH v R [2012] NSWCCA 150, considered; Adams v R [2018] NSWCCA 303, distinguished.

Per Beech-Jones CJ at CL, dissenting:

1. The evidence that the complainant disclosed abuse could relate to a relationship between the complainant and someone she trusted. The trial judge misconceived this argument as raised by the applicant’s trial counsel and accordingly did not find sufficient facts to determine the application to adduce some of the evidence and therefore, the ground should be upheld: [16] (Beech-Jones CJ at CL).

2. The evidence that fell to be considered by reference to s 293 of the Criminal Procedure Act 1986 (NSW) was the evidence of the various disclosures made by the complainant about the Queensland offences being the disclosures made to the applicant, the Queensland police and the Queensland courts. This was evidence of the complainant’s “sexual experience” derived from the Queensland offences and it was an experience she possessed at the time of those disclosures which was at or about the time of the alleged commission of the offences by the applicant (Criminal Procedure Act 1986 (NSW); s 293(4)(a)(i)). For the purposes of s 293(4)(a)(ii), the relevant “events” were the disclosures by the complainant and they formed part of a connected set of circumstances with the circumstances in which the alleged prescribed sexual offences were committed (at [21]-[23] per Beech-Jones CJ at CL).

   GEH v R [2012] NSWCCA 150, discussed.

JUDGMENT

1. BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Adamson J which sets out with clarity the issues arising on the appeal. I agree with her Honour’s reasons in relation to grounds 1 and 2 of the appeal.

Ground 3 and Sections 6 and 8 of the Criminal Appeal Act 1912

2. Once it was accepted on the hearing of the appeal that the applicant’s convictions could not stand because of the conceded error the subject of ground 1, an issue arose as to the relationship between ground 3 of the appeal and the exercise of the powers conferred by ss 6 and 8 of the Criminal Appeal Act 1912 (NSW) which enable this Court to either enter an acquittal or order a new trial. As explained below, ground 3 challenges the rejection by the trial judge of evidence to the effect that the complainant disclosed to the applicant, as well as police and courts in Queensland, that she was sexually abused by another uncle (the “Queensland offender”). Her Honour found that the evidence was inadmissible under s 293 of the Criminal Procedure Act 1986 (NSW) (and the complainant could not be cross-examined about that evidence).

3. Notwithstanding the Crown’s concession in relation to ground 1, the applicant pressed for ground 3 to be decided for two reasons. First, the applicant contended that, if it were not determined, then at any new trial the trial judge would either be bound to apply the ruling the subject of ground 3 or at least could not depart from it unless the trial judge considered the interests of justice warranted it being reconsidered (Criminal Procedure Act, s 130A(2)). Second, the applicant contended that if the trial judge’s ruling was upheld then the result would be that any new trial would necessarily be unfair. The applicant contended that, in that circumstance, this Court should order an acquittal rather than a new trial. The applicant contended, or at least conceded, that this contention should be approached in the same manner as the Court might grant a stay if evidence was properly excluded by s 293 but the resulting trial would be unfair (see Jackmain(a pseudonym) v R [2020] NSWCCA 150).

4. While the Crown did not concede either ground 3 or the suggestion of unfairness, it did accept the rationale of the applicant’s approach. Hence, in relation to ground 3, both parties addressed the admissibility of the evidence that was excluded under s 293 including the potential application of s 293(4)(a)) even though the applicant did not rely on that provision before the trial judge. I will do likewise, although, as noted below, there are limits to how far this Court can determine the admissibility of the evidence the subject of ground 3.

Ground 3: Rejection of Supposedly Admissible Evidence

5. Ground 3 of the notice of appeal contends that the trial judge erred in excluding the evidence of the “Queensland offences being sexual offences”.

6. As noted, the trial judge rejected the evidence the subject of this ground under s 293 of the Criminal Procedure Act. With effect from 1 June 2022, the section was renumbered as s 294CB. As that postdates all the relevant events of the trial, I will refer to s 293 and, in any event, there is no relevant difference between the provisions.

7. A proper application of s 293 of the Criminal Procedure Act requires an identification of the precise evidence which is sought to be adduced before its various provisions can be applied. In this case, as the trial judge noted and contrary to the ground of appeal, the evidence sought to be adduced on behalf of the applicant was not evidence of the commission of the four offences by the “Queensland offender” from early 2008 to mid-2009 as outlined in the judgment of Adamson J at [72]. Instead, it was the evidence of various disclosures by the complainant about those offences being (i) a disclosure to the applicant of that offending in “late 2009”; (ii) a disclosure to her father and stepmother on 28 February 2010; (iii) the giving of evidence against the Queensland offender at a committal hearing in Queensland in April 2011; (iv) the giving of pre‑recorded evidence in April 2012 for the trial of the Queensland offender; and (iv) the giving of pre-recorded evidence for the retrial of the Queensland offender in October 2013. The offending by the applicant against the complainant is alleged to have occurred during the period 1 January 2011 to 31 December 2014.

8. The trial judge summarised the forensic purpose of the applicant seeking to adduce this evidence as establishing that the complainant “had more than ample opportunity to make complaint about this accused in the ongoing investigation and prosecution of the Queensland offender, but did not” and also as suggesting that it was inherently improbable that the applicant would commit offences against the complainant in the circumstances they both found themselves in. The trial judge found that the evidence, if adduced, would be “significantly probative.” There was no challenge to that assessment. Nevertheless, the trial judge rejected the evidence under s 293.

9. Following the rejection of the evidence, trial counsel for the applicant suggested the adoption of the expedient of referring to the Queensland offences committed against the complainant as “physical assaults”. The trial judge accepted that approach would not contravene his ruling. Consistent with this approach, the complainant was cross-examined as follows:

“Q.   Prior to you coming to live with [the applicant’s wife] and [the applicant], you were, on a number of occasions, physically assaulted by a person in Queensland, weren’t you?

A.   Yes.

Q.   In 2011, you started telling [the applicant’s wife and the applicant] about what had happened in Queensland, hadn’t you?

A.   I’m pretty sure I started telling them before, I don’t recall exactly how I, when I told them but I do remember that I told them.” (emphasis added)

10. Thereafter, the cross‑examination referred to the disclosures that the complainant made to the applicant, the police, and the Queensland courts in relation to the “Queensland matter”. The complainant was asked:

“Q.   Clearly, [the applicant’s wife] and the accused believed you when you were talking about what happened in Queensland, true?

A.   Yes.

Q.   The police took action when you complained about what happened in Queensland, true?

A.   Yes.

Q.   This person eventually and I won’t go into the detail, pleaded guilty to doing things, to physically assaulting you in Queensland, didn’t he?

A.   Yes.

Q.   So you knew that by complaining to somebody, it was likely that the police would become involved in any matter of serious nature, true?

A.   Yes.

Q.   Karen had already believed you about Queensland hadn’t she?

A.   Yes.

Q.   Police had taken action about Queensland hadn’t they?

A.   Yes.

Q.   [The applicant] you say in the garage when you were eight or nine years of age, sexually assaulted you very gravely, you say, didn’t he?

A.   Yes.

Q.   Without you complaining then or for years, to [the applicant’s wife], true?

A.   Yes.

…

Q.   You knew immediately after the garage incident, that if you complained, something was likely to happen in terms of police and/or courts, didn’t you?

A.   Yes.

Q.   Because of your experience with what was happening then and there in Queensland, yes?

A.   Yes.

Q.   But you say nothing to [the applicant’s wife], correct?

A.   Yes, because I didn’t want it all to start again. It’s hard for me to speak up about things sometimes.

Q.   Well you’d spoken up by then I suggest about what had happened to you in Queensland hadn’t you?

A.   Yeah and that took me a few years to come up about it. I didn’t tell anyone straight away, those allegations happened a year, it was happening to me for a year, police had showed up at that house – I’m sorry, I’m sorry—"

11. The fact that the applicant was speaking to police and courts in Queensland was referred to in various parts of the cross‑examination that followed. In particular, the cross‑examiner sought to place the complainant’s evidence about her sexual abuse by the applicant and its timing in the context of her ongoing participation in proceedings in Queensland. The complainant’s response was consistent with the above in that she emphasised how difficult it was to put herself through the process she was undertaking in Queensland (“Things aren’t easy to speak up about, especially when it’s going to ruin a family. And when I’m so young and I’m going through another court case about a similar issue.”).

12. In this Court, Senior Counsel for the applicant, Mr Game SC, expressed alarm about the jury being told that the Queensland proceedings concerned allegations of physical assaults. He contended that the jury was misled by questions and answers that characterised the Queensland offences as involving “physical assaults” when they in fact involved the sexual offending of the kind described by Adamson J at [72]. The first of those offences did not involve any physical touching of the complainant at all, being an offence of “indecent treatment of a child” by exposing her to pornography. The other offences involved some physical touching but I agree that it was false to characterise them as physical assaults.

13. Although it is common to exclude some parts of an item of evidence that may be prejudicial, or to otherwise describe a body of evidence in general terms to avoid such prejudice, I agree that a jury should not be misled as they inadvertently were in these circumstances. If the matter were to be retried and the trial judge’s ruling remained, then this expedient should not be adopted. For the purposes of the disposition of the balance of the issues in the appeal, it must proceed on the premise that this expedient or anything similar cannot be adopted at any retrial.

Section 293(3)

14. The terms of s 293 are set out in the judgment of Adamson J at [68]. There can be no doubt that the evidence described above at [7] falls within at least s 293(3)(b) in that it discloses or implies that the complainant has or may have taken part in any sexual activity. The real debate in this Court concerned the exceptions found in s 293(4).

Section 293(4)(b): Relates to a Relationship

15. Before the trial judge and in this Court, the applicant contended that the evidence sought to be adduced fell within the exception to s 293(3) found in s 293(4)(b), namely, that the evidence “relates to a relationship that was existing or recent at the time of the commission of the prescribed sexual offence” being the offences charged. The applicant contended (correctly) that the trial judge did not address the form of relationship that his trial counsel identified namely a relationship between a confider and confidant. However, even so, on any view of the scope of “relates”, the evidence of disclosure by the complainant to her father and stepmother on 28 February 2010, at a committal hearing in Queensland in April 2011 and at the trial and retrial of the offender, did not relate to that supposed relationship (i.e., the evidence set out in (ii) to (v) of [7]).

15. The more difficult question concerns the evidence of the disclosure by the complainant to the applicant in late 2009 of the Queensland offending against her. I do not regard that question as resolved by the extract from the judgment of HG v The Queen (1999) 197 CLR 414 at [33] (cited by Adamson J at [120]). In HG, the evidence sought to be adduced was of prior sexual experience of the young complainant, specifically, previous incidents of sexual abuse committed against her by her natural father in order to explain why she may have acquired a knowledge of fellatio which it was alleged that her stepfather had made her perform (at [13]). Clearly, evidence that the complainant was previously abused by her natural father did not “relate” to the relationship between her and her stepfather. However, at the risk of repetition, the evidence the subject of this ground is not (direct) evidence that the complainant was abused but instead evidence that the complainant disclosed that abuse to the applicant (and others). At a level of generality, I accept that evidence of disclosure could relate to a relationship between a young complainant and someone they felt trust and confidence in, such as a parent or counsellor, although in the context of this trial its forensic significance is likely to be less than the evidence of the complainant’s various disclosures to police and courts. On the material before this Court, which only includes a heavily redacted statement of the applicant, it is difficult to determine whether there was such a relationship at the time the disclosure was made or at the time of the alleged offending. This conclusion is sufficient to warrant ground 3 of the appeal being upheld because the trial judge’s misconception of the applicant’s argument meant that there were not sufficient facts found to determine the application to adduce at least some of the relevant evidence.

Section 293(4)(a): Connected Set of Circumstances

17. Section 293(4)(a) of the Criminal Procedure Act relevantly provided:

“Subsection (3) does not apply:

(a)   if the evidence:

(i)   is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii)   is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,”

18. In this Court, the applicant contended that the evidence described in [7] above fell within the exception to s 293(4)(a). To the extent that the applicant seeks to satisfy s 293(4)(a)(i) on the basis that the evidence is of “sexual activity or lack of sexual activity taken part in by the complainant” then he fails because the relevant sexual activity described in that evidence, which occurred between 2008 and mid-2009, did not take place at or about the time of the commission of the alleged offences the subject of this application, namely between 2011 and 2014.

19. This leaves the contention that the evidence described above at ([7]) is evidence “of the complainant’s sexual experience …. at or about the time of the commission of the alleged prescribed sexual offence”. In so contending, the applicant placed some reliance on what I stated in GEH v R [2012] NSWCCA 150 (“GEH”) as follows (at [84]):

“For the sake of completeness I should add that evidence that a complainant has given an inconsistent version of the events the subject of the offence would in my view fall within s 293(4). The evidence of the uttering of the statement would clearly be evidence "of" sexual experience or lack of it at the time of the alleged offence as well as evidence "of" events that are connected to the set of circumstances that give rise to the offence, being the offence itself. The same reasoning applies to evidence of complaint made by a victim of a sexual offence.” (emphasis added)

20. The applicant cited this passage as support for the proposition that the act of uttering a statement by a complainant that they had previously taken part in, or been the victim of, a sexual act was itself a form of sexual experience. On this approach, the evidence that the complainant made the disclosures referred to in [7] above is itself evidence “of” her sexual experience at or about the time of those disclosures which were made at or about the same time as the alleged commission of the offences by the applicant and thus s 293(4)(a)(i) is satisfied. However, this argument involves a misreading of the above passage from GEH. I did not state that the act of a complainant disclosing that they had previously been the subject of a sexual act is itself a sexual experience. Instead, I stated that the evidence of the disclosure of an inconsistent version of the offence with which the accused is charged is itself evidence of sexual experience acquired at the time of that offence (and not a sexual experience at the time of the disclosure).

21. However, the applicant also contended that, at the time of the offences the subject of this application, the “sexual experience” of the complainant resulting from the commission of the Queensland offences in 2008 and 2009 was continuing. In GEH at [63], Harrison J drew a distinction between sexual experience and sexual activity. His Honour described the former as “encompass[ing] a state acquired over time, whether long or short, but which refers to the condition of having had experience in sexual matters” whereas the latter is said to describe “a discrete sexual activity or lack of it that occurred, or in which the complainant took part or did not take part”. His Honour then observed (at [64]):

“The distinction may be critical, because any complainant's sexual experience, in the historical sense, will necessarily be his or her sexual experience "at or about" the relevant time. In other words, a complainant's sexual experience will be his or her state of being at or about the time of the commission of any alleged prescribed sexual offence because that state of sexual experience or lack of sexual experience will in an ambulatory fashion always exist at the relevant time. On the contrary, evidence of particular sexual activity may clearly be either activity at or about the time of the commission of the alleged offence or it may not. The words "taken part in by the complainant" clearly relate only to sexual activity or lack of sexual activity, and not to the complainant's sexual experience or lack of sexual experience, because of the commas surrounding the words "or of sexual activity or lack of sexual activity taken part in by the complainant". In this way, evidence that relates to a complainant's general state of sexual experience may more readily satisfy the temporal test in subparagraph (4)(a)(i) than evidence relating to singular acts of sexual activity or lack of it in which the complainant is alleged to have taken part.” (emphasis added)

22. I accept the reasoning in this paragraph. As noted, the evidence the subject of this ground is the various disclosures made by the complainant from late 2009 to 2014. I accept that evidence is (also) evidence “of” the complainant’s sexual experience derived from the Queensland offending and that is a sexual experience she possessed at the time of those disclosures. I further accept that this is evidence “of” her (previously acquired) sexual experience at or about the same time as the offences alleged against the applicant so as to satisfy s 293(4)(a)(i). By way of contrast, had the evidence sought to be adduced been only the complainant’s description of the acts perpetrated against her by the Queensland offender then that would only have been evidence “of” sexual activity on the part of the complainant and the temporal requirement of s 293(4)(a)(i) would not have been satisfied. In GEH at [66], Harrison J noted that the evidence in that case only related to a particular sexual activity said to have been taken part in by the complainant and not her state of sexual experience generally such that the temporal requirement of s 293(a)(i) was not satisfied.

23. This leaves s 293(4)(a)(ii), namely, whether the evidence is “of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed”. In GEH at [65], Harrison J noted that the distinction between sexual experience and sexual activity “may be less significant having regard to the words used in s 293(4)(a)(ii)” because “the historical experience of the complainant appears to be restricted or limited to sexual experience that is also capable of being described as or at least restricted or related to an event.” However, in this case the relevant “events” are the acts of disclosure noted in [7] above. Those events are (bona fide) alleged to have formed part of a connected set of circumstances with the “circumstances in which the alleged prescribed sexual offence was committed” (or in this case allegedly not committed). In this case, those “circumstances” are, or at least include, that the complainant was living with the applicant at a time when she was assisting the police and courts in prosecuting the Queensland offender for sexually abusing her. The applicant raised a bona fide contention that the various disclosures made by the complainant between 2011 and 2014 rendered it unlikely in the circumstances that she would not have made similar disclosures about the applicant. That is a sufficient connection for the purposes of s 293(4)(a)(ii).

24. Accordingly, I am satisfied that the evidence sought to be adduced falls within s 293(4)(a). For the reasons noted above, some part of it might fall within s 293(4)(b).

25. These conclusions are not sufficient to lead to a determination that the evidence sought to be adduced should have been admitted because it still has to be determined whether the “probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of the admission” of the evidence (s 293(4)). This assessment was not undertaken by the trial judge and it was not suggested that it could be undertaken by this Court. It can be undertaken by another trial judge prior to any further trial.

26. Nevertheless, it follows from the above that I would uphold ground 3.

Appropriate Orders

27. The applicant’s contention that acquittals should be entered because of success on ground 1 was premised on it being established that the evidence the subject of ground 3 was rendered inadmissible by s 293 of the Criminal Procedure Act (and thus any new trial would necessarily be unfair). As that premise is not established, it is appropriate to order a new trial.

28. Further, the operation of s 130A of the Criminal Procedure Act has been alluded to. It relevantly provides:

“(1)   A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.

(2)   If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless--

(a)   in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or

(b)   that order is inconsistent with an order made on appeal.

(3)   …

(4)   In this section,

"pre-trial order" means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial.

(5)   To avoid doubt, this section extends to a ruling given on the admissibility of evidence.” (emphasis added)

29. The operation of s 130A(2)(b) is not entirely clear. In the ordinary course this Court would set aside the convictions and order a new trial. The conclusions the Court reached on the admissibility of evidence rejected at the trial would not constitute an “order” of this Court but only a finding, albeit a finding that is binding on the court below. The Criminal Appeal Act does not expressly confer a power to set aside an evidentiary ruling of a trial judge when it is hearing a conviction appeal (although it can do so on an appeal by the Crown under s 5F(3A)). It may be that the provision implicitly confers on this Court the power to make an order directing that certain evidence be admitted on the retrial or at least setting aside the trial judge’s evidentiary ruling. Alternatively, s 130A(2)(b) may simply contemplate that where a new trial is ordered on the basis of an incorrect evidentiary ruling by a trial judge, then it follows that that ruling is inconsistent with this Court’s order. I will approach the matter in that way.

30. Accordingly, I propose the following orders:

1. Grant the applicant leave to raise grounds 1 and 3 of the notice of appeal.

2. Allow the appeal on grounds 1 and 3.

3. Quash the applicant’s convictions and sentence ordered following the trial before Colefax SC DCJ.

4. Order that there be a new trial of the applicant.

5. List the matter in the Arraignments List in the District Court arraignments list on 27 January 2023.

   31. ADAMSON J: Cook (a pseudonym), the applicant, seeks leave to appeal against his convictions of a number of child sexual abuse offences, following a trial by jury before Colefax SC DCJ in the District Court.

   32. The indictment charged 17 counts, which alleged sexual offending by the applicant between 2011 and 2014 against a female child, HB (the complainant). The complainant is the niece of the applicant’s former wife. At the time of the alleged offences, she was aged between 9 and 11 years and was living with the applicant and his former wife in Pheasants Nest.

   33. The counts are summarised in the following table:

Count	Section of Crimes Act 1900 (NSW)/offence
1	s 66A/sexual intercourse with a child under 10 years
2-5	s 61M(2)/indecent assault of a person under 16 years
6-11	s 66A/sexual intercourse with a child under 10 years
12-17	s 61J/indecent assault of a person under 16 years

34. The offences of sexual intercourse charged involved, variously, penile/vaginal intercourse, penile/anal intercourse, cunnilingus and fellatio.

35. The trial commenced on 31 July 2019. The jury retired to consider its verdicts at 12.25pm on 8 August 2019. At 12.43pm on 9 August 2019, the jury returned verdicts of guilty on all counts. On 6 March 2020, the applicant was sentenced to an aggregate term of 20 years’ imprisonment, commencing on 9 August 2019, expiring on 8 August 2039, with a non-parole period of 15 years, expiring on 8 August 2034.

36. All references to legislation in these reasons are references to the Criminal Procedure Act 1986 (NSW) (the Act), unless otherwise stated.

The grounds of appeal

37. The applicant seeks leave to appeal against conviction on the following grounds:

1.   The trial judge erred in the way in which the jury were directed about the offences.

2.   The trial judge erred in his directions to the jury as to the separate consideration of the counts on the indictment.

3.   (a)   the trial judge erred in excluding the evidence relating to the Queensland offences being sexual offences;

or, in the alternative,

b)   the trial miscarried by reason of the exclusion of this evidence.

38. Mr Game SC, who appeared for the applicant with Ms Khalilizadeh and Mr Faro, submitted that, if ground 1 were made out, it would not be necessary for this Court to address ground 2. He further submitted that, if ground 3 were made out, this Court ought quash the conviction and enter verdicts of acquittal on all charges. Mr Game confirmed that the test in 3(b) was the same test for determining whether the proceedings ought be stayed on the basis that the applicant could not have a fair trial if the evidence was excluded.

39. The Crown conceded ground 1 and accepted that, on this basis, the convictions ought be set aside and, subject to this Court’s determination of ground 3, a new trial ordered pursuant to s 8 of the Criminal Appeal Act 1912 (NSW).

40. Because the grounds are relatively confined, it is not necessary to summarise at length, beyond what is set out above, the course of the trial. However, for the purpose of grounds 1 and 2 it is necessary to set out, in broad terms, how the judge summed up to the jury.

The summing up

41. At the commencement of the summing up, the trial judge reminded the jury of a document, entitled “Revised Summary of Charged Incidents” which had been provided to the jury by the Crown. His Honour then provided to the jury copies of MFI15, a document entitled “Jury Question Trail”. The way in which this document was used by the trial judge is the subject of ground 1.

42. The document set out the questions to be answered by the jury in respect of each count. For example, in respect of count 1, the question trail read as follows:

“Count 1: Between 1 January 2011 and 31 December 2011, at Pheasants Nest in the State of New South Wales [the applicant], had sexual intercourse with [the complainant], a child then under the age of 10 years, namely 8 or 9 years.

[1]    Are you satisfied beyond reasonable doubt that, between 1 January 2011 and 31 December 2011, [the applicant] had sexual intercourse with [the complainant]?

•    ‘Beyond reasonable doubt’ are ordinary, everyday words and that is how you should understand them for this and all other questions.

•    ‘Sexual intercourse’ includes inserting the penis of one person, to any extent, into the mouth of another person.

•    The act of penetration does not have to be for sexual gratification on the part of [the applicant] or result in ejaculation.

•    Consent is not relevant.

[2]    If ‘No’ to [1], you must find [the applicant] not guilty of Count 1 and proceed no further with this Count.

[3]    If ‘Yes’ to [1], are you satisfied beyond reasonable doubt that [the applicant] intended inserting his penis, to any extent, into the mouth of [the complainant]?

•    ‘Intention’ may be inferred if it is the only rational inference in the circumstances.

[4]    If ‘No’ to [3], you must find [the applicant] not guilty of Count 1 and proceed no further with this Count.

[5]    If ‘Yes’ to [3], are you satisfied beyond reasonable doubt that, at the time, [the complainant] was under 10 years of age?

[6]    If ‘No’ to [5], you must find [the applicant] not guilty of Count 1.

[7]    If ‘Yes’ to [5], you can find [the applicant] guilty of Count 1.”

43. His Honour directed the jury as to the use of the document as follows:

“[This document] is part of my summing-up so, although some of the propositions are posed as questions, they capture a legal concept. You will see that when you read it. What I have done, just to take the first count 1, count 1, which is on the top of the bundle, is I have set out count 1 as it appears on the indictment and then I have posed a series of questions and those questions capture the legal elements that the Crown needs to prove beyond reasonable doubt”.

44. His Honour told the jury that it was a matter for them how they went about “working through the counts on the indictment” and gave examples of how they might go about this task. His Honour directed the jury that they must “accept the propositions of law that are contained in the documents”. The trial judge asked the jury to leave the courtroom and “go through” MFI15. His Honour suggested to the jury that it might need half an hour for that purpose.

45. When the jury returned, his Honour addressed an unrelated jury request for transcripts before saying:

“I hope you have found the Jury Question Trail helpful. I remind you that it is those questions, and only those questions, that the Crown needs to prove beyond reasonable doubt. There were a lot of other contested facts in the hearing, none of which needs to be proved beyond reasonable doubt unless they are the questions on that document. If you have got any questions of your own following the completion of the summing-up about the directions I am giving you today (which directions, again with the Jury Question Trail, will be supplemented by oral directions) please do not hesitate to send me a note”.

46. His Honour then gave directions on the standard topics as follows: the respective roles of trial judge (judge of the law) and jury (judges of the facts); equality of jurors, requirement for unanimity; the onus and standard of proof; assessment of, and reliability of, witnesses; the manner in which the complainant gave her evidence; and the need to examine the complainant’s evidence carefully. After giving directions on these topics, his Honour returned to the Jury Question Trail and said:

“You might think, members of the jury, that, insofar as those various questions on the question trail are concerned, there is really only one question in each trail that you would need to focus on: did that alleged relevant act, whether it be sexual intercourse or whatever, occur? You might think that, if you answered ‘no’, that bring that line of inquiry to an end. If you answer ‘yes’ then you might not have much trouble with the following questions.

You might think that the focus of your deliberations and considerations of the elements will be on question 1 for each of those counts: did that alleged act take place? You will come to look very carefully at [the complainant’s] evidence because, as I say, the Crown’s case is that she, and she alone, was there with [the applicant].”

47. His Honour returned to the orthodox elements of the summing up by summarising the parties’ submissions and giving directions about delay, context evidence and the applicant’s right to silence. His Honour gave a direction in accordance with Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J); [1985] HCA 66 and a warning to the jury regarding the use of evidence of the applicant’s admitted violence. His Honour also gave a direction regarding the need to separately consider each count (as to which see further below) and a Markuleski direction (named after R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290). The trial judge also instructed the jury regarding delivery of verdicts.

48. The directions which the trial judge gave to the jury about the need to consider each count separately are the subject of ground 2.

49. In directing the jury about the need to carefully examine the complainant’s evidence, his Honour said as follows:

“The second thing I want to say about [the complainant’s] evidence is this. These charges, these 17 separate cases the Crown brings against [the applicant], are based largely on her evidence as, on her account, no one else was there when the incidents she alleges occurred between herself and [the applicant]. Therefore, it is important that I remind you that you must be satisfied that she is an honest and accurate witness in the accounts she has given you before you could convict the accused of any count on the indictment. In any criminal trial, where the Crown relies solely or substantially upon the evidence of a single witness, the jury must be satisfied of that witness’s evidence beyond reasonable doubt because of the onus and the standard of proof placed on the Crown.

I am not suggesting to you that you are not entitled to convict [the applicant] upon [the complainant’s] evidence. Clearly, you are entitled to do so - but only after you have carefully examined her evidence and satisfied yourself that it is reliable beyond reasonable doubt”.

50. His Honour also directed the jury about the need to consider each of the 17 counts separately as follows:

“There are 17 counts on the indictment, members of the jury, and you have to go through each count individually and decide whether or not the Crown has proved that individual count beyond reasonable doubt.

You should finish doing one count and you then go to the next in the order in which you choose to do it”.

51. His Honour continued:

“The fact that there are multiple counts should not be used by you, however, to come to some form of compromise. For example, if six of you, just as a random number, were of the opinion that the accused was guilty of the 17 counts, but the other six were of the opinion that he was not guilty, it would be quite wrong for you to say to yourselves, ‘Look, we’re logjammed here. Let’s find him guilty of some, just for compromise sake, but not guilty of others.’ That would be a perversion of your oath. You must only join in a verdict if you honestly believe in its correctness.

Giving separate consideration to the individual counts on the indictment means that you are entitled to bring in verdicts of guilty for some and not guilty for others is there is a logical reason for doing so. It is a matter for you, members of the jury, but as this case depends entirely on whether the Crown has proved that [the complainant] is a truthful and honest witness, I myself have some difficulty in seeing how you could bring in different verdicts. It is a matter for you but I would have thought, speaking only for myself, that there would have to be 17 one way or 17 the other. But I have been wrong before and you may think that there is a logical reason, not a compromise, but you may think there is a logical reason, for having different verdicts.

If you were to find the accused not guilty on any count, particularly if you had doubts about the reliability of the complainant’s evidence in relation to that count, you would have to consider how that conclusion affected your consideration of other counts, including ones where you may have already reached a decision”.

[Emphasis added to indicate the passage which is the subject of ground 2.]

52. As ground 3 concerns the rejection of evidence, it is a discrete matter which will be addressed when ground 3 is considered.

Ground 1: the trial judge erred in directing the jury about the offences

53. The error of which the applicant complains concerns the manner in which the trial judge directed the jury as distinct from the content of the Jury Question Trail document. It is, accordingly, not necessary to consider the content of the document.

54. In substance, Mr Game submitted that the trial judge was obliged to read and explain the Jury Question Trail to the jury in open court, rather than simply send them away to read it and invite them to come back to him if they had any questions.

55. The trial judge gave some explanation of the way in which the document was to be used, but his Honour did not go through the document orally with the jury in open court. Thus, the trial judge, the prosecutor and the applicant were deprived of the opportunity of watching the jury at the crucial time when the document was being read to them, or gone through. Thus, the Court and the parties were not in a position to observe or detect any concern on the part of the jury about the document or its terms or to monitor the extent to which individual jurors were actually reading the document and appreciating its gravamen and purpose.

56. The task of directing the jury as to the elements of the offence is so fundamental a task of the trial judge that I consider that leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) ought be granted although the applicant’s counsel did not object to the approach taken by the trial judge or seek to have it corrected in any way.

57. The provision of written directions to the jury is expressly authorised by s 55B of the Jury Act 1977 (NSW). These documents can serve a useful purpose as a reminder to the jurors of what the trial judge has directed them and, in the case of elements of an offence, a check list of the matters to be proved by the Crown beyond reasonable doubt. However, such documents are designed to augment oral directions and not be a substitute for them. This Court has held that even when written directions are given to the jury, the trial judge is required to give oral directions which, as a minimum, oblige the trial judge to read out and explain the written directions: Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 (Trevascus) at [49]-[71] (Bellew J, Hoeben CJ at CL and Hidden AJ agreeing). This Court has confirmed and applied these principles in Bourke (a pseudonym) v R [2021] NSWCCA 145 at [37]-[39] (Garling J, Beech-Jones and N Adams JJ agreeing) and Zhou v R [2021] NSWCCA 278 at [22] (Beech-Jones CJ at CL, Davies and Wilson JJ agreeing).

58. As Bellew J explained in Trevascus, the reasons for requiring an oral explanation in open court are procedural as well as practical. Where matters are explained in open Court, the trial judge, counsel for the parties, and the public, can hear what the judge is saying and gauge the reaction of the jurors. If a juror’s attention is wandering or a juror nods off to sleep, this is obvious if the juror is in court. In such circumstances, the trial judge can take an adjournment or repeat a direction to make sure that it has been heard by each juror. However, when the task of appreciating the elements of an offence is conducted in the jury room, there are no observers to monitor compliance or detect uncertainty about the meaning of a document. The process becomes opaque, which is inimical to the principle of open justice. Further, while many jurors will not be backward in asking questions, others might be diffident to expose their lack of understanding.

59. Sending the jurors off to the jury room with the Jury Question Trail without reading it out and adequately explaining it in open court was insufficient to fulfil his Honour’s obligation to direct the jury as to the elements of the offence. The ground, as conceded by the Crown, has been made out. It is necessary, subject to the applicant’s argument regarding ground 3, to order a new trial.

Ground 2: error regarding separate counts in the indictment

60. Mr Game submitted that it was not necessary that ground 2 be determined because, once ground 1 was made out, the applicant was at least entitled to the quashing of his convictions and a new trial.

61. Although I accept Mr Game’s submission, this Court’s role includes the provision of guidance to trial judges. In these circumstances, the applicant’s argument on this ground requires some response.

62. In McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, the High Court allowed an appeal on the basis of an unfair summing up. In the course of the reasons of the plurality, their Honours (Bell, Keane, Gordon and Edelman JJ) considered the limits of proper judicial comment and said, of present relevance:

“49   In the first place, given that the jury is the ‘constitutional tribunal for deciding issues of fact’, expressions of opinion by a trial judge as to the determination of a disputed issue of fact are hardly consistent with the function of the trial judge as it is now understood. It is difficult to conceive of a situation in which the performance of the trial judge’s fundamental task of instructing the jury would be advanced, consistently with the role of the jury, by suggesting the determination of a disputed question of fact, the resolution of such questions being the exclusive province of the jury. Once, perhaps because of disparities in educational opportunities and attainment within the community, it might have been thought that juries would welcome judicial guidance as to the performance of their function that included indications of the judge’s view of disputed facts, but it cannot be assumed that today’s juries welcome such gratuitous solicitude on the part of the judiciary. Certainly, insofar as today’s judiciary is concerned, the respect due to juries as the constitutional tribunal of fact strongly supports judicial reticence as to the determination of questions of fact.

50   Secondly, there is no little tension between suggesting to the jury what they ‘might think’ about an aspect of the facts of a case and then directing them that they should feel free to ignore the suggestion if they think differently. There is a risk that the jury may actually be swayed by the trial judge’s suggested determination. It would be to maintain an altogether hollow and unconvincing distinction to say that, while a trial judge may not go so far in his or her comments as to create a risk that the jury may be ‘overawed’, it is nevertheless permissible for a judge to use language that ‘makes him [or her] appear a decided partisan’.”

[Footnotes omitted and emphasis added.]

63. I consider that the portion of the summing up which is highlighted in the extract above is apt to mislead the jury and has the potential to cause prejudice to the applicant. I accept Mr Game’s submission that the effect of the trial judge saying “17 one way or 17 the other” was that the jury was being directed to consider their verdicts as one way or the other. The question whether a verdict of guilty or not guilty should be returned in relation to any of the 17 counts is purely a matter for the jury. It is not for the trial judge to pre-empt any separate consideration of each count by informing the jury of his Honour’s view that consistency required that all 17 verdicts be the same. A proper direction would have been to direct the jury that their view of the reliability of the complainant in relation to one count might affect the conclusion it reached in relation to her reliability on another count.

64. Although the trial judge’s statement amounted to no more than a comment, there was a risk that the jury would have regarded it as amounting to more than that. As the High Court said in the passage from McKell v The Queen set out above, there is a risk that the jury might be “overawed” by the force of a judicial comment. This is particularly so when it appears in the context of directions by which the jury are bound.

65. The trial judge’s comment gave rise to potential prejudice to the applicant because it, potentially, takes away from him the prospect that the jury will return different verdicts for different counts, thereby affording him the opportunity of appealing against the convictions flowing from the guilty verdicts on the grounds of inconsistency and thereby obtaining acquittals. I do not consider that the judge’s admission that he had been wrong before is sufficient to remedy the harm done by the expression of his view.

66. In the circumstances of the present case, it is not necessary to address whether leave ought be granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules or whether the convictions would be required to be quashed solely on the basis of ground 2, since these questions do not arise, having regard to my view on ground 1.

Ground 3: alleged miscarriage of justice by reason of the rejection of admissible evidence

The procedural context

67. A pre-trial voir dire was conducted as to the admissibility of evidence relating to the complainant’s complaint of sexual assault in Queensland (the Queensland offences), by another member of her family (the Queensland offender), before she came to live with the applicant and his wife (the Queensland evidence). It was common ground that the Queensland evidence (which also included evidence relating to the proceedings against the Queensland offender) was covered by the prohibition in s 293(3). The applicant sought to argue on the voir dire that it fell within the exemption in s 293(4)(b).

68. The applicable provision, s 293 (now s 294CB), provided at the time of the alleged offending as follows:

“293   Admissibility of evidence relating to sexual experience

(1)     This section applies to proceedings in respect of a prescribed sexual offence.

(2)     Evidence relating to the sexual reputation of the complainant is inadmissible.

(3)     Evidence that discloses or implies:

(a)     that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b)     has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4)     Subsection (3) does not apply:

(a)     if the evidence:

(i)     is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii)     is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b)     if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

…

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

(5)     A witness must not be asked:

(a)     to give evidence that is inadmissible under subsection (2) or (3), or

(b)     by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

(6)     If the court is satisfied:

(a)     that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:

(i)     had sexual experience, or a lack of sexual experience, of a general or specified nature, or

(ii)     had taken part in, or not taken part in, sexual activity of a general or specified nature, and

(b)     the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,

the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.

(7)     On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.

(8)     If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.”

69. The applicant sought a ruling under s 192A of the Evidence Act 1995 (NSW), with a view, if the evidence was ruled admissible, to cross-examining the complainant regarding the Queensland offences. The evidence was rejected. However, some allowance was made to permit the applicant’s counsel to cross-examine the complainant about the Queensland offences on the basis that they were described as “assaults” rather than “sexual assaults”.

70. In order to appreciate the context in which the admissibility of the evidence arose and the potential prejudice to the applicant of not being permitted to use the evidence as he would have wanted, it is necessary to go into some detail about the background facts, the trial judge’s reason for rejecting the evidence, and the course of the trial.

The background facts

71. Prior to 1 January 2008, the complainant had lived with her father and his de facto partner (the complainant’s stepmother). However, they considered her to be a “handful” and arranged for the complainant to move to live with the complainant’s aunt (her mother’s sister) and the Queensland offender, who was the aunt’s de facto partner.

The Queensland offences

72. Between 1 January 2008 and 17 June 2009, while the complainant was living with her aunt and the Queensland offender, he committed the following offences against her (as was confirmed by his subsequent pleas of guilty, see below):

Count to which Queensland offender pleaded guilty	Time period in which offending occurred	Age of complainant	Conduct
1	Between 1 January 2008 and 17 June 2009	6 to 7 years	The Queensland offender showed the complainant a picture of him using a dildo or vibrator on his partner in a sexual manner.
2	Between 1 January 2008 and 17 June 2009	6 to 7 years	While the Queensland offender’s partner had taken the family out shopping and the Queensland offender and the complainant were home alone, the Queensland offender took the complainant to her bedroom and put her hands on his penis, pushing it up and down. The Queensland offender’s partner returned home, and he placed his penis under his shirt, away from view.
3-4	Between 1 January 2008 and 17 June 2009	6 to 7 years	The Queensland offender picked the complainant up in his truck. When stopped at the lights, he removed his penis from his pants and began to masturbate in front of the complainant. When they arrived home, he took the complainant inside the lounge room, removed both of their pants, and straddled the complainant. He rubbed his penis on her stomach and “yellow stuff” came from his penis on to the loungeroom floor.

The reporting of the Queensland offences

73. On 14 June 2009, the complainant told her stepmother about the Queensland offender’s conduct. At first, they did not believe the complainant. However, in July 2009, the complainant’s father and stepmother arranged for the complainant to move to New South Wales to live with another aunt (her father’s sister) who was married to the applicant. On 15 September 2009, the applicant’s wife became the complainant’s legal guardian.

74. In late 2009, according to a statement made on 21 July 2010 by the applicant to police in the prosecution case against the Queensland offender, the complainant told the applicant about the Queensland offences while they were driving together in his car.

75. On 28 February 2010, the complainant disclosed further aspects of the conduct of the Queensland offender to her father and stepmother. On 31 March 2010 and 1 April 2020, the complainant was interviewed in Queensland about the Queensland offences. As referred to above, the applicant was interviewed by Queensland police and made a statement on 21 July 2010. His evidence was evidence of complaint and was adduced in the prosecution case against the Queensland offender.

The committal in Queensland

76. The committal hearing for the Queensland proceedings against the Queensland offender took place in April 2011. The complainant gave evidence against the Queensland offender at committal. The Queensland offender was committed for trial.

The alleged offending by the applicant against the complainant

77. According to the complainant, the applicant committed sexual offences against her in the period from 1 January 2011 to 2014. These alleged offences comprised the 17 charges in the indictment. The periods during which the counts are alleged to have been committed are as follows.

Count	Period in which offence is said to have occurred
1-3	1 January 2011-31 December 2011
4-5	14 June 2011-31 December 2011
6-9	1 December 2011-31 December 2011
10-11	1 February 2012-31 March 2012
12	1 January 2011-31 December 2013
13	1 January 2014-31 December 2014
14	1 March 2014-31 October 2014
15-17	1 March 2014-31 December 2014

78. Thus, the earliest offence alleged against the applicant was committed over a year after she told him about the Queensland offences.

The Queensland proceedings

79. On 18 April 2012, the complainant, who was then 9 years old, gave pre-recorded evidence in Queensland for the purposes of the prosecution of the Queensland offender, after at least the offences in counts 1-11 had allegedly been committed by the applicant.

80. The trial of the Queensland offender took place in late 2012. The applicant gave evidence in the prosecution case as a complaint witness.

81. On 12 November 2012, the Queensland offender was found guilty of four counts of rape and seven counts of indecent treatment of a child under 12 years. He was sentenced to a term of imprisonment of 8 years. The complainant was then 10 years old.

82. The Queensland offender appealed against his convictions. On 10 July 2013, when the complainant was 11 years old, the Queensland Court of Appeal allowed the appeal, quashed the Queensland offender’s convictions and ordered a new trial.

83. On 1 October 2013, the complainant gave pre-recorded evidence for a second time in Queensland. After this had occurred, but before the re-trial took place, the prosecutor accepted the Queensland offender’s plea of guilty to four counts of indecent treatment of a child under 12 years under his care (set out in the table above). It was an agreed fact that the complainant was between 6 and 7 years old at the time of the offending and that the Queensland offender was 32 or 33 years old.

84. The complainant alleged that the applicant’s offending against her continued until 31 December 2014.

The complainant’s new home (away from the applicant)

85. In January 2017, the applicant’s wife separated from the applicant. From that time on, they lived in separate residences. The applicant’s wife continued to live with their two children and the complainant.

The first report by the complainant of the offences alleged to have been committed by the applicant

86. On 10 December 2017, the complainant, who was then 15 years old, first reported the alleged offences committed against her by the applicant to her aunt (the applicant’s wife). On 11 December 2017, the applicant’s wife took the complainant to Narellan Police Station to report these matters. On 15 December 2017, the complainant participated in a recorded interview in which she described the conduct which became counts 1-10. In the course of this interview, she told police about the second alleged assault on a dirt track in early June 2011, just six weeks after the committal in the Queensland proceedings. The following exchanged ensued:

“Q383   Did you tell anyone?

A   No. ‘cause I didn’t know how to tell anyone, cause of what happened the first time.”

87. This question and answer were redacted from the evidence which the complainant was permitted to give at the trial of the applicant. Other evidence indicated that the applicant and his partner intervened to persuade the complainant’s father, who at first had not believed the complainant, that she was telling the truth about the Queensland offences.

88. The complainant subsequently reported further conduct which became counts 11-17.

The application on behalf of the applicant for a pre-trial ruling

89. It was common ground that the evidence set out above of the fact and timing of the reporting of the Queensland offences when compared with the applicant’s alleged offending was probative. The applicant’s trial counsel, in detailed written submissions, set out the various ways in which he proposed to use the evidence if it was admitted. It is not necessary to recount the various ways identified. It is sufficient to note that the defence case included the following propositions:

1. the complainant had chosen to confide in the applicant about the Queensland offences, which were sexual offences;

2. the complainant had ample opportunity when giving evidence at committal and in the Queensland trial to raise the alleged sexual offences committed on her by the applicant with the police officers or the prosecutor in Queensland, which would have led to their investigation;

3. the complainant had already complained about sexual conduct which led to the prosecution of the Queensland offender and to his conviction and sentence (although the convictions were later quashed pending his plea of guilty);

4. she intimated to NSW Police that she “didn’t know how to tell anyone [about the applicant’s conduct] [be]cause of what happened the first time [when she reported the Queensland offences]” (the exchange at Q & A 383 extracted above) when in fact she did know how to report them because she had already reported the Queensland offences, been believed by her family and the authorities and the Queensland offender had been prosecuted as a consequence; and

5. the complainant appreciated that she had a very powerful weapon which could be used against the applicant if he sexually offended against her: namely, to report his conduct to police, but she did not do so because the conduct never occurred.

90. Each of these propositions depended on the defence being permitted to adduce evidence that the Queensland offences were sexual offences. However, the propositions could, as occurred in the trial, be adapted to permit the applicant’s trial counsel to cross-examine the complainant on the basis that the sexual assaults in Queensland were assaults simpliciter.

The trial judge’s ruling on the Queensland evidence

91. The trial judge heard the application on 30 July 2019 and gave reasons on the same day.

92. As referred to above, the applicant’s trial counsel set out, in detailed written submissions, topics of cross-examination relating to the Queensland offences. He also contended that the cross-examination was relevant to the relationship between the complainant and the applicant, as well as to her memory of certain dates, the opportunity to complain to others about the subject offences and her knowledge of the criminal justice system (garnered from her experience of the Queensland offences). The applicant’s counsel accepted that s 293(4)(a) did not apply but contended that s 293(4)(b) applied.

93. In his reasons for rulings, his Honour said:

“11   What counsel for the accused seeks leave to do is to cross-examine the complainant about the fact of the reporting of the previous sexual assaults in Queensland and the fact of the Queensland proceedings - not to descend into any fine detail of the sexual offending itself. 

12   The basis of the cross‑examination is to seek to establish that the complainant had more than ample opportunity to make complaint about this accused in the ongoing investigation and prosecution of the Queensland offender, but did not.

13   Furthermore, the anticipated cross-examination would seek to raise the improbability of this accused committing the offences with which he has been charged, given that very many of them are said to have occurred in or around the time of the Queensland proceedings.  

14   At face value the intended cross-examination would be of significance to the defence case, subject to a matter to which I shall return. To exclude that evidence would lead to an unfair distortion of the facts. The anticipated evidence would directly bear on the objective likelihood of the offences having been committed.

15   The Crown concedes, properly, that, prima facie, for the reasons advanced in voir dire exhibit 2, the proposed cross-examination would be relevant. I would go further and say it would be significantly probative.

…

18   The proposed cross-examination, however, would not have given rise to this complainant having ‘to endure what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court’.

19   The proposed cross-examination would only have indirectly referred to such matters. But the Court is not given a broad discretion based on the interests of justice on this question of admissibility. 

20 Section 293 does not permit the foreshadowed cross-examination taking place because of the prohibition in subs (2) and (3). The evidence sought to be adduced by the cross-examination can only be advanced if it can be brought within one of the exceptions contained in subs (4).

21   Counsel for the accused has expressly disavowed relying upon subs (4)(a). The Crown Prosecutor joins with him in submitting that that subsection is not engaged. Both experienced advocates in part at least rely on the decision in Adams v The Queen [2018] NSWCCA 303.

22   Rather, the subsection that counsel for the accused relied upon was subs (4)(b). The Crown Prosecutor has contended that that section is not engaged. Attention was directed to Taylor v The Queen [2009] NSWCCA 180 in which consideration was given to the meaning of the term “relationship”. Reference to the dicta in that judgment supports the proposition contended for by the Crown Prosecutor. The nature of the expression “relationship” in that subsection is not captured by what passes between the complainant and another person other than the accused.

23   In the result, therefore, the complainant cannot be cross-examined as extensively as, in my view, the interests of justice require. Parliament has spoken and has deliberately not given the Court any wide discretion.  I cannot help but think, however, that Parliament did not intend the result which has occurred in this case. This, of course, does not mean that the counsel for the accused cannot modify his proposed cross-examination so as to delete the context in which the Queensland proceedings occurred.  Some of his proposed cross-examination will necessarily have to fall by the wayside but there is still scope for cross‑examination of the complainant, provided the nature of the proceedings is not disclosed.”

The way in which the ruling was applied at the trial

94. After the ruling was made but before the complainant was cross-examined, the applicant’s trial counsel sought to confirm the limits of permissible cross-examination in light of his Honour’s ruling. The following exchange ensued:

“HOARE: Lastly, and I’ve spoken to my friend about this. I’m conscious of your Honour’s 293 ruling. I’m attempting to put the Queensland legal proceedings into some sort of context.

HIS HONOUR: Yes.

HOARE: My initial view is that I would be asking her to confirm that she had been assaulted by somebody in Queensland. I’m not going to give a name or connect it to any member of the family.

HIS HONOUR: Or, the type of assault.

HOARE: I’ll be suggesting that there were a series of physical assaults upon her. Now, that’s not incorrect, per se.

HIS HONOUR: That seems suitable. Mr Crown?

CROWN PROSECUTOR: We’ve spoken about this, I don’t object.

HIS HONOUR: Y es. I wouldn’t regard that as contravening the ruling, Mr Hoare.

CROWN PROSECUTOR: I can tell your Honour, I’ve spoken with the complainant about that, and she’s aware that--

HIS HONOUR: Good. She’s forewarned.

CROWN PROSECUTOR: She’s aware that questions may be asked of her, describing events as assaults, and she’s aware that your Honour has ruled that questions can’t be asked, and answers can’t be given that describe the nature of those assaults, and the sexual aspect of them, so I expect that she--

HIS HONOUR: She should be instructed she is not to volunteer.

CROWN PROSECUTOR: I’m quite confident that she won’t be volunteering anything of that sort, and I’ve made that clear to her, as well.”

95. The complainant was cross-examined and gave evidence that some of the offending was happening when she was “in the midst of … legal proceedings in relation to the Queensland matter” which were “very important to [her] at the time”.

Consideration

96. The Crown accepted that the exceptions under s 293(4)(a) and (b) to the prohibition in s 293(3) did not involve the exercise of discretion since the question whether the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission arises only if either (a) or (b) has been made out. In this respect, the Crown submitted that a ruling under s 293(3) and (4) was analogous to one under s 97 of the Evidence Act: namely, a ruling for which there was only one correct answer and which did not involve the exercise of discretion: The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The Crown contended that this Court could determine the question of admissibility under s 293(4)(a) and (b) and that it ought do so for the purposes of determining ground 3 and, accordingly, whether a new trial ought be ordered.

97. Mr Game contended that, if this Court were simply to remit the matter to the District Court for a re-trial, then, in the absence of a determination of the admissibility of the evidence raised by ground 3, the applicant would be bound by the trial judge’s ruling by reason of s 130A of the Criminal Procedure Act. He submitted that the trial judge’s ruling was erroneous at least on the basis that his Honour’s reasons failed to address the gravamen of the applicant’s argument on s 293(4)(b).

98. Mr Game submitted that there were several courses which this Court could take in resolving ground 3, including the following:

1. this Court could decide that the trial judge’s judgment was in error in that it failed to engage with the submission put in relation to s 293(4)(a) and therefore set it aside and remit the question of the admissibility of the Queensland evidence to the District Court to be determined by another trial judge;

2. this Court could determine for itself that the evidence did not fall within the exceptions in s 293(4)(a) and (b) and decide, on that basis, not to order a re-trial (rather than grant a stay since the same considerations would be relevant to the question whether a re-trial ought be granted) and, instead, order an acquittal;

3. if the Court decided that the evidence fell within at least one of the exceptions in s 4 ((a) or (b)), it could remit to the District Court the discretionary matter (whether the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission).

99. Mr Game further submitted that the way in which the ruling was applied was also erroneous. As referred to above, the trial was conducted on the basis that the complainant had been “assaulted” by the Queensland offender, but not (as was the fact) that she had been sexually assaulted by the Queensland offender. He submitted that this was an “unfair distortion of the facts” because the jury may have assumed that they were not sexual assaults, which was positively misleading. Although he accepted that it was open to the applicant at trial to make the point about late complaint concerning the subject offences, the point would have been much more powerful if the jury had been allowed to be told that the Queensland offences were sexual offences and were of the same type as those which it was alleged that the applicant committed on her at around the time of the Queensland proceedings. Mr Game submitted that the jury might have considered the delay in complaining about the subject offences was explicable on the basis that, contrary to the fact, the jury thought that the complainant had not been sexually assaulted before (because they assumed that the Queensland offences, though assaults, were not sexual assaults). Mr Game relied on each of these matters in support of the submission that the Court ought not order a new trial.

100. It was common ground that the trial judge had not addressed the applicant’s argument under s 293(4)(b). By referring to Taylor v R (2009) 78 NSWLR 198; [2009] NSWCCA 180, his Honour misapprehended the submission made on behalf of the applicant that the relationship of confider (the complainant) and confidant (the applicant) was the relevant relationship. It is plain from the reasons that his Honour considered that the applicant was suggesting that the relevant relationship was the one between the complainant and the Queensland offender.

101. In these circumstances, where the applicant’s submission was not addressed by the trial judge, it would be open to this Court to remit the question of the admissibility of the Queensland evidence to the District Court. In that event, if the evidence was found to be inadmissible, the District Court could determine whether the proceedings ought be stayed. If the evidence was found to be admissible, the trial could proceed in the District Court, subject to an application by the Crown under s 5F(3A) of the Criminal Appeal Act.

102. However, the parties have joined issue in this Court about the applicability of s 293(4)(a) (which was not argued before his Honour) and (b). There has been full argument on the question. I accept the Crown’s submission that there can only ever be one answer (albeit one in respect of which reasonable minds might differ) to the question whether evidence excluded under s 293(3) falls within the exceptions in s 293(4). In these circumstances, I am persuaded that it would be preferable for this Court to decide whether either of s 293(4)(a) or (b) applies in the present case and, if so, whether, on that basis, an order for re-trial ought not be made and, instead, an acquittal ought be ordered.

103. Before addressing whether s 293(4)(a) and (b) apply, I note that this Court has held that these provisions apply to what is disclosed or implied by evidence and are not affected by the purpose of the tender or the use which is to be made of the evidence: M v R (1993) 67 A Crim R 549 at 554-555 (Allen J, Gleeson CJ and Meagher JA agreeing).

Whether s 293(4)(a) applies

Section 293(4)(a)(i): at or about the time

104. Mr Game argued in this Court that the complainant’s sexual activity and experience (relating to the Queensland offences) took place “at or about the time of the commission of the [alleged offences committed by the applicant]” and that the evidence was “of events that are alleged to form part of a connected set of circumstances in which [the alleged offences were committed by the applicant]”. He submitted that there was a continuum of conduct that meant that the two sets of offences were not isolated from each other. He relied on what was submitted to be an overlap between the “aftermath” of the Queensland offences (being the committal hearing and the prosecution of the Queensland offender for such offences) and the commencement of the alleged offences by the applicant.

104. Mr Game further submitted that this Court has found in GEH v R [2012] NSWCCA 150 and Adams v R [2018] NSWCCA 303 that “sexual experience” in s 293(4)(a) includes not just the underlying experience but the recounting of, or describing, it. Thus, he argued that because the complainant described to the applicant what the Queensland offender had done to her and gave evidence about it, her “sexual experience” arising from the Queensland offences was coterminous with the subject offences committed by the applicant.

105. In GEH v R, the appellant appealed against the rejection of evidence that after the complainant, KN, had complained about the ongoing sexual assaults by the appellant, she moved in with her school friend, AH, and AH’s father, JH. KN had told AH that she was in a relationship with JH. The appellant wanted to cross-examine the complainant about what she had said to AH.

106. The timing of the relevant events in GEH v R was as follows. The appellant’s last alleged sexual assault upon KN occurred between 18 October 1992 and 10 November 1992. KN complained on 10 November 1992. She lived with AH’s family between 24 March 1993 and October 1993. While the complainant was living with JH, after AH had moved out, KN told AH and others that she had been in a sexual relationship with JH.

107. At [66] of GEH v R, Harrison J said:

“In the present case the evidence in question is directly related to a particular ‘sexual activity taken part in by the complainant’ and not to her state of sexual experience generally. The evidence is limited to the complainant's alleged sexual activity with [JH]. The question is whether it is evidence of something that occurred ‘at or about the time of the commission of the alleged prescribed sexual offence’. In my opinion it is not. It did not take place ‘at the time’. It could only have taken place ‘at about the time’. It did not take place at about the time of the alleged sexual offences or either of them in the sense that it took place some three or so months later.”

109. Beech-Jones J said, of present relevance:

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

82   The adoption of a more favourable approach for the appellant of considering the evidence in combination does not assist either. With such an approach the only relevant ‘event’ it could be considered evidence ‘of’ is the making of a false accusation against an older male in whose house KN was living. The making of that false statement, if that is what occurred, does not ‘form part of a connected set of circumstances’ in which the subject offences took place. It is not part of the narrative of events that lead to the offence nor is it part of the immediate aftermath. It does not provide a piece of any jigsaw puzzle concerning the ‘set of circumstance’" in which the offence was said to have been committed.

83   … the making of an allegedly false accusation against another older male might have impacted on KN's credit but it did not reveal an ‘event’ that was so connected to the circumstances of the offence that it bore on the objective likelihood of the offence having occurred.

84 For the sake of completeness I should add that evidence that a complainant has given an inconsistent version of the events the subject of the offence would in my view fall within s 293(4). The evidence of the uttering of the statement would clearly be evidence ‘of’ sexual experience or lack of it at the time of the alleged offence as well as evidence ‘of’ events that are connected to the set of circumstances that give rise to the offence, being the offence itself. The same reasoning applies to evidence of complaint made by a victim of a sexual offence.”

110. I do not regard GEH v R as supporting Mr Game’s submission. The Court in GEH v R drew a distinction between the underlying “event” (the sexual activity) and the reporting of it. The underlying event (the alleged sexual activity between KN and JH) could not have taken place before KN moved in to live with JH and AH. This occurred four months after the alleged offending. Thus, the temporal connection was held insufficient to make out the exception in s 293(4)(a)(i) for which GEH contended.

111. The observation made by Beech-Jones J in [84] related only to the complainant’s version of the events the subject of the offence, that is, the offence charged. His Honour ought not be taken to have said that the uttering of a statement about other sexual activity or sexual experience renders that activity or experience contemporaneous with the statement for the purposes of s 293(4).

112. In Adams v R, the applicant complained that evidence had been wrongly rejected. He sought to adduce evidence of previous (false) complaints of sexual assault which the complainant had made in the period leading up to the subject offence, including only days beforehand. Each of the judges who comprised this Court (Hoeben CJ at CL, Campbell and N Adams JJ) was persuaded that that evidence was evidence of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, “about the time” of the commission of the subject offence. It is important to note that the complaints did not relate to past sexual activity, but rather to sexual activity which was said (by the complainant) to be contemporaneous with the complaints.

113. In Adams v R, there was the relevant connection in time between the experience or activity (or lack thereof, given that they were said to be false complaints) and the commission of the subject offence.

114. In Adams v R the contemporaneous complaints of sexual activity were said to be false, whereas in the present case, the complaints related to actual (admitted) sexual activity, which was the subject of subsequent complaint. Adams v R does not provide any support for the proposition that the reporting of sexual activity or sexual experience (or lack thereof), as opposed to the activity or experience (or lack thereof) of itself, is the relevant matter that needs to have been taken part in by the complainant about the time of the commission of the subject offence.

115. In the present case, the chronology outlined above indicates that the last of the Queensland offences committed by the Queensland offender was committed in June 2009. The first of the offences alleged to have been committed by the applicant was committed on 1 January 2011. Thus, there was a period of approximately 18 months between the Queensland offences and the subject offences. I do not consider that this time period falls within the statutory wording, “at or about the time”. I do not accept that the “aftermath”, being the Queensland proceedings ought to be counted in this reckoning of time.

Section 293(4)(a)(ii): connected set of circumstances

116. Mr Game submitted that the requisite connection arose from the chronology set out above. He relied, in particular, on the circumstance that the complainant was giving evidence of the Queensland offences at the very time the subject offences (which were said to amount to substantially similar conduct) were said to have been committed. He submitted, in writing:

“The offences committed by the Queensland offender, and the ensuing criminal justice process, did not occur in isolation of the present case. The timing and nature of the complaint in relation to the Queensland offender, as well as the timing of the committal and trial proceedings, in addition to the appellant’s participation in that process, all form part of a connected set of circumstances with the complaint made in the present case. The second limb of section 293(4)(a) was satisfied and the trial judge should have allowed the section 293 application made by trial counsel.”

117. Having regard to my conclusion with respect to s 293(4)(a)(i), it is not necessary to address s 293(a)(ii). However, I consider it to be important to record my view that “connected set of circumstances” in s 293(4)(a)(ii) does not include the reporting of the Queensland offences or the administration of justice in Queensland in respect of those offences. If it were otherwise, circumstances could be “connected” merely because proceedings relating to previous circumstances were still on foot.

118. I regard the concession by the parties at first instance that s 293(4)(a) does not apply as having been properly made.

Whether s 293(4)(b) applies

119. In support of the contention that s 293(4)(b) applies, Mr Game submitted that the complainant’s evidence of the Queensland offences related to her relationship with the applicant, which existed at the time of the subject offences because she chose to confide in him about the Queensland offences and he, therefore, became a prosecution complaint witness in the Queensland proceedings. Thus, Mr Game argued, the complainant’s evidence related to their relationship of confidence, which was existing at the time of the commission of the subject offences. Mr Game submitted in writing:

“The disclosure of the Queensland offences to the appellant and the context surrounding the ensuing proceedings were a significant aspect of the relationship between the complainant and the appellant, particularly at the time of the first 12 counts on the indictment given the overlap with the Queensland proceedings.”

120. The question of what is required for evidence to “relate to a relationship” between the applicant and the complainant that was existing at the time of the commission of the offences alleged against the applicant was considered in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 (HG). In HG, the appellant (the complainant’s mother’s de facto) sought to lead expert evidence that the complainant had not been sexually assault by him but rather by the complainant’s late father. Gleeson CJ said, at [33]:

“As to par (b), questions have arisen in previous cases as to the scope of the term ‘relationship’. However, such questions do not require determination in the present case. Assuming there to have been a relevant relationship between the appellant and the complainant, existing at the time of the alleged offences, the evidence disclosing or implying an earlier sexual encounter between the complainant and her natural father (which was the evidence attracting the s 409B(3) exclusion [the statutory predecessor to s 293(4)(b)(ii)]) did not relate to that relationship.”

121. I understood Mr Game to seek to distinguish HG from the present case on the basis that, in HG, the evidence sought to be tendered was expert evidence from a psychologist. By contrast, he contended that the evidence in the present case, comprised complaints made by the complainant to the applicant about the Queensland offender which were said to relate to the relationship between the applicant and the complainant, being one in which the complainant reposed trust and confidence in the applicant. Although the words “relate to” are wide in import, I am not persuaded that the disclosure by C to A of offences perpetrated on C by B can be said to “relate to” the relationship between C and A.

122. In these circumstances, I consider the trial judge was correct to rule the evidence of the Queensland offences to be inadmissible. However, I accept that there was an error in his Honour’s judgment in, as referred to above, failing to address the argument put by the applicant.

Whether a stay ought be granted

123. Mr Game submitted that the applicant could not have a fair trial without the Queensland evidence because its exclusion deprived him of a chance of an acquittal and of the opportunity of presenting his case fairly. He contended that these submissions could not be answered by the rejoinder that the applicant still had the forensic advantage of cross-examining the complainant about the Queensland offences as long as they were referred to as “assaults” rather than sexual assaults. He submitted that such an approach was misleading and ought not be countenanced.

124. I consider it to be significant that it was the applicant’s counsel who suggested that he be permitted to cross-examine the complainant on the basis that the Queensland offences were “assaults”, with the implication that they were not sexual assaults. In these circumstances, applicant’s counsel preferred to use the Queensland offences to undermine the complainant’s credibility, in so far as they had the capacity to do so. This, in itself, was a forensic choice which carried some risk. The jury may have reasoned that the complainant had already had the experience of giving evidence against one perpetrator and, when she was assaulted again, she no longer had the strength to complain about fresh assaults. The jury may also have had regard to the circumstance that her most recent assailant, the applicant, was testifying to her complaints about the earlier assaults and had also provided accommodation for her in the home he shared with her aunt.

125. Because the Queensland evidence was not unequivocally in favour of the applicant (and was, in some respects, against him since it tended to support the complainant’s credit) it would have been open to the applicant’s counsel to have left the whole area of the Queensland offences alone. The Queensland evidence (which established that the complainant’s earlier complaints were true) is to be distinguished from the evidence referred to above in Adams v R and GEH v R, which tended to impugn the complainant’s credibility if the complaints were accepted to be false.

126. This Court has held in KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266 at [38] (Basten JA, Harrison and Beech-Jones JJ agreeing), which was confirmed in Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 at [202]-[206] (Leeming JA) that courts retain the power to stay criminal proceedings permanently if the application of a provision such as s 293(3) of the Act warrants it. As referred to above, it was common ground that the question whether to order a new trial in the present case was governed by the same principles which would apply to the question whether it was appropriate to permanently stay the trial.

127. Before a permanent stay is granted, the Court must be satisfied that the prosecution of the application is so inconsistent with the purposes of criminal justice so as to constitute an abuse of process. This requires the identification of a fundamental defect which goes to the root of the trial and which is “of such nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Jago v District Court of NSW (1989) 168 CLR 23 at 34 (Mason CJ); [1989] HCA 46.

128. I am not persuaded that the inadmissibility of the Queensland evidence is capable of causing a fundamental defect in the applicant’s criminal trial. Although the evidence could be used to advance the applicant’s forensic purposes (in support of a case that the complainant would have complained about the applicant’s conduct if it had occurred), its benefit to the applicant is not unequivocal. A jury might reason that the applicant, when the complainant told him of what the Queensland offender had done to her, was vulnerable, having already been sexually assaulted as a child and would not complain again, particularly if there was a risk (as well there might have been) that she would again lose her home. The applicant knew that the complainant’s natural father did not want her to live with him, that she could no longer live with her maternal aunt because of the Queensland offences and that she was potentially homeless but for his preparedness to house her.

129. Further, the jury might have assessed the complainant’s credit as having been fortified by the circumstance that she had previously made a true complaint about the Queensland offences (the truth of which was amply borne out by his pleas of guilty). As referred to above, the present case is unlike Adams v R, where the applicant wanted to adduce evidence of a contemporaneous false complaint to impugn the complainant’s credit.

130. While there is force in Mr Game’s submission that the jury was misled by being told that the Queensland offences were assaults but not that they were sexual assaults (which may have led them to assume that they were not sexual assaults), this consequence was brought about by the trial judge (and the Crown) permitting the applicant’s trial counsel to use the evidence of the Queensland offences in this way. This course preserved a substantial part of the forensic benefit which the applicant sought to derive from the Queensland evidence. All that the applicant has lost by the ruling on the Queensland evidence is the opportunity to fully exploit evidence that may or may not have been forensically beneficial to him in the conduct of this defence.

131. While it is preferable that a jury not be misled by expurgated evidence, there is a distinction between not being told the whole truth and being told something which is untrue. The latter evidence falls into the former category. It is not uncommon that incomplete evidence is adduced in a jury trial to take account of the rules of evidence. In KS v Veitch (No 2), this Court instanced cases where the rules of evidence resulted in the exclusion of otherwise relevant evidence at [66]:

“There are other areas of the law where public interests justify exclusion of documents or other information from disclosure in criminal or civil proceedings. Obvious examples are public interest immunity (which may extend to national security or to the identity of police informers) and client legal privilege (which covers communications between client and lawyer). In some jurisdictions protection is given to doctor/patient communications generally (therapeutic privilege), to priest and penitent communications and to those providing information to journalists. Such matters illustrate the acceptance that the interest of the courts in determining proceedings, including criminal proceedings, on all available evidence must in some circumstances be qualified to the protection of other public interests. The protection of sexual assault communications involves a balance of policies which has been determined in a particular way by the State Parliament and in which, subject to constitutional constraints, the court should not interfere.”

132. It was necessary for this Court to address the arguments put on behalf of the applicant that the exception in s 293(4)(a) or (b) applied to permit the evidence to be adduced. I am not satisfied that they do. Accordingly, the prohibition in s 293(3) applies. I have determined this question in order to address the applicant’s submission that this Court ought not order a re-trial. My reasons ought not be taken as expressing any view on the operation of s 293 otherwise.

133. For these reasons, I am not persuaded that this Court ought not order a new trial.

Proposed orders:

134. For the reasons given above, I propose the following orders:

1. Grant leave pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to argue ground 1.

2. Grant leave to appeal.

3. Allow the appeal on the basis of ground 1.

4. Quash the applicant’s convictions ordered following the trial before Colefax SC DCJ.

5. Order that there be a new trial of the applicant.

6. List the matter in the District Court arraignments list on 27 January 2023.

135. BELLEW J:  I have had the advantage of reading, in draft, the judgments of Beech-Jones CJ at CL and Adamson J.

135. I agree with Adamson J as to the disposition of ground 1, for the reasons her Honour has given.  In view of the conclusion reached in respect of that ground, there is no necessity to consider ground 2.

136. The circumstances giving rise to ground 3 are set out in full in her Honour’s judgment. I agree, for the reasons set out by Adamson J, that s 293(4)(a) does not apply. As her Honour has pointed out, there was a gap of approximately 18 months between the commission of the Queensland offences and the commission of subject offending. A gap of that length runs entirely contrary to a conclusion that the two episodes occurred “at” the same time. Further, and even on the widest possible interpretation, the phrase “about the time” cannot encompass two events which are separated by such a period. In my view, it is self-evident in these circumstances that the temporal element imposed by s 293(4)(a)(i) is not met: GEH at [10] per Basten JA.

137. As far as s 293(4)(a)(ii) is concerned Basten JA emphasised in GEH (at [11]) that the relevant event must form part of a set of circumstances in which the alleged offence was committed. In my view, for the reasons set out by Adamson J, the requisite connection is not made out in the present case.

138. For the reasons set out by Adamson J, I also agree that s 293(4)(b) has no application in the circumstances of the present case.

139. I agree with the orders proposed by Adamson J.

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Decision last updated: 15 December 2022