Edward Price (a pseudonym)[1] v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0038

EDWARD PRICE (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, KYROU and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2022
DATE OF JUDGMENT:	22 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 169
JUDGMENT APPEALED FROM:	DPP v [Price] (Unreported County Court of Victoria, Judge Syme, 29 March 2022)

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CRIMINAL LAW – Interlocutory appeal – Applicant charged with rape – Trial judge refused defence application to cross-examine complainant on previous sexual activities with applicant – Whether cross-examination has substantial relevance to fact in issue – Whether in the interests of justice to permit cross-examination – Appeal allowed – Criminal Procedure Act 2009 ss 342 and 349.

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Counsel
Applicant:		Mr T Kassimatis QC with Mr R de Kretser
Respondent:		Mr C Boyce QC with Ms V Jones
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
MACAULAY JA:

Introduction

Charge 34 of an indictment filed in the County Court alleges that the applicant raped a female, ‘RS’, then aged 16 or 17 years, on a date between 1 March 1988 and 16 April 1988. The indictment also alleges a host of sexual offending against another female, ‘JB’,[2] but the present application is limited to evidence relevant to charge 34.
[2]The indictment contains 33 charges of sexual offending against JB, in the period between 1 May 1985 and 20 July 1995, including: nine charges of indecent assault pursuant to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980 (charges 1, 2, 3, 8, 13, 14, 23, 28 and 29); 10 charges of sexual penetration of a child between 10 and 16 pursuant to s 48(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980 (charges 5, 7, 10, 12, 16, 18, 20, 22, 25 and 27); five charges of rape pursuant to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980 (charges 4, 11, 19, 24 and 33); eight charges of rape at common law (charges 6, 9, 15, 17, 21, 26, 30 and 32); and one charge of attempted rape (charge 31).
The applicant’s ‘defence’ to charge 34 (and the other charges) may be gleaned from the Defence Response to Summary of Prosecution Opening, dated 20 May 2020:
5. The [applicant] engaged in consensual sexual acts – including intercourse – with both complainants.
6. He denies outright engaging with either complainant in sexual activity that was not consensual; alternatively, he denies engaging with either complainant in sexual activity whilst aware that the complainants were not consenting, or might not be, consenting.
7. The [applicant] denies outright engaging with either complainant in sexual activity that occurred when the complainants were not yet 16 years’ old; alternatively, he denies engaging with either complainant in sexual activity whilst knowing or believing that they were not yet 16 years’ old.
8. The credibility and reliability of both complainants are squarely in issue. Both will be subject to challenge at trial.
In essence, RS first complained to police in October 2016, alleging that the applicant had raped her in 1987 or 1988. She told police that she knew the applicant ‘from around 1987 when [she] was 16–17 years old’. On two occasions prior to the night of the applicant’s ‘buck’s party’ – the party was held shortly before his wedding on 16 April 1988 – she had consensual sexual intercourse with the applicant. RS told police that the first occasion of consensual sex was in a house that RS shared with her sister and her sister’s boyfriend, and the second was in the applicant’s car on a road near a water-tower in a satellite suburb west of Melbourne. The third occasion was the night of the applicant’s buck’s party. As to the third occasion, RS said she and JB went to the party, and she and the applicant then drove to the same spot near the water-tower where they ‘had consensual sex again’. The alleged rape is said to have occurred the next morning in the bedroom of the house RS shared with her sister. RS alleged that the applicant removed roof tiles to break into the house, then went to her bedroom and forcibly had penile-vaginal sex with her without her consent.
Pursuant to s 342 of the Criminal Procedure Act 2009 (‘CPA’), the applicant applied to the trial judge to adduce evidence of the three occasions upon which RS had consensual sex with him prior to the occasion which is the basis of charge 34. The written application included the following:
The [applicant] is alleged to have raped RS on the morning after his buck’s party in March/April 1988 at [RS’s residence]. Both the [applicant] and prosecution are in agreement that the [applicant] and RS engaged in consensual sexual intercourse on the night of the [applicant’s] buck’s party. The [applicant] admits engaging in sexual intercourse on the morning after the buck’s party but states that it was consensual. The prosecution intend to lead evidence of the consensual sexual intercourse on the night of the buck’s party at trial which will not be objected to.
Initially, the prosecution did not oppose the application. As to that, the Summary of Prosecution Opening, dated 9 April 2020, referred to the fact that, during the evening of the buck’s party, ‘[RS] had consensual sexual intercourse with the [applicant] in his utility’ and later returned home. Moreover, the prosecution had itself filed an application under s 342 of the CPA, dated 22 December 2020, seeking ‘leave to adduce evidence from … [RS] as to her sexual activity with the [applicant] immediately prior to the alleged offending conduct in 1988’. And when RS gave pre-trial evidence in the County Court on 7 June 2021, she was cross-examined – without any demur by the prosecution – about other incidents of consensual sexual activity with the applicant preceding the night of the buck’s party.
Subsequently, however, the prosecution altered its position, culminating in a ruling by the trial judge on 29 March 2022, in which she gave leave to the applicant to ‘cross-examine’ at trial only on the ‘prior sexual activity between the parties’ on the night of the applicant’s buck’s party, and refused leave to adduce evidence of the other two occasions of consensual sexual activity (‘the ruling’ or ‘the interlocutory decision’). The judge thereafter refused to certify under s 295(3) of the CPA.
By notices filed on 31 March 2022, the applicant seeks review of the judge’s refusal to certify; and, in the event that the application for review is successful, seeks leave to appeal against the interlocutory decision. There are two proposed grounds:
1 The trial judge erred in ruling, under section 342 of the [CPA], that the defence be precluded from adducing evidence of the complainant (RS)’s sexual history with the [applicant] on occasions other than on the night preceding the morning of the alleged rape.
2 The trial judge erred by wrongly attributing to the defence, in its application under section 342 of the [CPA] that:
(a) it sought to rely on the assumption that the complainant could be assumed to have consented to sex on the occasion of the alleged rape because she had consented to sex in the past; and
(b) it sought to rely on a path of reasoning in breach of section 343 of the [CPA].
In our view, both applications must succeed. For the reasons that follow, we will grant the applicant leave to appeal against the interlocutory decision, allow the appeal and set the interlocutory decision aside.

Approach to a judge’s refusal to certify

When, in a case such as the present, this Court is called upon to review a judge’s refusal to certify, s 296(4)(a) of the CPA requires the Court to consider the matters referred to in s 295(3) – including whether the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal – and s 296(4)(b) permits the Court to grant leave to appeal if satisfied as required by s 297.
Section 297 permits the Court to give leave to appeal against an interlocutory decision ‘only if the court is satisfied that it is in the interests of justice to do so’ having regard to enumerated factors, including whether the determination of the appeal against the interlocutory decision may resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial (s 297(1)(b)(iii)); or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial (s 297(1)(b)(iv)).
In our view, both limbs of s 297(1)(b)(iii) and (iv) have been engaged.

The complainant’s evidence pre-trial

RS made three statements to police, which were tendered as part of the hand-up brief in the applicant’s committal proceedings.[3] In the first, dated on 28 October 2016, she described the circumstances of the alleged rape, and the three instances of consensual sex leading up to it. In the second, dated 27 March 2017, she expanded on aspects of her first statement, including providing more detailed descriptions of the consensual, and alleged non-consensual sex, with the applicant. And in the third, dated 31 May 2017, she explained why she considered it was the applicant’s fault that she had sex with another male around March 1989, and why it was his fault that she became pregnant, leading to a termination.
[3]RS made a fourth statement, dated 25 March 2022, following a conference with prosecutors and police. It relates principally to conversations that she had with JB.
In her first statement, RS described the sexual incidents with the applicant as follows:[4]
I knew [Ed] from around 1987 when I was 16-17 years old. I was living with my sister [‘C’] and her then boyfriend [‘D’] at [an address in a western satellite suburb]. I remember the address well as it used to be our family home from when I was about 14 until my mother moved out and [D] moved in with me and [C]. [D] is the brother of [JB]. I lived with them for maybe a year and a half.
We always partied at the house as we were young and drank a lot on weekends, and occasionally during the week. [Ed] would come to [the] house semi-regularly because he was juggling his life with his fiancé and mates. He was engaged at the time which I didn’t know. On one occasion we all had drunk a lot of spirits. [D] and [C] were there and possibly others but I can’t remember. This is the first time [Ed] and I had consensual sex. Honestly I don’t remember the details with [Ed] as I was drunk. He didn’t stay over, he got what he wanted and he left that night. He wouldn’t stay over as he had a fiancé and he wouldn’t want her to find out about him having sex with other people.
My next recollection is I know [Ed] and I had sex in his car which was consensual. We were at the Water-tower in [a road in the satellite town]. His car was an old white ute, maybe a HZ Holden. It was a normal ute, without a tray. He had this car for many years as it was all he drove apart from his [work] car.
The next time was the night of his Bucks Night. That was at his parent’s [sic] house in [the satellite town], not far from where [JB] lived at that time. His parent’s [sic] house was two-storey light brown brick. [JB] and I were drinking that night at my home. We were both drunk and ended up at the Buck’s Party. I still don’t remember how we ended up there. Some type of communication happened but I don’t recall how or by who. I remember arriving with [JB] and they were all in the garage, all men. I can only assume we had a drink then [the applicant] and I hopped in his white ute and he drove me to [named] Road Water-tower. We had consensual sex again. He pushed my head into his lap to give him oral sex. He undid his pants and removed his penis which was erect. I don’t remember if he ejaculated, I didn’t know what I was doing as I wasn’t experienced with that. I know we went back to the Buck’s Party, but this part is now sketchy and I don’t recall anything from then until I woke up the next morning.
The next morning I was in bed at [home] when I was woken by noise and commotion to find that [Ed] had taken the roof tiles off and climbed through into the house. It was early in the morning, just daylight. [D] and [Ed] were joking about him removing the tiles and breaking into the house. I was in bed and [Ed] came into my room. From memory he lied [sic] down on the bed and undressed. He then tried to force himself on me which I said no. He wanted sex and I didn’t want to. [Ed] was about to get married and he was here with me. I know it sounds contradicting to the night before, but I think it hadn’t hit me that he was about to get married. By forcing himself on me I mean he hopped on top of me, lying flat and I said no but he continued. He wasn’t taking no for an answer. I tried to push him off but he was forceful and he was a lot bigger than me. I had no control and he basically grabbed my legs and pushed them up. He inserted his penis into my vagina forcefully and there was nothing I could do about it. He wasn’t rough, he was just forceful and overpowering. He did what he wanted with me. I just kind of wanted him to get it done and gone. I just wanted him to leave. I would never have screamed out to anyone as I was embarrassed. I didn’t want anyone walking in while I was naked. I think he walked out shortly after and maybe he had a conversation with [D] and then left, I’m not sure.
I never told anyone about this until I spoke with [JB] maybe a couple of years later in late 1980’s. …
[4]Emphasis added.
In her second statement, RS said:
I remember the next day after the bucks’ party I was home in bed and I was awoken by a ruckus. I remember hearing [D] talking to someone and they were laughing. I got up out of bed to see what was going on. I then saw [the applicant] and [D] talking and I remember they were having a conversation about how [the applicant] had just broken into the house through the roof.
I remember it was treated as a massive joke and everyone was laughing because [the applicant] had climbed the roof and broken through the manhole.
I remember being concerned about [the applicant] coming through the roof because I was worried that the tiles needed to be put back on so that no one else could break into the house. I remember from then on I use [sic] to worry that someone was in the roof. I use [sic] to look at the exhaust fan in the bathroom and hope that no one was looking down.
I remember I went back to bed. I don’t remember how long it was, but I remember [the applicant] came into my room. I remember I had made a decision in my head that I was not going to have sex with [the applicant] anymore. As I knew he was getting married because I had been at his bucks' party the night before.
It may be appreciated from the foregoing that RS told police that she and the applicant had sex on four occasions. The first and fourth (the fourth constituting the alleged rape) occurred at the house she shared with her sister and sister’s boyfriend; and the second and third (the third occurring the night before the alleged rape) in the applicant’s vehicle on the road near the water-tower. RS asserted that, the morning of the alleged rape, the applicant broke into the house by removing roof tiles. (We note that there is other evidence that contradicts the assertion that the applicant removed roof tiles and broke in.) RS also claimed that – notwithstanding that she attended his buck’s party the night before and had sex with him knowing he was engaged – she resisted sex with the applicant the next day because he was engaged.
RS did not give oral evidence in the applicant’s committal proceedings. As we have mentioned, however, she gave pre-trial evidence before a judge of the County Court on 7 June 2012, pursuant to s 198B of the CPA. Her three statements (Exhibits B, C and D respectively) constituted her evidence-in-chief, and she was cross-examined by the applicant’s counsel. Significantly, as we have indicated, the prosecution did not object to any cross-examination relating to the incidents of consensual sex with the applicant preceding the alleged rape.
During her cross-examination, which included the following, RS confirmed much of what she had told police:
Before his bucks night, did you know whether [the applicant] was engaged?---No.
Did you know that he had a girlfriend called [‘A’]?---Yes.
And you had no compunction at that stage having sex with him?---Correct.
And do you know whether he’d been with [A] in a long-term relationship?---I believe so, I don’t really know the whole history.
Were they living together?---I don’t know.
…
When did you learn that he was engaged?---Ah the night of the bucks night.
Before you got there?---Ah well we were going to a bucks night, so yes.
Why did you go?---Ah I was drunk, we were invited over so we went there.
I’ll just read this from your statement. ‘On one occasion we all had, we all had drinks, we all had drunk a lot of spirits. [D] and [C] were there, and possibly others, but I can’t remember.’ So I’m just talking about the first time you had sex with [the applicant]?---Yep.
…
Now on the first occasion, that happened in circumstances where it was just like the last occasion, namely the alleged rape? In the sense that, in the sense that you were at [D] and [C’s], you went to bed, he came into the room, he undressed, the two of you had sex and then he left?---The first time yes, the last time no.
What happened on the last time?---The last time he broke through the roof.
Yes I know, but he was still in the house, he came into your room, the two of you had sex – or you say you were raped - - - ?---Correct.
- - - and then he left the room?---Yep, correct.
Your statement says he wouldn’t stay over as he had a fiancée?---Yep.
Isn’t that something you knew at the time?---No, after the time.
The next time you had sex with [the applicant] was in his car?---Correct.
How long between the first and second occasion?---No idea.
Where were the two of you before you went to [the road with the water-tower]?---I don’t know.
Did he pick you up?---I believe so.
…
Okay. The third occasion was at his bucks night, were there any other women there?---Ah [JB].
Sorry who?---[JB].
Yes, the two of you went together, didn’t you?---Correct.
And when you said that you were invited to go, who was it that you spoke to and invited you?---I have no recollection of why we ended up there, none.
Plenty of alcohol there for you?---M’mm.
…
The two of you left the bucks night and again attended at [the road with the water-tower] where you had sex?---Ah I believe, I’m not 100 per cent sure that we had sex at [the road with the water-tower].
You gave him oral sex?---Tried to, yes.
He reached out and pushed your head into his lap?---Correct.
But it’s not rape though, was it?---Then? No.
And had he done that on the other two occasions that you had sex?---No. The first time yes, at [the road with the water-tower], ah the first other time at [the road with the water-tower] but the very first time no.
All right. What did you hear when you got up on the morning after the bucks night?---I heard a commotion in the house, um and I looked out my bedroom door to see [D] and [the applicant] having a conversation about [the applicant] had broken through the roof of the house.
Who else was there?---Um I don’t recall.
Do you recall whether there was anyone there?---I’m not sure.
Was the commotion something that you heard from your bedroom before you walked out?---I didn’t walk out, I just popped my head out, but yes I heard the commotion from my bedroom.
When you say commotion you mean [D] and [Ed] having a laugh?---Yes, correct.
You didn’t hear any of the rooftiles being taken out or the entry into the house using rooftiles?---No.
On that occasion, by the time he came into your room do you know whether, apart from [D], there was anyone else in the house?---Ah my sister would’ve been there.
Yes?---But besides that I have no idea.
When he walked into the bedroom, what did you think?---I was pretending to be asleep.
And did you see him remove his clothes?---He lied on the bed next to me and removed his clothes.
When he walked through the door, what did you think?---Ah I was pretending to be asleep so that he would leave.
Because?---Because I didn’t want him in my room.
But you knew what he was there for, didn’t you?---I had a good idea that was what he was there for, yes.
Didn’t yell out to your sister once he laid down next to you?---No.
And what you say is that between the bucks night and the sex in the morning, you had realised that he was engaged and was getting married and so although you’ve had sex with him in the past, you didn’t want to have sex with him on that occasion?---Correct.
When you did have sex with him that night – the night before – you knew it was his bucks night, didn’t you?---Ah yes.
Once he hopped on top of you, why didn’t you yell out then?---Because I was trying to get him off of me.
Your statement reads, ‘He wasn’t rough, just forceful and overpowering.’?---Correct.
What’s the difference?---Rough is violent, forceful and overpowering is strength.

The legislative regime governing admissibility

Before turning to the judge’s ruling, it is convenient to turn to s 342 of the CPA and its companion provisions.
By virtue of s 339 of the CPA, Division 2 (ss 339 to 352) of Part 8.2 – headed ‘Evidence concerning complainant’ – applies to all complainants in a criminal proceeding relating (wholly or partly) to a charge for a sexual offence.
Section 340 of the CPA defines ‘sexual history evidence’ to be
evidence that relates to or tends to establish the fact that the complainant—
(a) was accustomed to engaging in sexual activities; or
(b) had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person.
The major focus of the present application is s 342, which is in the following terms:
342 Restriction on questions and evidence concerning complainant’s sexual activities
The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court.
It may be noted that s 342 does not allude to ‘sexual history evidence’. Instead, the section provides that a complainant must not be cross-examined, and the court must not admit evidence, of a complainant’s ‘sexual activities’.
On the other hand, s 343 is directly concerned with ‘sexual history evidence’, and provides that sexual history evidence ‘is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates’.
The circumstances in which a court may grant leave under s 342 to cross-examine the complainant, or admit evidence, as to his or her ‘sexual activities’, is governed by s 349, which provides:
349 Determination of application for leave during summary hearing, committal proceeding or trial
In the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to—
(a) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and
(b) the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and
(c) the need to respect the complainant’s personal dignity and privacy; and
(d) the right of the accused to fully answer and defend the charge.
The effect of s 349 is that the court may only grant leave to cross-examine, or admit evidence, of a complainant’s ‘sexual activities’, if satisfied that the evidence of those sexual activities has ‘substantial relevance to a fact in issue’ – if the evidence did not have relevance to a fact in issue it would be inadmissible in any event[5] – and ‘that it is in the interests of justice’ to do so, having regard to the four enumerated considerations.
[5]See Evidence Act 2008, ss 55 and 56.
Although ‘fact in issue’ is not defined, it is plain that, in a criminal trial, the facts in issue will be those that bear on the existence of the elements of the offence (or offences), and behind those there will be facts relevant to those facts in issue.[6] The applicant does not dispute that he sexually penetrated RS. Hence, the principal facts in issue in his trial will be, first, whether he intentionally sexually penetrated RS without her consent; and, secondly, whether he did so while being aware that she was not consenting or might not be consenting.[7]
[6]See Smith v The Queen (2001) 206 CLR 650, 654 [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Bauer (a pseudonym) v The Queen (No 2) [2017] VSCA 176, [47] (Priest, Kyrou and Kaye JJA); Danny (a pseudonym) v The Queen [2018] VSCA 223, [25] (Whelan, Priest and Kaye JJA).
[7]See, eg, R v Flannery [1969] VR 31; DPP v Morgan [1976] AC 182; R v Saragozza [1984] VR 187.
Moreover, the presence of the qualifying adjective ‘substantial’ in the expression ‘substantial relevance’ suggests that the cross-examination, or evidence, concerning the complainant’s sexual activities, must have the capacity to substantially affect the assessment of the probability of the existence of those two principal issues.[8] Although we know of no direct authority, we note that in VOT,[9] when considering s 36BC(2)(b) of the Evidence Act 1906 (WA) (which provided that a court could not grant leave to adduce or elicit evidence of the sexual experiences of a complainant in a proceeding for a sexual offence unless what was sought to be adduced or elicited ‘has substantial relevance to the facts in issue’) Steytler P said
that phrase is not defined by the Act and we have not been referred to any authority (and nor have I been able to find any) dealing with the meaning of that phrase in s 36BC. While it is difficult, and not particularly helpful, to give any precise meaning to the words ‘substantial relevance’ in this context, it seems to me that the evidence, if it is to satisfy s 36BC(2)(a), must be evidence that carries substantial weight in tending to prove or disprove facts in issue.
[8]In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331, 348, Deane J discussed the meaning of the word ‘substantial’ in the context of s 45D of the Trade Practices Act 1974 (Cth), and observed that it is a word ‘not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision’.
[9]VOT v Western Australia (2008) 37 WAR 129, 133 [16]. See also Tasmania v Martin (2011) 20 Tas R 445, 480 [109] (Porter J).
Section 352(a) of the CPA provides that ‘sexual history evidence’ is not to be regarded as ‘having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition’. And s 352(b) provides that ‘sexual history evidence’ is not to be regarded as ‘being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant’.

The judge’s ruling

Towards the beginning of her ruling, the judge noted that leave under s 342 had been granted with respect to both JB’s and RS’s pre-trial evidence given under s 198B. She then summarised ss 340, 342, 343, 344, 349 and 352 of the CPA, and granted leave under s 342 with respect to the evidence of JB (the grant of such leave not having been opposed by the prosecution).
After turning to the application with respect to RS, the judge said:[10]
In relation to the complainant, ‘RS’, as noted above, it was part of the prosecution case. Paragraph 86 of the prosecution opening, that on the evening before the alleged offence, (Charge 34 at the moment on the indictment) ‘RS’ had consensual sexual activity with the [applicant], in his motor vehicle, during the night of what is being referred to as his ‘Bucks Party’. It is not in dispute that during the evening, both complainants, that is, ‘JB’ and ‘RS’, attended the premises where the Bucks Party was being held.
Initially, it appears that this application for cross-examination of ‘RS’ on the events of the night before was not opposed. However, yesterday, [the prosecutor] indicated that the prosecution would no longer seek to rely on its case on a sexual act between the complainant ‘RS’ and the [applicant] on the evening before the event complained of. In the light of that, the position of the defence is that they seek to rely on that evidence and the prosecution now oppose it.
In explaining how this position can be presented to the jury in a sensible and context way, prosecution suggest that the evidence of a relationship nature could be led, that the complainant and the [applicant] knew each other as friends before the morning in question. They submit that s 343 is enlivened, suggesting that the evidence of the sexual activity in the evening before is only claimed to be relevant in the sense that it suggests that [the] complainant, having consented to sexual activity the night before, is more likely, therefore, to have consented to sexual activity the next morning. Thus, enlivening, as I said, s 343.
[Defence counsel], in his submissions, denied that this was the thrust of the argument, submitting that the decision not to consent in the morning, in light of the complainant’s previous consent, must be put in context with the jury as it is the complainant, herself, who claims her lack of consent, in the morning, was reinforced by her realisation that the [applicant] was soon to marry. A realisation she came to, at some time. The actual timing is unclear.
…
Defence wish to question this witness on the apparently consensual sexual activity the evening before. In submissions, defence submit that the evidence forms part of ‘the context immediately preceding the alleged offending against her’. They point out that the relevant evidence at trial will be the issue of consent or lack of consent for the event in question, that is, in the morning.
Defence submit that the evidence forms part of ‘the context immediately preceding the alleged offending against her’. They point out that the relevant evidence at trial will be the issue of consent or lack of consent for the event in question, that morning. By that I take it that there will be no dispute that the sexual activity, whatever it was, occurred; the issue of consent is very much in issue, and I accept that.
[10]Emphasis added to this and the following passages.
The judge then summarised various aspects of the evidence and observed:
RS indicated, in that evidence, that she did not know if [the applicant and his fiancé] were living together, and was not invited to the wedding. She said that she had learnt he was engaged on the night of the buck’s party, but agreed that she had sex with him, notwithstanding that knowledge the night before.
She did not know how long between the sex the night before and the sex that occurred the next morning. However, it is clear from the evidence before the court that she had gone home, slept for some time, before the [applicant] entered the house.
In those circumstances, it is difficult to accept the submission that the sex in the morning occurred in the context of a continuum of events; I do not accept that. At issue at trial is the question of whether the complainant consented to sex in the morning after the buck’s night.
There is no dispute, apparently, that she consented to sex, whether under the influence of alcohol or not, on the previous evening. It is submitted that her consent to the previous evening’s sex has substantial relevance, because the reason she gave for not wishing to have sex in the morning was because of her awareness the [applicant] was getting married.
The definition of sexual history evidence clearly covers this position. It relates to whether the complainant was accustomed to engaging in sexual activity or had freely agreed to sexual activity with the [applicant] on another occasion; that is, again, s 343 is enlivened.
Although counsel for the [applicant] denied that the argument was that the complainant could be assumed to have consented to sex on this particular occasion, that is, in the morning, because she had consented to his past activity, this is exactly the position that the [applicant] adopts. This is a relevant consideration for previous sexual activity between the two. …
However, the rider is that the complainant did not wish the prior sexual relationship to continue, because perhaps of her sober understanding that the [applicant] was about to get married, to some extent reinforced the lack of consent. That indeed the Crown case [sic].
It cannot be – or at least on the complainant’s evidence – it cannot be said that the event in the morning is part of the connected set of circumstances. As I have already observed, although there is no timeline, a number of hours had passed, and the parties separated physically from each other before the events of the morning.
However, her evidence is that she declined sexual activity, because she knew he was about to be married. If the Crown wish to rely on this reasoning, as I perceive they do, defence are entitled to explore when and in what circumstances she discovered this fact.
There is, to some extent, contradictory evidence on this issue. It seems that RS became aware of this fact sometime at the buck’s party. It is unclear, at least to me, at exactly what point she became aware of it. It may be that if she became aware of this intention to marry later in the evening, her stated reasoning reinforcing her lack of consent would be supported.
If, however, she found out much earlier in the evening, then support for reasoning – therefore, her evidence – would lessen. The issue is consent. The complainant’s version of events is that she strenuously opposed sexual activity occurring, and one of the reasons she opposed sexual activity occurring was because she knew he was about to get married.
If the jury accept this is the case, then the evidence of this prior relationship or context evidence is of some importance, to give the jury a proper understanding of the true relationship that existed between the [applicant] and the complainant.
I would, of course, if this line of reasoning is cross-examined on, direct he jury, if sought, that just because a person might consent to sexual activity on one occasion, that does not mean that she is taken to consent on another occasion.
It is my view that if the [applicant] wishes to cross-examine on this point, it is a matter of having some substantial relevance to the facts in issue, that is, of consent. To make it abundantly clear, it is the only event of prior sexual activity between the parties that leave is granted. I do not see the relevance of any previous such activity.

Discussion

By virtue of s 342 of the CPA, the trial judge’s leave was required before RS could be cross-examined on her ‘sexual activities’ with the applicant (or evidence could be admitted of those sexual activities). As we have said, the judge granted leave to cross-examine on the third occasion of consensual sex, but refused leave with respect to the first and second.
In order for the trial judge to grant leave, she had to be satisfied that evidence of RS’s sexual activities had substantial relevance to a fact in issue – that is, whether she consented to the sexual penetration on the charged occasion; and, if not, whether the applicant was aware that she was not consenting or might not be consenting – and that it was in the interests of justice to allow cross-examination (or to admit evidence) with respect to them.
An evaluation of whether the evidence of RS’s sexual activities had substantial relevance to the issues of consent, and the applicant’s awareness concerning consent, and whether it was in the interests of justice to allow cross-examination (or the admission of evidence) concerning her sexual activities, required the judge to have regard to:
·first – having regard to RS’s age and the nature of the questions she will likely be asked – whether the probative value of the evidence outweighs the distress, humiliation and embarrassment she may experience;
·secondly, the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility;
·thirdly, the need to respect RS’s personal dignity and privacy; and
·fourthly, the right of the applicant to fully answer and defend the charge.

An examination of the judge’s ruling demonstrates that, although she summarised the key provisions governing the issue of leave, and although she made passing reference to the need for the cross-examination or evidence to have substantial relevance to the facts in issue, she did not evaluate whether cross-examination on (or evidence of) RS’s sexual activities had substantial relevance to the two principal facts in issue, nor distinctly engage with the ‘interests of justice’ criterion, still less the four considerations that informed an evaluation of that criterion. In particular, it does not appear that the judge distinctly considered the applicant’s right to fully answer and defend the charge.
The focus of the present application, however, is not on the reasons that underpin the judge’s decision, but on whether the decision was reasonably open. We consider that, when all relevant considerations are taken into account, the only decision reasonably open in the circumstances was to allow cross-examination of RS on the two other occasions of consensual sexual activity upon which the judge refused leave.
In the course of oral argument, senior counsel for the respondent repeatedly submitted that, if the jury accepts RS’s evidence as to the events the morning after the buck’s party – including that the applicant broke into the house by removing roof tiles – then the jury will accept that she did not consent to sexual penetration. That being the case, so the submission went, the incidents of other consensual sexual activities could not have substantial relevance to that fact in issue.
As emerged in the course of discussion, however, the issue of RS’s consent (or lack of consent), although important, is not the only fact in issue in the trial. Another critical fact in issue is whether the applicant knew that RS was not consenting, or was aware that she might not be consenting, and determined to sexually penetrate her while being aware that she was not consenting or might not be consenting. In our view, evidence of the first and second occasions of consensual sexual activity between RS and the applicant potentially has substantial relevance to the issue of that knowledge or awareness.
The evidence suggests that the applicant and RS had a sexual relationship. Prior to the alleged rape, they had twice engaged in sexual activities in his car, and once had sexual intercourse in RS’s bed in her bedroom (where the alleged rape is claimed to have taken place). If one puts to one side that, on the morning of the alleged rape, the applicant broke into the house – given that there is other evidence to suggest that he did not do so the jury will not be bound to accept that he did – we consider that the jury’s consideration of the applicant’s belief and awareness of consent may well be informed by the nature and extent of the previous sexual relationship that existed between himself and RS.
To so reason is not, as the respondent’s counsel orally appeared to submit, proscribed. It does not suggest that the complainant ‘is the type of person who is more likely to have consented to the sexual activity to which the charge relates’. Rather, the fact that the applicant had previously taken part in sexual activity with RS might support an inference that he reasonably believed that she was consenting to sexual activity the morning after the buck’s party.
Further, the nature and extent of the previous sexual relationship between RS and the applicant might also bear on the credibility RS’s purported reason for not consenting to sexual penetration the morning after the buck’s party despite having consented to sexual activity the previous evening. Her claim that she did not consent because she had become aware that the applicant was engaged may appear somewhat thin when judged against the fact that she engaged in sexual activity with him despite knowing that he was in a relationship. We consider that so much might constitute a special circumstance which would be likely materially to impair the jury’s confidence in the reliability of RS’s evidence.

In our view, the proposed cross-examination will be unlikely to arouse any discriminatory belief (or similar) in a contemporary jury. Furthermore, given RS’s age and the questions she will likely be asked – she has already been asked similar questions pre-trial – we do not consider the probative value of the anticipated evidence will be outweighed by any distress, humiliation or embarrassment she may experience, paying due regard to the need to respect her personal dignity and privacy. We consider that the interests of justice, and the applicant’s right to fully answer and defend the rape charge, dictate that the applicant be permitted to cross-examine on previous sexual activities with RS. The judge was in error not to so hold.
Finally, we note that the prosecution presented the judge with an unpalatable compromise position. Hence, the prosecution proposed that an agreed statement of facts be placed before the jury describing RS and the applicant as ‘friends’, but excluding their sexual history (other than on the night of the bachelor party).[11] We consider, however, that to adopt the respondent’s compromise proposal would be to present the jury with a skewed and wholly unrealistic tableau of the relationship that subsisted between RS and the applicant. Clearly, in our view, it is not in the interests of justice to present the jury with such a distorted picture.
[11]See [30] above.

Conclusion

For these reasons, the application to review the judge’s refusal of certification must succeed. We will make orders granting the applicant leave to appeal against the interlocutory decision; allowing the appeal; and setting the interlocutory decision aside.
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[2022] VSCA 169

22 August 2022