GEH v R

[2012] NSWCCA 150

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	GEH v R [2012] NSWCCA 150
Hearing dates:	2 July 2012
Decision date:	18 July 2012
Before:	Basten JA at [1] Harrison J at [21] Beech-Jones J at [77]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW - conviction appeal - whether trial judge wrongly excluded evidence pursuant to s 293 of the Criminal Procedure Act 1986 - evidence properly excluded - appeal dismissed
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	BG v R [2010] NSWCCA 301; (2010) 208 A Crim R 34 Clark v The Queen [2008] NSWCCA 122; (2008) A Crim R 1 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Rolfe v R [2007] NSWCCA 155; (2007) 173 A Crim R 168 R v Bernthaler (Unreported, NSWCCA, 17 December 1993) R v Henning (Unreported, NSWCCA, 11 May 1990) R v M (1993) 67 A Crim R 549 R v Morgan (1993) 30 NSWLR 543 R v Rahme [2004] NSWCCA 233 R v Tubou [2001] NSWCCA 243 R v Villar; R v Zugecic [2004] NSWCCA 302 R v Warner (Unreported, NSWCCA, 7 May 1997) R v White (1989) 46 A Crim R 251; (1989) 18 NSWLR 332 Taylor v The Queen [2009] NSWCCA 180
Category:	Principal judgment
Parties:	GEH (Applicant) Crown (Respondent)
Representation:	Counsel: C Smith (Applicant) M M Cinque (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2010/63911
Publication restriction:	The complainant and the appellant to be identified by pseudonym only
Decision under appeal	Date of Decision: 2011-03-25 00:00:00 Before: Neilson DCJ File Number(s): 2010/63911

JUDGMENT

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

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

1. It is not necessary in these reasons to repeat the circumstances of the trial which are set out by Harrison J. The relevant parts of s 293 may be found at [33] below.

The impugned evidence

1. The complainant gave evidence as to her relationship with her stepfather, who was living in the complainant's home by April 1992. Her evidence included the nature of the relationship in the period between the two offences and, relevantly for present purposes, following the second offence. Within approximately two weeks of the second offence, on 10 November 1992, the complainant had made a complaint of abuse to a teacher at her school. She was questioned by officers from the Department of Community Services and steps were taken to arrange for her to stay with a friend for a short period. She later returned to her home but left on 24 March 1993, after an argument with the appellant. She arranged to stay at the home of another friend, Amy Hastings, and Amy's father, Mr John Hastings. Ms Hastings was aware of the reason for the complainant not wishing to stay at her own home. The complainant said she left the Hastings household in October 1993 and returned to her home: Tcpt, 22/03/11, pp 31(30) and 47 (29).

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

1. Ms Hastings was also called on the voir dire and, consistently with her written account, gave evidence that the complainant had admitted to her that she was having an affair with Ms Hastings' father and that she was pregnant. Ms Hastings gave evidence that she moved out of home on 20 July 1993, following (she said "days later") her confrontation with the complainant over her claimed relationship with Ms Hastings' father: Tcpt, pp 63(45) and 64(30). (Aspects of the timing and consequence of this exchange departed from her written account.)

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

1. The purpose for which the evidence is proffered is not critical to the test of admissibility in s 293. However, the somewhat muted forensic purpose identified might have raised a question as to whether the accused would be entitled to call evidence from Ms Hastings to contradict the anticipated denial by the complainant of the conversation about her supposed relationship with Ms Hastings' father. As noted by Gleeson CJ in R v Morgan (1993) 30 NSWLR 543 at 544F, in considering the approach to be taken to the statutory provision, "the evidence in question is, by hypothesis, relevant and of probative value (otherwise it would be inadmissible without the need for any statutory exclusion)". See also HG v The Queen [1999] HCA 2; 197 CLR 414 at [24] (Gleeson CJ). It may be accepted for present purposes that the evidence was both the suggestion to the complainant that she had told Ms Hastings that she (the complainant) had had sex with Mr Hastings, a statement which the complainant would deny making, and Ms Hastings' evidence affirming that it had occurred.

The exclusion - s 293(3)

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

An exception to the exclusion - s 293(4)

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

1. The second and cumulative requirement of s 293(4) is that the relevant "event", which must be taken to include a non-event, must form part of "a connected set of circumstances in which the alleged prescribed sexual offence was committed" (emphasis added). The focus of the requirement is the circumstances in which the alleged offence was committed. However broadly one identifies that concept, it defies the ordinary meaning of the words to suggest that an assertion to a school friend about another matter months later constituted part of the circumstances of either assault alleged against the accused. In this regard, the difference between eight months and 15 months is of little significance.

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

1. Although the two limbs of the exception in paragraph (a) are differently worded and are cumulative, it may in some circumstances be helpful to read the temporal element ("at or about the time of") and the relationship element ("form part of a connected set of circumstances") together. Each phrase reflects elements of the other, particularly if the broader temporal element "about the time of" is the critical element. So much was implicit in the submissions for the appellant, which sought to identify certain characteristics (claim to be involved in a sexual relationship with a mature man in loco parentis in her home environment) said to be common to the elements of the alleged offence against the appellant and the inference to be drawn from the disputed assertion with respect to Mr Hastings. Although counsel for the accused was ambivalent as to whether the proffered evidence indicated a tendency to lie about such matters, the evidence could hardly have assisted the accused if that were not the forensic purpose.

1. It is not necessary for present purposes to consider what is encompassed by the phrases "sexual experience" and "lack of sexual experience", as compared to sexual activities or lack thereof. An event which occurred (or did not occur) several months after the alleged offences could not properly be understood as within the sexual experience of the complainant at the time of either offence. However, it may be doubted that the reference to "experience" was intended to encompass a state of understanding, rather than a form of activity, possibly seeking to distinguish the passive from the active role. That is because in the prohibition in sub-s (3)(a), the sexual experience is something that the complainant had or may have had, and in the second limb of the exception in sub-s (4)(a)(ii), it is necessary that the evidence be "of events", suggesting specific events or specific experiences.

1. The trial judge was required to make an evaluative finding as to whether the temporal and relationship elements were satisfied. The decision to exclude the evidence was correct.

Further matters

1. Two further things should be noted. First, contrary to the assertion of the appellant, the ground of the appeal, being a challenge to an evaluative judgment, was not a ground involving "a question of law alone" for the purposes of s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). Leave was therefore required but was not sought. Nevertheless, if leave had been sought, it would properly have been granted. Accordingly, no objection having been taken, it is sufficient to dismiss the appeal.

1. Secondly, had there been an error in the approach adopted by the trial judge in rejecting the evidence as not falling within the exclusion in paragraph (a) in s 293(4), I would nevertheless have been inclined to dismiss the appeal on the ground that no substantial miscarriage of justice had actually occurred: Criminal Appeal Act, s 6(1), proviso. If the trial judge had formed a different view in respect of paragraph (a), it would then have been necessary to consider the overriding condition, applicable to all the exceptions in sub-s (4), namely that "the probative value of the evidence" must outweigh "any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission".

1. Although a question about the making of a statement possibly implying sexual activity may not in itself be a factor likely to cause significant distress, humiliation or embarrassment, the intention was to put the statement before the jury in circumstances where the complainant would have no opportunity to deny the underlying imputation, nor to explain the nature of her relationship with Ms Hastings, which might have given rise to a false allegation. Its capacity to cause distress could not have been ignored. On the other side of the balance, the alleged statement in respect of Mr Hastings could have had virtually no probative value. Apart from a handful of superficial similarities, the disparate circumstances in which the statements were made, one being to a school friend, the other to persons in authority, the extensive evidential detail relating to the claims against the appellant, as compared with the total absence of any investigation of the alleged statement about Mr Hastings, would have rendered the latter largely insignificant, assuming that the jury accepted that some such statement had been made and her denial disbelieved.

1. However, to make good the proposition that the proviso is satisfied would require consideration of the whole of the evidence at the trial, which extended over three days. Because the question is hypothetical, it is neither necessary nor appropriate to carry out that exercise in these reasons.

1. As indicated above, the appeal should be dismissed.

1. HARRISON J: The appellant was found guilty on 24 March 2011 of two counts of having sexual intercourse with a person between the ages of 10 and 16 years whilst that person was under his authority. The offences were alleged to have occurred in 1992. The victim of the offences was the appellant's stepdaughter KN. The appellant was subsequently convicted and sentenced to imprisonment.

1. The appellant appeals against his conviction on the single ground that the trial judge wrongly excluded certain evidence pursuant to s 293 of the Criminal Procedure Act. For the reasons that follow, I consider that the evidence was properly excluded and that the appeal should be dismissed.

Background facts

1. The Crown case had two main strands. The first strand was based upon the evidence of the complainant KN. She was aged 15 years at the time of the offences. She was in her early-thirties by the time of the trial. However, KN had complained about the offences many years before, on 10 November 1992, to one of her teachers at school. The Crown led evidence of other acts not in the indictment said to have been committed by the appellant against KN as well as evidence of various complaints made by her both in 1992 and in the years that followed. There was no objection taken by the appellant to this evidence.

1. The second main strand was based upon the contents of intercepted telephone conversations between KN and the appellant. The appellant objected to the reception of that evidence but it was admitted. The appellant does not complain in this appeal about the reception of that evidence at the trial. The Crown contended that the appellant made admissions of sexual contact with KN in those conversations. This was disputed by the appellant.

1. In his case the appellant called two witnesses to dispute certain aspects of the circumstances surrounding those upon which the complainant had been cross-examined. The appellant raised good character in his defence upon the basis that he had no criminal record. He did not give evidence. He did not take part in a police interview.

1. As part of the Crown case KN gave evidence that on the first occasion upon which the appellant sexually assaulted her she referred to other sexual activity on her part. That evidence was as follows:

"Q You walk into the annexe, you've seen your stepfather naked with the erection, he's looking at you, what's the next thing you recall?

A. The next thing I recall is my stepfather saying to me, 'I have read your diary'. He then said to me, 'I know you had sex with the boy you met at the beach last summer and now that you've had it once you will need it again and more often'.

Q. Did he say anything else?

A. He also said that I could get it from him. My reply to him was, 'No, I'll be right'. I was scared, I didn't know what to do.

...

Q. What's the next thing that [the appellant] said?

A. The next thing that my stepfather [the appellant] said to me was that he had read my diary and he understood that I had sex with a boy I had met at the beach last summer and that if I did not have sex with him or did what he wanted me to do, he would tell the police about me and this other boy and that he would go to gaol and I would get into trouble as well because he had sex with somebody under the age of 16.

...

Q. Did you have a diary in April of 1992?

A. Yes I did.

Q. Did your diary contain an entry in relation to having had sex with a boy?

A. Yes it did.

Q. And did that entry relate to having had sex with a boy the previous summer?

A. Yes it did."

1. That evidence was led without objection. No complaint is made about the reception of that evidence at the trial.

The voir dire

1. KN later gave evidence that after she had complained about the ongoing sexual assaults by the appellant, she moved in with her school friend Amy Hastings and her father John Hastings. Before commencing cross-examination of KN, the appellant's solicitor raised "a potential 293 issue": see s 293(5). In short, the appellant wanted to lead evidence that KN had said to Amy Hastings that KN was in a relationship with John Hastings. The evidence of those claims having been made by KN would come from Amy Hastings.

1. KN was then asked questions on a voir dire. That evidence was as follows:

"Q. I will read from the statement. 'She', that's you, 'was coming to school and saying that she was in a relationship with my dad'. At any stage, did you - at this time - did you go to school and say to anyone that you were in a relationship - that is the word I use, 'relationship' - with John Hastings?

A. Absolutely not.

Q. I'll continue to read on. 'I knew this wasn't true' - this is her speaking. 'I told my brother or my nan, knowing this would get back to my dad' - I am not asking you to comment on that but I want you to comment on this, 'Not long after I told them [KN] was kicked out of my dad's house'. Were you asked to leave the premises by John Hastings?

A. Not to my knowledge. Not that I can recall, no.

...

Q Do you recall why it was that you left John Hastings' house?

A. I was having difficulty at school. I was no longer friends with Amy and I wanted to move back home. It wasn't ideal but I had nowhere else to go."

1. Amy Hastings was called to give evidence on the voir dire. Her evidence in answer to his Honour's questions was as follows:

"Q. Now you've told me that [KN] started to tell people that she was having a relationship with your father?

A. Yes.

Q. Now firstly did she ever say that to you?

A. Yes.

Q. When?

A. It started at school and when I came back ...

Q. No, look, look, don't...

Q. The question was when and you know you have to distinguish between what she told you and what you heard on the grapevine at school?

A. What I heard, I went back to her and asked her specifically about those things.

Q. All right so you heard some rumours at school and you confronted [KN]?

A. Yes.

Q. And what did you say to her?

A. Apparently you've been sleeping with my dad and you're pregnant with...actually I didn't know she was pregnant. She said, 'Yes I am and I'm pregnant'. So that's how I found out and it was days later that I moved out."

1. Amy Hastings was also asked questions on the voir dire by the Crown as follows:

"Q When you had that conversation shortly before you moved out and she told you she was in a relationship with your father and pregnant, were you still friends?

A. No.

Q. Why not?

A. I think that was enough.

Q. But prior to her saying that to you?

A. Prior to it, yes we were. We were friends.

Q. Prior to that moment when she said that, you were friends, is that right?

A. Until I heard that at school, I went directly to her and asked her about it and that's pretty much what I got. I went home that day and asked my father to ask her to leave."

1. Argument on the admissibility of the evidence then followed.

Section 293

1. The appellant's notice of the application to cross-examine KN was necessitated by the terms of s 293 of the Criminal Procedure Act. The terms of that section are relevantly 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)...

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) ..."

The decision

1. His Honour's reasons for rejecting the appellant's application to cross-examine KN on this material included the following:

"In evidence given on the voir dire by the complainant, the complainant denies making any allegation of having a relationship with Amy Hastings' father. The accused submits that the accused is not seeking to adduce this evidence as evidence of sexual experience, or sexual reputation, but merely seeking to adduce evidence that the complainant may have lied about having a relationship with an older man, a person who may have been in authority over her.

...

In my view, the proposed cross-examination does infringe the prohibition contained in s 293 of the Criminal Procedure Act 1986. The same issue arose in White (1989) 18 NSWLR 332, and also in M v R (1993) 67 A Crim R 549, the latter being a decision of Allen J, with whom Gleeson CJ and Meagher JA concurred. In that case the appellant had been convicted of a number of sexual offences against three young girls, including a girl identified as T. At the trial the appellant's counsel sought to elicit by cross-examination and by evidence-in-chief from other witnesses that during, or shortly after, the period during which the offences charged were alleged to have occurred, T claimed that male members of her own family, including her father, were having sexual intercourse [with her] and that these claims were untrue.

In that case it was contended that such evidence did not invoke the prohibition...because the questions were not directed to her sexual experience but to establishing that in respect of sexual matters she was, at the relevant time, a fantasiser.

The Court held that the proscription in [s 293(3)] was directed not only to sexual experience but to lack of sexual experience. It was directed not only to having taken part in sexual activity, but also to not having taken part in such activity. The Court held that it was immaterial that the forensic purpose of the proposed evidence was that T had lied about sexual experience with members of her own family. The evidence, if elicited, would have disclosed or implied that she had not participated in sexual activity, the subject of the lies. Accordingly, it fell within the proscription.

The Court also pointed out that [s 293] enacts a blanket prohibition and to that prohibition there are only the exceptions specified in subsection [(4)]...There is no judicial discretion arising from considerations of justice as perceived by the Court in any individual case to proceed on the basis that some further exception can be read into the section by implication.

As was pointed out in M, a similar question arose in White where the trial judge refused to permit a question to be put in cross-examination suggesting that prior to the incident of sexual intercourse with the accused, the complainant had said to the accused that her former boyfriend had broken off their relationship as a result of finding her in bed with another man. The Court in White went on to discuss what is meant by the words, 'discloses or implies', and it was pointed out that it does not mean 'proves' but merely raises a suggestion that the tribunal of fact could consider. In my view, this proposed cross-examination is caught by the provisions of s 293.

...

As to subsection 4(a), under subparagraph (i), the sexual experience or lack of it has to be 'at or about the time' of the commission of the alleged prescribed sexual offence and under subparagraph (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. In my view neither of those things is made out.

The last count in the indictment is alleged to have occurred between 19 October 1992, and 10 November 1992, and the question of a relationship arising between the complainant and John Hastings could only arise on or after 24 March 1993, so there is no relevant temporal nexus, in my view, nor is it part of a connected set of circumstances which, for example, could refer to sexual intercourse with other people at or around the same time, in the same place, for example, what is often referred to as a 'gang bang'. For those reasons I refuse leave to the defence to cross-examine the complainant about the existence or lack of existence of any relationship between her and John Hastings."

The authorities

1. A review of the cases dealing with s 293 or one of its predecessors does not reveal any particularly instructive method for determining the questions thrown up by subparagraphs (4)(a)(i) and (4)(a)(ii). This is not because there are any fundamental disagreements about what the provisions mean, or any inconsistencies in the way they should be applied, but because the disparate facts in every case require novel assessments of what is meant by "at or about the time" in (4)(a)(i) and "alleged to form part of a connected set of circumstances" in (4)(a)(ii). In this way, otherwise clear statements of principle need to be understood and constantly reassessed having regard to the factual matrix in the context of which they have been expressed.

1. In R v Morgan, it was held that the complainant having consensual intercourse with her boyfriend an hour or two after allegedly being sexually assaulted by the appellant fell within the terms of the predecessor to s 293. Gleeson CJ said this at 544:

"The nature of the connection that will suffice is left at large by the statute, and the facts and circumstances of each individual case need to be considered. However, it is the subject matter of the legislation that will ordinarily provide the best guide to whether circumstances are relevantly connected. There will necessarily be a temporal relationship between the events in question and the alleged sexual offence; otherwise one would not get past s 409B(3)(a)(i). The relationship to which s 409B(3)(a)(ii) directs attention is circumstantial. The facts that could give rise to such a relationship are widely variable.

Since the evidence in question is, by hypothesis, relevant and of probative value (otherwise it would be inadmissible without the need for any statutory exclusion), no narrow approach should be taken to that part of the statutory provision which permits its reception. Here the activities mentioned above all formed aspects of a social occasion in which the appellant, the complainant, her boyfriend, and some others were involved, and the events of that occasion constituted the context in which the alleged offence was committed and against which the complainant's evidence might reasonably be evaluated."

1. At 551, Mahoney JA said this:

"What precisely subpar (ii) requires is by no means clear. The

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

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

1. In R v M, the appellant sought to establish that the complainant was a "sexual fantasist". By way of contrast to the present case, counsel for the appellant in R v M conceded that the evidence did not fall within one of the exceptions contained in the equivalent of s 293(4). That concession was referred to by Allen J at 555 of the report as follows:

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

1. In R v Bernthaler (Unreported, NSWCCA, 17 December 1993), the appellant was alleged to have sexually assaulted his wife. She was cross-examined at trial to suggest that she had lied about being sexually assaulted as a child. Evidence to contradict her was not admitted by the trial judge. However, on appeal to this Court, the whole of the evidence was held to be inadmissible in accordance with the terms of the earlier section.

1. In R v Warner (Unreported, NSWCCA, 7 May 1997), the trial judge rejected evidence that, a few weeks after being allegedly sexually assaulted by the appellant, the complainant went to live with him and resumed her sexual relationship with him. Gleeson CJ held that the evidence should have been admitted pursuant to the equivalent of s 293(4)(b).

1. In HG v The Queen, the appellant sought to lead expert evidence that the complainant had not been sexually assaulted by the appellant but had been sexually assaulted by her deceased father. The High Court held that the evidence as to that issue did not fall within the equivalent exceptions to s 293(4)(b) and (4)(c).

1. In R v Tubou [2001] NSWCCA 243, this Court held that evidence that the complainant had had consensual sexual intercourse with a person other than the accused 34 hours before the offence occurred was not an event which formed part of a connected set of circumstances in which the offence was committed. Heydon JA found the events to be "entirely unconnected" and related to "entirely separate sets of circumstances": at [72].

1. In R v Villar; R v Zugecic [2004] NSWCCA 302, this Court held that evidence of the complainant allegedly having worked in a brothel and having asked, after the alleged offence, "Am I going to be paid for this?" was correctly excluded by the trial judge. An argument based on s 293(4)(a) was rejected. At [135] Grove J said this:

"[135] To whom it was alleged to have been said and in what circumstances was not detailed. It would appear that the matter was argued at trial "on principle". It was not suggested that Zugecic wished to advance a case that he believed that RB came to Mitrov's unit for prostitution. The scant information available fails to demonstrate tangible probative value in support of contention that RB consented to what was happening and the ground should be rejected."

1. In R v Rahme [2004] NSWCCA 233, the appellant was alleged to have forced the complainant to work in a brothel and detained her there. The appellant sought to lead evidence at the trial that the complainant had previously freely worked as a prostitute and in a brothel. The appellant contended that the equivalent of the s 293(4)(a) applied. Sully J would have admitted the evidence. He said this at [57] - [59]:

"[57] It is true that the rejected evidence does not stipulate in terms of months and years quite when it was that the supposed prior experience is supposed to have occurred. Nonetheless, bearing in mind that the complainant was aged 15 years in January 2001, it is unlikely to have been, in the nature of things, any great time before January 2001 that she had whatever prior experience was to be suggested to her in cross-examination, or proved against her by the affirmative evidence of the particular witnesses upon whom the defence relied in that connection.

[58] As to the necessary connection required in terms of section 105(4)(a)(ii), it seems to me that there was a clearly discernible connected set of circumstances of the kind contemplated by the statute. It can be expressed as follows:

(1) The complainant was besotted by a young American who was then located in the United States.

(2) She was determined to get to him in the United States.

(3) For that purpose she needed to earn quickly a lot of money.

(4) She was alive to the potential of earning a lot of money by prostituting herself.

(5) She was alive to the fact that her prospects of prostituting herself for quick financial reward were better in Sydney than in, for example, Newcastle.

(6) That she conceives, thereupon, the idea of actively pursuing such an opportunity in Sydney.

(7) That she did not do so as, so to speak, an innocent abroad; but she did so, rather, as somebody who knew very well who was who and what was what in the dark world of prostitution; and that she had that knowledge by reason of her own personal antecedent experience.

[59] That connected set of circumstances, if accepted by the jury, did not go only to the credit in a narrow and pedantic sense of the complainant herself. It went to the very heart of the facts in issue at the trial."

1. James J made observations in that case that included the following:

"[162] As regards the Newcastle evidence, the trial judge held that s 105(4)(a) did not apply, because the evidence of the complainant's sexual experience or sexual activity as a prostitute in the Newcastle area was not evidence of sexual experience or sexual activity taken part in by the complainant "at or about the time" of the commission of the alleged prescribed sexual offences.

...

[176] On the authority of R v Morgan counsel for the appellant submitted that this Court should adopt a liberal approach in interpreting and applying subpara (ii) of s 105(4)(a). It was further submitted that "a connected set of circumstances" can include, not only what the Crown alleges, but what the defence alleges to have been "a connected set of circumstances".

...

[186] With respect to the Newcastle evidence and s 105(4)(a), I have concluded that the trial judge's finding, that the evidence was not evidence of sexual experience or sexual activity by the complainant "at or about" the time of the commission of the alleged offences is not a finding in relation to which this Court, consistently with the principles stated in O'Donoghue, can properly intervene. The times at which the complainant, according to the evidence of Mark Boumansour and Sonia Rahme, took part in acts of prostitution while she was living in the Newcastle area were not fixed by the evidence and were, of course, prior to the complainant travelling to Sydney and prior to the commencement of the period within which the Crown alleged that the offences had been committed. In my opinion, it was open to the trial judge to find that the Newcastle evidence was not evidence of sexual activity or sexual experience either at or about the time of the commission of the alleged offences...

...

[208] In my opinion, the Black Garter evidence satisfied the condition in subpara (i) of s 105(4)(a), as the trial judge in fact held; the evidence satisfied the condition in subpara (ii) as forming part of a connected set of circumstances in which the alleged offences were committed, adopting the liberal interpretation of this condition stated in R v Morgan; and the probative value of the evidence outweighed any additional distress, humiliation or embarrassment that the complainant might have suffered as a result of its admission."

1. In Clark v The Queen [2008] NSWCCA 122; (2008) A Crim R 1, an unrepresented appellant at trial sought to question a young complainant to the effect that he had made up the allegations against him in order to hide his own sexual conduct with a friend. On appeal, reliance was placed on s 293(4)(a). Barr J said this at [94]:

"[94] In my opinion his Honour correctly held that the questions framed by the appellant were inadmissible. They were directed to sexual activity said to have been engaged in by the complainant at the appellant's house with SB. Although his Honour did not give detailed formal reasons, he sufficiently informed the parties during the long debate that he was rejecting the questions and why. There was in my opinion no failure to make sufficient record: see R v Dimian at 364. It sufficiently appears that his Honour was of the view that nothing in subs (4) excepted the proposed questions from the prohibition of subs (5). The only provision put forward as having such an effect was subs (4)(a). In my opinion the evidence failed the test of subs (4)(a) because it was not, using the words of (4)(a)(ii), evidence of events alleged to form part of a connected set of circumstances in which the alleged proscribed sexual offence was committed. In my view the temporal connection between the two events was not enough. The event contended for by the Crown, namely the attempt by the appellant to recruit the complainant, had no connection with the event contended for by the appellant, in which the complainant committed sexual activity with SB. The appellant was involved in the former but not the latter. The sexual activity was different. The two sets of alleged events were unrelated."

1. In Rolfe v R [2007] NSWCCA 155; (2007) 173 A Crim R 168, the appellant was convicted of sexually assaulting his stepdaughter. Evidence that the complainant had said to her brother, "Daddy will rape you", was not pressed at the trial by defence counsel, who conceded that such evidence was caught by s 293. On appeal Giles JA questioned whether such evidence was indeed excluded because the statement did not necessarily suggest sexual experience on the part of the complainant. The question was whether the decision by the appellant's counsel at trial could amount to a miscarriage of justice. His Honour, with whom the other members of the Court agreed, decided that it could not.

1. Finally, in BG v R [2010] NSWCCA 301; (2010) 208 A Crim R 34, the complainant gave evidence of offences alleged to have been committed by the appellant in 1970 and 1971. She had complained in 1997 about sexual offences said to have been committed by others against her many years before, but said nothing about the offences alleged against the appellant until 2005. Counsel for the appellant at trial had led evidence of the 1997 complaints generally, but not of their sexual nature, presumably upon the basis that they would offend s 293 and that he would therby be precluded from doing so. James J referred to this at [75] in these terms:

"[75] As to evidence of the matters in Annex B and evidence of the matters in Annex A if counsel's first submission about Annex A was rejected, it was submitted that both sets of evidence would have fallen within para (a) of subs (4) of section 293 and hence would have been excluded from the prima facie prohibition in subs (3). It was submitted that these matters had occurred "just before" or "just after" the alleged offences by the appellant were committed and as part of "the same continuum" as the alleged offences of the appellant and therefore evidence of these matters was evidence of the complainant's sexual experience or sexual activity "at or about the time" of the appellant's alleged offences (subpara (i) of para (a) of subs (4)) and evidence of events that formed part of a connected set of circumstances in which the appellant's offences were committed (subpara (ii) of para (a) of subs (4))."

1. His Honour rejected the submission and said this at [82] - [83]:

"[82] None of the matters described in Annexs A or B could be said to be "at or about the time" of the offences allegedly committed by the appellant. The matters described in annexure A occurred between 1962 and 1966 or between 1966 and 1969 (after which the complainant spent some time in a children's home, before going to the appellant's home) or after mid 1971. The matters described in Annex B occurred between 1962 and 1966. It is not possible, in my opinion, to regard matters occurring at any time within a period of a number of years as having occurred "at or about the time" of the alleged offences.

[83] Nor could the matters be said to have formed part of a connected set of circumstances in which the alleged offences by the appellant were committed. The only real connection was the involvement of the complainant in all of the matters and in the appellant's alleged offences."

The appellant's submissions

1. The appellant submitted that the evidence went to a fact in issue, namely, whether the appellant and KN had sexual contact, and whether KN had a tendency to lie about such things. Alternatively, the appellant contended that it went to the credit of KN and passed the test in s 103 of the Evidence Act 1995. The appellant expressly conceded that the evidence sought to be led disclosed an absence of sexual experience or sexual activity on KN's part and therefore would have been caught by s 293(3), unless it fell within one of the s 293(4) exceptions. The appellant submitted that it fell within s 293(4)(a).

1. The appellant argued that the terms of s 293(4)(a)(i) were satisfied. The last alleged sexual assault upon KN by the appellant occurred between 18 October 1992 and 10 November 1992. KN complained on 10 November 1992. She lived with the Hastings family between 24 March 1993 and October 1993. It was while KN was living with John Hastings, and when Amy Hastings had moved out that, according to Amy Hastings, KN was saying to her and others that KN had been in a sexual relationship with Amy's father.

1. The relevant provision uses the expression "at or about the time of". The allegation about John Hastings was made some months after the allegation about the appellant. The appellant contends that the expression "must be accorded some elasticity depending upon the evidence and the issues in the trial as a whole". In this trial, KN was giving evidence in 2011 about sexual acts said to have been committed in 1992. The evidence that the appellant sought to lead related to events in early 1993. The appellant contended in these circumstances that the required temporal element had been satisfied.

1. The appellant also argued that the terms of s 293(4)(a)(ii) were satisfied. He submitted that the allegations about John Hastings "form[ed] part of a connected set of circumstances in which the alleged prescribed sexual offence was committed". He contended that the two allegations were "connected by their numerous similarities". In this respect the appellant emphasised that complete sexual intercourse had occurred, as demonstrated by the pregnancy allegation, that it was with an older male, with whom she was then living, who was in loco parentis but was not her father and where the sexual intercourse alleged did not involve violence or overt force. The appellant submitted that "the powerful similarity of the allegations made about the appellant [and] John Hastings fulfils the requirements of subsection (4)(a)(ii)".

1. The appellant contended that the evidence should have been admitted and that its exclusion amounted to an error of law. He made the following written submissions:

"The authorities...demonstrate that there is room for flexibility with regard to the temporal requirement in subsection (4)(a)(i), and also with regard to subsection (4)(a)(ii).

More generally, I accept that accused persons and this Court must take the legislation...as it is, and not shy away from an unjust or arbitrary result if that is what Parliament clearly intended. And of course, it is well known that, for many years, s 293 and its predecessors have been the subject of trenchant calls for reform by senior judges and lawyers.

Nevertheless, even accepting those propositions, if the evidence sought to be led by the defence solicitor is not admissible, it leads to very peculiar results in the particular circumstances of this case. On the one hand, the evidence of the diary is admitted in the prosecution case, despite revealing consensual sexual conduct on the part of a fifteen year old girl with a person other than the appellant. On the other hand, evidence sought to be led by the defence that raises the absence of consensual sexual conduct on the part of the complainant, and that is admitted only to demonstrate that her allegations against the appellant are not to be believed, and that says nothing about her promiscuity or lack of sexual morality, is excluded, even despite its remarkable similarity to the allegations against the appellant.

One should not overlook the need for the evidence to comply with the concluding words of s 293(4). Because the first gate of inclusion was not opened, no evidence was presented with regard to the second gate. But this Court would accept that the test in those concluding words is made out. The evidence would have had extremely high probative value. It should be assessed on the basis that it would have been accepted: R v Shamouil (2006) 66 NSWLR 228. For the jury to have heard that, some months after the time of the making of the first complaint against the appellant, the complainant falsely accused another older man of sexual contact with her, would have had a devastating effect on the Crown case."

1. The appellant made further submissions concerning the proviso, to which reference is made later in these reasons.

The Crown's submissions

1. The Crown referred in detail to the authorities. The Crown submitted that the appellant had failed to establish that the trial judge's decision to exclude the evidence was an error of law. In particular, the Crown submitted that neither the temporal requirement contained in s 293(4)(a)(i), nor the existence of a connected set of circumstances mandated by s 293(4)(a)(ii), had been established.

Consideration

1. It is uncontroversial that the original version of s 293 was introduced to limit the circumstances in which complainants in sexual assault cases would have to endure having what might otherwise be personal and sensitive matters examined in public: see R v White at 340.

1. Allen J referred at 556 - 557 in his remarks in R v M to what had been said in Parliament when the original legislation was being debated:

"In his speech the Premier said:

'Finally, the bill will prohibit irrelevant questioning of sexual assault victims about their prior sexual behaviour. This provision is based upon the premise that a person who seeks sexual intercourse with another should not be able to rely on scandal or gossip about the other person or on rumour or knowledge of that other person's sexual behaviour with others, as a basis of assuming consent to intercourse. The law should not - and under this legislation will not - allow the accused to subject the victim of the sexual assault to humiliating and irrelevant questioning about details of previous sexual conduct and attitudes. At the present time many victims believe that the humiliation they would face as a witness in court outweighs all other considerations. I have every confidence that this provision will play a significant part in encouraging victims to report offences, and ensure that such victims will be treated justly and humanely by the judicial system' (Hansard, No 41, p 4761).

I construe the section on the understanding that the principal deficiency in the pre-existing law, as administered by the courts, was understood by Parliament to be as stated by the Premier and that the principal purpose of s 409B was to remedy that deficiency. It does not follow that the Premier was essaying an exhaustive analysis of the pre-existing law. Manifestly he was not. Under the then existing law cross-examination as to prior sexual experience of the complainant was admitted on credit, independently of any relevance to the issue of accused's belief as to consent: Gregory (1983) 151 CLR 566; 10 A Crim R 234; McGarvey (aka Garner) (1987) 10 NSWLR 632; 34 A Crim R 119; White. Nor does it follow from the Premier's brief remarks that the correction of the evil briefly described by the Premier constituted the totality of the reform sought to be effected as distinct from being its main thrust. Indeed, the Premier indicated that he was to be followed in the House by the Attorney-General who would refer "in detail" to the matter which he had just referred to (as well as other aspects of the Bill). In following the Premier the Attorney-General said:

'Given this historical background it is not surprising that authorities agree that rape is one of the most underreported crimes. Humiliation, fear of stigma, judgmental treatment by authorities, fear of family difficulties and disruptions, and drawn out legal proceedings are some of the reasons why women do not report sexual violence ... The deficiency of the present law is that a victim may be cross-examined about sexual behaviour with other persons, possibly years before, in circumstances quite irrelevant to the case in question. For example, if an intruder breaks into a house and sexually assaults a married woman whose husband happens to be away on holidays, it is surely ridiculous to allow the woman giving evidence against the alleged rapist to be questioned about whether, for example, she had intercourse with anybody other than her husband before she got married. The fear of this type of cross-examination has been a potent cause of reluctance on the part of women to report sexual assault. The old law and practice, therefore, has actually been a cause of crime. It has discouraged the reporting of crime, and encouraged criminals in the knowledge that they could escape prosecution.

The old law was thoroughly bad and the Government intends to change it extensively'."

1. The legislative purpose behind the predecessor to s 293 was also reviewed in R v Henning (Unreported, NSWCCA, 11 May 1990) and R v M at 556 - 559.

1. The section creates what amounts to a blanket prohibition on adducing evidence that discloses or implies that the complainant in a prescribed sexual offence case has or may have had sexual experience or lack of sexual experience. Unless one of the exceptions to the prohibition is established, the evidence is inadmissible and there is no residual discretion for the trial judge to admit it: see Taylor v The Queen [2009] NSWCCA 180 at [47].

Conclusions

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

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

1. Was the evidence in question also evidence of KN's sexual experience or lack of it, or sexual activity or lack of it taken part in by the complainant, at or about the time of the commission of the alleged sexual offence by the appellant? Importantly, the words in the subparagraph are "taken part in by the complainant". They serve on one view to distinguish between sexual experience and sexual activity. The former rather encompasses a state acquired over time, whether long or short, but which refers to the condition of having had experience in sexual matters, as opposed to a single or isolated sexual experience, or a number of them, at some particular time. The inquiry brought forward by the words "sexual experience or lack of sexual experience" appears to be related to whether the complainant was or was not "sexually experienced". In contrast, the latter suggests a discrete sexual activity or lack of it that occurred, or in which the complainant took part or did not take part, at or about the time of the commission of the alleged offence by the appellant, but not at some other time.

1. 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.

1. That distinction may be less significant having regard to the words used in s 293(4)(a)(ii). That is because that subparagraph speaks in terms of the evidence being "of events that are alleged to form part of a connected set of circumstances". In that way 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.

1. 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 John Hastings. 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. The issue to which the exception in subparagraph (4)(a)(i) is presently directed is the achievement of a fair balance between the lost forensic advantage to the appellant if it applies, having regard to the probative value of the evidence on the one hand, and the distress, humiliation or embarrassment that KN might suffer if the evidence were admitted on the other hand. Having regard to that equation, it does not seem to me that the subject matter of the alleged conversation between Amy Hastings and KN took place at about the time that the appellant was allegedly sexually abusing her. In the vernacular, it took place some time later.

1. It is even clearer in my view that the evidence is not evidence of events that are alleged to form part of a connected set of circumstances in which the alleged sexual offences committed by the appellant were committed. They are distinctly unconnected. There is no "set of circumstances" at all. It is in my view a mistake to attempt to connect events as part of a set of circumstances by reference only to the fact that the events in each case are arguably similar. The alleged or apparent similarities do not necessarily or reliably inform the question of whether or not the events form part of a connected set of circumstances.

1. In this case the evidence related to the question of whether or not KN had a sexual relationship with John Hastings. There is no connection between that alleged event and either of the alleged sexual offences apart from the identity of KN as a person involved in each case. That does not lead to, or even approach, a conclusion that the two events form part of a connected set of circumstances.

The proviso to s 6(1) Criminal Appeal Act

1. Having regard to the view I have formed about the correctness of the trial judge's decision concerning the admissibility of Amy Hastings' evidence, it is not strictly necessary to consider the proviso. However, as both parties addressed the issue it is proper that I express my view about it.

1. The appellant expressly accepted for the purposes of the hearing in this Court that the content of two intercepted telephone conversations between him and KN enhanced the strength of the Crown case at trial in the sense that it tended to corroborate KN's complaints. The appellant did not accept that these conversations, when examined closely, actually incriminated him. On the contrary, the appellant submitted that a proper consideration of what the appellant is recorded as saying to KN leads to the conclusion that he said what he said in a state of exasperation and in an attempt to cause KN to "get off the phone and stop harassing him".

1. The appellant contended in those circumstances that this Court would not be satisfied beyond reasonable doubt that the offences had been proven, and would not apply the proviso. Alternatively, the appellant submitted that even if this Court were so satisfied, it would regard the erroneous exclusion of the evidence referred to earlier, which the appellant contended has a significant degree of probative value in a child sexual assault trial, as not being an error to which the proviso could be applied.

1. In contrast, the Crown submitted that in the event that an error of law had been established, the appeal should in any case be dismissed upon the basis that no substantial miscarriage of justice had actually occurred. The Crown contended that the case against the appellant was made compelling by the admissions he made during the recorded telephone calls with KN. Any evidence that Amy Hastings might have given about the asserted allegations made by KN would have had little credibility. That was said to be for at least two reasons. First, the version of events in Amy Hastings' statement and the version given by her in evidence on the voir dire concerning why she said to her father "it's her or me" were completely at odds one with the other. Secondly, the Crown submitted that Amy Hastings had an axe to grind with KN as the result of a falling out that they had had over an unrelated matter. It is unnecessary to elaborate upon these matters for present purposes.

1. Part of the intercepted telephone conversation between KN and the appellant that took place on 7 March 2010 was as follows:

"A: Hello [K]. Yeah?

KN: Hello. You raped me and I want to know why you raped me. You had sex with me and my mother at the same time.

A: I'm listenin'.

KN: Why? That's sick.

A: I'm still listenin' to you [K]. Anything else you want to say?

KN: Yes, I, I want to know why?

A: Is that all you've got to say?

KN: Please George, you told me on the last phone call that I needed to get over it. What I need to get over is to know why you had sex with me?

A: Why do you think?

KN: Why do I think you had sex with me?

A: Yeah.

KN: I don't know. I was 15.

A: And why can't you not get over it and get on with your life?

KN: Because you were supposed to be my father figure. You tell me why you had sex with me.

A: I tried to be the best father figure I could be to you and, and make sure that you got the best out of life that you could get. And I did my best to sort of, bring you, bring you to that stage where you are now.

KN: And that included having sex with me?

A: It included me making sure that you, you got to where you are now."

1. The earlier recorded conversation on 15 February 2010 contains a series of denials by the appellant that he did anything wrong. He uses expressions like "there's nothing [for me] to answer for" and "I didn't do nothin' to ya". The first recorded conversation does not contain any arguably unambiguous statements or admissions of any sort.

1. The second conversation arguably does so. The answer, "Why do you think?", seems to me to be quite a significant response in the context of that conversation, with the appellant replying to KN's inquiry of him about why he had sex with her. This was material that was before the jury and which they were entitled to consider having regard to the whole of the evidence in assessing whether or not they were satisfied beyond reasonable doubt of the guilt of the accused. That other evidence necessarily included the evidence of KN. Even if the evidence of Amy Hastings had been wrongly rejected, so that its admission may have cast some doubt upon the reliability of KN's story, it seems to me in the light of the material contained in at least the second intercepted telephone conversation that it is highly unlikely that any substantial miscarriage of justice has actually occurred. However, it is not possible for me to be satisfied of that to the necessary standard and disposition of this appeal does not require that a final conclusion about it should be expressed.

Orders

1. In my opinion the appeal should be dismissed.

1. BEECH-JONES J: I have had the advantage of reading the reasons of Harrison J. Subject to what follows I agree with his Honour's reasons.

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

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

1. As noted by Harrison J, it is then necessary to consider s 293(4). Each component of this evidence is clearly evidence "of" KN's "sexual experience or lack of sexual experience" or "of" her "sexual activity or lack of sexual activity" for the purposes of s 293(4)(a)(i). However for the reasons given by Harrison J, it is doubtful that they can be considered to be evidence of such activity or experience taken part in "at or about the time of the commission of the alleged prescribed sexual offence".

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

1. 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 circumstances" in which the offence was said to have been committed.

1. In those cases reviewed by Harrison J where evidence was found to fall within this exception, the evidence was of some "event" that had relevance beyond what it might reveal about the complainant's credit. They concerned an event that was in each case found to be so connected to the circumstances of the offence that it bore on the objective likelihood of the offence having been committed. In R v Morgan, the conduct of the complainant in having intercourse with her boyfriend within 1 to 2 hours of the sexual assault having occurred "could be seen by the jury as making the occurrence of the offence less likely" (at p. 551E per Mahoney JA) and formed part of "the context in which the alleged offence was committed and against which the complainant's evidence might reasonably be evaluated" (at p. 544F per Gleeson CJ). Similarly in R v Rahme, Sully J at least found that evidence of the complainant's previous (apparently voluntary) occupation as a prostitute had been wrongly rejected as those events had an appreciable connection with the set of circumstance surrounding the alleged offence, bearing in mind that the appellant was charged with having forced her into prostitution. According to his Honour, it went beyond her credit and to "the very heart of the facts in issue at the trial" (at [59]). In contrast in this case, 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.

1. 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.

1. Unlike Harrison J, had I concluded that the evidence was admissible then I would not have been sufficiently satisfied on the material before me of the appellant's guilt to enable the application of the proviso in s 6(1) of the Criminal Appeal Act 1912. The second telephone conversation set out in the judgment of Harrison J at [73] is not particularly helpful for the appellant. However it needs to be considered with the first conversation in which the appellant repeatedly denied acting improperly. The second interview is perhaps explicable on the basis that the appellant was trying to avoid directly denying KN's allegation as that would simply prolong the conversation as had occurred with the first conversation. While the second conversation does provide some support for KN and there are inconsistencies in Amy Hastings' evidence, the "natural limitations" that inhibit an appellate court proceeding wholly or substantially on the record are such that I could not reach the necessary degree of satisfaction as to the appellant's guilt taking into account the excluded evidence (Weiss v R [2005] HCA 81; (2005) 224 CLR 300 at [41]). That said I agree with Harrison J that the evidence was correctly excluded.

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

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Decision last updated: 02 August 2012