JJU v The State of Western Australia - [2013] WASCA 264

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JJU -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 264

CORAM: McLURE P
BUSS JA
HALL J

HEARD: 6 SEPTEMBER 2013

DELIVERED : 22 NOVEMBER 2013

FILE NO/S: CACR 56 of 2013

BETWEEN: JJU
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :REYNOLDS DCJ
File No  :BU 515 of 2010, BU 516 of 2010

Catchwords:

Criminal law - Appeal against conviction - Indecent dealing with a child - Whether trial judge erred by refusing leave to cross-examine complainant about a prior sexual experience - Section 36BC Evidence Act 1906 (WA)

Legislation:

Evidence Act 1906 (WA), s 36BC

Result:

Extension of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Ms S H Linton

Solicitors:

Appellant: Barone Criminal Lawyers Pty Ltd
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bolton v The State of Western Australia [2007] WASCA 277; (2007) 180 A Crim R 191
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
MNO v The State of Western Australia [2009] WASCA 59; (2009) 193 A Crim R 466

McLURE P: I agree with Hall J.
BUSS JA: I agree with Hall J.
HALL J: On 29 August 2012, the appellant, a juvenile, was convicted after a trial before the President of the Children's Court of two counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA). On 16 October 2012, he was sentenced to an intensive youth supervision order for a period of 10 months. He now appeals against his convictions.
A notice of appeal was not filed until 11 March 2013. The reasons for the delay were difficulty in obtaining a transcript of the trial and a refusal of Legal Aid. The affidavits filed in support of the extension do not adequately explain the delay. An extension may also be granted if it is established that to refuse an extension would cause a miscarriage of justice. This requires consideration of the ground of appeal.
There is one ground of appeal. It is that the trial judge erred in refusing to grant leave to cross‑examine the complainant about her prior sexual experiences pursuant to s 36BC of the Evidence Act 1906 (WA). Leave in respect of that ground was granted by Mazza JA.

Background

Both offences were alleged to have occurred during a single incident on the last Sunday in January 2010. At that time the complainant was aged 6 years and 5 months. The appellant was aged 13 at the time. He is the complainant's cousin. The appellant's mother and the complainant's mother are sisters.
At the time the complainant was in the sole care of her father, AH. On the day of the offences AH took the complainant and her two younger siblings to the home of the appellant's mother. The purpose was for the complainant and her siblings to spend time with their aunt, cousins and grandmother, who was also living at the same residence.
The appellant is one of four male children. His elder brother, C, was aged about 17 and he had two younger brothers, B and L, who were aged 12 and 6 years old respectively. The appellant, B and L lived at home with their mother at the time of the incident. The older brother, C, lived elsewhere.

The complainant said that on the day in question she had built a cubby house from blankets and pillows in L's bedroom. The other children had gone to watch television, leaving the complainant alone. She said that the appellant joined her in the cubby house and asked her to touch his penis. As she was doing this he rubbed her vagina with his hand. The words she used to describe this incident were of significance and I will refer to them in more detail later.
The appellant gave evidence that he had helped build the cubby house in his brother's bedroom for the complainant and the other children to play in. However, he denied ever going into the cubby house or being alone with the complainant at any point during the day. He specifically denied that the offences occurred.
During the trial an application was made by defence counsel for leave to cross‑examine the complainant about her prior sexual experiences pursuant to s 36BC of the Evidence Act. In particular, defence counsel sought to ask the complainant about a conversation that had occurred two years before the alleged offences. This conversation was referred to in AH's statement and was said to have occurred when the complainant was in the bath. In that conversation the complainant had referred to the penis of C (the appellant's older brother) as being 'hard and long'. That application was refused.

Ground of appeal

There is one ground of appeal. It is as follows:
1.The President of the Children's Court erred when he refused to grant leave pursuant to Section 36BC of the Evidence Act 1906 to counsel for the appellant to cross‑examine the complainant about her prior sexual experiences ('the statements');
Particulars
1.1The prior sexual experience in the bath was relevant as it went to the ability of the complainant to otherwise describe in detail parts of the male anatomy.
1.2The complainant's statement about what she saw her mother and a male doing was capable of amounting to a 'sexual experience'.
1.3The statements should have been otherwise admitted as an exception to the hearsay rule.
Particular 1.2 was not pressed at the hearing of the appeal. The reason for this is clear. This particular relates to a different conversation about which no ruling was made because it did not constitute a sexual experience for the purposes of s 36BC. The appellant's trial counsel in fact did cross‑examine the complainant about this conversation (ts 24/2/12, page 43). I will, however, refer further to it as it is relevant to an assessment of the relevance of the conversation referred to in particular 1.1.

The complainant's evidence

The complainant's evidence was pre‑recorded on 24 February 2012. This evidence included a visually recorded interview which was conducted on 23 July 2010.
In the interview the complainant said that the appellant had touched her 'privates' and that she had touched his. She gave a description of the appellant placing his hand on her vagina over her clothes and rubbing. She was then asked why she had touched the appellant's private parts and she said:
A.Um because, because he wanted me to.
Q.Mm hm.
A.So I touchded [sic] it.
Q.Mm.
A.But I want ‑ ‑ I didn't want to, so he keeps saying 'Yes', but ‑ ‑ so I did touchded [sic] it.
Q.Mm hm.
A.And that ‑ ‑
Q.Can you remember the words he said?
A.Um, nh nh.
Q.Okay. So can you think what he said to ask you? Can you remember what he said? Okay. So he's asked you to touch his private parts. What's his private part?
A.Mm.
Q.Do you know the name of that private part for a boy? What is that?
A.Mm. He has a doodle.
Q.He has a doodle. And what does he use his doodle for, do you know?
A.Using in the toilet (blue appeal book, 17 ‑ 18).
She was then asked how she had touched the appellant and said:
A.Mm, with my hand.
Q.With your hand? And, and did he have clothes on?
A.Mm. No, because he ‑ ‑ first he did it with his um, um pair of shorts. Then he did it with his knickies, and then he pulled his knickies down then did it.
Q.Oh, okay. So how many times did he ask you to touch his private parts?
A.A lot.
Q.A lot. Okay.
A.Every time when I come to his house, he'd ask that.
Q.Every time?
A.But not all the time, sometimes.
Q.Not all the time, sometimes. Okay. So when you touched his private parts what did it feel like?
A.Mm, um a little bit squishy.
Q.A bit squishy.
A.And some of the wee was coming out.
Q.Some of the wee was coming out.
A.So he said, 'No'.
Q.He said no? He said no to ‑ ‑ what did he mean?
A.Don't touch it any more.
Q.Don't touch it any more. So did it feel different when the wee was coming out?
A.It was a bit, um, aah.
Q.It was a bit?
A.A bit soft (blue appeal book, 18 ‑ 19).
Later in the interview, she was again asked to describe how she had touched the appellant:
Q.Okay. So he pulled his shorts and his knickers down together? Okay. And so when you touched his doodle, what did you touch his doodle with?
A.Mm. Only my hand.
Q.Yeah? Which one?
A.Mm, this hand.
Q.Yeah? And what did your hand do?
A.I keep going up and down, up and down.
Q.Up and down, up and down. Okay. And when, when you were touching his doodle with your hand, was he doing anything? What was he doing?
A.He was touching my privates with his hand, but I had all my clothes on, but he was rubbing on them ‑ ‑
Q.He was rub ‑ ‑
A. ‑ ‑ like this.
Q.Okay then. Okay. And so how, how come you were rubbing your hand up and down like that?
A.Um, cos, um, I went like that and then he told me to go like that.
Q.Ah, when he told you to go like that, what did he say?
A.Um, 'Not like that, do it like this, and, and it feels better'.
Q.Okay then. And it feels better? And so when, when you said you were going like that and he said to do it like that, did he tell you what to do or did he show you what to do?
A.Showed me what to do.
Q.How did he show you?
A.Um, he did it with nothing. He just did it with his hand.
Q.Okay. Okay then, and so when he did that, did he put his hand on anything?
A.Mm.
Q.Or was it in the air?
A.Err, he didn't put anything in his hand. He just ‑ ‑ he was just doing that.
Q.Okay. And so when you were doing that on his doodle, how long did you have to do that for?
A.Mm, only for a few hours.
Q.Only for a few hours? Okay then.
A.But he told me to do it fast.
Q.Okay.
A.So he ‑ ‑
Q.Did you have to do it fast the whole time?
A. ‑ ‑ no. But when I did it fast he told me to do it slowly.
Q.Okay then. Do you know why he told you ‑ ‑
A.But then when it ‑ ‑ then when it was slowly, he told me to stop.
Q.Okay. Okay. And ‑ ‑
A.And that's ‑ ‑ and when we ‑ ‑ when he told me to stop, um, I walked out of the cubby house. But he still wanted me to stay but I walked out.
Q. ‑ ‑ okay then. And so [name suppressed], you were saying that when you were doing that it felt a bit squishy. Was it squishy the whole time?
A.Mm.
Q.Yeah? Okay. And so when you had to do that, how hard did you hold it?
A.Um.
Q.Did you hold it soft or hard?
A.Only a little bit hard.
Q.Only a little bit hard? Okay. And you said after a while some wee came out. Yeah? What did the wee look like?
A.Mm. I didn't see it, but I didn't really what ‑ ‑ what it looked like. I just felt it.
Q.Okay. Tell me what did it feel like?
A.Mm. A bit soft and a bit ‑ ‑ and that a little bit soft and a bit ‑ ‑ it was very smooth and soft.
Q.Very smooth and soft. Okay. And, um, was it cold like it come out of the fridge? No? What was it like?
A.It was a bit warm.
Q.Yeah? Okay. And when you felt it where did you feel it?
A.On my hand (blue appeal book, 22 ‑ 24).
When the complainant said that her hand was going 'up and down, up and down' she demonstrated to the interviewers by holding out her right hand with an open fist and moving it vertically up and down.

The s 36BC application

At the pre‑recording of the complainant's evidence and after the video interview had been played and further evidence‑in‑chief given, the appellant's trial counsel made an application pursuant to s 36BC. The application related to matters referred to in the witness statement of the complainant's father, AH. Two passages in that statement were referred to.
The first passage referred to a time when the complainant was 4 years old. She was in the bath with her younger siblings. AH said that the complainant pointed to her younger brother's penis and said 'Daddy, what's that?' Her father had said 'it's a doodle' or words to that effect. He said that the complainant then said '(C's) is hard and long', C being the name of the appellant's elder brother and another cousin of the complainant.
The second passage related to a conversation with the complainant some two years later. AH had observed the complainant behaving in a way that appeared to him to be a simulation of sexual intercourse. When asked by AH where she had seen behaviour like this she said that she had seen her mother and a man doing it. She also referred to having seen it on television and also seen a man on the street doing something. AH did not press the matter. This second passage was not ultimately the subject of any ruling and the complainant was questioned about these matters. This passage relates to the second particular of the ground of appeal, which was not pressed.
In regards to the first passage, trial counsel for the appellant said that what she sought to do in cross‑examination was to put the conversation to the complainant and ask her whether she recalled it. If so, it was intended to ask what she had meant by the words '(C's) is hard and long', what she had been referring to and the circumstances in which she came to have that knowledge. The forensic purpose was to show that the complainant may have been able to give the description of the appellant's genitals in the recorded interview because she had seen male genitals on an earlier occasion. Counsel said that the purpose was not to suggest that the alleged offences had been committed by C. Rather, the purpose was to determine whether the complainant had any other source for her knowledge of the appearance and functioning of a male penis other than the alleged offence involving the appellant. His Honour asked whether this evidence went 'to the hand gesture issue'. Counsel confirmed that it did and also to the description of the appellant's penis.
His Honour noted that in the context of the complainant's life there was a significant lapse of time between the first conversation and the alleged offences. His Honour said that the statements attributed to the complainant did not take the issue that defence counsel wished to explore anywhere. He said that there was a real risk that if questions about the conversation were pressed the complainant would be required to reveal some prior sexual experience.
His Honour said that he could not see that the probative value in such questioning would outweigh any distress that might be caused. He said that this conversation had no probative value in regards to the issue of the complainant's knowledge of hand gestures. He refused leave to explore this area.

AH's evidence

AH gave evidence at the trial. This included evidence of recent complaint by the complainant. AH said that after collecting his children from the appellant's house the complainant had asked whether she could tell him something. She then told him that the appellant had touched her privates. Shortly after, when they got home and the younger children were out of the way, AH asked the complainant what had happened. She then described what had occurred in a way that was consistent with her pre‑recorded evidence. This included referring to the appellant asking her to touch him and using the same hand gesture.
In cross‑examination AH was asked about the complainant displaying sexualised behaviour. This involved the complainant rubbing herself on a teddy bear and referring to 'playing bums'. AH asked her where she had learnt this and she said she had seen her mother and a man doing it, had seen it on television and seen a man on the street doing something. The complainant had appeared uncomfortable and AH did not press the matter. AH was not asked about the other, earlier conversation in the bath. There was also some questions regarding an educational DVD about protective behaviours that the complainant had viewed.

Section 36BC: the principles

Section 36BC of the Evidence Act provides as follows:
(1)In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2)The court shall not grant leave under subsection (1) unless satisfied that -
(a)what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b)the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.
There are three questions in applying s 36BC in a particular case. First, does the evidence in question relate to the sexual experiences of the complainant? Second, is the evidence part of the res gestae of the proceedings? Third, does the evidence meet the criteria in s 36BC(2) of substantial relevance and a probative value that outweighs any distress, humiliation or embarrassment that the complainant might suffer.
In Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, McHugh, Gummow and Hayne JJ said that a complainant could be cross‑examined concerning the extent of his or her sexual knowledge without infringing s 36BC:
The use in s 36BC of the plural 'sexual experiences' in contrast to the singular 'sexual experience' is significant. It indicates that the purpose of the section is to prohibit evidence which describes any occasion or episode of sexual activity involving the complainant and another person but its purpose is not to prohibit all evidence that tends to prove the state of his or her sexual experience. Without infringing s 36BC (nor ss 36B and 36BA), the defendant would plainly be able to question the complainant concerning the extent of his or her sexual knowledge. This is clear from the qualifying words 'being sexual experiences ... with any person'. Those words also indicate that the complainant could be questioned or evidence adduced to prove that the complainant had witnessed the sexual activities of others as long as the evidence did not suggest that the complainant was involved in those activities [62].
See also Bolton v The State of Western Australia [2007] WASCA 277; (2007) 180 A Crim R 191 [37], [40].
The prohibition in s 36BC covers evidence 'relating to' the sexual experiences of the complainant. This suggests that it covers a wider ambit than direct evidence of such experiences themselves. In Bull McHugh, Gummow and Hayne JJ said that the natural meaning of the words 'relating to' may be wide enough to cover evidence that only incidentally refers to sexual reputation, disposition or experiences (referring to s 36B and s 36BA as well as s 36BC). They said that it was impossible to deny that those words at least cover any testimony that tends to prove any of those matters [72].
Section 36BC prohibits the adducing of evidence of the complainant's sexual experiences. It also prohibits such evidence being elicited in cross‑examination of the complainant. However a distinction can be drawn in some cases between evidence of sexual experiences and evidence of out‑of‑court statements about such experiences.

In Bull McHugh, Gummow and Hayne JJ considered whether cross‑examination of a complainant about an out‑of‑court statement that referred to a sexual experience of the complainant would breach s 36BC:
At common law, the out-of-court statements of a complainant relating to that person's sexual reputation, disposition or experiences could not be adduced as evidence of the facts therein contained, whether evidence of the making of the statements was sought to be adduced in cross-examination or otherwise. They were excluded by the hearsay rule unless they fell within a recognised exception to that rule. Of course, if admissions could be obtained from the complainant as to the facts in such statements, they could be used to prove any fact in issue and the character and credibility of the complainant. No doubt the contents of the statements might be put to the complainant for various forensic purposes, but in principle proof that the complainant had made the statements would not prove their content [74].
Sometimes, however, testimony of an out-of-court statement is admissible to prove a fact relevant to a fact in issue such as the intention or purpose of the complainant or even the consent of the complainant. If the statement contains material that refers to matters relating to the reputation, disposition or experiences of the complainant in sexual matters, would it be evidence tending to prove those matters and prohibited by one or more of the three sections? We think not [75].
If a hearsay statement is admissible to prove a fact in issue or a fact relevant to a fact in issue, it is evidence of that fact only and the statement cannot be regarded as evidence tending to prove any fact in the statement. It follows that, in a trial to which s36B, s36BA or s36BC applies, a statement of the complainant that is admissible to prove a fact in issue or a fact relevant to a fact in issue other than the reputation, disposition or experiences of the complainant in sexual matters, does not become, upon admission, evidence tending to prove those matters even if the contents of the statement refer to them. The statement has no probative value in respect of those matters. Accordingly, it is not evidence tending to prove any of those matters [80].
In some cases, evidence of a prior sexual experience may have relevance because it will provide an alternative source of knowledge that might otherwise have been thought to have been derived from the occurrence of the alleged offence. This is particularly so in the case of very young children where the ability to describe a sexual act may be viewed as making it more likely that such a witness is telling the truth. Similarly, evidence of an out‑of‑court statement may be relevant, not to prove the truth of what was said but to establish the state of the person's sexual knowledge prior to the commission of the alleged offence.
In MNO v The State of Western Australia [2009] WASCA 59; (2009) 193 A Crim R 466, the complainant, an 11‑year‑old girl, told police during an interview that prior to being sexually abused by the appellant in that case, she had been raped by another man. She said that she had no recollection of this herself but had heard her mother and uncle talking about it. The particular sexual acts referred to were of the same type as alleged against the appellant in that case. An application to cross‑examine the complainant was refused by the trial judge on the ground that the evidence had only 'remote relevance'. There was also some reference to the hearsay quality of the evidence, but it was not clear whether that contributed to the trial judge's conclusion.
Martin CJ (with whom Miller JA agreed) said in MNO that the trial judge was in error because the state of knowledge of the complainant was relevant in the particular circumstances of the case. His Honour noted that counsel for the State had submitted to the jury that the complainant would be unlikely to be able to give such a detailed description of the events unless those events had in fact occurred. Implicit in that line of argument was a proposition that the complainant was of such tender years as to be unlikely to have sufficient knowledge of sexual conduct to be able to relate the matters in the detail which she did unless they had in fact occurred. The extent of the complainant's knowledge of sexual matters at the time the allegation was made was, therefore, relevant in those circumstances.
In MNO, Martin CJ said that because cross‑examination had been precluded the appeal court was in the invidious position of having to speculate about what evidence might have been given if cross‑examination had been allowed. He said that sometimes this problem could be avoided by taking evidence in the absence of the jury. However, that course would not be appropriate where the taking of the evidence would be likely to expose the witness to significant hardship or trauma. Additional evidence was led on the appeal in MNO which made it clear that if cross‑examination had been permitted at the trial it would not have assisted in establishing the extent of the complainant's sexual knowledge, sophistication or experience.
Assuming that evidence does fall within the ambit of s 36BC as being evidence relating to sexual experiences of the complainant, then leave to adduce or elicit such evidence can only be granted if the evidence has substantial relevance to the facts in issue and the probative value outweighs any distress, humiliation or embarrassment that the complainant may suffer as a result of its admission. Whether the evidence has substantial relevance to the facts in issue needs to be determined by considering the extent to which the evidence could make more or less likely a fact in issue. The probative value must then be weighed against the possible effect upon the complainant. The probative value will require that some assessment be made of the likely significance of the evidence taking into account the time and circumstances in which it occurred and any relevant similarity between the past event and the alleged offence. An assessment of the possible effect upon the complainant will need to take into account the age and personal circumstances of the complainant.

Merits of the appeal

It was open to defence counsel at the trial to cross‑examine the complainant as to her sexual knowledge. There was some effort to do this by asking the complainant about the second conversation with her father. She was asked whether she had seen her mother engaging in sex, had seen sexual activity on television and had observed a man on the street performing a sexual act. She had no recollection of these things and could not recall speaking to her father about them. This was unsurprising given that that conversation had occurred in 2010, some two years prior to the complainant giving evidence.
The conversation in the bath occurred two years earlier still. That was when the complainant was 4 years old. That was four years prior to giving evidence. There must have been a significant likelihood that the complainant would also not recall that conversation. But that is unknown because cross‑examination in respect of that conversation was precluded.
The bath conversation was not itself a sexual experience, though it may have referred to one. It was possible, however, that the complainant was recounting something she was told rather than something she had experienced. In any event, it was an out‑of‑court statement that could only be relevant and admissible if it proved something other than the truth of what was said; such as the state of the complainant's sexual knowledge. On its face all the complainant's statement could arguably show was prior knowledge of the appearance of an erect penis.
It is important to draw a distinction between adducing evidence of the bath conversation and using that conversation as the basis for eliciting evidence of a prior sexual experience. If the conversation was relevant and admissible in itself then it could be adduced either in cross‑examination of the complainant or cross‑examination of AH. To do so would not require leave under s 36BC because the conversation was not a sexual experience, nor would it relate to a sexual experience if the purpose was only to establish knowledge of some relevant matter rather than the truth of what was said. If, however, the purpose was to use the conversation to elicit evidence of a prior sexual experience then leave was required.
The concern of the trial judge appears to have been that if the conversation was put to the complainant in cross‑examination this would lead to questions regarding the source of her knowledge and that this may in turn result in the eliciting of evidence of a prior sexual experience. The submissions by defence counsel at the trial were to the effect that such a course was, in fact, intended. The application was not to merely elicit the out‑of‑court statement but to question the complainant about whether she had a prior sexual experience that could explain that statement. The out‑of‑court statement was to be used merely as a point of entry to such a line of questioning.
In the circumstances of this case where the application was not confined to seeking to elicit the statement but to cross‑examine the complainant about the basis for it, the approach taken by the trial judge was that leave pursuant to s 36BC was required. That was based on the assumption that evidence of sexual experience could be elicited. Whether or not questioning would in fact have resulted in such evidence is not known. But there is no doubt that that was the objective. That was confirmed by the fact that defence counsel made an application for leave. Defence counsel was seeking leave to pursue a line of questions, not merely to elicit evidence of the statement. Indeed, it is consistent with a view that the statement was not in itself considered relevant that no attempt was made to elicit it in the cross‑examination of AH.
Assuming, therefore, that leave under s 36BC was required for defence counsel to pursue the proposed line of questioning, the first question is whether it had substantial relevance to the facts in issue. If the complainant had agreed that on some earlier occasion she had seen the erect penis of C that could potentially provide an alternative source of knowledge for that particular aspect of the complainant's account of what had occurred with the appellant. Was that fact alone a matter of substantial relevance?
The significance of that evidence is limited because it formed only a small part of the complainant's description of the events involving the appellant. Importantly, the complainant referred not only to the appellant's erect penis, but also to hand movements that she said she was directed by the appellant to undertake. She also gave a description that was consistent with ejaculation. There was nothing in the statement of AH to suggest that the bath conversation had included details of this type. It cannot be assumed that any earlier incident involving C was an alternative source of knowledge of those matters.
When seen in context of the whole of the evidence, the mere possibility that the complainant may have had pre‑existing knowledge of the appearance of an erect penis did not satisfy the requirement of substantial relevance. Even if it did, the probative value of that evidence had to be weighed against the potential adverse effect upon the complainant. The probative value was limited having regard to the fact that the complainant's sexual knowledge was explored in cross‑examination both of the complainant and AH. Furthermore, the bath conversation did not in itself suggest a source of knowledge for all of the details provided by the complainant of the incident involving the appellant. In any event, the statement was far removed from the offending conduct in time and occurred when the complainant was only 4 years old. On the other hand, there was at least a possibility that cross‑examination on this issue may reveal other unrelated sexual offences against the complainant of a serious and upsetting nature which may have had no material similarity to the offences alleged against the appellant.
The suggestion both at trial and on appeal appeared to be that the bath conversation provided a sufficient basis for exploring past sexual experiences to determine whether or not they were relevant. This inverts the requirements of s 36BC. Substantial relevance must be established before leave to adduce or elicit evidence of prior sexual experiences can be granted. The protection afforded by s 36BC would be rendered worthless if it was open to cross‑examine a complainant about a prior sexual experience in order to determine whether it had relevance to the facts in issue.
There are important differences between this case and MNO. Firstly, in MNO, the prior sexual experience was apparently of a similar nature to that alleged on the available information. In the present case, that could not be said. Secondly, in MNO it was possible that all aspects of the relevant knowledge of the complainant might have been sourced from an earlier experience. That is unlike the present case. Here, the past experience could only be said to provide a possible alternative source for one, relatively less significant feature, of the events described by the complainant. Thirdly, in the present case cross‑examination of the complainant as to her sexual knowledge did not depend upon the ruling made by the judge. Some cross‑examination on this issue was undertaken. This included cross‑examination regarding the later conversation with AH. It was open in the present case for the trial judge to come to a different conclusion regarding relevance than was reached in MNO.

Conclusion

In my view, the trial judge was correct to conclude that leave to elicit the evidence under s 36BC should not be granted. The prerequisites of substantial relevance and probative value outweighing negative impact on the complainant, were not established. I would refuse the extension of time and dismiss the appeal.