Oscar Raul Diaz Gutierrez v The Queen
[2018] VSCA 270
•25 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0079
| OSCAR RAUL DIAZ GUTIERREZ | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 June 2018 |
| DATE OF JUDGMENT: | 25 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 270 |
| JUDGMENT APPEALED FROM: | DPP v Gutierrez (Unreported ruling, County Court of Victoria, Judge Tinney, 14 November 2016) |
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CRIMINAL LAW – Conviction – Indecent assault and rape – Whether judge erred in excluding evidence of complainant’s prior conviction for loitering in a public place for the purpose of sex work – Restrictions on evidence concerning a complainant’s sexual activities – Whether loitering for sex work was evidence as to ‘sexual activities’ – Refusal of leave to adduce evidence – Whether substantial relevance to a fact in issue – Risk of discriminatory belief or bias or prejudice against the complainant – R v Warrell [1993] 1 VR 671, Bull v The Queen (2000) 201 CLR 443 distinguished – R v Lear [1998] 1 VR 285 considered – Criminal Procedure Act 2009 ss 342, 349 – Evidence Act 1958 s 37A – Leave to appeal granted – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G M Hughan | C Marshall & Associates |
| For the Respondent | Ms D Piekusis | John Cain, Solicitor for Public Prosecutions |
TATE JA:
TABLE OF CONTENTS
| Introduction and summary......................................................................................... | 1 |
| Conviction for rape and indecent assault................................................................ | 2 |
| Circumstances of the offending.................................................................................. | 3 |
| Application at trial for leave under s 342 to adduce evidence of prior conviction as evidence of complainant’s ‘sexual activities’.................................. | 5 |
| The judge’s reasons for excluding the evidence........................................................ | 10 |
| Application for leave to appeal................................................................................. | 11 |
| (1) Change of position – not evidence of ‘sexual activities’....................................... | 11 |
| (2) Crown response.................................................................................................. | 13 |
| Analysis......................................................................................................................... | 14 |
| (1) History and purpose of s 342.............................................................................. | 14 |
| (2) Authorities.......................................................................................................... | 16 |
| (3) Should leave have been granted under s 349?.................................................... | 25 |
| Conclusion.................................................................................................................... | 26 |
Introduction and summary
This proceeding raises the issue of whether evidence sought to be adduced below was properly excluded. In a trial by jury on which the applicant, Oscar Gutierrez (‘Gutierrez’), was convicted of two charges of rape and one charge of indecent assault, the judge excluded evidence of a prior conviction of the complainant’s. The offence was contrary to s 13(2) of the Sex Work Act 1994 which states: ‘A person must not for the purpose of sex work solicit or accost any person or loiter in a public place’. The evidence was excluded as evidence ‘as to the sexual activities ... of the complainant’, the admission of which is prohibited without leave of the court under s 342 of the Criminal Procedure Act 2009 (‘the Act’). The question that arises is whether evidence of the complainant’s prior conviction is evidence ‘as to [her] sexual activities’.
In summary, for the reasons below, I consider that the evidence was rightfully excluded. The offence was loitering ‘for the purpose of sex work’. The sex work was work to be carried out by the complainant. If carried out, it was clearly sexual activity of the complainant. In my view, loitering by the complainant for the purpose of carrying out sexual activity is clearly and closely related to sexual activity of the complainant regardless of whether the sexual activity actually takes place. The purpose for which the loitering occurred ‘marks’ the conduct in a sexual way; it is an essential element of the offence. The purpose criminalises behaviour that would otherwise be lawful and innocuous. The purpose provides a sufficient nexus to render the evidence which Gutierrez sought to adduce, evidence as to the sexual activities of the complainant.
Conviction for rape and indecent assault
On 21 November 2016 Gutierrez, after a trial by jury in the County Court, was found guilty of one charge of indecent assault (charge 2) and two charges of rape (charges 3 and 4) alleged to have occurred on 1 February 2013. He was acquitted of another charge of indecent assault (charge 1) alleged to have occurred between 1 January and 18 January 2013. The complainant on all charges was the same person.
On 22 December 2016 Gutierrez was sentenced as follows:[1]
[1]DPP v Gutierrez (Unreported, County Court of Victoria, Judge Tinney, 22 December 2016) (‘Sentencing reasons’).
Charge Offence Maximum Sentence Cumulation 2 Indecent assault [s 39(1) of the Crimes Act 1958] 10 years 15 months 3 months 3 Rape [s 39(1) of the Crimes Act] 25 years 5 years and 6 months 1 year 4 Rape [s 39(1) of the Crimes Act] 25 years 6 years and 3 months Base Total Effective Sentence: 7 years 6 months Non-Parole Period: 5 years 3 months Pre-sentence detention declared: 31 days Other relevant orders: Sentenced as a serious sexual offender on charge 3, pursuant to Sentencing Act 1991 s 6F.
Gutierrez now seeks leave to appeal his conviction. His application for leave to appeal was refused by Whelan JA.[2] Gutierrez has elected to renew that application before a bench of two or more judges of appeal on a sole ground of appeal, namely:
The trial Judge erred in law in excluding evidence of the complainant’s prior conviction on 7 February 2012 for the offence of ‘for the purpose of sex work loiter in a public place’.
[2]Gutierrez v The Queen [2017] VSCA 228.
At the initial hearing of the election to renew, the application was adjourned and leave granted to add a further proposed ground of appeal relying on fresh evidence. When the hearing reconvened some months later, the additional ground was abandoned.
Circumstances of the offending
The complainant was a 30-year-old disabled woman who lived in a boarding house which Gutierrez managed as, in effect, her landlord. She lived on a disability pension. As the judge noted, she was physically vulnerable, having only one arm.[3]
[3]Sentencing reasons [23].
Charge 1, of which Gutierrez was acquitted, was an allegation that in January 2013 he had touched the complainant’s breast, on the outside of her clothing. There was no evidence of the complainant’s distress.
The events relating to the other three charges, of which Gutierrez was convicted, occurred on 1 February 2013 when he attended the premises to address a conflict in the house. The complainant had texted and rung Gutierrez in an agitated state saying that the other tenants of the house were ganging up on her and wanted her out. She was crying.
Gutierrez went to the boarding house and said in his police interview that the complainant was distressed.
Gutierrez took the complainant to her bedroom and locked the door. The other tenants had left the house so Gutierrez and the complainant were alone in the house.
While Gutierrez and the complainant were talking, Gutierrez grabbed the complainant and pulled her down onto the bed so that they were sitting next to each other. He cuddled her and put his hand under her bra and on her breast. The complainant pulled away and stood up, but Gutierrez pulled her back down, put his hand down her pyjama pants and touched her pubic area. The complainant repeatedly said ‘no’ during these actions. This is the offending the subject of charge 2 (indecent assault).
Gutierrez then forced the complainant to her feet, removed her pyjama pants and touched her vagina. He then made the complainant lie down on the edge of the bed and inserted his fingers into her vagina while grabbing her hand and placing it on his penis outside his clothing. She was held down at one point during the digital penetration and it hurt. This is the offending the subject of charge 3 (rape).
Gutierrez proceeded to pull down his pants and, while the complainant continued to say ‘no’, forced his penis into the complainant’s mouth and held her head. He ejaculated in her mouth. The complainant gagged a number of times. This is the offending the subject of charge 4 (rape).
The judge observed in the sentencing reasons:
She had one arm and she was distressed before, during and after these acts. She was defenceless, she was vulnerable and she was in an emotional state and [Gutierrez] knew these things.[4]
[4]Ibid [24].
After Gutierrez ejaculated in her mouth, the complainant surreptitiously spat his ejaculate into a piece of toilet paper and hid it from him.[5] Gutierrez left the apartment, but called the complainant a short time later and returned to collect his sunglasses. Before attending the boarding house, he had driven back to Melbourne from Apollo Bay with his family who waited for him nearby.
[5]The complainant said in her statement to the police on 2 February 2013 that she always kept toilet paper in her room ‘because I get a very runny nose and also because I’m sick of everyone using everything of mine’.
The complainant immediately complained to a friend and a staff member of the housing service, before reporting the matter to the police later that day. She handed to the police the toilet paper with Gutierrez’s ejaculate. A DNA test confirmed that the toilet paper contained the complainant’s saliva and Gutierrez’s sperm.
After the complainant had complained to the police, Gutierrez attempted to evict her from the boarding house with a letter written under the hand of his wife citing, amongst other things, the complainant having made a serious allegation.
When questioned by police, Gutierrez denied that any sexual activity had taken place between him and the complainant. He said that he had masturbated in the toilet, wiped himself with toilet paper and discarded the toilet paper in a rubbish bin in the toilet. Ultimately, at trial, Gutierrez, in giving evidence, accepted that penile oral penetration took place but claimed that it had been consensual and instigated by the complainant. He continued to deny that the other offending occurred.
The complainant made two statements to police[6] and gave evidence at a committal hearing in November 2013 where she was cross-examined. The complainant died in January 2015. The trial commenced in November 2015.
Application at trial for leave under s 342 to adduce evidence of prior conviction as evidence of complainant’s ‘sexual activities’
[6]The first statement was on 2 February 2013 and the second was on 18 February 2013.
In November 2015, the judge determined that the complainant’s statements to police and her evidence at the committal hearing were admissible. Gutierrez applied for leave to appeal that determination, by way of an interlocutory appeal, but leave was refused.[7]
[7]Luna (a Pseudonym) v The Queen [2016] VSCA 10.
Gutierrez then sought a permanent stay of the prosecution. The judge rejected the application. The trial was adjourned until November 2016.
Before the empanelment of the jury, counsel for Gutierrez applied for leave to adduce evidence through the informant that on 7 February 2012 the complainant had been convicted and fined for the summary offence of loitering in a public place for the purpose of sex work. The offence had occurred on 27 January 2011.
There was some uncertainty as to whether the complainant knew of this conviction and also uncertainty as to whether she was the intended accused. The summary offence was dealt with ex parte in the Magistrates’ Court with inaccuracies as to the complainant’s date of birth and spelling of her surname. The circumstances of the offending were unknown other than that the loitering occurred in Greeves Street, St Kilda.
The trial judge ruled against the application (‘the Ruling’)[8] on the basis that he was prepared to assume that the prior conviction involved the complainant.
[8]DPP v Gutierrez (Unreported ruling, County Court of Victoria, Judge Tinney, 14 November 2016).
The application was made pursuant to s 342 of the Act which requires leave of the court before evidence as to the sexual activities of a complainant can be admitted:
342 Restriction on questions and evidence concerning complainant’s sexual activities
The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court.
A grant of leave is governed by s 349 of the Act. Section 349 is headed ‘Determination of application for leave during summary hearing, committal proceeding or trial’. It provides that ‘the court must not grant leave’ under s 342 unless it is ‘satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice’ to admit the evidence. In making its determination, the court must have regard to the following factors set out in s 349:
(a) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and
(b) the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and
(c) the need to respect the complainant’s personal dignity and privacy; and
(d) the right of the accused to fully answer and defend the charge.
In both his written and oral submissions before the judge, counsel confirmed that he, as he said, ‘seeks leave’ to lead evidence of the complainant’s criminal record. The basis of the application before the judge was that the prior conviction demonstrated that the complainant had previously been willing to engage in sexual services for financial gain. This was submitted to be relevant to the defence case that on 1 February 2013 the complainant engaged in a sexual act with Gutierrez to prevent her eviction.
The written submissions before the judge read as follows:
Mr Gutierrez seeks leave to lead evidence of [the complainant’s] criminal record.
...
This evidence may invoke section 342 of the [Act]
...
Section 349 of the [Act] governs the granting of leave:
...
It is the defence case that on 1 February 2013, Mr Gutierrez attended [residential address] to meet with [the complainant] to discuss complaints made by other tenants and her possible eviction from the property. It was in the context of this conversation that consensual oral sex took place.
A central issue in dispute is whether [the complainant] did engage in consensual oral sex.
The evidence of [the complainant’s] criminal history is substantially relevant as to her preparedness in using sexual experiences as a form of currency to achieve material gain. In the past she was willing to engage in sexual services for financial gain. In this case, the defence contend, she engaged in a sexual act to prevent her eviction.[9]
[9]Emphasis added.
With respect to the factors that must be considered in determining whether leave should be granted, the written submission before the judge continued:
In considering the factors outlined in section 349 of the [Act], it is submitted:
a.The complainant will not be cross-examined regarding the evidence. Therefore there will be no distress, humiliation, or embarrassment to the complainant.
b.The evidence will be limited to the criminal record only and is not of a nature that would invoke bias, prejudice, sympathy or hostility.
c.The criminal history is a matter of public record and the complainant’s death diminishes the risk of harm to the complainant’s personal dignity and privacy.
d.The evidence is fundamental in defending the charge given the defence case that the complainant has consensually engaged in oral sex in circumstances that might not be considered as ordinary.
It was submitted that the inability to cross-examine the complainant at trial made a grant of leave more important so that the ‘interests of justice’ favoured the admission of the evidence. The submission carried a disclaimer that Gutierrez was ‘not alleg[ing] that [the complainant] had a general disposition to engage in sexual activity and the defence is not calling into question [the complainant’s] chastity’.
With respect to the oral submissions made before the judge, counsel for Gutierrez said that:
Counsel: ... of course leave would have to be [granted].
...
Counsel:The point of relevance is this, your Honour. The prior is for — there’s no evidence that sex took place in regards to that prior, but the prior relates to I guess attitude by the complainant to use sex for material gain and in this context the prior it is for money and it is the defence case that in this case she has used a sexual act also for gain, a material gain, and that’s to avoid eviction from the house.
His Honour: Where is the evidence of that?
Counsel:That’s the defence case, your Honour.
...
His Honour: ... Well, you’ve got to show more than just relevance, you’ve got to show that it’s ...
Counsel:That’s right.
His Honour: I mean, you accept, do you, there is the requirement to make this application pursuant to the provisions of ...
Counsel:That’s right, your Honour.
His Honour: 342 that there’s the restriction in terms of questions in evidence concerning sexual activity.
Counsel:That’s right.
His Honour: That’s why you’re making this application.
Counsel:Yes, your Honour.
His Honour: So it’s not just a matter of looking at relevance, it’s got to have substantial relevance to a fact in issue.
Counsel:Yes, your Honour. And that, to address just the relevance issue first, and that’s why I say is the relevance, it goes to, as I said, the defence case as I’ve articulated, and the relevance, it goes to whether or not she would do or would take an attitude ...
His Honour: So she’s the type of person who would do it.
Counsel:She’s a type of person that has an attitude on two separate occasions.
His Honour: Yes, all right. It seems to fall pretty much foul of s 343 of the Act on the foot, but leaving that aside.
Counsel:To address, as your Honour said, the additional factors, the s 349 considerations, there’s not going to be cross-examination of the complainant. ...
The reference the judge made to s 343, which he then put aside, relates to a prohibition on the admission of ‘sexual history’ evidence:
343 Admissibility of sexual history evidence
Sexual history evidence is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates.
Section 343 makes it clear that evidence of a complainant’s sexual history cannot be used to support a propensity or ‘type of person’ inference.[10]
[10]With respect to the use of sexual history evidence for the purposes of an attack on credit, s 352 of the Act states that: ‘Sexual history evidence is not to be regarded … as being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant’.
‘Sexual history evidence’ is defined in s 340 of the Act:
340 Definition
In this Division—
sexual history evidence means evidence that relates to or tends to establish the fact that the complainant—
(a) was accustomed to engaging in sexual activities; or
(b) had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person.
The judge’s reasons for excluding the evidence
The judge observed that counsel for Gutierrez ‘makes application for leave under the provisions of s 342’.[11] He noted that the procedural preconditions governing an application for leave under s 342 had not been met.[12] These address the need to give adequate notice. As that notice had not been given, the judge determined to treat the matter as involving an application for leave out of time.
[11]The Ruling, 48.
[12]These conditions require, in the case of a trial, that the application be filed with the court and served on the DPP at least 14 days before the day on which the trial is listed to commence: the Act s 344(c).
The submission that the prior conviction had substantial relevance to a fact in issue treated the complainant as ‘having a preparedness to use sexual experiences as ... a form of currency to achieve material gain’.[13] The judge said he had ‘absolutely no doubt at all that this evidence does not meet that high threshold’ of substantial relevance to a fact in issue and that it could not rationally affect the relevant assessment:[14]
I am not satisfied that the existence of that prior matter has substantial relevance to a fact in issue and that it is in the interests of justice to allow it to be admitted into evidence. I do not believe it has any probative value … I do not think it could rationally affect the assessment of the probability of the existence of a fact in issue. It might do so irrationally ... The argument really is to say that because she was engaged, if she was, in the way she was engaged in January of 2011 in a totally different factual setting on the streets of St Kilda, that she is the type of person who would be doing the same thing in her own bedroom at the house quite some time later, in a totally different setting. I do not think that is a rational view that could be adopted.[15]
[13]The Ruling, 51.
[14]Ibid 52.
[15]Ibid (emphasis in original).
He considered that the evidence would also carry ‘a risk of arousing a discriminatory belief or bias against the complainant’.[16] The judge noted that while some of the matters identified under s 349, including embarrassment, and preservation of the complainant’s dignity and privacy were not significant factors, ‘those things … do not cease to exist because she ceases to exist’.[17]
[16]Ibid 53.
[17]Ibid 54.
He rejected the submission that the evidence was necessary for Gutierrez to fully answer and defend the charge:
[M]y judgment is that the existence of the prior matter has absolutely no connection at all to those facts in issue, that it has no substantial relevance to the facts in issue by virtue of any inferences it might raise. Really the inferences that are sought to be raised are ones just of general disposition or the type of person [inference] and they are the very things that are prohibited under the terms of the provisions. In terms of credibility, sexual history evidence is not to be regarded as being a proper matter for cross-examination as to credit unless because of special circumstances it would be likely materially to impair confidence in the reliability of the evidence of the complainant. Well, that prior appearance has no such character at all …[18]
[18]Ibid.
Ultimately, he ruled against the application for leave to adduce evidence of the prior conviction.
Application for leave to appeal
(1) Change of position — not evidence of ‘sexual activities’
Despite the manner in which, in the Court below, counsel for Gutierrez applied for leave under s 342 to adduce evidence as to the complainant’s sexual activities, in this Court Gutierrez submits that evidence of the complainant’s prior conviction is not evidence ‘as to the sexual activities’ of the complainant within the meaning of s 342. He submits that there was no need for leave to be granted under s 349 for the evidence to be adduced and trial counsel was wrong to concede the point. He submits the judge fell into error by excluding the evidence.
He supports his submission by relying upon the plain meaning of the words used in s 342, within their statutory context, to the effect that the expression ‘evidence … as to the sexual activities ... of the complainant’ means evidence about, relating to, or concerning, whether the complainant has actually engaged in, or been involved in, a sexual act or acts. Evidence that the complainant loitered in a public place, for the purpose of sex work, is submitted to say nothing about whether the complainant engaged in sexual activity on that occasion or on any other occasion. The prior conviction shows merely that the complainant was willing to engage in sexual activity, not that she did do so engage. Therefore, the evidence is not caught by the restriction in s 342 and leave was not required.
In the alternative, he submits that if the evidence is evidence as to the sexual activities of the complainant, within the meaning of s 342, the judge erred in refusing leave because the evidence had substantial relevance to the only fact in issue concerning charge 4, namely whether the oral sex was consensual. He submits that the judge could not have failed to be satisfied that it was in the interests of justice for the evidence to be adduced. The evidence of the prior conviction demonstrated a willingness to engage in sexual activity for the purpose of material gain and, while it did not prove that she acted on that willingness, it could have substantially affected the jury’s assessment of a fact in issue. He submits that the judge erroneously focused on whether there was a ‘connection’, in a factual sense, between the two discrete events. That approach was wrong because the connection which established the substantial relevance was not between the facts of the two events but between the complainant’s attitude or willingness to engage in sexual activity for material gain on both occasions.
Gutierrez further submits that relevant to the interests of justice was the restricted ability Gutierrez had to defend himself because the complainant had died and he was therefore unable to cross-examine her at trial; the jury were thus left with an incomplete and potentially misleading account of what had happened. There was little or no significance to be attributed to any of the ‘protective matters’ identified in s 349; to the extent that the judge held that the issue of the complainant’s embarrassment, dignity, or privacy did not cease to exist because she ceased to exist, he was wrong. Gutierrez submits that it is unlikely that the evidence would have led to a discriminatory belief or bias, prejudice, or hostility to the complainant on behalf of the jury as the evidence was only of one occasion and it could be said that the complainant attempted to resort to an extreme measure to overcome her then financial predicament.
Furthermore, Gutierrez submits that the evidence sought to be adduced does not fall within the definition of ‘sexual history evidence’ in s 340 because it is not evidence that tends to establish that the complainant was accustomed to engaging in sexual activities or had consented to sexual activity on another occasion. The evidence was not being relied upon to support an inference that the complainant was the ‘type of person’ who is more likely than not to have consented to the sexual activity the subject of charge 4, or as to her general disposition. Rather, the evidence sought to be adduced was intended to show that the complainant’s attitude was one of willingness to use sex for material gain.
(2) Crown response
The Crown submits that the prior conviction was plainly evidence that required leave under s 342 of the Act and that Gutierrez’s submission that this material does not relate to the sexual activities of the complainant must be rejected. It maintains that loitering for the purpose of sex work clearly relates to ‘sexual activities’.
Furthermore, the Crown submits that the evidence meets the definition of ‘sexual history evidence’, because it relates to the complainant freely agreeing to engage in sexual activity with another person albeit for the purpose of financial gain. Its use was therefore prohibited under s 343 if relied upon for the purpose of supporting a ‘type of person’ inference which was precisely the purpose for which it was sought to be adduced.
Analysis
It is useful to examine the history and purpose of s 342 and how it, and similar restrictions, have been applied.
(1) History and purpose of s 342
The interpretation of s 342 is to be guided by the principles set out in s 338 of the Act. Somewhat unusually for a statute, the Act contains a set of ‘guiding principles’ directed at the approach to be adopted towards the construction of those sections governing the evidence of ‘Witnesses’ in pt 8.2 (in which ss 342, 343 and 349 appear):
338 Guiding principles
It is the intention of Parliament that in interpreting and applying this Part in any criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—
(a) there is a high incidence of sexual violence within society; and
(b) sexual offences are significantly under-reported; and
(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and
(d) offenders are commonly known to their victims; and
(e) sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred.
The legislative history of s 342 demonstrates that the recognition that sexual offences are significantly under-reported (as expressed in s 338(b)) led to restrictions on the scope of permissible cross-examination and the exclusion or restriction of evidence that would otherwise be admissible.
Part 8.2 of the Act was introduced by s 50 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009. Part 8.2 is based on comparable provisions in the Evidence Act 1958. In particular, s 342 and s 349 of the Act are modelled on s 37A(1) of the Evidence Act.[19] Section 37A of the Evidence Act was originally introduced to give effect to recommendations made by the Law Reform Commissioner in a 1976 report.[20] The provision was subsequently strengthened to give effect to recommendations made by the Victorian Law Reform Commission following a review of the law of sexual offences.[21]
[19]In 2009, s 37A relevantly provided:
(1)Notwithstanding anything in this or any other Act or any rule of law to the contrary the following Rules shall apply in relation to any proceeding including a committal proceeding, that relates to a charge for a sexual offence, whether or not the proceeding relates to any other charges against the same or any other person and whether or not it is alleged that there are aggravating circumstances:
(1) The court shall forbid any question as to and shall not receive evidence of the general reputation of the complainant with respect to chastity.
(2) Without the leave of the court—
(a) the complainant shall not be cross-examined as to his or her sexual activities (whether consensual or non-consensual); and
(b) no evidence shall be admitted as to the sexual activities (whether consensual or non-consensual) of the complainant.
(3) The court shall not grant leave under Rule (2) unless—
(a) it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to —
(i)whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of his or her age and the number and nature of the questions that he or she is likely to be asked; and
(ii)the risk that the evidence may arouse discriminatory belief or bias, prejudice, sympathy or hostility in the jury; and
(iii)the need to respect the complainant’s personal dignity and privacy; and
(iv)the right of the accused person to fully answer and defend the charge; or
(b) …
(4) Evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities, or had freely agreed to engage in sexual activity with the accused person or another person other than the sexual activity to which the charge relates, shall not be regarded—
(a) as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or
(b) as being proper matter for cross-examination as to credit in the absence of special circumstances by reason of which it would be likely materially to impair confidence in the reliability of the evidence of the complainant.
[20]T W Smith (Law Reform Commissioner), Rape Prosecutions (Court Procedures and Rules of Evidence), Report No 5 (1976) 39 [89]. See also Rape Offences (Proceedings) Act 1976 and Explanatory Memorandum, Rape Offences (Proceedings) Bill 1976.
[21]Victorian Law Reform Commission, Sexual Offences: Final Report (2004) xxi.
Section 37A was strengthened as part of a suite of reforms[22] designed to encourage reporting of sexual offences against the background of a ‘widely held perception that the criminal justice system does not always deal fairly with complainants in sexual offence cases’.[23] This was considered to contribute to under-reporting.[24] There were ‘concerns about the fairness of the criminal justice system … [which] may discourage people from giving evidence against alleged offenders at committal and trial’.[25]
[22]Crimes (Sexual Offences) Act 2006 s 33.
[23]Victorian Law Reform Commission, Sexual Offences: Final Report (2004) xxi.
[24]Ibid xxii.
[25]Ibid.
As the purpose of the restrictions on evidence in pt 8.2 of the Act is to encourage victims to report sexual offences, and to respect and protect them when they do so, this would indicate that s 342 ought be interpreted broadly.[26] This would be so not only with respect to the understanding of what constitutes ‘sexual activities’ but also with respect to the interpretation of the nexus in s 342 that is required by the words ‘as to’.
(2) Authorities
[26]See Roberts v The Queen (2012) 226 A Crim R 452, 466–468 [57]–[63].
In R v Warrell[27] the applicant was convicted of rape. Both the applicant and complainant had intellectual disabilities. At trial, the key issue was consent. The applicant sought to cross-examine the complainant on her use at the relevant time of the contraceptive pill. The complainant appeared to have agreed to have sex with the applicant at some point in the future. However, she said that at the relevant time she did not consent to sex because she was concerned she might fall pregnant. The applicant sought leave to cross-examine the complainant about her use of the contraceptive pill under s 37A of the Evidence Act on the basis that the proposed cross-examination was ‘as to the sexual activities of the complainant’.The trial judge refused leave. Counsel for Warrell had conceded that the cross-examination about the oral contraceptive could be regarded as falling within s 37A.
[27][1993] 1 VR 671 (‘Warrell’).
The Court of Criminal Appeal[28] allowed the appeal. It concluded that the evidence had substantial relevance to a fact in issue, as it went directly to the issue of consent, and was a proper matter for cross-examination as to credit. On that basis the Court considered that, if leave had been required under s 37A, it ought to have been granted. Without undertaking any detailed analysis of the meaning of the expression ‘as to the sexual activities of the complainant’, the Court commented that it ‘may be debated’ whether, in any event, the cross-examination would have fallen under the scope of s 37A.[29] The Court also said, however, that counsel’s concession was appropriate.[30] It observed that the rule restricting evidence of the general reputation of a complainant with respect to chastity[31] was ‘clearly designed to exclude evidence suggestive of the existence of propensity on the part of a complainant to engage in sexual activities as well as to avoid the introduction of irrelevant and prejudicial material into the proceeding’.[32] The Court accepted that, in certain circumstances, cross-examination about the taking of contraceptives could fall foul of both aims:
It is not difficult to see how cross-examination with respect to the taking, perhaps over a period of time, of a contraceptive could carry both of these consequences. In our view, the approach of counsel on this question was both proper and appropriate.[33]
[28]That is, the Appeal Division of the Supreme Court of Victoria (as it was at that time).
[29]Warrell [1993] 1 VR 671, 684.
[30]Ibid 683.
[31]Rule (1) of s 37A(1).
[32]Warrell [1993] 1 VR 671, 683.
[33]Ibid.
In my view, Warrell is of limited assistance because, as the Court observed, much will depend upon the circumstances of the case. In any event, it does not support a narrow reading of s 342.
In Green (a pseudonym) v The Queen[34] the applicant was convicted by jury of four charges of sexual offences committed against his then stepdaughter between 2000 and 2009. At trial, the applicant sought to introduce into evidence a letter written by the complainant to herself. He also sought to cross-examine the complainant in relation to the contents of the letter. In the letter the complainant expressed animosity towards the applicant and expressed her personal thoughts and hopes for her relationship with her boyfriend, including whether she would engage in sexual activity with him.
[34][2015] VSCA 279 (‘Green’).
The trial judge did not admit the letter into evidence but he permitted cross-examination on those parts in which she expressed animosity towards the applicant but in which she had made no mention that he sexually abused her.
The trial judge noted that the part of the letter in which the complainant expressed her sexual feelings towards her boyfriend did not strictly fall within s 342 of the Act ‘but he considered that the tender of the letter, containing those expressions, would not be consistent with the intended purpose of those provisions’.[35] He was also not persuaded that that part of the letter was relevant.
[35]Ibid [25].
On appeal, this Court upheld the trial judge’s view that the ‘references in the letter to [her] boyfriend, and to her thoughts about having sexual relations with him, were irrelevant’.[36] There was nothing which a jury could reasonably regard as inconsistent between the complainant’s expression of sexual feelings for her boyfriend and the feelings of a teenager who had been abused by the applicant.[37] The Court suggested that it may have been preferable for the letter to have been tendered in evidence with the material relating to the boyfriend redacted.[38] There was no further discussion of the scope of s 342.
[36]Ibid [35].
[37]Ibid.
[38]Ibid [36].
Gutierrez invites this Court to infer, from Warrell and Green, that s 342 only applies to evidence about sexual activity that has actually occurred, rather than activity that merely implies the possibility of sexual activity. However, it is clear from the discussion above that neither case stands as authority for that proposition.
In Bull v The Queen[39] the appellants were charged with various sexual offences against the complainant that were alleged to have taken place over the course of a late-night visit by her to one of their homes. At trial, the appellants sought to elicit and adduce evidence of a telephone conversation between the complainant and them immediately preceding the complainant’s visit (and of earlier conversations which would have given the telephone conversation the meaning for which they contended). The defence case was that the complainant had consented to the group sexual activity. Defence counsel proposed to use evidence of the telephone conversation to demonstrate the sexual overtone of the context in which the complainant visited the appellants.
[39](2000) 201 CLR 443 (‘Bull’).
The trial judge refused leave on the ground that this evidence ‘related to the disposition of the complainant in sexual matters’ and was therefore prohibited under s 36BA of the Evidence Act 1906 (WA), which provides:[40]
[40]The term ‘defendant’ was subsequently replaced with ‘accused’ throughout the Evidence Act 1906 (WA) and other legislation under the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) s 82.
36BA Sexual disposition of complainant, evidence of
In proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of a defendant.
The trial judge also refused leave to admit evidence of the conversation because it ‘related to the sexual experiences of the complainant’, pursuant to s 36BC:
36BC Sexual experience of complainant, evidence of
(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 a defendant unless leave of the court has first been obtained on an 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.
The trial judge’s decision was upheld by the majority of the Western Australian Court of Criminal Appeal. The decision of the Court of Criminal Appeal was reversed by the High Court on appeal. In the High Court, the majority (McHugh, Gummow and Hayne JJ) held that s 36BC authorises the admissibility of evidence relating to sexual experiences even where it tends to prove the disposition of the complainant; that is, the apparently absolute prohibition in s 36BA is subject to the dictates of s 36BC. The evidence is admissible by a grant of leave or because the evidence forms part of the res gestae.
The majority held that the conversation was admissible on the ground that it tended to prove the complainant’s state of mind, that is, her reason for going to the house, and it was therefore relevant to the issue of consent.[41] They considered that the chain of relevance did not rely on ‘any impermissible intermediate step of a generalisation based upon the complainant’s sexual disposition, reputation or experiences’.[42]
[41]Bull (2000) 201 CLR 443, 478 [119].
[42]Ibid.
Gutierrez relies on Bull as support for the proposition that the term ‘evidence … as to the sexual activities ... of the complainant’ in s 342 of the Act should be read as meaning only evidence of sexual activities where the complainant was involved and where the activity actually occurred. He adverts to the understanding of the expression ‘sexual experiences’ adopted by the majority:
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. Moreover, without infringing the prohibition in s 36BC, to rebut a claim that the complainant had not had sexual intercourse before the events the subject of the charge, the defendant would seem able to adduce medical evidence that an examination of the hymen or anus indicated otherwise.[43]
[43]Ibid 461 [62] (emphasis added) (s 36B prohibited evidence relating to the ‘sexual reputation’ of the complainant).
In my view, Bull provides no support for Gutierrez. One can accept that evidence could be adduced of a complainant witnessing someone else’s sexual activity and that would not contravene the restriction in s 36BC of the Evidence Act (WA) in respect of the complainant’s sexual experiences, especially, as their Honours observe, the prohibition is focused upon sexual experiences of the complainant ‘with any person’ and not, therefore, as an onlooker. For a complainant to witness someone else’s sexual activity is not, without more, part of that complainant’s sexual experiences. The prohibition is only enlivened if the complainant is involved in the sexual activities.
The restriction imposed by s 342 is framed in different statutory language. There is no requirement that the complainant’s sexual activities be ‘with any person’, or, for that matter, ‘at any time’. There is no implicit requirement for the complainant to be involved in the activity in a manner that suggests that the evidence must be of sexual activity that has actually occurred at a time and with a person. On the contrary, the restriction in s 342 is much more general; all that is required is a connection between sexual activities of the complainant and the evidence.
Here the loitering offence was loitering in a public place ‘for the purpose of sex work’. The sex work was work to be carried out by the complainant. If carried out, it was clearly sexual activity of the complainant. The purpose for which the loitering occurred ‘marks’ the conduct in a sexual way; it is an essential element of the offence. Behaviour that would otherwise be lawful and innocuous is criminalised because of its purpose. In my view, there is a clear and sufficient nexus between the evidence of loitering for sex work and the sexual activities of the complainant; such evidence is evidence as to the sexual activities of the complainant.
Evidence of a conviction for sexualised conduct, that is, conduct with a sexual purpose, is quite different from the example given in Bull of witnessing but not being involved in the sexual activities of others. The example suggests that of a bystander, someone in an innocent third party relationship to the sexual activity being witnessed. This scenario is remote from the evidence of a person standing on a street being willing and available for sex in exchange for material/financial gain; that is, waiting around to perform sex work. Loitering for the purpose of carrying out sexual activity is, to my mind, clearly and closely related to sexual activity of the complainant regardless of whether the sexual activity actually takes place.
It is necessary to consider a further authority, R v Lear,[44] a decision of this Court. Lear involved an appeal against conviction and sentence for multiple counts of rape. The complainant was a 29-year-old woman who was hitchhiking home after dining and drinking in a pub. She was picked up by Lear, driven to an abandoned factory, held against her will and raped over a two to three hour period.
[44][1998] 1 VR 285 (‘Lear’).
At trial, defence counsel sought to cross-examine the complainant on a prior conviction for ‘loitering for the purposes of prostitution’.[45] He maintained there was no need for a grant of leave but sought a ruling under s 37A of the Evidence Act in case it was necessary. As mentioned,[46] s 37A provided the model for ss 342 and 349 of the Act. The trial judge refused to permit the cross-examination.
[45]The complainant had in fact been placed on probation for two years for this offence and no conviction had been recorded.
[46]See [51] above.
The defence case was that the complainant had robbed the accused and fabricated the rape to avoid the consequences. Counsel characterised the sex acts alleged by the complainant as ‘unusual’ and sought to cross-examine her to establish that it was through her history of sex work that she had the knowledge of such acts to be able to fabricate the allegations.
On appeal, Lear submitted that the trial judge’s ruling under s 37A was erroneous. The Court of Appeal refused leave to appeal against conviction.
Lear had submitted that the prior conviction for ‘loitering for the purposes of prostitution’ related to matters ‘one step removed’ from actual sexual activities because it did not necessarily involve actual sexual intercourse. He drew a comparison between the act of a man and woman going to bed and the act of sexual intercourse. Using that example, he sought to characterise ‘loitering for the purposes of sex work’ as a ‘preliminary’ activity distinct from sexual activities.
Phillips CJ considered that the prospective cross-examination would have related to the ‘general reputation of the complainant with respect to chastity’ and was therefore prohibited under r (1) of s 37A(1).[47]
[47]At the relevant time, r (1) of s 37A(1) of the Evidence Act read: ‘The court shall forbid any question as to and shall not receive evidence of the general reputation of the complainant with respect to chastity‘. See n 19 above.
Phillips JA concluded that cross-examining the complainant about her prior conviction of loitering for the purposes of prostitution would be to cross-examine her about her sexual activities. He focused upon the individual circumstances of the case where the relevance of the conviction was tied to knowledge of particular sexual activities and linked to an allegation of invention with respect to the rapes. He said:
[C]ounsel’s submission to the trial judge made it plain that the ‘conviction’ was regarded as relevant because of the knowledge it arguably imported of sexual activities (and of particular sexual activities) which, it was implied, would have been undertaken by the complainant. In those particular circumstances, to cross-examine the complainant about her previous ‘conviction’ was to cross-examine her about ‘sexual activities’ within the meaning of the section.[48]
[48]Lear [1998] 1 VR 285, 304.
He observed that it was unnecessary to decide whether s 37A would apply whenever cross-examination was proposed in relation to a complainant’s prior conviction for loitering for the purposes of prostitution; ‘it is enough that it was so in this case’.[49]
[49]Ibid.
Hedigan AJA agreed. In brief separate reasons his Honour expressed the view that leave was necessary under s 37A if cross-examination was to be permitted because ‘a sexual activity underpinned the “conviction”’.[50] He also considered that leave was properly refused:
Counsel for the defence may have believed that the better view was that he did not require leave under s 37A to put that prior, but it seems beyond doubt that he nevertheless applied. The court took the view, rightly in my judgment, that that leave was being sought in the context of subs. (1) r (2), that is, that it encompassed an application to cross-examine the complainant about her sexual activities because a sexual activity underpinned the ‘conviction’. The trial judge was not satisfied, under subs (1) r (3) that that evidence had substantial relevance to facts in issue, nor that it was a proper matter for cross-examination as to credit. He had a discretion to refuse leave and in my view exercised it correctly.[51]
[50]Ibid 311.
[51]Ibid.
In my view, and with great respect to Hedigan AJA, I consider that his Honour was correct to recognise that sexual activity underpins a conviction for loitering for prostitution, or sex work. In my view, this is so because the loitering offence has sexual activity as its object and purpose.
This construction is supported by the legislative history and the guiding principles which I have discussed above. The judge below was correct in his conclusion that s 342 applied and that the evidence of the complainant’s prior conviction for loitering for sex work could not be adduced without leave.
It is unnecessary to consider whether the evidence of the prior conviction would also fall within the definition of ‘sexual history evidence’.
(3) Should leave have been granted under s 349?
As mentioned above,[52] Gutierrez submitted, in the alternative, that if the judge was correct in concluding that s 342 applied, he nevertheless fell into error in the exercise of his discretion under s 349 in refusing to grant leave.
[52]See [43] above.
It would be fair to say that this alternative submission was pressed only faintly.
To establish that the judge’s discretion miscarried it is necessary for Gutierrez to establish a House v The King[53] error; that is, he must show that the judge acted upon a wrong principle of law, took into account irrelevant considerations, ignored relevant considerations, mistook the facts, or otherwise that the result was unreasonable or plainly unjust. There was nothing to suggest that the judge failed to apply the proper principles or ignored a factor he should have considered. The submissions of Gutierrez were largely directed at the last category of error identified in House together with the submission that the judge erred by taking into account an irrelevant consideration, namely, the dignity and privacy of the complainant, given that she was dead.
[53](1936) 55 CLR 499 (‘House’).
Gutierrez submits that the evidence had substantial relevance to the issue of consent. The difficulty for him is that the basis upon which he seeks to establish the relevant connection is by arguing that the complainant’s previous willingness to engage in sexual activity for material gain reveals that she would be likely to be willing to do this again and this form of reasoning is precisely the form of propensity or ‘type of person’ reasoning which pt 8.2 is directed against. While this type of reasoning is expressly prohibited under s 343, in respect of sexual history evidence, it is more generally at odds with the guiding principles governing pt 8.2 and the legislative history of the Act, namely, as a statutory response to encourage reporting of sexual offences against a background of under-reporting due to a concern that the justice system acts unfairly to complainants.[54] This would not demand its exclusion. However, the real difficulty is that Gutierrez was unable to identify a proper basis upon which the judge could conclude that the prior conviction had a substantial relevance to a fact in issue. Moreover, it is precisely the form of reasoning that, as the judge recognised, depends upon discriminatory belief, prejudice, or bias, a factor telling against a grant of leave, pursuant to s 349(b). Gutierrez’s response that any prejudice could be overcome by the jury being told that the complainant resorted to extreme measures to overcome her financial predicament invites nothing more than speculation.
[54]See [49]–[53] above.
Furthermore, I consider the judge was correct to recognise that, in this context, the personal dignity and privacy of a person do not cease upon a person’s death. The nature of sexual offences means, almost inevitably, that the contested evidence will be between what a complainant says took place and what the accused says took place; typically it is a dispute between what ‘he said’/‘she said’. In this context, the evidence of an accused will almost invariably impact upon a complainant’s privacy and dignity. The Legislature has determined, consistently with the legislative history of the Act, that respect for a complainant’s privacy and dignity are relevant in determining what evidence will go before the jury in an assessment of whether leave should be granted. That protection is to be afforded as a means of encouraging reporting of sexual offences. It would be inconsistent with that legislative intention for that protection not to be afforded where a complainant has died after reporting the offence.
In my view, the judge did not err in his discretionary refusal of leave to adduce evidence of the complainant’s prior conviction for loitering for the purpose of sex work.
Conclusion
Given the complexity of the matter, I would grant leave to appeal.
However, I would dismiss the appeal.
BEACH JA:
I have had the advantage of reading in draft form the reasons of Tate JA and the reasons of McLeish JA. I agree with Tate JA, for the reasons she gives, that leave to appeal should be granted but that the appeal should be dismissed. I also agree with the additional observations made by McLeish JA in his reasons for judgment.
McLEISH JA:
I have had the advantage of reading in draft form the reasons of Tate JA. I agree with her that leave to appeal should be granted but that the appeal should be dismissed. Subject to what follows, I do so for the reasons which Tate JA gives.
As Tate JA explains, s 338 of the Criminal Procedure Act 2009 (‘the Act’) sets out guiding principles to which the courts are to have regard in applying pt 8.2 of the Act. The provisions of pt 8.2 are to be construed so as to give effect to its purpose, including as illuminated by s 338.[55] The purpose of encouraging victims to report sexual offences, and to respect and protect them when they do so, can therefore be said to indicate that the provisions of pt 8.2 limiting the admissibility of evidence are to be interpreted broadly.
[55]Roberts v The Queen (2012) 226 A Crim R 452, 466–8 [60]–[63].
As s 338 specifies, the guiding principles in s 338 are also relevant when a court is applying the provisions of pt 8.2 to a particular case. However, it would not be appropriate, when applying the provisions governing the exclusion of evidence, as properly construed, to allow the guiding principles in s 338 to swamp the consideration of other relevant factors. In particular, s 349 requires a court considering whether to grant leave under s 342 to determine whether or not the evidence has ‘substantial relevance to a fact in issue’ and, if it does, to take account of
matters including the probative value of the evidence and the right of the accused to fully answer and defend the charge.
I agree with Tate JA that the type of reasoning sought to be relied on by the defence in the present case is of the kind of propensity or ‘type of person’ evidence expressly prohibited in respect of sexual history evidence as defined in s 340. I also agree that it is not necessary to decide whether the evidence in this case is sexual history evidence so as to be excluded under s 343. It may be assumed for present purposes that it is not. On that assumption, the fact that the evidence is a form of propensity or ‘type of person’ evidence, by itself, does not preclude it from being admitted by leave of the court under s 342. The scheme of pt 8.2 is that, if evidence falls outside the realm of ‘sexual history evidence’, it might yet be admissible. The purposes of pt 8.2 do not deny that it is open to grant leave in respect of such evidence under s 342.
For that reason, in a case where the evidence is not ‘sexual history evidence’, the nature of the evidence as propensity or ‘type of person’ evidence is only a factor telling against the grant of leave under s 342. The evidence may yet have substantial relevance to a fact in issue and probative value that would weigh in favour of granting leave, as s 349(a) and (d) recognise. In the present case, leave was rightly refused in my opinion because, as the trial judge reasoned, the evidence had such a tenuous connection to the criminal conduct alleged that it would not be likely materially to impair confidence in the reliability of the complainant’s evidence. As such, it lacked the substantial relevance to a fact in issue required by s 349 of the Act.
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