R v RB; Attorney-General (NSW) As Intervenor

[2019] NSWDC 368

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368
Hearing dates:	17-19 June 2019
Date of orders:	02 August 2019
Decision date:	02 August 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	1. The evidence is relevant, probative of a fact in issue and admissible. 2. The evidence discloses a tendency on the part of the complainant - that is to make false sexual allegations. The tendency is significantly probative and is admissible. 3. The exclusionary rule of s 293 operates and catches the evidence. 4. The evidence does not qualify as an exception to the exclusionary rule under s 293(4). 5. s 293 of the Criminal Procedure Act is valid. 6. I decline to permanently stay the proceedings.
Catchwords:	CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to lack of sexual experience — Admissibility of evidence related to false complaints — Exceptions to exclusion in s 293 Criminal Procedure Act CONSTITUTIONAL LAW — Validity of s 293 Criminal Procedure Act CRIMINAL PROCEDURE — Stay of proceedings — Inherent power to prevent abuse of process
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995 Interpretation Act 1987 Judiciary Act 1903
Cases Cited:	Adams v R [2018] NSWCCA 303 Allan v R [2017] NSWCCA 6 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 Decision Restricted [2019] NSWCCA 30 Dimian v R (1995) 83 A Crim R 358 GEH v R [2012] NSWCCA 150 Graham v Minister for Immigration and Border Protection (2017) 91 ALJR 890 Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532 Hughes v R [2017] HCA 20 JWM v R [2014] NSWCCA 248 K S v Veitch (No 2) (2012) 84 NSWLR 174 Knight v New South Wales (2017) 91 ALJR 824 M v R (1993) 67 A Crim R 549 Nicholas v The Queen (1998) 193 CLR 173 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Bernthaler (NSWCCA unreported 17 December 1993) R v Burton [2013] NSWCCA 335 R v Ford [2009] NSWCCA 306 R v Funderburk (1990) 1 WLR 587 R v Morgan (1993) 30 NSWLR 543 R v PJE (Court of Criminal Appeal unreported 9 October 1995) R v Rahame [2004] NSWCCA 233 R v White (1989) 18 NSWLR 332 Taleb v R [2015] NSWCCA 105
Texts Cited:	Hansard, No 47
Category:	Procedural and other rulings
Parties:	Regina (Crown) Attorney-General (NSW) (Intervenor) RB (Accused)
Representation:	Counsel: M Kumar (Crown) K Pham (Attorney-General NSW) F Graham (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Crown Solicitors (Attorney-General NSW) Aboriginal Legal Service NSW/ACT (Accused)
File Number(s):	2017/56625
Publication restriction:	Any identifiers of accused and complainant

Judgment

Introduction

1. The applicant has been arraigned and has pleaded not guilty to the following indictment:

• Count 1 - on about 14 February 2014 at Deniliquin in the State of New South Wales assaulted JQ thereby occasioning to her actual bodily harm contrary to s 59(1) Crimes Act 1900.

• Count 2 - between 25 May 2014 and 29 May 2014 at Albury in the State of New South Wales did have sexual intercourse with JQ without her consent and knowing that she was not consenting to the sexual intercourse contrary to s 61I Crimes Act 1900.

• Count 3 - on or about 25 August 2014 at Deniliquin the State of New South Wales did have sexual intercourse with JQ without her consent and knowing that she was not consenting to the sexual intercourse contrary to s 61I Crimes Act 1900.

• Count 4 - on or about 31 August 2014 at Albury in the State of New South Wales did have sexual intercourse with JQ without her consent and knowing that she was not consenting to that sexual intercourse contrary to s 61I Crimes Act 1900.

2. The allegations made against the applicant are as follows:

Count 1 -assault occasion actual bodily harm

3. On 14 February 2014 the complainant was staying in Deniliquin at the applicant’s mother’s house. They were in the spare room and the applicant was angry. The complainant was on the bed. The applicant went over and punched her on the right-hand side of the head near the temple. Afterward she had ongoing pain in her head and in her ear. She was unable to hear out of her left ear for about a week. She suffered ongoing headaches after the assault.

4. The complainant moved into a house in West Albury and sometime later the applicant also moved in.

Count 2 - sexual intercourse without consent

5. On or about 28 May 2014 the complainant and the applicant were at a home in Albury. The complainant was having an afternoon nap. She woke up to the accused touching her. She pushed his hand away and said “don’t, I’m tired and have a headache”. She went to the toilet and was washing her hands in the bathroom. The accused came in behind her, closed the door and started kissing her neck. He told her he didn’t feel loved anymore. The complainant said she did love him. The applicant told her to “show” him. The complainant told him she had a headache. The applicant pushed her against the sink. He then pushed her to the ground and made her perform oral sex on him.

6. The complainant started to gag. This angered the applicant and he pushed her against the bath tub. He put his penis into her anus and had intercourse. Whilst he was doing so the complainant was crying.

7. After some time the accused carried the complainant to the bed. He had penile vaginal intercourse with her as he lay on top of her. The complainant kept saying don’t. He tried to put his penis into her from behind but the complainant screamed. He then rolled over so that the complainant was on top of him. He used his hand on her throat to move her up and down on top of him.

Count 3-sexual intercourse without consent

8. On 25 August 2014 the complainant and the applicant were staying with his mother in Deniliquin. They went out to the RSL club for dinner. When they got back to the house the complainant went to bed. During the night she was woken by the applicant who had hold of her hand and had put it on his penis.

9. The complainant had her period and told him to “Fuck off”.

10. She went back to sleep but was woken sometime later to the applicant on top of her. He had his hand over her mouth so she couldn’t breathe. He said “I have to just shove it in.” He pulled her pants down and put his penis into her vagina. He had penile vaginal intercourse with her until he ejaculated.

11. Afterwards the applicant said “I’m sorry, I don’t know what came over me I couldn’t help it”.

12. The complainant was crying. The applicant rolled over and went to sleep.

Count 4-sexual intercourse without consent

13. On 31 August 2014 the complainant and the applicant were home in Albury. They had been arguing all day because the complainant had told the applicant she wanted to leave him.

14. Later that night the complainant was in bed asleep when the applicant came in and started rubbing her. The complainant told him not to. He was lying behind her on the bed. He put his hand around her throat from behind and tried to put his penis into her anus. The complainant screamed and pulled away but he managed to get his penis into her vagina. The complainant was screaming and crying.

15. The applicant took his hand off her throat and started touching her and said sorry. He put his fingers into her vagina. He then put her hand onto his penis and made her masturbate him. The complainant pretended to enjoy it at the time in an effort to make it stop.

16. The following day was 1 September 2014. The complainant and the applicant were arguing all day because she wanted to leave. At one stage the applicant had his hands around the complainant’s throat and pushed her onto the couch. The applicant threatened to kill her. As she lay there she got her phone and called 000.

17. Police arrive sometime later and the accused was arrested. He was later released after being charged with offences relating to that day.

18. On 17 September 2014 the complainant spoke to police at Albury about the events in May and August. At that time she could not go ahead with the matter.

19. In November 2014 the complainant moved to Queensland. On 1 April 2016 she made a statement in relation to the matter. On Wednesday, 22 February 2017 the applicant was arrested. He participated in an electronically recorded interview. He denied the allegations. He was charged.

20. It is asserted by the applicant that the complainant is a “sexual fantasist” who is all too willing to make allegations against the applicant. The applicant’s lawyers rely on 12 examples of false complaints made by the complainant.

THE APPLICATION

21. By motion dated 2 November 2018 the applicant seeks the following:

22. (1) An advance ruling or finding pursuant to section 192A evidence act 1995 (NSW) that 293 Criminal Procedure Act 1986 (NSW) is constitutionally invalid.

23. In part as a consequence of order one, or in the alternative to order one: (2) An advance ruling or finding pursuant to section 192A Evidence Act 1995 (NSW) that the evidence proposed to be adduced by the accused in relation to the complainant, JQ (which may be broadly described as evidence relating to the complainant fabricating sexual assault and assault complaints against males), is admissible, including but not limited to being used for a tendency purpose.

24. In the alternative to orders one and two: (3) The proceedings against the accused be permanently stayed. 

25. In the alternative to orders one, two and three: (3A) An advance ruling or finding pursuant to section 192A Evidence Act 1995 (NSW) that the evidence proposed to be adduced by the Crown from the complainant, JQ and from the complainant’s friend JS and the medical practitioners (“complaint witnesses”) is inadmissible, pursuant to section 135 and/or section 137 Evidence Act 1995 (NSW).

26. 3A of the motion was not pressed. There are two affidavits in support of the notice of motion. They were from SG, the applicant’s solicitor dated 31 August 2018 and 17 June 2019.

ISSUES FOR DETERMINATION

27. The issues for determination are as follows;

1. Is the proposed evidence relevant?

2. Is the proposed evidence tendency evidence?

3. If yes does the exclusionary rule of evidence established by s 293(3) of the criminal procedure act operate?

4. If yes does the proposed evidence qualify as an exception to the exclusionary rule in terms of s 293(4)?

5. If no is s 293 of the Criminal Procedure Act valid?

6. Subject to the determination of the above issues is a permanent stay available and should it be granted in this case?

THE PROPOSED EVIDENCE OF FALSE COMPLAINTS

28. The applicant wishes to adduce the proposed evidence by cross-examination of the complainant and by adducing evidence from another source or sources, particularly documentary evidence from Victoria police and Victoria Courts.

29. The proposed evidence of false complaint has been summarised by the applicant’s lawyers and is as follows;

1. 2001: complainant told school friend MM and “notifier” (at school) that she had been “sexually assaulted”; when asked more by “notifier”, giggled and walked away.

2. 2001: complainant told school friend E that her ex-boyfriend would find her, rape her and bash her-on a number of occasions; subsequently said it was “Tim” not “Clint”.

3. 2001: complainant told school friend E that she had been “gang raped”.

4. 2001: complainant gave notes to 2 other schoolgirls (subsequently provided to “notifier”) saying she had been raped and bashed the night before. Mother said she was with her all evening and it could not have happened.

5. 2001: notifier spoke to complainant to gauge her interest in police involvement. Complainant denied telling anybody about the sexual abuse and denied writing any letters. The denial was so strong that the notifier felt compelled to show the complainant one of the letters. Complainant responded: “oh, didn’t happen that way”.

6. 2001: complainant then stated to notifier that the perpetrator was a DS (from a different school). Notifier’s inquiries revealed no person with that name or similar had ever attended that school.

7. Mid 2002: complainant gave a long letter to school friend HC stating Daniel and Leon had bashed her up and raped her. Complainant subsequently told HC that Leon is S. HC was not sure if what JQ told her about S or anything else was true because what she had told her at different times didn’t make sense.

8. Mid 2002: complainant told TB that a person named Craig or similar had “bashed her up and stuff” (in context, “and stuff” may imply sexual violence).

9. October 2002: complainant made a complaint to police that S had sexually assaulted her on a number of occasions. Resulted in police investigation. Numerous inconsistencies in complainant’s account. S interviewed and vehemently denied the allegations and indicated willingness to provide DNA to clear himself. Mother stated that it could not have happened because the complainant was not working for S at the relevant time. In course of investigation relating to S, complainant said to police that she had never previously made any accusations of sexual abuse against anyone (contrary to 1-8 above).

10. In course of investigation into allegations against S, complainant told police that a number of boys have had sex with her at primary School.

11. Fabricated letter dated August 2002 containing sexual assault allegations against S and other unidentified males. Police inquiries revealed contents to be fabricated. Complainant admitted to police that it was “all made up” and fabricated.

12. 2009: complainant made false allegation of sexual assault to police against “Leon”. Complaint included that he forcibly pulled at and opened the security door to gain entry to her home at 1 AM. Once inside “Leon” chased the complainant around the house, struck her to the head, grabbed and carried her to a spare bedroom where he vaginally raped her from behind with an unknown object. “Leon” continually cursed and verbally degraded the victim before leaving. Complainant subsequently pleaded guilty to offence of make false report. In conferences with the Crown in August 2018, the complainant appeared to indicate that Leon was a client of hers and she was happy to admit that she did the wrong thing in making a false complaint against him.

RELEVANCE

30. Originally the Director contended that the evidence was not relevant. During the course of argument the Director conceded that if the complaints were false then the evidence is capable of establishing that the complainant had made false complaints and therefore the evidence is relevant: see [3] of the Directors submissions dated 19 June 2019. The Director cited Adams v R [2018] NSWCCA 303 at [202]. The Director did not accept that no.10 (Telling police that a number of boys had sex with her in primary school) was relevant. I fail to understand such an argument in light of the concessions made to matters 1-9 and 11-12.

31. If the Director had not made the concession I would have found the evidence to be relevant, probative and admissible. Despite the Director’s submission I find matter no.10 to be relevant and admissible.

32. It was relevant because if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings: s 55 Evidence Act.

33. A fact in issue is whether the complainant has made false allegations against the applicant. To paraphrase the words of Justice Gaegler, she said it before, she has a propensity to do this sort of thing again; the likelihood is that she said it again on the occasion in issue: Hughes v R [2017] HCA 20, Gaegler J at [70].

TENDENCY

34. The applicant’s solicitors have served a tendency notice pursuant to section 97 of the Evidence Act. The notice is dated 21 August 2018. The tendency sought to be proved is JQ’s tendency to act in a particular way namely;

“To fabricate allegations of sexual assault against males.

To fabricate allegations of sexual assault against males when speaking to friends.

To fabricate allegations of sexual assault against males when speaking to health professionals.

To fabricate allegations of sexual assault against males in reports or complaints to police.

To fabricate allegations of assault against males.

To fabricate allegations of assault against males when speaking to friends.

To fabricate allegations of assault against males when speaking to health professionals.

To fabricate allegations of assault against males in reports or complaints to police.”

STATUTORY PROVISIONS

35. Section 97 (1) of the Evidence Act provides:

“(1) Evidence of character reputation or conduct of a person or a tendency that a person has or had is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way or to have a particular state of mind unless

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce evidence has significant probative value.”

THE MEANING OF PROBATIVE VALUE AND SIGNIFICANT PROBATIVE VALUE

36. The dictionary to the act defines probative value of evidence as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings”. Significant probative value has been interpreted as connoting something more than mere relevance but something less than a substantial degree of relevance.

37. The majority in Hughes (supra) adopted at [40] the following description of significant probative value from Campbell JA’s judgment in R v Ford [2009] NSWCCA 306, “the disputed evidence should make more likely to a significant extent the facts that make up the elements of the offence charged”.

38. The determination whether probative value is significant is an evaluative judgment about which minds might differ. As the majority in Hughes noted at [16]:

“The open textured nature of an enquiry into whether the court thinks that the probative value of the evidence is significant means it is inevitable that reasonable minds might reach different conclusions”.

39. The majority in Hughes made clear that the determination whether tendency evidence and significant probative value requires two separate evaluations: first, whether the evidence supports the asserted tendency and secondly, whether the asserted tendency supports the elements of the offence. The majority set out at [41]:

“The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.”

40. Section 101 does not fall for consideration in this case as it is evidence to be adduced by the defence.

41. In Decision Restricted [2019] NSWCCA 30, it was held by Adamson J, with whom the other members of the court agreed that a direction that the jury needed to be satisfied that the defence tendency evidence was established as “likely” was erroneous in that the accused did not need to prove it to a particular standard and in fact bore no onus of proof at all.

40. I am satisfied that the evidence supports the asserted tendency (to fabricate allegations) and that the asserted tendency goes directly to the elements of the offence namely; is the complainant an honest and reliable witness in light of her tendency to fabricate allegations. As Gaegler J in Hughes (supra) at [70] succinctly put, “she said it before, she has a propensity to do this sort of thing again; the likelihood is that she said it again on the occasion in issue.”

41. The evidence has significant probative value and is admissible as tendency evidence.

SECTION 293 CRIMINAL PROCEDURE ACT 1986 (NSW)

44. Simpson J in R v Burton [2013] NSWCCA 335 at [48] described section 293 as a complex provision. I agree with her Honour’s observation. It applies to proceedings in respect to a prescribed sexual offence (s 293(1)), of which sexual intercourse without consent is one. It establishes an exclusionary rule.

45. Evidence of a false complaint of sexual assault is caught by the exclusionary rules established by s 293(3). This is because such a matter is evidence that discloses or implies that the complainant has a lack of sexual experience or has not taken part in sexual activity.

46. The applicant concedes that the proposed evidence engages the terms of s 293.

47. To be admitted such evidence has to qualify as an exception to the exclusionary rule in terms of the statute under s 293(4): Adams v R [2018] NSWCCA 303 at [163].

48. The object of the legislation was considered in R v White (1989) 18 NSWLR 332, where the following was said of the predecessor section 409B at 340:

“The evident purpose of the legislation is to limit the circumstances in which complainants in sexual assault cases will have to endure having what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court.”

49. In R v Burton [2013] NSWCCA 335 Simpson J (RA Hulme J and Barr AJ agreeing) stated at [70]:

“… Section 293 was introduced into the legislation (originally as s409B of the Crimes Act 1900) for the specific purpose of putting an end to offensive and demeaning cross-examination that proceeded on the basis that evidence of consent by a person (then invariably female) to sexual engagement with one person (Person A) provided the foundation for an inference that the person also consented to sexual engagement with another person (Person B). That process of reasoning has been banned from the criminal courts, first by s409B of the Crimes Act, and subsequently by section 293 of the Criminal Procedure Act…”

50. s 293 of the Criminal Procedure Act is in the following terms:

“293 Admissibility of evidence relating to sexual experience

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

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

3. Evidence that discloses or implies:

1. that the complainant has or may have had sexual experience or a lack of sexual experience, or

2. has or may have taken part or not taken part in any sexual activity, is inadmissible.

4. Subsection (3) does not apply:

1. if the evidence:

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

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

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

3. if:

1. the accused person is alleged to have had sexual intercourse (as defined in section 61H(1) of the crimes act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and

2. the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,

4. if the evidence is relevant to:

1. whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or

2. whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,

5. if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),

6. if the evidence has been given by the complainant in cross- examination by or on behalf of the accused person, being evidence given in answer to a question may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

...   

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

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

(9)   (Repealed).”

REVIEW OF AUTHORITIES

M v R (1993) 67 A Crim R 549

51. The appeal dealt with section 409B of the Crimes Act. That section proscribed the calling of evidence relating to the sexual reputation of the complainant and proscribed evidence which discloses or implies that the complainant has or may have had sexual experience or lack of sexual experience or has or may have taken part or not taken part in any sexual activity except in six exceptional situations precisely described in the section.

52. Counsel for the appellant at the trial had sought to establish that the complainant was a “sexual fantasist” who was “all too willing to make allegations”. It was sought to elicit by cross-examination of the complainant and by evidence in chief from other witnesses that during or shortly after the period during which the offences charged were alleged to have occurred, the complainant had claimed that male members of her family including her father where having sexual intercourse with her and those claims were wholly untrue.

53. The judgment of Allen J, with whom Gleeson CJ and Meagher JA agreed, demonstrated that upon its proper construction section 409B renders such evidence inadmissible. The section enacted a blanket prohibition. To that prohibition the only exceptions are those specifically stated.

R v Bernthaler (NSWCCA unreported 17 December 1993)

54. Trial counsel for the accused was permitted to put to the complainant in cross examination, questions tending to show that she had previously falsely alleged that she had been the victim of sexual abuse as a child, of assault, of rape and of having been rejected by and excluded from the home of her parents.

55. Counsel sought to adduce evidence from other witnesses to show that the complainant had alleged to them that she had as a child being sexually abused, and had been the victim of rape. Taking the view that those matters went only to credit, his Honour ruled that counsel for the appellant might not lead evidence to establish the truth of the matters denied by the complainant. His Honour applied the well-known rule of common law that evidence cannot be adduced to contradict the denials of a witness in cross examination on matters going to collateral issues affecting credit only.

56. The court reviewed R v Funderburk (1990) 1 WLR 587. In Funderburk, the Court of Appeal, Criminal Division, pointed out where in the course of a trial of a person accused of a crime of a sexual nature the issue of whether sexual intercourse have taken place between two persons in private was disputed, the difference between questions going to credibility and questions going to an issue in the case was reduced to vanishing point, and cross examination which might on a narrow view be thought to go to credit only might be seen on a broader view to involve very much the fundamental issue in the case.

57. Badgery-Parker J with Ireland J agreeing found it was unnecessary to consider the application of the principle because “the evidence sought to be adduced of false complaints of sexual assault was in any event inadmissible” by reason of section 409B and relied upon what was said in R v M (supra).

R v Burton [2013] NSWCCA 335

58. An appeal was brought by the Crown under section 5F of the Criminal Appeal Act 1912 (NSW) against certain pre-trial evidentiary rulings. The Crown case was that the complainant had fallen asleep on the respondent’s yacht and woke up to him performing cunnilingus on her. He was charged with sexual assault.

59. The trial judge ruled that evidence to be given by a witness who was a friend of both the complainant and the respondent was admissible. His evidence was that, earlier in the night of the offence and whilst at Kings Cross, the complainant had exhibited sexual interest in a man that she met at a bar. That man did not reciprocate those feelings. Later in the evening, when the complainant saw that man at a “gentlemen’s club” with “a couple of hostesses”, she said to the witness, “why would he go with them when he could have had me for free?” The trial judge ruled that this was admissible.

60. Simpson J with whom RA Hulme J and Barr J agreed, held at[62] that the starting point for determining the admissibility of evidence is relevance under section 56 of the Evidence Act 1995 (NSW). In holding that the evidence was irrelevant, her Honour stated:

“That the complainant had exhibited sexual interest in another man (whether or not at or near the time the offence is alleged to have been committed) is irrelevant to any question concerning her consent to sexual engagement with the respondent.”

61. Her Honour then went on to find that section 293 did not arise for consideration because the evidence was not relevant.

Dimian v R (1995) 83 A Crim R 358

62. The appellant was charged with a number of sexual assaults. The complainant in a police statement disclosed that she had had sexual intercourse with another man earlier the same evening. She asserted that it had been consensual. Application was made by the accused pursuant to section 409B of the Crimes Act 1900 for leave to cross-examine the complainant in relation to the earlier episode. Leave was refused. It was held that the evidence was admissible pursuant to s 409B(3)(c) and leave to cross-examine should have been granted.

63. The complainant was in a dishevelled and distressed state. It was held that cross-examination should have been permitted in an endeavour to show that the earlier sexual intercourse-whether consensual or otherwise-had been the cause of her later distress, dishevelment and injuries. The court gave a broad interpretation of the meaning of injury in s 409B(3)(c)(i)(ii). There was also a close temporal connection between events.

R v Rahame [2004] NSWCCA 233

64. The appellant’s appeal against convictions was allowed. The Crown case was that the appellant had skilfully seduced the complainant into a sexual relationship. She had then been corrupted by him by her introduction to drug abuse and had then been strong- armed by him into working as a prostitute in a brothel conducted by him and members of his family.

65. The trial judge refused leave to cross-examine her about her alleged prior experience as a prostitute in Newcastle.

66. The court took the view that there was a clearly discernible set of circumstances of the kind contemplated by the statute. That set of circumstances, if accepted by the jury, did not go only to the credit in a narrow and pedantic sense of the complainant herself. It went to the very heart of the facts in issue at the trial: [59]. The whole of the rejected material touching upon the alleged sexual experience of the complainant was admissible: [61].

Allan v R [2017] NSWCCA 6

67. Evidence of false complaints by the complainant was ruled inadmissible by the trial judge. In arguing for the admissibility of the evidence, the applicant had relied on s 293(6), specifically that the disclosure by the crown that the complainant was a prostitute triggered the operation of the section. Harrison J (Gleeson JA agreeing) found that the nature of the evidence sought to be adduced was arguably important in the assessment of whether the accused would be unfairly prejudiced if cross-examination were not permitted. His Honour found that the evidence was material that could, if allowed, go directly to the credibility of the complainant in a case in which the complainant’s current complaints were denied. It therefore followed, that the accused would be likely to be unfairly prejudiced if the complainant could not be cross examined on such matters.

68. However, the material did fall afoul of s 293 and did not fall under the proposed exception in s 293(6). His Honour found there was not the required nexus between the Crown’s specific disclosure of the fact the complainant was a prostitute and the putative prejudice to the applicant in the inability to cross-examine about allegations of false complaints about sexual assault. Rather, the required nexus was in fact between the disclosure of the fact the complainant was a prostitute and any prejudice suffered by an inability to cross-examine the complainant about that fact. The making of allegedly false complaints of previous sexual assault did not arise in relation to the disclosure that the complainant was a prostitute or even by implication from it.

R v White (1989) 18 NSWLR 332

69. The accused was charged with having sexual intercourse without consent. The trial judge refused to permit cross-examination in respect of a conversation between the complainant and the accused just prior to the offence in which the complainant told the accused that her former boyfriend broke off their relationship as a result of finding her in bed with another man.

70. The Court of Criminal Appeal (Gleeson CJ, Carruthers and Badgery-Parker JJ) held that the evidence of the conversation fell within the exclusionary provision of s 409B of the Crimes Act as the evidence disclosed prior sexual activity. The court found what attracted the exclusion was the information or imputation which the evidence could convey to someone who reads or hears it.

71. The Court found that the conversation itself did not constitute sexual activity so as to be admissible within the exception in s 409B(3)(a)(i) and (ii). The Court also found that as there was no “relationship” between the applicant and the complainant, the evidence did not fall under the exception found in s 409B(3)(b)

R v Edwards [2015] NSWCCA 24

72. The Crown sought to adduce evidence that the complainants, 5 boys aged between 10 and 14 had prior extensive sexual experience with several other adult males known to the accused, and that the accused had knowledge of this. In particular the Crown alleged the accused was able to engage in sexual acts with the complainants without the need to groom them further. The Crown argued that evidence of the prior sexual acts went to explain the willingness of several of the complainants to engage in sexual activities with the accused.

73. The trial judge disallowed the evidence as he was not satisfied it fell within the exception under s 293(4)(a)(ii). In particular, his Honour had found that the sexual experience sought to be admitted did not form part of a connected set of circumstances in which the sexual offences alleged against the accused were committed. His Honour further found that there was in any event real danger the jury might misuse the evidence and indicated he would have also rejected it pursuant to s 137 of the Evidence Act.

74. In allowing the appeal Harrison J (Hoeben CJ at CL and McCallum J agreeing) found that consistent with his views in GEH v R, the complainants’ sexual experience, that is their historical engagement in sexual activity over some years, was necessarily their existing state of sexual experience at or about the time of the alleged offences occurred, and that this satisfied the temporal requirements of s 293(4)(a)(i).

75. As regards to the second limb’s requirements of a connected set of circumstances, his Honour stated:

“The term “connected” is not defined at all, and so its meaning is not confined to particularly close circumstantial or factual situations limited by reference to a specified range or class of participants or activities in which they may be involved. The evidence need only be of events allegedly forming a part of a connected set of circumstances.”

76. His Honour found the complainants’ sexual experience was clearly evidence of events alleged to form part of a connected set of circumstances and that the sexual experience was directly referable to a series of events that actually form part of the circumstances in which the alleged offences occurred. This was contrasted to evidence that did not merely relate to the sexual experience of the complainants with individuals unconnected to the accused or in isolated or unique circumstances.

GEH v R [2012] NSWCCA 150

77. The appeal concerned evidence sought to be put to the complainant in cross-examination regarding the complainant’s alleged affair with a friend’s father some 8-15 months after the alleged offences had occurred and which was rejected by the trial judge.

78. The appeal was dismissed as the proposed evidence did not fall within the exclusion s 293(4)(b). Basten JA said a number of common characteristics do not render two events which occurred eight months apart to be a connected set of circumstances. His Honour did not find it necessary in the present circumstances to consider what is encompassed by the phrases "sexual experience" and "lack of sexual experience", as compared to sexual activities or lack thereof. An event which occurred (or did not occur) several months after the alleged offences could not properly be understood as within the sexual experience of the complainant at the time of either offence. However, it may be doubted that the reference to "experience" was intended to encompass a state of understanding, rather than a form of activity, possibly seeking to distinguish the passive from the active role.

79. Harrison J (Beech-Jones J agreeing) said it was a mistake to attempt to connect events as part of a set of circumstances by reference to the fact the events are similar. The similarities did not inform the question of whether or not events form part of a connected set of circumstances.

80. Beech-Jones J added that in the cases reviewed by Harrison J, where evidence was found to fall within the exception (in s 293(4)), the evidence was of some ‘event’ that in each case found to be so connected to the circumstances of the offence that it bore on the objective likelihood of the offence having been committed. His Honour also noted that evidence that a complainant has given an inconsistent version of the events the subject of the offence would fall within the exclusion in s 293(4).

R v Morgan (1993) 30 NSWLR 543

81. The trial judge refused to allow cross examination of the complainant on her sexual activity after the offence, pursuant to s 409B(3)(a) and found that the material sought to be questioned, in this case, questions to the complainant about her having sexual intercourse with her boyfriend between 1-2 hours after the offence, could not be said to be part of a connected set of circumstances in which the alleged rape was committed.

81. Mahoney JA (Gleeson CJ and Sully J agreeing) allowed the appeal and found that the subsequent intercourse could be seen by the Jury as making the occurrence of the offence less likely. That could determine the choice between a verdict of guilty and not guilty. His Honour agreed with counsel for the accused that the fact the complainant had sex with her boyfriend in the period after the alleged offence, however made no complaint to him of the rape was significant given that the complaint to the complainant’s father was admitted on the assumption that what took place on the following afternoon was sufficiently connected to the alleged offence to make what she then said to her father relevant in determining the “consistency” of her behaviour.

JWM v R [2014] NSWCCA 248

83. The accused was found guilty on 4 counts of indecent assault and 4 counts of aggravated sexual assault. At trial counsel for the accused wished to adduce evidence with regards to a statement the complainant made to another witness that she was a virgin at a time a few years after the alleged offences. At trial, the application was made under the exception in s 293(6). The trial judge refused to allow counsel to lead the evidence.

84. The appeal was made under s 293(4) and counsel sought leave under rule 4 of the Criminal Appeal Rules.

85. In dismissing the appeal and refusing leave under rule 4, Hall J (RA Hulme and Davies JJ agreeing) found the temporal element of s 294(4)(a)(i) was not satisfied. His honour noted that if the ‘event’ (as per the legislation) was the complainant’s statement, made some years after the offence, it would not be at or about the time of the alleged offence.

86. His Honour further found that if the ‘event’ was the alleged state of virginity (or lack of sexual experience at the time of the offence), as submitted by counsel for the accused, it would not fall within the second limb of the exception.

87. His Honour listed matters relevant to determine the scope and application of the second limb in s 293(4)(a) as:

• The legislative purpose behind 293(3).

• The fact that exceptions to s 293(3), including in particular s 293(4), are expressed in restrictive terms, that is not broadly expressed.

• The provisions of s 293(4)(a)(ii) require consideration of:

• The full circumstances in which the alleged prescribed sexual offence or offences was/were committed must be identified;

• The relevant “events” are those that “…form part of a connected set of circumstances” in which the alleged prescribed sexual offence was committed. Such “events” includes occurrences, and (on the approach of Basten JA in GEH) “non-events”;

• A “connected” set of circumstances includes a related set of circumstances, that is that have a relationship or associated with other circumstances.

88. Citing Basten JA in GEH v R, his Honour stated though it was observed that the focus of the requirement is the circumstance ‘in which” the alleged offence was committed, and this referred to a broad concept, a ‘connected’ set of circumstances in which the offence was committed did not, in his Honour’s opinion, include a general statement made months or years after the offences were committed.

89. His Honour stated that the exception in s 293(4) is directed at cases where “sexual activity or experience (or lack thereof) is so closely connected with the alleged offences in time and in place or other circumstances that evidence of those matters is relevant to the issues at trial”

Adams v R [2018] NSWCCA 303 (Hoeben CJ at CL, Campbell, N Adams JJ in dissent)

90. The appellant appealed against his conviction of three counts of aggravated indecent assault and one count of aggravated sexual assault. One of the grounds of the appeal was whether the trial judge erred in excluding the “false complaints” evidence pursuant to section 293 of the Criminal Procedure Act.

91. The appellant was employed as a carer on a casual basis at a crisis centre for high needs people. A person under his care made allegations of impropriety on his part. The central issue at the trial was whether the jury could be satisfied beyond reasonable doubt that the complainant was a reliable witness.

92. Defence counsel sought a ruling under section 192A of the Evidence Act concerning the admissibility of evidence by way of cross-examination of the complainant and, if necessary, leading contradictory evidence of a number of incidents between March 2012 and February 2013 which was said to be false complaints of sexual or indecent assault.

93. It was contended that her Honour fell into error in her approach to the requirement of relative contemporaneity connoted by the phrase “at about the time of an” in subparagraph (4)(a)(i). Further, it was said that her Honour fell into error by treating each instance of false sexual complaint as discrete, rather than considering whether the pattern of them formed part of a connected set of circumstances in which the alleged offending was said to have occurred.

94. The series of false complaints straddled the date of the alleged offending, covering a period commencing 10 months before the alleged offending, and including two days later.

95. Campbell J found the following:

1. Events in subparagraph (ii) must extend to non-events: GEH v R [11].

2. As to the meaning of connected set of circumstances in subparagraph (ii) they concerned an event that was in each case found to be so connected to the circumstances of the offence that bore on the objective likelihood of the offence having been committed: GEH v R [83].

3. Evidence of a series of false sexual complaints at about that time is capable of being evidence of non-events which form “part of a connected set of circumstances” in which the alleged offence was committed: [172].

4. Evidence that the complainant at about the time of the alleged offence was a serial profounder of false sexual complaints may be powerful evidence well outweighing any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

5. The trial judge erred in evaluating the temporal element by considering the temporal relationship between each incident and the alleged offending separately: [173].

6. It is permissible to read both elements together because each phrase reflects elements of the other: GEH v R [13].

7. That the events commencing 10 months before the alleged offending and concluding two days later did not strain the language of the section to treat the continuum which they represent (a connected set of circumstances) as having occurred at or about the time of the alleged offending: [173].

8. The whole series of false complaints were capable of establishing a predilection (or in other words a tendency) to make false complaints of indecent and sexual assault which bore on the objective likelihood on the commission of the alleged offences. They extended beyond mere questions of credit and into the substantial question of the likelihood of the commission of the alleged offences: [175].

9. That Adams was distinguished from GEH v R and Doyle v R in that those cases were concerned with one or two allegedly false complaints made remotely in time to the alleged offending. The false complaints were caught by the s 293(3) exclusionary rule and satisfied neither the temporal relationship requirements of s 293(4)(a): [176].

96. Hoeben CJ at CL agreed with the conclusion of Campbell J that the trial judge erred in excluding the evidence of false complaints pursuant to s 293(3): [4]. His Honour found that the false complaints made up “part of a connected set of circumstances” so as to make out the exception in s 293(4) CPA: [4].

97. In dissent N Adams J was satisfied that the making of a false statement is capable of being an event (or a “non-event”) and that it was relevant to a fact in issue, namely, whether the subject complaint was also false: [211]. It was her Honour’s view that it strains the language of section 293(4)(a)(ii) to conclude that the previous complaints form part of the connected set of circumstances “in which the alleged prescribed sexual offence was committed”: [212].

98. A review of the authorities demonstrates that “no narrow approach should be taken to that part of the statutory provision which permits its reception”: R v Morgan (supra) at 544. The exceptions should be construed broadly: Dimian (supra) at 365. The section should be construed broadly in the interests of the liberty of the accused: Adams v R (supra) at [164].

DOES THE PROPOSED EVIDENCE COME WITHIN THE EXCEPTION: S293(4)(a)(i)(ii)

99. s 293(4) provides:

Subsection (3) does not apply:

(a) if the evidence:

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

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

THE APPLICANT’S SUBMISSIONS

100. The applicant argues that the proposed evidence is within the exception created by s 293(4)(a). It was argued that the false complaint evidence was evidence of the complainant’s lack of sexual experience or lack of sexual activity taken part in by the complainant at about the time of the commission of the alleged offences and that the events, or non-events rather, the subject of the false complaints, form part of a connected set of circumstances in which the alleged offending was committed. It was implicit that the probative value of the false complaint evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

101. It was submitted that the requisite temporal connection may be established by the implication from the evidence that the complainant’s trait as a fabricator is a continuous state of affairs, being part of sexual experience or lack of sexual experience.

THE DIRECTOR OF PUBLIC PROSECUTIONS’ SUBMISSIONS

102. The Director submits that the evidence does not fall within the exceptions identified in s 293(4)(a). It is the submission of the Director that the temporal connection is not satisfied “at or about the time” as required under s 293 (4)(a)(i). It is submitted that there is no legal authority to support such a large temporal gap between the sexual experience or activity (or lack thereof) and the alleged sexual offences. The experience/activity is alleged to have occurred in 2001, 2002 and 2009.

103. It is further submitted that the relationship connection is not satisfied in that the “events” are not “alleged to form part of a connected set of circumstances”: s 293(4)(a)(ii). The events in 2001, 2002 and 2009 are so remote to the 2014 offences and do not “form part of a connected set of circumstances”.

104. The Director submits that the authorities support the position that the evidence does not meet the temporal and relationship conditions in s 293(4)(a). The Director relies upon the following analysis of the authorities:

• Morgan (1993) 30 NSWLR 543 - 1 Hour after the alleged offence.

• BG [2010] NSWCCA 301 - Events occurring 18 months after the alleged offence was not “at or about the time”: [82]-[83].

• Dimian - Sexual activity 6 hours before the alleged offence was not “at or about the time”.

• Henning - sexual activity over 9 years between the accused and the complainant was not “at or about the time”.

• Rahme - the Director submits that the sexual experience weeks or months before the offence did not satisfy the temporal connection. I disagree with that submission and the Directors analysis of the authority. Rahme does not stand for the proposition as asserted by the Director. In Rahme the court allowed the appeal. The trial judge refused leave to cross examine the complainant about her alleged prior experience as a prostitute in Newcastle. The court took the view that there was a clearly discernible set of circumstances of the kind contemplated by the statute. That set of circumstances, if accepted by the jury, did not go only to the credit in a narrow and pedantic sense of the complainant herself. It went to the very heart of the facts in issue at the trial:[59]. The whole of the rejected material touching upon the alleged sexual experience of the complainant was admissible: [61].

• JWM [2014] NSWCCA 248 - statement made months or years after the offence is not within a “connected set of circumstances”: [66].

• GEH - 15 months after alleged offence did not satisfy the temporal connection. The Director submits that Basten JA’s comments in [62]-[64] need to be read with [65].

• Edwards - complainants’ sexual experience fell within s 293(4)(a) as it was clearly evidence of events that were alleged to have formed part of a connected set of circumstances. The complainants were handed around or passed between a series of individuals including Edwards: [31].

• Adams - 10 months before and slightly straddling the offence date, and “formed the background to the offence alleged”: [4]. The language suggests a temporal test: [168], [170], [172]-[175], [211].

105. The words used in the statute are clear and unambiguous. They connote a temporal relationship. The use of the words would mean measuring in hours, days not years. Further, the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384. The Director relies upon the Interpretation Act 1987, ss 34(1)(a) and 34(2)(f).

CONSIDERATION

106. In order to satisfy the exception, the applicant must demonstrate that the evidence of fabricated sexual experience was “at or about the time” of the commission of the alleged prescribed sexual offences: s 293 (4)(a)(i); and that the proposed evidence was “of events that are alleged to form part of a connected set of circumstances” in which the alleged prescribed sexual offences were committed: s 293 (4)(a)(ii).

107. The applicant acknowledged that each of the specific incidents of fabrication is between 13 and five years before the alleged prescribed sexual offences on the indictment. The applicant further acknowledge that much shorter periods of time as between a relevant incident of sexual activity and the alleged sexual offence have fallen short of the requirement of “at or about the time”.

108. The requirements of “at or about the time” has been considered in a number of cases. For example sexual activity three months after the alleged offending was not at or about the time: GEH v R [2012] NSWCCA 150 at [66]; several hours before on the same night as the alleged sexual offence was not “at or about the time”: R v Burton at [79]; the day after and within days of the alleged assault was not “at or about the time”: Taleb v R [2015] NSWCCA 105 at [108].

109. In considering the evidence I have not considered the temporal relationship between each incident and the alleged offending separately: Adams [173].

110. I have read both elements together: GEH v R [13].

111. I am satisfied that the whole series of false complaints are capable of establishing a tendency to make false complaints of sexual assault which bear on the objective likelihood of the commission of the alleged offences. They extended beyond mere question of credit and into the substantial question of the commission of the alleged offences.

112. However, the false complaints did not occur “at or about the time” of the alleged offences and they do not form part of the “connected set of circumstances” in which the offences are alleged to have occurred.

113. It cannot be said that the false complaints occurred at or about the time of the alleged offending and therefore do not form “a connected set of circumstances” with the 2014 allegations. They were made remotely in time to the alleged offending (2001, 2002 – 2009). They do not satisfy the “temporal or relationship” rule nor are they a connected set of circumstances.

114. The false complaints are therefore not within the exception created by s 293(4)(a) and are inadmissible due the exclusionary rule in s 293(3).

VALIDITY OF s 293 OF THE CRIMINAL PROCEDURE ACT 1986 (‘CPA’)

115. The Attorney-General intervenes in these proceedings, pursuant to s78A of the Judiciary Act 1903 (Cth), to make submission in respect of the constitutional validity of s 293 of the CPA.

116. The High Court has stated on multiple occasions that a constitutional question should not be decided unless it is necessary “to do justice in the given case and to determine the rights of the parties": Knight v New South Wales (2017) 91 ALJR 824 at [32].

117. In the present case it has become necessary for the court to determine the constitutional validity of s 293 because;

• I have determined that the evidence is relevant, admissible and capable of demonstrating a tendency on the part of the complainant.

• The evidence is inadmissible on the proper construction of s 293, and in its application to the facts in the present case.

118. If the section is valid the court is bound to enforce it. The primary question is whether the section is valid.

THE APPLICANT’S SUBMISSIONS

119. The applicant argues that s 293 of the CPA is constitutionally invalid because it is inconsistent with Ch III of the Constitution. The general principle on which the Applicant relies was helpfully summarised by French CJ in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [67]:

“a State Legislature cannot confer upon a court of a State a function which impairs its institutional integrity and which is therefore incompatible with the role of that court as a repository of federal jurisdiction. The “institutional integrity” of a court is said to be distorted if it no longer exhibits in some relevant aspect the defining characteristics which mark a court apart from other decision-making bodies. The defining characteristics of courts include:

- The reality and appearance of decisional independence and impartiality;

- The application of procedural fairness;

- Adherence as a general rule to the open court principle;

- The provision of reasons for the court’s decision.”

120. In essence the appellant’s argument is that, to the extent that s 293 operates to make the fabrication evidence inadmissible, the provision purports to require the court to exercise procedures incompatible with the fair conduct of an adversarial trial, and thereby to deprive the court of a characteristic essential to its continued operation as a repository of federal jurisdiction.

THE ATTORNEY-GENERAL’S SUBMISSIONS AS INTERVENOR

121. The Attorney-General submits that s 293 of the CPA does not impair the institutional integrity of the court. It does so for the following reasons:

• s 293 is a rule of evidence. In common with other rules of evidence, it may have the effect of excluding evidence from a trial, which may in turn make it more difficult for a party to prove its case. However, that is not sufficient to impair the institutional integrity of the court.

• s 293 represents a valid choice by the legislature as to the balance to be struck between competing public interests.

• s 293 is State legislation that applies to State courts, an amendment to a rule of evidence will rarely be considered to compromise the institutional integrity of the court.

CONSIDERATION

122. I have been referred to Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 1, International Finance Trust Company Limited and Another v NSW Crime Commission and Others [2007] HCA 49, North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41, Assistant Commissioner Condon v Pompano Pty Ltd and Another (2013) 252 CLR 38, Williamson v Ah On (1926) 39 CLR 95, Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249, Magaming v The Queen (2013) 252 CLR 381, Re Application of the Attorney-General for NSW 341 ALR 340, Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, Nicholas v The Queen (1998) 193 CLR 173, Graham v Minister for Immigration and Border Protection (2017) 91 ALJR 890, K S v Veitch (No 2) (2012) 84 NSWLR 172, Lodhi v The Queen (2007) 179 A Crim R 470 and the reading speeches for the introduction of s 409B.

122. I have read and taken into account the cases I have been referred to and Hansard when coming to my decision.

123. s 293 of the CPA is no more than a rule of evidence that governs the admissibility of certain types of evidence in criminal proceedings for prescribed sexual offences. Like other exclusionary rules of evidence, it may have the effect that potentially relevant facts will be withheld from the court. Like other exclusionary rules of evidence, it may be that there may be a disadvantage imposed on one party. That does not mean that the court is required to act in a way that impairs its institutional integrity.

124. Laws relating to evidence stand squarely within the power of the Parliament with respect to regulation of criminal trials: K S v Veitch (No 2) (2012) 84 NSWLR 174 at [64].

125. “The Parliament may, without offending Ch III of the constitution, alter the onus of proof or standards of proof. It may modify, or abrogate, common law principles such as those governing the discretionary exclusion of evidence. It may legislate so as to affect the availability of privileges, such as legal professional privilege”: Graham (supra) at [32].

126. “…the acceptance that interests of the courts in determining proceedings, including criminal proceedings, on all available evidence must in some circumstances be qualified to the protection of the public interests: Veitch at [66].

127. It is well established that the laws of evidence may have the effect of excluding evidence from the court, including in a way that may make it more difficult for the accused. “The availability and accessibility of all relevant evidence in judicial proceedings is not absolute”: Gypsy Jokers Motor Cycle Club (supra) Crennan J at [189].

128. The legislature may make or change the rules of evidence. It may make or change the rules governing the discretionary exclusion of evidence. It may make or change rules governing the factors which a court is to take into account in exercising that discretion, the exercise of which depends upon the balancing of competing considerations: Nicholas (supra) Hayne J at [238].

129. Parliament has struck a balance between competing public interests. The Parliament has recognised the competing public interests that may need to be balanced in the context of sexual assault proceedings.

130. In Veitch (supra) the Court of Criminal Appeal rejected a constitutional challenge to ss 298 and 299D of the CPA, which protect from disclosure documents that record counselling communications made by, to or about a victim of a sexual assault offence. The Court noted at [66] that the law “reflects a public policy which has received greater attention and emphasis in recent years than earlier times, but is arguably a product of more enlightened attitudes toward the victims of sexual offences and the importance of balancing the legitimate interests of the accused against the legitimate interests of victims of sexual assaults.”

131. S 293 strikes a balance between the competing public interests identified in Veitch. It must be remembered that the exclusionary rule under s 293(2) & (3) applies equally to the prosecution and the accused.

132. The erosion of an accused’s rights is erosion that has occurred after Parliament has given careful consideration and attention to the rational competing objectives. Therefore it is not an erosion of such a type or magnitude that should be regarded as interfering with the institutional integrity of the District Court.

“State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional process without compromising the institutional integrity of the courts that must administer the legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even potentially unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised”: Fardon (supra) McHugh J at [41].

134. The institutional integrity of the court has not been compromised and it is for the court to administer and give effect to a validly enacted law. Section 293 of the CPA is a valid law.

135. I do not accept the Applicant’s contention that the effect of s 293 is to compromise the integrity of the District Court of New South Wales. Nor his contention that the “consequences of rejecting the proposed evidence in accordance with s293 CPA is so inimical to the idea of a fair trial that it is appropriate to conclude that the State Parliament went beyond power in enacting the law.”

136. I reject the argument that the section is invalid on the basis that it represents a departure from traditional procedures for criminal trials. I do so because a departure from “traditional” procedures does not of itself establish that the provision is repugnant to, or incompatible with, the institutional integrity of the courts: Pompano (supra) at [138].

137. S293 does not represent any greater departure from “traditional” procedures than other exclusionary rules of evidence in that is inherent in the rules of evidence, that evidence which is relevant and may assist a party may nevertheless be inadmissible. S 293 of the CPA is a valid law.

PERMANENT STAY

138. It is beyond doubt that the District Court may stay proceedings if those proceedings occasion an incurable injustice or unfairness to the accused. It is not necessary to cite authority in support of this proposition as it is trite law. The power to make an order for the permanent stay of criminal proceedings should be exercised with great restraint.

139. The Attorney-General submitted the court has the power to permanently stay proceedings but did not wish to be heard on whether a stay should be granted in these proceedings.

140. The DPP submitted that the court has the power to permanently stay proceedings. The Director further submitted that:

“in deciding whether to grant a stay, the court should take into consideration that any unfairness arises in the context of a law that seeks to strike a balance between competing priorities. The court would have regard to what Parliament has prescribed in determining the relevant standard of unfairness (noting that the question as to when the trial becomes relatively unfair is ultimately a question of common-law but can be altered by the statute). However, it appears as settled law that a stay will not be appropriate due to the operation of New South Wales rape shield provisions”: DPP submissions 19/6/19 at [13].

141. The DPP relied upon R v PJE (Court of Criminal Appeal unreported 9 October 1995) in support of its submissions.

142. PJE was a Crown appeal against an interlocutory judgment of Dent DCJ who granted a permanent stay because of perceived unfair operation of statutory law (s 409B - the predecessor of the legislation before me). PJE sought an order for a permanent stay of proceedings on the ground that s 409B of the Crimes Act 1900 would so restrict the conduct of his case that an unfair trial was unavoidable.

143. On appeal Cole JA said,

“In the case of the criminal law, where a conflict arises between the State and the citizen, it is the function of the courts to ensure that, when prosecuted, a citizen receives a fair trial. The law which must be applied by courts in that trial is either the common law or the statutory law as enacted by Parliament. Unless it be unconstitutional, the courts have no option but to implement the laws enacted by the Parliament.

A trial may be unfair if it suffers procedural irregularity, and the courts have an overarching power under the common law to ensure that procedural irregularity does not result in unfair trial. However the courts have no power to determine that a trial will not be conducted in accordance with a constitutionally valid law which addresses either the substantive law constituting the offence alleged, or substantive provisions which determine what evidence may or may not be received in the conduct of the trial. The reason why that is so is because every trial involves a tension between “the interests of the prosecution representing state and interest of the accused” (citing Alexander v The Queen 1981 135 CLR 395 at 430 per Mason J).

…It is not for the courts, or any individual judge of a court, to determine that the balance determined by the legislature is inappropriate or “unfair” in the sense of depriving an accused person material which, were it admitted, may provide that person with a defence. To do so would be to interfere with a constitutionally valid substantive law enacted by the Parliament.

It is clear that a court may stay criminal proceedings which are vexatious, oppressive or otherwise an abuse of process (citing Ridgeway v R (1995) 129 ALR 41 at 83 per Gaudron J). However, it could never be an abuse of process, however that expression is defined, to seek to conduct a trial in accordance with a constitutionally valid substantive law determining the admissible evidence.”

144. His Honour was of the view that the accused’s proper avenue of complaint lies in an appeal on the “unsafe and unsatisfactory” ground if convicted or on the ground of a miscarriage of justice.

145. Sperling J at p15-16 said,

“The question of principle which arises in the present case is whether the jurisdiction to stay an indictment extends to include a perception of unfairness arising from the operation, in accordance with its terms, of a validly enacted statute of the parliament. In my view, it does not. To hold otherwise would, in effect, be to elevate the court’s judgment above that of the parliament. That would be particularly so in the present case because the statutory provision embodies the judgment of the Parliament on the very matter for which a claim is made for the exercise of judicial power. The Parliament could have given the courts a general discretion to allow evidence if, in the opinion of the Court and in the circumstances of the particular case, it would be unfair not to do so. The Parliament chose not to do that. The second reading speech, quoted in M at 558, shows that this was a considered decision.

It would be the height of irony if a law enacted to facilitate the bringing of charges for sexual offences were to provide grounds upon which to stay such proceedings. I do not think it does.

146. The statute occasions significant unfairness to the accused. That unfairness is real and not illusory. It prevents the accused from placing before the jury relevant evidence (her past fabrications) which is capable of going directly to an issue in the trial, namely the honesty and reliability of the complainant. It prevents the accused from showing the complainant to be a compulsive false accuser of sexual misconduct on the part of others.

147. What is particularly concerning is the false complaint (number 12) that she pleaded guilty to. It involved the making of a false allegation of sexual assault to police. The complaint was that a person by the name of "Leon" forcibly pulled at and opened the security door to her home at 1am. He, after entry, chased her around the home, struck her to the head, grabbed and carried her to a spare bedroom where he vaginally raped her from behind with an unknown object. He continually cursed and verbally degraded her before leaving.

148. What she told the police were lies. The DPP says the complainant could be cross-examined about it to the extent that it was a significant false allegation involving an assault (not a sexual assault). In my view permitting the accused to cross-examine in this fashion causes significant unfairness.

149. The approach suggested by the DPP sanitises the conduct of the complaint and is misleading to the extreme.

150. It would give a false picture to the jury of the honesty and reliability of the witness.

151. The Prosecutor, Defence counsel, the witness and the judge would know that the conduct was a falsity of rape by a made up person but the jury would be denied this information in their decision making process by reason of the exclusionary nature of s 293.

152. It is an affront to justice. However as a judge of an intermediate court I am bound by R v PJE. 

153. It is not for me to determine that the balance determined by the legislature is inappropriate or "unfair" in the sense of depriving the accused of material which, were it admitted, may provide the accused with a defence. To do so would be to interfere with a constitutionally valid substantive law enacted by the Parliament.

154. I decline to grant a stay. It does not arise because the legislation is constitutionally valid and I am bound to enforce it.

COMMENT

155. In 1993 three Justices of the Court of Criminal Appeal called for reform of the legislation. In R v Bernthaler (supra) Kirby J at [12] said:

“I certainly concur with Badgery-Parker that there is a need (without defying the general policy that lies behind s 409B of the Crimes Act), to enlarge the grounds for an exception to its requirements to permit evidence or cross examination in a case where the exclusion would lead to a serious injustice to the person who is accused.”

156. Badgery-Parker at p.8 said:

“It may be, as his Honour (referring to Allen J in R v M (supra)) suggested, that cases such as that (and perhaps the present one) are instances of injustice or possible injustice which indicate the desirability of a further exception to the blanket prohibition made by the section; it may be that the appropriate course would be to incorporate into the section a residual discretion allowing a trial judge to determine whether despite the general principle of exclusion, evidence or cross examination of the proscribed kind should be admitted in a particular case. That, however, is a matter for the Parliament and not for the court.”

157. The rationale for the legislation was set out in Hansard:

“Consideration was given to the argument that there may be other unforeseen circumstances in which cross-examination on sexual history should legitimately be allowed as relevant to an issue in a case. According to this view, a general discretion should be vested in the courts to determine the relevance and to allow cross-examination in cases. This approach has been adopted in some other jurisdictions-for example, in Victoria and South Australia. Deliberately such an approach is not being taken in the legislation before the house. None of the many examples that have been considered are persuasive of the necessity for a general discretionary power to allow cross-examination on sexual history where the judge decides it is relevant” (Hansard, No 47, p5456).

158. As Sperling J said in PJE (supra) at p.8-9:

“The legislature has endeavoured to foresee all the exceptions which justice requires and to provide specifically for them. It has excluded all others. It has taken the risk that experience will throw up circumstances, which it has failed to foresee and expressly provide for, in which denial of evidence disclosing or implying that the complainant has or may have had sexual experience or lack of sexual experience, or has or may have taken part or not taken part in any sexual activity, results in injustice to an accused at his trial. The wisdom of so Draconic a restriction upon judicial discretion and of so bold an assumption of perfect prescience may be questioned” (emphasis added).

159. Parliament could not have foreseen the facts that I am confronted with and the injustice occasioned to the accused. There should be a residual discretion in the court to meet the facts of this case. The act should be amended to allow the reception of evidence “if it is in the interests of justice to do so.”

160. If there was such an amendment it should have a sunset period so that Parliament can re-assess the operation of the amendment.

161. I adopt what was said by Kirby and Badgery-Parker JJ. It is for the Parliament to consider reform and the facts of this case indicate why there should be reform.

RULING

162. The evidence is relevant, probative of a fact in issue and admissible.

163. The evidence discloses a tendency on the part of the complainant - that is to make false sexual allegations. The tendency is significantly probative and is admissible.

164. The exclusionary rule of s 293 operates and catches the evidence.

165. The evidence does not qualify as an exception to the exclusionary rule under s 293(4).

166. s 293 of the Criminal Procedure Act is valid.

167. I decline to permanently stay the proceedings.

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Amendments

02 August 2019 - further de-identifier; format change

24 September 2019 - [28] change ‘producing’ to ‘adducing’; [32] change ‘preceding’ to ‘proceedings’; [34] add ‘To’ ; [36] change ‘facts' to ‘a fact’; [49] capitals on legislation; [48] change ‘ensure’ to ‘endure’; [50] formatting changes; [77] change ‘complaint’s’ to ‘complainant’s’; [92] capitals on legislation; [105] change ‘connate’ to ‘connote’; [131] change ‘accessed’ to ‘accused’; [146] delete ‘from’.

Decision last updated: 24 September 2019