R v Sparks - [2014] SASCFC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SPARKS
[2014] SASCFC 122
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Parker)
13 November 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION AND MORALITY
Appeal against conviction. The defendant was found guilty by jury verdict of the offence of persistent sexual exploitation of a child. It was the prosecution case that the offence was committed between 1 January 1986 and 6 April 1992 when the complainant was in the care of the defendant’s parents in law.
Whether a substantial miscarriage of justice occurred as a result of evidence of alleged injuries to the complainant’s anus being put before the jury. Whether the Judge erred in failing to draw the jury’s attention to significant risks in the complainant’s evidence. Whether the Judge erred in his application of section 34L of the Evidence Act 1929 (SA) and, as a result, impermissibly restricted the defendant’s right to cross-examine the complainant.
Held per Gray J (Vanstone and Parker JJ agreeing)(dismissing the appeal):
1. The medical evidence was the subject of an agreed fact. The prosecutor accepted in her closing submission that this evidence was neutral and the Judge directed the jury that it was not evidence implicating the defendant. It is to be assumed that the jury would follow this direction.
2. The jury were well able to assess the complainant when giving evidence. The topic of inconsistencies in the complainant’s evidence was prominent in the trial and the jury were directed on this topic. The summing up of the Judge is not open to be criticised on the grounds that he failed to adequately put the defence case.
Held per Gray J:
3. A trial judge has a wide discretion in regard to the admissibility of evidence guided by the terms of section 34L of the Evidence Act. No ground has been identified to allow this Court to conclude that the Judge’s discretion miscarried. The approach taken by the Judge was justified by the material before him.
Held per Vanstone J (Parker J agreeing):
4. The determination of an application to cross-examine pursuant to section 34L involves an assessment of the potential relevance and probative force of the evidence, or its capacity to impact upon the alleged victim’s credibility. It is essentially a question of judgment about admissibility, which is a question of law. The judge was correct in finding that the requirements of section 34L were not met.
Evidence Act 1929 (SA) s 34L, referred to.
R v Phan and Ton (2010) 108 SASR 260, considered.

R v SPARKS
[2014] SASCFC 122
Court of Criminal Appeal: Gray, Vanstone and Parker JJ
GRAY J.

This is an appeal against conviction.
The defendant and appellant, Anthony Sparks, was charged on Information that between 1 January 1986 and 6 April 1992 at Kalyan, Yunta, Balaklava and other places, he committed more than one act of sexual exploitation of the complainant, a person under the age of 17 years, over a period of not less than three days. It was further said that the defendant’s conduct comprised of touching the complainant’s penis on more than one occasion, inserting his penis into the complainant’s anus on more than one occasion, causing the complainant to perform fellatio upon him on more than one occasion and performing an act of fellatio on the complainant. The complainant was aged between seven and 14 years at the relevant time.
Following a trial in the District Court, the defendant was found guilty by jury verdict of the offence of persistent sexual exploitation of a child.
The Prosecution Case
The prosecution led evidence from: the complainant; CJ, the complainant’s brother; and Sirpa Harms, a case worker employed by Families SA.
The complainant was born on 20 March 1978. He was aged 36 years at the time of trial. Until 1986 he lived with his mother, his stepfather and two younger brothers. In January 1986, the complainant and his brothers were removed from their parents’ care and placed in foster care. They went to live at a rural property in Kalyan, about 70 kilometres from Murray Bridge. Their foster parents were June and John Leedham. The defendant was married to the Leedhams’ daughter, Jennifer. The complainant and his brothers stayed in the Leedhams’ care until 6 April 1992, when the complainant was aged 14 years.
The defendant would stay at the Leedhams’ property. There were other times when the defendant was living at a property near Yunta and then at Gladstone. It was the prosecution case that the defendant sexually abused the complainant over a period of six years at various locations at the Leedhams’ property, at June Leedham’s father’s house at Balaklava and other properties where the defendant resided. The defendant ceased the abuse when the complainant was removed from the Leedhams’ care and the opportunity to abuse him was gone.
The sexual abuse started not long after the complainant moved into the Leedhams’ house. The first occasion was in a motor vehicle at the front of the Leedhams’ house. On this occasion, the defendant and the complainant were at the front of the vehicle and the defendant played with the complainant’s penis and then engaged in fellatio of the complainant. The defendant told the complainant to get in the front seat of the vehicle. The defendant told the complainant to fellate him. The defendant ejaculated. The defendant told the complainant not to tell anyone about what had happened or he would hurt him. At that time the complainant did not tell anyone.
On another occasion, the defendant took the complainant to a water-skiing race at Murray Bridge. On the drive home, the defendant pulled the vehicle over onto a gravel side road. He told the complainant to lie on the back seat of the vehicle on his stomach. The defendant then anally penetrated the complainant. The complainant was crying. The defendant ejaculated into a handkerchief. Again, he told the complainant not to tell anyone about what was happening or he would hurt him.
In 1987, the complainant moved with his brothers and June and John Leedham to June’s father’s property at Balaklava. They all stayed there for around a year. He recalls the defendant visited at the time of the complainant’s ninth birthday and at Christmas for a few weeks. While at this property, the defendant sexually assaulted the complainant in a shed on the property in which there was an eight-ball table and a table tennis table. The defendant caused the complainant to engage in fellatio and he then anally penetrated the complainant. Sexual abuse in the eight-ball shed at Balaklava occurred a number of times while the defendant was staying at that property. Again, the complainant was told not to tell anyone what was happening. CJ recalled the complainant and the defendant being in the shed and the door being locked.
During the time that the complainant was in the Leedhams’ care, the defendant and his family moved to a station near Yunta. The complainant and his brothers went to stay at the station during the school holiday period. While at the station, the defendant would take the complainant for a ride on his motorbike away from the main house on their property. While out, he would anally penetrate the complainant. The prosecution alleged that this occurred a number of times and that each time the defendant would perform the same sexual acts upon the complainant and would reinforce with the complainant not to tell anyone what had happened. At the end of the school holiday period at Yunta, the complainant returned to Kalyan.
The defendant, at some point, moved back to stay with the Leedhams. The sexual abuse continued when the defendant returned to the Leedhams’ property.
The defendant also lived at a property at Gladstone and the complainant visited him with his foster family and his brothers during the school holidays. Again, the defendant would take the complainant away from the house and sexually assault him. He continued to tell the complainant to keep it a secret.
The complainant eventually disclosed to June Leedham what the defendant was doing to him. Despite this, the complainant remained at the Leedhams’ property and the sexual abuse continued. In April 1992, the complainant and his brothers were removed from the Leedhams’ care and placed in another foster home.
During the course of the abuse by the defendant, the complainant noticed a mark or a spot on the head of the defendant’s penis. When the defendant was arrested for these offences in November 2011, photographs were taken. The photographs confirm such a spot.
As earlier noted, CJ also lived at the Leedhams’ property. During the period that the boys were living together at the farm, CJ gave evidence that he regularly observed the complainant and the defendant together. The two would leave together, sometimes on the defendant’s motorbike, sometimes in the car. CJ was never permitted to join them. At Balaklava they would go into the shed with the eight-ball table. When CJ tried to get inside, the door would be locked and even when he banged on the door, it would not open.
The Defence Case
The defendant denied in evidence the alleged offending. It was his case that the complainant was lying and that all allegations were false. The defence led evidence from June Leedham, and evidence of the defendant’s good character from Michael Slater.
Counsel for the defendant suggested in his closing address that the defendant may have had a motive to lie in order to receive compensation. It was said that the complainant was a dishonest person and that this was evidenced by his criminal antecedents. It was further suggested that both the complainant and CJ were damaged as a result of their experiences before they were taken into the Leedhams’ care. Attention was drawn to what were said to be extensive and glaring inconsistencies in the evidence given by the complainant and by CJ.
The Appeal
The defendant advanced three grounds of appeal. First, the defendant submitted that a substantial miscarriage of justice occurred as a result of evidence of alleged injuries to the complainant’s anus being put before the jury. Secondly, the defendant contended that the Judge erred in failing to draw the jury’s attention to significant risks in the complainant’s evidence. Finally, the defendant submitted that the Judge erred in his application of section 34L of the Evidence Act 1929 (SA) and, as a result, impermissibly restricted the defendant’s right to cross-examine the complainant.
Evidence of Injuries to the Complainant
A statement of agreed facts was received in the trial. One fact related to injuries to the anus of the complainant. The injuries were discovered following a medical examination on 27 July 1992.
During final addresses, the prosecutor accepted that this medical evidence of injury was neutral. The Judge, when summing up, directed the jury that the medical evidence of injury was “no evidence implicating [the defendant]”.
Counsel for the defendant in his written submissions suggested that the mere fact of injury, notwithstanding the Judge’s direction, would have remained as a significant matter in the mind of the jury. In my view, there is no basis to support this suggestion. It is to be assumed that the jury would follow the Judge’s direction in this respect. I do not consider there to be any substance to this complaint.
Failure to Put the Defence Case
The complainant’s evidence at trial displayed many inconsistencies. These were addressed at length in the final addresses of counsel. The prosecutor suggested to the jury that these inconsistencies did not affect the complainant’s credibility and reliability on critical matters. She drew attention to the relative youth of the complainant at the time of the offending and to the fact that the evidence given at trial related to events occurring many years earlier. The defence submitted to the jury that the inconsistencies in the complainant’s evidence were significant and impacted on his credibility and reliability. The inconsistencies were said to demonstrate that the complainant was lying. Attention was drawn in particular to inconsistencies between the complainant’s evidence and his out of court statements.
During the summing up, the Judge reminded the jury of the submissions of counsel and, in particular, those of defence counsel. The Judge, following this reminder, explained to the jury the use they may make of any inconsistencies that they found established and, in particular, what use could be made of any inconsistencies that they found to be material. The Judge pointed out that inconsistencies could be important as exposing the unreliability of a witness and that they may also affect the credibility of a witness. The Judge emphasised that inconsistencies may be so important as to impinge upon the evidence of a witness more widely than on the particular topic to which they relate.
A related complaint was advanced that the Judge failed to address in his summing up what was said to be the “quite extraordinary language and behaviour exhibited by the complainant during his evidence”.
The duty of the Judge to put the defence case was considered in Phan and Ton, where Vanstone J observed:[1]
The extent of the duty upon a trial judge to put the defence case can be described in general terms. However, the obligations cast will vary from case to case depending on the length and complexity of the legal issues, the way in which the issues have been crystallised both during the evidence and in counsels' addresses, and the structure of the summing up. In principle, the trial judge must fairly and impartially put the defence so that the jury is fully apprised of the challenge mounted to the prosecution case, both in the course of the evidence and argument.
That duty will involve stating the substance of the defence case and explaining its bearing on the legal issues. Generally speaking, fulfilment of these requirements would lead the judge to refer to the crucial parts of the evidence of the accused (if any) or to his explanation given in interview or otherwise. In many cases the encapsulation of the defence case would be found in an identifiable part of the summing up. But in other cases, particularly long and complex matters, it may be preferable to deal with both prosecution and defence cases on an issue-by-issue basis.
However, a judge is not obliged to read, or to refer in detail to, evidence called by the defence and is not obliged to repeat all the arguments of defence counsel.
[1] R v Phan and Ton (2010) 108 SASR 260, [40]-[42].
The jury were well able to assess the complainant when giving evidence. The topic of inconsistencies was prominent in the trial, inter alia through the cross-examination of the complainant and through the addresses of the prosecutor and defence counsel. The jury were given specific and appropriate directions on the topic, were reminded of the submissions of both counsel and of specific topics that were said to be important by defence counsel. I do not consider that the summing up of the Judge is open to be criticised on these grounds. I do not consider there to be any substance to this complaint.
Section 34L of the Evidence Act
It is convenient to first set out the terms of section 34L of the Evidence Act:
(1)In proceedings in which a person is charged with a sexual offence, no question may be asked or evidence admitted—
(a)     as to the sexual reputation of the alleged victim of the offence; or
(b)     except with the permission of the judge—as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).
(2)In deciding whether permission should be granted under subsection (1)(b), the judge must give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection, and must not grant permission unless satisfied that the evidence in respect of which permission is sought—
(a)     is of substantial probative value; or
(b)     would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim,
and that its admission is required in the interests of justice.
(3)Permission must not be granted under subsection (1)(b) authorising the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim.
(4)An application for permission under subsection (1)(b) must be heard and determined in the absence of the jury (if any).
(5)In a trial of a charge of a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.
(6)Subsection (5) does not affect the operation of any provision of this or any other Act requiring that the evidence of a witness be corroborated.
(7)In this section—
evidence includes an allegation or statement made by way of an unsworn statement;
sexual activities includes sexual experience or lack of sexual experience.
Before the commencement of the trial, the defence made an application pursuant to section 34L to cross-examine the complainant on several topics, mostly involving his sexual experience. The Judge allowed the application in part. However, the Judge refused leave on two topics, namely, the viewing of an act of adult sexual intercourse and, subject to two matters, the sexual behaviour of the complainant when a child toward others.
The Judge, in his reasons for allowing the application in part, identified the basis on which he should decide whether to grant or refuse permission. In particular, the Judge observed:
…the court must first be satisfied that the proposed line of questioning is of substantial probative value, or would in the circumstances be likely materially to impair confidence in the reliability of the evidence of the alleged victim. In either event admission must also be in the interests of justice: s 34L(2).
The Judge then concluded:
In giving the limited permission to examine as detailed below, it should be understood that proof of any contradictory evidence of the underlying facts in the face of denials by the complainant, must be by conventional means.
In summary permission is given in the interests of justice to examine or cross-examine the complainant, as the case may be, as to:
1 Sexual encounters with VS, and WG.
2Allegations of sexual encounters concerning one Departmental Officer detailed above.
3 Assertions of desiring or demanding sexual intercourse with his mother.
Of course careful directions will be required as to how the jury might properly approach any material that might be elicited or subsequently adduced in accordance with the above ruling, but that topic stands for later consideration.

On the appeal, no complaint was advanced that the Judge had made any error of law. It was not suggested that any material matters were overlooked, nor was it contended that the Judge had regard to any immaterial matters. The complaint was that this Court, on a review of the material, should have concluded that the evidence sought to be the subject of cross-examination met the test of substantial probative value or, alternatively, would be likely to materially impair confidence in the reliability of the evidence of the complainant.
On the topic of viewing adult sexual intercourse, the Judge reasoned:
A third line of questioning for which permission is sought, relates to certain events said to have transpired in the presence of the complainant between his uncle and aunty. The source of this information appears to be from the complainant himself. Even if proven or admitted, the allegations are not of themselves of such a substantial probative value or likely to materially impair the confidence in the reliability of the witness, because they relate more to the misconduct of others rather than him, and in which he was a passive observer.
Defence counsel submitted that subpoenaed materials from Families SA disclosed a complaint, apparently from the complainant, that he and his brother CJ had watched an act of intercourse between an aunt and an uncle and that CJ was then invited to “root” his aunt. It was contended that this material had substantial probative value in that if the complaint were untrue, it showed that the complainant had a capacity as a child to concoct detailed and false allegations of a highly sexualised nature. It was said that if the complaint were true, it would provide an explanation about the complainant’s knowledge of the mechanics of sexual intercourse.
On the appeal, counsel for the Director of Public Prosecutions submitted that the evidence of this alleged incident involved no suggestion of anal penetration. It was pointed out that there was no material in the Families SA notes to the effect that the complainant had admitted that the statement was untrue. There was no evidence that such an incident did not occur. It was suggested that the defendant was engaging in a fishing expedition, and it was inherently unlikely that cross-examination would impact upon the complainant’s credibility. It was pointed out that the evidence would not establish that the complainant was the type of person who would make false complaints of sexual interference. Counsel drew the Court’s attention to the fact that, at the time, the complainant was a young child in foster care and that cross-examination on this topic was unlikely to materially affect the reliability of the complainant when giving evidence some 29 years later of entirely different events.
It is to be understood that this ground of appeal concerns a discretionary ruling made by a trial judge on the admissibility of evidence to be adduced in cross-examination. It is to be accepted that a trial judge has a wide discretion in regard to the admissibility of evidence guided by the terms of section 34L of the Evidence Act. That section provides a judge with the ability to ensure that alleged victims are not unnecessarily distressed, humiliated or embarrassed through questioning the subject of the section.
I do not consider that any ground has been identified to allow this Court to conclude that the Judge’s discretion miscarried. To the contrary, in my view, the approach taken by the Judge was justified by the material before him. The proposed cross-examination was unlikely to produce evidence within the meaning of section 34L(2)(a) and (b) of the Evidence Act. I do not consider that it can be said that the interests of justice required a grant of leave on this topic.
On the topic of the sexual behaviour of the complainant as a child, the Judge observed:
The final category for which permission is sought to cross-examine, relates to what was generically labelled as ‘highly sexualised activity’ by the complainant. These occurred by and large, before or during the charged events and they included alleged sexual advances on siblings and relations. Here the sexualised acts mostly relate to his own desires, rather than what others may have sexually done to him. The highly unnatural sexual precociousness of the complainant is not demonstrated to be indicative of reliability. The reports are sourced from largely indirect information and would not in most instances, provide admissible proof of the underlying facts. Given that the complainant was likely to have been abused by at least one other person, highly sexualised behaviour by him towards others is perhaps hardly surprising, but irrespective of that, the material presently under discussion fails to be sufficiently probative or sufficiently likely to impair confidence in the reliability of the complainant’s evidence in the circumstances.
Save for the two possible exceptions to be mentioned shortly, questions in relation to this material will not otherwise be allowed. The case of Bromley, Karpany v The Queen was quite different in that the witness in question was schizophrenic and had an episode of that illness on the very night and at the very time of the offence charged. The case of R v Bryce and Dewar relates mostly to the appropriate age specific warning to be given with respect to child complainants before the amendments to the Evidence Act. Likewise the case of Question of Law Reserved on Acquittal (No 1 of 1993), concerned a mentally impaired complainant.
The exceptions are as follows. There is a report on 15 July 1994 of inappropriate sexual behaviour by the complainant with respect to a Departmental Officer. However once again that is not of such a nature that might affect the jury’s assessment of the reliability of the complainant, so questions on that subject matter will not be permitted. However permission is granted to question in relation to an allegation concerning another Departmental Officer, recorded in an entry of 19 October 1994. The complainant is alleged to have told an Officer that another Officer had ‘come onto [another man] sexually’. Questions on this topic are capable of revealing whether this allegation of a sexual kind made by the complainant suggests a capacity to fabricate or fantasise such allegations.
Finally there are several notes in the Departmental records whose provenance can be traced to the complainant, which record his desire or demand to have sex with his mother. Once again this is either so inherently unlikely or highly unnatural that it is highly probative of his capacity to fabricate or fantasise respectively.
[Footnotes omitted.]
The defendant submitted on the appeal that the material the subject of the rejected application was relevant to show the dysfunctional and disturbed behaviour of the complainant and, as a consequence, had the capacity to impact adversely on his reliability. It was suggested that the material demonstrated that the complainant had an interest in conduct of a homosexual nature and, as such, laid a foundation for the conclusion that he fantasised on this topic. It was said that the material would lay a foundation for a conclusion about the complainant’s awareness of sexual matters and his capacity to make false allegations.
In respect of one matter, it was claimed that it would establish that some other person may have caused anal injury to the complainant. When regard is had to the acceptance of the prosecution that the medical evidence was neutral and the Judge’s direction to the jury, as earlier mentioned, I consider that there is no substance to this particular complaint.
Counsel for the Director submitted that the information contained in the Families SA material did not relate to any form of sexual abuse toward the complainant. It was further submitted that the unnatural sexual precociousness of the complainant as a young child was not indicative of a lack of reliability. The alleged behaviour was said to have taken place when the complainant was aged between six and 16 years. It was argued that these incidents – if they occurred – could not have any substantial effect on the reliability of the evidence given when the complainant was aged 36 years.
There was no allegation that the Judge misapplied the law, had regard to immaterial matters, or failed to have regard to material matters. The reasons given by the Judge support his refusal to allow cross-examination on these topics, subject to the two exceptions that the Judge identified. The defence wished to engage in what could be fairly described as a fishing expedition. It is not without relevance that on the topics on which cross-examination was permitted, the defendant was consistent in his denial of the allegations put to him. I do not consider that any basis has been established to support the challenge to the Judge’s exercise of discretion in respect to these evidentiary issues.
Conclusion
I would dismiss the appeal.
VANSTONE J: The appellant was convicted by verdict of a jury for persistent sexual exploitation of a child. The information alleged that sexual exploitation of the victim had occurred during the period 1 January 1986 to 6 April 1992. The victim was aged 36 years at the time of trial.
In the notice of appeal the appellant took three grounds. Of those, ground 1 attracted a grant of permission by a single judge of this Court. It concerns an application which was made to the trial judge to cross-examine the victim in relation to his sexual activities before and after the relevant events. This ground raises the interpretation and application of s 34L of the Evidence Act 1929 (SA) (the Act). It was to this ground that most of the argument on the appeal was directed. I consider this ground raises a question of law. Ground 2 was a complaint that in directing the jury about the complainant’s evidence, the trial judge failed to give sufficient warning about the risks associated with accepting it. Ground 3 complained of admission into evidence by way of an admitted fact of a particular matter, which counsel argued was of no assistance to the jury, but might have prejudiced the appellant.
Permission to appeal on grounds 2 and 3 was refused by the single judge but is now renewed. For the reasons given by Gray J I agree that permission should not be granted on those grounds. In relation to ground 1, I agree that the ground should fail, but I prefer to give my own brief reasons.
Application of s 34L of the Evidence Act 1929
At trial counsel then acting for the appellant applied to the judge for permission to cross-examine the complainant about his alleged sexual activities before and after the events directly relevant to the charge. Permission of the judge was necessary pursuant to s 34L of the Act. Counsel had to hand a large number of files from the government department known as Families SA which had been produced on subpoena. Most of the topics upon which counsel sought leave were based on material derived from these files. The judge heard full argument about the proposed cross-examination and provided comprehensive written reasons for the rulings he made. As will be seen, he allowed cross-examination on some grounds but refused it on others.
Section 34L evinces a legislative intention – which is now of long standing – to protect alleged victims of sexual offences from distress, humiliation and embarrassment entailed in being cross-examined about their sexual reputations or prior sexual activities, unless the cross-examination is justified in the interests of justice. Such cross-examination may only occur with permission of the judge.
The judge is to grant permission only if, either, the evidence to be adduced is of substantial probative value (s 34L(2)(a)), or if relevant only to credibility, is likely to materially impair confidence in the reliability of the alleged victim (s 34L(2)(b)); and, in both cases, the interests of justice require the admission of the evidence.
Determining an application to cross-examine in a given case involves an assessment of the potential relevance and probative force of the evidence, or its capacity to impact upon the alleged victim’s credibility. It is essentially a question of judgment about admissibility, to be considered in the framework set out by s 34L, which provides a threshold of admissibility pitched at a much more demanding level than at common law.
Before granting permission, the judge must be “satisfied” that either one of the criteria in s 34L(2)(a) or (b) is met, and that the interests of justice require that the cross-examination be allowed.
Defence counsel was given permission to cross-examine the alleged victim on the basis of “at least some credible evidence” that he had been sexually abused by two other persons. This was allowed as it might explain both the abnormal clinical appearance of the complainant’s anus (as to which there was evidence) and an apparent knowledge of sexual matters which would not be expected at an early age.
However, permission was not given to cross-examine on an incident which was said to involve the complainant’s aunt, uncle and brother. There was material in the file to suggest that, during the period spanned by the information, the two boys reported that they were obliged by an aunt and uncle to watch the aunt and uncle having sexual intercourse, and then that the brother was told to have intercourse with his aunt. The judge was told this was relevant to show a disposition in the complainant to make false reports of sexual interference.
At the time of this alleged incident the complainant would have been about seven years of age. At the time of the trial he was 36 years of age. I am prepared to assume that a demonstrated disposition to concoct allegations of sexual interference could be of substantial probative value, or could materially impair confidence in a witness’s reliability. However, there was no evidence to refute the assertions in the file note that such an event occurred and this suggestion was not inherently unlikely. Moreover, the complainant’s age at the time and the time lapse between the allegation and the giving of evidence at trial, as well as the quite different nature of the suggested event, rendered the whole incident of, at best, marginal relevance.
Permission was also refused in relation to a large number of alleged incidents said to point to “highly sexualised behaviour” being exhibited by the complainant. For the most part these incidents occurred before or during the span of dates in the information. These were said to be relevant to show both an interest (although not an exclusive interest) in homosexual sex and also, such dysfunctional and disturbed behaviour by the complainant as to reflect on his reliability as a witness.
In my view this material, if admitted, could only have gone to the question of reliability. I agree with the judge that it was of very limited significance. If the complainant was indeed sexually abused by someone – as appears likely – then that would probably account for subsequent sexualised and dysfunctional behaviour. It is hard to see how the complainant’s acceptance or, conversely, denials of the various incidents would have affected the jury’s assessment of his reliability, let alone substantially. Whether the complainant had an interest in homosexual sex was not to the point. On the other hand, such cross-examination would very likely have been distressing to the complainant.
Conclusion
In my opinion the judge was correct in finding that, on these two topics, the requirements of s 34L were not met. It is not necessary to offer any observation in relation to the grant of permission on the remaining topics, since the correctness of those rulings is not a matter which was agitated before us.
For these reasons I would dismiss the appeal.
PARKER J: Subject to the qualification below, I agree with the reasons of Gray J and would dismiss the appeal.
I agree with the observation made by Vanstone J that before a judge grants permission under s 34L(1)(b) of the Evidence Act to permit the asking of a question or the admission of evidence concerning the alleged victim’s sexual activities, he or she must be satisfied that one or the other of the criteria in section 34L(2) (a) or (b) has been met and that the admission of the evidence is required in the interests of justice. This does not involve the exercise of a judicial discretion but rather the judge reaching the required state of satisfaction so as to render the evidence admissible under the special test imposed by the statute.