The State of Western Australia v G N - [2020] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- G N [2020] WADC 78
CORAM:   LEMONIS DCJ
HEARD:   21, 23 APRIL, 1 & 4 MAY 2020
DELIVERED          :   10 JUNE 2020
PUBLISHED           :   1 MARCH 2023
FILE NO/S:   IND 1843 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
G N

Catchwords:

Application for further examination of a special witness at a retrial - Consideration of applicable principles

Legislation:

Evidence Act 1906 (WA), s 106R, s 106T

Result:

Application allowed in part

Representation:

Counsel:

The State of Western Australia	:	Ms C Cullen
Accused	:	Ms M Barone SC & Mr A Mossop

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Musgrave Legal

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

[The accused] v The State of Western Australia [2019] WASCA 174
Bale v Mills [2011] NSWCA 226
Browne v Dunn (1893) 6 R 67 HL
Merrey v The State of Western Australia [2010] WASCA 62
MJH v The State of Western Australia [2006] WASCA 167
NCH v The State of Western Australia [2013] WASCA 29
R v Morrow [2009] VSCA 291
SAM v The State of Western Australia [No 2] [2016] WASCA 64
Tanner v The Queen [2001] WADC 207
The State of Western Australia v RAJ [2014] WADC 108
The State of Western Australia v SGH [2017] WADC 156
The State of Western Australia v TAT [2012] WADC 183

LEMONIS DCJ:

The accused is charged with two counts of sexual penetration without consent, being offences pursuant to s 325(1) of the Criminal Code (WA). The first count is that he sexually penetrated the complainant, by engaging in cunnilingus with her without her consent. The second count is that he sexually penetrated the complainant by penetrating her vagina with his penis without her consent.
The accused was convicted of both offences after trial by jury. The accused successfully appealed against both convictions and the Court of Appeal ordered there be a retrial on both counts.[1]
[1] [The accused] v The State of Western Australia [2019] WASCA 174.
In effect, what is now before the court is an application by the accused to further examine the complainant pursuant to s 106T(3) of the Evidence Act 1906 (WA). The application arises in the following way.
In respect of the first trial, an order was made pursuant to s 106R of the Evidence Act declaring the complainant a special witness and directing that she give evidence from what is commonly known as the remote room. The complainant gave evidence during the course of the trial in this manner. The complainant's evidence was visually recorded. The giving of evidence in such a manner is authorised by s 106R(4)(c) and s 106N(2). The video recording of the evidence is required by s 106N(3a).[2]
[2] The procedure for visually recording the complainant's evidence pursuant to s 106N(3a) applied in accordance with s 106R(4)(a).
The State applied by application dated 21 November 2019 for an order (amongst others) that the complainant's visually recorded evidence from the first trial be presented as the whole of the complainant's evidence at the retrial. During the course of initial argument, it became apparent the State did not need such an order as the complainant's visually recorded evidence is admissible in the retrial pursuant to s 106T(2). Therefore, to the extent the State's application sought such an order, it was unnecessary.
Where the visual recording is admissible pursuant to s 106T(2), a judge of a court in which it is proposed to adduce such evidence may order the witness to attend the court 'for the purposes of giving further evidence in clarification of the evidence on the visual recording': s 106T(3). The application of s 106T(3) to this matter was where the real dispute between the parties lay and the matter was argued before me as an application by the accused for orders pursuant to s 106T(3).
The accused's primary position is that while the video recording of the complainant's evidence is admissible (subject to any required editing to deal with objections), the entirety of the cross-examination should be excluded from the recording and the complainant recalled for cross‑examination at large. The accused contends that if he is allowed to ask further questions at a retrial, then the cross-examination becomes irrelevant.[3]
[3] ts 526.
However, in my view, the existing cross-examination, that is the answers given to the questions asked, is still relevant evidence notwithstanding that further examination may be allowed. Therefore, I do not agree with the accused's primary position. Further, I do not agree that the accused should be permitted to cross-examine the complainant at large. As I explain below, the scope for further examination which s 106T(3) allows is limited, by both the precondition necessary to enliven the discretion which the section provides, and by the proper exercise of that discretion once it is enlivened.
Whether or not the procedures afforded by s 106T might be amenable to the exercise of a general discretion to exclude the entirety of the cross-examination on the basis that its prejudicial effect outweighs its probative value was not argued before me. I therefore express no view on it.
Before turning to the applicable principles, it is useful to outline the circumstances of the alleged offending and the parties' respective positions in respect of it.

The alleged offending

The complainant worked for the accused's car rental business. The offending is alleged to have occurred at the accused's house, the accused and the complainant having travelled there by car from the business premises. The accused disputes he engaged in cunnilingus with the complainant. The accused admits he penetrated the complainant's vagina with his penis and says the complainant consented to this act of penetration. Thus, the critical issues at trial will be whether the State has proved beyond reasonable doubt that:
1.The cunnilingus occurred.
2.The complainant did not consent to the penile/vaginal penetration.
At the first trial, the State adduced other conduct evidence to assist in an understanding of the relationship between the accused and the complainant. The nature of this evidence is helpfully set out in the Court of Appeal's judgment at [9] ‑ [21]. In an overall sense, the nature of the relationship as portrayed by the other conduct evidence is that of sexualised predatory behaviour by the accused towards the complainant. In contrast, the defence case is that while there had been platonic hugging and cheek kissing from time to time between the accused and the complainant, the other conduct did not occur and the only sexual activity between the accused and the complainant occurred on the day of the alleged incident the subject of the charges.
Furthermore, at trial, the accused gave evidence that the sexual activity with the complainant occurred on 15 March 2017.[4] The accused referenced this date to it being shortly prior to his wife returning to Perth from Dubai. The complainant gave evidence the sexual activity occurred on 28 March 2017.[5] The significance of the dispute as to the date is that in the period from 15 March 2017 through to April 2017, the complainant continued to interact with the accused (including by text messages) and continued to work at his business. The nature of these interactions and the extent to which they are consistent with the complainant's evidence, or the defence case, bears on the question of the honesty and reliability of the complainant's evidence not only in respect of the alleged incident itself, but also in respect of the complainant's interactions with the accused prior to and post the alleged incident.
[4] ts 223, ts 256.
[5] ts 55.
A further aspect of the defence case is that the complainant had a motive to lie by reason of the complainant being the subject of a complaint of stealing in the course of her employment with the accused's business.
If the accused was to give evidence at the retrial, then presuming that evidence is substantially consistent with his evidence given at the first trial, for a jury to convict the accused, the jury must reject his evidence and be satisfied beyond reasonable doubt as to the honesty, accuracy and reliability of the complainant's evidence in respect of the conduct the subject of each count. The Court of Appeal observed in respect of the first trial that 'resolution of credibility issues surrounding conflicting oral testimony was critical to the jury's determination of their verdicts'.[6] In my view, the same observations apply to the retrial.
[6] [The accused] v The State of Western Australia [2019] WASCA 174 [83].
I now turn to the applicable principles.

Applicable principles

Section 106T(3) applies to the recall of both an affected child witness and a special witness for further examination. The principles applicable to the application of s 106T(3) have been usefully summarised in Tanner v The Queen[7] and The State of Western Australia v TAT.[8] In summary, those principles are:
[7] Tanner v The Queen [2001] WADC 207.
[8] TheState of Western Australia v TAT [2012] WADC 183 [11].
1.The court has a discretion to order an affected child or a special witness to give further evidence where it is in the interests of justice to do so.
2.The onus is on the applicant for the order to satisfy the court that it is an appropriate case for the exercise of the discretion.
3.The discretion is enlivened if the court is satisfied that the purposes of giving further evidence is in 'clarification of the evidence on the visual recording'.
4.In considering the exercise of the discretion, the court must consider the interests of the accused, in particular the right to a fair trial, and also the interests of the witness. There is therefore a necessary balancing requirement. The interests of the witness include consideration of the distress that may be caused to the witness if recalled.
5.The concept of 'further evidence in clarification' imports two concepts. First, the evidence must be further evidence in the sense of it being additional. Second, it must be in clarification, which means to make more clear.
6.If evidence can be given to make more clear the videotaped evidence then any evidence which is material to the charges or which should properly be put would be encompassed within the expression. However, if there has been cross-examination of a witness with respect to a particular subject then unless some fresh propositions are to be put, further cross-examination will not properly be seen to be in clarification of the evidence.
7.It will be necessary for an applicant for such an order to define with some precision the subject matters about which the witness is to be further questioned, however this does not require a list of questions to be provided.
8.Where the accused is the applicant, consideration of the prejudice to the accused if the application is not granted will involve looking at how important the further questioning is to the accused's defence of the charges.
9.The regime provided for by s 106T is applicable to a retrial.[9] However, absent clear legislative intent, the conduct of a retrial is not affected by what happened at the first trial.
10.Accordingly, while the language of s 106T(3) is limiting by the use of the phrase further evidence in clarification, it should not be construed narrowly. To so do, would fundamentally affect the nature of a retrial. Accordingly, the phrase is not restricted to the matters the subject of the videotaped evidence.[10]
[9] Section 106T(5)(c).
[10] Tanner [14]; TAT [17] ‑ [21].
In relation to points 9 and 10 of [17], the hearings to which s 106T(3) applies are expressly defined to include a retrial: s 106T(5)(c). A narrow reading of the phrase further evidence in clarification so as to encapsulate only those topics covered in evidence at the first trial, may well result in an accused's case at the retrial not having been fairly put to the complainant in cross-examination. So, for example, if new evidentiary material arose post the first trial, a narrow reading of the phrase would not permit further examination on that material, irrespective of its importance. I do not consider s 106T(3) is intended to operate in such an absolute manner in respect of the conduct of a retrial. Accordingly, I agree with the views expressed in Tanner and TAT that the phrase should not be construed narrowly. However, because the topic of further examination constitutes further evidence in clarification in respect of a retrial, does not of itself mean the discretion should be exercised in favour of permitting the further examination. It remains a matter which informs the discretionary exercise, but it is not determinative of it.

General observations as to the exercise of the discretion

A particular issue that has arisen here is how the discretion provided for by s 106T (3) of the Evidence Act, if enlivened, should be exercised.
The State in its submissions referred to the decision of the The State of Western Australia v SGH[11] in which his Honour Chief Judge Sleight observed that the procedure provided for by s 106T(3) for recalling a child witness is exercised very rarely by the District Court.
[11] TheState of Western Australia v SGH [2017] WADC 156 [44].
What his Honour was saying there is directed to the recalling of a child witness, whose evidence was pre-recorded, and not given during the course of the trial. As his Honour observed, one of the main reasons for pre-recording a child's evidence is to facilitate the giving of that evidence as soon as possible after the alleged offence occurred.[12] Such a consideration is not applicable here; the complainant's evidence was not given prior to trial. Further, I do not read his Honour's reasons as conveying that rare or exceptional circumstances must be demonstrated for the discretion to be exercised in favour of the applicant for the order. Rather, what his Honour was saying is that as a matter of fact, it has been rare for this court to exercise the discretion in respect of child witnesses.
[12] SGH [43].
The State also relied on the observation in The State of Western Australia v RAJ[13] that to 'go outside s 106T(3) would require … some very special circumstances'. However, the argument before me is directed to whether the further examination sought should be permitted pursuant to s 106T(3); the accused does not seek to go outside its operation.
[13] The State of Western Australia v RAJ [2014] WADC 108 [94].
Section 106E - s 106T of the Evidence Act put in place procedures which are designed to minimise the impact on certain witnesses from giving evidence. Insofar as they relate to the taking of evidence in court, the provisions are for the benefit of two separate categories of witnesses. The first is an affected child, which relevantly is a child upon or in respect of whom it is alleged an offence as described in sch 7 was committed, attempted or proposed. Schedule 7 offences are directed in broad terms to sexual offending (pt B) or where the offending is of a particular seriousness and the accused has a familial or similar close relationship to the complainant child (pt C). The evidence of an affected child may be taken at a special hearing prior to trial, visually recorded and then presented as evidence in the form of that visual recording without the affected child having to be present at the ultimate trial: s 106K.
The second category is a person whom the court declares to be a special witness. The grounds for the making of such a declaration are set out in s 106R(3). They include whether the witness has a physical disability or mental impairment, or is likely to be so intimidated or distressed, such that they are unlikely to be able to give evidence, either at all or satisfactorily.[14] These grounds are directed to the witness' ability to give evidence. A further ground is whether the witness is likely to suffer severe emotional trauma, irrespective of whether the trauma effects the witness' ability to give evidence.[15]
[14] Section 106R(3)(a) and s 106R3(b)(ii).
[15] Section 106R(3)(b)(i).
Furthermore, by s 106R(3a), in a proceeding for a serious sexual offence[16] the court must make a special witness order unless satisfied both that the criteria set out in s 106R(3) do not apply and that the person does not wish to be declared a special witness. Here, the charges brought against the accused are serious sexual offences and therefore s 106R(3a) applied.
[16] The phrase serious sexual offence is defined by s 106A to include an offence mentioned in pt B of sch 7 for which the maximum penalty that may be imposed is 7 years or more.
Where a special witness order is made, arrangements similar to the taking of an affected child's evidence are to be put in place: s 106R(4) and s 106R(4a). As I have explained, this includes the taking of evidence from the remote room and such evidence being visually recorded.
A clear purpose of these provisions is to minimise the effect on an affected child or a special witness from giving evidence. The provisions are designed to ensure the witness gives evidence in the most effective, and least traumatic, manner possible.
Section 106T(3) must be viewed in this context. However, this does not mean the impact to a witness from being recalled becomes the predominant consideration in the exercise of the discretion provided for by s 106T(3). Instead, it is a relevant, albeit important, consideration.
The State submits that the purpose of the provisions is to provide for finality in respect of the giving of evidence by an affected child or a special witness. I accept this is one of the purposes of the regime. However, this purpose does not dictate the exercise of the discretion; rather, it informs it. The overriding consideration for the exercise of the discretion must be the interests of justice, recognising that such interests take account of the interests of the witness sought to be recalled.
The accused submits that once it has been decided that a witness should be recalled to be further examined on one particular subject matter, then the prejudice to the witness of being further examined on the remaining subject matters becomes less significant. Of course, there is a difference between the prejudice to a witness who otherwise would not be recalled at all, compared to the prejudice where the witness needs to be recalled in any event. However, in my view, the defence submission oversimplifies the position. The distress to a witness from being recalled is not only caused by having to give evidence again. It is also caused by being subjected to further cross‑examination in respect of matters of particular sensitivity. Thus, the distress to a witness may be exacerbated by the accumulation of the matters put in further examination.
Further, the accused submits that in assessing the materiality of the matters about which the defence wishes to further examine, a number of those matters must be viewed in their totality. In this respect, the accused points to the critical issue in the trial being the jury's acceptance of the complainant's evidence as being honest, accurate and reliable.
As I explain below, the accused has identified a number of subject matters for further examination, and each subject matter comprises separate topics. The accused submits the compounding effect of matters affecting the complainant's honesty and reliability needs to be kept in mind. To an extent, I agree. However, in my view, the compounding effect still needs to be assessed having regard to the materiality of the particular topic of examination itself, so as to ensure that insignificant accretions to the areas of examination are not allowed merely because per se they add to the total area to be covered in further examination.

Ultimately, in my view, the exercise of the discretion is a balancing process, having regard to the overall interests of justice, which must take account of the significance of the questioning to the fairness of a trial and the distress to the witness from being recalled. To my mind, there is no prima facie starting position, either in favour of the accused or in favour of the witness.

Effect on complainant of being recalled

It is not surprising that the complainant would suffer distress by reason of being recalled. The accused accepts this in a general sense.[17]
[17] ts 425.
The State sought to adduce evidence of the complainant's likely distress by way of a letter from a psychologist to the Director of Public Prosecutions and an assessment report from the Victim Support Service, both being directed to the impact on the complainant of giving further evidence. The accused objected to me receiving this material on the basis that it constituted counselling communications within the meaning of that phrase as defined in s 19A of the Evidence Act. The accused submitted that as counselling communications, the material constituted protected communications within the meaning of s 19A and could only be disclosed to the court with leave having first been granted pursuant to s 19C(1).
As a consequence of this objection, the State (without conceding leave was required) withdrew the psychologist's letter and maintained reliance on the Victim Support Service's assessment report. In order to determine the accused's objection, it was necessary for me to review the assessment report, which I have done.
The introduction to the report records that the assessment provided by the Victim Support Service was to address the impact on the complainant should she be required to give evidence again in respect of the accused's trial. In undertaking the assessment, the author of the report spoke to the complainant. The letter concludes that:
The symptoms associated with [the complainant's] anxiety, depression and PTSD may have been exacerbated by her having to give evidence at the District Court Trial on 3rd September 2018. [The complainant] presents as a highly traumatised and vulnerable woman. I am concerned that she may experience significant emotional re‑traumatisation if required to attend to give evidence at the District Court Trial on 9th June 2020.
The phrase counselling communication is defined by s 19A(1). It is directed to confidential communications which occur within the context of counselling being provided to a person upon or in respect of whom it is alleged a sexual assault was committed. The accused points to the definition of counsels in s 19A(2) as being of wide import, and includes listening to, giving verbal or other support or encouragement to the other person, as well as providing advice, therapy or treatment. The accused says the definition is of such wide import, that it encompasses the assessment report. In this respect, the accused places some emphasis on the services reflected by the letter being support services.
I do not allow the accused's objection for two reasons.
First, I do not regard the report as being made in confidence within the meaning of the phrase counselling communication. The concept of a communication being in confidence in the context of the regime put in place by s 19C is directed to communications which are not intended for use in the proceedings in which they are sought to be adduced. Given the sensitive nature of such communications, leave is then required to use them for a purpose other than which they were intended. However, the purpose here of obtaining the report was for it to be produced to the court in respect of this application. Therefore, in my view, it does not meet the requisite characterisation of confidence such as to fall within the defined phrase counselling communication.
Second, I do not regard the communication as constituting, or reporting on, counselling of the complainant. The purpose of the report is to provide an assessment of the risks to the complainant if called to give further evidence. As such, it is not a counselling process, nor does it constitute the author being a counsellor to the complainant. The accused points to the letter being from the Victim Support Service as demonstrating that it constitutes 'support' within the meaning of counsels as defined by s 19A. However, in my view, the concept of support within that definition is directed to support provided as part of a counselling process. It is not directed to support in the abstract sense. Thus, while the effect of the letter may be to support the complainant because it advances her interests, it does not mean the letter constitutes support within the context of counselling.
I therefore receive the report.
Moving on to the terms of the report itself, the accused points out the report records that the complainant had been diagnosed with depression prior to the alleged offences and therefore her condition is not solely attributable to the alleged offending. As the accused's counsel accepted,[18] it is not for me to allocate responsibility for the complainant's condition. Rather, what I am required to do is to assess the impact on the complainant of giving further evidence now. The accused's counsel submitted:[19]
… it would be considered to be more unfair or more prejudicial to a complainant to call them if their only concerns arise out of the trauma of the alleged event as opposed to someone who is otherwise generally unwell.
[18] ts 426.
[19] ts 426.
However, this is not just a case of someone being generally unwell. The complainant had a pre-existing mental health condition prior to the alleged incident, thus making her more vulnerable to being further examined about the incident and its surrounding circumstances. That being so, the pre-existing condition cannot be divorced from the distress that may arise from giving further evidence, as it contributes to the extent of that distress and its effect on the complainant.
I therefore have regard to the contents of the report in the assessment I am required to make, recognising that by its terms it reflects that the recall of the complainant to give evidence is likely to have a significant adverse effect on her.
I now move to the particular areas of further examination advanced by the accused.

Areas of further examination sought

As I have already observed, it is necessary on an application pursuant to s 106T(3) for the relevant applicant to identify with some precision the subject matters about which they wish to further examine the witness.
Such identification enables an assessment to be made whether examination on the proposed subject matter is 'further evidence in clarification of the evidence on the visual recording', thus enlivening the discretion provided for by s 106T(3). The subject matter also affects the exercise of the discretion, having regard to its effect on the accused's right to a fair trial, and its effect on the complainant from being recalled.
The accused points to three particular areas where his counsel wishes to further examine the complainant. They are in respect of:
1.Inconsistencies between the complainant's evidence and her primary prior written statement, as well as the proofing notes provided by the State prior to trial.
2.Text messages passing between the complainant and the accused.
3.Compliance with what is commonly known as the rule in Browne v Dunn.[20]
[20] Browne v Dunn (1893) 6 R 67 HL.
I deal with each of these separately below. I propose to start with the text messages, as this was the area of least controversy between the parties.

Text messages

During the trial, a number of text messages passing between the accused and the complainant were tendered by the accused. The complainant was cross‑examined on these text messages, however the extent of the cross‑examination insofar as it was directed to the content and effect of the messages was quite limited.
In the accused's first set of written submissions, the accused did not set out the subject matters upon which he sought to further examine the complainant in respect of the text messages. These subject matters were identified by the accused's counsel during the course of oral submissions. Once the subject matters were identified, counsel for the State quite properly accepted that further examination in respect of the text messages should be allowed. I therefore directed the accused's counsel to file further submissions which set out the topics for further examination by reference to each text message.
The further submissions identified the following topics:
a.How the text messages fit with the chronology (of her date range, the accused's date range and the immigration records of the wife).
b.How the messages fit with the accused's narrative of events leading up to 15 March 2017 (including the events on 15 March 2017) and the bolstering of the accused's characterisation of their relationship.
c.How the emoji's and the language used in the text messages is inconsistent with:
i.The complainant's asserted ongoing relationship of harassment.
ii.The counts on the Indictment having occurred.
d.How the text messages fit with a motive to lie by the complainant.
The further submissions also identified which of these topics applied to each text message. I have set this out in the table at Schedule A to these reasons.[21]
[21] In respect of table at Schedule A, I have amended the accused's table so as to provide that in respect of the 15 March 2017 text exchange, the table refers to only one message from the accused and in respect of the text exchange on 17 March 2017, the table refers to two messages from the accused.
In assessing the topics which the accused has identified, it needs to be kept in mind that the interaction between the accused and the complainant is relevant to the alleged sexual offending itself, and also to the nature of their relationship both prior to and post the alleged incident.
In my view, cross-examination on the identified topics is further evidence in clarification within the meaning of s 106T(3) as the complainant was not cross‑examined on those topics referable to the text messages in the first trial. Therefore, the discretion provided for by s 106T(3) is enlivened.
Further, in respect of the exercise of my discretion, in my view communications between the accused and the complainant contemporaneous with their relationship have the capacity to materially bear on an assessment of the credibility of the accused and of the complainant.[22] As one example, on the evening of 15 March 2017 there is a positive and respectful text message exchange between the accused and the complainant. If the jury was satisfied the alleged sexual activity between the accused and the complainant occurred on 15 March 2017, then the text messages sent between the accused and the complainant that evening may well cast doubt on the complainant's version of events.
[22] I use the word credibility here to indicate both honesty and reliability.
I accept that the recalling of the complainant to be cross-examined on the text messages is most likely to cause her significant distress. However, as I have explained, in my view, cross-examination of the complainant on the text messages has the capacity to materially bear on an assessment of the credibility of the complainant and the accused. I also take account that the court has procedures available whereby the distress can be ameliorated to some extent by way of the complainant giving evidence from a remote room, as well as the complainant having a support person with her in accordance with s 106R(4)(a). Furthermore, it may be preferable that the further examination of the complainant takes place prior to trial so as to more readily accommodate regular breaks in her evidence. I address this issue in more detail below.
There are two particular concerns which the State has raised in respect of further examination being allowed on the text messages. First, the State is concerned that if particular text messages are put to the complainant individually, absent the context of the surrounding messages, this may be unfair to her. However, as I explained during the course of the hearing, in my view it is a matter for the trial judge[23] to assess whether or not a particular line of questioning is unfair. Therefore, I will leave this issue to the presiding judge, reserving to the State the ability to object to the questioning on the grounds of such unfairness.
[23] Or the judge presiding at any special hearing at which the further evidence is taken.
The second concern the State has is in respect of topic b set out at [53] above. The State raises that cross-examination on this topic should not result in the complainant being cross-examined again on the subject matters within the messages, as opposed to what the messages convey. It seems to me this concern arises in respect of all of the topics. In my view, the extent to which the accused may cross‑examine on the text messages must be limited to what the messages convey, so the accused may cross‑examine the complainant as to whether the text messages convey that particular events happened, and if so when, or convey their relationship in a particular light at a particular point in time.
The cross-examination cannot be used as a mechanism to cross‑examine at large as to the events the subject of the messages. I appreciate there is a possibility this may give rise to practical difficulties as to what follow-up questions may need to be asked.[24] However, if there is such a difficulty, a further application pursuant to s 106T(3) can then be brought.
[24] See Tanner [20] regarding the asking of follow up questions.
For these reasons and subject to the qualifications expressed at [59], [60] and [61], in my view the discretion should be exercised in favour of permitting the accused to examine the complainant on the topics referred to at [53] as they apply to each of the text messages identified in Schedule A.

Prior Inconsistent Statements

General observations

The accused seeks to cross‑examine the complainant in accordance with s 21 of the Evidence Act on inconsistencies between her evidence and statements made by her prior to trial.
Prior to trial, the complainant signed a written statement dated 24 May 2017 and gave a second statement on 29 June 2018.[25] The first statement was signed just under two months after the complainant alleges the offending conduct occurred. In addition, the complainant participated in a proofing session with the State's trial counsel, as a result of which the State's trial counsel sent an e-mail to the accused's trial counsel on 23 August 2018 setting out a 'can say' statement directed to the complainant's first statement.
[25] The copy in the State brief is unsigned, however that is not of any relevance to this application.
The accused seeks to cross‑examine the complainant on inconsistencies that arise from the first statement and from the proofing note. In respect of the proofing note, the State accepts s 21 of the Evidence Act does not require the prior statement to be in writing. Accordingly, what is set out in the State counsel's email can be put to the complainant as an inconsistency if the complainant accepts the accuracy of what is in the email, or if she does not, it is otherwise proved she made statements to the State counsel consistent with what is set out in the e-mail.
In large part, the inconsistencies relied upon by the accused relate to omissions from the complainant's prior statements. The accused submitted that:[26]
Evidence given by a witness which was omitted from a prior statement is a prior inconsistent statement.
[26] Accused's supplementary submissions dated 23 April 2020, par 5.
The effect of this submission is that any evidence given at trial which is not included in a prior statement constitutes an inconsistency. In my view, this puts the matter too broadly.
In MJH v The State of Western Australia,[27] McLure JA addressed the issue of inconsistency directed to the circumstances and consequences of an assault, which assault was the subject of one of the counts against the appellant in that case. Her Honour stated:[28]
The circumstances and consequences of the assault are factually relevant to the subject matter of the proceedings. The matters were omitted from the complainant's evidence and that gives rise to an inconsistency for the purposes of s 21 of the Evidence Act. A prior statement may be inconsistent with a witness' testimony either because it omits significant material included in the testimony or because it contains significant material omitted from the testimony.
[27] MJH v The State of Western Australia [2006] WASCA 167.
[28] MJH [132].
Further, in MJH, Buss JA stated:[29]
A prior statement of a witness will be 'inconsistent' with his or her evidence if there are discrepancies or divergences between the statement and the evidence. For example, where a witness has made a prior statement in which he or she gives an account of an event or transaction that is in issue in the proceedings, and the witness gives evidence of the event or transaction which omits material facts contained in the previous account, the prior statement will be 'inconsistent' with his or her evidence.
[29] MJH [158].
The accused submitted in his counsel's supplementary submissions dated 23 April 2020[30] that in the extract from the judgment of McLure JA, her Honour was using the word significant in the context of whether the statement was relevant to the subject matter of the charge, not to the notion of inconsistency. The question of relevance is directed to the requirement in s 21 that the statement be 'relative to the subject‑matter of the proceeding'.
[30] Paragraph 14.
In the extract set out at [68], her Honour initially states that the identified subject matter was factually relevant. Her Honour then deals with the issue of inconsistency and in that context uses the phrase 'omits significant material'. In my view, her Honour was using this phrase in the context of inconsistency, not relevance. Further, in my view, her Honour's reasoning, understood in this way, is substantially consistent with the extract set out from the judgment of Buss JA. Accordingly, I do not accept the accused's submission.
Having regard to what was said in MJH, in my view for an omission to constitute an inconsistency, the matters omitted must be of significance, such that they would be expected to have been included in the original account or version.
Further, in my view the relevant statement has to be interpreted as a whole. That is, it is not to be viewed in a piecemeal way. And, in interpreting the statement, it is necessary to consider whether it was intended to cover the same ground which was covered in evidence.
In addition, in order to put an inconsistency to a witness, it is sufficient if the asserted inconsistency arguably arises from the prior statement. As such, prior to questioning a witness in accordance with s 21, the party wishing to assert an inconsistency need not definitively establish that the asserted inconsistency arises. However, in my view, similar to the position in respect of the drawing of inferences, the inconsistency put forward must not be mere speculation or conjecture.
As to the application of s 106T(3) to prior inconsistent statements, in my view, examination on such statements may constitute further evidence in clarification within the meaning of s 106T(3), even if the examination only goes to the issue of the reliability of the complainant's account. The further examination may clarify by exposing that the giving of the evidence is the first time the witness has suggested such matters, or that the evidence diverts from what a witness has previously said about the subject matter. Accordingly, in my view to examine a witness about a prior inconsistent statement falls within the concept of clarification as intended by s 106T(3). Further, in my view, to construe s 106T more narrowly so as to prevent such examination as a general rule would fundamentally affect the nature of a retrial.

Of course, this is not to say that the putting of such inconsistencies will always be permitted. Rather, what I have said is limited to whether or not the precondition is met. Whether or not the discretion will be exercised is a separate consideration.
Here, at trial, the accused's counsel did not cross-examine the complainant on any inconsistencies between her prior statements and her evidence at trial. The State pointed out there may be particular forensic reasons why this was not done in respect of certain of the subject matters raised by the accused. However, when regard is had to the overall breadth of the inconsistencies as I outline below, it is difficult to discern a forensic rationale for none of them having been put to the complainant in cross-examination.
The accused submitted in his counsel's supplementary submissions that as credit will be a fundamental issue in the trial, the accused is entitled to explore any inconsistency in the complainant's evidence whether taken singularly or in a cumulative way.[31] The effect of this submission is that where the witness' credit is in issue, any inconsistency is of such importance that the exercise of the discretion mandates that it be put.
[31] Paragraph 17.
I disagree with this submission for two reasons. First, as I have explained above, the materiality of the subject matter, even when considered in a compounding manner, still needs to be taken into account in assessing the importance to a fair trial of further examination on it. Second, the submission overlooks the distress to the complainant and proceeds on the premise that the accused's position in such circumstances must prevail. As I have explained, in my view the exercise of the discretion is a balancing exercise, with no preordained starting position.
I now turn to the specific subject matters raised by the accused.[32] I consider the question of the exercise of the applicable discretion after having determined the extent of the inconsistencies which arise.

General conduct in the wash bay area

[32] These subject matters are set out in the accused's written submissions dated 24 March 2020.

This subject matter is directed to pars 15 and 16 of the complainant's first statement and also the proofing note in respect of par 16.
The first matter raised is that the effect of the complainant's evidence was that the accused kissed her on the lips in a generalised way, while her statement was this happened only once.[33] I have reviewed the transcript of the complainant's examination‑in‑chief where this evidence was given.[34] In my view, the complainant's evidence is to the effect that the accused kissed the complainant on the lips once. The specifics of what she described as having occurred, and what was said between her and the accused, is all consistent with it being on one occasion only. Furthermore, this is consistent with the Court of Appeal's reasons, their Honours summarising the evidence of the other acts engaged in by the accused as including on 'one occasion, the [accused] kissed her on the lips'.[35]
[33] ts 36 - ts 38; the complainant's first statement pars 21 - 26.
[34] ts 36 - ts 38.
[35] [The accused] v The State of Western Australia [2019] WASCA 174 [10](2).
Therefore, in my view there is no inconsistency and I do not allow further examination on this topic.
The second matter raised is in respect of the complainant's evidence that the accused would say things to her like 'you've got a big arse'.[36]
[36] ts 36.
At pars 15 and 16 of the complainant's first statement, the complainant set out general things the accused would do to her on a regular basis. This did not include any reference to the accused saying the complainant had a big arse.
Paragraph 15 commences with the words:
Some general things that [the accused] would do on a regular basis are …
The statement does not purport to set out all of the general things that the complainant alleges the accused would do. The use of the words 'some general things' conveys the generality of what was being described, and is not suggestive of the description being exhaustive. That being so, in my view, there is no inconsistency arising from the complainant's evidence and I do not propose to allow further examination in respect of this subject matter.
The third matter raised in respect of this topic arises from the proofing note and is addressed to par 16 of the complainant's first statement. Paragraph 16 describes matters the accused would do to the complainant in the workplace. It states:
He would also walk up behind me and massage my back, or come up behind me and put his arms around my stomach and try and feel my breasts.
The complainant gave evidence these matters occurred in the work place.[37]
[37] ts 38.
The proofing note states in respect of par 16:
This happened at the accused's backyard during the work Christmas party 2016.
Paragraph 16 describes two separate incidents. It is unclear from the proofing note which of the incidents described is said to have occurred during the work Christmas party in 2016. Accordingly, it seems to me that cross-examination directed to whether the complainant accepts the accuracy of the proofing note directed to par 16, and if she does:
1.which of the incidents the subject of par 16 the proofing note is referring to; and
2.irrespective of whether it is one or both of those incidents, her evidence being inconsistent with the proofing note,
constitutes further evidence in clarification.
The State points to the complainant not giving evidence that anything occurred to her at the Christmas party, such evidence as to what occurred at the Christmas party being adduced from the complainant's work colleague, Ms D and the complainant's partner. However, the proposed further questioning is directed to the inconsistency between what is recorded in the proofing note, and the complainant's evidence. Such questioning is directed to her evidence being inconsistent with what she said previously, which may affect a jury's assessment of her reliability as a witness.
The accused also suggests there is an inconsistency in that the complainant's statement said that the accused would come up behind her and massage her back,[38] while her evidence was he would massage her neck and back.[39] I do not regard the omission from the first statement of the reference to massaging her neck to be of such significance as to arguably constitute an inconsistent statement. The back and neck are adjoining and are not sexualised areas. By way of contrast, if the evidence was the accused massaged her back and buttocks, then in my view that could constitute an omission of significance such as to give rise to an inconsistency, given the buttocks can be regarded as a sexualised area. In any event, even if I did regard the matter as giving rise to an arguable inconsistency, I do not regard it as being sufficiently material such as to warrant the exercise of the discretion to allow further examination in respect of it. At best, it is a limited accretion to the massaging of the back, in circumstances where conduct of much greater significance is described by the complainant, directed towards the complainant's breasts,[40] and simulated sexual activity from behind.[41]

Specific kissing event in the wash bay

[38] Paragraph 16.

[39] ts 38.

[40] ts 37 and par 16.

[41] ts 38 and par 17.

The accused did not press the subject matter 'specific kissing event in wash bay' appearing at page 6 of the accused's counsel's outline of submissions dated 24 March 2020.

Conduct in the kitchen

Paragraphs 17 ‑ 19 of the complainant's first statement refer to an incident whereby the accused came up behind her and was acting like he was trying to have sex with her. The complainant said her colleague, Ms D witnessed this. The complainant said in evidence that Ms D, Mr C (a work colleague) and Mr B (a part owner of the business) were present.[42]
[42] ts 39.
The State says that the complainant's first statement does not suggest Ms D was the only person there.
It seems to me that par 19 of the first statement is directed to the complainant saying that Ms D witnessed what occurred. There is a difference between the complainant knowing who witnessed it and who was there. The complainant's evidence at trial was limited to who was present. Therefore, I do not consider there is any inconsistency and even if there were, I do not regard it as of such materiality as to warrant further examination on it.
From reviewing the transcript, there is a matter not raised by the accused which I think should be considered. In the complainant's statement, she said the incident did not last very long and the accused walked off laughing.[43] In her evidence, the complainant describes the incident and then says 'I ran out - I ran outside'.[44] I will ask the parties to consider whether the accused should be permitted to further examine the complainant on her having made a prior inconsistent statement arising from the difference between this evidence and her statement.

Wife present during conduct

[43] Paragraph 18.

[44] ts 38.

At par 29 of the complainant's first statement, the complainant said:
Other times [the accused] has also walked past me and said, 'I would like to fuck you', I replied you are revolting.
The proofing note in relation to par 29 states the accused said:[45]
('WTEO 'I want to fuck you') to her on one occasion at work and his wife was present.
[45] WTEO means words to the effect of.
The difficulty with this matter arises from the ambiguity of the proofing note. It could suggest the complainant is saying the accused said words to the effect that he wants to fuck her on only one occasion, or it could convey that on one of the multiple occasions he said this, his wife was present.
The examination‑in‑chief of the complainant on this topic commenced by State counsel asking if there was ever an incident between the complainant and the accused when the accused's wife was present. As such, the topic was introduced by reference to the accused's wife being present, not by what the accused said. The complainant described an incident where the accused said to her 'I'd like to fuck you' and his wife was next to him when he did so.[46] Counsel for the State did not ask the complainant whether the accused said words to such effect on other occasions. The complainant was cross-examined on the basis that the relevant event in front of the accused's wife did not happen.[47]
[46] ts 39, ts 40.
[47] ts 55.
The effect of the complainant's evidence‑in‑chief and cross‑examination was that the complainant's evidence was silent on whether the accused said the words on one or more occasions.
Section 21 of the Evidence Act allows for cross-examination as to inconsistencies between a witness' testimony and the witness' prior statements. Section 21 is not directed to inconsistencies between the prior statements. At present, there is no inconsistency between the complainant's evidence and the proofing note, as the complainant's evidence is silent on whether the words were spoken on one or more occasions.
However, it seems to me the potential significance of this topic is that the words being allegedly spoken in front of the accused's wife is suggestive of the accused becoming quite brazen in his conduct towards the complainant. Therefore, if the complainant's position is the accused only ever said such words to her once, in my view the omission from the complainant's first statement that the accused's wife was present at the time is significant and is capable of giving rise to an inconsistency.
That being so, in my view further examination of the complainant directed to the following matters would clarify her evidence:
1.On how many occasions the accused said the words to her.
2.If it was only once, directed to the omission from her statement that the accused's wife was present at the time the words were spoken.
The accused also sought to further examine as to the use of the phrase, 'WTEO' in the proofing notes, which I understand to mean 'words to the effect of'. I do not consider this gives rise to any inconsistency. The words that the complainant gave evidence the accused said to her are substantially consistent with the description of the words as referred to in the proofing note.
The accused also sought to further examine on an inconsistency between the statement, it suggesting the words were said more than once, and the proofing note, it being capable of suggesting the words were said only once. In this respect, as I have said, I consider the proofing note is ambiguous and arguably conveys the words were only spoken once. However, in any event, as I have explained, s 21 of the Evidence Act is not directed to inconsistencies between prior statements. I therefore do not allow further examination on this topic.
Finally on this topic, I appreciate that a potential inconsistency between the complainant's evidence and the proofing notes may ultimately arise depending on the answer to the questioning outlined at [106] above. Specifically, if the complainant was to say the accused said the words on more than one occasion, this may give rise to an arguable inconsistency with the proofing note. However, even if that is the case, I do not consider the questioning should be allowed to continue so as to assert such an inconsistency. As I have explained, the important issue in respect of this topic is directed to the complainant's first statement not containing any reference to the accused's wife being present when the words were allegedly spoken and in my view that is the limit of what should be allowed.

Date of event

At par 35 of the complainant's first statement, the complainant stated that the incident the subject of the counts occurred in the first week of April 2017. She also said:
I can't recall the date but it was the day before [the accused's] wife returned from Dubai.
Her evidence‑in‑chief at trial was:[48]
I think it was a Friday … 28th I think, I'm sure of March 2017.
[48] ts 40.
In cross-examination, the complainant said the incident happened on 28 March 2017.[49]
[49] ts 55.
The accused says the incident occurred on 15 March 2017.
I have explained above at [13] the significance of the dispute regarding the date.
The State accepts that the complainant's statement and her evidence regarding the date are inconsistent. In my view, this inconsistency is potentially of significance, given its potential to affect the jury's assessment of the complainant's evidence as to when the incident occurred and the potential flow on effect this may have on a jury's assessment of the honesty and reliability of the complainant's evidence in the manner I have described at [13].
A further matter the accused raised was that the accused's wife's immigration records were not put into evidence at the trial and not put to the complainant during her cross-examination. I do not propose to allow further examination of the complainant by reference to the immigration records. In cross‑examination, the complainant said she would take the accused's counsel's word for what those records said.[50] That being so, for the records to now be put to the complainant does not in my view constitute 'further evidence in clarification' within the meaning of s 106T(3).
[50] ts 56.
Furthermore, the stated significance of this area of further examination was that the complainant gave evidence the accused told her his wife was returning to Perth the day after the incident.[51] Therefore, the accused seeks to use the records as a reference point for the date of the incident. However, there is no suggestion on the evidence that the complainant had any direct knowledge as to when the accused's wife returned from overseas, nor that she had any conversations with the accused's wife regarding that topic. At its highest, the evidence is directed to what the accused told the complainant concerning his wife's return.
[51] ts 107.
Finally, in respect of the issue of the date, the accused seeks to put veterinary records for the accused's dog Bella to the complainant. These records also were not adduced in evidence at trial and go to the issue of the date of the incident. This issue is also raised as one of the 'Browne v Dunn' subject matters and I deal with it there.

The circumstances of the incident itself

Before dealing with each of the separate subject matters upon which the accused seeks to further examine the complainant in relation to the circumstances on the day of the incident itself, it is important to first identify the discrete events which occurred at the accused's house and immediately thereafter. They are:
1.The interaction between the accused and the complainant on the back deck of the accused's house prior to them entering the house.
2.How it was the complainant came to be inside the house, in particular whether it was by way of some form of coercion by the accused.
3.The interaction between the accused and the complainant immediately upon entering the house.
4.The interaction between the accused and the complainant on the couch in the living area of the house.
5.The manner in which the complainant and the accused moved from the couch to the bedroom, in particular whether there was any coercion on the accused's part.
6.The physical interaction between the accused and the complainant on the accused's bed, which is the conduct that is said to constitute the two counts.
7.The interaction between the accused and the complainant post the alleged incident and while still at the house.
8.What occurred when the accused and the complainant returned to the accused's business premises.
In respect of what occurred at the house, in my view the issue of the inconsistencies between the complainant's prior statements and her evidence must be viewed in its totality. That being so, it is a comparison between the totality of the events described by the complainant in her prior statements, and the totality of the events described in her evidence, which informs the decisions required under s 106T(3).
I now turn to each of the separate subject matters in respect of which the accused seeks to further examine the complainant.

On the back deck

In the complainant's statement, she said in respect of the back deck: [52]
He put both his arms around me. He was facing me, so like a hug with his arms around my neck and shoulders. He tried to kiss me.
I was turning my head and saying you can't do this Gaurav, this is wrong, stop it. Let's go.
He said alright.
[52] Paragraphs 55 - 57.
The complainant gave evidence as to the following additional matters having taken place:[53]
1.The accused grabbed her breasts.
2.While she was standing on the deck, the accused came up and grabbed her from behind and said, 'you like it'.
[53] ts 42.
Further, in her statement the complainant said she stepped just inside the doorway to help get Bella.[54] In evidence, the complainant said the accused put her inside the house[55] and once she was inside the house, the accused locked the sliding door.[56] Further, in examination‑in‑chief, the complainant was asked 'You've just walked inside the house', to which she says yes.[57]
[54] Paragraph 60.
[55] ts 42.
[56] ts 43.
[57] ts 43.
The State points to there being significant cross-examination of the complainant on these subject matters, in particular regarding the locking of the door.[58] However, the necessary enquiry is directed to inconsistencies between the complainant's evidence and her prior statements, not to the cross-examination of the complainant on the subject matter.
[58] ts 89.
In my view, there are material differences between the complainant's statement and her evidence such as to constitute an inconsistency, in that the complainant's evidence:
1.Reflects a higher level of sexual activity on the back deck, compared to her statement.
2.Is suggestive of the accused compelling the complainant into the house and the door being locked, as opposed to her statement which suggests her entry into the house was voluntary.

Conduct on entering the house

The complainant's statement is to the effect that once they were inside the house, the next interaction she had with the accused was he grabbed her by the right arm and pulled her onto the couch so she was sitting on it and the accused then got on top of her.[59] In evidence, she said once inside the door, the accused tried holding her, undoing her bra and she was saying, 'stop it', she was trying to get him off her and was pushing him and then he sort of pushed her onto the sofa and sat on her.[60]
[59] Paragraphs 60 - 65.
[60] ts 43, ts 44.
Accordingly, the differences pertain to there being interaction with the accused upon entering the house and prior to reaching the couch, and how the complainant came to be on the couch, the statement saying she was grabbed by the arm and pulled onto the couch, her evidence being that she was 'sort of pushed'.
The State says these are not matters of substance, given it was put to the complainant in cross-examination that sexual activity progressed to the couch.[61] However, what was put to the complainant regarding sexual activity progressing to the couch does not address the complainant's evidence where she describes sexual activity prior to reaching the couch, which is not referred to in her statement. It is this latter aspect which in my view gives rise to an inconsistency. Further, it seems to me the issue of how the complainant got onto the couch is so interwoven with this evidence, that any further examination should also be permitted to address whether the complainant's evidence that she was sort of pushed onto the couch, is inconsistent with her statement that the accused grabbed her arm and pulled her onto the couch.

Events on the couch

[61] ts 91.

The activity that the complainant described in her statement as occurring on the couch was limited to the accused straddling her whilst fully clothed, her feeling his semi-erect penis against her vagina and him beginning to 'dry hump' her, the complainant saying 'get off me, get off me', the accused saying 'you will like it', and the complainant struggling, which caused the accused to roll off her.[62]
[62] Paragraphs 64 - 67.
In her evidence, the complainant said the accused was forcing her to try and kiss him, holding her face and with his other arm, trying to undo her bra and trying to pull her top up, trying to touch her everywhere and he did kiss her on the lips. Further, she was saying to him, 'you're my boss, but you can't do this'.[63]
[63] ts 44, ts 45.
The State says that the substance of the activity that occurred on the couch as described by the complainant's evidence (irrespective of whether it was consensual) was accepted by the accused in his evidence. However, even if that is correct, I do not think it meets the point the accused makes. The accused's point is to the effect that a comparison of the complainant's evidence and her statement suggests (at least arguably) that the complainant's position as to the acts engaged in by the accused has significantly expanded. It may be, as the State suggested in argument, this is because the complainant's statement was not intended to include all of the details of the activities engaged in as described by the complainant in her evidence. However, in my view, such a possibility does not result in there being no inconsistency, nor does it mean the extent of the inconsistency is immaterial.

Position so far

In respect of the events to this point in time on the day of the incident and before moving to the bedroom, as I have explained, in my view these matters need to be looked at in totality. In that respect, the totality of the activity and interaction portrayed by the complainant in her witness statement reflects significantly less activity between the complainant and the accused than her evidence does. Furthermore, it does not portray any aspect of coercion by which the complainant came to be within the house. Therefore, in my view, the matters I have identified above are of importance.
As the State points out, the complainant was cross-examined on the additional interactions about which she gave evidence which were not included in her statement. However, this cross-examination did not descend to the topic that those additional matters were omitted from the complainant's prior statement and thus were inconsistent with it. Accordingly, the purpose for which the accused seeks to further examine is not overcome by the fact that the complainant was cross‑examined on the subject matters themselves.

Events in the bedroom

In respect of the bedroom, one of the issues the accused raised was an inconsistency in respect of whether or not the accused ejaculated. In the complainant's statement, she said she did not know whether he ejaculated but the doona was wet and he was not wearing a condom.[64] In effect, in her statement, the complainant is saying that she did not know whether the accused ejaculated, however it was a possibility because he was not wearing a condom and the doona was wet. In the complainant's evidence‑in‑chief she said, 'I'm sure he ejaculated because the doona was wet'.[65] Further, in cross-examination she said he did ejaculate[66] however, she was not cross-examined as to how she knew this. Therefore, the evidence remained that of the complainant's supposition the accused ejaculated because the doona was wet. Significantly, the complainant did not give any evidence that her belief the accused ejaculated was predicated on the presence of semen on or within her.
[64] Paragraphs 86 and 87.
[65] ts 48.
[66] ts 93.
In my view, there is not arguably an inconsistency between the complainant's statement and her evidence. Both connect the topic of ejaculation with the doona being wet. Further, in evidence the complainant did not identify any additional reason for her belief the accused had ejaculated. Furthermore, even if arguably there was an inconsistency, I would not permit further examination on it as I do not regard it as being of such importance as to warrant further examination.
In cross-examination, the complainant said that when the accused had sex with her, he had his underwear and jeans hanging off his legs.[67] In the complainant's statement she said he took off his jeans and underwear so he was completely naked.[68] There is a clear divergence here and it is in respect of the events immediately preceding the alleged offending conduct. In my view, this is an inconsistency that goes to the reliability of the complainant's description of the incident itself.
[67] ts 92, ts 93.
[68] Paragraph 77.
In respect of the additional matters raised by the accused regarding the events in the bedroom, as an overall observation there is not quite the same degree of dissimilarity between the complainant's statement and her evidence in respect of the activities undertaken in the bedroom, as there is in respect of the events leading up to the accused and the complainant being in the bedroom.
Dealing separately with the matters raised by the accused, the complainant said in her statement the accused laid her on the bed[69] compared to her saying in evidence that he pushed her on the bed.[70] The State submits this is not necessarily inconsistent. However, in my view, 'laid' has a different coercive effect than 'pushed' and I consider this is an inconsistency.
[69] Paragraph 76.
[70] ts 47.
In respect of the complainant's evidence as to the accused being on top of her, the accused seeks to explore the lack of credibility regarding the accused taking off his clothes entirely while sitting astride her. However, this is directed to plausibility, not inconsistency. Further, the accused's counsel did cross-examine the complainant as to the implausibility of her description of the events.[71] I will not allow further examination in respect of this matter.
[71] ts 92, ts 93.
I do not consider there is a material difference between the complainant saying in her statement the accused was still on top of the complainant when he took off his clothes[72] and the complainant saying in evidence that he had his arm pinned on her and half his body on her.[73] It seems to me this is greater detail as to how the accused was on top of her while he took off his clothes. I consider the same applies to the reference in the accused's submissions to the complainant saying in evidence she was being pinned down by the pressing down of the accused's one hand.[74]
[72] Paragraph 77.
[73] ts 47.
[74] ts 47.
I also do not consider that the complainant's evidence that the accused smiled at her as he licked her vagina,[75] which is not in her statement, is of such significance as to arguably constitute an inconsistency. Instead, it is greater detail of that event as it unfolded.
[75] ts 48.
In respect of the complainant giving evidence the accused 'hit me',[76] there is some dispute between the parties as to whether or not this is what the complainant said in her evidence. However, that dispute remains and it is a significant one because such an act would bear prominently on the question of whether the conduct was consensual. In my view, the accused should be allowed to further examine as to whether or not the complainant's evidence is that the accused hit her.
[76] ts 48.
Further, if the complainant's evidence is the accused did hit her, in my view this does constitute a significant omission from the complainant's statement such as to give rise to an inconsistency between her evidence and the statement.
In respect of the complainant saying in her statement that after licking her vagina the accused slid up and put his erect penis in her vagina,[77] compared to her evidence that after he licked her vagina he sat on top of her and then inserted his penis into her vagina,[78] the State says this is not necessarily inconsistent. The asserted inconsistency here does not arise because of an omission, rather because of a divergence between the complainant's statement and evidence. When regard is had to this subject matter going directly to how the accused progressed from the conduct the subject of count 1 to the conduct the subject of count 2, in my view this divergence does constitute an inconsistency.
[77] Paragraph 84.
[78] ts 48.
In respect of the accused's submission that the complainant's statement contains little detail about what was being said during the incident, the complainant in her statement says she told the accused to get off her, to stop it, she cried and said please get off.[79] In evidence, the complainant said:[80]
I was telling him to get off me, calling him names, just 'Get off me, leave me alone. I want to go back to work. Get out.'
[79] Paragraphs 82, 85.
[80] ts 48.
While the complainant went into more detail as to what was said in evidence, in my view this does not constitute an arguable inconsistency because the detail is entirely consistent with the substance of the complainant telling the accused to get off her and to stop what he was doing as she describes in her statement.

After the incident

The complainant in her statement said that after the incident, the accused showered and while he showered, she got dressed and moved out of the bedroom.[81]
[81] Paragraphs 89, 90.
The proofing note states that while the accused was showering, the complainant got dressed and went to the back door, it was locked and she waited there for about five minutes until the accused came to let her out.
In evidence, the complainant said the accused went and had a shower, and while he was in the shower, she grabbed her clothes and ran, got dressed, couldn't get out the back door and waited there for three, maybe four minutes.[82]
[82] ts 49.
The State submits that the inconsistency between the statement and the evidence is moderated by the proofing notes, although the State accepts that the proofing notes do not extend to the complainant running to the back door.
In my view, there is a substantial difference between the complainant getting dressed and moving out of the bedroom as per her statement, and the complainant running to a locked door as reflected by her evidence. The latter reflects a heightened degree of fear. I therefore do regard this as being an inconsistency. I think the same applies in respect of the proofing note, which makes no reference to the complainant running to the back door.

Arrival at the business premises

The complainant's first statement addresses her and the accused's arrival at the business premises in a limited way. It says:[83]
When we got back, he said we will tell everyone that we went to the settlement agency.
[83] Paragraph 92.
The statement does not however indicate what, if any, interaction the complainant had with any of her fellow employees upon their return.
The proofing note states that after they returned, the complainant wanted to tell Ms D but the accused was right behind her.
The complainant's evidence was when they returned, she went straight up to the front desk to see Ms D, told her the necklace Ms D had bought the complainant had broken, she wanted to tell Ms D what had happened but the accused came right up behind her and therefore the complainant walked out.[84] The cross-examination on this topic did not challenge the complainant's evidence‑in‑chief.[85]
[84] ts 50.
[85] ts 99.
I am not satisfied the complainant's evidence is arguably inconsistent with her statement. The complainant's first statement does not deal at all with who she spoke to when returning to the office. Further, there is no suggestion on the complainant's evidence that she made any complaint about the accused's conduct upon return to the office. That being so, I do not consider the omission from the complainant's statement of a conversation with Ms D in which no complaint was made, is of such significance as to constitute an inconsistency. I think the situation would be different if the complainant's evidence was to the effect that she made a complaint upon return. In that case, I would have regarded the omission from the statement of the complaint to be of such significance as to constitute an inconsistency.
Further, in respect of the proofing notes not referring to the complainant telling Ms D about the broken necklace, in my view the proofing notes are directed to why the accused did not tell Ms D what had happened, not to what she did tell her. However, I do consider it is open from the proofing notes that they convey that the complainant did not have any conversation with Ms D when the complainant and the accused returned to the premises. Therefore in my view, to this extent, there is an arguable inconsistency between the proofing notes and the complainant's evidence.
The State says it may have been a forensic decision by the accused's trial counsel to not challenge the complainant's evidence as to her conversation with Ms D because the accused's counsel knew evidence would be led from Ms D to a similar effect. This submission may have some force if the accused's counsel at trial had cross‑examined on some inconsistencies. However, when regard is had to the extent of the prior inconsistent statements as I have outlined them, and that the accused's counsel did not cross-examine on any of them, in my view it becomes of less moment that there may be a sound forensic decision to not cross-examine on one matter viewed in isolation.

Exercise of discretion regarding inconsistencies

Events on the day of the incident and as to the date of the incident

As a starting proposition, I consider that further examination of the complainant regarding events on the day of the incident is likely to be most distressing for her, because it goes to the heart of what she says the accused did to her. However, for this same reason, the further examination is of significance, it being directed to what are arguably substantial inconsistencies between the complainant's description of the events as per her prior statements and her evidence. That being so, the further questioning is potentially of real significance, given its capacity to affect a jury's assessment of the honesty and reliability of the complainant as a witness. I therefore will allow further examination to the extent of the inconsistencies I have set out above, including the date of the incident. In reaching this decision, I have also again had regard to the options available to the trial judge to minimise the impact on the complainant from giving further evidence.

Other inconsistencies

The remaining inconsistencies are in respect of the other conduct evidence and as such, relate to the relationship between the accused and the complainant. As the Court of Appeal observed, an aspect of the State's reliance on this evidence is that if the jury accepts the complainant rejected the accused's prior advances, it is unlikely she consented to sexual activity on the day of the alleged incident.[86]
[86] [The accused] v The State of Western Australia [2019] WASCA 174 [60].
Therefore, the other conduct evidence has a degree of importance to the State's case overall. Having regard to the limited nature of the inconsistencies that I consider arise (or may arise) in respect of the other conduct evidence, and having regard to the importance of that evidence overall to the State case, I am of the view I should exercise the discretion in favour of permitting the accused to examine the complainant on those inconsistencies.

Browne v Dunn

It is useful to start with some general observations regarding the rule in Browne v Dunn. The nature of the rule and its operation were summarised by Buss JA in NCH v The State of Western Australia[87] as follows:
[87] NCH v The State of Western Australia [2013] WASCA 29 [99] - [105]. Martin CJ & Mazza JA agreed with Buss JA.
1.The rule comprises two limbs. They are that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters:
(a)a party or cross-examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved; and
(b)a party or cross-examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness' evidence, especially where that case relies upon inferences to be drawn from other evidence.
2.The policy rationale of the rule is the securing of fairness in the conduct of adversarial proceedings.
3.The first limb is concerned with achieving fairness to witnesses and a fair trial between the parties. The second limb is concerned with the weight or cogency of evidence.
4.The rule is not absolute and must be applied with flexibility.
5.While the rule applies in criminal proceedings, the rule must be applied with considerable care and circumspection in a criminal context.
6.The discretionary responses available to a trial judge for a breach of the rule include having a witness recalled for further cross‑examination.
Where Buss JA speaks of notice, I understand his Honour to include notice to the opposing party and to the relevant witness, bearing in mind the rule is directed to fairness to the witness and the cogency of their evidence.[88] Ordinarily, the final opportunity to comply with the rule in Browne v Dunn is in cross-examination of the relevant witness.[89]
[88] See Bale v Mills [2011] NSWCA 226 [42] and Merrey v The State of Western Australia [2010] WASCA 62 [12], both referred to at [99] of NCH.
[89] See Merrey [12].
In addition to these matters, the accused's counsel in their supplementary submissions dated 23 April 2020 referred to the observations of Redlich JA in R v Morrow.[90] The accused relies upon Morrow for the general proposition that depending on the circumstances, the mere putting of an allegation to a witness may not be sufficient to comply with the rule. It seems to me the accused's point is best encapsulated by the following observation made in Morrow.[91]
Where detail in support of an allegation is known to the cross-examiner and is to be the subject of evidence, there must be sufficient puttage of that detail so that it can be said that the witness was given an adequate opportunity to respond, not only to the allegation but to its essential features which may include the time, place and circumstances of the occurrence.…The detail in which an event is described will often lend an air of verisimilitude[92] to the allegation. Fairness dictates that the witness against whom the allegation is made must have an opportunity to respond to the detail which may give life and colour to the allegation.
[90] R v Morrow [2009] VSCA 291 [49] - [52].
[91] Morrow [50].
[92] The appearance or semblance of truth.

I accept this observation, however, as always in cases such as this, its application is very much dependent upon the particular circumstances.
A further issue which arose during the course of argument was that during the trial, the accused's counsel put matters to the complainant which were inconsistent with the accused's position as reflected by his own evidence. The State says the onus is on the accused to demonstrate this occurred due to error by the accused's counsel, and not because the accused's evidence differed from his instructions extant at the time counsel conducted the cross-examination. The State therefore says the accused needs to put on evidence as to what his proof of evidence stated at the time the cross-examination was conducted.
I do have reservations about whether an accused should be required to disclose the contents of his proof of evidence to the State during the course of proceedings brought against him. However, I consider I do not need to resolve this issue on this application.
The current application is in respect of a retrial, which is a new trial. The accused is not restricted by what occurred at the first trial.[93] In my view, the application of the rule in Browne v Dunn to this application must be assessed by reference to whether the accused's position to be put at the retrial has been properly put to the complainant in cross‑examination. So, I am not dealing with whether there has been a breach; rather, I am dealing with whether there will be a breach. In the vast majority of cases the answer to that question will be the same as there will be no material difference between the positon taken at trial and retrial.
[93] Tanner [5].
Here, as I understand it, the accused's position at the retrial is reflected by his evidence at the first trial. Where the complainant was cross‑examined in a manner inconsistent with the accused's evidence, in my view I need to assess whether in the new trial there will be a breach of the rule in Browne v Dunn because the accused's position has not been accurately put to the complainant. That being so, the reasons why the complainant was cross-examined at the first trial in a manner inconsistent with the accused's evidence are of less significance. Accordingly, I am satisfied I can sufficiently deal with the issue in the absence of the accused's proof of evidence for the first trial. Furthermore, on my assessment, the issue only arises in respect of one confined topic, which I deal with below.
The matter proceeded before me on the premise that a Browne v Dunn cross-examination, if not previously put, falls within the concept of further evidence in clarification as referred to in s 106T(3).[94]As a general proposition, this would seem correct. Once it is established that Browne v Dunn was not complied with in respect of any particular subject matter, it would follow that the matter left silent was of substance and in most if not all cases, cross-examination on that subject matter would be further evidence in clarification.
[94] See Tanner [14].
At first blush, it may seem a little unusual that because the accused's counsel did not afford fairness to the complainant in the first trial, the accused is to be afforded the opportunity to further examine the complainant in a retrial. However, it needs to be remembered that the rule is also directed to the cogency of the complainant's evidence. And, as was observed in Morrow, the rule affords the complainant the opportunity to explain or qualify their own evidence, which may result in the witness accepting the allegation put to them.[95]
[95] Morrow [50].
The accused's counsel emphasised the importance of the putting of the narrative of the accused's version to the complainant to assist the jury in assessing both the complainant's and the accused's evidence. Furthermore, the accused's counsel emphasised the putting of the narrative of the accused's version bears upon the jury's assessment of the plausibility of the complainant's evidence.
Both parties in their submissions took me to the decision of the Court of Appeal in SAM v The State of Western Australia.[96] In SAM, the appellant was charged with indecent dealing against children, which dealing was denied.
[96] SAM v The State of Western Australia [No 2] [2016] WASCA 64.
As I understood it, the State relied on this decision to the extent it dealt with an appeal from the trial judge's refusal to allow further cross‑examination of the child complainants, whose evidence had been pre‑recorded. The appellant in SAM submitted that the trial counsel had failed to comply with the essential elements of the rule in Browne v Dunn.[97]
[97] SAM [69] - [71].
In SAM, the question of further examination of the child complainants was approached by reference to the common law discretion to recall a witness, not to the application of s 106T(3).[98] I do not regard this different approach to be of any consequence in respect of this application. Here, the possible significance of the reasoning in SAM concerns the application of the rule in Browne v Dunn, not the grounds upon which a witness may be recalled.
[98] SAM [70].
The Court of Appeal in SAM held that the trial judge did not err in refusing the application, for two reasons. The first reason was directed to disclosure and is not relevant here. The second reason was to the effect that a bald assertion the complainants had fabricated their evidence, or been coached by their parents, would almost inevitably have been met with a bare denial and was not required to be put in accordance with the rule in Browne v Dunn.[99] In this respect, the Court observed there was no doubt the appellant in SAM denied the alleged dealings had occurred and maintained the allegations against him were fabricated or mistaken.[100]
[99] SAM [71].
[100] SAM [71].
The State says similar reasoning applies in this case - there was no doubt at the trial that the accused denied the act of cunnilingus and denied the penile/vaginal penetration was not consensual. Further, the State says the allegations now sought to be put would most likely be met with denial in any event.
However, in my view, there is an important difference between this case and the circumstances under consideration in SAM. In SAM, the appellant there denied the alleged dealing occurred at all. Here, the accused accepts he engaged in sexual activity with the complainant, and the critical issues for trial are whether or not that conduct was consensual and whether it included cunnilingus. Accordingly, in this case there is not the stark contrast in position between the complainant and the accused as was evident in SAM. Further, In this case, how the sexual activity between the accused and the complainant developed is a matter that is likely to affect a jury's assessment of whether it was consensual.
Finally, before proceeding to the specific topics, as the State points out in their written submissions, if there is a breach of the rule in Browne v Dunn, consideration then has to be given as to which of the options for remedying such breach as set out in NCH should be adopted.[101] However, it needs to be kept in mind the options set out in NCH usually fall for consideration where the breach is being dealt with in the trial in which it occurs. By comparison, with a retrial in circumstances where evidence from the first trial is admissible pursuant to s 106T, the issue can (and preferably should) fall for consideration before the trial starts.
[101] NCH [105]; one of which options is the recall of the witness for further cross‑examination.

Browne v Dunn topics

The accused separated out the Browne v Dunn subject matters into two categories - matters not put to the complainant in the original trial and matters not adequately put to the complainant in the original trial. As I have mentioned, there is a third category - matters put to the complainant in the original trial that are inconsistent with the accused's evidence.
The relevant topics are identified at pars 8 and 9 of the accused's further supplementary submissions dated 28 April 2020. I will address the topics in the order set out in the submissions, which commences with matters which the accused contends were not put to the complainant.

Matters not put to complainant in the original trial

The accused's evidence in the first trial concerning events after reaching the house in the alfresco area

I have also included within this category the events that occurred upon the complainant and the accused entering the house, but before they got to the couch.
The effect of the accused's evidence at trial was that in the alfresco area the complainant had a cigarette while playing with the dog Bella, the accused joined her and also had a cigarette, they talked about personal matters, the dog was limping, the complainant became teary as the conversation continued and they hugged and then kissed in the alfresco area maybe once or twice.[102]
[102] ts 217, ts 218.
The complainant was cross‑examined about how long she was with the dog beforehand.[103] The complainant accepted in cross‑examination that she had a cigarette beforehand out the back.[104] It was put to the complainant in cross-examination that they had a conversation about work, relationships, life, things in general and she responded that the conversation was about the dog really.[105]
[103] ts 98.
[104] ts 98 ‑ ts 99.
[105] ts 98.
The complainant also said that she did not think they were talking about anything else other than the dog.[106] It was put to the complainant that the dog had a sore foot which the complainant denied.[107]
[106] ts 98.
[107] ts 98.
As is clear from this recitation, the vast majority of the matters described by the accused in his evidence were put to the complainant in cross‑examination. In my view, significant matters that were left out which ought to have been put so as to understand the accused's narrative were that the complainant became teary and they hugged and consensually kissed in the alfresco area once or twice. I will permit these limited matters to be put to the complainant as I consider they go to the overall narrative as to how the events on the day progressed and in the exercise of the discretion I have had regard to the limited scope of this further examination.
Furthermore, the complainant gave evidence of sexual activity between her and the accused upon entering the house, but before they got to the couch, during which activity she said stop it and tried to get the accused off her.[108] The accused in his evidence said that after they went inside, the complainant sat on the couch.[109] That is, the accused did not give evidence of any sexual activity inside the house prior to reaching the couch. The complainant was not cross-examined on her evidence as to what happened in the time from when they entered the house to when they came to be on the couch.
[108] ts 43.
[109] ts 219.
In my view, if the accused's case is that no sexual activity occurred within the house prior to the couch, this should be put to the complainant. I consider the accused should be allowed to put to the complainant that no sexual activity occurred between them from when they entered the house to reaching the couch, and also that the complainant did not say 'stop it' and did not try to get the accused off her. I consider this is important to the overall narrative as to whether the activity the subject of the counts was consensual. Furthermore, it is limited in its scope and therefore in the exercise of my discretion I will allow it.

By reference to the accused's evidence in the first trial concerning events after the bedroom in the alfresco area

The accused gave evidence that after the sexual activity between him and the complainant, the complainant was in the alfresco area having a cigarette and playing with Bella, he joined her, they had one or two cigarettes together and they then had a discussion about what they should say upon return to the business.[110]
[110] ts 222, ts 223.
The accused submits that the nature of this interaction is inconsistent with the allegations made by the complainant.
It was put to the complainant in cross‑examination that after the incident, she and the accused sat in 'that room' and had a smoke, to which she said 'no'.[111] It was put to the complainant whether she had a discussion with the accused about what had happened, to which she said 'no'.[112] It was also put to the complainant that she had a cigarette with the accused after sex to which she said 'no'.[113] In my view, this adequately puts the accused's position which is to the effect that after the activity they had engaged in the harmonious act of smoking cigarettes together. I therefore do not allow further examination in respect of this topic.

By reference to the accused's evidence in the first trial concerning events after arriving at the office on the day of the incident

[111] ts 94.

[112] ts 95.

[113] ts 99.

The accused gave evidence that when they returned the complainant was getting anxious and went straight to her wash bay, that it was the accused that spoke to Ms D on their return, they got back to the business premises around 2.30 pm or 2.40 pm and the complainant left work around 4.30 pm which was her usual departure time.[114]
[114] ts 223.
The complainant gave evidence that upon return to the premises:[115]
I went straight up to the front desk to see Sharlene, told her that the necklace she bought me broke. And I wanted to tell her what happened but he came right up behind me in the office. So I … walked out.
[115] ts 50.
While the complainant was cross‑examined as to what happened when they returned to the work place,[116] the accused's version was never put to the complainant. That is, the cross‑examination proceeded on the premise that the complainant did speak to Ms D upon the complainant's return.
[116] ts 99.
It seems to me that if the accused's case is that the complainant did not speak to Ms D, this should be put to the complainant. That being the case, the accused should be able to put to the complainant that she did not speak to Ms D but rather went straight to her wash bay. In coming to that view, I take account that the further examination there is very limited.
In respect of when the complainant left work, she gave evidence she did not recall the time, but it was earlier than usual.[117] The accused gave evidence she left around 4.30 pm, which was consistent with her regular working hours.[118] The State submits the complainant's work sheets went into evidence and consistently show her finish time as 5.30 pm, thus on the accused's evidence the complainant did leave early.
[117] ts 101.
[118] ts 223.
I do not consider the question of timing is of such significance that it not having been put to the complainant will constitute a breach of the rule in Browne v Dunn. There is no suggestion her leaving was a result of any further interaction with the accused that day. Further, the accused's case is the complainant was anxious on her return, so went straight to her wash bay. The complainant did not give evidence as to why it was she left early. Even if the complainant did leave early, her doing so would be consistent with both the State case and the defence case. I therefore will not allow further examination on this topic.

By reference to the accused's evidence in the first trial concerning topics of communication between them

The accused gave evidence that he had previous conversations with the complainant about her sister having Alzheimer's and being in a nursing home and her father and brother having committed suicide.[119] The accused says that the discussions reveal the nature of the relationship between the accused and the complainant being of a kind where the complainant disclosed intimate personal details to him.
[119] ts 215.
The State says that the complainant talks about her depression in the text messages which reveal her disclosing personal matters to the accused.
In my view, the conversations regarding the complainant's family matters do not need to be put in accordance with the rule in Browne v Dunn. They are not related to the event itself, nor to the complainant's own health, and I do not consider either limb of the rule would require the conversations to be put to the complainant. I therefore will not allow further examination on this topic. Further, even if I considered there will be a breach, I would not exercise the discretion to allow further examination on this topic. The subject matter is about distressing personal details regarding the complainant's family members and is not of such importance that it warrants the complainant being further examined on it.

Immigration and vet records

As I have explained above, the immigration and vet records are now to be tendered by the State in the retrial.
For the reasons I have already expressed, I do not allow further examination in relation to the immigration records.
In respect of the vet records, they are of potential importance in respect of referencing when the complainant took the accused's dog Bella to the vet and for what purpose. Therefore, I will allow the vet records to be put to the complainant for the purposes of putting to her when it was she took Bella to the vet and why. In coming to this view, I have had regard to this topic being of a limited nature and not likely to cause any distress.

CCTV footage between 9 April 2017 and 5 May 2017

The complainant gave evidence at the trial that she did not go to work a lot of days after the incident.[120] The accused intends to tender the CCTV footage from between 9 April 2017 and 5 May 2017 for the purposes of establishing that the complainant attended work every work day in the period post the incident and also to demonstrate that the complainant's demeanour in the footage is inconsistent with the incident having occurred as she alleges. The State does not object to this.
[120] ts 64.
In my view, in order for the accused to be entitled to put the CCTV footage to the complainant on this basis, either the State or the court needs to be satisfied that the CCTV footage conveys what is set out in the accused's submissions, namely the complainant attended work on the days identified and further the footage demonstrates her demeanour in respect of her interactions with the accused. Accordingly, while I will allow further examination on this topic, the accused must first obtain either the approval of the State or of the court before the footage is put to the complainant in cross‑examination. The purpose of doing this is so that the State or the court can be satisfied that the footage is consistent with what is put in the accused's submissions.
Furthermore, in respect of the CCTV footage, the accused seeks to put an ultimate proposition to the complainant that her demeanour and conduct as depicted in the footage is inconsistent with her allegation that the incidents occurred as she alleges. I will allow this proposition to be put. While there was cross‑examination of the complainant referrable to certain of the CCTV footage, that ultimate proposition was not put to her. It would seem to me as a matter of fairness to the complainant, if the accused wishes to put that the CCTV footage reveals the complainant's interaction with him in a light inconsistent with her allegations, such a proposition should be put to her. Further, in exercising the discretion I have had regard to the limited nature of what is to be put.

Matters not put adequately to the complainant

Incident with Mr S on the morning of 15 March 2017 and the complainant's conversation with the accused following it

The accused gave evidence to the effect that on the day of the incident, he had a conversation with the complainant regarding a fight she had with another employee, Mr S, the conversation progressed to other matters of a personal nature, and it developed into physical interaction whereby they kissed about three or four times.[121]
[121] ts 211 - ts 214.

It was put to the complainant in cross-examination that on the day of the incident she was very emotional and talked to the accused.[122] She said no. She was then asked whether she had a long conversation with the accused on the day of the incident, to which she also said no. She was asked whether she had a long conversation with the accused before 1.00 pm on the day of the incident, being around the time they had left in the car. She said no. She was asked again whether she was upset and whether she was emotional, to which she said no.[123]
[122] ts 86, ts 87.
[123] ts 87.
In respect of a fight with Mr S, the complainant said in cross‑examination that she had an argument with him.[124] Further, it was put to her that on the day of the argument she was very upset, to which she agreed, and further that she spoke to the accused about being upset, to which she also agreed.[125]
[124] ts 80.
[125] ts 80.
The accused says the content of the accused's conversation with the complainant on the day of the incident should have been put to the complainant in accordance with the rule in Browne v Dunn.
I disagree. It was put to the complainant that on the day of the incident she was emotional and upset, and it was also put to her that she had a lengthy conversation with the accused. She denied these matters. Prior to these matters being put, the complainant had been cross-examined about being upset and speaking to the accused about a fight with Mr S. In my view, this cross-examination taken as a whole sufficiently put the accused's case to the complainant regarding the alleged conversation on the day. While the cross-examination could have been conducted differently, I am not satisfied the rule in Browne v Dunn will be breached by reason of the content of the alleged conversation on the day of the incident not having been put to the complainant.
In respect of the kissing having occurred on the day of the incident, the complainant gave evidence that the accused had kissed her at work, which I have already addressed at [82]. The accused's evidence was that he and the complainant kissed on the day of the incident, they were sitting in front of the sea container and the kissing was preceded by his consoling her and hugging her.[126]
[126] ts 214.
The complainant was cross-examined about where the kissing occurred. She said she was not sitting down.[127] However, from what I can ascertain, it was not put to the complainant that the kissing incident occurred in the morning on the same day as the alleged conduct the subject of the two counts. The accused's case is that it did. In my view, this should have been put to the complainant as it forms an important part of the detail of the accused's case as to the events on the day of the alleged incident.
[127] ts 85, ts 86.
Accordingly, in my view the accused should be able to further examine the complainant as to when the kissing incident occurred in proximity to the incident the subject of the charges. In coming to this view, I have taken account that cross-examination in closer proximity to the alleged incident is likely to be more distressing to the complainant. However, as I have explained, the closer the proximity, the heightened the importance, especially where the examination is directed to sexual activity. Therefore, I consider the discretion should be exercised in favour of allowing further examination on this topic.

Travelling to the house in the car

The accused's evidence was to the effect that he initiated the complainant coming to his house, speaking to her as a follow-up from the conversation he said took place earlier in the day, and saying this would allow them to have a further conversation once they got to the house. Further, he said he had to pick up documents to take to the settlement agency and wanted to check on Bella.[128]
[128] ts 216.
The complainant in her evidence‑in‑chief said the accused had asked her to go with him to a settlement agency to show him the directions, also asking her if she needed a break.[129]
[129] ts 40.
In respect of the cross-examination of the complainant, it appears to proceed on the basis that the accused's counsel puts to the complainant a summation of what the complainant had said in examination‑in‑chief, without putting the accused's version to her, namely that they were going to the accused's house. At its highest, the accused's counsel questioned the complainant about whether the accused had tricked the complainant into getting into the car.[130]
[130] ts 87.
I consider the reason the accused asked the complainant to accompany him in the car is of importance. There is a significant difference between the complainant having agreed to go to the accused's house, compared to the accused having in effect lied to her as a means of getting her in the car. This bears on the credibility of both the complainant and the accused.
Accordingly, I consider the accused's version as to what he said to the complainant about going to the house should be put to the complainant in compliance with the rule in Browne v Dunn. I consider the importance of this topic outweighs the possible distress to the complainant and the discretion should be exercised in favour of allowing examination on this topic.
The accused also raised the topic that in the car he was holding the complainant's hand, the accused saying in evidence this was in a comforting way and he said to the complainant that if she did not like it he would take his hand off and she said it was 'alright'.[131]
[131] ts 216 - 217.
In cross-examination, the complainant accepted the accused held her hand.[132] She was then asked whether she said the accused could continue to hold her hand and she said no.[133] It was put to her she did not pull her hand away, to which she said she did.[134] And it was put to her she said it was okay and she said she did not use those words.[135] In my view, this sufficiently puts the accused's position that the holding of the hand was consensual and there has been compliance with the rule in Browne v Dunn.
[132] ts 87.
[133] ts 88.
[134] ts 88.
[135] ts 88.
Finally in respect of this topic, I do not consider the accused's asserted conversations with the complainant in the car whereby he is reassuring her are of such significance that they are required to be put to the complainant in accordance with the rule in Browne v Dunn.

What occurred on the couch

As I have already explained, the accused should be permitted to further examine the complainant as to what happened inside the house prior to the accused and the complainant being on the couch.
Both the accused and the complainant accept that they were on the couch for a relatively significant period of time - the accused says 15 ‑ 20 minutes[136] and the complainant says 30 minutes.[137] The accused's counsel cross‑examined the complainant as to what was discussed on the couch[138] in terms which are substantially consistent with the accused's evidence at trial.[139] Furthermore, it was put to the complainant that from the couch they walked to the bedroom, which was the accused's evidence.[140] The complainant denied this.[141]
[136] ts 220.
[137] ts 98.
[138] ts 91.
[139] ts 220.
[140] ts 220.
[141] ts 92.
In respect of the activity on the couch it was put that it was consensual, which was denied,[142] that the accused kissed the complainant, which the complainant accepted,[143] that she grabbed his penis, which she denied,[144] and that he did not take his clothes off on the couch which she accepted.[145]
[142] ts 91.
[143] ts 91.
[144] ts 92, ts 94.
[145] ts 92.
It was also put to the complainant that the accused did not touch her under her clothes to which she responded 'he was trying to undo my bra'[146] and that he did not touch her vagina, to which she agreed.[147] However, the accused's evidence was that his hands were 'inside her clothes' and that he had his 'hand on her vagina'.[148] Therefore, the manner in which the cross‑examination proceeded on these issues was inconsistent with the accused's evidence.
[146] ts 92.
[147] ts 92.
[148] ts 220.
The cross‑examination of the complainant in respect of what occurred on the couch was primarily directed to the events themselves, and did not descend to the progression of those events. That is, they were put to the complainant as separate acts, without any questioning as to their progression.
In contrast, the accused's evidence sets out a progression of events, namely that they first sat on the couch with his arm around her, initially kissed a few times passionately and were talking in between as well, at one point the complainant was sitting on his lap while they were kissing each other, another point he was on top of her, they were kissing passionately, his hand was on her vagina, they were still kissing and he asked her to stroke his penis, which she did.[149]
[149] ts 220.
It seems to me an important aspect of the accused's evidence is not just the acts themselves, but the sequence in which they occurred. This may bear significantly on a jury's assessment of whether the sexual activity engaged in was consensual. That being so, in my view the accused's version as to how the acts progressed should be put to her in accordance with the rule in Browne v Dunn.
Given the potential significance of this issue and its proximity to the conduct the subject of the counts, I consider the discretion should be exercised to allow cross-examination such that the accused's counsel may put to the complainant his version as to how the acts progressed. However, this is limited to that topic. It does not permit the accused to cross-examine afresh on the activity which occurred on the couch. I will also allow the accused to further examine so as to positively put to the complainant that he had his hand on her vagina, as opposed to how it was put in the first trial, which was that he did not.
Apart from these matters, I will not permit any further examination in respect of the events on the couch.

Events in the bedroom

The accused's version of the events in the bedroom and on the bed again set out a sequence as to how the events occurred.[150] The cross‑examination proceeded by reference to the acts themselves, not to any sequencing as to how the events unfolded as per the accused's evidence. It seems to me for the reasons I have already expressed in respect to the couch, the accused should be permitted to further examine as to how the acts progressed. However, this is limited to putting the accused's version as to how the events progressed and does not permit the accused to cross-examine afresh on the activity which occurred on the bed.
[150] ts 221.

CCTV

The issue of CCTV footage was also raised in respect of the CCTV which was put to the complainant during her cross‑examination. This was raised in the context of the ultimate proposition not being put to her as I have already outlined, namely that her demeanour and conduct as depicted in the footage is inconsistent with her allegation that the incidents occurred as she alleges. I will permit this proposition to be put to her in respect of the CCTV footage upon which she was cross‑examined at the first trial, however I will not allow any further examination on that footage.

Overall assessment

It seems to me I should conduct a final check in respect of those topics where I consider further examination should be allowed, so as to consider the cumulative effect to the complainant of being further examined on those topics, compared to their overall importance to the accused. The topics themselves are numerous and varied, although to a large extent the further examination I would allow is limited in its scope. I am satisfied the cumulative effect to the complainant of being further examined on those topics will be distressing to her. However, the importance of the topics to the accused derives, in part, from their totality. In addition, it seems to me to excise further topics in an effort to redress the complainant's distress may become quite an arbitrary process. Also, without in any way minimising the importance of the complainant's distress, the conduct of the further hearing can be tailored in an effort to moderate such distress.
While it is a most unfortunate result that the complainant must be recalled to give further evidence, having considered the matter in such an overall way, I am of the view there should not be any reduction in the topics I have identified.

Conclusion

For these reasons, I permit further examination of the complainant on the following subject matters:
1.The text messages between the accused and the complainant on the topics set out in Schedule A, subject to the qualifications expressed at [59], [60] and [61].
2.The asserted inconsistencies referred to at [91], [106] (as qualified by [109]), [115], [123] - [126], [128], [130] - [132], [137], [139], [143] - [144], [145], [152] and [158], subject to the limitations expressed in those paragraphs.
3.Browne v Dunn cross-examination referred to at [187], [189], [196], [204], [205] - [207], [215], [220], [230] - [232], [233] and [234], subject to the limitations expressed in those paragraphs.
I also direct that:
1.The complainant is not to be advised of the subject matter of the further examination, however the State may show the complainant the video recording of her evidence so that she may familiarise herself with it.[151]
2.Further examination will be limited to the identified areas, however follow‑up questions may be asked depending upon the response to the initial question.[152]
3.The State is permitted to re‑examine.[153]
4.The parties consider and confer as to whether further examination as referred to at [98] should be permitted.
[151] Tanner [18]; TAT [31].
[152] Tanner [20]; TAT [31].
[153] Tanner [18]; TAT [32].
Further, the accused's counsel indicated during the course of submissions that there may be objections to the admissibility of certain answers given by the complainant during the course of her evidence. I will direct that the accused's counsel provides the State with a schedule of such objections. I will hear from the accused's counsel in respect of the time needed to provide the schedule, although it is preferable it be provided prior to the case conference to be held on 19 June 2020.
Furthermore, an issue was raised in the accused's initial written submissions regarding the State's use of the other conduct evidence. As I understand the State's position, it does not seek to rely on the evidence beyond the purposes set out at [60] of the Court of Appeal's decision. Any further concerns the accused has arising out of the State's oral submissions should be raised with the State prior to the case conference and then, if any concerns remain, the parties should seek to resolve them at the conference.

Manner in which the further evidence is to be taken

I direct the parties to consider and confer as to whether the further evidence can and should be taken by way of a special hearing prior to trial and recorded on a visual recording, including whether proceeding in this way is authorised by s 106RA of the Evidence Act.
I must say my initial view is that if the procedure afforded by s 106RA is available for the taking of the complainant's further evidence, then that procedure should be used. As will no doubt be apparent from these reasons, the further examination of the complainant will need to be conducted with some care to ensure it is limited to the permitted subject matters. A hearing in the absence of a jury will allow greater communication between counsel to swiftly deal with any concerns as and when they arise, and also for objections to be addressed without the need for a jury to continually go back to the jury room. Further, and equally as importantly, this procedure will assist in the examination being conducted so that it causes the minimum distress possible to the complainant, for example by allowing the complainant more regular and lengthy breaks than may be desirable if the examination was conducted during the course of a jury trial.

Schedule A

Message(s) What topics the messages are relevant to and requires XXN

18 November 2016 - 7.38 pm

Accused's message

1(b), 1(c)(i)

22 November 2016 - 8.19 pm

Complainant's message

Confirms her history of personal issues

1(b), 1(c)(i)

15 December 2016 - 2.55 pm

Complainant's message

1(b), 1(c)(i)

1 January 2017 - 12.38 pm

Accused's message

Complainant's message
1(b), 1(c)(i)

14 March 2017 - 10.07 am

Complainant's message

1(a), 1(b), 1(c)(i)

15 March 2017 - 6.01 pm

Accused's message

Complainant's message

1(a), 1(b), 1(c)(i), 1(c)(ii)

17 March 2017 - 6.59 pm

Complainant's message

Accused's message

1(a), 1(b), 1(c)(i), 1(c)(ii)

30 April 2017 - 12.13 pm

Complainant's message

1(c)(ii), 1(d)

1 May 2017 - 11.49 am

Complainant's message
1(c)(i), 1(c)(ii), 1(d)

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CM
Associate to Judge Lemonis
8 JUNE 2020

Message(s)	What topics the messages are relevant to and requires XXN
18 November 2016 - 7.38 pm Accused's message	1(b), 1(c)(i)
22 November 2016 - 8.19 pm Complainant's message	Confirms her history of personal issues 1(b), 1(c)(i)
15 December 2016 - 2.55 pm Complainant's message	1(b), 1(c)(i)
1 January 2017 - 12.38 pm Accused's message Complainant's message	1(b), 1(c)(i)
14 March 2017 - 10.07 am Complainant's message	1(a), 1(b), 1(c)(i)
15 March 2017 - 6.01 pm Accused's message Complainant's message	1(a), 1(b), 1(c)(i), 1(c)(ii)
17 March 2017 - 6.59 pm Complainant's message Accused's message	1(a), 1(b), 1(c)(i), 1(c)(ii)
30 April 2017 - 12.13 pm Complainant's message	1(c)(ii), 1(d)
1 May 2017 - 11.49 am Complainant's message	1(c)(i), 1(c)(ii), 1(d)