WHS v The King

[2025] HCATrans 62

[2025] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S92 of 2025

B e t w e e n -

WHS

Appellant

and

THE KING

Respondent

GORDON A‑CJ
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 SEPTEMBER 2025, AT 10.00 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the appellant with my learned friends MS S.A. ANDERSON and MS C. BEESLEY.  (instructed by Legal Aid NSW)

MS H.R. ROBERTS, SC:   May it please the Court, I appear for the respondent with MS S. PALANIAPPAN and MS K.M. JEFFREYS.  (instructed by Director of Public Prosecutions (NSW))

GORDON A-CJ:   Thank you, Ms Roberts.  Mr Odgers.

MR ODGERS:   Thank you, your Honours.  Your Honours, I take it, have had an opportunity to read the outline of oral submissions?

GORDON A-CJ:   Both of them, thank you.

MR ODGERS: Thank you, your Honour. Your Honours, as is indicated in that outline, the central issue – at least, the preliminary issue – raised under ground 1 is the correct construction of section 293(6)(a) of the Criminal Procedure Act (NSW) which, as your Honours appreciate, has been re‑enacted in 294CB, and was originally enacted in the Crimes Act under 409B.  As your Honours would appreciate, the critical words in that provision, subsection 6(a) – and I am looking at page 9 of the ‑ ‑ ‑

GORDON A-CJ:   I think each of us have a working copy of the relevant provisions, thank you.

MR ODGERS:   All right.  Well, I am looking at the provision, your Honour, and subsection (6) says:

If the court is satisfied—

(a)That it has been disclosed or implied in the case for the prosecution –

Of course, what that means is something that I will be making submissions about:

against the accused person that the complainant has –

I need to pause here, has:

or may have . . .

. . . a lack of sexual experience –

during the specified period, or without reference to any period, and it could be a lack of experience:

of a general or specified nature –

Those words “or may have” will have some significance in what I am about to say.  Now, just the preliminary matters.  Prior to the second trial of the appellant after the first appeal to the Court of Criminal Appeal had been successful, as your Honours appreciate, a new trial was ordered.  Prior to that, there was what I will two 293 applications made on behalf of the appellant. 

Defence counsel submitted that 293(6) was engaged on the basis that evidence would be adduced by the Crown that the complainant was nine years old when she first gave an account of the alleged offences to the police in November 2012, and the jury would infer from this as argued – put to Judge Traill that if those offences were not committed she lacked sexual experience sufficient to fabricate the account that she gave to the police.  I have given references in the outline to various parts of the transcript where those submissions were made.

The Crown Prosecutor’s response – and this is only of marginal relevance, but just the background – was pretty brief, but I will refer your Honours to the appellant’s book of further materials at page 49 – really, the bottom of 48, if I could just take your Honours to that.  At line 45, her Honour says:

The highest the defence have really put it is that it’s implied, really.  Because you’re not relying on this material.

So implied in the material – well, I am not entirely sure what her Honour was referring to, but implied that there is a lack of sexual experience.  Then Mr Lynch, who was the Crown Prosecutor:

If I understand my friend’s, or Mr Krisenthal’s –

he was the previous defence counsel:

submission that my friend adopts, the young age of the complainant necessarily implies . . . “That she’s a person with no sexual experience who has not taken part in sexual activity –

Then Mr Lynch continued:

and that remains so whether or not it’s explicitly raised during the trial.”

That was Mr Lynch’s understanding of the submission that was made.  Then he says:

If that’s the case, then any child who as a complainant gives a description of a sexual act having taken place that they’ve been a party to, if there are also records available of prior dealings . . . that material then gets in through . . . subs (6) –

So, reading between the lines, the submission that was being made was it is necessary for the Crown to explicitly raise the lack of sexual experience for the 293(6)(a) requirement to be satisfied.  An argument was put why that was so, which was what I will call the thin edge of the wedge – it will let in – if that is not the case, then a young age of complainant will always have the effect that evidence of sexual experience will come in.

Her Honour’s judgment on this – your Honours have no doubt seen it – is in the core appeal book.  I will not take your Honours to it at this point, but her Honour effectively held that because the Crown would not be making a submission to the jury – how could the complainant give such a graphic account of the sexual acts, if those sexual acts were not true – because the Crown would not be making that submission, her Honour held that the requirement of 293(6)(a) were not satisfied.

So, now, taking you to the judgment of the Court of Criminal Appeal, I think the key passages are at 37 and 38.  It is at the core appeal book page 134, the judgment of the Court of Criminal Appeal, and I want to take your Honours to paragraphs 37 and 38.  His Honour Justice Fagan accepted, in paragraph 31 that it would be ‑ ‑ ‑

GORDON A‑CJ:   Are we going back to paragraph 31 now?

MR ODGERS:   Sorry, did I say 31?  I meant paragraph 37.  I am sorry, your Honour.

GORDON A‑CJ:   Thank you.

MR ODGERS:   My apologies.

GORDON A‑CJ:   It is all right.

MR ODGERS:   Justice Fagan said at the beginning of 37:

I accept it would likely be the common experience amongst jurors that, up to the age of nine, it would not be expected that a girl would have gained sexual experience or engaged in sexual activity, within the meaning of the section, unless in circumstances of abuse.  It does not follow that in this case, as a result of the Crown tendering the November 2012 JIRT interviews of the nine‑year‑old complainant, there arose any positive implication that she had not previously been abused by someone other than the appellant or that she had not exceptionally and precociously gained sexual experience or engaged in sexual activity in other circumstances.

Then, paragraph 38:

The appellant argued that it would be sufficient to engage subsection (6) if “there [was] a real risk that a juror, or the jury, would reason in that way”; meaning that they would infer a lack of prior sexual experience or activity (other than with the appellant) from the circumstance of the complainant being only nine years old.  I do not accept that argument.  The activation of subsection (6) depends upon the trial judge being “satisfied that it has been […] implied in the case for the prosecution” that the complainant had, or did not have, prior sexual experience or activity.

Can I stop there for a moment.  That is not strictly accurate, because it is ‑ ‑ ‑

GORDON A-CJ:   Which bit is not accurate?

MR ODGERS:   The bit:

that it has been […] implied in the case for the prosecution” that the complainant had, or did not have, prior sexual experience or activity.

Focusing on the words:

did not have, prior sexual experience –

As I have shown your Honours, subsection (6) refers to:

the case for the prosecution . . . that the complainant . . . may have . . .

(i)       . . . a lack of sexual experience –

I will come back to that in a moment.  His Honour continues –

BEECH‑JONES J:   Sorry, is it correct, though, that the submission was that whenever – that the existence of the risk of the reasoning was sufficient to engage it?

MR ODGERS:   It was put in alternative ways.  It was put that it was inevitable that the jury is going to draw the inference – that was put.  It was also put that it was very likely that the jury was going to draw the inference.  It was also put that there was a real risk that they would draw the inference, and we certainly contended that it would be sufficient that there is a real risk.

BEECH‑JONES J:   And that is enough?

MR ODGERS:   That is enough.

BEECH‑JONES J:   And that is what you put here?

MR ODGERS:   If we are wrong about that, we say that it was inevitable, but the argument that was put was that it was a real risk.

BEECH‑JONES J:   But just to be clear, you say even if the Crown does not ask for it ‑ ‑ ‑

MR ODGERS:   Yes.

BEECH‑JONES J:   ‑ ‑ ‑ and the Crown does not ask a particular question that might imply it, like one of the examples given in the second reading speech of asking a surgeon whether a person was a virgin, that that ‑ ‑ ‑

MR ODGERS:   No, your Honour, that is not quite how I put it.  We relied on the Crown adducing evidence that the complainant was nine years old ‑ ‑ ‑ 

BEECH‑JONES J:   Right – her age.

MR ODGERS:   ‑ ‑ ‑ in the absence of any evidence adduced by the Crown that she had sexual experience.  So, it is not the mere fact that there was evidence of age, it was also that the totality of the prosecution case was:  nine years old, no evidence of prior sexual experience.  Going back to Justice Fagan:

The statutory test is not one of risk as to how jurors might reason but of whether the evidence and submissions relied upon by the Crown have conveyed an implication of prior sexual experience or activity, or lack thereof.  Here, I find nothing in the presentation of the Crown case that effectively invited the jury to draw an inference about lack of prior sexual experience or activity . . . on the basis of her age.

Now, the issue of construction, then, is whether the provision – we say the issue is whether the provision is engaged not only where the Crown Prosecutor says something to the jury, either directly or indirectly – directly in submissions or indirectly in questioning witnesses – to invite the inference of lack of sexual experience on the basis or generally, but also where the evidence adduced in the prosecution case makes it likely or at least creates a real risk that the jury will draw the inference.

Now, I want to explain something about that.  Going back to the language of 293(6)(a), how do we say that evidence of fact A implies the possible existence of fact B?  How does ‑ ‑ ‑ 

GORDON A‑CJ:   Well, I think we need to be more specific, do we not?  As I understand it ‑ ‑ ‑ 

MR ODGERS:   I was about to put it in the circumstances of this case.  How does evidence that the complainant was nine years old at the time she spoke to the police imply that she may have a lack of sexual experience, that she possibly had a lack of sexual experience?  So, I have put it in the more general sense, to look at the question of logic.  Now, one way ‑ ‑ ‑ 

GLEESON J:   I am sorry, Mr Odgers, are you putting this in two ways?  Are you saying that there is a process of inferring from the age alone and a process of inferring from the age alone and the lack of prosecution evidence of prior sexual experience?

MR ODGERS:   The latter, because I am saying you have to look at what is – the prosecution case can be understood as the totality of the evidence adduced in the prosecution case.  So, that includes what they have adduced and what they have not adduced, and ‑ ‑ ‑ 

GLEESON J:   So, that implies that the prosecution could have adduced evidence of the complainant’s sexual experience.

MR ODGERS:   That is exactly right, and we say that Munn and Miller was a case where that is exactly what happened.

GLEESON J:   What do you say the admissible evidence was?

MR ODGERS:   Well, they did not.  I am saying in this case, unlike Munn and Miller, where there was some evidence of sexual experience, so that the Court of Criminal Appeal in that case held that the prosecution case had not implied a lack of sexual experience, because there was some evidence of sexual experience deduced in the prosecution case, it was concluded in Munn and Miller that the prosecution case had not implied a lack of sexual experience.

GLEESON J:   It may be you do not need the counterfactual.

MR ODGERS:   I do not think I do, your Honour.  Returning to the analysis of how we say that it makes sense to ask whether a risk that the jury might reason in a particular way would be sufficient to satisfy the terms of 293(6)(a).  One way that you concluded that an inference will be drawn from fact A – sorry, one way you imply fact B from fact A or imply the possible existence of fact B from fact A is if the inference will be drawn from fact A that fact B existed.  So, if you could conclude the jury will infer lack of sexual experience from age, then you have satisfied 293(6).

Equally, if you are satisfied that the inference will be drawn from fact A that fact B possibly existed, then you have satisfied 293(6).  And we do submit that at the time that the 293 application was before Judge Traill, it should have been concluded that the jury in the forthcoming trial would infer from the fact that the complainant was nine years old that it was possible that the complainant lacked sexual experience.

BEECH-JONES J:   So, just to be clear, any case involving a nine‑year‑old who gives evidence of sexual abuse would fall into 293(6)?

MR ODGERS:   No, because ‑ ‑ ‑

GORDON A‑CJ:   Identify what would fall outside of it.  What is the ‑ ‑ ‑

MR ODGERS:   Where the prosecution adduces evidence of sexual experience in some way, or there is some agreement that there was sexual experience.  So, it is only ‑ ‑ ‑

GLEESON J:   Or lack of sexual experience.

MR ODGERS:   No, no, evidence of sexual experience.

BEECH-JONES J:   All right.  So, in other words, (6) – this would never bite for a nine‑year‑old.  The whole section would fail.

MR ODGERS:   Section 293?

BEECH-JONES J:   Section 293, every case, because the Crown would either have to adduce it or it would be implicitly opened up.

MR ODGERS:   If the Crown agreed that – just to put it blandly – there was prior sexual experience, so that the jury would not imply a lack of sexual experience, then 293(a)(6) would not apply.  You would not be able to cross‑examine – my first point.  Second point – before you could cross‑examine, you would have to persuade the judge that there was evidence of prior sexual experience.

You would not be able to start cross‑examining without having demonstrated that there was evidence of prior sexual experience.  Now, in most cases with nine‑year‑olds, there would not be – you would not be able to show a lack of sexual experience.  It is only in a case where there is evidence of sexual experience that you would be permitted to cross‑examine about it.

BEECH‑JONES J:   What if you do not know?  You might – on your analysis, you would be able to ask, would you not?  To ask, just to find out.

MR ODGERS:   I think that – no, the question is whether the prosecution case has ‑ ‑ ‑

BEECH-JONES J:   I am asking about the consequences of your construction.

MR ODGERS:   Yes.

BEECH-JONES J:   I am trying to understand why the consequence of your construction would be that the section, on this approach, does not fail in the case of a nine‑year‑old, or an eight‑year‑old, or a seven‑year‑old.

MR ODGERS:   My answer is, firstly, it would not apply if the prosecution adduced some evidence of sexual experience or if there was some agreement that there was prior sexual experience – that is the first point.  The second point is that the trial judge would have to be satisfied that there is some evidence of prior sexual experience before the judge would grant leave to cross‑examine under (6).

STEWARD J:   Does not the effect of your submission mean that in every case where the Crown knows there is prior sexual experience of someone under the age of 10, that you are saying that they really need to disclose that to the jury.

MR ODGERS:   To prevent cross‑examination, yes.

STEWARD J:   But does not that then undermine the very purpose of 293(3), that in every case they would have to do that?

MR ODGERS:   Your Honour – the core of the submission is, of course, the precondition for any cross‑examination would be that the accused might be unfairly prejudiced if it could be put before the jury that there was some prior sexual experience.  So, that is a precondition, plus the balancing test of probative value and distress, humiliation or embarrassment would also have to be satisfied.

But, clearly, one precondition to all of this is that the defence can demonstrate to the judge that there will be unfair prejudice to the accused if the jury is left in a position of potentially inferring lack of sexual experience – which could be critically important in supporting the credibility of a complainant, for the reasons as articulated in the first Court of Criminal Appeal judgment – and that that prejudice must be removed, must be avoided.

STEWARD J:   It just seems to me that role of subsection (6) is to create an exception to what is otherwise a general rule against leading such evidence.

MR ODGERS:   I accept that.

STEWARD J:   And what (6) is really saying is that if the Crown put it in as an issue – it does something positive – then the exception arises.

MR ODGERS:   Your Honour, you are not to be surprised that I submit to the contrary.

STEWARD J:   No, I understand that.  But you have to give work to the phrase:

in the case for the prosecution –

MR ODGERS:   That is what the core of this appeal about.

STEWARD J:   Yes.

MR ODGERS:   What do those words mean?  It is necessary for the prosecutor to invite the inference of lack of sexual experience or is it sufficient that the jury is likely to draw the inference from the evidence adduced by the prosecution in its case?

BEECH‑JONES J:   In terms of the prejudice you identified, which is a prejudice that arises where there is evidence, why cannot the jury be directed not to reason from, say, the graphic detail given by the complainant, that that must have been derived from knowledge they acquired from being sexually abused?  That would not – what is wrong with that?

MR ODGERS:   Actually, that might be a solution to the problem – that might be a solution to the problem.  But, in a way, the difficulty with that is a judge could ‑ ‑ ‑

BEECH‑JONES J:   Is it that prosecutors are not inviting it?  They do not want that inference drawn.

MR ODGERS:   Yes.

BEECH‑JONES J:   What is the problem?

MR ODGERS:   Well, a judge, to give that direction, I would respectfully submit that the parties would have to agree that that would be an appropriate direction, and that would only be an appropriate direction where the parties agreed that there was some evidence of prior sexual experience.  Not that they would say it to the jury, but if a judge is directing the jury:  do not infer she has prior sexual experience from the detail of what she said when she was nine years old – that is pretty close to saying that she does have sexual experience.

BEECH‑JONES J:   It would be ‑ ‑ ‑ 

GORDON A-CJ:   It would be the other way around.

MR ODGERS:   Sorry, your Honours?

BEECH‑JONES J:   But do not reason – it is not so much:  do not infer she has prior sexual experience.  Your concern, as I understand it, was, ultimately, the jury might reason – that was what Justice Fagan – from the detail that the complainant gave, and that she is nine years old, you could only know about that if you had been sexually abused as she contends by your client.

Without going to whether she has sexual experience or not, a direction that says do not reason that way – that could be given, could it not?  And that does not tell anything about whether she does have other sexual experience, it simply says:  if you are thinking about that line of reasoning, do not; the Crown is not asking for it; you reject it.  No one – the jury does not – the prior sexual experience or lack of it, or whatever has occurred with the complainant is not revealed.  The section still serves its purpose, does it not?

MR ODGERS:   I have to engage with what you anticipate the judge would say to the jury, but in my submission, the only way the judge could deal with it by way of direction would be to direct the jury that they must not infer that she was telling the truth because she lacks sexual experience so that she could fabricate the allegations.  That is the concern – that the jury is going to say, look, a highly detailed account of sexual offending, how could she fabricate that account unless she had prior sexual experience?

BEECH-JONES J:   No:  how could she fabricate that account by – how could she know that unless what she said about the accused is true?  That is the reasoning ‑ ‑ ‑

MR ODGERS:   No, I disagree with – I respectfully ‑ ‑ ‑

BEECH-JONES J:   That is the reasoning that Justice Fagan identified that you embraced as the foundation for the whole argument, is it not?

MR ODGERS:   No, your Honour.  No, the foundation for the whole argument is:  how could she fabricate such a detailed account of sexual activity unless she had prior sexual experience?  That is the argument, and ‑ ‑ ‑

GORDON A-CJ:   Where do we find that formulation set out in your submissions?  Or even anywhere, for the moment?  The reason why I ask that, Mr Odgers, is the risk is the really important question here, and I had understood from the passage that you took us to in Justice Fagan’s judgment that that was the risk, because that identifies – there are two aspects here.  First of all, what is disclosed or implied in the case for the prosecution as a matter of construction.

MR ODGERS:   Yes.

GORDON A-CJ:   Second, having identified that, what are the risks that we are to meet or we have to grapple with?

MR ODGERS:   Yes.

GORDON A-CJ:   And if you took us ‑ ‑ ‑

MR ODGERS:   Well, I am going back to the first sentence of paragraph 38:

that they would infer a lack of prior sexual experience –

and ‑ ‑ ‑

GORDON A‑CJ:   That:

“there [was] a real risk that a juror, or the jury, would reason in that way”; meaning that they would infer a lack of prior sexual experience or activity (other than with the appellant) from the circumstance –

the fact:

of the complainant being only nine years old.

MR ODGERS:   Yes.

GORDON A-CJ:   That is it.

MR ODGERS:   Yes, your Honour, but that is in the context of an argument that the jury would – and I am sure that there are parts of the judgment which recount this argument, but in my own language now ‑ ‑ ‑

GORDON A-CJ:   Yes, please.

MR ODGERS:   ‑ ‑ ‑ the argument that was put was the danger is the jury will infer, from the detailed allegations of the subject of the counts, that she must be telling the truth because she could not have fabricated that account unless she had prior sexual experience.

BEECH-JONES J:   At the hands of the appellant.

MR ODGERS:   No.

BEECH-JONES J:   That is what 38 is about.

MR ODGERS:   No.

BEECH-JONES J:   Because it leads towards a finding that your client perpetrated this upon her.

MR ODGERS:   Well, of course, if ‑ ‑ ‑

BEECH-JONES J:   That is what you are worried about.

MR ODGERS:   No, no, but I use the word “fabricated”.  She could not have fabricated it unless she had prior sexual experience.  That is the concern.  Of course, the alternative is she is telling the truth and she is recounting what actually happened and what the appellant did do to her.  But that is the Crown case.

The concern is the jury, confronted by this highly detailed account of all these sexual acts committed by the appellant, says:  well, there is no evidence of prior sexual experience, we will assume a nine‑year‑old does not have prior sexual experience, how could she have fabricated those accounts; therefore, they must be true.

That is the concern, and I am confident that the Court of Criminal Appeal understood that that was the argument that was being put, and the submission that was being put, and that because the jury would draw the inference of lack of sexual experience, because the Crown had led evidence that she was nine years old and had not led any evidence of prior sexual experience, they would infer she lacked it, therefore, she could not have fabricated it, therefore, what she said must be true.

I think I was, a little while ago, dealing with the question of what section (6)(a) requires, and again I remind your Honours that you have to – the prosecution case must imply that she may have had a lack of sexual experience.  So, if you can be satisfied that the inference will be drawn from the age that she may have had a lack of sexual experience, that is enough.

We submit that at the time of the 293 application before Judge Traill, it should have been concluded that the jury would infer from the fact that she was nine years old that it was possible that she lacked sexual experience.  So, that satisfies, we say, an implication that she may have a lack of sexual experience.

Now, we did also submit – and your Honours have all appreciated this – that a finding that the jury might infer a lack of sexual experience would satisfy 293(6)(a), and I want to make good that proposition.  We submit that a finding that fact B might be inferred from fact A necessarily carries with it the proposition that the possible existence of fact A would be inferred from fact A.  So, putting it – one can conclude that fact B might be inferred – sorry, one cannot conclude fact B might be inferred without first concluding that the possible existence of fact B would be inferred.

In our submission, a finding that the jury might infer a lack of sexual experience from the fact that the complainant was nine years old satisfies the requirement in 293(6)(a) that the age of the complainant, in the absence of any evidence or agreement that the complainant did have sexual experience, implied that the complainant may have lacked sexual experience.

So, we say that there was a basis to conclude that the jury would infer it was possible that she lacked sexual experience and that necessarily also carried with it a conclusion that the jury might infer that she did lack sexual experience.  They are really two sides of the same coin.

GORDON A‑CJ:   Just so I am clear – I understand that there are two limbs to the argument.

MR ODGERS:   Yes.

GORDON A‑CJ:   One is the jury would infer from the fact that she was nine years old, given the graphic details that she explained – that is the first limb?

MR ODGERS:   No, your Honour.

GORDON A‑CJ:   That is what you said.  You said the jury would infer from the fact that she was nine years old that she lacked sexual experience.

MR ODGERS:   Again, no, your Honour.  The jury would have inferred from the fact that she was nine years old that she might have lacked sexual experience.

GORDON A‑CJ:   Thank you.  And then the second limb is that the jury might infer, in a sense, making a finding from the age of consent in the absence of evidence.  So, we have an additional limb to that argument.

MR ODGERS:   I am not sure I can put it in those terms, your Honour.  What I have put it in – in the last few minutes, I have put it in the alternative:  the jury would have inferred that she might have lacked sexual experience – sorry, would have inferred from her age that she might have lacked sexual experience.  The alternative is the jury might have inferred that she did lack sexual experience.  We put both of those propositions, we say both are sufficient to satisfy subsection (6)(a).

GORDON A‑CJ:   So, can I just ask one qualifying question, then, about that?  In relation to the alternative, you put it in the context, as I understood the submission, in the absence of evidence of her sexual experience ‑ ‑ ‑

MR ODGERS:   Absolutely.

GORDON A‑CJ:   ‑ ‑ ‑ and that only applies to the second limb, that is, the alternative formulation.

MR ODGERS:   No, I think it applies ‑ ‑ ‑

GORDON A‑CJ:   So, what I am asking, what I am trying to work out is, does it apply ‑ ‑ ‑

MR ODGERS:   Yes, so, it applies to both limbs, because the jury would not infer that she might have lacked sexual experience if there was evidence adduced in the prosecution case that she did have sexual experience.  The risk would be – you could say that the risk could be vitiated or removed and, in those circumstances, it would not be appropriate to grant leave to cross‑examine.

Equally – alternative situation – if there was evidence of some kind of evidence, as in Munn and Miller, of sexual experience, then you would not be satisfied that there was a real risk that the jury would infer lack of sexual experience because there was evidence of sexual experience in the prosecution case.

GORDON A‑CJ:   Thank you.

MR ODGERS:   Thank you, your Honour.

JAGOT J:   Is the distinction you are trying to draw that if it were only that the jury might infer that she might lack sexual experience, that would not satisfy (a)?

MR ODGERS:   No, the second alternative is that there is a real risk the jury might infer that she did lack sexual experience.

JAGOT J:   I get that, that is why I am asking.  Does it follow from that that if the jury might infer that she might lack sexual experience, you accept that would not satisfy (a)?

MR ODGERS:   I can see that there could be problems in that being sufficient under – to satisfy (6)(a).

JAGOT J:   Just to clarify, in my mind – you accept, I assume, the sexual experience or lack thereof in (6) is other than the alleged offence.

MR ODGERS:   Of course.

JAGOT J:   You do accept that, okay.

MR ODGERS:   Of course.

JAGOT J:   It was just something that you were saying suggested to me that it might not be.  Okay.

MR ODGERS:   No, of course.  The whole thrust of 293, of course, is that it is concerned with sexual experience or activity other than that the subject of the charges.

BEECH-JONES J:   Well, in any event, in any case where the prosecution prosecutes for the alleged offence, that sexual experience is clearly disclosed or part of the prosecution case.

MR ODGERS:   Yes.  I just wanted to say in respect of that, your Honour, because it goes to an argument that my friend for the Crown has run about the interaction between 293(3) and 293(6), our position is that evidence of sexual – the actual evidence of the alleged offences is caught by subsection (3).  It is caught by it, but the exception in (4)(a) applies.

So, that is an important point, because to take the example that was given in the second reading speech – we are back in 1981, so the world has moved on a bit, but reference there was to evidence led in the prosecution case that the complainant’s hymen had been broken, so that she was, to use the old language, a virgin prior to the alleged sexual offending.  If that evidence was led in the prosecution case, it was made clear in the second reading speech that that was caught by the prohibition, but that it falls within the first exception in subsection (4), which I think was subsection 409B(3).

That is important because it goes to the argument like the Crown, but it also is significant because, as your Honours appreciate, in the second reading speech when there was a discussion about 293(6), or what was then – let me get it right, I always get the numbers wrong – 409B(5), in the second reading speech – perhaps I can take you to it now, because I am here.  I have to find it – it is in the appellant’s book of further materials, page 950.  This was, of course, a discussion in the third paragraph, point 3 on the page, about 409B(3)(f) ‑ ‑ ‑

BEECH-JONES J:   Sorry, what page was that again?

MR ODGERS:   I am sorry, page 950 of the further book of materials, point 3 of the page, your Honour:

Proposed section 409B(3)(f) –

which is now 293(4)(f):

has to be read in conjunction with proposed section 409B(5).

Which is now 293(6):

It will allow cross-examination concerning prior sexual history where it has been disclosed or implied in the case for the prosecution that the complainant was of particularly limited sexual experience at the time of the alleged offence.  For example, if it is said by the prosecution –

So, I am focusing on the word “said” there:

that the complainant was a chaste married woman, or a virgin, the accused ought to be entitled to cross-examine about that.

Moving on, I will not read the next sentence, and then I submit that the next sentence, beginning “Thus”, is a second example:

Thus if it is somehow suggested during the prosecution case – for example through the evidence of the police surgeon – that the complainant was a virgin prior to the events, then the accused may explore that matter by cross-examination, if he sees any benefit in it.

In my submission, that is a reference to, where there is evidence – in that case, evidence from a prosecution witness – that the complainant was a virgin – that is, evidence of a lack of sexual experience – then, or now, 293(6) is engaged; cross‑examination about that is permissible.

So, we say the second reading speech recognises the two scenarios:  one, where the Crown Prosecutor says something to invite the inference of lack of sexual experience; or, two, where the evidence in the prosecution case implies a lack of sexual experience – discloses or implies, which, of course, is the statutory language.

I was referring your Honours to the discussion of what was then the first exception in 293(4), which is discussed at 948 of that book.  I will not take your Honours through that, but that is where there is a discussion about getting evidence from the police doctor – this is at point 3 on 948, that:

the hymen . . . had been recently broken –

that was understood to be evidence that fell within the first exception.  So, I think your Honours understand ‑ ‑ ‑

GORDON A‑CJ:   In relation to the outline, where are we up to, do you think?

MR ODGERS:   I think we are at 5, your Honour.  I have just been putting the arguments that there are two ways that the prosecution can disclose or imply a lack of sexual experience, and to support that construction, I refer your Honours – I will take your Honours now to the outline of our submissions – sorry, the written submissions – appellant’s submissions, paragraph 6.6.

I am just going to – your Honours would have read this, but I will just take your Honours through it briefly – page 12 of the written submissions.  We say – this is line 20 – that the construction for which we contend – what the prosecution case means is two alternative things:  what is said by the prosecutor and what the prosecution evidence implies.  We say the first argument is the exception should not be narrowly construed – that is the last sentence at the bottom of the page – you should not take a narrow approach to the exceptions.

STEWARD J:   We have read your submissions.

MR ODGERS:   Okay, your Honour.

STEWARD J:   It might be better just to add to them.

MR ODGERS:   Yes.  I appreciate that, your Honour.  I will not repeat them.  I have put the arguments over the page.  I have submitted that the purpose of 293(6) is to prevent a jury having a misconception – that is, we say, key – particularly where that misconception would unfairly prejudice the accused.

GORDON A‑CJ:   So, that is the risk that we have been identifying.

MR ODGERS:   Yes.

GORDON A‑CJ:   Yes.

MR ODGERS:   And, the fourth point on that page, it cannot be right that the misconception can only be removed where the prosecution actively fostered it, as distinct from the prosecution creating the risk that it will be drawn – that misconception will occur – and doing nothing to prevent it.

STEWARD J:   Your case is fairly simple, is it not?  This is not a disclosure case.  It is a case of – you say it is implied from the prosecution case, because the prosecution led evidence of the age.

MR ODGERS:   Exactly.  Yes.

STEWARD J:   And it had to do so because of the nature of the offences in question.

MR ODGERS:   That is correct and did not lead any evidence, as in Munn and Miller, of prior sexual experience.

STEWARD J:   Yes.  Understood.

MR ODGERS:   It is simple, and I appreciate that, your Honour.  The third point on page 13 is getting the balance right.

BEECH‑JONES J:   I just want to be clear, on that argument, there would never be a case of a nine‑year‑old with prior sexual experience who does not get the benefit of 293.

MR ODGERS:   There would never be a case?

BEECH‑JONES J:   That you have a nine‑year‑old who has prior sexual experience where 293 would engage to prevent that being adduced.

MR ODGERS:   I think that is correct.  That would be the effect, because if there was prior sexual experience, and where there was a real risk that the jury would infer lack of sexual experience, and that would go to support the credibility of the allegations, 293(6) is directed to preventing that unfair prejudice.

I mean, of course, we know that when 409B was enacted, not a lot of thought, we say, was given to how it would operate when you came to young children.  The focus was, I think it is fair to say, protecting adult sexual complainants from investigation of their sexual historically and who they consensually had sexual intercourse with before or on other occasions.  That was the primary focus.  I think that is a fair point.

The fact that, if our argument is correct, where you do have what I will call a very young complainant who does have prior sexual experience – which would be a relevantly rare phenomenon in a criminal trial, but where that child does and there is a risk, if not an inevitability, that the jury will infer that she does not and use that to enhance the credibility of the allegations, then it is, with respect, self‑evident that the accused is going to be unfairly prejudiced.  In most cases, the probative value of the evidence of sexual experience will outweigh the distress that might be occasioned to the complainant.

GLEESON J:   It would have to be a child with prior sexual experience, and the accused would have to have something to cross‑examine the child on in relation to that experience.

MR ODGERS:   I see them as two sides of the same coin.  The evidence of that prior sexual experience would be something that the defence would put before the judge at a 293 application, and say, look, we have this evidence, we want to cross‑examine the complainant about it.  So, in this case ‑ ‑ ‑ 

GLEESON J:   I am just suggesting the category of children with prior sexual experience, one would hope, would be a fairly small one, but the accused would also have to have something to cross‑examine the child about.

MR ODGERS:   Yes.  Absolutely.  Yes, you cannot – I say it is not speculative – you would have to persuade the judge that you have a basis for the cross‑examination.

GORDON A‑CJ:   So, to paint the facts of this case, you say we had the disclosure, which disclosed what it disclosed.

MR ODGERS:   Yes.

GORDON A‑CJ:   You made the application to the judge under section 293(6) to do what you have just described.

MR ODGERS:   Correct.

GORDON A‑CJ:   And you were rejected.

MR ODGERS:   Yes, correct.

GORDON A‑CJ:   The question here is whether or not that was the appropriate outcome, i.e. two things, in the way you put your case, on the disclosed or implied, and then the two ways in which you put it for the purposes of the construction.

MR ODGERS:   I generally agree with what your Honour has put to me.  We do not rely on the disclosed.  We say it was implied that she lacked sexual experience.  We say that it was argued before the judge that the young age, in the circumstances, implied lack of sexual experience.  Her Honour appears to have concluded – as did, we say, the Court of Criminal Appeal – that because the Crown Prosecutor was not going to say to the jury:  you should infer lack of sexual experience, that, therefore, 293(6) was not satisfied.

We say that is wrong because it should be concluded that either it was inevitable that the jury would infer lack of sexual experience or, at the very least, there was a real risk that they would infer that.  And we say it is implied, at the very least, that she may have a lack of sexual experience which, of course, is the requirement under (6)(a).

BEECH‑JONES J:   Section 293 is only there to protect or to address the circumstance where the complainant has prior sexual experience.  Every child – so, no child from nine years or below would ever get the benefit of it, on your argument, and, indeed, probably up to age 11 or 12, because there is no point talking about it with children who do not have sexual experience, because 293 is never – prior sexual experience – because it is not engaged.  The section is there ‑ ‑ ‑ 

MR ODGERS:   Yes.

BEECH‑JONES J:   ‑ ‑ ‑ for a category of witness, and the effect of your construction is to exclude it entirely for anyone at least nine or below, and probably up to some age of around 12 or 13.

MR ODGERS:   Whatever the point is reached where a judge ‑ ‑ ‑

BEECH-JONES J:   Would say:  no, you would not necessarily conclude that, or you might not conclude that.

MR ODGERS:   You might not conclude that, correct.

BEECH-JONES J:   Okay, I understand.

MR ODGERS:   I think I am comfortable with that proposition, your Honour.  I think I would respectfully submit that when one asked the question, when 409B was being enacted and when it was recognised that there should be exceptions to the prohibition, my respectful submission is that subsection (6) in combination with (f) recognised that where the prosecution case – that is, the evidence in the prosecution case – created a substantial risk – let us put in that language – of the jury having a significant misconception likely to cause real prejudice to the accused, then of course, I say, there should be an exception.

I mean, it should not be a difficult proposition to say if there is a real risk that the jury is going to have a very significant misconception which is going to cause real prejudice to an accused, the accused should be given the opportunity to remove that misconception, assuming the Crown has not done something to do that or assuming that the judge does not do something to remove that.  It should not be a difficult proposition to satisfy your Honours, in my respectful submission.

GORDON A-CJ:   We were back in your written submissions at paragraph 6.6.  I think we have dealt with those points, have we?

MR ODGERS:   Yes.  The only other point was the sixth point on page 14 which is the reference to Munn and Miller, and again, I assume your Honours have read that and you understand the argument that has been put.

Back to the outline, I am now going – I am going to be moving pretty fast – to 6.  I am really now responding to counter‑arguments.  Paragraph 6 is the counter argument that the language itself of “the case for the prosecution” implies that something is said by the prosecutor.  We say that that is an unduly narrow construction.  Paragraph 7 is the argument that I will leave my friend to develop, which is that 293(3) itself leads to a conclusion about the proper construction of 293(6)(a).

I have dealt with that in considerable detail in the reply.  I do not know whether it is necessary for me to say something in reply later today, but I cannot add anything significantly to what is in the reply.  I just need to make one correction to the reply.  If your Honours have the reply, at paragraph 6, at line 7 there is a reference to 293(4)(a) which is then said to be “(then 409B(4)(a))”.  Of course, I have made a mistake.  It is 409(3)(a).

BEECH-JONES J:   I am sorry, Mr Odgers, what paragraph of your reply was that?

MR ODGERS:   This is paragraph 6 on page 4, line 7, your Honour.  I have given a reference to 409B(4)(a), it should be 409B(3)(a), and the same mistake is made at line 11 – 409B(4)(a) should be 409B(3)(a).  That is all I wanted to say about that.  I lost my outline, I have now found it.

GORDON A‑CJ:   Can I just ask one question about it, which may arise in paragraph 7, and you may be coming to it.  In your reply, at the foot of page 1, you say looking at:

the (totality of the) evidence adduced in the prosecution case is likely to lead –

MR ODGERS:   Yes.

GORDON A‑CJ:   Is that distinct from the argument based upon age alone?

MR ODGERS:   In practical terms, no, but what was being put against us by the Crown was that we were saying evidence of the age alone was sufficient to activate 293(6).  We are saying no, it has to be the prosecution evidence in totality that must imply lack of sexual experience.

Now, in this case, it was the combination of two things:  one, the evidence of age; two, the absence of any evidence of prior sexual experience.  Unlike Munn and Miller, where there was some evidence of prior sexual experience, there was an absence of that, therefore, the prosecution case as a whole implied lack of sexual experience, but, of course, I accept it is based on the age primarily.

GORDON A‑CJ:   Thank you.

MR ODGERS:   Thank you, Your Honour.  So, I am now at 8.  I think this is really Justice Beech‑Jones’s point to me, and I am really repeating what I have said in that paragraph, and I will not read it out.  So, in summary, then, before I get to 9, we say that in this case the evidence of the young age of the complainant without any evidence of prior sexual experience adduced in the prosecution case meant that the prosecution case implied that she may have a lack of sexual experience, and that engaged paragraph (a).  Then the question is, under paragraph (b), whether the appellant:

might be unfairly prejudiced if the complainant could not be cross‑examined –

about prior sexual experience. 

BEECH-JONES J:   Are you at paragraph 9 of your outline?

MR ODGERS:   I am.

BEECH-JONES J:   I think in that outline you adopt the first Court of Criminal Appeal judgment that identifies that material as potentially providing an innocent explanation for an ability to describe sexual acts.

MR ODGERS:   Yes.

BEECH-JONES J:   And this is the point I was ham‑fistedly trying to suggest earlier.  Why could that not be protected against by a direction?

MR ODGERS:   And I responded as I did, your Honour, by saying, well, it would depend on the terms of the direction, and that would in turn – I think my submission would be that a judge could not give the necessary direction without an agreement between the parties that there was evidence of sexual experience.  Now, your Honour may disagree with me about that, but that is my submission, that the direction would have to be:  do not infer a lack of sexual experience.  That could only be properly given where there was evidence of sexual experience agreed between the parties.

GLEESON J:   But we would be, ex hypothesi, in that situation, would we not, if you were seeking to cross‑examine?  Or not necessarily?

MR ODGERS:   Your Honour, my answer – I think I am going to answer it indirectly.  You are making a 293 application to the judge.  You say to the judge:  look, there is this real risk that the jury are likely or very likely to infer lack of sexual experience and use that against the accused.  That would be unfair, in circumstances where there is sexual experience.  So, that has to be solved.  One way to solve it is to allow cross‑examination, but another way to solve it is to ensure that there is no risk that the jury will reason in that way.

GLEESON J:   But I thought you agreed with me that there was going to be nothing to cross‑examine about unless you had something to cross‑examine with.

MR ODGERS:   I am certainly making that – yes, I am.  I misunderstood your Honour’s question to me.  Yes.

GLEESON J:   And that would be evidence, would it not?

MR ODGERS:   You have to have evidence of sexual experience in order to persuade the judge that you should be entitled to cross‑examine.  Yes.

BEECH-JONES J:   I mean, you could direct the jury that they should not reason that a nine‑year‑old could not provide an explanation or was unable to describe sexual acts of the kind alleged against the appellant unless they had actually occurred.  You would not have to into the fact of whether she did or did not have sexual – you get, as it were, to the chase and say:  well, do not reason that way.  Could you not do that?

MR ODGERS:   I submit that that direction would be something that the jury would really struggle with unless you made it explicit that they must not assume that there was a lack of sexual experience.

BEECH‑JONES J:   All right.

MR ODGERS:   My submission is that a direction on its own could not solve the problem.  In this case – and this is a reference to what is in the submissions at 5.6 – we know that this complainant had given a very comprehensive interview in which she had said to the police that she had been sexually abused in many different ways when she was – I am not sure of the ages now, I think it was seven to eight, or six to eight.  That is prior to when she spoke to the police when she was nine years old and making the allegations against the appellant.

So, there was evidence that she had been sexually abused in ways that were not dissimilar to what she alleged the appellant did to her.  In my respectful submission, evidence of that – which is summarised at 5.6 of the submissions – supports a conclusion that the appellant might be unfairly prejudiced if he was not permitted to cross‑examine her about that, to say:  all these things happened to you.

That would be the end of the cross‑examination, which would then permit the submission to be made to the jury in final address:  so now we do have a basis upon which she could have fabricated the allegations against the appellant, because she had experience sufficient to allow her to do that.  To prevent the misconception is what the concern of 293(6) is about.

Yes, we do rely to some extent on the first CCA judgment, and we say that what I have just said supports a conclusion under 293(4) – which, of course, you would need to go through – which is that the probative value of the evidence would outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.  So, what would be the distress, humiliation or embarrassment of saying to the complainant:  you were sexually abused, were you not, when you were six or seven and these various things happened to you, is that correct?  Yes.  End of cross‑examination.

Given that she had been prepared to go to the police and make complaints about all of these things, it is difficult to see, we would respectfully submit, that she would suffer significant distress, humiliation or embarrassment from that fact that she had made these allegations about AT being adduced in cross‑examination for the purpose I have identified, which is to show that she could have – had the capacity to – had the knowledge to fabricate the allegations against the appellant.

Paragraph 10 of the outline, we submit that your Honours would accept that, in particular, the evidence relating to AT would properly have been something that – subject to the Crown making a concession or subject to the judge saying:  I will give appropriate directions of the kind your Honour Justice Beech‑Jones referred to – would satisfy all the requirements of 293 to permit that cross‑examination to prevent the prejudice that would otherwise arise, and that the probative value of the evidence relating to her allegations in respect of AT to remove the significance of the detailed allegations going to support the credibility of the complainant – the probative value of the evidence for that purpose would outweigh the distress, humiliation or embarrassment that the complainant might suffer.

Then the question becomes, well, if that is right, we say the appeal should be allowed.  Then the question is:  what are the appropriate orders?  The Crown has put the submission that the matter should be remitted.  Our submission is ‑ ‑ ‑

GORDON A‑CJ:   They have pushed for a new trial, you mean.

MR ODGERS:   No, your Honour, I think they have pushed for a remit to decide whether or not – again, my friend will explain it, but I think their submission is ‑ ‑ ‑ 

GORDON A‑CJ:   In paragraph 14 of their outline of oral argument:

A new trial should be ordered –

MR ODGERS:   Okay.  I had not looked at that, your Honour.  I will leave it to my friend to respond to that.  My submission is that verdicts of acquittal should be entered.  This would be the third trial, in circumstances where there was a non‑disclosure of this material at the time of the first trial, long delay that led to the first CCA appeal, where the significance of 293 was not raised by the Crown, then a further delay while the application was made, the Crown opposes all of the evidence on 293 grounds.

We say that your Honours would be persuaded that that caused unfair prejudice to the accused and that, in those circumstances, where he is now on parole, has served his non‑parole period, where his sentence has to be reduced, the appropriate order would be enter the verdicts of no new trial, but that is all I have to say about that.

BEECH‑JONES J:   Mr Odgers, can I ask you two matters.  Firstly, it is in your notice of appeal and it is in your written submissions that you seek to quash convictions on counts 1, 2, 4 and 5.  Were 1 and 4 not already quashed?

MR ODGERS:   Yes, I think – yes, that is absolutely correct, your Honour.

BEECH‑JONES J:   Right, okay.

MR ODGERS:   That may mean that we were under a misconception as to what this Court would need to do.  What we are saying is the orders that were made were:  quash 1 and 4 below.  We are saying, no, no, the orders should be to quash all four of them, not just 1 and 4.

BEECH‑JONES J:   I see.  All right.  The second is this debate about ground 1, it is directed to the evidence summarised by Justice Fagan in paragraph 24, is that right – paragraphs 24 and 25?

MR ODGERS:   Yes.

BEECH‑JONES J:   There is some lack of clarity about 26.

MR ODGERS:   I am just not sure ‑ ‑ ‑ 

BEECH‑JONES J:   Or does that not matter?

MR ODGERS:   In this Court, we have placed primary importance on the evidence of the police interview where she alleged that when she was six to eight years old she had been sexually abused by ‑ ‑ ‑ 

GORDON A‑CJ:   You rely upon what is in 25 primarily, do you not?  That is, the contents of the JIRT interview.

MR ODGERS:   Yes.  We say that is a really – it is much more detailed than what his Honour has summarised it as there in 25.

BEECH‑JONES J:   Just to be clear, is that 16 August 2017?

MR ODGERS:   Yes.

BEECH‑JONES J:   Because MW was 14, I think, then.

MR ODGERS:   Correct, your Honour.

BEECH‑JONES J:   But I thought there was an interview in 2012.

MR ODGERS:   Yes, your Honour.

BEECH‑JONES J:   So, is it that interview, or is it ‑ ‑ ‑

MR ODGERS:   No, your Honour – just so we are clear ‑ ‑ ‑

BEECH‑JONES J:   It is not the interview in 2012, it is that one.

MR ODGERS:   It is the one in 2017 ‑ ‑ ‑

BEECH‑JONES J:   At 14.

MR ODGERS:   ‑ ‑ ‑ where she makes an allegation that when she was somewhere between six to eight – that is, before 2012 – she had been sexually abused in many ways, on many different occasions, by AT.  We have summarised the evidence in relation to that at 5.6 ‑ ‑ ‑

BEECH‑JONES J:   I see.  Yes, all right.

MR ODGERS:   ‑ ‑ ‑ in some detail.

BEECH‑JONES J:   Yes, I understand.

MR ODGERS:   And when you look at it in detail, there is a lot of similarity between what she said happened at the hands of AT and what she said happened at the hands of the appellant.  So, that is why there would be unfair prejudice, because it provides a source of experience or information which she could have used to fabricate the allegations against the appellant in 2012.

BEECH‑JONES J:   So, that is 24 and 25.

GLEESON J:   But it is mostly 25, is it not?

MR ODGERS:   Yes.

GLEESON J:   Do we need to – do you maintain it in relation to 24?

MR ODGERS:   That would be something where I could see an argument that you would remit it to make the assessments of unfair prejudice and balancing exercises.  So, the reason I have relied on it here is to say this Court would be satisfied that the AT evidence did meet the requirements of 293(6) in terms of causing unfair prejudice if you could not cross‑examine about it and the requirement of balancing probative value, et cetera.  But this Court would then be satisfied that it was something that could properly have been the subject of cross‑examination and, therefore, there was a miscarriage of justice.

GORDON A-CJ:   Just so we are clear, you write in paragraph 11 that in relation to ground 2 you are relying on written submissions.

MR ODGERS:   Yes, your Honour.

GORDON A-CJ:   Given the time, we might take a short adjournment.

AT 11.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.24 AM:

GORDON A-CJ:   Ms Roberts.

MS ROBERTS:   Your Honours, section 293, and its earlier forms, has been closely considered by this Court in some relevantly similar circumstances, and the two decisions to which I am going to take your honours are HG v The Queen – which is in the joint book, volume 3, tab 9 –and then, of course, Cook (2024), which is in the joint book, volume 4, tab 12.

The provision section 293 must be construed as a cohesive scheme – as a provision as a whole – and not, in our submission, as the appellant seeks to construe subsection (6), as a standalone provision.  In our submission, the appellant’s contended construction of (6) does not achieve construction of the provision taken as a whole, and consistently with this text and its statutory purpose.

A number of propositions emerge from the judgments of this Court in HG and in Cook.  Turning first to Cook, at paragraph [35] of the judgment, your Honours, section 293(3) is a prohibition from which there are exceptions.  The prohibition is drafted broadly and, as we know, the purpose for which it was enacted in 1981 – that is, in 409B at that time was – I am quoting:

to “ease, so far as is possible, the humiliation experienced by sexual assault victims, to remove the stigma attached to the rape victim, to encourage victims to report the offences, and to bring the offenders to justice as justice demands”.

My learned friend referred to the fact that the second reading speech in 1981 is focused on adult complainants of sexual assault, but the question of the application of 293, or its predecessor, to child sexual assault complainants was raised and considered in HG and confirmed that it applies in the same way, and for the same reasons, to child sexual abuse complainants – as it does with respect to adult complainants – or to a past history of non‑consensual, sexual activity in the case of adult complainants.

In the judgment in HG – first of all, the judgment of his Honour Justice Hayne at paragraph 147, which is at page 73 of the joint book of authorities, your Honours:

There is no warrant for reading the provision as confined to consensual acts.  Nothing in the language used suggests any intention other than to extend the reach of the provisions as broadly as possible. 

His Honour goes on to say:

so, it by no means follows that a distinction between consensual and non‑consensual sexual acts is warranted.  Distress, humiliation and embarrassment are very likely present for any person required to describe, in a public forum, sexual activity in which they have engaged.  There is no basis for suggesting that the distress, humiliation or embarrassment felt . . . would be less if the activity occurred as a result of the unlawful conduct of another or others.

Of course, HG is a case involving a child sexual assault complainant.  His Honour the Chief Justice in the same case at paragraphs 29 to 31, deals with this point, picking up and approving what President Mason had said in the New South Wales Court of Criminal Appeal below:

“To limit s 409B –

this is at paragraph 30 of the judgment, your Honours:

“To limit s 409B to consensual sexual activity would lead to a most invidious distinction in the case of child sexual assault victims.

Is what is said there.  Your Honours, we pick up those words and we say that the invidious – the appellant’s contended construction of this provision would introduce the invidious distinction identified there by the Chief Justice and would be contrary to the purpose of section 293.

Both HG and Cook are decisions involving allegations of child sexual assault, and they are both decisions in which the accused wished to rely – or to introduce evidence of prior sexual abuse.  In Cook, your Honours, the prior sexual abuse was not disputed.  It had occurred in Queensland at a time prior to the alleged offences in Cook.  Then, in HG there was – as your Honours are well aware – a disputed opinion about the possibility of such having occurred.

In each case, and particularly in HG, it is expressed that what the appellant wanted to do was rely on that by way of an alternative explanation, an innocent explanation, of that young child complainant’s ability to give a compelling description of the sexual abuse.  In Cook it was to support a suggestion of fabrication or conflation.  In HG that can be seen at paragraph 13 of the judgment of the Chief Justice, who observes there that the complainant, who was young – she was:

eight or nine when she complained to her mother, about ten when she spoke to the police, and twelve when she was giving evidence . . . was also giving a detailed description . . . A trial judge or jury might well regard that description as lending weight to her allegations.  The defence wished to be able to explain –

that:

in a manner consistent with the innocence of –

the accused.  The theory was, as expressly set out there, that she had been a victim of prior child sexual abuse, but that the abuser was her by this time deceased natural father.

Putting aside the issues in that case about the admissibility of the opinion to that effect, because that was where the evidence came from in HG, the Court clearly accepted the relevance or the forensic purpose of using this evidence in this way, but nevertheless concluded that it was inadmissible by reason of 409B, and that is at 35.  I think the citations are in our oral outline, but it is in the Chief Justice’s judgment at 35, Justice McHugh at 95, Justice Gummow at 124 and Justice Hayne at 149.

GLEESON J:   Do you accept that the material relating to AT would have been important to the defence case if it could have been adduced?

MS ROBERTS:   Your Honour, I have a short answer and a longer answer to your Honour’s question.  We accept, of all the material that is relied upon, that that is the only material that can clearly be said to be evidence of some relevant prior event.  We do not accept the characterisation placed on it in oral submissions this morning that it was prior sexual abuse necessarily, and the reason we say that is the age of AT at the time that what occurred, occurred.  But it may be described as sexual activity; we would accept that.

The reason we draw the distinction between experience and activity is because of the question of timing and observations of this Court in Cook about characterising an experience as having suffered prior, being a survivor of child sexual assault.  We do not accept that characterisation with respect to this evidence.

My longer answer is, we accept that it is material which engages with the question that is before this Court in a meaningful way, and we do not necessarily accept that with respect to the other documents listed in 24, for different reasons with respect to them, but if we came to the point of considering – that is, if our construction of subsection (6) was rejected and we came to the point of considering the admissibility of this evidence, we have to highlight that it was not pressed before the trial judge under subsection (6).

The significance of that is not to get into a dispute about what was said below and whether it is different from now for the sake of it.  It is because – and I was going to come to this for how the provision operates – we do not actually know – your Honours do not know what it is that the accused, the appellant, proposes to cross‑examine the complainant about and exactly how that is to be done.  Respectfully, we do not accept that it would be as simple as:  did these acts take place; were you the subject of child sexual abuse at a particular time where certain acts took place?

Because in order to establish – and again this is assuming that your Honours are against us on our primary contention, but in order to engage the unfair prejudice aspect of subsection (6), one would need to understand the similarities and differences between what was said to have occurred with AT and what is being alleged, in order to make good the proposition that the allegations with respect to AT or the disclosure with respect to AT necessarily does what is being advanced, which is that it both corrects an implication – we do not accept there is one – and does so in a way that provides a basis for fabrication.

The other reason that it is necessary to understand what was proposed to be put, and how, is because my learned friend puts to one side the tailpiece to subsection (4) and says, well, the distress and humiliation would not be that much, because all you need to do is put to the complainant:  you were previously sexually abused and these sexual acts took place.

We do not accept that, with respect, because the context of what she says, the timing of what she says, the person with whom she engaged in the activity – all of those matters, once it is introduced for the purpose of saying this is a basis for the complainant to have fabricated her account against the accused, they would necessarily need to be explored.  I would anticipate that the accused, for a start, would wish to explore them in some detail, in order to make good the forensic purpose for which he seeks to have the evidence admitted.  That is a very long answer to Your Honour Justice Gleeson’s question.

GLEESON J:   Perhaps I could check that – what I was really asking was whether or not the simple proposition that is put at the end of 13 of HG is analogous to this case, in that the theory that the complainant had in truth been a victim of sexual abuse but that the abuser was someone else would have been important to the defence case.  So, the theory that she had in truth been a victim of sexual abuse at the hands of AT would have been important to the defence case.

MS ROBERTS:   Yes, with the caveat that we do not necessarily accept the characterisation of sexual abuse but ‑ ‑ ‑

GLEESON J:   From her perspective.

MS ROBERTS:   ‑ ‑ ‑ it is prior sexual activity.

GLEESON J:   Sure, from her perspective it would be abusive, would it not?  It would have been experienced as abuse.

MS ROBERTS:   Based on the transcript alone, it is potentially ‑ ‑ ‑

GLEESON J:   She made a complaint about it as sexual abuse.

MS ROBERTS:   She did, your Honour.  She did, in the context that when she was 14 and he was 17 he had contacted her via social media and, in effect, invited her to talk about it or invited her to rekindle their contact.  I accept that that could be one characterisation, and we do accept, yes, at the very least – perhaps without resolving that characterisation or that descriptor, we accept that it is prior sexual activity which could have relevance to a defence case of fabrication.  Yes.  I am sorry, your Honour Justice Beech‑Jones.

BEECH‑JONES J:   My first question is:  do you accept the first sentence of 37 of Justice Fagan’s judgment about – that the jurors would be likely to have that understanding?

GORDON A-CJ:   This is on page 134, at the bottom.

MS ROBERTS:   Yes.

BEECH‑JONES J:   And then do you also accept the risk that at least was argued for that may arise in paragraph 38, first sentence?  I will put them all, so you know where I am going.  Then the next question is:  do you accept that the material – at least in 25, possibly 24 – if available would at least address that risk of reasoning?

Then, the last question I was going to come to was:  do you accept, concede, propound or reject the suggestion of a direction being capable of addressing the risk without addressing whether there was or was not sexual experience?  I put them all four, because sometimes people are reluctant to know where they are all going.

MS ROBERTS:   Thank you, your Honour.  We do not argue against the first sentence of paragraph 37 of Justice Fagan’s judgment, but we do highlight that his Honour includes:

unless in circumstances of abuse.

Which is a rider to that.  So, his Honour is saying that is:

the common experience amongst jurors that –

a girl of nine would not necessarily:

have gained sexual experience –

other than:

in circumstances of abuse.

BEECH-JONES J:   Yes.

MS ROBERTS:   So, that does not go very far to accepting that the misconception – in any meaningful way – exists, because if the experience of jurors is, well, she may not have engaged in mutual sexual activity, but she might have been previously sexually abused, then that answers the proffered misconception itself.  So, that is a qualified assumption by his Honour.  We do not disagree with it, but we just emphasise that it is qualified in an important way in the circumstances of this case.

GORDON A‑CJ:   But does it matter whether it is abuse or sexual activity or sexual experience?

MS ROBERTS:   No.  Well, not for ‑ ‑ ‑

GORDON A‑CJ:   In terms of the qualification that is in the first sentence of 37?

MS ROBERTS:   It does not matter, but what matters is – what his Honour is not saying is that it would be a common experience of jurors that a child of nine would have no sexual experience at all.  His Honour is simply saying:  no sexual experience except in circumstances of abuse.

The point that I understand is being put is – the important point from the appellant’s point of view is:  do they think she has no knowledge of sexual matters?  Is really what it is about, so that she has no basis to fabricate – she has no way to fabricate an account or no information from which to fabricate an account, and the risk of that jury reasoning.

BEECH-JONES J:   But is an element of that reasoning, if you have no basis – we will assume she has no prior sexual experience, no basis to fabricate, therefore the only way she could have given this account is if she had been sexually abused by the appellant.  That is the next step in the reasoning, is it not?  That is the risk.

MS ROBERTS:   It is only the risk if one accepts that they are going to assume no knowledge, your Honour, yes.

BEECH-JONES J:   Yes.

MS ROBERTS:   I understand that, as I am sure ‑ ‑ ‑

GORDON A-CJ:   So, that is now 38.

MS ROBERTS:   Yes, your Honour.

GORDON A-CJ:   And you accept that?

MS ROBERTS:   That the risk might arise of that reasoning, your Honour?  I am sorry, I am ‑ ‑ ‑

GORDON A-CJ:   Yes.

MS ROBERTS:   Yes, but that is not sufficient to engage the provision.

BEECH-JONES J:   I am not suggesting it is, but then my next question is:  do you accept that the next step is that the evidence was not capable of at least – maybe not disproving, but addressing or responding to that?

MS ROBERTS:   Evidence in paragraph 25 of the CCA judgment?

BEECH-JONES J:   Yes.

MS ROBERTS:   Yes.

BEECH-JONES J:   Then, my next question is:  do you accept that that reasoning can be avoided or minimised?  The risk of that being adopted can be avoided by the trial judge giving a direction in terms that does not cut across the section, to effectively say you should not reason that the complainant had no means of knowledge of the events she describes in her evidence about the appellant, other than having been sexually abused by him.

MS ROBERTS:   Potentially, your Honour, but I have considerable hesitation about it.  I think this is probably one, or the one, area where my learned friend and I agree, because of the difficulty in how – two reasons.  One, because of the difficulty in how that direction would be fashioned, so as to not refer to the idea of prior sexual experience, because that would undermine, with respect, the purpose of the provision on our construction.  Secondly, there would need to be some agreement between the parties, because it is ‑ ‑ ‑

BEECH‑JONES J:   But you had that here, because you had a Crown undertaking that they would not invite that form of reasoning, did you not?

MS ROBERTS:   Yes, your Honour.  It is.  If I could take your Honours to the summing‑up in the core appeal book, pages 23 to 24.  The direction that has been given there is usually referred to in shorthand as a no motive to lie – the motive to lie direction – but it actually in some cases, and particularly in this case, goes quite a lot further.

It is quite a comprehensive warning to the jury about not looking for a reason for the complainant to have lied, fabricated or got her account wrong, or why she might be unreliable, and towards the middle of page 24 his Honour says:

you cannot be satisfied that the complainant is telling the truth merely because there may be no apparent reason for her to have made up these allegations.  There may be a reason for –

the complainant:

to be untruthful that nobody knows about, or it might be that for reasons no one can discern, she genuinely believes what she is saying but it simply is not true.

That would be a conflation‑type idea.  Then whether or not she is:

motivated to be dishonest or to lie, or whether their evidence is inaccurate even if genuinely believed by them, are matters for you to determine –

Bearing in mind that the accused does not have to provide a reason.  We would submit that that direction, combined with the Crown not making a submission that the jury should reason in a particular way and combined with the trial judge directing the jury in the conventional way, and firmly to focus on whether the allegations in respect of each of the counts on the indictment are made out, that it does – it guards against improper reasoning in any event.  Reasoning that she ‑ ‑ ‑ 

BEECH‑JONES J:   Well, the difficulty is though it is not motive, it would be a direction you should not assume she does not have the means of knowledge to have made up the allegation, and you say, well, that might implicitly disclose prior sexual experience.

MS ROBERTS:   Well, that is what it directs the jury’s mind towards, your Honour, because it means motive – means and knowledge.

BEECH‑JONES J:   Motive is different.  Motive and reason may look to personal animus towards the appellant, but as I understand it, this is all getting towards:  how could someone who is nine years old be in a position to – the reasoning is ultimately, well, she cannot have fabricated it because where would a nine‑year‑old know about these things?

MS ROBERTS:   Yes.

BEECH‑JONES J:   Anyway, I understand your misgivings about that.  I think I took you off your argument, I am sorry.

MS ROBERTS:   It is no difficulty, your Honour.  The point I was seeking to make about HG is that the question of admissibility and the question of whether the exception should be engaged is not answered by the forensic argument or how persuasive the forensic purpose of the appellant is.  Relevant evidence – it was accepted in HG, implicitly, that this would have been relevant, but it was not admissible.

GORDON A-CJ:   So, this is the point – I mean, the argument you are putting is you should not have the tail wagging the dog.

MS ROBERTS:   Quite, your Honour, with respect.

GORDON A-CJ:   And that is, in a sense, understandable, but because the provision sets out, as you describe, a cohesive scheme giving rise to the carve‑out in 293(6) ‑ ‑ ‑

MS ROBERTS:   Yes, your Honour.

GORDON A-CJ:   But it does identify, in effect, the circumstances in which the issue arises.  In HG, there was common ground that there was a body of evidence available which – consistent with the last line in paragraph 13.  Here, we have an issue about the – we have identification of the body, an issue about characterisation, although that may be parked for the moment, I think ‑ ‑ ‑

MS ROBERTS:   Yes, your Honour.

GORDON A-CJ:   So, we are really back to what, in those circumstances, does 293(6) extend to, in terms of the language of the provision about “disclosed or implied” and how it operates?

MS ROBERTS:   Yes, yes.  Thank you, your Honour.  With respect, I do not mean to cavil with your Honour, but in HG, actually, the evidence was disputed, because it was an opinion – disputed opinion – but there was evidence that could be identified ‑ ‑ ‑

GORDON A-CJ:   Thank you.

MS ROBERTS:   ‑ ‑ ‑ that would have gone straight to the issue.  Yes.  So, the provision – subsection (6) is not the starting point for answering this question, in our respectful submission.  The prohibition – subsection (3) prohibits the admissibility of certain evidence.  That includes, relevantly, here:

Evidence that discloses or implies—

(a)that the complainant has or may have had . . . a lack of sexual experience –

I am taking that part of the section out, because that is what we are talking about.  It also prohibits:

Evidence that discloses or implies—

(a)that the complainant has . . . had sexual experience –

That is, in our submission, an answer to Mr Odgers’ proposition that the Crown should lead agreed facts in these cases in order to correct the misconception.  That evidence is not admissible under subsection (3).  Munn and Miller is an example of a case where there was some evidence in evidence, and in the judgment in Munn and Miller – I will just take a small amount of time, if I may, just addressing this.

What does not emerge from this judgment with clarity is why the evidence about the 12‑year‑old boy was led or admitted in the case.  It appears that it is because there was hymen injury evidence in that case.  I cannot identify a passage of the judgment that actually expressly says that, however – I apologise, your Honours, but it appears that it may have been that, or it could have been the complainant says it in part of her interview, and it could have been not properly considered.  That is not clear ‑ ‑ ‑

GORDON A-CJ:   I think in paragraph 6 it is says it is part of the interview, is it not?

MS ROBERTS:   Part of the what, sorry, your Honour?

GORDON A-CJ:   Part of the interview.

MS ROBERTS:   Well, yes, that is where it appears to be.  But unfortunately that does not make it admissible, necessarily, of itself.

BEECH-JONES J:   Do you mean it is not clear how it got in, but somehow it did?

MS ROBERTS:   Yes, your Honour, it did.  But that does not mean that, when construing this provision, it is correct to say that the Crown could lead evidence of the complainant’s prior sexual experience, just as we could not lead under – just as the Crown, I should say, could not lead, under 293(3), evidence that the complainant had no prior sexual experience, because it would be inadmissible.  We also could not lead evidence of prior sexual experience unless it came within one of the exceptions under subsection (4), and there is no identified exception here with respect to that evidence.

That was argued – with respect to the interview about AT, that was pressed and it was pressed as admissible under one of the subsection (4) exceptions.  It was excluded, and the argument then advanced in the Court of Criminal Appeal was that it should have been permitted via subsection (6) instead.

So, its admissibility – so, the Crown is prohibited from doing that.  That is no answer to the – there is no freestanding ability for the Crown to, as it were, seek to correct what is considered to be a risk of misconception by adducing evidence or agreeing a fact, even if that fact could be comfortably agreed between the parties.

Subsection (3) is a broadly‑construed prohibition on the admissibility of evidence, then subsection (4) provides exceptions to that prohibition.  The relevant exception in this case, is under – and my learned friend has already taken your Honours to it – it is subsection (4)(f).  The exception is:

(f)if the evidence has been given by the complainant in cross‑examination . . . being evidence given in answer to a question that may, pursuant to subsection (6), be asked,

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

The reason that is important – so, one does go to (6) first, and then to have that evidence admitted as an exception to the prohibition in (3), that is via subsection (f), assuming one can satisfy the tailpiece, but the procedure for complying with this prohibition and exceptions is set out in the provision itself.

So, subsection (5), unusually for an admissibility provision – and that is an observation made by his Honour Justice Barr in Taylor, which is a decision we put in our book at tab 15, volume 4 of the joint book of authorities, his Honour – I do not understand any aspect of this procedure to be in dispute – it is at paragraphs 44 to 48 of the judgment.

But it is necessary for the – unusually, the accused is required to advise the court in advance of the proposed cross‑examination by way of at least, a list of topics – not questions – provide that to the trial judge in order that the admissibility of the evidence can be ruled upon.  The reason for that is to satisfy – so that the court can be satisfied or otherwise of the matters which it needs to be satisfied before admitting the evidence contrary to the prohibition.

BEECH-JONES J:   Can I just ask a basic question about structure, again?  So, the structure is that (6) allows cross‑examination ‑ ‑ ‑

MS ROBERTS:   Yes, your Honour.

BEECH-JONES J:   And to ask the question in cross‑examination, you do not undertake the process of comparison of probative value v distress; if the Crown opens the gate, you can ask the questions.  Is that right?

MS ROBERTS:   I appreciate why your Honour is putting it that way, because of the structure of the section, but we would say no.  We would say that both the matters in (6), (4)(f) and the tailpiece have to be considered at once, because (f) just describes – if the question is asked and the witness adopts the proposition, then the evidence has been adduced.

BEECH-JONES J:   But before the question is asked, you do not ask as well whether it has probative value.  So, in other words, (6) is read with (4) in that sense, is that right?

MS ROBERTS:   That is my – yes.

GLEESON J:   And with (8)?

MS ROBERTS:   Yes, your Honour.  Yes.  So, the trial judge has to give reasons for – in practice, the way that is described by Justice Campbell – I think I said Justice Barr before – I intended to say – I am sorry, I withdraw that, it was Justice Campbell.  So, what his Honour observes at 47 is that:

The proposed evidence would need to be known in some detail before . . . the judge was in a position to tell whether it fell within one or other of –

the exceptions in (4):

and whether the probative of the evidence value outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

GORDON A‑CJ:   And that is because, as I understand your submission, one has this prohibition ‑ ‑ ‑

MS ROBERTS:   Yes, your Honour.

GORDON A‑CJ:   ‑ ‑ ‑ and one starts with the prohibition, and one realises that in order to go behind what is the statutory prohibition, one must only do it in (a), rare circumstances, and (b), on a proper basis.

MS ROBERTS:   Yes, your Honour, that is our submission.  It is a very regulated basis, and the relevance of that is that – to our construction point – is that that is why it cannot be based on what one might think is an assumption that a juror might draw.  The court has to be satisfied:

that it has been disclosed or implied in the case for the prosecution against the accused –

All of those words need to mean something, in our respectful submission.  So, there are two aspects to that.  The first one is that disclosure or implication are also the words used in subsection (3).  So, it is:

Evidence that discloses or implies—

(a)that the complainant has or may have had sexual experience . . .

. . .

is inadmissible.

And this is our point about the complainant’s age, which Mr Odgers has answered by reference to subsection (4).  But we say – this is the point about the complainant’s age – that is an element of the offence.  It must be admissible evidence.  It would be not a sensible reading to say that the complainant’s age is a matter of itself which discloses or implies a lack of sexual experience.

BEECH‑JONES J:   Is that another way of saying:  look, textually, if the words “disclosed or implied in the case for the prosecution” do not add something to what is in (3), then the exception just follows the rule.  Is that what this is really coming to?

MS ROBERTS:   Yes, your Honour, or that the exception ‑ ‑ ‑ 

BEECH‑JONES J:   At least in the case of children.

MS ROBERTS:   ‑ ‑ ‑ cannot operate – I am sorry?

BEECH‑JONES J:   At least in the case of children.

MS ROBERTS:   Yes, your Honour, yes.  What those words mean, that is, what “disclosed or implied” mean – I withdraw that.  We do say that the case for the prosecution in (6) is the evidence in the Crown case and the way that the case is presented by the Crown Prosecutor.  It is both of those things and all of those things, but what we say it cannot be is the evidence that is not called, because that, again, would render the provision entirely inoperable, because ‑ ‑ ‑ 

GLEESON J:   Mr Odgers did not seem to really be talking about the evidence that was not called today as an element.  He just seemed to be talking about the totality of the positive case, being a case which lacks evidence in respect to sexual experience.

MS ROBERTS:   Thank you, your Honour.  So, we say age – it is therefore advanced on the basis that age alone, and my learned friend also referred, at points, to the compelling nature of the description, which I do not think can be part of the evidence from which a lack of sexual experience can be assumed, because that reasoning is – respectfully, I am not sure that I completely understand that aspect of the submission, but the age, of itself, carries some amount of uncertainty.

So, it has been nominated in this case as the age of nine.  The complainant was actually nine years, nine months when she did the first record of interview, and, of course, the procedure in New South Wales, which was not the case at the time of HG, is that that interview is recorded and tendered as evidence‑in‑chief in the trial.  If the complainant is nine years old, it is advanced that that carries the necessary implication.  I ask, rhetorically, at what age does that cease?  The reason I do that is because ‑ ‑ ‑

GORDON A‑CJ:   This was put to Mr Odgers.  What point, what is the range that is to apply to age in considering this submission that age alone is sufficient?

MS ROBERTS:   In our submission, the need to really ask that question or make that inquiry demonstrates the difficulty that faces a trial judge, who has to be satisfied of something.

GORDON A‑CJ:   You put it higher than that, do you not?  You say that that is indicative – so, there are two consequences that you say, as I understand your argument, that go against the construction offered by Mr Odgers.  One is the uncertainty of the age itself ‑ ‑ ‑ 

MS ROBERTS:   Yes.

GORDON A‑CJ:   ‑ ‑ ‑ which is the point that you are just making now, I understand it.  The second is, as I understand it, the consequences argument that Mr Odgers addressed that you put, and that is it would mean in any case in which a child was involved where there was a body of prior sexual experience, one would have to permit it.  So, the way I understand your argument, it carves a hole in the protection provided by 293 generally.

MS ROBERTS:   Yes, your Honour.  In a moment, can I return to your Honour’s first proposition with respect to the text, because I would like to add a couple of things to that.  As to the consequences argument, there is a further matter with respect to those consequences that needs to be considered, which is that the age – as I understood it – that is seized upon is the age at which the child makes her complaint or, in modern times, gives her evidence‑in‑chief when it is recorded by the authorities in the form of a disclosure allegation.

So, the appellant’s construction would – and assuming that there is some evidence of prior sexual abuse with respect to the individual child being considered, that would mean that if the child complains while she is still a child, contemporaneously, she can be cross‑examined about her prior history of child sexual abuse as a young child.  Whereas if the complainant delays her complaint to authorities, at least until she is an adult, she cannot be, because the inference – the assumption – would not arise on the appellant’s argument, because people would not necessarily assume the same thing about an adult.

Where that age changes, we do not venture a suggestion, because we do not, respectfully, accept this disclosure or implication.  But that construction must be, in our respectful submission, in direct conflict with the purposes of this provision, which is to encourage victims to come forward, to encourage reporting and to protect complainants.

The fact that the protection of complainants has had or is said to have unfair consequences for accused on some occasions and in some types of cases is something that has been the subject of judicial comment, submissions, and law reform submissions, and the provision has been re‑enacted in the same form since that has occurred.

It was re‑enacted from 409B to 293 – I am sorry, via 105, I apologise – but in essentially the same terms, your Honours, after this Court held in HG that it applied to children and it applied to child sexual abuse victims.

GLEESON J:   Children are unlikely to be encouraged to report by the legislative scheme.  I mean, they might be encouraged to give evidence in due course, when they understand the protections – if they are capable of understanding it – but we cannot say that the purpose here is to encourage reporting by children.

MS ROBERTS:   Not necessarily by the children themselves, your Honour, but the authorities involved in it can be taken to understand and to know how this operates.  I understand what your Honour is putting to me as a matter of practical reality, but as a matter of purpose, it introduces the invidious distinction identified by Chief Justice Gleeson, which is that a young child will be cross‑examined about prior occasions of child sexual abuse.

GLEESON J:   I am not sure that I want to take this too far, but in the case of the adult, there will always – if there is an assumption, as an adult, that one has had sexual experience and therefore one is capable of fabricating an account of sexual experience, then the accused will always have the benefit of making that submission to the jury, but they will not have that protection in the case of a child complainant.  Perhaps the answer to that is – I mean, surely this provision is trying to strike a balance, it is not solely about the protection of complainants.  Or am I wrong?

MS ROBERTS:   It does strike a balance, your Honour, yes, but the balance that is struck has been confirmed as being focused on prohibition and protection of complainants.  His Honour Justice Leeming in Jackmain – I will not take your Honours to it, necessarily, now – but at paragraphs 166 through to 178 discusses this topic of the re‑enactment of the provision in the same form, despite judicial criticism and submissions for reform, and the significance of that.

Your Honour, there may well be that distinction, although – certainly, in this case, I mean, the case is clear that the allegations are fabricated, but the – to return to the statutory language, in our submission, subsection (6) is a provision designed to provide an exception where:

it has been disclosed or implied in the case for the prosecution –

something which, if the prosecution had sought to call evidence of it under subsection (3), it would have been not permitted to do so, and it may have been permitted to do so by reason of an exception.  I hesitate to return to it, but Munn and Miller is actually an example, because in that case what the case was about was an application to adduce evidence suggesting that there may have been a different assailant to the mother’s boyfriend, or the complainant’s stepfather.  In that case ‑ ‑ ‑ 

BEECH‑JONES J:   Sorry, can I just – so I am just clear.  What you are saying is there may be an assumption in what Mr Odgers said, that (6) is assuming there is just a permission in the Crown to lead prior sexual experience whenever it likes, but in fact it is addressing a circumstance where the Crown can do so under an exception to (4), and then addressing the consequences of what happens when that occurs.  Is that what we are ‑ ‑ ‑ 

MS ROBERTS:   Yes, or it makes a submission which would arguably be not a proper one.

BEECH‑JONES J:   Or does something that – so, either violates the section or comes in under (4).

MS ROBERTS:   Yes, your Honour, or unexpectedly or inadvertently violates the section, of course, by reason of ‑ ‑ ‑ 

BEECH‑JONES J:   Yes, or the spirit or the essence of it.

MS ROBERTS:   Yes, either by submission or by some evidence that a witness gives that could be unexpected or, importantly – and, I mean, the second reading speech, to which Mr Odgers has already taken the Court, gives this example, and it is to do with the injury to the hymen, which was admissible as an exception under (4) but, nevertheless, was considered to have therefore disclosed in the case for the prosecution that the complainant had no prior sexual experience.

So, it was not inadmissible evidence by reason of one of the exceptions, and then, as the Attorney‑General said in the speech, that that would engage subsection (6) in that example.  In Munn and Miller, what happened was that the Crown Prosecutor actually said, in his address, invited that type of reasoning, contrary to the ruling that had earlier been made excluding the evidence.  Sorry, I will double‑check that I am correct about that, your Honour. 

GORDON A‑CJ:   I think, Ms Roberts, you ‑ ‑ ‑

MS ROBERTS:   At paragraph 36 of Munn and Miller, the Crown Prosecutor said he would not, and then he did.  I do not mean to reduce the complexity, but that was the basis on which the miscarriage was made out, ultimately, in that case, at paragraph 36 of Munn and Miller.  Of course, that did not happen in this case and that is accepted, that the Crown Prosecutor did not invite the jury to reason on the basis of the complainant having no experience available to her by which to fabricate the case.  He did not make any submissions of that kind at all.  So, it is ‑ ‑ ‑

GORDON A-CJ:   So, are we up to outline paragraph 8?  That is, that:

The relevant disclosure or implication must derive from evidence adduced (or submissions made) in the case for the prosecution, not rom an assumption a juror might hold based upon a complainant’s age.

MS ROBERTS:   Yes, your Honour.  First of all, that is found in the CCA judgment in this case at paragraph 39, which is at page 135 of the core appeal book.  His Honour Justice Fagan reproduces the extract from Tubou – a judgment of his Honour Justice Heydon – about what disclosure means.  We rely on that.  We embrace that, which is that it must mean:

intentional expressed revelation . . . “implied” in the expression “disclosed or implied” means intentional suggestion.  It cannot be said that the silence of the Crown about the complainant’s sexual experience . . . “implied” a lack of sexual experience or a failure to take part in sexual activity.

So, that case was in a different context because it was about injury.  That is why his Honour Justice Fagan observes, at 40, that:

Those conclusions were not necessary to the Court’s decision.

Also, your Honours, in Cook in a slightly different context, but at paragraph [57] – as your Honour will recall in Cook, one of the complaints was what was adopted in that trial as describing the Queensland assaults as physical assaults in order to – it was described as the expedient adopted in order to permit the complainant to be asked questions about them without contravening section 293.

But the judgment of the majority of this Court, at [57], addresses the questions about the descriptions of the assaults by the Queensland offender as physical was whether it was misleading, and the observation there is:

The description of these assaults as “physical” neither implied that they were sexual assaults nor implied that they were not sexual assaults.

Even in the context of the instant case being about sexual assault, the Court was not satisfied that that invited any inference that a description of the earlier assaults as physical meant that they were not therefore sexual, and: 

Even if there were such a possibility, albeit falling short of an implication –

and then there is a reference to a direction as a means of avoiding any proper speculation.  What we submit is that “disclosed or implied” in the case for the prosecution must mean more than an assumption that a juror might hold or a risk that a juror might hold a particular assumption, and the reason for that is two‑fold.

First, that subsection (6) must be read with (3) and must be applied as an exception to (3), and a limited one.  That means that the use of disclosure implied in (3) and in (6) must be read similarly.  The idea is that something is done in the accused trial that would, if introduced by evidence, contravene – prima facie, at least – subsection (3), or perhaps it has been introduced as an exception, but it – prima facie – is inadmissible.

And that it is not possible – given that the highly‑regulated way in which this prohibition and the exceptions operate within the provision itself, for the purpose of the protection of complainants so far as is possible, in order for the trial judge to be satisfied of the matters that he or she would need to be satisfied of to engage the exception, it must be more than what a juror might assume in a particular case.

Perhaps one considers the age of nine is a straightforward example.  I do not necessarily, with respect, accept that, but if one is to talk about jury assumptions, that can extend beyond children to be as a possibility as well.  I am not trying to address hypotheticals, but just simply to illustrate that the language of the provision must be able to operate by reference to something that is evidence – or submissions – in the case for the prosecution, as it is presented at the trial of the accused and not based on reasoning and assumptions.

The purpose of (6) is not a freestanding purpose to ameliorate unfairness or correct misconceptions that might arise, other than by the way that the Crown case is being presented and has been presented at the trial.  That is the reason, consistently with that reasoning, why his Honour Justice Fagan speaks of there being no positive invitation and no positive implication arising based on the age of the complainant.  The evidence is silent.

GORDON A-CJ:   One of the things that arises in relation to this, of course, is this inquiry – at least in part – is done at a pre‑trial at this stage.

MS ROBERTS:   Yes, your Honour.

GORDON A-CJ:   And so, there is a prediction, in one sense.

MS ROBERTS:   There is.  There is a prediction from all perspectives, your Honour.  That is why it is – in a practical sense, there is some tension when speaking about the Crown submissions in the closing address, but it is to be understood that the Crown presents a particular case that foreshadows a presentation of a particular case and then does so.

GORDON A-CJ:   So, in the pre‑trial disclosure, they identify the witnesses that were going to be called and then provide the relevant hand‑up brief, or the brief that is going to contain the case – an identification of the case.  Is that what we are talking about in terms of the prediction?

MS ROBERTS:   Yes.  Well, the practice would be a Crown case statement, which contains a summary of the evidence and the evidence to be adduced and the way in which it is to be relied on, where that is not apparent.  In this context, one would expect that the type of exchange that occurred before her Honour Judge Traill would occur, so that the Crown could indicate what is proposed, and it is not uncommon – more in the case of adult complainants, but it is not uncommon to have served material, even in the statement of the complainant herself, from the Crown saying:  well, we will not be proposing to adduce this, or this or this.

GORDON A-CJ:   Particular paragraphs of the evidence is the point I am getting to.

MS ROBERTS:   Yes, your Honour, quite.  Yes.

BEECH-JONES J:   And then if the trial unfolds in a different way, then consequences follow.

MS ROBERTS:   Yes, your Honour.

BEECH-JONES J:   It could be, well, you opened it up, you can cross‑examine it.  Or mistrial or, whatever the consequences, the way it unfolds.

MS ROBERTS:   Yes, your Honour.

GORDON A-CJ:   Including recall of the complainant if necessary.

MS ROBERTS:   Yes, that is a possibility, your Honour.  Yes.  Your Honours, the appellant relies on the 2020 judgment of the Court of Criminal Appeal.  I just wanted to make some observations and make some submissions about that.  It is in the appellant’s book of further materials, commencing at page 5, but the particular passages relied upon are – I think, as I understand it – principally 14 and 47, and also at 52.

So, what I seek to point out about that is that this judgment is in the context of an alleged miscarriage of justice arising from a failure of prosecution disclosure, and that the Crown concession is about failure of disclosure and nothing further, in this case.  The question, as your Honours would well appreciate, when one is considering whether a failure of disclosure has given rise to a miscarriage of justice is firmly focused on potential relevance of material.  It is not settled relevance.  It is certainly not admissibility.  The prosecutor is of course obliged to disclose all material that could be directly or indirectly relevant.  So, the considerations are quite – it is a preliminary stage, if I can put it that way, of relevance. 

There is some criticism made – or certainly implied – about the Crown changing its position.  That is not so.  So, the Crown did not rely on section 293 in the 2020 case because the Crown, having identified in submissions – which are not before your Honours – that there is potential for the provision to apply to some of the material, nevertheless said we do not rely on that for the purpose of our concession that we should have disclosed it.

It is not we do not invoke it when it comes to the question of admissibility.  What the Crown said was we appreciate that the ultimate question of admissibility is no answer to a failure to disclose potentially relevant documents.

GORDON A-CJ:   Do you say that when you are considering non‑disclosure arguments, one is not looking to see whether evidence is admissible?

MS ROBERTS:   Quite, your Honour, yes.

GORDON A-CJ:   One is looking to see whether there is material in it that is not just relevant – whatever the broad language is, which presently escapes me – which might give rise to chains of inquiry and the like.  That is the inquiry that is being made at that point, not one about admissibility.

MS ROBERTS:   Yes, your Honour, but this is just a response to something that is put in my learned friends’ oral outline at the end, which suggests that the Crown changed its position.  Paragraph 52 of this judgment makes clear that 293 was left to one side because it did not inform the question of whether the material should have been disclosed, or it certainly did not answer it.  It may have informed it, but it did not answer it.  The question was:  was it potentially relevant?  Again, at 58, the Court of Criminal Appeal says:

Again, leaving aside questions of admissibility –

So, that is the only real point that we wanted to make about that.  The concession was limited to potential relevance.  In fact, it was limited – although this is not before your Honours – to the documents that did not have a sexual character, because the ones about the complainant failing to take opportunities to complain and the ones about the complainant making complaints about other things that were not sexual matters.  For example, the cricket bat complaint, which arises under ground 2.

Putting the point of the Crown aside, the reliance on the judgment of the Court of Criminal Appeal in 2020 has to be necessarily limited to what question those observations were directed, and they were directed to the question of potential relevance and potential importance in order to consider, first, whether the concession as to non‑disclosure causing a miscarriage was properly made and, second, as to what the outcome should have been in that case.  Rather, a retrial or an entry of a verdict acquittal.

GORDON A-CJ:   Have you now dealt with all of your arguments on construction?

MS ROBERTS:   Yes, your Honour.  In fact, paragraph 10 of my oral outline was where I proposed to address the other aspects of it, but I think I may have done that in answer to some earlier questions from her Honour Justice Gleeson about the AT interview, and his Honour Justice Beech‑Jones.

That is to say that what we point out here is, even if this Court was to accept the appellant’s construction argument, it is necessary for him to make good the proposition that the evidence was admissible, which has more steps to it than engaging the provision in the first place.  That, we say, has not been ‑ ‑ ‑

BEECH‑JONES J:   Does he have to go that far?  I mean, we looked at this in Brawn and MDP – would it be a question of law decided wrong?  I know we are in miscarriage, but if the section has not been properly construed, that may be enough.

MS ROBERTS:   In our respectful submission, no, because the error would be the exclusion of admissible evidence.  Otherwise, if it is properly excluded on the wrong construction, there is no error.

BEECH‑JONES J:   Then who decides the second step?  We do.

MS ROBERTS:   Well, in our submission, the appellant needs to persuade your Honours that the evidence – or some of it – ought to have been admitted in order to succeed, because the ground 1 of his appeal pleads that:

The New South Wales Court of Criminal Appeal erred in holding that evidence of sexual experience was inadmissible.

So, the proposition being that the evidence was admissible.  In my submission, the Brawn and MDP – we have not reached the Brawn and MDP stage, but what would need to be demonstrated is that not only that the first words of (6) were engaged but also that there was evidence – the refusal of leave to cross‑examine the complainant although – and I say, again parenthetically, that leave was not in fact refused at trial because this was not the way the argument was put at trial.

That is where we make – I would not say we press for it, but we make the – we refer to the possibility of remittal because your Honours do not have before you what the proposed cross‑examination would involve, or any arguments about in reality the forensic – the probative value of that item if my friend is not – well, certainly not in oral argument today, pressing the other material, the probative value of the interview about AT.  That is just the point we wished to make about that.

GORDON A‑CJ:   And in 11?

MS ROBERTS:   I think I have already addressed 11, your Honour.  I would like to just say a couple of brief things about ground 2, however, if I may.  We say that the closing address must be read in full, and, your Honour, we have set out a portion of it – and I am certainly not going to read it to your Honours, but we have set out a portion of it in our written submissions, but it is a little longer than that in the book of materials.

The focus of it was on complaining about – yes, about serious sexual misconduct, but the focus of it was the relationship between the complainant and the appellant, and there were important aspects of that relationship.  He was the – as the Crown Prosecutor points out in the address – husband of her foster mother.  She had had multiple foster placements.

She had lived with this particular foster mother, DB, for a number of years, and then she had gone to different care where she had lived in almost seven different places over a period of almost a year, because DB was unable to sufficiently care for her and her brother due to other commitments.  Then it was only when the appellant and DB married, and he was able to contribute, that the children were returned to their care.

It was in the context of arguments and relationship breakdowns that the complaint was made, but prior to that, the complainant’s perception of him, first of all, would have been that he was a member of her family, that he had something to do with where she was able to live and how she was able to stay, and that her living arrangements were – she knew they were precarious – and her living arrangements were precarious.

And, of course, he was the husband of her foster mother, who she at that time called “mum” and had been the person with whom she had had the longest time living with her.  So, all of that is the focus of the submission, and we say ‑ ‑ ‑

BEECH-JONES J:   But the evidence that was available included evidence that the complainant had complained about sexual abuse by the foster mother.

MS ROBERTS:   Yes, and we say that is not right, with respect, we say there is not evidence.  I understand that is what is put ‑ ‑ ‑

GLEESON J:   Well, it is very – It seems very thin and inconclusive.

MS ROBERTS:   It is extremely, with respect, extremely thin and inconclusive, so we say that ‑ ‑ ‑

BEECH-JONES J:   So, I am just looking at what page 142 – correct me if I am wrong – of the core of appeal book, in Justice Fagan’s judgement, point (4).  Paragraph 53(4).

MS ROBERTS:   Yes.  So, we agree with what Justice Fagan says there, in that:

none of the FACS records would have materially weakened the prosecutor’s argument –

BEECH-JONES J:   I know, I am just – just his Honour’s characterisation.

MS ROBERTS:   We do not accept the appellant’s characterisation that the complainant had made several prior complaints about sexual matters.  There are only three documents, and I ask that I take your Honours to them now to make good that proposition.

GORDON A-CJ:   So, this is the supplementary book that was provided?

MS ROBERTS:   Yes, your Honour, which is just a compilation of materials already in the appellant’s book of further materials, confined to the facts documents on which he relies before this Court.  The materials relied on are, the first one – I am sorry, excuse me your Honours.  The first one is the second‑to‑final document, document 11 in the supplementary book.

BEECH-JONES J:   When you said the first one, the one in paragraph 53(4)?  Is that the one?

MS ROBERTS:   Yes, your Honour.  Thank you, your Honour.  I apologise, I should have gone through them in chronological order.  What that document is, is a – it is called a finalisation submission, and it is finalising an investigation into – if your Honours would just excuse me for a moment, I have more than one version of the book.  I am sorry, your Honours.

GORDON A-CJ:   That is all right.

MS ROBERTS:   It will be easier if I take it in chronological order.  Appellant’s book of further materials page 475, which is document number 4 in the supplementary book, that is an interview between the complainant and her then current case workers on 24 September 2009; she is aged six.  This was one of a number of attachments to a confidential placement report, dated October 2009, which ultimately led to the complainant and her brother being returned to the care of DB and the appellant.

So, it is during a period of disruption and she is asked some questions about where she might like to live.  Your Honours will notice on page 475, line 40 to 43, she complains about her carer DB using “pull ups” when she does not think she should have to, and then the allegation that is relied on by the appellant is at page 477, and it is the exchange:

CB:   What else happens at –

DB’s:

house when you visit?
M:   Her husbands there ‑ ‑ ‑ 

GORDON A-CJ:   Sorry, can you just identify where you are reading from?

MS ROBERTS:   Oh, I am sorry, your Honour, I can.

GORDON A-CJ:   I see, it is the bottom of 476 is the question.

MS ROBERTS:   Yes, I am sorry your Honour:

M:   Her husbands there and they have sex.
CB:   What does sex mean?
M:   They ‑ ‑ ‑ 

GORDON A-CJ:   I think we can read that.

MS ROBERTS:   Yes.

GORDON A-CJ:   Where do you want us to read down to?

MS ROBERTS:   To:

M:   In the bathroom and in the bedroom.

GORDON A-CJ:   Thank you, that is all I ‑ ‑ ‑ 

MS ROBERTS:   And then there is the McDonald’s allegation.  We say that is not a complaint about sexual misconduct towards the complainant on behalf of her foster mother.  It just does not bear that characterisation.  It makes a reference to some perception held by the complainant, but it is not a complaint of sexual misconduct.  Then at appeal book ‑ ‑ ‑ 

GORDON A-CJ:   Ms Roberts, given the time, would it be useful if we adjourn and came back to this at 2.15 pm?

MS ROBERTS:   Yes, I apologise, your Honour.  It is just the second set of books.  Thank you, your Honour.

GORDON A-CJ:   The Court will adjourn.

At 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.13 PM:

GORDON A-CJ:   Ms Roberts, we were dealing with the material on the aide‑mémoire.

MS ROBERTS:   Thank you, your Honour.  In the supplementary book at item 6, or tab 6, that is the document that is referred to in Justice Fagan’s judgment at paragraph 53 as item (2).  That is an interview of the complainant with investigators from what is recorded elsewhere as the “Allegations Against Employees Unit”.  It is a specialist‑type interview.

The complainant was aged six and contextually we say it is a follow‑up from the 24 September 2009 interview, noting that both DB and the appellant were employees of DoCS, relevantly.  What is relied on there is what is said about the nappy, particularly at – I think, as I understand it – the appellant’s book of further materials, page 441, line 15 and line 36, about touching the complainant on the private parts when she is putting a nappy on her, and that this has happened lots of times.

What we say about this is we note the doubt expressed by the primary judge – that is, Judge Traill – about whether this was an allegation of sexual conduct or not, given all the context of the pull‑up nappy, and I will just give your Honours the references to that.  I will not need to take your Honours to it.  It is at paragraph 65 of Judge Traill’s judgment, which is at the appellant’s book of further materials, page 84.  Also in the 2020 Court of Criminal Appeal judgment, at paragraph 55, the court there observed they were also unpersuaded that the complainant:

was purporting to make a complaint of sexualised touching.

We just place that in that context because of what it is said to be able to be put against under ground 2.  The final document relied upon, which is paragraph 53(4) of the CCA judgment – and it is document 11 in the supplementary book – this is a finalisation submission.  Your Honours can see that heading on page 294, and it is a finalisation of – it appears to be, I should say, a finalisation of the allegations against employees, and the date that that is finalised is ‑ ‑ ‑

GORDON A‑CJ:   It is over the page, I think, on the last page.  It is recorded as 22 July 2011.

MS ROBERTS:   Thank you, your Honour.  So, this is a document that contains what appear to be – which are clearly – paraphrased descriptions of allegations.  They are given a classification from what appears to be some sort of drop‑down menu or list and then a finding.  There is no detail and there is no source.

This the source for what is said to be that third allegation on the first page, but we have not identified – and the appellant does not point to – any other source for that.  So, it is of an unknown source.  Whether or not it is an accurate paraphrase or an inaccurate paraphrase of something else that has been said in another interview, we do not know.  So, this is not an identifiable reliable source of a complaint by the complainant of sufficient note to make good the complaint that is made under ground 2 about the unfairness.

That is where we rely on what his Honour Justice Fagan found, which is that none of the constraints articulated by the prosecutor explaining why the complainant had not made timely complaint would have been contradicted by the material in these FACS records.  For those combined reasons – that is, the full context of the address and the true nature of the material put against the Crown Prosecutor, as it were – that ground is not made good.

With respect to the further documents in this book, I have not addressed further on the documents because my learned friend has not addressed further on them, but globally – or compendiously – I just want to make two points, which is that what section 6 permits, if engaged, and is cross‑examination of the complainant – and it is not, with respect, completely clear what would be proposed to be put to the complainant in respect of this material – much of it is descriptions of what other people say, or hearsay descriptions of what she said to have been observed to do.

The second of those documents is an example of that, and it is really the first line of that.  It is unclear, with respect, whether what was proposed to be put into the complainant in respect of this is ‑ ‑ ‑

BEECH-JONES J:   Did you say this is ground 2? 

MS ROBERTS:   No, sorry, your Honour.  While I am on the documents, but it is ground 1.

BEECH-JONES J:   Right.  I am sorry, yes.

MS ROBERTS:   I am sorry, that is my fault, I apologise.

BEECH-JONES J:   You meant ground 1, yes.

MS ROBERTS:   Yes, just whether what would be proposed to be put would be:  did you do that action or did it – for it to have some relevance, it would appear on the appellant’s argument that it would need to be taken, whether together or individually, as some sort of indicator that there had been relevantly some other prior sexual abuse, and quite how the evidence makes good that proposition and how it would be proposed to be done has not been fully explained, in our respectful submission.

It is also just, as a final observation, that if the documents are considered to have that character – that is, if the conduct that is said to have been observed on the part of the complainant that is being described as

sexualised conduct is accepted, at documents 8 through 11 – the date of the observed conduct postdates the commencement of the indictment period.  So, it is behaviour that she is observed to have displayed after the allegations on the Crown case.  The forensic benefit of that might be – it may flow in more than one direction, but we do not accept that the evidence makes good that proposition, in any event. 

Turning finally to the question of relief.  I may have misapprehended what your Honour Justice Beech-Jones was putting to me earlier about the retrial point, and I note that in Cook, at [55], it is described what this Court did, which was to find that the section had been incorrectly engaged or incorrectly considered – or in this case, it would be incorrectly construed – but to remit the matter to a retrial for consideration of whether in fact, in the event, the material was admissible.

BEECH‑JONES J:   But in Cook, there already was going to be a trial.

MS ROBERTS:   Yes.

BEECH‑JONES J:   Whereas, I think my query is, are you saying that before you can set the convictions aside and order a retrial, there needs to be an assessment made, or that it needs to be remitted to the Court of Criminal Appeal to make the assessment to determine whether the conviction should be set aside.  That is what I was querying.

MS ROBERTS:   By the way the ground is pleaded, we would say in order to uphold ground 1 your Honours would need to determine that the evidence was admissible, but in making mention of the remittal, we just seem to recognise that aspects of this have not been developed.  That is in part by reason of the fact that the argument was not conducted on the same basis, at least with respect to what is now been described as sort of the key document that the appellant relies on at the trial, and the argument at the trial below.

Aside from that, your Honours would know from our written submissions that we accept – on relief, we accept that the delay considerations are significant but it is our submission that that determination is one – the determination of whether there should be a retrial is properly one for the Director of Public Prosecutions.  So, we would say that if the appeal is upheld, the appropriate order be one for a retrial rather than entry of verdicts of acquittal.  Unless there is anything further, those are our submissions, thank you.

GORDON A‑CJ:   Thank you, Ms Roberts.  Mr Odgers, reply.

MR ODGERS:   Yes, thank you, your Honour.  Just a few short points.  Ms Roberts queried whether it was appropriate to describe what happened – to describe what AT allegedly did to the complainant when she was six to eight years old as sexual abuse.  We say it was, but the important point for the purposes of this appeal is whether what she described happening could be regarded as relevant sexual experience.  Sexual experience is the important question, and we would say that can hardly be doubted.

Second point, we agree – I think in response to your Honour Justice Beech‑Jones, your Honour asked, well, given subsection (6) is the route, would that be enough?  It was put to your Honour:  no, you would also have to consider whether the requirements of subsection (4) were satisfied.  We agree with that.  Indeed, subsection (8) would also apply.  So, there would have to be a whole process of working out what was the evidence that was sought to be elicited in cross‑examination.

If the answers were given as expected, would that evidence be admissible under subsection (4)(f)?  Would it satisfy the balancing test of probative value, et cetera?  The judge would have to give reasons identifying the evidence sought to be adduced in cross‑examination and giving a ruling on that before the trial.

Now, your Honours were taken to parts of the summing‑up where the trial judge directed the jury about how to approach potential lies and motive to lie, but we would draw your Honours’ attention to other parts of the summing‑up.  Can I take you to the core appeal book, at page 61.  More than one time, the judge invited the jury – we are looking at point six on 61 of the appeal book, which is page 49, and the summing‑up at point six he says:

as I have indicated –

I am not sure I have that reference, but:

using in that exercise –

about deciding the facts, you exercise:

your common sense and your experience of the world, and your knowledge and experience of people and human behaviour.  You bring all of that to bear in your assessment of the evidence, and in working out what you accept from the evidence and what you cannot –

We say that that would have encouraged the jury to infer that a nine‑year‑old is most unlikely to have sexual experience such that she could fabricate the allegations that were made against the appellant.  Those directions were repeated at summing‑up page 26.

GORDON A-CJ:   So, we are going back now?  Sorry, you ‑ ‑ ‑ 

MR ODGERS:   I have realised I am confused now as to where I am – I see, that is how I it got wrong, because page 26 is where it was first raised, I am sorry, and his Honour was at 61 repeating it.  So, at the bottom of 26:

So together, you represent a cross-section of the community’s wisdom and its sense of justice, and you each bring with you into the jury room, and are expected to use, in your consideration of the evidence and what is proved by it, your individual qualities of reasoning, your own common sense, and your accumulated experience and understanding of people and of human behaviour.

That was repeated, as I say.  Next point, we had not anticipated from our friends’ written submissions that reliance was being placed on what Justice Heydon said in Tubou.  That is a discrete issue.

Justice Fagan noted the dicta and said he was not relying on it for purposes of determining the appeal.  My friend the Crown is now relying on it, even though it was not relied on in the written submissions.  We say that what Justice Heydon said should not be accepted, basically for the same reasons we say that it cannot be right that the Crown Prosecutor has to invite the inference.

All of the reasons which lead us to submit that that is an unduly narrow reading of 293(6)(a), we say – for the same reasons, it would be an unduly narrow reading of 293(6)(a) to require that the Crown Prosecutor had to intentionally imply that there was a lack of sexual experience.  In our submission, that is an unduly narrow and inappropriate reading of this exception to the prohibition.

Next point is, in respect of the actual evidence of prior sexual experience, we accept that most of it – it would be necessary for either this Court or another court to consider the nature of the questions that might be put in cross‑examination, with respect to that evidence, to see whether or not the requirements of subsection (6) – unfair prejudice – and the requirements of section (4) – probative value outweighs, et cetera – would be met.

But our reliance is on, really, the allegations made in respect of AT.  We say that that evidence plainly would satisfy the test of being admissible to meet the unfair prejudice of the inference the jury would otherwise draw.  I have identified the kind of cross‑examination one would reasonably

expect, simply confirming with the complainant that these events occurred and then that would be the end of it.

We say that your Honours would be satisfied – in respect of that evidence, at least – the requirements of subsection (6) and subsection (4) would have been satisfied in the event that her Honour had ruled that the Crown had implied the existence – the lack of sexual – sorry, I need to get it right – implied not that there was a lack of sexual experience but implied that there may be a lack of sexual experience, to use the statutory language.

Lastly, in respect of ground 2, we accept that the various matters that we have identified in the written submissions at 6.11 are relatively innocuous, and certainly nothing like the kinds of allegations that were made in respect of the appellant, but we nonetheless maintain ground 2 for the reasons that are identified in the reply at – and this is my last submission – paragraph 9, which is that that evidence showed that it was not hard for this complainant to complain about even relatively minor quote unquote “sexual matters”, including behaviour that she misconstrued as quote unquote “sex” in the context of ongoing specialised counselling.

The very fact that she did not find it too hard to do that would rebut the argument of the – the submission that was made by the Crown Prosecutor that it would be hard for her, and indeed for any young girl, to talk about sexual things.  May it please the Court.

GORDON A-CJ:   Thank you, Mr Odgers.  The Court will reserve its decision in this matter and otherwise adjourn to 9.30 tomorrow on 11 September.

AT 2.32 PM THE MATTER WAS ADJOURNED