Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Evidence - Appellant convicted of sexual offences - Out­of­court statements by complainant to appellant made over internet - Appellant claimed statements relevant to consent or honest and reasonable belief in consent - Trial judge excluded evidence under Evidence Act 1906 (WA), s 36BC - Whether evidence related to complainant's sexual experiences - Whether evidence related to complainant's sexual disposition under Evidence Act s 36BA

Evidence Act 1906 (WA), s 36B, s 36BA, s 36BC

1 STEYTLER P: There are only two issues in this appeal against conviction. The first is whether, in a case in which the appellant was charged with a number of sexual assaults, evidence of communications between the appellant and the complainant was wrongly excluded by the trial judge under s 36BC of the Evidence Act 1906 (WA). The second is whether, if these communications were wrongly excluded, there is room for the application of s 30(4) of the Criminal Appeals Act 2004 (WA). That section provides that, even if a ground of appeal might be decided in favour of the offender, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

2 The complainant, then 43 years of age and single, used a computer program known as 'ICQ' at her home. She had downloaded the program from the internet. It enabled her to read profiles that had been posted on the internet by various persons. She could 'chat' to those with whom she initiated communication. In June 2003 she made contact with the appellant. He was of a similar age to her. From then on, the two of them communicated regularly by means of the ICQ program.

3 On Saturday 5 July 2003, the complainant invited the appellant to her home for dinner. The complainant shared her home with a boarder, a woman known as Lea. The appellant drank wine. There was an issue whether the complainant also did so. Whatever the position in that respect, the two sat up for most of the night, talking. Lea had gone to bed much earlier. The complainant's evidence was that nothing sexual happened that night and that the appellant said nothing to her in that regard. The appellant's evidence was that he asked the complainant if she would like him to spend the night with her, and hold her in her bed, but she responded by saying that she would prefer him to sleep on the couch. He did so. He said (and the complainant denied) that she told him, the next morning, that she had said 'no' only because he had got the timing wrong.

4 Subsequently, arrangements were made for the complainant to accompany the appellant on a visit to Bunbury on 18 July 2003. These arrangements fell through, as the complainant had to attend a medical appointment. She suffered from a condition known as osteogenesis imperfecta. This caused her bones to be brittle and easily broken. She experienced pain on a daily basis as a consequence of her disability.

5 On 17 July 2003 the complainant sent the appellant an ICQ communication inviting him over for dinner that evening. He declined the invitation. This was because he had to prepare for his trip to Bunbury and also because he had drunk some wine and did not wish to drive. However, arrangements were made for the complainant to go to the appellant's home on the following Saturday, 26 July 2003. They ultimately agreed that the complainant would stay over at the appellant's home on the Saturday night.

6 On the afternoon of Saturday 26 July 2003, the appellant collected the complainant from her home and drove her to his home. Once there, he drank wine and smoked cannabis (the appellant said, and the complainant denied, that the complainant also drank a considerable quantity of wine). Subsequently, a number of sexual acts took place. The complainant said that, while she was seated at the kitchen table, the appellant placed his mouth over her breast. She said that he later took her arm and led her to the bedroom where he placed his hands on her breasts and kissed her lips and breast. He also inserted a finger or fingers into her vagina and penetrated her vaginally with his penis. She said that she asked him to stop because he had been hurting her, but that he penetrated her again from a different position. She also said that he nibbled on her breast and kissed her. She said that he placed her hand on his penis in order to masturbate him. There was further vaginal penetration that night and the next morning. On some occasions she had asked him to stop what he was doing because he was hurting her. She said that he persisted in his conduct notwithstanding that she was in pain. This was caused primarily by a crack in her pelvis that had been caused by the appellant's weight on her body.

7 The complainant said that she did not consent to any sexual activity and that she had not wanted the appellant to do any of these things to her. She said that she was afraid of him because his behaviour earlier in the evening had seemed to her to indicate that he was capable of violence. She said that he had practised karate kicking close to her and that he had commented, during the course of the evening, that he could break her arm into a thousand pieces if he wanted to. She said that he had demonstrated generally aggressive and controlling behaviour.

8 The complainant acknowledged that, during the morning of Sunday 27 July 2003, whilst still in the bedroom, she and the appellant had watched a film on television. She said that she had done this because she did not want to provoke or upset the appellant in any way. She told the appellant that she needed to be home by 5 pm that day. He took her home before then. When they arrived at the complainant's house the appellant asked if he could use her toilet. She agreed and he did so. She said that, when he left, she walked out to the car with him because she 'didn't want to let on at this stage that [she] was still so afraid'. That evening, she told one of her friends that she had been raped. In a subsequent statement to the police, the complainant said that the only relationship that she had ever wanted with the appellant was one of friendship. She said that she had made this known to him.

9 The appellant acknowledged that he and the complainant had engaged in sexual activities. However, he insisted that they were consensual. He said that the complainant had been an active and willing participant. He was 'convinced that she was consenting'.

10 Consequently, the issues in the case were whether the complainant had consented to the sexual activity that had occurred and, if not, whether the appellant had honestly and reasonably believed that she had consented: s 24 of the Criminal Code (WA).

11 At the trial, the then counsel for the defence sought to adduce evidence of a number of the ICQ 'conversations' that had taken place between the appellant and the complainant. He said that these were important because they shed light on the purpose, or apparent purpose, behind the complainant's visit to the appellant's home on 26 July. All of these conversations had been printed by the police from the appellant's computer.

12 There were three relevant conversations. They must be considered in the light of the complainant's evidence at the trial concerning the reason for her visit to the appellant's house on 26 July 2003, and for staying the night. She said that this was so that she could photograph the sunrise through some trees in a nearby national forest. She and the appellant shared an interest in photography. She said that the appellant was going to give her some photographic advice.

13 The first conversation took place on 28 June 2003. It continued for some time. It started at 9.31 am and ended at 2.20 pm. It involved a good deal of sexually explicit material. Early in the conversation, the complainant told the appellant that she was 'trying to recover from the terrible flu blues'. The conversation moved from there to sexual issues and, between 11:04 and 11:18 the following exchanges took place (the words in bold are those of the complainant):

So what kinda props and pillow do you feell [sic] like playing with ?

mmmmm ok what about a gentle soft cuddly pussy....cat

yes and to roll on iit [sic] to [sic]

so does a guy love to wave a tongue in the direction of where it mioght [sic] be apreciatedd [sic]

preferabley [sic] most deffinately [sic] yes!!!!!

does a women arch and quivver [sic] when the tongue is pointed to the appreciated area

i am a queen!!!!! The Head... I can take you to the stars

And my heart would be a fire ball .. a fireball each time I lookinto [sic] your starry eyes

so what kind of week have you had apart from a wet one

14 A little later in the conversation (between 11:47 and 13:12), the following exchanges took place (the complainant's words are again in bold type):

let see if i can clear my brain, activate my sexual thoughts and wanted pleasures

15 There followed an exchange, three quarters of which originated from the complainant, in which the complainant gave the appellant a graphically pornographic description of sexual interaction between a man and a woman, in the course of which each was referred to in the third person. The exchange took place over a period of around 25 minutes. Once this had concluded, the conversation returned to the use of the first person. The following exchange then took place (the complainant's words are again in bold type):

are you still alive???? ohhhhhhhhh the show must go on

OK ... .. whats the do .. do ypou [sic] like me or what ?

hehehehehhe you intregue [sic] me, to answer your question yes

can you handle a multi orgazmic [sic] woman????

i look apon [sic] sex as an art, i love to please and love to be pleased

well if that sort of thing threw the sorts of smells we hone in on

i love to explore the male body and arouse it beyond the point of no return

you will not just cum you will explode into a wave of rippling electricity racing through your body

yes i would like to take and be taken to heaven and return, unfortuneatly [sic] not until im feeling better, this is just a mere taste

well come over to my hovel .. and we can see what can be realised .

when im feeling better and not got the flu blues i shall most deffinately [sic]

Come over to my house and I will cradle you in my arms

hahahahahah no serious, i would very much like to cum and have some wonderful sexual pleasures with you but i dont want to give you the flu as i have it fairly bad

there is nothing more wonderful than lying the the [sic] arms of a man, feeling his warmth against my body and his fireball sparking such electricity

heheheh when I do come i dont think you will be soft for very long

Be nice to me .. .. sure I can make a stiff point ..of nothing tha [sic] makes sence [sic] .. but better be nice to me

its just my flu that is stopping me at the moment Mark

16 The second relevant conversation took place on 6 July 2003, the morning after the appellant had spent the night at the complainant's home. I have mentioned that, in his evidence at the trial, the appellant said that during the course of the night of 5/6 July 2003 he had asked the complainant whether or not she would go to bed with him and that she declined that offer. The 6 July conversation seemingly refers to this. In the course of it the complainant said to the appellant:

In regards to the offer of pleasures this morning the only reason I said no was due to the fact that my private life I keep to myself and Lea can be very judgmental. The timing was wrong, that is all. If the offer is still open, yes, I would like to. It was a pleasure to meet you, I had a good evening.

In her evidence at the trial, the complainant said that she could not remember having typed these words as it was 'quite a long time ago' and 'a lot [had] happened since then'.

17 The third of the relevant ICQ conversations took place on 14 July 2003, a few days before the then proposed trip to Bunbury on 18 July 2003. The material retrieved from the appellant's computer reveals that the complainant said:

So if the gig is still happening on Friday and I ask you if you feel like making gentle kind love will that be a problem? Getting a cup of tea, will not be long.

The appellant responded by asking the complainant whether she could read a roadmap. She replied:

So what has a road map and me asking if you would like some gentle kind lovemaking got in common?

The appellant then asked the complainant whether or not she still felt like a trip to Bunbury on Friday. She said that she was looking forward to it.

18 In her evidence at the trial the complainant said that she could not recall having said any of these things.

The prosecutor's objection and the decision of the trial judge

19 The prosecutor objected to the admission into evidence of most of the extracts which I have quoted from the three ICQ conversations. He relied, in particular, upon s 36BC of the Evidence Act, quoted later in these reasons.

20 The trial judge ruled that the quoted passages from the 'conversations' on 6 July and 14 July 2003 were admissible. He also said that what was said on 28 June, 6 July and 14 July was evidence from which the jury could draw inferences, or not as the case may be, concerning the complainant's state of mind and also in relation to the question whether or not the appellant had formed an honest and reasonable belief that what he was doing on the night of 26 July 2003 had been consented to. However, he ruled that only a small part of the conversation on 28 June 2003 could be admitted. This consisted only of the exchanges that took place from 12:53:01 up to and including 12:54:50. For ease of reference, these exchanges have been italicised in the extracts that I have quoted. The trial judge said, in respect of the balance of the 28 June conversation, that the distress, humiliation or embarrassment that would be suffered by the complainant if it was to be admitted outweighed its probative value.

21 I should mention, in this respect, that the then counsel for the appellant did not press the trial judge to admit all of the material to which I have referred. Although it is not entirely clear from the transcript how much of the 28 June conversation he sought to adduce, it is plain that this included at least the material commencing at 12:36:45 and concluding at 12:54:50.

The complainant's evidence in respect of the extracts found to be admissible

22 I have mentioned that the complainant said that she could not recall having typed her parts of the exchanges on 6 and 14 July 2003. When she was cross-examined in respect of that part of the ICQ communications on 28 June 2003 that was allowed into evidence by the trial judge, she said that she had no recollection of saying what was ascribed to her. When asked whether she could remember having had the flu in late June 2003, she said that she could not remember that far back. Her evidence in this respect gave rise to an issue of credibility to which the disallowed portion of the evidence might have been relevant. That is because, although a jury might readily have accepted that the complainant had forgotten having said what is ascribed to her in the passages that were admitted into evidence, they may well have had more difficulty in accepting that she could have forgotten these exchanges when considered in the context of the very much more extensive and graphic material that counsel for the appellant had sought to introduce into evidence.

Sections 36B, 36BA and 36BC of the Evidence Act

23 The admissibility of evidence in proceedings for a sexual offence is dealt with, in this State, by the Evidence Act. The trial judge's decision to exclude most of the material to which I have referred was based upon s 36BC of that Act. It is important to read that section in context. Section 36B, s 36BA and s 36BC of the Act read as follows:

36B**. Sexual reputation of complainant, evidence of**

In proceedings for a sexual offence, evidence relating to the sexual reputation of the complainant shall not be adduced or elicited by or on behalf of an accused.

36BA**. Sexual disposition of complainant, evidence of**

In proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of an accused.

36BC**. Sexual experience of complainant, evidence of**

(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).

(2) The court shall not grant leave under subsection (1) unless satisfied that -

(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and

(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.

24 It is helpful, also, to place all three sections in context by considering the background to their enactment.

25 The common law, as it existed prior to the enactment of statutory provisions dealing with the admissibility of evidence in cases concerning sexual offences, was discussed by the majority (McHugh, Gummow & Hayne JJ) in Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 [42] - [46] as follows:

To understand the purpose and effect of ss 36B, 36BA and 36BC of the Act, it is necessary to understand the state of the law before their enactment and the state of public opinion as to the state of the law before they were enacted.

At common law, a complainant in a rape trial could be cross-examined as to whether she was promiscuous (R v Clarke [1816] EngR 146; (1817) 2 Stark 241 [171 ER 633]). However, a complainant could not be cross-examined about particular acts of intercourse with named men (R v Hodgson [1812] EngR 23; (1812) Russ & Ry 211 [168 ER 765]). Moreover, subject to three exceptions, evidence of particular acts of intercourse could not be adduced to rebut her denial that she was promiscuous (R v Holmes and Furness (1871) 12 Cox CC 137). Those exceptions were:

(a) evidence that the complainant had engaged in prostitution (R v Barker [1829] EngR 394; (1829) 3 Car & P 589 [172 ER 558]; R v Bashir [1969] 1 WLR 1303 at 1306; [1969] 3 All ER 692 at 693 - 694);

(b) evidence of other acts of intercourse with the accused (R v Martin and Martin [1834] EngR 942; (1834) 6 Car & P 562 [172 ER 1364]; R v Fitzgibbon [1885] VicLawRp 50; (1885) 11 VLR 232);

(c) evidence of other sexual acts constituting part of the surrounding circumstances (Gregory v The Queen [1983] HCA 24; (1983) 151 CLR 566; R v Turner [1944] KB 463).

In addition, the common law permitted the accused to adduce extrinsic evidence of, cross-examine upon, and rebut denials in relation to, all the surrounding circumstances of the offence. Those circumstances included the sexual behaviour of the complainant.

The exception concerning prostitution was liberally interpreted and was not confined to acts of prostitution as ordinarily understood. In practice, it often exposed the complainant to cross-examination on her whole sexual life. In Krausz ((1973) 57 Cr App R 466 at 474), Stephenson LJ, giving the judgment of the English Court of Appeal, Criminal Division, went so far as to say:

'Evidence which proves that a woman is in the habit of submitting her body to different men without discrimination, whether for pay or not, would seem to be admissible.'

Evidence concerning the complainant's sexual behaviour which was admissible at common law was regarded as relevant to whether the complainant had consented to the act or conduct the subject of the charge. Common law courts regarded this evidence as relevant for that purpose because they accepted that lack of sexual morality or 'lightness of character' (R v Barker (1829) 3 Car & P 589 at 590 [1829] EngR 394; [172 ER 558 at 559], per Park J) made it more probable than not that the complainant had consented to the sexual act or conduct concerned. The common law courts also considered the evidence to be relevant in determining whether the complainant's denial of consent was worthy of belief (Thomas v David [1836] EngR 542; (1836) 7 Car & P 350 [173 ER 156]; Cargill [1913] 2 KB 271; (1913) 8 Cr App R 224; R v Richardson [1969] 1 QB 299).

26 As McHugh, Gummow and Hayne JJ point out [47], by the third quarter of the twentieth century the attitudes reflected in the common law rules had become discredited. Evidence and cross-examination of the kind that had, by then, become widespread was seen as an harassment of the complainant that was not relevant to the guilt or innocence of the accused.

27 The discrediting of these attitudes led to the enactment of s 36A and s 36B of the Evidence Act. Section 36A dealt with the admissibility of evidence at committal proceedings and s 36B dealt with the admissibility of evidence at trial. Section 36A(5) introduced a category of 'restricted matters'. These encompassed the sexual experiences of a complainant with a person other than the defendant; the complainant's disposition in sexual matters, excluding her disposition with respect to the defendant; and the complainant's reputation in sexual matters, excluding any matter among the res gestae connected with any offence with which a defendant was charged at the trial. By s 36B, no evidence about those restricted matters could be adduced by or on behalf of a defendant and no question about them could be asked in cross-examination of the complainant without first obtaining the leave of the court.

28 In the course of the second reading speech of the Evidence Act Amendment Bill 1976 that introduced these provisions, the then Attorney General outlined the purposes of the amendments: Western Australia, Parliamentary Debates, Legislative Council, (Hansard), 21 October 1976, 3350. He said that they were intended to lessen the likelihood of a complainant being subjected to unnecessary harassment and embarrassment during the procedures of investigation, committal and trial. He used the word 'unnecessary' in the sense of 'not being necessary for the proper defence of the accused'.

29 Changes elsewhere had been motivated by similar considerations: see, for example, in South Australia, R v Wannan [2006] SASC 151; (2006) 94 SASR 521 [41] - [42] (Doyle CJ).

30 Section 36A and s 36B were repealed in 1985 by the Acts Amendment (Sexual Assaults) Act 1985 (WA), which introduced the current provisions. Their purpose was described by the Hon Pamela Beggs, on behalf of the Premier, in the course of the second reading speech of the Acts Amendment (Sexual Assaults) Bill 1985 (WA): Western Australia, Parliamentary Debates, Legislative Assembly, (Hansard) 3 September 1985, 699, 701. She said that the Bill proposed to effect changes to the Evidence Act which would have the effect that evidence laws will 'protect the victim from unnecessary hardship by further restricting the admissibility of evidence relating to the victim's sexual history during court proceedings'. The effect of the proposed changes was said to be 'that evidence of the victim's sexual reputation and sexual disposition will be absolutely inadmissible on behalf of the defendant' and that evidence 'of the victim's prior sexual experiences will be admissible in restricted circumstances with leave of the court'.

Section 36BA and sexual 'disposition'

31 As the majority pointed out in Bull [56], this State is alone in having a provision relating to the 'disposition of the complainant in sexual matters'.

32 The meaning of the word 'disposition' was considered in Bannister v The Queen (1993) 10 WAR 484. In that case the appellant was alleged to have committed a number of sexual offences against the complainant. The appellant wished to lead evidence that, some six days after the last of the alleged offences, the complainant had asked him if there was 'any hope'. That phrase was understood, in the surf club to which both belonged, to be a sexual proposition. Kennedy J held that this evidence was not evidence of disposition for the purposes of s 36BA. He said (488):

Within the context of the case, the evidence on this point would not have been evidence of the complainant's disposition in the sense of her natural tendency or propensity to act in a particular way. It would have been evidence of her conduct towards the appellant on a particular occasion. The evidence was not directed to establishing the general disposition of the complainant as a step in an argument that she acted in a particular way on other occasions, which is what section 36BA renders inadmissible.

33 When that case came to be considered in Bull, Gleeson CJ agreed with the approach adopted by Kennedy J [21], as did Kirby J [137]. However, the majority were unable to agree with his reasoning if it was to be read as suggesting that s 36B, s 36BA and s 36BC 'do not prohibit the adduction of evidence on behalf of the defendant which is tendered for a purpose other than that of reputation, disposition, or experiences even though it tends to prove one of those matters' [82]. They construed the word 'disposition' in s 36BA as follows [59]:

As we pointed out earlier, an important object of the 1985 amendments was to ensure that in trials for sexual offences a person's sexual reputation or disposition would not be used as a basis for reasoning that the complainant was the kind of person who would have consented to the conduct in question. That being so, it seems proper to construe 'disposition' in s 36BA as referring to any characteristics of the complainant which suggests that he or she is the 'kind of person' who would have engaged in the conduct in question. Thus, evidence relates to the 'sexual disposition' of the complainant for the purpose of s 36BA only when it tends to prove that he or she is that 'kind of person'. A contrast is therefore to be drawn between statements and conduct which reveal the intrinsic character of the complainant and those which, although relevant to the particular occasion, do not. It is statements and conduct falling within the former category to which s 36BA is directed. It may not always be easy to draw the distinction between statements and conduct which reveal the intrinsic character of the complainant and those which, although relevant to the particular occasion, do not. But generally, the more direct and confined the relationship between the statement or conduct and the particular occasion, the less likely it is to reveal intrinsic character.

34 The majority drew a distinction between evidence of disposition in this sense and 'any casual or transient wish or desire of the complainant' [101]. As they acknowledged, the distinction may be difficult to draw in practice [59]. For example, what a complainant desires on one occasion might reflect a general inclination forming part of his or her intrinsic character.

35 The majority also accepted that there may be an overlap between disposition and a person's sexual experience or reputation. They said [61]:

In the context of the Western Australian legislation, a difficulty arises because evidence of a complainant's sexual experiences, which is made admissible by s 36BC, will often, but not necessarily, also be evidence relating to a person's sexual disposition. This arises from the process of inferential reasoning described in par (b) above. Similarly, if 'evidence relating to' means 'evidence referring to', evidence concerning a person's sexual reputation may also refer to a person's sexual experiences or disposition: she has a reputation of having slept with every singer who has performed at this club; he has a reputation for picking up 'rough trade'; he has slept with every woman in the office.

Section 36BC and sexual experiences

36 The words 'sexual experiences' include experiences as the victim of a sexual offence: Hill v The Queen [2003] WASCA 177 [48] (McLure J; Murray & Wheeler JJ agreeing). These words have also been construed as meaning actual sexual experiences, in the sense that the defence cannot, without leave, cross-examine a complainant on the question whether a previous complaint of rape involved consensual sex (see R v Tribe [2001] QCA 206 [22] - [24], [31] - [34] (Mackenzie J, McMurdo P & Williams JA agreeing)) but can, without leave, suggest to the complainant that a previous complaint of rape was false because the sexual act never occurred (R v Stergiou [2004] WASC 172; (2004) 147 A Crim R 120 [16] - [20] (Le Miere J)). The rationale for this distinction is that cross-examination contending that sexual activities did not take place at all is not cross-examination with respect to the complainant's sexual experience: see also R v MAG [2004] QCA 397 [24] - [27] (Williams JA, Cullinane & Jones JJ agreeing); R v Thow [2003] TASSC 16 [9] - [10] (Slicer J). Under Western Australian legislation, the lack of sexual experience is not caught by s 36BC: cf, in this respect, Criminal Procedure Act 1986 (NSW) s 293(3).

37 In Bull [62] the majority considered that the use, in s 36BC, of the plural 'sexual experiences' was significant. They said that it indicated that the purpose of the section was to prohibit evidence which described any occasion or episode of sexual activity involving the complainant and another person but that its purpose was not to prohibit all evidence that tends to prove the state of his or her sexual experience. They went on to say [62]:

Without infringing s 36BC (nor ss 36B and 36BA), the defendant would plainly be able to question the complainant concerning the extent of his or her sexual knowledge. This is clear from the qualifying words 'being sexual experiences ... with any person'. Those words also indicate that the complainant could be questioned or evidence adduced to prove that the complainant had witnessed the sexual activities of others as long as the evidence did not suggest that the complainant was involved in those activities. Moreover, without infringing the prohibition in s 36BC, to rebut a claim that the complainant had not had sexual intercourse before the events the subject of the charge, the defendant would seem able to adduce medical evidence that an examination of the hymen or anus indicated otherwise.

38 The majority also said that s 36BC recognised, by its reference to res gestae, that the sexual experiences of the complainant include those that are connected to, or occur contemporaneously with, the event which is the subject of the charge [63].

39 It is not clear whether the words 'sexual experiences' include only physical experiences, or also experiences which have sexual overtones or a sexual character, but which are not physical. In Ascoli v The Queen (Unreported, WASC, Library No 970173, 18 April 1997) Malcolm CJ (Kennedy J agreeing) held that an allegation that the complainant, while drunk, had gone from room to room in a guesthouse looking for people to sleep with was evidence of reputation and not sexual experience (cf Walsh J at 12 - 13). On the other hand, in R v Viola [1982] 1 WLR 1138; [1982] 3 All ER 73 the Court of Criminal Appeal (Lord Lane CJ, Skinner & Taylor JJ) seemingly accepted that evidence that a complainant had made sexual advances to two men, and that a naked man had been seen in her house, was evidence of sexual experience for the purpose of s 2 of the Sexual Offences (Amendment) Act 1976 (UK). That section prohibited, in a trial of a rape offence, the adducing of evidence or cross-examination 'about any sexual experience of a complainant with a person other than [the] defendant' without the leave of the court.

40 In R v Lear [1998] 1 VR 285, the court considered whether a conviction for loitering for the purpose of prostitution was evidence of 'sexual activities' under s 37A(1) r (2)(a) of the Evidence Act 1958 (Vic). That section provides that:

(a) the complainant shall not be cross-examined as to his or her sexual activities (whether consensual or non-consensual); and

(b) no evidence shall be admitted as to the sexual activities (whether consensual or non-consensual) of the complainant.

Phillips JA thought that the conviction for loitering was evidence of 'sexual activities', in circumstances in which the submission to the trial judge had made it plain that the conviction was regarded as relevant because of the knowledge it arguably imported of sexual activities (and of particular sexual activities) which, it was implied, would have been undertaken by the complainant (304). Phillips CJ and Hedigan AJA appear to have arrived at similar conclusions (296 and 311 respectively).

41 In R v White (1989) 18 NSWLR 332, the Court of Criminal Appeal (Gleeson CJ, Carruthers & Badgery-Parker JJ) dealt with an issue which had arisen concerning a conversation in which the complainant in a sexual assault case had told the appellant that she had broken up with her former boyfriend because he had found her in bed with another man. The question arose whether evidence of the conversation was evidence of sexual experience or sexual activity 'taken part in' by the complainant at or about the time of the alleged offence for the purposes of the now-repealed s 409B(3)(a)(i) of the Crimes Act 1900 (NSW). The court held (340 - 341) that, while the evidence disclosed sexual experience, the conversation itself, although expressed in 'open and rather coarse terms', could not properly be described as sexual activity for the purposes of the legislation. However, the court also said (341) that there could be cases where conversation is itself sexual activity. They cited Beck v The Queen [1984] WAR 127 in that respect (although, on my reading of that case, it lends no support for that proposition).

42 In the end, the question may turn on the character and nature of the sexual conversation. For example, if one person was to describe to another, even in graphic terms, some sexual activity engaged in by third parties that she or he had happened to observe, merely for the purpose of informing the other party of what had happened and without any sexual motive, the conversation itself would not amount to a sexual experience on the part of the first person with the second. On the other hand, a conversation in which one person describes graphic sexual activities with the purpose of sexually stimulating the other party to the conversation may amount to a sexual experience of the first person with the second. The words 'of any kind', in s 36BC, are very wide. Moreover, if regard is had for the purpose of the section, cross-examination concerning conversations of that kind could be just as humiliating for the complainant as cross-examination with respect to physical experiences.

43 As will be apparent, s 36BC provides that, where the evidence forms part of the res gestae, it will be admissible without leave. The words 'res gestae', in this context, refer to events that are so close in time and space to the offence charged as to be inseparable from it: Bull [110] (McHugh, Gummow & Hayne JJ). After referring to the remarks of Dixon CJ in Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1, 16, that 'the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused', the majority in Bull went on to say [112]:

This statement provides an insight as to what constitutes the 'res gestae' for the purpose of s 36BC. The existence of consent, for example, is not to be 'inferred from the character and tendencies of the [complainant]', but is to 'be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime'. Where an act or statement is intimately connected with the particular sexual conduct which is the subject of the charge, or in other words with 'the parts and details of the transaction amounting to the crime', it is part of the res gestae and so is admissible under s 36BC without leave. That applies to acts or matters tending to prove the disposition of the complainant, as well as to other acts or matters relating to the sexual experiences of the complainant.

44 The majority noted an apparent conflict between s 36B and s 36BC, and also between s 36BA and s 36BC. They said in this respect [64]:

That is because s 36BC allows evidence relating to sexual experiences to be adduced if it is part of the res gestae or if the court is satisfied of certain conditions and gives leave to adduce the evidence. Yet in terms ss 36B and 36BA respectively purport to render inadmissible any evidence relating to the sexual reputation of the complainant or to the disposition of the complainant in sexual matters even when it relates to or is derived from the sexual experiences of the complainant. The conflict between the literal meanings of these sections suggests that the literal meanings of ss 36B and 36BA must be qualified to some extent.

45 Next, before it can be admitted by leave under s 36BC, the evidence must be of substantial relevance. Evidence which is legally relevant must be excluded if its relevance is not substantial: Hill [58] (McLure J). Finally, if leave is to be given, the probative value of the evidence must not be outweighed by the distress and humiliation that the eliciting of that evidence may have on the complainant.

46 The majority in Bull gave detailed consideration to the meaning of the words 'evidence relating to' in each of the three sections. They said [72]:

Evidence of a fact or matter is testimony that tends to prove that fact or matter. Accordingly, any evidence that tends to prove the disposition of the complainant is evidence relating to his or her disposition. Such testimony does not cease to be evidence relating to the disposition of the complainant because it also tends to prove some other fact or matter in the proceedings. Evidence that on the occasion in question or on other occasions a complainant had used sado­masochistic devices in the course of sexual activity would tend to prove the disposition of that complainant in sexual matters. The validity of the proposition would not be affected by the fact that the evidence was tendered for the purpose of proving a fact in issue such as consent or an honest belief that the complainant had consented. It may be that the natural meaning of the words 'evidence relating to' is wide enough to cover evidence that only incidentally refers to sexual reputation, disposition or experiences, an issue that we must later discuss. But it seems impossible to deny that those words in their ordinary meaning at least cover any testimony which tends to prove any of those matters.

Sometimes, however, testimony of an out-of-court statement is admissible to prove a fact relevant to a fact in issue such as the intention or purpose of the complainant or even the consent of the complainant. If the statement contains material that refers to matters relating to the reputation, disposition or experiences of the complainant in sexual matters, would it be evidence tending to prove those matters and prohibited by one or more of the three sections? We think not.

48 The majority also compared hearsay statements with evidence of conduct. They said [80] - [81]:

If a hearsay statement is admissible to prove a fact in issue or a fact relevant to a fact in issue, it is evidence of that fact only and the statement cannot be regarded as evidence tending to prove any fact in the statement. It follows that, in a trial to which ss 36B, 36BA or 36BC apply, a statement of the complainant that is admissible to prove a fact in issue or a fact relevant to a fact in issue other than the reputation, disposition or experiences of the complainant in sexual matters, does not become, upon admission, evidence tending to prove those matters even if the contents of the statement refer to them. The statement has no probative value in respect of those matters. Accordingly, it is not evidence tending to prove any of those matters.

But, as we have said, evidence of conduct stands in a different category. The ordinary and natural meaning of the words 'evidence relating to' is that they cover any testimony that tends to prove a fact or matter. If testimony tends to prove the sexual reputation, disposition or experiences of the complainant in sexual matters, it does not matter that it is adduced for some other purpose. It will, by force of ss 36B, 36BA and 36BC, be inadmissible for all purposes.

49 The majority next considered what they took to be three competing constructions of the operation of s 36BA. They favoured the third of these. This was to the effect that s 36BA prohibits the tender of any evidence which tends to prove the disposition of the complainant in sexual matters except where the evidence is of the sexual experiences of the complainant and is admissible under s 36BC [103]. They suggested that this construction resolved the apparent conflict between s 36BA and s 36BC. On this construction, evidence which proved the complainant's sexual experiences, but which also tended to prove the complainant's disposition in sexual matters, is governed by s 36BC insofar as it proves the sexual experiences, but by s 36BA for all other purposes. The majority suggested that this construction reduced the potential for unfairness to the accused and at the same time protected the complainant by subjecting evidence of sexual experiences tending to prove sexual disposition to stringent conditions [105]. Finally, the majority said that [107]:

[T]he third construction gives effect to the important point that the very essence of the changes that were made by these sections was to require courts and juries to focus primarily upon what was alleged to have been done, or thought or said, on the particular occasion, and to put aside what might be said to have been done, or thought or said, on other occasions.

50 The majority recognised that this construction would mean that probative evidence of considerable cogency would sometimes be excluded (an outcome criticised by Gerald McGinley, Case and Comment: Bull; King; Marotta (2000) 24 Crim LJ 315, 318 - the author makes other criticisms of the reasoning of the majority - see 316, 317). However, they said that evidence of sexual experience which is not part of the res gestae may still be admissible with leave notwithstanding that it also tends to prove the disposition of the complainant [113].

(a) Section 36BA prohibits the tender of any evidence which tends to prove the disposition of the complainant in sexual matters, except where the evidence is evidence of the sexual experiences of the complainant and is admissible under s 36BC.

(b) In s 36BA, 'disposition ... in sexual matters' refers to characteristics of the complainant which suggest that he or she is the 'kind of person' who would have engaged in the conduct in question.

(c) Evidence that tends to prove the disposition of the complainant in sexual matters is evidence 'relating to' his or her disposition in those matters.

(d) An out-of-court statement of the complainant will be admissible to prove a fact asserted in the statement only if it comes within a recognised exception to the hearsay rule.

(e) An out-of-court statement of the complainant admitted to prove a fact other than the truth of the facts asserted in the statement does not, if the content of the statement concerns the complainant's sexual reputation, disposition or experiences, tend to prove those matters. By contrast, if testimony relating to the complainant's conduct tends to prove the sexual reputation, disposition or experiences of the complainant, it will tend to prove those matters no matter what is the purpose for which it is adduced.

The effect of the hearsay rule in Bull

52 The consideration by the majority in Bull of the effect of the hearsay rule on the operation of s 36B, s 36BA and s 36BC is important for the purposes of the present case. In order to put what was said by them in that respect in context it is necessary to mention some of the facts in Bull. The three accused men had been charged with sexual offences. They asserted that the complainant had gone to the house in which they were in order to engage in sexual activity with them. They wanted to tender evidence of a telephone conversation between one of the accused, Bull, and the complainant. This was said to have been in the following terms:

We've been to the strippers and that and playing some cards and that. Oh if you come over here we might be able to do one of your fantasies if you want.

53 In order to explain this conversation, the appellants wanted to rely upon other conversations in which the complainant was said to have had three fantasies, one of these being watching two men have sex and another being the having of sex with two or more men. The majority held that this evidence was adduced in order to prove the complainant's intention or purpose in attending Bull's house [117]. Its relevance to that issue did not depend upon the truth of any of the express or implied assertions made by the complainant in the course of the conversation. They went on to say [118] - [119]:

Regardless of the truth value of these statements by Bull, the fact that they were made by Bull and that the complainant responded in the way she did is relevant to the complainant's reason for going to the house in the light of her subsequent action in attending the house in response to the telephone call. Her state of mind - her reason for going to the house - was relevant to whether she consented to the sexual activities that took place after she arrived and her statements in their context were evidence of her state of mind (Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 288 - 289, 300 - 302, 307).

Evidence of what was said in the telephone conversation was relevant to, in the sense of being rationally probative of, a fact (the complainant's intention or purpose in attending Bull's house) which is itself relevant to a fact in issue (whether the complainant consented to the acts which allegedly occurred once she arrived there). Although the chain of relevance involves two steps, it does not rely on any impermissible intermediate step of a generalisation based upon the complainant's sexual disposition, reputation or experiences.

54 Then, after mentioning that the jury might have concluded that the intention or purpose of the complainant two hours prior to the alleged act threw little light upon whether she later consented to those acts, a matter which, they said, went to weight rather than admissibility, the majority said [121]:

Because the purpose or reason for the complainant going to Bull's house was relevant to a fact in issue (consent and, in the case of Bull, honest belief in consent), the conversation was admissible as original evidence to prove that purpose or reason. The law of hearsay did not prevent its admission. As Mellish LJ pointed out in Sugden v Lord St Leonards ((1876) 1 PD 154 at 251, applied by Mason CJ in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 288) 'wherever it is material to prove the state of a person's mind, or what was passing in it, and what were his intentions, there you may prove what he said, because that is the only means by which you can find out what his intentions were'.

55 Finally, the majority concluded [126] that the conversation was admissible because:

It tended to prove a fact relevant to a fact in issue, but it did not prove it by asserting the contents of the conversation. That being so, it did not tend to prove the sexual reputation, disposition or experiences of the complainant. Furthermore, evidence explaining the terms used in the conversation was admissible because such evidence had no probative value beyond the explanation of those terms.

56 The minority judges (Gleeson CJ and Kirby J) agreed in the result but differed significantly in their reasoning. Gleeson CJ considered that, if information which is capable of supporting an inference as to a complainant's disposition in sexual matters is relevant only on that account, then it clearly bore the character of evidence relating to such disposition, and was excluded by s 36BA. However, he said that if its tendency to reveal disposition was merely incidental, and its substantial probative significance was related to some other matter, then it was not excluded because it was not appropriate to characterise the evidence as evidence relating to disposition [22]. Kirby J adopted a similar approach at [150].

57 Gleeson CJ's reason for adopting this approach appears in [21] of his reasons (Kirby J was influenced by similar reasons):

This is the difficulty inherent in a statutory provision, or a rule of common law, which excludes evidence of the disposition of a complainant, or the propensity of an accused. Both matters could form the basis of a dangerous and prejudicial line of reasoning. At the same time, evidence which is otherwise relevant, and ought, in the interests of justice, to be received, may incidentally reveal disposition or propensity. In the case of information which tends to reveal the propensity of an accused, the law deals with the problem by considering its probative significance and value apart from the mere matter of propensity. A similar approach should inform the construction of s 36BA. This would give due weight to the legislature's purpose in excluding disposition evidence, and at the same time, pay due regard to the interests of justice. That appears to be the approach adopted by Kennedy J, with which I agree.

58 Gleeson CJ was unable to accept the analysis of the majority for three reasons, as follows [24] - [26]:

First, it depends upon treating s 36BC as a positive source of admissibility of evidence relating to sexual experiences forming part of the res gestae. The reference in s 36BC to the res gestae is not expressed as a source of power or capacity to admit evidence. It is expressed as a qualification upon a rule of exclusion of evidence. If evidence falling within the qualification is admissible, the source of its admissibility is not s 36BC; it is the general law or some other statutory provision. The qualification does not make it admissible, and if, for some other reason, it is inadmissible, (because, for example, it is covered by some common law principle of exclusion), then it does not become admissible because it falls within the qualification in s 36BC. The same must apply if it is inadmissible because of s 36BA.

Secondly, it depends upon giving precedence to s 36BC over s 36BA where the two are in conflict. (The scope for conflict, of course, only exists because of the point already mentioned. If, as they appear at first sight to be, they are both simply rules of exclusion of evidence, then they do not conflict.) Why this should be so is not apparent.

Thirdly, in its practical application it is capable of turning upon matters unrelated either to the legislative purpose of protecting complainants from illogical and offensive lines of questioning and processes of reasoning, or to the need to do justice to accused persons.

Was the evidence admissible under the common law?

59 It seems to me that, under the common law, the evidence sought to be adduced on behalf of the appellant (I will treat this as having been the material commencing at 12:36:45 and concluding at 12:54:50) was relevant and admissible. Part of this tended to prove the complainant's intention or purpose (or an intention or purpose) in going to the appellant's house (especially that part between 12:47:05 and 12:55:00, only part of which was admitted by the trial judge): Sugden v Lord St Leonards (1876) 1 PD 154, 251, Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 288, Bull [121]. That, in turn, was relevant to a fact in issue, being consent (as, in my opinion, was the portion, seemingly not pressed by counsel, between 13:03:43 and 13:12:02). While there was a considerable interval between this conversation and the events giving rise to the charges against the appellant, that seems to me to be a matter going to weight, rather than to admissibility, given the circumstances that had intervened during that interval. The appellant and the complainant had had dinner together. The two had made the aborted arrangement to travel to Bunbury. There had been the exchanges, relating to those events, on 6 and 14 July 2003. All of this evidence seems to me also to have been relevant to the appellant's understanding of what the complainant was willing to do if she came to his house and, hence, to the issue of honest and reasonable belief. The general effect of what had been said by the complainant was that she loved to do the things identified by her and that, when she was feeling better, she would go to the appellant's house and, as he put it, 'see what can be realised'. (This effect is reinforced by comments made by the complainant later in the conversation, such as her comment that, 'when I do come I don't think you will be soft for very long'.)

60 The evidence also went to the issue of the complainant's credibility. I have said that her evidence at the trial was that she had gone to the appellant's house in order to take photographs and to get advice from the appellant in that respect. Notwithstanding that the excluded evidence preceded the alleged sexual offences by a month that evidence, together with what had occurred during that month, might be thought to raise some question concerning the truth of the complainant's explanation that the photography and advice were the sole reasons for staying overnight and also concerning her professed lack of sexual interest in the appellant. I have earlier mentioned that the evidence of a lengthy, and graphic, conversation might also bear upon the jury's assessment of the veracity of the complainant's evidence that she could not recall having made any comments of the nature of those that were admitted into evidence.

Was the evidence rightly excluded under one or both of s 36BA and s 36BC?

61 A large part of this evidence, if it could be adduced under the common law for the purpose of proving the truth of its contents, would plainly be evidence relating to the complainant's disposition in sexual matters. If it was admissible on that basis, most of it would tend to prove that she was the 'kind of person' who would engage in the conduct in question: Bull [59]. Examples are her statements to the effect that she loves 'to give and receive oral', that she loves to 'explore the male body and arouse it beyond the point of no return', that she loves 'to please and ... to be pleased' and that she likes to 'repeat' her 'pleasures'. That part of the evidence, if it could be adduced under the common law for the truth of its contents, would consequently be inadmissible by virtue of s 36BA of the Evidence Act.

62 Also, if the evidence could be adduced under the common law for the purpose of proving the truth of its contents, it would, at least in part, be evidence relating to the sexual experiences of the complainant. For example, it is implicit in her statements that she loves to do certain things that she has done them in the past. It is doubtful whether the conversation could be said to form 'part of the res gestae of the proceedings' (presumably intended to be a reference to 'part of the res gestae of the offences'), given that it preceded the alleged offences by almost a month.

63 However, the appellant did not seek to lead the evidence for the truth of its contents concerning the complainant's sexual disposition or sexual experiences. He sought to rely upon it for three reasons, as I have said. The first was in order to prove the complainant's intention or purpose in going to his house which, in turn, was relevant to the issue of consent. The second was in order to prove the appellant's understanding of what the appellant was willing to do if she came to his house which, in turn, was relevant to the issue of honest and reasonable belief in consent. The third was in order to cast doubt on the complainant's credibility concerning her memory of the conversations, her professed lack of sexual interest in the appellant (which, she said, she had conveyed to him) and her reasons for going to his home.

64 Applying what was said by the majority in Bull [80], the complainant's hearsay statements were admissible to prove intention or purpose (being relevant to consent) and the appellant's understanding (being relevant to honest and reasonable belief) and could not be regarded as evidence tending to prove the complainant's sexual disposition or sexual experiences, in respect of which they had no probative value. The only other relevance of the statements related to the issue of credit. Consequently, the evidence was not excluded by either of s 36BA or s 36BC, although a strong direction would have been needed in order to make it plain to the jury that the evidence was admissible only for the purposes identified and not for the purpose of proving sexual disposition or experiences and that they should not engage in impermissible reasoning in respect of it.

65 There remains the question whether parts of the conversation itself amounted to a sexual experience. The complainant's purpose in typing some of this material (that between 12:37:27 and 12:46:35) seems to me plainly to have been that of sexually stimulating the appellant. That is evident both from its graphic nature and also from her comment that what she had described was 'just a mere taste' of what might happen when she was feeling better. Some of the appellant's responses were of an overtly sexual nature. Consequently, the relevant parts of the conversation seem to me to have amounted to a sexual experience of the complainant with the appellant.

66 If the parts of the conversation that I have identified did amount to a sexual experience, as appears to be the case, then it seems to me that these parts should nevertheless have been found to be admissible under s 36BC. For the reasons I have given, they were substantially relevant to the facts in issue. Also, it seems to me that their probative value (in the respects identified earlier in these reasons) far outweighed any distress, humiliation or embarrassment which the complainant might suffer as a result of their admission.

67 In all of the circumstances, whether the approach favoured by the majority or by the minority in Bull is adopted, the outcome in this case would be the same. The material commencing at 12:36:45 and concluding at the end of the passage at 12:54:50 was admissible (as indeed was the passage between 12:54:50 and 13:12:02) and the trial judge erred by excluding all but that part of it which commenced at 12:53:01.

68 There was no real contention, in this case, that s 30(4) of the Criminal Appeals Act 2004 (WA) was applicable. In my opinion there is no room for the application of that section. The evidence that was wrongfully excluded was, as I have said, substantially relevant for three reasons. It shed light on the appellant's understanding of why it was that the complainant went to his house and hence on the issue of consent. It also shed light on the appellant's state of mind so far as it bore upon the defence of honest and reasonable, but mistaken, belief. Finally, it was relevant to the complainant's credibility in the respects to which I have referred. Of course, it was always open to the jury to place no weight on that evidence in all of the circumstances of the case. However, there is in my opinion a reasonable possibility that, if this evidence had been admitted, the jury might have regarded it as placing a different complexion on the events in question and the appellant consequently lost a fair chance of acquittal.

69 I would allow the appeal, set aside the convictions and order a retrial.