Chia v R

Court of Criminal Appeal (NSW)|2021-03-08|Before: Leeming JA, Walton J, Adamson J

ction: Criminal Date of Decision: 9 May 2019 Before: King SC DCJ File Number(s): 2017/369241

Background

The summary of the background which follows is based on the Crown case statement and the openings, unless otherwise indicated.
The following events occurred on Tuesday and Wednesday 1 and 2 August 2017, when the complainant was in her early 20s. She was a Malaysian national who came to Australia in early 2017. She speaks Malaysian and some English, but her native tongue is Mandarin. She gave evidence largely through a translator.
On the afternoon of Tuesday 1 August 2017, the complainant visited St Mary's Cathedral in central Sydney. She was approached by the appellant. The appellant speaks reasonable, although imperfect, English, but also Mandarin and Malaysian. He struck up a conversation with her, initially telling her that she should take her cap off when in church. He told her that he had lost all his personal belongings, including his identification, his phone and all his baggage. He said that he was homeless, and needed money to pay for a lawyer to secure the return of his identification. These statements were lies.
The appellant said he needed to borrow $4,000. The pair went to a restaurant for lunch, and while the complainant went to the bathroom, the appellant ordered and paid for lunch. The complainant was surprised at the fact that he had paid, given his circumstances, but the appellant brushed that aside. The pair went to an ATM at Darlinghurst, where the complainant withdrew $2,000 and gave it to the appellant. A bank statement established that this occurred at 16:40.
The pair then walked to a nearby hotel. When they arrived, the complainant booked and paid for a room (in the amount of $194.25) in her name. A bank statement shows that this occurred at 17:31. Images of the complainant checking in at reception and, separately, the pair walking along an internal corridor on the 6th floor of the hotel to the room were captured on CCTV.
In the hotel room, it was common ground that the pair had penile-vaginal sexual intercourse. The complainant said that this had been preceded by digital-vaginal intercourse. These were the two counts of sexual intercourse without consent. The appellant maintained that the intercourse was consensual. The complainant maintained that she did not consent, she said "don't" throughout both acts of intercourse and that the appellant had forcibly held her arms. It was common ground that this did not take very long. The Crown Case Statement states that the appellant said "Your lower parts are very tight that made me cum very fast".
The CCTV footage captured the pair in a corridor at 18:52, shortly after leaving the room. The appellant is shown carrying the complainant's folder of certificates.
The pair walked to Town Hall train station and caught the train to Central. The appellant once again asked the complainant for money. She continued her journey to Bankstown, and en route $1,300 transferred into her account at 20:15. The complainant had also given the appellant her bank card, and told him the PIN, which he wrote down. The complainant had also given the appellant all the cash she had with her, some $500.
The complainant caught the train to Bankstown and had dinner with her aunt (with whom she was staying) that night. She said nothing to her aunt.
At 2:53am on 2 August 2017, the appellant withdrew $1,500 from the complainant's account. This occurred at an ATM in Haymarket. He used the card and PIN number she had given him.
The pair met again outside Hungry Jacks in Burwood at around 10am on Wednesday 2 August 2017. He continued to ask for money from her, but she had no more money to give him and said that she did not want to borrow from anyone.
Two days later, the complainant called a friend, met him, and said she had been raped. On Tuesday 8 August 2017, she attended Parramatta Police Station and made a complaint.
The complainant's bank statements show "internet deposits" of $2,000 and $1,300 on 1 August 2017 at 15:58 and 20:15. That corresponds with internet transfers made by the complainant from some other account into her St George "Complete Freedom Student" account. The bank statements also show two "ATM withdrawals" of $2,000 and $1,500 at 16:40 and 02:53, and an "EFTPOS purchase" at 17:31 of $194.25 representing the money paid upon checking in at the hotel.
Although the electronic evidence concerning the financial transactions was abundant and undisputed, no evidence of any telephone calls, text messages or social media communications was tendered throughout the trial.
It was common ground that the complainant and appellant had never previously met. There was no suggestion in the Crown case that the complainant suffered from any cognitive defects, or was afflicted by mental illness or medication or illicit drugs. The Crown case was that she was a young woman who was deceived by a fraudster, who had raped her. The appellant had been arraigned and had pleaded guilty to three counts of dishonestly obtaining property by deception and one count of dishonestly causing financial disadvantage, and not guilty to the two counts of sexual intercourse without consent. Counsel for the appellant acknowledged in her opening not only that he had defrauded her, but also that the two had had sexual intercourse. However the appellant maintained that the intercourse was consensual, and that even if it were not, he reasonably believed that she was consenting.
Following the ruling giving rise to this appeal, the complainant gave evidence for a further two days. There was also evidence from the friend in whom she confided, and some police evidence. Given the narrowness of the grounds of appeal, none of this need be summarised. The jury saw the entirety of Exhibit 6, which was the edited footage of the ERISP, excluding the questions and answers the subject of the ruling. The jury retired and, after some three days of consideration, returned guilty verdicts on the sexual intercourse counts. The District Court sentenced the appellant to an aggregate sentence of imprisonment for 6 years and 6 months, with a non-parole period of 4 years and 5 months. A notice of appeal was filed some 16 months after the jury's verdict, and 13 months after sentence was imposed.

The ERISP

The appellant participated in an electronically recorded interview on 6 December 2017. The interview lasted 1 hour and 45 minutes. At trial, the Crown sought to play to the jury, and tender the transcript of, the entirety of that interview, subject to a small number of passages reflecting agreed edits. The defence sought, and the Crown opposed, the inclusion of parts or all of questions and answers 186, 241-243 and 458-460.
The three passages of the interview which were sought to be excluded are underlined in the following extracts, which include some surrounding questions and answers for context. It was not suggested that s 293 prevented the tender of the questions and answers in this Court (notwithstanding the literal meaning of s 293), and in Jackmain, Bathurst CJ at [15]-[16] and I at [92] (with at least one of whom the other members of the Court agreed at [231]-[232], [238]-[239] and [240]), this Court confirmed as much.
The first passage was as follows: "Q178 What can you tell me about that? A The pillow was up, up on her head. She was holding on, as, in the pillow, as because she turned around, so she had, she said she wanted the pillow on her stomach. That's what she meant by, holding onto a pillow. Then, I'm sorry, because, sorry, I don't know whether to go, I mean, this is her - - - Q179 Just to put some, something into perspective for you, Detective Hall and I do, we, we deal with these sorts of matters on, on a daily basis. So if you're worried about offending either of us with anything that you say, don't worry about that. This is something that we hear quite often. A OK. Q180 There will be absolutely no offence. What we want is just ….. What's happened - - - A OK. Q181 - - - and I really don't want you to feel like you're going to offend either myself or Detective Hall here - - - A All right. Q182 - - - um, by what you're going to say, because I - - - A OK. Q183 - - - I can tell you now we're not going to take any kind of offence. There's absolutely no judgement, we're, our job is to be impartial and to - - - A OK. Q184 - - - find out what, what the truth is. A All right. Q185 OK? A Sorry about this - - - Q186 No, that's OK. A - - - but as I said, it's not her first encounter. She, she said she started very young, OK. And what she's gone through. And as I said to her very clearly, I am not, I made it very clear, if, if we spend time together, we are together, I am not good in bed. OK. So, and then the other thing is, because, sorry about this, but - - - Q187 Yeah. A - - - she said, she's a bit loose, OK. So kind of, ah, she turn around, so to prop herself up she used the pillow. That is the only thing I know about the pillow. She wasn't, like, how, how would you saying, ah, holding a pillow as to, from it, the pillow wasn't between us."
The second passage was as follows: "Q239 You said before, and, and sorry to be so crass - - - A No. Q240 - - - but you said before about the pillow and, and the fact that, that you describe Miss xxxxxxxx as, or she, I'm not sure who described who as, as being loose. A Be, I, as I said, I'm not good in bed. I wasn't really, sorry, erect, erected. So kind of, ah, it's difficult, OK. So she said, OK, um, pillow in the, on her stomach, would [b]e better for her to lift herself up on her back. Q241 And when you say, loose, what do you mean by that? A As I said, it's not her first time, she started young, so we did talk about that. Because she said she started very young. so she kind of, ah, sorry about this, but - - - Q242 You don't need to - - - A - - - you know, as - - - Q243 - - - apologise ….. A - - - I was surprised because, as a young lady, she's not that tight. Sorry to say that, but - - - Q244 So I put it to you that the end of, at the end of the en, encounter, you said to her, your lower parts are very tight. That made me come very fast. A As I said, tight as in because she cross her leg, and because she turn over. In that sense. Q245 How do you mean she crossed her legs? A Um, sorry the, you know, at the bottom part of the leg, where she kind of, ah, you know - - - Q246 ….. A - - - to kind of, sorry about this, but, you know, to cross, she, the bottom part of her feet, she kind of, ah, like crossed over to kind of, ah, keep the thighs together."
The third passage was as follows: "Q458 Was there any talk of sex before you got to the hotel room? A I ask her, if something happen, she said, Oh, you know, wait and see. She didn't say on that night, she didn't say that night it will happen. But she said, you know, of course it's not, she said, it's not her first time - - - Q459 Mmm. A - - - she start, well, we did talk about, you know, her so-called encounters before she started very young, things like that. Q460 You did speak about that? A We did talk about that. Q461 OK. Um, and then you, you got into the room, and you said before, just, I'm just trying to clarify this. Um, sorry if it's hard for you to - - - A No, no - - - "

Section 293 and the parties' submissions

Section 293 relevantly provides as follows: "293 Admissibility of evidence relating to sexual experience (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies - (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply - (a) if the evidence - (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, ... 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. (5) A witness must not be asked - (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. ..."
The offences for which the appellant stood trial were prescribed sexual offences to which s 293 applied (see Criminal Procedure Act, s 3). Speaking generally, the section requires a distinction to be drawn between evidence relating to a complainant's "sexual reputation" within the meaning of s 293(2), which can never be admissible, and evidence falling within s 293(3), which is inadmissible unless one of the exceptions in s 293(4) applies and its probative value outweighs any distress, humiliation or embarrassment to the complainant. The operation of s 293(3) is complicated. Read literally, it applies to a wide range of evidence, including evidence which implies that the complainant may have taken part in any sexual activity or may not have taken part in any sexual activity. For example, if the prohibition is read literally, it is difficult to see how any complainant can be asked, "Do you have any children?" even if that is relevant to an issue. As will be seen below, an appreciation of the overreach of the literal meaning of s 293(3) informs the construction of that subsection and the approach to the operation of the exceptions. But for present purposes, it suffices to note that if the exception in s 293(4)(a) is invoked, then it is necessary to establish both limbs in subparagraphs (i) and (ii) and further for the probative value of the evidence to outweigh the distress, humiliation or embarrassment to the complainant.
The appellant originally accepted that leave under r 4 was required, but withdrew that concession when the fact that s 293(4)(a)(ii) had been mentioned in his written submissions to the primary judge was drawn to the attention of counsel (who had not appeared at trial). The appellant said that the primary judge's reasons disclosed error, and maintained in accordance with what Bathurst CJ had said in Jackmain at [17] that s 293 was not intended to preclude evidence concerning the acts about which complaint is made, even though that might be its effect on a literal reading. It was acknowledged that the questions and answers fell within s 293(3), but submitted that s 293(4)(a)(i) and (ii) applied.
The application also extended to cross-examination, which is governed by s 293(5) and (6). Counsel's application was a limited one. Defence counsel had made her position clear: "Essentially, just to make very clear, that it is not, I'm not seeking to cross-examine her about any prior relationship, just the fact that they did talk about previous relations, including the sexual - which included references to the sexual aspects of those relationships. ... [T]he defence submission is that this shows that this young woman confided in him in a quite intimate way during the course of the day."
Anticipating a submission advanced by the Crown in this appeal, counsel continued: "[T]his was not two strangers that were talking about non-personal matters, they were talking about highly personal matters, so personal that it got to the point where she was talking about those very intimate sexual aspects of her life which the defence do not want to cross-examine her or suggest that because she's had sex previously she wanted to have sex on this occasion. That's certainly not what the defence want to do and certainly, that is clearly the mischief that the legislation is in place to defeat, but in this case it simply [is a] reference to the fact that there were conversations of a highly personal nature, that she confided in him and felt sufficiently comfortable with him that she would discuss those matters."
Before the trial judge, the Crown identified the distinction which is reflected in the questions and answers which went to the jury and those which did not. The solicitor advocate said: "There's no issue that the reference that the accused gives in his ERISP about the complainant being loose should be before the jury, because his version is that that's why certain positions were used as opposed to others. The complainant says that when he finished, he said in essence, 'I was quick before you were tight'. In relation to the 293 aspect, the Crown's position is that yes, the reference to the word 'loose' and the descriptions of positions being used because of that reference should be before the jury and it must be before the jury, because it's the accused's version of what happened. But it's only the conversations relating to her purported prior sexual experience that your Honour would be dealing with here."
The primary judge reserved and delivered oral reasons the following morning. His Honour treated the application as being brought under s 293(2) and (3). He said that "those provisions are strict and mandatory". In fact, s 293(2) is an unqualified prohibition, while s 293(3) is subject to the qualified exceptions in s 293(4). His Honour addressed s 293(6). His Honour recited s 293(4)(b), but not (4)(a). His Honour noted that he was "sympathetic to the view that the conversations as alleged in the accused's ERISP would be relevant to the issue as to whether it was reasonable for the offender to believe that she was consenting." However, his Honour then restated that s 293(2) and (3) were mandatory prohibitions. His Honour rejected the submission that there was a subsisting relationship between complainant and accused, and reiterated that "the conversation, as referred to in the record of interview, is also inadmissible as it would fall within s 293(2)".
The Crown's response to this appeal comprised the following elements: 1. to contend that leave should be refused pursuant to r 4 of the Criminal Appeal Rules; 2. to contend that the rejected material was not relevant; 3. to contend that it fell within s 293(3) and neither limb (i) nor (ii) of s 293(4)(a) was applicable; 4. to contend that the probative value was outweighed by the distress, humiliation and embarrassment to the complainant, and 5. to maintain that there was no miscarriage of justice and the proviso should be applied.
The most convenient course is to address each of those issues in turn.

Leave under r 4

The appellant's written submissions conceded that the subject evidence was not admissible at trial on the basis advanced before the trial judge, namely, s 293(4)(b). That formed the basis for the Crown's submission that leave should not be granted.
A deal of what happened at trial is not clearly disclosed by the materials in this Court. Evidently there was some considerable to-ing and fro-ing between Crown and accused leading to the excision of parts of the ERISP. The transcript provided to the judge at the end of the first day of the trial had been highlighted in three colours to identify the parties' contentions. The details are not apparent from the materials made available to this Court. What is known is that either on the first day of the trial or shortly before then, short submissions dated 29 April 2019 were provided in support of an application that A186 and Q240-A243 be admitted. The submission stated "that the evidence falls within the exception of Sections 293(4)(a)(ii) and (b) of the CPA" [sic]. At the conclusion of the first day, counsel for the accused addressed briefly, in elaboration of the written submissions, and clarifying that the issue concerned the underlined passages reproduced above. There were no written submissions from the Crown.
It is difficult to understand the isolated reference in the appellant's submissions at trial to s 293(4)(a)(ii). That is but one of the two limbs, both of which must be satisfied, in order for the disapplication of the prohibition in s 293(3) to be achieved by reason of s 293(4)(a). But no reference in oral submissions was made to s 293(4)(a). For that reason, presumably, the trial judge made no reference to s 293(4)(a). However, it was common ground in this Court that the relevant exclusion in s 293(4) was paragraph (a), not paragraph (b).
There is perhaps a nice question, albeit one which is exceptionally arid, whether r 4 applies. On the one hand, the relevant paragraph of s 293(4) had been identified in terms in written submissions, and there was no suggestion of those submissions being withdrawn or renounced. The appellant ultimately maintained that was sufficient. On the other hand, the reference to s 293(4)(a)(ii) was deficient on its face, and undeveloped orally or in writing, and no complaint was made after the ruling was delivered that his Honour had failed to deal with paragraph (a). The Crown maintained that leave under r 4 was required because s 293(4)(a) had not been "properly" invoked.
Ultimately, when pressed in oral submissions, the Crown acknowledged that "if your Honours found that there were merit in the application, I don't oppose [on the basis of] r 4 in that event". That was an appropriate stance to adopt. I favour the view that s 293(4)(a) had been invoked, on the basis that subparagraph (4)(a)(ii) had been invoked in terms, and not withdrawn, and that necessarily carried with it the contention that subparagraph (4)(a)(i) was also made out. However, there is no need to resolve whether in the final analysis r 4 applied. In light of the Crown's concession, this is a case where, to the extent that leave is required, it should be granted.

Relevance

The Crown submitted that s 293 only applied to exclude relevant evidence, and the questions and answers were not relevant.
True it is that s 293 only makes relevant evidence inadmissible. In R v Morgan (1993) 30 NSWLR 543 at 544, a decision preceding the enactment of the Evidence Act, Gleeson CJ said that "the evidence in question is, by hypothesis, relevant and of probative value (otherwise it would be inadmissible without the need for any statutory exclusion)." In HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [24], his Honour said in connection with s 409B: "Both at common law, and now under s 56 of the Evidence Act, evidence which is not relevant is inadmissible. One only comes to consider and, if necessary, apply a rule of exclusion, such as that contained in s 409B, if the evidence in question is relevant. If it were irrelevant, that would be the end of the matter. There would be no occasion to consider s 409B."
The Crown contended that the questions and answers in issue were all directed to statements that the complainant had engaged in sexual activity from an early age, and that this bore upon whether the sexual intercourse in August 2017 was consensual. That reasoning was said to be flawed, and the statements were for that reason irrelevant. The Crown's position was put as follows: "In a sense they are all question[s], answers, which have as their relevance that because the complainant told the applicant that she'd had sexual intercourse at a young age that would support the fact that she was more likely to have consented in this particular case. If I can just make one brief point about relevance before I turn to 4(a) because relevance and the way in which something is probative is something that feeds through the provision as a whole and it is, of course, the starting threshold consideration. And that is that it was established in Burton, "That the willingness of a person (whether male or female) to participate in sexual activity with one person does not, and cannot be taken to, connote willingness to participate in sexual activity with another." The Crown does submit that that same reasoning applies here, just as willingness of one person to have sexual intercourse with another doesn't connote willingness to participate in sexual intercourse for the same reason an asserted preparedness of the complainant to tell the applicant about her sexual history, that she'd first had sexual intercourse when she was young doesn't make it any more likely that she consented to sexual intercourse with the applicant on this occasion. I'll now turn to s 293 and 293(4)(a)."
The reference to Burton was to this Court's judgment in R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at [69].
I do not accept the Crown submission. The digital file on a DVD containing the audio-visual recording of the ERISP is a single document. It is a "record of information" and in particular it is "anything from which sounds, images or writings can be reproduced with or without the aid of anything else", within the meaning of "document" in the Dictionary of the Evidence Act 1995 (NSW). The Crown sought to tender that document. It was hearsay. However, it included admissions made by the appellant, and to that extent it was not only relevant but also the hearsay rule did not apply: Evidence Act, s 81(1). In particular, it contained admissions that the appellant had had sexual intercourse with the complainant.
The ERISP also contained statements which were to an extent exculpatory, and other statements which placed the admissions in context. Section 81(2) is a further exception to the hearsay rule applicable to statements that are not themselves admissions. It provides that the hearsay rule does not apply to evidence of a previous statement: "(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission."
In Nguyen v The Queen [2020] HCA 23; 94 ALJR 686 at [58], Edelman J explained that: "Section 81(2), like the common law that preceded it, has a primary underlying concern for the need for context for admissions. The context contemplated by s 81(2) is broad. For instance, in its application to video records of interview, it will often be reasonably necessary to see and hear self-serving statements by an accused person made in the same interview in order to consider why the accused person made admissions in that interview even if they might seem to concern matters unconnected to the self-serving statements. The expression of the self-serving statements might also reveal matters that could shape the precise meaning, purpose and weight of the admission such as the general demeanour of the accused person during the interview or how the accused person responded to the interviewer. For these reasons, it should be extremely rare for any part of the same interview to be treated as falling outside the necessary context for admissions contained elsewhere in that interview. Quite properly, this was not suggested to be the case in this appeal."
I respectfully agree. The force of those considerations may be assessed by reference to the answers to questions 241 and 458.
Question 241 was "And when you say, loose, what do you mean by that?" The police officer questioning the appellant proceeded on the basis that it was desirable to clarify his earlier answers, responding to the previous question concerning the complainant's looseness, a term which he had introduced. That is a powerful consideration favouring the view that reference to the explanation in answer 241 is reasonably necessary in order to understand the appellant's earlier answers.
The Crown maintained that it was clear from other answers that "looseness" was to be understood as a reference to the complainant's anatomy, rather than her morality. I agree; this is plain from questions and answers 187 and 473-478 (it is unnecessary for present purposes to reproduce them). But the fact that other questions and answers support that conclusion does not make question and answers 241-243 irrelevant. Indeed, they are the best evidence of what was understood by "looseness" in the previous question.
Question 458 asked, "Was there any talk of sex before you got to the hotel room?" The effect of the ruling was that a partial and, to be blunt about it, misleading version of the appellant's answer was put to the jury. The jury was given the question and the first two sentences of the answer, which were to the effect that the complainant had said something sexual might, but would not necessarily, happen. But the jury was not permitted to see or hear the rest of the appellant's answer, which was that the complainant had confirmed that this was not the first time she had participated in sexual intercourse.
The entirety of the answer was relevant. Further, the result of the approach adopted in the ruling, which permitted only a partial answer to go to the jury, results in a distortion of what was said. (I should add that based on my viewing of Exhibit 6, it would have been far from obvious to the jury that the third sentence of the appellant's answer had been edited out.)
The appellant's evidence that he and the complainant had spoken about sexually intimate details of her history, and his history, was relevant not for any reason identified in Burton. It was relevant because, as the defence had indicated on the first day of the trial, it provided contextual background to the sexual acts the appellant then described.

The operation of s 293(4)(a)

It is clear that the entirety of the evidence excluded engages s 293(3), and the appellant did not press any submission to the contrary. The question is whether the exception in s 293(4)(a) is made out.
It is established that the exclusions from the prohibition in s 293(4) are to be construed liberally. That reflects the width of the prohibition in s 293(3), and the fact that even if subparagraphs (i) and (ii) of paragraph (a) are made out, it is still necessary to establish that the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. As Campbell JA said, with the agreement of Latham and Harrison JJ, in Taylor v The Queen (2009) 78 NSWLR 198; [2009] NSWCCA 180 at [36]: "There is ample authority in this Court that the categories of exception defined by s 409B(3) should be construed broadly when the material in question is otherwise relevant to the issues of the case: R v McGarvey (1987) 10 NSWLR 632 at 634C-D, per Hunt J (with whom Wood J and Allen J agreed); Henning v The Queen (at 70-1) per Gleeson CJ, Campbell J and Mathews J; Dimian v The Queen (1995) 83 A Crim R 358 at 365 per Hunt CJ at CL (with whom Smart J and Simpson J agreed). In R v Morgan (at 551D-E) Mahoney JA (with whom Gleeson CJ and Sully J agreed) identified the reason for so doing as being that the court should 'adopt a construction which favours the liberty of the accused'."
Harrison J added at [89] that: "As a general proposition, there is an unsettling air of unreality about requiring a jury to give some consideration to the importance of any set of facts, such as a relationship between an accused person and a complainant in a sexual assault trial, without proper and appropriate access to all of the admissible details of it. In simple terms, the jury should be given the full picture if there is any chance that being given only some of it might lead to a misunderstanding of precisely what that picture was. What the jury does thereafter with that information is of course strictly a matter for the jury concerned. A jury might reason that the appellant and ABC had some form of financial interdependence from the evidence that was admitted at the trial. That was certainly an important part of their relationship but it was not the full picture. In my view, knowledge of less than all of the admissible facts about the relationship between ABC and the appellant in the particular circumstances of this case was potentially, if not actually, misleading. The exception that is contained in s 293(4)(b) appears to anticipate or to recognise this without doing any disservice to the very important safeguards and protections that it enshrines. The acts or omissions that led the jury in this case to decide it without the full picture also led to a miscarriage of justice."
In Morgan, Gleeson CJ had said at 544: "Since the evidence in question is, by hypothesis, relevant and of probative value (otherwise it would be inadmissible without the need for any statutory exclusion), no narrow approach should be taken to that part of the statutory provision which permits its reception".
The questions and answers sought to be admitted into evidence are to the effect that the complainant told the appellant that she had had sexual relations in previous years. On the view I take, all of the evidence falls into the same category (that is also how the matter was treated by the Crown at trial). The essence of the disputed answers is that the appellant said that the complainant told him "it's not her first encounter" (answer 186), "she started very young" (answer 186), "it's not her first time" (answers 241 and 458) and "we did talk about, you know, her so-called encounters before she started very young" (answer 459). His evidence is of statements made by her on the afternoon of 1 August 2017 that she had engaged in sexual activity years beforehand. Fairly understood in context, they are statements about the complainant's sexual experience as it was in the hours or minutes preceding the allegations giving rise to the two counts of sexual intercourse without consent. That is to say, the answers of the appellant constitute "evidence … of the complainant's sexual experience ... at or about the time of the commission of the alleged prescribed sexual offence".
Further, the evidence is of statements made by the complainant as part of the circumstances commencing with their meeting in the cathedral followed soon after by their walking to the hotel, reserving a room and checking in together before acts of sexual intercourse took place. The evidence of the complainant's statements is "evidence ... of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed". The Crown said that the conversation occurred in the hours before intercourse, and concerned sexual activity years earlier (written submissions, paragraph 58). It is the timing of the conversation, not the events relayed, which matters, and it is plain that this falls within "at or about the time of the commission" of the alleged offence, as well as being part of a connected series of circumstances.
Accordingly, the evidence falls within the ordinary meanings of each of subparagraphs (i) and (ii) of s 293(4)(a). It is unnecessary to address the dicta concerning the interrelationship between subparagraphs (i) and (ii) in GEH v The Queen [2012] NSWCCA 150; 228 A Crim R 32 at [13] and Jackmain at [193], as to which the parties exchanged submissions.
The difficulty with the Crown submission to the contrary is that it turns on the fact that the words sustain a number of characterisations. The words "it's not her first encounter" and "she started very young" do connote something about the complainant's sexual conduct years before. However, read fairly, they also connote something about her sexual experience as it was in August 2017, as was noted in GEH at [64]. The question arising on s 293(4)(a) is whether the evidence answers the description in each of subparagraphs (i) and (ii). It is not to the point to contend that the evidence also connotes something which falls outside of those subparagraphs.

Probative value outweighing distress, humiliation or embarrassment

It is necessary further for the probative value of the evidence to outweigh the distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. This is another aspect of the provision which has been regarded as problematic: see Mahoney JA's criticisms in Morgan at 552-553. I bear in mind that the complainant would be asked whether she told the appellant that she said the words, "it's not her first encounter", "she started very young", "it's not her first time" and so on (presumably in Mandarin). What her answer would be is not clear from the record.
The probative value of the parts of the ERISP is far from negligible; indeed, I regard it as high. That is for three reasons. First, it is to be recalled that the decision on admissibility must be made in advance of the complainant giving evidence. It cannot be postponed to a time after her evidence has been given and tested; indeed, it would have been unclear on the morning of the second day of the trial whether it was controversial that she had said those words or anything to like effect. Secondly, if the disputed questions and answers are excluded, there is less evidence of the talk about sexual matters shortly before the sexual acts, in relation to which consent and the appellant's reasonable belief as to consent were in issue. Thirdly, if those parts are excluded, as occurred at trial, the jury will receive a distorted account of the appellant's answer to the question whether there had been talk of sex before the pair got to the hotel room.
It may reasonably be inferred that there will be some distress, humiliation or embarrassment to the complainant if the evidence is admitted. However, it is to be borne in mind that one must put to one side the embarrassment at being exposed as a naïve or foolish or gullible person who was defrauded of a substantial sum of money by a man she had only just met, for whom she booked a hotel room and which she entered with him, shortly thereafter to engage in sexual intercourse. The relevant distress, humiliation or embarrassment is the distress, humiliation or embarrassment over and above that which will inevitably occur. Mahoney JA (with whom Gleeson CJ and Sully J agreed) wrote to substantially the same effect in Morgan at 553E-G.
Further, the identity of the complainant cannot be revealed by reason of statute. Her evidence was given by an AVL link, and so she did not have to give her evidence in the presence of the appellant, or his counsel, or the jury. In any event, the court was closed for the duration of her evidence. All these matters would tend to diminish the distress, humiliation and embarrassment she would suffer.
I conclude that all aspects of s 293(4)(a) are satisfied, and the disputed questions and answers on the ERISP should have been admitted.

Miscarriage and proviso

If the evidence had been admitted, the jury would have heard and been able to evaluate a complete answer given by the appellant. Further, the jury would have been able to see the complainant's response to the limited cross-examination proposed.
The Crown contended that no substantial miscarriage of justice had taken place. It was said, based on the whole of the evidence at trial, that the jury had believed the complainant to the criminal standard, and that elsewhere it was apparent that she would have denied any suggestion that she had said the things the appellant said in the disputed answers to his ERISP. The Crown pointed to the following answers to carefully worded questions asked later in the trial: "Q. You talked about a whole range of things, not just church and travel, didn't you? You talked about past relationships and other matters didn't you? A. INTERPRETER: No." and "Q: Somewhere between the restaurant - well, during the course of the day, not being precise, but during those conversations, but at some point that the accused said to you, made it very clear to you that he understood, because of Australian law, that if a woman says no, he would definitely stop because - to sex, because that is illegal? A. INTERPRETER: We had never talk about sex in our conversation."
The Crown said there was no basis to infer that the jury's assessment of the complainant's credibility could have been affected by the excluded evidence.
I disagree. Relevant evidence was kept from the jury. It tended to support the appellant's defence. The result was that the complainant was never confronted with the entirety of what he said she told him before the pair had sexual relations, and the jury never saw how she reacted to that. It is impossible to say with what demeanour, with what pauses, with what tone of voice the complainant would have responded. (Indeed, it is difficult to judge the force of the answers reproduced above from the transcript alone, and I note that neither side invited this Court to view the recording of the complainant's evidence, which to be clear is not contained in the appeal books.)
In the language of the majority in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15], "the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him". This is not a case for the application of the proviso. Beech-Jones J reasoned to the same effect, obiter, in GEH at [85] (the other members of the Court not expressing a concluded view at [19] and [75]).

Orders

I propose the following orders:
Grant leave to appeal, including to the extent necessary leave under r 4 of the Criminal Appeal Rules.
Appeal allowed.
Quash the guilty verdicts on counts 4 and 5 of the indictment returned on 9 May 2019, and quash the aggregate sentence imposed by the District Court on 20 September 2019.
Order that the matter be remitted to the District Court for retrial, with the proceedings being listed for directions before the District Court at Sydney on Friday 9 April 2021 at 9.30am.
WALTON J: I agree with the orders proposed by Leeming JA. Further, I agree with his Honour's reasons for judgment. I note, in that respect, my observations accord with his Honour's observations as expressed at [52] of his judgment.
ADAMSON J: I have had the benefit of reading the reasons of Leeming JA in draft. I do not agree with the orders proposed by his Honour. However, I gratefully adopt his Honour's description of the background, the appellant's recorded interview (the ERISP) and the identification of those parts of the ERISP which were excluded. I also adopt his Honour's summary of the parties' submissions and the reasons of the trial judge. I agree with Leeming JA that the appropriate material for this Court to consider, on the question whether the grounds have been made out, is the Crown Case Statement and the ERISP since the question of admissibility was determined pre-trial.
I note Leeming JA's observations on s 293 of the Criminal Procedure Act 1986 (NSW). Whatever be the difficulties of applying s 293, the courts of New South Wales are obliged to apply it in terms. The reasons for the provision, and its statutory predecessors, are well known. As this Court (Gleeson CJ, Carruthers and Badgery-Parker JJ) said in R v White (1989) 18 NSWLR 332 at 340: "The evident purpose of the legislation is to limit the circumstances in which complainants in sexual assault cases will have to endure having what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court."
The concern of the legislature was that victims of sexual offences would not come forward and report offences or be prepared to give evidence in the prosecution case against those charged with such offences if when doing so they would be required to subject their private and intimate lives to the public glare of open justice.
In M v R (1993) 67 A Crim R 549, this Court (Allen J, Gleeson CJ and Meagher JA agreeing), at 556-557, referred to what had been said in Parliament when the original legislation was being debated as follows: "In his speech the Premier said: 'Finally, the bill will prohibit irrelevant questioning of sexual assault victims about their prior sexual behaviour. This provision is based upon the premise that a person who seeks sexual intercourse with another should not be able to rely on scandal or gossip about the other person or on rumour or knowledge of that other person's sexual behaviour with others, as a basis of assuming consent to intercourse. The law should not - and under this legislation will not - allow the accused to subject the victim of the sexual assault to humiliating and irrelevant questioning about details of previous sexual conduct and attitudes. At the present time many victims believe that the humiliation they would face as a witness in court outweighs all other considerations. I have every confidence that this provision will play a significant part in encouraging victims to report offences, and ensure that such victims will be treated justly and humanely by the judicial system' (Hansard, No 41, p 4761). I construe the section on the understanding that the principal deficiency in the pre-existing law, as administered by the courts, was understood by Parliament to be as stated by the Premier and that the principal purpose of s 409B was to remedy that deficiency. … In following the Premier the Attorney-General said: 'Given this historical background it is not surprising that authorities agree that rape is one of the most underreported crimes. Humiliation, fear of stigma, judgmental treatment by authorities, fear of family difficulties and disruptions, and drawn out legal proceedings are some of the reasons why women do not report sexual violence ... The deficiency of the present law is that a victim may be cross-examined about sexual behaviour with other persons, possibly years before, in circumstances quite irrelevant to the case in question. For example, if an intruder breaks into a house and sexually assaults a married woman whose husband happens to be away on holidays, it is surely ridiculous to allow the woman giving evidence against the alleged rapist to be questioned about whether, for example, she had intercourse with anybody other than her husband before she got married. The fear of this type of cross-examination has been a potent cause of reluctance on the part of women to report sexual assault. The old law and practice, therefore, has actually been a cause of crime. It has discouraged the reporting of crime, and encouraged criminals in the knowledge that they could escape prosecution. The old law was thoroughly bad and the Government intends to change it extensively'."
The question of the balance between the rights of an accused person (which are largely protected by the common law and its subsequent statutory codification) and the public interest in the reporting and prosecution of crimes, which requires that victims be willing to testify against their alleged assailants, is a matter for the legislature and not for the courts.
My adoption of the narrative parts of Leeming JA's reasons enables me to be briefer than would otherwise be the case. For consistency, I, too, propose to refer to the applicant as the appellant, although, in my view, he requires leave to raise the issue which is the subject of the proposed appeal under rule 4 of the Criminal Appeal Rules (1952 SI2).
The first question is whether s 293(4)(a) was invoked by the appellant in his pre-trial objection. Although there is some ambiguity in the basis of the objection, I am not persuaded that s 293(4)(a) was relied on since there was no reference at all to s 293(4)(a)(i) and no substantive submissions based on s 293(4)(a). The brief reference to s 293(4)(a)(ii) in the appellant's written submissions at trial appeared to go nowhere.
The submissions which the appellant makes to this Court are as follows: 1. Part of the impugned evidence (ERISP Q241-243) was admissible because it related to the sexual act which was the subject of the charge and does not fall within s 293; and 2. The remainder of the impugned evidence fell within the exception in s 293(4)(a) because the evidence related to the complainant's sexual experience or lack thereof at the time of the commission of the alleged offence (s 293(4)(a)(i)); and is of events that are alleged to form part of a connected set of circumstances in which the alleged offence was committed (s 293(4)(a)(ii)).
Neither of these submissions was made to the trial judge. Accordingly, leave under rule 4 of the Criminal Appeal Rules is required: Bin Sulaeman v R [2013] NSWCCA 283 at [121]-[122] (R A Hulme J, Beazley P and Bellew J agreeing); JWM v R [2014] NSWCCA 248; 245 A Crim R 538 at [69] (Hall J, R A Hulme J and Davies JJ agreeing). In order to determine whether leave under rule 4 ought be granted, it is necessary to have regard to the substance of the objection which is now taken to the evidence adduced at trial.
A review of what was admitted and what was excluded from the appellant's ERISP (which is evident from Leeming JA's judgment) indicates that a distinction was drawn at trial between answers given by the appellant that the complainant was "loose" (in an anatomical sense) on the one hand and answers relating to when she "started" on the other. The Crown in this Court explained that the Crown did not redact questions and answers which belonged to the former category because they fell squarely within what was permissible under s 293, namely, evidence about the acts about which the complaint was made: Jackmain v R [2020] NSWCCA 150; 381 ALR 140 at [17] (Bathurst CJ). The Crown sought the deletion of questions and answers in the latter category on the basis that they fell within the prohibition in s 293(3).
The appellant contended that the underlined portions of Q241-Q243 were wrongly excluded because the appellant's answers related to the sexual act that was subject to the charge and therefore fell within the exception in s 293(4)(a) to the prohibition in s 293.
The Crown contended that these portions related to the appellant's assertion that this was not the complainant's first sexual encounter because "she started young". It submitted that the evidence that the appellant was "surprised" that she was "not all that tight" fell into the same category. Read in this context, the Crown submitted that the statements fell within the prohibitions in s 293(3)(a) or (b) since they conveyed (and were intended to convey) that the complainant had had previous sexual experiences and/or had previously engaged in sexual activities. Accordingly, the only basis on which the evidence was admissible would be if, relevantly, the appellant were able to establish that the evidence fell within the exception in s 293(4)(a) and overcame the threshold as to probative value in that section.
It appeared, ultimately, to be common ground that the prohibition in s 293(3) applied to the questions and answers that were excluded. Unless one of the exceptions to the prohibition in s 293 is established, the evidence is inadmissible: see Taylor v R (2009) 78 NSWLR 198; [2009] NSWCCA 180 at [47] (Campbell JA, Latham and Harrison JJ agreeing).
The real issue was whether the exception in s 293(4)(a) applied. It also appeared to be common ground that the trial judge had not addressed the only possible exception, s 293(4)(a). As referred to above, the appellant contended that his Honour had failed to deal with it although it had been put (albeit tangentially) and the Crown submitted that his Honour had not dealt with it because it had not been raised. Thus, the trial judge's reasons need not be considered in any substantial way as they do not shed any light on the issues raised in the appeal, as his Honour did not purport to deal with the exception in s 293(4)(a) at all.
It is plain from the wording of s 293(4)(a) that both limbs ((i) and (ii)) need to be made out in order to establish the exception. The first question that arises is whether the evidence sought to be redacted by the Crown related to sexual activity or sexual experience.
The distinction is of some importance for the reasons given by Harrison J in GEH v R [2012] NSWCCA 150; 228 A Crim R 32 as follows: "[63] Was the evidence in question also evidence of KN's sexual experience or lack of it, or sexual activity or lack of it taken part in by the complainant, at or about the time of the commission of the alleged sexual offence by the appellant? Importantly, the words in the subparagraph are 'taken part in by the complainant'. They serve on one view to distinguish between sexual experience and sexual activity. The former rather encompasses a state acquired over time, whether long or short, but which refers to the condition of having had experience in sexual matters, as opposed to a single or isolated sexual experience, or a number of them, at some particular time. The inquiry brought forward by the words "sexual experience or lack of sexual experience" appears to be related to whether the complainant was or was not "sexually experienced". In contrast, the latter suggests a discrete sexual activity or lack of it that occurred, or in which the complainant took part or did not take part, at or about the time of the commission of the alleged offence by the appellant, but not at some other time. [64] The distinction may be critical, because any complainant's sexual experience, in the historical sense, will necessarily be his or her sexual experience 'at or about' the relevant time. In other words, a complainant's sexual experience will be his or her state of being at or about the time of the commission of any alleged prescribed sexual offence because that state of sexual experience or lack of sexual experience will in an ambulatory fashion always exist at the relevant time. On the contrary, evidence of particular sexual activity may clearly be either activity at or about the time of the commission of the alleged offence or it may not. The words 'taken part in by the complainant' clearly relate only to sexual activity or lack of sexual activity, and not to the complainant's sexual experience or lack of sexual experience, because of the commas surrounding the words "or of sexual activity or lack of sexual activity taken part in by the complainant". In this way, evidence that relates to a complainant's general state of sexual experience may more readily satisfy the temporal test in subs (4)(a)(i) than evidence relating to singular acts of sexual activity or lack of it in which the complainant is alleged to have taken part. [65] That distinction may be less significant having regard to the words used in s 293(4)(a)(ii). That is because that subparagraph speaks in terms of the evidence being 'of events that are alleged to form part of a connected set of circumstances'. In that way the historical experience of the complainant appears to be restricted or limited to sexual experience that is also capable of being described as or at least restricted or related to an event."
The line between sexual experience and sexual activity is not necessarily a particularly well-defined one. However, I regard the evidence sought to be included by the appellant as constituting evidence of the complainant's sexual activity rather than of her experience. The emphasis on starting very young is apt to refer to a historical event, being her first sexual experience, rather than to her general state of sexual experience. The evidence does not permit any conclusion to be drawn that there was any subsequent sexual activity after the first sexual experience, which was said to have occurred when the complainant was "young" (in the context of her being 21-years old at the time of the alleged offending). Nor does the evidence permit any inference to be drawn that the complainant was of an age where she could consent to such activity or, if she was, whether she did consent. As far as the evidence went, what the complainant was alleged to have said to the appellant was consistent with her having been the victim of unlawful sexual intercourse at the age of, say, nine. Although it was also consistent with her having had regular sexual intercourse since, say, the age of 16, there was nothing in the appellant's account of what the complainant said which indicated that she had had any intervening sexual activity between the first experience and the time at which the conversation was alleged to have occurred.
I respectfully differ from Leeming JA in this respect as his Honour considered that the effect of the evidence was "to the effect that the complainant told the appellant that she had had sexual relations in previous years". I do not discern any necessary continuity or repetition of sexual activity in the words which the appellant attributed to the complainant. In my view, they are capable of referring to a single incident some years before.
Because I regard the communications as concerning an alleged conversation about the complainant's prior sexual activity (some years before) rather than sexual experience, the temporal element in s 293(4)(a)(ii) is not made out and therefore the exception is not made out. Leeming JA's conclusion that the evidence related to the complainant's "sexual experience" (which led his Honour to consider that the temporal element in s 293(a)(i) was made out) and my conclusion that the evidence related to the complainant's "sexual activity" (which leads me to consider that the temporal element in s 293(a)(i) was not made out) highlights the importance of the classification, as adverted to by Harrison J in [64] of GEH v R.
In deference to the submissions of the parties, and the views expressed by Leeming JA in his Honour's reasons, it is also necessary to consider s 293(4)(a)(ii), although, for the reasons given above, I do not consider the exception to be made out.
As Harrison J said in GEH at [35], "the disparate facts in every case require novel assessments of what is meant by … 'alleged to form part of a connected set of circumstances' in (4)(a)(ii)."
The issue of "connection" within the meaning of s 293(4)(a)(ii) was addressed by this Court in R v White, which considered s 409B (a statutory predecessor to s 293). In that case, the complainant had met the accused at the beach, having met him casually twice before. They had a discussion in which she told him that she had recently split up with her boyfriend who had found her in bed with another man, who happened to be a body builder. The Court considered the evidence to be of marginal relevance and said, at 339-340: "The only basis on which the cross-examination might have been permissible at common law would have been that what was relevant was not the fact of the complainant's intercourse with the body-builder, rather, the fact that she was discussing the matter with the appellant on the beach and over coffee shortly before the intercourse with the appellant took place. If it were relevant, its relevance would have been to the issue of consent. For reasons that have already been explained there was no separate issue of any practical importance concerning the appellant's belief as to her consent: cf R v McGarvey (aka Garner) (1987) 10 NSWLR 632. On the bare facts known to the learned trial judge as to the general nature of the evidence the most that can be said is that it was of possible, and marginal, relevance. Depending, perhaps, on how the subject came up in conversation, and the manner in which it was discussed, it is possible that the fact that the complainant was prepared to disclose to, and discuss with, the appellant her sexual encounter with the body-builder could have been regarded by the jury as an expression of her willingness to have a similar encounter with the appellant. … It was submitted on behalf on the appellant that the evidence fell within par (a) of s 409B(3). It has already been observed that it could not be suggested, and was not argued, that the sexual activity with the body-builder occurred at or about the time of the alleged offence by the appellant or that it formed part of a connected set of circumstances in which the alleged offence by the appellant was committed. The point argued was a different one, and was in some respects closely related to the considerations discussed above as to the relevance of the evidence according to common law principles. It was acknowledged that what was of potential significance was not the fact of the intercourse with the body-builder but the fact that the complainant was discussing it with the appellant. This discussion itself, so the argument ran, constituted sexual activity which satisfied the conditions specified in s 409B(3)(a)(i) and s 409B(3)(a)(ii)." [Emphasis added.]
The submission that the discussion itself amounted to sexual activity was rejected. So too, as appears from the passage highlighted above, would a submission that it formed part of a "connected set of circumstances" (had it been made) have been rejected. I am persuaded by the Crown that similar considerations arise here. Accordingly, the discussion about the earlier activity was not "connected" with the alleged offence.
In these circumstances, I do not consider it to be necessary to express a view about whether the probative value of the evidence would outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of its admissions. This question is, by reason of my view as set out above, hypothetical in that it does not arise.
As this Court has heard full argument about the admissibility of the redacted parts of the ERISP, I would grant leave under rule 4 of the Criminal Appeal Rules, although the exception under s 293(4)(a) was not raised by the appellant in the pre-trial voir dire.

Further matters

I note for completeness that Leeming JA has pointed to some "distortion" of what was said by reason of the editing of the ERISP. It is a not uncommon problem when editing ERISPs that an assessment has to be made as to what to include and what to exclude (to implement rulings on evidence) but so as not to provide a distorted version. Generally speaking, the parties co-operate with a view to producing a seamless transcript and recording so that the jury is not made aware of the editing. Although there may have been a distortion in the present case as a result of the editing, this does not warrant this Court's intervention since it was something the parties arrived at to implement his Honour's ruling. The potential distortion is a separate question from the admissibility of the excluded portions and need not be further addressed.

Proposed orders

I propose the following orders: 1. Grant leave to appeal pursuant to rule 4 of the Criminal Appeal Rules to raise grounds 1 and 2 and otherwise, to the extent necessary. 2. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2023

(2020) 102 NSWLR 847

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