Cook (a pseudonym) v R

The trial judge's ruling on the Queensland evidence

1. The trial judge heard the application on 30 July 2019 and gave reasons on the same day.
2. As referred to above, the applicant's trial counsel set out, in detailed written submissions, topics of cross-examination relating to the Queensland offences. He also contended that the cross-examination was relevant to the relationship between the complainant and the applicant, as well as to her memory of certain dates, the opportunity to complain to others about the subject offences and her knowledge of the criminal justice system (garnered from her experience of the Queensland offences). The applicant's counsel accepted that s 293(4)(a) did not apply but contended that s 293(4)(b) applied.
3. In his reasons for rulings, his Honour said: "11 What counsel for the accused seeks leave to do is to cross-examine the complainant about the fact of the reporting of the previous sexual assaults in Queensland and the fact of the Queensland proceedings - not to descend into any fine detail of the sexual offending itself. 12 The basis of the cross‑examination is to seek to establish that the complainant had more than ample opportunity to make complaint about this accused in the ongoing investigation and prosecution of the Queensland offender, but did not. 13 Furthermore, the anticipated cross-examination would seek to raise the improbability of this accused committing the offences with which he has been charged, given that very many of them are said to have occurred in or around the time of the Queensland proceedings. 14 At face value the intended cross-examination would be of significance to the defence case, subject to a matter to which I shall return. To exclude that evidence would lead to an unfair distortion of the facts. The anticipated evidence would directly bear on the objective likelihood of the offences having been committed. 15 The Crown concedes, properly, that, prima facie, for the reasons advanced in voir dire exhibit 2, the proposed cross-examination would be relevant. I would go further and say it would be significantly probative. … 18 The proposed cross-examination, however, would not have given rise to this complainant having 'to endure what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court'. 19 The proposed cross-examination would only have indirectly referred to such matters. But the Court is not given a broad discretion based on the interests of justice on this question of admissibility. 20 Section 293 does not permit the foreshadowed cross-examination taking place because of the prohibition in subs (2) and (3). The evidence sought to be adduced by the cross-examination can only be advanced if it can be brought within one of the exceptions contained in subs (4). 21 Counsel for the accused has expressly disavowed relying upon subs (4)(a). The Crown Prosecutor joins with him in submitting that that subsection is not engaged. Both experienced advocates in part at least rely on the decision in Adams v The Queen [2018] NSWCCA 303. 22 Rather, the subsection that counsel for the accused relied upon was subs (4)(b). The Crown Prosecutor has contended that that section is not engaged. Attention was directed to Taylor v The Queen [2009] NSWCCA 180 in which consideration was given to the meaning of the term "relationship". Reference to the dicta in that judgment supports the proposition contended for by the Crown Prosecutor. The nature of the expression "relationship" in that subsection is not captured by what passes between the complainant and another person other than the accused. 23 In the result, therefore, the complainant cannot be cross-examined as extensively as, in my view, the interests of justice require. Parliament has spoken and has deliberately not given the Court any wide discretion. I cannot help but think, however, that Parliament did not intend the result which has occurred in this case. This, of course, does not mean that the counsel for the accused cannot modify his proposed cross-examination so as to delete the context in which the Queensland proceedings occurred. Some of his proposed cross-examination will necessarily have to fall by the wayside but there is still scope for cross‑examination of the complainant, provided the nature of the proceedings is not disclosed."

The way in which the ruling was applied at the trial

1. After the ruling was made but before the complainant was cross-examined, the applicant's trial counsel sought to confirm the limits of permissible cross-examination in light of his Honour's ruling. The following exchange ensued: "HOARE: Lastly, and I've spoken to my friend about this. I'm conscious of your Honour's 293 ruling. I'm attempting to put the Queensland legal proceedings into some sort of context. HIS HONOUR: Yes. HOARE: My initial view is that I would be asking her to confirm that she had been assaulted by somebody in Queensland. I'm not going to give a name or connect it to any member of the family. HIS HONOUR: Or, the type of assault. HOARE: I'll be suggesting that there were a series of physical assaults upon her. Now, that's not incorrect, per se. HIS HONOUR: That seems suitable. Mr Crown? CROWN PROSECUTOR: We've spoken about this, I don't object. HIS HONOUR: Y es. I wouldn't regard that as contravening the ruling, Mr Hoare. CROWN PROSECUTOR: I can tell your Honour, I've spoken with the complainant about that, and she's aware that-- HIS HONOUR: Good. She's forewarned. CROWN PROSECUTOR: She's aware that questions may be asked of her, describing events as assaults, and she's aware that your Honour has ruled that questions can't be asked, and answers can't be given that describe the nature of those assaults, and the sexual aspect of them, so I expect that she-- HIS HONOUR: She should be instructed she is not to volunteer. CROWN PROSECUTOR: I'm quite confident that she won't be volunteering anything of that sort, and I've made that clear to her, as well."
2. The complainant was cross-examined and gave evidence that some of the offending was happening when she was "in the midst of … legal proceedings in relation to the Queensland matter" which were "very important to [her] at the time".

Consideration

1. The Crown accepted that the exceptions under s 293(4)(a) and (b) to the prohibition in s 293(3) did not involve the exercise of discretion since the question whether the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission arises only if either (a) or (b) has been made out. In this respect, the Crown submitted that a ruling under s 293(3) and (4) was analogous to one under s 97 of the Evidence Act: namely, a ruling for which there was only one correct answer and which did not involve the exercise of discretion: The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The Crown contended that this Court could determine the question of admissibility under s 293(4)(a) and (b) and that it ought do so for the purposes of determining ground 3 and, accordingly, whether a new trial ought be ordered.
2. Mr Game contended that, if this Court were simply to remit the matter to the District Court for a re-trial, then, in the absence of a determination of the admissibility of the evidence raised by ground 3, the applicant would be bound by the trial judge's ruling by reason of s 130A of the Criminal Procedure Act. He submitted that the trial judge's ruling was erroneous at least on the basis that his Honour's reasons failed to address the gravamen of the applicant's argument on s 293(4)(b).
3. Mr Game submitted that there were several courses which this Court could take in resolving ground 3, including the following: 1. this Court could decide that the trial judge's judgment was in error in that it failed to engage with the submission put in relation to s 293(4)(a) and therefore set it aside and remit the question of the admissibility of the Queensland evidence to the District Court to be determined by another trial judge; 2. this Court could determine for itself that the evidence did not fall within the exceptions in s 293(4)(a) and (b) and decide, on that basis, not to order a re-trial (rather than grant a stay since the same considerations would be relevant to the question whether a re-trial ought be granted) and, instead, order an acquittal; 3. if the Court decided that the evidence fell within at least one of the exceptions in s 4 ((a) or (b)), it could remit to the District Court the discretionary matter (whether the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission).
4. Mr Game further submitted that the way in which the ruling was applied was also erroneous. As referred to above, the trial was conducted on the basis that the complainant had been "assaulted" by the Queensland offender, but not (as was the fact) that she had been sexually assaulted by the Queensland offender. He submitted that this was an "unfair distortion of the facts" because the jury may have assumed that they were not sexual assaults, which was positively misleading. Although he accepted that it was open to the applicant at trial to make the point about late complaint concerning the subject offences, the point would have been much more powerful if the jury had been allowed to be told that the Queensland offences were sexual offences and were of the same type as those which it was alleged that the applicant committed on her at around the time of the Queensland proceedings. Mr Game submitted that the jury might have considered the delay in complaining about the subject offences was explicable on the basis that, contrary to the fact, the jury thought that the complainant had not been sexually assaulted before (because they assumed that the Queensland offences, though assaults, were not sexual assaults). Mr Game relied on each of these matters in support of the submission that the Court ought not order a new trial.
5. It was common ground that the trial judge had not addressed the applicant's argument under s 293(4)(b). By referring to Taylor v R (2009) 78 NSWLR 198; [2009] NSWCCA 180, his Honour misapprehended the submission made on behalf of the applicant that the relationship of confider (the complainant) and confidant (the applicant) was the relevant relationship. It is plain from the reasons that his Honour considered that the applicant was suggesting that the relevant relationship was the one between the complainant and the Queensland offender.
6. In these circumstances, where the applicant's submission was not addressed by the trial judge, it would be open to this Court to remit the question of the admissibility of the Queensland evidence to the District Court. In that event, if the evidence was found to be inadmissible, the District Court could determine whether the proceedings ought be stayed. If the evidence was found to be admissible, the trial could proceed in the District Court, subject to an application by the Crown under s 5F(3A) of the Criminal Appeal Act.
7. However, the parties have joined issue in this Court about the applicability of s 293(4)(a) (which was not argued before his Honour) and (b). There has been full argument on the question. I accept the Crown's submission that there can only ever be one answer (albeit one in respect of which reasonable minds might differ) to the question whether evidence excluded under s 293(3) falls within the exceptions in s 293(4). In these circumstances, I am persuaded that it would be preferable for this Court to decide whether either of s 293(4)(a) or (b) applies in the present case and, if so, whether, on that basis, an order for re-trial ought not be made and, instead, an acquittal ought be ordered.
8. Before addressing whether s 293(4)(a) and (b) apply, I note that this Court has held that these provisions apply to what is disclosed or implied by evidence and are not affected by the purpose of the tender or the use which is to be made of the evidence: M v R (1993) 67 A Crim R 549 at 554-555 (Allen J, Gleeson CJ and Meagher JA agreeing).

Section 293(4)(a)(i): at or about the time

1. Mr Game argued in this Court that the complainant's sexual activity and experience (relating to the Queensland offences) took place "at or about the time of the commission of the [alleged offences committed by the applicant]" and that the evidence was "of events that are alleged to form part of a connected set of circumstances in which [the alleged offences were committed by the applicant]". He submitted that there was a continuum of conduct that meant that the two sets of offences were not isolated from each other. He relied on what was submitted to be an overlap between the "aftermath" of the Queensland offences (being the committal hearing and the prosecution of the Queensland offender for such offences) and the commencement of the alleged offences by the applicant.
2. Mr Game further submitted that this Court has found in GEH v R [2012] NSWCCA 150 and Adams v R [2018] NSWCCA 303 that "sexual experience" in s 293(4)(a) includes not just the underlying experience but the recounting of, or describing, it. Thus, he argued that because the complainant described to the applicant what the Queensland offender had done to her and gave evidence about it, her "sexual experience" arising from the Queensland offences was coterminous with the subject offences committed by the applicant.
3. In GEH v R, the appellant appealed against the rejection of evidence that after the complainant, KN, had complained about the ongoing sexual assaults by the appellant, she moved in with her school friend, AH, and AH's father, JH. KN had told AH that she was in a relationship with JH. The appellant wanted to cross-examine the complainant about what she had said to AH.
4. The timing of the relevant events in GEH v R was as follows. The appellant's last alleged sexual assault upon KN occurred between 18 October 1992 and 10 November 1992. KN complained on 10 November 1992. She lived with AH's family between 24 March 1993 and October 1993. While the complainant was living with JH, after AH had moved out, KN told AH and others that she had been in a sexual relationship with JH.
5. At [66] of GEH v R, Harrison J said: "In the present case the evidence in question is directly related to a particular 'sexual activity taken part in by the complainant' and not to her state of sexual experience generally. The evidence is limited to the complainant's alleged sexual activity with [JH]. The question is whether it is evidence of something that occurred 'at or about the time of the commission of the alleged prescribed sexual offence'. In my opinion it is not. It did not take place 'at the time'. It could only have taken place 'at about the time'. It did not take place at about the time of the alleged sexual offences or either of them in the sense that it took place some three or so months later."
6. Beech-Jones J said, of present relevance: "81 In my view the real difficulty for the appellant concerns s 293(4)(a)(ii). It refers to evidence 'of events'. If the evidence is broken down into its two components and each is considered against s 293(4)(a)(ii), then it travels nowhere. With the second component, evidence that KN did not have sex with [JH] is clearly not evidence of an 'event' connected to the 'set of circumstances' in which the offence occurred. With the first component, evidence that KN in effect said she had sex with [JH] has the same problem. Further it would not be of much assistance to the appellant without the second component. 82 The adoption of a more favourable approach for the appellant of considering the evidence in combination does not assist either. With such an approach the only relevant 'event' it could be considered evidence 'of' is the making of a false accusation against an older male in whose house KN was living. The making of that false statement, if that is what occurred, does not 'form part of a connected set of circumstances' in which the subject offences took place. It is not part of the narrative of events that lead to the offence nor is it part of the immediate aftermath. It does not provide a piece of any jigsaw puzzle concerning the 'set of circumstance'" in which the offence was said to have been committed. 83 … the making of an allegedly false accusation against another older male might have impacted on KN's credit but it did not reveal an 'event' that was so connected to the circumstances of the offence that it bore on the objective likelihood of the offence having occurred. 84 For the sake of completeness I should add that evidence that a complainant has given an inconsistent version of the events the subject of the offence would in my view fall within s 293(4). The evidence of the uttering of the statement would clearly be evidence 'of' sexual experience or lack of it at the time of the alleged offence as well as evidence 'of' events that are connected to the set of circumstances that give rise to the offence, being the offence itself. The same reasoning applies to evidence of complaint made by a victim of a sexual offence."
7. I do not regard GEH v R as supporting Mr Game's submission. The Court in GEH v R drew a distinction between the underlying "event" (the sexual activity) and the reporting of it. The underlying event (the alleged sexual activity between KN and JH) could not have taken place before KN moved in to live with JH and AH. This occurred four months after the alleged offending. Thus, the temporal connection was held insufficient to make out the exception in s 293(4)(a)(i) for which GEH contended.
8. The observation made by Beech-Jones J in [84] related only to the complainant's version of the events the subject of the offence, that is, the offence charged. His Honour ought not be taken to have said that the uttering of a statement about other sexual activity or sexual experience renders that activity or experience contemporaneous with the statement for the purposes of s 293(4).
9. In Adams v R, the applicant complained that evidence had been wrongly rejected. He sought to adduce evidence of previous (false) complaints of sexual assault which the complainant had made in the period leading up to the subject offence, including only days beforehand. Each of the judges who comprised this Court (Hoeben CJ at CL, Campbell and N Adams JJ) was persuaded that that evidence was evidence 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, "about the time" of the commission of the subject offence. It is important to note that the complaints did not relate to past sexual activity, but rather to sexual activity which was said (by the complainant) to be contemporaneous with the complaints.
10. In Adams v R, there was the relevant connection in time between the experience or activity (or lack thereof, given that they were said to be false complaints) and the commission of the subject offence.
11. In Adams v R the contemporaneous complaints of sexual activity were said to be false, whereas in the present case, the complaints related to actual (admitted) sexual activity, which was the subject of subsequent complaint. Adams v R does not provide any support for the proposition that the reporting of sexual activity or sexual experience (or lack thereof), as opposed to the activity or experience (or lack thereof) of itself, is the relevant matter that needs to have been taken part in by the complainant about the time of the commission of the subject offence.
12. In the present case, the chronology outlined above indicates that the last of the Queensland offences committed by the Queensland offender was committed in June 2009. The first of the offences alleged to have been committed by the applicant was committed on 1 January 2011. Thus, there was a period of approximately 18 months between the Queensland offences and the subject offences. I do not consider that this time period falls within the statutory wording, "at or about the time". I do not accept that the "aftermath", being the Queensland proceedings ought to be counted in this reckoning of time.

Section 293(4)(a)(ii): connected set of circumstances

1. Mr Game submitted that the requisite connection arose from the chronology set out above. He relied, in particular, on the circumstance that the complainant was giving evidence of the Queensland offences at the very time the subject offences (which were said to amount to substantially similar conduct) were said to have been committed. He submitted, in writing: "The offences committed by the Queensland offender, and the ensuing criminal justice process, did not occur in isolation of the present case. The timing and nature of the complaint in relation to the Queensland offender, as well as the timing of the committal and trial proceedings, in addition to the appellant's participation in that process, all form part of a connected set of circumstances with the complaint made in the present case. The second limb of section 293(4)(a) was satisfied and the trial judge should have allowed the section 293 application made by trial counsel."
2. Having regard to my conclusion with respect to s 293(4)(a)(i), it is not necessary to address s 293(a)(ii). However, I consider it to be important to record my view that "connected set of circumstances" in s 293(4)(a)(ii) does not include the reporting of the Queensland offences or the administration of justice in Queensland in respect of those offences. If it were otherwise, circumstances could be "connected" merely because proceedings relating to previous circumstances were still on foot.
3. I regard the concession by the parties at first instance that s 293(4)(a) does not apply as having been properly made.

Whether s 293(4)(b) applies

1. In support of the contention that s 293(4)(b) applies, Mr Game submitted that the complainant's evidence of the Queensland offences related to her relationship with the applicant, which existed at the time of the subject offences because she chose to confide in him about the Queensland offences and he, therefore, became a prosecution complaint witness in the Queensland proceedings. Thus, Mr Game argued, the complainant's evidence related to their relationship of confidence, which was existing at the time of the commission of the subject offences. Mr Game submitted in writing: "The disclosure of the Queensland offences to the appellant and the context surrounding the ensuing proceedings were a significant aspect of the relationship between the complainant and the appellant, particularly at the time of the first 12 counts on the indictment given the overlap with the Queensland proceedings."
2. The question of what is required for evidence to "relate to a relationship" between the applicant and the complainant that was existing at the time of the commission of the offences alleged against the applicant was considered in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 (HG). In HG, the appellant (the complainant's mother's de facto) sought to lead expert evidence that the complainant had not been sexually assault by him but rather by the complainant's late father. Gleeson CJ said, at [33]: "As to par (b), questions have arisen in previous cases as to the scope of the term 'relationship'. However, such questions do not require determination in the present case. Assuming there to have been a relevant relationship between the appellant and the complainant, existing at the time of the alleged offences, the evidence disclosing or implying an earlier sexual encounter between the complainant and her natural father (which was the evidence attracting the s 409B(3) exclusion [the statutory predecessor to s 293(4)(b)(ii)]) did not relate to that relationship."
3. I understood Mr Game to seek to distinguish HG from the present case on the basis that, in HG, the evidence sought to be tendered was expert evidence from a psychologist. By contrast, he contended that the evidence in the present case, comprised complaints made by the complainant to the applicant about the Queensland offender which were said to relate to the relationship between the applicant and the complainant, being one in which the complainant reposed trust and confidence in the applicant. Although the words "relate to" are wide in import, I am not persuaded that the disclosure by C to A of offences perpetrated on C by B can be said to "relate to" the relationship between C and A.
4. In these circumstances, I consider the trial judge was correct to rule the evidence of the Queensland offences to be inadmissible. However, I accept that there was an error in his Honour's judgment in, as referred to above, failing to address the argument put by the applicant.

Whether a stay ought be granted

1. Mr Game submitted that the applicant could not have a fair trial without the Queensland evidence because its exclusion deprived him of a chance of an acquittal and of the opportunity of presenting his case fairly. He contended that these submissions could not be answered by the rejoinder that the applicant still had the forensic advantage of cross-examining the complainant about the Queensland offences as long as they were referred to as "assaults" rather than sexual assaults. He submitted that such an approach was misleading and ought not be countenanced.
2. I consider it to be significant that it was the applicant's counsel who suggested that he be permitted to cross-examine the complainant on the basis that the Queensland offences were "assaults", with the implication that they were not sexual assaults. In these circumstances, applicant's counsel preferred to use the Queensland offences to undermine the complainant's credibility, in so far as they had the capacity to do so. This, in itself, was a forensic choice which carried some risk. The jury may have reasoned that the complainant had already had the experience of giving evidence against one perpetrator and, when she was assaulted again, she no longer had the strength to complain about fresh assaults. The jury may also have had regard to the circumstance that her most recent assailant, the applicant, was testifying to her complaints about the earlier assaults and had also provided accommodation for her in the home he shared with her aunt.
3. Because the Queensland evidence was not unequivocally in favour of the applicant (and was, in some respects, against him since it tended to support the complainant's credit) it would have been open to the applicant's counsel to have left the whole area of the Queensland offences alone. The Queensland evidence (which established that the complainant's earlier complaints were true) is to be distinguished from the evidence referred to above in Adams v R and GEH v R, which tended to impugn the complainant's credibility if the complaints were accepted to be false.
4. This Court has held in KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266 at [38] (Basten JA, Harrison and Beech-Jones JJ agreeing), which was confirmed in Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 at [202]-[206] (Leeming JA) that courts retain the power to stay criminal proceedings permanently if the application of a provision such as s 293(3) of the Act warrants it. As referred to above, it was common ground that the question whether to order a new trial in the present case was governed by the same principles which would apply to the question whether it was appropriate to permanently stay the trial.
5. Before a permanent stay is granted, the Court must be satisfied that the prosecution of the application is so inconsistent with the purposes of criminal justice so as to constitute an abuse of process. This requires the identification of a fundamental defect which goes to the root of the trial and which is "of such nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences": Jago v District Court of NSW (1989) 168 CLR 23 at 34 (Mason CJ); [1989] HCA 46.
6. I am not persuaded that the inadmissibility of the Queensland evidence is capable of causing a fundamental defect in the applicant's criminal trial. Although the evidence could be used to advance the applicant's forensic purposes (in support of a case that the complainant would have complained about the applicant's conduct if it had occurred), its benefit to the applicant is not unequivocal. A jury might reason that the applicant, when the complainant told him of what the Queensland offender had done to her, was vulnerable, having already been sexually assaulted as a child and would not complain again, particularly if there was a risk (as well there might have been) that she would again lose her home. The applicant knew that the complainant's natural father did not want her to live with him, that she could no longer live with her maternal aunt because of the Queensland offences and that she was potentially homeless but for his preparedness to house her.
7. Further, the jury might have assessed the complainant's credit as having been fortified by the circumstance that she had previously made a true complaint about the Queensland offences (the truth of which was amply borne out by his pleas of guilty). As referred to above, the present case is unlike Adams v R, where the applicant wanted to adduce evidence of a contemporaneous false complaint to impugn the complainant's credit.
8. While there is force in Mr Game's submission that the jury was misled by being told that the Queensland offences were assaults but not that they were sexual assaults (which may have led them to assume that they were not sexual assaults), this consequence was brought about by the trial judge (and the Crown) permitting the applicant's trial counsel to use the evidence of the Queensland offences in this way. This course preserved a substantial part of the forensic benefit which the applicant sought to derive from the Queensland evidence. All that the applicant has lost by the ruling on the Queensland evidence is the opportunity to fully exploit evidence that may or may not have been forensically beneficial to him in the conduct of this defence.
9. While it is preferable that a jury not be misled by expurgated evidence, there is a distinction between not being told the whole truth and being told something which is untrue. The latter evidence falls into the former category. It is not uncommon that incomplete evidence is adduced in a jury trial to take account of the rules of evidence. In KS v Veitch (No 2), this Court instanced cases where the rules of evidence resulted in the exclusion of otherwise relevant evidence at [66]: "There are other areas of the law where public interests justify exclusion of documents or other information from disclosure in criminal or civil proceedings. Obvious examples are public interest immunity (which may extend to national security or to the identity of police informers) and client legal privilege (which covers communications between client and lawyer). In some jurisdictions protection is given to doctor/patient communications generally (therapeutic privilege), to priest and penitent communications and to those providing information to journalists. Such matters illustrate the acceptance that the interest of the courts in determining proceedings, including criminal proceedings, on all available evidence must in some circumstances be qualified to the protection of other public interests. The protection of sexual assault communications involves a balance of policies which has been determined in a particular way by the State Parliament and in which, subject to constitutional constraints, the court should not interfere."
10. It was necessary for this Court to address the arguments put on behalf of the applicant that the exception in s 293(4)(a) or (b) applied to permit the evidence to be adduced. I am not satisfied that they do. Accordingly, the prohibition in s 293(3) applies. I have determined this question in order to address the applicant's submission that this Court ought not order a re-trial. My reasons ought not be taken as expressing any view on the operation of s 293 otherwise.
11. For these reasons, I am not persuaded that this Court ought not order a new trial.

Proposed orders:

1. For the reasons given above, I propose the following orders: 1. Grant leave pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to argue ground 1. 2. Grant leave to appeal. 3. Allow the appeal on the basis of ground 1. 4. Quash the applicant's convictions ordered following the trial before Colefax SC DCJ. 5. Order that there be a new trial of the applicant. 6. List the matter in the District Court arraignments list on 27 January 2023.
2. BELLEW J: I have had the advantage of reading, in draft, the judgments of Beech-Jones CJ at CL and Adamson J.
3. I agree with Adamson J as to the disposition of ground 1, for the reasons her Honour has given. In view of the conclusion reached in respect of that ground, there is no necessity to consider ground 2.
4. The circumstances giving rise to ground 3 are set out in full in her Honour's judgment. I agree, for the reasons set out by Adamson J, that s 293(4)(a) does not apply. As her Honour has pointed out, there was a gap of approximately 18 months between the commission of the Queensland offences and the commission of subject offending. A gap of that length runs entirely contrary to a conclusion that the two episodes occurred "at" the same time. Further, and even on the widest possible interpretation, the phrase "about the time" cannot encompass two events which are separated by such a period. In my view, it is self-evident in these circumstances that the temporal element imposed by s 293(4)(a)(i) is not met: GEH at [10] per Basten JA.
5. As far as s 293(4)(a)(ii) is concerned Basten JA emphasised in GEH (at [11]) that the relevant event must form part of a set of circumstances in which the alleged offence was committed. In my view, for the reasons set out by Adamson J, the requisite connection is not made out in the present case.
6. For the reasons set out by Adamson J, I also agree that s 293(4)(b) has no application in the circumstances of the present case.
7. I agree with the orders proposed by Adamson J.

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: 15 December 2022