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1. Thomas Earle was tried by jury on an indictment containing four counts of sexual offences alleged to have been committed against a female friend with whom he had previously been in an intimate relationship.

2. On the second day of the trial, an issue arose as to whether counsel for the accused, Mr Sabharwal, should be permitted to cross-examine the complainant as to prior consensual sexual activity between her and the accused. After hearing from the parties, I granted leave for that to occur, reserving my reasons. These are my reasons for making that ruling.

3. It is appropriate to explain how the issue arose. Mr Sabharwal told the jury during his opening address that there was no dispute that the sexual acts alleged by the complainant took place. The issues in the trial were whether the complainant consented to those acts and, if not, whether the accused either knew she was not consenting or was reckless as to whether she was consenting. The accused’s case was that he honestly believed the complainant was consenting the whole time.

4. During Mr Sabharwal’s cross-examination of the complainant, it became apparent that his line of questioning was heading towards the topic of consensual sexual activity between her and the accused on previous occasions during the time when they were dating. I sent the jury out so that I could ascertain whether that line of questioning was permissible.

5. The topic of the sexual activities of a complainant in sexual offence proceedings is addressed in s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), which provides: 76 General immunity of evidence of complainant’s sexual activities (1) Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding. (2) Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.

6. In the absence of the jury, the parties informed me that s 76(2) has been construed to remove the requirement for leave in respect of any sexual activity between the complainant and the accused in a sexual assault case, including sexual activity on occasions other than the occasion of the events giving rise to the charges in the trial. On that understanding, the accused did not seek leave under s 76(1) and the prosecutor did not take any objection to the cross-examination as it came.

7. Uninformed by authority, I would have construed s 76(2) differently. The general position is stated in s 76(1): evidence of the complainant’s sexual activities is not admissible without leave. The clear purpose of s 76(1) is to protect complainants against the trauma and humiliation of having the sexual assault proceeding become, as such proceedings historically had become, a forum for a broad investigation of their sexual activities, with all the misconceived assumptions that entailed. The protection is achieved by mandating judicial focus on the purpose of such broad-ranging humiliation. The requirement for leave is not a mere formality; the discretion to grant leave is closely constrained by s 78 in terms that draw attention to some of the historical misconceptions about rape.

8. Section 76(2) disapplies the requirement for leave in respect of certain (“specific”) evidence. The clear purpose of qualifying the general protection in subsection (1) is to draw the line at which the status quo was to be preserved; that is, to specify the point beyond which Parliament accepted the humiliation entailed in a public exploration of sexual activities of the complainant to be a necessary incident of the prosecution of sexual offences.

9. The evidence as to which leave is not required is evidence of “the specific sexual activities of the complainant with an accused person in the sexual offence proceeding” (emphasis added). It does not make sense to me that Parliament would have removed the protection of the requirement for leave in respect of any sexual activity on any other occasion between the complainant and the accused. The requirement for leave requires counsel and the trial judge to interrogate the utility of the kind of endless humiliation to which complainants used to be subjected in rape trials. It shifted the paradigm, restricting such evidence to that which had substantial relevance as determined on a disciplined basis (in accordance with the guiding principles stated in s 78).

10. I accept that, on a bare analysis of the structure of the words and putting aside what Parliament may be taken to have intended, it could be argued that there is some ambiguity in the phrase, “the specific sexual activities of the complainant with an accused person in the sexual offence proceeding”. As a matter of syntax, the words “in the sexual offence proceeding” could qualify “the specific sexual activities” (meaning leave is not required to lead evidence of the specific sexual activities in the sexual offence proceeding). However, the words “in the sexual offence proceeding” could alternatively be read to qualify “an accused person” (meaning leave is not required to lead evidence of the complainant’s sexual activities with the accused).

11. In other words, as a matter of syntax, the section could be construed to remove the requirement for leave to cross-examine the complainant about sexual activities (including any consensual sexual activity) forming part of what used to be commonly referred to as the res gestae, meaning the events constituting or immediately surrounding the offence. That would make sense and would be consistent with my reading of the section. Alternatively, it could be construed to remove the requirement for leave to cross-examine the complainant about sexual activity with the accused on any other occasion. That is the meaning I was informed has been accepted in the Australian Capital Territory (ACT).

12. Uninformed by authority, I would have preferred the first interpretation without hesitation, construing the section to remove the requirement for leave in relation to the specific sexual activities forming part of the res gestae. On that construction, contrary to the position accepted by the parties, the section would prohibit cross-examination of the complainant without leave on any sexual activity with the accused outside the scope of those events but would not preclude comprehensive exploration of the events surrounding the central allegations against an accused including, for example, any consensual sexual activity that formed part of those events.

13. However, there is authority to the contrary (considered below). It was not necessary to determine the correctness of that line of authority in these proceedings because I was satisfied in the present case that the accused should have leave to cross-examine the complainant about her previous consensual sexual activity with him. That is because his case was that he honestly believed, based on the subtle and unspoken manner of communication of consent in their prior sexual activities, that the complainant was consenting on the night of the incident the subject of the counts on the indictment.

14. As already noted, the discretion to grant leave under s 76(1) is constrained by s 78. That section provides: 78 Decision to give leave under s 76 (1) The court must not give leave under section 76 unless satisfied that the evidence— (a) has substantial relevance to the facts in issue; or (b) is a proper matter for cross-examination about credit. (2) Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition. (3) Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence. (4) If the court gives leave under section 76, it must give written reasons for its decision. (5) In this section: proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 2011, section 102 does not apply to the evidence because of that Act, section 103 (Exception—cross‑examination as to credibility).

15. The complainant’s evidence was that the sexual activity began while she was asleep and that, when she awoke, she had a “freeze response”. It was apparent from the cross-examination that the accused’s evidence would raise a factual contest as to whether, in that circumstance and based on the manner of communication of consent in their prior sexual activities, the accused might have honestly believed that she was consenting, even if in fact she was not. I was persuaded on that basis that the evidence would have substantial relevance to a fact in issue in the trial and accordingly that leave under s 76(2) should be granted.

16. On the view I took, a written application for leave ought to have been filed. I considered it appropriate in the circumstances (with the complainant mid-cross-examination and a jury waiting for the trial to continue) to dispense with that procedural requirement. In future, the better course would be to insist on a written application so as to have clear specification of the parameters of the proposed evidence. Where practicable, that is the course that should be adopted if this issue arises in another case.

17. That remark of course assumes the correctness of my construction of the section. As already noted, the case being one in which a grant of leave was appropriate, it was not necessary to determine that question. It is preferable to leave that to a day when it is necessary to determine the issue and the parties are in a position to argue it fully. I do, however, wish to make a number of brief observations about the authorities that hold that leave is not required in a case such as the present, where it is sought to cross-examine the complainant on consensual sexual activity with the accused on a separate occasion which forms no part of the events immediately surrounding the alleged offences.

18. The line of authority relied upon by the parties begins with the decision of Penfold J in R v Fernando [2009] ACTSC 137; 238 FLR 64. The prosecution case there was that the accused got into the complainant’s bed in the early hours of the morning and attempted to have sexual intercourse with her while she was asleep.

19. The accused had filed an application seeking leave under what was then s 51(1) of the Evidence (Miscellaneous Provisions) Act (that section was relocated and renumbered as s 76 in relevantly identical terms).

20. The evidence the accused sought leave to lead was recorded in the judgment at [13]- [14] as follows: The complainant and C were neighbours, living in adjoining apartments in a block in Belconnen. They had a casual sexual relationship. C had met Mr Fernando at a garage sale on 15 June 2008, a Sunday. It is not in dispute that Mr Fernando, the complainant and C spent some time in each other’s company, in the complainant’s apartment, in C’s apartment and possibly elsewhere, during the afternoon and evening of the Sunday, and that they drank alcohol and used cannabis during that period. Nor does the complainant dispute that at some stage during that period she and C engaged in consensual sex. The complainant says that later, apparently in the early hours of Monday morning, while she was asleep, Mr Fernando got into her bed and attempted to have sexual intercourse with her. When she woke up and told him to get out, he did so. Mr Fernando claims that the consensual sex between the complainant and C took place in his presence and that, while it was happening, the complainant invited him to join in, which he was not able to do because of an inability to get an erection.

21. Penfold J took the view that the evidence was relevant. With respect, it is difficult to see how that could be so. As disclosed in the passage set out above, the prosecution case was that the accused came into the complainant’s bed in the early hours of the morning while she was asleep and attempted to have sexual intercourse with her. In circumstances where the accused claimed to have no recollection of those events, Penfold J held at [24] that evidence from the accused of his belief that the complainant was “willing to have sex with him” earlier in the day “would if accepted clearly be relevant to what inferences could be drawn about his beliefs later in the day”. That reflects a misconception about consent. Any indication of consent earlier in the day was irrelevant both to actual consent and to the accused’s belief as to consent on a later occasion, particularly at a time when the complainant was asleep.

22. Penfold J found support for that conclusion in the decisions of the High Court of Australia in Gregory v The Queen [1983] HCA 24; 151 CLR 566 and Bull v The Queen [2000] HCA 24; 201 CLR 443 and the decision of the New South Wales Court of Criminal Appeal in R v Morgan (1993) 30 NSWLR 543. With respect, there is a danger in determining an issue of relevance in any particular trial by reference to earlier decided cases.

23. In Gregory, the High Court held that the trial judge should have admitted evidence of the complainant’s consensual sexual intercourse with several other men before and after the acts of intercourse giving rise to the charges against the three accused. In the passage relied upon by Penfold J, the Court (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ) said (at 571) that such acts “may be probative of the fact that the complainant consented to have intercourse with the accused”. That is not a statement of principle. It is the conclusion that Court reached on the question of relevance in the circumstances of that case.

24. In Morgan, the New South Wales Court of Criminal Appeal (Gleeson CJ, Mahoney and Sully JJ) held that the trial judge was wrong to exclude cross-examination about the fact that, following the alleged sexual assault by the accused, the complainant had consensual sexual intercourse with her boyfriend and said nothing of the alleged sexual assault. Mahoney J rejected a submission by the Crown prosecutor that “these days” no inference could be drawn as to the occurrence of forced sexual intercourse from the fact that, within an hour or two thereafter, a woman such as the complainant had had sexual intercourse with her boyfriend. His Honour said (at 549): The suggestion was that that might well occur. Again, whether this is so, depends upon what is the human experience as to this matter or what the jury would conclude to be such. It is a matter on which minds may differ. Women may have a view different from men; different women and different men may differ from others.

25. The Court appears to have accepted the evidence of subsequent consensual intercourse with the boyfriend as being relevant to the issue of consent with a different man. It is by no means clear that the accused sought to rely on the evidence in that way; the submission was more nuanced. In any event, again, that was the conclusion that Court reached on the question of relevance in the circumstances of that case. It did not inform the relevance of the evidence considered by Penfold J in Fernando.

26. The decision in Bull concerned the admissibility of a conversation between the complainant and one of the accused as a result of which she attended the premises where she said she was later sexually assaulted. The conversation was not relied upon to prove any prior act that might inform the issue of her consent to the acts charged. The reasoning in support of the Court’s unanimous conclusion that evidence of the conversation should have been admitted was far removed from the circumstances in Fernando. With respect, that decision also did not support the relevance of the evidence considered by Penfold J in that case.

27. In any event, having concluded that the evidence was relevant (failing which it was inadmissible regardless of any specific provision), her Honour had to consider whether its admission was nonetheless precluded (except with leave) by the application what was then s 51 of the Evidence (Miscellaneous Provisions) Act (now s 76). Her Honour relevantly held: 32. Section 51(2) excludes the operation of s 51(1) “evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceedings.” I read the reference to “in the sexual offence proceedings” as part of the description of the relevant accused person; that is, the subsection applied only in relation to any accused person in the proceeding concerned, not to any accused person in general. 33. It is possible that the provision was intended simply to overcome a mischievous reading of s 51(1) to the effect that it might prevent the tendering of evidence of the alleged offending behaviour. However, the words of the provision, “specific sexual activities ... in the sexual offence proceeding” are not apt to describe the specific sexual activity charged against the accused person in the proceeding. Furthermore, the Explanatory Statement for the Evidence (Miscellaneous Provisions) Amendment Bill 2003 which inserted the current s 51 in the Miscellaneous Provisions Act (while misrepresenting in one respect the operation of s 51 in relation to evidence of specific sexual activities), says that s 51 “is a restatement of subsection 76G(2) of the Evidence Act”. Section 76G(2) of the Evidence Act 1971 (ACT) expressly applied only to limit the admissibility of “sexual experience of the complainant with a person other than the accused person”.

28. I do not agree with that construction of the section. Her Honour’s analysis by reference to the alternative “mischievous reading” of the section posits a false dichotomy based on an overly narrow reading of the term “the specific sexual activities of the complainant with an accused person in the sexual offence proceeding” (emphasis added). In its ordinary meaning, that expression is not confined to the unlawful acts alleged against the accused. The term “specific sexual activities” could be understood to extend to all sexual acts forming part of the res gestae. The section has work to do if understood to refer to evidence of any sexual acts, including consensual acts and uncharged acts, forming part of the res gestae. It can sensibly be read as making clear that such evidence would not fall within the exclusion in s 76(1) and so would not require leave whereas evidence of sexual activity between the complainant and the accused on a different occasion would require leave.

29. It is not clear whether Penfold J’s conclusion as to the meaning of the statute in Fernando was a necessary part of the decision. The evidence the subject of the ruling was an invitation to have sex. Her Honour approached the issue on the basis that, if the invitation amounted to “specific sexual activities of the complainant with” the accused, it was excluded from the requirement for leave: at [34].

30. However, Penfold J returned to the issue the following year in R v CH and JW [2010] ACTSC 75. In that case, after hearing full argument on the issue, her Honour reaffirmed the “tentative view” expressed in Fernando “that s 51(2) excludes evidence of prior sexual activities with the accused from the restrictions imposed by s 51(1)”: at [36]. Her Honour reached that conclusion in part by reference to the contents of a report prepared by the Model Criminal Code Officers Committee (MCCOC) of the Standing Committee of Attorneys-General published in May 1999 where the phrase “specific sexual activities of a complainant” was used in contradistinction to reputation evidence, which was universally regarded as inadmissible. A comparison between draft provisions offered in the Model Code and the provisions of s 51 fortified her Honour’s view that all sexual activity between the complainant and the accused, no matter when, was carved out of the requirement for leave. To the extent that the ACT provisions differed from the Model provisions, her Honour appears to have attributed that to unfortunate drafting: at [41].

31. It thus appears to have been assumed that the use of the word “specific” in s 76(2) was an inadvertence and that it has no work to do in that section. What does not appear to have been considered is why, having regard to the context in which the legislation was introduced and its clear purpose in reducing the traumatic experience of complainants in sexual assault trials, Parliament might have intended that all prior sexual activity between a complainant and an accused should be carved out of the additional protection of the mandated judicial scrutiny involved in the requirement for leave. Reliance on the report of the MCCOC called for caution. That Committee was established by the Standing Committee of Attorneys-General to advance the development of a national model criminal code for all Australian jurisdictions. It is difficult to see why it should be assumed that any departure from the wording of the Model Code provisions on the part of parliamentary drafters in the Territory should be swept aside as unfortunate drafting.

32. Penfold J applied her analysis in Fernando again in R v NO [2017] ACTSC 372, where an accused sought to adduce evidence of previous examples of consensual “rough sex” with the complainant, the acts alleged in the indictment also involving rough treatment. Her Honour there expressed the view that, if her conclusion in Fernando was not correct, and leave was required, the question was “to some extent the same, since under s 53(1) of the EMP Act, a finding of relevance (or rather, substantial relevance) is one of the two bases on which leave may be given for the purposes of s 51”: at [11]. With respect, the requirement to find relevance should not be elided with the requirement to find substantial relevance. The whole point of the provision is to impose a higher threshold, to address the vice of humiliating and traumatic cross-examination that is barely relevant to the facts in issue. The guiding principles set out in what is now s 78 direct attention in that context to some of the misconceptions that used to inform that determination thereby contributing to the unnecessary trauma suffered by complainants in sexual assault proceedings.

33. Finally, in R v NX [2019] ACTSC 55, Mossop J relied on the decisions of Penfold J in Fernando and NO to conclude that leave was not necessary to cross-examine the complainant about whether the accused had filmed them involved in fellatio on occasions other than the occasion the subject of the charges. His Honour noted that the parties in that case had failed to draw his attention to the decision of CH and JW but said that, had they done so, he would have followed that decision and concluded that leave was not necessary. His Honour noted at [4] that he was invited by the Crown in that case to adopt the course adopted by Penfold J in NO of making an order granting leave in case, on a proper construction of the section, an order was necessary. With respect, that was a sensible course to adopt.

34. However, in my view, the correctness of the interpretation of s 76(2) that leave is not required to cross-examine a complainant about any prior sexual activity with the accused may be doubted and warrants revisiting in an appropriate case.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Grace Hartley Date: 31 May 2023