The authorities
35A review of the cases dealing with s 293 or one of its predecessors does not reveal any particularly instructive method for determining the questions thrown up by subparagraphs (4)(a)(i) and (4)(a)(ii). This is not because there are any fundamental disagreements about what the provisions mean, or any inconsistencies in the way they should be applied, but because the disparate facts in every case require novel assessments of what is meant by "at or about the time" in (4)(a)(i) and "alleged to form part of a connected set of circumstances" in (4)(a)(ii). In this way, otherwise clear statements of principle need to be understood and constantly reassessed having regard to the factual matrix in the context of which they have been expressed.
36In R v Morgan, it was held that the complainant having consensual intercourse with her boyfriend an hour or two after allegedly being sexually assaulted by the appellant fell within the terms of the predecessor to s 293. Gleeson CJ said this at 544:
"The nature of the connection that will suffice is left at large by the statute, and the facts and circumstances of each individual case need to be considered. However, it is the subject matter of the legislation that will ordinarily provide the best guide to whether circumstances are relevantly connected. There will necessarily be a temporal relationship between the events in question and the alleged sexual offence; otherwise one would not get past s 409B(3)(a)(i). The relationship to which s 409B(3)(a)(ii) directs attention is circumstantial. The facts that could give rise to such a relationship are widely variable.
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. Here the activities mentioned above all formed aspects of a social occasion in which the appellant, the complainant, her boyfriend, and some others were involved, and the events of that occasion constituted the context in which the alleged offence was committed and against which the complainant's evidence might reasonably be evaluated."
37At 551, Mahoney JA said this:
"What precisely subpar (ii) requires is by no means clear. The
subparagraph requires that the set of circumstances be "connected" but gives no indication of what is an acceptable connection. The offence and the subsequent intercourse are, of course, connected in that, under the general law, the latter could, in the sense to which I have referred, be probative that the offence did not take place. But it is doubtful whether that is the kind of connection to which par (a) refers. As I have said, the section is drafted upon the assumption that the evidence deemed "inadmissible" would otherwise be admissible. Putting aside admissibility on credit alone (a matter to which par (a) does not appear to be primarily directed) the existence of a connection based on probative value would presumably always exist.
Established principles of construction and of justice require that the court adopt a construction which favours the liberty of the accused. Section 409B may result in an accused person, male or female, being imprisoned where otherwise he or she would not be. To this I shall refer."
38In R v M, the appellant sought to establish that the complainant was a "sexual fantasist". By way of contrast to the present case, counsel for the appellant in R v M conceded that the evidence did not fall within one of the exceptions contained in the equivalent of s 293(4). That concession was referred to by Allen J at 555 of the report as follows:
"There are the specified exceptions, set out in subs (3), to the application of the proscription. It was conceded on the appeal that none of those specific exceptions apply. That concession was properly made. Counsel for the appellant was forced, accordingly, into the difficult role of having to argue, in substance, that despite the specific exceptions there is to be read into subs (3), by implication, an additional exception to the effect that the proscription does not apply where the evidence relates to whether the complainant by the making of false accusations of sexual misconduct with her by a person or persons other than the accused has manifested such a tendency to fantasise as to sexual conduct as to make her evidence in respect of the sexual conduct of the accused towards her unreliable."
39In R v Bernthaler (Unreported, NSWCCA, 17 December 1993), the appellant was alleged to have sexually assaulted his wife. She was cross-examined at trial to suggest that she had lied about being sexually assaulted as a child. Evidence to contradict her was not admitted by the trial judge. However, on appeal to this Court, the whole of the evidence was held to be inadmissible in accordance with the terms of the earlier section.
40In R v Warner (Unreported, NSWCCA, 7 May 1997), the trial judge rejected evidence that, a few weeks after being allegedly sexually assaulted by the appellant, the complainant went to live with him and resumed her sexual relationship with him. Gleeson CJ held that the evidence should have been admitted pursuant to the equivalent of s 293(4)(b).
41In HG v The Queen, the appellant sought to lead expert evidence that the complainant had not been sexually assaulted by the appellant but had been sexually assaulted by her deceased father. The High Court held that the evidence as to that issue did not fall within the equivalent exceptions to s 293(4)(b) and (4)(c).
42In R v Tubou [2001] NSWCCA 243, this Court held that evidence that the complainant had had consensual sexual intercourse with a person other than the accused 34 hours before the offence occurred was not an event which formed part of a connected set of circumstances in which the offence was committed. Heydon JA found the events to be "entirely unconnected" and related to "entirely separate sets of circumstances": at [72].
43In R v Villar; R v Zugecic [2004] NSWCCA 302, this Court held that evidence of the complainant allegedly having worked in a brothel and having asked, after the alleged offence, "Am I going to be paid for this?" was correctly excluded by the trial judge. An argument based on s 293(4)(a) was rejected. At [135] Grove J said this:
"[135] To whom it was alleged to have been said and in what circumstances was not detailed. It would appear that the matter was argued at trial "on principle". It was not suggested that Zugecic wished to advance a case that he believed that RB came to Mitrov's unit for prostitution. The scant information available fails to demonstrate tangible probative value in support of contention that RB consented to what was happening and the ground should be rejected."
44In R v Rahme [2004] NSWCCA 233, the appellant was alleged to have forced the complainant to work in a brothel and detained her there. The appellant sought to lead evidence at the trial that the complainant had previously freely worked as a prostitute and in a brothel. The appellant contended that the equivalent of the s 293(4)(a) applied. Sully J would have admitted the evidence. He said this at [57] - [59]:
"[57] It is true that the rejected evidence does not stipulate in terms of months and years quite when it was that the supposed prior experience is supposed to have occurred. Nonetheless, bearing in mind that the complainant was aged 15 years in January 2001, it is unlikely to have been, in the nature of things, any great time before January 2001 that she had whatever prior experience was to be suggested to her in cross-examination, or proved against her by the affirmative evidence of the particular witnesses upon whom the defence relied in that connection.
[58] As to the necessary connection required in terms of section 105(4)(a)(ii), it seems to me that there was a clearly discernible connected set of circumstances of the kind contemplated by the statute. It can be expressed as follows:
(1) The complainant was besotted by a young American who was then located in the United States.
(2) She was determined to get to him in the United States.
(3) For that purpose she needed to earn quickly a lot of money.
(4) She was alive to the potential of earning a lot of money by prostituting herself.
(5) She was alive to the fact that her prospects of prostituting herself for quick financial reward were better in Sydney than in, for example, Newcastle.
(6) That she conceives, thereupon, the idea of actively pursuing such an opportunity in Sydney.
(7) That she did not do so as, so to speak, an innocent abroad; but she did so, rather, as somebody who knew very well who was who and what was what in the dark world of prostitution; and that she had that knowledge by reason of her own personal antecedent experience.
[59] That connected set of circumstances, if accepted by the jury, did not go only to the credit in a narrow and pedantic sense of the complainant herself. It went to the very heart of the facts in issue at the trial."
45James J made observations in that case that included the following:
"[162] As regards the Newcastle evidence, the trial judge held that s 105(4)(a) did not apply, because the evidence of the complainant's sexual experience or sexual activity as a prostitute in the Newcastle area was not evidence of sexual experience or sexual activity taken part in by the complainant "at or about the time" of the commission of the alleged prescribed sexual offences.
...
[176] On the authority of R v Morgan counsel for the appellant submitted that this Court should adopt a liberal approach in interpreting and applying subpara (ii) of s 105(4)(a). It was further submitted that "a connected set of circumstances" can include, not only what the Crown alleges, but what the defence alleges to have been "a connected set of circumstances".
...
[186] With respect to the Newcastle evidence and s 105(4)(a), I have concluded that the trial judge's finding, that the evidence was not evidence of sexual experience or sexual activity by the complainant "at or about" the time of the commission of the alleged offences is not a finding in relation to which this Court, consistently with the principles stated in O'Donoghue, can properly intervene. The times at which the complainant, according to the evidence of Mark Boumansour and Sonia Rahme, took part in acts of prostitution while she was living in the Newcastle area were not fixed by the evidence and were, of course, prior to the complainant travelling to Sydney and prior to the commencement of the period within which the Crown alleged that the offences had been committed. In my opinion, it was open to the trial judge to find that the Newcastle evidence was not evidence of sexual activity or sexual experience either at or about the time of the commission of the alleged offences...
...
[208] In my opinion, the Black Garter evidence satisfied the condition in subpara (i) of s 105(4)(a), as the trial judge in fact held; the evidence satisfied the condition in subpara (ii) as forming part of a connected set of circumstances in which the alleged offences were committed, adopting the liberal interpretation of this condition stated in R v Morgan; and the probative value of the evidence outweighed any additional distress, humiliation or embarrassment that the complainant might have suffered as a result of its admission."
46In Clark v The Queen [2008] NSWCCA 122; (2008) A Crim R 1, an unrepresented appellant at trial sought to question a young complainant to the effect that he had made up the allegations against him in order to hide his own sexual conduct with a friend. On appeal, reliance was placed on s 293(4)(a). Barr J said this at [94]:
"[94] In my opinion his Honour correctly held that the questions framed by the appellant were inadmissible. They were directed to sexual activity said to have been engaged in by the complainant at the appellant's house with SB. Although his Honour did not give detailed formal reasons, he sufficiently informed the parties during the long debate that he was rejecting the questions and why. There was in my opinion no failure to make sufficient record: see R v Dimian at 364. It sufficiently appears that his Honour was of the view that nothing in subs (4) excepted the proposed questions from the prohibition of subs (5). The only provision put forward as having such an effect was subs (4)(a). In my opinion the evidence failed the test of subs (4)(a) because it was not, using the words of (4)(a)(ii), evidence of events alleged to form part of a connected set of circumstances in which the alleged proscribed sexual offence was committed. In my view the temporal connection between the two events was not enough. The event contended for by the Crown, namely the attempt by the appellant to recruit the complainant, had no connection with the event contended for by the appellant, in which the complainant committed sexual activity with SB. The appellant was involved in the former but not the latter. The sexual activity was different. The two sets of alleged events were unrelated."
47In Rolfe v R [2007] NSWCCA 155; (2007) 173 A Crim R 168, the appellant was convicted of sexually assaulting his stepdaughter. Evidence that the complainant had said to her brother, "Daddy will rape you", was not pressed at the trial by defence counsel, who conceded that such evidence was caught by s 293. On appeal Giles JA questioned whether such evidence was indeed excluded because the statement did not necessarily suggest sexual experience on the part of the complainant. The question was whether the decision by the appellant's counsel at trial could amount to a miscarriage of justice. His Honour, with whom the other members of the Court agreed, decided that it could not.
48Finally, in BG v R [2010] NSWCCA 301; (2010) 208 A Crim R 34, the complainant gave evidence of offences alleged to have been committed by the appellant in 1970 and 1971. She had complained in 1997 about sexual offences said to have been committed by others against her many years before, but said nothing about the offences alleged against the appellant until 2005. Counsel for the appellant at trial had led evidence of the 1997 complaints generally, but not of their sexual nature, presumably upon the basis that they would offend s 293 and that he would therby be precluded from doing so. James J referred to this at [75] in these terms:
"[75] As to evidence of the matters in Annex B and evidence of the matters in Annex A if counsel's first submission about Annex A was rejected, it was submitted that both sets of evidence would have fallen within para (a) of subs (4) of section 293 and hence would have been excluded from the prima facie prohibition in subs (3). It was submitted that these matters had occurred "just before" or "just after" the alleged offences by the appellant were committed and as part of "the same continuum" as the alleged offences of the appellant and therefore evidence of these matters was evidence of the complainant's sexual experience or sexual activity "at or about the time" of the appellant's alleged offences (subpara (i) of para (a) of subs (4)) and evidence of events that formed part of a connected set of circumstances in which the appellant's offences were committed (subpara (ii) of para (a) of subs (4))."
49His Honour rejected the submission and said this at [82] - [83]:
"[82] None of the matters described in Annexs A or B could be said to be "at or about the time" of the offences allegedly committed by the appellant. The matters described in annexure A occurred between 1962 and 1966 or between 1966 and 1969 (after which the complainant spent some time in a children's home, before going to the appellant's home) or after mid 1971. The matters described in Annex B occurred between 1962 and 1966. It is not possible, in my opinion, to regard matters occurring at any time within a period of a number of years as having occurred "at or about the time" of the alleged offences.
[83] Nor could the matters be said to have formed part of a connected set of circumstances in which the alleged offences by the appellant were committed. The only real connection was the involvement of the complainant in all of the matters and in the appellant's alleged offences."