R v Baden Cram

LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995

COUNSEL: Ms S Walsh (Crown) Mr G Thomas (Accused)

1 HIS HONOUR: After the jury was empanelled but before the Crown Prosecutor opened her case to the jury, Mr Thomas, counsel for the accused, applied for leave to cross-examine the complainant and other prosecution witnesses concerning the sexual reputation and sexual activity of the complainant and one N.

2 The Crown case is that at about 4am on 1 January 2007 the accused had sexual intercourse with the complainant without her consent. There are two counts in the indictment and they relate to an act of digital penetration followed some time later by an act of penile vaginal/penetration. Both incidents are said to have occurred in a recessed, cave like area of a cliff at Avalon Beach. The accused and the complainant, with other people, had earlier been at a New Year's Eve party at a house near that beach.

3 It is common ground, as it appears in the statement of the complainant, that a short time before midnight at that party the complainant engaged in sexual activity with N. There is also a suggestion in the statement of the witness C of sexual activity involving the complainant and N on some earlier occasion. There is no mention of this in the statement of the complainant or anyone else. The source of C's knowledge is not disclosed in her statement. What she says is this: "At that stage (that is, early afternoon of 1 January 2007) I didn't know that N and the complainant had been at a party the night before and had sex but I knew they had hooked up in the past. By hooked up I mean they've (sic) haven't had sex before but done other sexual things".

4 Such evidence is rendered inadmissible by s.293 Criminal Procedure Act 1986. Mr Thomas argues, however, that it comes within one or more of the exceptions within that section. The first question, however, is whether the evidence is relevant. Could it, either directly or indirectly, rationally affect the assessment of the probability of the existence of a fact in issue in the trial? (s.55 Evidence Act 1995).

5 Mr Thomas put it that such evidence was relevant in two ways. First, it may provide an alternative explanation for certain injuries sustained by the complainant. When she was examined by a doctor at Royal North Shore Hospital on the evening of 1 January 2007 she was found to have a bruise on the medial aspect of her left anterior thigh measuring approximately 1 centimetre in diameter. On genital examination there were mild but significant abrasions noted on both inner thighs. The fossa navicularis was noted to be tender on examination.

6 When I asked Mr Thomas what the defence case was he told me that the accused conceded that the sexual activity alleged by the Crown did occur. More specifically, the accused will concede the act of digital penetration but on his account there is a difference as to the degree of such penetration. He will concede there was the act of penile/vaginal penetration but will claim it was not forced and against the complainant's will.

7 The Crown then informed me that it will not be contending that the injuries noted on the medical examination of the complainant are consistent only with non-consensual sexual activity. That is, the Crown accepts that the injuries are equally consistent with having been caused by consensual activity.

8 Having regard to these positions taken by the parties, I fail to see that evidence of the complainant having engaged in sexual activity with N some hours earlier in the night could have any bearing on providing an alternative explanation for the existence of the injuries. Indeed, there is simply no need for providing such an alternative explanation. Accordingly, I do not see the evidence as being relevant. Even if it was, and assuming that the matter could be brought within one of the exceptions in s.293, I am not of the view that the probative value of the evidence, if used for the purpose Mr Thomas seeks, outweighs any distress, humiliation or embarrassment the complainant may experience as a result of admitting the evidence.

9 The second way in which Mr Thomas said the evidence was relevant concerns the fact that the complainant had contact with N, both in person and by telephone, on a number of occasions in the aftermath and during the day following whatever happened between her and the accused at the beach that New Year's day morning. In none of this contact did she make any complaint about having been sexually assaulted by the accused. Mr Thomas argued that if the jury were aware that the complainant was so close to N that she had been a sexual partner with him, both earlier in the night and, perhaps, on some prior occasion, or occasions, then they could take her failure to complain to him as reflecting adversely upon her credibility.

10 Perhaps that renders the evidence relevant. However, I think it very much depends upon what explanation the complainant provides, if asked, for why she did not complain to N. On the one hand, if she said something along the lines of not complaining to N because he was not a person she was very close to, then the evidence might have more relevance than if she said she was very close to him but for some reason could not complain to him. In the material placed before me there is nothing to indicate what she might say, except that in paragraph 39 of her statement of 28 April 2007 she said she had a brief telephone conversation with N a short time after the incident but did not tell him what had happened. She said "I was going to when he asked me if everything was all right but G was just chatting in my ear". I suspect the complainant has more to say as to why she did not complain to N than just that. It may be that this issue may have to be revisited once her evidence on this topic has been given.

11 Assuming for present purposes that the evidence is relevant, in order to be admissible it must come within one of the exceptions in s293. Mr Thomas has contended that the evidence falls within a number of the exceptions in sub-s (4) as well as within sub-s (6).

12 He first contends that the evidence of the sexual activity with N forms "part of a connected set of circumstances in which the prescribed sexual offence was committed". That is the exception in s293(4)(a). In my view the only relevant connection between the two circumstances is that they occurred on the same night. It is more a matter of coincidence than relevant connection. As for any prior sexual activity between the complainant and N, there is not even that.

13 Mr Thomas argued that there was also the exception in s293(4)(b) that the evidence "relates to the relationship between the accused and the complainant". In my view the sexual activity between N and the complainant can in no way be seen to relate to that relationship, if two people who happen to be at the same party, not having met before, can be said to have a relationship at all.

14 Next it was contended that the exception in s293(4)(c) was made out. In view of what I have said earlier about the equivocal nature of the injuries, I do not accept this. Moreover paragraph (c) does not apply in any event because this is not a case in which the accused "does not concede the sexual intercourse so alleged".

15 Finally in relation to sub-s (4) it was contended that, "the allegation that the prescribed sexual offence was committed by the accused was first made following a realisation or discovery of the presence of pregnancy (or possible pregnancy) in the complainant."

16 This is the exception in paragraph (e), although it is to be noted that Mr Thomas has added the words "or possible pregnancy". However, it is clear from the complainant's statement that her allegation of being sexually assaulted by the accused preceded her friend suggesting she go to a chemist and obtain a "morning after" pill. There is no basis in the evidence that has been placed before me to characterise this as a case where the complainant discovered she was (or might be) pregnant and then made an allegation that the accused had sexually assaulted her.

17 Mr Thomas sought to come within this exception by submitting that at the time the complainant took her friend's advice and obtained a "morning after" pill there had been no allegation made of the act of digital penetration by the accused. So, there was a realisation of the possibility of pregnancy that preceded the allegation of digital penetration.

18 In my view that is a rather tortured and artificial view of the provision. Clearly it is designed to make an exception in the case of a woman who realises or discovers she is pregnant and then makes an allegation that a man has committed the act causing such pregnancy against her will. I cannot see how an act of digital penetration can be brought within the terms of this exception.

19 So much for s294(4). Mr Thomas also submitted that the sexual activity earlier in the night, and sexual activity of some nature on a prior occasion, or on prior occasions, with N is disclosed or implied in the prosecution case and it "might be unfairly prejudicial to the accused if the complainant and other prosecution witnesses could not be cross-examined in relation to that disclosure or implication". This is the exception in s293(6). The problem with this is that whilst police have included such material in witness statements, the Crown Prosecutor informed me that it forms no part of the prosecution case here at trial. Accordingly, in the prosecution case to be presented to the jury there will be no such disclosure or implication. Section 293(6) does not, therefore, apply.

20 These are my reasons for holding that the evidence is inadmissible and such cross-examination as proposed should not be permitted.

28/10/2008 - The names of witnesses have been amended to further safeguard the anonymity of the complainant - Paragraph(s) 1,3,5,8,9,10,12,13,19

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