R v Crago

Section 293 Criminal Procedure Act 1986

1. Section 293 Criminal Procedure Act 1986 concerns the admissibility of evidence relating to sexual experience. The section applies here as s 66C(4) Crimes Act is a "prescribed sexual offence."
2. In such cases evidence relating to the sexual reputation of the complainant is inadmissible, as is evidence that discloses or implies the complainant has or may have had sexual experience or a lack of sexual experience, or may have taken part or not taken part in any sexual activity. Here, relevantly, those prohibitions do not apply: if the evidence 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 is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed: s293 (4)(a).
3. If the evidence meets those criteria a further consideration or final proviso applies before it can be admitted at trial - the probative value of the evidence must outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. That proviso requires a judge engage in form of calculus balancing any possibility of harm to the complainant against a possibility of injustice because relevant and probative evidence is denied an accused who faces imprisonment if convicted: R v Morgan (1993) 30 NSWLR 453.

The Prosecution case

1. The complainant, then aged 14, attended a party in Dapto from Friday 18 October until Sunday evening 20 October 2019. The accused was also a guest at the party. They had not previously met. The complainant was drinking alcohol over the weekend. She was intoxicated on the Friday night and Saturday night. The accused has also been drinking heavily.
2. On the Friday the accused expressed a desire to "make out" with the complainant, despite having been told her age. He was seen to be "all over her'" on the Saturday. On the Saturday evening they spent the night together in a bedroom. The complainant alleges they had penile vaginal intercourse without the use of a condom. The complainant disclosed having had "sex with Lachlan" the next day.
3. On 20 October 2019 the complainant and the accused sent text messages to each other discussing the possibility of her being pregnant. The complainant told two friends about the incident on 22 October 2019.
4. At other times during the party the complainant was seen with young men. They too were told about her age.
5. When interviewed by police the accused said he was very intoxicated and could not recall having sexual intercourse with the complainant. Importantly, he did not deny having had sexual intercourse with her. He said, "I don't even think we had sex. I think we just hooked up and did like hand and mouth stuff. I don't really think we had sex. I don't even remember I was drunk but I'm pretty sure…. I don't remember much from that night or nights:" Ex A p 60-61 ERISP Answers 60 & 61. Later in his interview he said "I don't remember anything:" Ex A p 61 at ERISP answer 67.

The Defence case

1. The accused has told his expert pharmacologist, Mr Farrar, that he was so drunk he "blacked out." He told police he had no memory of the weekend after consuming a bottle of rum, 30 Corona beers and 15 shots by "1ish on Saturday;" Ex A p 59 ERISP answer 52. He also suggested he would not have had sufficient erectile function to perform the act. His expert confirmed that at certain high levels of intoxication erectile function is attenuated and ejaculation can be delayed: Voir Dire exhibit B.
2. The defence also intend to call Mr Farrar to give an opinion that if a person has a blood alcohol concentration of over 0.20 grams per 100 millilitres of blood fragmented memory, wherein recollection is partial, can occur. At over 0.3 per 100 millilitres of blood alcohol induced blackout becomes statistically probable. And, the "creation and consolidation of false memories upon attempts to recover lost memory may occur."
3. Accordingly the defence case theory is as Mr Crago did not and could not have had penile vaginal intercourse with the complainant the complainant may have transposed a memory of another act of sexual intercourse that weekend and now falsely believes the act occurred with Mr Crago.
4. Although they have no onus of proof the defence intend to assert the following: 1. Mr Crago's blood alcohol level on the Saturday night was such as to support his claim of "en bloc" amnesia and had a substantial effect on his erectile function and capacity to ejaculate. 2. The complainant's state of intoxication was consistent with a blood alcohol concentration in excess of 0.3 grams per 100 millilitres of blood, such that she would have suffered substantial cognitive impairment and significant fragmentation of memory with a likelihood of alcohol induced blackout. 3. And, that "in attempting to recover lost memory it is possible that [she] has inadvertently created a false memory of the events that transpired during her times of intoxication." 4. That the complainant's other act of penile vaginal intercourse that weekend accounts for; her "false" memory an act of intercourse occurred with Mr Crago, her feeling vaginal soreness and her fear of pregnancy.

Is s293 engaged

1. The defence case that s 293 is engaged is based on the following material from the prosecution brief: 1. The complainant was very drunk on Friday, Saturday and Sunday. 2. On the Friday night a female friend saw the complainant and another male guest kissing; he was also touching her breasts. She told Mr Jackson to stop. She also told other boys including the accused to leave her alone: Ex A p 42 3. At 2am on the Saturday morning the complainant told her female friend "Lachlan" (the accused) had taken her underwear: Ex p 42. On the Friday night she told another female friend that her "boobs hurt:" Ex A p39. 4. That the complainant "flashed" another guest at the party: Ex A p 39 5. Another male guest saw the accused and the complainant together on the Friday and that he'd "heard" they had had sex on the Friday night: Ex A p 161. 6. On the Friday the accused asked another guest, if he could make out with the complainant: Ex A p 33. 7. On the Saturday night that witness could not find the accused but on the Sunday morning he saw him on a bed on top of the covers with the complainant - they both had clothes on: Ex A p 34. 8. That the guest, others saw kissing the complainant, says he remembers nothing of the weekend (Ex A p 162) but he messaged the complainant the following day wanting to talk about the weekend. Ex A p 214 -217.
2. The accused says that there is a real possibility that the complainant had sexual intercourse with the guest the complainant was seen kissing on the Friday night or early Saturday morning. And, that as she very intoxicated and was also interacting with the accused on the Friday night she has merged her memory of events and "falsely" remembered an act of intercourse with the accused on the Saturday night Sunday morning.
3. It is submitted that the propositions sought to be put are founded in relevant evidence and supported by expert opinion. If there was sexual intercourse with that guest those events would not only form part of a connected set of circumstances in which the accused's alleged offence was committed but also be relevant to whether the complainant's fear of pregnancy was attributable to the sexual intercourse alleged to have been had with the accused.
4. If the complainant did have intercourse with that other male that weekend the evidence of any interaction between them could be lead from others for example him or her female friends, which would not unduly distress or embarrass the complainant. Any cross-examination of the complainant could be restricted to putting to her direct propositions such as - did you have penile vaginal sex with another male not Lachlan that weekend?
5. The argument has is based on the following propositions said to support the defence case theory:- 1. The complainant engaged in an act of penile vaginal intercourse that weekend but on the Friday night-Saturday morning not the following night/morning as alleged. 2. That act of intercourse was with another male. 3. The complainant was so intoxicated that she had an alcohol induced blackout on the Saturday night/Sunday morning and retrieved a partial real memory but falsely remembered the identity person with whom she had sex.

Submissions

1. Both Mr Coulton, Solicitor Advocate for the Director of Public Prosecutions and Ms Ghabrial, Counsel, for the accused, spoke to their extensive written submissions. A number of important authorities were discussed. Those authorities and submissions have informed this judgment.

Consideration

1. Section 293 was designed to exclude to a significant degree cross-examination concerning a complainant's sexual activity or experience with only limited exceptions. The section applies in it terms but as was also noted by the Court of Criminal Appeal in Jackmain v R [2020] NSWCCA 150 in certain respects the section cannot be read literally. The interpretation and application of s 293, like the construction of any statutory provision, must begin and end with its text. "The statutory text must be considered in context including the legislative history and extrinsic material:" Jackmain at [13].
2. Section 293 (4)(a) allows, as an exception to the general prohibition, that a prior act of intercourse at or about the time of the alleged offence can be relevant and admissible, subject to the final proviso in s293: R v Morgan.
3. Evidence can be relevant if it can rationally affect either directly or indirectly a fact in issue: s55 Evidence Act. If the complainant did have penile vaginal sex with another man at the party this could have relevance to whether she wrongly attributed the act to the accused. If the complainant did have penile vaginal sex with another man at the party this could have relevance to the other central issues of fact her fear of pregnancy.
4. If the evidence is relevant directly or indirectly to a fact in issue and not prohibited by s 293 it is admissible. In determining admissibility I do not consider the strength or otherwise of the defence theory, which has some holes in it: particularly the possible difficulties in assessing the complainant blood alcohol level and the accused's telling police that she told him about the intercourse the morning after, something apparently inconsistent with her having an alcohol induced blackout.
5. The female friend deposes that the complainant "made out" with and had her breasts touched by the other male guest unlike Morgan that evidence provides no context for the alleged act of sexual intercourse attributed to Mr Crago. No statement has been provided by that male who told police he too had no memory of the weekend. Here, unlike Morgan, no issues of credibility based on the complainant's promiscuity are sought to be raised other than those relating to the complainant's state of intoxication. If they were the reasoning in R v Burton [2013] NSWCCA 335 would better reflect the current state of the law than that in Morgan. Further, I would not allow cross-examination that would also infringe the credibility rule: s102 Evidence Act 1995.
6. The proposed questioning does however go to the critical issue of whether or not the alleged act of intercourse with Mr Crago occurred. It is implicit in his plea of not guilty that he does not admit the act of intercourse occurred, there being no defences to a s66C Crimes Act charge of either amnesia or intoxication: Part 11 Crimes Act. Consistent with his claim of alcohol induced amnesia he cannot deny the act of intercourse occurred only raise a doubt as to the accuracy of the complainant's recollection of who the perpetrator was or whether in fact she engaged in an act of intercourse that weekend at all.
7. In Taleb v R [2015] NSWCCA 105 at [88] the Court of Criminal appeal noted the Second Reading Speech in the Legislative Assembly when the predecessor of s 293 was introduced: For example, the complainant alleges that the sexual assault caused certain injuries, perhaps bruising or cuts. If the accused denies that intercourse occurred at all, and says that the offence must have been committed by someone else, it would not be fair to deprive him of the right to cross-examine the complainant as to whether the complainant had, at around the relevant time, been having intercourse with another person or other persons. Such another relationship might, of course, explain the true identity of the attacker.
8. Here the defence wish to put to the complainant that the act of intercourse must have been committed by someone else at the weekend party. That act would be in the same temporal period as the alleged offence and would form part of the connected set of circumstances. It could also explain her concerns about of pregnancy.
9. There is at present no evidence in the material provided to me that the complainant did engage in penile vaginal sexual intercourse with anyone other than the accused that weekend. No other act of sexual intercourse was admitted by the complainant, to the contrary she has given an account of what was done to her by the accused: Ex A 138-139. And he in turn has told police she told him "what allegedly happened the night before:" Ex A p 59 ERISP answer 52. Nor has anyone else suggested that such an act occurred with anyone else.
10. On one view before I could apply the calculus in favour of the accused there would need to be some evidence to suggest the complainant engaged in another act of sexual intercourse that weekend. But that approach would deny the defence the opportunity of advancing the defence case they wish to bring.
11. Criminal trials are adversarial. The defence are not obliged to accept the truth and veracity of prosecution witness that present a version of events contrary to their own. Alternative versions should be tested. Section 293 limits that testing but the ban raising prior sexual experience is not complete, if the preconditions for admissibility are met.
12. The defence hypothesis proceeds from a number of premises that as yet are not available in the evidence but which they seek to explore and advance by cross-examination: 1. The complainant suffered an alcohol induced blackout. 2. The complainant suffered from memory loss. 3. The complainant had penile vaginal intercourse with another. 4. The complainant substituted that other act of intercourse for that alleged to have been committed by the accused. 5. That other act occurred with another male guest.
13. If, there was another act of intercourse the defence case theory might have some basis to go to the jury. The accused says that if there was an offence it may have been committed by someone else. He wants to test that proposition Section 293 was not intended to and does not deprive him of the right to call evidence and cross-examine the complainant or others about whether the complainant had, at around the relevant time had intercourse with another person if such an act might, explain the true identity of the perpetrator.
14. If the evidence discloses that the complainant did not have any other act of sexual intercourse that weekend it will also be relevant to the prosecution case as a rebuttal of any suggestion of "merger of memories."
15. Raising the possibility with other witnesses is unlikely to cause the complainant any additional distress humiliation or embarrassment than what will inevitably arise from the trial.
16. Raising the possibility with the complainant may cause some additional distress humiliation or embarrassment but if she denies any such activity the additional distress humiliation or embarrassment will be fleeting. If she accepts the other act occurred the probative value of that evidence would appear to outweigh any additional distress humiliation or embarrassment.
17. In assessing that probative value I note that if in fact the complainant did have penile vaginal intercourse with someone else that fact does not indicate her bad character nor does it provide a defence to the accused; at best it provides but one of the required foundations for Mr Farrar's opinion evidence.
18. Accordingly, it will be necessary at trial, for the reasons I have set out, for there to be evidence or questioning at trial that discloses or implies that on the weekend of 18 to 21 October 2019 the complainant has or may have taken part in or not taken part in sexual activity other that alleged against the accused: s293(3)(b).

Orders

1. Evidence that the complainant has or may have taken part or not taken in any sexual activity is admissible at trial.
2. The defence and, if necessary, the prosecution can question witnesses and the complainant to ascertain if she engaged in penile vaginal sexual intercourse with another man on the weekend of 18 -21 October 2019. And call direct evidence of that fact (should it become available). For clarity this direction relates to penile vaginal intercourse only and not evidence about sexual activity other than penile vaginal intercourse, such kissing and breast fondling, as evidence or questions about that activity remains inadmissible.
3. My directions raise s293 (8). To reduce the possibility of the complainant suffering additional distress humiliation or embarrassment the scope of that questioning and nature of that evidence must be limited as follows: 1. To asking the complainant whether she did have penile vaginal sexual intercourse with anyone else that weekend. And, if she answers affirmatively with whom and when. 2. To asking witnesses whether they witnessed the complainant having penile vaginal sexual intercourse with anyone else that weekend. And, if they answer affirmatively with whom and when. 3. To asking witnesses whether they witnessed anything done or said by the complainant that implies she had penile vaginal sexual intercourse with anyone else that weekend. And, if they answer affirmatively with whom and when. 4. To asking witnesses whether they had penile vaginal sexual intercourse with the complainant that weekend. And, if they answer affirmatively where and when. 5. If the defence have any evidence, not yet disclosed, that the complainant had penile vaginal sexual intercourse with another person that weekend the scope of that evidence or questioning about it should be restricted to; with whom, and when and where the act of penile vaginal intercourse occurred.
4. As with any ruling on evidence these orders can be revisited with the trial judge if the evidence or circumstances change.

Amendments 09 November 2020 - Typographical errors only 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 November 2020