R v Stergiou [2004] WASC 172

Criminal Procedure Rules 2000 (WA), r 33(2)(a)

Evidence Act 1906 (WA), s 36B, s 36BA, s 36BC

Partial leave granted to cross-examine on prior allegations of sexual abuse

Bull v R [2000] HCA 24; (2000) 201 CLR 443

Hill v The Queen [2003] WASCA 177

Hoy & Ors v The Queen [2002] WASCA 275

R v Tribe [2001] QCA 206

Bannister v R (1993) 10 WAR 484

Narkle v R [2001] WASCA 31; (2001) 23 WAR 468

1 LE MIERE J: The parties have asked the Court to give directions or rulings as to the conduct of the trial of this matter pursuant to s 611A of the Criminal Code.

2 The State has presented an indictment charging the accused with two counts of rape. The first count is that on a date unknown between 13 December 1983 and 24 October 1984 at Balga the accused raped the complainant. The second count is that on a date unknown between 1 October 1984 and 24 October 1984 at Balga the accused raped the complainant.

3 A broad outline of the circumstances of the alleged offences may be discerned from the State brief. The complainant was born on 11 December 1968. At the time of the alleged offences, she was aged 15. She is described in subpoenaed documents as being of dull intelligence or having a mild intellectual handicap. At the time of the alleged offences she attended Balga Special School.

4 The accused was employed as a gardener at the school. The complainant says that the first offence took place on a school day shortly after 9.30 am. The complainant was taking lunch orders for the staff and students at the school. She approached the gardeners to see if they wanted any lunch. When she was near the garden shed door she heard a voice inviting her into the shed. She entered the garden shed and recognised the gardener as Jim, the accused. When the complainant was inside the garden shed, the accused closed the door. The accused asked the complainant to pull down her pants. She says she was so scared that she did as she was told. The complainant says that the accused then sexually penetrated her. The complainant says she remembers the accused getting up and telling her not to dob on him and offering her money to keep quiet. She says she got up off the floor but did not take the money that he offered.

5 The complainant alleges that the second offence occurred on another school day in 1984. The complainant says she remembers she had her period. She was told to go home. The teacher told her to take a bike from the bike shed. The complainant says she entered the bike shed and turned around to pick out a bike to ride home and when she turned back around Jim, the accused, was standing in the doorway. The complainant says the accused told her to pull her pants down. She pulled her pants down and laid on the floor. She told him that she did not want to do this. He said, "Don't worry. I won't get you pregnant. I've had an operation." The complainant says that the accused then sexually penetrated her. When he had finished, the accused told her not to say anything and not to dob on him. He offered her money to keep quiet and she took the 50 cents that he offered, as she was scared.

6 The complainant says that she then went home, had a shower and then returned to school. After school she caught a bus to the welfare office in Mirrabooka and spoke to her case worker. She explained to him what had happened. He told the complainant to go home and tell her mother what had happened and he would sort everything out. The complainant went home and told her mother. Her mother did not believe her.

7 The complainant says that the next day she told her teacher what had happened. The teacher phoned the deputy principal. The complainant's complaint was subsequently investigated by the school, the Education Department and the police. No charges were brought against the accused at that time. The present indictment was presented on 2 December 2002.

8 Mr Bowden, counsel for the accused, has filed written submissions. In those submissions Mr Bowden outlines some matters then in dispute between the Director of Public Prosecutions and the defence concerning evidence to be led by the State. On 2 July 2004, Mr Bowden and Mr Wilson, counsel for the State, informed me that those matters had been resolved and it was not necessary for me to give any pre-trial directions or rulings in relation to those matters.

9 In his written submissions Mr Bowden raised a matter concerning cross-examination of the complainant. The written submissions state:

"The defence advises the Court that they do wish to cross-examine the complainant on prior accusations of sexual abuse made by the complainant including:

(i) alleged sexual assaults upon her by her mother's boyfriend,

(ii) alleged sexual assaults upon her by two older brothers,

(iii) alleged sexual assaults by an uncle and brother (Royal Perth Hospital medical reports),

(iv) allegations that her uncle raped her,

(v) allegation that her second son was a product of gang rape (Graylands Hospital medical report),

(vi) allegations that two of her three children are as a result of being raped (Sir Charles Gairdner Hospital medical report),

(vii) allegations that a Mr Pomfrett sexually assaulted her,

(viii) allegations that she was raped by (three) uncles."

10 On 2 July 2004, Mr Bowden informed me that Mr Pomfrett is the uncle referred to in item (iv) of the above list of matters.

11 In his written submissions Mr Bowden stated that information relevant to these allegations is contained in the subpoenaed materials and materials obtained under disclosure. On 2 July 2004, Mr Bowden drew my attention to passages in the subpoenaed records of Royal Perth Hospital, Sir Charles Gairdner Hospital and Graylands Hospital containing, or referring to, matters relevant to the various allegations.

12 Mr Bowden's first contention is that leave under 36BC of the Evidence Act is not required. If leave is required then the accused seeks leave under s 36BC to cross-examine the complainant on the allegations listed above.

Section 36BC

13 Section 36BC of the Evidence Act provides:

"(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of a defendant unless leave of the court has first been obtained on application made in the absence of the jury (if any).

(2) The court shall not grant leave under subsection (1) unless satisfied that -

(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and

(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission."

14 The defence seeks leave to cross-examine the complainant on matters that can conveniently be divided into three groups. The first are allegations that an uncle sexually assaulted the complainant. The second are allegations that she was sexually assaulted by her mother's boyfriend, two older brothers and three uncles and that two of her three children, including her second son, are a result of being raped. The third are allegations that she was sexually assaulted by a carer called Uncle Ted at a welfare institution.

15 The subpoenaed records contain notes to the effect that the complainant reported to various health care professionals that she had been raped by her "uncle". It appears the "uncle" may be a family friend rather than a brother of her father or mother. The subpoenaed documents record that the complainant informed the health care professionals that she had withdrawn the complaint of rape and had been charged with making a false complaint. One note records the complainant as saying she had been convicted of making a false complaint. These allegations differ from the others concerning which the defence seeks leave to cross-examine the complainant in that they are said to be false allegations of rape.

16 The State agrees that the defence should be given leave to cross-examine the complainant concerning these allegations made by the complainant. The State submits that the proposed cross-examination is within the prohibition in s 36BC and hence the cross-examination may only be undertaken with the leave of the Court. The State submits that the evidence sought to be elicited has substantial relevance to the facts in issue and its probative value outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission and hence the Court should grant leave under s 36BC(2). I agree that the accused should be permitted to cross-examine the complainant on the allegations that an uncle sexually assaulted her but for different reasons.

17 In my view, the evidence to be elicited is not within the prohibition in s 36BC(1), that is it is not evidence relating to the sexual experiences of the complainant. In Bull v R [2000] HCA 24; (2000) 201 CLR 443 McHugh, Gummow and Hayne JJ held that evidence relating to the sexual experiences of the complainant means any evidence that tends to prove sexual experiences of the complainant. Whether evidence is properly characterised as evidence relating to a person's sexual experiences requires consideration of the evidence that is to be elicited, not merely the subject matter of the evidence.

18 In R v Tribe [2001] QCA 206 the Queensland Court of Appeal considered an appeal ground that the trial Judge erred in refusing to allow cross-examination of the complainant concerning prior allegations of rape made by her to police and counsellors. The relevant complaint was that she had been raped by a person other than the accused about 2 years before the act the subject of her trial. Counsel wished to cross-examine the complainant to the effect that she had had consensual sexual intercourse with the man. The Court of Appeal held that the proposed cross-examination was evidence relating to the sexual activities of the complainant with any person. McKenzie J, with whom McMurdo P and Williams JA agreed, said at [30] that it was an essential component of the cross-examination that the complainant had been involved in sexual activity with the person complained about. It was therefore subject to the statutory prohibition.

19 In this case, counsel for the accused does not seek leave to cross-examine the complainant to the effect that she had had consensual sexual intercourse with the "uncle". To the contrary, the cross-examination is to elicit evidence that no sexual activity occurred between the complainant and the uncle. In my view, such evidence is not evidence that tends to prove sexual experiences of the complainant and is not evidence relating to her sexual experiences with any person.

20 As I have found that the proposed cross-examination does not fall within the prohibition of s 36BC, the defence does not require leave to cross-examine the complainant on that matter. My ruling is that the defence is entitled to cross-examine the complainant that her allegations to the health care professionals that she was raped by her "uncle" were false in that no sexual activity took place. The defence is not entitled to cross-examine the complainant to the effect that the accusation of rape was false in that the sexual activity between the complainant and the uncle was consensual.

Alleged sexual assaults by mother's boyfriend, older brothers and uncles

21 The defence wishes to cross-examine the complainant about allegations made by her to health care professionals that she had in the past been raped or sexually assaulted by the various persons referred to. The purpose of the cross-examination is said to show that the complainant had the opportunity when making the allegations to also reveal the offences allegedly committed by the accused but failed to do so.

22 In my view, the evidence sought to be elicited is evidence relating to the sexual experiences of the complainant within the meaning of s 36BC(1) of the Evidence Act. The subpoenaed documents do not contain any suggestion that the allegations of rape and sexual assault are false. Counsel for the accused does not say that the cross-examination is to be to the effect that the alleged rapes and sexual assaults did not occur. The evidence to be elicited is evidence that tends to prove sexual experiences of the complainant.

23 The next question is the extent of the statutory prohibition. The legislative history of s 36BC makes it clear that evidence relating to the sexual experiences of a complainant, not being part of the res gestae, that goes only to credit cannot in any circumstances be adduced or elicited by or on behalf of the accused. Sections 36BC, 36B and 36BA were inserted in the Evidence Act by the Acts Amendment (Sexual Assaults) Act 1985 (the amending Act). Their purpose was to further restrict the admissibility of evidence relating to a victim's sexual history. Under the sections of the Evidence Act they replaced, that is s 36A and 36B which were inserted in the Evidence Act in 1976 and deleted by the amending Act, the Court had the power to grant leave when what was sought to be adduced had "substantial relevance to the facts in issue or to the credit of the complainant". The removal of the reference to "the credit of the complainant" indicates that the Court now does not have the power to permit questions where the only relevance of the proposed evidence is as to the complainant's credit. A Court cannot grant leave unless the proposed evidence has substantial relevance to the facts in issue and the probative value of the evidence outweighs any likely distress, humiliation or embarrassment to the complainant.

24 It was submitted by the State that in relation to sexual offences there is no significant distinction between evidence relevant to the facts in issue and evidence going to the credit of the complainant. Counsel for the State referred me to the dicta of Miller J in Hoy & Ors v The Queen [2002] WASCA 275 at [120] where Miller J said:

"There is undoubtedly an important distinction between cases in which the disputed issue is a sexual one and cases like the present where it is not. In sexual cases the difference between questions going to credit and questions going to the issue is often 'reduced to vanishing point' (Bannister v The Queen (1993) 10 WAR 484 per Kennedy J at 487 - 488) in a way that is not present in this case."

25 Miller J was not concerned with the provisions of s 36BC of the Evidence Act. His Honour is not to be taken to be saying that for the purposes of s 36BC there is no distinction to be drawn between evidence relevant to the facts in issue and evidence going to the credit of the complainant.

26 In Hill v The Queen [2003] WASCA 177 the appellant appealed against convictions of sexual penetration and indecent dealing of a 13-year-old girl. One ground of appeal was that defence counsel had wrongly been refused leave to cross-examine the complainant on a police statement and letter she had written to show that the complainant had made a false complaint to police of penile or attempted penile penetration by a person other than the accused on a separate occasion and that the complainant had been confused as to who had committed prior acts of sexual abuse. The Court of Criminal Appeal held that the trial Judge had made no error. McLure J said that evidence of failure to complain when making complaints about sexual assaults by others may go to the question of whether or not there has been any sexual assault and hence may be relevant not merely to credit but also to the facts in issue. Her Honour expressed the preliminary view that the proposed questions directed at whether there was a false complaint or confusion were potentially relevant to the issues (as well as to credit). However, her Honour held that even if the proposed evidence is properly characterised as relevant to a fact in issue it did not have substantial relevance such as to permit its admission. Murray J said that he would go further than McLure J and expressed the view that the material sought to be elicited to demonstrate confusion on the part of the complainant and inconsistencies in relation to allegations made against the third party were relevant only to the applicant's credit and had no relevance at all, let alone substantial relevance, to the facts in issue in respect of the offences allegedly committed by the applicant. Wheeler J agreed with Murray J that the material upon which it was sought to cross-examine the complainant was relevant only to her credit, and was not relevant to the subject matter of the offences allegedly committed by the applicant.

27 In my view, the evidence sought to be elicited by cross-examination of the complainant concerning alleged sexual assaults by her mother's boyfriend, older brothers and uncles is relevant only to the complainant's credit and is not relevant to the facts in issue. For that reason, the Court does not have power to give leave to elicit evidence that the complainant complained on other occasions of sexual assaults by others but did not, on those occasions, complain of the alleged sexual assault by the accused.

28 In any event, even if the proposed evidence is properly characterised as relevant to a fact in issue, it does not, in my view, have substantial relevance and the probative value of the evidence does not outweigh the distress, humiliation or embarrassment which the complainant might suffer as a result of the proposed cross-examination. The fact that on various occasions between 1998 and 2000 she complained to health care professionals of sexual abuse by other persons but did not refer to the alleged offences by the accused in 1984 is not of great probative value. The probative value of that evidence must be weighed against the distress, humiliation or embarrassment which the complainant is likely to suffer as a result of the proposed cross-examination. In my view, the probative value of the evidence sought to be elicited does not outweigh that likely distress, humiliation or embarrassment.

29 For those reasons, I refuse leave to cross-examine the complainant concerning alleged sexual assaults by her mother's boyfriend, older brothers and uncles.

30 The complainant made a statement dated 12 December 2001 in which she alleges, amongst other things, that she was raped and sexually assaulted by three carers whilst living at a welfare hostel. The carers were known to her as "uncles". In the statement she alleges that one of the uncles raped her in the ladies toilet block at Kings Park. Counsel for the accused says that there are similarities in the complainant's statement concerning that alleged assault and her statement concerning one of the alleged assaults upon her by the accused. In her statement, the complainant says that the assault upon her at Kings Park took place when she was 11 years of age, that is in about 1979 or 1980.

31 Counsel for the accused submits that the jury might conclude that there are sufficient similarities between the alleged rapes of her by the accused and by the carer at Kings Park that there is a doubt that they are two separate assaults that both took place. The purpose of the cross-examination appears to be to show that the complainant is confused as to who committed the acts of sexual abuse she has described and has, in effect, transferred an incident of abuse by the carer to the alleged assault by the accused.

32 The proposed cross-examination concerning that matter is evidence relating to the sexual experiences of the complainant within the meaning of s 36BC of the Evidence Act. The evidence to be elicited by the proposed cross-examination is evidence that tends to prove sexual experiences of the complainant. It is an essential component of the cross-examination that the complainant was involved in the sexual activity described in her statement of 12 December 2001. Leave may only be granted to lead such evidence if the court is satisfied that what is sought to be elicited has substantial relevance to the facts in issue and the probative value of the evidence that is sought to be elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.

33 The next question is whether the evidence has substantial relevance to the facts in issue. The requirement is that the evidence is not only relevant but that it has "substantial relevance to the facts in issue". If the evidence were not relevant, no question as to the operation of s 36BC would arise. The requirement that the evidence has "substantial relevance to the facts in issue" adds some requirement in addition to the normal test of relevance. In my view, the proposed evidence does not have "substantial relevance to the facts in issue".

34 The defence relies upon the inherent improbability that both assaults took place because of the supposed similarities in the complainant's account of the two assaults. I have carefully read the complainant's statement of 12 December 2001 and her statements in the present case. In my view, there are no striking similarities or unusual features of the two alleged assaults so as to be capable of giving rise to a reasonable doubt that the complainant is confused as to who committed the act of sexual abuse she has described. I do not consider the statement of the complainant concerning the alleged assault upon her at Kings Park to be substantially relevant to the facts in issue.

35 In any event, in my view the probative value of the evidence that is sought to be elicited does not outweigh any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission. That is because, in my view, there are no sufficiently striking similarities or unusual features or anything else about the complainant's statement concerning the alleged assault upon her at Kings Park and her statement of the alleged assaults upon her by the accused that gives the evidence sufficient probative value to outweigh the distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.

36 For those reasons, I refuse leave to cross-examine the complainant concerning her allegations of assault upon her by a carer at Kings Park.

37 Wheeler J previously gave the accused's legal representatives leave to inspect the subpoenaed hospital records. I have given leave for the records to be inspected by a psychiatrist nominated by the accused's solicitor. The defence also seeks leave to photocopy the subpoenaed documents and to provide the photocopies to a psychiatrist on the basis that the photocopies will be returned to the Court after they have been considered by the psychiatrist.

38 Rule 33(2)(a) of the Criminal Procedure Rules provides that at a pre-trial hearing or other proceeding the Court may give leave for any party or other person to inspect the record or thing or take a copy of the record produced in answer to a subpoena.

39 The Graylands Hospital records were produced to the Court under cover of the following objections. First, objection was taken to an order being made which would permit inspection of the documents produced unless the presiding judicial officer is satisfied by the persons at whose request the subpoena has been issued that the documents sought have some apparent relevance to the proceedings. Secondly, objection was taken to the documents being inspected by the applicant or respondent to these proceedings. It was said that the enclosed documents contain extremely personal and sensitive information obtained from the patient in confidence and in a situation of trust. Disclosure of such information may be harmful to the patient, may adversely compromise the therapeutic relationship and trust that has been developed between the treating clinician and the patient and may undermine future psychiatric treatment. It may also impact upon the patient's relationships with third parties such as family members and friends. The health services stated in view of the above, it was requested that the presiding judicial officer limit any orders granting inspection of the documents to the legal representatives of the parties only. Thirdly, the health services took objection to the documents being copied by any of the parties to the proceedings and/or their legal representatives.

40 The views and wishes of the health services should be respected to the extent that is reasonable and consistent with the fair and proper disposition of this trial. There is no evidence presently before me to the effect that it is reasonably necessary to photocopy the documents rather than have them inspected by a psychiatrist whilst they remain in the custody of the Court. Accordingly, I will not at this time give leave to photocopy the subpoenaed documents. If events unfold such that either the defence or the State consider that a psychiatrist engaged by them cannot properly consider the documents without being provided with photocopies then I will further consider the matter. In that event, the party seeking leave to photocopy the documents, should give notice of the application to the Director, or Acting Director of Clinical Services, Graylands Selb-Lemnos and Special Care Health Services.