R v Thow [2003] TASSC 16

Evidence Act 2001 (Tas), s194M.

HG v R [1999] HCA 2; (1999) 197 CLR 414, considered.

Judgment Number: [2003] TASSC 16

1 The defence seeks to cross-examine the complainant in a case of whether she had previously complained of sexual misconduct committed against her by her step-father. The Crown contends that the line of questioning is permitted by the provisions of the Evidence Act 2001 ("the Act"), s194M. That provision prohibits questions concerning the sexual reputation or experience of a complainant without leave of the court. The section provides that leave must not be given unless the court is satisfied that:

(a) the evidence sought to be adduced or elicited has direct and substantial relevance to a fact or matter in issue; and

(b) the probative value of that evidence outweighs any distress, humiliation or embarrassment which the person against whom the crime or offence is alleged to have been committed might suffer as a result of the admission of that evidence."

2 The defence has foreshadowed the asking of the following questions:

(1) Whether at a time prior to the family moving from East Devonport to Rosebery that the complainant had complained to the accused, and another, that her step-father had sexually assaulted her.

(2) That she had been told or requested to tell her mother and had replied that she could not because her mother would not believe her.

(3) That on 5 May when the accused arrived at the family home of the complainant, she approached him and complained that she had been further sexually assaulted by her step-father, and asked him to take her to his East Devonport residence, and if he didn't comply with her request, that she would run away.

(4) The reason why she had run away from home on or about 7 May.

3 During the course of argument, the defence foreshadowed the asking of a further question separate from the above, namely that approximately two weeks before the family moved to Rosebery from East Devonport, at a garage in East Devonport, and in the presence of another, there occurred a confrontation between the accused and the step-father of the complainant, in which the accused confronted the step-father that he had previously sexually assaulted the complainant. The Act, s194M, defines sexual experience including: "any sexual activity or sexual behaviour of that person". The proposed questions bring into operation this provision and in turn requires consideration of s194M (2)(a) and (b) which in turn involves taking into account the provisions of subs(4)(b) which states:

"(4) For the purpose of subsection (2)(b), the magistrate or judge must take into account the following matters in assessing the amount of the distress, humiliation or embarrassment which the person against whom the crime or offence is alleged to have been committed might suffer as a result of the admission of the evidence:

(b) the number and the nature of the questions likely to be put to that person."

4 The line of questioning is said to be relevant to the following issues, namely:

(1) The reason why the complainant went with the accused to his home in East Devonport, and is said to meet the suggestion that the accused persuaded the complainant to accompany him for an improper purpose.

(2) The reason why the complainant ran away on the day following the last alleged act of sexual impropriety on the part of the accused.

(3) As an explanation as to why the complainant told her mother of the claimed assaults by the accused. It is suggested that she told her mother of the accounts of sexual abuse, but through fear or uncertainty transposed the name of the accused for that of the step-father.

5 The occurrence or otherwise of the previous sexual misconduct at the hand of another is not admissible, see HG v R [1999] HCA 2; (1999) 197 CLR 414. The question of relevance of the making of the complaint is contained in the proposed questions. The relevance is the purpose of travelling with the accused and the leaving of the family home. It is the occurrence or discord or misconduct which is the issue, or at least the stated reason forwarded by the complainant. If it be the former, then it is rendered inadmissible. If it be the latter, then its colour or characterisation is irrelevant, whilst its making remains relevant to an issue. The test becomes whether the statement of insult or mistreatment has relevance to the issues of conduct on the part of the complainant. In this case, it could explain the willingness of the complainant in going with the accused. At one level it is irrelevant in that no question of abduction or force is involved, the complainant went willingly with the accused, and as such this is not an issue in disputation. At a secondary level, it is said to negate a suggestion that the accused induced the complainant to accompany him.

6 The claimed suggestion of the complainant is relevant to that issue, and the characterisation of the nature of conduct is said to give rise to the request, adds nothing to that issue. The characterisation attracts the operation of the statutory prohibition, and its inclusion adds nothing to "direct and substantial relevance to the fact or matter in issue".

7 The characterisation adds nothing to the import of the proposed question concerning the claimed confrontation between the accused and the step-father. It does nothing except to bring into issue the past sexual experience of the complainant. It does nothing to reinforce the question that there had been previous sexual misconduct involving the complainant. The fact that the complainant has been previously assaulted by another is not relevant to the issue as to whether a different person, at a different time, committed an assault.

8 In this case, insofar as the question goes to the transposition of names, it has the same characteristics as that of a previous false complaint. In order to test falsity it becomes necessary to determine the occurrence or non-occurrence of the previous claimed event.

9 In the United States, evidence that the complainant has previously made unproved allegations of sexual offences has been held not to be evidence of sexual behaviour and not subject to exclusion (People v Mikula (1978) 84 Mich App 108), although before the evidence is admitted, the courts require substantive evidence that any prior accusations were indeed false and the relevance of the evidence clearly demonstrated (People v Williams (1991) 191 Mich App 269, People v Garvie (1986) 148 Mich App 565). It may be that the approach taken is consistent with that taken in this jurisdiction with the permitted use of 'lies' as corroboration in that they need proven and external foundation (see generally Kibble, N "The Sexual History Provisions" [2000] CrimLR 274, Temkin, J "Sexual History Evidence" [2003] CrimLR 217).

10 If that approach be incorrect, nevertheless it attracts the operation of s194M(4)(b), previously stated. The question would be put to the step-father, and the sexual characterisation would require examination and testing, it could not be left bare. This in turn would enlarge the number and nature of the questions which relate to the claimed occurrence. Thus an initial question depends upon a narrow basis, namely, the reason for conduct opens an inquiry into the sexual experience of the complainant. Parliament by its enactment of subs(4)(b) has included that factor as a matter impacting on the balance between probative value in its own right, that is, what does the matter establish, and the humiliation and distress likely to be caused by an inquiry into the sexual past of the complainant.

11 The ruling is that the proposed questions are prohibited by the operations of statute and the preconditions stated by subs(2) have not been fulfilled. If that be wrong, then my discretion is exercised against the grant of leave. That leaves the questions intact apart from their colour or characterisation. In that respect, they are governed by the ordinary principles of evidence or at least to be determined absent the prohibition of s194M. Questions one, two and three accord with those principles and, apart from their characterisation, may be put. Question four falls within a different category and its validity might involve consideration of the law pertaining to prior inconsistent statements. At this stage, the Crown does not oppose its making but it may depend on whether it is put to the step-father, and then upon his answer. That matter can be revisited if and when necessary, but, in any event, it could not be put in the manner suggestive of prior sexual impropriety.