Ground 1 and the first application under s 293: concerning AP and stepdaughter S
29 On the seventh day of the trial (which lasted 13 days) counsel for the appellant made an application to cross-examine and lead evidence about the sexual relationship between AP and stepdaughter S in 2006. The application was made on the basis of s 293(4)(a) and (c). Documents, being written submissions, were handed to the judge by defence counsel and the Crown prosecutor. These documents were not before this Court.
30 In his submissions, counsel relied on Bond (20 August 1996, Court of Criminal Appeal, Grove and James JJ and Hamilton AJ). This case concerned an alleged attack (with the intent to have sexual intercourse) by the appellant, a male prisoner held in a low security gaol, on a female prison officer. The attack had been thwarted by the intervention of another male prisoner. The appellant asserted that the other prisoner and the prison officer were having a sexual relationship and that this was the reason for the fabricated evidence against him. This motive was also explained, the appellant said, by the fact that he had allegedly had consensual sex with the prison officer on past occasions. It was held by the Court that any sexual activity between the prison officer and the other prisoner was "connected" with the alleged offence because it provided a motive. This is what defence counsel stressed in the application in the present case - a motive for stepdaughter S to fabricate an allegation against the appellant.
31 The judge looked at the decision of Sorby DCJ on the same application. The judge said:
"HIS HONOUR: … so you have to satisfy me Mr Taylor not only that if I were hearing the matter at first instance - I suppose I am, but for the first time, that I would grant your application, but also it's not in the interests of justice for me to be bound by Judge Sorby's ruling."
32 The judge then engaged in a dialogue with counsel about motive. Counsel put the motivation as follows (Transcript 11/06/08: 176 (16) - 177 (9), 185 (24) - 185 (27)):
"TAYLOR: She [stepdaughter S] thought she might get back together with him [AP] if I might respectfully remind your Honour of these historical facts. She knew that [AP] wanted to get back at [the appellant]. She was upset about breaking up with [AP]. She was angry with her mother and then the police get to a point, as I have set out on p 2 of J of the written submissions where they lead her into a situation where they suggest to her - well they more than suggest, they say to her that 'another thing you know, that [AP] was worried about, is that he said that once he saw you come out of the bathroom really, really upset.' Now, it's that introduction, this is the motivation for her to lie.
HIS HONOUR: What would she get out of lying?
TAYLOR: She could help [AP], she knew that [AP] wanted to get back at [the appellant], she knew that her mother - she was angry with her mother, she knew that this would get back at [the appellant] if she made up something about [the appellant] but most importantly
HIS HONOUR: But being angry at her mother has nothing to do with her sexual history.
TAYLOR: With respect your Honour the question comes down to, why was [AP] in trouble? If that information isn't before the jury, and that is the extent to which I propose to take it - that she had a sexual relationship with [AP], there is evidence to suggest that when [AP] had broken up with this young girl, when [the appellant] was furious with [AP], when [the appellant] said to [AP] 'I've got a mind to go to the police about you', [AP] goes home to… his mother, and they race off to the police station to get in first. And make up allegations to explain this underage sexual behaviour. They go to the police station and they say '[AP] says look I've had sex with [stepdaughter S]. I know I shouldn't have done that but (1) [the appellant] made me do it and by the way [the appellant] has been getting stuck into her as well.' If your Honour will excuse my language.
HIS HONOUR: That's all right.
TAYLOR: It is in that framework your Honour that it becomes particularly relevant. It is in that framework that [stepdaughter S] decides to make up an allegation with respect to [the appellant]. I don't propose to adduce any evidence going in to that [the appellant] allegedly encouraged these two to have sex. It is simply proposed to go to the situation as to why [AP] was in trouble. Because if that evidence is not in, if it is not in that [AP] was in fact in trouble for the sexual relationship between the two of them, then it could be any matter and it doesn't have any significant impact to motivate her sufficiently to lie.
…
TAYLOR: … Now what better way to weasel out of charges against him than to make up some sort of massive excuse in relation to [the appellant], assuming from the defence point of view that [the appellant] didn't do any of these things then [AP] has lied to try and get himself out of it. The police have come back to [stepdaughter S]. She's in a distraught state. This is probably why one shouldn't have sex with an underage boyfriend or an overage boyfriend because she was so distraught about that break-up, she wanted to get back together with him, she wanted to do anything at all possible to get back together with him, she wanted to do anything at all possible to get back together with him, the police give her the lead and say, '[AP]'s told us this, what can you tell us about it?' so she goes on to lie, which she acknowledges in the transcript that she made that up. In my respectful submission those circumstances, that string is such that to withhold that sexual relationship and the fact that [AP] was in trouble over that sexual relationship from the jury would ultimately arise to a miscarriage of justice your Honour."
33 Counsel for the appellant also put to the judge the relevance of s 293(4)(c), submitting that feared pregnancy was "pregnancy" for the purposes of s 293(4)(c). The debate that took place centred upon the fact that there was no pregnancy.
34 In his reasons, the trial judge first dealt with s 293(4)(c) and focussed at the outset on the visit to the local hospital. He said:
"There is evidence before a jury that in November, 2006 [stepdaughter S] went to the local hospital for a pregnancy test. She was old enough to know how a human being gets pregnant and believed that because she was putting on weight and displayed other symptoms she might have been pregnant. That is a matter which the jury might perceive as being in favour of the Crown. That a young girl would bother going to hospital for a pregnancy test suggests that that young girl believes she might be pregnant, which in turn suggests that the young girl understands that she has had sexual intercourse. It is therefore a probative matter as far as the defence is concerned to have put before the jury that the complainant was having sexual intercourse, before November, 2006, with someone else. This would thus enable the defence to say to the jury that a piece of evidence which might otherwise be thought to favour the Crown does not in fact do so."
35 The judge concluded that s 293(4)(c) did not apply on its face because stepdaughter S was not pregnant. No challenge was made on appeal to this construction of the section. His Honour then dealt with the balancing of distress humiliation and embarrassment required by s 293(4) should he be wrong about the construction.
36 The argument was not apparently also directed to s 293(4)(e); but his Honour's construction of the word "pregnancy" would have applied to that provision also.
37 No complaint was made on appeal about the treatment of the application based as it was on s 293(4)(c).
38 The judge then dealt with the application based as it was on s 293(4)(a). He said:
"… It is Mr Taylor's submission that the sexual relationship between [stepdaughter S] and [AP] provided a motive for [stepdaughter S] to make up false allegations against the accused in the following way.
There is evidence, not before the jury but before me, that once [stepdaughter S'] mother became aware that [stepdaughter S] had been having sexual intercourse with [AP], she was understandably upset, and [stepdaughter S] was aware that her mother proposed involving the police. She thus knew, that is [stepdaughter S] thus knew, that [AP] was in trouble with the police. It is submitted that that provides [stepdaughter S] with a motivation for making up allegations regarding the accused. Although I have to remember that as far as questions of motive are concerned I have to look at things through the eyes of a young girl and that all people, let alone young people, do not always act logically, but what is it about saying to police 'I've been involved in a sexual relationship with [the appellant], the accused' which would benefit either [stepdaughter S] or [AP] insofar as he also had a sexual relationship with [stepdaughter S]? In other words what is the motive for [stepdaughter S] to tell police, falsely according to the defence, that she had been having a sexual relationship with [the appellant]? What is in it for either her or [AP]? How would it assist [AP] in his troubles with the police if he was not the only person having a relationship with [stepdaughter S]? These matters are difficult to answer. I have to come to a view, however, because I have to assess the probative value of the relevant evidence in deciding whether that outweighs the distress, humiliation or embarrassment that [stepdaughter S] might suffer. It would be obvious from the questions I have asked and the difficulty I have answering, that I regard the probative value as low.
In assessing the probative value, I have to also bear in mind that the jury already know that [AP] was in trouble and that [stepdaughter S] was aware of that at the time she made her allegations against the accused. The jury do not know, at this stage, that [AP] was in trouble with the police and certainly do not know that he was in trouble with police because he had had a sexual relationship with [stepdaughter S], but they do know that he was in trouble and that [stepdaughter S] knew it. Assessing the probative value of the evidence, the subject of this application, therefore has to be done by considering what the evidence would incrementally add to what the jury already know.
It is the defence case that [stepdaughter S] has made up these allegations, possibly because she knew [AP] was in trouble. That has already been put to the complainant in cross-examination of the complainant which the jury have seen and heard. The defence obviously wish to go further. But I am not satisfied that the probative value that that further cross-examination and further evidence would outweigh the distress, humiliation or embarrassment that [stepdaughter S] might feel.
I was able to see [stepdaughter S] as she gave her evidence. Her evidence was recorded by video and audio at the earlier trial and this was played before me. I am satisfied that she found the whole experience of giving evidence distressing, humiliating and embarrassing. I have used that opinion in forming the view as to what further distress, humiliation and embarrassment she would undergo if this application was successful."
39 One can take from this approach an acceptance by the judge of the presence of the elements of s 293(4)(a), even though the probative value of the relevant connection (through motive: cf Bond) was low.
40 On appeal, two criticisms were made of the approach adopted by the judge in relation to the first application. First, the substantive argument of trial counsel as to motive were repeated. There was a reason, it was submitted, for stepdaughter S to deflect AP's and her own moral culpability for their relationship.
41 In this respect, subject to the second criticism, I express my agreement with how the learned trial judge approached the matter. I do not see any real motive for fabrication. Further, I would bow to the trial judge's clear advantage on the question of distress and embarrassment.
42 The second criticism was one that was not put to the trial judge, in terms, although it was put to him that there would be a miscarriage of justice.
43 On appeal the appellant submitted that in weighing the probative value of the evidence, his Honour did not consider in express terms the powerful corroborative nature of the evidence of a 13 year old girl attending, of her own volition, a hospital to have a pregnancy test. The Crown case was that she had been sexually abused by her stepfather over five years. He denied it. Yet she had a fear of pregnancy. If the jury have no knowledge of another possible explanation for the girl's fear of pregnancy, they are left with clear corroboration of this evidence that the appellant had sexual intercourse with stepdaughter S.
44 No application was made under s 293(6). The terms of s 293(6) are relevant to Ground 3.
45 The application was not put to the judge in the way this second criticism of the approach was put on appeal. It was only submitted that there was motive to fabricate.
46 It can be accepted, as indeed the trial judge appeared to accept, that the sexual experience of stepdaughter S with AP took place over a period during the alleged offences in 2006. Thus, s 293(4)(a)(i) appeared to be satisfied. Was there, though, a "connected set of circumstances in which the prescribed sexual offence was committed" for s 293(4)(a)(ii)? Given, the approach to the construction of these words and this concept in the antecedent provision in Morgan (1993) 30 NSWLR 543 at 544 by Gleeson CJ and at 551 by Mahoney JA I would conclude that the sexual experience with AP and the alleged offences in 2006 could be said to be part of a set of circumstances brought together in their connection by stepdaughter S's fear of pregnancy and visit to the hospital. The connection may also be seen to bear directly upon whether the evidence of stepdaughter S was corroborated by her own act of attending the hospital.
47 The application was not put, however, on this independent basis of s 293(4)(a).
48 Whilst I am not prepared to conclude that his Honour erred in failing to deal with the application on the basis of s 293(4)(a) in the manner I have described because it was not put to him in this fashion, I am concerned about the judge's failure to address the prejudice by focussing on, and expressly taking into account, the necessary corroborative fact of the hospital visit.
49 The concern arises in part because that prejudice can be seen to be inherent in the (otherwise validly rejected) argument based on s 293(4)(c).
50 The judge restricted his consideration of the probative weight of the evidence to the motive to lie. That is explicable by how the matter was argued. In the circumstances of how the argument was put to him, notwithstanding my concern as to prejudice, I am not prepared to conclude that the judge's discretion miscarried in relation to the application under s 293(4) concerning stepdaughter S.