Cook (a Pseudonym) v The King [2024] HCATrans 38 (15 May 2024)

Last Updated: 5 June 2024

[2024] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S158 of 2023

B e t w e e n -

COOK (A PSEUDONYM)

Appellant

and

THE KING

Respondent

GORDON ACJ
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 MAY 2024, AT 10.00 AM

Copyright in the High Court of Australia
MR T.A. GAME, SC: If the Court pleases, I appear with MS J.L. ROY and MS R. KHALILIZADEH for the appellant. (instructed by Streeton Lawyers)

MS S.C. DOWLING, SC: Your Honours, I appear with MS M.L. MILLWARD and MS N.A. WOOTTON for the respondent. (instructed by Director of Public Prosecutions (NSW))

GORDON ACJ: Thank you. Mr Game.

MR GAME: Thank you, your Honour. I will not be referring to people by name, mostly because there are suppression orders.

GORDON ACJ: Yes. Mr Game, would you mind speaking up?

MR GAME: I am sorry, your Honour.

GORDON ACJ: I know this Court is a bit more intimate than Court 1.

MR GAME: Sorry, your Honour.

GORDON ACJ: Thank you.

MR GAME: Not the first time. Anyway, I am going to follow, fairly closely, the written outline. If I could take your Honours first to section 293 – or it is now 294CB – but the one I am going to take you to is at page 112 of the legislation. This provision was introduced in 1981. The history of it is set out in a Law Reform Commission report which you have, which I am looking at taking you to, but when one looks at 293(2) and (3), the background is that what would now be regarded as an excessively wide view of admissibility was being corrected, and the case law about that is actually in that report, and that includes authority of this Court.

Subsection (2) is an exclusionary rule, but subsection (3) is the important one for present purposes and it operates as an exclusionary rule, a bit like the way the Evidence Act has exclusionary rules and then exceptions.

GLEESON J: Was it originally intended to be directed to the issue of consent or was it broader than that?

MR GAME: Probably, your Honour, but – yes, mostly. It was mostly about cross‑examination on other sexual conduct, say with other people, or reputation, things that – and there was a very wide view that was taken of admissibility in terms of what could touch on the question of consent. That may not be the whole of it, but that is certainly the focus of it.

If one is looking at (3)(a) and (b), they are intended, shall I say, to pick up everything. So, “sexual experience or a lack of sexual experience” and “taken part or not taken part in any sexual activity” are not to be read as limiting each other. The idea is the breadth of the description is to catch all of the things that might fall within that. Something that is a description of sexual activity may also amount to sexual experience.

But “sexual experience or a lack of sexual experience”, the kind of examples that were given were whether a person was a prostitute, whether a person was a virgin and so forth, but they could amount to things, or they would amount to things that had a persistence, that had happened, that was the case. You will see that the “taken part or not taken part in sexual activity” is descriptive of a particular event.

GLEESON J: That would be – not wanting to challenge you about the idea that subsection (3) is intended to pick up everything, but the idea of “taken part” surely is about consensual sexual activity.

MR GAME: In HG – I am not going to take you to HG, necessarily – it was argued that “taken part or not taken part” was about consensual activity, and that was rejected.

GORDON ACJ: Rejected only because it was not limited to consensual.

MR GAME: That is right, your Honour.

GORDON ACJ: But it encompasses consensual behaviour.

MR GAME: Yes, your Honour. Of course, it was not limited to that. I will just give you an example from this case. In the appellant’s further materials, at page 93, is a redacted version that became exhibit O that was tended in evidence. Then, at 96, you see the unredacted version and you see the complainant saying, in paragraph 4, when they are in the car:

“You are not going to do what [uncle] did to me, are you?”

We would say that is evidence that she is a victim of sexual abuse. It could be that it partly depends, and we see there is similar on paragraph 10. I should just also say this, I am going through the section at the moment, but in terms of outcome, it may ultimately be for a trial judge to determine just how far the evidence is admitted. From our perspective, from the appellant’s perspective, it is essential to get before the court at least that these things involved sexual offences by a parental figure or a caregiver.

That is the basal idea, and it is not appropriate just to describe them as assaults, and you are not getting to the thing that you are really concerned with. How far past that we can go may be a matter for debate, but as I said, we would be content if we at least got to that point in terms of admissibility because then one would see what the context actually was.

GORDON ACJ: Just so I am clear, when you say “got to that point” on admissibility, what is the point you would seek to get to, as a minimum?

MR GAME: We would get to, as a minimum, that she was a victim of sexual abuse. Not that she was a victim of assaults, that she was a victim of sexual abuse at the hands of her caregiver – or one of her two caregivers in Queensland. Looking at subsection (3), it is so broad that ex hypothesi it would exclude evidence of the offence itself, and that has never been the way it has been approached.

Justice Gaudron addressed that and rejected it in HG [1999] HCA 2; 197 CLR 414, and I will just give you the reference – there is no need to go to it – at 434. But it is kind of useful to just keep in mind how broad that provision is. It probably would not bring in uncharged acts. You might have to go to subsection (b) – (4)(b) – to get to uncharged acts. Again, there is no case law that has actually addressed that.

The sections we are concerned with are (4)(a) and (b), but if you look at (4)(a) – and I will come shortly to the judgment – but:

if the evidence:

(i) is of the complainant’s sexual experience or lack of sexual experience –

so, on our construction, applying in GEH, which is not really in dispute, that can be a persisting state of affairs.

GORDON ACJ: That is the Justice Harrison definition, about which both sides seem to agree is the appropriate text.

MR GAME: Yes, your Honour. And a lot of it might depend, in a particular case, on what one is actually trying to get at.

GORDON ACJ: When you say “get at” ‑ ‑ ‑

MR GAME: Get at – what you are trying to get into evidence.

GORDON ACJ: Is that not the first question? The first question is: what is the evidence you are trying to adduce?

MR GAME: I can do it in a minute, but I will just finish the section, I will come to it quite shortly, your Honour.

GORDON ACJ: Thank you.

MR GAME: In fact, that is very next thing I will come to after I have done this. But (4)(a) brings in all of the things in (3)(a) and (b), but it includes a temporal aspect, which is:

at or about the time of –

and:

connected set of circumstances –

But otherwise it is bringing in, it is making admissible as an exception, the things in (3)(a) and (b) that satisfy that nexus. Then (b) ‑ ‑ ‑

GLEESON J: Again, is that not the underlying philosophy there, that that temporality says something about consent?

MR GAME: Not just consent, but it may well be that that was in the forefront of the minds of the people who were drafting this. But subsection (b) then says:

if the evidence relates to a relationship that was existing or recent at the time of the commission of the . . . offence –

That is how it was argued in the court below, and it was rejected on a mistaken basis. That is common ground, too. So, there are those two exceptions, but if you are looking at (b) – it may not matter for this case, but it does not matter whether it is sexual experience or sexual activity for the purposes of (b). And, as I said before, it could pick up uncharged acts. Now, there is a safeguard to this provision, if you look at the following page:

and if the probative value of the evidence outweighs any –

So, you have an exclusionary rule, exceptions to the exclusionary rule, and then you have a proviso. So, that is a further safeguard. Now, then ‑ ‑ ‑

GORDON ACJ: And is it common ground on your – or at least from your perspective, that even if you are right about these matters, especially in relation to (b), there is not enough fact‑finding being made, consistent with the approach adopted by Justice Beech‑Jones in the court below.

MR GAME: Yes, so all we are seeking is to be in a position where we can argue, before a trial judge, this issue. So, we were not to know which grounds we would succeed on, obviously, so we argued the thing as broadly as we could below, but we were locked out of arguing it before the trial judge unless we got a ruling, because section 130A locks you out unless you have a ruling, except if it is in the interests of justice.

So then, in the Court of Criminal Appeal, we were further locked out from arguing the other provision, because at that point we lost, because of the reasoning of Justices Adamson and Bellew, but all we are seeking as a result of this appeal is to be free to argue the questions before the trial judge. That is all we are seeking.

EDELMAN J: The proviso?

MR GAME: No, we succeeded – we have an order for a retrial already ‑ ‑ ‑

EDELMAN J: Yes.

MR GAME: ‑ ‑ ‑ but we cannot get this argument unless the ground that was argued below and dismissed is upheld. So, what we are asking you to do is, exercising section 37 of the Judiciary Act, put yourself in the positions of the Court of Criminal Appeal and uphold that ground. That is all we are seeking.

EDELMAN J: Yes, and remit it to assess the proviso.

MR GAME: That is correct, to assess the – actually, to the District Court, to determine the admissibility of the evidence under this provision.

EDELMAN J: Yes, but that is determinative – by reference to the proviso to the section.

MR GAME: Yes, the proviso. Absolutely, yes. Sorry, I misunderstood. Yes, we not are arguing about that here.

EDELMAN J: Yes.

MR GAME: We are not asking for a ruling other than a ruling that sets aside what was decided on that ground below. Sorry, it was ground 3 below, my mistake. So, then, subsection (6) is also quite instructive, because it brings back these ideas. So:

If the court is satisfied:

(a) that it has been disclosed or implied in the case for the prosecution . . . during a specified period or without reference –

I have missed some words:

to any period:

(i) had sexual experience, or a lack of sexual experience, of a general or specified nature –

So, it could be something quite specific – abused as a child might be something specific:

(ii) had taken part in –

so that just picks up:

general or specified nature –

Now, the way this section would work is – in fact, the prosecutor in this case came kind of dangerously close to this in his address, which we have set out in our written submissions, where if you say, how could this person know these things, how could they know X, and the reason is they could not possibly have known it from any other source, then it would be implied.

So, excessive focusing on the peculiar nature of offending might draw you into, but the complainant already knew about that because of something else. That might not be about “sexual experience”, that might just be about “sexual activity”. That might be that such a thing had happened to that person. So, again, that sort of gives one some insight into how those words are intended to work. That is all I wanted to say about the statute at this point, and now I am going to come to the judgments.

You will see at the bottom of our outline, on page 1, where we put the things in a diagram to show the temporal relationship between the various events. You will see that the alleged offending here continues right through, pretty much, what is happening in Queensland, and it started with disclosures to the appellant. The document I just took you to before showed that it went in that the complainant was alone in a car – actually, that is before the charged period. But it was kept out what actually happened in the car, that is to say, complaints were made about sexual abuse in Queensland.

So, that is the kind of demonstration of the unreality of the thing, but if you look at our paragraph 7, what we are saying there is this: it is not just the cross‑examination that was affected by this ruling, it was that statement that I have taken you to and also part of the appellant’s record of interview was cut out, which we have set out at our submissions at paragraph 18, which is to the effect of, why would I be mad enough to do such a thing – was the kind of answer that he was giving there. That was excised as well, because it was said to bring into evidence the evidence of the offences concerning sexual offences in Queensland.

Now, if I come to the judgment, in Justice Beech‑Jones’ judgment at paragraph 7 on page 67, he has identified the evidence that was sought to be admitted. Then, the forensic purpose is stated at paragraph 8. If you go from there to our book of additional materials, you will see page 66 of our additional material – it starts at 64 – the relevant part of the judge’s judgment, paragraphs 11 to 14. You can see how it was put, and then you can see the judge’s misunderstanding about what the nature of the application was – that is at paragraph 22 – and then, at 23, you can see his Honour’s concerns about how this would affect the trial.

I deal, firstly, with the question under (4)(a). Although he did it the other way around, I will deal with the question of whether or not (4)(a) applied first, and that is dealt with by Justice Beech‑Jones at page 72, paragraphs 17 and follows. At paragraph 21, in page 73, that is identifying where the argument landed. Part of our submission is that Justice Adamson misapprehends what the argument is, but the argument is based on GEH. Then we see, at page 74, that important passage from GEH, which we understand is accepted. We see, at the end of it, it says:

In this way, evidence that relates to a complainant’s general state of sexual experience may more readily satisfy the temporal test in subparagraph (4)(a) –

EDELMAN J: Sorry, where were you reading from then?

MR GAME: There is a quote on the top of 74, and all I am doing is just reading a little bit at the end of the quote. To say something can also be described as “sexual activity” does not undercut its character as “sexual experience”. So that when, in the example I gave you, the complainant recounts something that – she said:

“You are not going to do what [uncle] did to me –

In one sense you could describe it as “sexual activity”, although it seems very inapposite to describe it as something that she took part in. It clearly, in our submission, comes within the description of “sexual experience”. It is “sexual experience” which has a continuing character, and there is nothing wrong with that in principle. That is what his Honour is saying at paragraph 22. His Honour says:

As noted, the evidence the subject of this ground is the various disclosures –

et cetera. The next sentence is important:

I accept that evidence is (also) evidence “of” the complainant’s sexual experience derived from the Queensland offending and that is a sexual experience she possessed at the time of those disclosures. I further accept . . . at or about the same time as the offences –

So, it is experience that she has had, and it is at “about the same time as the offences” in question, and that satisfies the provision.

EDELMAN J: That is because of its continuing nature, is it?

MR GAME: Yes, because it is a possessed – yes, that is exactly – it does not just exist in space as something that happened.

EDELMAN J: So, consensual sexual activity would exist just, in your language, “in space as something that happened”.

MR GAME: Yes – could do. Sorry, could do, except it might be – yes, your Honour, if that is all it is. Yes.

EDELMAN J: Why, then, would a sexual assault not be something that existed at a point in time? Why would that be something that is continuing?

MR GAME: Well, it could do, but it depends how you describe it, and there is no problem, in our submission, with describing it as she had experienced as a sexually abused child. That is the state that she is in when she comes to live with them, and that is what you are really trying to get at.

EDELMAN J: I see.

MR GAME: And counsel below eschewed altogether getting at the specific details of it.

GORDON ACJ: You do not want the details?

MR GAME: There is one circumstance in which we would want the details, which is if the prosecutor makes the kind of submission that he made about the specificity of – so, we do not need the details, your Honour, is the way I would put it.

GORDON ACJ: This is the question I asked you upfront, Mr Game: what is the evidence that you actually seek to have this section apply to? What is the evidence, with absolute precision? Because I think that dictates the way in which you ultimately seek to apply each of these subsections.

MR GAME: Yes, your Honour. At the outer limit, it is that which is described at paragraph 7 of Justice Beech‑Jones, but ‑ ‑ ‑

GORDON ACJ: Well, his Honour says, as I read it:

was not evidence of the commission of the four offences –

That is the first point. So, there is a negative aspect to it:

it was the evidence of various disclosures by the complainant –

which cover a period of time consistent with your diagram at the bottom of your outline of oral argument.

MR GAME: Yes.

GORDON ACJ: That is, there are, I think, five separate disclosures over a period of time.

MR GAME: Yes, your Honour. If you look at paragraph 9 – sorry, one way of saying this is that if we can get before the court those things that were described as assaults in the cross‑examination of the complainant, then we can get at the evidence that we actually need for the trial. Part of problem with answering your Honour’s question in a totally direct way is that the sections work in a slightly different way as to what they can bring in.

GORDON ACJ: I accept that. There is no doubt that under subparagraph (b) you may have a different subset of the evidence, but we have to start with what is the evidence first to work out how each of the sections operate and what is in and what is out.

MR GAME: Yes.

GORDON ACJ: So, you accept, as I understand it, that that paragraph 7 is an accurate description of the way in which you seek to have the evidence described and identified?

MR GAME: Yes, your Honour. We also accept that we might not get all of it in. We are not concerned if we do not get all of it in, we are concerned that we get some critical parts of it in which relate to, shall I say, the disclosures and the context that this was all a case about sexual abuse because, if you look at the diagram on the bottom of page 1, you see the context, and we describe that in a little detail in paragraph 9.

GLEESON J: Mr Game, do we have the cross‑reference to the actual evidence that is described by Justice Beech‑Jones in paragraph 7?

STEWARD J: I think it is at page 32 of the appellant’s book of further materials.

MR GAME: We have attached the bundle of material that was before the judge, but it is to be remembered that in the argument before the court below we went a little bit further than was argued. But the material was tendered ‑ ‑ ‑

STEWARD J: I am looking at the list on page 32. Is that the list?

MR GAME: Yes. If you look at our additional material, the material that was tendered, it included – you will see at the index the material included. It included part of the record of interview, which is the excised part which we have referred to in our submissions. Part of the material we would want to get at is there at page 9. It is that answer ‑ ‑ ‑

GORDON ACJ: Sorry, which page are you on now?

MR GAME: Sorry, it is in our additional book of material, page 9:

Why do you think we got her out of the situation she was in? I didn't go all that trouble –

et cetera.

JAGOT J: I could not find that either. Sorry, where are we?

MR GAME: So, we have a further book of material. This is the book that annexed the material before the trial judge.

GLEESON J: So, at point 5 of the page there is that question. Are we talking about (i), the disclosure in 2009?

MR GAME: Yes, your Honour. But also you see at the back of this book ‑ ‑ ‑

JAGOT J: Sorry, are you in the appellant’s book of further materials?

MR GAME: Yes, your Honour.

JAGOT J: Page 9 at the top?

MR GAME: Yes.

JAGOT J: And where on the page are you?

MR GAME: After it says X “did. O.K.” at about point 5, there is an answer, and that was excised in the record of interview.

JAGOT J: Okay.

MR GAME: And then if you look at ‑ ‑ ‑

GLEESON J: So, that answer is (i)?

MR GAME: Yes, your Honour. Then, if you look at page 93, that is exhibit O at the trial. I say it is not just the cross‑examination. That went in at the trial – ultimately, it probably is to credibility because it relates to a period before but we would, under the relationship ground, want to have admitted what was actually disclosed. That is set out at pages 96 to 98.

GLEESON J: And we are still at (i)?

MR GAME: It is at (i) in the ‑ ‑ ‑

GLEESON J: We are talking about Justice Beech‑Jones’ identification of ‑ ‑ ‑

MR GAME: Yes, your Honour. Yes, I beg your pardon.

GLEESON J: So, all of 96 to 98.

MR GAME: Yes. I just need to explain something else which is that in the argument before the trial judge, the thing was done – I say it in an informal way but there were very detailed submissions that seem to be by consent that set out the subject without necessarily in every case quoting the material before the court; an example could be at page 62. I am trying to do this as efficiently as I can but it is partly affected by the way the thing was argued originally. So, it was done in a fairly informal way. It is correct to say that we would want to get that answer I took you to at 9 and the full detail of the disclosures which appear at 96 and following.

EDELMAN J: Your starting point is that all of it is admissible under (4)(a) but that subject to that, the proviso to subsection (4) might knock some of it out.

MR GAME: Yes, absolutely. There might be a question about whether or not it is appropriate to go into the actual details at a particular point. But the other point I was trying to make is, if the prosecutor made a big point about how could it be this person never knew such a thing, then subsection (6) might come to play, but that it is not in play at the moment.

Just coming back to Justice Beech‑Jones’ judgment, something I should have said before is, it has been accepted in the cases – and we refer, in paragraph 6, to Morgan in the Court of Criminal Appeal and HG – that given the breadth of subsection (3), and given the proposition that we have established relevance before we even get to this, no narrow approach should be taken to construction of the provision.

We adopt that and we say that is an appropriate way to approach these provisions. We say, in respect of (4)(a), the passage at 22 of Justice Beech‑Jones’ judgment is conventional and it is supported by GEH. I will just deal with the second part of Justice Beech‑Jones. He also concluded at 23 that it was:

part of a connected set of circumstances –

and those are the circumstances we have described in paragraph 9 and can be seen pictorially in our diagram.

Now, the way this was dealt with by Justice Adamson – and this then takes us to page 103 of the appeal book – her Honour starts at this passage of her judgment – you see at paragraph 110 her Honour did not regard GEH as supporting what we had to say. But GEH was quite different, because it was about sexual activity with another person after the offences, so it had its own quite different context. But the critical part of her judgment is at paragraph 115, and at 115 she talks about “this time period”.

If you see at 114, her Honour appears to conflate “sexual activity” with “sexual experience” about it having “been taken part in by the complainant”, and that is a mistake. But also in the earlier paragraphs, both paragraphs 110, 112 and 113, her Honour conflates “experience” with “activity”, so that, at 115, her Honour is not grasping with the point that is made by Justice Beech‑Jones.

GORDON ACJ: About the distinction drawn between “activity” and “experience”?

MR GAME: Yes, yes.

GORDON ACJ: But that is one – as I understand it, that is one basis upon which you seek to ‑ ‑ ‑

MR GAME: Yes.

GORDON ACJ: The second basis is, as I understand it, this temporal question.

MR GAME: Yes, your Honour. The state of her being sexually abused, it is a continuing thing, and ‑ ‑ ‑

EDELMAN J: Well, the first question is a characterisation question, is it not? So, you start and you ask, on the facts that are alleged or that are relied upon, how does one characterise “sexual experience”? And “sexual experience” might be characterised in exactly the same way as a “sexual activity”, which seems to be what Justice Adamson has done.

MR GAME: Yes.

EDELMAN J: Alternatively, you might characterise a sexual experience as something that is not just the activity, because the experience extends beyond that by reference to the trauma and the ongoing effects of ‑ ‑ ‑

MR GAME: And how it has been dealt with by everybody is part of the circumstances.

EDELMAN J: ‑ ‑ ‑ the circumstances, and that is your characterisation.

MR GAME: Yes.

EDELMAN J: You characterise it more broadly than just the activity itself.

MR GAME: Yes, so when it has been, as it were, dealt with by everybody and he is going to court to give evidence about it, it is not about sexual activity per se, it is about the fact that she is a victim of sexual assault and there is a trial about it in Queensland.

EDELMAN J: That is why it is a continuing in time, because your characterisation is broader in that sense.

MR GAME: Yes, and there is nothing offensive – I say “offensive” – there is nothing sneaky or kind of backhanded about doing it this way, it makes sense.

GORDON ACJ: So, the reason why, in your response to Justice Edelman, is because, on one view of Justice Adamson’s reasons, her Honour was not dealing with the disclosures in the way; her Honour was dealing with a different set of evidence.

MR GAME: That is right. She was not dealing with the disclosures. So, her Honour thought that all she was dealing with was the existence of the fact of the offences. And you can see from that passage I took you to in Justice Beech‑Jones, that that is not – there was more than one argument, so I need to be careful about this, but that is not how it was ultimately put. He gets it squarely correct as to how he ultimately put it, and she does not address that at all.

So, we say this. We say that the trial judge misunderstood this, the relationship issue, and her Honour misunderstood the connected set of circumstances argument – sorry, the argument about (a).

GORDON ACJ: So, your criticism of Justice Adamson is not about connected set of circumstances.

MR GAME: No, it is about – sorry. I will come back. I was using that as a shorthand for the provision. It is about how she characterises what it is that is the subject of the application.

EDELMAN J: Because if her characterisation is right, then the reasoning must be right that follows it. But if the characterisation is wrong, then it is stopped at a point in time, and that is why you say that the alternative process of reasoning needs to kick in.

MR GAME: That is right. Yes. Then, where her Honour deals with the connected set of circumstances part of it is at paragraph 117. At 117, again, the critical sentence is the last one. It is not:

merely because proceedings relating to previous circumstances were still on foot.

It is kind of the whole of the circumstances that were being dealt with and addressed by this group of people, including the appellant and the complainant. So, that is an excessively narrow view of what the connected set of circumstances is, and again, there is nothing contentious, we say, in respect of the way in which Justice Beech‑Jones has addressed it.

GLEESON J: Mr Game, the circumstances have to be:

circumstances in which the alleged . . . offence was committed –

MR GAME: Yes, your Honour, but the question about the events the subject of the – “is of events”. So, it does not need to be – it is:

if the evidence:

. . .

(ii) is of events that . . . form part of –

yes, your Honour, the words “in which the alleged”, but it is:

(ii) is of events that are alleged to form part of a connected set of circumstances –

so that when you get at the “sexual experience”, not temporally limited in that particular way in which Justice Adamson put it, but then you can get at the:

events that are alleged to form part of the connected set of circumstances –

because the “events” is the broader context.

GLEESON J: So, in the explanatory materials, an example that is given of this is of a gang rape. So, the “events” include multiple sexual experiences in which one or other is committed.

MR GAME: Yes, but that would be a reference to activities under (i), not “relationship”. But the “events” that are relied on by Justice Beech‑Jones at page 75 are:

the acts of disclosure noted in [7] –

and we say that they are:

(bona fide) alleged to have formed part of a connected . . . “circumstances in which the alleged prescribed sexual offence was committed” (or in this case allegedly not committed).

So, we are talking about these offences, we are not talking about the other ones, we are talking about these ones. So, it does not matter. The connection is, these are events, connected set of circumstances – so it does not have to be the prosecution’s narrative. So, the narrative is the context within which these offences are alleged to have been committed, and you see from our diagram that the crossover is significant. So, the same evidence is evidence “of events” under (ii) – so it works, in our submission. And that paragraph 23 is correct. Once again ‑ ‑ ‑

GORDON ACJ: Paragraph 23 of Justice Beech‑Jones?

MR GAME: Yes, your Honour. Yes.

GLEESON J: So, the disclosures that form part of the “connected set of circumstances” are disclosures which occurred in the circumstance of the complainant living with the applicant?

MR GAME: Yes, your Honour – broadly speaking. So that is the first ‑ ‑ ‑

GORDON ACJ: Well, it is a bit more particular than that, is it not? As I understood your argument it was that these events – the five disclosures identified by Justice Beech‑Jones at 7 – form part of a connected set of circumstances, being the alleged offending against your client.

MR GAME: Yes, the connected set of circumstances we set out at paragraph 9, and that is our description. So, I was not meaning to limit it in my answer to Justice Gleeson’s question to me, but that is what we say is the connected set of circumstances. And we say that is a fair description of them, and it brings back what you see in the diagrammatic representation just before it.

Then the second basis of admission was that which was argued before the trial judge and was ultimately accepted by Justice Beech‑Jones and rejected by the majority, and that is at 71 of his judgment. Page 71 and paragraphs 15 and following. The critical part is – sorry, it refers there to:

a relationship between a confider and confidant.

in paragraph 15. And his paragraph 16 is the important one:

The more difficult question concerns the evidence of the disclosure by the complainant to the applicant in late 2009 –

et cetera. Now, HG is a very different case, because HG was a case about a circumstance where the complainant had allegedly been assaulted by her father many years before, and a psychologist said that that was what she was describing, and not the allegations that were made against HG, but there was no suggestion of an actual relationship with the accused. So, HG is distinguishable, and it is quite a different sort of case – and it was mostly described as “sexual activity”. So, what Justice Beech‑Jones says about HG is correct. Then he says, at the bottom of the page:

However, at the risk of repetition, the evidence the subject of this ground is not (direct) evidence that the complainant was abused but instead evidence that the complainant disclosed that abuse to the applicant (and others).

And I have taken you to the appellant’s statement about that. So, he accepts that that could relate to a relationship, but his view is that it needs to be – and we do not quibble with this – that it needs to be remitted for a trial judge to determine whether or not that ground is made out.

STEWARD J: Can I ask you, Mr Game, in (b), what is the nature of the connection that must exist between the evidence and the relationship? The words “relates to” have a chameleon-like quality about them, depending on their statutory content. What, at a bare minimum, is required?

MR GAME: Well, the evidence in this particular instance is the evidence of the disclosures to him, which would get caught by subsection (3), and so one has to then bring it within an exception. But it is the evidence of the disclosures to him in circumstances where she made those disclosures a number of times, he took them seriously, he persuaded the authorities to pursue them. That is how it works, in our submission.

STEWARD J: Your say it forms part of the relationship that was between the complainant ‑ ‑ ‑

MR GAME: Yes. If one thought about it this way, look at the evidence about what happens in the car, without any detail, and yet, they clearly do have a relationship – it does not have to be a sexual relationship.

STEWARD J: No, no.

MR GAME: It could be any kind of relationship. But this is the nature of their relationship, it is more than just they happened to be in the same ‑ ‑ ‑

STEWARD J: I am just trying to work out, as a matter of law, what sort of connection is required, because I do not think Justice Beech-Jones addresses that issue.

MR GAME: Well, it is stating the obvious to state – I do not mean it quite like that – but “relates” is a word of great generality, and so you have that.

GORDON ACJ: I think one of the ways to address it is to break it up again, and to first ask, what is the relationship? Because once you have identified what the relationship is, one can then identify how the evidence that you have previously identified relates to that relationship, taking into account the generality of the language.

MR GAME: Yes.

GLEESON J: Can I just add to that. You just said a few minutes ago that it could be any type of relationship. I just wonder about that. It could not be like a physical proximity of them sitting next to someone in the car.

MR GAME: Quite, yes, I accept that.

GLEESON J: Do you accept the scope that was described in White in the New South Wales Criminal Court of Appeal?

MR GAME: I think so, your Honour. It could be. What I was trying to say, it could be an abusive relationship – it does not need to be a sexual relationship – but it could be a particular kind of relationship between a person in a parental role in which the relationship is effective and sound and not abusive, but one of confiding sexual offences, so that ‑ ‑ ‑

GORDON ACJ: Here, is the way not, as I understand it – both you put it and Justice Beech-Jones might be said to have put it – is you have this relationship of sort of locus parentis, in which there is a confidence, a confider and a confidant?

MR GAME: Yes, your Honour.

GORDON ACJ: And the question which arises is, did that relationship exist, or was recent at the time of the commission of the alleged offences by your client? The answer is yes.

MR GAME: We say the answer is yes, because we can see that it continued, that the two things were happening at the same time.

GORDON ACJ: Yes.

MR GAME: So, again, we say that that is satisfied.

GLEESON J: Is the relationship of living with someone sufficient for this purpose?

MR GAME: Most likely, but not if they just happen to be in the same building. But if they are family members, if they were – so, yes, your Honour. So, the way in which this is dealt with by Justice Adamson is at page 105 of the appeal book. Paragraph 121 is the heart of it, is that her Honour relies on HG. But, as I said before, HG – there was no question about a relationship of the kind that is here. What we sought to get in were discrete incidents of – allegations of sexual assault against – that she had been abused by her father some years before.

So, again, that is a misunderstanding and misapplication of the decision in HG. We say that that is erroneous, and Justice Bellew was to the same effect. We see Justice Bellew’s judgment is really just paragraphs 137 and 138 on page 110, which is pretty much to the same effect. So, those are our arguments about this question, and we say if we succeed, then ground 3 in the court below ‑ ‑ ‑

GORDON ACJ: Sorry, just before you leave ground 2, do you accept that what is caught by (b) is less than what is caught by (a)?

MR GAME: Yes, your Honour, yes. And that is how Justice Beech‑Jones dealt, he knocked down the whole of them and then came back to the disclosures. So, then the question arises – so, we had a ground 3(b) in the court below at page 60, and 3(b) was:

The trial miscarried by reason of exclusion of this evidence.

So, we posit the situation in which the evidence is relevant and admissible, but it is caught by the provision, therefore you cannot get at it. So, part of the solution to this – and it may be that something is better than nothing – but describing the things as physical assaults was something that arose from a suggestion in Jackmain. But Jackmain was quite a different situation, because that was a case against false complaints, so describing them as violent attacks or unlawful conduct was not problematic in that case, but here it is problematic, given the context.

So, the problem here is if you call them “assaults”, “physical assaults”, in circumstances where one is on trial for sexual assaults, that actually misleads the jury as to what the situation is. One might be driven to say “unlawful acts”, but that itself creates its own kind of speculation as to what they might be. It was said by the respondent that we suggested it. It actually comes up in the judge’s judgment that I have referred you to, where he said you may be able to cross‑examine the subject without kind of actually saying precisely what they were. Sorry, the trial judge is at paragraph 23, and I have just been reminded that Jackmain actually came after this case.

In any event, the idea that there it does create, as Justice Harrison observed in Taylor, a sense of unreality about the whole thing because everybody is kind of stepping around what it is that is actually being described, but then the prosecution sets out – or the Crown set out – various aspects of cross‑examination about this. If you describe them just as assaults, one cannot say with certainty, but the jury are likely to think that they distinctly were not sexual assaults because they are hearing a trial about sexual assault. That puts into a different context what is actually happening between those individuals.

GORDON ACJ: Do you accept that it is not uncommon in criminal trials for evidence to be excised by agreement, addressed in a particular way in order to minimise both danger and prejudice?

MR GAME: Yes, your Honour.

GORDON ACJ: We are not in a black and white box here.

MR GAME: No, your Honour, I do not say that, but I do say – yet it is worth recalling something about – in GEH, Justice Harrison observed that all these kinds of cases are sui generis; one has to kind of deal with the problems that arise in the particular case. The problems that arise in this case, we say, are sui generis because if you just describe them as physical assaults they are going to think they are not sexual offences. His Honour Justice Beech‑Jones characterises that as false, in paragraph 12 at page 70. We say, yes, that is correct. It leaves a quite misleading impression. To say it is better than nothing, our point about it is this: that that does not equate to the getting of a fair trial.

GORDON ACJ: That is the question. You have accepted there is no black and white rule here, and one accepts that we have to deal with the evidence as it is presented, or the issues as they arise in the context of a criminal trial itself. The third question then becomes, well, what is the issue here and how is that addressed? What is the problem here?

MR GAME: The problem is this: that in a situation where, if all of this related to a disclosure of sexual offending, the appellant is giving evidence about the disclosure of that sexual offending – they are going back and forwards to Queensland about that – it makes it so much more brazen and extraordinary that he would do this. One needs to kind of understand that, but to call them assaults takes away the teeth to that argument.

Justice Adamson gives a list of things, at page 94. One looks at them individually and you say, well, if they are described as assaults only, you can still make those points. They do not have the same teeth if you take out the reference to “sexual assault”, and they might be thought of very differently. The thing might be thought of as an elevation of seriousness of conduct. We say that you cannot get a fair trial by just describing these things as assaults, is the basal point.

The third ground is related, which is this: say it is excluded, and say one cannot find a kind of acceptable way of dealing with it excluded, the question is – there is actually already an order for a retrial – how is section 8 of the Criminal Appeal Act engaged? I am just going to take you to two passages, one of Justice Mahoney in the Morgan Case – and that is now 30 years old – at volume 4 of the appeal book, page 563. Some of the language is no longer language that would be used. In that appeal ‑ ‑ ‑

GORDON ACJ: This is R v Morgan (1993) 30 NSWLR 543 under tab 25?

MR GAME: Yes, your Honour, it is page 552. The passage I want to go to is at 554. As I said, the language – so, the point that was put there at 554 was, what do you do if the evidence gets excluded and you cannot get at the evidence, even though it is relevant and admissible, and potentially exculpatory? Then, in that paragraph that begins “However, in this case”, his Honour uses the language of “unsafe and unsatisfactory”. That was still used until the decision of this Court in Fleming. So, that was not controversial language. Then:

If the result of the application of s 409B –

which is the predecessor:

is that the accused has not had a fair trial, then the verdict will not stand.

His Honour refers to a “residual protective discretion”, but that, we think, must be a reference to section 8 of the Criminal Appeal Act, and he brings in Dietrich and Jago. The point about it is this: if the Crown says, well, you have not brought us to the extreme situation described in Jago – but what we say is if you cannot get a fair trial in the sense that this is relevant probative evidence that may favourably lead to the outcome of an acquittal, then one cannot get a fair trial. It does not go higher than that.

In Jackmain, a proposition is put. The relevant passage I wanted to take your Honours to is – this is Jackmain [2020] NSWCCA 150; (2020) 102 NSWLR 847 – at 202 to 204, and it does refer to a stay. The constitutionality of the provision is saved because of the ability to get a stay. At one time, that was a controversial proposition, but that 202 to 204 is ratio in Jackmain, and Jackmain was the subject of an unsuccessful special leave application directed to this subject.

GORDON ACJ: What was the position – I have a faint recollection of reading – that even the trial judge themself took of the view of this evidence?

MR GAME: Yes, so what the trial judge said about this evidence appears in the – his Honour says, at the beginning of the judgment, at paragraph 14 ‑ ‑ ‑

GORDON ACJ: Where are you?

MR GAME: I apologise, your Honour – page 66 of the further materials of the appellant. Paragraph 14.

GORDON ACJ: Thank you. That was the bit I was looking for.

MR GAME: He says:

To exclude that evidence would lead to an unfair distortion of the facts.

And then, at 18:

The proposed cross‑examination, however, would not have given rise to this complainant having to “endure what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court”.

And then, at 23, he says:

I cannot help but think, however, that Parliament did not intend the result which has occurred in this case.

And at an earlier point he described the evidence as not just probative but highly probative. His Honour expressed that the trial judge had strong views about this material. Our position about this is that what is engaged here is section 8 of the Criminal Appeal Act.

The question is: what is the more accurate remedy? We say, if we have lost on our argument about admissibility, then – and an adequate way of dealing with it is not identified in describing them as “assaults” – the appropriate order is not for a retrial but for acquittal. We base ourselves on those comments. Incidentally, the comments of Justice Mahoney in Morgan on that subject were ultimately obiter, but they were considered and they were agreed by the other two judges ‑ ‑ ‑

GORDON ACJ: Being those comments that you have taken us to at 554.

MR GAME: Yes, your Honour, that is correct. Those are our submissions.

GORDON ACJ: Thank you, Mr Game. Ms Dowling.

MS DOWLING: Your Honours, section 293(3), which has now been renumbered 294CB of the same Act – that is, the Criminal Procedure Act 1986 – where it is inadmissible under subsection (3):

Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience –

And I draw your attention to the lack of a preposition there. It is not a sexual experience. And under subsection 3(b):

has or may have taken part or not taken part in any sexual activity –

And there is a minor grammatical, but we say important, distinction there between the lack of a preposition in relation to “experience” and the inclusion of one in relation to “activity”. In response to your Honour Justice Gleeson’s questions about whether the section was originally intended, perhaps, to refer only to consensual activities, it always applied to – prescribed sexual offences, to which it has always applied, have always included child sexual offences, and those, of course, do not include consent as an element.

There is nothing in the second reading speech that supports the contention that it was so intended to operate only to consensual activities and, certainly, given that it applies to child sexual assaults of which consent is not a relevant factor. We say it always was intended, and certainly has been construed over the last 40 years, as applying to consensual and non‑consensual activity and experience.

In our submission, in subsection (3), the terms “experience” and “activity” refer to different concepts. It may be that they are on a continuum, but they have to be given different work in the construction of the statute. We say that “sexual experience” is directed to a general state of experience. Examples arising from the case law include evidence that a complainant was a virgin, or evidence that a complainant was a sex worker without any further detail, whereas “sexual activity” is directed to one or more discrete sexual occurrences.

What the appellant tries to do in this matter – and it is not an uncommon thing, we see it in Jackmain – is to aggregate various instances of sexual activity and describe that as “experience” and so seek to avoid the temporal limitation that is found in 293(4)(a)(ii), which is that the experience or activity was “at or about the time” of the subject offence. In our submission, the appellant’s argument, if accepted, would result in a significant erosion of the intended operation of the subsection.

EDELMAN J: I am not sure the appellant’s argument is quite one of aggregation, but one of characterisation in the sense that it characterises the experience in particular circumstances as – it might even be a single instance – temporally going beyond the moment in time of that offending.

MS DOWLING: I will come to that, your Honour Justice Edelman. We say this argument slides between – well, it slides all over the place, but it includes rolling up the Queensland offending as sort of an aggregate experience, and because of the supposed disavowal of the appellant of any intention to descend into the finer detail, there is that slight wooliness of description that your Honour Justice Edelman has just asked me about. If one is really looking at discrete acts then they are better characterised and, in fact, should be characterised, and can only properly be characterised as instances of sexual activity.

GLEESON J: Did Justice Harrison not effectively, in GEH, treat “sexual experience” as an aggregation of “sexual activity”?

MS DOWLING: If I may come to a detailed treatment of GEH in a moment, please, your Honour. The appellant’s contentions about the – the in terrorem contentions about the so‑called universal criticism of this section in their written submissions should not be accepted in view of its clearly stated legislative purpose – and your Honours have the second reading speech – its consistent application in criminal trials in New South Wales for over 40 years and its repeated re‑enactment without amendment.

I will take your Honours to the Law Reform Commission report in a moment because it dispels a couple of the myths that we say that, certainly, the trial judge laboured under in this case but also that the appellant seeks to rely on. Before I go to that, if I may take you briefly to some of the more factual materials. If I could take you first, your Honours, to the chronology that was tendered at trial. That is in the appellant’s book, at pages 6 to 7.

GORDON ACJ: What is the purpose of this factual analysis?

MS DOWLING: It is to highlight matters that are not highlighted in the graph in the appellant’s outline. It is to stress to your Honours – it reminds your Honours, with respect, that at the time of the Queensland offending, the complainant was five and a half to seven years old when it started, and she was eleven and a half to twelve and a half when it stopped.

What is not included in this document is the date of the first disclosure, which my friend has already told you about, and that was late 2009. The first disclosure to the appellant happened in late 2009, but the Queensland offending had already ceased in mid‑2009. On page 7 of the book the entry titled “Late 2017” is an entry to the disclosure of this subject offending, which happened when she was fifteen and a half, and that has some significance, your Honours, and that was three years after the New South Wales offending had ceased.

There was a gap of at least 18 months, possibly two and a half years, between the last of the Queensland offences and the commencement of the subject offences, and that gap is, really, very significant when one is looking at the temporal requirement in subsection (4)(a)(i), which is that the experience was “at or about the time” of the subject offending. Your Honours do not need to go to this, but in cross‑examination of the complainant it was put to her that she had been living with the appellant for about two years before anything of a sexual nature occurred, and necessarily that is two years since the Queensland offending.

As your Honour Justice Gordon put to Mr Game, it is critical to identify the particular evidence that is sought to be led when considering an application to whether evidence is excluded under section 293. As your Honours will have seen in your readings for today, applications to adduce evidence under the exceptions contained in 293(4) are highly factually dependent and the questions in those cases can only be answered by reference to the specific evidence sought to be adduced, which makes it so difficult.

As his Honour Justice Harrison observed in GEH, it is so difficult to extract propositions of principle from those authorities. However, that is the only way that the issue can be determined in any particular case. It is necessary, therefore, to go back to what the appellant at trial said he was trying to get in. If I could take you to the appellant’s book at page 32, please.

STEWARD J: This is the page I referred Mr Game to.

MS DOWLING: Yes, thank you, your Honour Justice Steward. So, this is the lengthy written submission that was filed at trial in support of the application to adduce the evidence. Page 32 is titled “The prior sexual experience”. Of course, I just remind your Honours that at trial the only application being made was under (4)(b), that is, the relationship exception. For what it is worth, I note that the appellant described it as “experience” at the top of page 32. At paragraph 10, the appellant’s trial counsel notes the fact that the appellant:

was arrested and charged with 13 sexual assault offences including 4 rapes –

It says 13, it was actually 12.

GLEESON J: Is that the appellant?

MS DOWLING: I am sorry. This is the Queensland offender.

GORDON ACJ: Yes.

MS DOWLING: So, the Queensland offender is charged – it says 13, that appears to be a typo, it was in fact 12 offences, including four rapes. Following a successful appeal in Queensland, there was a plea negotiation. The appellant pleaded guilty to four charges of indecent treatment with a child under 12. The facts of the offending the subject of the pleas of guilty are set out in the Criminal Court of Appeal judgment at paragraph 72, but I do not need to take your Honours to them now.

Pertinently, in the written submissions at trial – if I could take you to page 45 of the appellant’s book. This is under the heading “Did a relationship exist between the accused and complainant”, so this appears to be directed to the 293(4)(b) question. The appellant there says, at paragraph 47:

The evidence to be admitted is of the reporting of the previous sexual assaults and hearings, not the assaults themselves.

But this is not consistent with later parts of the submissions, and it is not consistent with the position in this Court taken by the appellant, in my submission. Although the appellant says, in his ‑ ‑ ‑

GORDON ACJ: Do you mean in relation to (b)?

MS DOWLING: In relation to the evidence that is sought to be led, and I will develop that immediately, if I may, your Honour.

EDELMAN J: Under (b).

GORDON ACJ: Under (b), is what I am asking.

MS DOWLING: Initially, it was sought to be led under (b) at trial, but now it is sought to be adduced under both subsections (a) and (b).

EDELMAN J: What you are being asked is whether there is a departure from the approach that was taken at trial in relation to (b) in this Court in relation to (b). So, you say that the appellant is trying to get more material in under (b) in this Court than was sought at trial?

MS DOWLING: As I will come to in just a moment, your Honours will see that it was always the case that the details of the offending, if the appellant wanted to make good these submissions, would have had to be put to the complainant. I will take you to it ‑ ‑ ‑

GORDON ACJ: Given the time, Ms Dowling, is that an appropriate time for the Court to take its morning break?

MS DOWLING: Thank you.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

MS DOWLING: Your Honours, if I could clarify something that I was saying before the morning tea break, it is not our submission that the appellant has changed his case in relation to (4)(b) between the trial and the appeals, but what I am putting to you is when one has a look at the submission that was made, including as to the forensic advantage that has been lost, the submission made below and the submission made here, you will see that that submission can only be made good if details of the Queensland offending were put to the complainant.

I will take you to where that is stated clearly in the trial submissions. Just in the interest of setting out, in full, all of the things that the trial counsel said in relation to what the evidence was, at the appellant’s book of further materials, page 61, paragraph 147, he says:

The defence does not intend to cross‑examine the complainant in any significant detail on the details of the previous sexual assaults, but mainly on her reporting of it to the accused and the subsequent court hearings.

So, there is some important qualifiers there, in my submission. If your Honours would then turn over the page to the appellant’s book at page 62. The title of this part of the submission is “The evidence to be led in relation to the previous sexual assault”, and the paragraph to which I wish to draw particular attention is paragraph 173, on appellant’s book page 63. There, the appellant’s trial counsel said that he wanted to put:

That the previous matter –

that is, the Queensland offending:

initially included 4 rapes, to dispel any belief in the minds of the jury members that a child who describes sexual assault in detail must have been assaulted by the current accused.

Now, that proposition and submission is what has been called, in the written submissions in this Court, the “false memory” submission. It is the submission that the child has either confused or conflated the memories, or has drawn on the memories of the Queensland offending in order to give content to the false allegation they have made against the appellant.

It was squarely stated at trial that the evidence that they wanted to question the complainant about included these four rapes. Now, the four rapes were not included in the matters to which the Queensland offender ultimately pleaded guilty. He pleaded guilty to four indecent treatments. That is also significant when one looks at the judgment of his Honour Justice Beech-Jones, which I will take you to shortly.

My learned friend, before the morning tea break, in answer to your Honour Justice Gordon’s question, described the material as full details of the disclosures that appear in the appellant’s book at pages 96 to 98. So, in our submission, there were really three categories of evidence that were sought to be adduced as an exception to section 293. They are, first of all, the details of the Queensland offending, and we see that in question in paragraph 173 at appellant’s book 63. The second category is the content of the disclosures to the appellant. The third category is evidence about the course of the Queensland investigation and proceedings.

GORDON ACJ: Do you mean by the third, the things which up until now have been categorised as part of the disclosures?

MS DOWLING: No, that is the second.

GORDON ACJ: No, the disclosures were to the appellant in category two.

MS DOWLING: The disclosures to the appellant, and the third category is the Queensland investigation and the prosecution of the Queensland offences.

GORDON ACJ: Yes, and they, in Justice Beech-Jones’ judgment form, part of the disclosures.

MS DOWLING: I thought that they were called the “aftermath” in the lower court. If I may come back to your Honour – I think we are in agreement about the three discrete categories, though.

GORDON ACJ: So, his Honour at core appeal book page 67, paragraph 7, described:

the evidence of various disclosures by the complainant about –

the Queensland offences, and included in the five your categories two and three.

MS DOWLING: Yes, that is right. Thank you, your Honour. In our submission, it is important to note that the only evidence that the appellant did not get to explore in cross-examination was that first category, that is, the details of the Queensland offending, which the appellant at trial submitted was necessary to support the false memory submission.

In his reply submissions in this Court, the appellant has suggested that putting before the jury that the complainant had previously experienced child sexual assault would not necessarily involve descending into the fine detail of the Queensland offending. But we say that that contention cannot be right and should not be accepted. It would not be possible or fair to the complainant to make a submission that she had conflated or confused memories of the Queensland offender with the appellant, or that she had made a false allegation drawing on those memories without putting that to her, and putting before the jury the details of that offending.

So, the force of the false memory submission really depends on the details of the offending being put to the complainant and being before the jury. The disclosures to the appellant could not provide a basis for such a submission, because they were quite limited, and they do not provide very much detail of what happened to her in Queensland. The significance of this is two-fold. The first point is that the appellant’s submissions in this Court must be evaluated by reference to this category of evidence and, particularly, his submission in relation to the false memory submission and the opportunity that was lost in that regard.

Secondly, in the judgment of his Honour Justice Beech‑Jones, the Chief Judge at Common Law, as his Honour then was, his Honour does appear to have proceeded on a misapprehension as to this aspect of the evidence, and, as your Honour the learned presiding judge has referred me to, at paragraph 7 his Honour uncontroversially observes that a “proper application” of the section:

requires an identification of the precise evidence which is sought to be adduced –

However, in our respectful submission, his Honour then appears to have proceeded on a mistaken premise. His Honour says that the:

evidence sought to be adduced . . . was not evidence of the commission of the four offences by the “Queensland offender” –

Now, that is not consistent with the submission to which I have just taken you. In addition, I would observe, your Honours, that it is not entirely clear in paragraph 7 of the judgment, there, whether his Honour was referring to the four pleas of guilty or to the four rapes that were originally charged in Queensland. And certainly, it is the latter – the rapes, that is – that are referred to in the appellant’s trial written submissions at paragraph 173.

GORDON ACJ: I had understood it to be the pleas of guilty, because of his cross‑reference to Justice Adamson at paragraph 72, core appeal book pages 89 to 90, where her Honour sets out ‑ ‑ ‑

MS DOWLING: Yes, the table with the ‑ ‑ ‑

GORDON ACJ: ‑ ‑ ‑ the pleas of guilty and identifying the conduct that was the subject of the plea.

MS DOWLING: Yes, however, as I have taken you to, the application was not so confined. And, of course, the pleas of guilty only related to indecent treatments and could not really have given any support – in fact, if it was so confined, could not have given support to the false memory submission.

GLEESON J: What you are saying is that Justice Beech‑Jones also misunderstood the “forensic purpose” that he set out at paragraph 8 of his reasons, I think. Unless that is all caught up in the idea of inherent improbability.

MS DOWLING: No. There are four discrete forensic purposes that have been identified by the appellant in their written submissions in this Court – and they are at paragraph 24 of the appellant’s submissions – of which the false memory submission is only one. The other three were raised in cross‑examination and were maintained all the way through.

GLEESON J: So, Justice Beech‑Jones at paragraph 8 is describing a summary by the trial judge. Does that mean that the trial judge was presented with a different argument from the one that is put in the written submissions at 24?

MS DOWLING: I will have to come back to your Honour, if I may. If I can take you, just very briefly, to the trial judge’s reasons. Your Honours will recall that the ground of appeal relating to section 293 was – well, the error was conceded in the Criminal Court of Appeal that the 293(4)(b) argument had been “misapprehended” by the trial judge.

GORDON ACJ: So, that sort of leads to the question, does it matter what was put before the trial judge in that sense? And the argument is clearly misconceived by the trial judge, you accepted that in the Court of Appeal in relation to (b) ‑ ‑ ‑

MS DOWLING: But the evidence was not. The evidence had not changed. The evidence that the appellant sought to adduce before the trial judge remains the evidence that is sought to be adduced – was sought to be adduced in the Criminal Court of Appeal, and one can see that by the reiteration of the false memory submission in this Court as well. So, I am still – and I apologise if I am going slowly, but I am still in the part of my argument where I am seeking to identify with some clarity the evidence, because one cannot have the next discussion about the application of the law without some clarity here. Your Honours, returning to your Honour Justice Gleeson’s question, at core appeal book – excuse me, I will just find the reference.

GLEESON J: It is 66 in the book of further materials. Those paragraphs 12 and 13 seem to correlate with what Justice Beech‑Jones has said, and I am just a little bit confused, because that seems to be a much narrower set of purposes than what you are discussing now.

MS DOWLING: Well, at paragraph 11 the trial judge notes that counsel did not propose:

to descend into any fine detail of the sexual offending itself.

That, we say, is the foundation for the conclusion at paragraph 18 across the page that it:

would not have given rise to –

excessive humiliation and the revelation of personal matters.

GORDON ACJ: How are we to, and do we need to, reconcile what is put in 11 with what you have just put to us about the four rapes or offences in Queensland?

MS DOWLING: When one comes to the judgment, his Honour – you will see from the reasoning of both Justice Adamson and Justice Beech‑Jones that both of them comment that cross‑examination of the complainant on the details of the sexual offending in Queensland would be excluded, and so that is the starting proposition – that first category appears, on everybody’s view, to be inadmissible.

Now, turning back to the Court of Criminal Appeal judgment at core appeal book page 71, paragraph 16, Justice Beech‑Jones again refers to the evidence the subject of the application being:

not (direct) evidence that the complainant was abused but instead evidence –

of the disclosure, and that is what we were discussing earlier. We say, with respect, that that is not a correct characterisation of the evidence that was sought to be led when regard is had to the submissions that were made below and that continue to be made in this Court in relation to the loss of opportunity to develop the false memory submission.

If I can take you now to the judgment at paragraph 22, still in his Honour Justice Beech‑Jones’ reasons. So, his Honour has just referred to the reasons of Justice Harrison in GEH, to which I will come to shortly, and accepts Justice Harrison’s reasoning. He then refers to the fact that:

the evidence the subject of this ground is the various disclosures –

so, he is only dealing with that second category. Then he characterises that as “sexual experience”, and I will come to that shortly. Halfway down the paragraph, his Honour notes:

By way of contrast, had the evidence sought to be adduced been only the complainant’s description of the acts perpetrated against her by the Queensland offender –

We say that is the first category:

then that would only have been evidence “of” sexual activity on the part of the complainant –

and it would not have satisfied the temporal requirement. So, his Honour expressly finds there that her description of the Queensland offences would be inadmissible. As I have already mentioned, the inadmissibility of the detail of the Queensland offending – that first category – is something upon which all three members of the Criminal Court of Appeal agreed would infringe the section.

Your Honours, I do not wish to take your Honours in any detail to the complainant’s cross‑examination, but it has been reproduced in full in the respondent’s book at pages 6 to 91. It is reproduced in full because it is so detailed on the three topics that were allowed to be cross‑examined on. It extended over three separate hearing days and, relevantly to this appeal, the cross‑examination included very detailed questioning on the topics of whether the complainant had an opportunity to complain to police and others, given that she was involved with the Queensland police; the inherent probability of the appellant offending against her while she was involved in legal proceedings and with the police in Queensland; and it also went to the relationship of confidence, or the so‑called relationship of confidence, between the complainant and the appellant. In our written submissions, we have listed out the detailed transcript references by topic.

In reality, the only topic that he was unable to explore at trial was the false memory line of cross‑examination, but we say that all judges in the Criminal Court of Appeal would agree that that was unavailable because that would necessarily require descending into the details of the Queensland offending. That is precisely the form of cross‑examination that the provision is supposed to preclude.

If I can turn now to the section, your Honours. In response to the suggestion by both the trial judge and the appellant that the exclusion of this type of evidence was an unanticipated consequence of the operation of section 293, I would like to take the Court very briefly through some aspects of the legislative history.

As your Honours are aware, the progenitor of section 293 was section 409B of the Crimes Act 1900 (NSW). That was first introduced in 1981 and it has been reenacted in substantially the same form in 1999, 2001, 2005, 2018 and most recently in 2021. In our submission, the provision was and remains the statutory expression of the legislature’s deliberate choice to reform the rules which govern the admission into evidence of a complainant’s sexual history in criminal trials. It is a provision which was intended to, and which does, exclude the admission of relevant and therefore probative evidence.

As part of this – I hope, brief – excursion, your Honours, if I could take you briefly to the judgment of his Honour the Chief Justice of New South Wales, Justice Bathurst in Jackmain. That is in the joint book of authorities, volume 4, tab 22, at page 479, paragraph 24.

JAGOT J: Paragraph 24?

MS DOWLING: Paragraph 24, thank you. At that paragraph, the Chief Justice, with whom Justices Johnson, Button and Wilson agreed, observed that:

s 293 forms part of a suite of legislative provisions designed to protect complainants in their giving of evidence.

And which:

demonstrate the concern of the legislature to protect complainants in sexual assault cases to the greatest extent possible.

Later in that judgment at joint book page 519 – this in the reasons of her Honour Justice Wilson ‑ ‑ ‑

GORDON ACJ: What page of the report is that, please?

MS DOWLING: Page 898.

GORDON ACJ: Thank you.

MS DOWLING: Paragraph 244, your Honours. Her Honour observed that:

s 293 strikes a balance between the community’s interests in an accused person being permitted to test to the fullest extent possible the Crown case at trial, and the community’s interests in ensuring that the operation of the criminal justice system does not inhibit victims of sexual assaults from seeking the protection of the courts.

Then her Honour observed:

Any change to that balance must be for the Parliament, and not for the courts, as Leeming JA –

observed earlier in the judgment. Your Honours, as both Mr Game and I have referred to, in 1998 there was an extremely comprehensive report on the operation of 409B prepared by the New South Wales Law Reform Commission. That is in the joint book of authorities, volume 5, tab 29, from page 620. As part of that review, the Law Reform Commission considered the “sexual experience” provisions enacted in other Australian jurisdictions, each of which reserves to the trial judge a discretion to admit the evidence. That is referred to at paragraph 5.2 of the Law Reform Commission, which is on page 707.

At pages 711 to 713 of the joint book, which is paragraphs 5.15, which starts on page 711, and goes through for the next few pages, in this section of the report, the Law Reform Commission considered empirical research into the application of those discretionary provisions in Victoria and in Tasmania, and interestingly, in my submission, with respect, noted that where there is a judicial discretion in those jurisdictions, trial courts:

were generally reluctant to refuse an application to admit sexual experience . . . if it was described as being critical to the defence case.

That is found at paragraph 5.18 of the Law Reform Commission report. The Commission found that those provisions had not substantially altered the rate at which evidence of a complainant’s sexual conduct was actually admitted in trials – that is at paragraph 5.21 of the report.

On a slightly different point, in his written submission in this Court and again in my friend’s oral submission this morning, the appellant argues that this case involves:

evidence of other sexual abuse which may explain the complainant’s behaviour or knowledge otherwise than by reason of the charged allegations –

He then submits that the exclusion of this by operation of 293 is an application of 293 which was “not anticipated by the legislature”. We say that this submission is not supportable when one looks to what is examined by the Law Reform Commission. If I can take you back in this document to page 673 of the joint book. This is at paragraph 4.8. Under the general heading:

ARGUMENTS IN SUPPORT OF REFORM

Right of the accused to a fair trial –

at paragraph 4.8 is the heading titled:

The “problem cases” –

Your Honours will see the Law Reform Commission discusses particular cases the subject of complaint from judges who made submissions. They identified two categories – at paragraph 4.8, turning over the page, at 674 of the joint book – cases where:

• the complainant was a child;

• the accused denied that the alleged abuse occurred; and

• the evidence which was excluded . . . was evidence of sexual experience or activity . . . rather than evidence of sexual reputation.

That is this case. That is the description ‑ ‑ ‑

GORDON ACJ: But it is most cases, though, is it not, Ms Dowling?

MS DOWLING: Well, it is not ‑ ‑ ‑

GORDON ACJ: It is a very broad category.

MS DOWLING: As your Honour will see at 4.10, it has been described in the two broad categories:

evidence of sexual abuse of the child by someone other than the accused –

and the:

“false” allegations –

category of case, which is the Jackmain sort of category. They are described in the Law Reform Commission as the cases that are perceived to operate in a manner that is unfair. The point that I am seeking to make before this Court is that when one considers the re‑enactment of the section in 1999 immediately after this report, and again and again throughout the 2000s, it cannot be said that the operation of it to problem cases of this kind is unanticipated. It is well understood.

As your Honours know, the Law Reform Commission ultimately proposed a wholesale redraft of the section, and that suggestion has never been adopted by the New South Wales legislature. In our submission, the repeated re‑enactment of the provision, first in 1999, hard on the heels of this report, and then again a further four times thereafter without substantive amendment, can only be sensibly understood as involving the consideration and rejection of the recommendations of the Law Reform Commission.

EDELMAN J: Is that because you rely upon the so‑called re‑enactment presumption?

MS DOWLING: Yes. And we say that that re‑enactment leads inexorably to the conclusion which her Honour noted in Jackmain in the judgment at page 898, which is that:

the legislation intended and intends that s 293 have the wide operation that it has been consistently held by this court to have in –

its decisions, and:

That there is no discretion available to the courts to admit evidence otherwise excluded by the provision must also be concluded to reflect the considered will of Parliament.

If I could turn now, please, your Honours, to the application of 293(4)(a) in this case. We say that to avoid the obvious difficulty in this case that the Queensland offending ceased at least 18 months before the commencement of the subject offending, and so would apparently fall foul of the temporal restriction in 293(4)(a)(i), that is, “at or about the time”.

We say the appellant is forced to characterise the disclosure of the Queensland offences as being evidence of “sexual experience” within the meaning of subsection (3), because “experience”, unlike “activity”, is an unabating condition. We say that this characterisation wrongly elides disclosure of past sexual activity with the concept of sexual experience. In our submission, “sexual activity” refers to acts of a sexual nature, consensual or non‑consensual, that a complainant has or “may have taken part in or not taken part in”.

In contrast, we say that “sexual experience” is a general state, or the condition of having had experience in sexual matters. It is a misnomer to refer to a sexual experience that the complainant has had for the purpose of this section, and that is not the language of the section. And I go back to 293(3)(a), it is:

Evidence that discloses . . .

(a) that the complainant has or may have had sexual experience –

GLEESON J: So, what would be an example, on your reading?

MS DOWLING: The common examples from the case law of “experience” are either that the complainant was a virgin or the complainant was a sex worker.

STEWARD J: Is it the categorisation of a person?

MS DOWLING: I am sorry?

STEWARD J: Is it the categorisation of a person? Is that how it is put? Sex worker, non-sex worker?

MS DOWLING: It can be, and it has often been, in the case law. And one falls – it is very difficult to answer these questions, as Mr Game, I think, may have also found, in general terms, without reference to the particular evidence that is being sought to be adduced. We say that such a construction of “sexual experience” is supported both by the context within the section, including the proposition that the use of the two phrases in subsection (3) does indicate that they have different meanings and apply to different types of evidence.

GLEESON J: So, why would the complainant is a victim of child sexual abuse not be a category?

MS DOWLING: I am sorry?

GLEESON J: Would not a complainant who is a victim of child sexual abuse be analogous to, the complainant is a sex worker?

MS DOWLING: Well, we say that is – characterisation of it is not the same. It is only meaningful when one looks to the evidence that is being sought to be adduced, and that is why one has to keep coming back to the evidence. The question to the complainant is not going to be: you are a victim of child sexual abuse. It would be: this happened to you in Queensland; you told the appellant X, Y, Z; you were involved with police. It would be the actual facts which are being sought to be elicited, which illustrates the difficulty that does attend these applications.

EDELMAN J: But what that submission means, is that you are not actually differing from the appellant’s submission about the content of the term “sexual experience”. You accept that “sexual experience” can involve characterisation, and that it can involve a characterisation such as Justice Gleeson put to you – and I think as the appellant submitted – a person who had been subject to the trauma of child sexual abuse, but you say there is no causal link between the evidence and that characterisation. Is that right?

MS DOWLING: Thank you, your Honour. I think I seek to make a different point, if I may, which is that one can always categorise participation in a sexual activity as experience. If one just says, you are a virgin or not a virgin in relation to somebody who has had a sexual – has participated in a sexual activity. So, we say there has to be a meaningful difference between those limbs of subsection (3). And it is not a matter of simply recasting it in the manner that the appellant has done.

It is necessary to really drill down into what is the objective nature and quality of the evidence that is being sought to be led; is it actually evidence of participation in sexual activity – as it is in this case, we say – or is it really evidence about a state of being that is somehow relevant to the appellant’s case? And it is well illustrated by those broad‑brush statements of, the complainant was a sex worker and therefore would have behaved in a particular way, or the complainant was a virgin and therefore would not have complained, in some other way. So, one sees the forensic purpose that comes out of it later. Your Honours, we say ‑ ‑ ‑

STEWARD J: So, the distinction, is between events – particular events, which is “sexual activity” – versus, perhaps, a characterisation of events, which might constitute “experience”.

MS DOWLING: And a state of being, which is picked up by “experience”. And if I can take you, perhaps, to ‑ ‑ ‑

STEWARD J: But you point is that you want us to read the language so that we do not read “sexual experience” as a reference to the acts themselves – individual acts themselves and what follows from that.

MS DOWLING: I am sorry. I am not sure I understand your Honour’s question, forgive me.

STEWARD J: I will try and put it another way. You want us to read the the phrase “sexual experience” as not being a reference to particular sexual acts per se, but how someone might be – I will use the word “categorised” again – by reference to particular sexual acts that were to be the evidence of what follows from that.

MS DOWLING: Yes.

STEWARD J: I think that is how you might be putting it.

MS DOWLING: Yes, thank you, your Honour. If I could take ‑ ‑ ‑

GORDON ACJ: Can we just deal with one aspect of this. I had understood from your submissions that you accepted Justice Harrison’s definition of the distinction to be drawn between these two concepts, especially at, I think it is, paragraphs 63 and 64 of GEH.

MS DOWLING: I was just about to take your Honours ‑ ‑ ‑

GORDON ACJ: Is what you are just putting to us any different from that which is set out in those paragraphs? And if not, I am missing something, otherwise.

MS DOWLING: No. With respect, I am not seeking to depart from his Honour Justice Harrison’s characterisation of these concepts. His Honour’s discussion – which, again, of course, needs to be read in line with the evidence that was sought to be adduced in that case – is from 62 through to 66. Sorry, do your Honours have the judgment there? It is in the ‑ ‑ ‑

GORDON ACJ: It is under tab 20, GEH v R [2012] NSWCCA 150.

MS DOWLING: Thank you, your Honour. I am going to page 460 of the joint book.

GORDON ACJ: Did I say tab 12? I meant to say tab 20.

MS DOWLING: Thank you, your Honour. It was tab 20. At 460 of the joint book, which is paragraph – the discussion starts at paragraph 62, but at 63, his Honour, tackling this question, describes – this is halfway down the paragraph. Your Honours can read the paragraph for your Honours’ selves, of course, but halfway down the paragraph, his Honour notes that “experience”:

encompasses a state acquired over time, whether long or short, but which refers to the condition of having had experience in sexual matters, as opposed to –

And he is referring to “activity” here:

a single or isolated sexual experience, or a number of them, at some particular time.

We say that that is what the Queensland offending falls into. It is properly described as a number of sexual experiences at a particular time. His Honour then goes on to say that:

The inquiry brought forward by –

subsection (3):

appears to be related to whether the complainant was or was not “sexually experienced”.

GLEESON J: The way I read that is that everyone can fall within that dichotomy.

MS DOWLING: His Honour then seeks to draw a distinction to “activity” there, by saying:

In contrast, the latter –

which is “activity”:

suggests a discrete sexual activity –

So, his Honour is clearly finding that they are discrete concepts, perhaps difficult to explain with clarity. At paragraph 64, his Honour emphasises that:

The distinction may be critical –

because of the temporal hurdle that is also included in subsection (4)(a).

GORDON ACJ: How do you address the distinction drawn – you have to read all these paragraphs together, I think.

MS DOWLING: Yes, starting from 62 through to 66.

GORDON ACJ: The distinction drawn between “sexual experience” and “sexual activity” at a general level is addressed in 63, and then there is a particular aspect of it drawn in 64 in the middle, which has some sort of temporal connection attached to it.

MS DOWLING: Yes, and then there is the conclusory sentence, at the end of paragraph 64, where his Honour notes that evidence that is properly characterised as experience will:

more readily satisfy the temporal test –

GORDON ACJ: Where are you reading that from, please?

MS DOWLING: That is the last sentence of 64:

In this way, evidence that relates to a complainant’s general state –

However, his Honour then does go on to say, at paragraph 65, that there is a further restriction in subsection (a)(ii); that is, the requirement of connection. Even though experience may more readily satisfy the temporal hurdle, or get over the temporal hurdle, it then has to get over the connection hurdle.

Importantly, we say, to understanding his Honour’s reasoning is paragraph 66, because your Honours will recall that the evidence here was evidence sought to be led about sexual activity that the complainant said she engaged in with another person. It is a recounting of it. His Honour says:

In the present case the evidence in question is directly related to a particular “sexual activity taken part in by the complainant” and not to her state of sexual experience generally. The evidence is limited to the complainant’s alleged sexual activity with –

a particular person. Again, that is a significant aspect of this evidence. This is evidence sought to be adduced about the complainant’s sexual activity with the Queensland offender, in a particular place with a particular person at an identified point in time. It has that specificity that is an indicator that it is in fact evidence of “sexual activity” rather than “experience”. Then his Honour goes on to discuss that the evidence in GEH was incapable of satisfying the temporal requirement.

We say the evidence sought to be admitted here is evidence that the complainant has taken part in particular sexual acts. Those acts might form part of their sexual experience but it is not evidence of their “sexual experience” in the way that the section envisages, and we say that is why our position in this Court is entirely consistent with his Honour Justice Harrison’s reasoning in GEH.

GLEESON J: If you take as an example the book of further materials – the appellant’s book – at page 96, where the child says:

You are not going to do to me what [uncle] did to me –

Mr Game submitted that that was evidence that she satisfied the criteria of victim of sexual abuse without saying anything about the particular activity.

MS DOWLING: Well, it does not say, really, anything about it, because there is no particularity. You are not going to do what somebody else did – does not identify it.

GLEESON J: You say that it is not covered by 293 at all, it would go in.

MS DOWLING: To have probative value, as Mr Game has clearly stated he wants to be able to say – he wants to be able to talk about the sexual quality of that offending. That is why the cross‑examination that occurred at trial, in the appellant’s submission, was inadequate and, he says, unfair.

GLEESON J: I think what you saying, then, is that this evidence does not fall within 293 at all, but it also may be not relevant.

MS DOWLING: Well, one also needs to bear in mind, your Honours, how this evidence is led. This evidence would not be tendered, the statement would not be tendered. This would be a line of cross‑examination put to the complainant. Of course, if she denies making the disclosures or remembering those conversations, then challenging her with that inconsistent statement would presumably require the accused to give an account because this statement is not admissible, and this was not part of the defence case as I understand it.

GORDON ACJ: Does success of your argument require the separation out of the acts from the disclosures?

MS DOWLING: We say that the acts are clearly a separate category and on no view are admissible. We say the disclosures which happened, let us say, two years after the Queensland offending – the disclosures to the appellant – are not disclosures of experience, and they are not experience so that they are also inadmissible. But they are inadmissible for a different reason. Your Honours, just ‑ ‑ ‑

GLEESON J: Can I just go back to that because I am still trying to understand – I think maybe I have proceeded on a misunderstanding, but I thought that what Mr Game was saying was that pages 96 through to 98 would be tendered.

MS DOWLING: Well, I am not sure – I think that is the evidence that would be led. I cannot see how it would be admissible, because it is an out of court representation made by the accused. The detail is, after paragraph 5:

“What did –

the Queensland offender:

do to you?”

And then the detail is given at paragraphs 6 and 7. If it stopped at paragraph 5 it would not infringe the section, but it did not; it went on to paragraph 6 and beyond.

EDELMAN J: Sorry, so you are accepting, then, that 4 is a matter that could be the subject of cross‑examination or of evidence by the accused, if the accused went into evidence?

MS DOWLING: “You are not going to do what” the Queensland offender “did to me”? Is your Honour referring to the last quote?

EDELMAN J: Yes. I thought your submission was that everything up to 5 was admissible evidence.

MS DOWLING: That last sentence of paragraph 4 was excluded, and you see that in the redacted copy. It could be, because that would be consistent ‑ ‑ ‑

GORDON ACJ: “Could be” what? Could be admissible?

MS DOWLING: Well, it could be admissible because it is does not clearly disclose evidence of sexual experience or activity. As it stands, it would be a matter for whether the appellant or the accused person wanted that truncated account to be in there. But, as we saw at trial, there was extensive cross‑examination of the physical assaults – not of what happened in the car there, but if it was confined to that ‑ ‑ ‑

EDELMAN J: I thought there was a ruling that that last sentence was something that could not be asked.

MS DOWLING: Yes, that is right. I thought the question was, could it, if it was isolated. It was never suggested that just that sentence could be put in, because I think it ‑ ‑ ‑

EDELMAN J: I see. You say it could go in, as long as it is going in as part of context of a physical assault?

MS DOWLING: Yes. But, I mean, that is not what happened. This is all in response to the question by learned Justice Gleeson, and I am not suggesting that that is a course that could or should or would be taken if there was a retrial.

GORDON ACJ: Where are we on the outline? Still in paragraph 6, or are we beyond?

MS DOWLING: Yes, we are at 6. Thank you. Your Honours, as I mentioned before, it is not unusual for applications to adduce evidence under 293 to seek to characterise discrete sexual activity or episodes of it as sexual experience in order to circumvent the temporal requirement that the “activity” or “experience” be “at or about the time” of the subject offence.

In terms of the illusion of disclosure of an experience or disclosure of an activity with the activity or experience itself, as Justice Adamson emphasises, the act of recounting a prior sexual activity or experience does not render that sexual activity or experience contemporaneous with the recounting. If I could take you to the judgment at core appeal book 102 to 103, paragraph 111, your Honours. The second sentence there, her Honour is stating that:

the uttering of a statement about other sexual activity or sexual experience –

does not render that contemporaneous with the retelling, and that is critical for the success of the respondent’s case, because ‑ ‑ ‑

GORDON ACJ: At the end of the day, it comes back to how we categorise both identification of the evidence as sought to be adduced, how we categorise it and whether it is seen as being “activity” or “experience”, and then, more importantly I think, the extent to which you hive off, if you can, the disclosure aspect from the acts themselves, and if the disclosure is seen as a set of continuum attached to the sexual experience itself or not.

MS DOWLING: Yes, there is a cascading series of decisions that need to be made in the pathway to determining admissibility. At paragraph 112 through to 114, her Honour is addressing the submission that Mr Game put in the Court of Criminal Appeal in relation to Adams, but at paragraph 114, core appeal book 103, her Honour, we say, correctly observes that what the section requires is that the sexual activity or experience itself was at or:

“about the time” of the commission of the subject offence.

and not the reporting of the activity or the sexual experience. We say that, of course, that is entirely consistent with the legislative purpose. If I can move on to the requirement that the activity or experience be “at or about the time”, which is the second requirement of subsection (a)(i). In the second reading speech, which I will not take your Honours to, but I just note that it is in joint book of authorities volume 5, tab 28, at 617, the Attorney‑General noted that it was the intention that the key words of the subsection:

are “at or about the time” of the alleged offence.

An offender:

cannot inquire or bring evidence about the complainant’s sexual behaviour with other persons last week, or last month or last year.

What we say flows from the conversion of a disclosure of sexual activity in this case into evidence of sexual experience is the circumvention of the strict temporal requirement that that experience or activity – the experience be “at or about the time” of the commission of the alleged offence. So, our first point is this is “activity”, our second point is disclosure of an activity does not make it an “experience” and does not make it contemporaneous with the commission of the offences.

On the appellant’s construction, in our submission, any past sexual activity that a complainant has engaged in is their unabating sexual experience and it would always be capable of satisfying the legislative requirement that it be “at or about the time” of the commission of the alleged subject offence. That reading, we say, would draw in the very evidence that the legislature intended to exclude. That is, what the complainant did with other people last week, last month or last year.

Just referring briefly back to the judgment at paragraph 115, core appeal book 103, we say the majority in the Criminal Court of Appeal was correct to conclude that there was not any basis upon which the evidence of the complainant’s disclosure of the Queensland offending 18 months after it happened could satisfy the condition of being “at or about the time” of the subject offending.

In relation to the third category, which the evidence of the Queensland proceedings, this is also dealt with in paragraph 115 by Justice Adamson. That was evidence of the police investigation in March and April 2010 and the prosecution of the Queensland offender in April 2011 and March 2014. Although the prosecution of the offences was contemporaneous with the subject offending, we say the majority was correct to find that evidence of involvement in criminal proceedings in relation to a sexual offence, an unrelated sexual offence, is not evidence of “sexual experience” or “sexual activity” and should not therefore be counted in the reckoning of time. So, although it was contemporaneous in time, it did not satisfy, it could not be characterised as “sexual experience” or “sexual activity”. We say that that conclusion ‑ ‑ ‑

STEWARD J: Does that mean that the evidence did not need to be excluded – of the Queensland proceedings?

MS DOWLING: It did need to be excluded, because it disclosed evidence of underlying ‑ ‑ ‑

STEWARD J: It is just – you said before that it was not evidence of “sexual experience” or “activity”.

MS DOWLING: Sorry, I think I ‑ ‑ ‑

STEWARD J: It is?

MS DOWLING: It is inadmissible, I am sorry. Thank you for questioning me about that, your Honour. Turning to subsection (4)(a)(ii), this is the requirement that the evidence:

form part of a connected set of circumstances –

if the evidence passes through the gateway in subsection (4)(a)(i), (4)(a)(ii) imposes an additional requirement that the evidence:

is of events that are alleged to form part of a connected set of circumstances in which –

the subject offending was committed. In relation to the first category of evidence, that is, the detail of the Queensland offending, on no view is that capable of being regarded as evidence of events that are alleged to form part of a connected set of circumstances. So, in our submission, that would not cause your Honours great concern.

In relation to the second and third categories, that is, the disclosures and the Queensland proceedings, even if this Court were persuaded that the disclosures and the proceedings could constitute evidence of experience at or about the time of the subject offending, and so get through the gateway of (4)(a)(i), the matters that are relied upon by the appellant to satisfy the requirement of connection, that is “a connected set of circumstances in which” the offending was committed, we say do not amount to any more than a description of the things that simply gave rise to the opportunity for the commission of the offences.

If I can briefly address the things that the appellant says makes the Queensland offending part of a connected set of circumstances in which the New South Wales offences were committed. The first thing that he points to in his written submissions at 42 is the fact:

that the complainant was living with the [appellant] at a time when –

the Queensland proceedings were on foot, and we say that that is no more than mere contemporaneity, and it does not satisfy the more demanding test of connection. Similarly, the appellant’s submission in his written submissions at paragraph 45 that the Queensland assaults:

were the reason the complainant was ultimately moved and placed into the appellant’s care –

We say that that is simply a description of the conditions that again gave rise to the opportunity for the commission of the offence. In every case, there will be a reason that an offender has access to a victim. We say that the statutory requirement of connection must mean more than a circumstance that merely creates the precondition for the offending.

GLEESON J: Ms Dowling, the fact that the evidence, to fall within subsection (a), has to be “of sexual experience” and “of events” tends to suggest, does it not, that it is more about the aggregation of activities?

MS DOWLING: In my submission, it tends to indicate it would be rarely admissible. I would contend the opposite, with respect, your Honour. One does not get to subsection (ii) unless one has satisfied subsection (i).

GLEESON J: I am not sure that it follows from what I was saying that it would often be admissible.

MS DOWLING: So, what is required is evidence that discloses sexual experience or any sexual activity at or about the time of the subject offending, and the evidence, that is, is of events that are alleged ‑ ‑ ‑

EDELMAN J: The way you have just put it then, you read the word “of” as “discloses” in (4)(a)(i). Do you read “of” as “discloses” in the same way in (4)(a)(ii)?

MS DOWLING: Well, it is – yes:

if the evidence:

(i) is of . . . experience . . . and

(ii) is of events –

yes.

EDELMAN J: Yes. So, in each case, the “of” is that the evidence disclosing both the experience and disclosing the events, it is no more specific than that?

MS DOWLING: I might need to come back to that after the lunch adjournment, but if I could provisionally agree with your Honour.

EDELMAN J: It seems to me that that may fit with the fact that the prohibition in 293(3) is on evidence that “discloses or implies” certain matters.

MS DOWLING: Yes.

EDELMAN J: So, if one then turns to (4), (4)(a)(i), if you read it as the evidence that discloses, or discloses or implies, a sexual experience, but adds then the qualification that that sexual experience must be “at or about the time of commission of the alleged prescribed sexual offence”.

MS DOWLING: And of events that are connected. Yes. It is cumulative.

EDELMAN J: Yes.

GLEESON J: That word, “discloses”, I had thought meant that we were talking about evidence that was not previously in the public arena. Is that what “discloses” means in that context, or does it mean something else?

MS DOWLING: No, I think it is a general – it is not being used in that confined way. In fact, my juniors will probably have something to say about this, but one could probably take out “discloses or implies”, just evidence that the complainant has ‑ ‑ ‑

GLEESON J: “Implies” certainly brings it a lot wider, but I think I saw in one of the New South Wales cases that “disclosure” was meant to mean making public knowledge.

MS DOWLING: Disclosure comes up in a different context in subsection (6), and if I may, if I can, come back to your Honour Justice Gleeson, because I think your Honour may have in mind a subsection (6) authority in relation to that. It is, on our case, extremely broad. The intention is to catch any type of evidence, whether that is from the complainant, from somebody else, whether it is in the form of an exhibit or lines of cross‑examination.

GLEESON J: I think what I am looking at – it is meant to be extremely broad, but it is the observation in R v White at 340 that:

the expression “discloses or implies” does not mean “proves”.

MS DOWLING: Thank you. Your Honours, returning to the aspects or the circumstances in this case that the appellant points to as giving rise to the necessary connection of subsection (4)(a)(ii), there is living with, and there is the fact that the complainant was placed in care with the appellant, and then the third circumstance pointed to by the appellant is the so‑called relationship of confidence between the appellant and the complainant. The same matters are relied upon by the appellant in relation to (4)(a)(ii) and also in relation to (4)(b).

GORDON ACJ: And that was the relationship identified by Justice Beech‑Jones as being of importance, at least in his view of the way in which those sections operated here in this case.

MS DOWLING: Yes, and her Honour Justice Adamson found that was not an appropriate way or a correct way to characterise the relationship between the complainant in this case and the appellant.

GORDON ACJ: What is wrong with the approach adopted by Justice Beech‑Jones on that question?

MS DOWLING: With respect, your Honour, the way your Honour put it to Mr Game before morning tea, which is one should try to define the relationship and then look to whether the evidence relates to it – I appreciate that it was a slightly different point that your Honour was putting to Mr Game, we say that that is not the correct way to approach, with respect, that task. The difficulty with what we say the approach that the appellant takes in this case is to work backwards from the evidence that he wishes to adduce to support the contention that that is evidence of a relationship.

It is sought to be characterised as a relationship of confidence, and we dispute that “confidence” is an appropriate term to give that. In my submission, that imports an intimacy and trust that was not apparent in the evidence that was led and is not apparent in any of the material that was before the trial judge. The appellant relies on the disclosures which he is seeking to have adduced as evidence of the relationship, but it is important to recall that the disclosure first arose because the complainant did not want to sit in the front seat of the car because she was scared of being assaulted. So, that is not, without more, evidence of a relationship of confidence.

GLEESON J: Sorry to come back to this idea that this really is framed around consent as an issue, but part of subsection (ii) is that you have to have an allegation that forms:

part of a connected set of circumstances in which the alleged prescribed sexual offence was committed –

That seems to suggest that you have, as an agreed fact, that the offence was committed.

MS DOWLING: No, in my respectful submission, that is certainly not the way ‑ ‑ ‑

GLEESON J: Or that the act occurred.

MS DOWLING: No, it is the allegation of the act.

GLEESON J: So, who is making the allegation, here?

MS DOWLING: Well, there are two uses of “alleged” in the subsection. The second allegation is clearly that made by the Crown. And we accept the appellant’s suggestion in written submissions that the first allegation can include the defence narrative of events. So, that extends to both the prosecution and defence case.

The facts in Chia, which is in the book, are quite a good example of an event that was alleged that formed part of a connected set of circumstances, and that was an utterance by the complainant during the offending that she had a particular level of experience. That is an example of where sexual experience could form part of a connected set of circumstances, because she said it, she said that to him during the commission of the offence.

Just turning back to the other factual matters – and this is a factual question as to whether there are a connected set of circumstances. The other issues or facts referred to by the appellant are the other disclosures, some of which happened in a car, and one in the house, and a comment by the complainant when she was at the hardware store and she said something about cable ties. They are referred to in our written submissions.

We say that the mere fact that a complainant says something that may be evidence of a sexual activity does not, without more, establish the type of connection that is required by subsection (4)(a)(ii). It does not bring in everything that underpins in and make it part of a connected set of circumstances. Just before I leave (4)(a)(ii), your Honours, in his written submissions, the appellant refers to:

the extreme riskiness, and so, the inherent unlikelihood, of the appellant assaulting the complainant at the time she was actively participating in –

the Queensland proceedings. We say that that is an irrelevant consideration when looking at (4)(a)(ii), because the inquiry posed by the section is a factual inquiry. The putative riskiness and resultant inherent unlikelihood of the appellant’s behaviour is a conclusion that might be drawn from those facts, and it is the forensic purpose to which the appellant sought to put the evidence, but it is not a factual matter that is capable of constituting a connecting circumstance for the purposes of (4)(a)(ii).

Your Honour, if I can now turn to (4)(b), the relationship exception. In relation to the first category of evidence, that is, the detail of the Queensland offending, plainly, that could never relate to a “relationship” between the appellant and the complainant and could not fall within this exception. In relation to the third category – that is, the Queensland proceedings – his Honour Justice Beech‑Jones, which is core appeal book page 71, two‑thirds of the way down paragraph 15, notes that:

evidence of disclosure by the complainant to –

other people:

at a committal hearing . . . and at the trial and retrial of the offender, did not relate to that supposed relationship ‑ ‑ ‑

GORDON ACJ: I think that is accepted by the appellant’s case here, Ms Dowling, as I understood the submissions made by Mr Game.

MS DOWLING: Thank you. So, the category of evidence that could potentially be considered as part of the relationship is much confined.

EDELMAN J: It is confined to two, is it not? It is confined to the disclosures.

MS DOWLING: Yes, yes.

GORDON ACJ: Is that a convenient time, Ms Dowling?

MS DOWLING: Yes, thank you, your Honour.

GORDON ACJ: How much longer do you think you will be? I do not seek at all to limit you.

MS DOWLING: The lengthy part of the submissions is over, thankfully. I would say 30 to 40 minutes.

GORDON ACJ: Thank you, Ms Dowling. The Court will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

GORDON ACJ: Ms Dowling.

MS DOWLING: Thank you, your Honour. Just very, very briefly, before I leave ground 1, I would withdraw the submission that I made before lunch that “discloses or implies” are not critical words in relation to subsection (3). The prohibition contained in (3) is wider than the exceptions contained in subsection (4). So, evidence that discloses or implies sexual experience or sexual activity is of a very wide import.

Just on the question about the line of this statement that there was discussion about before lunch that could possibly have gone in, can I refer your Honours to the cross‑examination at the respondent’s book at page 34, at line 10. At line 10, it is put to the complainant in cross‑examination:

Q. You certainly were aware that you had complained to him, to the accused, about what had happened to you in Queensland, didn’t you?

A. Not really.

Of course, that does not disclose or imply a sexual quality to the events that happened in Queensland, but we say that the forensic point is made there, that there was a complaint about what had happened in Queensland – but that is an example of evidence, it does not disclose or imply a sexual aspect to the conduct.

If I could go now to ground 2, your Honours, this is the misleading of the jury ground. We say that there is no basis for the contention that the jury would assume that physical assault did not include sexual assault.

GORDON ACJ: Can I just ask about that. That is, that if you go to page 36 of the same book that you just took us to, the complainant is cross‑examined about the Queensland offending, and at line 13:

Q. This person eventually and I won’t go into the detail, pleaded guilty to doing things, to physically assaulting you in Queensland, didn’t he?

A. Yes.

And then goes on to ask questions again about the complaint process.

MS DOWLING: Yes.

GORDON ACJ: Is that the point you are making?

MS DOWLING: Yes, that is a related point. There are two questions in the cross‑examination where the assault is referred to as a physical assault.

GORDON ACJ: Yes.

MS DOWLING: It is page 36 at line 10, and there is page 33 at line 20. They are the only two questions that are expressly impacted by the ruling. They are the only places in that lengthy cross‑examination where it is referred to as a physical assault. We say that that description of those two questions, at 33, line 20, that is:

Q. Prior to you coming to live with [aunt] and the accused, you were on a number of occasions, physically assaulted by a person in Queensland, weren’t you?

A. Yes.

And at 36:

This person . . . pleaded guilty to . . . physically assaulting you in Queensland –

In our submission, that is not misleading or a lie by omission. And if I may remind your Honours that the appellant sought to lead evidence of, we say, all the Queensland offending, but certainly the rapes – and they are physical assaults – the submission that a physical assault could only be interpreted as expressly not involving sexual offending, we say, is not a sound submission.

Further in the cross‑examination, at page 83 of the respondent’s book, your Honours will see from line 15, down to the end of the page, there is cross‑examination on, in effect, the seriousness of the conduct. At line 15:

You knew that action had been taken by police in Queensland –

And then at line 40:

The man in Queensland was prosecuted and gaoled for his conduct –

So, the jury know that the child was aged five to seven, and they know that the Queensland offender was prosecuted and gaoled.

GLEESON J: The complainant answered yes to both of those questions. Is it suggested that her answers are misleading?

MS DOWLING: No. Not at all. I withdraw that. The answers to the particular questions are not. The suggestion, as I understand it, had been put by the appellant that the seriousness or the quality of the Queensland offending could not have been understood by the jury. And it is accepted that the words “sexual offending” were not included in the cross‑examination. However, every other forensic advantage was able to be obtained, including impressing upon the jury, in support of the so‑called “powerful weapon” submission, that this child had been involved in criminal proceedings in Queensland that had resulted in the gaoling of the person that had assaulted her.

GORDON ACJ: Just one last question. Does that mean that, on your analysis, it is the false memory case that is dependent upon the details and only the false memory case?

MS DOWLING: Yes. The other three categories – the “powerful weapon”, the opportunity to complain to police because she was dealing with police, and the brazenness of the offending – all of those were able to be explored in great detail and were explored in great detail with the complainant in this cross‑examination.

As your Honour Justice Gordon observed, and my learned friend agreed with, most criminal trials do involve the exclusion of evidence that would be otherwise relevant to the fact in issue but is in inadmissible for some reason or another. Now, the absence of such information is generally not held to impermissibly mislead a jury, much less render a trial unfair.

The course of action taken in this trial was later the course of action that was later suggested would remedy potential unfairness in the Court of Criminal Appeal decision in Jackmain. When one looks at the actual cross‑examination that was conducted, we say, as I have just adverted to, that there is very minimal loss of forensic benefit.

I have already taken the Court to the only two questions in which the assault was described as a physical assault, but the entirety of the transcript over those three days goes to why the complainant did not report the appellant’s offending against her, her opportunity – her ample opportunity to do so in the context of her knowledge of police investigations and procedures – and also the fact that it was the appellant to whom she had spoken to about the offending. That goes to the brazenness.

In our submission, when one reads the entirety of the cross‑examination which, in my respectful submission, is necessary to understand the appellant’s submission, no part of it was so distorted as to become misleading. Related to this question on this ground of appeal is the proposition that an accused person should be entitled to lead relevant evidence in a manner of his or her choosing in the face of an exclusionary ruling by a trial judge. In our submission, it is not in the interests of justice that an accused person should be prevented from formulating an approach at trial that enables them to achieve the forensic purpose that they seek.

To accept the appellant’s argument that this cross‑examination was misleading and therefore rendered the trial unfair, we say, would ultimately result in the proposition that, where evidence of sexual activity or experience is properly excluded by operation of section 293 – but there is a way in which some relevant evidence can be put to the jury by excising the sexual aspect of it or some other way – then an accused person will not have that avenue available to them.

In this case, a very substantial attack was launched on the complainant’s credit in that cross‑examination and deploying the evidence that was permitted to be led. We say that it is not correct that facts that were integral to the defence case were not tendered by the exclusionary operation of 293. As I have already said before lunch, the sexual nature of the Queensland offending was only integral to the false memory submission. It was not integral to any of the other forensic purposes.

I also make the observation, with respect, your Honours, that the false memory submission was, at trial, a fairly minor aspect of his defence. His principal case was that the complainant had deliberately concocted the allegations with her aunt, and that was first advanced in his recorded interview with police, that it was a fabrication between the two of them to get back at him for his behaviour during the course of his relationship with the aunt.

Turning now to ground 3, your Honours, unless the interests of justice require the entry of a verdict of acquittal, an appellate court should ordinarily order a new trial or a conviction in respect of a charge is set aside, but there is evidence to support the charge. I refer your Honours to the decision of this Court in Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603. So, section 6(2) of the Criminal Appeal Act provides that:

Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal –

Section 8 is one of those special provisions referred to in section 6(2). The language of section 8 is clear that the court’s consideration of whether to grant a retrial is responsive to its consideration of whether a miscarriage of justice has occurred. In our submission, section 8 is clearly directed to the miscarriage in respect of which the appeal was allowed, not some other miscarriage. In this case, the relevant miscarriage that faced the Court of Criminal Appeal was that in relation to Court of Criminal Appeal ground 1, that is, the jury misdirection ground.

If, in this case, the appeal court concludes that the evidence has been properly excluded, the exclusion of the evidence does not give rise to a miscarriage of justice for the purposes of sections 6 or 8. It is accepted that the question of whether to grant a retrial may draw in consideration of matters extraneous to the resolution of the appeal. Examples of that are Jiminez and Taufahema.

But the test for whether the court should exercise that discretion – whether to order a retrial – is necessarily prospective. The question is: can the accused at such a retrial receive a fair trial? In our submission, that prospective inquiry must involve either asking the question as expressed in Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23, or a question that is substantially the same, because it must involve considerations of what steps a trial judge could take to ensure a fair trial.

In this case, it is wrong to assume that the answer to that question can be answered here because it is a full record of the trial. And a good example of that is that, on a retrial, the Crown can be precluded from closing in the same way as it closed in the trial that was had. Again, as was discussed the judgment of this Court in R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at paragraph 49:

one of the key factors in assessing whether a new trial is an adequate remedy –

for the purpose of section 8:

is “the public interest in the due prosecution and conviction of offenders”.

The appellant submits in support of this ground that the absence of the ability to cross‑examine on the sexual nature of the offending in Queensland presents such a loss of an important forensic advantage as to render any possible retrial so unfair as to warrant this Court’s exercise of its discretion to decline to order a retrial. The appellant points to the Crown’s closing, where it was suggested that the complainant’s evidence was given from her memory, and that memory must come from her memory of the appellant’s abuse.

First, the Crown accepts in this Court that that submission made in Crown closing – and that is at the core appeal book, page 91, lines 10 to 20 – was not properly available in light of the excluded evidence. However, this does not support the appellant’s grounds 2 or 3, because the remedy to this is that at any retrial the Crown be directed that that submission cannot be made in closing.

Secondly, the appellant’s primary position at trial was that the evidence to be admitted is the reporting of the Queensland offences, not the assaults themselves. Though we have seen that, strictly speaking, that is not the case, given it went broader than that and we have the first category, he repeatedly said he did not want to cross‑examine in any significant detail on the details of the Queensland offences. Although trial counsel could not have made good on the false memory submission unless he did cross‑examine on the details, his case was primarily that the complainant was lying in revenge for the appellant’s poor treatment of her aunt and the children. That is the case that he did run at trial.

Finally on this topic, the asserted forensic force of the false memory submission is, in our submission, illusory. It involves the submission that the 15‑year‑old complainant – that was the age when she first made complaint about the New South Wales offending – either confused or transposed offences committed by the Queensland offender when she was aged five to seven onto the appellant some eight years after the fact, which we say is not a strong submission, or alternatively, that she drew on those memories to fabricate the allegations against the appellant.

This argument fails to grapple with the reality that, unlike the very young complainant in HG – and that trial took place in the early 1990s – the complainant was fifteen and a half years old when she made her first complaint against the appellant. So, that submission that she could not have had this knowledge really loses force. The older the complainant is, the less forensic force such a submission has.

We say in this case a retrial is not a less adequate remedy than an acquittal because no miscarriage of justice has occurred for the purposes of section 8, and this Court could not be satisfied that the accused could not get a fair trial, for the reasons that I have just adverted to.

The appellant’s suggestion in his written submissions that the test for a pre‑trial stay would be met – that is, the very, very high test imposed in Jago v District Court – in this case, we say, should be rejected, and we say that the exclusion of the evidence pursuant to section 293 in this case, and particularly in light of the cross‑examination that was able to be undertaken, does not produce the fundamental defect that goes to the root of the trial.

Her Honour Justice Adamson, at paragraph 130 of the judgment, was entirely correct to conclude that the only disadvantage to the appellant was the lost:

opportunity to fully exploit the evidence that may or may not have been forensically beneficial to him –

Her Honour makes the point that it was a somewhat risky strategy at trial, given that the Queensland offending was proven offending; it is not as if she was being cross‑examined on a false complaint.

The challenged ruling did not preclude cross‑examination as to the fact that she had reported the offences in Queensland or her involvement in the Queensland proceedings, and it brought with it the opportunity to engage in vigorous cross‑examination on all of those topics of the complainant. In our submission, the present case is not such a rare or exceptional case as to justify the highly exceptional remedy of an acquittal, particularly having regard to the competing public interest in the disposition of serious offences by a trial according to law.

If the appellant is unsuccessful on ground 1, but successful on ground 2, the appropriate remedy remains a retrial. The main thrust of the cross‑examination would still be available, and there is still a very substantial forensic advantage available to the appellant through that cross‑examination. In our submission, in circumstances where the Court – if the Court concludes that the evidence was properly excluded by operation of 293, and in light of the highly effective way in which the appellant did approach cross‑examination of the complainant at trial, the dismissal of ground 1, even if ground 2 is allowed, could not result in a situation where a retrial is a less adequate remedy.

Your Honours, those are the Crown’s submissions. Just before I sit down, my learned junior has pointed out that I made an inadvertent reference to the Christian name of a relative.

GORDON ACJ: Yes, I understand, and I think someone on the Bench may have as well, so we will have the transcript amended to remove those references but thank you for bringing it to the Court’s attention.

MS DOWLING: Thank you, your Honour, and I apologise for that.

GORDON ACJ: Not a problem. Any reply?

MS ROY: Yes, your Honour. Excuse me one moment. There are a number of matters in reply. First, in relation to the evidence, there are two matters that require clarification. The evidence that was sought to be tendered at trial is not, as it was ultimately left at the time of judgment, as reflected in the trial counsel’s submissions, but is as reflected in the judgment in the appellant’s further material, on page 66, which your Honours had been taken to, at paragraph 11, which is again that it was:

not to descent into any fine detail ‑ ‑ ‑

GORDON ACJ: Would you mind speaking up, just so we can hear you.

MS ROY: Yes, certainly. As Mr Game submitted this morning, it suffices for present purposes, to have admitted evidence that the complainant was a victim of childhood sexual assault by a male parental figure, a caregiver. In order to provide that essential context to the evidence of the disclosures, the Queensland reporting in those proceedings, that was admitted.

To be clear, I should say we are not foreclosing that further detail may be sought to be led at retrial, but that would be detail that would depend on voir dire evidence there, the trial judge’s own weighing exercise informed by this Court’s guidance on the provision’s meaning. We do say it is possible that the evidence that is ultimately led at retrial could be more detailed, but the precise bounds of that would turn on matters that are not before your Honours.

GORDON ACJ: It is fair to say, though, that at the moment, even if one goes to 66 of the book of further materials, at 11, there was at least some detail of the sexual offending that was the subject of the application, just not the fine details.

MS ROY: Just not the fine detail, that is so.

GORDON ACJ: Thank you.

MS ROY: The respondent took you to what was characterised as the false memory submission. We would not accept that characterisation or ‑ ‑ ‑

EDELMAN J: Sorry, just before you move on to the false memory. When you talk about the detail that might be sought to be led, I take it that you mean the detail of the offences for which the Queensland offender pleaded guilty.

MS ROY: Well, it might be. That is what is before your Honour, your Honour has that evidence.

EDELMAN J: Yes.

MS ROY: It may be that an application is made where there is better evidence of the nature of the allegations. For example, it is known that she alleged rape, which is not the basis of the guilty pleas, and a submission may be made that that is detail that could become relevant to the basis of memory, but I am not advancing that now.

EDELMAN J: How could that fall within the characterisation of “sexual experience”? I can see the argument for how the actual findings of offending on which there was a plea of guilty falls within that characterisation but – I mean, the previous one has been quashed.

MS ROY: It would be in this way, and it is a point of clarification I wanted to come to, which is your Honour Justice Edelman had said this morning that – I think you put it this way – the effect – rather, the singular act is the sexual activity and the experience, or lack of experience, is the effect. I think you have characterised in that way, and we would embrace that, but there may also be cases, we would say, where sometimes the experience or lack of experience is in relation to particular sex acts.

For example, there is the New South Wales case of Lazarus. There is evidence of the complainant’s lack of experience of sexual intercourse generally, and also of the specific sex act that was relevant to the probability of her consent to that particular act in a back alley with a stranger. I apologise, I did have a reference to that case, your Honours, which I have misplaced and will ask for again. I am not suggesting there was meaningful commentary on section 293 in that case, but merely by way of an example, and so it may be that, for example, it could be put to the complainant that her complaints in the Queensland proceedings related to the offence of rape or particular sex acts.

But what is not being contemplated is the specific activity engaged in at a particular point in time. For example, it would not be a blow‑by‑blow cross‑examination as though the truth of the Queensland offending was a fact in issue; that would be to examine on the sexual activity. In certain cases, and it is case‑dependent, it would be open to characterise “experience” not only by reference to sexual matters generally but by reference to specific sexual acts.

I also wanted to just, in embracing what your Honour Justice Edelman had said, make clear that that is not intending to re‑enliven the argument that was summarised and rejected by Justice Beech‑Jones at paragraph 20 of the Court of Criminal Appeal judgment, which is in the core appeal book at paragraph 73. We are embracing what his Honour says at 21 and 22, which is the way it is characterised by Justice Harrison in GEH. We also rely on the way Justice Leeming put it in a case called Chia [2021] NSWCCA 51, which is in volume 3, at page 428, paragraph 58. I just refer your Honours to it being to the same effect.

GORDON ACJ: This is again directed at the distinction between the two?

MS ROY: Between “sexual experience” and “activity”, yes.

GORDON ACJ: Yes.

MS ROY: I will just go back, if I might, to the false memory submission. If I could take your Honours to the appellant’s further materials, at page 63, and paragraph 173. I think you were taken there. To be clear as to what was being sought there, was:

to dispel any belief in the minds of the jury members that a child who describes sexual assault in detail must have been assaulted by the current accused.

Slightly different to suggesting that it was a false memory. It is rather to answer what in fact was put by the prosecutor in closing, that the only reason the complainant would be so persuasive and so convincing in her recounting is that she is either lying or she must have been assaulted by the appellant, and it is done in that binary way. We would say, even if the prosecutor does not say it, the jury will likely be thinking it, which is precisely what trial counsel had submitted. Again, I took from what my friend said after lunch that it would not be put in that way on retrial, but were it to be, or were it not disavowed, then there may well be grounds under subsection (6) to lead that evidence.

As to how the evidence would be led, the appellant’s statement in the redacted form was in fact an exhibit. It was exhibit O. I cannot tell your Honours for sure, but I presume it was tendered as evidence of an admission in the context of the evidence that was given there with the cross‑examination that was put, but ‑ ‑ ‑

GORDON ACJ: But with that relevant sentence excised.

MS ROY: I am sorry, your Honour. Could you repeat that?

GORDON ACJ: But with the relevant sentence excised.

MS ROY: Yes. With the relevant sentence – so the sentence was excised pursuant to section 293, but in terms of – this is more the mechanics of the admissions of that statement, that if it was not excised for 293, the exculpatory material would come in because – I think this is a case of Nguyen v The Queen (2020) 269 CLR 299, which relates to the duty of a prosecutor to tender statements made to investigative officers that are both inculpatory and exculpatory – my friend observes that relates to an ERISP record of interview.

GLEESON J: And is this an ERISP?

MS ROY: It is not. No, your Honour, it was a statement of complaint. It is a statement supporting the evidence of complaint that was made in the Queensland proceedings, made before the alleged offending occurred in this case.

EDELMAN J: How does it come in, then? Because you say it is part of a continuous narrative, is it?

MS ROY: How the statement comes in – as my friend put, it might be led. It equally would be open to be led through the accused, who could give evidence. On my feet, I am not in a position to tell your Honours how Nguyen would apply outside the context of an ERISP, but it might be something I need to return to. My friend made that observation as I made the submission.

As to the respondent’s parsing of the “connected set of circumstances” into sort of the individual component parts, we obviously reject that we effectively had the forensic benefit of the Queensland offences when they are devoid of their essential nature, and we also say that parsing each individual circumstance is entirely contrary to the required exercise, which is to waive them as connecting circumstances cumulatively. We rely on the summary by Justice Beech-Jones at paragraph 23 of the Criminal Court of Appeal judgment in the appeal book at 75.

We do not accept, as the respondent submitted, that in our submission, your Honours would be in any way departing from authority that has been implicitly embraced by the legislature. Quite to the contrary, we say that GEH is being departed from by the majority. We are not trying to invoke a discretion – that is not a line that we are advancing. The relevance of the critique that is summarised in Jackmain, the critique of the provision, is to ground 3. It is a provision that may readily work an injustice.

The respondent took your Honours to the judgment of Justice Beech‑Jones at paragraph 22 in the Court of Appeal, in the book at page 74, and I will ask you to turn it up. And it was suggested from that passage, and particularly in the middle of the paragraph where his Honour says:

By way of contrast, had the evidence sought to be adduced been only the complainant’s description of the acts perpetrated against her by the Queensland offender then that would only have been evidence “of” sexual activity on the part of the complainant and the temporal requirement of s 293(4)(a)(i) would not have been satisfied.

It was suggested that from that passage, all members of the Bench agreed that the details would be unavailable in any case. We say that is not what his Honour is saying there. His Honour’s comment is confined to:

had the evidence . . . been only –

the descriptions of the acts, standing alone and devoid of their context, that would have been evidence of an activity. My friend addressed on the meaning of “relationship” and, in fact, your Honours asked Mr Game if he embraced what was said in White, and we do. Also, the meaning of “relates to”, I just draw your Honours’ attention to paragraphs 49 and 50 of our written submissions, which address the meaning of those terms.

Your Honour Justice Gleeson referred to the word “events” as perhaps suggesting an amalgamation, that “sexual experience” is an amalgamation of sexual assault. There are cases where that will be – and I should say, what may flow from that and what falls from a number of the judgments is a sort of implicit assumption that the evidence of sexual experience will also be the evidence of the event, that is, the event is the sexual experience. In many cases that is so, but each case presents a different interpretative matrix, as his Honour Justice Harrison reminds us in paragraph 35 of GEH. Justice Beech‑Jones in this case draws that distinction on these facts at paragraphs 21 and 22, which is core appeal book page 73. He does a similar thing in GEH from paragraphs 81 and 82. I will not read it.

It should also be remembered, insofar as the respondent was seeking to draw comfort from paragraphs 65 and 66 of GEH, that that was a case concerned with the sexual activity that occurred after the alleged sexual assault – consensual sexual intercourse with a partner within an hour of the alleged sexual assault – so, there is no factual issue there. The evidence of the sexual activity in that case is the event, it is one thing, but there is no issue with – in some cases, as this is one, the evidence of the sexual experience is not precisely the evidence of the events. The evidence of the events that form part of a connected set of circumstances is the disclosures, which also constitutes evidence of events.

To that end, and on that point, is the distinction that my friend revised her submission after lunch about the relevance of “discloses or implies” and how that appears in subsection (3). In our submission, subsection (4)(a)(i) has to be read consistently with (3) and there is no intention – no evidence of any intention – that subsection (4) should be read differently because of the omission of the words “discloses or implies”. That would, in our submission, produce an absurd result, which is that the protective provisions would exclude the less‑detailed evidence that is less likely to traverse the legislative intention to protect the complainant from distressing cross‑examination.

GLEESON J: Is the point not that evidence of the complainant’s sexual experience must be evidence that is probative of the complainant’s sexual experience?

MS ROY: Yes.

GLEESON J: So, subsection (4) is narrower than the broader category of evidence that is protected by subsection (3)?

MS ROY: Yes. We would say subsection (4) is as broad or broader than subsection (3). Is that what your Honour is putting, or have I misunderstood?

GLEESON J: No, I am saying it is narrower.

MS ROY: The reverse. No, we do not accept that it is narrower. The effect of that would be that evidence that only implies “sexual activity” or “sexual experience” under subsection (3) and may in no way cause distress to a complainant, or may be of very limited distress is, in our submission, for an arbitrary reason of imprecise drafting, then not to be capable of falling within an exception.

Subsection (4) presupposes relevance. It also has to be of such relevance that it outweighs any distress or humiliation. So, there is no reason why there would be an intention that the exceptions in subsection (4) should be more narrowly construed or should be more narrow than they are in subsection (3).

That would be consistent, in our submission, with the observations of Justice Leeming in Jackmain to the effect that it does not appear that great care has been taken in the drafting and that section 293 cannot be read literally in a number of respects, because it would produce absurdities. He uses the example that evidence that somebody is driving a car alone is implicitly evidence that discloses or implies that they are not engaging in sexual activity, so there have to be constraints.

I have been corrected – I have confused the facts of GEH. The facts of GEH were not intercourse one hour after alleged sexual assault, that was sexual activity at a much later time, and it was a lack of sexual activity, being that she had lied about having had an affair with her friend’s father.

In respect of ground 2, the so‑called expedient that was adopted in Jackmain does – well, it was also submitted there that it was inappropriate.
It should be distinguished from that in this case, because in Jackmain there were, I believe, 12 alleged instances of false complaint – it was a false complaint case. In the end, the expedient was that the complainant could be cross‑examined about being attacked by a man on two occasions and having made false allegations to that effect, but the result was that, at the very least, they still got the gravamen of the fact that this was a person who made false complaints.

In this case, the gravamen of the fact that the complainant is a victim of prior sexual abuse is lost, so we say that the mere fact that the expedient operated in Jackmain, or was accepted by the Court of Criminal Appeal there, does not translate to the facts of this case.

Finally, on ground 3. To be clear, amended ground 3, it was amended during the course of hearing. It is found in the core appeal book at page 60, and I would ask your Honours to turn that up. We just make the simple point that it is put clearly there as a ground that the trial miscarried – this is ground 3(b):

The trial miscarried by reason of exclusion of this evidence.

In distinction to ground 3(a), which is alleging error. It was put in a sense that even if his Honour did not err insofar as he correctly applied section 293, there was still a miscarriage. This was always run as a miscarriage, it just so happens that on the facts of this case, there was also success on ground 1, so it happens that we say section 8 would allow the Court to simply look at all of the circumstances, which includes the circumstances in which a retrial would occur, but we in no way resile from the fact that this was a miscarriage of justice, and would be if there to be a retrial.

Unless I can help your Honours further, those are our submissions.

GORDON ACJ: Thank you very much. The Court will reserve its decision in this matter, and otherwise will adjourn until 10.00 am on Tuesday, 4 June.

AT 2.59 PM THE MATTER WAS ADJOURNED