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- Appeal Determined (QCA)
 QCA 305
SUPREME COURT OF QUEENSLAND
R v Bauer  QCA 305
CA No 37 of 2005
DC No 26 of 2005
Court of Appeal
Appeal against Conviction & Sentence
District Court at Mackay
23 August 2005
4 August 2005
McPherson and Williams JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – INCONSISTENT AMBIGUOUS AND MEANINGLESS VERDICTS – ALTERNATIVE VERDICTS – where appellant charged with 12 counts of indecent dealing – where jury convicted appellant of some counts and acquitted him of others – where appellant submitted jury verdicts explicable only as a product of compromise – whether inconsistency exists and is such as to require intervention by appellate court
CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION AND MORALITY – where application made under s 4 Criminal Law (Sexual Offences) Act 1978 for leave to cross-examine complainant as to complaint of a sexual nature against a man other than the accused – whether application for leave restricted to sexual offences involving consent – whether trial judge erred in refusing leave
Crimes Act 1900 (NSW), s 409B
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4
HG v The Queen (1999) 197 CLR 414, followed
MacKenzie v The Queen (1996) 190 CLR 348, applied
R v G (1997) 42 NSWLR 451, followed
A J Glynn SC for the appellant/applicant
M J Copley for the respondent
Macrossan & Amiet Solicitors for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent
- McPHERSON JA: It was submitted by Mr Glynn SC for the appellant that, in restricting or excluding evidence or cross-examination of a complainant, s 4 of the Criminal Law (Sexual Offences) Act 1978 was directed only to sexual offences of which an element is the absence of consent on the part of the complainant. Rape is the most obvious example. Since the offences which the appellant was charged with committing were acts of indecent dealing against a child, as to which the consent of the complainant is not an element, s 4 of the Act could, it was said, not have been intended to extend to it.
- A degree of plausibility is lent to the submission by the fact that rules 2, 4 and 5 of s 4 speak of “sexual activity with a person”, or of the complainant “having engaged in” such activity or activities with a person. It would not be an ordinary use of language to say of the victim of a rape, or of an indecent dealing, that she had engaged in sexual activity with the perpetrator of such an act. The primary obstacle for the appellant in posing that submission is, however, that in s 3 of the Act “sexual offence” is defined to mean “any offence of a sexual nature”, including a prescribed sexual offence, and that “prescribed sexual offence” includes rape.
- The offence of indecent dealing in this case was certainly an offence of a sexual nature within s 3. The incongruity of referring to it as having been “engaged in” by the complainant “with” the offender may be said to remain; but, despite the apparent difficulties in this form of language, a similar submission to that of the appellant has been rejected by the Court of Appeal in New South Wales and, on appeal, by Gleeson CJ and Hayne J in the High Court in H G v The Queen (1999) 197 CLR 414, 425, 456. Although there are some differences of language in the two provisions in New South Wales and Queensland, they are not so great as to warrant this Court in adopting a different interpretation of s 4 in the present case. Indeed, it might be thought that the definition of “sexual offence” in s 3 is itself opposed to such a course.
- On this and on the other matters raised in this appeal, I agree with the reasons of Wilson J, which I have had the advantage of reading. The appeal must be dismissed.
- WILLIAMS JA: The basic facts are fully set out in the reasons for judgment of Wilson J which I have had the advantage of reading.
- The principal ground of appeal relied on during oral argument was that the verdicts of guilty on counts 1 to 7 on the indictment were inconsistent with verdicts of acquittal on counts 8 to 12. That ground of appeal must be resolved in the light of the reasoning of the High Court in MacKenzie v The Queen (1996) 190 CLR 348.
- In considering the submissions made on behalf of the appellant on this point it is important to bear in mind the directions given by the learned trial judge to the jury. The jury was instructed in no uncertain terms that each count had to be considered separately. Amongst other things the jury was told:
"For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to provide (sic) beyond reasonable doubt that he’s guilty. I invite you to write down that term "beyond reasonable doubt" because that is the focus of your task. To answer one question and one question alone really, but you do it 12 times; you do it for each of the 12 counts. . . . In order to convict him you must be satisfied beyond reasonable doubt of every element that goes up to make the offence charged . . ..
. . .
Before you can find the defendant guilty of any of the 12 charges on the indictment, you must be satisfied beyond a reasonable doubt that the charge has been proved by evidence relating to that charge.
. . .
. . . I need to be assured from you that you do understand and can separate each of the 12 counts."
- In the course of the summing up the learned trial judge referred to the evidence supporting each of the counts on the indictment and endeavoured to "differentiate them for you".
- In dealing with counts 8 and 9, the learned trial judge differentiated them from the other counts by reference to the complainant's evidence with respect to a guitar. The jury was directed that the impugned conduct with respect to these two counts occurred on an occasion when the complainant went for a guitar lesson, taking her guitar with her; her evidence was that following the incidents in question she smashed her guitar. The complainant's mother gave evidence that she could not recall the complainant receiving guitar lessons and had no recollection of the guitar being smashed.
- In summarising the defence case with respect to counts 8 and 9 the learned trial judge in the summing up indicated that the separate defence case on these counts concentrated on the fact that there was no guitar and no guitar lessons.
- A reasonable jury, accepting generally the truthfulness of the complainant's evidence that she was indecently dealt with by the appellant on numerous occasions, could well have had a doubt as to whether one such incident occurred associated with a guitar lesson. In my view there was a rational basis for the jury not being satisfied beyond reasonable doubt that the incident particularised in counts 8 and 9 had been established whilst generally accepting that the complainant was a truthful witness.
- The incidents constituting counts 10 and 11 on the indictment were identified by the complainant as occurring at about the time a cyclone hit the town causing the population to take shelter. At the end of the day there was uncertainty in the complainant's evidence as to whether the incident occurred on the day the cyclone passed over the town or within a day or two of it. The evidence from the appellant and his wife established that they were in Atherton, quite some distance away from the town in question, when the cyclone passed over it. Because of the weather conditions the appellant was unable to return for a couple of days. The complainant's mother thought he may have returned the day after the cyclone hit the town.
- In dealing with the defence case on counts 10 and 11 in the summing up the learned trial judge emphasised the uncertainty with respect to the time at which the alleged incidents occurred. The evidence that the appellant did not return to the town until a couple of days after the cyclone hit was quite compelling. The jury may well have been satisfied that some such incident as the complainant referred to occurred but they were not satisfied that such incidents occurred at the time alleged. In my view that constituted a reasonable explanation for the jury's verdicts, and the verdicts were not inconsistent with acceptance of the complainant as a truthful witness.
- The incidents giving rise to count 12 were said to have occurred whilst the appellant was giving the complainant a ride on a motorbike. There were a number of inconsistencies in the evidence in relation to this incident. The complainant said it occurred on a Friday night, but the defence evidence suggested it was highly improbable that it occurred on a Friday night which was one of the busiest nights for the hotel. There was also some uncertainty as to whose motorbike was involved.
- Counsel for the appellant endeavoured to make some mileage from the fact that the first complaint was allegedly made either on the night of the motorbike incident or the following night. That complaint was said to be made to a man who was deceased at the time of the trial. The complainant's sister gave some evidence supporting the making of the complaint.
- Whilst it is a little concerning that the incident most closely linked in point of time to the making of the first complaint was the subject of an acquittal, the jury's verdict can nevertheless be explained by the inconsistencies in the evidence with respect to the overall incident.
- This is a case where a reasonable jury could well have been satisfied that the complainant was a truthful witness, but had some doubts about identifying some of the specific instances which were made the subject of counts on the indictment.
- Applying the approach approved by the High Court in MacKenzie v The Queen I am not satisfied that the verdicts are inconsistent, nor am I satisfied that considering the verdicts in the light of all the evidence there is any basis for concluding that the guilty verdicts are unsafe and unsatisfactory.
- I have already mentioned that on the complainant's evidence her first complaint was made to a man who was deceased at the time of the trial. At a pre-trial hearing it had emerged that that deceased person may also have sexually interfered with the complainant.
- Counsel for the respondent at that pre-trial hearing submitted that at the trial the complainant could only be cross-examined with respect to that alleged interference with the leave of the court pursuant to the provisions of s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld). Both at first instance and on the hearing of the appeal it was submitted on behalf of the appellant that such leave was not necessary. At first instance the learned trial judge in the exercise of her discretion refused to permit such cross-examination and on the hearing of the appeal it was submitted (ground 2) that she erred in so doing.
- The submission on behalf of the appellant was that it was improbable that a young complainant would first complain of sexual interference by A to another person B who had previously sexually interfered with her. It was submitted that if the jury concluded that it was so improbable that it did not occur, then that would have significantly impacted upon the complainant's credibility.
- On the hearing of the appeal senior counsel for the appellant submitted that s 4 only applied to offences involving lack of consent on the part of the complainant; in support of that he relied on the use in the section on more than one occasion of the expression "sexual activity with a person". But such an approach must be rejected in light of the reasoning of the Court of Criminal Appeal in New South Wales in R v G (1997) 42 NSWLR 451 at 458 approved by the High Court on appeal: H G v The Queen (1999) 197 CLR 414 at 425 and 456. As Hayne J said: "There is no warrant for reading the provision as confined to consensual acts. Nothing in the language used suggests any intention other than to extend the reach of the provisions as broadly as possible." Although the courts were there dealing with the New South Wales legislation the textual differences are not such as to require this Court to reach a different conclusion. The section is said to apply to any "trial in relation to a sexual offence" and no reason was advanced for reading down those clear words.
- Wilson J in her reasons has set out what was said by the learned trial judge at first instance in declining to permit the cross-examination in question. It is clear from that passage that the learned trial judge relied solely on rule 3 in so concluding; she was not satisfied that the evidence sought to be elicited had substantial relevance to the facts in issue or was a proper matter for cross-examination as to credit.
- I agree with Wilson J that the learned trial judge at first instance erred in concluding that rule 5 was not relevant for present purposes. Clearly the contention on behalf of the appellant was that if the jury concluded in the light of the proposed cross-examination that a complaint to the deceased was improbable then that would have had some impact on the complainant's credibility. But in the circumstances of the case it would have been speculative for the jury to conclude that it was improbable that the complaint in question was made because the person to whom it was made had previously sexually interfered with the complainant, particularly given the fact that no evidence to the contrary could be led and it was supported by evidence from the complainant's sister. Consistently with what the learned trial judge said with respect to the significance of rule 3, in the circumstances such cross-examination would not produce "evidence . . . likely to materially impair confidence in the reliability of the complainant's evidence".
- It follows that the appellant has not demonstrated any error in the conclusion reached by the learned trial judge that the cross-examination in question ought not be permitted.
- For the above reasons, and for the reasons given by Wilson J, the appeal and application for leave to appeal against sentence should be dismissed.
- WILSON J: The appellant was charged with 12 counts of indecently dealing with a girl under the age of 12 years. He was convicted of 7 counts and acquitted of the other 5.
- The appellant filed a notice of appeal against conviction and sentence, relying on 4 grounds -
“1. that the verdicts of guilty are unreasonable in that the verdicts of guilty are inconsistent with those verdicts of not guilty;
- [that] the learned Trial Judge erred in excluding cross-examination of the complainant and her sister [S] in relation to conduct alleged by them against one Alf Brien [AB];
- [that] the learned Trial Judge erred in, having ruled that the first jury should be discharged because of inadmissible and prejudicial evidence given in their presence, proceeding to select a fresh jury and conduct the further trial of the offences on the day following the discharge of the first jury.
- [that] the sentence in all the circumstances is manifestly excessive.”
At the commencement of his oral argument, his senior counsel reminded the Court that in his written outline of argument he had addressed only grounds 1 and 2, and that while he did not have instructions to abandon grounds 3 and 4, he was not proposing to make any submissions in respect of them. In these circumstances it is appropriate that the appeal against conviction be decided only on grounds 1 and 2, and that the appeal against sentence be dismissed.
- The offending conduct was alleged to have taken place in a small town in north-west Queensland between January 1975 and August 1980, but the evidence suggested, without particularisation, that the allegations related to events between early 1976 and some time in 1979.
- The complainant was born in 1968, so that she was aged between 7 and 10 years at relevant times. The appellant was born on 4 October 1942, and so was at all times a mature man.
- The town where the offences are alleged to have taken place is in a remote rural area and had a population of between 180 and 200. The appellant was the licensee of the only hotel in the town from 7 October 1975 to 1 May 1979. After leaving the hotel he stayed on in the town for about 14 months working for the local council, and then went to Cloncurry.
- The complainant arrived in the town with her parents and two sisters about a year after Cyclone Tracey hit Darwin - that is, in about 1975 or early 1976. One of the sisters was S, who was about 27 months older than the complainant. When they first arrived in town, the family lived upstairs at the hotel. Then they moved to a caravan in the back yard of the hotel. Later they bought a block of land next to the hotel, and lived in 2 vans on the land. The complainant's father was a fisherman, who was sometimes away from home for 2 or 3 weeks at a time. Her mother worked as a barmaid and latterly as a teacher's aid. At one stage the mother went off to work in a hotel about 80 kms from the town, and the father joined her for some of that time. The children were left with AB, the town's taxi driver, who lived in a large caravan with an annex.
- As I have said, the appellant was charged with 12 counts of indecent dealing. They relate to 6 separate occasions:-
(1)counts 1 and 2;
(2)counts 3, 4, and 5;
(3)counts 6 and 7;
(4)counts 8 and 9;
(5)counts 10 and 11;
He was convicted of counts 1 - 7 and acquitted of counts 8 - 12.
- I shall summarise the evidence in relation to each incident. The principal evidence was that of the complainant. The appellant denied that any of the incidents occurred. In some cases there was other evidence relevant to the jury's consideration of the charges.
(i) Counts 1 and 2
One morning the complainant walked into the bar, where she found the appellant. He came out and closed the door and then went back into the bar. He held her hand over his penis as if to masturbate him. Then he sat her on the bar and rubbed her foot all over his penis. He undid his pants and pulled his erect penis from the front of his shorts.
(ii) Counts 3, 4, and 5
The appellant's wife asked the complainant to take a piece of paper to the appellant who was in an upstairs room at the hotel. She found him lying on the bed naked, and she could see that his penis was erect. She apologised and said that Cathy (the appellant's wife) had asked her to put the paper on the cupboard. He asked her to give it to him, and when she did so, he took her hand and put it on his penis, moving it back and forward. Then he put her on the bed and rubbed her vagina both inside and outside her clothes. He lay down with his weight on one arm and took his penis and rubbed it all over her vagina, her stomach, her chest and her face, including her mouth (without penetrating her lips).
S gave evidence of an occasion on which she had delivered a message to the appellant: as she had turned to go, he had called out to her, dropped his shorts and jocks and exposed his erect penis.
(iii) Counts 6 and 7
On another occasion in his room at the hotel the appellant took the complainant's hand and masturbated him; then he put her on the bed and starting touching her vagina, inserting his finger, which hurt. She cried out and he put his hand over her mouth and continued pushing his finger in and out.
(iv) Counts 8 and 9
The complainant said she had been given a guitar by her parents, and that she had been receiving some guitar lessons from a man who was living upstairs at the hotel. One afternoon she went upstairs to see the man but he was not there. She ended up in the appellant's bedroom, where he touched her on the vagina, inserting his finger. He pulled his penis out and behaved in a similar way to that alleged in count 5. The complainant said that when she left, she smashed the guitar at the bottom of the stairs, and took the smashed guitar home.
The complainant's mother remembered that her daughter had had a guitar, but she had no recollection of her receiving lessons or of the guitar being smashed. The appellant said that no one who played the guitar had stayed at the hotel and that there had never been a band at the hotel. His then wife said she could not recall anyone with a guitar staying at the hotel.
(v) Counts 10 and 11
On 19 December 1976 the eye of a cyclone passed over the town. Most of the townspeople retreated to the hotel where there were mattresses on the floor for the children to sleep on. The complainant said she was in a small room off to the side of the bar. She said the appellant walked in, grabbed her hand and put it down his shorts, using it in a rubbing motion which caused his penis to become erect. Then he touched her vagina on the outside of her clothing. There was some uncertainty in the complainant's evidence about whether this was on the day the cyclone passed over, or within a day or two of it.
The appellant, his wife and 2 elder children had been to New Zealand on holiday. They had returned through Sydney and Cairns on 15 December 1976. He said that when the cyclone passed over the town he was in Atherton, where they were staying with his mother-in-law who had been minding their youngest child. His version was supported by his wife and his son Karl. The complainant's mother's evidence was that the appellant had returned to the town the day after the cyclone.
(vi) Count 12
The complainant said the appellant took local children for rides up and down the street outside the hotel on a motor bike. She went with a friend SY. She said her friend was on the back and she was in front of the appellant. During the ride, the appellant put his hand inside her underwear and his finger inside her vagina. It hurt, and she grabbed his hands. When she got back to the hotel, she was crying that she wanted to go home.
The complainant's mother had no recollection of the appellant or his son having a bike. His wife said that neither the appellant nor their son owned motor bikes in the town, and that children were never given joyrides from the hotel. However, SY said that the appellant had access to a bike, and that he used to double the children on it. She said the appellant had tattoos, but this was denied by him and his wife.
- Evidence of complaints
- The complainant gave evidence that on the night of the motor bike incident, or the following night, she complained to AB that the appellant had been touching her. She said S was present when she made this complaint. S gave evidence supporting the complainant having made such a complaint. However, no evidence could be called from AB, who had died before the trial.
- The complainant said that when she was aged about 16, she told a friend DM that someone had abused her, but she did not say who had done so. DM was not called as a witness.
(iii) It was not until 2001 that the complainant made her complaint known to police.
- There was no criticism of the trial judge's summing up. Her Honour was careful to tell the jury that there were 12 charges, and that their task of deciding whether the Crown had proved the guilt of the appellant beyond reasonable doubt had to be performed 12 times - that is, separately in relation to each of the 12 counts. She drew their attention to the relevant evidence in relation to each count, and she drew attention to inconsistencies.
- Senior counsel for the appellant submitted that the jury had convicted the appellant where the complaint was not able to be supported (counts 1, 2, 6 and 7) and where it was able to be supported and there was some actual support (counts 3, 4 and 5), and that they had acquitted where the evidence was capable of being supported but was not (counts 8, 9, and 12) as well as where there were internal inconsistencies (counts 10 and 11). He submitted that the verdicts were explicable only as the product of compromise by the jury. He relied on the following passage from the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 368:
“5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’.”
- However, as counsel for the respondent submitted, the verdicts were explicable on the basis that the jury found the complainant both truthful and reliable in relation to counts 1 to 7; they may well have found her truthful in relation to counts 8 to 12, but not reliable - which was unremarkable given that there were other pieces of evidence casting doubt on her reliability in relation to those counts. In my view the first ground of appeal has not been made out.
- There was evidence available that the complainant said she was sexually abused by AB while she was left in his custody by her parents. This was before the incident involving the appellant and the motor bike. It will be recalled that the complainant (and S) said she complained of the appellant's behaviour to AB on the night of the motor bike incident or the next night. By the time of the trial, AB was dead.
- Before the trial, counsel for the appellant indicated his intention to cross-examine the complainant about the alleged abuse by AB. The prosecutor objected, and the trial judge heard argument as to whether such cross-examination should be allowed. She ruled that the cross-examination could not take place without leave under s 4 of the Criminal Law (Sexual Offences) Act 1978, and refused to grant leave. On appeal argument focussed on whether leave was required, and if it was, whether the trial judge erred in refusing to grant leave.
- Counsel for the appellant explained the thrust of the proposed cross-examination and its effect on the complainant's credit in the following way. The jury might consider her evidence of having complained to AB about the appellant's behaviour as unlikely if they accepted that AB had himself molested her; if they disbelieved her about having complained to AB, they might conclude that they could not really believe her at all.
- Section 4 of the Criminal Law (Sexual Offences) Act provides -
“Special rules limiting particular evidence about sexual offences
4. The following rules shall apply in relation to any examination of witnesses or trial in relation to a sexual offence whether or not the examination or trial relates also to a charge of an offence other than a sexual offence against the same or any other defendant –
- The court shall not receive evidence of and shall disallow any question as to the general reputation of the complainant with respect to chastity.
- Without leave of the court –
(a) cross-examination of the complainant shall not be permitted as to the sexual activities of the complainant with any person;
(b) evidence shall not be received as to the sexual activities of the complainant with any person.
- The court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit.
- Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons must not be regarded as having substantial relevance to the facts in issue only because of any inference it may raise about general disposition.
Example of inference about general disposition –
An inference that the complainant, because of having engaged in conduct of a sexual nature, is more likely to have consented to the conduct involved in the offence.
Without prejudice to the substantial relevance of other evidence, evidence of an act or event that is substantially contemporaneous with any offence with which a defendant is charged in an examination of witnesses or a trial or that is part of a sequence of acts or events that explains the circumstances in which such an offence was committed shall be regarded as having substantial relevance to the facts in issue.
- Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons is not proper matter for cross-examination as to credit unless, because of special circumstances, the court considers the evidence would be likely to materially impair confidence in the reliability of the complainant's evidence.
The purpose of this rule is to ensure that a complainant is not regarded as less worthy of belief as a witness only because the complainant has engaged in sexual activity.
- An application for leave under rule 2 shall be made in the absence of the jury (if any) and, if the defendant so requests, in the absence of the complainant and shall be determined after the court has allowed such submissions or evidence (sworn or unsworn) as the court considers necessary for the determination of the application.”
- Senior counsel for the appellant submitted that s 4 does not apply to offences that do not involve an issue of consent. Of course, these charges were of sexual conduct against a child, and so consent was irrelevant. Rules 2, 4 and 5 of s 4 refer to "sexual activity" or "sexual activities" "with" a person or persons, rather than to such activity or activities "involving" another or others. He submitted that this implies consensual activities. He quoted passages from the Second Reading Speech made by the Minister for Justice and Attorney General when the relevant bill was before Parliament -
“The main problem arising from rape prosecutions has been the public revelation of the complainant’s reputation and private sexual history. Under existing procedures it is not easy for judges or magistrates to confine within its proper limits the cross-examination of a complainant as to sexual intercourse by her with other men.
It has been contended that all cross-examination of the complainant, with respect to sexual intercourse by her with men other than the accused should be prohibited. Such a prohibition would be productive of grave injustice.
The Bill provides that before receiving evidence or cross-examining the complainant as to sexual intercourse with men other than the accused, application must be made to the judge or magistrate for leave to do so.”
Senior counsel for the appellant went on -
“Now my submission is that all of that suggests that what the bill is directed to is to show that the – is the prevention of simply damaging the witness’s reputation as being a person more likely to have consented than not to have consented. That is, where the accused says you consented – and the reason that a jury would accept that you consented or have a doubt about it is because on other occasions you have had sexual intercourse consensually with other men.”
- In my view there is no warrant for restricting the application of s 4 to offences involving an issue of consent. The rules apply "in relation to any...trial in relation to a sexual offence". Section 3 contains the following definitions -
“‘complainant’ means a person in respect of whom a sexual offence is alleged to have been committed.
‘prescribed sexual offence’ means any of the following offences –
(b) attempt to commit rape;
(c) assault with intent to commit rape;
(d) an offence defined in the Criminal Code, section 352.
‘sexual offence’ means any offence of a sexual nature, and includes a prescribed sexual offence.”
Offences such as those with which the appellant was charged, which do not involve an issue of consent, clearly fall within the definition of "sexual offence".
- In HG v The Queen (1999) 197 CLR 414 a man was charged with 2 counts of sexual intercourse with a child under the age of 10, who was the daughter of his de facto wife, and alternatively with indecent assault. A question arose as to the admissibility of evidence that the complainant had been sexually assaulted by another person approximately 6 years before the times of the alleged incidents. So far as is relevant, s 409B of the Crimes Act 1900 (NSW) provided -
“(3) In prescribed sexual offence proceedings, evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity is inadmissible except:
(a) where it is evidence:
(i) of sexual experience or a lack of sexual experience of, or sexual activity or a lack of sexual activity taken part in by, the complainant at or about the time of the commission of the alleged prescribed sexual offence; and
(ii) of events which are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed;
(b) where it is evidence relating to a relationship which was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant;
(i) the accused person is alleged to have had sexual intercourse, as defined in section 61H (1), with the complainant and the accused person does not concede the sexual intercourse so alleged; and
(ii) it is evidence relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person; ...”
The NSW Court of Appeal and the High Court rejected an argument that s 409B(3) applied only to prior consensual sexual episodes. In the High Court Gleeson CJ said at p 425 -
“29.The reasons given by Mason P in the Court of Criminal Appeal for rejecting this contention, agreed in by Stein JA and Sperling J, are compelling. They conform to earlier decisions of the Court of Criminal Appeal on s 409B. As Mason P observed, in the case of victims of child sexual abuse, a distinction between ‘consensual’ and ‘non-consensual’ activity is hardly likely to have been intended to be decisive as to the operation of the section. In such a context it is often a distinction of little, if any, meaning. How, for example, would it be applied in the present case where, at the relevant time, the victim was aged three?
30.As Mason P pointed out:
‘To limit s 409B to consensual sexual activity would lead to a most invidious distinction in the case of child sexual assault victims. Proof of lack of consent is no part of the statutory offence yet it would become part of a forensic dispute touching admissibility of evidence. Indeed, the search for evidence of consent becomes grotesque in the case of a young child who is made to participate in sexual activity initiated by an adult who is in a parental relationship.’
31.Furthermore, in relation to adult complainants, evidence of prior non-consensual sexual experience or activity might, depending upon the circumstances, be just as humiliating as evidence of prior consensual activity. As the Premier said in Parliament when this legislation was introduced, ‘rape is an act of violence aimed at subjugation, debasement and humiliation.’ Having regard to the legislative purpose of s409B, it is impossible to accept that Parliament intended that only evidence of consensual experience or activity would be excluded.”
And Hayne J said at p 456 -
“146. It was submitted, on the hearing of the appeal in this Court, that the expressions ‘sexual experience’ and ‘sexual activity’ should be confined to ‘consensual’ experiences and activity. Thus, so the argument proceeded, the complainant being incapable of consenting to the conduct that was alleged against her natural father, s 409B did not apply.
147.There is no warrant for reading the provision as confined to consensual acts. Nothing in the language used suggests any intention other than to extend the reach of the provisions as broadly as possible. It was submitted that the provisions should be read in the manner suggested because the mischief to which s 409B is directed is the prevention of distress, humiliation and embarrassment of complainants of sexual crime. Accepting that this is so, it by no means follows that a distinction between consensual and non-consensual sexual acts is warranted. Distress, humiliation and embarrassment are very likely present for any person required to describe, in a public forum, sexual activity in which they have engaged. There is no basis for suggesting that the distress, humiliation or embarrassment felt in having to describe these matters would be less if the activity occurred as a result of the unlawful conduct of another or others.”
Their Honours' observations are equally apposite to s 4 of the Queensland legislation.
- Accepting, then, that the legislation was applicable in the present case, did the trial judge err in refusing to allow the cross-examination? Senior counsel for the appellant referred to rules 3 and 5, and explained that the object of the proposed cross-examination was not to show that the complainant was less creditworthy only because she had engaged in sexual activity, but rather to attack her credibility by demonstrating the unlikelihood of her having complained about the appellant's behaviour to AB (as she claimed to have done).
- The court must be satisfied that evidence sought to be led "is proper matter for cross-examination as to credit" before granting leave: rule 3. Evidence of engaging in sexual activity with another is not proper matter for cross-examination as to credit "unless, because of special circumstances, the court considers the evidence would be likely to materially impair confidence in the reliability of the complainant's evidence": rule 5. The mischief addressed in rule 5 (namely, that a complainant might be regarded as less worthy of credit only because of having engaged in sexual activity) would not necessarily be avoided simply because that was not what counsel hoped to achieve by cross-examination about such other sexual activity. The primary focus must be on whether the evidence sought to be elicited is a proper matter for cross-examination, and not on the object of the cross-examination, although the object of the cross-examination may be relevant to the existence of special circumstances by reason of which the evidence would be likely materially to impair confidence in the reliability of the complainant's evidence.
- The trial judge refused leave to cross-examine apparently in reliance only on rule 3. She said -
“The other issue for determination is that the defence has sought leave pursuant to section 4 of the Criminal Law Sexual Offences Act 1978, to cross-examine the complainant concerning delay in complaining and the circumstances of the complaint she made to AB and S. Such questions would necessarily involve references to sexual abuse by AB. Again, I consider this ruling to be a close call. I agree with defence counsel that point 5 of section 4 of the Act is not relevant in the circumstances. I consider that perhaps point 4 is also not relevant and that the relevant criteria set out in point 3, which is that: ‘The Court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led, has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit.’ On balance, I consider that it does not satisfy that test of being substantial relevance to the facts or a proper matter for cross-examination as to credit. I therefore refuse leave.”
- The evidence sought to be elicited could have gone only to credit. While I respectfully disagree with the trial judge's view that rule 5 was not relevant to the determination whether it was a proper matter for cross-examination as to credit, I think Her Honour was correct in refusing leave to cross-examine. The complaint to AB about the appellant's conduct was allegedly made in the context of AB's being in loco parentis, in that the complainant and her sisters had been left in his care while their mother was 80 kms away and their father was at sea. And it was allegedly made in the presence of her older sister S. I am inclined to think that these were special circumstances why the evidence would not materially impair confidence in the reliability of her evidence, which is of course the converse of what rule 5 requires as a basis for admissibility.
- The appeal should be dismissed.
- Published Case Name:
R v Bauer
- Shortened Case Name:
R v Bauer
- Reported Citation:
 QCA 305
McPherson JA, Williams JA, M Wilson J
23 Aug 2005
|Event||Citation or File||Date||Notes|
|Appeal Determined|| 1 Qd R 420||23 Aug 2005||-|