R v KER[2022] QDCPR 62

DISTRICT COURT OF QUEENSLAND

The application 

1. [1]
   This is an application by the defendant for a pre-trial ruling by which the defendant seeks leave to cross-examine under section 4 (2) of the Criminal Law (Sex Offences) Act 1978.  That section relevantly provides:

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—

1. The court shall not receive evidence of and shall disallow any question as to the general reputation of the complainant with respect to chastity.
2. Without leave of the court—

1. (a)
   cross-examination of the complainant shall not be permitted as to the sexual activities of the complainant with any person; and
2. (b)
   evidence shall not be received as to the sexual activities of the complainant with any person.

   3. 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.
   4. 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.

5. 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.
6. 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.

2. [2]
   The application is in these terms; for leave to cross-examine the complainant in relation to sexual activity between her and the person identified in her statements as, “Roachy”.^[1] That application requires explanation of its context.

The evidence

3. [3]
   These proceedings arise from an indictment directed not to the person known as Roachy, but to the defendant, who is the father of the complainant.  The defendant is charged with two counts of indecent treatment.   Count 1 alleges wilful exposure of a child to an indecent film without legitimate reason and Count 2 alleges indecent dealing by unlawful touching of the complainant’s naked vagina.  The two offences are said to have occurred sometime in about the two-year period between the end of November 2018 and the end of October 2020.  The relevance of that end date is that, after that date, if not a little before, the complainant was no longer living under her father’s roof and was under the care of another relative.
4. [4]
   The particulars are general, but when read with the third section 93A statement of the complainant, plainly concern a single event described by the complainant.^[2] As explained by the Crown, the alleged offending is said to have occurred in a bedroom while the complainant was living at the defendant’s home and was alleged to have included showing the child an indecent video and touching the vagina of the chid.

The first s. 93A statement

5. [5]
   The application must be understood in this somewhat unusual context; the child gave a section 93A statement, the first of them, on 21 October 2019.  At that time, she was four years old, approaching five.  That statement involved, for present purposes, two important matters. The first is exculpatory evidence favouring the defendant and the second is evidence about sexual offending by another personal called Roachy:

   1. (a)
      As to the second matter, the sexual offending alleged in the first statement against Roachy is a hard precisely to identify. The child was, at that stage, very young, but it does appear to involve exposure to Roachy playing with himself and touching her. 
   2. (b)
      As to the first matter, she was asked things about her father and was given a good opportunity to make a complaint about him.^[3] She did not, and in fact, volunteered other things about her father that she didn’t like, such as when he got upset.   It might be reasonably thought that that evidence was strongly exculpatory. 

The second s. 93A statement

6. [6]
   In any event, there was a second section 93A statement on 17 October 2020.  At that time, the complainant was five years old, approaching six.  Reading her conversations, she had clearly matured somewhat since her first statement, as would be expected.  That second statement also included statements about Roachy touching himself and her.  She went on at length about him, and although her evidence was patchy, there’s an exchange where the complainant is asked about her uncle, and she says he didn’t do anything.^[4] The police ask, “When you say he didn’t do anything, what do you mean?”. She said, “Well, he didn’t touch me.”  It’s difficult to know the context, but it would seem possible that, though she was nearly six, she understood there was some suggestion that that had happened at her uncle’s hands. Then she volunteered, after being asked, “Tell me about your dad”, that “dad didn’t do anythink either”.  She was quite clear with the police that only one person had touched her, and that person was Roachy.
7. [7]
   She also gave evidence that some of these things happened in Roachy’s room.  She repeated that it was only Roachy who touched her.^[5]  I note that it is accepted that at the time of this second statement, 17 October 2020, the complainant was no longer living with her father, and had either just recently or for some time been living with another relative. 

The third s. 93A statement

8. [8]
   The third section 93A statement is dated 3 January 2021 when she was six years and some months old.  It was in that statement that she, for the first time, volunteered, that three people had touched her.^[6]  She gave, amongst other things, a detailed account of the offending alleged against her father, which is now the subject of the indictment,^[7] including saying at one point that, “This happened in Roachy’s room, not Dad’s room”. 
9. [9]
   In that evidence, she described both being touched on her vagina in a way that caused it to hurt and described what might be characterised as a pornographic video that she saw, according to her, on her father’s phone, where she described in naïve, but reasonably clear terms, as being about “a boy and a girl touching each other’s privates”.  Later, she agreed that she was in her father’s bed when this happened, not Roachy’s bed as she earlier said.^[8] 

10. [10]
    The complainant then gives an account of offending by her Uncle ^[9] before going back to giving evidence about acts by Roachy, where she describes quite significant sexual behaviour, including, mutual oral sex, it seems.^[10]  Towards the end of that exchange, she gives evidence that Roachy licked her privates nearly every day, “until now”, she said, being in the context of that 93A statement, 3 January 2021, the date of that statement.^[11] 

11. [11]
    It seems that Roachy (if indeed that is a person identified and known to the parties in this case) could not have been licking her every day up to “now”, that is, 3 January 2021, because she had not been living under the same roof as Roachy for some months by then and he did not appear to have had access to her. 

The defendant’s contentions

12. [12]
    The defendant develops the argument in support of leave by reference primarily to the potential relevance of cross-examination of the complainant about her evidence about Roachy: 

    1. (a)
       The first point made by the defendant is that the first two statements contain previous inconsistent statements with her evidence in her third statement about the alleged behaviour of her father (i.e. that her father did not do anything).  It is submitted that those previous inconsistent statements would go to the credibility and reliability of her accounts in the third statement, and in my view that cannot be gainsaid. 
    2. (b)
       The second point is that the evidence about sexual activities with Roachy could be cross-examined about to establish a foundation for a mistake in the identity of the person who had shown the video and touched the young girl’s vagina (if those things happened).  The submission would be that it was Roachy, not her father, who did them. 
    3. (c)
       The third point upon which it is said cross-examination could be relevant is that cross-examining about sexual experiences with Roachy could provide an explanation as to how a five year old girl would know about, and use language about, pornography and vaginal touching by adult men when ordinarily, that might be thought to the jury to be outside the experience of a five year old girl, who had not been exposed to sexual offending. 
    4. (d)
       The fourth point relates to the evidence in the third 93A statement that dealt with the offending alleged against Roachy after the complainant was no longer, on any view of it, able to be the subject of such behaviour.  In respect of that, Mr Dixon submitted he wished to cross-examine to demonstrate that the defendant must be mistaken about the timing of that behaviour, which would go solely to credit. 

Analysis

13. [13]
    Leave should be given under s. 4(2) to cross-examine the complainant for the purposes articulated by the defendant. 
14. [14]
    As to the first point, I was concerned as to whether the Crown would lead in its own case the evidence of the exculpatory statements and in what form.  The Crown’s initial position was to oppose the application.  That, of course, didn’t amount to the Crown adopting the position that evidence of the exculpatory statements would not be given.  In the course of argument, Ms Adams, for the Crown, conceded that the Crown’s case should include evidence of the exculpatory statements in the first two s. 93A statements.  She suggested that might be able to be done by admissions.  Alternatively, it might be possible to show parts of the 93A statements.  Respectfully, I think that concession was rightly made.
15. [15]
    However, it seems to me that there is a real difficulty with how that evidence could be put before the jury by the Crown without some explanation of the context in which it came to be made.  That might be something that the Crown addresses in its own approach to this issue, but against the possibility that the defence has a genuine forensic need to cross-examine for that purpose, I’ve granted leave to cross-examine the complainant about the alleged dealings with Roachy to provide that context. 
16. [16]
    I think the second and third points (regarding mistake by the complainant of identity and explanation of the complainant’s knowledge of the acts) are also well made. There is a proper evidentiary foundation for cross-examination to that effect because the alleged touching by Roachy is the kind of touching described in the third statement and ascribed by the complainant to her father.  It is also true that, at least at one point, the complainant talks about this happening in Roachy’s room, and that seems at least a slightly odd proposition if it was the father involved. 
17. [17]
    Ms Adams made the fair point that there is no reference to exposure to pornography by Roachy, but, of course, who knows what will be said when the complainant is cross-examined about dealings with Roachy (and bearing in mind that whoever Roachy is, he is not here to defend himself and is entitled to the presumption of innocence: these are just allegations).  But the allegations that are being made make it reasonable to at least ask about whether pornography was shown as well.
18. [18]
    Cross-examination that revealed the role of Roachy and his behaviour, at least in the mind of the complainant, and the possibility that he exposed the girl to pornography and how the house was set up and where Roachy’s room was, and so on, would, in my respectful view, go to not just credit, but would have substantial relevance to the facts in issue.^[12]
19. [19]
    Again, in respect of the first point, the previous statements that did not make an allegation against the father, in the context I’ve described, does go to credit.  It seems to me in that context, it is evidence which would be likely materially to impair the confidence in the reliability of the complainant’s evidence.  That’s true, not only because of the failure to make complaints, but the fact the failure to make the complaint was in response to opportunities provided by the police for her to complain about her father.  And all the more so, because of the complaints about the alleged offending of Roachy. 
20. [20]
    For all those reasons, I granted leave in the terms that I have agreed with counsel as appropriate to cross-examine about her interactions with Roachy relevant to the first three points raised by the defence. 

Is leave required where cross examination suggests fabrication?

21. [21]
    It was submitted by Mr Dixon, in regard to the fourth point, that leave was not required because he will be cross examining to suggest that the alleged offending, seemingly after the complainant was no longer living with nor accessible by Roachy, did not happen.  He submitted that in that case, he would not be cross examining on sexual activities, but on the absence of sexual activities despite the complainant’s allegation.
22. [22]
    Section 4(2)(a) is arguably delphic on this point.  It provides that:

    2. Without leave of the court—

1. (a)
   cross-examination of the complainant shall not be permitted as to the sexual activities of the complainant with any person; and

[underlining added]

23. [23]
    That section could be read as not applying where the cross-examination is to not suggest there had been sexual activities with any person, but rather that the complaints about sexual offending were baseless.  In that case, the cross examination could be as to alleged activities that were not with any person.   
24. [24]
    On the other hand, the section could equally be read as consistent with the plain words.  It could be argued that cross examining a complainant as to sexual activities of the complainant which the defendant says did not happen is still, literally, cross examination as to sexual activities of the complainant with a person in the sense of being cross examination about such activities. 
25. [25]
    I think both constructions are open.  The Court of Appeal decisions on the point arguably point both ways.  Mr Dixon referred me to R v Miller [2007] QCA 373 at [36] where the court was dealing with a contention of error by the trial judge in failing to allow a complainant to be cross-examined in relation to allegations of rape previously made by her.  It was submitted to the Court of Appeal that the complainant’s counsel should have been allowed to cross-examine to enable the jury to come to a better view of the complainant’s reliability.  After citing the section 4, the Court said at [36]:

It may be noted that this provision has nothing to say about a line of questioning directed to establishing that a complainant has previously made complaints of sexual offences where no sexual conduct occurred at all. A line of questioning to the effect that a complainant has in the past made complaints about imaginary incidents offends neither the spirit nor the letter of section 4.

26. [26]
    That quote appears in the judgment of by Justice of Appeal Keane, as his Honour then was, with whom Justice Philippides agreed.^[13]  At the end of paragraph [36] his Honour referred by footnote to :  R v MAG [2004] QCA 397 at [20] to [25].  Justice of Appeal Williams gave a separate judgment in R v Miller, and appeared to agree with Justice of Appeal Keane’s analysis on the cross-examination point.^[14]
27. [27]
    In R v MAG the complainant had admitted she made up false stories about the killing of a cat and being bashed.  Subsequent to that, the defence counsel sought a ruling he could cross-examine the complainant by putting to her that she had previously made unfounded allegations of sexual abuse against her biological mother’s boyfriend, and that she had threatened to make sexual allegations against her grandfather.  It appears, in relation to the boyfriend matter, the police charged the boyfriend but, ultimately, did not persist because the complainant could not sufficiently particularise the allegations.  The court observed, the prosecution did not proceed due to a suggestion the allegations were untrue.  After setting out the section, the Court of Appeal concluded at [24]:

It is also of significance in this case that there was nothing to suggest that the complaint about the mother’s boyfriend was false and given the lapse of time between the alleged incident sought to be relied on by the defence and the events giving rise to the charges the proposed cross-examination was not likely to materially impair confidence in the credibility of the complainant.

28. [28]
    It is to be noted that a consequence of the second part of that conclusion was that leave was properly sought and properly refused, because it was not sufficiently likely to be relevant to credit.  However, the opening part of that paragraph observed that there was nothing to suggest the complaint about the mother’s boyfriend was false.  This seems to suggest that, unless there is evidence to demonstrate that the complainant was false, cross-examination would not be permitted.
29. [29]
    It might be thought that the two cases can be read together on the basis that leave is required unless is it not contentious that the in the trial that the earlier complaint was false although, it seems to me there is some difficulty in that analysis.  At the least, it would seem that the Court of Appeal in R v MAG required there to be something to suggest that the complaint was false. 
30. [30]
    In my opinion, the better view taking into account those authorities and the words of the statute are that leave is required to cross examination suggesting that sexual activities previously alleged by a witness was fabricated unless that matter is accepted by the party calling the witness as correct.  That is, that there is an admission or some other conclusion evidence that the previous complaint was fabricated.  I hold that view for two reasons: 

    1. (a)
       First, I consider that construction open on the express words of the section.  Where the witness is asked whether allegations previously made of sexual conduct were false and the witness denies it, she or he is necessarily being cross examined about the witness’ evidence of sexual activities with another person’ and
    2. (b)
       Second, unless the fabrication is accepted, the cross examination will be inconsistent with the evident purpose of the provision.  That purpose in my view is to guard against juries giving undue weight to sexual history in assessing the probability that a person has been the victim of a particular sexual offence charged.  Where the witness denies she or he has fabricated a previous complaint, her or his evidence has the effect of putting evidence before the jury of exactly the kind of activities that the section is concerned to exclude, regardless of the suggestion in questions from cross examining counsel that the sexual activities did not occur.
31. [31]
    Assuming that leave is required, the more recent case would suggest the safer course was to grant leave to permit cross-examination about that matter, because in this case, it might well materially impair confidence in the credibility of the complainant, especially taken with all the other matters that I’ve dealt with.
32. [32]
    For those reasons, I made orders in terms of the draft.