R v Desmares[2024] QDCPR 68

DISTRICT COURT OF QUEENSLAND

FANTIN DCJ (ex tempore):

The application

1. [1]
   This is an application by the defendant for leave pursuant to section 103ZH of the Evidence Act 1977 ('Evidence Act') to cross-examine the complainant and admit evidence as to sexual activities of the complainant other than those to which the charges relate. 

2. [2]
   The section is new, having commenced on 23 September 2024. As a result, there are no authorities considering it.

The statutory framework and policy background

3. [3]
   The Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 ('CC&CA Act') was assented to on 18 March 2024.  There were a complicated series of commencement dates by proclamation. 

4. [4]
   Its objectives were to implement the government's response to the recommendations of the second report of the Women's Safety and Justice Taskforce ('Taskforce'), Hear her voice - Report Two - Women and girls' experiences across the criminal justice system ('Report Two').  Report Two was released on 1 July 2022, and focuses on women's experiences in the criminal justice system as victim-survivors of sexual violence amongst other things.  It included recommendations to improve women and girls' experiences of the criminal justice system.^[1] 

5. [5]
   Previously, the Criminal Law (Sexual Offences) Act 1978 ('CLSO Act') section 4, Special rules limiting particular evidence about sexual offences, regulated questioning about general reputation of the complainant "with respect to chastity" and sexual activities of the complainant with any person. 

6. [6]
   The operation of section 4 was considered by the Court of Appeal in R v Tribe [2001] QCA 206.  McKenzie J made the following observations:

It will be seen from [section 4] that there is a blanket exclusion of evidence of general reputation with respect to chastity. There is an exclusion, unless leave is given, of evidence or cross-examination as to sexual activities. Leave is not to be given unless one [of] two circumstances exist. The first is that the evidence sought to be elicited or led has substantial relevance to facts in issue. If it has no other effect than to raise an inference about the complainant's general disposition it is excluded. The second is where the evidence sought to be led or elicited is proper matter for cross-examination as to credit. Evidence relating to or tending to establish the complainant has engaged in sexual activities is only proper material for cross-examination if, because of special circumstances, the court considers the evidence likely to materially impair confidence in the reliability of the complainant's evidence.

7. [7]
   The Taskforce heard that the operation of section 4 of the CLSO Act had resulted in "perverse applications" and that it should be strengthened to be consistent with comparable provisions in other Australian jurisdictions. The Taskforce recommended that the section be amended to reflect that leave should not be granted unless the court is satisfied that the probative value of any evidence about a complainant's sexual activities outweighs any distress, humiliation, embarrassment or other prejudice that the complainant may suffer as a result of its admission (Recommendation 58 of Report Two).^[2] 

8. [8]
   To implement this recommendation, the CC&CA Act inserted new part 6B, division 2, into the Evidence Act, which applies to a criminal proceeding that relates, wholly or in part, to a charge for a sexual offence.

9. [9]
   By virtue of section 161 of the Evidence Act, the new part 6B divisions 1 to 3 apply to a criminal proceeding regardless of when the offence the subject of the proceeding was committed, or the defendant was charged, or the proceeding was started.

10. [10]
    The language in part 6B division 2 has been modernised to reflect contemporary attitudes to sexual offences and make Queensland law consistent with other jurisdictions.

11. [11]
    New section 103ZG provides that "The court must not allow any questions as to, or admit any evidence of, the sexual reputation of the complainant".

12. [12]
    New section 103ZH, which is the subject of this application, provides that, "The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities, whether consensual or non-consensual, of the complainant (other than those to which the charge relates), without the leave of the court."

13. [13]
    Sections 103ZI and 103ZJ set out the requirements for the application, which must be in writing, filed in advance of the hearing, and must address certain matters.

14. [14]
    Section 103ZM provides that, when determining the application for leave, the court must not grant leave unless it is satisfied that the evidence has substantial probative value, or is a proper matter for cross-examination as to credit, and that it is in the interests of justice to allow the cross-examination or admit the evidence, having regard to a number of matters set out in paragraphs (a) to (e) inclusive. They include a requirement to have regard to matters such as whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience; the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; the need to respect the complainant's personal dignity and privacy; the right of the defendant to fully answer and defend the charge; and any other relevant matter.

15. [15]
    "Substantial probative value" is not defined in this division, but is the same expression used in section 14H of the Evidence Act with respect to an application for leave for sexual assault counselling privilege. That expression has been considered in authorities in that context.

16. [16]
    Section 103ZN provides that, "Evidence of the complainant's sexual activities is not to be regarded (a) as having substantial probative value by virtue of any inferences it may raise as to general disposition; or (b) as being a proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely to materially impair confidence in the reliability of the evidence of the complainant."

Crown case and allegations

17. [17]
    The defendant is charged with one count of sexual assault, three counts of rape and one count of robbery, all of which are alleged to have occurred in a single course of conduct on 16 August 2022.

18. [18]
    The Crown case is that the complainant owns and operates a massage parlour. The complainant has never offered any sexual services as part of her business, which she has owned and operated since 2016. The complainant is the only person who works in the business, and the business is open seven days a week from 9 am to 5 pm. Most of her customers are walk-ins. She advertises "massage only".

19. [19]
    The defendant had been to see the complainant for a massage on three or four occasions in the past. On the 16th of August 2022, he attended at about 4 pm. He paid upfront on a credit card for a 90 minute massage. The complainant massaged him for about an hour before the defendant said he had to go. She offered to refund his money, and he said to keep it. He then asked her whether she did any sex, and how much she charged for it. The complainant said she did not do that. Her account, then, in summary is that the defendant grabbed her arm behind her back, pushed her head down onto the bed, raped her first from behind with her head on the bed, and then rolled her over onto her back, with her buttocks on the side of the bed, and raped her in that position. He then penetrated her vagina with his fingers. Those are the allegations that form the basis of the charges.

Issues in dispute and defence case

20. [20]
    The defence case is that the complainant offers sexual services as part of her massage business, and did so on the occasion of the alleged offending. What is in issue is the complainant's version when she claims she was raped by the applicant, and that she is not a sex worker. Whether that version is accepted turns upon her credit. Consent is in dispute, that is, whether the Crown can prove that the complainant did not give consent to the alleged sexual conduct.

21. [21]
    In cross-examination of the complainant at committal, it was suggested that the complainant and defendant agreed to a transaction in which she provided sexual services to him in exchange for payment, that he paid cash for the sexual services, that the complainant masturbated the defendant and then had sex with him using a condom, that the condom broke during the sex, and that the defendant then demanded a refund. The complainant rejected all of those propositions. The defence case also may be that the complainant made a false complaint of rape to extract money from the defendant.

Questions sought to be asked

22. [22]
    The application in its terms sought "Leave be granted for the complainant to be cross-examined and evidence admitted regarding the sexual history and activities of the complainant, the questions, scope and basis for such leave having been identified in the attached outline of argument".

23. [23]
    The outline of argument did not list the initial questions sought to be asked, nor the scope of the questioning sought to flow from the initial questioning, in the strict terms required by section 103ZK. But it did attach highlighted extracts of the transcript of the complainant's cross-examination at the committal hearing in the Magistrates Court. That cross-examination occurred over two separate days in September and October 2023 before an Acting Magistrate. The complainant's evidence was given through a telephone interpreter.

24. [24]
    Mr Edwards KC, who appeared for the defendant at committal and in this court, neither sought nor obtained leave pursuant to section 4 of the CLSO Act for certain cross-examination at committal. It appears the police prosecutor did not object to the questions. Mr Edwards KC now relies in this application upon questions asked and answers given by the complainant at committal.

25. [25]
    It is concerning that cross-examination occurred in breach of the requirement for leave under section 4 of the CLSO Act, without the prosecutor objecting, or the Acting Magistrate disallowing the questions. It is contrary to the requirements of the legislative scheme under the CLSO Act.

26. [26]
    In this court, the proceeding was listed for a special witness hearing under section 21A of the Evidence Act for the prerecording of the complainant's evidence with an interpreter.

27. [27]
    Following the commencement of part 6B division 2 on 23 September 2024, that hearing was delisted to enable the defendant to make this application for leave. By this application, the defendant, in effect, concedes that leave was required for certain questions asked in cross-examination at the committal.

28. [28]
    In oral submissions, Mr Edwards KC initially suggested that leave had not been required for some of the questions asked at committal because they were not questions about the sexual activities of the complainant. An example given was questions with respect to the complainant taking the morning-after pill. That submission was difficult to reconcile with his later submission that the evidence about the morning-after pill had substantial probative value because it was evidence from which the jury could infer that the complainant was a sex worker, that is, it was sought to be relied upon by the applicant because it related to sexual activities of the complainant.  The applicant later accepted that leave was required for those questions. 

29. [29]
    In my view, questions about whether the complainant had taken the morning-after pill, and how frequently she did so in a particular period of time, are questions about the complainant's sexual activities because the morning-after pill is a form of emergency contraception taken to reduce the risk of, or to prevent, pregnancy following sexual activity. It is not suggested that the morning-after pill was taken for any other purpose in this case.

30. [30]
    During oral submissions, the nature and scope of the applicant's proposed questions was further refined, and reduced to three topics, by agreement summarised as follows:

1. whether the complainant was, at the time of the alleged offences and before that date, a sex worker, being a person who provided sexual services to another person for payment or reward;

2. that in the 18-month period between 11 April 2021 and October 2022, the complainant had, on five occasions, accessed the morning-after pill from a pharmacy near her workplace, including on one occasion, after the alleged offences; and

3. when the complainant's relationship with her boyfriend started and finished, including whether it continued after the alleged offences, including to October 2022, when she accessed the morning-after pill.

31. [31]
    I deal with each of those topics in turn.

Topic 1 – evidence about the complainant being a sex worker

32. [32]
    Under section 103ZH, leave is not required to cross-examine the complainant about sexual activities to which the charges relate.

33. [33]
    It is accepted that in order for the applicant to put his case to the complainant, it will be necessary to cross-examine her to suggest that, at the time of the alleged offences, she agreed to provide sexual services to the defendant in exchange for payment. Leave is not required for that, because it relates to the sexual activities the subject of the charges.

34. [34]
    The applicant, however, seeks leave to cross-examine about whether the complainant was, before the date of the alleged offences, conducting a business as a sex worker from her massage business premises.

35. [35]
    The applicant made it clear that he does not rely upon evidence that the complainant was a sex worker generally, on other occasions, for the purposes of consent^[3] or mistake of fact, or the sexual reputation of the complainant, or to raise any inference as to general disposition.

36. [36]
    New section 103ZW provides that a judge "may direct the jury that it should not be assumed that a person consented to a sexual activity because the person … worked as a sex worker."

37. [37]
    The applicant submits that evidence that the complainant conducted a business from the premises as a sex worker generally, on other occasions, has substantial probative value to the issue in dispute, whether the transaction occurred as alleged by the complainant or as suggested by the defendant. That is, it is relevant as to whether the complainant was a sex worker on the day of the offences, because it makes it more likely that she offered the defendant sexual services for money on that occasion, as the defence case asserts.

38. [38]
    There is no evidence on the Crown case that the complainant was a sex worker. When cross-examined at committal, the complainant denied the suggestion.

39. [39]
    Nonetheless, I accept that a critical issue in the trial is the nature of the business conducted by the complainant from the premises (that is, whether it did or did not include sex work) and evidence of that could be the subject of evidence from both the prosecution and the defence.

40. [40]
    Evidence, if it existed, that the complainant had, in fact, operated as a sex worker from the premises would be contrary to answers given by the complainant in cross-examination at committal, and would, in my view, be likely to materially impair confidence in the reliability and credibility of the complainant's evidence. Therefore, it would also be a proper matter for cross-examination as to credit.

41. [41]
    I am satisfied that evidence (if it existed) that the complainant, on occasions before the alleged offences, offered sex worker services from the premises, would have substantial probative value.

42. [42]
    Nonetheless, under section 103ZM, the court must not grant leave unless it is also satisfied of the additional requirement that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to the matters in subsections (a) to (e) inclusive.

43. [43]
    With respect to subsection (a), I accept that the complainant may experience distress, humiliation and embarrassment as a result of such cross-examination or the admission of such evidence. But in my view it would not be significantly greater than that arising from the necessary questions required to be asked in cross-examination to put the defence case, that is, that the complainant was acting as a sex worker with the defendant on the date of the alleged offences. I am satisfied that, on this issue, the probative value of this evidence outweighs the distress, humiliation and embarrassment that may arise.

44. [44]
    With respect to subsection (b), I accept that there is a risk that evidence about the complainant being a sex worker may arouse in the jury a discriminatory belief or bias, prejudice or hostility. It is well established that sex workers experience significant stigma and discrimination from other people, and that their work is subject to many misconceptions.^[4]  An example of one such misconception, that if a person is a sex worker they must have consented to the sexual activity, is sought to be neutralised by the new jury direction in section 103ZW(e).  Such a risk would have to be mitigated by appropriate jury directions which a jury is assumed to comply with.  

45. [45]
    With respect to subsection (c), I accept that evidence that the complainant was a sex worker would not respect the complainant's personal dignity and privacy.

46. [46]
    With respect to subsection (d), the evidence sought to be adduced of sex work is, in this case, critical to the right of the defendant to fully answer and defend the charges.

47. [47]
    Having regard to all of those considerations, I am satisfied that it is in the interests of justice to grant leave for cross-examination, and to admit the evidence on this topic. So far as the application relates to this topic, it will be allowed.

Topic 2 – evidence about the morning-after pill

48. [48]
    Turning to topic 2, evidence about the morning-after pill, the applicant seeks to cross-examine and admit evidence that, in the 18-month period between 11 April 2021 and October 2022, the complainant had, on five occasions, accessed oral emergency contraception (referred to as the morning-after pill) from a pharmacy near her workplace, including on one occasion after the alleged offences.

49. [49]
    The applicant has obtained evidence by subpoena that suggests that the complainant has, on a number of occasions, accessed a morning-after pill at a pharmacy near her massage business. It is an emergency oral contraception. It is not a medical abortion pill.

50. [50]
    The evidence about that is not relied upon in proof of any general disposition (section 103ZN(a)), or with respect to the complainant's sexual reputation (section 103ZG).

51. [51]
    In considering the question of substantial probative value, this is not a case where the evidence of sexual activities sought to be elicited is said to have occurred at or about the time of the alleged offences, or that it forms part of a connected set of circumstances in which the offences are alleged to have been committed (for example, a so-called pack assault).

52. [52]
    The evidence sought to be admitted under this topic is much more remote. The applicant submits that the evidence about the morning-after pill is substantially probative of the issue whether the complainant was a sex worker, and upon payment of money by the applicant, was consenting to sex on the occasion of the alleged offences. The applicant submits that if the jury were to accept the fact that the complainant was a sex worker, or be left in a state of uncertainty on that issue, that is relevant to the facts in issue as to consent and/or mistake of fact as to consent. He further submits that such evidence paints a different picture, and suggests a different motive for the complaint surrounding demands for a refund for sex which was consented to, rather than rape.

53. [53]
    The applicant points to the fact that, in cross-examination at the committal, the complainant initially said that the only time she had taken the morning-after pill was immediately after the alleged offences. When she was informed that the defence had her medical records from the pharmacy which showed she had obtained the morning-after pill from the same pharmacy on a number of previous occasions, the complainant sought to explain that. She said she had a boyfriend who was not really a boyfriend, that it was her personal thing, and that it had nothing to do with the proceeding. She accepted that she had earlier said that she had not had sex since separating from her husband in 2016, but explained that by saying: it was a personal affair about the boyfriend, that it was her personal thing, and that she did not feel or think that she needed to talk about it or answer it. When asked how many times she had taken the morning-after pill since 2021, she said about five or six times.

54. [54]
    Her evidence is consistent with the medical evidence that has been obtained by the applicant, which is that the complainant accessed the morning-after pill five times in the 18 months between April 2021 and October 2022. Those five occasions included the single occasion immediately after the alleged offences, that is, the alleged rapes by this applicant. Putting that occasion to one side, there are three occasions in a 16 month period before the alleged offences, and one occasion two months after the alleged offences.

55. [55]
    Mr Edwards KC submitted that this is a large number of times to take the morning-after pill for someone who is not in a committed relationship, and this evidence supports an inference that the complainant was a sex worker.

56. [56]
    He submitted that the complainant lied on oath about the number of times she had obtained the morning-after pill, and the reason she had done so, until she was caught out by her own medical records, and that she lied in order to conceal the fact that she was a sex worker. He submits that this amounts to special circumstances such that the evidence would be likely to materially impair confidence in the reliability of her evidence, and would be a proper matter for cross-examination as to credit under section 103ZN(b).

57. [57]
    In my view, all that the evidence of the morning-after pill demonstrates is that the complainant had had sexual activity with someone, and that she was concerned to prevent pregnancy arising from that. It is relevant to whether she engaged in sexual activity. It is not relevant to whether it was sexual activity in exchange for payment. It does not prove that she was a sex worker at the relevant times.

58. [58]
    Emergency contraception, or the morning-after pill, may be used in a variety of circumstances. For example because a person had unprotected sex, or a condom broke during sex, or a person missed taking a contraceptive pill, or a person who was taking a contraceptive pill was vomiting or had diarrhoea, preventing the pill from working, or a person had been sexually assaulted.

59. [59]
    Here, there is separate evidence in the complainant's medical records that she said she had sex with her boyfriend and used condoms.

60. [60]
    The evidence of the frequency of accessing the morning-after pill during the relevant period is perhaps an unusual fact or circumstance, but in my view, it is neutral. It is not logically probative of whether the complainant was a sex worker.

61. [61]
    The frequency of taking the morning-after pill in the general population is unknown. There is no evidence about it. The applicant's submission that taking it on four occasions in 18 months is an unusually high number, and supports an inference that the person was a sex worker, is speculation. It is no more likely or probable that a sex worker would access the morning-after pill with that frequency than it is that a person who is not a sex worker, who is simply using it for contraception in their private life, would do so. On one view, the opposite inference is open. That is, it is more likely that a sex worker who has been running a professional business from massage premises for some years would be vigilant to ensure they used an additional form of contraception in addition to condoms, rather than simply accessing the morning-after pill on an ad hoc basis. However, I make no finding about that.

62. [62]
    The simple point is that the evidence about frequency of the complainant accessing the morning-after pill is not more persuasive one way or the other, and it does not support an inference that the complainant was a sex worker. It does not have substantial probative value. So the application for leave on this second topic fails at the first hurdle in section 103ZM.

63. [63]
    The applicant also submits that the fact the complainant obtained the morning-after pill from a pharmacy close to her workplace, being her massage business, rather than close to her home, also supports an inference that she is a sex worker. I do not accept this submission. Nothing turns upon the location of the pharmacy being closer to her workplace rather than closer to her home. The complainant is a single mother of two children. It is unremarkable that some people may prefer to do their shopping at a location closest to their workplace rather than closest to their home. There may be many different factors affecting a decision as to which location is preferred. The fact that the pharmacy she obtained the pill from was located closest to her workplace rather than her home is not evidence reasonably capable of supporting an inference that the complainant was a sex worker.

64. [64]
    Even if I am wrong about whether the evidence about the morning-after pill has substantial probative value, I am not satisfied that it is in the interests of justice to allow cross-examination or admit evidence about the topic, having regard to the matters in subsections (a), (b) and (c) of section 103ZM.

65. [65]
    With respect to subsection (b), there is a risk that such evidence may arouse in members of the jury a discriminatory belief or bias, prejudice or hostility. Although this medication is legal in Queensland, some people holding certain religious beliefs oppose the use of contraception generally, and the taking of oral emergency contraception in particular. Evidence that the complainant has used an emergency contraception may give rise to a risk of discriminatory belief or bias, prejudice or hostility towards the complainant. In addition, some members of the jury may hold a mistaken belief that the oral emergency contraception is the same as an abortion pill (which terminates an existing pregnancy), which would be incorrect. There is a risk that the evidence may give rise to similar risks of discrimination, discriminatory belief or bias, prejudice or hostility towards the complainant by members of the jury who disapprove of abortion.

66. [66]
    Mr Edwards KC argued that this risk could be avoided by giving jury directions or even questioning prospective jurors as to their beliefs about these issues. In my view, it is no answer to the risk that the legislation expressly seeks to avoid, to embark upon questioning jury panel members about their personal views on contraception or abortion.

67. [67]
    With respect to subsections (a) and (c), evidence of having accessed oral emergency contraception is, in my view, an example of the kind of intensely intimate matter the personal dignity and privacy of which the legislation recognises the need to respect. It is also a matter where a complainant is likely to experience distress, humiliation and embarrassment if cross-examined about it.

68. [68]
    All of those matters, individually and in combination, militate against granting leave. The application for leave on this second topic fails.

Topic 3 – evidence about the timing of the complainant’s relationship with her boyfriend

69. [69]
    This topic is inextricably linked to the morning-after pill topic.

70. [70]
    The applicant seeks to cross-examine the complainant and admit evidence about when the complainant's relationship with her boyfriend started and finished, including whether it continued after the alleged offences, including to October 2022, when she accessed the morning-after pill for the last time.

71. [71]
    Evidence that the complainant accessed the morning-after pill or that she had a past sexual partner prior to the offending does not have substantial probative value to a fact in issue in the trial. It falls well short of establishing, or even supporting, a finding that the complainant was a sex worker, or that she consented to sexual conduct with the defendant on the day of the offending.

72. [72]
    The applicant relies upon the complainant's lies about whether she was in a relationship, and about how many times she took the morning-after pill, as proper matters for cross-examination as to credit.

73. [73]
    It is accepted that a lie told by a witness can bear on an assessment of their credibility, and that the complainant's credibility is central to the Crown case.

74. [74]
    In cross-examination at the committal, the complainant gave an explanation about accessing the morning-after pill by referring to an on-off relationship with her boyfriend, and that she had not previously provided that information because she thought it was a private or personal matter that had nothing to do with the proceeding.

75. [75]
    The complainant's answers given at committal, which are relied upon by the applicant, must be viewed in their particular context, having regard to the circumstances in which the answers were given. The value of that evidence is limited by a number of factors. The complainant's answers were the product of the applicant's failure to comply with the legislative requirement for leave, in contravention of section 4 of the CLSO Act. English was not the complainant's first language. She gave evidence through an interpreter, by telephone rather than in person, with all of the limitations that flow from that. It is clear from the transcript that there were difficulties in interpreting particular words, for example, whether the complainant was a widow versus being separated. Those matters reduce the weight that ought to be given to the complainant's answers that are relied upon by the applicant as lies.

76. [76]
    In addition, the information that the complainant had a casual sexual partner is information that she advised the hospital about after she attended with police for this offending. Insofar as it might be suggested that she was being deceitful about having a boyfriend in order to progress her complaint, that deceit was not present at the time her complaint was made, as the prosecution points out.

77. [77]
    In addition, lying about matters that are not central to the disputed issue in the trial, and which cannot rationally bear upon the disputed issues, as I have found, are not proper matters for cross-examination as to credit.

78. [78]
    For this topic, the applicant has failed to establish, as required by section 103ZN, that because of special circumstances, that evidence would be likely to materially impair confidence in the reliability of the evidence of the complainant.^[5]

79. [79]
    Even if the evidence on this topic had substantial probative value, which I do not accept, having regard to the matters in section 103ZM, subsections (a) and (c), I am not satisfied it is in the interests of justice to allow the cross-examination or admit the evidence. There was evidence of the complainant's distress and upset during cross-examination at the committal. The complainant identified her desire for privacy as the reason she did not initially give that evidence.

80. [80]
    Refusing to grant leave for topics 2 and 3 does not prevent the defendant from putting his case or defending the charges.

Conclusion and orders

81. [81]
    In conclusion, the application for leave pursuant to section 103ZH of the Evidence Act is allowed in part.

82. [82]
    Leave is granted to cross-examine the complainant and admit evidence with respect to whether, on the occasion of the alleged offences in the premises, and on earlier occasions in the premises, the complainant was a sex worker, being a person providing sexual services to any person for payment or reward.

83. [83]
    The application is otherwise dismissed.

Associate’s Note:

On 16 June 2025, the Crown presented a replacement indictment charging two counts of rape and one count of robbery. The original indictment, which charged one count of sexual assault, three counts of rape, and one count of robbery was discontinued. On 20 June 2025, the defendant was acquitted on all charges on the replacement indictment after a five day trial.