Published by Geoff Harrison | 17 August 2024
Section 294CB (previously s293) of the Criminal Procedure Act 1986 prohibits the admissibility of evidence relating to a complainant's sexual reputation, experience or activity (or lack of) unless the exceptions contained with s294CB
(4) are satisfied. This section has caused a great deal of controversy as to whether an accused can receive a fair trial, particularly where an issue arises relating to previous false complaints made by a complainant: see Jackmain. In Jackmain, Leeming J sets out the history and application of s293 from [88]. A number of decisions have criticised the drafting of the section (see Jackmain at [27] and [89] and Cook at [35]).
In the recent decision of Cook, the High Court considered the exception under s293(4)(b) now s294CB(4)(b), which looks at the nature of the relationship that was existing or recent at the time of the allegation. The court ruled that this exception would allow evidence relating to a relationship that could be one of abuse or trust and confidence and that this section would allow evidence of uncharged acts or tendency evidence relating to the relationship. See Cook at [48]:
The operation of the second exception to inadmissibility: s 293(4)(b)
The second exception to inadmissibility upon which the appellant relied is concerned with different circumstances and, as the appellant accepted, applies to a narrower range of evidence than the four categories of evidence comprising the Queensland evidence, upon which the appellant relied in relation to the first exception.[26] The second exception applies only to that part of the Queensland evidence that relates to a relationship between the appellant and the complainant "that was existing or recent at the time of the commission of the alleged ... sexual offence[s]". For instance, even with the breadth of the expression "relates to",[27] the evidence of disclosures by the complainant to her father and stepmother could not, by itself, relate to a relationship between the appellant and the complainant.
The evidence that relates to a relationship cannot be identified without first identifying the nature and scope of the relationship. The relationship described by the second exception encompasses a wide range of possibilities, permitting evidence to be adduced by both the prosecution and the defence which would otherwise be prohibited by s 293(3).
The relationship could be one of abuse.[28] As the appellant submitted in oral submissions, it would extend to evidence of uncharged acts by an accused person against a complainant. Those uncharged acts might have significant probative value because they strongly support proof of a tendency of the accused person, which in turn may strongly support proof of a fact making up the offence charged.[29] The evidence of those uncharged acts would be inadmissible pursuant to s 293(3) but the tendency would almost invariably fall within s 293(4)(b) because it would relate to a relationship between the accused person and the complainant that was existing or recent at the time of the commission of the alleged sexual offence.
The relationship could also be one of trust and confidence or mutual emotional connection between the complainant and the accused person.[30] But the relationship contemplated by s 293(4)(b) must be more than a casual acquaintance.[31] It is a question of degree, dependent upon the facts of a particular case, whether interactions between two persons are sufficient for it to be said that they have formed a relationship.
If the trial judge had not erred in his Honour's identification of the parties to the relationship with which s 293(4)(b) is concerned, it is possible that his Honour might have found that the appellant and the complainant had a relevant relationship and that some of the Queensland evidence may have related to that relationship. Equally, and unsurprisingly in the absence of any findings by the trial judge concerning any relationship, no member of the Court of Criminal Appeal considered the nature and content of the relevant relationship. Their Honours were all correct to abstain from an attempt to do so. Without the context and evidence that was before the trial judge such consideration would have been a difficult, perhaps impossible, task.
Adamson J, writing for the majority, nevertheless, and with respect erroneously, concluded that she was "not persuaded that the disclosure by [the complainant] to [the appellant] of offences perpetrated on [the complainant] by [the Queensland offender] can be said to 'relate to' the relationship between [the complainant] and [the appellant]".[32] Her Honour reached this conclusion based on three substantive paragraphs of reasoning under the heading "Whether s 293(4)(b) applies".[33] In the first paragraph, her Honour recorded the submission by senior counsel for the appellant that "[t]he disclosure of the Queensland offences to the appellant and the context surrounding the ensuing proceedings were a significant aspect of the relationship between the complainant and the appellant, particularly at the time of the first 12 counts on the indictment given the overlap with the Queensland proceedings". In the second paragraph, her Honour explained that "what is required for evidence to 'relate to a relationship'" existing at the time of the offences was considered by this Court in HG v The Queen,[34] quoting from the judgment of Gleeson CJ in that case. In the final paragraph, her Honour described, and rejected, the submission of senior counsel for the appellant that the present case could be distinguished from HG v The Queen. With respect, the present case is quite distinguishable from HG v The Queen. In HG v The Queen there was scant evidence of any relationship between the appellant and the complainant and Gleeson CJ said that even if the evidence were assumed to establish a relevant relationship, that relationship did not relate to the evidence the appellant sought to admit. As senior counsel for the appellant submitted in this Court: "[in] HG ... there was no question about a relationship of the kind that is here".
Other Sources:
Cases:
Extracted Legislation:
CRIMINAL PROCEDURE ACT 1986 - SECT 294CB
294CB ADMISSIBILITY OF EVIDENCE RELATING TO SEXUAL EXPERIENCE
(1) This section applies to proceedings in respect of a prescribed sexual offence.
(2) Evidence relating to the sexual reputation of the complainant is inadmissible.
(3) Evidence that discloses or implies--
(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b) has or may have taken part or not taken part in any sexual activity,
is inadmissible.
(4) Subsection (3) does not apply--
(a) if the evidence--
(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or 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) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,
(b) if the evidence relates to a relationship that 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,
(c) if--
(i) the accused person is alleged to have had sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900 ) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and
(ii) the evidence is 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,
(d) if the evidence is relevant to--
(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or
(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,
(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),
(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,
and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
(5) A witness must not be asked--
(a) to give evidence that is inadmissible under subsection (2) or (3), or
(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.
(6) If the court is satisfied--
(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period--
(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,
the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.
(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.
(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.
Crimininal Procedure Act 1986
3 Definitions
"prescribed sexual offence" means--
(a) an offence under section 43B, 45, 45A, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O, 63, 65, 65A, 66, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 66F, 67, 68, 71, 72, 72A, 73, 73A, 74, 76, 76A, 78A, 78B, 78H, 78I, 78K, 78L, 78M, 78N, 78O, 78Q, 79, 80, 80A, 80D, 80E, 81, 81A, 81B, 87, 89, 90, 90A, 91, 91A, 91B, 91D, 91E, 91F, 91G, 91P, 91Q, 91R, 316 (if the concealed serious indictable offence is a prescribed sexual offence) or 316A of the Crimes Act 1900 , or
(b) an offence that, at the time it was committed, was a prescribed sexual offence for the purposes of this Act or the Crimes Act 1900 , or
(c) an offence (including an offence under section 86 of the Crimes Act 1900 ) that includes the commission of, or an intention to commit, an offence referred to in paragraph (a) or (b), or
(d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).
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