Cross-examination concerning prior sexual history of complainants

[5-100] Introduction

Section 293 Criminal Procedure Act 1986 was renumbered as s 294CB on 1 June 2022: Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021: Sch 2[4].

Section 294CB(2) and (3) provide that, for prescribed sexual offence proceedings, evidence relating to the prior sexual history of the complainant is inadmissible subject to exceptions outlined in s 294CB(4)(a)–(f). Evidence falling within the exceptions can only be admitted if its probative value outweighs any distress, humiliation or embarrassment the complainant might suffer as a result of its admission: s 294CB(4).

Section 294CB(5) to (8) set out the procedure for determining whether evidence said to fall within the identified exceptions in s 294CB may be admitted. In summary:

  • evidence related to the complainant’s sexual reputation, sexual experience or sexual activity cannot be given unless the court has first decided the evidence is admissible: s 294CB(5)

  • questions of the admissibility of the evidence or the right to cross-examine the complainant are determined in the absence of the jury: s 294CB(7)

  • the accused may be permitted to cross-examine a complainant concerning evidence of the complainant’s sexual experience, or lack of it, or participation or lack of participation in sexual activity, if the evidence was disclosed or implied in the prosecution case, and the accused would be unfairly prejudiced if not able to do so: s 294CB(6)

  • if the court decides the evidence is admissible, written reasons must be given identifying with clarity the nature and scope of the evidence and the reasons for concluding it is admissible, before the evidence is led: s 294CB(8).

Note: in cases where evidence has been admitted under s 294CB, see also [5-240] and the note to the suggested direction Circumstances in which non-consensual sexual activity occurs — s 292A.

There has been some controversy associated with s 294CB (previously s 293) since it was first enacted, principally because of its capacity to prejudice an accused in the conduct of their trial. A five-judge Bench was convened in Jackmain (a pseudonym) v R [2020] NSWCCA 150 to consider how s 293 (now s 294CB) applied in the context of allegations of previous unrelated false complaints and the correctness of M v R (unrep, 15/9/93, NSWCCA) (where it was held, in respect of an earlier version of s 293, that it extended to exclude such evidence). The controversy concerning the section and the relevant case law was summarised by Leeming JA in Jackmain (a pseudonym) v R at [88]–[178].

Section 293 (now s 294CB) was designed to exclude, to a significant degree, cross-examination of a complainant’s sexual activity or experience with only limited exceptions: Jackmain v R at [15]. Its purpose is to protect sexual assault complainants and prevent embarrassing and humiliating cross-examination of a complainant about their past sexual activities: Jackmain v R at [23]–[24]; [233]; [246]–[247]; GP v R [2016] NSWCCA 150 at [40].

Section 294CB renders otherwise relevant evidence inadmissible; if the evidence in question is irrelevant, or otherwise inadmissible, it does not fall within the parameters of s 294CB: Decision Restricted [2021] NSWCCA 51 at [42]; R v Morgan (1993) 30 NSWLR 543 at 544; see also HG v The Queen (1999) 197 CLR 414 at [24].

The procedure for determining admissibility

The procedure contemplated by s 294CB(7) (previously s 293(7)) for determining whether evidence is admissible is a voir dire: Uddin v R [2020] NSWCCA 115 at [56]. To facilitate the conduct of the voir dire, s 294CB must be read down to permit evidence that would otherwise be inadmissible to be given so the task under ss 294CB(6) and 294(7) can be performed. The effect is that the exclusionary rules in s 294CB(2) and (3) do not apply to evidence given during the voir dire: Uddin v R at [53]–[58]; [94]; Jackmain v R at [16]; [91]–[95]; [248].

Generally, counsel should provide a detailed written statement of the evidence proposed to be led so the trial judge can determine whether the evidence falls within the parameters of s 294CB(4) and its probative value: Taylor v R (2009) 78 NSWLR 198 at [44]–[45]. In Jackmain v R, at [248], Wilson J (Johnson J agreeing at [234]) observed that ordinarily the voir dire would be conducted on the documents as “it would be wholly inconsistent with the intention of the legislature … for a complainant to be required to give evidence viva voce and endure the sort of humiliating and distressing cross-examination that the Parliament sought to prevent.” In an appropriate case, however, it may be necessary for oral evidence to be given: see for example Uddin v R at [94], where the oral evidence was to be given by persons other than the complainant.

Before the evidence is given, precise written reasons must be given for admitting the evidence and recording the nature and scope of the admitted evidence (s 294CB(8)): Taylor v R at [44]–[47]; Dimian v R (unrep, 23/11/95, NSWCCA). However, there is no need for the questions that are to be asked to be specifically identified: Taylor v R at [48].

Whether the evidence discloses the complainant has had sexual experience or taken part in sexual activity in s 294CB(3) is determined according to ordinary evidentiary principles: Uddin v R at [107].

[5-110] The exclusions in s 294CB(4)

Within the very narrow parameters of the provision, s 294CB(4) (formerly s 293(4)) should be construed broadly in the interests of the accused: R v Taylor at [36]; Decision Restricted [2021] NSWCCA 51 at [55]–[57]. However, it is important to bear in mind the intent of the legislature in introducing the section and its predecessors. In GP v R [2016] NSWCCA 150, Payne JA (McCallum and Wilson JJ agreeing) said at [40]–[41]:

[Section 294CB] … clearly strikes a balance between competing interests being, on the one hand the interest of preventing distressing and humiliating cross-examination of sexual assault victims about their prior sexual history and on the other, the interest of permitting an accused person to cross-examine victims about defined aspects of their sexual history in the circumstances prescribed in the exceptions contained within [s 294CB].

…

[A]n approach to construction which seeks to discern a single purpose, and construing the legislation as though it pursued that purpose to the fullest extent possible may be contrary to the manifest intention of the legislation.

A number of cases have considered aspects of the exclusions in s 294CB(4). As to:

  • the meaning of the expression “connected set of circumstances” and “at or about the time of” in s 294CB(4)(a) see, Jackmain v R at [189]–[195] and particularly at [191] where emphasis was given to the very short temporal period intended to apply; Cook (a pseudonym) v R [2022] NSWCCA 282 at [104]–[118] where it was held an 18-month gap in time between events was insufficiently temporal and ongoing legal proceedings for previous offences were not relevantly connected, but cf Beech-Jones CJ at CL at [17]–[24]; Elsworth v R [2022] NSWCCA 276 at [118] where evidence of a sexual experience from five years prior was not considered to be part of the complainant’s continuing sexual experience at the time of the charged act; R v Morgan (1993) 30 NSWLR 543 (decided under s 409B, the then predecessor provision); R v Edwards [2015] NSWCCA 24 at [25]–[30]; GEH v R [2012] NSWCCA 150 at [11]–[13] (Basten JA) and [35] (Harrison J); and Decision Restricted [2021] NSWCCA 51 at [59]–[60] (Leeming JA, Walton J agreeing), but cf Adamson J at [88]–[91].

  • the meaning of “sexual experience” and “sexual activity” in s 294CB(4), see Elsworth v R at [119] where it was held such terms did not encompass a complainant’s memory of some past experience or activity simply because the memory is held at or about the time of the charged act or is said to be connected to the charged act because past experience informed present conduct. See also GEH v R at [63]–[65] for the distinction between the two terms “experience” and “activity”.

  • the meaning of “relates to” in s 294CB(4)(b), see Cook (a pseudonym) v R at [119]–[122], where it was confirmed the phrase is “wide in import” but did not extend to complaint evidence disclosed about a different perpetrator.

  • the fact false complaint evidence may have the capacity to fall within the exceptions in s 294CB(4) see: Adams v R [2018] NSWCCA 303 at [163]–[177]. Where there is false complaint evidence years remote from the alleged offending, the temporal requirement in s 294(4)(a) cannot be satisfied: Jackmain v R at [25]; [190]; [235]; [238]; [240].

  • whether evidence of fear and anxiety constitutes “disease or injury … attributable to the sexual intercourse so alleged” referred to in s 294CB(4)(c) see: GP v R [2016] NSWCCA 150 at [34], [44]; a psychological condition of diagnosed depression and suicidal ideation falls within the term “disease or injury”: JAD v R [2012] NSWCCA 73 at [83].

  • the phrase “sexual intercourse so alleged” in s 294CB(4)(c)(i) includes only the physical act and excludes issues of consent: Taleb v R [2015] NSWCCA 105 at [93].

  • the admissibility of evidence of “the presence of semen [which] … is attributable to the sexual intercourse alleged to have been had by the accused” (s 294CB(4)(c)(ii)) see WS v R [2022] NSWCCA 77. In that case, a miscarriage of justice occurred because evidence the complainant was raped by another person at a similar time to the relevant offences was excluded, but evidence she had undergone a pregnancy test around that time was admitted. In the circumstances of that case, the court concluded both limbs of s 294CB(4)(c) were satisfied: at [78]–[80] (Macfarlan JA; Walton J agreeing); cf Rothman J at [108]–[111].

In Decision Restricted [2021] NSWCCA 51, Leeming JA (Walton J agreeing; Adamson J dissenting) observed, at [64], that when weighing the probative value of the evidence, “the distress, humiliation or embarrassment” to the complainant that is relevant is that which is over and above that which will inevitably occur by giving evidence even without reference to the matters caught by s 294CB. WS v R is an example of a case where the probative value of the evidence was found to outweigh the distress, humiliation and embarrassment the complainant might suffer: at [62]–[66], [84].