District Court New South Wales Medium Neutral Citation: R v CP (No 2) [2020] NSWDC 585 Hearing dates: 2 October 2020 Date of orders: 2 October 2020 Decision date: 02 October 2020 Jurisdiction: Criminal Before: Judge Weinstein SC Decision: I allow the Crown's application to adduce the proposed evidence. Catchwords: Section 293 Criminal Procedure Act 1986 - uncharged acts – tendency to be sexually attracted to the complainant and act upon that attraction by engaging in sexual acts with her – exception under section 293(3) – relationship includes biological brother and the child sister when there is a guilty passion Legislation Cited: Criminal Procedure Act 1986 (NSW) Cases Cited: BG v R [2010] NSWCCA 301 Decision restricted [2020] NSWCCA 115 Dimian v R (1995) 83 A Crim R 358 Ex parte Cook (1996) 70 ALJR 550 at 553 GEH v R [2012] NSWCCA 150 PMT Partners Pty Ltd (In liq) v Australian National Parks & Wildlife Service (1995) 69 ALJR 829 R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419 R v CP [2020] NSWDC 294 R v Edwards [2015] NSWCCA 24 R v McGarvey (1987) 10 NSWLR 632 R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526 Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 Taylor v R [2009] NSWCCA 180 Category: Procedural and other rulings Parties: Regina (Crown) CP (Defence) Representation: Counsel: Mr C Todd (Crown) Mr D Grippi (Defence) File Number(s): 2019/00077622 Publication restriction: A statutory non-publication provision operates to prevent publication of any information which could tend to identify the complainant or accused Judgment 1. On 12 June 2020, I gave judgment in this matter with respect to the admission of certain evidence for tendency purposes: R v CP [2020] NSWDC 294. An issue now arises as to whether that evidence can be adduced by the Crown in light of section 293 of the Criminal Procedure Act 1986 (NSW) (the CPA). 2. Section 293(3) of the CPA prohibits the admissibility of evidence that discloses or implies that the complainant has or may have had "sexual experience" or has or may have taken part in any "sexual activity", subject to the exceptions set out in subsection 4. 3. Section 293 provides: (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, 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. 1. It is common ground that the proceedings are in respect of a prescribed sexual offence so that section 293(1) of the CPA is engaged. Section 293(4)(a)(i)&(ii) Second limb: the evidence is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed 1. It is not disputed that the proposed tendency evidence of CP 'rubbing the thigh of the complainant before rubbing her genital area on the outside of her clothing with his hand', is evidence of the complainant 'taking part in sexual activity' and forms part of the 'sexual experience' of the complainant, and thus satisfies subsection (4)(a)(i). Mr Grippi, who appears for the accused, submits however, that subsection 4(a)(ii) is not satisfied. 2. For subparagraph (a)(ii) to be satisfied, there must be "a connected set of circumstances", that the set of circumstances include the commission of the alleged offence or offences, and that the "evidence otherwise inadmissible by reason of s 293(3) be of events alleged to form part of that set of circumstances…": Decision restricted [2020] NSWCCA 115 at [46]. 3. In R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526 Gleeson CJ observed that a "connected set of circumstances" may be or include activities or conduct which "constituted the context in which the alleged offence was committed and against which the complainant's evidence might reasonably be evaluated" (at 544): see Decision restricted [2020] NSWCCA 115 at [48]. 4. In R v Edwards [2015] NSWCCA 24 Harrison J stated at [31]: The term "connected" is not defined at all, and so its meaning is not confined to particularly close circumstantial or factual situations limited by reference to a specified range or class of participants or activities in which they may be involved. The evidence need only be of events allegedly forming part of a connected set of circumstances. Be that as it may, in the present case, the complainants' sexual experience is clearly evidence of events that are alleged to form part of a connected set of circumstances. The sexual experience of the complainants is directly referable to a series of events that actually form part of the circumstances in which the alleged offences occurred. 1. The Crown submits that with respect to the evidence to be adduced for tendency purposes and the alleged prescribed sexual offence, the 'connected set of circumstances' can be summarised as follows: 1. The complainant is the biological sister of CP; and 2. Both alleged incidents; 1. occurred in the place where the family was living; 2. took place in a bedroom used by the children of the family; 3. occurred when the accused and the complainant were alone in the bedroom, with other family members being in other areas of the house or other locations; and 4. they commenced with CP rubbing a part of the body of the complainant, being either her thigh or her back. 1. Mr Grippi submits that in GEH v R [2012] NSWCCA 150, the court refused to find that evidence which is "arguably similar" formed part of a connected set of circumstances. In that case, Harrison J said: [67] It is even clearer in my view that the evidence is not evidence of events that are alleged to form part of a connected set of circumstances in which the alleged sexual offences committed by the appellant were committed. They are distinctly unconnected. There is no "set of circumstances" at all. It is in my view a mistake to attempt to connect events as part of a set of circumstances by reference only to the fact that the events in each case are arguably similar. The alleged or apparent similarities do not necessarily or reliably inform the question of whether or not the events form part of a connected set of circumstances. [68] In this case the evidence related to the question of whether or not KN had a sexual relationship with John Hastings. There is no connection between that alleged event and either of the alleged sexual offences apart from the identity of KN as a person involved in each case. That does not lead to, or even approach, a conclusion that the two events form part of a connected set of circumstances. 1. Mr Grippi says that the Crown's submissions regarding the similarities of the events, reflect precisely the type of reasoning disapproved of by the court in GEH. Furthermore, he submits that not all the similarities the Crown allege would fall under the definition of "sexual experience or lack of sexual experience", namely: 1. That the accused and complainant are biological siblings; and 2. That they lived together in the family home. 1. In BG v R [2010] NSWCCA 301, the defendant was charged with offences alleged to have occurred between 1970 and 1971. The defendant was refused leave to cross-examine in relation to sexual experience which occurred between 1962 and 1966 or between 1966 and 1969. James J with whom Hislop and Price JJ agreed, said: [81] I am further of the opinion that neither of the conditions in subparagraphs (i) and (ii) for the operation of paragraph (a) of subsection (4) was satisfied. [82] None of the matters described in annexures A or B could be said to be "at or about the time" of the offences allegedly committed by the appellant. The matters described in annexure A occurred between 1962 and 1966 or between 1966 and 1969 (after which the complainant spent some time in a children's home, before going to the appellant's home) or after mid-1971. The matters described in annexure B occurred between 1962 and 1966. It is not possible, in my opinion, to regard matters occurring at any time within a period of a number of years as having occurred "at or about the time" of the alleged offences. [83] Nor could the matters be said to have formed part of a connected set of circumstances in which the alleged offences by the appellant were committed. The only real connection was the involvement of the complainant in all of the matters and in the appellant's alleged offences. 1. Mr Grippi submits that the second limb of s 293(4)(a) is not satisfied, and that the mere alleged participation of the complainant and the accused in both incidents does not satisfy the requirement that the sexual experience form part of a "connected set of circumstances". 2. In my opinion, the Crown has not demonstrated that a connected set of circumstances exist and has not discharged its onus. In my view the circumstances of the tendency evidence, whilst it shows similarities with the circumstances of the charged act, is connected only by the idiosyncrasies set out by the Crown. The events do not however, in my opinion, form a connected set of circumstances. Therefore, the Crown's application on the s 293(4) exception fails. Section 293(4)(b) Relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence 1. The Crown submits that as the complainant is the biological sister of CP there is a 'connection by blood'. Both the complainant and CP and other members of their family were living together in Queensland at the time of the (tendency) incident. The Crown submits that the biological connection between the complainant and CP alone is sufficient to satisfy the court that 'a relationship' existed at the time of the commission of the alleged prescribed sexual offence. 2. The Crown also relies upon R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419, where it was held that the word "relationship" can encompass (such) guilty passion as a matter of ordinary English usage. In that (child sex abuse) case, evidence of sexual activity between the accused and complainant not the subject of charge was found relevant and admissible under the now repealed s 409B of the Crimes Act, which is not relevantly different to s 293. The offence charged was alleged by the complainant to be part of a wider pattern of behaviour on the part of the accused, which established a guilty passion on the part of the accused (i.e. his sexual desire or feelings) for the complainant which existed at the time when the charged offence was alleged to have been committed. Hunt CJ at CL, with whom the other members of the bench agreed held that: 1. Evidence of a relationship between the complainant and the accused, which shows at the time of the charge the existence of a guilty passion by the accused for the complainant, is admissible in child sexual assault cases pursuant to s 409B subject to the protection of the complainant under s 409B that its probative value outweighs any distress, humiliation or embarrassment to the complainant, and the common law power of a judge to reject evidence where the prejudicial effect outweighs its probative value. (That is now found in sections 135 and 137 of the Evidence Act 1995) 2. That there is no requirement that the evidence proving the guilty passion occurred at or about the time of the charged offence, although the more remote the activity the less will be its weight. 1. The Crown submits that if the court is satisfied that 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 CP and the complainant, then the court must consider if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. The Crown says that the court will easily find that such a balancing militates in favour of admission. 2. Mr Grippi concedes that the accused and the complainant are biological siblings, and that they lived in Queensland in the same family home. Mr Grippi submits, however, that familial connections do not by themselves enliven the exception, and that if the court accepted the Crown's argument on this point, then all family relationships would enliven the exception. While the accused concedes that he is a biological sibling of the complainant, Mr Grippi says that this could not be the basis upon which the court could be satisfied a 'relationship' existed, for the purposes of the exclusion. 3. Mr Grippi submits that for the exception to apply, the court must be satisfied that "the evidence relates to a relationship". He says that the evidence which the Crown intends to adduce is evidence of a sexual touching, being the rubbing of the thigh of the complainant. He submits that there is nothing apparent in the evidence that goes to, or "relates" to a purported relationship between the accused and the complainant. 4. I note, however, that decisions of the High Court have repeatedly acknowledged that 'relates to' is a term of wide import, and that it will depend upon the context as to whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice (see Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 338, 347, 354, 370; PMT Partners Pty Ltd (In liq) v Australian National Parks & Wildlife Service (1995) 69 ALJR 829 at 835-836, 845-846; Ex parte Cook (1996) 70 ALJR 550 at 553. In R v Beserick at 517-8 it was recognised that the word "relationship" in section 409B could extend to the sort of relationship that exists between an adult and a child he sexually abuses, in which there might be no "emotional connection" beyond the abuser's desire for the child. 5. In my opinion, the relationship between a biological brother and the sister he sexually abuses is the type of relationship that is captured by the exception in s 293(4)(b), being a relationship of guilty passion on the part of CP. There is ample authority that the categories of the exceptions "should be construed broadly when the material in question is otherwise relevant to the issues of the case": see Taylor v R [2009] NSWCCA 180 at 33; R v McGarvey (1987) 10 NSWLR 632 at 634C-D; Dimian v R (1995) 83 A Crim R 358 at 365. I find, therefore, that the section s 293(4)(b) exception is established, subject to what follows. The probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer 1. In my previous judgment dated 12 June 2020 I found that the tendency evidence was relevant, had significant probative value concerning the principal fact in issue in the proceeding (being whether the accused engaged in sexual conduct with his sister), and that the probative value of the evidence substantially outweighed any prejudicial effect it may have on the accused. 2. The Crown submits that the probative value of the evidence outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission. Nothing to the contrary was put by Mr Grippi. I agree that such is the significance of the probative value of the evidence, that it outweighs the distress, humiliation or embarrassment the complainant may suffer if the evidence is admitted. 3. I allow the Crown's application to adduce the proposed evidence. 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