New South Wales Court of Criminal Appeal CITATION: Y v Regina [2009] NSWCCA 287 HEARING DATE(S): 11 November 2009 JUDGMENT DATE: 9 December 2009 JUDGMENT OF: Allsop P at 1; Howie J at 88; Hislop J at 89 1. Appeal allowed. DECISION: 2. Quash the appellant's convictions. 3. Order a new trial. CATCHWORDS: CRIMINAL LAW – procedure – sexual assault against children– admissibility of evidence – application to cross examine complainant about sexual experience – evidence of other sexual activity over period of offences - Criminal Procedure Act NSW 1986 (NSW) s 293(4)(a) – "connected set of circumstances" – whether motivation to fabricate allegations - whether miscarriage of justice – prejudice given corroborative nature of evidence – matter not argued in terms below – no miscarriage of discretion in refusing to admit evidence - CRIMINAL LAW – procedure – sexual assault against children– admissibility of evidence – application to cross examine complainant about sexual experience – evidence of other sexual abuse by another adult - Criminal Procedure Act 1986 (NSW) s 293(4)(a) – whether sexual activity occurred "at or about the time" – whether temporal requirement question of fact that should be left to jury – temporal requirement to be assessed by judge and finding made – no miscarriage of discretion in refusing to admit evidence - CRIMINAL LAW – appeal against conviction – sexual assault - comments of Crown to jury in contradiction with evidence inadmissible under Criminal Procedure Act 1986 (NSW) s 293 – whether trial unfair – s 293 rulings should not be used to create misleading factual and evidentiary framework for jury – substantial miscarriage of justice – appeal allowed - Criminal Procedure Act 1986 (NSW) – s 293 LEGISLATION CITED: Criminal Procedure Act 1986 (NSW) CATEGORY: Principal judgment CASES CITED : Morgan (1993) 30 NSWLR 543 Munn and Miller [2006] NSWCCA 61 PARTIES: Y Regina FILE NUMBER(S): CCA 14173/2007 COUNSEL: D Dalton SC, D Carroll (Applicant) M Grogan (Respondent) SOLICITORS: Webb & Boland Lawyers (Applicant) S Kavanagh, DPP (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 14173/2007 LOWER COURT JUDICIAL OFFICER: Berman DCJ LOWER COURT DATE OF DECISION: 26 June 2008 IN THE COURT OF CRIMINAL APPEAL 14173/2007 ALLSOP P HOWIE J HISLOP J Wednesday 9 December 2009 Y v REGINA JUDGMENT 1 ALLSOP P: On 26 June 2008, a jury found the appellant guilty of 10 counts of sexual intercourse and indecent assault of three young girls: his stepdaughter, her cousin and the daughter of a family friend. He was found not guilty on two counts for similar offences and the jury was unable to reach a verdict on the remaining count for a similar offence. 2 The offences for which the appellant was found guilty were said to have been committed between January 2001 and September 2006 against the three young girls who were aged between 8 and 13 years at the time of the offences. 3 I will refer to the people involved by initial and by reference to their place in the events. The first of the three children was the stepdaughter of the appellant. I will call her "stepdaughter S". The acts in respect of which the appellant was charged and found guilty against her occurred when she was 8 to 13 years old. 4 The second child was stepdaughter S's cousin, the niece of her mother ("WY"), that is the child of her mother's sister. I will call her "cousin N". She was 8 or 9 years old at the time of the acts in respect of which the appellant was charged and found guilty. I will also refer to the New South Wales towns in and about which the events were said to have taken place as "the town", "the second town" and "the third town". 5 WY, stepdaughter S's mother, was at the time of the alleged events married to and living with the appellant. 6 The third child was the daughter of friends of the appellant and WY. I will call her "friend A". She was 12 years old at the time of the acts in respect of which the appellant was charged and found guilty. 7 The judge (Berman DCJ) imposed an effective total sentence of 26 years with an effective non-parole period of 19 years 6 months. 8 There is no application for leave to appeal against sentence, this having been abandoned by notice of abandonment signed by the appellant. 9 The appellant appeals against his conviction on three grounds, as follows: " Ground One – The trial judge erred in law in refusing the application to cross-examine the complainant [stepdaughter S] pursuant to s 293 of the Criminal Procedure Act 1986. Ground Two – The trial judge erred in law in refusing the application to cross-examine the complainant [cousin N] pursuant to s 293 of the Criminal Procedure Act . Ground Three – The Crown's comments regarding the complainant's limited sexual education led to an unfair trial." 10 The grounds of appeal are confined, but in order to understand them it is necessary to recount some of the material at the trial. 11 The appellant faced 13 charges. Eight charges concerned stepdaughter S. They were counts 1, 2, 3, 9, 10 11, 12 and 13 of the indictment. The jury was unable to reach a decision on count 11 and were discharged in respect of this count. The appellant was found not guilty on count 13. He was found guilty on the balance of these charges. These eight charges concerning stepdaughter S were as follows: "1. [B]etween 1 January 2001 and 30 November 2001 at [the town] in the State of New South Wales, [the appellant] did have sexual intercourse with [stepdaughter S], a person then under the age of 10 years, namely, 8 years. 2. [B]etween 1 January 2003 and 31 August 2003 at [the town] in the State of New South Wales, [the appellant] did have sexual intercourse with [stepdaughter S], a person then above the age of 10 years and under the age of 14 years, namely, 10 years, in circumstances of aggravation, namely, that at the time she was under his authority. 3. [B]etween 1 March 2003 and 29 February 2004 at [the town] in the State of New South Wales, [the appellant] did have sexual intercourse with [stepdaughter S], a person then above the age of 10 years and under the age of 14 years, namely, 10 or 11 years, in circumstances of aggravation, namely, that at the time she was under his authority. … 9. [B]etween 1 August 2003 and 31 October 2003 at [the town] in the State of New South Wales, [the appellant] did have sexual intercourse with [stepdaughter S], a person then above the age of 10 years and under the age of 14 years, namely, 10 years, in circumstances of aggravation, namely, that at the time she was under his authority. 10. [B]etween 1 August 2003 and 31 October 2003 at [the town] in the State of New South Wales, [the appellant] did have sexual intercourse with [stepdaughter S], a person then above the age of 10 years and under the age of 14 years, namely, 10 years, in circumstances of aggravation, namely, that at the time she was under his authority. 11. [B]etween 1 June 2006 and 8 September 2006 at [the town] in the State of New South Wales, [the appellant] did have sexual intercourse with [stepdaughter S], a person then above the age of 10 years and under the age of 14 years, namely, 13 years, in circumstances of aggravation, namely, that at the time she was under his authority. 12. [B]etween 1 June 2006 and 8 September 2006 at [the town] in the State of New South Wales, [the appellant] did have sexual intercourse with [stepdaughter S], a person then above the age of 10 years and under the age of 14 years, namely, 13 years, in circumstances of aggravation, namely, that at the time she was under his authority. 13. [B]etween 1 June 2006 and 8 September 2006 at [the town] in the State of New South Wales, [the appellant] did assault [stepdaughter S], and at the time of the assault committed an act of indecency on her in circumstances of aggravation, namely, that she was then under the age of 16 years, namely, 13 years." 12 Two charges concerned cousin N. They were counts 4 and 5 of the indictment. The appellant was found guilty on count 4 and not guilty on count 5. These charges were as follows: "4. [B]etween 1 March 2003 and 29 February 2004 at [the town] in the State of New South Wales, [the appellant] did have sexual intercourse with [cousin N], a person then under the age of 10 years, namely, 8 or 9 years. 5. [B]etween 1 March 2003 and 29 February 2004 at [the town] in the State of New South Wales, [the appellant] did have sexual intercourse with [cousin N], a person then under the age of 10 years, namely, 8 or 9 years." 13 Three charges concerned friend A. They were counts 6, 7 and 8 of the indictment. The appellant was found guilty on all three counts which were as follows: "6. [B]etween 1 June 2005 and 31 January 2006 near [the second town] in the State of New South Wales, [the appellant] did assault [friend A], and at the time of the assault committed an act of indecency on her in circumstances of aggravation, namely, that she was then under the age of 16 years, namely, 11 years. 7. [B]etween 1 June 2005 and 31 January 2006 near [the second town] in the State of New South Wales, [the appellant] did assault [friend A], and at the time of the assault committed an act of indecency on her in circumstances of aggravation, namely, that she was then under the age of 16 years, namely, 12 years. 8. [B]etween 1 June 2005 and 31 January 2006 near [the second town] in the State of New South Wales, [the appellant] did assault [friend A], and at the time of the assault committed an act of indecency on her in circumstances of aggravation, namely, that she was then under the age of 16 years, namely, 12 years." 14 The counts relating to stepdaughter S were said to have occurred in or about the family home. The counts relating to cousin N were said to have occurred at the family home when cousin N visited from time to time. The counts relating to friend A were said to have occurred at the country property of friend A's family when the appellant and his family visited. 15 The learned trial judge in his summing up carefully outlined the evidence in relation to each count. It is unnecessary for present purposes to recite in any detail that evidence, other than to note that the evidence was said to reveal sexual intercourse, oral sex (fellatio) and digital penetration from 2001 to 2006. 16 Central to the trial was the truthfulness and reliability of the three complainants. All were cross-examined on the basis that the allegations were false. 17 The alleged abuse of cousin N was said to have occurred between March 2003 and late February 2004. Cousin N complained to her mother and stepfather. She was interviewed by police. The alleged incidents of oral sex concerning cousin N were said by her to have taken place in the presence of stepdaughter S; and been accompanied by similar acts involving stepdaughter S. The police interviewed stepdaughter S (who was at this time 11 years old). Stepdaughter S denied that the events had taken place. No charges were brought at this point. By this time in 2004, a significant portion of the abuse against stepdaughter S by the appellant was said to have occurred. 18 I interpolate at this point that there was evidence available that cousin N was sexually abused by her own stepfather (to whom, along with her mother, she complained about the appellant). I will refer to cousin N's stepfather as "DP". These matters were not placed before the jury by reason of the Criminal Procedure Act 1986 (NSW), s 293 in circumstances to which I will return. 19 The next charges (counts 6, 7 and 8) against the appellant concerned friend A, who was 12 years old, and were said to have occurred between June 2005 and January 2006. The counts involved alleged conduct of rubbing ice on her breasts, grasping her breasts, putting his hand between her legs, kissing her on the mouth and feeling her breasts. Friend A said that she told her mother who told her not to worry about it and that WY would take care of it. This was denied by friend A's mother. Friend A said that her adult sister took her to the police in July 2006 after she had discussed with her sister what had occurred. 20 Three charges concerning stepdaughter S (counts 11, 12 and 13) related to events that were said to have occurred between 1 June and 8 September 2006. (The jury were discharged on count 11 and found the appellant not guilty on count 13.) It is necessary to deal with the allegations in relation to these counts in a little more detail. Count 11 arose from stepdaughter S's evidence that the appellant had intercourse with her in the car after they had driven stepdaughter S's boyfriend (AP) home. (AP was no relation of DP, cousin N's stepfather.) Her evidence was that the appellant ejaculated inside her vagina. This was told to police on 12 December 2006. 21 Count 12 concerned events that were said to have occurred when AP was at the home of stepdaughter S. The appellant, AP and stepdaughter S were said to have been watching television. The appellant was said to have walked to the bathroom and called to stepdaughter S to follow. Stepdaughter S said that the appellant told her to perform fellatio upon him and if she did not, she would never see AP again. She said she performed oral sex on him, after which she cried, washed herself and returned to the television where AP was. AP gave evidence about an occasion at which he was watching television with the appellant and stepdaughter S when the appellant tapped stepdaughter S on the shoulder, took her in the direction of the bathroom, shut a door and they were gone for half an hour to one hour. He said stepdaughter S returned red-faced, breathing hard and almost crying. These things were told to the police by AP on 12 September 2006 and by stepdaughter S on 15 September 2006 and also later on 12 December 2006. 22 Count 13 concerned an incident that was said to have occurred when WY had left the house. Stepdaughter S said the appellant pulled her pants down but was then prevented from doing anything because WY returned. There was some evidence from an interview with police that stepdaughter S pulled her own pants down. One can readily understand the finding by the jury of not guilty in these circumstances. 23 Two aspects of the facts were of some importance. There was evidence that stepdaughter S went to the local hospital in November 2006 to have a pregnancy test. She told the doctor at the hospital that the appellant had been abusing her up to one month before. Stepdaughter S had, however, been removed from home and contact with the appellant from mid-September. 24 There was evidence available that stepdaughter S and AP had during 2006 carried on a sexual relationship. She was 13; he was 16. WY had found out about this and AP and his parents had gone to the police in September to inform them, anticipating that the police would be told of the relationship by WY. This was the occasion for AP's interview with the police on 12 September. The sexual nature of the relationship was not placed before the jury by reason of the Criminal Procedure Act, s 293, being a matter to which I will return. The applications under ss 130A and 293 of the Criminal Procedure Act 25 This was the second trial of the appellant. The first trial was aborted after counsel for the appellant breached the Criminal Procedure Act, s 293 in his final address. 26 At the previous trial, the trial judge (Sorby DCJ) had rejected applications to adduce evidence and to cross-examine, about stepdaughter S's and cousin N's sexual acts with AP and DP, respectively. 27 The same applications were made to the trial judge. The trial judge had available to him the Criminal Procedure Act, s 130A(2), which is in the following terms: " 130A Pre-trial orders bind trial Judge in sexual offence proceedings … (2) If, on an appeal against a conviction for a prescribed sexual offence, a new trial is ordered, a pre-trial order made by a Judge in relation to the sexual offence proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless: (a) the pre-trial order is inconsistent with an order made on appeal, or (b) in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding." 28 The trial judge, nevertheless, proceeded to hear the applications as fresh applications under the Criminal Procedure Act, s 293, which is in the following terms: "293 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 (as defined in section 61H (1) 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. (9) (Repealed)" Ground 1 and the first application under s 293: concerning AP and stepdaughter S 29 On the seventh day of the trial (which lasted 13 days) counsel for the appellant made an application to cross-examine and lead evidence about the sexual relationship between AP and stepdaughter S in 2006. The application was made on the basis of s 293(4)(a) and (c). Documents, being written submissions, were handed to the judge by defence counsel and the Crown prosecutor. These documents were not before this Court. 30 In his submissions, counsel relied on Bond (20 August 1996, Court of Criminal Appeal, Grove and James JJ and Hamilton AJ). This case concerned an alleged attack (with the intent to have sexual intercourse) by the appellant, a male prisoner held in a low security gaol, on a female prison officer. The attack had been thwarted by the intervention of another male prisoner. The appellant asserted that the other prisoner and the prison officer were having a sexual relationship and that this was the reason for the fabricated evidence against him. This motive was also explained, the appellant said, by the fact that he had allegedly had consensual sex with the prison officer on past occasions. It was held by the Court that any sexual activity between the prison officer and the other prisoner was "connected" with the alleged offence because it provided a motive. This is what defence counsel stressed in the application in the present case – a motive for stepdaughter S to fabricate an allegation against the appellant. 31 The judge looked at the decision of Sorby DCJ on the same application. The judge said: "HIS HONOUR: … so you have to satisfy me Mr Taylor not only that if I were hearing the matter at first instance – I suppose I am, but for the first time, that I would grant your application, but also it's not in the interests of justice for me to be bound by Judge Sorby's ruling." 32 The judge then engaged in a dialogue with counsel about motive. Counsel put the motivation as follows (Transcript 11/06/08: 176 (16) – 177 (9), 185 (24) – 185 (27)): "TAYLOR: She [stepdaughter S] thought she might get back together with him [AP] if I might respectfully remind your Honour of these historical facts. She knew that [AP] wanted to get back at [the appellant]. She was upset about breaking up with [AP]. She was angry with her mother and then the police get to a point, as I have set out on p 2 of J of the written submissions where they lead her into a situation where they suggest to her – well they more than suggest, they say to her that 'another thing you know, that [AP] was worried about, is that he said that once he saw you come out of the bathroom really, really upset.' Now, it's that introduction, this is the motivation for her to lie. HIS HONOUR: What would she get out of lying? TAYLOR: She could help [AP], she knew that [AP] wanted to get back at [the appellant], she knew that her mother – she was angry with her mother, she knew that this would get back at [the appellant] if she made up something about [the appellant] but most importantly HIS HONOUR: But being angry at her mother has nothing to do with her sexual history. TAYLOR: With respect your Honour the question comes down to, why was [AP] in trouble? If that information isn't before the jury, and that is the extent to which I propose to take it – that she had a sexual relationship with [AP], there is evidence to suggest that when [AP] had broken up with this young girl, when [the appellant] was furious with [AP], when [the appellant] said to [AP] 'I've got a mind to go to the police about you', [AP] goes home to… his mother, and they race off to the police station to get in first. And make up allegations to explain this underage sexual behaviour. They go to the police station and they say '[AP] says look I've had sex with [stepdaughter S]. I know I shouldn't have done that but (1) [the appellant] made me do it and by the way [the appellant] has been getting stuck into her as well.' If your Honour will excuse my language. HIS HONOUR: That's all right. TAYLOR: It is in that framework your Honour that it becomes particularly relevant. It is in that framework that [stepdaughter S] decides to make up an allegation with respect to [the appellant]. I don't propose to adduce any evidence going in to that [the appellant] allegedly encouraged these two to have sex. It is simply proposed to go to the situation as to why [AP] was in trouble. Because if that evidence is not in, if it is not in that [AP] was in fact in trouble for the sexual relationship between the two of them, then it could be any matter and it doesn't have any significant impact to motivate her sufficiently to lie. … TAYLOR: … Now what better way to weasel out of charges against him than to make up some sort of massive excuse in relation to [the appellant], assuming from the defence point of view that [the appellant] didn't do any of these things then [AP] has lied to try and get himself out of it. The police have come back to [stepdaughter S]. She's in a distraught state. This is probably why one shouldn't have sex with an underage boyfriend or an overage boyfriend because she was so distraught about that break-up, she wanted to get back together with him, she wanted to do anything at all possible to get back together with him, she wanted to do anything at all possible to get back together with him, the police give her the lead and say, '[AP]'s told us this, what can you tell us about it?' so she goes on to lie, which she acknowledges in the transcript that she made that up. In my respectful submission those circumstances, that string is such that to withhold that sexual relationship and the fact that [AP] was in trouble over that sexual relationship from the jury would ultimately arise to a miscarriage of justice your Honour." 33 Counsel for the appellant also put to the judge the relevance of s 293(4)(c), submitting that feared pregnancy was "pregnancy" for the purposes of s 293(4)(c). The debate that took place centred upon the fact that there was no pregnancy. 34 In his reasons, the trial judge first dealt with s 293(4)(c) and focussed at the outset on the visit to the local hospital. He said: "There is evidence before a jury that in November, 2006 [stepdaughter S] went to the local hospital for a pregnancy test. She was old enough to know how a human being gets pregnant and believed that because she was putting on weight and displayed other symptoms she might have been pregnant. That is a matter which the jury might perceive as being in favour of the Crown. That a young girl would bother going to hospital for a pregnancy test suggests that that young girl believes she might be pregnant, which in turn suggests that the young girl understands that she has had sexual intercourse. It is therefore a probative matter as far as the defence is concerned to have put before the jury that the complainant was having sexual intercourse, before November, 2006, with someone else. This would thus enable the defence to say to the jury that a piece of evidence which might otherwise be thought to favour the Crown does not in fact do so." 35 The judge concluded that s 293(4)(c) did not apply on its face because stepdaughter S was not pregnant. No challenge was made on appeal to this construction of the section. His Honour then dealt with the balancing of distress humiliation and embarrassment required by s 293(4) should he be wrong about the construction. 36 The argument was not apparently also directed to s 293(4)(e); but his Honour's construction of the word "pregnancy" would have applied to that provision also. 37 No complaint was made on appeal about the treatment of the application based as it was on s 293(4)(c). 38 The judge then dealt with the application based as it was on s 293(4)(a). He said: "… It is Mr Taylor's submission that the sexual relationship between [stepdaughter S] and [AP] provided a motive for [stepdaughter S] to make up false allegations against the accused in the following way. There is evidence, not before the jury but before me, that once [stepdaughter S'] mother became aware that [stepdaughter S] had been having sexual intercourse with [AP], she was understandably upset, and [stepdaughter S] was aware that her mother proposed involving the police. She thus knew, that is [stepdaughter S] thus knew, that [AP] was in trouble with the police. It is submitted that that provides [stepdaughter S] with a motivation for making up allegations regarding the accused. Although I have to remember that as far as questions of motive are concerned I have to look at things through the eyes of a young girl and that all people, let alone young people, do not always act logically, but what is it about saying to police 'I've been involved in a sexual relationship with [the appellant], the accused' which would benefit either [stepdaughter S] or [AP] insofar as he also had a sexual relationship with [stepdaughter S]? In other words what is the motive for [stepdaughter S] to tell police, falsely according to the defence, that she had been having a sexual relationship with [the appellant]? What is in it for either her or [AP]? How would it assist [AP] in his troubles with the police if he was not the only person having a relationship with [stepdaughter S]? These matters are difficult to answer. I have to come to a view, however, because I have to assess the probative value of the relevant evidence in deciding whether that outweighs the distress, humiliation or embarrassment that [stepdaughter S] might suffer. It would be obvious from the questions I have asked and the difficulty I have answering, that I regard the probative value as low. In assessing the probative value, I have to also bear in mind that the jury already know that [AP] was in trouble and that [stepdaughter S] was aware of that at the time she made her allegations against the accused. The jury do not know, at this stage, that [AP] was in trouble with the police and certainly do not know that he was in trouble with police because he had had a sexual relationship with [stepdaughter S], but they do know that he was in trouble and that [stepdaughter S] knew it. Assessing the probative value of the evidence, the subject of this application, therefore has to be done by considering what the evidence would incrementally add to what the jury already know. It is the defence case that [stepdaughter S] has made up these allegations, possibly because she knew [AP] was in trouble. That has already been put to the complainant in cross-examination of the complainant which the jury have seen and heard. The defence obviously wish to go further. But I am not satisfied that the probative value that that further cross-examination and further evidence would outweigh the distress, humiliation or embarrassment that [stepdaughter S] might feel. I was able to see [stepdaughter S] as she gave her evidence. Her evidence was recorded by video and audio at the earlier trial and this was played before me. I am satisfied that she found the whole experience of giving evidence distressing, humiliating and embarrassing. I have used that opinion in forming the view as to what further distress, humiliation and embarrassment she would undergo if this application was successful." 39 One can take from this approach an acceptance by the judge of the presence of the elements of s 293(4)(a), even though the probative value of the relevant connection (through motive: cf Bond) was low. 40 On appeal, two criticisms were made of the approach adopted by the judge in relation to the first application. First, the substantive argument of trial counsel as to motive were repeated. There was a reason, it was submitted, for stepdaughter S to deflect AP's and her own moral culpability for their relationship. 41 In this respect, subject to the second criticism, I express my agreement with how the learned trial judge approached the matter. I do not see any real motive for fabrication. Further, I would bow to the trial judge's clear advantage on the question of distress and embarrassment. 42 The second criticism was one that was not put to the trial judge, in terms, although it was put to him that there would be a miscarriage of justice. 43 On appeal the appellant submitted that in weighing the probative value of the evidence, his Honour did not consider in express terms the powerful corroborative nature of the evidence of a 13 year old girl attending, of her own volition, a hospital to have a pregnancy test. The Crown case was that she had been sexually abused by her stepfather over five years. He denied it. Yet she had a fear of pregnancy. If the jury have no knowledge of another possible explanation for the girl's fear of pregnancy, they are left with clear corroboration of this evidence that the appellant had sexual intercourse with stepdaughter S. 44 No application was made under s 293(6). The terms of s 293(6) are relevant to Ground 3. 45 The application was not put to the judge in the way this second criticism of the approach was put on appeal. It was only submitted that there was motive to fabricate. 46 It can be accepted, as indeed the trial judge appeared to accept, that the sexual experience of stepdaughter S with AP took place over a period during the alleged offences in 2006. Thus, s 293(4)(a)(i) appeared to be satisfied. Was there, though, a "connected set of circumstances in which the prescribed sexual offence was committed" for s 293(4)(a)(ii)? Given, the approach to the construction of these words and this concept in the antecedent provision in Morgan (1993) 30 NSWLR 543 at 544 by Gleeson CJ and at 551 by Mahoney JA I would conclude that the sexual experience with AP and the alleged offences in 2006 could be said to be part of a set of circumstances brought together in their connection by stepdaughter S's fear of pregnancy and visit to the hospital. The connection may also be seen to bear directly upon whether the evidence of stepdaughter S was corroborated by her own act of attending the hospital. 47 The application was not put, however, on this independent basis of s 293(4)(a). 48 Whilst I am not prepared to conclude that his Honour erred in failing to deal with the application on the basis of s 293(4)(a) in the manner I have described because it was not put to him in this fashion, I am concerned about the judge's failure to address the prejudice by focussing on, and expressly taking into account, the necessary corroborative fact of the hospital visit. 49 The concern arises in part because that prejudice can be seen to be inherent in the (otherwise validly rejected) argument based on s 293(4)(c). 50 The judge restricted his consideration of the probative weight of the evidence to the motive to lie. That is explicable by how the matter was argued. In the circumstances of how the argument was put to him, notwithstanding my concern as to prejudice, I am not prepared to conclude that the judge's discretion miscarried in relation to the application under s 293(4) concerning stepdaughter S. Ground 2 and the second application: concerning DP and cousin N 51 Cousin N's stepfather, DP, sexually abused her. He had pleaded guilty to a number of offences. The application was to cross-examine cousin N about this. The trial judge succinctly illuminated the circumstances and the argument in his judgment: "[Cousin N] describes at various times in her interviews with police, played to the jury here, aspects of her knowledge of sexual activity which a jury might think are surprising in a young girl. She has at times referred to 'white stuff', clearly in terms indicating that she was aware that she had seen a male person ejaculate. She has referred to the male penis as looking like a stick and described what occurred when another person, [stepdaughter S], performed oral sex on the accused as being that 'she got something in her mouth.' If I were a juror I would look at that evidence and say to myself: How does a young girl know about such things? The answer on the evidence that the jury have heard might be that she was sexually abused by the [appellant]. However, if there is another explanation not involving the [appellant], that is that she was sexually abused by [DP], then a completely different picture emerges. It is entirely possible that [cousin N's] knowledge of sexual matters has come about because of that abuse, that admitted abuse, rather than the assaults allegedly committed by the [appellant], which he has denied. So if this were a case where I were able to exercise a general discretion, I would let the evidence in, I would allow [cousin N] to be cross-examined and I would allow Mr Taylor to cross-examine [DP] about these matters, but s 293 governs what I must do." 52 Both Sorby DCJ and the judge rejected the application because of an inability, at the point of the application, to establish the necessary temporal connection in s 293(4)(a)(i): "at or about the time of the commission of the … offence". The judge in summarising the evidence said: "The evidence before me suggests that [DP's] sexual abuse of [cousin N] commenced only after [cousin N] had left [the town] and moved back to [the third town]. [Cousin N] says it did not occur in [the town]. [DP] said that it did not occur in [the town]. Mr Taylor is able to point to some matters suggesting the contrary, and I will deal with them soon, but they primarily refer to dates rather than locations. I consider it notorious that people are more likely to make a mistake as to when something occurred than they are as to where they occurred." 53 The judge then examined the evidence that would indicate it had occurred before the offence with which the appellant was charged. The judge said: "The allegations on the indictment concern sexual activity between 1 March 2003 and 29 February 2004 at [the town]. Mr Taylor points to a number of matters suggesting, in his submission, that despite [DP] saying that nothing occurred at [the town] in fact it did. [DP] says in an interview with police that it started in the year 2000. There is a suggestion that it first occurred at an [particular] address in [the third town] …, and electricity records show that [cousin N's family] lived there before they moved to [the town], and [DP] acknowledges that there were possibly other offences beyond those to which he pleaded guilty, which ranged from 2005 to 2007. I consider that not too much weight can be placed on the suggestion that matters commenced between [DP] and [cousin N] in [a house identified in particular street] because [cousin N's family] moved from [that street] to [the town] and then back to [the same street] after leaving [the town] following the allegations made by [cousin N] against the [appellant]. It is entirely possible that when [cousin N], a young girl it must be remembered, refers to an address… in [the street in the third town] that she is confused as to which particular address in [that street] was the location where she was first sexually assaulted by [DP]. [DP], it is true, acknowledges that the address was [of the original house], but the same thing could be said of him. It is certainly a matter in Mr Taylor's favour that both [cousin N] and [DP] suggest that matters first came up between them in [the original] address…, but that has to be weighed against the other evidence which is fairly strong in suggesting that [DP] first began molesting [cousin N] only after they left [the town] and moved back to [the third town] in August 2005. It is to be noted that the evidence suggests that [cousin N] says that after [DP] began sexually assaulting her in [the third town] in August 2005. It is to be noted that the evidence suggests that [cousin N] says that after [DP] began sexually assaulting her in [the particular street in the third town] they then moved to [a different street], also in [the third town]. That relocation was a relocation which occurred after leaving [the town] and not before it. There is also evidence that [DP] said to the complainant at or about the time he commenced first sexually abusing her, 'I won't do it to you the way [the appellant] did it.' It logically follows that this did not occur at a time that [DP] did not know that [the appellant] was allegedly sexually abusing [cousin N]. When I look at the evidence I see matters pointing both ways. Some evidence suggest that [DP] was abusing [cousin N] at or about the time she alleges that she was also being abused by [the appellant], but the preponderance of the evidence establishes, quite clearly in my view, that [DP] did not begin abusing [cousin N] until after he and [cousin N] had left [the town], which takes it outside the time period required in subsection 4(a) of 293. I should add one qualification to the way I began this judgment, and that is this. In [cousin N's] first interview with police on 18 March 2004 she refers to matters involving sex which one would expect that a nine year old would not usually know about. But this interview took place before leaving [the town]. As I have found, this interview therefore took place before [DP] had begun sexually assaulting her. Any consideration of the strength from the defence point of view of a suggestion that [cousin N] knew about sexual matters because [DP] had sexually assaulted her suffers from any conclusion that those assaults did not commence until after [cousin N] left [the town], that is after 18 March 2004 at a time where, as I have just said, she made reference to intimate sexual matters that would hope a nine year old would not know about. The application is refused." 54 The complaint of the appellant in relation to the second application was not about the quality of the judge's factual conclusion based on the evidence. Rather, the complaint was that he made a factual finding and did not leave an open factual question to the jury. 55 It was submitted by the appellant that what s 293(4)(a)(i) refers to is "evidence … of the complainant's sexual experience or … sexual activity taken part in by the complainant, at or about the time of the commission of the offence". In this case, it was submitted that there was such evidence, though the judge did not think it adequate upon which to conclude that it occurred "at or about the time" of the commission of the offences. 56 The Crown submitted that the terms of s 293(8) require a finding of fact by the judge in s 293(4)(a)(i). 57 Whilst the submission of the appellant has some resonance in the words of the provision, I do not think that it should be accepted. The task of assessing the question of admissibility is to be decided by the judge in the absence of the jury: s 293(7). Section 293(8) identifies the requirement of reasons for the decision. Whether the evidence that is of the requisite character ("of the complainant's sexual experience or of sexual activity or lack of sexual activity taken part in by the complainant") is admissible is to be decided (by the judge in the absence of the jury) by reference to when it occurred ("at or about the time of the commission of the alleged prescribed sexual offence"). This is to be assessed by the judge and a finding made, as his Honour did. This mechanism maintains clear judicial control over exceptions to the policy of inadmissibility in s 293(2) and (3). The alternative would lead to a wide and effectively uncontrolled exception in s 293(4). 58 There was no error in the approach of the trial judge to the second application. Ground 3: the statements made by the Crown at the trial 59 The Crown Prosecutor said a number of things in his address to the jury of which complaint was made on appeal, but of which no complaint was made at the trial. 60 It is to be recalled that no application was made by the defence under s 293(6) about the evidence of the relationship of stepdaughter S with AP and of cousin N's abuse by her stepfather. That was because, no doubt, the Crown had not disclosed or implied in its case the matters of s 293(6). This can also be seen to explain the focus of the judge on the probative weight of the motive to lie in the first application. 61 In his final address the Crown Prosecutor said (Transcript 18/06/08 p 516 (21) – 516 (24)): "And these, in my respectful submission, are na�ve little girls. Talking to adults, what you might refer to when you're younger as 'big people', police people, DOCS people. These girls have had limited sexual education to that point." There were a number of references, by the Crown Prosecutor to the girls being young and na�ve and accordingly they would not have had the background to be able to create the graphic details of their allegations of the sexual abuse by the appellant. 62 In this respect, it is important to recall that stepdaughter S gave no detail of any abuse by the appellant until a time after, or towards the end of, a sexual relationship with AP and that the evidence that the defence had sought to lead as to cousin N's abuse was said to be before she went to the police and before the trial. 63 There can be no doubt that the youth of each of the complainants was stressed; the consistency of their evidence was stressed; the confusing nature of the cross-examination was stressed; and the unpleasant nature of the recollection was stressed. All this was legitimate. 64 On a number of occasions the Crown referred to the "na�vety" of the complainants. 65 The defence sought to explain the evidence of stepdaughter S of her visit to the hospital to the jury in address as an attempt to bolster her credibility. The Crown responded in address as follows (Transcript 18/06/08 p 527 (23) – 527 (27)): "A 14 year old girl, this is not a well educated girl from the big city, she comes from a remote community, she's got doubts, concerns, I might be pregnant. This is no basis to attack her credibility, probably shows she's having a growing sense of responsibility about herself now." 66 The Crown further addressed on the fear of pregnancy as follows (Transcript 18/06/08 p 527 (13) – 527 (27)): "Now there's extensive cross-examination of [stepdaughter S] by Mr Taylor concerning her concerns that she may be pregnant in late 2006. You'll recall her evidence concerning her encounter with the [appellant] in the car. This could give rise to a justifiable concern as to pregnancy. What does 14 year old [stepdaughter S] tell you, 'I thought I could be pregnant'. What does the defence do, they jump all over this as a fabrication, as a lie, as some motivation to enhance her evidence. She says she's putting on weight, she said she had a sexual encounter with her stepfather which occurred after June 2006, in my submission when the condom didn't work. Wouldn't you be concerned? And it's a matter I would suggest common knowledge that women found out they're pregnant at different stages, at different times. And she's putting on weight. A 14 year old girl, this is not a well educated girl from the big city, she comes from a remote community, she's got doubts, concerns, I might be pregnant. This is no basis to attack her credibility, probably shows she's having a growing sense of responsibility about herself now." 67 The reference to the condom breaking was a mistake later corrected, though without reference to AP. The Crown said in address (Transcript 18/06/08 p 530 (5) – 530 (19)): "CROWN PROSECUTOR: Members of the jury, you have demonstrated that you're paying very, very close attention particularly the gentleman who asked the question just before we went out. There was no mention of a condom. I made a mistake. It is the interview of 12 June 2007 and it is at question 294, 'Q. Okay, that sometime after that [the appellant] and yourself had dropped [AP] off at his house and then at that time [the appellant] has then had sex with you in the back of you've told us a blue car and you've told us that it was in [the town] and that he has had sex with you and he didn't pull out quick enough and that he came inside you and you said that was the last time that [the appellant] touched is, is that correct? A. Yes.' I'm indebted to the person who asked that question." 68 This was put against a background that in fact (and unknown to the jury) there is an entirely plausible reason, apart from the alleged acts of the appellant, that she might be pregnant. The case of the defence of fabrication was denounced by the Crown by the irrefutability of her fear of pregnancy for which only one cause has been dealt with in the evidence and in this part of the address – a damningly incriminating one: sex with the appellant in the car. 69 Regard, of course, must be had to the judge's summing up. No complaint is made in that regard. That is understandable. It was, if I may say so, clear, complete and fair. It made no mention of the pregnancy test as corroboration. 70 After the summing up, the jury asked for, and were given, the transcripts of the Crown and defence addresses. 71 The jury retired for a number of days to consider the evidence. They called for the DVD and audio tapes of the interviews with stepdaughter S. They were addressed by his Honour on a number of issues. The jury approached their task in a manner that led the judge to say on the fifth day of their consideration (Transcript 25/06/08 p 93 (5) – 93 (13)): "Can I just say this members of the jury. You say down the bottom 'Thank you for your patience.' It is not a question of us at all being impatient with you. It is very pleasing to see that you are taking your task seriously and that you are obviously dedicated to following the directions and looking at all the evidence that is presented to you. So it is not a question of us in any way being impatient with you but as I said it is pleasing to see that you are taking the time to go through what is a lot of evidence and a lot of issues so that you can resolve them." 72 On appeal, the Crown submitted that the submissions of the prosecutor about a lack of sexual education (see [62] above) were accurate and "education" should be distinguished from "experience". I reject that. The Crown in the context of this trial clearly put to the jury that the three girls had limited sexual understanding. This was false as to two of them. Depending on what was intended by the Crown from the phrase "to that point", it may have been arguably accurate for cousin N if the abuse by DP was after she spoke to the police in 2004. 73 In the context of the Crown's comments on the visit to the hospital (see [66] and [67] above) and the number of references to the "naivety" of the complainants, the comment about their limited sexual education, was capable of significant damage. The comments on the visit to the hospital, the references to na�vety and the reference as to the limited sexual education taken together were not evanescent matters, likely to fade with the clear illumination of a balanced and fair summing up. This was an apparently conscientious and diligent jury who called for and received the transcript of the Crown's address. 74 The Crown's address pointed to two objectively powerful pieces of corroboration of the evidence of these young girls in relation to what the jury could understand to be heinous acts if they had occurred: the innocence and lack of sexual understanding of young girls, who were yet able to describe sexual events in a way reflective of their happening; and the seeking of information by one as to whether she was pregnant in circumstances of there being evidence of only one sexual partner – the appellant. 75 Defence counsel had not made an application under s 293(6). He could not make such an application at the time of the addresses. Nor did he ask for the jury to be discharged. 76 The judge did not deal with these two pieces of corroboration. He could not without making things worse, on one view. I make no criticism whatsoever of the judge. 77 The address by the Crown proceeded with the advantage of the rulings under s 293. It proceeded on a basis that the complainants lacked sexual experience, being a matter to which s 293(6) is directed. This had the clear capacity to affect the jury's appreciation of the terms of the complaints of stepdaughter S and cousin N as to what they described and how they described it. It also had the capacity to affect the jury's appreciation of one powerful corroborative act by one of the complainants. The possibility of sexual experience to explain these matters was denied to the defence. In these circumstances the conduct of the trial by the Crown was unfair in the same way that similar conduct was so viewed in Munn and Miller [2006] NSWCCA 61 at [29]-[37]. In this regard, I do not consider that because the jury was unable to reach a decision on count 11 (concerning the alleged intercourse in the car) that the prejudice was at all alleviated. 78 In my view, the Crown's address produced an unfair trial and a substantial miscarriage of justice. The Crown, having obtained the rulings under s 293, and in the absence of an application based on s 293(6) had addressed the jury in a way which, if flagged to the defence, would have permitted an application under s 293(6). With the greatest of respect to the Crown Prosecutor, this was productive of significant unfairness to the appellant. 79 These were heinous acts, if committed, against young children. The judge passed heavy, but fair, sentences against which there is no appeal. 80 Section 293 was intended to balance the rights of accused and of complainants. It was not designed or intended, however, to produce an evidentiary matrix for the jury which is false or misleading. In saying that, I draw no conclusions as to the appellant's innocence or guilt. I do say, however, that the address by the Crown put a factual framework to the jury that supported the complainants' evidence in a way that was incomplete and false. If the case had been identified during the Crown case an application under s 293(6) would have been available. 81 The policy lying behind s 293 is clear and does not need to be restated. In cases such as this, where it is said that young girls have been abused by one person but at some relevant point have been abused by, or sexually active with, another person the section has provisions (such as s 293(6)), that are responsive to the entitlement of the accused to a fair trial. In such cases, there is a responsibility on the Crown to understand at all stages, as far as possible, the implications of what is to be put in the Crown case. The abuse against stepdaughter S is said to have occurred when she was 8 to 13 years old and the other girls were similarly young. It is difficult to see how the Crown's case would not, in part, be based on the inference to be drawn from the kinds of descriptions given by at least two of the complainants who, the jury might well have thought, would have had little sexual understanding. It was common ground, however, during the running of the trial that stepdaughter S had had a consensual sexual relationship with AP during the last year of the alleged abuse and before she had made any allegations to police, or indeed before she had made allegations to anyone. It was also common ground that cousin N had been sexually abused by her stepfather. No application was made under s 293(6), but one would have thought that the above matters would not have been lost on the Crown. 82 There was in my view, a substantial miscarriage of justice in the Crown addressing the jury as it did. 83 I would allow ground 3 to be raised and I conclude that it has been made out. Orders 84 The Crown submitted that even if there be a basis to the appeal the convictions in relation to friend A should stand. 85 I was initially attracted to the submission. On balance, however, it should, in my view, be rejected. Credit was central to this trial. Though separate allegations existed the truthfulness of the appellant and the complainants was the heart of the dispute. I do not think that that issue can be dissected. The appellant is entitled, the trial having been joint, to have all the convictions quashed. There should be a new trial on all counts of which he was convicted. 86 I fully appreciate the consequences to the complainants of a new trial. It is deeply regrettable. One must, however, set against that the fact that a man has been convicted of reprehensible crimes fully deserving of the heavy sentences he received, in circumstances where the Crown's address was apt unfairly to cause prejudice to the appellant in a substantial way and in circumstances where it was not, and indeed could not be, rectified by the judge in his otherwise unimpeachable and unimpeached summing up. 87 I would quash the convictions and order a new trial. 88 HOWIE J: I agree with Allsop P. 89 HISLOP J: I agree with Allsop P. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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