Citation: GEH v R [2012] NSWCCA 150
Court: Court of Criminal Appeal, NSW
Date: 18 July 2012
Judges: Basten JA, Harrison J, Beech-Jones J
Background
The appellant was convicted by a jury in March 2011 on two counts of aggravated sexual intercourse with his stepdaughter, who was between 10 and 16 years of age and under his authority at the time. The offences were alleged to have occurred in April and October/November 1992, when the complainant was 15 years old.
Following the second offence, the complainant made a complaint of abuse to a teacher and eventually left the family home in March 1993. She went to stay with a school friend, Amy Hastings, and Amy's father, John Hastings. She remained there until October 1993.
At trial, the appellant sought to cross-examine the complainant about whether she had told Amy Hastings, while staying at the Hastings household in 1993, that she was having a sexual relationship with John Hastings and was pregnant. The trial judge excluded this evidence under s 293 of the Criminal Procedure Act 1986 (NSW). The appellant challenged that exclusion on appeal.
Legal Issues
- Whether the proposed evidence fell within the general exclusion in s 293(3) of the Criminal Procedure Act 1986, which prohibits evidence disclosing or implying sexual activity (or the lack of it) on the part of a complainant.
- Whether the evidence satisfied either or both limbs of the exception in s 293(4)(a), which permits such evidence where it relates to sexual experience or activity occurring "at or about the time of the commission of" the alleged offence and forming part of "a connected set of circumstances in which" that offence was committed.
Decision
All three judges agreed the appeal should be dismissed, finding the trial judge correctly excluded the evidence.
The proposed evidence had two components: first, Amy Hastings' account that the complainant told her in 1993 that she was in a sexual relationship with John Hastings and was pregnant; second, the implied inference that the complainant had not in fact been in such a relationship and had made a false claim. The Court of Criminal Appeal confirmed these components were prima facie inadmissible under s 293(3) because they disclosed or implied that the complainant either had, or had not, taken part in sexual activity. This was not in dispute on appeal.
The central question was whether the s 293(4)(a) exception applied. The Court held it did not. The alleged statement and relationship occurred approximately eight months after the second offence and fifteen months after the first. That gap defeated the temporal requirement that the evidence relate to activity "at or about the time of" the alleged offences. The Court noted that, even reading the temporal and relationship elements together in a manner most favourable to the appellant, the difference between eight and fifteen months was of little significance.
The Court also found that the evidence failed the second cumulative requirement, that it form part of "a connected set of circumstances in which" the alleged offence was committed. The making of an allegedly false statement to a school friend months after the offences was not part of the narrative leading to or surrounding the offences. It did not provide any contextual piece of information bearing on the objective likelihood that the offences had occurred. Its relevance, if any, was confined to the complainant's credit. Beech-Jones J drew a contrast with earlier cases where admitted evidence bore directly on the likelihood of the offence itself having occurred.
Orders Made
- The appeal was dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that s 293(3) of the Criminal Procedure Act 1986 captures evidence that implies either that a complainant did, or did not, take part in sexual activity. The provision applies even where the evidence does not directly assert actual intercourse occurred.
- Both limbs of the s 293(4)(a) exception are cumulative: the evidence must relate to sexual activity "at or about the time of" the alleged offence and must form part of "a connected set of circumstances in which" that offence was committed. Evidence failing either limb cannot be admitted through the exception.
- A gap of eight months between alleged sexual activity and the offences charged was held to defeat the temporal element of s 293(4)(a)(i), and a gap of fifteen months more clearly so.
- Under s 293(4)(a)(ii), evidence of an event is not sufficiently connected to the circumstances of the alleged offence merely because it involves the complainant and a male figure in a position of authority. The event must bear on the objective likelihood that the offence was committed, not merely on the complainant's credit.
- In dismissing the appeal, Beech-Jones J noted that had the evidence been wrongly excluded, he would not have been satisfied to a sufficient degree of guilt to apply the proviso in s 6(1) of the Criminal Appeal Act 1912, given the limitations on appellate courts assessing credibility from the record alone. Harrison J took a different view on this point, but both agreed on the correctness of the exclusion.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 293
- Crimes Act 1900 (NSW), formerly s 409B
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW)
Cases:
- R v Morgan (1993) 30 NSWLR 543
- R v White (1989) 18 NSWLR 332; (1989) 46 A Crim R 251
- HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
- R v Rahme [2004] NSWCCA 233
- BG v R [2010] NSWCCA 301; (2010) 208 A Crim R 34
- Clark v The Queen [2008] NSWCCA 122
- Rolfe v R [2007] NSWCCA 155; (2007) 173 A Crim R 168
- R v M (1993) 67 A Crim R 549
- Taylor v The Queen [2009] NSWCCA 180
- R v Tubou [2001] NSWCCA 243
- R v Villar; R v Zugecic [2004] NSWCCA 302
- Weiss v R [2005] HCA 81; (2005) 224 CLR 300