Jackmain (a pseudonym) v R

1. [1]

   BATHURST CJ: I have had the advantage of reading the judgment of Leeming JA in draft. I agree with the orders proposed by his Honour.

2. [2]

   Leeming JA has set out the background and the proposed evidence of false complaint in [32]-[68] of his judgment in terms which I gratefully adopt.

3. [3]

   I agree with Leeming JA that it was appropriate to deal with the issues raised in the order set out in his Honour’s judgment.

Jurisdiction

1. [4]

   I agree with Leeming JA for the reasons given by him that the Court has no jurisdiction to deal with ground 6 of the grounds of appeal. I also agree that in the absence of an appeal under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) the Court has no jurisdiction to review the conclusion of the trial judge that the false complaint evidence was tendency evidence.

2. [5]

   I must say I also had some doubt as to the jurisdiction of the Court to consider grounds 1-3 as they essentially raise issues of the admissibility of the false complaint evidence. However, as Leeming JA pointed out, to consider the constitutional validity of s 293 of the Criminal Procedure Act 1986 (NSW) it is necessary to first construe the statute: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 at [11]. As Spigelman CJ said in Cheikho v R (2008) 75 NSWLR 323; [2008] NSWCCA 191 at [22]-[28] the constitutional challenge transforms the nature of the application from merely a ruling on evidence, even if the issue to be determined is, so far as the direct parties are concerned, only a stepping stone in an argument concerning the admissibility of evidence.

Section 293 of the Criminal Procedure Act

1. [6]

   Section 293 of the Criminal Procedure Act provides as follows:

2. [7]

   Leeming JA has traced the history of s 293 and pointed out that its progenitor, s 409B of the Crimes Act 1900 (NSW), was in substantially the same form as it is today.

3. [8]

   The ambit of the section was considered by this Court in M v R (1993) 67 A Crim R 549. The appellant appealed against his conviction for a number of sexual offences including against ‘T’. It was sought at the trial to adduce evidence that ‘T’ had complained that male members of her family including her father were having sexual intercourse with her and that this was untrue. It was contended that the evidence did not fall within the prohibition in s 409B because the questions were not directed to her sexual experience but to establish she was a fantasiser. The evidence was rejected at the trial and the trial judge’s conclusion was upheld.

4. [9]

   In his judgment Allen J, with whom Gleeson CJ and Meagher JA agreed, made the following remarks (at 554-555):

5. [10]

   In rejecting the contention that there should be implied into the section a residual discretion to allow the evidence, his Honour referred to the following passages from the Second Reading Speeches of the Premier and the Attorney-General as to the purpose of the section (at 556):

6. [11]

   As Leeming JA has pointed out, the section and particularly the absence of a residual discretion to admit the evidence has been the subject of trenchant criticism over the years since the legislation was passed. However, it does not appear that the interpretation placed on the section in M v R has been the subject of criticism.

7. [12]

   Whilst Leeming JA has expressed the view that M v R was incorrectly decided, he states it would be inappropriate for the Court to overturn a decision of longstanding which has been acted on in a very large number of cases and which was subject to re-enactment in 1999 without substantive amendment, notwithstanding criticism of the section by both the NSW Law Reform Commission and a Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General. I respectfully agree with his Honour that it would be inappropriate to do so even if I was of the view it was incorrectly decided. It seems to me in the present circumstances any change to the law in this area is a matter for the legislature not for the courts.

8. [13]

   I am fortified in this view in that it is by no means clear to me that M v R was incorrectly decided. The structure of s 293, like the construction of any statutory provision, must begin and end with the text. The statutory text must be considered in context including the legislative history and extrinsic material. Understanding context has utility in so far as it assists in finding the meaning of the statutory text. However, historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39].

9. [14]

   In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 the plurality (Kiefel CJ, Nettle and Gordon JJ) stated the principle in the following terms (footnotes omitted):

10. [15]

    I should add that I agree with Leeming JA that the correct construction will not always correspond with the literal or grammatical meaning: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]; see also R v A2 (2019) 93 ALJR 1106; [2019] HCA 35 at [32]-[34]. I also agree with Leeming JA that s 293 presents difficulties of construction. Nonetheless, it is apparent that it was designed to exclude to a significant degree cross-examination concerning a complainant’s sexual activity or experience with only limited exceptions.

11. [16]

    I also agree with Leeming JA that at least in certain respects the section cannot be read literally. First, the generality of the application of the section to proceedings in s 293(1) must be read down to permit evidence being led in the absence of the jury to enable a court to perform its task under s 293(6) and s 293(7) in determining whether particular evidence falls within the prohibition or if any of the exceptions to the prohibition applies.

12. [17]

    Second and more importantly, on its face the complainant would be prevented from leading evidence and being cross-examined on whether the sexual activity the subject of the charge occurred. This is because s 293(3) precludes evidence that the complainant has taken part in any sexual activity. The only relevant exceptions are ss 293(4)(c), 293(4)(d), 293(4)(e) and 293(6) which do not, at least directly, allow evidence in chief or cross-examination on the incident the subject of the charge. Notwithstanding, it is plain in my view that s 293 was not intended to preclude evidence and cross-examination concerning the acts about which a complaint is made.

13. [18]

    In considering the extent of the prohibition it must first be remembered that the section only applies to evidence which is relevant; that is, evidence which could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue (Evidence Act 1995 (NSW) s 55). That must be borne in mind in considering some of the more extreme examples of its suggested operation.

14. [19]

    Second, the chapeau of s 293(3) refers to evidence that “discloses or implies”. The width of these words was considered by this Court (Gleeson CJ, Carruthers J and Badgery-Parker J) in R v White (1989) 18 NSWLR 332 (the case which preceded M v R). The evidence sought to be led in that case was that the complainant told the accused that a former boyfriend broke off their relationship as a result of finding her in bed with another man. In upholding the trial judge’s refusal to admit the evidence, the Court made the following remarks (at 340):

15. [20]

    Similarly for example, a plea of guilty to making a false statement that “Leon” raped her (incident 12) may be taken to imply that there was a lack of sexual activity between the complainant and “Leon” (see Leeming JA at [58] below).

16. [21]

    Both ss 293(3)(a) and 293(3)(b) are cast widely. Use of the disjunctive “or” in each subsection and between them demonstrates the wide range of circumstances to which the subsection can apply. Whilst I do not think that s 293(3)(a) has any application in the present case, s 293(3)(b) can apply to four categories of evidence that discloses or implies:

17. [22]

    In the present case the evidence sought to be led would imply that the complainant had not taken part in sexual activity which she claimed occurred. On its face the evidence falls within s 293(3)(b). It does not seem to me to the point that the purpose of leading the evidence was to establish that the complainant was a person who made false complaints of sexual assault, as the section rather looks to what the evidence is taken to disclose or imply, not the reason it was led.

18. [23]

    The section must of course be considered in context. The context included first, the reason for the introduction of the legislation as set out in the Second Reading Speeches to which I have referred. Those speeches make it clear that the purpose of the statutory prohibition is to prevent embarrassing and humiliating cross-examination about past sexual activities which it was believed was a deterrent in reporting sexual offences.

19. [24]

    Second, s 293 forms part of a suite of legislative provisions designed to protect complainants in their giving of evidence. They include the requirement that proceedings must be held in camera when the complainant gives evidence (Criminal Procedure Act s 291), the prohibition on an unrepresented accused cross-examining the complainant (s 294A), the right of the complainant to give evidence away from the court of trial (s 294B) and the right to a support person (s 294C). These sections demonstrate the concern of the legislature to protect complainants in sexual assault cases to the greatest extent possible. The wide interpretation of s 293 propounded in M v R is consistent with that approach. The decision does not seem to me to be plainly wrong and I doubt that it was wrongly decided.

20. [25]

    I respectfully agree with the reasons of Leeming JA that grounds 3, 4 and 5 of the grounds of appeal have not been made out.

21. [26]

    LEEMING JA: The main points of this interlocutory appeal may be summarised shortly. Section 293 of the Criminal Procedure Act 1986 (NSW) renders evidence of a complainant’s sexual experience and sexual activity inadmissible in proceedings for certain sexual offences. A line of authority holds that s 293 and its predecessor extend to evidence that a complainant has previously fabricated complaints of sexual assault. The applicant, who has pleaded not guilty to three counts of sexual intercourse without consent, challenges that line of authority. Alternatively, he seeks to invoke an exception. In the further alternative, the applicant says that s 293 is invalid, and, finally, if its operation cannot be avoided, he asks for the prosecution to be permanently stayed. He seeks leave to appeal to this Court from the dismissal of all these submissions by the primary judge, who nonetheless described s 293 as an “affront to justice” giving rise to “real and not illusory” unfairness.

22. [27]

    Section 293 is not a well drafted law. It contains textual errors, and it is needlessly complex. It also differs from its counterparts in every other Australian State, because it does not contain a residual discretion, even in an exceptional case such as the present. The absence of discretion leads to one aspect of this appeal: the possibility that the prosecution should be permanently stayed because it is shown that there cannot be a fair trial. The absence of discretion has been criticised by many judges at all levels, including the very highest, and law reform bodies have consistently recommended change. However, the New South Wales Legislature revisited the section in 1999 and implicitly disregarded those criticisms and recommendations.

23. [28]

    I think there is force to the applicant’s submissions that the earlier decisions are overly broad. With great respect to those who have previously considered the construction of s 293 and its predecessors, I think that some forms of evidence that a complainant has fabricated a complaint of sexual assault are not made inadmissible by s 293. However, the re-enactment of s 293 in substantially the same terms, when that construction had been clearly enunciated and in the face of recommendations that it be altered, persuades me that this Court should respect the Legislature’s implicit decision not to alter the substance of the law, even though it is capable of operating unjustly in a case such as this. Accordingly, I have concluded that the primary judge was correct to rule that the evidence was inadmissible.

24. [29]

    It was common ground that his Honour’s discretion to order a permanent stay had miscarried, but based on the material presently available, I would reject the applicant’s submission that the prosecution should be stayed. I would also reject the applicant’s submission that the section is invalid.

25. [30]

    The result is that there should be a grant of leave extending to most of the proposed grounds of appeal, but the appeal should be dismissed.

26. [31]

    The balance of these reasons takes the following form:

Background

1. [32]

   By indictment dated as long ago as 5 December 2017, the applicant stands charged with one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW), and three counts of sexual intercourse without consent contrary to s 61I of the Crimes Act. He has been granted bail.

2. [33]

   There is a single complainant. She is the applicant’s former partner. The effect of s 578A of the Crimes Act is that neither the complainant nor the applicant can be named. There are two children of the relationship, born in 2007 and 2010. The relationship endured for almost a decade, from around 2005-2006 until late 2014, albeit with a two year gap when the complainant’s first child was around nine months old. The s 61I offences are all alleged to have occurred in May and August 2014, in the months preceding the end of their relationship.

3. [34]

   According to the complainant’s statement, the sexual assaults were accompanied by physical violence. She saw a doctor in early June 2014, a few days after the first sexual assault, and had taken a photograph of her injured ribs. She says that the applicant prevented her from getting all the X-rays which the doctor prescribed, and accompanied her on some occasions to medical consultations. The complainant also said she called 000 after the non-consensual sexual intercourse which gave rise to the 4th count on the indictment. The accused was arrested, a temporary AVO was issued, and the complainant saw the same doctor. The complainant spoke to police in September 2014, but said that “At the time I didn’t feel like I could go ahead with Court. I didn’t know where my head was at”. Throughout this period, the complainant confided in a friend, who is proposed to be called in the Crown case.

4. [35]

   The complainant thereafter left the premises where she had been living with the applicant, staying first with her mother and then, in November 2014, moved (with her children) to Queensland. Her principal statement to police is dated 1 April 2016. The most recent evidence from the complainant is of notes of interviews with lawyers acting for the Crown in August 2018, and a supplementary statement made in November 2018.

5. [36]

   The details of the alleged offending do not presently matter and need not be summarised. If the complainant is correct, there has been a series of violent sexual assaults in a highly abusive and controlling relationship which has caused lasting harm to her. The applicant wants to contend that she is lying about the offending with which he has been charged, just as, so he says, she has lied in the past. He maintains that he should be permitted to adduce evidence that the complainant has previously claimed, falsely, that she has been sexually abused, and his pre-trial applications concerning that evidence give rise to the present appeal.

6. [37]

   The applicant seeks leave to appeal from interlocutory judgments of the District Court on 2 August 2019 and 6 September 2019, declining to make certain orders or rulings in advance of the trial pursuant to s 192A of the Evidence Act 1995 (NSW): R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368 and R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511.

7. [38]

   The primary judge expressed the orders or rulings made on 2 August 2019 as follows:

8. [39]

   On 6 September 2019, the primary judge declined to exclude the evidence of the complainant, her friend and the medical practitioner she consulted in June and August 2014 on the basis of ss 135 and/or 137 of the Evidence Act. A challenge to that ruling is also sought to be included in the appeal.

9. [40]

   All of the orders and rulings which are challenged in this appeal derive from what has been called “evidence of false complaint”. The applicant has identified 12 incidents suggesting, so he maintains, that the complainant had previously fabricated complaints of sexual assault. The details are elaborated below. The applicant accepts that s 293 of the Criminal Procedure Act 1986 (NSW) applies to the proceeding, and the various applications reflect different ways in which he seeks to avoid that section rendering the evidence of false complaint inadmissible at trial.

10. [41]

    The evidence of false complaints is both documentary and testimonial. All is directed to the proposition that the complainant has previously made false complaints that she has been sexually assaulted by males.

11. [42]

    The evidence of false complaints was summarised by the applicant as follows:

12. [43]

    The applicant relies on a tendency notice, seeking to establish eight ways in which the complainant is said to have a tendency to act, all of which involve the proposition that she fabricates allegations of sexual assault, and assault, against males, including when speaking to friends, medical professionals and police.

13. [44]

    It will be seen that despite the prolixity of the summary, all save two of the incidents relate to accounts of sexual assault made in 2001 and 2002 (when the complainant was around 15) concerning events of around that time. Incident 10 is still further removed in time. It is based on the complainant’s statement in around late 2002 that she had had sex with a number of boys at primary school, meaning in the late 1990s. Exceptionally, the last incident occurred in 2009, when the complainant was aged 22, during the hiatus in her relationship with the applicant, between the births of the first and second child.

14. [45]

    The applicant’s written submissions repeatedly made reference to eight of these incidents (namely, 1-6, 11 and 12) as involving “proven” fabrications. That characterisation is inaccurate and unhelpful, as will be elaborated when dealing with proposed ground 2. It led to a side-issue, based on a document provided to the primary judge by the Crown which stated “The only proven instance of dishonesty is the 2009 [make false] report and 2001 retraction”, from which the applicant maintained that the Crown should not be permitted to resile.

15. [46]

    It is as well to address the difficulties of labelling incidents “proven” or otherwise at the outset. First, nothing has been “proven”, and if and when that occurs, it will be the function of the tribunal of fact. Secondly, whether or not something is “proven” is irrelevant for present purposes; this appeal is principally about rules of admissibility, which are framed in terms of evidence, not incidents. Thirdly, it is quite plain that the evidence supporting each category is of a different nature and gives rise to different levels of contestability.

16. [47]

    It is much more helpful to identify three categories into which those 12 incidents fall, by reference to the evidence presently available to the applicant which bears upon them.

17. [48]

    The source of much of the proposed evidence is records made by Victorian police in the course of investigating complaints of sexual assault in 2001. For some years after she turned nine the complainant lived in regional Victoria, including in the first years of her relationship with the applicant, although by 2014 the couple were living in a town near the New South Wales and Victorian border.

18. [49]

    The first six incidents derive from a small number of police records from 2001 arising out of the notification of a sexual assault earlier in that year. The 8th incident is a statement in the witness statement of a school friend that a person named Craig had “bashed her up and stuff”. The 10th incident is based on entries in a police notebook that the complainant told police that while she was in primary school aged 8, 9 and 10 “other boys had sex with me at the school”.

19. [50]

    All these eight incidents have in common the fact that the complainant (who is now aged 33) was a teenager when the complaint was made, almost twenty years ago, and more than a decade before the events giving rise to this prosecution. There are varying degrees of specificity, and equivocal evidence of the falsity, of the complaints. There is some evidence that the complainant was known, in 2001 and 2002, to tell lies. The investigating police officer appears to have been told, in May 2001, that:

20. [51]

    The 9th incident was a complaint made in October 2002 that the complainant had been sexually assaulted by her employer on four occasions. That complaint led to statements being obtained from the complainant, her mother and the school friend (who described receiving the “solicitor’s letter” and the complainant tearing it up and throwing it away, which gives rise to the 11th incident – see below). The investigation also resulted in a statement from a male school friend, then aged 16, which stated that he had witnessed the alleged perpetrator molesting the complainant at a market garden. His statement said: “One time we went there when [the perpetrator] was there. [The complainant] told me to go away for 5 minutes and then come back to see if [the perpetrator] had made a move on her.” He said that when he returned, the perpetrator was fondling the complainant on the vaginal area inside her clothes. The employer denied the assault, and the complainant’s mother is recorded as saying that the assaults could not have happened because the complainant was not working for the employer at the time.

21. [52]

    The 7th and 11th incidents involve, although in different ways, letters said to have been created by the complainant. The 7th item derives from a statement made in 2003 by a school friend, stating that the complainant wrote a letter stating that “Daniel” and “Leon” had bashed her up and raped her. That letter seems not to be available. The 4th incident is of the same general nature. It is based on a Victorian police record, dated 28 May 2001, recording that the officer was told:

22. [53]

    However, the first page of a letter the subject of the 11th incident is available. The same school friend received it from the complainant, who then asked for it back, tore it up and threw it away. The school friend recovered the pieces and a reconstructed copy was tendered before the trial judge. The letter is typed on what appears to be the letterhead of a firm of solicitors and is addressed to a barrister. The letter is dated August 2002. It concerns medical and DNA testing concerning proceedings involving a “Mr Saunders”. It purports to relate to civil proceedings between the complainant and Mr Saunders, based on sexual activity between the two, which the complainant had reported to two detectives. It refers to examination results revealing semen belonging to Mr Saunders and of another man to have been found, and an offer to meet “to discuss a deal Mr Saunders would like to make”.

23. [54]

    Parts of the letter are superficially plausible. Other parts are much less so (including the letterhead, which appears to have been created merely using a different typeface on the word processor) and a shift from what purports to be a letter to a barrister into language which is directed to the complainant personally (“it would be best for you to agree on this deal”).

24. [55]

    There was further evidence that the police investigating at the time concluded that the solicitor’s name and firm did not exist, that the doctor named in the letter had not been registered since 1997, and that there was no record of either the police officers or the psychiatrist who were named in the letter. There is nothing to suggest that any part of the letter is other than a moderately elaborate forgery, well designed to deceive a teenage friend.

25. [56]

    An entry in the notebook of an investigating police officer dated 13 January 2003, recording an interview of the complainant in the presence of her parents, states:

26. [57]

    So far as the evidence discloses, no proceedings were commenced in relation to this incident.

27. [58]

    The 12th incident concerned events on 15, 16 and 17 March 2009 when the complainant was living in northern Victoria. She alleged at the time that at around 1am on 15 March 2009, a person known to her as “Leon” forcibly entered her home, chased her around the house, struck her to the head, and vaginally raped her from behind with an unknown object. She contacted a friend who took her to hospital and the hospital notified police. She was treated for internal injuries and underwent a forensic medical examination. A statement was obtained from the complainant, the following day, who said that the reported incident was fabricated and there was no rape or offender. The complainant was charged on 17 March 2009 with making a false report to police and ultimately pleaded guilty to that charge. The records of the Magistrate’s Court of Victoria at Echuca show that after her guilty plea, she was released upon giving an undertaking starting on 28 July 2009 for 12 months and was ordered to pay $6,135.40 compensation, orders which appear to have been supported by the Sentencing Act 1991 (Vic), ss 7(1)(f), 75(2)(b) and 77. The power to release without conviction and to impose a fine are only available if the court is satisfied that the person is guilty of an offence. (Of course, if an accused person maintains a guilty plea, a court may very readily be satisfied of the person’s guilt.)

28. [59]

    The complainant was interviewed by lawyers acting on behalf of the Director of Public Prosecutions on 27 and 28 August 2018, after the prosecution had commenced. The applicant’s solicitor obtained access to the notes taken of those interviews, on the basis (according to the solicitor’s affidavit) that the complainant had waived privilege. (That is probably not correct – the complainant was not the client – but nothing turns on this.)

29. [60]

    Parts of the notes are difficult to interpret. There are repeated references to the complainant not remembering the matters from high school. One part of the notes concerns the letter giving rise to the 11th incident. The notes appear to record the lawyers raising the topic of the letter, the made up law firm, that she had showed the letter to her friend, and responses from the complainant “I don’t know anyone”, “I don’t recall doing that in 2002” and “Don’t remember”. So far as I can see, the complainant was not confronted with the note from January 2003 which suggests that she told the police officer that this was “all made up”. Nor does she seem to have been confronted with the reconstructed letter itself.

30. [61]

    The notes of both conferences also make reference to the 2009 report of rape by “Leon”. The notes of the first conference attribute the following to the Crown and the complainant:

31. [62]

    At the second conference, when the 2009 report was raised, the notes record the following, all attributed to the complainant:

32. [63]

    The Crown is recorded as responding:

33. [64]

    A second statement by the complainant, made on 16 November 2018, records that during her high school years she drank alcohol daily and used prescription drugs. In relation to incident 11, the statement records that the complainant had no recollection of telling her school friend that she had received a letter from a solicitor. In relation to incident 12, the statement records:

34. [65]

    Perhaps I am doing a disservice to what may be gleaned from the notes, but my present view is that, at most, they contain records of the complainant not recalling statements she had made almost two decades earlier and an admission that the 2009 complaint of rape was fabricated. The later statement suggests that the complainant’s response to much of such evidence as is permitted to be adduced will be that she does not recall it in any detail or at all.

35. [66]

    Essentially, the underlying evidentiary basis for the 12 incidents amounts to (a) hearsay statements in police investigations, (b) an elaborately fabricated letter purporting to be from a firm of solicitors concerning a sexual assault, (c) the 2009 incident of complaint of sexual assault, also quite elaborately detailed but rapidly withdrawn after it was made, leading to a guilty plea to the charge of making a false report to police, and (d) one or perhaps more admissions by the complainant in notes of conversations with the police and the Director that she had made up the 11th and 12th incidents. It is possible that the applicant will also seek to adduce testimonial evidence from those involved in the events of 2001, 2002 and 2009. All this comprises the “evidence of false complaint”.

36. [67]

    Incidents 1-10 are of less probative value than incidents 11 and 12. The former involve hearsay evidence almost two decades old. Incident 12 is relatively recent, although still some five years before the sexual offences on the indictment. Both incidents 11 and 12 involve clear evidence that the complainant has maintained something which is not true. The reconstructed letter identifies a series of lawyers, doctors and police officers who did not exist. Either the complainant’s original complaint to police in 2009 of being raped by “Leon”, or her admission of guilt to the offence of making a false statement, was false.

37. [68]

    Subject to the operation of s 293 and the rulings which give rise to this appeal, it would be open to the applicant to cross-examine on the basis that the complainant had fabricated all 12 of the incidents, and it might also be possible, depending on the course of the trial, to tender some of the documentary material. The Crown accepted that s 293 did not stand in the way of cross-examining the complainant on aspects of “incident 12” which did not disclose the allegations of sexual assault – for example, the complainant could be cross-examined on the fact that she had pleaded guilty to making a false statement to police about a violent assault by a man.

Overview of the appeal

1. [69]

   The applicant’s appeal contained six proposed grounds.

   1. (1)

      The first is that the evidence of false complaint is not rendered inadmissible by s 293(2) or (3). The applicant acknowledges that this is contrary to the weight of authority, in deference to which this Court was constituted by five judges.

   2. (2)

      The second is confined to the items of evidence which are “proven”, especially incident 12. It asserts that s 293 does not apply to “proven” incidents of fabrication.

   3. (3)

      The third turns on the exception in s 293(4)(a) of a “connected series of events” occurring “at or about the same time” as the offence. This ground maintains that the complainant has a sustained history of making false complaints over a period of many years, which fall within the exception.

   4. (4)

      The fourth is that the primary judge erred in declining to order a permanent stay. It is common ground that the primary judge applied the wrong test, and so the discretion falls to be re-exercised. However, the Crown contends that the primary judge erred, as an element in his Honour’s reasoning, in finding that the evidence of complaint was tendency evidence and admissible, while the applicant maintains that this is not open to the Crown.

   5. (5)

      The fifth is that the primary judge erred in failing to find that s 293 was invalid, pursuant to the implied limitation upon State legislative power identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 and subsequent cases.

   6. (6)

      The sixth ground challenges the primary judge’s failure in the second judgment to rule inadmissible the entirety of the evidence of the complainant and her friend and the doctor she saw in 2014 (essentially, the entirety of the Crown case).

2. [70]

   The parties approached the issues arising in this appeal in quite different sequences. I shall follow what seems to me to be the most logical and efficient course.

   1. (1)

      First, this Court’s “first duty” is to determine whether it has jurisdiction: Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [9]. Aspects of both parties’ submissions are outside this Court’s jurisdiction.

   2. (2)

      Secondly, before turning to the constitutional validity of a statute, one must start with its construction, as the joint judgment in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 said at [11].

   3. (3)

      Thirdly, the re-exercise of discretion to grant or refuse a permanent stay is an exceptional remedy, and dependent upon the effect of the section as applied to the facts of the case. This should be the last matter considered.

Jurisdiction

1. [71]

   The starting point is with this Court’s statutory jurisdiction under s 5F(2), (3) and (3A) of the Criminal Appeal Act 1912 (NSW). Those subsections relevantly provide:

2. [72]

   Subsection (2) gives the Director of Public Prosecutions a right of appeal, while subsection (3) gives any other party a right of appeal subject to leave, from an “interlocutory judgment or order” to which the section applies. The section applies, relevantly, to proceedings for the prosecution of offenders on indictment in the District Court (s 5F(1)), and that includes a hearing in which a pre-trial ruling on evidence or a permanent stay is sought.

3. [73]

   But “interlocutory judgment or order” in s 5F(3) has been narrowly construed. (It may be contrasted with the same terms in s 5F(2), where it does include an evidentiary ruling as a necessary consequence of being read with s 5F(3A) subject to a separate restriction upon the effect of the ruling on the prosecutor’s case.)

4. [74]

   Proposed ground 6 of the appeal challenged the ruling made on 6 September 2019. The appellant conceded that the pre-trial ruling that certain of the Crown evidence should be rejected pursuant to ss 135 and 137 of the Evidence Act was not within the scope of s 5F(3). That concession was properly made. “It was established soon after the commencement of s 5F that the provision did not apply to rulings on the admissibility of evidence as these did not fall within the expression ‘interlocutory judgment or order’ in s 5F(3)”: Liristis v Director of Public Prosecutions (NSW) [2018] NSWCCA 196 at [15]. The earlier cases include R v Steffan (1993) 30 NSWLR 633 at 636-639; 67 A Crim R 506 which comprehensively reviews the decisions since s 5F was inserted in 1987. That reflects the restraint stated in DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [55]:

5. [75]

   Nonetheless, the applicant submitted that in the event that this Court were re-exercising the power to grant a permanent stay (it being common ground that the decision of the primary judge had, in this respect, miscarried), the Court could review that ruling. I do not agree. Two obstacles prevent acceptance of the applicant’s submission.

6. [76]

   The first is that I do not see how this Court can assume authority to review a decision outside its limited jurisdiction if and when it re-exercises the power to grant a stay. If the ruling could not itself be the subject of an appeal, how can it be set aside when allowing an appeal from a different judgment or order which is within this Court’s appellate jurisdiction?

7. [77]

   The second is that this Court’s power to make orders when allowing an interlocutory appeal is conferred by s 5F(5):

8. [78]

   Section 5F(5)(b) makes it plain that the power is to give some other judgment or order “instead” of the judgment or order from which the appeal has been brought. It does not extend to giving an order instead of a ruling from which the appeal has not been brought and indeed could not have been brought.

9. [79]

   Thus, contrary to the applicant’s submission, the re-exercise of discretion to order a stay takes place in light of that pre-trial ruling. It does not provide an avenue to set aside or disregard that ruling. That does not deny that the pre-trial ruling itself may be revisited by the primary judge, as Bathurst CJ noted in R v RD [2016] NSWCCA 84 at [66]. Indeed, that is confirmatory of such rulings being outside this court’s appellate jurisdiction, a point noted by RA Hulme J in Turnbull v R [2016] NSWCCA 109 at [34].

10. [80]

    In the absence of jurisdiction, I propose that leave not be granted to proposed ground 6.

11. [81]

    Conversely, the Director invited this Court to review the ruling of the primary judge that the “false complaint evidence” was tendency evidence and therefore admissible. The Director filed no process to do so, saying that it had not been possible to file a notice of appeal or notice of cross-appeal, because the evidence had been ruled inadmissible.

12. [82]

    The District Court’s reasons for judgment are not themselves a judgment from which an appeal lies: The Queen v Ireland (1970) 126 CLR 321 at 330; [1970] HCA 1; Poidevin v Semaan (2013) 85 NSWLR 758; [2013] NSWCA 334 at [32]. Appeals by the Director lie from an “interlocutory judgment or order”. While s 5F(3A) necessarily expands those words to include evidentiary rulings, s 5F(3A) is not to be understood as purporting to authorise an appeal from reasons.

13. [83]

    Contrary to the Director’s submissions, a separate ruling was made. It was reflected not merely in [163] in the reasons for judgment but also in the record of the Court’s orders reproduced above. It was order 2. The ruling was, in a sense, contingent, because of the further ruling that the evidence was inadmissible pursuant to s 293. But that does not mean that there was no “ruling” sufficient to engage s 5F(3A).

14. [84]

    It is not uncommon for a challenge to be made on appeal to a contingent ruling or order. A plaintiff might lose a personal injury claim on liability, and yet will commonly obtain a notional determination of damages. The usual practice is to make contingent findings to assist with the appeal process and to avoid the need for a new trial: see the authorities in Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 at [3]-[5]. If then the plaintiff appeals from the judgment, it is incumbent upon the defendant to file a cross-appeal if it wishes to challenge the notional determination of damages, against the possibility that the appeal succeeds. A successful defendant should not stand by and bring an appeal from the notional assessment of damages only after the plaintiff’s appeal on liability has succeeded.

15. [85]

    All appeals are creatures of statute. The Director, unlike the applicant, had a qualified right to appeal from an evidentiary ruling. Unlike the applicant, the Director’s appeal is not subject to the grant of leave. However, it is subject to a different precondition. It was necessary for the Director to demonstrate that the ruling “eliminates or substantially weakens the prosecution’s case”. Once again, this reflects a restriction on the scope for appellate intervention on decisions of practice and procedure.

16. [86]

    The Director made no attempt to comply with s 5F(3A), for the good reason that, it might be expected, that burden could not be satisfied. The Crown’s case based on the evidence of the complainant, her friend, and the doctor, remain available notwithstanding the tendency ruling concerning the false complaint evidence. I do not agree that this Court can accept the Director’s invitation to side-step the restrictions on appellate review by challenging an anterior decision binding the parties.

17. [87]

    Accordingly, I reject the Director’s submissions that this Court should revisit the ruling on tendency evidence. That is not to say that I necessarily agree with the ruling. Rather it is to respect the limits of this Court’s narrow appellate jurisdiction in respect of interlocutory aspects of a criminal trial. It is to be borne firmly in mind that there is an important public policy, reflected in the restrictive approach to s 5F, against the fragmentation of the criminal process: see Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23]-[24]. The fact that this criminal trial, relating to conduct alleged to have occurred in 2014, has already been long delayed, well illustrates the wisdom underlying that public policy.

Criminal Procedure Act, s 293

1. [88]

   Section 293 has provided for some years:

2. [89]

   The section is difficult to understand. In part that is because of its length. In part it is because it contains obvious minor textual errors. In part it is because of the compressed style of its drafting. It is as well at the outset to provide an overview of the operation of the section, and at the same time to address its superficial problems, so as to be able then to focus upon the substantive difficulties it presents.

3. [90]

   Subsection 293(1) is an application provision. The applicant stands charged with three counts of a “prescribed sexual offence”, and plainly s 293 applies at his trial. But the subsection applies to “proceedings in respect of” a prescribed sexual offence. It would be natural to proceed on the basis that the application for a pre-trial ruling, and this interlocutory appeal which has been brought from it, are also “proceedings in respect of” a prescribed sexual offence.

4. [91]

   Subsections 293(2) and (3) make certain evidence “inadmissible”. That does not bear its literal unqualified meaning. It must mean inadmissible in the prosecution before the tribunal of fact. So much is clear from s 293(7), which leaves questions as to the operation of the exclusionary rules to the “court in the absence of the jury” and by necessary implication means that evidence which is contended to be inadmissible by reason of either or both rules will be tendered on the voir dire in the jury’s absence.

5. [92]

   In short, subsection (1) makes the section apply to proceedings on a voir dire and an interlocutory appeal, but it is clear that the “inadmissibility” to which subsections (2) and (3) speak does not extend to proceedings seeking to determine whether or not those rules apply, as was noted in Decision restricted v R [2020] NSWCCA 115 at [54]-[58] and [94]. I see no reason to conclude that subsection (2) or (3) would prevent the tender of evidence on an application for a permanent stay, or a constitutional challenge to the validity of the subsections, or even a collateral challenge in separate civil proceedings. No party suggested to the contrary. The prohibition although expressed in unqualified terms applies only to the trial and committal. This, incidentally, is the first of a number of instances of broad language in s 293 necessarily being construed so as to bear a slightly narrower meaning.

6. [93]

   In proceedings to which they apply, the two rules in subsections (2) and (3) are mandatory, in the sense that there is no discretionary exception. As will be seen below, this makes the New South Wales provision unique. The first makes inadmissible evidence “relating to the sexual reputation of the complainant”. The second makes evidence which discloses or implies certain things about the complainant's sexual experience or sexual activities inadmissible, unless it falls within any of the paragraphs in subsection (4).

7. [94]

   Subsection 293(4) identifies six paragraphs which, if any is satisfied, will disapply the rule in subsection (3) and permit the evidence to be admitted, provided that the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. In the present case, only the first exception is relevant.

8. [95]

   Subsections (5) and (6) are directed to testimonial evidence, and in particular upon the limits of cross-examination. They must be read together, such that the prohibition in subsection (5) is subject to the exception in subsection (6). That must be so, because the premise of subsection (6) is that the court is satisfied of unfair prejudice brought about by the inability to cross-examine in circumstances where matters of sexual experience or activity have been disclosed or implied in the Crown case. Another way of making this point is that if subsection (5) were not to be read as qualified by subsection (6), then subsection (6) would never be engaged. It follows that the prima facie unqualified prohibition upon questions in subsection (5) is in fact qualified by the power granted to a court to permit questioning in subsection (6).

9. [96]

   The New South Wales progenitor of s 293 was s 409B of the Crimes Act 1900 (NSW), introduced in 1981 by Schedule 1 of the Crimes (Sexual Assault) Amendment Act 1981 (NSW) in substantially the same form as it stands today.

10. [97]

    Section 409B(3) as enacted in 1981 is reproduced below:

11. [98]

    It will be seen that later, in 1999, the very long subsection (3) was divided into what has become s 293(3) and (4). It is at this stage that certain minor textual errors became incorporated in the provision.

12. [99]

    New South Wales was the last Australian State to enact legislation of this nature. Broadly similar legislation was enacted in all other States in 1976 and 1978:

    1. (1)

       the Evidence Act Amendment Act 1976 (SA) inserted s 34i into the Evidence Act 1929 (SA);

    2. (2)

       the Evidence Act (No 3) 1976 (Tas) inserted s 102A into the Evidence Act 1910 (Tas);

    3. (3)

       the Evidence Act Amendment Act 1976 (WA) inserted ss 36A-36C into the Evidence Act 1906 (WA);

    4. (4)

       the Rape Offences (Proceedings) Act 1976 (Vic) inserted s 37A into the Evidence Act 1958 (Vic);

    5. (5)

       s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld) enacted five “special rules” prohibiting evidence of the complainant’s general reputation “with respect to chastity” and regulating evidence relating to the complainant’s sexual activities.

13. [100]

    Section 409B of the Crimes Act, and the legislation in other States, had in turn been influenced by legislative changes in the United States throughout the 1970s, informed by a recognition that evidence of a complainant’s prior sexual experiences was often used to humiliate and discredit the complainant.

14. [101]

    Although s 409B was a law relating to evidence, New South Wales adopted the course (differently from every other State) of enacting s 409B within its Crimes Act rather than in statutes governing evidence and procedure. This was altered in 1999. However, there was another way in which the New South Wales provision differed from those in every other State. New South Wales was the only Australian jurisdiction to adopt a mandatory, rather than discretionary, approach to determining the admissibility of sexual experience or sexual activity, rendering evidence of sexual history inadmissible unless it fell into one of the specified exceptions, “Except for New South Wales, all jurisdictions adopt, in various forms, a discretionary approach to determining the admissibility of sexual experience evidence. That is, the trial judge has a discretion to admit material relating to the complainant’s sexual experience if it is considered sufficiently relevant to the individual case”: New South Wales Law Reform Commission’s Report 87: Review of Section 409B of the Crimes Act 1900 (NSW) (1998) at [5.2]. The non-discretionary approach in New South Wales reflected an approach which had been followed in Michigan, the first state to enact so-called “rape-shield” laws, and adopted in approximately half of the states in the United States of America, and, for a period, by Canada: see S Caringella, Addressing Rape Reform in Law and Practice (Columbia University Press, 2009), pp 12-16. The legislation of every other Australian State preserved a judicial discretion, as did the laws in England and New Zealand. As will be seen, the different constitutional circumstances in North America meant that in practice there was a discretion even in those jurisdictions such as Michigan where there was none on the face of the law.

15. [102]

    The rationale for adopting a mandatory rather than discretionary approach was explained when the legislation was introduced in 1981. The Attorney General said, when explaining why the bill did not contain “a mere judicial discretion to disallow any irrelevant question”, that:

16. [103]

    In 1991, the Supreme Court of Canada ruled that s 276 of the Criminal Code (which rendered evidence concerning the sexual activity of the complainant inadmissible, subject to limited exceptions, and resembled s 293(3)) was unconstitutional, while s 277 (which rendered evidence concerning sexual reputation inadmissible for the purpose of challenging or supporting the credibility of the complainant, and resembled s 293(2)) was valid: Seaboyer v The Queen; Gayme v The Queen [1991] 2 SCR 577. The Canadian Legislature intervened in 1992, and s 276 now confers a discretion upon courts to admit evidence which otherwise would be inadmissible.

17. [104]

    McLachlin J said that:

18. [105]

    (The reference to Australia is a reference to the legislation of every Australian State except New South Wales.) However, although there was an absence of legislated discretion in those jurisdictions following the “Michigan model”, that did not prevent the admission of evidence. Her Ladyship said:

19. [106]

    McLachlin J said of s 276:

20. [107]

    The first appellate decision in New South Wales on this issue was delivered two years later. There is nothing to suggest that the decision of the Supreme Court of Canada was drawn to the attention of this Court. (To be fair, neither CanLII nor AustLII had been founded in 1991 when Seaboyer was delivered or in 1993 when M v R was determined, and it is easy to under-appreciate the difficulties in keeping up with overseas decisions thirty years ago.)

21. [108]

    M v R (1993) 67 A Crim R 549 concerned the cross-examination of a complainant, and other witnesses, on the topic of whether a girl aged about 10 had had sexual relations with members of her family. Allen J, with whom Gleeson CJ and Meagher JA agreed, said at 554:

22. [109]

    Thus, s 409B(3) was held to apply to evidence which would disclose that particular sexual activity which had been the subject of a claim by a witness did not exist.

23. [110]

    Allen J went on to emphasise that the provision was:

24. [111]

    Allen J had proceeded directly to s 409B, and added that he was “not unaware that the appellant faced formidable difficulties under the ordinary rules of evidence in respect of the evidence sought to be elicited in chief” but that “as the argument was concentrated on s 409B”, it had not been necessary to consider those difficulties: at 559.

25. [112]

    Allen J was implicitly critical of the absence of any discretion in the legislation:

26. [113]

    The reasoning in M v R was endorsed in R v Bernthaler (NSWCCA, unreported, 17 December 1993) by Badgery-Parker J, Ireland J agreeing, Kirby P dissenting as to the result, but not as to the effect of s 409B. All judges recommended a review of the section, because of the potential for “serious injustice”, suggesting a residual discretion (pp 8-9 of the President’s reasons, p 6 of Badgery-Parker J’s reasons). Once again, their Honours reiterated that that was a matter for Parliament.

27. [114]

    The issue arose again, somewhat indirectly, in R v PJE (unreported, NSWCCA, 9 October 1995). That was a Crown appeal from a permanent stay ordered by the District Court of a prosecution of charges of indecent assault upon a stepdaughter at times when she was aged between 6 and 13. The basis of the stay was that s 409B would exclude evidence of what the respondent told police when he was first confronted with the allegations, his evidence of “the method in which the mother allegedly extracted the complaint from the child” and an alleged boast of the mother that:

28. [115]

    It seems that it was accepted that this evidence, to the effect that the stepdaughter’s and mother’s evidence was fabricated, was caught by s 409B, consistently with what had been held in M v R and Bernthaler. The stay appears to have been granted because the trial judge was of the view that s 409B was unfair. This Court set aside the stay, and it will be necessary to return to the reasons when dealing with ground 5. Applications for special leave to appeal to the High Court were brought, and refused after a short hearing in 1996 in a majority decision Grills v The Queen; PJE v The Queen [1996] HCATrans 351 and 353. Brennan CJ said:

29. [116]

    It will be seen that s 409B had been criticised by Allen J, with whom Gleeson CJ and Meagher JA had agreed, by Kirby P, by Badgery-Parker J with whom Ireland J had agreed, and jointly by Brennan CJ, McHugh J and Kirby J. Similarly drafted provisions had been construed narrowly, or even struck down as invalid, in North America, and in the leading decision of the Canadian Supreme Court, McLachlin J (as the Chief Justice then was) had said of comparable legislation that it “offends the principles of fundamental justice underlying a fair criminal trial”.

30. [117]

    As a result of that unusually strong judicial criticism, the New South Wales Law Reform Commission reviewed the section, pursuant to a reference dated 2 December 1996. Its report was published in November 1998: Report 87: Review of section 409B of the Crimes Act 1900 (NSW). One of the key concerns noted in Report 87 was that s 409B may operate to deny the accused a fair trial (para 4.7).

31. [118]

    Paragraphs 4.16 - 4.20 of Report 87 identified as “problem cases” those cases where evidence is sought to be adduced that a child has made prior false allegations of sexual assault. The report also noted the fate of the Michigan model in Michigan itself (and some other United States jurisdictions in which it had been enacted). Because of constitutional considerations the Supreme Court of Michigan in People v Hackett 421 Mich 328; 365 NW 2d 120 (1984) had held that despite the general exclusionary rule in place in that State:

32. [119]

    Thus while the New South Wales Parliament departed from all other States in not enacting a discretion, in close adherence to the “Michigan model”, the Michigan legislation in practice is discretionary, and permits evidence “that the complainant has made false accusations of rape in the past”, because of the constitutional protections of the Sixth Amendment.

33. [120]

    After dealing with Canada, New Zealand, England and Wales, Ireland and Scotland, the Commission expressed its conclusion at para 6.1:

34. [121]

    Report 87 recommended reformulating s 409B so that it contained a highly restricted discretion for determining the admissibility of evidence of a complainant’s sexual experience or activity [6.100]. That recommendation has not been implemented.

35. [122]

    Similar recommendations to those made in Report 87 were made the subsequent year by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General: Model Criminal Code – Chapter 5: Sexual Offences Against the Person (1999), 243:

36. [123]

    The Crimes Legislation Amendment (Sentencing) Bill 1999 passed through the Parliament as the third of a trio of cognate bills. The first and second were the Crimes (Sentencing Procedure) Bill and the Crimes (Administration of Sentences) Bill. All made substantial changes, in part reflecting recommendations of the NSW Law Reform Commission. All three passed on the last day of the 1999 parliamentary year, before a vacation adjournment to March 2000. Very little time was devoted to the third, and what there was focussed on the abolition of the distinction between felonies and misdemeanours. Of a number of sections dealing with procedure (including s 409B) which were transferred from the Crimes Act into the Criminal Procedure Act, the Minister said merely that:

37. [124]

    The bills passed through the Legislative Council on 30 November 1999, with extensive debate on the first, only limited debate on the third and none on the clause which became s 105.

38. [125]

    Section 105(3) and (4) of the Criminal Procedure Act 1986, as amended with effect from 1 January 2000 following the commencement of the Crimes Legislation Amendment (Sentencing) Act 1999, divided former s 409B(3) into two subsections. The first four subsections relevantly provided:

39. [126]

    A minor error was introduced when what had been the first half of former s 409B(3) became the two paragraphs (a) and (b) of s 105(3). The first begins with the words “that the complainant”, and continues “has or may have”, while the second begins with “has or may have”. It is clear that the words “that the complainant” are intended to qualify both paragraphs. It would have been preferable either that the words “that the complainant” precede paragraph (a), immediately following “discloses or implies”, or else that the words “that the complainant” be repeated in paragraph (b). That would accord with the drafting convention that when separate paragraphs are contained as alternatives in the same section, each can be read as complete if it stood alone. I mention this not because it gives rise to any difficulty as a matter of construction, but because it – coupled with other matters to which I shall refer below – suggests that the close attention to detail by parliamentary counsel to which one is accustomed may not have been present in the case of the redrafting of s 409B.

40. [127]

    The minor textual difficulty in the two limbs of former s 105(3)(a) and (b) is preserved in s 293 to this day.

41. [128]

    Other minor textual difficulties in s 293 were likewise introduced when s 409B was recast as s 105. Read literally, s 293(5) is an unqualified prohibition upon questions that invite answers which are inadmissible under subsections (2) or (3), and a qualified prohibition where subsection (4) applies. But disputes may arise on the application of subsection (3). (The distinction is highlighted in this very appeal, in which grounds 1 and 2 contend that neither subsections (2) nor (3) applies, while ground 3 assumes that subsection (3) applies but that the evidence falls within subsection (4).) It seems passing strange that subsection (5)(b) makes special provision for what is to occur when subsection (4) is in issue, but that no provision is made when subsection (3) is in issue. The answer is that the qualifying words “unless the court has previously decided that the evidence would, if given, be admissible” should be read as applying not merely to paragraph (b) but also to paragraph (a).

42. [129]

    A similar difficulty applies to subsections 293(5), (7) and (8). It will be seen that subsections (5) and (8) refer to what occurs when evidence is admissible under subsection (4). However, the command in subsection (7) that questions of admissibility take place in the absence of the jury does not mention subsection (4) at all. Once again, the reason for this derives from the recasting of the section in 1999. It is clear that even if the only issue is the applicability of subsection (4) (say, because the only dispute is as to whether the probative value outweighs the distress, humiliation or embarrassment), nonetheless, subsection (7) applies. It is not clear whether the command in subsection (8) is qualified only to cases where subsection (4) is held to disapply subsection (3), or extends to cases when subsection (3) does not apply, but there would seem to be no sensible reason for such a selective construction of subsection (8), and when the position is compared with the previous form the section took, it may well be that this too is merely an unintended defect in the drafting.

43. [130]

    The section was subsequently renumbered as s 293 with effect from July 2003, by the Criminal Procedure Amendment (Justices and Local Court) Act 2001 (NSW), Sch 1 item 123. There have been three minor changes subsequently. “Sexual offence proceedings” in subsection (1) was replaced by “Proceedings in respect of a prescribed sexual offence” in 2005 (by the Criminal Procedure Further Amendment (Evidence) Act 2005 (Sch 1 item 10)). By the same statute subsection (9), containing definitions, was omitted. In 2018, a reference to s 61H(1) in s 293(4)(c)(i) was replaced by a reference to Division 10 of Part 3 (by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)).

44. [131]

    Thus, since the recommendations for reform by courts and law reform agencies summarised above, the section has been (a) recast introducing textual errors and placed in the Criminal Procedure Act, (b) renumbered, and (c) subject to three consequential amendments. The recommendations for reform have not been addressed. So far as I can see, they were not explicitly rejected in the legislative process.

45. [132]

    Until the present appeal, the construction of what is now s 293 seems not to have been challenged after M v R. More recent decisions have proceeded on the basis that s 293 applied to evidence of fabricated sexual activity. Thus in GEH v R [2012] NSWCCA 150; 228 A Crim R 32, Basten JA said at [9] that “it was rightly conceded on appeal that this evidence fell within the exclusion in s 293(3)”, while in Adams v R [2018] NSWCCA 303 at [157], Campbell J recorded a concession by the applicant that evidence of false complaint was caught by s 293(3), and added that “[t]hat proposition, established by M v R, is too firmly entrenched to be called into question before a three-judge bench of this Court”.

46. [133]

    Although no challenge was made to M v R in these later cases, I should add that there is no suggestion of any judicial disquiet with the result. Thus for example, Basten JA explained in GEH, in respect of evidence that the complainant had admitted saying to a witness that she had been having an affair with the witness’ father and was pregnant, at [9] that:

47. [134]

    Other examples may be seen in the reasons of Beech-Jones J in GEH at [78]-[79] and N Adams J in Adams [2018] NSWCCA 303 at [197].

48. [135]

    In 2010, a joint report by the Australian Law Reform Commission (ALRC Report 114) and New South Wales Law Reform Commission (NSWLRC Report 128) titled Family Violence – A National Legal Response, was published. The report stated at [27.54]:

Construction of s 293(3) and (4)

1. [136]

   Putting to one side the application provision in subsection (1), the exceptions in subsection (4) which are presently irrelevant, and the balance of the section which deals with cross-examination and resolving disputes, the remaining parts of s 293, corrected (in underline) for the obvious error, are as follows:

2. [137]

   The qualified rule of inadmissibility in subsection (3) is much broader than the unqualified rule in subsection (2). This comes about in part from the grammatical structure of the sentence, and in particular the disjunctions “discloses or implies”, “has or may have had”, “sexual experience or a lack of sexual experience” and “taken part in or not taken part in”.

3. [138]

   Disjunctive statutory language may be construed in two different ways.

4. [139]

   One possibility is that the two words separated by “or” amount to a single composite concept. The exception in s 41 of the Copyright Act 1968 (Cth) for fair dealings “for the purpose of criticism or review” is an example. Another is the expression “repair or maintenance” in ACT Construction Ltd v Customs and Excise Commissioners [1981] 1 WLR 1542 at 1546 where Lord Roskill said that “[t]he two words are not used in antithesis to one another. The phrase is a single composite phrase ‘repair or maintenance’ and in many cases there may well be an overlap between them”.

5. [140]

   On the other hand, the disjunctive “or” may be used to connect two different concepts, and it may be sufficient that either of the two is satisfied. That was the meaning given to “lawfully used or occupied” in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 at [14].

6. [141]

   Returning to s 293(3), the latter three of the disjunctive pairs connect a concept and its negation (or something close to its negation). “Taken part or not taken part in” is the clearest case, but the words “sexual experience or a lack of sexual experience” likewise join two opposites. Further, the words “has or may have had” address the alternatives of certainty and falling short of certainty. It is not necessary for present purposes to consider the full force of “disclose or imply”. (Those words may arguably reflect opposite meanings, contrasting the explicit and the implicit, or they may merely accommodate the range of evidence (documentary, testimonial and real) to which the rule must apply; I do not express a view on their meaning, although I note that their breadth is apparent from what was said in Bull v The Queen (2000) 201 CLR 443; [2000] HCA 24 at [89]-[93].)

7. [142]

   The connection of a word and its negation by the conjunction “or” cannot yield a single composite concept. It follows that the disjunctive joining of opposite concepts in paragraphs (a) and (b) of subsection (3) amounts to a highly compressed way of drafting a rule which extends to eight separate eventualities, as Simpson J indicated in R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at [74]:

8. [143]

   Construed literally and in isolation, a very wide category of evidence may “disclose or imply” that the complainant “has or may have taken part or not taken part in any sexual activity”. But it does not follow that every piece of evidence which might answer that description is inadmissible. The literal meaning of a statute is not necessarily its legal meaning:

9. [144]

   Some extreme examples illustrate the problem. The complainant’s birth certificate or a passport is powerful evidence that the complainant has not taken part in any sexual activity before he or she was born. Of course it would be absurd for s 293(3) to prevent the tender of such documents, but precisely why is that so?

10. [145]

    Or suppose the Crown alleges that a prescribed sexual offence was committed at a party, and the accused has an alibi for part of the evening. The Crown may wish to tender a complainant’s mobile phone records or highway toll records to assist in establishing the complainant drove to the party, leaving home at, say, 9pm and arriving at, say, 10pm. Yet evidence that the complainant was driving to the party between 9pm and 10pm discloses or implies that the complainant was not taking part in any sexual activity between 9pm and 10pm while in transit. Once again, it seems absurd for the mobile phone or highway toll records to be inadmissible. But precisely why is that so?

11. [146]

    Two things need to be borne steadily in mind when construing the section.

12. [147]

    The first is that the section does not operate in isolation. The starting point is that the evidence be relevant. As Gleeson CJ observed in R v Morgan (1993) 30 NSWLR 543 at 544; 67 A Crim R 526, “the evidence in question is, by hypothesis, relevant and of probative value (otherwise it would be inadmissible without the need for any statutory exclusion)”. Morgan predated the Evidence Act 1995 (NSW), but Gleeson CJ returned to this point in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [24], in connection with s 409B:

13. [148]

    The mobile phone or highway toll records in the example given above are relevant because there is an issue as to the location of the complainant at a particular time on a particular day. In the absence of any such issue making the records relevant, they would be inadmissible.

14. [149]

    Secondly, the reason that s 293(3) does not apply to the mobile phone and highway toll records is that there is nothing to suggest that any sexual activity was taking place between 9pm and 10pm that evening. I do not think that the final negative sub-limbs of s 293 which apply where evidence discloses or implies that the complainant has not, or may not have, taken part in any sexual activity, bear their literal meaning. That is because there is not the slightest jot of evidence to suggest that the complainant was taking part in any sexual activity between 9pm and 10pm.

15. [150]

    None of the concerns to which the section is addressed apply where there is no credible evidence to suggest there was any sexual activity involving the complainant at that time. Yet if s 293(3) were to be read literally, evidence which discloses or implies that a complainant has not taken part in any sexual activity, or may not have taken part in any sexual activity, might be thought to be capable of extending to evidence which has nothing to do with sexual activity, such as the complainant’s mobile phone location records and highway toll records.

16. [151]

    In other words, if the literal generality of the provision is not qualified by the implicit premise that there be some credible evidence of sexual activity, then why is the tender of the mobile phone and highway toll records not caught by s 293? As has been noted above, it is plain when s 293 is read as a whole that there are a series of unstated qualifications upon its literal meaning (for example, “inadmissible” means “inadmissible before the jury”, and subsection (5) is qualified by subsection (6)).

17. [152]

    That is a long way removed from any real case, but consider now the reconstructed letter which gives rise to “incident 11”. The letter is plainly relevant to an issue (it may be used to support the contention that the complainant has a tendency to fabricate complaints of sexual assault). But the fact that the letter on its face contains statements that imply there was sexual activity between the complainant and “Mr Saunders” does not mean that the letter is evidence which discloses or implies anything about sexual activity involving the complainant. When considered with unchallenged evidence that the names of the solicitor, police officers and medical practitioners are made up, the letter discloses positively that a moderately elaborate forgery has been constructed. So far as the material made available on the application for the advance rulings discloses, there is no credible evidence that a person called “Mr Saunders” even existed, let alone took part in any sexual activity with the complainant.

18. [153]

    Another way of putting the point is this. Suppose a complainant writes a letter saying he or she was sexually assaulted by a fictional character. Even though the letter makes claims concerning sexual activity, it should not be regarded as evidence which discloses or implies anything concerning whether the complainant has taken part or not taken part in any sexual activity. Or suppose a complainant writes a letter saying he or she was assaulted the previous evening by a grandparent who died ten years earlier. Evidence which makes a claim of sexual activity involving the complainant which cannot possibly have occurred in the real world cannot fall within s 293.

19. [154]

    Considerations of that kind cause me to doubt whether s 293(3) on its proper construction renders the tender of the reconstructed letter inadmissible. How is “Mr Saunders” different from the deceased grandparent? It is readily established by evidence outside the letter that neither Mr Saunders nor the grandparent could have committed the assault. For those reasons, I can see force in a construction whereby s 293 has no application to relevant evidence where there is no suggestion that there was any sexual activity, even though the evidence discloses or implies that the complainant did not take part in any sexual activity. Indeed, unless the words “may not have taken part in any sexual activity” are given a meaning which is narrower than their literal generality, I find it difficult to see why they would not capture the mobile phone and highway toll records in the example above.

20. [155]

    This was in essence the applicant’s submission in this Court:

21. [156]

    I am inclined to think that the applicant’s submission is substantially correct as a matter of construction, putting to one side the effect of the legislative changes in 1999. Other considerations cause me to question the correctness of the line of authority commencing with M v R. I would note that:

    1. (1)

       In M v R, Allen J expressly disregarded the other rules of evidence and proceeded directly to s 409B. That appears to have reflected the way the appeal had been argued, but it may have led to an over-wide construction of the section. It is to be borne in mind, as Gleeson CJ said in Morgan and HG, that s 293 only makes relevant evidence inadmissible.

    2. (2)

       In M v R, Allen J appeared to proceed on the basis that once the literal meaning of s 409B was satisfied, the rule was engaged. No separate attention appears to have been given to whether the section is an example of legislation where the legal meaning diverges from the literal meaning.

    3. (3)

       Section 293 should be construed so as to promote the legislative purpose. But it may be doubted that any part of the legislative purpose was to protect a complainant from being confronted with evidence of fabrication, or to preclude a person accused of a prescribed sexual offence from confronting the complainant with past instances of fabricated complaints.

    4. (4)

       Indeed, the Queensland Court of Appeal has said (of the admittedly more narrowly worded s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld)) that:

    5. (5)

       Further, if the intention to be imputed to the New South Wales Legislature were to enact a stricter law than that of every other Australian State, closely adhering to the Michigan model, then what force is to be given to the fact that no later than 1984 the unqualified “Michigan model” was subjected to a judicially-crafted exception in the case of fabricated evidence?

22. [157]

    However, it is unnecessary fully to analyse those considerations, which, in any event, were not developed in the parties’ submissions. That is because the applicant acknowledged, very fairly, that the letter falls squarely within the section as construed in M v R and as that decision has been applied in subsequent cases.

23. [158]

    It is no small thing to alter the legal meaning of longstanding legislation, particularly where it has been revisited by the Legislature. There are two aspects to the judicial restraint to be exercised in such cases.

24. [159]

    First, it is one thing to determine the meaning of a statute when it first arises for judicial determination, and another thing to “say positively that [an existing construction] was wrong and productive of inconvenience”. That was the distinction made in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 28-29; [1987] HCA 19 by Brennan and Deane JJ, applying the language of Lord Buckmaster in Bourne v Keane [1919] AC 815 at 874:

25. [160]

    The same distinction was made more recently by Kiefel and Keane JJ in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 at [198]:

26. [161]

    When a court overturns a previous line of authority, it is in substance acting legislatively. Of course, courts make law all the time, and probably most frequently in the area of statutory construction. But the “previous line of authority” amounts to a series of decisions where the construction of the same statute has been dispositive of or at least influential to the outcome. Further, an Australian court is unable to alter the law prospectively: Ha v New South Wales (1997) 189 CLR 465 at 503-504, 515; [1997] HCA 34; Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 93 ALJR 1007 at [55]-[56]; [95]-[97]. Accordingly, overturning a line of authority amounts in substance to holding that the reasoning in those earlier decisions was wrong, and, perhaps also, the results. It follows that where a “line of authority” on an evidentiary provision such as s 293 which is only applicable in criminal trials for serious sexual offences is overturned so as to narrow it as sought by the applicant, there may well be people who were convicted following trials at which evidence now known to be admissible was excluded.

27. [162]

    The mere fact that a court has changed the law does not of itself entitle a convicted person to appeal out of time: R v Unger [1977] 2 NSWLR 990; R v Gregory [2002] NSWCCA 199 at [38]-[42] (the position is different in the case of an out of time appeal against sentence, which does not raise the spectre of a new trial, unavailable witnesses, and further trauma to the complainant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [29]). To simplify the position by invoking Lord Atkin’s adage in Ras Behari Lal v King-Emperor (1933) LR 60 Ind App 354 at 359 that “finality is a good thing, but justice is a better” may tend to suggest that the values of justice and finality are less multifaceted than they in fact are. That said, where the change in the law would, if the point were permitted to be taken in an out of time appeal, lead to an acquittal, that would be a very powerful factor supporting the extension of time, although even then, as R v Unger holds, an extension is not inevitable. The narrowing of s 293(3) for which the applicant contends would not (save perhaps in a highly unusual case) lead to an acquittal, but to a retrial. Even so, such changes – necessarily with retrospective effect – have an unsettling effect on the fabric of the law – especially as applied in criminal trials where the law as applied had been regarded as “settled”.

28. [163]

    Further, if this Court alters the construction given to s 293, it may have an impact upon pending prosecutions and appeals. In particular, there may be complainants who have participated in the criminal process on the basis of an understanding of the operation of s 293 which, although correct at the time, turns out not to be well-founded. It is to be borne in mind that very many prosecutions in this State are affected by s 293, and it is not at all unlikely that there will be some where there are cogent reasons for asserting that the complainant has previously fabricated complaints.

29. [164]

    These are some of the factors underlying curial reticence to overturn what has been the settled legal meaning for nearly three decades of an important statutory provision. The statement by French CJ, Kiefel, Bell and Keane JJ in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 at [77], albeit in a different context, that “judicial restraint should be understood to require no more than that the courts undertake their role without intruding into that of the legislature”, is not inapt, having regard to the legislative aspect of the course which the applicant invites this Court to take.

30. [165]

    If the view is taken that the strictness of former s 409B and s 293 may once have been appropriate in order to ensure a change of culture in criminal trials, but that it is now desirable to introduce a narrowly circumscribed discretion to admit evidence in a case such as this, then there is much to be said for that being a course to be taken by the Legislature, and with prospective effect.

31. [166]

    Secondly, there is the fact that the statute has been re-enacted and amended in circumstances where the criticisms of the section must be taken to have been known by the Legislature.

32. [167]

    The Director submitted that this Court should not overturn the pre-1999 decisions, which had preceded the repeal of s 409B and its reworded enactment in 2000 first as s 105 and then as s 293 of the Criminal Procedure Act. The submission was concise and not elaborated. The applicant did not respond to this aspect of the Director’s submissions on ground 1.

33. [168]

    In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 the joint judgment said at [52]:

34. [169]

    Probuild was an emphatic endorsement of the rule, in its application to the role of this Court to revisit the construction of State legislation following its amendment. The High Court has previously tended to deprecate the significance of this consideration. Dixon CJ regarded the rule as “quite artificial”: R v Reynhoudt (1962) 107 CLR 381 at 388; [1962] HCA 23, and the limitations of the principle were noted in the joint judgments in Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159 at 174; [1952] HCA 4; Flaherty v Girgis (1987) 162 CLR 574 at 594; [1987] HCA 17 and Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 329; [1996] HCA 31. Probuild contrasts with those decisions because the legislative record was regarded as a “powerful reason” not to alter the construction given to the statute by an earlier decision, and because of the emphatic statement that it would have been a “strong thing” to do.

35. [170]

    The joint judgment in Probuild referred to there having been “substantial amendments” to the legislation which had previously been considered. The renumbering of s 105 in 2001, and the minor consequential changes in 2005 and 2018, fall short of a “substantial amendment”. However, the recasting of s 409B as s 105 of a different statute, in measures which introduced sweeping changes to criminal law and criminal sentencing, arguably answer that description. Further, s 409B was not re-enacted verbatim, but was restructured, in (according to the extrinsic materials) “basically” the same form.

36. [171]

    A closely comparable example is Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 [7]-[8], [81], [161]-[162] and [251]; cf [214]-[215] (Kirby J, dissenting). There the change was relatively minor, and made shortly after the High Court in Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; [1994] HCA 34 had declined to reconsider R v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353; [1972] HCA 57 on whether a demand by a union that an employer deduct union dues from wages and remit them to the union “pertained to” the relationship between employer and employee.

37. [172]

    Gleeson CJ said at [8]:

38. [173]

    Gummow, Hayne and Heydon JJ said at [162] that “The field of industrial relations legislation in Australia is not one where the Parliament may readily be taken to have legislated without awareness of the interpretation placed by this Court on pivotal definitions”.

39. [174]

    McHugh J wrote at [81]:

40. [175]

    To paraphrase what McHugh J said and what Gummow, Hayne and Heydon JJ endorsed, the extent to which complainants in sexual offences are protected from cross-examination is a “politically sensitive field”. Further, the Executive government must be taken to have been aware of the recommendations from the Law Reform Commission reports, and the criticisms from the senior judiciary on this very issue concerning the overreach of the rule when applied to evidence of fabricated sexual activities. It must also be taken to have known of the absence of a residual discretion which addresses such cases in every comparable jurisdiction.

41. [176]

    To paraphrase McHugh J’s statement in Electrolux at [81], it would be “astonishing” if the Ministers charged with passage of the 1999 legislation, one of whom was the Attorney, were unaware of the judicial criticisms and law reform proposals of s 409B (including Report 87 which the Attorney personally commissioned and personally received). It is indeed no fiction to attribute that state of mind to those involved in the drafting the 1999 legislation. To be sure, this is not to treat the uncommunicated state of mind of the Ministers in 1999 as bearing upon the construction of the provision, but rather to confirm the absence of any legislative objective to alter the meaning already given to s 409B by the courts.

42. [177]

    I have borne in mind the considerations that s 409B was repealed and re-enacted without separate debate, quite possibly subject to the time-pressure of the end of the parliamentary sitting, and with the introduction of a series of minor textual infelicities. Even so, I do not think this Court should override the balance struck by the Legislature between the protection given to complainants and the rights of persons accused of prescribed sexual offences.

43. [178]

    Accordingly, I conclude that the primary judge was right to rule that the false complaint evidence was inadmissible insofar as it disclosed that the complainant had alleged in 2001, 2002 and 2009 she had been sexually assaulted or that those allegations were false. The Crown correctly conceded that evidence that the complainant had pleaded guilty to a charge of making a false statement was not inadmissible per se. I shall return to this when dealing with ground 4.

Ground 2 – s 293(3) does not apply to the “proven” incidents 1-6, 11 and 12?

1. [179]

   The applicant submitted in the alternative that the primary judge erred in holding that s 293(3) applied to incidents 1-6, 11 and 12, contending that “[t]he M v R line of authority has not considered the circumstance where the evidence of false complaint is accepted by the Crown to be proven”. He submitted that s 293 as a matter of construction “does not preclude the admission of evidence of proven prior instances of false complaint”.

2. [180]

   As noted above, there is a dispute about whether the Crown accepted that some of the incidents are “proven” and whether, to the extent it did so accept, it should be permitted to resile from that stance. But it is not necessary to engage with the detail of that dispute in order to resolve this ground. The evidence tendered to support the proposition that the complainant has lied about sexual assaults falls along a continuum. Some suggests that proposition very powerfully (in this case, a plea of guilty to a charge of making a false statement to police). Some is of much lesser probative value (for example, evidence that years before, as a young girl, she told her friend she had been sexually assaulted). Where is the line to be drawn?

3. [181]

   Proof of any of the incidents is a matter for the tribunal of fact. It is not a matter to be resolved on an advance ruling under s 192A of the Evidence Act. Nothing has been proven to date. More importantly, nothing in s 293 turns on any notion of proof. Section 293 is a rule governing admissibility. If the section applies, the evidence is inadmissible, whether its probative value be high or low.

4. [182]

   Section 293 does not exclude “unproven”, as opposed to “proven” evidence which is otherwise admissible. This ground is not made out.

Ground 3 – “at or about the time of” and a “connected series of events”?

1. [183]

   On the assumption that s 293(3) applied, the applicant submitted that the primary judge had erred in rejecting the availability of the exception in subsection (4)(a). That required establishing two things:

   1. (1)

      that the evidence was of the sexual experience or sexual activity or lack thereof, “at or about the time of” the prescribed sexual offence, and

   2. (2)

      that the evidence was of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed.

2. [184]

   The primary judge addressed this at [99]-[114]. His Honour found that the evidence of false complaints did not occur at or about the time of the 2014 offences, nor did they form part of a connected set of circumstances in which the offences were alleged to have occurred.

3. [185]

   In this Court, the applicant renewed the submissions made at first instance. It was said that the evidence of false complaints “necessarily informs the complainant’s then-existing state of sexual experience, or lack of sexual experience, ‘at or about the time’ of the alleged offences”. Reliance was placed on what had been said in R v Edwards [2015] NSWCCA 24 at [30] and GEH v R [2012] NSWCCA 150; 228 A Crim R 32 at [64] to the effect that a complainant’s sexual experience at the time of alleged offending will necessarily be informed by what has preceded it.

4. [186]

   In relation to the second limb of the exception, the applicant said that the term “connected” was not defined, that it was sufficient (relying on R v Edwards at [31]) that the evidence “be of events allegedly forming a part of a connected set of circumstances” and that (relying on Adams v R [2018] NSWCCA 303 at [154], [173]):

5. [187]

   The applicant’s oral submissions focussed upon the second limb of the exception, emphasising that the evidence formed a continuous pattern of fabricating sexual assault. A slightly different submission was made when counsel was directed to the first limb:

6. [188]

   I do not accept these submissions.

7. [189]

   The sexual offences on which the applicant stands indicted are said to have occurred in 2014. “Incident 12” is said to have been fabricated in 2009, some five years earlier. All save one of the earlier incidents are said to have taken place in 2001 and 2002, when the complainant was around 14 at high school. The exception is incident 10, which is said to have taken place at primary school, years earlier still.

8. [190]

   I do not accept that the first limb of the exception is satisfied. Nothing is said to have occurred within 4 or 5 years of the commission of the alleged prescribed sexual offences in 2009, and if the last incident is put to one side, nothing is said to have occurred within a decade of the alleged prescribed sexual offences in 2014. On no view could the temporal requirement of “at or about the time of” in the first limb be satisfied.

9. [191]

   This point was emphasised by the Attorney-General, introducing the bill in 1981:

10. [192]

    That is sufficient to resolve this ground. However, I would add that I do not accept that it is sufficient in order to satisfy the limb that the applicant “alleges” that they form part of a connected set of circumstances. I accept that the passage in Edwards at [31] if read literally supports this submission, but I do not consider that Edwards is authority for the proposition that it is sufficient merely to allege a connection. That is to say, the availability of the exception turns upon the court’s evaluation of connectedness of the events, not upon a litigant’s submission that events are connected.

11. [193]

    The fact that there may be dispute about this may once again be a consequence of the section’s unfortunate drafting. The text provides support for the construction favoured by the applicant. But the exception in subsection (4)(a) is carefully qualified, with two distinct limbs. The first limb requires the evidence to be “of” the complainant’s sexual experience or lack of sexual experience or sexual activity or lack of sexual activity, and imposes a temporal restriction. The second limb is directed to particular events and imposes a restriction based on connectedness. Not lightly would I conclude that structural separation in the section, by reference to two separate concepts, is conflated whenever the defence alleges that the evidence is of events which are “connected”.

12. [194]

    I favour the view that the events which are the subject of the evidence – the claims made by the complainant in 2001, 2002 and 2009 of assault at primary school, at high school, and even the assault by “Leon” in 2009 – are not events which form part of a connected set of circumstances in which the 2014 alleged sexual assaults by the complainant’s partner were committed. The similarity of subject matter, the fact that the offender was male, and even the conclusion which the applicant seeks to draw, namely, that they were fabricated, does not make them form part of a connected set of circumstances. All are separated by many years from the events of 2014.

13. [195]

    The applicant placed reliance on Adams v R [2018] NSWCCA 303, where there was evidence that a complainant had made false complaints between March 2012 and February 2013. The alleged offending took place in January 2013. In that context, this Court held that where the series of false complaints straddled the date of the alleged offending, “it does not strain the language of the section to treat the continuum which they represent (that is ‘a connected set of circumstances’) as having occurred at or about the time of the alleged offending”: at [173]. That is far removed from the present case, where the evidence of false complaints is years remote from the alleged offending.

14. [196]

    But it is not necessary to reach a final conclusion on the second limb, because the first is not established. It follows that this ground is not made out.

Ground 5 – invalidity?

1. [197]

   If s 293(3) applied and the exception in subsection (4)(a) was unavailable, the applicant submitted that s 293 was invalid. That submission was grounded in the limitation upon State legislative power first identified in Kable v Director of Public Prosecutions (NSW). In Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13 at [40] and Vella v Commissioner of Police (NSW) [2019] HCA 38; 93 ALJR 1236 at [55], joint judgments of six and four members of the High Court reiterated that:

2. [198]

   Thus it is necessary to identify a substantial impairment of a State court’s institutional integrity, which is incompatible with that court’s role as a repository of federal jurisdiction. This is different from the separation of judicial power which applies at the federal level. As was said in Pollentine v Bleijie (2014) 253 CLR 629; [2014] HCA 30 at [42], citing Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [125]:

3. [199]

   Although only the Supreme Court is specifically mentioned in the Constitution and in the passage from Emmerson and Vella reproduced above, and very few trials of prescribed sexual offences would be conducted in the Supreme Court, submissions proceeded on the basis that the same limitation would apply to s 293 in its application to the District Court. Indeed, Vella itself concerned the application of a New South Wales law which empowered the District Court to make a “preventive order”.

4. [200]

   The issue in Vella was in some respects the converse of that raised in this appeal. What was described in Vella at [23] as “the core submissions of the plaintiffs” was based on the open-textured phrases of the legislation impugned in that case, which required the Court to conduct an assessment of future risk and to balance criteria within a wide degree of judicial evaluation. The applicant’s core submission in support of this ground was to the opposite effect. It was said that s 293, unlike comparable legislation in every other Australian jurisdiction, left no residual discretion, and this was the factor which engaged the principle in Kable. The applicant recognised that Parliament had a choice between protecting complainants from distress and humiliation and between affording the accused a fair trial, but submitted:

5. [201]

   The applicant’s submission presupposed that a permanent stay was not available. The primary judge had concluded that he had no power to order a stay. His Honour did so accepting a submission from the Crown that “it appears as settled law that a stay will not be appropriate due to the operation of New South Wales rape shield provisions”: at [140]. However, in this Court, the Crown adopted the Attorney’s submission that the discretion to order a stay had miscarried, because the primary judge had failed to consider the circumstances of the particular case, and that the power was available.

6. [202]

   The contrary submission before the primary judge had been based upon what had been said in R v PJE, and may have been based on a misreading. But in any event, this Court addressed this distinction in KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266. Basten JA, with whom Harrison and Beech-Jones JJ agreed, said at [38]:

7. [203]

   That was common ground between the parties when the appeal was heard. It is, with respect, correct.

8. [204]

   That is the short answer to ground 5. There can be no substantial impairment of a State court’s institutional integrity, which is incompatible with the court’s role as a repository of federal jurisdiction, if the court reserves power to stay the proceedings. To the contrary, the institutional integrity of the court is confirmed and enhanced by staying the particular proceedings in which the application of the impugned law would lead to an unfair trial.

9. [205]

   No answer was made in the applicant’s written submissions in reply to this point, and very little attention was given to it in oral address. However, the applicant did advance one submission based on the Kable principle. The point was made briefly, and is best reproduced in full:

10. [206]

    I would accept that in principle the operation of s 293 may give rise to a basis for a permanent stay in a case such as this. As I understand the applicant’s submission, it is merely that the power to order a stay is available on the facts of this case which is sufficient to lead to the law being valid, falling short of an insistence that the power must be exercised. If the submission is more extreme, to the effect that the power to order a stay must be exercised in the facts of this case, absent which s 293 is invalid, I do not accept it. It conflates two things: the existence of power and its exercise.

Ground 4 – a permanent stay?

1. [207]

   It being common ground that the exercise of discretion to grant a permanent stay miscarried, it falls to this Court to re-exercise it. The applicant’s submissions gave heavy emphasis to prejudice which, so it was said, could not be cured by anything that might occur at the trial.

2. [208]

   The applicant relied on “a number of proven prior instances of false complaint” (original italics). In addition, the applicant pointed to incidents 7-10. All these were said to give rise to prejudice. The applicant buttressed his submissions by the findings in the reasons of the primary judge supportive of that conclusion, namely, that the application of s 293 “occasions significant unfairness to the accused”, that the unfairness is “real and not illusory” and is “an affront to justice”. The applicant maintained that the evidence goes directly to whether the complainant was an honest and reliable witness in light of her tendency to fabricate allegations, and that s 293 as it applied in the present case:

3. [209]

   Further, the applicant pointed to the unfairness in that the jury will be presented with a “wholly distorted picture of the true state of affairs”, and to the inevitability of the prosecutor being brought into conflict with his or her obligations of prosecutorial fairness, whenever a submission is made as to the honesty and reliability of the complainant.

4. [210]

   In partial response, the Director maintained that “there is only one instance of ‘proven’ dishonesty” (being the 2009 false report), and submitted that the complainant could be cross-examined about lying to police, and could even be cross-examined about fabricating a report of violence to her.

5. [211]

   The applicant criticised the Crown’s suggestions that there could be cross-examination about the bare fact that she accepted she had made a false complaint to police of a violent physical assault. The applicant said of this, adopting the language of the primary judge, that it “sanitises the conduct of the complainant and is misleading to the extreme” and would “give a false picture to the jury”. He went so far as to submit that “the Court could not allow ... such a knowingly misleading approach”.

6. [212]

   For reasons slightly different from those given in relation to ground 2, it is unhelpful to refer to whether or not the evidence reflects “proven” instances of fabrication. It is clear that s 293 will prevent some testimonial and documentary evidence from being adduced. Whether or not what is excluded amounts to a “proven” instance of fabrication is a distraction; the principal issue is the prejudice occasioned to the applicant arising from the exclusion of part of the evidence of false complaint.

7. [213]

   The power to stay proceedings permanently will only be granted in extreme or exceptional cases. Bathurst CJ collected some of the authorities in R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 at [15]-[23]. In part this is because the stay is an exceptional remedy. In part it reflects the public interest in serious allegations being disposed of on the merits: Moore at [24]; R v Blackett [2018] NSWCCA 114 at [42]. In Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [37], it was noted that “a permanent stay is tantamount to a continuing immunity from prosecution”.

8. [214]

   No issue was taken to the aptness of the principle stated by Mason CJ in Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46, which has been consistently followed, and was applied in this Court in R v RD [2016] NSWCCA 84 at [53]:

9. [215]

   In R v RD, Bathurst CJ referred at [56], by reference to Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, to a “weighing process involving the subjective balancing of a variety of factors and considerations including the requirement of fairness to the accused, the legitimate public interest in the disposition of charges for serious offences and the need to maintain public confidence in the administration of justice”. The applicant’s near-exclusive focus on prejudice to him at trial, to the exclusion of other considerations, implicitly and appropriately accepted the broader factors of public interest and public confidence which told against a permanent stay. The complainant attests to very serious criminal assaults inflicted upon her by the applicant, and her account is to some extent corroborated by two other witnesses. There is a powerful public interest in those serious allegations being resolved at a trial rather than stayed on a pre-trial application.

10. [216]

    Focussing on the applicant’s complaints based on prejudice, there are significant difficulties in identifying at this stage the extent to which s 293 will give rise to unfairness to the applicant at trial.

11. [217]

    First, there is a deal of evidence suggesting that almost two decades ago, as a high school student, the complainant told many people that she had been sexually assaulted by various boys and men. I proceed on the basis, favourably to the applicant, that none of that evidence will be admitted. I am not satisfied that the exclusion of that evidence would come close to establishing the sort of fundamental defect to the criminal trial as would warrant a permanent stay. What was said by the complainant many many years earlier, as a school girl, is of little probative value on whether aged 27 she was violently sexually assaulted by the applicant towards the end of their relationship.

12. [218]

    Secondly, the reconstructed letter arguably falls into a different category, notwithstanding it too is dated 2002, because of the degree of elaborate planning it discloses. But it is not presently known how the complainant will respond to being confronted with the reconstructed torn-up letter. I see no reason why the complainant could not be asked whether she has ever been involved in the fabrication of a solicitor’s letter which implied that she had been attacked by a man. Such restrictions on cross-examination are outside the operation of s 293. Thus, in Bell v R [2017] NSWCCA 207 at [173]-[174], this Court observed that a cross-examination about a continuing close relationship between complainant and accused, after the events giving rise to the prosecution, was permissible.

13. [219]

    It is very difficult to predict how the evidence would unfold thereafter. The fact that the complainant’s second statement, and her answers in conference with lawyers for the Director, suggest a poor recollection by no means dictates that she will have the same lack of memory if confronted with it in the witness box. It may be that she gives clear evidence that she participated in an elaborate attempt to make a false accusation about unlawful conduct against her by a man. Or it may be that much less comes out.

14. [220]

    But only when the questions on the events giving rise to “incident 11” have been asked and answered will it be possible to assess the prejudice to the applicant.

15. [221]

    Thirdly, it may be that the applicant readily accepts that she pleaded guilty to an offence in 2009 because once again she had participated in a relatively elaborate attempt to make a false accusation about unlawful conduct against her by a man. If there were any doubt about that, it may be that the court record of those proceedings is tendered. It seems likely that some of the facts underlying the 2009 allegations will be before the jury, insofar as they extend to making a false complaint about a violent attack by a man leading to the complainant pleading guilty to an offence. The relevant prejudice would then become the extent to which s 293 prevents the remaining evidence from being adduced.

16. [222]

    Fourthly, I am conscious that the prejudice to the applicant is not merely the questions which may not be asked of the complainant, but also other witnesses (notably, her friend). But once again it is difficult at this stage to identity with any precision what the precise prejudice is, in terms of otherwise admissible evidence which s 293 prevents him from tendering before the jury.

17. [223]

    A fifth reason for uncertainty is the potential effect of s 293(6), which permits cross-examination when the prosecution case has proceeded beyond the limits in s 293(2) and (3).

18. [224]

    Finally, although less important than the matters mentioned above, the record in this Court is incomplete. The statements of the complainant’s friend and medical practitioner are not before the Court (although a transcription of the latter’s notes of 3 June 2014 is in evidence). There are suggestions in the latter that the complainant sent text messages to her friend contemporaneously with the alleged offending; if so, they do not seem to be in evidence.

19. [225]

    I accept that the section gives rise to prejudice to the applicant. But it is quite possible that a cross-examination of the complainant will lead to addresses to the jury and a summing-up by the judge directing them to the fact that they must bear in mind that the complainant has previously lied, about a serious claim against a man inflicting violence upon her, and that she pleaded guilty to a charge of making a false statement to police, and that the jury must assess her evidence concerning the events in 2014 with that in mind. That will not completely address the prejudice occasioned by s 293. But it may go a considerable way to doing so.

20. [226]

    The result is that at this stage in the litigation, I am unpersuaded that the applicant has discharged the heavy burden of establishing that the continuation of the prosecution is inconsistent with the recognised purpose of criminal justice and should be stayed as an abuse of the court’s process. I am not persuaded that there is a fundamental defect going to the root of the trial which is of such a nature that there is nothing that a trial judge can do to relieve against its unfair consequences: TS v R [2014] NSWCCA 174 at [61].

21. [227]

    Nor am I persuaded that the course proposed by the Crown will necessarily lead to the jury being materially misled or to the prosecutor behaving unfairly. As was explained during oral submissions, the notion that a witness will be questioned so as not to adduce evidence on a particular topic, and indeed will be told that as a matter of law he or she should not volunteer evidence so as to mention that subject, is not uncommon in jury trials. The Crown accepted during the hearing that the position was accurately described as follows:

22. [228]

    Accordingly, I conclude that the primary judge was correct (although not for the reasons given by his Honour) to refuse the application for a permanent stay. This ground is not made out.

Orders

1. [229]

   For those reasons, I propose that there be a grant of leave to appeal confined to grounds 1-5, but the appeal be dismissed.

2. [230]

   JOHNSON J: I have had the considerable advantage of reading the judgment of Leeming JA and the judgments of the Chief Justice and Wilson J which refer to his Honour’s judgment.

3. [231]

   I agree with the orders proposed by Leeming JA. Subject to what follows, I agree with his Honour's reasons.

4. [232]

   I agree with what the Chief Justice has said (at [6]-[24]) concerning s.293 Criminal Procedure Act 1986.

5. [233]

   Like Wilson J (at [246]), I do not agree with Leeming JA’s analysis at [153]-[154] and [156], for the reasons expressed by Wilson J (at [247]).

6. [234]

   I also agree with Wilson J’s observation (at [248]) concerning the conduct of a voir dire with respect to the admissibility of disputed evidence involving the application of s.293.

7. [235]

   Apart from these areas, I agree with Leeming JA’s judgment concerning jurisdictional issues and the resolution of the grounds of appeal advanced by the applicant.

8. [236]

   BUTTON J: I have had the very significant benefit of reading the judgments of all members of the Court in draft.

9. [237]

   I agree with the orders proposed by Leeming JA.

10. [238]

    I also agree with the reasons for those orders given by his Honour, subject to the following.

11. [239]

    To the limited extent that there is divergence between the judgment of Leeming JA and the judgment of the Chief Justice, I agree with the latter.

12. [240]

    WILSON J: I have had the advantage of reading in draft the judgment of the Chief Justice, with which I agree.

13. [241]

    I am grateful to Leeming JA for his Honour’s careful analysis of both the history of s 293 of the Criminal Procedure Act 1986 (NSW), and of the evidence of “false complaint” at the heart of this application. I agree with the orders proposed by Leeming JA, although my reasons differ in some regards.

14. [242]

    Specifically, I do not share his Honour’s conclusion that the earlier decided cases concerning the interpretation and application of the former s 409B of the Crimes Act 1900 (NSW), and the present s 293 of the Criminal Procedure Act 1986, are overly broad, or wrong in some regard. Whilst the latter section contains a number of textual infelicities, I do not doubt the correctness of those authorities which have considered its broad operation.

15. [243]

    Bearing in mind the history of the enactment of s 409B of the Crimes Act, and its later re-enactment as s 105 and then s 293 of the Criminal Procedure Act, it must be concluded that the legislature intended and intends that s 293 have the wide operation that it has been consistently held by this Court to have in decisions such as M v R (1993) 67 A Crim R 549. That there is no discretion available to the courts to admit evidence otherwise excluded by the provision must also be concluded to reflect the considered will of Parliament.

16. [244]

    The present s 293 strikes a balance between the community’s interests in an accused person being permitted to test to the fullest extent possible the Crown case at trial, and the community’s interests in ensuring that the operation of the criminal justice system does not inhibit victims of sexual assaults from seeking the protection of the courts. Any change to that balance must be for the Parliament, and not for the courts, as Leeming JA concluded.

17. [245]

    Of the twelve incidents raised by the applicant in the course of the appeal, only the twelfth establishes that the complainant made a false statement concerning a sexual assault. It is not known on the evidence available to this Court whether the balance of the incidents involves false claims or not. Whether they do or they do not, none are admissible insofar as they relate to the sexual reputation of the complainant, or disclose or imply that the complainant has or may have had or lack, sexual experience, or may or may not have taken part in sexual activity. The trial judge was correct to so hold.

18. [246]

    I cannot agree with the conclusions of Leeming JA at [153] - [154] and [156].

19. [247]

    Even an allegation which seems impossible on its face may be the subject of a factual contest such that it cannot, in my opinion, be stated as a rule that an “obviously” false claim is not caught by the operation of s 293. In any event, the falsity or otherwise of a claim of sexual assault is not material to the question of the admissibility of such a claim; it is whether the claim is evidence of sexual reputation (s 293(2)), or whether it discloses or implies those things referred to in s 293(3), subject to the exceptions specified by s 293(4).

20. [248]

    Where it is necessary to hold a preliminary inquiry to determine the admissibility of disputed evidence, s 293 does not prevent that course. However, consistent with the purpose of the provision, any voir dire should ordinarily be conducted on the documents. It would be wholly inconsistent with the intention of the legislature in introducing s 409B of the Crimes Act and maintaining its operation in s 293 of the Criminal Procedure Act 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.

21. [249]

    In my conclusion, the orders of the Court should be as proposed by Leeming JA.