Cross-Examination of Children

By Dina Yehia SC

Introduction

Children give evidence in a wide range of cases. However, a significant proportion of the cases involving child witnesses are cases involving allegations of sexual assault. While this paper will deal with the legislative provisions relating to child witnesses in a general sense, it will focus on evidence in sexual assault cases.

The paper covers four areas relevant to the topic of cross-examination of child witnesses/complainants. It has therefore been divided into four sections:

i. Identifying some of the arguments for legislative change in recent years.

ii. A discussion of the balance between protecting the right of an accused to a fair trial, on the one hand, and minimising the negative experiences of child witnesses, on the other.

iii. An analysis of the legislative provisions dealing with child witnesses.

iv. Practical suggestions for cross-examining children.

(i) Identifying some of the arguments for Legislative changes in recent years

There can be little doubt that giving evidence in a criminal trial can be a stressful and difficult experience. This is so for Crown witnesses, Defence witnesses and accused persons. That this is particularly so for children is irrefutable. Many child witnesses give evidence as complainants in sexual assault cases. Often their account is the only evidence or the primary evidence against an accused. Their evidence is therefore subject to challenge and testing by way of cross-examination.

It is a daunting task for a defence lawyer representing an accused in such a criminal trial. Often the allegations are extremely serious. Significant standard non-parole periods apply on conviction. Your client is protesting innocence. You are tasked with testing the child’s account, undermining the reliability and credibility of that account and thereby the child. The only real armoury available is that of cross-examination.

Over the years there has been much criticism of the failure of the criminal justice system to deal fairly and sensitively with sexual assault complainants, particularly child complainants. Delays in cases proceeding; intimidating cross-examination; and a lack of awareness of children’s cognitive, linguistic and emotional development, have been cited as reasons for legislative change. “Therapeutic Jurisprudence, child complainants and the concept of a fair trial”, M.S King (2008) 32 Crim LJ 303 at 305. Furthermore, there is some evidence that the court process causes children to be anxious and fearful. “NSW Health Education Against Violence, Nothing but the Truth: Court room Preparation for Adult and Child Witnesses in Sexual Assault Proceedings” (The Education Centre Against Violence, 2002).

The Child Sexual Assault Specialist Jurisdiction was established on a trial basis on 24 March 2003 in Sydney West District Court Registry. The establishment of the Specialist Jurisdiction was the principal recommendation of the Report on Child Sexual Assault Prosecutions (NSW) Legislative Council Standing Committee on Law and Justice 2002.

The aim of the Specialist Jurisdiction was to reduce delays; to increase the skills of the legal professionals involved in such cases; and to improve the court environment to assist children. Some of the initiatives included:

A presumption in favour of using the child’s pre-recorded police interview as the evidence in chief.

The use of CCTV.

Education of the professionals involved, eg the use of judicial education packages.

Case management to avoid delays.

An evaluation of the Specialist Jurisdiction was conducted by the Bureau of Crime Statistics and Research (BOCSAR) in 2005. The findings can be summarised as follows: “An Evaluation of the NSW Child Sexual Assault Specialist Jurisdiction Pilot” Judy Cashmore and Lily Trimboli, NSW Bureau of Crime Statistics and Research, 2005.

The use of pre-recorded interviews and CCTV facilities had positive benefits for children, although technical difficulties with the tapes limited the effectiveness of these measures.

Delays continued to exist due to last minute editing of the tapes after legal argument.

The evaluation process did not produce any clear findings as to the effect, if any, of the judicial education packages.

While there was introduction of case management measures, overall this was limited. Amongst the difficulties identified was the late appointments of Crown prosecutors to a case; problems with technology; and the insistence of some judicial officers that child complainants/witnesses be at court long before they were required to give evidence.

Although the Pilot came to an end, a number of legislative amendments have come into force over the last decade in response to the concerns raised on behalf of sexual assault complainants including child witnesses.

(ii) Getting the balance right between protecting the right of an accused on the one hand, and minimising negative experiences of child witnesses on the other

There is little doubt that some of the concerns raised in relation to the negative experiences of sexual assault complainants are valid. As one of my former colleagues once wrote:

“No one questions that it is difficult for a legitimate sexual assault complainant to participate in the prosecution of an alleged offender”.

However, it was also noted:

“Despite this, great care must be taken to ensure protections traditionally afforded to an accused are not sacrificed in an endeavour to make the process less confronting for complainants.” “A defence Lawyer’s Perspective” Leonie Flannery UNSW Law Journal Forum, Volume 11 No 1 at p 6.

There is a concern that in some of the literature advocating legislative change the presumption of innocence is afforded little weight. This is particularly so when the argument is put forward that legislative intervention is warranted as one of the ways to increase the likelihood that “child abusers will be successfully prosecuted”. “Particularisation of Child Abuse Offences: Common Problems With Questioning Child Witnesses”, Martine Powell, Kim Roberts, Belinda Guadagno Current Issues In Criminal Justice July 2006 Volume 19 No 1 p 64 at p 65.

Advocates of legislative intervention cite the low rates of conviction in sexual assault cases as reason for further “reform”. It is argued that the conviction rate in sexual assault cases is lower in Australia in comparison with other offences. “Child Complainants and the Court Process in Australia”, Kelly Richards, Australian Institute of Criminology, No 380 July 2009 citing a study by J Fitzgerald “The Attrition of Sexual Assault Offences from the NSW Criminal Justice System”, BOCSAR, No 92 January 2006

For example, in an article published by the Bureau of Crime Statistics and Research in 2006, the author wrote:

“Each year NSW Police receive reports of more than 7,000 sexual and indecent assault incidents. Only about one in ten of these incidents result in someone being found guilty in court”. “The attrition of Sexual Offences from The NSW Criminal Justice System”, J Fitzgerald, Crime and Justice Bulletin No 92 BOCSAR January 2006.

While this figure, at first blush, appears to indicate an extremely low conviction rate in sexual assault cases, it is in fact a figure based on the total of reported incidents. That is, all cases reported to police. However, not all cases reported to the Police come before the courts. Fifteen per cent of cases involving a child complainant and nineteen per cent of cases involving an adult complainant result in the initiation of criminal proceedings. Ibid

An analysis of conviction rates based on the percentage of all reported sexual assault incidents, as opposed to all cases where proceedings are instituted, is somewhat misleading in the context of an argument that the court system is to blame.

While every effort must be made at the investigation stage by the comprehensive gathering of evidence and support of complainants to improve the response of investigate authorities to allegations of sexual assault, we must be careful not to use language that assumes that just because someone is charged, they are guilty. Furthermore, there must be diligent regard for the right of a person, assumed innocent, to a fair trial.

A number of changes to the law have taken place over the past decade in response to the call for improving conditions for sexual assault complainants in the criminal justice system and increasing the likelihood of convictions. The following is not an exhaustive list:

The admission of pre-recorded police interviews with child witnesses: s.306U(1) CPA.

The child witness can give further evidence in chief and be cross-examined by way of CCTV: s.306W CPA.
Very strict limitations on the defence having access to a complainant’s counselling records which may reveal inconsistent versions or a psychiatric disorder: s.298 CPA.
Very strict limitations on adducing evidence of prior sexual experience: s.293 CPA.
A re-trial can proceed by way of tender of the “original evidence” given by the complainant at the first trial. A complainant is not compellable to give further evidence: s.306B and s.306C CPA.
The Longman direction has been effectively denied an accused: s165B.
The admission of tendency/coincidence evidence: ss 97 &98.

Some or all of these changes may be warranted. Minds will differ as to whether we have struck the right balance or whether we have gone so far in one direction as to seriously undermine the right of an accused to a fair trial. The point is that we must always be mindful that in sexual assault cases, like any other case, an accused is presumed innocent. Witnesses and complainants do lie on occasion. Witnesses and complainants may not always be telling the whole truth.

For example, in R v GB (1998) 148 FLR 222, the complainant, after the trial had concluded, wrote to the accused admitting that the allegations had been untrue and apologising for the harm that they caused. At the trial, it was contended that the complainant had made false accusations due to resentment at the break down of a relationship between his mother and the accused. His mother had previously accused her own father of being a serial rapist but the falsity of those allegations was conclusively established by DNA evidence.

In R v KW A NSW case where the complainant was dealt with in the Children’s Court. The matter was raised in the NSW Parliament, Parliamentary debates, Legislative Assembly, 16 November 1994, 5167 (Peter Anderson), a thirteen year old girl made allegations against Mr W. He was charged. After a number of charges were dismissed at committal, she made further allegations. This time Mr W had an alibi. He was not charged. Further allegations were made. He again had an alibi. The girl was charged and convicted of public nuisance.

In R v G (unreported) District Court of NSW, Judge Hosking April 28 2004, Ms G was sentenced after pleading guilty to perjury. She had made what she later admitted was a false complaint that the father of her child had raped her. She gave that evidence at his trial. He was convicted and sentenced to a term of imprisonment of eight years. He served one year and 15 days of the sentence before she admitted that she had lied. She explained:

“..prior to going to the police I hadn’t given any pre-thought as to the story I was going to give regarding how or what happened at the rape. I then went to the hearings. Once I had lied I had to continue lying because I had taken it too far”.

(iii) Analysis of Legislative provisions dealing with child witnesses

The provisions that deal with the giving of evidence in sexual assault cases and those relating specifically to children can be found, for the most part, in the Criminal Procedure Act 1986 (CPA). These provisions apply to proceedings held in the Local Court as well as the higher courts. Annexure “A” to this paper contains a Table setting out the “personal assault offences” under s.306M CPA and identifies those offences that can be dealt with in the Local Court.

Part 5 Division 1 of the CPA deals with evidence in sexual assault proceedings:

Proceedings must be held in camera when a complainant gives evidence: s.291.

Evidence will only be given in open court if the Court is satisfied that special reasons in the interests of justice require it: s. 291 (3)(a); or if the complainant consents: s.291(3)(b).

The principle of open justice does not of itself constitute special reasons in the interests of justice: s.291(4).

Although the evidence is heard in camera, such an order does not effect the entitlement of a complainant to have a support person: s.291A(6).

Evidence that discloses or implies that the complainant may have sexual experience or lack of it is inadmissible. Evidence that disclosed or implies that a complainant may have taken part in sexual activity is inadmissible: s.293 (3).

A number of exceptions are set out in s.293(4). However, the fact that a complainant may have fabricated an allegation on a prior occasion about a sexual assault does not come within the exceptions set out in sub section (4).

A judge must not warn a jury or make a suggestion that complainants as a class are unreliable witnesses: s.294AA. The section also prohibits a warning to a jury of convicting on the uncorroborated evidence of a complainant.

An unrepresented accused is prohibited from cross-examining a complainant. The Court can appoint a lawyer to ask questions of a complainant as requested by an accused: s.294A.

A person is not required to produce a document containing a protected confidence (counselling communication) unless the Court is satisfied that the documents have substantial probative value and that the public interest in preserving confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in allowing inspection of documents: s.298.

Provisions dealing specifically with child witnesses

Part 6, Division 1, deals with the giving of evidence by vulnerable persons:

A vulnerable person means a child or a cognitively impaired person: s.306M.

Part 6 applies in relation to evidence given by a child who is under the age of sixteen years at the time the evidence is given: s. 306P(1).

A child may give evidence-in-chief by way of the previous representation made in a recorded interview: s.306S.

Evidence in the form of a recording is not required to be served on a party to any proceedings: s.306S(2). It should be noted that s.185 of the CPA states that if the prosecutor intends to call a child, the brief of evidence may include a transcript of the interview. The prosecutor is not required to serve a copy of the actual recording: s.185(5).

In DPP v SW [2009] NSWSC, Adams J 1. June 2009 the magistrate had ordered the DPP to produce a copy of the tape to the defence so they could check the translation. The decision was appealed. Adams J ruled that s.185 did not prevent a court from making such an order.

A child must not be present in court, or be visible or audible to the court by way of CCTV while the court is viewing the recording, unless the child otherwise chooses: s.306U(1).

The hearsay rule and the opinion rule do not prevent the admission and use of the evidence by way of the pre recorded interview: s.306V.

Whilst there is no requirement to serve a copy of the tape on the defence, such evidence is not to be admitted unless it is proved that:

The accused and his representative were given a reasonable time to view the recording: s.306V(2).

The court may exclude the whole or any part of the contents of the recording: s.306V(4).

The judge must warn the jury not to draw an adverse inference to the accused or give the evidence (recorded interview) any greater or lesser weight because the evidence is given in that way: s. 306X.

A child must not give evidence by way of a pre-recorded interview if the Court is satisfied it is not in the interests of justice that the evidence by given in that way: s.306Y.

The court may order that a transcript of the recording be supplied to the jury if it appears to the court that a transcript would be likely to aid comprehension of the evidence: s.306Z. The tape is not to be tendered as an exhibit. Neither the tape or the transcript are to be sent out with the jury. NZ [2005] NSW CCA 278, 17.8.2005; Gately (2007) 232 CLR 208. Appeal from Qld CCA. Per Hayne J (Gleeson CJ, Heydon and Crennan JJ agreeing).

A child must be available for cross-examination and re-examination. However, the child is to be examined by means of CCTV: s.306ZB.

If a child is above the age of sixteen but below eighteen at the time the evidence is given, the child is entitled to give that evidence by means of CCTV if the child was under sixteen when the charge for the personal assault offence was laid: s.306ZB(2).

In any proceeding where evidence is given by way of CCTV the judge must inform the jury that it is standard procedure for the evidence of a child in such cases to be given by such means and warn them not to draw any inference adverse to the accused: s 306ZI.

The changes to the way in which children’s evidence is received is based on a number of policy considerations put forward by the ALRC: ALRC Report No 84, p 332.

The first recorded account may be the most graphic and complete account.

The recorded interview may be the only evidence against the accused in the absence of eyewitnesses or medical evidence.

Reduction of the overall trauma for the witness.

Preliminary Practical Considerations For The Cross-Examiner:

Before you get to the point of cross-examination there are a number of important

Considerations:

(i) Objecting to the interview on the ground of reliability:

The quality and reliability of the contents of a pre-recorded interview with a child depends upon the skill of the interviewer. Leading or unfair questions may elicit unreliable answers. When viewing a pre-recorded interview consider whether the manner in which the questions are put to the child unfairly impact upon the position of the accused. The court does have the power to exclude the whole or any part of the contents. The tapes can and often are edited accordingly.

(ii) Unfair prejudice to the accused:

Pre-recorded interviews are conducted when the complaint is made to Police. Often, the child is not cross-examined at trial until months, or even years later. Such delay may constitute a significant unfairness to an accused. The jury will view a recording containing an account given at a point of time proximate to the alleged offence. By the time the trial takes place and the child is cross-examined the child might have little or no recollection of the events in question. How then can there be effective cross-examination?

(iii) Transcripts and tapes not exhibits

Section 306Z allows for the provision to the jury of a transcript of the pre-recorded interview. The New South Wales Supreme Court had occasion to consider the status of the tapes and transcript of the tapes in a trial. In Regina v NZ [2005] NSWCCA the accused and co-accused, both juveniles, were charged with offences under s61J of the Crimes Act. The complainant was also a juvenile.

During the trial the evidence in chief of the complainant and several other child witnesses was given substantially by way of pre-recorded interviews. Transcripts of the interviews were given to the jury and remained with them. Further evidence in chief and cross-examination was conducted by way of CCTV.

The jury found the accused guilty of the s 61J count and the co-accused guilty of an alternative count under s 66C.

Two of the four grounds of appeal concerned the use of the video taped interviews:

There was a miscarriage of justice as a result of the tender of the videotapes containing only a portion of the Crown case against the appellant and there (sic) being allowed to be used by the jury during their deliberations.
His Honour erred in failing to warn the jury against the danger of giving disproportionate weight to the tendered videotapes during their deliberations.

There was no objection taken at the trial to the use of the procedure (then under the Evidence (Children) Act 1997). There was no objection to the tender of the videotapes as exhibits. There was no objection to the provision of the transcripts to the jury; and, no objection to the videotapes being available with the rest of the exhibits in the jury room.

The appeal was dismissed in proviso but general principles were established:

The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement.

Any transcript given to the jury under s306Z (then s 15) should be recovered from the jury after evidence of the witness has been completed.

It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed.

It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed.

If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that “because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case”.

The judge should consider whether the jury should be reminded of any other evidence, for example, the cross-examination of the witness at the time the tape is replayed or sent to the jury room, if that step is considered to be appropriate.

In the case of Gately (2007) 232 CLR 208 (an appeal from Qld CA) per Hayne J (Gleeson CJ, Heydon and Crennan JJ agreeing), the Court considered the question of whether a jury is entitled to unsupervised access to the recording. The Court held that the recording itself does not become evidence and should not therefore be tendered as an exhibit:

[94]” Moreover, when the effect of the relevant provisions is understood in the manner described, it also follows that a request by a jury for access to evidence pre-recorded in accordance with those provisions should ordinarily be dealt with in the same way as any request by a jury to be reminded of evidence that has been led at trial. Seldom would it be appropriate to meet a request of that kind by giving the jury unrestrained access to the recording to play and replay. The reasons for not allowing access of that kind lie in the need to preserve fairness and balance in the conduct of the trial.

[95] Replaying the evidence given by one witness, after all the evidence has been given, carries risks. First, there is a risk inherent in the form in which it is presented. As was said in Butera, there is the risk that undue weight will be given to the evidence of which there is a verbatim record when it must be compared with evidence that has been given orally. Secondly, there is the risk that undue weight will be given to evidence that has been repeated and repeated recently. Other risks may arise from the circumstances of the particular trial.

[96] The purpose of reading or replaying for a jury considering its verdict some part of the evidence that has been given at the trial is only to remind the jury of what was said. The jury is required to consider the whole of the evidence. Of course the jury as a whole, or individual jurors, may attach determinative significance to only some of the evidence that has been given. And if that is the case, the jury, or those jurors, will focus upon that evidence in their deliberations. While a jury’s request to be reminded of evidence that has been given in the trial should very seldom be refused, the overriding consideration is fairness of the trial. If a jury asks to be reminded of the evidence of an affected child that was pre-recorded under subdiv 3 of Div 4A of the Evidence Act and played to the jury as the evidence of that child, the request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused.

Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence”.

(iv) Practical suggestions for cross-examining children

Like any other case, effective cross-examination is more likely if the cross-examiner is well prepared. In cases involving the cross-examination of children it is important to be mindful of the particular difficulties involved. Children do not have the same emotional and cognitive development as adults. Additionally, child witnesses are more likely to evoke the sympathies of jurors.

In these circumstances a cross-examiner must proceed very carefully. An appropriate starting point is to be aware of the provision in section 41 of the Evidence Act relating to improper questioning:

[41] Improper questions [Cth and NSW Acts only]

(1) The court must disallow a question put to a witness in cross examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a "disallowable question"):

(a) is misleading or confusing, or

(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or

(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or

(d) has no basis other than a stereotype (for example, a stereotype based on the witness’ sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

(2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account:

(a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and

(b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject, and

(c) the context in which the question is put, including:

(i) the nature of the proceeding, and

(ii) in a criminal proceeding - the nature of the offence to which the proceeding relates, and

(iii) the relationship (if any) between the witness and any other party to the proceeding.

(3) A question is not a disallowable question merely because:

(a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness, or

(b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.

(4) A party may object to a question put to a witness on the ground that it is a disallowable question.

(5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.

(6) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.

In Libke v The Queen [2007] HCA 30, Heydon J discussed a number of common law rules relating to cross-examination: See reference in Uniform Evidence Law, Stephen Odgers, Eighth edition, Lawbook Company 2009 at p 135.

Compound questions. Heydon J stated at [127]:

[S]ome “questions” asked during this cross-examination were not single questions, but were compound questions. “A compound question simultaneously poses more than one inquiry and calls for more than one answer. Such a question presents two problems. First, the question may be ambiguous because of its multiple facets and complexity. Second, any answer may be confusing because of uncertainty as to which part of the compound question the witness intended to address.” But compound questions have additional vices. It is unfair to force a witness into the position of having to choose which questions in a compound question to answer and in which order. Cross-examiners are entitled, if they can, to frame questions so as to seek a particular answer - either “Yes” or “No”. Even though the answers desired by the cross-examiner to a compound question may be all affirmative or all negative, the witness may wish to answer to some affirmatively and some negatively. To place witnesses in the position of having to reformulate a compound questions and answer its component parts bit by bit is unfair to them in the sense that it prevents them from doing justice to themselves. [footnotes omitted]

Questions resting on controversial assumptions. Heydon J stated at [130]:

[A] leading question put in cross-examination which assumes a fact in controversy, or assumes that the witness has in chief or earlier in cross-examination given particular evidence which has not been given, “may by implication put into the mouth of an unwilling witness, a statement which he never intended to make, and thus incorrectly attribute to him testimony which is not his”. A further vice in this type of questioning is: “An affirmative and a negative answer may be almost equally damaging, and a perfectly honest witness may give a bad impression because he cannot answer directly, but has to enter on an explanation.” [footnotes omitted]

Argumentative questions. Heydon J stated at [131]:

Another vice in the questioning in this case stemmed from the fact that some of the questions and observations of counsel for the prosecution did not seek to elicit factual information, but rather provided merely an invitation to argument.

Comments. Heydon J stated at [125]:

The cross-examination also contravened the rules of evidence in that many things said by the cross-examiner were not questions at all. To adopt the language of the Ontario Court of Appeal, counsel for the prosecution infringed the rules of evidence when he “regularly injected his personal views and editorial comments into the questions he was asking” [footnote omitted].

Cutting off answers before they are completed. Heydon J stated at [128]:

“Evidence should ordinarily be given without interruption by counsel.” The cutting off of an answer by a further question, though always to be avoided as far as possible, can happen innocently when a questioner is pursuing a witness vigorously and the witness pauses in such a fashion as to suggest that the answer is complete; it can happen legitimately if a witness answer is non-responsive. But very few of the interruptions here can be explained away on these bases. They were usually interruptions of responsive answers, often by offensive observations. The rule against the cutting off of a witness answer follows from the encouragement which the law gives to short, precise and single questions. It is not fair to ask a question which is disparaging of or otherwise damaging to a witness and to cut off an answer which the cross-examiner does not like [footnote omitted].

Suggested “Do’s”

Short/Sharp cross-examination. Get to the point quickly.
Speak slowly and clearly.
Use an ordinary tone of voice.
User the name by which the child wishes to be addressed.
Check if the witness understands some of the more complicated terms that might be used.
Show respect and consideration for the witness.
Simplify the use of words.

Suggested “Don’ts”

Don’t use complex sentences.
Don’t ask negative questions.
Don’t use either/or questions.
Don’t use technical legal words.
Don’t be offensive.

The Institute of Judicial Administration has set out several examples of language that should be avoided in questioning children:

Language	Examples
Legal References	Q: You told His Worship... Q. No, I’ll withdraw that... Q. I put it to you that...
Specific and difficult vocabulary	Q: You walked perpendicular to the road? Q: It’s pure fabrication, isn’t it? Q: You did that to taunt him?
Use of the negative	Q: It’s the case, is it not, that you didn’t...? Q: Do you not dispute that? Q: Are you saying none of that ever happened? -->Child shakes head -->Does that mean it did happen or it didn’t?
Ambiguous questions	Q: How many times did you tell the policeman X did...? Q: How do you say he forced you to? A: I was forced to. (repeated) -->How do you say you were forced to? -->I just said it.
Conceptually difficult	Q: For how long did he touch you? - A: Frequently answered ‘for 5 minutes.’
Challenging	Q: It’s all a pack of lies, isn’t it? Q: You don’t like your step-father, do you, Mary? You’ve invented all this, haven’t you Mary in order to get him out of the house?

Section 293 Criminal Procedure Act (formerly s 409B and s 105)

Section 293 CPA and its predecessors prevent cross-examination of a complainant about sexual experience with some limited exceptions. Cross-examination and evidence to show that the complainant was a “fantasiser” in relation to sexual matters and had made false complaints of sexual assault previously in order to indicate that her account was unreliable, was held to infringe the section and was not permissible as it did not come within any of the specified exemptions: M v R (1993) 67 A Crim R 549; R v Bernthaler NSWCCA unreported 17 December 1993.

[2-s 293] Admissibility of evidence relating to sexual experience.

293 (1) This section applies to proceedings in respect of a prescribed sexual offence. [subs (1) subst Act 25 of 205 s 3 and Sch 1, opn 12 Aug 2005].

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity, is inadmissible.

(4) Subsection (3) does not apply:

(a) if the evidence:

(i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

(i) the accused person is alleged to have had sexual intercourse (as defined in section 61H(1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and

(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,

(d) if the evidence is relevant to:

(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or

(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,

(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),

(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

(5) A witness must not be asked:

(a) to give evidence that is inadmissible under subsection (2) or (3), or

(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

(6) If the court is satisfied:

(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:

(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or

(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and

(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.

(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.

(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.

Recent cases

Clark (2008) 185 A Crim R 1 at [87] ff

Appellant was convicted of sexual offences against a youth - defence was that the complainant engaged in homosexual activity with a second youth at the appellant’s house then made allegations against the accused to cover the activity - application to ask questions under s.293(4)(a) refused - not temporal enough - activity involved different person - not allowed to question complainant further once activity denied.

Rolfe (2007) 173 A Crim R 168 at [26] ff’

Appellant convicted of sexual offences against step-daughter - complainant made comment to brother that “daddy will rape you” - referred to biological father as “daddy” and appellant as “Mark” - subsequent questioning by mother led to complaint - although initial comment probably not caught under s.293 no error in defence counsel deciding evidence inadmissible and deciding not to seek admission - any suggestion that complainant fantasising about sexual assault by father or appellant inadmissible under s.293.

Mosegaard [2005] NSW CCA 361 at [128] ff

Appellant charged with sexual offences against female acquaintance - sought to lead evidence of complainant’s experience as an exotic dancer and consensual sexual intercourse with boyfriend several hours prior to alleged offences - sought to explain injuries to complainant and reason for unusual (rough) nature of sexual activity.

At [153] per McClellan CJ at CL, Grove J agreeing (Smart J dissenting) - Appellant charged with three acts of intercourse - agreed those acts of intercourse had taken place but claimed consent - complainant gave evidence of further, uncharged acts of intercourse - denied by appellant - uncharged acts of intercourse do not open up s.293(4)(c) - section applies only where appellant denies acts that have been charged.

Rahme [2004] NSW CCA 233

Charged with sexual offences against 15y girl - sought to have evidence admitted under s.293(6) - sought to lead evidence that complainant involved in prostitution prior to and at time of offences.

In Tubou NSW CCA [243] 28.6.2001 at 40 Heydon JA held the disclosure must be an intentional expressed revelation or intentional suggestion - silence of complainant does not necessarily imply lack of sexual experience. In Rahme [2004] NSWCCA 233 James J at [188] found these comments obita only and found that the section can be satisfied by an implication not intended by the Crown. In Rahme the Crown case was that the appellant had forced the complainant into prostitution. On appeal the CCA found the trial judge erred in not finding the complainant claimed to have no sexual experience as a prostitute and not allowing the appellant to lead evidence she had admitted to acts of prostitution prior to meeting the appellant.

Lengthy consideration of the section with different judgments.

Villar, Zugecic NSW CCA 3302

Appellant’s sought to lead evidence the complainant had worked as a prostitute and had asked if she was to be paid for the intercourse - appellants argued matter went to question of belief in consent not reputation.

[60] That the material now canvassed was inadmissible and accordingly not appropriate for cross-examination on the basis now contended for is made plain in McGarvey where Hunt J said:

“...the argument was...the complainant had been prepared to consent to intercourse with twenty men...led him to believe that she was consenting to intercourse with him...”

[61] Consensual intercourse with twenty men and prostitution convey comparable matters of repute. Hunt J went on to observe:

“That, however, is the very sort of evidence that s.409B was designed to exclude...the evidence...would appear to have been inadmissible on an issue of belief in consent even prior to the introduction of s.409B...Gregory 1983 151 CLR 566”.

[62] Any former admissibility on the issue of credit is plainly the subject now of statutory bar.

...

[129] The first proposition argued on behalf of Zugecic is that the remark “Am I going to get paid for this?” is not evidence of sexual reputation but evidence upon the issue of whether RB did in fact consent to the sexual acts which took place.

[130] The remark, if made, suggests that RB was a person who would provide sexual services for payment. Such a person is a reputed prostitute. The remark relates to sexual reputation and is therefore inadmissible.

Munn, Miller [2006] NSW CCA 61

Appellant’s charged with sexual assault on 7y neighbour - sought to lead evidence of prior sexual experience on basis that jury would consider complainant’s evidence outside normal experience of 7y child - questioning of complainant’s prior sexual experience restricted - Crown unfairly referred to complainant’s account as being outside experience of 7y child - unfair to defence - appeal allowed.

Dina Yehia SC
Public Defender
Carl Shannon Chambers
22 February 2010

Last updated:

15 Nov 2024