R v NX

[2019] ACTSC 55

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v NX

Citation:

[2019] ACTSC 55

Decision Date:

5 March 2019

ReasonsDate:

6 March 2019

Before:

Mossop J

Decision:

See [6]

Catchwords:

CRIMINAL LAW – EVIDENCE – application to adduce evidence of complainant’s prior sexual activities – operation of s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – operation of s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – s 76 does not apply to evidence of sexual activities of complainant and accused

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 76, 76(1), 76(2), 78, 78(4)

Cases Cited:

R v CH and JW [2010] ACTSC 75

R v Fernando [2009] ACTSC 137; 238 FLR 64

R v NO [2017] ACTSC 372

Parties:

The Queen (Crown)

NX (Accused)

Representation:

Counsel

K Lee (Crown)

R Davies (Accused)

Solicitors

 ACT Director of Public Prosecutions (Crown)

 Legal Aid ACT (Accused)

File Numbers:

SCC 212 of 2018

SCC 216 of 2018

SCC 217 of 2018

MOSSOP J:

Introduction

1. The accused has pleaded not guilty to charges of sexual intercourse without consent and sexual assault in the third degree. Both prosecution and defence have applied for leave to adduce evidence of the sexual activities of the complainant. Both applications relate to sexual activities between the complainant and the accused. Sections 76 and 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) provide:

76  General immunity of evidence of complainant’s sexual activities

(1)Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding.

(2)Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.

…

78 Decision to give leave under s 76

(1)The court must not give leave under section 76 unless satisfied that the evidence—

(a)has substantial relevance to the facts in issue; or

(b)is a proper matter for cross-examination about credit.

(2)Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition.

(3)Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.

(4)If the court gives leave under section 76, it must give written reasons for its decision.

(5)In this section:

proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 2011, section 102 does not apply to the evidence because of that Act, section 103 (Exception—cross-examination as to credibility).

1. So far as the Crown’s application was concerned, the evidence for which leave was sought was of statements made by the accused during an interview with police and anticipated evidence from the complainant that this was the only occasion on which the accused had filmed them involved in fellatio.  The statements of the accused were said by the Crown to be of substantial relevance to a fact in issue because they demonstrated the nature of the relationship between accused and complainant and, in particular, that it involved a degree of sexual frustration on the part of the accused.  The evidence about filming was said to be of substantial relevance to a fact in issue because it would tend to demonstrate that the video was a video of the non-consensual incident alleged by the Crown.

1. So far as the application by the accused was concerned, the sexual activities of which evidence was sought to be elicited were those that the accused said occurred, namely an episode of cunnilingus immediately prior to the episode of fellatio.  Both were said by the accused to have been consensual.  The evidence was said to be of substantial relevance because so far as it involves fellatio, it is the incident alleged in the Crown case (albeit said to be consensual) and insofar as it involves the act of cunnilingus, it is said to have immediately preceded the charged act and have been consensual, being substantially probative as to whether the subsequent fellatio was consensual.

1. I was referred to two decisions of Penfold J on this point.  The first was R v Fernando [2009] ACTSC 137; 238 FLR 64. In that case her Honour at [32]-[33] concluded that the provision which is now s 76(2) meant that the inadmissibility rule in what is now s 76(1) only applied in relation to evidence of sexual activities with a person other than the accused person. Subsequently in R v NO [2017] ACTSC 372 at [9], her Honour referred to R v Fernando.   Her Honour proceeded on the basis that if Fernando was correct then no leave was necessary and in case it was not her Honour made an order granting leave.  I was invited by the Crown to proceed in the same way as Penfold J did in R v NO, namely, to make an order in case, on a proper construction of the section, an order was necessary. Counsel for the accused did not demur. That was the most efficient way in which to address the two applications. If the prohibition in s 76(1) applied, it was clearly appropriate to grant leave because the evidence sought to be adduced by each side had substantial relevance to the facts in issue. I therefore made the orders sought.

1. I was not referred during submissions to the decision in R v CH and JW [2010] ACTSC 75. That was a decision in which Penfold J considered further the issue raised in R v Fernando.  It was not however referred to by her Honour in the subsequent decision in R v NO.  The significance of the decision in R v CH and JW was that her Honour had the benefit of detailed submissions from counsel concerning the correctness of her decision in R v Fernando and reached the conclusion (at [37]) that “Research by counsel… has provided further support for my earlier approach to the legislation”. Had this decision been drawn to my attention, I would have followed her Honour’s decision and concluded that leave was not necessary.

1. These written reasons are only given because had s 76 applied then s 78(4) requires that written reasons must be given. Given that my view is now that s 76 did not apply, I only publish the reasons in order to draw attention to the decision of Penfold J in R v CH and JW to which I was not referred by counsel.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 6 March 2019