R v Um

Case [2021] ACTSC 44

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v UM

Citation:

[2021] ACTSC 44

Hearing Dates:

29 March 2021 

DecisionDate:

29 March 2021

Before:

Elkaim J

Decision:

See [6]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trail Application – Leave to adduce evidence of complainant’s extra-marital affair

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 78

Parties:

The Queen ( Crown)

UM ( Accused)

Representation:

Counsel

S Naidu ( Crown)

J Sabharwal ( Accused)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Legal Aid ACT ( Accused)

File Number:

SCC 143 of 2020

ELKAIM J:

  1. This matter commenced today. Before opening, the Crown requested leave to file an application in proceeding dated 26 March 2021. Neither the filing nor the application were opposed.

  1. The application sought leave to lead evidence “of the sexual activities of the complainant, only in so far that she had an extramarital affair and that it was known to her husband (the accused).”

  1. The reason the Crown wish to lead the evidence is because the alleged facts constituting the charges include the accused acting against the background of his knowledge of the affair.

  1. The actions of the accused are said, at least in part, to be a reaction to his knowledge of the affair and his resentment of it.

  1. I was of the view, enhanced by the consent of the accused, that the affair, as required by s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), had “substantial relevance to the facts in issue”.

  1. Accordingly I made Order 1 in the above application.

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

Associate:

Date: 29 March 2021
Details
AGLC
R v Um [2021] ACTSC 44
Case
[2021] ACTSC 44
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard a pre-trial application in the case of R v Um. The application was made by the Crown and sought leave to adduce evidence of the complainant’s extramarital affair, which was known to the accused, her husband. The Crown intended to lead this evidence to demonstrate that the accused’s actions, which formed the basis of the charges against him, were, in part, a reaction to his knowledge and resentment of the affair.

The legal issue before the court was whether the proposed evidence of the complainant’s extramarital affair had substantial relevance to the facts in issue, as required by section 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). This section of the Act governs the admissibility of evidence related to the sexual behaviour of a complainant in criminal proceedings. The Crown argued that the affair was relevant because it provided context for the accused’s alleged actions, which were said to be influenced by his awareness of the affair.

Justice Elkaim determined that the evidence of the complainant’s extramarital affair did indeed have substantial relevance to the facts in issue. This conclusion was supported by the consent of the accused, which played a significant role in the decision. Consequently, the court granted the Crown’s application, allowing the evidence to be adduced at trial. This decision was based on the understanding that the affair was pertinent to understanding the accused’s state of mind and actions at the time of the alleged offence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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