Director of Public Prosecutions v Arcus
[2024] ACTSC 317
•16 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Arcus |
Citation: | [2024] ACTSC 317 |
Hearing Date: | 16 October 2024 |
Decision Date: | 16 October 2024 |
Before: | Christensen AJ |
Decision: | See [21] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application to adduce prior sexual activities of the complainant – leave required to be sought – leave to cross-examine – relevance to facts in issue – relevance of prior sexual history to credibility – leave granted |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 51, 76, 78 |
Cases Cited: | Decision Restricted [2024] ACTSC 268 |
Parties: | Director of Public Prosecutions ( Applicant/Respondent) Daniel Benedict Arcus ( Applicant/Respondent) |
Representation: | Counsel M Howe ( Applicant/Respondent) J Maher ( Applicant/Respondent) |
| Solicitors ACT Director of Public Prosecutions CODA Criminal Law ( Applicant/Respondent) | |
File Numbers: | SCC 44, 45 of 2024 |
CHRISTENSEN AJ:
Introduction
1․On 16 October 2024 orders were made as to two applications. The prosecution and the accused each sought separate advanced rulings involving the operation of provisions in the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act). These are the written reasons for the rulings.
Accused’s application to edit audiovisual recording
2․By way of application in proceeding dated and filed 9 October 2024, the applicant, who is the accused in the trial, sought that the audiovisual recording of the complainant be edited: s 51(3)(b) of the Act. The application in proceeding set out in detail the editing sought, with omissions of portions explained in the application and the supporting material by highlighting the relevant portions of the transcript of the recording.
3․Subject to a minor clarification made to the highlighted transcript to ensure consistency with the omissions sought in the application, the prosecution agreed to the editing sought.
4․Section 51(3)(b) does not prescribe any criteria to inform when the Court may order editing or changing of the audiovisual recording, beyond an example to the subsection of it being for “editing the recording to omit inadmissible material”. It is unnecessary for the purposes of this application to consider the scope of the provision given the absence of opposition. I accept, having reviewed the proposed omissions in their context, that the editing sought removes content that is plainly irrelevant or otherwise inadmissible.
5․Accordingly, orders were made consistent with the application and editing sought.
Prosecution’s application to adduce sexual activities
6․By way of application in proceeding dated 4 October 2024 and filed 8 October 2024, the prosecution seeks leave to adduce sexual activity evidence of the complainant: ss 76, 78(1)(a) of the Act. The evidence sought to be adduced is:
[E]vidence of an occasion prior to the alleged offending during which the complainant performed sexual services on the accused as part of [the complainant’s] employment at [the] Brothel.
7․The respondent to the application, being the accused in the trial, is alleged to have physically and sexually assaulted the complainant during a booking at the brothel on 17 June 2022. The complainant was employed there as an escort and the accused was a customer.
8․On a previous occasion, in April or May 2022, the accused is alleged to have engaged in a booking at the brothel with multiple escorts, which the complainant joined. The case statement filed by the prosecution provides that the complainant explained to the accused their ‘usual’ service of domination and that a waiver form was involved. It is alleged that during this booking, the accused smacked the complainant on their buttocks, which was beyond what was agreed, and that the accused was told he had not paid for that service.
9․The prosecution submits that the accused’s understanding as to what services were booked is an important fact in issue, and that the alleged conduct on the earlier occasion has substantial relevance to this fact in issue. It is submitted that the conduct of the accused and the response by the complainant on the earlier occasion informs the knowledge of the accused of the framework of consent for the purposes of the booking which is the subject of the charges.
10․This application involves consideration of the granting of leave as to the sexual activities of the complainant with the accused on an occasion earlier than the alleged acts the subject of the trial. The necessity for leave to be sought in such a circumstance is now, in my view, without controversy: Decision Restricted [2024] ACTSC 268 at [30]-[71]. Plainly, in that decision Baker J was correct, as was McCallum CJ in obiter in DPP v Earle (No 2) [2023] ACTSC 134; 378 FLR 1 (Earle (No 2)). Neither party submitted otherwise.
11․The accused consented to the application. It was accepted that the purpose for which the prosecution sought to adduce the evidence meant it had substantial relevance. This substantial relevance was submitted to extend to enabling the jury to be informed as to the full background and context of the alleged acts. This background and context is a matter that the accused refers to in his records of interview.
12․There was no application made, nor submission, that admitting the evidence raised for consideration unfair prejudice warranting or mandating exclusion. This was because the prosecution has indicated that they do not seek to rely on the sexual activity evidence on a tendency reasoning basis, and the parties anticipate an anti-tendency direction will be sought.
13․It was, however, sought on behalf of the accused that leave also be granted on a basis that the prior occasion of sexual activity is a proper matter for cross-examination about credit: s 78(1)(b) of the Act. It was submitted that the complainant’s explanation in the evidence in chief interview as to a level of acquiescence to sexual activity during the prior occasion will inform the complainant’s account of the subject occasion and the accused’s knowledge as to consent. As I understood the submission, that cross examination will be relevant to the complainant’s credibility as to the fact in issue of their consent to the allegedly unlawful sexual activity, as well as that of the accused’s knowledge as to consent: s 78(3) of the Act.
Consideration
14․I am satisfied that the prior occasion of sexual activity between the complainant and the accused has substantial relevance to the facts in issue. It is evidence that goes directly to the issue of the accused’s knowledge as to the parameters of consensual sexual activity during bookings with the complainant.
15․I am also satisfied that the evidence is a proper matter for cross-examination about credit. Plainly, the facts in issue in this matter are both the complainant’s lack of consent, and the accused’s knowledge as to their lack of consent. In so determining, I have had regard to whether the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence: sub-ss 78(3), (5) of the Act. In this matter, where some sexual acts are expressly consented to, and others are allegedly not, cross examination arising from the prior occasion of sexual activity and the manner in which the complainant described this occasion meets the legislated threshold for leave on this basis.
16․I am also comforted in this regard that counsel on behalf of the accused expressed that the intention was not seeking leave to cross-examine ‘at large’. In respect to leave as to credit, it remains confined to the sexual activity evidence as sought by the prosecution, with counsel conscious of the applicable boundaries given the legislated purpose of the provision.
Application by the accused
17․This was an application by the prosecution to adduce sexual activity evidence. This does not necessarily, for the reasons explained in Earle (No 2) at [29], grant leave for cross examination by the accused as to the prior sexual activities of the complainant.
18․Nonetheless, in this matter, the prosecution has fairly and appropriately expressed in the application that the leave sought was for both parties to adduce the relevant evidence. I was informed that this was done deliberately with a contemplation of both evidence in chief and cross examination as to the prior sexual activities, and an acceptance of the relevance of the evidence to both a fact in issue and as to credit.
19․I am satisfied that in the circumstances it is unnecessary to require a further written application, and one specifically on behalf of the accused. The specified parameters of the proposed evidence are clear, and the leave sought, and granted, extends to both forms of questioning and the form in which the prior sexual activity evidence will be adduced.
Conclusion
20․For those reasons, I was satisfied that the prior occasion of sexual activity involving the accused and the complainant has substantial relevance to the facts in issue. I was also satisfied that it is a proper matter for cross-examination about credit, it being evidence, if accepted, that would be likely to substantially impair confidence in the reliability of the complainant’s evidence. Both parties have leave to adduce the prior sexual activity evidence by way of questioning, and by way of the evidence in chief interview and records of interview.
Orders
21․For those reasons, the following orders are made:
(1)Leave is granted pursuant to s 76 Evidence (Miscellaneous Provisions) Act 1991 (ACT) for the parties to adduce evidence of the sexual activities of the complainant as sought in the application in proceeding dated 4 October 2024 and filed 9 October 2024.
(2)I make orders in accordance with paragraphs (1a) to (1hh) of the application in proceeding dated and filed by the accused on 9 October 2024.
(3)An appropriate officer of the Australian Federal Police is to arrange to have the Evidence in Chief Interview disc edited in accordance with Order 2 and provide three clearly marked copies of the edited version to the ACT Director of Public Prosecutions.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen Associate: Date: 6 March 2025 |
0
1
1