Director of Public Prosecutions v Austin (No 2)
[2023] ACTSC 190
•19 July 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Austin (No 2) |
Citation: | [2023] ACTSC 190 |
Hearing Date: | 19 July 2023 |
Decision Date: | 19 July 2023 |
Reasons Date: | 20 July 2023 |
Before: | Baker J |
Decision: | (1) I grant leave to the accused to file the application in proceedings dated 19 July 2023 in court. (2) I grant leave to the accused to file the affidavit of Michael Kukulies-Smith affirmed 19 July 2023 in court. (3) I make order 1 sought in the accused’s application in proceedings dated 19 July 2023 and filed in court with leave on 19 July 2023. (4) I grant leave to the prosecution to file the application in proceedings dated 17 July 2023 in court. (5) I make order 1 sought in the prosecution’s application in proceedings dated 17 July 2023 and filed in court with leave on 19 July 2023. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Sexual offence proceedings — Where prosecution and counsel for the accused sought to adduce evidence of the complainant’s lack of previous sexual activity — leave granted |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 60 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 77 |
Cases Cited: | DPP v Austin [2023] ACTSC 185 |
Parties: | Director of Public Prosecutions Nathan James Austin ( Accused) |
Representation: | Counsel M O’Connell ( ACT DPP) M Jones ( Accused) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law ( Accused) | |
File Number: | SCC 237 of 2022 |
BAKER J:
1․The accused, Nathan Austin, is charged with six counts of sexual intercourse without consent and one charge of an act of indecency without consent (Crimes Act 1900 (ACT) ss 54, 60). Each act is alleged to have occurred at the complainant’s room, in Australian National University accommodation, on 26 November 2021.
2․This matter came before me for trial by jury on 17 July 2023. Prior to a jury being empanelled, counsel for the prosecution and the accused sought that orders be made in respect of three applications in proceedings that were each made under s 77 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (“EMPA”). Those applications related to the adducing of evidence that:
(i)the accused and the complainant had kissed in the hours preceding the alleged offences (the first category of evidence); and
(ii)specified evidence in the complainant’s EICI and from the complainant’s friend, to the effect that the complainant had not previously engaged in penetrative sexual intercourse prior to the alleged offences (the second category of evidence).
I granted the orders sought in each of those applications on 18 July 2023 and provided written reasons for those orders to parties the following day: DPP v Austin [2023] ACTSC 185. In that judgment, I noted that the leave that had been sought and granted in respect of the second category of evidence was limited to the adducing of particular questions and answers and did not extend to cross-examination on the topic generally, and that a further application would be required to permit such cross-examination.
On 19 July 2023, counsel for the prosecution and the accused each made the following further applications under s 77 of the EMPA:
(a)Application in Proceedings filed by the prosecution dated 17 July 2023 (filed on 19 July 2023) (“the prosecution’s 19 July 2023 application”); and
(b)Application in Proceedings filed by the accused dated 19 July 2023 (filed on 19 July 2023) (“the accused’s 19 July 2023 application”).
The prosecution’s 19 July 2023 application sought that leave be granted under s 77 of the EMPA for the prosecution to adduce evidence of further specified questions and answers in the accused’s Record of Interview, in which the accused made reference to the complainant having said that she had not had sexual intercourse prior to the alleged offences. The accused did not oppose this application.
The accused’s 19 July 2023 application sought that leave be granted under s 77 of the EMPA to the parties to adduce evidence of previous sexual activities of the complainant, “namely evidence, through cross examination of the complainant that she said to the accused ‘I want you to do it because it’s my first time’; referring to it being the first time having sex.” The prosecution did not oppose this application.
The reasons that I gave in DPP v Austin [2023] ACTSC 185 apply equally to these further applications and I accordingly granted the leave sought in each application.
Orders
For the above reasons I made the following orders:
(1)I grant leave to the accused to file the application in proceedings dated 19 July 2023 in court.
(2)I grant leave to the accused to file the affidavit of Michael Kukulies-Smith affirmed 19 July 2023 in court.
(3)I make order 1 sought in the accused’s application in proceedings dated 19 July 2023 and filed in court with leave on 19 July 2023.
(4)I grant leave to the prosecution to file the application in proceedings dated 17 July 2023 in court.
(5)I make order 1 sought in the prosecution’s application in proceedings dated 17 July 2023 and filed in court with leave on 19 July 2023.
| I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A Bucci Date: 20 July 2023 |
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