Director of Public Prosecutions v Bellette
[2022] ACTSC 271
•4 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Bellette |
Citation: | [2022] ACTSC 271 |
Hearing Date: | 4 October 2022 |
DecisionDate: | 4 October 2022 |
Before: | Elkaim J |
Decision: | (i) The application in proceeding filed on 28 September 2022 is dismissed. (ii) Question 174 and the recorded answer are to be omitted from the Evidence in Chief Interview recorded with the complainant on 30 March 2021. (iii) All questions and answers referring to pain or soreness when passing urine are to be omitted from the same interview. (iv) For the purpose of effecting the above orders an appropriate officer of the Australian Federal Police is to arrange to have the Evidence in Chief Interview edited in accordance with these orders and to provide three clearly marked copies of the edited version to the Office of the ACT Director of Public Prosecutions. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-trial application – leave to adduce evidence of sexual activities of complainant – whether evidence has substantial relevance to facts in issue – where evidence does not suggest occurrence of anal intercourse – application dismissed |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 77, 78 |
Parties: | ACT Director of Public Prosecutions ( DPP) Parker Jae Robert Bellette ( Accused) |
Representation: | Counsel B Morrisroe ( DPP) S Pararajasingham ( Accused) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law ( Accused) | |
File Number: | SCC 24 of 2022 |
Elkaim J:
The applicant is going to trial on 7 October 2022 before a judge and jury. He is facing two counts of sexual intercourse without consent and two counts of indecent assault, all arising from the same incident.
I was informed today that the applicant intends to plead guilty to the two charges of indecent assault. I was also told that the primary issue in the sexual intercourse without consent charges will be whether or not there had been penetration of the complainant’s vagina or anus.
On 28 September 2022 the applicant filed an application in proceeding seeking leave to adduce evidence of sexual activities of the complainant said to have occurred shortly after the incident in respect of which the applicant has been charged.
The application is opposed.
The application is supported by an affidavit of Ms Madison Fieldus, affirmed on 27 September 2022. Ms Fieldus is a solicitor in the firm retained by the applicant. The affidavit annexes a statement made by a police constable and a transcript of the evidence in chief interview of the complainant.
The prosecution relied upon a proofing note of a phone call with the complainant on 30 September 2022.
Section 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) says that “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”.
Section 77 dictates the mechanics of an application for leave. Section 78 says leave is not to be given unless the court is satisfied that the evidence “has substantial relevance to the facts in issue” or “is a proper matter for cross-examination about credit”. This application is based on the substantial relevance provision.
Based on the Case Statement the alleged facts are bizarre although, having occurred at an unseemly establishment called Mooseheads, perhaps not surprising. Even as I was considering this matter, another sexual assault case was running in a different court in which the facts had a close connection to Mooseheads. I have observed on previous occasions that this venue is frequently associated with criminal activity.
The allegation is that during the night encompassing 4 and 5 March 2021 the complainant was at Mooseheads with two friends. The complainant had already consumed alcohol before arriving and then continued to drink while in Mooseheads. She met a Mr Graham and later danced with him.
The applicant was also at Mooseheads with some friends.
The relationship between the complainant and Mr Graham rapidly flourished and the pair were kissing and entwined in each other’s arms while dancing. The complainant was wearing a short skirt over a ‘G’ string. While the pair were dancing it is alleged that the applicant approached the complainant from behind, put his hand beneath her underwear and then penetrated her vagina and her anus with his fingers.
Initially the complainant thought the fingers were attached to Mr Graham’s hand and so she did not object. However, she soon noticed that the penetration was violent and she pulled away asking Mr Graham, “Was that you?”. He replied, “What do you mean?”.
The complainant looked around. A friend of Mr Graham pointed to the applicant and said “That’s him”. The complainant followed the applicant. He approached one of his friends and placed his fingers in his friend’s face. He then gestured with his hand in a motion suggesting the use of his fingers.
The complainant spoke to a security guard, complaining that she had been assaulted. She pointed out the applicant. Nothing came of the complaint and the complainant left the venue.
The statement of the police constable is said to be relevant to the application because it records that she was told by the complainant that after the complainant left Mooseheads she had penile vaginal intercourse with another person, presumably Mr Graham. The constable also says that on 30 March 2021 she and another officer conducted an evidence in chief interview with the complainant.
Turning to the interview, it records that the complainant told police that she went home that evening with Mr Graham. (Question 189).
Also in the interview the complainant told police that the insertion of the fingers was “very aggressive” (Question 85). Then from Question 208 she told police that the next morning she was “pretty sore” anally. She later said it was “just really sore”. She also said (Question 217) that there was pain when she was passing urine. This pain lasted for about two days.
The sexual intercourse with Mr Graham is said to have substantial relevance because it might explain the soreness felt by the complainant. Her attribution of her pain to the alleged actions of the applicant could then be contradicted.
The prosecution’s opposition was based on there being no allegation made by the complainant of pain in her vagina. At best the complaint is that she had pain when passing urine. Further, said the prosecution, the proofing notes established that the only pain alleged by the complainant related to her anus.
The applicant has said that the pain should be regarded as more generalised and relating to both the pubic area and the anus of the complainant. It was suggested that answers such as that to Questions 214 and 215 of the record of interview suggested the pain may not have been restricted to the anus. This, it was submitted, was consistent with the answer to Question 217 which referred to soreness on passing urine.
It is immediately apparent that the answers about pain follow the question about anal penetration (Q. 211). The reference to the passing of urine follows the introduction of essentially a new topic beginning at Question 216.
The respondent accepted that at no point in the record of interview does the complainant say that she had pain in her vagina.
In my view the application should not succeed because I do not think there is any substantial relevance to the subsequent intercourse because it does not suggest, and it is in fact denied, the occurrence of anal intercourse.
I do not agree with the submission that there is a generalised complaint of pain which would include vaginal pain possibly consequent upon subsequent intercourse.
I also do not agree with the assertions made in the written submissions that it is unlikely that a person having been assaulted in the manner described by the complainant would later engage in sexual intercourse. Had there been any suggestion that the latest sexual intercourse involved anal penetration the position would have been quite different. Further I do not think that the complainant’s reliability is affected by the subsequent sexual intercourse with Mr Graham. Once again if the complaint of pain had been more widespread the position might have been different.
The applicant also submitted that
…the sexual activity evidence presents a complicating factor capable of affecting the weight the jury may attribute to any accepted evidence of soreness. The evidence represents an intervening event which raises a question as to causation. Put another way, if the fact of the subsequent sexual intercourse was kept from the jury, they would inevitably tribute any soreness to the conduct of the applicant.
Yet again the distinction is between the area of pain, the anus, and the nature of the subsequent sexual intercourse. Absent any suggestion of penetration by Mr Graham of the anus of the complainant, there is no relevance of the intercourse with Mr Graham to pain in the anus.
I am not sure there is a strict need for balance but in the interests of fairness, and to avoid any confusion or misapprehension, I think the references to soreness on passing urine, wherever occurring, should be removed.
I note that a separate question (174) and answer were the subject of agreement between the parties.
I make the following orders:
(i)The application in proceeding filed on 28 September 2022 is dismissed.
(ii)Question 174 and the recorded answer are to be omitted from the Evidence in Chief Interview recorded with the complainant on 30 March 2021.
(iii)All questions and answers referring to pain or soreness when passing urine are to be omitted from the same interview.
(iv)For the purpose of effecting the above orders an appropriate officer of the Australian Federal Police is to arrange to have the Evidence in Chief Interview edited in accordance with these orders and to provide three clearly marked copies of the edited version to the Office of the ACT Director of Public Prosecutions.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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