Director of Public Prosecutions v Connell (No 2)
[2023] ACTSC 299
•10 October 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Connell (No 2) |
Citation: | [2023] ACTSC 299 |
Hearing Dates: | 10 October 2023 |
Decision Date: | 10 October 2023 |
Before: | Loukas-Karlsson J |
Decision: | See [31] |
Catchwords: | CRIMINAL LAW – EVIDENCE – sexual offence proceedings – pre-trial application to adduce evidence of complainant’s prior sexual activities – operation of ss 76, 77, 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – substantial relevance to facts in issue – proper matter for cross-examination about credit – leave granted in limited scope |
Legislation Cited: | Evidence Act 2011 (ACT), ss 55, 102, 103 |
Cases Cited: | Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134 |
Parties: | Director of Public Prosecutions (Crown) John Patrick Connell ( Accused) |
Representation: | Counsel M Dyason ( DPP) S Whybrow SC ( Accused) |
| Solicitors ACT Director of Public Prosecutions David Healey Solicitors ( Accused) | |
File Number: | SCC 342 of 2022 |
LOUKAS-KARLSSON J:
Introduction
1․Mr John Patrick Connell (the accused) in these proceedings has been charged with sexual offences with respect to the complainant (GE) alleged to have occurred over a period of time between 1981 and 1986. The charges include, among other things, the persistent sexual abuse of a child.
2․The matter was before this Court on 9 and 10 October 2023 for the taking of pre-trial evidence from the complainant, pursuant to s 60 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act).
3․On 9 October 2023, counsel for the accused foreshadowed a draft application pursuant to s 76 of the EMP Act for leave to cross-examine the complainant about sexual activities other than the ones charged and with persons other than the accused. On 10 October 2023, counsel for the accused formally moved on the application.
4․The prosecution submitted the accused should be granted leave on a limited basis but maintained objection to certain matters sought under the accused’s application. After an adjournment, both parties came to a consensus as to the specific parameters of the accused’s application to be pressed and subsequently agreed as between the parties.
5․On 10 October 2023, I granted the revised orders sought and reserved my reasons. These reasons now follow, as required by s 78(4) of the EMP Act.
6․To ensure the identity of the complainant is protected as required by law (s 74 of the EMP Act), persons referred to in these reasons have been anonymised by the substitution of different initials. The key to the anonymisation is contained in a schedule to these reasons, which will be provided to the parties, kept on the court file, and not published with these reasons.
Application
7․The original application moved on by counsel sought that the following orders be made:
1. An order pursuant to section 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 that the Accused be given leave to cross-examine the complainant, [GE], in relation to:
a. Whether the sexual offending alleged by the complainant was committed by another person;
b. Whether the complainant’s first sexual experience was not as alleged with the accused but [BN] at age 15, or [MI].
c. The timing of her sexual relation with [BN] in the context of being taken by her mother to see [a doctor] to be prescribed the contraceptive pill and whether it was because of that sexual relationship rather than alleged sexual activity with the accused that was the genesis of that consultation;
d. A sexual relationship [GE] had with [MI] in the same time period it is alleged there was sexual abuse by the accused;
e. Conversations with the accused about sexual activities with [DI] and [MI] – not necessarily involving the complainant;
f. Whether [GE] was subject to sexual abuse as a child by a person or persons other than the accused;
g. Prior statements made by [GE] to police, friends, partners and family members about her sexual activities where such statements have substantial relevance to the facts in issue or are proper matters for cross-examination pursuant to section 76.
8․The application, as it was originally pursued by counsel, was undoubtedly broad. There were prima facie concerns with the breadth of such an application in view of how some orders could be said to be substantially relevant to facts in issue or would be a proper matter for cross-examination. Indeed, the prosecution submitted that the original application would be opposed in part.
9․As has been noted above, after submissions from both parties and time to allow both counsel to consider their position on the application, both parties came to a consensus as to the specific parameters of the application that would be pressed and agreement was reached on a more limited basis. Therefore, the matters the accused sought leave to cross-examine the complainant in relation to, and agreed to by the prosecution, were refined as follows:
(a)Whether the sexual offending alleged by the complainant was committed by another person;
(b)Whether the complainant’s first sexual experience was not as alleged with the accused, but with [BN] at age 15.
(c)The timing of the complainant’s sexual relationship with [BN] in the context of being taken by her mother to see [a doctor] to be prescribed the contraceptive pill and whether it was because of that sexual relationship rather than alleged sexual activity with the accused that was the genesis of that consultation; and
(d)Prior statements made by the complainant to police, friends, partners and family members about her sexual activities where such statements have substantial relevance to the facts in issue or are proper matters for cross-examination pursuant to s 76, confined to references concerning champagne in the context of sexual activity, and the fact of an intimate relationship with [TE].
Legal principles and legislative regime
10․Division 4.4.2 of the EMP Actprovides the legislative regime governing evidence of a complainant’s sexual reputation and activities in a sexual offence proceeding. The present matter is a “sexual offence proceeding”: s 41, EMP Act.
11․Evidence of a complainant’s sexual reputation is not admissible in a sexual offence proceeding and is subject to immunity: s 75, EMP Act.
12․Section 76 of the EMP Act establishes the general immunity for evidence of a complainant’s sexual activities. It provides:
76General 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.
13․An application for leave pursuant to s 76 must be made in writing. The application in this matter complied with this requirement. If the proceeding is before a jury, the application for leave must be made in the absence of the jury. If the accused person requests, the application must be heard in the absence of the complainant: s 77,EMP Act. In any event in this matter, the application was heard in the absence of the complainant, and given the matter was before this Court for the taking of pre-trial evidence, no jury was present.
14․The purpose of such legislation includes the “protect[ion] of alleged victims of sexual offences from the embarrassment and intrusion upon privacy involved in an investigation of their personal lives”: R v Byczko (No 1) (1977) 16 SASR 507 at 539, cited in R v ST (No 2) [2014] ACTSC 52 at [27] (R v ST (No 2)). Another purpose is to ensure that cross-examination is confined within appropriate boundaries to reduce the risk that “the jury might misuse the evidence”: R v TF [2018] ACTSC 13 at [33] (R v TF): see also R v QX (No 4) [2021] ACTSC 246.
15․Specifically in relation to s 76(1), the purpose of this provision was discussed in Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134 (Earle (No 2)), where McCallum CJ outlined at [7] that the clear purpose of this provision is to “protect complainant’s against the trauma… of having the sexual assault proceeding become, as such proceedings historically had become, a forum for a broad investigation of their sexual activities, with all the misconceived assumptions that entailed”. Such legislative protections are also important in the broader context of the administration of criminal justice to ensure forensically relevant cross examination and to forestall irrelevant & inappropriate cross-examination.
16․To this end, the requirement for leave is not a mere formality, and the protection mandates judicial focus on the purpose for which the protection has been legislated: Earle (No 2) at [7]. Thus, although there is agreement between prosecution and counsel for the accused, it is nevertheless a matter for the Court to determine whether leave should be granted.
Decision to give leave under s 76
17․A decision to give leave under s 76 is guided by the matters in s 78, which provides the procedure the Court must follow when deciding whether to grant leave pursuant to s 76:
78Decision 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).
(emphasis added)
18․As is evident, the requirement for leave under s 78 is closely constrained, and necessarily so. The terms of s 78 draw attention to misconceptions about sexual assault, and requires the interrogation of the utility of the evidence which is sought to be led: Earle (No 2) at [7], [9]. Such evidence about prior sexual activities is restricted to matters that have substantial relevance “as determined on a disciplined basis” and in accordance with the other guiding principles of s 78: Earle (No 2) at [9].
19․Unsurprisingly, in respect of s 78(1)(a), “relevance” has the same meaning as it appears in s 55 of the Evidence Act 2011 (ACT) (Evidence Act): R v CH and JW [2010] ACTSC 75 at [44] (R v CH and JW). Section 55 of the Evidence Act provides:
55Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to present evidence.
20․As to the word “substantial” in s 78(1)(a) of the EMP Act, “substantial” relevance to the facts in issue means “considerable importance”, “concerning the essentials” or “important in material terms”: W v R [2006] TASSC 52; 16 Tas R 1 at [46], applied in R v ST (No 2); R v Alas (No 2) [2017] ACTSC 333 at [9].
21․In R v CH and JW at [67] it was stated that determining whether evidence is a “proper matter for cross-examination about credit” under s 78(1)(b) requires the court to ask:
(a)Could the evidence substantially affect the assessment of the credibility of the complainant? Section 78(5) EMP Act; s 103(1) Evidence Act; and
(b)Would the evidence, if accepted, be likely to substantially impair confidence in the reliability of the complainant’s evidence? Section s 78(3) EMP Act.
22․I note that the language of “credibility evidence about a witness” has been described as “awkward” concerning cross-examination: see Tieu v The Queen [2016] NSWCCA 111; 92 NSWLR 94 at [30]. This is because it is the answer that is the evidence, not the question. The question is objectionable if the answer would be inadmissible.
Consideration
23․The critical issue in the trial of the accused will be whether the alleged sexual acts occurred. The allegations relate to the period between 1981-1986. The issues in this application concern the following:
(a)Whether the alleged abuse could have been perpetrated by another person;
(b)Whether the complainant’s first sexual experience was not as alleged with the accused, but with [BN] at age 15;
(c)The timing of the complainant’s sexual relationship with [BN] in the context of being taken by her mother to see [a doctor] to be prescribed the contraceptive pill and whether it was because of that sexual relationship rather than alleged sexual activity with the accused that was the genesis of that consultation; and
(d)The origins of prior statements made by the complainant relating to particular details regarding sexual activities with the accused forming the subject of the offences.
24․In relation to the refined orders sought as outlined at [9] above, the scope of the leave sought to cross-examine the complainant were narrowed and strictly confined to the issues enumerated above at [23]. It was not contentious between the parties that the reformulated matters had substantial relevance to the facts in issue and are also proper matters for cross-examination of the complainant as to credit.
25․However, as I have noted above, the decision to grant leave under s 76 requires judicial analysis in accordance with the legislation. It is not simply a matter that can be, without nothing more, agreed by parties. The regime under ss 76 and 78 demands judicial focus on the legislative protection and the factors underpinning a decision for the grant of leave under s 78.
26․Importantly, the matters that counsel for the accused proposed to cross-examine the complainant on were reformulated and confined so that cross-examination did not entail a broad questioning about sexual activities outside the present alleged offences. This is a relevant consideration. The evidence sought to be led must also adhere to the requirements under s 78. Leave will not be granted merely on the basis that the leave sought does not entail a broad-sweeping cross-examination of such matters.
27․The matters outlined above at [23] in my view have substantial relevance and are proper matters for cross-examination about credit. In this case, the evidence if accepted would be likely to substantially impair confidence in the reliability of the complainant’s evidence.
28․In relation to [23](b), counsel for the accused submitted that an issue in this matter was the timing of a sexual relationship between the complainant and BN, and whether it was this relationship with BN that gave rise to the circumstances mentioned at [23](c). Subparagraphs [23](b) and [23](c) are therefore related and of substantial relevance. The timing is of substantial relevance.
29․In relation to [23](d), a grant of leave was sought out of an abundance of caution despite not relating to sexual activities specifically. TE was a former partner of the complainant, and Mr Whybrow SC submitted it will be implicit that the fact of an intimate relationship is the context in which relevant statements were made, not the fact of sexual activity between the complainant and TN. I am therefore satisfied if a grant of leave is required, it is on that basis appropriate. In relation to [23](a), that is a matter of substantial relevance in light of the facts of this case as has emerged in cross-examination of the complainant during pre-trial evidence. Therefore, to the extent this requires leave, leave is granted.
30․In summary, under s 76 of the EMP Act the accused was granted leave to cross-examine the complainant in relation to Orders (1)(a)-(d). I was satisfied under s 78 that these matters are proper matters for cross-examination as to credit on the facts of this case.
Orders
31․For these reasons, on 10 October 2023 I made the following orders:
(1)The accused is granted leave, pursuant to s 76 of the Evidence (Miscellaneous Provisions) Act 1991, to cross-examine the complainant in relation to the following matters:
(a)Whether the sexual offending alleged by the complainant was committed by another person;
(b)Whether the complainant’s first sexual experience was not as alleged with the accused, but with [BN] at age 15.
(c)The timing of the complainant’s sexual relationship with [BN] in the context of being taken by her mother to see [a doctor] to be prescribed the contraceptive pill and whether it was because of that sexual relationship rather than alleged sexual activity with the accused that was the genesis of that consultation; and
(d)Prior statements made by the complainant to police, friends, partners and family members about her sexual activities where such statements have substantial relevance to the facts in issue or are proper matters for cross-examination pursuant to section 76, confined to references concerning champagne in the context of sexual activity, and the fact of an intimate relationship with [TE].
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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