Director of Public Prosecutions v KN

[2023] ACTSC 243

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v KN

Citation: 

[2023] ACTSC 243

Hearing Date: 

4 September 2023

Decision Date: 

5 September 2023

Before:

Taylor J

Decision: 

See [46].

Catchwords: 

CRIMINAL LAW – EVIDENCE – sexual offence proceedings – whether the Evidence in Chief Interview of the complainant should be edited pursuant to s 51(3)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) – consented to by parties – application granted

CRIMINAL LAW – EVIDENCE – whether leave should be granted pursuant to s 76(1) of the EMP Act for the accused to cross-examine the complainant as to prior sexual activity with the accused – application not opposed – satisfied evidence has substantial relevance to the facts in issue and is a proper matter for cross-examination about credit – application granted

CRIMINAL LAW – EVIDENCE – whether leave should be granted pursuant to s 32 of the EMP Act for the complainant and a complaint witness to give evidence via AVL from a place outside the ACT – whether the necessary facilities were available – whether it would be in the interests of the administration of justice – facilities not satisfactory – application dismissed

Legislation Cited: 

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 32, 43, 51(3)(b), 68(2), 76, 77, 78

Evidence Act 2011 (ACT), ss 55, 102, 103

Cases Cited: 

Browne v Dunn (1894) 6 R 67

Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134

R v CH and JW [2010] ACTSC 75

R v Fernando [2009] ACTSC 137; 238 FLR 64

R v No [2017] ACTSC 372

R v NX [2019] ACTSC 55

R v QX (No 4) [2021] ACTSC 246

Parties: 

Director of Public Prosecutions

KN ( Accused)

Representation: 

Counsel

S Jerome ( DPP)

J Maher ( Accused)

Solicitors

ACT Director of Public Prosecutions

Brightstone Legal ( Accused)

File Number:

SCC 68 of 2023

TAYLOR J:   

Introduction

1․On 13 April 2023 the prosecution filed an indictment alleging:

(a)Two counts of sexual intercourse without consent; and

(b)One count of attempt sexual intercourse without consent in the alternative.

2․There are three applications pursuant to the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) before the Court that require determination prior to the trial that was to commence on 11 September 2023:

(a)An application by the prosecution pursuant to s 51(3)(b) of the EMP Act;

(b)An application by the accused pursuant to s 76 of the EMP Act; and

(c)An application by the prosecution pursuant to s 32 of the EMP Act in relation to the complainant and a complaint witness.

The s 51(3)(b) application

3․Turning first to the s 51(3)(b) application. Section 51 relates to an audio-visual recording of a witness in a relevant proceeding answering questions of a prescribed person in relation to the investigation of an offence the subject of the proceeding: s 51(1) of the EMP Act.

4․The affidavit in support of the application annexes portions of the Evidence in Chief Interview (EICI) of the complainant dated 21 May 2022. The prosecution relies on the EICI as an audio-visual recording for the purposes of the section. There is no contest that those matters contained in s 51(2) of the EMP Act are satisfied in the EICI.

5․Section 51(3)(b) of the EMP Act dictates that:

(3)The audio-visual recording must–

…

(b)not be edited or changed unless the court hearing the relevant proceeding in which the recording is tendered otherwise orders.

6․The prosecution seeks the redaction of the EICI via the removal of question and answers contained at 10, 11-16, 38-41, 99, 134, 140-141, 209, 210, 211, 314-347, 355 and 363, as well as the words “[s]o we will talk a little more about that one at the end about what’s going to happen next. But again, thanks so much for coming in to talk to me”.

7․The accused supports the making of the order sought by the application. There are no considerations or criteria contained in the provision or elsewhere in the EMP Act that must be established, or the Court must be satisfied about, before granting the application.

8․In those circumstances it is appropriate to grant the order in the terms sought.

The s 76 application

9․This is an application by the accused seeking leave to cross-examine the complainant about prior sexual activities with the accused. The application is supported by the affidavit of Ms Sharon Yu. The affidavit annexes the indictment, case statement and other material relied on in the prosecution case as well as, relevantly, extracts of a Cellebrite report of data extracted from the complainant’s Samsung mobile phone.

10․The application is not opposed. Indeed, the parties have helpfully provided a draft form of order in response to the application. That, of course, does not relieve the Court of the need to be satisfied that the accused has established that the application should be granted.   

11․Section 76 of the EMP Act establishes general immunity for evidence of a complainant’s sexual activities. Section 77 dictates the form and process of an application under s 76. Section 78 constrains the discretion to grant leave under s 76. Those sections provide:

76           General 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.

77 Application for leave under s 76

(1) Application for leave under section 76 in a sexual offence proceeding must be made––

(a)in writing; and

(b)if the proceeding is before a jury––in the absence of the jury; and

(c)in the absence of the complainant, if an accused person in the proceeding requests.

78 Decision 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).

12․In this matter the procedural requirements set out at s 77 have been satisfied. Implicit in the position adopted by the prosecution is acceptance that one or both of the terms of s 78(1) are established on the application. In oral submissions the prosecutor readily accepted that the evidence of sexual activity sought to be adduced in cross-examination is a proper matter for cross-examination about credit as it would be evidence, if accepted, that would be likely to substantially impair confidence in the reliability of the complainant’s evidence.

13․The application identifies two kinds of evidence, specific and general in nature, that the accused wishes to explore with the complainant in cross-examination. It is helpful in this context to understand the general nature of the allegations.

The alleged facts and the grounds for the application

14․In summary the prosecution case statement alleges that on or about 1 May 2021 the accused had sexual intercourse with the complainant without her consent on two occasions and in the alternative to Count 2, attempted to have sexual intercourse with the complainant without her consent. The sexual intercourse alleged is one occasion of vaginal penetration and one occasion of anal penetration (the subject of the attempt count in the alternative). The accused is the son of the complainant’s half-sister. The complainant, it is said, considers him her nephew.

15․The prosecution case relies on evidence from the complainant that she had not ever had any kind of sexual contact or engaged in any kind of sexual activity with the accused.

Substantial relevance to the facts in issue: s 78(1)(a)

16․The fact in issue is whether the acts occurred as alleged on or about 1 May 2021 and, if they did, whether the complainant consented to the sexual intercourse. The accused had recently disclosed to him copies of the complainant’s phone records which include text messages between the complainant and the accused said to reveal, or at least found an inference of, prior consensual sexual activity between them.

17․The prosecution case seeking to establish that the acts occurred relies to some degree on the presence of Y-STR DNA profiles, or haplotypes, obtained from endocervical and high-vaginal swabs taken from the complainant during a medical examination after the alleged incident is said to occurred, as well as tape lifts from the outside surfaces of a pair of the complainant’s underwear. The prosecution case will include expert evidence that the accused cannot be excluded as the source of the Y-STR haplotypes obtained from the internal swabs and the tape lifts.

18․The accused submits that the specific sexual activity evidence for which leave is sought is necessary for him to be able to advance plausible alternative explanations for the presence of the Y-STR DNA and the results therein on the swabs and the underpants that the prosecution seek to rely upon. That explanation is that, proximate in time to the alleged offending, the accused and the complainant had engaged in consensual sexual activity. That specific activity is supported to some extent by the text messages, which includes a message to the complainant from the accused on 24 April 2021: “well after what we were doing I needed to have a pull I was horny as fuk [sic]” and on the same day “well u sucked it for abit fuk that was good too [sic].”

19․The general evidence about prior consensual sexual activity is said to be capable of placing the allegations in a proper context in the particular set of circumstances of this case, the complainant being the accused's aunt. That is, the accused submits, the jury would otherwise be presented with evidence of a seemingly inexplicable or bizarre encounter between two blood relatives in circumstances where that activity is part of the general context of their relationship, the general context supported to some extent by the text message evidence, which includes a message sent to the complainant by the accused on 7 June 2020: “let’s have sex one last time before I leave this cruel world” and “love you so much I wish we fucked today I miss having showers with u [sic]” on 16 January 2021.

A proper matter for cross-examination about credit: s 78(1)(b)

20․It is accepted that neither during the course of the EICI nor as part of the complaint evidence relied upon did the complainant disclose any prior consensual sexual activity with the accused. The complainant did reveal that in the past the accused had sent her photos and/or videos of a sexual nature.

21․Further, the complainant asserted to police and medical staff that she had not been sexually active at all and had not engaged in sexual activity for some time prior to the alleged offending. The text messages, it is said, demonstrate that:

(a)the complainant is not being truthful when she says she had not engaged in any prior consensual sexual activity with the accused or with anyone else; and

(b)her assertion that the accused had previously sent her sexual material was absent recognition by her of the sexual aspect of their relationship such that those messages are deliberately not presented in their proper context.

22․The accused submits cross-examination about these matters is necessary to allow the credibility of the complainant to be properly assessed and thus ensure the accused receives a fair trial. The accused is anticipating giving evidence in his trial and he submits in fairness and so as to comply with the rule in Browne v Dunn (1894) 6 R 67, the matters need to be put to the complainant.

Consideration

23․The terms of s 78 permit leave to be granted if the sexual activity evidence (a) has substantial relevance to the facts in issue or (b) is a proper matter for cross-examination. In this matter I am satisfied in relation to both (a) and (b) for the following reasons.  

24․At the outset I note that the approach to be taken to the question of whether leave is required pursuant to s 76(1) for any sexual activity evidence between the accused and the complainant was carefully considered recently by the Chief Justice in Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134, her Honour ultimately concluding that the correctness of the interpretation of s 76(2) applied in previous decisions of this Court (see R v Fernando [2009] ACTSC 137; 238 FLR 64, R v CH and JW [2010] ACTSC 75, R v No [2017] CTSC 372 and R v NX [2019] ACTSC 55), that leave is not required to cross-examine a complainant about any prior sexual activity with the accused, “may be doubted and warrants revisiting in an appropriate case” at [34].

25․Her Honour makes a compelling case for an alternative approach that would see leave required for sexual activity evidence as between an accused and the complainant that was not part of the res gestae of the offence subject to the proceedings: at [12]. The parties submitted that this was not an issue I needed to determine in this case because the accused was approaching the application on the basis that leave was required and the prosecution did not oppose the application. Noting the position of the parties and the requirement for this application to be determined prior to the trial commencing the following week, I do not consider that this is the “appropriate case” to which the Chief Justice refers. The Chief Justice noted with approval at [33] the approach taken by Mossop J in R v NX [2019] ACTSC 55 where his Honour, at the invitation of the prosecution, adopted the approach of making an order granting leave in case, on a proper construction of the section, an order was necessary. Like Mossop J I consider this to be the most efficient way to approach the application.

26․The approach to be taken to these provisions quite apart from the question identified above was considered by Loukas-Karlsson J in R v QX (No 4) [2021] ACTSC 246; at [20]-[24]. Her Honour observed:

The current div 4.2.2 is in substantially similar terms to former regime set out in div 4.2.4. The principles that the Court applied in respect of the now repealed 4.2.4 continue to apply in respect of the current div 4.2.2 regime: R v Sutton (No 2) [2019] ACTSC 340 at [5].

The purposes of regimes such as div 4.2.2 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 The Queen v ST (No 2) [2014] ACTSC 52 at [27] (The Queen 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).

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:

55              Relevant 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.

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 The Queen [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].

R v CH and JW at [67] establishes that determining whether evidence is a “proper matter for cross-examination about credit” pursuant to s 78(1)(b) require the Court to ask:

· Could the evidence substantially affect the assessment of the credibility of the complainant? Section 78(5) EMP Act; s 103(1) Evidence Act 2011 (ACT); and

· 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.

27․It is my view that the specific and general sexual activity evidence the accused has identified is evidence that has substantial relevance to the facts in issue. That is, if accepted, the evidence about the accused and complainant engaging in consensual sexual activity close in time to the alleged non-consensual sexual activity could rationally affect the assessment of the Y-STR profiles being obtained in circumstances other than those relied upon by the prosecution. Further the entirety of the sexual activity evidence has substantial relevance to the nature of the relationship between the accused and the complainant within which the non-consensual sexual activity is said to have occurred.

28․It is also my view that the entirety of the sexual activity evidence is a proper matter for cross-examination about the complainant’s credit. The matters the accused identifies as those he seeks to explore in cross-examination are matters that fall within the exception contained in s 103 of the Evidence Act 2011 (ACT) to the credibility rule contained in s 102 of that Act. That is, the sexual activity evidence could substantially affect an assessment of the complainant’s credibility and further, if accepted, would be likely to substantially impair confidence in the reliability of her version of events in relation to the acts alleged in the indictment.

29․I do not consider, at least based on the material before me on this application, that questions seeking to generally explore past sexual activity of the complainant beyond that which is to be suggested occurred with the accused satisfy the terms of sub-ss 78(1)(a) or (b). The draft form of orders produced by the parties does not provide for questions of that kind to be permitted under the terms of the grant of leave. While it has been highlighted and indeed accepted as part of this application that the complainant asserted to police and medical staff that she had not engaged in any sexual activity with anyone in the years preceding the alleged incident, the accused has not sought to include that topic as part of the terms of the order sought.   

30․It follows then that the terms of ss 78(1)(a) and (b) are satisfied and the order sought should be granted.

The s 32 application

31․The prosecution seeks an order pursuant to s 32(1)(b) of the EMP Act in relation to the complainant and another prosecution witness, a complaint witness. The application is opposed by the accused in relation to both witnesses.

32․The terms of s 32(2) make plain that the court may make a direction pursuant to s 32(1) if satisfied that:

(a)the necessary facilities are available or can reasonable be made available; and

(b)it is in the interests of the administration of justice to make the direction.

33․For the reasons that follow I am not satisfied in relation to ss 32(2)(a) or (b) and so the application in relation to both witnesses must fail. The application in relation to both witnesses can conveniently be dealt with together as the grounds of the application and the reason for its failure are common to both witnesses.

34․The prosecution relies of the affidavit of Ms Narouz which attests to the following matters:

(a)that the complainant and complaint witness have both expressed a preference to give their evidence in Queensland (Qld) via audio-visual link. The complainant because she resides permanently in Qld and the complaint witness because she is travelling in Qld between 15 August until the end of September 2023;

(b)that on 25 August 2023 the Office of the Director of Public Prosecutions (ACT) received a medical certificate from the complainant’s doctor, Dr Theingi. It is annexed to the affidavit of Ms Narouz. The certificate states that the complainant’s anxiety levels have risen since being informed that she is required to travel to Canberra and that she is a carer for her elderly, vulnerable mother. Dr Thiengi indicates the complainant is willing to give her evidence but that it would be in her best interest to do so “in the local courthouse”; and

(c)that enquiries have been made with Registry Operations, Brisbane Supreme Court and District Court. It has been confirmed by Registry Operations that facilities are available for the two witness to appear in the Qld courts precinct to give evidence by audio-visual link. Attached to the affidavit is email correspondence from Registry Operations.

35․The accused opposes the making of the orders on very practical terms submitting that based on the material before the Court, I cannot be satisfied that the “necessary facilities” are available. Implicit in this submission based on the opposition to the application is that the term “necessary facilities” should be construed broadly to mean more than just the availability of an audio-visual link and should also include other necessary facilities that ensure the smooth implementation of the use of an audio-visual link. There is no definition contained in the Act. The prosecutor accepted this was an approach that could be taken to the issue.

36․If I am wrong to take that approach, the application would still fail on a consideration of the interests of the administration of justice required at s 32(2)(b) noting that s 32(3)(d) identifies that in addition to the specific factors at (a) through (g) in considering the interests of the administrate of justice the Court may consider anything else it determines to be appropriate. I consider the issues raised about the deficiency in the arrangement the prosecution proposes are matters central to the consideration of the interests of the administration of justice.

37․The starting point is the email communication from Registry Operations, Brisbane Supreme and District Courts dated 17 August 2023. That email confirms a booking for a video-conferencing suite from 11 to 13 September 2023. The email makes plain a number of factors relevant to this application, namely:

(a)the video room requires the witness to sign in and meet a security escort who will take them to the reserved suite and unlocked the door;

(b)there is no phone in the room;

(c)the Court is unable to provide a bailiff or other support staff to assist on the day; and

(d)it is the responsibility of the person making the booking to ensure that the witness has any material they will need to consider during the course of giving their evidence and the Court will not print material on behalf of the person making the booking.

38․At the outset I note that the complainant is a witness who under the EMP Act must give her evidence by audio-visual link unless the court orders otherwise: see ss 43 and 68(2) of that Act. The issue in relation to this application is not the giving of evidence from a place outside of the courtroom or indeed a place outside the ACT. It is the lack of provision that can or has been made for the security and integrity of the witnesses while giving their evidence that founds the accused’s opposition to the application and sits at the heart of the Court’s concern about granting the application.

39․The prosecutor submitted that there may be the prospect of a yet unconfirmed support person for the complainant in the Qld Court. The prosecutor identified that, in the events that support person’s attendance can be secured, that person would have no role to play assisting with any logistical requirements that this Court might have during the course of the complainant giving her evidence.

40․The situation as far as it can be established on the material before the Court is that both witnesses would be in the video-conferencing suite with no person who has any obligation to the Court in terms of ensuring the smooth running of the trial or the integrity of the space from which the witnesses are to give their evidence. The prosecutor accepted that in each case should the witness determine not to participate in the proceedings, at any moment they could simply get up and leave the video conferencing suite. While the prosecutor indicated she understood the complainant was willing to participate in the trial (and this is consistent with the letter from Dr Theingi) the complainant has yet to be served with a subpoena. The position with respect to the complaint witness and a subpoena was not the subject of any material or submission made.

41․The prosecutor conceded that there was a real possibility that the witnesses would need to be shown documents during the course of giving their evidence. While the document display facilities in this Court could potentially be utilised, she was not clear on the functionality of the suite the witnesses would have access to in the Brisbane Court precinct and accepted that should the need arise to show the witnesses documents that were not anticipated by counsel this could be problematic for the smooth conduct of the trial.

42․The accused raised the potential for the witnesses to communicate with others during the course of giving their evidence without the supervisory role of a Sheriff (or a Bailiff as is referred to in the Registry Operations email) to advise the Court of any concerns that might arise. On the situation as presented on the application, there would no person available to assist with any technological or other kinds of difficulties with the facilities or to communicate personal difficulties the witness might be experiencing to the Court as they experience them. This is far from ideal when a jury will be paying close attention.

43․The prosecutor was unable to offer any solution to the absence of a Sheriff type role who could assist the Court and provide a general supervisory presence during the course of the witnesses giving their evidence. The prosecutor did not seek to offer the assistance of the informant or any other Australian Federal Police (AFP) colleague or the Director’s counterpart in Brisbane, for example, as a solution. This is not a criticism of the individual prosecutor but rather an observation of the limitations of the matters put in support of the application.

44․There is, in my view, a very real prosect based on the situation as arranged and proposed that the running of the trial could be adversely impacted by such an arrangement. It would see the practical challenges associated with, and the integrity of, witnesses giving their evidence left to good luck rather than the good management of a criminal trial involving serious allegations of sexual violence. The absence of a supervisory person in the suite with the witnesses, who either has obligations to the Court or understands the solemnity of the proceedings and can act accordingly, raises the prospect that the arrangement as proposed would risk the Court’s capacity to properly control the conduct of proceedings. The prosecutor did not seek to contend otherwise.

45․In those circumstances while I am satisfied that the technology is available such that an audio-visual link can be established between the witnesses and the Court, I am not satisfied that all of the necessary facilities are available to enable the proper conduct of a criminal trial. As I indicated at the outset, if I am wrong in my approach to the construction of “necessary facilities” the application would still fail based on a consideration of the interests of the administration of justice as required as part of s 32(2)(b) of the EMP Act for the same reasons.

46․I observe that nothing in my decision would prevent a further application being brought by the prosecution should the arrangement for the witness to give their evidence from a place outside the ACT improve in relation to safeguarding the security and integrity of the proceedings.

Orders

47․For those reasons, I make the following orders:

(1)The EICI of the complainant is to be edited and the question and answers contained at 10, 11-16, 38-41, 99, 134, 140-141, 209, 210, 211, 314-347, 355, 363 as well as the words “[s]o we will talk a little more about that one at the end about what’s going to happen next. But again, thanks so much for coming in to talk to me” are to be removed.

(2)The parties are granted leave pursuant to s 76(1) to adduce the following evidence of sexual activity:

(a)The existence of a prior sexual relationship between the complainant and the accused generally; and

(b)Specific sexual activities between the complainant and the accused proximate to the time of the alleged offending.

(3)The application pursuant to s 32 in relation to the complainant and the complaint witness is dismissed.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor

Associate:

Date: 3 December 2024