Director of Public Prosecutions v Little (a pseudonym)

[2024] ACTSC 351

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Little (a pseudonym)

Citation: 

[2024] ACTSC 351

Hearing Date: 

4 November 2024

Decision Date: 

4 November 2024

Before:

Berman AJ

Decision: 

See [9]

Catchwords:

CRIMINAL LAW – EVIDENCE – Application to adduce evidence of prior sexual activity – where nature of earlier relationship is of substantial relevance to facts in issue – where admitting evidence will prevent assessment of alleged offending conduct in an artificial vacuum – leave granted

Legislation Cited: 

Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 78

Parties: 

ACT Director of Public Prosecutions ( Crown)

Kevin Little (a pseudonym) ( Accused)

Representation: 

Counsel

M Howe (Crown)

Z Alderton ( Accused)

Solicitors

ACT Director of Public Prosecutions

Hugo Law Group ( Accused)

File Number:

SCC 32 of 2024

BERMAN AJ:            

1․An application is made before me for leave pursuant to s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) relating to some specific sexual activities of the complainant in this matter. An application was filed with the leave of the Court this morning and the application is not opposed by the prosecution.

2․It is common ground that the young person and the complainant in this matter were in a relationship at some stage prior to the events which form the basis of the charges now brought against the young person. As part of that relationship, there was consensual sexual activity, including sexual intercourse. 

3․The application made by the young person is that evidence of the nature of the earlier relationship, including the sexual activities which took place as part of that relationship, would be admitted in the trial of the young person.

4․The application makes specific reference to matters contained in the evidence-in-chief interview of the complainant, and also in an interview between police and a friend of the complainant. I must not give leave under s 76 unless I am satisfied that the evidence has substantial relevance to the facts in issue – (s 78(1)(a)). I am so satisfied.

5․What occurred on the occasions the subject of the counts on the indictment can only really be understood if it is placed into the proper context; namely, that this was not the first time that the complainant and the young person had had sexual intercourse.  Some of the things the complainant will be giving evidence about include a comparison of how the young person behaved on the prior occasions, and how he behaved on the occasions the subject of the charges.

6․For example, the complainant on occasion says that the young person's conduct changed or was different on the occasion the subject of the charges. Were the jury not to hear evidence of what occurred previously in their relationship, they would be required to assess the relevant conduct in an artificial vacuum.

7․On earlier occasions where sexual activity took place, the complainant will give evidence suggesting that the accused was careful to ensure that she was consenting to it. It is part of the prosecution case against the accused that she was not consenting on the occasions the subject of charges on the indictment.

8․The complainant, in her evidence-in-chief interview, speaks of the difference in the way the young person acted. Such evidence would be meaningless unless evidence was admitted of the prior sexual history of the complainant and the young person.

Orders

9․For those reasons I make the following order.

(1)I grant leave to the parties to adduce evidence of the sexual activities of the complainant and the young person as referred to in the answers to the following questions in the evidence-in-chief interview of the complainant: question 9; questions 202 to 210; question 306; question 327; question 359 to 367; question 395 to 397; and also, the evidence-in-chief interview of the complaint’s friend at question 48 to 51.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman.

Associate:

Date: 4 March 2025