Director of Public Prosecutions v Lodding (No 2)
[2025] ACTSC 32
•31 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Lodding (No 2) |
Citation: | [2025] ACTSC 32 |
Hearing Date: | 31 October 2024 |
Decision Date: | 31 October 2024 |
Reasons Date: | 14 February 2025 |
Before: | Loukas-Karlsson J |
Decision: | The prosecution application for leave to adduce evidence of sexual activity of the complainant pursuant to s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is dismissed. |
Catchwords: | CRIMINAL LAW – EVIDENCE – application to adduce evidence of complainant’s prior sexual activity – s 76 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – substantial relevance to the facts in issue – application dismissed – late last-minute pre-trial applications |
Legislation Cited: | Crimes Act 1900 (ACT), s 54(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 76, 77, 78 |
Cases Cited: | Cooper v The King [2023] VSCA 67 Decision Restricted (No 2) [2024] ACTSC 83 DPP v Earle (No 2) [2023] ACTSC 134; 378 FLR 1 DPP v Mastalerz [2024] ACTSC 30 DPP v Razayee [2024] ACTSC 151 R v Alas (No 2) [2017] ACTSC 333 R v QX (No 4) [2021] ACTSC 246 R v ST (No 2) [2014] ACTSC 52 W v The Queen [2006] TASSC 52; 16 Tas R 1 |
Parties: | Director of Public Prosecutions ( Applicant) Christopher Adam Lodding ( Respondent) |
Representation: | Counsel K Raffan ( DPP) R Court ( Accused) |
| Solicitors ACT Director of Public Prosecutions Paul Edmonds & Associates ( Accused) | |
File Number: | SCC 37 of 2024 |
LOUKAS-KARLSSON J:
Introduction
1․Mr Lodding is charged on indictment with one count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). The allegation is of digital penetration.
2․The applicant, being the prosecution, sought an order that leave be granted to adduce evidence of the sexual activity of the complainant in this matter, pursuant to the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA).
3․The application was made on the following basis:
1.The evidence sought to be led is to the effect that
a) The complainant had told the accused that she was sexually active with her then-boyfriend (A464 [of the complainant’s Evidence-in-Chief Interview]);
b) The accused had knowledge the complainant was sexually active (A464 [of the complainant’s Evidence-in-Chief Interview]);
c) The complainant had told the accused that she was sexually active in close proximity to the alleged sexual assault on 5 January 2022 (A276 [of the complainant’s Evidence-in-Chief Interview]);
d) The accused became protective and jealous over the complainant when he learnt the complainant was sexually active (A275-6 [of the complainant’s Evidence-in-Chief Interview]).
2.It was submitted that the evidence at (1) above has “substantial relevance” to a fact in issue in this trial, namely, the accused’s state of mind on 5 January 2022.
4․For clarity and convenience, I will refer to the applicant as the prosecution and the respondent to this application, Mr Lodding, as the accused.
5․On 31 October 2024 I made an order dismissing the application (see paragraph [54]) and reasons were reserved. The reasons for that order now follow.
Outline of the application
6․On 30 October 2024, the prosecution filed an Application in Proceeding with a supporting affidavit affirmed by Mr Taylor, solicitor. Annexed to the affidavit was a copy of the AFP Record of Evidence-in-Chief Interview (EICI) conducted with the complainant, dated 5 May 2023. The application was amended in Court on 31 October 2024.
7․The Application in Proceeding sought an order that the prosecution be granted leave to adduce the following evidence of sexual activity of the complainant, as referred to in her EICI dated 5 May 2023. The following extracts from the EICI are relevant to this application:
A275: …And my boyfriend at the time, [boyfriend], um, was going to come up and stay as well, and once [the accused] found out that I was sexually active, he didn’t want [boyfriend] coming…
A 276: …And he – the incident – like, the main incident of sexual assault happened the night after he found out I was sexually active.
A456: …And then, um, once he found out that, like, me and my boyfriend at the time were probably going to be doing sexual things together, um, he started to be, like, ‘Oh, well, he can’t come down until she’s on, like, birth control,’ and all that other stuff. ‘I don’t want him coming down and sleeping in the same room as her if she’s not protected – like, on protection,’ and whatnot like that….
A457: Because I had told Mum. Well, I didn’t really tell her. She was like, ‘I know you’ve lost’ – like, ‘I know you’ve had sex.’ And I was like, ‘What? No.’ And then I eventually told her that I was sexually active.
A463: Um, about me losing my virginity.
A464: Um, well, yeah, Mum just kind of said that she had an understanding that I was sexually active, and then after a while of me being, like, ‘I don’t know what you’re talking about,’ um, I eventually told her, and he was in the kitchen. I don’t think he really had much to say in that conversation. It was more me and Mum. Um, and then, yeah, we were just talking about, like, when I lost it and who I lost it to.
A1006: No. Besides when he was there at the conversation when I was telling Mum I was sexually active, no.
Consideration
Legislation
8․Section 76 of the EMPA underlines that leave of the court is required for the admission of such evidence:
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.
(Emphasis added.)
9․Section 77 of the EMPA provides for the relevant process in applying to the court for leave for such evidence to be admissible:
77 Application for leave under s 76
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.
10․Section 78 of the EMPA mandates that in cases such as this there must be “substantial relevance” for leave to be granted by a court:
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).
(Emphasis added.)
11․Thus, s 76(1) makes it clear that, without leave, evidence of the complainant’s sexual activities is not admissible. It was properly accepted in this case that the first issue the Court must determine is whether the evidence of the complainant falls within the definition of “evidence of sexual activities of the complainant,” under s 76(1) of the EMPA. That issue is discussed directly below.
Does the evidence fall within the definition of “evidence of sexual activities of the complainant,” under s 76(1) of the EMPA?
12․There was no dispute that the evidence the prosecution sought to adduce fell within the definition of “evidence of sexual activities of the complainant” under s 76(1) of the EMPA. In my view, the evidence clearly does fall within that relevant definition.
Is “substantial relevance” established under s 78?
13․Under s 78(1), the Court must not give leave under s 76 unless the Court is satisfied that the evidence:
(a)has substantial relevance to the facts in issue; or
(b)is a proper matter for cross-examination about credit.
14․Thus, this is a matter where the prosecution must establish “substantial relevance” under s 78(1)(a).
15․The prosecution submitted that the complainant’s disclosure of her previous sexual activity is “highly significant” context evidence and further submitted that it was the disclosure of previous sexual activity which was relevant, as opposed to the truth of whether the previous sexual activity occurred.
16․In further oral submissions, the prosecution referred to alleged “grooming activities” including inappropriate touching, sexualised commentary, purchasing food and alcohol, and increasing displays of jealousy and protectiveness, and submitted that this conduct “sharply escalated” following the complainant’s disclosure to her mother, of her prior sexual activity. The prosecution submitted that within a day of learning that the complainant was sexually active, the alleged digital penetration of the complainant occurred, in circumstances where it was submitted by the prosecution that it would be unlikely that there would be “blood evidence.”
17․In response to this submission concerning “blood evidence,” counsel for the accused properly underlined that there was no medical evidence in this case and no Sexual Assault Investigation Kit undertaken at the time of the alleged offence. Counsel for the accused properly further submitted in this vein that this was “a very bedevilled point” to be advancing to a jury where there is no available forensic medical evidence.
18․In my view, the prosecution submission concerning “blood evidence” does not carry significant weight. It certainly does not assist in contributing to “substantial relevance” as required under s 78(1). “Substantial relevance” is required, not mere relevance as such.
19․The prosecution further submitted that the accused had a feeling of entitlement towards the complainant after buying her alcohol and doing favours for the complainant and that in direct response to the complainant’s disclosure, the accused displayed jealousy, protectiveness and actively opposed the complainant “having a weekend with her boyfriend.”
20․In furtherance of this submission, the prosecution ultimately submitted that there is a temporal link between the complainant’s disclosure, the subsequent “sharp escalation in behaviour” of the accused, and the alleged act for which he has been charged, and that, without that context, the sudden escalation may appear inexplicable to a jury.
21․In elaborating on this submission, the prosecution submitted that this evidence of context, is admissible as to the accused’s state of mind: DPP v Mastalerz [2024] ACTSC 30 (Mastalerz) at [51].
22․It bears repeating at this juncture, that for leave to be granted, the evidence must have “substantial relevance” to a fact in issue, as opposed to “relevance” simpliciter. The test provided for at s 78(1)(a) is not of mere relevance but of “substantial relevance.”
23․While the prosecution may have established bare relevance, the prosecution in my view has not established “substantial relevance” which is the defining test.
24․I am not persuaded that the evidence sought to be adduced by the prosecution has “substantial relevance” as to the accused’s state of mind as I discuss below.
25․I accept the following submissions made by counsel for the accused, as the submissions, I underline, accord with my view of the evidence in this case.
26․Counsel for the accused referred to QA457 of the EICI of the complainant, which outlines the circumstances where the disclosure took place. In that conversation, the complainant was talking to her mother in the kitchen. The accused was present:
Q457. Yep. How did he find out that you and [boyfriend] were going to be doing things together?
A Because I had told Mum. Well, I didn’t really tell her. She was like, ‘I know you’ve lost’ – like, ‘I know you’ve had sex.’ And I was like, ‘What? No.’ And then I eventually told her that I was sexually active.
27․Counsel for the accused properly submitted that it is clear from QA464 and QA472, extracted below, that there was an exchange between the complainant and her mother with the accused present in the kitchen. Counsel for the accused submitted there was then a discussion between the complainant’s mother and the accused about what protective steps should be taken with two teenagers staying in the same room. QA464 is as follows:
Q464. Yeah, or about you being – I think you used the words ‘sexually active’.
A Um, well, yeah, Mum just kind of said that she had an understanding that I was sexually active, and then after a while of me being, like, ‘I don’t know what you’re talking about,’ um, I eventually told her, and he was in the kitchen. I don’t think he really had much to say in that conversation. It was more me and Mum. Um, and then, yeah, we were just talking about, like, when I lost it and who I lost it to.
28․Further, QA472 states:
Q472. Okay. All right. So, you know, then you’ve said that [the accused] has been saying things about, you know, ‘You need to be on birth control. You can’t stay in the same room,’ and stuff like that. How do you know [the accused] said those things?
A That’s what Mum said.
(Emphasis added.)
29․Counsel for the accused further referred to QA275:
Q275 Okay. What do you believe?
A I believe he – there was something that he had for me, like, a little – that he was – that he was very protective over me. And my boyfriend at the time, [boyfriend], um, was going to come up and stay as well, and once [the accused] found out that I was sexually active, he didn’t want [boyfriend] coming. He got very jealous at the fact that [boyfriend] was going to come. [Boyfriend] did not end up coming.
(Emphasis added.)
30․Referring to QA275, counsel for the accused submitted that this evidence tends to establish that the accused was protective rather than jealous and does not make it more likely the accused committed the offence, and is therefore not “substantially relevant.”
31․I agree with the above submission as it aligns with my assessment of the evidence and the circumstances of the disclosure in question.
32․Counsel for the accused further properly submitted that this is evidence of a “rather benign” discussion in a household, and “a discussion that happens in many Australian households” concerning birth control. Thus, I repeat that, in my view, while I am prepared to accept that there may be said to be bare “relevance” the evidence cannot be said to be of “substantial relevance” in accordance with s 78. Discussions of this nature concerning sexually active teenagers and birth control are not of “substantial relevance,” in this case, as asserted by the prosecution.
33․Germane to this point, counsel for the accused further referred to QA456 which reinforces the submission concerning protectiveness:
Q456.All right. Okay. And then you’ve told us about how he was quite protective of you, [the accused], and he found out about you and your boyfriend. Can you tell me about that?
AUm, I wanted my boyfriend at the time, [boyfriend], um, to come and stay with us in Victoria – not Victoria – in Canberra. I’m sorry – my bad. Um, and, like, it was all good. Like, they both had given permission. He was going to come down. And then, um, once he found out that, like, me and my boyfriend at the time were probably going to be doing sexual things together, um, he started to be, like, ‘Oh, well, he can’t come down until she’s on, like, birth control,’ and all that other stuff. ‘I don’t want him coming down and sleeping in the same room as her if she’s not protected – like, on protection,’ and whatnot like that. Um, and then he eventually didn’t come, because, yeah – so he had to go to Sydney. Um, but, yeah, he was just very protective of me.
(Emphasis added.)
34․Counsel for the accused therefore properly submitted, that the evidence reveals that initially the complainant’s boyfriend was allowed to stay over. However, upon discovery of there being sexual activity, birth control became a topic of discussion and the words “I don’t want him coming down and sleeping in the same room as her if she’s not protected, like, on protection.” Counsel for the accused submitted that “goes to the availability of the jealousy inference.”
35․In my view, this evidence tends toward protectiveness and tends not to support the prosecution submission of “substantial relevance” on the basis of a “temporal link” and asserted jealousy.
Conclusion
36․For the reasons as set out above, I came to the conclusion that leave should not be granted to adduce evidence of “the sexual activities of the complainant.” In my view, the evidence does not have “substantial relevance” to the facts in issue in this case, in accordance with s 78.
37․Further, as I underlined in R v QX (No 4) [2021] ACTSC 246 at [23], the word “substantial” in s 78(1)(a) EMPA in the context of “substantial relevance to the facts in issue” means “considerable importance,” “concerning the essentials” or “important in material terms”: see W v The Queen [2006] TASSC 52; 16 Tas R 1 at [46], applied in R v ST (No 2) [2014] ACTSC 52 at [22]; R v Alas (No 2) [2017] ACTSC 333 at [9]. The evidence sought to be adduced by the prosecution does not meet that higher threshold: see also Cooper v The King [2023] VSCA 67 at [31]; Director of Public Prosecutions (ACT) v Earle (No 2) [2023] ACTSC 134; 378 FLR 1 at [32]; Director of Public Prosecutions (ACT) v Razayee [2024] ACTSC 151 at [21]; Decision Restricted (No 2) [2024] ACTSC 83 at [13]-[16].
38․The assessment by a court of whether evidence has “substantial relevance” under s 78 is determined taking into account all the evidence to be adduced in a case. Adopting that approach, in this case, the threshold test of “substantial relevance” has not, in my view, been met on the evidence.
39․It is for these reasons set out above from [8]-[38] that I made the order on 31 October 2024 as set out below at [54] dismissing the prosecution application to adduce the evidence.
The matter of late pre-trial applications after a jury trial date has been set
40․Before concluding this judgment, it is important to note the following. This matter was originally listed for a hearing by a Supreme Court judge for both a short ground rules hearing concerning the Intermediary Report, and also for the hearing of pre-trial evidence for two days, being Thursday 31 October 2024 and Friday 1 November 2024.
41․What emerged at the outset of the hearing on 31 October 2024 was that last minute pre-trial applications were notified to the registry by both counsel the day before. I gave leave for the last-minute filings to be processed as the matter was listed for pre-trial evidence the next day.
42․I note that the trial date of 24 February 2025 had already been set, creating a need for priority. This of course placed the Court in an invidious position in circumstances where a young complainant witness (who was 16 at the time of the alleged offence) was present at the Court on 31 October 2024 to give evidence with the presence of an intermediary that day.
43․The ground rules hearing concerning the Intermediary Report and the communication rules for the young complainant witness were dealt with relatively quickly and efficiently on 31 October 2024.
44․Subsequently, it emerged (as submitted and agreed by both counsel; counsel for the prosecution and counsel for the accused) that the last-minute pre-trial applications put forward by both counsel would have to be dealt with, and decisions made by the Court, prior to the commencement of the taking of the evidence from the young complainant witness. The hearing of evidence to be given by the young complainant witness was, of course, the reason for the listing on 31 October 2024 as opposed to lengthy and extended pre-trial applications.
45․I gave leave for the prosecution to file an amended application in Court and determined to proceed with the last-minute pre-trial applications as the evidence from the young complainant witness could not be heard until the pre-trial applications were dealt with and decided upon by the Court. I note in this context that the matter was listed by the Registrar on 1 August 2024 for pre-trial evidence to be taken on 31 October 2024 with a two-day estimate. That date had been determined, therefore, approximately three months earlier.
46․In view of the fact that the trial date was already set and there were no further dates remaining for the hearing of pre-trial application by the Court, prior to the jury trial date on 24 February 2025, I determined to hear the relevant pre-trial applications that, I repeat, had to be heard before the evidence of the young child complainant witness could be taken.
47․Thus, on 31 October 2024, I began hearing the pre-trial applications. I made the ruling that this judgement is concerned with on the same day, 31 October 2024, with reasons reserved.
48․I heard further pre-trial applications and submissions on 31 October 2024 and made further rulings on 1 November 2024 on matters that had to be determined (again, as submitted by both counsel) prior to hearing the complainant's evidence.
49․I then proceeded on 1 November 2024 to hear the pre-trial evidence of the young complainant witness and that evidence was completed on that date.
50․Again, in view of the fact that there was no court time left to be allocated to pre-trial applications before the trial date of 24 February 2025, it was necessary for the Court to deal with further pre-trial applications as soon as possible.
51․Law term of 2024 ended on Friday 13 December 2024, and so I allocated 18 December 2024 after the end of law term to determine the remainder of the pre-trial applications. I allocated time during a week that judges usually reserve to work on reserved judgments. I determined these matters on 1 November 2024 and 18 December 2024, and the reasons will be delivered prior to the jury trial date of 24 February 2025.
52․This detailed chronology of events has been, of necessity, recited for the following reasons for the benefit of all counsel:
1.Counsel must be diligent to ensure that pre-trial applications are filed with the Court as soon as possible, especially where a jury trial date has already been set.
2.Court time is limited, there is not an infinite number of judges to hear cases.
3.While it has been said, to paraphrase both Samuel Johnson[1] and Mark Twain;[2] that the threat of execution in the morning sharpens the mind, pre-trial applications simply cannot be left to the last minute by counsel. Thought must be given to these matters by counsel well in advance of the trial date.
[1] “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully”: Dr Samuel Johnson; English writer, poet and lexicographer (1709-1784).
[2] “Nothing so focuses the mind as the prospect of being hanged”: Mark Twain (Samuel Langhorne Clemens); American writer and humourist (1835-1910).
4.Jury trial dates are set by the Court on the basis of time estimates based on the following factors: time for hearing of evidence; counsels’ addresses; and the judge’s summing up. Jury trial dates are not set on the basis of further extensive and lengthy argument to be undertaken at the last moment.
5.Timely pre-trial preparation by counsel, concerning pre-trial applications, is of course, vital to the administration of justice. Focused, succinct written submissions are of greater forensic utility to the courts as opposed to stream of consciousness oral submissions as a matter of court craft.
6.Nevertheless, this is an issue of particular importance at this time, in this jurisdiction. Unless and until further judges are appointed, this issue of timely pre-trial preparation by counsel is of evermore critical importance in the proper administration of justice.
7.Prosecution counsel in this specific case was apparently briefed at a very late stage. This meant that counsel for the accused, had no counterpart prosecution counsel, to discuss objections to evidence and edits to the evidence. Sensible and professional agreement between counsel on such matters saves significant court time. Further, the Court understands and acknowledges that resourcing is an issue for all sectors in the law including prosecution, defence and the judiciary.
8.Nevertheless, the fact remains that all counsel must be diligent to ensure that pre-trial preparation is not left until the last possible moment. There is little to no capacity in the criminal justice system, at this time, to incorporate last minute lengthy and extensive pre-trial applications without delaying other cases that also concern the liberty of the subject. Additionally, this causes consequent delays in the publication of reserved judgments.
53․The matters discussed above at [52] are matters that must be borne in mind by all counsel to ensure the continuing proper administration of justice in this jurisdiction.
Orders
54․For the above reasons the following order was made on 31 October 2024:
(1)The prosecution application for leave to adduce evidence of sexual activity of the complainant pursuant to s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is dismissed.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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