Director of Public Prosecutions v Moala; Director of Public Prosecutions v Kata

[2023] ACTSC 264

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Moala; DPP v Kata

Citation: 

[2023] ACTSC 264

Hearing Date:

19 September 2023

Decision Date:

19 September 2023

Before:

McCallum CJ

Decision: 

(1) Dispense with the requirement for an application in writing for leave under s 76 of the Evidence (Miscellaneous Provisions) Act in respect of the single issue of whether the complainant observed bleeding after consensual intercourse with co-accused, Kata.

(2)    Grant leave to Mr Chen to ask questions directed to that issue.

Catchwords: 

CRIMINAL LAW – EVIDENCE – sexual offence proceedings – application by one accused for leave to cross-examine the complainant as to previous consensual sexual activity with the other accused – consideration of the application of s 76(1) of the Evidence (Miscellaneous Provisions) Act – power to dispense with the requirement to make the application in writing – where proposed cross-examination relevant to a fact in issue

Legislation Cited: 

Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 77(a), 78(4)

Cases Cited: 

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

Parties: 

Director of Public Prosecutions

Seti Palei Moala ( First Accused)

Paula Fala Kata ( Second Accused)

Representation: 

Counsel

M O’Connell ( DPP)

E Chen ( First Accused)

J Sabarwhal ( Second Accused)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( First Accused)

Tu’ulakitau McGuire ( Second Accused)

File Numbers:

SCC 311 of 2022

SCC 295 of 2022

McCALLUM CJ:

1․Mr Seti Moala and Mr Paula Kata stood trial by jury for sexual offences alleged to have been committed in a motel room against the same complainant after a night out.  The Crown case was that, upon arrival at the room, the complainant had consensual intercourse with Mr Kata and then fell asleep.  She gave evidence that she awoke to find Mr Moala on top of her and that he and Mr Kata then both engaged in sexual intercourse with her without her consent.    

2․The complainant gave evidence that, when she arrived home the next morning, she noticed that she was bleeding from the vagina.  She was at the end of her period at that time which suggested one possible explanation for the bleeding.  An alternative explanation based on the findings of a medical examination conducted within 12 hours of the non-consensual intercourse was that she had a tear inside her vagina which could have been caused by rough sexual intercourse.  Her description of the non-consensual intercourse was that it was rough.  Based on the appearance of the blood, the doctor who conducted the examination considered the tear inside the vagina to be the explanation for the blood clots observed.

3․In those circumstances, during the cross-examination of the complainant, counsel for Mr Moala sought leave to ask questions concerning the consensual intercourse earlier in the morning between the complainant and Mr Kata. Leave was required because of the general immunity from questioning about prior sexual activity of a complainant conferred by s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). I granted the leave sought. I now publish my reasons for doing so, as required by s 78(4) of the Act.

4․The application was confined to a single issue, namely, whether the complainant observed any bleeding from her vagina after her consensual intercourse with Mr Kata but before the alleged sexual assault by Mr Moala.  Evidence on that issue was plainly relevant to Mr Moala’s defence because, depending on the answer, it might have provided support for the proposition that the bleeding was a result of the consensual intercourse with Mr Kata.  Had that been established, the evidence, while not exculpatory, would at least have removed from consideration as against Mr Moala one of the pieces of forensic evidence capable of supporting the allegation that he engaged in sexual intercourse with the complainant.  That would have assisted Mr Moala’s defence in circumstances where, as had been revealed by the cross-examination up to that point, the defence case was that there was no sexual intercourse between him and the complainant. 

5․Section 76(1) of the Evidence (Miscellaneous Provisions) Act provides:

(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.

6․Section 77(a) of the Act imposes a requirement that any application for leave under s 76(1) must be made in writing. The application made by Mr Chen on behalf of Mr Moala was made orally during the course of the trial. The prosecutor objected to the application on that basis. In accordance with the requirement for a written application, the prosecution had in advance of the trial filed its own application for leave under s 76(1) and, furthermore, had made plain that the prosecution application was not to be taken to obviate the need for either accused to make his own application where leave might be required. In those circumstances, Mr Chen ought to have anticipated the need for the application he made and ought to have made it in writing in advance of the trial. His failure to do so was unexplained.

7․The prosecutor submitted that it is important for the Court not to dispense with the procedural requirement too readily.  I agree, and said as much (or at least intended my remarks to be read that way) in Director of Public Prosecutions v Earle (No 2) [2023] ACTC 134 at [16].  The requirement for a written application for leave to cross-examine a complainant about prior sexual activity is important for the purpose of allowing the prosecutor to have time to prepare to meet the point, to inform the complainant of the application and to take instructions.

8․However, as I said when the prosecutor took the point in the present case, criminal trials are messy.  Notwithstanding the fact that the point ought to have been anticipated and a written application made, I considered it necessary to dispense with that requirement in the interests of affording the accused a fair trial.  There was no doubt that the consensual intercourse had substantial relevance in the case against the co-accused, Mr Kata.  Indeed, on the view I take of the statute, leave was not required to adduce the evidence in the case against him because it was part of the circumstances or res gestae of the offences alleged to have been committed by him: Earle (No 2) at [11]-[12]. 

9․Because the two accused are being tried together, the complainant has already given evidence of the consensual intercourse and is liable to be cross-examined on that topic by the co-accused.  Refusing the leave sought would not have spared her of that.  Furthermore, the application by Mr Moala to return to that issue was within a narrow scope, being confined to any observation of bleeding at that time.  I could not see any prejudice to the prosecution in allowing the application to be heard during the trial, notwithstanding the absence of a written application.

10․Leaving aside the objection based on the form of the application, the prosecutor did not otherwise seek to be heard against the grant of leave.

11․Section 78(1) of the Act provides:

(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.

12․I was satisfied that the evidence would have substantial relevance to a fact in issue, namely, whether the bleeding from the complainant’s vagina had already started before the time she alleges Mr Moala engaged in sexual intercourse with her and so could be removed from consideration as a piece of circumstantial evidence against him.

13․For those reasons, I made the following orders:

(1)Dispense with the requirement for an application in writing for leave under s 76 of the Evidence (Miscellaneous Provisions) Act in respect of the single issue of whether the complainant observed bleeding after consensual intercourse with co-accused, Kata.

(2)Grant leave to Mr Chen to ask questions directed to that issue.

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 22 November 2023