Director of Public Prosecutions v Pitt

[2024] ACTSC 338

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Pitt

Citation: 

[2024] ACTSC 338

Hearing Date: 

2 September 2024

Decision Date: 

2 September 2024

Reasons Date:

31 October 2024

Before:

McWilliam J

Decision: 

(1) Pursuant to s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), leave is granted to the prosecution to adduce in this proceeding evidence of the complainant’s sexual activities with the accused.

Catchwords: 

CRIMINAL LAW – EVIDENCE – Pre-trial application for leave to adduce evidence of prior sexual activities between complainant and accused – application unopposed – leave granted

Legislation Cited: 

Crimes Act 1900 (ACT) s 54(1)

Evidence Act 2011 (ACT) s 55

Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 76(1), 77, 78(1), 78(1)(a), 78(2), 78(4)

Cases Cited: 

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

R v Alas (No 2) [2017] ACTSC 333

R v Nash (No 2) [2021] ACTSC 268

R v ST (No 2) [2014] ACTSC 52

W v The Queen [2006] TASSC 52; 16 Tas R 1

Parties: 

Director of Public Prosecutions

Tobias James Pitt ( Accused)

Representation: 

Counsel

S Pillai ( Prosecution)

R Edney ( Accused)

Solicitors

ACT Director of Public Prosecutions

Andrew Byrnes Law Group ( Accused)

File Number:

SCC 219 of 2023

McWILLIAM J:         

1․By way of an indictment filed on 8 October 2023, the accused, Tobias James Pitt, has been charged with two counts of sexual intercourse without consent, being reckless as to whether she was consenting, contrary to s 54(1) of the Crimes Act 1900 (ACT).

2․The accused has pleaded not guilty to each count on the indictment.

3․On 2 September 2024, the matter came before me for a trial by jury, which was ultimately adjourned. At the commencement, I dealt with the prosecution’s application, filed pursuant to s 77 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act), to adduce in the proceeding evidence of the complainant’s sexual activities with the accused. The application was not opposed. I granted leave, indicating at the time that reasons (required by s 78(4) of the EMP Act) would be provided in due course.  These are the reasons for my ruling.  

Applicable principles

4․The application was dealt with in the absence of the jury, in compliance with s 77(b) of the EMP Act. It was also deal with in the absence of the complainant (s 77(c)), although there was no express request by the accused in that regard. 

5․The relevant provisions of the EMP Act governing the matter of leave to adduce evidence of the complainant’s sexual activities with the accused are set out as follows:

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.

6․The evidence that was the subject of the application here related to prior sexual or otherwise intimate activity between the complainant and the accused, including on a different occasion to the date on which the subject offences occurred. 

7․The sexual history between each complainant and the accused that was sought to be led or cross-examined upon was not the “specific sexual activities” that were the subject of the conduct charged, being “the sexual offence proceeding”. Accordingly, leave of the Court was required pursuant to s 76(1): Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134 at [11], [34].

The requirements for a grant of leave to adduce sexual activities

8․Under s 78(1) of the EMP Act, the Court must not give leave unless satisfied of either of two criteria or limbs:

(a)The evidence has “substantial relevance to the facts in issue”; or

(b)The evidence is “a proper matter for cross-examination about credit”.

9․The prosecution relied on the first limb, being that the evidence of the prior sexual activities has substantial relevance to the facts in issue by putting the charged act in the proper and realistic context of the relationship.

10․Although the applicable principles have been set out in a number of earlier decisions of this Court, they have been repeated insofar as they relate to the first of the two limbs for convenience and transparency of the reasoning process here.

11․Relevance has the same meaning in s 78(1)(a) as that expressed in s 55 of the Evidence Act 2011 (ACT): R v Nash (No 2) [2021] ACTSC 268 (Nash) at [11].

12․The evidence must then be substantially relevant, which has previously been taken to mean of “considerable importance”, “concerning the essentials” or “important in material terms”: Nash at [12] citing W v The Queen [2006] TASSC 52; 16 Tas R 1 at [46]; R v ST (No 2) [2014] ACTSC 52 at [22]; R v Alas (No 2) [2017] ACTSC 333 at [9].

13․Sub-section 78(2) also informs what constitutes “substantial relevance”. It provides:

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.

Do the sexual activities between the complainant and the accused have substantial relevance?

14․The charges against the accused were that, when the accused attended the complainant’s apartment on 22 February 2023 to engage in what started out as consensual sexual activity, at some point the complainant expressly withdrew her consent. The accused continued engaging in penile-vaginal intercourse with her, without her consent (Count 1) and also engaged in penile-anal intercourse with the complainant without her consent (Count 2).

15․Consent will thus be a fact in issue, as will the accused’s state of mind, specifically whether he was reckless about whether the complainant was consenting to the conduct alleged.  Whether the accused held a belief about the complainant’s consent, and whether such a belief was reasonable, are in issue in this trial.

16․The prosecution indicated that the evidence sought to be led was the entirety of the complainant’s sexual history with the accused, which included both penile-vaginal and penile-anal sex and the exchange of sexually explicit messages, commencing about 1 month prior to the conduct the subject of the charges.

17․The prosecution and the accused jointly submitted that this prior sexual activity evidence was necessary to place the allegations in their proper narrative and context. 

18․The complainant’s evidence-in-chief interview records that the complainant and the accused started communicating through the use of the dating app “Tinder”, and subsequently on Locanto, an online site for classified advertisements. They then arranged to meet in January 2023 on the pretext that they would have sexual intercourse.  During the intercourse, the complainant wore a blindfold which the accused had brought with him.

19․Subsequently between 28 January 2023 and 22 February 2023, the accused and the complainant exchanged sexually explicit messages via the messaging app “Kik” and arranged to meet up again on the day on which the charged conduct occurred.

20․The prior sexual activity was proximate to the date of the charged incident, and the nature of the prior consensual sexual activity may properly be characterised as evidence that provides context to the encounter on the day that is the subject of the offence. 

21․In this case, the complainant and the accused became acquainted solely for the purpose of engaging in sexual activity.  The historic sexual activities are probative in providing an understanding of the nature of that relationship and may have a bearing on the assessment the jury makes of the allegation that the complainant started consensual penile-vaginal sex but then withdrew her consent and further, that she did not consent to the penile-anal sex that occurred.  Without knowing the prior sexual history and the communications between the complainant and the accused, the jury would be presented with an incomplete picture, which may impact upon their assessment of the respective states of mind of the complainant and accused.  I therefore formed the view that the evidence had substantial relevance to facts in issue.

Orders

22․For the above reasons, the Court ordered as follows:

(1)Pursuant to s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA), leave is granted to the prosecution to adduce in this proceeding evidence of the complainant’s sexual activities with the accused.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate:

Date: