Director of Public Prosecutions v Razayee
[2024] ACTSC 151
•17 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Razayee |
Citation: | [2024] ACTSC 151 |
Hearing Date: | 23 February 2024 |
Decision Date: | 17 May 2024 |
Before: | Taylor J |
Decision: | (1) The accused is granted leave to cross-examine the complainant about the disclosure of prior sexual assault and the sexual activity evidence as particularised in the application and described above at [2]. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-Trial Application to Adduce Evidence of a Complainant’s Prior Sexual Activity – Operation of ss 76 and 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – substantial relevance to facts in issue – proper matter for cross-examination about credit – leave granted |
Legislation Cited: | Crimes Act 1900 (ACT), ss 28(2)(a), 54, 60 Evidence Act 2011 (ACT), ss 55, 101A, 102, 103, 142, 191 Evidence (Miscellaneous Provisions) Act1991 (ACT), ss 76, 78 |
Cases Cited: | Browne v Dunn (1893) 6 R 67 Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134; 378 FLR 1 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 R v ST (No 2) [2014] ACTSC 52 W v R [2006] TASSC 52; 16 Tas R 1 |
Parties: | Director of Public Prosecutions ( Crown) Ali Raza Razayee ( Accused) |
Representation: | Counsel T Hickey ( DPP) J Maher ( Accused) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law ( Accused) | |
File Number: | SCC 97 of 2023 |
TAYLOR J:
Introduction
1․On 1 June 2023, the prosecution filed an indictment alleging the following counts against the accused:
(a)Two counts of sexual intercourse without consent, contrary to s 54 of the Crimes Act 1900 (ACT) (the Crimes Act); and
(b)One count of an act of indecency without consent, contrary to s 60 of the Crimes Act; and
(c)One count of choke, suffocate or strangle, contrary to s 28(2)(a) of the Crimes Act.
2․This is an application brought by the accused pursuant to s 76 of the Evidence (Miscellaneous Provisions) Act1991 (ACT) (the EMP Act), seeking leave to cross-examine the complainant in the proceedings in relation to sexual activity evidence, specifically:
(a)previous consensual sexual activities between the complainant and the accused in March 2022 (sexual activity evidence);
(b)the complainant’s statement to police that she knew exactly when she previously had consensual sexual intercourse with the accused because she tracked who she had sexual relationships with using a period tracker (sexual activity evidence); and
(c)the complainant’s disclosure to the accused that she was the victim of a prior sexual assault perpetrated by a person other than the accused (disclosure of prior sexual assault).
3․The application is supported by the affidavit of Mr Michael Kukulies-Smith. The affidavit annexes a number of documents in support.
4․The application with respect to (a) and (b) is neither opposed, nor consented to, by the prosecution. The application with respect to (c) is opposed. The application came before me on 23 February 2024 in the immediate lead-up to the trial, which was to commence before me on 26 February 2024. On 26 February 2024, the prosecution made an application to adjourn the trial on the basis that the complainant was too unwell to participate in the trial. A doctor’s certificate in support of the application attesting to the complainant being unfit to attend Court, was filed in Court on that day. On 26 February 2024, I granted the application for an adjournment of the trial and indicated that the application, pursuant to s 76 of the EMP Act, would be granted in the applicant’s favour. These are those written reasons.
The legislative framework
5․It is useful to set out the legislative provision of relevance to the application. Section 76(1) of the EMP Act establishes general immunity for evidence of a complainant’s sexual activities without leave of the court. Section 78 constrains the discretion to grant leave under s 76.
6․Those sections provide:
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.
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).
7․For completeness, s 101A of the Evidence Act 2011 (ACT) (the Evidence Act) prescribes credibility evidence as follows:
101ACredibility evidence
Credibility evidence, in relation to a witness or someone else, is evidence relevant to the credibility of the witness or person that—
(a)is relevant only because it affects the assessment of the credibility of the witness or person; or
(b)is relevant—
(i) because it affects the assessment of the credibility of the witness or person; and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of parts 3.2 to 3.6.
8․The Evidence Act Dictionary defines credibility of a witness as the following:
(b)… the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.
9․The ‘credibility rule’ at s 102 of the Evidence Act renders credibility evidence inadmissible, while s 103 of the Evidence Act provides one of the exceptions to that rule:
103Exception—cross-examination as to credibility
(1)The credibility rule does not apply to evidence given by a witness in cross‑examination if the evidence could substantially affect the assessment of the witness’s credibility.
(2)Without limiting the matters to which the court may have regard for subsection (1), it must have regard to—
(a)whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b)the period that has elapsed since the acts or events to which the evidence relates were done or happened.
The prosecution case
10․In brief summary, the prosecution allege that the accused and the complainant were at his home on 13 January 2023, having previously arranged to meet up. While at the accused’s residence, the sexual acts particularised in the indictment are said to have occurred. The complainant and the accused first had contact with each other in March 2022 after meeting on the dating application Tinder. On 5 March 2022, the complainant and the accused had consensual sexual intercourse at the accused’s residence.
11․During the course of messaging each other, prior to the alleged offending, the complainant revealed to the accused that she had, in the past, been sexually assaulted (the complainant used the term “raped”) by a previous partner.
12․During the course of a search warrant executed at the accused’s home on 15 January 2023, the accused gave an account of what occurred with the complainant on 13 January 2023, describing it as a consensual sexual encounter. The search warrant was executed at the same time police were conducting the first evidence-in-chief interview with the complainant. During the course of the search warrant and in the context of providing an account of what occurred on 13 January 2023, the accused referred to his knowledge of the complainant having previously been “raped”.
13․In the first evidence-in-chief interview conducted with the complainant on 15 January 2023, she told investigating police that she did not have consensual sexual intercourse with the accused in March 2022. In a subsequent evidence-in-chief interview, the complainant revealed that she did have sexual intercourse with the accused in March 2022. The complainant did not provide an explanation in the second evidence-in-chief interview for why she did not reveal the March 2022 consensual sexual intercourse with the accused in the first evidence-in-chief interview.
Grounds of the application
14․The accused submits that the sexual activity evidence consisting of evidence of consensual sexual intercourse between the complainant and the accused, prior to the charged acts is a proper matter for cross-examination about credit and has substantial relevance to the facts in issue. In addition, the accused submits that the disclosure of a prior sexual assault similarly has substantial relevance to the facts in issue and is also a proper matter for cross-examination about credit. The accused submits the following matters in support of the application:
Sexual activity evidence of prior consensual sexual intercourse between the accused and the complainant: substantial relevance to the facts in issue (s 78(1)(a)) and a proper matter for cross-examination about credit: s 78(1)(b)
(a)The accused submits that the sexual activity evidence is relevant as relationship evidence because it places the alleged acts in their proper context. The accused and the complainant were exchanging numerous messages in the lead up to the alleged sexual offences. Those messages are consistent with a prior consensual sexual relationship between them. The complainant’s attendance at the accused’s home, on the occasion of the alleged offending, occurred in that context.
(b)The accused submits that the failure by the complainant to disclose the occasion of consensual sexual intercourse in March 2022 is a matter that would substantially affect an assessment of her credibility. The failure to disclose the sexual activity came in circumstances where the complainant produced evidence, via her period tracker, demonstrating that she had made a specific record of having consensual sexual intercourse with the accused in March 2022. Further, the failure to disclose came in circumstances where the complainant was under an obligation to tell the truth to investigating officials.
(c)The credibility of the complainant will be a central issue in the trial. The accused submits cross-examination about these matters is necessary to allow the credibility of the complainant to be properly assessed and the true nature of the relationship between the accused and the complainant to be revealed to the jury, thus ensuring that 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 (1893) 6 R 67, the evidence as to consensual sexual activity between them prior to the alleged offences needs to be put to the complainant.
Disclosure of prior sexual assault: substantial relevance to the facts in issue (s 78(1)(a)) and a proper matter for cross-examination about credit
(a)The accused submits that the disclosure of prior sexual assault has substantial relevance to the facts in issue, namely the acts he is said to have engaged in and his state of mind at the time he engaged in those acts.
(b)The accused submits that the evidence of his knowledge of the prior sexual assault history of the complainant provides an important context for the jury to properly assess his version of events as to the acts alleged and his state of mind. The accused contends that the context provided by his knowledge of the prior sexual assault will allow the jury to assess the plausibility of his version of events.
(c)The accused submits that this is also a proper matter for cross-examination about credit.
Consideration
15․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 by McCallum CJ in Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134 (Earle). The Chief Justice ultimately concluded that the correctness of the interpretation of s 76(2) applied in previous decisions of this Court, that leave is not required to cross-examine a complainant about any prior sexual activity with an accused, “may be doubted and warrants revisiting in an appropriate case”: at [34]. See R v Fernando [2009] ACTSC 137; 238 FLR 64, R v CH and JW [2010] ACTSC 75 (CH and JW), R v NO [2017] ACTSC 372 and R v NX [2019] ACTSC 55 (NX).
16․The Chief Justice noted with approval at [33] the approach taken by Mossop J in NX, where his Honour took the approach of making an order granting leave, in case, on a proper construction of the section, an order was necessary.
17․I consider this to be the most efficient way to approach this part of the application, insofar as it relates to the sexual activity evidence, given the neutral position adopted by the prosecution, and the timing of this application having been brought on the last day of the week before the trial was set to commence.
18․It is important to bear in mind the purpose of the prohibition contained in s 76(1) against adducing evidence from a complainant about sexual activity. That purpose being to protect complainants in sexual offence proceedings from a criminal trial being used as an opportunity to generally scrutinise and expose their sexual activities, quite apart from those matters having any real relevance to the facts in issue in the proceeding. History demonstrates that the result of this approach was commonly to shame and humiliate complainants, to invoke stereotypes and myths about sexual assault, to unfairly undermine their credibility and encourage moral opprobrium of their conduct.
19․As the Chief Justice observed in Earle at [7]-[8]:
7. The requirement for leave is not a mere formality; the discretion to grant leave is closely constrained by s 78 in terms that draw attention to some of the historical misconceptions about rape.
8. Section 76(2) disapplies the requirement for leave in respect of certain (“specific”) evidence. The clear purpose of qualifying the general protection in subsection (1) is to draw the line at which the status quo was to be preserved; that is, to specify the point beyond which Parliament accepted the humiliation entailed in a public exploration of sexual activities of the complainant to be a necessary incident of the prosecution of sexual offences.
Substantial relevance
20․For the purposes of s 78(1)(a), “relevance” has the same meaning as it appears in s 55 of the Evidence Act: CH and JW at [44]. Section 55 of the Evidence Act provides:
55Relevant 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.
21․In R v ST (No 2) [2014] ACTSC 52 at [22] citing W v The Queen [2006] TASSC 52; 16 Tas R 1 at 20 [46], the Court endorsed an approach that saw “substantial” in the context of a previous iteration of s 78 of the EMP Act interpreted to mean “considerable importance”, “concerning the essentials” or “important in material terms”. This approach was applied in R v QX (No 4) [2021] ACTSC 246 at [23] and I have approached this application in the same way.
Does the sexual activity evidence or prior consensual sexual intercourse between the accused and the complainant have substantial relevance to the facts in issue and is it a proper matter for cross-examination about credit?
22․Yes, the sexual activity evidence should be admitted for the following reasons.
23․The material before me on the application demonstrates that the complainant’s credibility is a significant factor in the prosecution case. The denial by the complainant about at least one prior instance of consensual sexual intercourse with the accused is a matter that could, in my view, substantially affect an assessment of her credibility. This is particularly so where the evidence demonstrates that she specifically recorded the March 2022 consensual sexual encounter in an application that she used to track her menstrual cycle and there is no explanation for her failure to disclose the prior event.
24․Further, if accepted, evidence about their prior sexual activity, and the complainant’s denial of such, in the circumstances would be likely to substantially impair confidence in the reliability of her version of events in relation to the acts alleged in the indictment. To be clear, it is not the fact of their prior sexual encounter I consider a proper matter for cross-examination about credit, but the denial of it in circumstances where the complainant specifically recorded it as having occurred and the failure to disclose it to investigating police is entirely unexplained.
25․The sexual activity evidence is not relied upon to demonstrate a general disposition of the complainant. Indeed, as counsel for the accused conceded, absent the denial by the complainant, their prior consensual sexual encounter or encounters may not necessarily, in and of themselves, meet the thresholds imposed by s 78.
26․In my view, the prior consensual sexual activity can also properly be characterised as relationship or context evidence in circumstances where the accused seeks to rely on a significant number of messages exchanged between them in the period that they have been known to each other, which include the sharing of intimate thoughts and experiences, and which reference their prior consensual sexual activity. These messages provide context to their encounter on the occasion the offending allegedly occurred and paint a picture of the nature of the relationship between them in the lead up to 13 January 2023. It is important that the jury understand that context when assessing the facts in issue. The sexual activity evidence has substantial relevance to that task, quite apart from it inviting an inference in relation to the general disposition of the complainant.
27․Leave should be granted to adduce the sexual activity evidence.
Does the disclosure of prior sexual assault have substantial relevance to the facts in issue and is it a proper matter for cross-examination?
28․Yes, the sexual activity evidence disclosing a prior sexual assault should be admitted for the following reasons.
29․The accused’s knowledge of the complainant’s prior experience of sexual assault was a feature of the accused’s version captured in the record of search warrant. It is anticipated that the accused will give evidence in the trial notwithstanding that version of events captured in the record of search warrant. This is, in part, a result of police executing the search warrant simultaneous to the occurrence of the first evidence-in-chief interview with the complainant – the entire detail of the complainant’s allegations were not known at the time of the warrant and so were not entirely put to the accused at the time he provided a version to police. The accused will likely go into evidence in order to provide a version of events that takes account of what he now knows to be the entirety of the prosecution case against him.
30․Counsel for the accused was careful to clarify that the evidence he is seeking to adduce is the fact of the disclosure of prior sexual assault by the complainant to the accused and not the substance of the disclosure. Counsel for the accused was unequivocal that there will be no exploration in cross-examination of the complainant about the detail or circumstances of the prior sexual assault or any questions asked of the complainant about the truth of that disclosure. The prosecution accepted that the complainant made the disclosure to the accused at some stage in their relationship prior to the alleged offending, referenced in some of the messages exchanged between them prior to the alleged offences occurring.
31․The prosecutor opposed the application with respect to this evidence on the basis that it required the Court to speculate about what the accused might say in evidence about the effect upon his conduct and state of mind of his knowledge of the prior sexual assault. The prosecution submitted that the accused should be required to disclose the specific nature of the evidence he will give in order to establish the significance of his knowledge of the prior sexual assault to the acts alleged and to his state of mind. This was part of the “forensic decision-making” in which the accused must engage, the prosecution contended, in order to be able to persuade the Court that leave ought to be granted.
32․I do not agree. A consideration of leave under this section requires the Court to contemplate the ‘facts in issue’. On the material before me, it is plain to see that the facts in issue will be the nature of the acts, including whether they were consensual acts, and the state of mind of the accused. While the record of search warrant provides some specific detail from the accused as to his version of events, without it the Court would nonetheless be required to form a view about the ‘facts in issue’ in order to determine whether the evidence for which leave was sought had ‘substantial relevance’. On any view, with or without the version contained in the record of search warrant and without knowing precisely what evidence the accused will or might give, the accused’s state of mind will be a fact in issue.
33․The accused does disclose his knowledge of the “rape” in the record of search warrant, both in terms of it being disclosed to him by the complainant prior to the alleged offending and as a topic of conversation between them on the occasion of the alleged offending. The evidence definitively demonstrates, a fact accepted by the prosecution, that the disclosure was made to him by the complainant prior to the acts alleged. If I am required to be satisfied on the balance of probabilities pursuant to s 142 of the Evidence Act, as was suggested by the prosecutor, then I am satisfied to that standard that the facts in issue are as I have stated.
34․The question is whether the evidence the accused seeks to raise in cross-examination of the complainant has substantial relevance to those facts in issue. The disclosure of the prior sexual assault to the accused is a matter that could rationally affect, directly or indirectly, the jury’s assessment of the probability of the acts occurring as the accused (or the complainant) said they did and the accused’s state of mind at the time the acts are said to have occurred. In my view, the accused’s knowledge of the prior sexual assault is of “considerable importance” or “important in material terms” to that assessment.
35․In my view, the disclosure of prior sexual assault could also be characterised as relationship or context evidence. It is part of the context, known to them both, within which they were engaging with each other. It is a disclosure representative of trust and confidence existing between the accused and the complainant, such that she shared a past, traumatic event in her life with him prior to the alleged offending. It is in the context of this kind of relationship that the alleged offending is said to have occurred. Absent this context, the jury would be left to consider the nature of the engagement between them in a vacuum.
36․This leads into a consideration of whether the matter is a proper topic for cross-examination about credit. If I am wrong in the way I have approached my consideration of the disclosure of prior sexual assault and its substantial relevance to the facts in issue, leave should nonetheless be granted on the basis that it is a proper matter for cross-examination about credit.
37․The nature and extent of the messaging between the accused and the complainant is reflective of an ongoing connection that includes the disclosure of private information (including the prior sexual assault). The connection between them, established by the messages and the disclosure of private information, could be viewed as going beyond merely facilitating or pursuing, sexual contact. The inclusion of the disclosure of the prior sexual assault by the complainant in the matters that she shared with the accused, in my view, could rationally affect the jury’s assessment of the significance, and/or plausibility, of her denial of prior consensual sexual activity between them.
38․The disclosure of the prior sexual assault as a reflection of the nature of the relationship or connection between the pair, is relevant to the jury’s assessment of the circumstances of the complainant’s denial of their prior consensual sexual activity. Put another way, evidence demonstrating that the complainant shared this kind of information with the accused as an indication or reflection of their connection and later went on to deny prior consensual sexual contact between them, is evidence that could substantially affect an assessment of her credibility. Further, it is a matter in my view that could be likely to substantially impair confidence in the reliability of the complainant’s evidence.
39․Leave should be granted to adduce the sexual activity evidence, namely evidence that the complainant had disclosed a prior sexual assault to the accused.
40․In contemplating this application, I suggested to the parties that in circumstances where it is agreed that the disclosure was made and in circumstances where the application is to be granted in relation to this evidence, that consideration could be given to the fact of the disclosure of the prior sexual assault being put before the jury as an agreed fact pursuant to s 191 of the Evidence Act. This would ensure that the jury has the evidence they require, while avoiding the need for the complainant to be asked any questions about the event, giving effect to the important purpose of the provision.
Orders
41․It follows then from those reasons that the application is granted.
(1)The accused is granted leave to cross-examine the complainant about the sexual activity evidence including the disclosure of prior sexual assault as particularised in the application and described above at [2].
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: Date: 3 December 2024 |
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