Director of Public Prosecutions v Sheridan (a pseudonym)
[2025] ACTSC 25
•11 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Sheridan (a pseudonym) |
Citation: | [2025] ACTSC 25 |
Hearing Dates: | 10 and 11 February 2025 |
Decision Date: | 11 February 2025 |
Before: | McCallum CJ |
Decision: | (1) I direct the prosecution to provide particulars of counts 3, 5 and 6 in accordance with these reasons. (2) I exclude the EICI from evidence in the proceedings. (3) I grant leave pursuant to s 76 of Evidence (Miscellaneous Provisions) Act 1991 (ACT) for the accused to cross-examine the complainant about sexual incident B. (4) I refuse leave to the accused to cross-examine the complainant about sexual incident A. (5) I set aside the subpoenas to the proper officer of NSW Health, the proper officer of Canberra Health Services and the AFP. (6) I grant leave to the accused to issue and serve on short notice an amended subpoena to the proper officer of Canberra Health Services. (7) I grant leave to both parties to contact my chambers if parties need to make any further applications. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – sexual violence offences – application by accused for order for particulars – entitlement of accused to know the particular act, matter or thing alleged as the foundation for each charge – consideration of manner in which particulars may be provided – whether counts alleging separate acts of penetration within single episode of alleged sexual offending bad in form CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – other sexual activity – general immunity of evidence of complainant’s other sexual activities – application for leave to cross-examine – where prosecution concedes leave should be granted – absence of evidence necessary to assess appropriateness of granting leave CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to have subpoenas set aside – where subpoenas seek medical records and about complainant’s mental health for period of four years after alleged offences – where subpoena seeks complainant’s personal diaries over five years – whether any legitimate forensic purpose established |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 76, 77(c), 78, 111(1) |
Cases Cited: | Alister v the Queen [1984] HCA 85; 154 CLR 404 Johnson v Miller [1937] HCA 77; 59 CLR 467 Patel v The Queen [2012] HCA 29; 247 CLR 531 PPP v The Queen [2010] VSCA 110; 27 VR 68 Veysey v R [2011] VSCA 309; 33 VR 277 |
Parties: | Director of Public Prosecutions ( Crown) Steve Sheridan (a pseudonym) ( Accused) |
Representation: | Counsel S Saikal-Skea ( DPP) S Jerome ( Accused) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Accused) | |
File Number: | SCC 52 of 2024 |
McCALLUM CJ:
EX TEMPORE REASONS (REVISED)
1․Steve Sheridan (a pseudonym) faces trial on an indictment containing seven counts including one count of choking, one of unlawful assault with the intent to engage in sexual intercourse and five counts of sexual intercourse without consent. His trial is listed for 24 February 2025 with an estimate of five days. An amended case statement dated 3 January 2025 sets out the prosecution case.
2․Before the Court are four pre-trial applications, three filed by the accused and one by the prosecution. The applications have been brought on well after the date on which the matter was fixed for hearing and accordingly it has been necessary to determine them with a measure of urgency.
3․The first application is the accused’s application dated 29 January 2025 seeking an order that the prosecution provide particulars of the seven counts on the indictment. It is a fundamental principle that an accused person is entitled to such particulars as are necessary to inform them of the case they have to meet and to guide forensic decisions in respect of the proceedings. The content of the obligation to provide particulars is informed by the fundamental requirement to ensure that the accused has a fair trial. Many aspects of the usual procedures in criminal proceedings in this Court are directed to that end.
4․There is, of course, the amended case statement which puts the accused on notice of the case against him, together with the prosecution’s obligation to disclose any disclosable material, the threshold for which is quite low. Of course, as noted during submissions in the present application on behalf of the accused, the Crown case statement does not become part of the trial and the same may be said for any material disclosed but those processes serve to put the accused on notice of the Crown case in broad outline.
5․In some instances, particulars will also be required to put an accused on notice “not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation for the charge”: Johnson v Miller [1937] HCA 77; 59 CLR 467 at 489 (Dixon J). That decision is often cited in support of the requirement for particulars, but it is to be recalled that it was a case in which the prosecutor alleged, in support of an alleged licensing offence, that 30 men had been seen exiting licensed premises (proving that they must have been in the premises) between certain hours. Of those, only 4 were identified. At the outset of the hearing, in response to a complaint that the charge was ambiguous, the particulars were amended to allege that “a certain person” had been seen exiting the premises but the prosecution refused to specify who that person was.
6․Unsurprisingly, it was held that the accused was not able to make a defence to a case in which the “certain person” could have been any one of the 30 men who left the premises over a period of some two hours.
7․The accused also relied on the decision of the Victorian Court of Appeal in PPP v The Queen [2010] VSCA 110; 27 VR 68 in which Redlich JA set out the seven purposes of requiring that particulars be provided. That was a case of a kind that commonly comes before this Court in which the accused was charged with multiple historical sexual offences.
8․Plainly, the specification of clear particulars of the precise incident relied upon to prove any particular count is important in that context. Redlich JA identified seven purposes of the obligation to provide particulars: first, to enable the accused to exercise the right to object to evidence on the ground of relevance; secondly, to permit the accused to know how the charge might be answered; thirdly, to provide the accused with the opportunity to test credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count; fourthly, to enable the trial judge to instruct the jury properly as to the law to be applied; fifthly, to ensure that there is an unanimity of view by the jury as to a specific act by the accused; sixthly, in the event of conviction, to enable the court to know the offence for which the defendant is to be punished and seventhly, to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself if the need should arise of a plea autrefois acquit or autrefois convict.
9․Redlich JA went on at [43] and [44] to explain that the first four of those matters are necessary in support of the requirement that the accused be afforded a fair trial, whereas the second four (including number four again) inform the obligation to avoid duplicity in the indictment. In a concurring judgement, Neave JA at [2] explained that, in a case of that kind, a count may be particularised as the first, last or other in a series of similar uncharged acts. The third judge, Lasry AJA, also agreed at [80].
10․The accused also relied on the decision of the Victorian Court of Appeal the following year in Veysey v R [2011] VSCA 309; 33 VR 277. That was a case in which a teacher was accused of abusing a number of students together. The students gave different evidence of the same occasion; that to say, seven students, when asked to describe the first occasion on which they had together been asked by the teacher to expose their genitals, described what were obviously different events. Plainly that was problematic and in that case the adoption of the device of particularising the first or last offence did not obviate the risks to which Redlich JA had referred in PPP.
11․At first glance, the approach of particularising or specifying a particular incident where a count is based on an allegation of multiple acts might be thought to have no application in a case such as the present, where there are multiple counts arising from a single incident.
12․However, it is to be borne in mind that the prosecution must prove beyond reasonable doubt that the complainant did not consent, and that the accused knew that she did not consent or was reckless as to whether she consented, to each separate sexual act. That modern conception of an ongoing incident involving various different forms of sexual activity each giving rise to a separate count probably means that there is a need to specify within an indictment or by way of particulars each separate act within an episode of sexual acts.
13․In the present case, the amended case statement provides some of the particulars required to address those principles. For example, in respect of count 2, the prosecution has informed the accused in the amended case statement that the count is based on the following:
The accused then pushed [the complainant] onto his bed. [The complainant] was on her stomach with her face in the doona. The accused held [the complainant] down by alternating between placing his hands on the back of her head/neck and lower back. [The complainant] was unable to breathe properly because her face was in the doona.
14․The accused makes a number of complaints in respect of those particulars:
(a)first, it was submitted that particulars cannot be provided in narrative form and that, instead, what has to be provided is a “particular” such as, for example, “the accused applied pressure to the complainant's neck with his hand”;
(b)secondly, it was submitted that a purpose of particulars it to require the prosecution to tie its colours to the mast with specificity and that, if the witness does not come up to proof, the prosecution must amend the particulars. To that end, it was submitted that the particulars must form part of the trial record.
15․Those are largely matters of form and process. I do not accept that particulars cannot be provided in narrative form or that there is any prescribed form of particular that is a necessary requirement of the prosecution’s obligation to provide particulars. As a matter of substance, in my assessment, count 2 is adequately particularised. The accused knows the offence with which he is charges and knows the particular acts relied upon to prove the charge. That approach accords with the formulation in the judgment of Dixon J in Johnson v Miller to which I have referred. The second point raises matters for the trial judge. However, if that were me, I would take some persuading that the DPP would have to seek leave to amend the particulars if, for example, the witness described being held down face down against the doona but did not make any reference to being pushed onto the bed.
16․The counsel for the accused cited the decision of the High Court in Patel v The Queen [2012] HCA 29; 247 CLR 531 as support for the proposition that the particulars would need to be amended if they changed during the trial but that was a very different kind of circumstance from the present case. In Patel, the Crown case completely shifted during the course of the hearing and that resulted in the admission of a great deal of evidence that, on the amended case, was irrelevant. That is not the case here, where each of the acts particularised as an act of force in support of count 2 is part of the res gestae or single incident. In any event, these are matters that will have to be determined by the trial judge and will ultimately fall to be determined as matters of common sense and practical fairness.
17․In my assessment, for the same reasons as I have given in respect of count 2, each of the counts on the indictment is adequately particularised in the information provided in the Crown case statement except for counts 3 and counts 5 and 6.
18․As to count 3, the amended case statement says:
The accused then inserted his penis into [the complainant's] vagina. The accused then pulled his penis out of [the complainant's] vagina and flipped her onto her back. The accused inserted his penis into her vagina again. The accused told [the complainant] to look at him as he was engaging in sexual intercourse with her.
19․As I was reminded by counsel for the accused, the prosecution does not and cannot know what the accused's instructions are in respect of those events. While it may seem unlikely, it is possible that there is a different defence or relevant circumstance in respect of the first insertion of the penis in the vagina and the second following the flipping over onto the back as described by the complainant. Accordingly, in my view, count 2 is susceptible of some ambiguity and the Crown should either elect which of the two insertions of the penis in the vagina is relied upon or else file a fresh indictment severing that count into two separate counts.
20․As to counts 5 and 6, the complainant's evidence in the EICI is that, following various other sexual acts, the accused flipped the complainant back onto her stomach and pushed her head down into the pillow or the mattress or doona and then alternated between inserting his penis into her vagina (count 5) and anus (count 6) “approximately a couple of times”. The case statement says that the complainant does not know whether the accused started with the vagina or anus or precisely how many times he penetrated her during this part of the incident.
21․In my view, there is latent ambiguity in that count as particularised in the case statement. Accordingly, the Crown should specify which particular insertion of the penis into either the vagina or the anus is relied upon respectively for count 5 or 6. This could be done by the method approved by the Victorian Court of Appeal in PPP in the judgement of Neave JA of specifying the first or last or some other incident. It is not for the court to have any role in that since the director will need to make a decision about matters such as consent and the like.
22․The second application is the accused's application to have the EICI excluded. The prosecution consents to that application and concedes that the EICI should be excluded. The reason for that concession is that, for the whole of the interview, the complainant was wearing a surgical mask (as it is described in the evidence), presumably reflecting the restrictions imposed on contact during the COVID pandemic. Secondly, and more significantly, part of the complainant’s face is blocked for more than half of the interview as a result of the way in which the camera was situated.
23․It is unfortunate, but necessary for a fair trial, that the complainant must accordingly give her evidence in a way in which the tribunal of fact can see her face throughout her evidence.
24․The third application is the accused's application pursuant to s 76 of the Evidence (Miscellaneous Provisions) Act1991 (ACT) for leave to cross examine the complainant in relation to sexual activity. The Crown also consents to that application. The application relates to two separate matters. The first in time, which is specified in the application as incident B, may be inferred to be a matter arising from the accused's instructions to his lawyers. It is an allegation that, moments before the complainant left his bedroom on the night of the incident, she made a remark about previous sexual partners and said that he would be added to that list. The accused should be entitled to put that allegation to the complainant as it is plainly relevant to the question of consent and is part of the incident. For that reason, I accept the prosecution’s concession in respect of incident B.
25․The second incident, referred to in the application as incident A, is more problematic. For reasons I will explain, I am not prepared to grant the leave sought in respect of that incident at this stage, notwithstanding the prosecution’s consent to my doing so. I emphasise, as I informed the parties during the hearing, that this is not to foreclose any further application and, indeed, it could not foreclose any such application by the accused, being an interlocutory pre-trial ruling only and one made in circumstances where, as I have emphasised, the primary and overriding principle guiding the trial judge is to ensure that the accused has a fair trial.
26․Incident A is “sexual activity between the complainant and [a friend] on or about 21 December 2018”. The offences are alleged to have occurred very early that morning or late the night before.
27․The application is based on a diary entry by the complainant in which she states that she spent most of the day following the alleged assaults with the friend. She records that she had a nap on his bed and then writes “we had mediocre sex later that day”. That evidence is said to be significant because the complainant alleges in her statement to police that she sustained “significant” injuries (counsel’s word, not a word appearing in the EICI). The complainant’s injuries are described fully by her in the EICI. Plainly, there is room for different interpretation about the extent to which those injuries may be described as significant or likely to be ongoing with enduring impact 24 hours later.
28․It was submitted by the counsel for the accused that the incident goes to the complainant’s credit and, in particular: that if “sexual activity evidence A is accepted the complainant has either lied or is mistaken about the significant injury to her labia, internal pain to her vagina and several bruises to her body”; that she has “either lied or is mistaken about photographing her black and blue right labia sustained during the alleged violent rape by the accused”; that the friend would have likely observed the bruises on her body or vagina whereas there is no evidence that he did and, finally, that the complainant has omitted this information when recollecting the event of reporting the incident to the friend during her police interview.
29․The premises of those submissions are that having sex with the friend was inconsistent with the injuries and that the friend would likely have observed at least some of the injuries. The difficulty is that, first, there is no account of what took place with the friend, either from the complainant or from the friend, and, secondly, that the submissions make assumptions which are untested and untestable at this point about the nature and duration of the injuries.
30․Some of the injuries listed by the complainant might inform the likelihood of her having had consensual sexual intercourse or at least vaginal or anal intercourse the next day, namely, the bruised labia, the hurt area between her vagina and her anus and her statement that her vagina felt raw and in pain. For others, the accused’s point is that the friend might have seen the injuries. That applies to the bruised neck, bruised collarbone and bruised hips.
31․Section 76 of the Evidence (Miscellaneous Provisions) Act provides that evidence of other sexual activity, however, is not admissible without leave. Section 78 provides that the court must not give leave unless satisfied that the evidence has substantial relevance to the facts in issue or is a proper matter for cross-examination about credit.
32․As to the second category of injuries (the bruises to the neck, collarbone and hip), the friend could be asked whether he noticed any of the complainant's alleged injuries without there needing to be any cross-examination about their sexual activity.
33․As to credit, the Act provides that a matter is not to be regarded as being a proper matter for cross-examination unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant's evidence. It is not possible for me to assess the likely impact of cross-examination on the jury’s confidence in the complainant’s reliability without knowing more about what took place or is said by her or the friend to have taken place between them. Accordingly, I do not think I can be satisfied in the terms of the section. It follows that I must refuse the leave sought at this point.
34․The final application is the prosecution's application to have three subpoenas issued recently at the request of the accused either set aside or varied. I do not think it is appropriate for the court to vary the schedule to a subpoena. The drafting of the schedule is a matter for the party seeking the issue of the subpoena. Ordinarily, if the court accedes to an application that the schedule to a subpoena is too broad, the proper course is to set the subpoena aside and to grant leave to the party to issue a fresh subpoena within the narrowed terms either agreed or intimated by the court.
35․I accept that there is a low bar for the issue of a subpoena. Both parties referred to the decision of the High Court in Alister v The Queen [1984] HCA 85; 154 CLR 404. The guiding principle stated in that case is that a mere fishing expedition must never be allowed but it may be enough that it appears to be “on the cards” that the documents will materially assist the defence.
36․The first two subpoenas are subpoenas respectively to the NSW Health Service and the ACT Health Service. As to the ACT Health Service, the prosecution accepts that some material should be able to be subpoenaed arising from the complainant’s statement to police in which she said that she had been admitted to a mental health ward (and the language of the statement makes plain that it is within the ACT) within a week before the alleged sexual assaults.
37․The accused should be entitled to explore what mental health issues the complainant had at around that point in time leading up to the incident complained of and what treatment she was receiving. That will, in my view, be enough to meet the concern expressed in the accused’s submissions as to his entitlement to “clarify any mental health condition she was suffering at the time and her capacity to perceive reality and accurately recall events at that time”. That will also afford the accused a basis to investigate whether any medications she was prescribed and taking at that time were contraindicated for the consumption of alcohol, cannabis, cocaine or any other substance.
38․Beyond that, in my view, there is no legitimate forensic purpose established for either the balance of the subpoena to the ACT Health Service or to the NSW Health Service. In each case, the schedule seeks notes and/or records detailing any admission or attendance at any mental health facility between 1 October 2018 and 30 November 2024, including but not limited to any diagnosis for any mental health illness, treatment sought and/or undertaken and duration of any admissions. The dates specified span a range of six years, most of which is after the alleged incident.
39․It was submitted that that material is necessary for the accused to clarify any mental health conditions suffered by the complainant and her capacity to “perceive reality and accurately recall events”. I do not see how that can be the case unless one accepts the untested premise that mental health conditions have an impact on credibility, reliability or honesty. That is not an assumption I can make and not one of which I could take judicial notice. In my view, it will be enough if the complainant has the material relating to the admission immediately preceding the alleged sexual assaults.
40․The third subpoena is a subpoena issued to the AFP seeking the whole of the complainant’s diaries over a period of five years, that is to say, five diaries between 2018 and 2022. The evidence establishes that the police informant has examined the diaries and has set out in some detail the topics and matters to which they relate. The informant has, in my assessment and as submitted by the prosecution, made very generous disclosure of that material to the accused. That may be explained by the different standard for disclosure to which I have referred, that is, that the prosecution might be expected to take a more liberal approach than might be applied in the case of a subpoena.
41․Be that as it may, in my view a very liberal approach has been taken and the accused has the advantage of a great deal of material concerning the complainant's most intimate thought processes about herself, the events that she complains of in these proceedings and a whole range of other matters. I am not satisfied that there is any legitimate forensic purpose for providing the unredacted diaries beyond the material that has already been disclosed.
42․It remains to deal with an order sought in the submissions (but not, I think, in the application itself):
That the complainant is not to be made aware of the application or the order allowing cross-examination of the sexual activity evidence as stated in paragraph 1(a) and 1(b) prior to her cross examination.
43․As I have declined the greater part of that application, this point may be moot. However, it is appropriate to record the views I reached during the hearing. The application invoked s 111(1) of the Evidence (Miscellaneous Provisions) Act. It is doubtful whether that section confers power on the court to prohibit the disclosure of events that occur during criminal proceedings as opposed to “evidence” or material that might identify a party or a witness. Furthermore, it is doubtful whether the court could find in the terms of the section that disclosure of that material would be “likely to prejudice the administration of justice”.
44․One aspect of the administration of justice is the prosecution’s entitlement and professional obligation to proof its witnesses responsibly. That is an aspect of the requirement of fairness to the accused. The prosecution ought to be properly prepared for a trial and that includes a proper process of proofing witnesses by the person charged with the conduct of the prosecution. It is also a matter of fairness to the prosecution to know what the complainant will say on a topic it knows will arise in the trial. Finally, informing the complainant that she may be asked questions about other sexual activities allows her to make an informed decision about whether she is willing to or interested in giving evidence at all.
45․These are matters which concern fairness of the trial to the accused but also to the prosecution. I accept that an accused is not obliged to reveal topics for cross-examination as a general matter. However, it is implicit in an application for leave to cross-examine on other sexual activity, at least where it occurs before the trial. As I was reminded by counsel for the accused, s 77(c) provides that an application under s 76 must be made in the absence of the complainant if the accused so requests. That can be done during the trial. However, for the reasons I have given, the present application, if it had been made during the trial in the absence of the complainant, would likely have failed. It would, in all likelihood, not have succeeded unless the complainant’s evidence was taken on the voir dire to enable the trial judge to determine whether it met the statutory test under s 76. The application brought in advance of the trial here necessarily creates the need for a further statement to be obtained from the complainant.
46․For all of those reasons, I doubt whether it would be appropriate for the court to make an order of the kind sought by the accused, even if I was satisfied that I had power to do so under s 111.
47․Finally, as I was reminded during the hearing by Ms Corcoran from the Women's Legal Service, who represents the complainant, legal practitioners participating in the preparation of witnesses for trial are constrained by professional rules which make plain that they are not to coach witnesses or suggest any answers to them. The mere putting a witness on notice of possible topics of cross-examination seems to me to be a proper part of the process of proofing the witness in preparation for the trial.
Orders
48․For those reasons I make the following orders:
(1)I direct the prosecution to provide particulars of counts 3, 5 and 6 in accordance with these reasons.
(2)I exclude the EICI from evidence in the proceedings.
(3)I grant leave pursuant to s 76 of Evidence (Miscellaneous Provisions) Act for the accused to cross-examine the complainant about sexual incident B.
(4)I refuse leave to the accused to cross-examine the complainant in respect of sexual incident A.
(5)I set aside the subpoenas to the proper officer of NSW Health, the proper officer of Canberra Health Services and the AFP.
(6)I grant leave to the accused to issue and serve on short notice an amended subpoena to the proper officer of Canberra Health Services.
(7)I grant leave to both parties to contact my chambers if parties need to make any further applications.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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